State v. Hanson , 126 Wash. App. 276 ( 2005 )

¶18 (dissenting) — The crime of felony harassment requires proof of a direct or indirect communication of the intent to cause bodily injury that placed the victim in reasonable fear the threat would be carried out. RCW 9A.46.020(l)(a)(i), (b); RCW 9A.04.110(25)(a). A “threat” is an essential element. The substance of the threat alleged to have been communicated is essential to determine if it is a “true threat” and to assess the reasonableness of the victim’s fear. Here, because there is no evidence of a communicated threat, the reasonableness of the victim’s fear cannot be gauged. Accordingly, I would reverse.

Schultheis, J.

¶19 At the outset, as the majority opinion notes, Jill Hanson was a recalcitrant witness at trial. Mrs. Hanson reconciled with her husband, Christopher Hanson, and wanted nothing to do with his prosecution. But that fact has no bearing on the issues before this court. See State v. Gentry, 125 Wn.2d 570, 680, 888 P.2d 1105 (1995) (Johnson, J., dissenting) (observing that a criminal prosecution is not a private right of action on behalf of the victim; rather, the prosecutor represents the citizens of the State to “deter, punish, restrain, and/or rehabilitate those whose actions are so dangerous or offensive that they are an affront to a civilized society”). Nor is it significant that Mrs. Hanson recanted her testimony at trial.

¶20 Threat. A “threat” as charged in this case is defined as a direct or indirect communication of the intent to cause bodily injury in the future to the person threatened or to any other person. RCW 9A.04.110(25)(a). Under these circumstances, “ ‘[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. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001) (second alteration in original) (quoting State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998) (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990))). “Idle talk, joking, or puffery does not [evince] a knowing communication of an actual intent to cause bodily injury.” State v. J.M., 144 Wn.2d 472, 482, 28 P.3d 720 (2001). The threat must be real or serious. Id.

¶21 Here, there is no evidence of any such communication or expression attributed to Mr. Hanson, directly or indirectly. No witness accredits a single statement or a menacing gesture to Mr. Hanson from which a threat could be implied. The evidence does not even allow a legitimate inference that there was an identifiable true or serious threat. The fact that Mrs. Hanson alleged injuries and suffered other indignities at the hands of her husband is not relevant to the felony harassment charge. Mr. Hanson was appropriately charged with — and acquitted of— crimes associated with those acts (assault and unlawful imprisonment).

¶22 When a threat is an element and the State fails to identify any evidence of a threat, the conviction must fail. State v. Weisberg, 65 Wn. App. 721, 725, 829 P.2d 252 (1992) (reversing conviction for rape in the second degree by forcible compulsion under RCW 9A.44.010(6) when the State failed to “identify any evidence of a threat of harm, either express or implied” and forcible compulsion alleged was a threat); see also State v. Johnson, 115 Wn. App. 890, 894, 64 P.3d 88 (2003) (noting that threats must be identified in order to determine whether the threats were motivated by gender bias to prove malicious harassment case under RCW 9A.36.080(1)).

¶23 At trial, Mrs. Hanson responded affirmatively to the State’s questioning as to whether it was true that her husband “threatened you if you called the police.” Report of Proceedings (Sept. 9, 2003) (RP) at 44; see also RP at 66. But there are no details about the threat in order to examine it under the criminal statute or cases interpreting it. Mrs. Hanson testified that she felt threatened during the incident and when her husband called for the $200.⁴ But she does not provide any facts in order to determine whether a true threat was communicated to do her bodily harm. Mrs. Hanson’s subjective belief applies to the second element — fear—but it does not help in determining whether there was, in fact, a threat in order to satisfy the first element.

¶24 In another reference to threats, the following exchange was held:

Q Did you tell the officer that your fear was that he threatened to take your 14-year-old daughter and she would never see you again? He threatened to kill you?

A No, I am saying something about my daughter, but Chris never said he was going to take her. Those—

Q You did not tell the officer that?

A Well, if I told her that then I told her something wrong.

RP at 62-63. From this testimony Mrs. Hanson denied that her husband threatened to kill her. The desk officer also testified that Mrs. Hanson told her that “if he catches me here he’s going to kill me.” RP at 69. That may well have been her perception. But the State failed to elicit any testimony that credits Mr. Hanson with any communication or expression of his desire or intent to do so in order to assess that perception.

¶25 Fear. The State must show that the person hearing the threat subjectively feared that the defendant would act on the threat and that, based on the words or conduct of the defendant, this fear was objectively reasonable. State v. Alvarez, 74 Wn. App. 250, 260, 872 P.2d 1123 (1994), aff’d, 128 Wn.2d 1, 904 P.2d 754 (1995). The purpose of this requirement is to “sift out idle threats from threats that warrant the mobilization of penal sanctions.” Id. at 261.

¶26 Mrs. Hanson’s subjective fear was manifest in her conduct at the police station; she was trembling and tearful. However, her subjective fear is not attributed to a threat. The conviction cannot be based solely on the victim’s subjective reaction. Weisberg, 65 Wn. App. at 725. The lack of an identifiable threat makes the objective fear component impossible to analyze. I cannot say that Mrs. Hanson’s fear was objectively reasonable because the threat, if any, upon which her fear must be based is not known.

¶27 I would reverse.

4 This was the exchange:

Q [Jill] had stated [Christopher] had been calling ever since reminding her of what would happen. Did you ever tell the officer that?

A Well, it — Chris and I got together a couple times after the incident and there was no threatening behavior then.

So — I don’t know.

Q There was [sic] threats in this behavior?

A That incident was threatening and the two hundred dollar incident.

RP at 48-49.