State Of Washington v. Bee Thow Saykao ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 73250-1-1
)
Respondent, )
)
v. )
)
BEE THOW SAYKAO, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: June 6,2016
)
Verellen, C.J. — Bee Saykao appeals his conviction for felony harassment of a
criminal justice participant. Challenging this court's decision in State v. Boyle,1 he
argues the State was required but failed to prove that criminal justice participant
Kathleen Johnson reasonably believed Saykao had the present and future ability to
carry out his threat. Because we agree with this court's decision in Boyle, we reject
Saykao's argument.
Saykao also argues that there was insufficient evidence but, viewed in the light
most favorable to the State, the record supports Saykao's ability to carry out his threat
in the future. Therefore, we affirm.
FACTS
On July 29, 2014, Bee Saykao went to community corrections supervisor
Kathleen Johnson's office to retrieve his backpack after being released from custody.
183 Wn. App. 1, 335 P.3d 954 (2014), review denied. 184 Wn.2d 1002 (2015).
No. 73250-11/2
Saykao became upset after discovering that his cigarettes were missing. After
Johnson's attempts to calm Saykao failed, she asked him to leave. Community
corrections officers Doug Daviscourt and Daniel McDonagh escorted Saykao towards
the exit of the building.
As Saykao walked away, Johnson asked him whether he knew his next report
date. Saykao replied, "I'm not coming back."2 When Johnson told him that was his
choice, Saykao turned back towards her and stated, "Ifyou don't shoot me, I will shoot
you."3
Johnson went into "a state of shock" after hearing Saykao's threat.4 During her
29-year career with the Department of Corrections, she had only been threatened once,
27 years ago in a phone call. Johnson was not worried that Saykao would carry out his
threat instantaneously because he was being escorted out by two community
corrections officers, but she was concerned that once she left the building, she would be
"findable."5
The State charged Saykao with felony harassment of a criminal justice
participant under RCW 9A.46.020(2)(b). The jury convicted Saykao as charged.
Saykao appeals.
ANALYSIS
Saykao challenges this court's reading of RCW 9A.46.020(2)(b) in Boyle, arguing
that "a threat is insufficient to convict for felony harassment of a criminal justice
2 Report of Proceedings (RP) (Mar. 2, 2015) at 153.
4 Id, at 154.
5 Id. at 175.
No. 73250-11/3
participant if it is apparent to the criminal justice participant that the person making the
threat does not have both the present and future ability to carry out the threat."6 His
argument fails.
We review questions of statutory interpretation de novo.7 Our primary objective
in interpreting a statute is to ascertain and carry out the legislature's intent.8 "To
determine legislative intent, we first look to the plain language of the statute considering
the text of the provision in question, the context of the statute, and the statutory scheme
as a whole.'"9 "Ifthe statute is unambiguous after a review of the plain meaning," our
inquiry ends.10 This court presumes "the legislature does not intend absurd results."11
Under RCW 9A.46.020(1), a defendant is guilty of harassment if, without lawful
authority, he or she "knowingly threatens" to "cause bodily injury immediately or in the
future to the person threatened or to any other person" and "by words or conduct places
the person threatened in reasonable fear that the threat will be carried out." The
offense is elevated to a felony under RCW 9A.46.020(2)(b) if
(iii) the person harasses a criminal justice participant who is performing his
or her official duties at the time the threat is made; or (iv) the person
harasses a criminal justice participant because of an action taken or
decision made by the criminal justice participant during the performance of
his or her official duties. For the purposes of (b)(iii) and (iv) of this
subsection, the fear from the threat must be a fear that a reasonable
criminal justice participant would have under all the circumstances.
Threatening words do not constitute harassmentifitis apparent to the
6 Appellant's Br. at 6.
7 State v. Evans. 177Wn.2d 186, 191, 298 P.3d 724 (2013).
8 State v. Veliz. 176 Wn.2d 849, 854, 298 P.3d 75 (2013).
9 State v. Reeves. 184 Wn. App. 154, 158, 336 P.3d 105 (2014) (quoting State v.
Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013)).
10 State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010).
11 State v. Ervin, 169 Wn.2d 815, 823, 293 P.3d 354 (2010).
No. 73250-11/4
criminaljustice participant that the person does not have the present and
future ability to carry out the threats
In Boyle, this court addressed an argument nearly identical to Saykao's: that the
last sentence in RCW 9A.46.020(2)(b) "clearly states that threatening words only
constitute harassment if it is apparent to the criminal justice participant that the
defendant has the present and future ability to carry them out."13 In Boyle, the
defendant was handcuffed when he told a police officer that someone would kill him and
his family.14 Boyle argued that the jury should have been instructed that the State had
to prove both a present and future ability to carry out the threat.15 The Boyle court
determined that Boyle misread the statute: "To the contrary, as the trial court stated,
'[Tjhis sentence is phrased as an exception, not as an element.'"16 Therefore, the court
concluded that statements to a criminal justice participant constitute felony harassment
if it is apparent to the participant that the speaker had either the present or future ability
to carry out the threat.17 The court noted that this interpretation was consistent with the
definition of "harassment" under RCW 9A.46.020(1), which includes threats to cause
bodily injury "immediately or in the future."18
2 RCW 9A.46.020(2)(b) (emphasis added).
3 Bovle. 183 Wn. App. at 11.
4 \± at 5.
5 jd, at 11.
6 Id. (alteration in original).
7 \±
8 Id.
No. 73250-11/5
Saykao challenges this court's decision in Boyle.19 He argues that because the
language at issue in RCW 9A.46.020(2)(b) is "negatively phrased," it should be
"interpreted to impose an affirmative burden of proof on the State."20 We conclude the
legislature did not intend that we delete both of the "nots" from the critical sentence to
arrive at the inverse statement that threatening words constitute harassment only if the
person has both the present and future ability to carry out the threat. We decline to infer
the inverse of a double negative statement in a statute.21
Accordingly, we agree with this court's interpretation of RCW 9A.46.020(2)(b) in
Boyle. Saykao's argument fails.
19 The parties briefed the incorrect and harmful standard for overruling prior
decisions. We note that, consistent with Grisbv v. Herzoq. the standard for determining
whether to follow a prior decision in the Court of Appeals does not require a showing
that the prior decision is both incorrect and harmful. 190 Wn. App. 786, 806-10, n.6,
362 P.3d 763 (2015) ("it is not obligatory for this court to use, or for parties to brief in
this court, a standard developed by the highest state court for its own use in determining
whether to overrule one of its own decisions").
20 Reply Br. at 2.
21 See Washington Fed, v. Gentry, 179 Wn. App. 470, 483-85, 319 P.3d 823(2014) review granted sub nom. Washington Fed, v. Harvey, 180Wn.2d 1021, 328 P.3d
902 (2014) and aff'd sub nom. Washington Fed, v. Harvey. 182 Wn.2d 335, 340 P.3d
846 (2015) ("Moreover, the Gentrys' interpretation of RCW 61.24.100(10) is the inverse
of what the plain language says. We also decline to add the inverse to the statute when
the Legislature did not expressly do so [Such a reading] is grounded in a logical
fallacy. 'The proposition that "A implies B" is not the equivalent of "non-A implies non-
B," and neither proposition follows logically from the other.'"); see also Roe v. TeleTech
Customer Care Mgmt. (Colorado) LLC. 171 Wn.2d 736, 748 n.4, 257 P.3d 586 (2011)
(explaining "it is logically invalid to adopt as a conclusion the contrapositive (employers
are required to accommodate off-site use)") (citing Ruggero J. Aldisert, Logic for
Lawyers: A Guide to Clear Legal Thinking 156-58 (3d ed. 1997)); Doug Karpa, Loose
Canons: The Supreme Court Guns for the Endangered Species Act in National
Association of Home Builders v. Defenders of Wildlife. 35 Ecology L.Q. 291, 322 &
n.194 (2008) ("Given a proposition, 'if A then B,' only the contrapositive, 'if not B then
not A,' is a valid inference. Here the court attempts to infer the inverse, 'if not A then not
B' from section 402.03—an invalid inference.").
No. 73250-11/6
Saykao also argues that there was insufficient evidence to convict him because
he "lacked the present ability to carry out the threat."22 Because the State is not
required to prove that the speaker had the ability to carry out the threat both
immediately and in the future, sufficient evidence supports the conviction.
A challenge to the sufficiency of the evidence admits the truth of the State's
evidence, and all reasonable inferences from the evidence must be drawn in favor of
the State and interpreted most strongly against the defendant.23
Johnson was afraid of potentially being assaulted on her way to and from work or
at home. Although she was not worried that Saykao would carry out his threat
instantaneously, she was concerned that once she left the building she would be
"findable."24
Therefore, sufficient evidence supports Saykao's conviction for felony
harassment of a criminal justice participant.
Affirmed.
WE CONCUR:
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22 Appellant's Br. at 18.
23 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
24 RP (Mar. 2, 2015) at 163, 175.