DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 49084-2-I
Title of Case: State of Washington, Respondent
v.
Martin E. Kilburn, Appellant
File Date: 10/21/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 018014384
Judgment or order under review
Date filed: 08/22/2001
Judge signing: Hon. Nicole Mac Innes
JUDGES
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Concurring: Susan R. Agid
William W. Baker
COUNSEL OF RECORD
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Counsel for Appellant(s)
Washington Appellate Project
Cobb Building
1305 4th Avenue, Ste 802
Seattle, WA 98101
Sharon J. Blackford
Washington Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101
Gregory C. Link
Washington Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101
Counsel for Respondent(s)
Prosecuting Atty King County
King County Prosecutor/Appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104
Randi J. Austell
King Co Pros Attorney
516 3rd Ave 5th Floor
Seattle, WA 98104
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 49084-2-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
M. K., {DOB 3/28/87}, )
)
) FILED:
Appellant. )
SCHINDLER, J. -- M.K. was adjudicated guilty in juvenile court of
felony harassment. M.K. told K.J., a classmate, he was going to bring a
gun to school and shoot everyone. M.K. admitted he said something about a
gun, but claimed he was only joking. M.K.'s principal argument on appeal
is that the evidence and findings are insufficient to support the trial
court's conclusion that his statement amounted to a "true threat". M.K.
also challenges the felony harassment statute as unconstitutionally
overbroad. The evidence supports the trial court's conclusion that the
threat was a "true threat". Given the circumstances in which the threat
was made, it was reasonable to conclude that M.K.'s threat would be
interpreted by his classmate as a serious threat to kill. Because the
felony harassment statute prohibits only "true threats" which are
constitutionally unprotected speech, the statute is not unconstitutionally
overbroad. We affirm.
The state charged M.K. with felony harassment based on an incident
that occurred at Mount Baker Middle School in Auburn, Washington on March
21, 2001. At trial, the State presented the testimony of K.J. and M.K.'s
statements at the time of his arrest. M.K. did not testify.
K.J. testified that at the end of her last class, M.K., who was sitting
next to her, said: "I'm going to bring a gun to school tomorrow and shoot
everyone and start with you."1 Then he said, "OK, maybe not you first."2
K.J. said M.K. looked directly at her when he said he was going to
bring a gun to school and shoot everyone starting with her. She said she
could not tell if M.K. was serious when he made the statement because he
behaved "kind of like he was joking".3 K.J. was taken aback, said "okay",
and turned away.4 But M.K.'s comment scared her and immediately after
class she told a friend about it. She continued to think about M.K.'s
remark for the rest of the afternoon and early evening. She was scared
that M.K. was serious and told her parents. Together, they called the
police to report M. K.'s threat. M.K. was arrested. M.K. admitted he had
said "{t}here's nothing an AK-47 wouldn't solve."5 He said this comment
was only a joke.
The trial court found K.J.'s testimony credible and also found that she
reasonably feared M.K. would carry out his threat. The trial court
adjudicated M.K. guilty and entered written findings of fact and
conclusions of law. The court specifically incorporated its oral ruling as
a part of the written findings and conclusions. At the disposition
hearing, the court imposed no sanction of confinement, community
supervision, or community service.6
SUFFICIENCY OF THE EVIDENCE
RCW 9A.46.020(1) requires the State to prove beyond a reasonable doubt that
M.K. "knowingly threatened" K.J. and that his "words or conduct placed"
K.J. "in reasonable fear that the threat will be carried out. . . ." RCW
9A.46.020(1).7
M.K. contends there was insufficient evidence to support his adjudication
under this statute because the evidence did not demonstrate that he made a
"true threat" rather the evidence only supported the conclusion that he was
joking.
In a juvenile proceeding, as in an adult case, the evidence is sufficient
to support an adjudication of guilt if any rational trier of fact, viewing
the evidence in the light most favorable to the State, could find all the
essential elements of the crime charged beyond a reasonable doubt. State
v. Avila, 102 Wn. App. 882, 895-96, 10 P.3d 486 (2000), rev. denied, 143
Wn.2d 1009 (2001). A claim of insufficiency "admits the truth of the
State's evidence and all inferences that reasonably can be drawn
therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The reviewing court must defer to the trier of fact on issues of
conflicting testimony, witness credibility, and the persuasiveness of the
evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
RCW 9A.46.020(1) prohibits only "true threats". "True threat" is a term
that has developed in First Amendment jurisprudence to describe a type of
threat that is constitutionally unprotected speech. Our Supreme Court has
defined "true threat" as follows:
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 individual}.'
State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001) (quoting State
v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990)). A "true threat" is a
"`serious one, not uttered in jest, idle talk, or political argument.'"
State v. J.M., 144 Wn.2d 472, 478, 28 P.3d 720 (2001) (quoting United
States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983)).
In Williams, the Court concluded that the portion of the statute under
which M.K. was adjudicated guilty -- "A person is guilty of harassment if:
... the person knowingly threatens: ... {t}o cause bodily injury
immediately or in the future to the person threatened or to any other
person"-- is a constitutional prohibition of "true threats". Williams, 144
Wn.2d at 208 (quoting RCW 9A.46.020(1)(a)(i)).8
In order to have been adjudicated guilty, M.K. must have knowingly made a
"true threat" that placed K.J. in reasonable fear the threat would be
carried out.
M.K. claims that the evidence does not demonstrate that he knowingly made a
"true threat" because the State did not prove that he actually intended to
carry out his threat. He focuses on the trial court's conclusion that his
intent to commit the threatened act is irrelevant.9 He also emphasizes a
comment made by the court in its oral decision that there was "no reason to
believe" M.K. actually intended to bring a gun to school and shoot people.10
In concluding that M.K.'s subjective intent was irrelevant and that his
intent could be proved by the words that were communicated, the trial court
relied on the Washington Supreme Court's recent decision in J.M.
J.M. is factually similar to this case. J.M. was adjudicated guilty of
felony harassment when, after the Columbine school shooting, he said to a
couple of fellow students that he wanted "to do a shooting at Denny like
there was in Colorado." J.M., 144 Wn.2d at 474-75. He then said he would
target specific staff members. Although one of the students testified that
he did not take it seriously at first, he later thought "there was some
possibility it might happen". J.M., 144 Wn.2d at 475. The threat made by
J.M. was a "true threat", even though the students who heard the threats
were unsure of how to interpret the threat and there was no proof that the
student actually intended to carry out a Columbine-like shooting.
J.M. challenged the adjudication, arguing he did not "knowingly"
communicate a threat and that the statute required the State to prove that
the person making the threat knows or should know that the threat will be
communicated to the person threatened. The Court concluded that
"knowingly" modifies threaten, and therefore, the defendant "must
subjectively know that he or she is communicating a threat, and must know
that the communication he or she imparts directly or indirectly is a threat
of intent to cause bodily injury to the person threatened or to another
person." J.M., 144 Wn.2d at 481.
The Court went on to discuss the content of the threat:
As to the nature of the threat, whether or not the speaker actually intends
to carry out the threat is not relevant. However, the communication must be
of the intent to cause bodily injury. Thus, the defendant must be aware
that the threat is of such an intent. It must, therefore, be a real or
serious threat. Idle talk, joking, or puffery does not constitute a knowing
communication of an actual intent to cause bodily injury.
J.M., 144 Wn.2d at 482-83.
Based on J.M., the trial court found M.K. "knew that he communicated a
threat", and "knew that the communication he imparted was a threat of
intent to cause bodily injury."11 The trial court also found that M.K.'s
threat placed K.J. in reasonable fear that the threat would be carried out.
Although the trial court did not make a specific finding that the threat
was a "true threat", the trial court in its oral ruling explains why M.K.'s
statement was a true threat given these circumstances and why it was
reasonably foreseeable to M.K. that his statement would be interpreted as a
serious threat. K.J. was unsure how to interpret M.K.'s ambiguous
behavior, but she feared he was serious. In discussing the objective
reasonableness of that fear, the trial court properly focused on the
context of the statement and how a reasonable person would foresee the
statement to be interpreted. M.K.'s threat was made at school in an
atmosphere of fear and concern following several highly publicized school
shootings. The trial court also noted K.J.'s testimony about the
existence of a school policy prohibiting students from mentioning guns at
all: "I would even say that that's why the Respondent made this statement,
because he knows or knew that that would provoke a reaction."12 This
context explains the reasonableness of K.J.'s fear, why it was foreseeable
to M.K. that his statement would be treated as a serious threat, and the
trial court's conclusion that his statement was a "true threat".
M.K. focuses on the J.M. Court's use of the phrase "actual intent", but the
gist of the Court's statement in J.M. is that the threat must be a "true
threat", i.e., the statement must be made in a context such that a
reasonable person would foresee that it would interpreted as a serious
threat. As discussed above, the evidence supports the conclusion that the
threat was a "true threat". There is no requirement of proof of the
perpetrator's subjective intent to carry out the threat. The trial court
did not misconstrue J.M. or err in interpreting the statute.
M.K. further argues that, even assuming he threatened to bring a gun to
school and shoot everyone, the evidence was insufficient to support a
finding that he made a threat to kill because shooting would not
necessarily result in death.
The trial court concluded that M.K.'s words, as reported by K.J., were
"clear on their face as threats to kill."13 It is a reasonable inference to
draw from M.K.'s statement that people would be killed in a shooting and
that this was, in fact, a threat to kill. Following M.K.'s argument, he
could only commit felony harassment by specifically using the words "shoot
and kill" or "die." No authority requires such a result. The trial
court's finding that M.K. threatened to kill is supported by the evidence.
CONSTITUTIONALITY OF THE HARRASSMENT STATUTE
M.K. also challenges the harassment statute as unconstitutionally
overbroad. Relying on Williams, he concedes that the statute prohibits
"true threats" and that as limited it is constitutional.14 However, M.K.
contends that because his statement was not a "true threat" the statute is
unconstitutionally overbroad.
Our Supreme Court in Williams found that the provision of the statute
prohibiting threats to cause bodily injury "clearly prohibits true
threats." Williams, 144 Wn.2d at 208.; State v. E.J.Y., No. 48674-8-I,
slip op. at 9 (Wash. Ct. App. October 14, 2002).15 Therefore, jokes,
political rhetoric, and puffery are excluded. M.K.'s argument hinges on
the assertion that his statement belongs in one of these excluded
categories and was not a "true threat". However, as noted above, the
evidence supports the trial court's conclusion that M.K. made a "true
threat". We reject M.K.'s constitutional challenge and affirm his
adjudication.
WE CONCUR
1 RP 70.
2 RP 70.
3 RP 71.
4 RP 71.
5 CP 21.
6 The only penalty imposed was a $100 victim penalty assessment.
7 The offense is a class C felony when "the person harasses another person.
by threatening to kill the person threatened or any other person." RCW
9A.46.020(2).
8 The Williams Court contrasted this provision with another subsection of
the statute pertaining threats to "mental health" which does not involve
"true threats" and thus, proscribes constitutionally protected speech.
State v. Williams, 144 Wn.2d 197, 208, 26 P.3d 890 (2001).
9 CP 18.
10 RP 119.
11 CP 17-18.
12 RP 124.
13 RP 117.
14 See App. Br. at 6; Reply Br. at 4.
15 M.K. does not make an overbreadth argument with respect to any other
specific provisions of the harassment statute.