To convict a defendant of Washington harassment, the state must show that the defendant knowingly threatened to cause bodily injury, physically damage someone else’s property, or physically confine or restrain another person, without the authority of law, and placed the threatened person in reasonable fear that they would carry out the threat. Harassment is a class C felony if the threat was to kill the threatened person or someone else. RCW 9A.46.020. Since it criminalizes a pure form of speech, the harassment statute implicates the First Amendment. Washington courts therefore interpret it as criminalizing only “true threats.”
A defendant recently challenged his felony harassment conviction, arguing the state had not produced evidence of a true threat. A man was renting a room in defendant’s home from April to October of 2020. According to the appeals court’s opinion, the defendant yelled at the renter and called him names during a conflict that summer. He also would throw things in his bedroom. The renter heard the defendant having a “tantrum” in the garage on August 23. The defendant told the renter his boxes should be taken out of the garage. The renter said he had misunderstood a text message about when he should remove the boxes. The defendant pointed at him and said he had a gun and would shoot the renter in the head. After the defendant walked away, the renter went back to his own room and called the police.
The defendant was charged and ultimately convicted of one count of felony harassment with a domestic violence enhancement.
The defendant appealed, arguing there was no evidence of a true threat and therefore the evidence was constitutionally insufficient to support his conviction.
The Washington Supreme Court has adopted a definition of “true threat” that requires a reasonable person to foresee the statement being interpreted as “a serious expression of intention to inflict bodily harm upon or to take the life of [another individual.” State v. Knowles. The appeals court noted that definition is not itself an essential element of felony harassment, but instead limits the scope of a threat.
The renter testified the defendant told him he had a 9-millimeter and would shoot him in the head. He testified the defendant looked “extremely angry.” He also testified that he believed the defendant was getting his gun to shoot him when he left the garage. A teenage neighbor who heard the incident said the defendant sounded serious and had called her mother regarding what to do.
The appeals court concluded a rational finder of fact could determine a reasonable speaker would foresee the statements being interpreted as a serious expression of intent to kill the renter or inflict bodily harm upon him.
The defendant also argued that the state had failed to prove the statements were a true threat instead of a “transient tantrum” because the trial court did not make a factual finding the statements were a true threat.
The appeals court noted that the determination of whether the evidence was constitutionally sufficient to support the conviction is not based on the factual findings of the finder of fact. Instead, the question is whether any rational fact finder could have determined the statement constituted a true threat. The appeals court also noted the trial court had made an implicit finding of a true threat when it found the defendant “knowingly threatened to kill [the renter].”
The appeals court again pointed out that the requirement the statement be a “true threat” is not an essential element of the statute but is part of the definition of “threat.” It is not required to be in the to-convict instruction of a jury trial if “threat” is defined as “true threat.”
The defendant in this case was convicted in a bench trial. In a bench trial, the court must enter findings of fact and conclusions of law addressing each element of the crime. To convict the defendant, the findings must state every element was proved. The appeals court found the trial court necessarily found the statements constituted a true threat based on the definition of “threat.”
The defendant also argued the First Amendment required proof of a higher mental state than the reasonable person standard to criminalize speech. The appeals court noted that the Supreme Court had previously rejected this argument.
The appeals court affirmed the defendant’s convictions.
Whether a statement constitutes a “true threat” will depend on both the words uttered and the circumstances surrounding the statement. A knowledgeable Washington criminal defense attorney can advise you based on your particular circumstances. If you are facing harassment charges, schedule an appointment with Blair & Kim, PLLC, at (206) 622-6562.