No. 49084-2-I.The Court of Appeals of Washington, Division One.
Filed: October 21, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 018014384, Hon. Nicole Mac Innes, August 22, 2001, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sharon J. Blackford, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Gregory C. Link, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Randi J. Austell, King Co Pros Attorney, 516 3rd Ave 5th Floor, Seattle, WA 98104.
SCHINDLER, J.
M.K. was adjudicated guilty in juvenile court of felony harassment. M.K. told K.J., a classmate, he was going to bring a gun to school and shoot everyone. M.K. admitted he said something about a gun, but claimed he was only joking. M.K.’s principal argument on appeal is that the evidence and findings are insufficient to support the trial court’s conclusion that his statement amounted to a “true threat”. M.K. also challenges the felony harassment statute as unconstitutionally overbroad. The evidence supports the trial court’s conclusion that the threat was a “true threat”. Given the circumstances in which the threat was made, it was reasonable to conclude that M.K.’s threat would be interpreted by his classmate as a serious threat to kill. Because the felony harassment statute prohibits only “true threats” which are constitutionally unprotected speech, the statute is not unconstitutionally overbroad. We affirm.
The state charged M.K. with felony harassment based on an incident that occurred at Mount Baker Middle School in Auburn, Washington on March 21, 2001. At trial, the State presented the testimony of K.J. and M.K.’s statements at the time of his arrest. M.K. did not testify. K.J. testified that at the end of her last class, M.K., who was sitting next to her, said: “I’m going to bring a gun to school tomorrow and shoot everyone and start with you.”[1] Then he said, “OK, maybe not you first.”[2]
K.J. said M.K. looked directly at her when he said he was going to bring a gun to school and shoot everyone starting with her. She said she could not tell if M.K. was serious when he made the statement because he behaved “kind of like he was joking”.[3] K.J. was taken aback, said “okay”, and turned away.[4] But M.K.’s comment scared her and immediately after class she told a friend about it. She continued to think about M.K.’s remark for the rest of the afternoon and early evening. She was scared that M.K. was serious and told her parents. Together, they called the police to report M. K.’s threat. M.K. was arrested. M.K. admitted he had said “[t]here’s nothing an AK-47 wouldn’t solve.”[5] He said this comment was only a joke.
The trial court found K.J.’s testimony credible and also found that she reasonably feared M.K. would carry out his threat. The trial court adjudicated M.K. guilty and entered written findings of fact and conclusions of law. The court specifically incorporated its oral ruling as a part of the written findings and conclusions. At the disposition hearing, the court imposed no sanction of confinement, community supervision, or community service.[6]
SUFFICIENCY OF THE EVIDENCE
RCW 9A.46.020(1) requires the State to prove beyond a reasonable doubt that M.K. “knowingly threatened” K.J. and that his “words or conduct placed” K.J. “in reasonable fear that the threat will be carried out. . . .” RCW 9A.46.020(1).[7] M.K. contends there was insufficient evidence to support his adjudication under this statute because the evidence did not demonstrate that he made a “true threat” rather the evidence only supported the conclusion that he was joking.
In a juvenile proceeding, as in an adult case, the evidence is sufficient to support an adjudication of guilt if any rational trier of fact, viewing the evidence in the light most favorable to the State, could find all the essential elements of the crime charged beyond a reasonable doubt. State v. Avila, 102 Wn. App. 882, 895-96, 10 P.3d 486
(2000), rev. denied, 143 Wn.2d 1009 (2001). A claim of insufficiency “admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The reviewing court must defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533
(1992).
RCW 9A.46.020(1) prohibits only “true threats”. “True threat” is a term that has developed in First Amendment jurisprudence to describe a type of threat that is constitutionally unprotected speech. Our Supreme Court has defined “true threat” as follows:
A “true threat” is a statement made `in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual].’
State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001) (quoting State v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)). A “true threat” is a “`serious one, not uttered in jest, idle talk, or political argument.'” State v. J.M., 144 Wn.2d 472, 478, 28 P.3d 720 (2001) (quoting United States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983)).
In Williams, the Court concluded that the portion of the statute under which M.K. was adjudicated guilty — “A person is guilty of harassment if:
. . . the person knowingly threatens: . . . [t]o cause bodily injury immediately or in the future to the person threatened or to any other person” — is a constitutional prohibition of “true threats”.
Williams, 144 Wn.2d at 208 (quoting RCW 9A.46.020(1)(a)(i)).[8]
In order to have been adjudicated guilty, M.K. must have knowingly made a “true threat” that placed K.J. in reasonable fear the threat would be carried out. M.K. claims that the evidence does not demonstrate that he knowingly made a “true threat” because the State did not prove that he actually intended to carry out his threat. He focuses on the trial court’s conclusion that his intent to commit the threatened act is irrelevant.[9] He also emphasizes a comment made by the court in its oral decision that there was “no reason to believe” M.K. actually intended to bring a gun to school and shoot people.[10]
In concluding that M.K.’s subjective intent was irrelevant and that his intent could be proved by the words that were communicated, the trial court relied on the Washington Supreme Court’s recent decision in J.M. J.M. is factually similar to this case. J.M. was adjudicated guilty of felony harassment when, after the Columbine school shooting, he said to a couple of fellow students that he wanted “to do a shooting at Denny like there was in Colorado.” J.M., 144 Wn.2d at 474-75. He then said he would target specific staff members. Although one of the students testified that he did not take it seriously at first, he later thought “there was some possibility it might happen”. J.M., 144 Wn.2d at 475. The threat made by J.M. was a “true threat”, even though the students who heard the threats were unsure of how to interpret the threat and there was no proof that the student actually intended to carry out a Columbine-like shooting.
J.M. challenged the adjudication, arguing he did not “knowingly” communicate a threat and that the statute required the State to prove that the person making the threat knows or should know that the threat will be communicated to the person threatened. The Court concluded that “knowingly” modifies threaten, and therefore, the defendant “must subjectively know that he or she is communicating a threat, and must know that the communication he or she imparts directly or indirectly is a threat of intent to cause bodily injury to the person threatened or to another person.” J.M., 144 Wn.2d at 481.
The Court went on to discuss the content of the threat:
As to the nature of the threat, whether or not the speaker actually intends to carry out the threat is not relevant. However, the communication must be of the intent to cause bodily injury. Thus, the defendant must be aware that the threat is of such an intent. It must, therefore, be a real or serious threat. Idle talk, joking, or puffery does not constitute a knowing communication of an actual intent to cause bodily injury.
J.M., 144 Wn.2d at 482-83.
Based on J.M., the trial court found M.K. “knew that he communicated a threat”, and “knew that the communication he imparted was a threat of intent to cause bodily injury.”[11] The trial court also found that M.K.’s threat placed K.J. in reasonable fear that the threat would be carried out. Although the trial court did not make a specific finding that the threat was a “true threat”, the trial court in its oral ruling explains why M.K.’s statement was a true threat given these circumstances and why it was reasonably foreseeable to M.K. that his statement would be interpreted as a serious threat. K.J. was unsure how to interpret M.K.’s ambiguous behavior, but she feared he was serious. In discussing the objective reasonableness of that fear, the trial court properly focused on the context of the statement and how a reasonable person would foresee the statement to be interpreted. M.K.’s threat was made at school in an atmosphere of fear and concern following several highly publicized school shootings.
The trial court also noted K.J.’s testimony about the existence of a school policy prohibiting students from mentioning guns at all:
“I would even say that that’s why the Respondent made this statement, because he knows or knew that that would provoke a reaction.”[12]
This context explains the reasonableness of K.J.’s fear, why it was foreseeable to M.K. that his statement would be treated as a serious threat, and the trial court’s conclusion that his statement was a “true threat”. M.K. focuses on the J.M. Court’s use of the phrase “actual intent”, but the gist of the Court’s statement in J.M. is that the threat must be a “true threat”, i.e., the statement must be made in a context such that a reasonable person would foresee that it would interpreted as a serious threat. As discussed above, the evidence supports the conclusion that the threat was a “true threat”. There is no requirement of proof of the perpetrator’s subjective intent to carry out the threat. The trial court did not misconstrue J.M. or err in interpreting the statute. M.K. further argues that, even assuming he threatened to bring a gun to school and shoot everyone, the evidence was insufficient to support a finding that he made a threat to kill because shooting would not necessarily result in death.
The trial court concluded that M.K.’s words, as reported by K.J., were “clear on their face as threats to kill.”[13] It is a reasonable inference to draw from M.K.’s statement that people would be killed in a shooting and that this was, in fact, a threat to kill. Following M.K.’s argument, he could only commit felony harassment by specifically using the words “shoot and kill” or “die.” No authority requires such a result. The trial court’s finding that M.K. threatened to kill is supported by the evidence.
CONSTITUTIONALITY OF THE HARRASSMENT STATUTE
M.K. also challenges the harassment statute as unconstitutionally overbroad. Relying on Williams, he concedes that the statute prohibits “true threats” and that as limited it is constitutional.[14] However, M.K. contends that because his statement was not a “true threat” the statute is unconstitutionally overbroad.
Our Supreme Court in Williams found that the provision of the statute prohibiting threats to cause bodily injury “clearly prohibits true threats.” Williams, 144 Wn.2d at 208.; State v. E.J.Y., No. 48674-8-I, slip op. at 9 (Wash.Ct.App. October 14, 2002).[15] Therefore, jokes, political rhetoric, and puffery are excluded. M.K.’s argument hinges on the assertion that his statement belongs in one of these excluded categories and was not a “true threat”. However, as noted above, the evidence supports the trial court’s conclusion that M.K. made a “true threat”.
We reject M.K.’s constitutional challenge and affirm his adjudication.
WE CONCUR: AGID, J., BAKER, J.
(2001).