State of Washington v. Keith Eric Brier ( 2018 )

FILED
SEPTEMBER 25, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34635-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
KEITH ERIC BRIER, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Keith Brier appeals after a trial court found him
guilty of felony harassment. He raises several arguments, including that the State failed
to prove beyond a reasonable doubt that a victim feared his threat to kill would be carried
out. We agree and therefore reverse his conviction.
FACTS
Mr. Brier received a $1,000 fine for various traffic infractions. Soon after, he
posted a comment on the Tri-Cities “Rants and Raves” section of Craigslist. The
pertinent portion of the comment reads:
No. 34635-8-III
State v. Brier
I got pulled over on Garfield st in Kennewick for a broken tail light lens.
The cop gave me a ticket for everything he could find and then said he was
giving me a break because he did not write me for the broke lens. So I have
a old truck that is for dump runs only, it doesn’t get drove ever so it’s not
registered and I don’t carry any paper work in it. The tickets are 1000
dollars plus. WOW. Thanks for the break. I don’t have the money, we
barely make our bills and sometimes we don’t make them. So when those
tickets go to warrant this will be dealt with in a 2nd amendment fashion.
When the people lose everything they lose it.
Clerk’s Papers (CP) at 36.
Two days later, Mr. Brier added to his post:
Let me be clear! The next time I have a interaction with law enforcement
their will be at least one dead cop. If I get the chance to take a few more I
will. I know that I will die and I am ok with that, we all die it’s just a
matter of how. As for that one innocent cop who may get
it. . . . Well I’ll give you a break, only a gut shot instead of the head.
Sounds fair after the break you guys gave me.
CP at 36. An anonymous source reported the posts to the Kennewick Police Department.
Law enforcement eventually spoke with Mr. Brier, and he admitted that he had made the
posts, but claimed he was only venting his frustrations. The State charged Mr. Brier with
felony harassment—threat to kill.
Prior to trial, Mr. Brier sought to dismiss the charge pursuant to State v. Knapstad,
107 Wash. 2d 346, 729 P.2d 48 (1986). He argued that the threat was not a true threat and
that the threat did not have a target or victim. The trial court denied the motion. With
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No. 34635-8-III
State v. Brier
respect to the argument that the threat did not have a target, the trial court construed the
target as the Kennewick Police Department.
The case proceeded to a bench trial. The State called three Kennewick law
enforcement officers who had read Mr. Brier’s posts. Pertinent to this appeal, the State
asked those officers whether Mr. Brier’s second post caused them to be concerned about
officer safety. All three officers testified that it did. No officer explicitly testified that he
feared Mr. Brier’s threat to kill would be carried out.
After the State rested, Mr. Brier moved to dismiss on the basis that the State had
failed to present any evidence that a victim reasonably believed the threat to kill would be
carried out. The trial court denied the motion, believing the officers’ testimonies that they
were concerned for officer safety was sufficient.
After closing arguments, the trial court made its ruling. It discussed the evidence,
the elements of proof, found that the State had proved the necessary elements beyond a
reasonable doubt, and adjudged Mr. Brier guilty of felony harassment. Mr. Brier
appealed.
Because we were unable to decide the issues based on the trial court’s oral ruling,
we remanded for the trial court to enter findings of fact and conclusions of law. Pertinent
to the dispositive issue, the trial court entered the following findings and conclusions:
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No. 34635-8-III
State v. Brier
FINDINGS OF FACT
....
2. Detective Ron Salter of the Kennewick Police department observed
the post on Craigslist and had concerns regarding the safety of law
enforcement.
3. Detective Kirk Isakson observed the post and believed that the post
was a threat to law enforcement and placed a teletype for Eastern
Washington for officer safety concerns.
....
6. Detective Maynard believed the posts were a threat to law
enforcement.
CONCLUSIONS OF LAW
....
3. The defendant must by words or conduct place the person threatened
in reasonable fear that the threat will be carried out.
4. The statement [made in the second post] would place a reasonable
person in fear that the threat would be carried out.
....
8. While the evidence does not connect the threat to a particular person,
it does not undermine the element that the officers were in reasonable fear.
CP at 89-90.
ANALYSIS
INSUFFICIENT FINDINGS TO CONVICT
Mr. Brier contends the trial court’s findings are insufficient to sustain his
conviction. We agree.
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State v. Brier
“[A]n essential of the due process guaranteed by the Fourteenth
Amendment [is] that no person shall be made to suffer the onus of a
criminal conviction except upon sufficient proof—defined as evidence
necessary to convince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense.”
State v. Hummel, 196 Wash. App. 329, 352, 383 P.3d 592 (2016) (alterations in original)
(quoting Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)).
To prove felony harassment—threat to kill, the State was required to prove three
elements beyond a reasonable doubt: (1) without lawful authority, (2) the defendant
knowingly threatened to kill some other person immediately or in the future, and (3) the
defendant’s words or conduct placed the person threatened in reasonable fear that the
threat to kill would be carried out against him or her. RCW 9A.46.020(1)(a)(i), (1)(b),
(2)(b)(ii)1; see State v. C.G., 150 Wash. 2d 604, 607, 80 P.3d 594 (2003). The third element
has both a subjective and an objective component. The subjective component requires the
threatened person be placed in fear that the threat to kill would be carried out. The
objective component requires that such person’s fear be reasonable.
1
The State did not charge Mr. Brier with threatening a criminal justice participant
under RCW 9A.46.020(2)(b)(iv), which would not require a threat to kill.
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State v. Brier
Here, the trial court did not find that one or more Kennewick police officers feared
that the threat to kill would be carried out. 2 Nor did the trial court find that the State
proved this subjective component beyond a reasonable doubt. The failure to enter such
findings signifies a failure of proof. We therefore reverse Mr. Brier's conviction.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
2
Conclusion 8 can be construed as a finding that the officers were fearful. Being
fearful is insufficient. The third element requires the person threatened be fearful that the
threat to kill would be carried out. C. G., 150 Wash. 2d at 607-08 (emphasis added).
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