STATE v. JOHNSTON, 49709-0-I (Wash.App. 5-27-2003)

No. 49709-0-IThe Court of Appeals of Washington, Division One.
Filed: May 27, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 01-1-06348-7 Judgment or order under review Date filed: 11/16/2001

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Sarah Mcneel Hrobsky, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Gregory Charles Link, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), Ian Michael Goodhew, King Co Pros Ofc, 516 3rd Ave, Seattle, WA 98104-2390.

Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

APPELWICK, J.

A jury convicted Tracey Johnston of threatening to bomb or injure property in violation of RCW 9.61.160. On appeal, Johnston challenges the constitutionality of the statute, the sufficiency of the evidence against him, and the instructions to the jury. We conclude that RCW 9.61.160 is not overbroad under the First Amendment because it does not reach a real and substantial amount of protected speech. We further conclude that there was sufficient evidence to sustain Johnston’s conviction and that the jury was properly instructed on the elements of the crime. We affirm Johnston’s conviction.

FACTS
On May 2, 2001, Officer Raymond Blackwell was dispatched to meet an Alaska Airlines flight arriving at Sea-Tac Airport. The flight crew had reported two passengers who were consuming their own alcohol in violation of airline regulations. Officer Blackwell met the flight upon arrival at Sea-Tac and a flight attendant identified Tracey Johnston as one of the disorderly passengers.

Officer Blackwell later testified that Johnston had obviously been drinking when he got off the flight. Officer Blackwell checked Johnston’s identification, found out Johnston had two misdemeanor warrants and arrested him. He then transported Johnston to the Port of Seattle Offices at Sea-Tac Airport.

While Officer Blackwell was booking Johnston and writing his report of the incident, Johnston began `vocalizing his unhappiness.’ Johnston told Officer Blackwell that he knew about the airport. Johnston stated, `he would come back to the airport and fuck this place up.’ Officer Blackwell testified that Johnston went on to say that `he knew about the airport, and he knew what it would take. He said he believed a truck, a moving truck of some sort with nitro diesel fuel would blow this place up.’ After consulting his report, Officer Blackwell recalled that Johnston stated he would use a Ryder truck. Officer Blackwell testified that Johnston was `very agitated’ at the time he made these statements.

Johnston was charged with one count of threats to bomb or injure property in violation of RCW 9.61.160. During closing, the prosecutor argued:

There is nothing that requires you to decide in determining what the defendant was thinking when he said this. . . . .

In addition that is the reason this instruction is included saying that someone can’t come in and claim I was just kidding and wasn’t serious because the law does not recognize that as a valid defense. Put yourself inside the defendant’s head and the way things were turning out and what he was thinking. It’s not an issue in this case. The issue is whether or not he communicated it. . . . .

You are probably also wondering what kind of law puts limitation on and in fact restricts somebody from saying anything when they are angry without deciding whether they were serious or would they do anything further to carry it out . . . . [T]he law says we don’t have to know that.

The defense in closing stated:

I am going to bomb the airport. Did I just communicate something to you folks under the circumstances that would make you as reasonable people understand, believe, see, know that I meant it and that I intended someone bodily harm? . . . .

He was angry, obnoxious and drunk.

Defense counsel then asked whether Johnston’s statements could be taken seriously under the circumstances. The prosecution objected and the trial court sustained the objection. In rebuttal the prosecution clarified:

[Defense] counsel’s description is that there has to be something more under this statute. There is nothing more. There is no requirement here to know if the defendant intended to carry this out. There is no requirement here requiring you to consider whether Officer Blackwell’s testimony was reasonable under the circumstances under which those threats would lead me to believe that he would carry this out. . . . It is a misstatement of the law to suggest otherwise.

During deliberations the jury inquired:

Are we suppose[d] to judge if defendant is guilty of only `saying the words’ or deciding if defendant `actually has intent to carry out the threat[?]’

Over the defense’s objection, the court responded that ‘[i]ntent to carry out the threat is not an element of the crime.’

The jury found Johnston guilty. Johnston was given a standard range sentence. He timely appealed.

ANALYSIS I. Overbreadth
Johnston argues that RCW 9.61.160 proscribes a substantial amount of constitutionally protected speech. Johnston contends that the statute was constitutionally overbroad as applied to him. We disagree. The Court of Appeals, Division II has repeatedly held under similar challenges that RCW 9.61.160 is not constitutionally overbroad under the First Amendment because it does not reach a substantial amount of protected speech. State v. Edwards, 84 Wn. App. 5, 16-17, 924 P.2d 397 (1996); State v. Smith, 93 Wn. App. 45, 47-48, 966 P.2d 411 (1998). We agree with Division II and conclude that RCW 9.61.160 fails to sweep within its grasp a substantial amount of protected speech and is therefore not overbroad under the First Amendment of the United States Constitution.

II. Sufficiency
Johnston claims that there was insufficient evidence to convict him under RCW 9.61.160 because the prosecution did not prove that the officer took him seriously or that he intended the officer to take him seriously. This argument, however, turns on whether the prosecution was required to prove `true threats’ or other unprotected speech in order to convict Johnston. As discussed above, the statute is not limited to unprotected speech or to `true threats.’ The State was not required to prove the additional elements Johnston suggests. The evidence is sufficient to sustain the necessary elements. Johnston’s sufficiency claim therefore fails.

III. Jury Instructions
Johnston argues that two instructions given to the jury were improper. Instructions are proper if they permit each party to argue its theory of the case, are not misleading and, when read as a whole, properly inform the trier of fact of the applicable law. State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988). A trial court has discretion in determining the wording of jury instructions. State v. Dana, 73 Wn.2d 533, 536, 439 P.2d 403 (1968). A trial court has discretion in deciding whether to respond to a jury inquiry. Ng, 110 Wn.2d at 42.

Johnston argues that the trial court’s definition of threat was a misstatement of the law because it did not limit the definition to unprotected speech. However, RCW 9.61.160 is not limited to unprotected speech. The definition of `threat’ was therefore not improper because it did not require the threat to rise to the level of a true threat.

Similarly, the trial court did not misstate the law when it replied to the jury’s question. As the trial court responded, `Intent to carry out the threat is not an element of the [charged] crime.’ This is an accurate statement of the law. Edwards, 84 Wn. App. at 12. Therefore, the court’s response to the jury was not an abuse of discretion.

Johnston also argues that the trial court abused its discretion in instructing the jury regarding `hoax,’ because it was not a defense raised by Johnston. A trial court’s instructions to the jury must conform to the evidence. Alston v. Blythe, 88 Wn. App. 26, 34, 943 P.2d 692
(1997). The trial court fashioned the instruction on RCW 9.61.170, which reads:

It shall not be a defense to any prosecution under RCW 9.61.160 . . . that the threatened bombing or injury was a hoax.

Johnston’s attorney specifically denied the relevance of the hoax instruction by stating in closing, `It’s not a hoax. He was angry, obnoxious and drunk. There is no hoax.’

The jury instruction was not a misstatement of the law. RCW 9.61.170 clearly indicates that hoax is not a defense to RCW 9.61.160. Any confusion created by the hoax instruction, was dispelled by defense counsel’s explanation in closing that Johnston was not arguing `hoax’ as a defense. The trial court therefore did not abuse its discretion in giving the hoax instruction. Affirmed.

COX and AGID, JJ., concur.