State v. Trey M.

• Court: Washington Supreme Court
• Decided: October 27, 2016
• Docket: 92593-3
• Status: Published

Opinion

This opinion was:fila4rf~\f~ at. . ~~ U(}oJA ~',; e:.Jt#r:.litjl PdV ~:d)(Cu-- IN CLERKS OFFICE

SUSAN L. CARLSON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 92593-3 Respondent, ) ) v. ) EnBanc ) TREYM., ) ) Appellant. ) Filed f'ii•' ·~· "'' ~ 2 7 ",LfJHJ - , .... ,.,-.

MADSEN, C.J.~Juvenile defendant Trey M. seeks reversal of his three

convictions for felony harassment under RCW 9A.46.020 (discussed below). The

primary issue, as certified from Court of Appeals, Division Three, to this court, is

whether the Supreme Court's decision in Elonis v. United States,_ U.S._, 135 S. Ct.

2001, 192 L. Ed. 2d 1 (2015), has any impact on this court's objective test (i.e.,

reasonable person standard) for what constitutes a "true threat" under the First

Amendment to the United States Constitution. We hold that because Elonis expressly

avoids any First Amendment analysis, it provides no basis for this court to abandon its

established First Amendment precedent. 1 We affirm.

1 Other issues include whether Trey's statements to his therapist and police amount to a true threat and whether sufficient evidence supports his convictions. No. 92593-3

FACTS

Trey was a high school student at Naches Valley High School at the time of the

incident that led to his arrest. At that time, Trey was in counseling with Mark Heeringa,

addressing issues stemming from Trey's early childhood history of abuse and neglect.

Trey had been in counseling since he was five years old, and had received regularly

scheduled counseling from Heeringa for the past two years. During a counseling session

on October 7, 2014, Trey was upset because three boys had teased him at school. Trey

told Heeringa that he thought about taking a gun to school and shooting the boys. He

also said he wanted to kill them and for them to know the pain that he felt. He described

a specific plan to shoot the three boys and then himself. First, he would get a gun from

his grandfather's gun safe and shoot one boy at the boy's house before school. He would

then go to the school and shoot the other two boys and end by shooting himself. He told

his counselor that if he couldn't get access to firearms, he would use bombs against the

boys.

Heeringa noticed a change in Trey's mood and demeanor as he made these

statements. Specifically, Heeringa testified that Trey was angry, gesturing, short in his

speech, and raising his voice at the time. Heeringa asked Trey, "'[D]oesn't this seem

wrong?"' 1 Report of Proceedings (RP) (Dec. 8, 2014) at 20. Trey replied, '"Who can

say?"' !d. Heeringa took the threats seriously and contacted law enforcement.

At trial, Heeringa testified that this was not the first time Trey had threatened to

kill someone, explaining that Trey had previously talked about killing others, including

2 No. 92593-3

Trey's grandfather. Trey had also previously talked about committing suicide and had

described various ways he would kill himself.

Deputy William Boyer of the Yakima County Sheriff's Office met with Trey and

asked him to explain what he said and what he would do. Deputy Boyer described his

conversation with Trey as follows:

He told me that he had talked to his counselor and told his counselor that he had thought about and was thinking about killing other students at the Naches [high] school. And so I asked him how he would go about doing that. He indicated to me that he would either find the key to the gun cabinet or he would use an ax and break the door open to the gun cabinet. It's not a gun cabinet, but it's a closet where the guns are kept locked up.

He would then take the 9 millimeter pistol of his grandpa's, and he would go to his friend's house who lives in the near area and kill him first. He would then ride the bus into ... Naches [high school]like normal. He would then wait at school until the other students were at lunch or everyone was in the cafeteria because that's when the-- there would be the gathering of the individuals he wanted to shoot, at which point he said that he would shoot them and then he would shoot himself.

I d. at 54. Deputy Boyer testified that Trey said all of this methodically and without

emotion. Trey explained to the deputy that he would use a 9 mm pistol because he could

conceal it. Trey also confessed to making 15 or 16 small bombs.

Another sheriff's officer, Detective Sergeant Mike Russell, contacted the principal

of Naches Valley High School, Richard Rouleau. Principal Rouleau confirmed a report

that Trey was being harassed or bullied at school. Trey had also recently been suspended

from school and was upset over the suspension.

3 No. 92593-3

The State charged Trey with three counts of felony harassment2 in violation of

RCW 9A.46.020(1)(a)(i), (b), (2)(b). Victim E.D. testified at trial, stating that when he

learned of Trey's "hit list," he was really scared at first. RP at 87, 91. He testified that he

was scared that his life could have been taken. He felt relieved after he learned that Trey

was in custody. At the time of trial, he testified that he was still a little scared but

"relieved that [Trey]'s in custody." Id. at 90.

Another victim, W.B., testified that after learning he was on Trey's "hit list," he

was scared and really shaking. !d. at 97, 105-07. He told his dad he "was threatened"

and that he was scared. Id. at 106. At trial, he testified that he was still a little scared.

He also testified that he knew Trey had talked about harming himself before and had

even made a noose at one point.

The third victim, G.C., testified that he got a text from his friend, W.B., telling

him about the "hit list." Id. at 118, 120. G.C. said that he was "scared" and "freaked

out" at first. !d. at 120. G.C. was at home sick at the time. G.C. thought that if he had

been at school, the plan might have been carried through. He testified that made him

scared and frightened.

Trey was convicted of three counts of felony harassment and appealed these

convictions.

Trey filed an opening brief in Division Three, seeking reversal of his convictions

and dismissal of all charges and arguing that ( 1) the State presented insufficient evidence

2 Trey was also charged with one count of threats to bomb property, for which he was found not guilty. 4 No. 92593-3

to prove felony harassment under RCW 9A.46.020 and (2) his convictions violated the

First Amendment because they were not true threats under either the reasonable speaker

standard articulated in State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004), or the

subjective intent standard addressed in Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536,

155 L. Ed. 2d 535 (2003). The State responded, contending that the evidence was

sufficient, that Washington's objective true threat test was met, and that Black is

distinguishable.

In the meantime, the Supreme Court issued its decision in Elonis, interpreting the

federal crime of transmitting in interstate commerce "'any communication containing any

threat ... to injure the person of another."' 135 S. Ct. at 2008 (quoting 18 U.S.C. §

875(c)). The Court reversed defendant's convictions, holding that conviction under the

federal statute would require a showing that defendant intended to issue threats or knew

that his communications would be viewed as threats. Id. at 2012.

Trey filed a reply brief adding citation to Elonis, contending that case is

"persuasive authority" for the proposition that Trey's convictions are invalid. Reply Br.

of Appellant at 20. Amicus American Civil Liberties Union of Washington (ACLU) also

filed a brief, asserting that Washington's objective reasonable speaker test is inconsistent

with Elonis.

The Division Three chief judge issued an order of certification transferring the

case to this court to determine the issue of "whether ... Elonis v. United States, 135 S.

Ct. 2001, 192 L. Ed. 2d 1 (2015), requires Washington to change its construction of the

5 No. 92593-3

harassment statute from an objective person standard to a subjective intent standard."

Order of Certification, State v. Trey M., No. 32981-0-III (Wash. Ct. App. Dec. 7, 2015).

This court's commissioner issued a ruling that accepted certification, transferred the case

to this court for determination on the merits, and directed the parties to file "a

supplemental brief addressing the issue identified in the order of certification regarding

the impact, if any, of Elonis v. United States, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015), on

this court's precedent adopting an objective test for what constitutes a 'true threat' that is

not protected speech." Ruling Accepting Certification, State v. Trey M., No. 92593-3

(Wash. Dec. 16, 2015). The parties and amicus ACLU filed supplemental briefs. We

now address the certified question and Trey's challenges to his convictions.

ANALYSIS

(1) We decline to abandon this court's precedent applying an objective test for what constitutes a tme threat under the First Amendment3

Appellant was convicted on three counts of felony harassment (threat to kill) under

RCW 9A.46.020(1)(a)(i) and (b). 4 Because the certified question-which concerns

3 The parties were directed to submit supplemental briefing on the impact of Elonis on this court's First Amendment true threat precedent. While appellant's and amicus's supplemental briefs do address Elonis, they primarily argue that this court should adopt a subjective test based on Black. 4 The harassment statute provides in relevant part:

A person is guilty of harassment if ... [w]ithout lawful authority, the person lmowingly threatens ... [t]o cause bodily injury immediately or in the future to the person threatened or to any other person; ... [and] [t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020(1)(a)(i), (b). Conviction for harassment "under subsection (l)(a)(i) of this section by threatening to kill the person threatened or any other person" is a class C felony. RCW 9A.46.020(2)(b)(ii). 6 No. 92593-3

appropriate standards for true threats under the First Amendment-will affect how the

harassment statute is applied, we address that issue first.

Appellant and amicus ACLU ask this court to overrule State v. Williams, 144

Wn.2d 197, 207-08, 26 P.3d 890 (2001), which adopted our state's objective (reasonable

person) test for what constitutes a true threat, and hold instead that Washington's true

threat test requires subjective intent to threaten. Amicus contends that by doing so, this

court would make our state law "consistent with" Black and Elonis. Br. of Amicus

Curiae ACLU at 1. Appellant echoes these contentions, asserting that Black is "binding

authority" that "compels a subjective-intent standard" concerning any First Amendment

true threat inquiry. Appellants's Suppl. Br. on Certified Issue at 13. For the reasons

discussed below, we find that neither case so requires and decline to abandon our settled

precedent. This court "will not abandon precedent unless it is determined to be incorrect

and harmful." Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 282, 358 P.3d 1139

(2015); see also In re Rights of Waters of Stranger Creek, 77 Wn.2d 649,653, 466 P.2d

508 (1970) ("The doctrine [of stare decisis] requires a clear showing that an established

rule is incorrect and harmful before it is abandoned.").

Williams and Its Progeny

In Williams, this court also addressed a challenge to a conviction under

Washington's harassment statute. We aclmowledged that RCW 9A.46.020 "criminalizes

a form of pure speech: threats," and that "'a statute[,] ... which makes criminal a form of

pure speech, must be interpreted with the commands of the First Amendment clearly in

7 No. 92593-3

mind.'" Williams, 144 Wn.2d at 206-07 (alterations in original) (quoting Watts v. United

States, 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969)). Noting that the

Supreme Court had permitted restrictions on the content of speech in a few limited areas,

such as '"fighting words'" and "true threats," and observing that "true threats must be

distinguished from threats that constitute protected speech," this court adopted the

following definition:

"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. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998) (alteration[s] in original) (quoting United States v. Khorrami, 895 F .2d 1186, 1192 (7th Cir.1990)).

Id. at 207-08 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766,

86 L. Ed. 1041 (1942)). This court has consistently relied on the objective (reasonable

person) test since its adoption in Williams. See, e.g., State v. J.M, 144 Wn.2d 472,477-

78,28 P.3d 720 (2001) (quoting the Williams test); Kilburn, 151 Wn.2d at 43 (same);

State v. Johnston, 156 Wn.2d 355, 361, 127 P.3d 707 (2006) (same); State v. Schafer, 169

Wn.2d 274, 283, 236 P.3d 858 (2010) (same); State v. Allen, 176 Wn.2d 611, 626, 294

P.3d 679 (2013) (plurality opinion) (same); State v. France, 180 Wn.2d 809, 818, 329

P.3d 864 (2014) (same).

Notably, in Kilburn this court rejected the same request that appellant and amicus

make here-to abandon Williams in favor of a subjective intent test. The Kilburn

decision reiterated the Williams test and further explained that"[ a] true threat is a serious

8 No. 92593-3

threat, not one said in jest, idle talk, or political argument" and "whether a true threat has

been made is determined under an objective standard that focuses on the speaker."

Kilburn, 151 Wn.2d at 43-44. Further, "[w]heth'er 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." !d. at 46. The Kilburn court

held that "the First Amendment does not require that the speaker actually intend to carry

out the threat in order for a communication to constitute a true threat, and that the State

need not prove such intent." !d. at 48. Kilburn further explained,

[T]he harassment statute itself does require a mental element. The statute requires that the defendant "knowingly threatens .... " RCW 9A.46.020(1 )(a)(i). This means that "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 to cause bodily injury to the person threatened or to another person." JM., 144 Wn.2d at 481. Thus, one who writes a threat in a personal diary or mutters a threat unaware that it might be heard does not knowingly threaten. I d. The statute does not require that the State prove that the speaker intended to actually carry out the threat.

Id. (alteration in original).

United States v. Elonis

Appellant argues that in compliance with the Supreme Court's recent decision in

Elonis, this court should set aside his harassment conviction under RCW 9A.46.020. We

disagree. In Elonis, the Court addressed the mens rea required for violating 18 U.S.C. §

875(c) (interstate communication containing threat to injure). We find the Supreme

9 No. 92593-3

Court's decision in Elonis is inapplicable to appellant's conviction under the Washington

harassment statute.

In Elonis, the defendant created and posted on Facebook his own purported rap

lyrics addressing killing his ex-wife and harming others, while asserting that such

comments were '"therapeutic."' Elonis, 135 S. Ct. at 2004-07 (quoting United States v.

Elonis, 730 F.3d 321, 329 (3d Cir. 2013), rev'd, 135 S. Ct. 2001). The Court articulated

the issue as "whether [18 U.S.C. § 875(c)] requires that the defendant be aware of the

threatening nature of the communication, and-if not-whether the First Amendment

requires such a showing." !d. at 2004. The federal statute at issue contained no mens rea

element. !d. at 2008. Relying on the construction that "'wrongdoing must be conscious

to be criminal,"' id. at 2009 (quoting Morissette v. United States, 342 U.S. 246, 252, 72

S. Ct. 240, 96 L. Ed. 288 (1942)), the Court held that defendant's conviction was

improperly premised (as instructed) "solely on how his posts would be understood by a

reasonable person." !d. at 2011. The Court reversed defendant's convictions, holding

that conviction tmder the federal statute would require a showing that defendant intended

to issue threats or knew that his cormnunications would be viewed as threats. !d. at 2012.

The Court expressly did not reach any First Amendment issues. !d.

As an initial matter, Elonis is a case of statutory construction, and, as such, it is

limited to the federal statute that it addressed, 18 U.S.C. § 875(c); see, e.g., United States

v. Kirsch, 151 F. Supp. 3d 311, 317 (2015) ("No case reported thus far extends Elonis's

holding beyond [18 U.S.C.] § 875(c)."). As the Fourth Circuit Court of Appeals has

10 No. 92593-3

explained, "[I]mportantly, the Court's holding in Elonis was purely statutory; and, having

resolved the [case] on statutory grounds, the Court declined to address whether a similar

subjective intent to threaten is a necessary component of a 'true threat' for purposes of

the First Amendment." United States v. White, 810 F.3d 212, 220 (4th Cir. 2016), cert.

denied, 136 S. Ct. 1833 (2016); 5 see also Elonis, 135 S. Ct. at 2012 ("Given our

disposition, it is not necessary to consider any First Amendment issues.").

Further, in Elonis, the federal criminal statute that the Supreme Court was faced

with, 18 U.S.C. § 875(c), criminalized communicating a threat through interstate

commerce but was silent on the mens rea required to commit the offense. 6 The Court

stated that when a federal statute is silent on the scienter needed to commit the offense,

5 The Fourth Circuit held that "Elonis does not affect our constitutional rule that a 'true threat' is one that a reasonable recipient familiar with the context would interpret as a serious expression of an intent to do harm." White, 810 F.3d at 220. The Fourth Circuit explained the effect of Elonis on application of 18 U.S.C. § 875( c) noting that after Elonis a conviction pursuant to 18 U.S.C. § 875(c) now requires both a subjectively intended threat and an objectively real threat: That is [conviction under 18 U.S.C. § 875(c) requires]: (1) that the defendant knowingly transmitted a communication in interstate or foreign commerce; (2) that the defendant subjectively intended the communication as a threat; and (3) that the content of the communication contained a "true threat" to kidnap or injure. To prove the second element, the Government, consistent with Elonis, must establish that the defendant transmitted the communication "for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat[.]" ... See Elonis, 135 S. Ct. at 2012-13. And to establish the third element ... the prosecution must show that an ordinary, reasonable recipient who is familiar with the context in which the statement is made would interpret it as a serious expression of an intent to do harm. !d. at 220-21 (emphasis added). Similarly, the Washington harassment statute (without any additions) requires both subjective and objective mental elements: the speaker must "knowingly threaten[]," and the fear of the person threatened must be objectively "reasonable." RCW 9A.46.020(1)(a)(i), (b). 6 18 U.S.C. § 875(c) provides, "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." 11 No. 92593-3

and a scienter requirement is needed to separate wrongful from innocent conduct, the

mens rea required to commit the offense must be greater than simple negligence. Elonis,

135 S. Ct. at 2010. "When interpreting federal criminal statutes that are silent on the

required mental state, we read into the statute 'only that mens rea which is necessary to

separate wrongful conduct from otherwise innocent conduct."' Id. (internal quotation

marks omitted) (quoting Carter v. United States, 530 U.S. 255, 269, 120 S. Ct. 2159, 147

L. Ed. 2d 203 (2000)).

Importantly, Elonis did not mandate a scienter requirement for all offenses.

Rather, Elonis creates a gap-filling mle that stands for the '"presumption'" of a scienter

requirement when the federal offense is otherwise silent. !d. at 2010-11 (quoting Carter

v. United States, 530 U.S. 255,269, 120 S. Ct. 2159, 147 L. Ed. 2d 203 (2000)). Here,

the Washington harassment statute is not silent as to mental states; it requires a specific

mens rea, providing in relevant part:

A person is guilty of harassment if ... [w]ithoutlawful authority, the person knowingly threatens . .. [t]o cause bodily injury immediately or in the future to the person threatened or to any other person; ... [and] [t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.

RCW 9A.46.020(l)(a)(i), (b) (emphasis added). As can be seen, the above quoted

language requires both subjective and objective mental elements: the speaker must

"knowingly threaten" and the fear of the person threatened must be objectively

"reasonable." Because this is not a circumstance where the offense is silent on the mens

rea, there is no gap for Elonis to fill. See United States v. Rapert, 75 M.J. 164, 168

12 No. 92593-3

(C.A.A.F. 2016) (because "the infirmities found in 18 U.S.C. § 875(c) [i.e., absence of

mens rea] are not replicated" in the provision in question, this "places the case at bar

beyond the reach of Elonis"); United States v. Ulibarri, 115 F. Supp. 3d 1308, 1333

(D.N.M. 2015) ("Unlike [18 U.S.C.] § 875(c), [the provision in question] already

contains a mens rea requirement. ... [Accordingly, b]ecause [the provision in question]

already 'separate[s] wrongful conduct from otherwise innocent conduct,' Elonis v. United

States, 135 S.Ct. at 2011, an additional mens rea requirement is unnecessary." (sixth

alteration in original)); see also People v. Murillo, 238 Cal. App. 4th 1122, 1129, 190

Cal. Rptr. 3d 119 (2015) (noting Elonis does not affect the California appellate court's

interpretation of the California statute punishing threats to witnesses, crime victims, or

other persons), review denied, No. S228704 (Cal. Oct. 14, 2015); State v. Gore, 101

Wn.2d 481, 486-87, 681 P.2d 227 (1984) ("While the Supreme Court's interpretation of a

similar federal statute is persuasive authority, it is not controlling in our interpretation of

a state statute."). 7

Finally, in Elonis the "jury was instructed that the Government need prove only

that a reasonable person would regard Elonis's connnunications as threats." Elonis, 135

S. Ct. at 2012. The Court found such instruction to be error because "[flederal criminal

7 Elonis's limitations are noted in the following law review articles. SeeP. Brooks Fuller, The Angry Pamphleteer: True Threats, Political Speech, and Applying Watts v. United States in the Age of Twitter, 21 COMM. L. & POL'Y 87, 90-91 (2016) (''The Court in Elonis did not reach [any] First Amendment issue, and instead focused on [interpreting] the federal [threat] statute" at issue; thus, "the Court failed to clarify the practical boundary between protected speech and unprotected true threats."); see also Federal Threats Statute-Mens Rea and the First Amendment-Elonis v. United States, 129 HARV. L. REV. 331,336 (2015) ("BecauseElonis was decided on stah1tory grounds, 'true threats' remain a doctrinal puzzle for lower courts."). 13 No. 92593-3

liability generally does not tmn solely on the results of an act without considering the

defendant's mental state." Id. The Court acknowledged that such consideration of

required mental state "is satisfied if the defendant transmits a connnunication for the

purpose of issuing a threat, or with knowledge that the communication will be viewed as a

threat." I d. (emphasis added). Here, as noted, the Washington harassment statute

requires the State to prove that the defendant "knowingly threaten[ ed]." RCW

9A.46.020(1)(a). Because the required mental element in the Washington harassment

statute is the same mental state acknowledged in Elonis as sufficient, appellant and

amicus do not convince that Elonis impacts the present case.

Virginia v. Black

Appellant maintains that his convictions are invalid under Black. He argues that

"[b]ecause there was no evidence that Trey made the statements to his therapist with the

intent to intimidate the boys, the convictions violate the First Amendment under Black."

Reply Br. of Appellant at 18 (emphasis added); see also Br. of Appellant at 28 (same);

Appellant's Suppl. Br. on Certified Issue at 4. For the reasons noted here, appellant's

reliance on Black is misplaced. While the state statute at issue in Black prohibited "cross

bmning with 'an intent to intimidate a person or group of persons,"' Black, 538 U.S. at

347 (quoting VA. CODE ANN. § 18.2-423), the "intent to intimidate" element was a state

statutory requirement. It was a part of the given context of the Supreme Court's First

Amendment inquiry in Black, but nothing in Black imposes in all cases an "intent to

intimidate" requirement in order to avoid a First Amendment violation. See Schafer, 169

14 No. 92593-3

Wn.2d at 287 n.4 (distinguishing Black); see also Elonis, 135 S. Ct. at 2027 (Thomas, J.,

dissenting) (explaining the parameters and limitations of the Black decision).

Notably, this court has already distinguished Black in Schaler, acknowledging that

the Supreme Court in Black "upheld a cross burning law without discussing any

negligence requirement," but this was because "the law at issue in Black required an even

greater mens rea as to the listener's fear[:] 'Intimidation ... is a type of true threat ...

where a speaker directs a threat to a person or group of persons with the intent ofplacing

the victim in fear of bodily harm or death."' Schaler, 169 Wn.2d at 287 n.4 (second and

third alterations in original) (citation omitted) (quoting Black, 538 U.S. at 360). Thus, the

Schaler majority did not find Black to be germane to its interpretation or application of

RCW 9A.46.020.

Justice Thomas's dissent in Elonis also described the parameters of the Black

decision, further demonstrating how Black is too factually different to offer any guidance

in the present case. 8 Justice Thomas explained:

The Court's fractured opinion in Black . .. says little about whether an intent-to-threaten requirement is constitutionally mandated .... Black concerned a Virginia cross-burning law that expressly required "'an intent to intimidate a person or group of persons,"' 538 U.S., at 347, 123 S.Ct. 1536 (quoting Va.Code Ann.§ 18.2-423 (1996)), and the Court thus had no occasion to decide whether such an element was necessary in threat

8 While the majority in Elonis did not reach any First Amendment issues and did not mention Black, Justice Thomas's dissent did address the First Amendment and discussed the parameters and limitations of the Court's decisions in both Black and Watts. Relevant here, Justice Thomas explained that "[n]either of those decisions ... addresses whether the First Amendment requires a particular mental state for threat prosecutions." Elonis, 135 S. Ct. at 2026 (Thomas, J., dissenting). He noted that "Watts expressly declined to address the mental state required under the First Amendment for a 'true threat."' Id. And he further explained the limitations ofthe Black decision as described above. Id. 15 No. 92593-3

provisions silent on the matter. Moreover, the focus of the Black decision was on the statutory presumption that "any cross burning [w ]as prima facie evidence of intent to intimidate." 538 U.S., at 347-348, 123 S.Ct. 1536. A majority of the Court concluded that this presumption failed to distinguish unprotected threats from protected speech because it might allow convictions "based solely on the fact of cross burning itself," including cross burnings in a play or at a political rally. !d., at 365-366, 123 S.Ct. 1536 (plurality opinion); id., at 386, 123 S.Ct. 1536 (Souter, J., concurring in judgment in part and dissenting in part) ("The provision will thus tend to draw nonthreatening ideological expression within the ambit ofthe prohibition of intimidating expression[.]").

Elonis, 135 S. Ct. at 2027 (Thomas, J., dissenting) (third alteration in original). Here, the

Washington harassment statute contains no similar "presumption," the rejection of which

a majority of the Court in Black agreed on. Otherwise, under federal precedent, the

fractured plurality decision in Black provides no clear directive that would compel this 9 court to abandon its precedent.

The lead opinion in Black, addressing the intent to intimidate provision of the

Virginia statute at issue, opined that "[i]ntimidation in the constitutionally proscribable

sense of the word is a type of true threat, where a speaker directs a threat to a person or

group of persons with the intent of placing the victim in fear of bodily harm or death."

538 U.S. at 360. In this context, the lead opinion observed that'" [t]rue threats'

9 See Hertz v. Woodman, 218 U.S. 205,213-14,30 S. Ct. 621, 54 L. Ed. 1001 (1910) ("[T]he principles of Jaw involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in [the Supreme Court] or in inferior courts."); see also Texas v. Brown, 460 U.S. 730, 737, 103 S. Ct. 1535, 75 L. Ed.2d 502 (1983) (stating that plurality view that does not command majority is not binding precedent); United States v. Pink, 315 U.S. 203,216,62 S. Ct. 552, 86 L. Ed. 796 (1942) ("While it was conclusive and binding upon the parties as respects that controversy, the lack of an agreement by a majority of the Court on the principles of law involved prevents it from being an authoritative determination for other cases." (citations omitted)). But see In re Det. of Reyes, 184 Wn.2d 340, 346, 358 P.3d 394 (2015) ("A principle oflaw reached by a majority of the court, even in a fractured opinion, is not considered a plurality but rather binding precedent."). 16 No. 92593-3

encompass those statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to a particular individual or

group of individuals,"and that "[t]he speaker need not actually intend to carry out the

threat." !d. at 359-60 (emphasis added). Even if this articulation of"true threat" in Black

were applied in the present case, it would not substantively alter the relevant inquiry here.

The Washington harassment statute requires the State to prove that defendant "knowingly

threaten[ed]" to cause bodily injury. RCW 9A.46.020(l)(a)(i). A "threat" is an 10 expression of an intention to inflict injury, damage, loss, or harm on another.

Accordingly, there is no practical difference between showing that the speaker "means to

communicate a serious expression of an intent to commit an act of violence" and showing

that the speaker "knowingly threatened." Black does not alter the inquiry here.

Finally, after Black, there continued to be disagreement among the federal circuit

courts regarding the appropriate test for determining whether speech rises to the level of a

true threat. This disagreement stems from the various readings of the Supreme Court's

opinion in Black. As noted, the Supreme Court declined the opportunity in Elonis to

address the constitutional question raised by Black. See Elonis, 135 S. Ct. at 2012.

10 "Threat," as statutorily defined, "means to communicate, directly or indirectly the intent" to "cause bodily injury in the future to the person threatened or to any other person"; or to "cause physical damage to the property of a person other than the actor"; or to "do any other act which is intended to harm substantially the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships." RCW 9A.04.110(28)(a), (b), G). 17 No. 92593-3

Given the continuing disagreement and lack of definitive guidance from the Supreme 11 Court, it cannot be said that the test this court employs is incorrect and harmful.

Policy Contentions

Appellant contends that the facts of Trey's case urge adoption of a subjective

intent standard. Appellant argues, "A child was convicted of felonies for statements

made in therapy, even though talking through one's feelings in counseling should be

encouraged .... [Trey] did exactly what a person should do when having frightening

thoughts: he was open about his feelings in therapy." Appellant's Suppl. Br. on Certified

Issue at 16-17. But talking through his feelings with his therapist is not what triggered

the involvement oflaw enforcement. That resulted from the totality of the circumstances.

See State v. C. G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003)(the nature of a threat

depends on all the facts and circumstances). Trey's statement, combined with his change

11 Both appellant and amicus rely on the fact that "several courts" after Black have applied a subjective intent standard. See Appellants's Suppl. Br. on Certified Issue at 4 (citing United States v. Heineman, 767 F.3d 970 (I Oth Cir. 2014); United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011); Brewington v. State, 7 N.E.3d 946 (Ind. 2014), cert. denied, 135 S. Ct. 970, 190 L. Ed. 2d 834, reh 'g denied, 135 S. Ct. 1524, 191 L. Ed. 2d 454 (2015)); see also Br. of Amicus ACLU at 5, 7. But this is the minority view. See, e.g., Heineman, 767 F.3d at 979 (aclmowledging that "[o]ther circuits have declined to read Black as imposing a subjective-intent requirement"). Appellant further notes that this court followed the Seventh Circuit when it initially adopted the objective (reasonable person) standard in Williams, and urges this court to again follow the Seventh Circuit decision in United States v. Parr, 545 F.3d 491 (7th Cir. 2008), to apply a subjective intent test under Black when assessing a true threat. Appellant's Suppl. Br. on Certified Issue at 11-12. But Parr is ambivalent. Parr acknowledged the "objective 'reasonable person' test" as the majority rule, that after Black some courts applied a subjective test for true threats, that courts disagreed as to whether Black changed the test for true threats, and noted that the impact of Black's plurality decision is "unclear." Parr, 545 F.3d at 499-500. Parr determined that it "need not resolve the issue" since the jury was instructed on intent as defendant requested. !d. at 500. Parr does not compel application of a subjective intent test as appellant suggests. 18 No. 92593-3

in demeanor, his detailed plan for killing the boys, and his lack of any sense that doing so

would be wrong convinced his therapist that his threat to kill the boys was serious and

warranted reporting to law enforcement. As noted, Deputy Boyer separately interviewed

Trey at length and was also convinced that his threat to kill the boys was serious. As this

court held in Schaler, whether defendant's statements "were serious threats and that a

reasonable speaker would so regard them, [or] ... a cry for help from a mentally troubled

[person], directed toward mental health professionals who could help him" is an

appropriate question for the fact finder. Schaler, 169 Wn.2d at 289-90; see Johnston, 156

Wn.2d at 365 (whether language constitutes a true threat is an issue of fact for the trier of

fact in the first instance). And as discussed below, the evidence was sufficient to sustain

Trey's conviction under RCW 9A.46.020.

Amicus adds that the impetuousness of youth, coupled with the availability of

social media, support adoption of a subjective standard so as to avoid unnecessary

convictions of juveniles. Br. of Amicus ACLU at 11-15. Amicus cites to State v.

Kohonen, 192 Wn. App. 567, 370 P.3d 16 (2016) as support, but Kohonen demonstrates

the appropriateness of Washington's reasonable person test in the very context that

amicus raises. In Kohonen, Court of Appeals, Division One, applied the reasonable

person standard to reverse a misdemeanor cyberstalking (RCW 9.61.260) conviction of a

high school student who sent "mean-spirited" tweets about a classmate. Id. at 583.

Division One described the tweets' content as "hyperbolic expressions of frustration,"

noted that the evidence showed defendant's peers interpreted the tweets as such, and held

19 No. 92593-3

that a reasonable person in defendant's position would not have anticipated that the

tweets would have been interpreted any differently. Id. Therefore, Division One held,

"[I]nsufficient evidence was presented that the tweets constituted true threats." !d.

Kohonen supports retention of Washington's reasonable person standard.

In sum (regarding the supplemental briefing on the certified question), Elonis is

significant for present purposes in what it does not say. It provides no First Amendment

true threat analysis. It resolved only how the federal threat statute, 18 U.S.C. § 875(c), is

to be statutorily construed and has no application beyond that context. As for Black, the

most that can be said is that courts remain divided after the Supreme Court's fractured

decision in that case. Accordingly, appellant and amicus have not shown clear error

warranting this court's abandonment of its First Amendment precedent.

(2) Sufficient evidence supports Trey's convictions for felony harassment under RCW 9A.46.020

Appellant contends that the State's evidence was insufficient to prove felony

harassment under RCW 9A.46.020 for each of his three convictions. "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).

Circumstantial evidence and direct evidence carry equal weight when reviewed by an

appellate court. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). A

reviewing court defers to the fact finder on issues of conflicting testimony, witness

credibility, and persuasiveness of the evidence. State v. Rodriquez, 187 Wn. App. 922,

930,352 P.3d 200, review denied, 184 Wn.2d 1011,360 P.3d 817 (2015).

20 No. 92593-3

This court has explained that the harassment statute

requires that the perpetrator lmowingly threaten to inflict bodily injury by communicating directly or indirectly the intent to inflict bodily injury; the person threatened must find out about the threat although the perpetrator need not !mow nor should know that the threat will be communicated to the victim; and words or conduct of the perpetrator must place the person threatened in reasonable fear that the threat will be carried out.

J.M., 144 Wn.2d at 482. Appellant specifically contends that the evidence did not show

that the victims feared that any threat to kill would be carried out, that any such fear was

reasonable, or that such fear was caused by Trey's words or conduct. Br. of Appellant at

15-21.

Here, each boy testified that when he heard that he was on Trey's "hit list," he was

"scared." 1 RP at 87, 91 (E.D.), 97, 105-07 (W.B.), 120-21 (G.C.). That is sufficient.

As to reasonableness of the fear, appellant argues that because the news of Trey's hit list

was not available until after he was in custody, any fear that the threat would be carried

out was not reasonable. But the record shows that each boy heard that he was on the hit

list before finding out that Trey was in custody. Id. at 94 (E.D), 104-06 (W.B.), 120-21

(G.C.). Thus, the reasonableness of such fear was a question for the trier of fact in light

of the total context. Finally, appellant argues that "[n]one of the three alleged victims

testified that they heard [Trey's] statements, either directly or indirectly." Br. of

Appellant at 19. But neither direct communication nor conveyance of Trey's exact words

was required. "The person to whom the threat is communicated may or may not be the

victim of the threat." J.M., 144 Wn.2d at 488. "[T]he person threatened must find out

about the threat although the perpetrator need not know nor should know that the threat

21 No. 92593-3

will be communicated to the victim." !d. at 482 (emphasis added). Drawing all

reasonable inferences in the favor of the State, the evidence was sufficient.

(3) Trey's statements qualify as true threats under Washington's reasonable person test

Relying on Kilburn, Trey asserts that his statements to his therapist were not true

threats under Washington's reasonable speaker standard. He argues that in Kilburn, the

alleged threat-that the speaker would '"bring a gun to school tomorrow and shoot

everyone'"-was spoken directly to a victim, but still found insufficient. Br. of

Appellant at 24 (quoting Kilburn, 151 Wn.2d at 39). Appellant argues that here, Trey's

statements were spoken to his therapist and were "more vague" as to timing than the

alleged threat in Kilburn. !d. at 25.

But the outcome in Kilburn turned on the speaker's demeanor. As the student

spoke the alleged threat to a classmate, he was "half smiling" and "giggling" afterward.

Kilburn, 151 Wn.2d at 52. Also, the victim's history with the speaker showed no basis or

rationale for the threat. They had known each other for two years and had never had a

fight or disagreement, and the speaker had "always treated [the victim] nicely." !d. By

contrast, Trey's demeanor here was not flippant. Trey's therapist testified that he grew

concerned as Trey's demeanor changed when he talked about killing the boys. Trey had

a detailed plan, specific targets, and a history with the targets of some teasing and

conflicts. Trey had been bullied at school and also had been suspended, which had upset

him.

22 No. 92593-3

Appellant argues that a person in Trey's position-a reasonable teenager making

statements to his therapist-would not foresee that the statements would be interpreted as

a serious threat. But here, Trey's change in demeanor when describing his plan to kill the

boys, the plan's depth of detail, and Trey's failure to acknowledge that shooting the boys

would be wrong all argue in favor of this being a true threat. Further, Trey repeated his

plan to kill the boys to Deputy Boyer, who also testified regarding the plan's depth of

detail, Trey's demeanor, and Trey's absence of misgivings about what he was planning.

Deputy Boyer testified that he "took it as a very credible threat due to [Trey's] detailed

plan and the very matter-of-fact nature of how he explained doing it and putting his plan

into action." 1 RP at 58. Trey told Deputy Boyer, "'I know right and wrong, but I'm

having a hard time wanting to do the wrong things."' Id. at 66.

Considering the entire context, a reasonable speaker in Trey's place would foresee

that Trey's statements concerning his plan to kill the boys would be interpreted by a

listener as a serious expression of intention to inflict bodily harm. In other words, Trey

uttered a true threat under Washington's objective (reasonable person) test. See Kilburn,

151 Wn.2d at 46.

Finally, while the affirmance of Trey's convictions is compelled for the reasons

discussed herein, we acknowledge that this case demonstrates the need to explore how

our criminal justice system responds to juveniles with mental health issues. Knowing

what we !mow about adolescent brain development, we must find alternative means for

managing their behavior and providing therapeutic treatment, instead of criminal

23 No. 92593-3

prosecution. Trey M is a juvenile in crisis, and our criminal justice system must find

ways to provide serious mental health care for such persons while holding them

accountable rather than simply placing them inside our revolving door criminal justice

system.

CONCLUSION

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.

Under Washington's objective (reasonable person) test, the trial court correctly

determined that the statements at issue here were true threats and that sufficient evidence

supports appellant's convictions. We affirm appellant's conviction for three counts of

felony harassment under RCW 9A.46.020.

24 No. 92593-3

WE CONCUR:

c )

25 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

No. 92593-3

GORDON McCLOUD, J. (dissenting)-A troubled and bullied young high

school student was in counseling to address trauma stemming from his childhood of

abuse and neglect. Following coaxing from his therapist to discuss his angry

thoughts and plans, and in the context of the therapist-patient relationship, he

disclosed his desire to violently harm three other students. Thereafter, a deputy

sheriff asked the young man to repeat what he had previously disclosed to the

therapist. The young man-Trey M.-did as he was told. There was no evidence

that Trey M. ever volunteered these statements without being coaxed by adults in

positions of authority; there was no evidence that Trey M. ever actually

communicated these statements to the three students directly; and there was no

evidence that Trey M. intended, desired, or knew that his coaxed disclosures of these

statements to responsible adults would be communicated to those three other

students indirectly. In fact, the trial court judge explicitly found that Trey M. told

the deputy sheriff "that he was having a hard time wanting to do the wrong

1 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

things." Clerk's Papers (CP) at 43 (Finding of Fact 1.10). Nevertheless, as a result

of following the instructions of the therapist and the deputy sheriff to put his

disturbing thoughts into words, Trey M. was charged with and convicted of three

cow1ts of felony harassment-for putting these thoughts into words.

I agree with the majority that these convictions were permissible under our

current precedent; we have interpreted the felony harassment statute, RCW

9A.46.020, to reach statements like Trey M.'s therapeutic disclosures. But the time

has come to abandon that precedent. To the extent that it allows felony convictions

for merely negligent speech, this precedent violates First Amendment protections,

conflicts with fundamental precepts of Anglo-American criminal justice, and-as

this case amply demonstrates-establishes bad policy. U.S. CONST. amend. I. I

therefore dissent.

Trey M. was convicted of violating RCW 9A.46.020(1)(a), which makes it a

felony to "knowingly threaten[] ... [t]o cause bodily injury immediately or in the

future to the person threatened or to any other person." (Emphasis added.) This

court's decisions in State v. J.M, 144 Wn.2d 472,482, 28 P.3d 720 (2001), and State

v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004), 1 severely limited the reach of the

1 Theparties and the majority also cite State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001), as the source of our "objective" test for knowing threats (i.e., threats 2 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

modifier "knowingly." Those cases held that to commit felony harassment, a person

must know he is communicating-that is, he may not be convicted for muttering a

threat under his breath or recording it in a private journal-but need not know or

intend that (1) this communication will actually reach the subject of the threat2 or (2)

the subject will actually feel threatened. 3 Accordingly, the majority in this case

upholds Trey M.'s convictions despite the absence of any evidence that Trey M.

knew or intended that the thoughts he put into words for his therapist would be

transmitted to the other students as threats. Majority at 21 ('"[T]he person threatened

must find out about the threat although the perpetrator need not !mow nor should

know that the threat will be communicated to the victim"' (quoting J.M, 144 Wn.2d

at 482)). For the reasons given infra, I conclude that we must overturn J.M and

Kilburn and reverse T.J.M.'s convictions.

that are constitutionally proscribable and covered by our felony harassment statute). Majority at 7-8. But I note that Williams quoted the objective standard only in dicta because it was not at issue in that case. 144 Wn.2d at 203-11 (holding that felony harassment statute was unconstitutionally vague and overbroad because it proscribed threats to harm a person's "mental health" but did not define that term). 2 J.M, 144 Wn.2d at 476-82. 3 Kilburn, 151 Wn.2dat46-48.

3 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

I. This court's decisions in JM and Kilburn violate the First Amendment protections implicitly recognized by the United States Supreme Court in Virginia v. Black4

Neither JM, nor Kilburn, nor any of our prior decisions interpreting the

felony harassment statute addressed the United States Supreme Court's decision in

Black, 538 U.S. 343. Trey M. argues that the First Amendment principles

recognized in that case require reversal of his convictions. He is correct.

The majority dismisses Black as a "fractured plurality decision ... [that]

provides no clear directive ... compel[ling] this court to abandon its precedent."

Majority at 16. I agree that Black is a complicated case: it generated four separate

opinions and a split among the federal courts of appeals. See discussion infra. But

I disagree that Black can be reconciled with Trey M. 's conviction, under a negligence

standard, for confiding in his counselor and law enforcement.

Black addressed a Virginia statute that criminalized cross burning '"on the

property of another, a highway or other public place"' done "'with the intent of

intimidating any person or group of persons."' 538 U.S. at 348 (lead opinion)

(quoting VA. CODE ANN. § 18.2-423). The statute also provided that "'[a]ny such

burning of a cross shall be prima facie evidence of an intent to intimidate."' !d.

(quoting VA. CODE ANN. § 18.2-423 ). In other words, the statute provided that the

4 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (plurality opinion). 4 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

act of burning a cross on public land, a highway, or the property of another triggered

a presumption that the statute's mens rea element-intent to intimidate-was

satisfied. At a trial for a violation of the statute, the defendant would have to rebut

this presumption (or raise a reasonable doubt as to the fact of cross burning on

property covered by the statute).

Eight justices agreed that this statute posed First Amendment problems 5-

they differed only as to the appropriate remedy for these problems. Of significance

here, five justices agreed that although a state may criminalize "cross burning with

intent to intimidate," 6 it may not make the act of cross burning sufficient, by itself,

to establish the prohibited intent. 7 These justices reasoned that if a jury was

5 Three justices would have invalidated the statute as impermissibly content based rather than impermissibly overbroad. I d. at 386-87 (Souter, J., concurring in the judgment in part and dissenting in part). And Justice Thomas would have upheld the statute on the basis that it prohibited conduct rather than speech. I d. at 394-95 (Thomas, J., dissenting).

6 ld. at 362 (lead opinion); see also id. at 368 (Stevens, J., concurring) ("[c]ross burning with 'an intent to intimidate,' Va. Code Ann. § 18.2-423 (1996), unquestionably qualifies as the kind of threat that is unprotected by the First Amendment"); id. at 368 (Scalia, J., concurring in part and dissenting in part) ("I agree with the Court that ... a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate.").

7 I d. at 365 (lead opinion) (concluding that the Virginia statute's "prima facie evidence" provision was unconstitutional because it facilitated the arrest, prosecution, and conviction of a person who burned a cross for political or cultural reasons instead of to intentionally intimidate), 368 (Stevens, J., concurring), 379 (Scalia, J., concurring in part and dissenting in part) (agreeing that Court must reverse conviction of defendant whose jury "was instructed that '[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent"' (alteration in original)). 5 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

permitted to convict on the basis of cross burning alone-and thus permitted to

ignore other evidence relating to the defendant's motives for burning the cross-

then the statute might sweep up constitutionally protected expression, which they

defined as expression that was not intended to intimidate: "Intimidation in the

constitutionally proscribable sense of the word is a type of true threat, where a

speaker directs a threat to a person or group of persons with the intent of placing the

victim in fear of bodily harm or death." ld. at 360 (emphasis added). Accordingly,

under Black, the First Amendment protects cross burning even when that act is

carried out-by someone with full knowledge of its historical and symbolic

significance-with the intent only to "creat[ e] anger or resentment" or unite "a group

oflike-minded believers." I d. at 366. 8 It makes no difference what effect the cross

burning actually has on anyone who witnesses it; the First Amendment protects that

form of expression provided it is not intended to intimidate.

8 Black, 538 U.S. at 365-66 (lead opinion) ("prima facie evidence" provision rendered Virginia statute facially overbroad because it "does not distinguish between a cross burning done with the [constitutionally protected] purpose of creating anger or resentment and a cross burning done with the [constitutionally proscribable] purpose of threatening or intimidating a victim"), 374 (Scalia, J., concurring in part and dissenting in part) (agreeing that the First Amendment prohibits the conviction of a person for cross burning without the intent to intimidate, but concluding that the number of such convictions likely to occur under the Virginia statute was too small to render the statute facially overbroad).

6 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

Unlike the majority, I am unable to conclude that Black protects cross burning

but not statements like Trey M. 's, made first in the context of mental health treatment

and then later repeated at the urging of a law enforcement officer.

To distinguish Black from this case, the majority relies on two sources of

authority: a footnote to this court's decision in State v. Schaler, 169 Wn.2d 274, 287

n.4, 236 P.3d 858 (2010), and Justice Thomas' lone dissenting opinion in Elonis v.

United States, __ U.S._, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015). Majority at 14-

16 . Neither suffices.

The Schaler note supports rather than undermines Trey M.' s reliance on

Black. In Schaler, a man in the throes of a mental breakdown called a crisis services

hotline and, crying hysterically, confessed that he had either killed his neighbors or

dreamed that he killed them. 169 Wn.2d at 278-80. After being involuntarily

committed to a mental health facility, the man, who had not in fact killed anyone,

continued to voice specific threats to kill his neighbors but "also said, 'I hope I didn't

really kill her."' !d. at 280. The State charged him with violating the antiharassment

statute at issue in this case (RCW 9A.46.020(1)(a)(i), (b), and (2)(b )). !d. at 281. At

trial, the man successfully requested a jury instruction requiring the State to prove

that he intended to communicate a threat, but the jury was not also instructed on the

definition of a "true threat," so this court reversed his conviction. !d. at 281-82, 288-

7 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

90. The defendant in Schafer did not challenge our objective definition of "true

threat," based on the reasonable person standard9-instead, he argued only that "[i]n

the context of his mental health evaluation ... his words were a cry for help, and a

reasonable person in his position would not foresee that a listener would take them

as a serious expression of intent to kill." !d. at 284. This court agreed and, having

no occasion to reconsider our objective standard, held that the jury in a harassment

trial must be asked "whether a reasonable person in [the defendant's] position would

foresee that his statements or acts would be interpreted as a serious expression of

intent to carry out the threat." !d. at 290. When the Schafer court addressed Black-

in the footnote relied on by the majority in this case-it was to point out that "the

law at issue in Black required an even greater mens rea as to the listener's fear" and

therefore supported reversal for a new, more defendant-protective jury instruction.

!d. at 287 n.4 (emphasis added). This "distin[ction]," as the majority calls it, 10

supports Trey M. 's position in this case, not the State's.

As for Justice Thomas' dissent in Elonis-an opinion that no other justice

signed-it cannot substitute for our own analysis of the Black decision itself. The

9 Pet. for Review, State v. Schafer, No. 81864-9, at 13 (Wash. Aug. 19, 2008) (conceding that "[t]he true threat test is determined under an objective standard that focuses on the speaker" (citing Kilburn, 151 Wn.2d at 44)). 10 Majority at 14.

8 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

majority eschews any such analysis in favor or Justice Thomas' assertion that Black

'"says little"' about the constitutional question presented here. Majority at 15

(quoting Elonis, 135 S. Ct. at 2027) (Thomas, J., dissenting)). But for all of the

reasons outlined above, this assertion is untenable.

Finally, it is true that a majority of the lower federal appellate decisions

addressing the question-all decisions interpreting 18 U.S.C. § 875(c), the federal

antithreat statute at issue in Elonis, 135 S. Ct. 2001-have rejected Trey M.'s

reading of Black. Majority at 17. But those decisions are wrong. They begin and

end with the observation that the Black Court "had no occasion" to impose a

subjective intent requirement on "threat-prohibiting statutes" since the Virginia

statute at issue already had such a requirement. United States v. Jeffries, 692 F.3d

473,477-81 (6th Cir. 2012), abrogated by United States v. Houston, 792 F.3d 663,

667 (6th Cir. 2015); see also United States v. Clemens, 738 F.3d 1, 11 (1st Cir. 2013)

(plain error review; citing Jeffries, 692 F.3d at 478, 480); United States v. Nicklas,

713 F.3d 435, 439-40 (8th Cir. 2013) (citing Jeffries, 692 F.3d at 479-80); United

States v. Martinez, 736 F.3d 981, 986-87 (11th Cir. 2013) (citing Jeffries, 692 F.3d

at 478-80), vacated, 135 S. Ct. 2758 (2015); United States v. Elonis, 730 F.3d 321,

331 (3d Cir. 2013) (citing Jeffries, 692 F.3d at 483), rev'd, 135 S. Ct. 2001. That

may be true as far as the statute at issue was concerned, but it fails to acknowledge

9 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

the Black Court's actual analysis, which treated the statute's subjective intent

element as required by the First Amendment. See discussion supra. Two circuit

courts have recognized this implied holding in Black, 11 and a third has endorsed this

view without reaching the question. 12 These courts have adopted the correct

interpretation of Black; we should do the same.

II. This court's decisions in J.M and Kilburn also violate the principle, applied in Elonis, that "wrongdoing must be conscious to be criminal"

While Black alone compels us to reverse Trey M. 's conviction, reversal is also

supported by the United States Supreme Court's recent decision in Elonis, 135 S.

Ct. 2001. As noted above and by the majority, Elonis addressed 18 U.S.C. § 875(c),

the federal statute "mak[ing] it a crime to transmit in interstate commerce 'any

communication containing any threat ... to injure the person of another,"' 135 S.

Ct. at 2004 (second alteration in original) (quoting 18 U.S.C. § 875(c)); majority at

10-11. Applying the principle-rooted in common law notions of basic justice-

11United States v. Heineman, 767 F.3d 970,976-82 (lOth Cir. 2014) (holding, after long discussion of the various opinions in Black, that that case "establish[ed] that a defendant can be constitutionally convicted of making a true threat only if the defendant intended the recipient of the threat to feel threatened"); United States v. Bagdasarian, 652 F.3d 1113, 1116-18 (9th Cir. 2005) (Black requires that federal statute be construed to require proof of subjective intent to threaten). 12 United States v. Parr, 545 F.3d 491, 499-500 (7th Cir. 2008) (declining to reach the question but opining that after Black, "[i]t is ... likely ... that an entirely objective definition [of 'true threat'] is no longer tenable").

10 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

that "'wrongdoing must be conscious to be criminal,"' 13 the Elonis Court read an

actual (subjective knowledge) requirement into 18 U.S.C. § 875(c). 135 S. Ct. at

2010. This requirement-that the govermnent must prove an "evil mind" before

imposing the stigma and disabilities of a felony conviction-stands at the heart of

the United States' conception of criminal justice. Staples v. United States, 511 U.S.

600, 605, 114 S. Ct. 1793, 128 L. Ed. 2d 608 ( 1994) ('" [t]he existence of a mens rea

is the rule of, rather than the exception to, the principles of Anglo-American criminal

jurisprudence"' (alteration in original) (quoting United States v. US. Gypsum Co.,

438 U.S. 422, 436, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1952))).

The majority distinguishes Elonis on the ground that 18 U.S.C. § 875(c) "is

silent on the scienter required to commit the offense." Majority at 11. According to

the majority, Washington's felony harassment statute is not similarly "silent"-and

thus does not trigger the rule of statutory construction applied in Elonis-because it

penalizes a person who "'knowingly threatens"' another. Majority at 12 (quoting

RCW 9A.46.020(1)(a)). But this distinction begs the question presented in this case:

What must a defendant "know" in order to trigger liability under the felony

harassment statute? And with respect to that question, Elonis is directly on point. It

holds that in the context of threat prosecutions, the knowledge separating innocent

13 Elonis, 135 S. Ct. at 2009 (quoting Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct. 240, 96 L. Ed. 2d 288 (1952)). 11 State v. Trey lvf., No. 92593-3 (Gordon McCloud, J., dissenting)

from wrongful conduct is the defendant's actual "knowledge thatthe communication

will be viewed as a threat," Elonis, 135 S. Ct. at 2012:

The "presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct." [United States v.] X-Citement Video, 513 U.S. [64,] 72[, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994)] (emphasis added). The parties agree that a defendant under Section 875(c) must lmow that he is transmitting a communication. But communicating something is not what makes the conduct "wrongful." Here "the crucial element separating legal innocence from wrongful conduct" is the threatening nature of the communication. Id., 115 S.Ct. 464 at 73. The mental state requirement must therefore apply to the fact that the communication contains a threat.

I d. at 2011. The Court has consistently applied this presumption when interpreting

statutes that, like Washington's felony harassment law, penalize "knowing"

conduct. 14

14 E.g., Flores-Figueroa v. United States, 556 U.S. 646, 647, 652, 129 S. Ct. 1886, 173 L. Ed. 2d 853 (2009) (identity theft statute required government to prove defendant "knew that the 'means of identification' he or she unlawfully transferred, possessed, or used, in fact, belonged to 'another person'" because "courts ordinarily read a phrase in a criminal statute that introduces elements of a crime with the word 'lmowingly' as applying that word to each element" (quoting 18 U.S.C. § 1028A(a)(l))); X-Citement Video, 513 U.S. at 67-68 (even though most natural reading of child pornography statute indicated that government need prove only defendant !mew he transported, shipped, received, or distributed the prohibited materials, Court would construe statute so as to apply the modifier "lmowingly" to the nature ofthe materials-i.e., the fact that they depicted minors engaging in sexually explicit conduct); see also McFadden v. United States, _U.S. -~' 135 S. Ct. 2298, 2303-06, 192 L. Ed. 2d 260 (2015) ("the most natural reading" of statute making it a crime '"knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance"' requires government to prove "that the defendant lmew he was dealing with 'a controlled substance'" (quoting 21 U.S.C. § 84l(a)(l))).

12 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

Finally, I note that although Elonis did not reach any First Amendment

question-and thus did not explicitly state that a true threat requires subjective intent

under Black-it did abrogate all ofthe federal decisions (discussed above) reaching

the contrary conclusion. 15 As a result, only one interpretation of 18 U.S.C. §

875(c)--the federal threat statute at issue in all of those cases-survives today: the

interpretation that avoids the First Amendment problem posed by criminalizing

speech that is merely negligent.

III. To the extent that they allow felony convictions for merely negligent speech, J.M and Kilburn are incorrect and harmful

Before we may overturn our own precedent, there must be a clear showing

that that precedent is both incorrect and harmful. In re Rights to Waters of Stranger

Creek, 77 Wn.2d 649,653, 466 P.2d 508 (1970). For all of the reasons given above,

I conclude that our decisions in .J.M and Kilburn are incorrect. To the extent that

those decisions permit felony harassment convictions for merely negligent speech,

they violate the First Amendment protections recognized in Black, 538 U.S. 343,

15 Martinez v. United States,_ U.S._, 135 S. Ct. 2798, 192 L. Ed. 2d 842 (2015) (vacating and remanding to the Court of Appeals for further consideration in light of Elonis); United State v. White, 810 F.3d 212, 220 (4th Cir. 2016) ("Elonis abrogates our prior holding that liability under [18 U.S.C.] § 875(c) can turn solely on how a recipient would interpret a statement, without regard to whether the speaker intended it as a threat"); Houston, 792 F.3d at 667 (holding thatJeifries has been abrogated by Elonis); Nicklas, 713 F.3d at 440 (no First Amendment error in permitting conviction, under 18 U.S.C. § 875(c), according to negligence standard); Clemens, 738 FJd at 11 (not plain error to permit conviction, under 18 U.S.C. § 875( c), according to objective negligence standard). 13 State v. Trey M., No. 92593-3 (Gordon McCloud, J., dissenting)

and the principle of statutory construction applied in Elan is, 135 S. Ct. 2001. I also

conclude that JM. and Kilburn are clearly harmful for two reasons.

First, J.M. and Kilburn infringe a constitutional protection. We have

previously held that such infringement constitutes "harm" sufficient to overcome the

mle of stare decisis. State v. WR., 181 Wn.2d 757, 769, 336 P.3d 1134 (2014)(prior

precedent harmful because it violated due process protections); State v. Barber, 170

Wn.2d 854, 871, 248 P.3d 494 (2011) (prior precedent harmful because it offended

separation of powers principles).

Second, we have found precedent clearly harmful where it creates significant

policy problems. Barber, 170 Wn.2d at 871 (collecting cases). JM. and Kilburn

certainly fit this bill, as illustrated by their application to the facts in this case.

At Trey M.'s sentencing hearing-a proceeding at which every speaker

expressed concern and compassion for Trey M.-the judge imposed probation with

several conditions, including that Trey M. continue to participate in mental health

treatment. 3 Report of Proceedings (Dec. 19, 2014) at 262-63. When she imposed

that sentence, the judge strnggled to explain to Trey M. why he was being punished

for the things he had previously said to his therapist and how he should proceed in

future therapy sessions:

Well, this is a difficult, sad case. It's obviously been horrible for everybody, including Trey [M.]. And I think Trey[ M.]'s learned that

14 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

you can't make a plan to kill people and tell anybody about it, including your therapist. But on the other hand, you shouldn't be thinking that way. So that's the problem.

. . . And I think that your mind is unhealthy at this time. I understand that.

... On the one hand, people should feel safe to make comments to a therapist in a therapeutic setting; on the other hand, this just went over-- over the line. So ... [your therapist] felt that he had to report it. He was concerned enough that he reported it and, basically, things snowballed and a lot of people found out about it and it became very, very frightening for a lot of people .

. . . Everybody has thoughts like you have. Some of them are spoken and some of them are unspoken, but we all do the best we can to make sure that other people aren't afraid of what we say, okay?

Id. at 257-61.

The judge's advice is consistent with our holdings in JM and Kilburn-it

warns Trey M. that he faces criminal sanction as a felon for therapeutic disclosures

that are "over the line," regardless of his criminal intent. I d. at 259. Under JM and

Kilburn then, Trey M. must censor himself when he returns to therapy. Because this

outcome is as frightening and counterproductive as it is unconstitutional, I would

overturn those cases.

IS State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)

Imposing felony criminal liability for Trey M.' s disclosures-disclosures that

were requested by adults in positions of authority-contradicts controlling United

States Supreme Court precedents. It undermines constitutional rights, flouts the

plain language of the felony harassment statute, and risks undermining attempts to

achieve the trust necessary to address juvenile mental health issues. It also opens

the floodgates to prosecutions for harsh language that the speaker did not intend to

be frightening in other areas, like the political context. For all of these reasons, I

respectfully dissent.

16 State v. Trey M, No. 92593-3 (Gordon McCloud, J., dissenting)