Washington Appeals Court Rejects First Amendment Challenge to Stalking Conviction

The First Amendment protects the right to free speech. A defendant recently challenged a felony stalking conviction, arguing it was based solely on protected speech.

The defendant was retried after his conviction was reversed on appeal.

According to the appeals court’s opinion, an employee of the county corrections center testified at the trial.  The witness testified she had known the defendant since high school.  She testified he had engaged in inappropriate behavior, including saying “raunchy” things to her.  She said he behaved inappropriately toward all women.  She testified he made crude comments to her on social media.  When she blocked him, he would contact her through a new profile.

When she started working at the jail, one of her duties was responding to inmate emergency buttons.  She said the defendant used his button “excessively.” She told him he could only use the button for emergencies, but he kept misusing the button and was repeatedly written up for it.  He would make crude comments and express love for the witness.  She said the comments were initially annoying but became alarming as they increased and became more intense. She testified she saw him be violent with corrections officers and once grab an officer by the throat.

She obtained an anti-harassment order against the defendant in 2014, but the defendant’s behavior continued.  She said she became more and more afraid of him and ultimately moved out of the jail control room.

The defendant was sent to prison, but he sent a letter to the correction center in February of 2016. The witness was responsible for opening the jail’s mail.  The letter indicated the defendant would become “homicidal” if she was “with any other man.”  He subsequently sent another letter to the corrections center’s “classification clerk,” which was the witness’s title. The letter indicated the defendant loved her and wanted to reassure her that he was not a threat, but also suggested her co-workers would need an anti-protection order if they did not keep away from her. The witness was concerned because she knew the defendant would get out of prison.

When the defendant was sent back to the corrections center, he started sending communications to her daily through various means.  He called her cell phone twice from the jail. The witness did not know where he got her number and worried he would find her when he got out of jail.

The witness testified she was afraid the defendant would come to her home and “get her.” She was afraid he would overpower her if he found her alone.  She was also scared for her family because he had shown he could get information about her.

When interviewed, the defendant admitted to both “sluthin” on the witness for a long time and threatening to kill anyone who interfered.  He testified he suffered a traumatic brain injury in his teens.  He said he did not mean to cause the witness any fear, but admitted he would continue to contact her even if the judge ordered him not to do so.

On appeal, the defendant argued that his harassment conviction had been based solely on constitutionally protected speech. The court rejected his argument, noting that the stalking statute includes a mens rea element.

“Unlawful harassment” requires a knowing and willful course of conduct.  RCW 10.14.020(2).  A course of conduct requires a pattern of behavior over time that shows a continuity of purpose.  Course of conduct includes “communication, contact, or conduct, but expressly excludes constitutionally protected free speech.  RCW 10.14.020(1).

The defendant argued that only speech that falls within a recognized exception to the First Amendment can be “unlawful harassment.” The appeals court noted, however, that course of conduct can include conduct beyond just the content of the speech.  In a previous case, State v. Nguyen, the appeals court held that the defendant’s felony stalking conviction was based on “actions, not the words,” including repeated calls and texts and visits to the victim’s home.  The appeals court found the circumstances in this case similar to Nguyen, noting it was the defendant’s “unrepentant and incessant contact” that was his course of conduct. The content of his communications helped show his intent and the witness’s fear.

The state conceded that the trial court exceeded its authority by imposing an exceptional sentence without a supporting jury verdict, and remanded the case for the trial court to correct the sentence.  The appeals court otherwise rejected the defendant’s arguments and affirmed the stalking conviction.

As this case shows, a person who continues to contact someone who has obtained a civil protection order against him may be subject to serious criminal penalties. The skilled Washington criminal defense attorneys at Blair & Kim, PLLC, are also experienced in handling civil protection orders.  If you are facing charges related to stalking, harassment, or violation of a civil protection order, call us at (206) 622-6562 to set up a consultation.


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