Opinion
No. 28861-7-III.
Filed: May 5, 2011.
Appeal from a judgment of the Superior Court for Benton County, No. 09-1-01158-7, Carrie L. Runge, J., entered February 9, 2010.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J., and Korsmo, J.
Felony harassment requires a showing of both a true threat and reasonable fear on the part of the victim. Here, the defendant, while drunk and angry, threatened to kill the arresting officers and harm their families. We are satisfied based on our review of this record that the State made a sufficient showing that the threats were true threats and that those comments placed these officers in reasonable fear. We therefore affirm the conviction.
FACTS
Three Kennewick, Washington, police officers, including Drew Sneyd and Mike Bowe, responded to a call of a domestic disturbance involving Aaron Urbina on December 10, 2009, at 7:00 a.m. Mr. Urbina was under the influence of both alcohol and cocaine. They arrived and saw Mr. Urbina walk to a car parked in front of the house. They ordered Mr. Urbina to stop. He ignored the orders and said he was not going anywhere. Mr. Urbina then opened the driver's door and reached for something in the front seat. Officer Bowe drew his sidearm and the police again ordered Mr. Urbina out of the car. Mr. Urbina got out of the car.
He dropped to the ground and the officers handcuffed him. He swore at the officers and refused to cooperate as they led him to the patrol car. The police began to search him. Mr. Urbina looked at Officer Bowe, said, "You better watch your family," and motioned as if he was going to head butt him. I Report of Proceedings (RP) at 15. Officer Bowe struck Mr. Urbina. Mr. Urbina fell backwards and hit his head on the ground. The officers then placed Mr. Urbina in the patrol car.
Officer Sneyd transported Mr. Urbina to jail. En route, Mr. Urbina told Officer Sneyd that "he didn't care if [the officers] were on or off duty, he would come into Denny's and he would smoke any officer he sees," and "he would reload if he needed to." RP at 17. Mr. Urbina also told Officer Sneyd that he would kill him.
The State charged Mr. Urbina with one count of felony harassment.
The case proceeded to trial before a jury. Officer Sneyd testified that he was concerned about Mr. Urbina's threats against him, his fellow officers, and Officer Bowe's family. He believed Mr. Urbina might carry out his threats in the future because he was brazen enough to make them to the officers in the first place. Officer Bowe also testified about his concern over Mr. Urbina's threat to his family; he believed that Mr. Urbina would carry out those threats. Mr. Urbina admitted that he told Officer Bowe to watch his family. He denied that he said he would smoke any officer he saw at Denny's. He claimed that Officer Sneyd provoked him with offensive statements on the way to jail and that he cussed at the officer and said officers get smoked because of the way they treat arrested people like him. The jury found Mr. Urbina guilty.
DISCUSSION
Mr. Urbina contends that, when the proper standard is applied, his comments to the officers do not rise to the level of true threats. He argues that the State, as a matter of law, failed to show that a reasonable person would interpret his statements as a serious expression of intent to hurt or kill another person when those statements are viewed in context. He argues that we should conclude, as a matter of law, that a reasonable person would not have taken his remarks seriously because he was drunk and had suffered head trauma.
Felony harassment is the knowing threat to kill another person and words or conduct that places the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020(1), (2). The essential elements, then, are (1) knowing intent, (2) a true threat, and (3) reasonable fear. State v. J.M., 144 Wn.2d 472, 477, 28 P.3d 720 (2001).
Standard of Review
The standard of review here is a bit more cumbersome than our usual standard of review for sufficiency of the evidence because the applicable statute, RCW 9A.46.020, criminalizes speech and therefore implicates the First Amendment to the United States Constitution. State v. Kilburn, 151 Wn.2d 36, 41-43, 84 P.3d 1215 (2004). "The First Amendment prohibits the State from criminalizing communications that bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole." State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010). In a standard sufficiency of the evidence analysis, we would simply decide whether the State met its burden of production. E.g., State v. Hanson, 126 Wn. App. 276, 279, 108 P.3d 177 (2005). That is, we would decide whether the State produced sufficient evidence that, if believed, would support the elements of the crime. But here we are apparently called to evaluate the quality of the State's evidence, not just whether it supports the essential elements of the crime charged. Kilburn, 151 Wn.2d at 48-52.
So we must independently examine the record and review the constitutionally critical facts to determine whether Mr. Urbina communicated a true threat. Id. at 52. True Threat
A true threat is a statement made in a context where a reasonable person in Mr. Urbina's position would anticipate that the officers would understand his statement as a serious expression of intent to hurt or kill. Schaler, 169 Wn.2d at 283. This is an objective standard. Mr. Urbina did not have to actually intend to carry out a threat for it to amount to a true threat. Id.
The record here paints the picture of two police officers using force to arrest an uncooperative, belligerent, and highly intoxicated young man. The arrest was confrontational. Mr. Urbina was injured in the process. And he remained belligerent throughout the trip to jail. He admitted that, during the arrest, he told Officer Bowe, "[Y]ou better watch your family," because he felt threatened when Officer Bowe yelled at his girl friend for screaming after the police hit Mr. Urbina in the face. RP at 64. He denied making any threats on the way to jail. But he agreed that Officer Sneyd made him mad and that he cussed at the officer. Evidence shows that Mr. Urbina told Officer Sneyd he would kill him. And "he didn't care if [the officers] were on or off duty, he would come into Denny's and he would smoke any officer he sees," and "he would reload if he needed to." RP at 17.
Certainly, Mr. Urbina showed he was intoxicated and injured. But this record also fairly suggests that he was sufficiently in control of his faculties to respond to the officers' comments and perceived threats of harm with his own threats of harm and death. We conclude, then, that a reasonable person in Mr. Urbina's position, under these circumstances, would have expected the officers to take his statements seriously, not as jokes, idle talk, or exaggerations. There is sufficient evidence in this record for the jury to conclude that Mr. Urbina made true threats to these officers. Reasonable Fear
Mr. Urbina next contends that there is also an inadequate showing that these officers were afraid or that any fear was reasonable in light of his comments.
We, of course, consider the evidence in a light most favorable to the State and ask whether the jury could have found the intent element or the reasonable fear element beyond a reasonable doubt. State v. Kiehl, 128 Wn. App. 88, 94, 113 P.3d 528 (2005). "A claim of insufficiency admits the truth of the State's evidence." Id.
To knowingly threaten another, Mr. Urbina had to subjectively know that he was communicating a threat and that the communication was a threat to cause bodily injury to the person threatened or to another person. Kilburn, 151 Wn.2d at 48. The record supports the jury's finding that he knew what he was communicating. Mr. Urbina admitted that he told Officer Bowe to watch his family. Under the circumstances, it was a threat to at least cause bodily injury. And, while Mr. Urbina denied he explicitly threatened to kill officers at Denny's, the jury could infer that he knew he was communicating such a threat by telling Officer Sneyd, "[T]hat's why fools like you get smoked, because you hurt people like me." RP at 67. Regardless, the jury apparently believed Officer Sneyd's testimony that Mr. Urbina threatened to kill him and any officer he sees at Denny's, and it could infer the necessary intent from that threat.
The State also had to show reasonable fear on the part of the officers. That is, it had to show that Mr. Urbina's words caused Officer Sneyd or Officer Bowe to subjectively and objectively fear that the threat would be carried out. RCW 9A.46.020(1)(b); State v. E.J.Y., 113 Wn. App. 940, 952-53, 55 P.3d 673 (2002).
Here, each officer testified that he feared Mr. Urbina would carry out his threat or threats, which is ample evidence of subjective fear. The next question, then, is whether the officers' fear was reasonable. State v. Alvarez, 74 Wn. App. 250, 260-61, 872 P.2d 1123 (1994), aff'd, 128 Wn.2d 1, 904 P.2d 754 (1995). Again, we consider the context. Id. at 261. And, again, Mr. Urbina was belligerent and unpredictable as these officers arrested him and took him to jail. It is true that, when he made the threats, he did not have the means to carry them out because he was restrained. But what he threatened was future harm or death. See RCW 9A.46.020(1)(a)(i). He believed the officers mistreated him, and he was angry that he had been arrested. It was reasonable, then, for the officers to fear that Mr. Urbina would vindicate these perceived wrongs by carrying out his threats to kill them and harm Officer Bowe's family sometime in the future after he was released from jail.
We affirm the conviction.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and KORSMO, J., concur.