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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 74204-3-1 ) Respondent, ) ) v. ) ) SLOAN PATRICK STANLEY, ) UNPUBLISHED OPINION ) Appellant. ) FILED: September 5, 2017 )
VERELLEN, C.J. — Following a jury trial, Sloan Stanley was convicted of nine counts of felony cyberstalking. He now appeals, contending that(1)the trial court
incorrectly instructed the jury on what constitutes a "true threat,"(2)the State presented
insufficient evidence that he made true threats to kill as charged in counts six and nine,
(3) the cyberstalking statute is unconstitutionally overbroad and vague, in violation of
the First Amendment, and (4)the prosecutor committed prejudicial misconduct during
closing argument. We affirm the convictions.
FACTS
In 2009, Sloan Stanley began patronizing the Atlantic Crossing Pub in Seattle's
Roosevelt district. Elizabeth Williams worked as a bartender at the pub. Friends Alyson
Gray, Miriam Much, and Leah Mesford lived in the neighborhood and frequented the
pub. No. 74204-3-1/2
While at the pub, Stanley would make small talk with Gray, Much, and Mesford,
but appeared to focus specifically on Gray, which made Gray uncomfortable. Stanley
and Gray's relationship were mere acquaintances, and they did not exchange contact
information.
In July 2010, Stanley got into an argument with the kitchen manager at the pub
and threatened to slit his throat. Williams kicked Stanley out and told him he was
permanently banned from the pub. As Stanley was leaving, he threatened to shoot up
the pub.
In December 2010, Stanley found Gray's email address on the internet and
began emailing her. Gray had since moved out of the neighborhood and no longer
patronized the Atlantic Crossing Pub. The emails were initially friendly, and Gray
responded courteously. In his emails, Stanley asked Gray about the night of June 10,
2010. Stanley apparently believed there had been some form of encounter between
him, Gray, Much, and Williams that night but he could not remember. Stanley's emails
quickly became hostile and aggressive. Gray told him not to contact her anymore, but
Stanley continued to send Gray emails for months. The emails were "dark" and they
"terrified" Gray.1
Gray told Much about the emails and learned Stanley also had been sending
similar emails to Much, questioning her about the night of June 10, 2010. Much initially
responded to Stanley's emails, telling him she did not know what he was talking about,
but she soon began to delete the emails and did not respond. Like the emails to Gray,
1 Report of Proceedings(RP)(July 23, 2015) at 588.
2 No. 74204-3-1/3
Stanley's emails to Much became increasingly hostile and threatening. Much changed
her email address, but Stanley began sending her private messages through Facebook.
Despite being banned from the Atlantic Crossing Pub, Stanley tried to enter the
pub on April 18, 2011, and the police were called. A week later, on April 25, 2011,
Stanley entered the pub and refused to leave. Williams called the police. By the time
an officer arrived, Stanley had left. One of Stanley's ex-roommates was at the pub and
gave the officer Stanley's telephone number. The officer called Stanley and told him not
to return to the pub and not to contact anyone there. Stanley agreed he would not.
In January 2012, after continuing to receive messages from Stanley, Gray and
Much contacted the police. An officer reviewed Stanley's messages and suggested the
women close their social media accounts, change their email addresses, and get
restraining orders against Stanley. Gray and Much changed their contact information
but decided against a restraining order so as not to further agitate Stanley.
In June 2012, Much created a new Facebook account and Stanley immediately
began using the name "Erwin Jenkins" to send messages. Much did not respond. Like
his previous emails, Stanley's messages were aggressive and threatening: "[I] want to
kill you people. [I] want to strangle you with my bare hands until you are no longer
breathing you fucking whore."2 Much was very frightened by the messages, which
continued for two more years, until May 2014.
Meanwhile, Stanley also sent messages to Mesford through Facebook.
Consistent with the theme of his messages to Gray and Much, Stanley repeatedly
asked Mesford what happened that June 2010 night. Stanley's messages were
2 Ex. 10 at 21. No. 74204-3-1/4
threatening. Just two weeks into messaging Mesford, Stanley told her, "I'm going to cut
the little fucking heart out of your dog and shove it down your throat and make you
fucking choke on it. I like all the death in this world. [I] want to see more. I want to see
society tremble."3 Stanley sent Mesford hundreds of messages, many describing the
horrific ways in which he wanted to kill her.4 In the messages, Stanley also mentioned
he had stopped by Mesford's place of work and had been to her apartment complex.
Mesford eventually quit checking the messages, but later discovered many more from
Stanley and realized "they had progressed into more threatening" messages.5 Mesford
became concerned she had not "realize[d] the severity of the situation:6
Stanley also used the name Erwin Jenkins to send Williams harassing and
threatening messages on Facebook. Beginning in January 2013, his messages
continued for a year and a half and became increasingly aggressive. When Williams
discovered the messages, she felt "fearful and threatened."7
After previously cancelling her online accounts in 2012 to avoid Stanley, Gray
rejoined Facebook in early 2014. Within a couple of weeks, Stanley started using the
name Erwin Jenkins to send her vulgar threatening messages. Gray was "terrified:5
She blocked him, but he began sending messages to her business accounts.
3 Ex. 8 at 4.
4 Id. at 6-7 (telling Mesford he would break into her house with a rag of ether, inject her with horse tranquilizer, and bind her so tightly that her limbs would need to be amputated); Ex. 8 at 16 (telling Mesford he would slit her throat). 5 RP (July 27, 2015) at 736.
6 Id. at 721. 7 Id. at 663. 8 RP (July 23, 2015) at 592.
4 No. 74204-3-1/5
Between May and August 2014, Stanley sent Gray nearly 50 messages,
threatening and harassing her. For example, on June 26, 2014: "[I] want to kill you
fucking whores. I can't fight this feeling anymore[. 1] will find you and [I] will fucking kill
you you fucking worthless fucking whore. . .. I swear to god [1] will fucking kill you."9 On
August 12, 2014, Stanley wrote her, "[1]'11 find you and put a bullet in your fucking head..
. . [1] will fucking kill you you worthless fucking whore. [1] will fucking find you."1° And
on August 17, 2014, Stanley messaged Gray, "I am ready to hunt you down and fucking
kill you. [1] swear to fucking god something bad will happen. . . . I'll send you all to
hell."11 In August 2014, Gray called the police again and reported the messages. She
obtained a permanent stalking protection order against Stanley.
Detective Rande Christensen spoke to Stanley on the phone in late September
2014. When Detective Christensen told Stanley that Gray, Much, Mesford, and
Williams were alleging harassment, Stanley admitted he had been harassing the
women for four years and that he used the made-up name Erwin Jenkins. He also
admitted he threatened to kill the women. Detective Christensen arranged an in-person
interview with Stanley on October 3, 2014. During the recorded interview, Stanley told
Detective Christensen that the purpose of his messages was to "break [the women]
down" so they would talk to him.12 He said he threatened the women to "increase their
stress" and to "scare" them.13 When asked how he would feel if someone made similar
9 Ex. 4 at 49-50. 10 Id. at 58. 11 Id. at 61. 12 Pretrial Ex. 4 at 46. 13 Id. at 74.
5 No. 74204-3-1/6
threats to him, Stanley admitted he would be concerned and would report the threats to
the police. Detective Christensen arrested Stanley.
The State charged Stanley with nine counts of felony cyberstalking (counts 1
through 3 with Gray as the alleged victim; counts 4 through 6 with Much as the alleged
victim; counts 7 and 8 with Mesford as the alleged victim; and count 9 with Williams as
the alleged victim). Stanley represented himself at trial. A jury convicted him of all nine
counts. The court sentenced Stanley to 25 months in custody and 25 months on
community custody.
Stanley appeals.
ANALYSIS
I. Juty Instruction 9
Stanley argues the trial court incorrectly instructed the jury on what constitutes a
"true threat." His argument fails.
"True threats" are an unprotected category of speech under the First
Amendment.14 "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.'"15 "The speaker of a 'true threat' need not actually intend to
carry it out."16 Instead, it is enough that a reasonable speaker would foresee that the
threat would be considered serious.17
14 State v. Kilburn, 151 Wn.2d 36, 42, 84 P.3d 1215(2004). 15 State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858(2010)(quoting id. at 43).
16 Id. (quoting Kilburn, 51 Wn.2d at 46). 17 Id.
6 No. 74204-3-1/7
Here, the court properly instructed the jury as to this standard in Instruction 9:
Threat means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any other person.
To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest or idle talk, or political argument.[18]
Nevertheless, Stanley argues that the United States Supreme Court's decisions in
Virginia v. Black19 and Elonis v. United States2° require a subjective test when
evaluating "true threats" under the First Amendment. But our Supreme Court in State v.
Trey M. expressly rejected this exact argument.21 Stanley acknowledges this
precedent, yet relies on State v. Tyler for the proposition that the Court of Appeals
should follow the United States Supreme Court rather than the Washington Supreme
Court on issues of federal constitutional law.22
Stanley misreads the observation in Tyler that when the most recent
pronouncement on an issue of federal constitutional law comes from the United States
18 Clerk's Papers(CP)at 158(emphasis added). 18 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). 20 U.S. , 135 S. Ct. 2001, 192 L. Ed. 2d 1(2015). 21 186 Wn.2d 884, 908, 383 P.3d 474(2016)("We reject the invitation of appellant and amicus to abandon this court's settled precedent, which applies an objective (reasonable person) test in determining a true threat for First Amendment purposes. Appellant does not convince us that either the Supreme Court's recent decision in Elonis or its previous decision in Black require such a change."). 22 195 Wn. App. 385, 389, 382 P.3d 699(2016), disagreed with by State v. Johnson, 188 Wn.2d 742, 399 P.3d 507(2017)(following a United States Supreme Court decision regarding the Fourteenth Amendment right to due process instead of a contrary Washington Supreme Court opinion because "[t]he United States Supreme Court is the paramount authority on the federal constitution").
7 No. 74204-3-1/8
Supreme Court, this court applies that analysis rather than a contrary Washington
Supreme Court opinion that predates the United States Supreme Court's.23 Here, the
most recent pronouncement is from our Supreme Court. Because "[i]t is error for the
Court of Appeals not to follow directly controlling authority by the Supreme Court," we
are bound by the decision in Trey m.24
II. Sufficient Evidence
Stanley contends the State presented insufficient evidence that he made true
threats to kill Much and Williams as charged in counts 6 and 9 under the objective
reasonable person test. We disagree.
As charged, cyberstalking is defined as threats to kill a person made by
electronic communication to such person or a third party with intent to harass,
intimidate, torment or embarrass.25 In reviewing a sufficiency of the evidence claim, we
review the evidence in the light most favorable to the State to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.26 Because the crime of cyberstalking implicates First Amendment
rights, we must conduct "an independent examination of the whole record" to assure
the conviction "'does not constitute a forbidden intrusion on the field of free
expression."27
23 Id. at 392-98.
24 State v. Pedro, 148 Wn. App. 932, 950, 201 P.3d 398 (2009). 25 RCW 9.61.26(3)(b). 26 State v. Witherspoon, 180 Wn.2d 875, 883, 329 P.3d 888 (2014). 27 Kilburn, 151 Wn.2d at 50 (internal quotation marks omitted)(quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 508, 104 S. Ct. 1949, 80 L. Ed. 2d 502(1984)).
8 No. 74204-3-1/9
An independent review of the record is "not complete de novo review."28 Review
is limited to "those 'crucial facts' that necessarily involve the legal determination whether
the speech is unprotected."29 "Crucial facts" are those facts that are "so intermingled
with the legal questions as to make it necessary, in order to pass on the constitutional
question, to analyze the facts."3° An independent constitutionally-based review requires
us to give due regard "to the trial judge's opportunity to observe the demeanor of the
witnesses" and the trial court's determination as to credibility.31
"Whether a statement is a true threat or a joke is determined in light of the entire
context, and the relevant question is whether a reasonable person in the defendant's
place would foresee that in context the listener would interpret the statement as a
serious threat or a joke."32
With respect to Much, Stanley concedes that two of his messages to her
constitute true threats to kill under the objective reasonable person test,33 but argues
insufficient evidence supports a third conviction. He relies on State v. Kohonen.34
29 Id. at 50-52. 29 Id. at 52. 3° Id. at 51. 31 Bose 466 U.S. at 499-500. 32 Kilburn, 151 Wn.2d at 46. 33 Appellant's Br. at 45; Ex. 10 at 11 ("Do you know [I] get very strong feelings of wanting to kill you all. . . . I become consumed with a rage that is starting to be uncontrollable.... / am warning you at least one of you will be dead because I am not going out alone."(emphasis added); Ex. 10 at 20 (I'm going to make you fucking pay bitch. All you fucking whores. I'm going to send you back to hell where you fucking belong you fucking worthless fucking whore."(emphasis added)). 34 192 Wn. App. 567, 370 P.3d 16(2016).
9 No. 74204-3-1/10
In Kohonen, a teenager "tweeted" two messages stating that she "still wanted to
punch" a classmate, and that the classmate "must[ ]die."35 When the classmate later
discovered the Twitter posts, the classmate felt angry and embarrassed by them but
was not frightened because she did not think Kohonen would actually hurt her. This
court looked at the words in the context they were uttered, including the identity of the
speaker(a teenager), the audience (a group of Twitter followers, approximately 100 of
Kohonen's peers), the medium used to communicate the words(a popular social media
plafform used for "thoughts," "feelings," and "inside jokes with friends"), the greater
environment in which the words were made (high school), and the classmate's lack of
fear to conclude there was no true threat.
Here, in contrast, over the course of two years, Stanley, an adult, sent hundreds
of private messages to Much's email and Facebook accounts, a person he barely knew,
demanding information from her. When Much did not provide the information he
sought, Stanley quickly became hostile, aggressive, verbally abusive, and threatening.
Contrary to his assertion on appeal, Stanley's messages were not merely a desire for or
a prediction of violence. He messaged Much:
Something bad is going to happen. I won't stand by and let you do this.[36]
I don't know what to do anymore. [H]ow do [I] get out of this hell. [1] want to kill you people. [I] want to strangle you with my bare hands until you are no longer breathing you fucking whore for what you've done to me.... [Things cannot continue on the path they are on or no one will be alive. ... [Y]our time is coming.1371
36 Kohonen, 192 Wn. App. at 571. 36 Ex. 10 at 21. 37 Id.
10 No. 74204-3-1/11
I'm gonna get my fucking revenge.E38]
Should [1] live up to your image of me. Should 1 fucking drag you bitches behind a fucking car and stomp on little bitch [Joey's]face till it's a fucking pancake. Huh, speak up bitch.[39]
Further, unlike the alleged victim in Kohonen, Much took Stanley's messages seriously
and reported them to the police. And Stanley's admissions that he threatened to kill the
women to "break [them] down,"4° "increase their stress,"41 and "scare"42 them supports a
reasonable inference that Stanley had the intent to intimidate the women.
Given the entire context, a reasonable person in Stanley's position would foresee
that the statement, "I want to strangle you with my bare hands until you are no longer
breathing you fucking whore for what you've done to me....[Y]our time is coming"43
would be interpreted by Much as a serious expression of intent to inflict death. We
conclude the evidence was sufficient for a jury to find that Stanley made a true threat to
kill Much as charged in count 6.
Likewise, the evidence was sufficient for a jury to find that Stanley made a true
threat to kill Williams as charged in count 9. Stanley sent multiple messages to Williams
over the course of a year and a half. The messages were abusive, calling her names
and telling her that she deserved to rot in hell. Stanley told Williams, "I hope someone
38 Id. at 24. 38 Id. at 29. 48 Pretrial Ex. 4 at 46. 41 Id. at 74. 42 Id. 43 Ex. 10 at 21.
11 No. 74204-3-1/12
walks into your shitty bar and shoots you, fucking whore."44 Like the other victims,
Stanley told Williams that she deserved to die, that he wanted to watch her die, and that
he wanted to kill her. Stanley also described Williams' motorcycle in the messages,
causing her concern that he was following her. Finally, on September 21, 2014, Stanley
told Williams, "[Y]ou dumb fucking bitch. [Y]ou['re] to[o] stupid to realize that you should
never fuck with a schizophrenic. /1/ make[you]famous bitch and send you to hell."45
Considering all of Stanley's messages and the context in which they were made,
a rational trier of fact could conclude that a reasonable person in Stanley's position
would foresee that the statement, "I'll make [you]famous bitch and send you to hell,"
would be viewed by Williams as a serious expression of intent to inflict death.
While Stanley's messages to both women included pleas for help and self-
serving statements about how he would never hurt anyone, the fact finder was not
required to find these statements credible in light of Stanley's repeated vicious threats of
violence. After our independent review of the record, we conclude there was sufficient
evidence that Stanley made true threats to kill Much and Williams as charged in counts
six and nine under the objective reasonable person test.
III. Cyberstalking Statute
Stanley argues the cyberstalking statute, RCW 9.61.260, is facially
unconstitutional because it criminalizes First Amendment speech. A statute is
unconstitutionally overbroad on its face if it prohibits a substantial amount of protected
44 Ex. 5 at 13. 45 Id. at 27(emphasis added).
12 No. 74204-3-1/13
speech.46 But a statute that regulates behavior rather than purely speech will not be
overturned unless the overbreadth is both real and substantial when compared to the
statute's plainly legitimate sweep.47
Under RCW 9.61.260(1), a person may be convicted of cyberstalking if "with
intent to harass, intimidate, torment, or embarrass any other person," the person
"makes an electronic communication to such other person or a third party: (a)[u]sing
any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting
the commission of any lewd or lascivious act," or "(c)[t]hreatening to inflict injury on the
person. . . or any member of his or her family or household." Cyberstalking is a felony
if the threat to injure is a threat to kill:45 Stanley argues the statute is facially overbroad
"to the extent that it criminalizes communications made with intent to 'harass' or
`embarrass.'"49
We reject his challenge that intent to "harass" is overbroad. The cyberstalking
statute mirrors the telephone harassment statute, RCW 9.61.230,50 which has been
46 City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572(1989). 47 City of Seattle v. Webster, 115 Wn.2d 635, 641, 802 P.2d 1333(1990)(quoting Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366 (1988)); see also Virginia v. Hicks, 539 U.S. 113, 122, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003). 48Cyberstalking is a gross misdemeanor, but is elevated to a class C felony when "[t]he perpetrator engages in the behavior prohibited in subsection 1(c) of this section by threatening to kill the person threatened or any other person." RCW 9.61.260(3)(b). 49 Appellant's Br. at 48. 60RCW 9.61.230 provides: "(1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person:(a) Using any lewd, lascivious, profane, indecent, or obscene words or language, or suggesting the commission of any lewd or lascivious act; or (b) Anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues; or (c) Threatening to inflict injury on the person or property of the
13 No. 74204-3-1/14
upheld against numerous constitutional challenges.51 Specifically, in State v.
Alexander, this court reevaluated the constitutional sweep of the term "harass" as used
in a municipal ordinance closely paralleling RCW 9.61.230 and held that the term does
not render the ordinance unconstitutionally overbroad.52 Noting that several other
decisions have rejected overbreadth challenges because the statutes in question
contained "a specific intent requirement [that] sufficiently narrowed the laws'
proscriptions," the Alexander court concluded that the mens rea element of the
telephone harassment statute defeated any First Amendment overbreadth challenge.53
Stanley nevertheless claims there is a distinction between telephonic and
electronic communication. He argues "[t]he gravamen of[telephone harassment] is the
thrusting of an offensive and unwanted communication upon one who is unable to
ignore if" but the "cyberstalking statute is not so targeted" because "a recipient is able
person called or any member of his or her family or household; is guilty of a gross misdemeanor, except as provided in subsection (2) of this section." 51 See, e.g., City of Seattle v. Huff, 111 Wn.2d 923, 927-30, 767 P.2d 572(1989) (ordinance which prohibited telephonic threats of physical or property damage directed to listener or member of listener's family made with intent to harass, intimidate, or torment was not unconstitutionally overbroad or,vague); State v. Alphonse, 147 Wn. App. 891, 903-09, 197 P.3d 1211(2008)(telephone harassment statute's prohibition against use of "lewd, lascivious, profane, indecent, or obscene words or language" was not unconstitutionally overbroad or unconstitutionally vague as applied to defendant's conduct); State v. Alexander, 76 Wn. App. 830, 888 P.2d 175(1995); State v. Dyson, 74 Wn. App. 237, 244-45, 872 P.2d 1115 (1994). 52 76 Wn. App. 830, 836, 888 P.2d 175 (1995); see also Alphonse, 147 Wn. App. at 900; Huff, 111 Wn.2d at 928. 53 Alexander, 76 Wn. App. at 836; see also Alphonse, 147 Wn. App. at 901-02 (recognizing that the telephone harassment statute "regulates conduct implicating speech, not speech itself' by requiring an intent to harass, intimidate, torment, or embarrass when the speech is uttered"(quoting Dyson, 74 Wn. App. at 243)).
14 No. 74204-3-1/15
to ignore an electronic communication."54 Stanley's argument is not compelling. A
recipient of a telephone call can change their phone number or ignore the call just as
readily as a recipient of an electronic message can cancel their Facebook or email
account or ignore the message. Further, as the Alexander court noted, the focus of the
statute "is on the caller and his or her intentions, not the effect the telephone call might
have on the recipient."55 And our Supreme Court "has recognized that substantial
privacy interests, which the State may recognize and protect, are involved when
communication intrudes into the privacy of the home."56
"The extent to which a state may regulate such expression is 'dependent upon a showing that substantial privacy interests [of others] are being invaded in an essentially intolerable manner.'...[T]he privacy interest of a listener in the privacy of his home will be accorded greater protection, along with the commensurate restrictions on unwanted discourse, than would be permitted in a public forum.1571
In today's culture, where personal devices especially are omnipresent, the internet is
arguably as intrusive as the telephone, providing a cyberstalker substantial access into
the private space of a person emailed or messaged.55
54 Reply Br. at 9-10(second alteration added)(quoting Alexander, 76 Wn. App. at 837-38). 55 Alexander, 76 Wn. App. at 838.
56 Id. at 837. 57 Id. (emphasis added)(quoting People v. Taravella, 133 Mich. App. 515, 519, 350 N.W.2d 780(1984). 58 See generally Michael Barrett Zimmerman, One-Off & Off-Hand: Developing an Appropriate Course of Liability in Threatening Online Mass Communication Events, 32 CARDOZO ARTS & ENT. L.J. 1027(2014); Nichole Galusha-Troicke, Gone Are the Days of Stalking by Rotary Phones: H.B. 2549 Amending Arizona Stalking Statutes,6 PHOENIX L. REV. 797(2013); Amy C. Radosevich, Thwarting the Stalker. Are Anti- Stalking Measures Keeping Pace with Today's Stalker?, 2000 U. ILL. L. REV. 1371 (2000).
15 No. 74204-3-1/16
Citing to the dictionary definition of "harass," Stanley argues that sending an
indecent or lewd electronic communication with the intent to "annoy or bother someone
in a repeated way" cannot be criminalized under the First Amendment.59 But the only
authority Stanley cites for that proposition is City of Everett v. Moore.69 As the
Alexander court explained, the ordinance at issue in Moore was unconstitutionally
overbroad because it prohibited any written or telephonic communication "likely to
cause annoyance or alarm.'"61 Not only did the ordinance focus solely on the
perceptions of the recipient but words like "annoyance" and "alarm" proscribed a large
amount of innocuous speech.62 In contrast, the intent to harass element of the
telephone harassment statute "proscribes only speech that is intended to abuse the
listener."63 Because the intent to harass element of the cyberstalking statute likewise
proscribes only speech that is intended to abuse the listener, Stanley's argument fails.
Stanley also argues that the terms "harass" and "indecent" as used in the
cyberstalking statute are unconstitutionally vague. He argues that because these terms
"have a wide array of definitions," "it is not clear what conduct is prohibited:64 Stanley
further argues this encourages arbitrary enforcement.
This court analyzes vagueness claims under the Fourteenth Amendment due
process test, which requires the challenger to demonstrate beyond a reasonable doubt
59 Appellant's Br. at 51. 60 37 wn. App. 862, 683 P.2d 617(1984). 61 Alexander, 76 Wn. App. at 838 (quoting id. at 863). 62 Id. 63 Id. at 838 (emphasis added).
64 Reply Br. at 8.
16 No. 74204-3-1/17
that the statute either (1)fails to sufficiently define the offense so that ordinary people
can understand what conduct is proscribed, or(2)fails to provide ascertainable
standards of guilt to protect against arbitrary enforcement.65
"Determining whether a statute sufficiently defines an offense 'does not
demand impossible standards of specificity or absolute agreement.'"66 "For a statute to
be unconstitutional, its terms must be `so loose and obscure that they cannot be clearly
applied in any context.'"67 "Where, as here, the statute requires proof of specific
criminal intent, the remaining terms are less vague or indefinite than they might
otherwise be considered."68
"Courts usually scrutinize allegedly vague statutory language in the context of the
entire statute and in light of common understanding, dictionary definitions, and common
sense."69 "Our courts have... commonly defined the term[]"indecent" as "not decent.
.. altogether unbecoming: contrary to what the nature of things for which circumstances
would dictate as right or expected or appropriate: hardly suitable: unseemly.'"76
"Harass" means "to vex, trouble, or annoy continually or chronically."71
65 Dyson, 74 Wn. App. at 246. 66 Alphonse, 147 Wn. App. at 907 (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 179, 795 P.2d 693(1990)). 67 Id. (internal quotation marks omitted)(quoting Douglass, 115 Wn.2d at 182 n.7). 68 State v. Stark, 66 Wn. App. 423, 434, 832 P.2d 109 (1992).
69 Alexander, 76 Wn. App. at 841.
79 Alphonse, 147 Wn. App. at 908 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1147(1993))(citing State v. Lansdowne, 111 Wn. App. 882, 891-92,46 P.3d 836 (2002)). 71 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1031 (2002).
17 No. 74204-3-1/18
In City of Seattle v. Huff,72 Huff argued that a municipal ordinance73 prohibiting
telephonic threats of physical injury or property damage directed to a listener or a
member of the listener's family made with the intent to "harass, intimidate," or "torment,"
was unconstitutionally vague.74 Our Supreme Court disagreed. The court explained,
"The ordinance provides adequate notice to persons of common understanding as to
the specific intent, the type of threat, and the person(s) to whom the threat must be
directed. For these reasons we also find the ordinance provides adequate standards to
prevent arbitrary enforcement."75
Similarly, in State v. Alphonse, this court rejected the defendant's argument that
the telephone harassment statute's prohibition against the use of "lewd, lascivious,
profane, indecent, or obscene words or language" was unconstitutionally vague as
applied to the defendant.76 The defendant claimed that "because some of the words he
used may be deemed by some to be 'indecent,' Iewd,' or 'lascivious' but may be
commonly used by others, a person must guess whether using these words would
constitute criminal conduct."77 The court explained that the statute contained a specific
intent element, which dispelled any vagueness concerns, and the defendant used
72 111 Wn.2d 923, 767 P.2d 572(1989). 73"A person is guilty of making telephone calls to harass, intimidate, torment or embarrass any other person if, with intent to harass, intimidate, torment or embarrass any other person, he makes a telephone call to such other person: . . . 3. Threatening to inflict injury on the person or property of the person called or any member of his family." Id. at 924 (quoting SMC 12A.06.100(A)(3)). 74 Id. at 929. 75 Id. at 930. 76 147 Wn. App. 891, 907-08, 197 P.3d 1211 (2008). 77 Id. at 908.
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obscene language specifically to offend, humiliate, or torment the victim.78 Thus, "[h]is
claim that he was unsure whether using such language fell within the statutory
prohibitions [was] neither logical nor credible."78 Additionally, the defendant failed "to
demonstrate how protected speech will be subject to an inordinate amount of police
discretion when the State may only charge those complaints that are made with criminal
intent."80 The court concluded,"Because it includes an intent element, RCW 9.61.230
defines the proscribed conduct in reference to the caller, not the recipient, and thereby
contains sufficient guidelines to prevent arbitrary enforcement."81
The cyberstalking statute similarly requires the defendant's intent to "harass,
intimidate,[or] torment" another in connection with certain conduct." In this context, the
terms "harass" and "indecent" are specific enough that persons of common intelligence
can ascertain when their intent falls within the statute's prohibitions. For the same
reasons, the statute provides sufficient standards to prevent arbitrary enforcement.
We conclude that Stanley fails to meet his burden of demonstrating that the
terms "harass" and "indecent" as used in the cyberstalking statute are unconstitutionally
vague."
We separately address Stanley's constitutional challenges to the "intent to
embarrass" provision of the cyberstalking statute. We are troubled by the breadth of the
79 Id. 79 Id. 80 Id. at 909. 91 Id. at 909 (citing Alexander, 76 Wn. App. at 842-43). 92 RCW 9.61.230. 93 See Huff, 111 Wn.2d at 930.
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intent to embarrass portion of the cyberstalking statute. Although the telephone
harassment statute cases have held that the intent to embarrass is not
unconstitutionally overbroad," contemporary electronic communication, social media,
and internet postings are broad in scope. A variety of political and social commentary,
including caustic criticism of public figures, may be swept up as an intent to embarrass
someone while using rough language. Stanley's opening brief was filed prior to our
Supreme Court's decision in Trey-M. He emphasized the true threat issue. The briefs
contain a limited discussion of free speech in the context of electronic communications
with an intent to embarrass. In view of the limited briefing, we do not decide whether
the intent to embarrass in the cyberstalking statute renders the statute unconstitutionally
overbroad. Even assuming the term is unconstitutionally overbroad, any error is
harmless beyond a reasonable doubt in this setting.
A constitutional error is harmless if the appellate court is convinced beyond a
reasonable doubt that any reasonable jury could have reached the same result in the
absence of the error.85 "'Constitutional error is presumed to be prejudicial and the State
bears the burden of proving that the error was harmless.'"88
"An instructional error is presumed to have been prejudicial unless it affirmatively appears that it was harmless. 'A harmless error is an error which is trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the outcome of the case.'"[871
Alexander, 76 Wn. App. at 834-36 (held the term "to embarrass" as used in 84 RCW 9.61.230 did not render the statute unconstitutionally overbroad); Alphonse, 147 Wn. App. at 900. 85 City of Bellevue v. Loranq, 140 Wn.2d 19, 32, 992 P.2d 496(2000). 86 Id. (quoting State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985)). 87 Id. (quoting State v. Smith, 131 Wn.2d 258, 263-64, 930 P.2d 917(1997)).
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Stanley was charged with and the jury was instructed only on the felony charge
of threats to kill. The jury was not instructed on the "lewd, lascivious, indecent, or
obscene" subsection of the statute. While the jury was instructed on the intent "to
harass, intimidate, torment, or embarrass," a conviction required the jury to find Stanley
"threatened to kill" his victims.88 Especially in light of Stanley's admissions that he
harassed and threatened to kill the women89 to "break [them] down,"9° "increase their
stress," and "scare"91 them, no reasonable jury would conclude that Stanley's intent in
privately messaging the women was to "embarrass" them with threats to kill. Therefore,
even assuming the intent to embarrass portion of the cyberstalking statute is overbroad,
the State has met its burden of showing beyond a reasonable doubt that a jury would
have convicted Stanley with or without an intent to embarrass instruction. For the same
reason, even assuming intent to embarrass is unconstitutionally vague, any error was
harmless beyond a reasonable doubt.
IV. Closing Argument
Stanley contends the prosecutor committed two instances of misconduct during
closing argument. We disagree.
To prevail on a claim of prosecutorial misconduct, the defendant must show that
the prosecutor's conduct was both improper and prejudicia1.92 This court determines if
88 See CP at 160-73; RCW 9.61.260. 89 Ex. 10 at 21; Ex. 4 at 49-50, 61. 99 Pretrial Ex. 4 at 46. 91 Id. at 47. 92 State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006).
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the defendant was prejudiced under one of two standards of review.93 If the defendant
objected at trial, the defendant must show that the prosecutor's misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury's verdict.94 If the
defendant did not object at trial, the issue is waived unless the "prosecutor's misconduct
was so flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice."95 Under this heightened standard, the defendant must show that(1)"'no
curative instruction would have obviated any prejudicial effect on the jury" and (2)the
misconduct resulted in prejudice that "had a substantial likelihood of affecting the jury
verdict.'"96
Stanley contends, and the State concedes, that the prosecutor misstated one
fact in closing argument: that Much received messages from Stanley "after she returned
from Spain."97 Stanley objected, and the trial court overruled the objection. While it is
improper for prosecutors to argue facts not in evidence,95 Stanley fails to establish
prejudice. Stanley contends "the wrongful overruling of this objection" prejudiced him
"because the judge denigrated him in the eyes of the jury."99 But immediately after
overruling the objection, the judge stated,"Whether or not the facts are correct is
93 State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653(2012). 94 Id. 95 Id. at 760-61. 96 Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). 97RP (July 30, 2015) at 1139. All of the messages Stanley sent to Much were received by her in Washington before she left for Spain. 98 State v. Turner, 167 Wn. App. 871, 882, 275 P.3d 356 (2012).
99 Reply Br. at 13.
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something that the jury will decide," and "Mr. Stanley, if there is something that you want
to point out in your closing, that you think was wrongly stated, you are welcome to do
that."1°° The judge did not denigrate Stanley before the jury.
Stanley also contends the State misstated the law and shifted the burden of proof
when the prosecutor told the jury "my burden to prove elements beyond a reasonable
doubt only applies to the elements, only applies to your to convict instructions.”101
Stanley contends the prosecutor's argument suggests that the State did not need to
prove a true threat beyond a reasonable doubt. But the true threat requirement merely
defines and limits the scope of the essential threat element in the cyberstalking statute
and is not itself an essential element of the crime that must be included in the to convict
instruction.102 Moreover, Stanley did not object at trial and does not establish that any
prejudice could not have been cured by a curative instruction.103
Therefore, Stanley's prosecutorial misconduct claims fail.
V. Statement of Additional Grounds
Stanley filed a pro se statement of additional grounds in which he raises various
issues. Several issues echo those already raised in his brief and addressed in this
opinion; notably, whether Washington applies an objective rather than subjective intent
to threaten in determining what constitutes a true threat and whether the State
presented sufficient evidence that he made true threats to kill. Many of his challenges
100 RP (July 30, 2015) at 1139. 101 Id. at 1136. 102 State v. Allen, 176 Wn.2d 611, 626-30, 294 P.3d 679(2013). 103 See Emery, 174 Wn.2d at 760-61.
23 No. 74204-3-1/24
pertain to the credibility of witnesses and the persuasiveness of the evidence and are
not subject to review on appea1.104
Stanley raises several challenges to the admissibility of evidence, including the
admissibility of statements made to Detective Christensen, the admission of jail phone
calls, and the suppression of an alleged incident involving a bartender who was friends
with the four women. He ignores that "[d]ecisions involving evidentiary issues lie largely
within the sound discretion of the trial court."105 Stanley also raises several other issues
related to the court's discretionary rulings, including rulings on motions in limine and
rulings on calling subpoenaed witnesses after Stanley released them. But he fails to
establish that any of the challenged rulings were unreasonable or based on untenable
grounds.106
Stanley makes several prosecutorial misconduct claims. Where a defendant fails
to object to the challenged conduct, he must show that the conduct was so flagrant and
ill intentioned that a jury instruction could not have cured any resulting prejudice.107
Stanley fails to make such a showing here.
Stanley contends the trial judge exhibited bias. "'An appearance of fairness
claim requires proof of actual or potential bias. Mere speculation is not enough.
104 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 970(1990)(matters pertaining to the credibility of witnesses, conflicting testimony, and the persuasiveness of the evidence are the exclusive province of the jury). 105 State v. Nava, 177 Wn. App. 272, 289, 311 P.3d 83(2013). 106 See Falk v. Keene Corp., 53 Wn. App. 238, 247, 767 P.2d 576 (1989). 107 State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747(1994).
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Furthermore, we presume a judge performs his or her duties without prejudice.'”ios
Stanley fails to establish actual or potential bias.
Stanley contends his convictions violate the merger clause. He argues that "the
most that should have been charged is 4 counts, one for each victim."109 The merger
doctrine applies where the legislature has clearly indicated that in order to prove a
particular degree of crime, the State must prove not only that the defendant committed
that crime but that the crime was accompanied by an act defined as a crime elsewhere
in the criminal statutes.11° Cyberstalking is not a crime separated into degrees, and
cyberstalking does not require proof of another crime. Stanley makes no showing that
the merger doctrine applies.
Stanley also contends the accumulation of errors in this case require a new trial.
Multiple errors may justify reversal even if the errors individually do not warrant
reversa1.111 But because Stanley has failed to establish any errors, the cumulative error
doctrine does not apply.
108 State v. Afeworki, 189 Wn. App. 327, 356, 358 P.3d 1186(2015)(quoting State v. Harris, 123 Wn. App. 906, 914, 99 P.3d 902(2004) abrogated on other grounds 12y State v. Hughes, 154 Wn.2d 118, 110 P.3d 192(2005)), review denied, 184 Wn.2d 1036 (2016). 108 Statement of Additional Grounds at 41. 110 State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853(1983); see also State v. Parmelee, 108 Wn. App. 702, 710, 32 P.3d 1029(2001)(merger doctrine relevant only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code). 111 State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
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Most, if not all, of Stanley's remaining issues depend on facts that are not a part
of the record on appea1.112 If Stanley "wishes to raise issues on appeal that require
evidence or facts not in the existing trial record, the appropriate means of doing so is
through a personal restraint petition."113
Affirmed.
WE CONCUR:
r.c .ecie _
112 Specifically, information a potential witness might have provided, revocation of his release on DOSA,suggestions that additional investigation would have been productive, e.g., relationship of a bartender with King County officials, allegations of vindictive prosecution, speedy trial rulings. 113 State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).