State Of Washington v. Eric S. Freeman ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 67829-9-1
Respondent,
DIVISION ONE
v.
ERICS. FREEMAN, UNPUBLISHED OPINION
Appellant. FILED: March 4, 2013
Becker, J. — Eric Freeman, a homeless veteran, was convicted of three
counts of felony harassment at a bench trial, based on threats he made to
workers at a homeless service center. Findings of fact and conclusions of law
were not entered until 10 months later and were not designated to the appellate
record until long after appellate briefs were filed. Because the late entry of r-o . j
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findings and conclusions prejudiced the defendant and hampered appellate <~k3
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review, we reverse.
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BACKGROUND CD t.j2013 WL
259383, at *8 (Wash. Jan. 24, 2013). Following Allen, we reject Freeman's first
assignment of error.
SUFFICIENCY OF THE EVIDENCE
Freeman's second assignment of error is insufficiency of the evidence.
Among other things, he contends the State failed to present sufficient evidence
that he uttered a true threat to kill.
67829-9-1/6
Review of this argument is hampered because of the belated entry of the
findings of fact. Under the rules of criminal procedure, written findings of fact and
conclusions of law are to be entered at the conclusion of a bench trial. CrR
6.1(d); State v. Head, 136 Wn.2d 619, 621-22, 964 P.2d 1187 (1998). The
purpose of the rule is to enable the appellate court to review the questions raised
on appeal. Head, 136 Wn.2d at 622. "An appellate court should not have to
comb an oral ruling to determine whether appropriate 'findings' have been made,
nor should a defendant be forced to interpret an oral ruling in order to appeal his
or her conviction." Head. 136 Wn.2d at 624.
Normally, the appellate court will remand a case for entry of findings, as
was done in Head with the Supreme Court refusing the State's request to make
do with the oral ruling. Here, we do have findings, but they were not entered until
August 2012, after the appellate briefing was virtually complete. And they were
not made part of the appellate record for nearly six months, in February 2013,
very close to the hearing date.
Where findings are entered belatedly, reversal may be appropriate where
a defendant can demonstrate actual prejudice, for example where there is a
strong indication that the findings ultimately entered have been tailored to meet
issues raised on appeal. Head, 136 Wn.2d at 624.
To convict Freeman of felony harassment under RCW 9A.46.020, the
court needed to find that Freeman knowingly made a threat to kill and that the
fear experienced by the center employees was of the same threat. State v. C.G.,
150 Wn.2d 604, 609, 80 P.3d 594 (2003). A threat to kill, as opposed to a threat
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of bodily injury, provides the critical distinction in this case between felony
harassment and the gross misdemeanor of harassment. RCW 9A.46.020(2)(a);
(2)(b)(ii). The last words of Freeman's closing argument were a request that the
trial court find him guilty only of a gross misdemeanor if it found him guilty at all.
The nature of a threat "depends on all the facts and circumstances, and it
is not proper to limit the inquiry to a literal translation of the words spoken." C.G.,
150Wn.2dat611.
The trial court's oral ruling did not resolve the nature of the threat. The
trial judge found generally that Freeman's statements were "true threats," but he
did not classify them as threats to kill:
In my opinion the facts of this case, when everything is considered,
indicate clearly that the statement made, statements made by Mr.
Freeman were indeed true threats. They were not jokes, idle talk or
hyperbole; that he meets the standard of, at the very least,
negligently making these statements, and they, at the very least,
making these statements. That a reasonable person would believe
that they were true threats and specifically that a reasonable
person in the defendant's place would foresee in that context a
listener would interpret them as a serious threat, not a joke. There
is no evidence that they were a joke as I said a little bit earlier.
So on counts 1, 2 and 3, I will find Mr. Freeman guilty.
Among the seventeen findings of fact the trial court entered 10 months
later, the closest approximation to a finding that the nature of the threat was a
threat to kill is finding of fact 17: "The defendant, in his position, could foresee
that the context of his statements would be interpreted as a serious threat to kill
and not a joke." (Emphasis added.) Conclusions of law 1 and 2 state that
Freeman "knowingly threatened to kill" the three workers and that his words or
conduct placed them "in reasonable fear that the threats to kill would be carried
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out." These are among the recently designated findings and conclusions to
which Freeman has made supplemental assignments of error.
Finding of fact 17, by adding the words "to kill," resolves a factual issue
that the court did not resolve at the time of trial. We do not question the trial
prosecutor's statement that she prepared the findings without reading the brief of
appellant, but the addition of "to kill" suggests tailoring of the findings to fill in the
gaps in the trial court's oral ruling. The oral ruling did not explain why the
conviction was for a felony, requiring a true threat to kill. Freeman's statement
that he was going to get a gun and come back and shoot everyone is not self-
evidently a true threat, let alone a true threat to kill. See State v. Schaler, 169
Wn.2d 274, 289, 236 P.3d 858 (2010) (defendant's statements about wanting to
kill his neighbors were not utterances that "unequivocally lead to a finding of a
true threat"). This situation illuminates the reason for the requirement in CrR
6.1(d) to enter findings and conclusions at the time of trial. "A prosecuting
attorney required to prepare findings and conclusions will necessarily need to
focus attention on the evidence supporting each element of the charged crime,
as will the trial court." Head, 136 Wn.2d at 622.
Freeman is prejudiced by the delay and apparent tailoring because he has
not had an opportunity to brief his assignments of error to the written findings.
The prejudice is pronounced because the harassment statute criminalizes pure
speech, and core First Amendment protection is implicated. State v. Kilburn, 151
8
67829-9-1/9
Wn.2d 36, 48-49, 84 P.3d 1215 (2004).
In briefing the issue of sufficiency of the evidence, the State relies on the
usual deferential standard for testing the sufficiency of the evidence on appeal in
a case tried to a jury, as stated in State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). That is not the appropriate standard to use when the question is
whether a statement falls within the ambit of a true threat. Kilburn, 151 Wn.2d at
49. The failure to identify and brief the appropriate standard of review is another
deficiency that hampers appellate review.
Under Kilburn, a threat is unprotected only if it constitutes a "true threat."
Kilburn, 151 Wn.2d at 43, 52. A true threat is a statement made in a context or
under such circumstances wherein a reasonable speaker 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. Kilburn, 151 Wn.2d at 43.
This is a test that focuses on the speaker's objective intent; it does not depend
on what the speaker subjectively intended. Kilburn. 151 Wn.2d at 44-45.
Here, neither the oral ruling nor the written findings identify the crucial
facts tending to prove that a person in Freeman's position would foresee that his
remarks would be taken seriously. In closing argument, the State's sole
comment bearing on this point was that Freeman did not testify that he was
joking. The trial court's oral ruling ratified the State's cursory analysis of
Freeman's statements: "They were not jokes, idle talk or hyperbole."
One of the recently entered findings goes beyond the oral ruling and
states, "There was no evidence that the defendant's statements were made as a
67829-9-1/10
joke or 'blowing off steam.'" Finding of Fact 18 (emphasis added). Freeman has
timely made a supplemental assignment of error to this finding also, and is
prejudiced by his lack of opportunity to brief it. While there is no evidence that
Freeman was joking, there was evidence that he was blowing off steam in
response to getting the cold shoulder from an agency that purportedly was there
to offer help. Flores testified that Dolin's conversation with Freeman became a
shouting match, with Dolin shouting back at Freeman when Freeman raised his
voice. Dolin himself testified that Freeman appeared to be expressing frustration
in general rather than directing his anger at Dolin personally.
We grant the State's motion to supplement the record with the written
findings and conclusions. However, even when supplemented, the record does
not establish that the prosecution for felony harassment was fully adjudicated at
trial by the finder of fact. Critical factual issues such as the nature of the threat
were not resolved until written findings were entered 10 months after the trial,
and even the written findings are too conclusory to facilitate appellate review.
The delays and apparent tailoring have prejudiced Freeman's ability to argue
insufficiency of the evidence to prove a true threat to kill.
The convictions for felony harassment are reversed.
WE CONCUR:
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