F iLE:1D (:OUR'T OF AFTEN 5 DIV I STATE OF WASHINGTON
2018 APR 23 AM 8:3!
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 75870-5-1 ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION BRANDON L. VANWINKLE, ) ) FILED: April 23, 2018 Appellant. ) )
VERELLEN, J. — Brandon VanWinkle appeals his conviction for intimidating a judge. VanWinkle contends there was insufficient evidence of a true threat.
Given the serious tone and the context in which VanWinkle made the statements,
we conclude a reasonable person in VanWinkle's position would foresee that his
comments would be taken seriously. Thus, there was sufficient evidence to
support VanWinkle's conviction.
VanWinkle also argues he received ineffective assistance of counsel
because his attorney failed to raise a diminished capacity defense. Because the
record does not suggest VanWinkle's personality disorder prevented him from
forming the requisite intent when he threated Judge Ekstrom, we conclude
VanWinkle cannot show ineffective assistance of counsel.
Therefore, we affirm. No. 75870-5-1/2
FACTS
VanWinkle was represented by Alexandria Sheridan on a pending charge.
On December 17, 2015, during a criminal docket before Judge Alex Ekstrom,
VanWinkle attacked another defendant. The court decided VanWinkle would be
shackled for his next court appearance and a security hearing would take place to
determine what security measures would be needed in the future.
On December 30, 2015, when Sheridan told VanWinkle about these rulings,
VanWinkle stated he was going to cut up the judge in his chambers. VanWinkle
also threatened the prosecutor and defense counsel. Two correction officers
overheard the conversation.
The State charged VanWinkle with one count of intimidating a judge. And
following trial, the jury convicted VanWinkle.
VanWinkle appeals.
ANALYSIS
I. Sufficiency of the Evidence
VanWinkle contends the State failed to present sufficient evidence of a true
threat to sustain a conviction for intimidating a judge.
"The sufficiency of the evidence is a question of constitutional law that we
review de novo.'"1 To determine whether there is sufficient evidence to sustain a
conviction, we review the evidence in the light most favorable to the State and ask
1 State v. Hummel, 196 Wn. App. 329, 352, 383 P.3d 592(2016)(quoting State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016)).
2 No. 75870-5-1/3
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.2 "A claim of insufficiency admits the truth of the
State's evidence and all inferences that reasonably can be drawn therefrom."3
To convict a defendant of intimidating a judge under RCW 9A.72.160, the
State must prove beyond a reasonable doubt "(1) that a person directs a threat,
either directly or indirectly;(2) to a judge; and (3) because of a ruling or decision
by that judge in any official proceeding." In part, "'[t]hreat' means to communicate
directly or indirectly the intent. . . Mc) cause bodily injury in the future to the person
threatened or to any other person."5
"To avoid violating the First Amendment, our Supreme Court has held that it
will 'interpret statutes criminalizing threatening language as proscribing only
unprotected true threats.'"6 Accordingly, we construe RCW 9A.72.160 as
prohibiting only true threats.7
2 State v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439(2009). 3 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992). 4 State v. Hansen, 122 Wn.2d 712, 719, 862 P.2d 117(1993)(citing RCW
9A.72.160). 5 RCW 9A.04.110(28). 6 State v. Locke, 175 Wn. App. 779, 789, 307 P.3d 771 (2013)(quoting State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013)). 7 See also State v. Kepiro, 61 Wn. App. 116, 125, 810 P.2d 19(1991)("[I]t
is implicit in the definition of 'threat' in RCW 9A.04.110(25)(a) that only true or serious threats are covered.").
3 No. 75870-5-1/4
"The test for determining a 'true threat' is an objective test that focuses on
the speaker."8 "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.'"8
When considering the sufficiency of the evidence of a true threat, the First
Amendment demands more than application of the usual standard.1° "[W]e must
independently examine the whole record to ensure that the judgment does not
constitute a forbidden intrusion into the field of free expression."11 "However, thi&
review is limited to review of those 'crucial' facts that necessarily involve the legal
determination whether the speech is unprotected."12
[tin true threat cases, it is not just the words and phrasing of the alleged threat that matter, but also the larger context in which the words were uttered, including the identity of the speaker, the composition of the audience, the medium used to communicate the alleged threat, and the greater environment in which the alleged threat was made.(13]
8 State v. Kohonen, 192 Wn. App. 567, 575, 370 P.3d 16 (2016)(citing State v. Kilburn, 151 Wn.2d 36, 54, 84 P.3d 1215 (2004)). 9 Kilburn, 151 Wn.2d at 43(internal quotation marks omitted)(quoting State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890(2001)). 10 Locke, 175 Wn. App. at 790. 11 Id. 12 Kilburn, 151 Wn.2d at 52.
13 Kohonen, 192 Wn. App. at 580.
4 No. 75870-5-1/5
Here, VanWinkle told Sheridan "that he would cut up the judge in chambers
and not allow anyone to clean it up."14 Samuel Cover and Brandon Goulet,
correction officers, overheard VanWinkle make the statement to Sheridan.
Sheridan and Officer Cover testified that VanWinkle did not appear to be joking.
Judge Ekstrom testified he was concerned about these threats and he took
certain measures to feel more secure. When asked whether he believed that
VanWinkle could carry out his threats, Judge Ekstrom testified, "That's a more
difficult question. Again, I have a bailiff. There is security through the corrections
officers. That said, it's a human endeavor, things happen.... so there is always a
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F iLE:1D (:OUR'T OF AFTEN 5 DIV I STATE OF WASHINGTON
2018 APR 23 AM 8:3!
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 75870-5-1 ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION BRANDON L. VANWINKLE, ) ) FILED: April 23, 2018 Appellant. ) )
VERELLEN, J. — Brandon VanWinkle appeals his conviction for intimidating a judge. VanWinkle contends there was insufficient evidence of a true threat.
Given the serious tone and the context in which VanWinkle made the statements,
we conclude a reasonable person in VanWinkle's position would foresee that his
comments would be taken seriously. Thus, there was sufficient evidence to
support VanWinkle's conviction.
VanWinkle also argues he received ineffective assistance of counsel
because his attorney failed to raise a diminished capacity defense. Because the
record does not suggest VanWinkle's personality disorder prevented him from
forming the requisite intent when he threated Judge Ekstrom, we conclude
VanWinkle cannot show ineffective assistance of counsel.
Therefore, we affirm. No. 75870-5-1/2
FACTS
VanWinkle was represented by Alexandria Sheridan on a pending charge.
On December 17, 2015, during a criminal docket before Judge Alex Ekstrom,
VanWinkle attacked another defendant. The court decided VanWinkle would be
shackled for his next court appearance and a security hearing would take place to
determine what security measures would be needed in the future.
On December 30, 2015, when Sheridan told VanWinkle about these rulings,
VanWinkle stated he was going to cut up the judge in his chambers. VanWinkle
also threatened the prosecutor and defense counsel. Two correction officers
overheard the conversation.
The State charged VanWinkle with one count of intimidating a judge. And
following trial, the jury convicted VanWinkle.
VanWinkle appeals.
ANALYSIS
I. Sufficiency of the Evidence
VanWinkle contends the State failed to present sufficient evidence of a true
threat to sustain a conviction for intimidating a judge.
"The sufficiency of the evidence is a question of constitutional law that we
review de novo.'"1 To determine whether there is sufficient evidence to sustain a
conviction, we review the evidence in the light most favorable to the State and ask
1 State v. Hummel, 196 Wn. App. 329, 352, 383 P.3d 592(2016)(quoting State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016)).
2 No. 75870-5-1/3
whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.2 "A claim of insufficiency admits the truth of the
State's evidence and all inferences that reasonably can be drawn therefrom."3
To convict a defendant of intimidating a judge under RCW 9A.72.160, the
State must prove beyond a reasonable doubt "(1) that a person directs a threat,
either directly or indirectly;(2) to a judge; and (3) because of a ruling or decision
by that judge in any official proceeding." In part, "'[t]hreat' means to communicate
directly or indirectly the intent. . . Mc) cause bodily injury in the future to the person
threatened or to any other person."5
"To avoid violating the First Amendment, our Supreme Court has held that it
will 'interpret statutes criminalizing threatening language as proscribing only
unprotected true threats.'"6 Accordingly, we construe RCW 9A.72.160 as
prohibiting only true threats.7
2 State v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439(2009). 3 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992). 4 State v. Hansen, 122 Wn.2d 712, 719, 862 P.2d 117(1993)(citing RCW
9A.72.160). 5 RCW 9A.04.110(28). 6 State v. Locke, 175 Wn. App. 779, 789, 307 P.3d 771 (2013)(quoting State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013)). 7 See also State v. Kepiro, 61 Wn. App. 116, 125, 810 P.2d 19(1991)("[I]t
is implicit in the definition of 'threat' in RCW 9A.04.110(25)(a) that only true or serious threats are covered.").
3 No. 75870-5-1/4
"The test for determining a 'true threat' is an objective test that focuses on
the speaker."8 "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.'"8
When considering the sufficiency of the evidence of a true threat, the First
Amendment demands more than application of the usual standard.1° "[W]e must
independently examine the whole record to ensure that the judgment does not
constitute a forbidden intrusion into the field of free expression."11 "However, thi&
review is limited to review of those 'crucial' facts that necessarily involve the legal
determination whether the speech is unprotected."12
[tin true threat cases, it is not just the words and phrasing of the alleged threat that matter, but also the larger context in which the words were uttered, including the identity of the speaker, the composition of the audience, the medium used to communicate the alleged threat, and the greater environment in which the alleged threat was made.(13]
8 State v. Kohonen, 192 Wn. App. 567, 575, 370 P.3d 16 (2016)(citing State v. Kilburn, 151 Wn.2d 36, 54, 84 P.3d 1215 (2004)). 9 Kilburn, 151 Wn.2d at 43(internal quotation marks omitted)(quoting State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890(2001)). 10 Locke, 175 Wn. App. at 790. 11 Id. 12 Kilburn, 151 Wn.2d at 52.
13 Kohonen, 192 Wn. App. at 580.
4 No. 75870-5-1/5
Here, VanWinkle told Sheridan "that he would cut up the judge in chambers
and not allow anyone to clean it up."14 Samuel Cover and Brandon Goulet,
correction officers, overheard VanWinkle make the statement to Sheridan.
Sheridan and Officer Cover testified that VanWinkle did not appear to be joking.
Judge Ekstrom testified he was concerned about these threats and he took
certain measures to feel more secure. When asked whether he believed that
VanWinkle could carry out his threats, Judge Ekstrom testified, "That's a more
difficult question. Again, I have a bailiff. There is security through the corrections
officers. That said, it's a human endeavor, things happen.... so there is always a
level of concern because we know that no system is perfect."16
In State v. Kilburn, our Supreme Court considered whether there was
sufficient evidence of a true threat to sustain Kilburn's conviction of felony
harassment.16 Kilburn told his classmate, K.J., "I'm going to bring a gun to school
tomorrow and shoot everyone and start with you."17 The court concluded that "the
evidence is insufficient for a reasonable person in Kilburn's place to foresee that
K.J. would interpret his statement as a serious threat. .. given his past
relationship with K.J., his joking with her and his other friend in the class before,
14 Report of Proceedings(Aug. 2,2016) at 291. 15 Id. at 280. 16 151 Wn.2d 36, 38, 84 P.3d 1215(2004). 17 Id. at 39.
5 No. 75870-5-1/6
the discussion that had been taking place about books they were reading, and his
laughing or giggling when he made his comments.18
In State v. Locke, Division Two of this court considered whether there was
sufficient evidence of a true threat to sustain Locke's conviction for making threats
against the governor." The court determined there was sufficient evidence for a
reasonable person in Locke's possession to foresee his statements would be
taken seriously because of the violent tone, the specificity, and the lack of a
preexisting relationship between the governor and Locke.2° The court was also
persuaded by the context of the statements; Locke sent the emails 17 days after a
member of Congress was shot.21
Here, VanWinkle did not laugh or otherwise appear to be joking when he
made the statement.22 In fact, Sheridan was so frightened by VanWinkle's
statements that she was unable to visit with her clients for the rest of the day.
VanWinkle did not have a preexisting relationship with Sheridan or Judge Ekstrom
from which he might have an expectation that they would not take his statements
18 Id. at 53. 19 175 Wn. App. 779, 784, 307 P.3d 771 (2013). 20 Id. at 792-94. 21 Id. at 792. 22 See Kohonen, 192 Wn. App. at 580("These reactions provide a guide for
what constituted a reasonable reaction under the circumstances and, therefore, for what reaction a reasonable speaker under the circumstances would have foreseen.").
6 No. 75870-5-1/7
seriously.23 Also, VanWinkle made the violent threats after Judge Ekstrom
witnessed him attack a defendant in the courtroom. In this context, there is
sufficient evidence that a reasonable person engaged in such conduct would
reasonably foresee his comments being taken seriously.
We conclude the State did present sufficient evidence of a true threat to
support VanWinkle's conviction for intimidating a judge.
II. Ineffective Assistance of Counsel
VanWinkle argues he received ineffective assistance of counsel because
his attorney failed to raise a diminished capacity defense.
We review ineffective assistance of counsel claims de novo.24 "Ineffective
assistance of counsel is a fact-based determination, and we review the entire
record in determining whether a defendant received effective representation at
trial."25
To prevail on a claim of ineffective assistance of counsel, the defendant
must show both that defense counsel's representation was deficient and that the
deficient representation prejudiced the defendant.26 "When counsel's conduct can
see Locke, 175 Wn. App. at 793. Sheridan did previously represent 23
VanWinkle. 24 State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). 25 State v. Carson, 184 Wn.2d 207, 215-16, 357 P.3d 1064 (2015). State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260(2011)(quoting State 26 v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).
7 No. 75870-5-1/8
be characterized as legitimate trial strategy or tactics, performance is not
deficient.'"27
The failure of defense counsel to present a diminished capacity defense
satisfies both prongs when the facts support such a defense.28 "A diminished
capacity defense requires evidence of a mental condition, which prevents the
defendant from forming the requisite intent necessary to commit the crime
charged."29
Here, during sentencing for the December 17 assault, the trial court gave a
downward sentenced based on an expert report related to a failed diminished
capacity defense. In that case, the expert testified VanWinkle assaulted a fellow
defendant because the man was being sentenced for assaulting a child, and
VanWinkle was triggered by his own history. The expert diagnosed VanWinkle
with a personality disorder.
Defense counsel offered the report in the current case to argue for a
downward sentence. But the report was specific to VanWinkle's mental health as
it related to the assault. Nothing in the record suggests VanWinkle's personality
disorder prevented him from forming the requisite intent when he threatened
Judge Ekstrom on December 30. And defense counsel's decision not to present a
27 Id. at 33(quoting State v. KvIlo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009)). 28 State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735(2003). 29 Id.
8 No. 75870-5-1/9
diminished capacity defense can be characterized as a legitimate trial strategy
because the same defense failed in the assault case.
We conclude VanWinkle cannot show ineffective assistance of counsel.
Therefore, we affirm.
WE CONCUR:
Q