Opinion
No. 60514-3-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-02680-7, Catherine D. Shaffer, J., entered August 7, 2007.
Affirmed in part and reversed in part by unpublished per curiam opinion.
Nichol Kirk was convicted of malicious harassment and assault in the second degree. Kirk does not challenge her assault conviction, but argues that her conviction for malicious harassment must be reversed because the jury was instructed on alternative means, one of which was not supported by sufficient evidence. We agree that there is insufficient evidence of a threat and that this conviction must be reversed because the verdict form does not show which of the alternative means the jury used to convict Kirk.
Standard of Review
On a challenge to the sufficiency of the evidence, we must decide whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt, all the essential elements of the crime charged. We view all evidence and inferences therefrom in the light most favorable to the State.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 201.
Facts
On February 20, 2007, Kirk and her coworker, Brian Lappin, went out for drinks after work in celebration of Mardi Gras. They visited several bars and became very intoxicated. At about 10:00 p.m., they hailed a taxi and gave the driver directions to Saleh's Deli. During the taxi ride, they were disrespectful to the driver and spoke to him in Spanish, a language he does not understand. When they arrived at Saleh's Deli, they instructed the driver to wait for them, which he did.
When Kirk and Lappin entered the store, the owner, Yehya "Steven" Saleh, was there. As they walked in, Kirk and Lappin were loud and belligerent, and saying racial slurs that shocked Saleh. Their behavior concerned him, so he pretended to stock shelves near the beer cooler where they were standing so they would be aware of his presence. Saleh's 17-year old nephew, Fares Kassim, was also there that night. When Kirk and Lappin arrived, Kassim was sweeping the floor. Kirk selected a pack of beer and proceeded to the cash register with Lappin to purchase the beer and some cigarettes. When Kirk brought the beer up to the cash register, Kassim went to the cash register to help her. Saleh walked over to stand next to Kassim. Kirk continued saying racial slurs, such as "un-American," "terrorist," and "[n]o one wants you here."
Kirk presented Kassim her Safeway club card to pay for the items. When Kassim told her the store could not accept that card for payment, she became angry, telling Kassim, "[Y]ou're not American." Saleh took over the transaction, and Kassim resumed sweeping.
Kirk continued to use abusive language and failed to present payment, so Saleh asked her to leave. When she refused to leave, Saleh asked Lappin to take her out of the store. Lappin responded, "[N]o, you are going to serve her or I'm going to kick your ass. . . . break your neck." Lappin mumbled under his breath, "[Y]ou fucking Arabs." He reached over the counter to shake Saleh's hand, but Saleh refused to shake it, fearing Lappin's motives. Lappin walked toward the end of the counter as if to come around it, then walked back to where he had been standing. He took off his jacket, threw it to the floor, and suddenly lunged over the counter, grabbing Saleh's throat. Saleh broke away and armed himself with a length of metal pipe used to move freezers. Lappin attacked again, and Saleh hit him on the arm and shoulder with the pipe, causing Lappin to temporarily fall to the ground. Lappin continued to attack repeatedly, despite Saleh's efforts to defend himself.
As Lappin attacked Saleh, Kirk laughed. After Saleh used the pipe to defend himself from Lappin, Kirk scolded him, repeatedly saying, "You do not hit Americans. You are a fucking Arabian." She then attacked Saleh, scratching, hitting, and slapping him. He pushed her down several times, but did not hit her with the pipe. She kicked him with high-heeled shoes, puncturing his leg, and bit the web of his hand, causing it to bleed heavily and leaving a scar.
Meanwhile, Saleh's friend, Abdelilah "Dale" Tateni, was in the office above the store and heard the commotion. He came downstairs and saw Saleh struggling to push Kirk and Lappin away, so he called 911. He heard Kirk saying things like "you Arabs, you are not American, go back to your country."
Police arrested Kirk and Lappin at the scene. The taxi driver, who was still waiting in the parking lot, approached the police and told them that Kirk had not paid her cab fare. When she saw him, Kirk twice told the taxi driver, "You are not an American; go back to where you came from." She did not pay her fare.
Discussion
Kirk was convicted under RCW 9A.36.080, which provides:
(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:
(a) Causes physical injury to the victim or another person;
(b) Causes physical damage to or destruction of the property of the victim or another person; or
(c) Threatens a specific person . . . and places that person . . . in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a "reasonable person" is a reasonable person who is a member of the victim's race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.
The term "threat" is defined in the criminal code. The definition of "threat" that is relevant here is "to communicate, directly or indirectly, the intent . . . [t]o cause bodily injury in the future to the person threatened or to any other person. . . ."
RCW 9A.04.110(27)(a) (emphasis added).
The "to-convict" instruction for malicious harassment in this case stated:
To convict the defendant of the crime of malicious harassment, as charged in count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
1) That on or about February 20, 2007, the defendant
a) caused physical injury to Stephen Saleh; or
b) (1) threatened Stephen Saleh and (2) placed Stephen Saleh in reasonable fear of harm to his person; and
2) That the defendant acted maliciously and intentionally; and
3) That the defendant acted because of her perception of the race, color, religion, ancestry, or national origin of Stephen Saleh; and
4) That the acts occurred in the State of Washington.
The verdict form did not contain a special interrogatory asking the jury to specify whether it found Kirk guilty under the "physical injury" prong or the "threat" prong of malicious harassment. In closing arguments, the State argued that the jury could convict under either prong.
During argument on Kirk's motion to dismiss at the close of the State's case, the trial court had expressed concern that the State had not presented evidence that Kirk or Lappin had made a threat. The court asked, "What is it that Ms. Kirk did directly or as an accomplice to establish that she made a threat or that her companion made a threat and she was an accomplice?" The State responded,
Well, she makes these menacing statements and then she witnesses her friend attack the victim. She continues to make those statements and she in fact participates in the attack from that point. I believe that all of those actions provide a prima facie case on those elements, Your Honor.
After the arguments, the trial court was still not convinced that there was evidence of a threat and said that it might exclude the threat prong from the jury instructions. However, Kirk did not object to the instruction and the matter was dropped.
Under the malicious harassment statute, "[w]ords alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat." Thus, "menacing statements" are not necessarily threats. Here, although Kirk repeatedly made offensive racial slurs, no evidence was presented that Kirk communicated an intent to cause bodily injury to Saleh in the future.
There is also no evidence that Lappin made a threat to which Kirk was an accomplice. The State argues that Lappin said to Saleh, "I ought to kick your ass," in a manner that a trier of fact could conclude conveyed a threat to injure him in the future. However, although the State quotes Lappin as having said, "I ought to kick your ass," this language is not in the record. Two surveillance camera videos were admitted into evidence. One of the videos includes an audio recording, but it is impossible to discern what Lappin said in the moments before he attacked Saleh. The only evidence in the record of Lappin's alleged threat is Saleh's testimony that Lappin told him, "[Y]ou are going to serve her or I'm going to kick your ass." Because this was a communication of intent to cause bodily injury immediately rather than in the future, it was not a "threat" for purposes of RCW 9A.36.080(1)(c).
The State argues that Saleh's testimony is sufficient evidence of a future threat under State v. Williams:
144 Wn.2d 197, 26 P.3d 890 (2001).
As Williams was leaving the store he turned to Cannizzaro and said, "Don't make me strap your ass." Considering this in the light most favorable to the state, a rational trier of fact could possibly conclude this statement communicated Williams' willingness to return and cause bodily harm to Cannizzaro in the future should Cannizzaro take action against him. This was enough to send the case to the jury.[]
Williams, 144 Wn.2d at 212.
Justice Ireland, in her dissenting opinion, concurred with the majority's result regarding sufficiency of the evidence, elaborating that "the threat made by Williams . . . viewed in light of the circumstances and other statements made was a threat of bodily injury in the future." Here, however, the circumstances and statements do not support a threat of future injury. Unlike Williams, Lappin was not leaving the store when he said, "I'm going to kick your ass." Rather, he was communicating an intent to cause bodily injury to Saleh immediately if he did not sell Kirk the beer. No trier of fact could reasonably infer, from Saleh's testimony, that Lappin intended to return at a future time and cause harm to Saleh.
Williams, 144 Wn.2d at 221 (Ireland, J., dissenting).
This case is more like City of Seattle v. Allen than Williams. In Allen, as here, "the prosecution did not produce any evidence that Allen threatened to cause . . . bodily injury at a time or place different from the time or place of the incident." We said that Allen was
80 Wn. App. 824, 911 P.2d 1354 (1996).
Allen, 80 Wn. App. at 832.
not a case in which there is some prior relationship between the defendant and the victim from which it would be reasonable for the fact-finder to conclude that the defendant could find and harm the victim at some later time. Under the specific facts of this case, it is clear that Allen was threatening to injure the victims then and there if they did not do what he wanted. There was no evidence that he threatened to harm them after the incident was over, evidence required to prove the crime of harassment under the section of the ordinance Allen was convicted of violating.[]
Allen, 80 Wn. App. at 832 (emphasis added).
The State argues that this case differs from Allen because Lappin knew where Saleh worked and could have returned to cause him bodily injury. While it is true that the evidence shows Lappin knew where Saleh worked, there still is no evidence that he communicated an intent to harm Saleh in the future. As in Allen, the evidence shows that Lappin threatened to harm Saleh "then and there" if Saleh did not do what he wanted.
When the charged crime can be committed by more than one means, substantial evidence of each of the relied-on alternative means must be presented in order to protect the defendant's right to jury unanimity. Alternatively, the court can provide a verdict form with special interrogatories indicating whether the jury unanimously agreed on each alternative means. Here, the verdict form did not contain special interrogatories regarding the alternative means. Therefore, some of the jurors may have relied on the "threat" prong of malicious harassment to convict Kirk in violation of her right to a unanimous guilty verdict.
State v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007).
Kirk also argues that she was entitled to a unanimity instruction under State v. Petrich. Petrich requires that, when multiple acts are alleged as evidence to support a single charge, the court instruct the jury that they must unanimously agree that the State has proved a single act beyond a reasonable doubt. Here, multiple acts were not alleged. Kirk and Lappin engaged in a single, continuing course of conduct at Saleh's Deli. Therefore, a Petrich instruction was not necessary.
101 Wn.2d 566, 683 P.2d 173 (1984).
Petrich, 101 Wn.2d at 572.
See State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989).
We reverse Kirk's conviction for count I, malicious harassment, and remand for a new trial on the "physical injury" prong, RCW 9A.36.080(1)(a), only.
Judgment reversed in part.