Opinion
No. 60346-9-I.
September 29, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08638-1, Dean Scott Lum, J., entered July 19, 2007.
UNPUBLISHED OPINION
Latoya Lewis challenges her convictions for telephone harassment and felony telephone harassment. She contends that the "to convict" jury instructions omitted two essential elements of her crimes — that her threat to kill constituted a "true threat" and that she had the specific intent to harass when she initiated the telephone calls. We conclude that the jury was properly instructed that the threat must be a true threat and that this concept is not an "element" of the crime, so it need not appear in the "to convict" instruction. We agree with Lewis that the intent to harass must form at the time the telephone call is initiated, but we hold that the jury was properly instructed on this element. Lewis also asserts that the evidence to support her convictions is insufficient to show that she had the intent to harass at the time she initiated the telephone calls. We reject this argument and affirm.
FACTS
Bridgette Richardson met Latoya Lewis in June 2005. Richardson's husband told her that he had previously been in a relationship with Lewis. Richardson testified that she and her husband began receiving harassing calls from Lewis. She testified that on the first call, Lewis called her a "fat bitch" and threatened to "kick [her] ass." Report of Proceedings (RP) (April 2, 2007) at 8. She stated that she knew it was Lewis because she recognized Lewis's voice.
Richardson petitioned for an order of protection on June 23, 2005. According to Richardson, two days later Lewis began chasing her car on Interstate-5. Richardson testified that she parked her car at a friend's apartment and while there, she saw Lewis throw a rock through the car's window. She called the police, but because they could not locate any protection orders, she applied for another order of protection on July 5, 2005.
In September 2005, Richardson again contacted the police. She testified that Lewis had called her and threatened to kill her. She stated that Lewis had also been following her around that day. When asked how she recognized Lewis, Richardson testified, "I know her car, and she had kept calling me on the phone talking about killing me, and talking about what she was going to do to me and how she does things in Seattle." Id. at 16-17. According to Richardson, Lewis called her while she was at the police station reporting a violation of the protection order. King County Deputy Sheriff James Schrimpsher testified that when he was talking to Richardson at the station, her cell phone rang and when she answered it, he heard a female voice screaming and threatening to kill her.
Richardson testified that sometime between September and October, Lewis called her again. Richardson stated that her 12-year-old daughter answered the phone before she could get to it. Richardson testified that she could hear Lewis screaming obscenities before she grabbed the phone. Richardson alleged that once she got on the phone, Lewis again threatened to kill her. Richardson testified that she felt threatened and fearful because Lewis "had already thrown a rock through the window and I thought maybe she might shoot up my house or something crazy like that." Id. at 19.
King County Deputy Sheriff Mark Rockwood testified that after Richardson reported another threatening call, he left a message with Lewis that she would be charged with violating a protection order. According to Richardson, Lewis later called her and said, "I will see you in court, bitch." Id. at 21. At trial, Lewis denied ever calling or threatening Richardson or throwing a rock through her car window. The jury convicted Lewis of one count of felony telephone harassment, four counts of telephone harassment, and four counts of violation of an anti-harassment order. Lewis now appeals the judgment and sentence.
Lewis challenges only her convictions for telephone harassment and felony telephone harassment.
ANALYSIS
Lewis contends that the trial court's "to convict" instructions to the jury omitted essential elements of the crimes of telephone harassment and felony telephone harassment. Omission of an element from the "to convict" instruction relieves the State of its burden of proving every essential element of a crime beyond a reasonable doubt. State v. Smith, 131 Wn.2d 258, 265, 930 P.2d 917 (1997). This poses an issue of sufficient constitutional magnitude to warrant review when raised for the first time on appeal. RAP 2.5(a)(3); State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005). On appeal, we review challenges to the adequacy of a challenged "to convict" jury instructions de novo. Id. at 7.
Lewis challenges the felony telephone harassment instruction on the theory that it omitted a "true threat" element. Telephone harassment is elevated to a felony when the harassment includes a threat to kill. RCW 9.61.230(2)(b). But to avoid an unconstitutional infringement on speech, this provision applies only to "true threats." State v. Tellez, 141 Wn. App. 479, 482, 170 P.3d 75 (2007). 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 person." Id. (quoting State v. Kilburn, 151, Wn.2d 36, 43, 84 P.3d 1215 (2004)). Lewis contends the requirement that the threat to kill be a "true threat" is an element of the crime. But we rejected this argument in Tellez. In Tellez, we held that the true threat concept itself is not an element of felony telephone harassment, so it does not need to be included in the "to convict" instruction. Tellez, 141 Wn. App. at 484. We decline to revisit this holding. So long as the jury is instructed that the threat must be a true threat, the defendant's rights are protected. Id. Here, the jury was instructed, "To be a threat, a statement must occur in a context or under such circumstances where a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to carry out the threat." Clerk's Papers (CP) at 46. This definitional instruction was sufficient to ensure that the jury would convict Lewis only if it deemed her threat to kill Richardson a "true threat."
Lewis also challenges the "to convict" instructions for the telephone harassment and felony telephone harassment charges because they did not state that her telephone calls had to be "initiated" with the intent to harass Richardson. Lewis relies on State v. Lilyblad, 163 Wn.2d 1, 4, 177 P.3d 686 (2008), in which the court interpreted the telephone harassment statute to require "that the defendant form the specific intent to harass at the time the defendant initiates the call to the victim." At issue in Lilyblad was the meaning of the phrase, "Every person who, with intent to harass . . . any other person, shall make a telephone call to such other person. . . ." RCW 9.61.230(1). The court rejected the State's contention that the intent to harass could form at any point during the call. Lilyblad, 163 Wn.2d at 7. Instead, the court concluded that a call is "made" when it is "initiated," so the intent to harass must form when the defendant decides to use the telephone. Id. at 8-13. Because the trial court had failed to properly instruct the jury about this element of the crime, the Lilyblad court reversed the defendant's conviction. Id. at 13. The "to convict" jury instruction in Lilyblad required the jury to find:
(1) That . . . the defendant made a telephone call to [the victim];
(2) That the defendant threatened to kill [the victim];
(3) That the defendant acted with intent to harass or intimidate [the victim]; and
(4) The acts occurred in the State of Washington.
Id. at 5.
Here, Lewis argues that the trial court's jury instructions were similar to the deficient instructions in Lilyblad. She points out that the "to convict" instructions did not use the word "initiated" and argues that their failure to do so permitted the jury to believe that the requisite intent could be formed at any time during the call. But the instructions used here were significantly different from those used in Lilyblad. The "to convict" instruction in Lilyblad required the jury to find that (1) "the defendant made a telephone call" and (2) "the defendant acted with intent to harass." Id. at 5. By listing these requirements in separate subsections, the instructions failed to place any temporal requirement on when, during the call, the intent needed to exist. In contrast, the "to convict" instructions here required the jury to find that (1) "the defendant placed a telephone call" and (2) that "the telephone call was made with the intent to harass." CP at 49, 52, 55, 57.
Although the word "initiated" was not used, the instructions clearly set forth the statutory requirement that the defendant "make a telephone call" with the intent to harass. RCW 9.61.230(1). In Lilyblad, the court concluded that words "make a telephone call" refer to the time when the call is "initiated" and that the call is "initiated" when it is "made." Lilyblad, 163 Wn.2d at 8-13. Here, we do not view the trial court's use of the word "made" rather than "initiated" as a departure from Lilyblad's mandate because the court there concluded that the terms were equivalent. The trial court's "to convict" instruction here did not omit the element regarding when Lewis had to form the intent to harass Richardson.
We also note that another instruction in Lilyblad erroneously instructed the jury that the phrase "making a telephone call" referred to the entire call rather than the point at which the call began. Lilyblad, 163 Wn.2d at 5. The jury was not similarly misinformed in this case.
In addition to challenging the jury instructions, Lewis also asserts that there was insufficient evidence to support the telephone harassment and felony telephone harassment convictions. In reviewing a challenge to the sufficiency of the evidence, we determine, considering the evidence in the light most favorable to the prosecution, whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). We assume the truth of the prosecution's evidence and all inferences that the trier of fact could reasonably draw from it. State v. Wilson, 71 Wn. App. 880, 891, 863 P.2d 116 (1993), rev'd in part on other grounds, 125 Wn.2d 212, 883 P.2d 320 (1994).
Lewis argues that "[t]he State never produced any evidence that Ms. Lewis initiated the calls with the specific intent to harass. . . ." Br. of Appellant, at 10. But the State's witnesses testified that Lewis displayed a pattern of repeatedly calling Lewis to harass and threaten her. Richardson testified that on one occasion, her daughter picked up the phone before Richardson could grab it from her and that Lewis was screaming obscenities. Deputy Sheriff Schrimpsher testified that when Richardson was at the police station with him, she received a phone call and when she answered, he heard a female voice screaming and threatening her. A jury could reasonably infer from this evidence that when Lewis initiated her telephone calls to Richardson, she had the intent to harass her. Accordingly, the evidence is sufficient to sustain the challenged convictions.
For the foregoing reasons, we affirm.