State of Washington v. Duncan Joseph McNeil, III ( 2013 )

FILED
MAY 23,2013
In the Office ofthe Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 29268-1-111
)
Respondent, )
)
v. )
)
DUNCAN JOSEPH McNEIL, ) UNPUBLISHED OPINION
)
Appellant. )
BROWN, J. - Duncan Joseph McNeil III appeals his four convictions for gross
misdemeanor harassment by threat of bodily injury. He contends we must reverse
because the trial court erred by failing to give a "true threat" instruction; we agree.
Additionally, he contends we must dismiss because insufficient evidence supports his
convictions; we disagree. Accordingly, we reverse and remand for a new trial without
reaching his unanimity instruction contention.
FACTS
Mr. McNeil leased an office suite from Michael S. Sullivan. In May 2002, after
long rental conflicts, Mr. McNeil twice angrily confronted Mr. Sullivan and his business
associates, Kenneth Joseph Hall and Stan E. Ashby. The State charged Mr. McNeil
under RCW 9A.46.020 with five counts of felony harassment by threat to kill. Counts I,
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II, and III alleged that on May 16,2002, Mr. McNeil threatened to kill Mr. Sullivan, Mr.
Hall, and Mr. Ashby respectively. Counts IV and V alleged that on May 17, 2002, Mr.
McNeil threatened to kill Mr. Sullivan and Mr. Hall respectively.
At trial, witnesses testified that on May 16, 2002, Mr. Sullivan was meeting with
Mr. Hall and Mr. Ashby in his office suite but had left the front room temporarily when
Mr. McNeil pounded on the locked door, peered through the window, and yelled,
"Where the hell is that fat f**k Mike?," spitting as he spoke. Report of Proceedings (RP)
at 120. Mr. Hall responded Mr. Sullivan was not there. Mr. McNeil turned red in the
face and looked menacingly at Mr. Hall. Mr. McNeil unsuccessfully asked Mr. Hall his
name. Enraged, Mr. McNeil yelled he knew where Mr. Hall lived and would kill him, his
family, and Mr. Ashby. Mr. McNeil appeared "very violent and intimidating" and "very
unstable." RP at 239-40. Afraid, Mr. Sullivan, Mr. Hall, and Mr. Ashby waited for Mr.
McNeil to leave then attempted to avoid him by exiting through a side door. Mr. McNeil
chased them and yelled he would kill them all, particularly Mr. Sullivan.
Witnesses then testified that on May 17, 2002, Mr. Sullivan was approaching his
office suite with Mr. Hall and another business associate when Mr. McNeil charged
quickly toward them, carrying a baseball bat, guiding a leashed dog, and yelling, "I am
going to kill you, Mike." RP at 222. Mr. Sullivan quickly retreated and Mr. McNeil said,
"Where is that fat f**k going?" RP at 219. Mr. Hall responded he did not know.
Trembling with anger, Mr. McNeil accosted Mr. Hall in a "loud and angry" tone, yelling
profanities at him, spitting in his face, and gesturing at him with the end of the baseball
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bat. RP at 188. Mr. Hall dialed 911 on his cellular phone but did not press send. Then,
Mr. McNeil jabbed Mr. Hall's abdomen with the end of the baseball bat, knocking out his
breath and pushing him against a wall. Mr. McNeil lifted the baseball bat high as if
preparing to strike Mr. Hall, who backed away, pressed the send command on his
cellular phone, and cowered with his hands out for protection. Mr. McNeil yelled he
knew where Mr. Hall lived and would kill him and his family. Mr. McNeil left in his
vehicle before law enforcement arrived.
Mr. Sullivan, Mr. Hall, and Mr. Ashby recounted that both during and after each
incident, they feared Mr. McNeil would fulfill his threats. Mr. Sullivan recalled he
believed Mr. McNeil would attempt to harm or kill him at any time because Mr. McNeil
knew his home and work addresses, tried to strike him with a vehicle three times before,
chased him on foot once before, tried to grab him once before, and was taller than him.
Consequently, Mr. Sullivan, Mr. Hall, and Mr. Ashby obtained restraining orders against
Mr. McNeil. Additionally. Mr. Hall installed alarm and video surveillance systems in his
home and carried a stick in his vehicle for protection.
Without objection, the trial court instructed the jury, "Threat means to
communicate, directly or indirectly, the intent to cause bodily injury in the future to the
person threatened or to any other person." Clerk's Papers at 188; RP at 664. Mr.
McNeil did not request and the trial court did not give either a true threat instruction or a
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unanimity instruction. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 2.24, at 72, 4.25, at 110 (3d ed. 2008) (WPIC).1
A jury acquitted Mr. McNeil on count II but found him guilty on counts I, III, IV,
and V of gross misdemeanor harassment as lesser included offenses. By special
verdict, the jury found he made no threats to kill. He appealed.
ANALYSIS
A. True Threat Instruction
The issue is whether the trial court reversibly erred by failing to instruct the jury
regarding a true threat, violating Mr. McNeil's First Amendment freedom of speech. He
may raise this error claim for the first time on appeal. See RAP 2.5(a)(3); State v.
Schafer, 169 Wn.2d 274, 287-88, 236 P.3d 858 (2010). Jury instructions are proper if
they correctly state the applicable law, do not mislead the jury, and permit the parties to
argue their case theories. State v. Mark, 94 Wn.2d 520,526,618 P.2d 73 (1980).
The First Amendment, by incorporation into the Fourteenth Amendment due
process clause, bars a state from "abridging the freedom of speech." U.S. CONST.
amend. I; see Gitlow v. New York, 268 U.S. 652, 666, 45 S. Ct. 625,69 L. Ed. 1138(1925). Threats are speech, but a state may criminalize a "true threat." Virginia v.
Bfack, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (citing Watts v.
1 While WPIC 2.24 currently incorporates the true threat definition, it did not at
the time of Mr. McNeil's trial in May 2003. See State v. Schafer, 169 Wn.2d 274, 287
n.5, 236 P.3d 858 (2010) (noting the Washington State Supreme Court Committee on
Jury Instructions amended WPIC 2.24 after State v. Johnston, 156 Wn.2d 355, 127
P.3d 707 (2006)).
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United States, 394 U.S. 705, 708, 89 S. Ct. 1399,22 L. Ed. 2d 664 (1969». '''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) (alteration
and omission in original) (quoting State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d
797 (1998»; see Black, 538 U.S. at 359. "A true threat is a serious one, not uttered in
jest, idle talk, or political argument." State v. Hansen, 122 Wn.2d 712,718 n.2, 862
P.2d 117 (1993) (internal quotation marks omitted); see Black, 538 U.S. at 359. "The
speaker need not actually intend to carry out the threat." Black, 538 U.S. at 359-60; see
State v. Kilburn, 151 Wn.2d 36,48, 84 P.3d 1215 (2004).
Where, as here, the State charges a defendant under RCW 9A.46.020 with
felony harassment by threat to kill, the trial court must instruct the jury regarding a true
threat. Schaler, 169 Wn.2d at 283-84,287 (citing State v. Johnston, 156 Wn.2d 355,
363-64, 127 P.3d 707 (2006». While the State argues this rule was inapplicable on the
offense dates here, our case law has consistently construed RCW 9A.46.020 as
proscribing solely true threats. See Williams, 144 Wn.2d at 208; State v. J.M., 144
Wn.2d 472, 478, 28 P.3d 720 (2001). Because the trial court failed to do so, it erred.
Thus, we must reverse unless the error was "harmless beyond a reasonable doubt."
Chapman v. California, 386 U.S. 18,24,87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); see
Johnston, 156 Wn.2d at 364, 366.
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"Constitutional error is presumed to be prejudicial and the State bears the burden
of proving that the error was harmless." State v. Guloy, 104 Wn.2d 412, 425,705 P.2d
1182 (1985). The State must "prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24; see
Schaler, 169 Wn.2d at 288. The error is harmless if "uncontroverted evidence" supports
finding the defendant uttered a true threat but is prejudicial if the record is "ambiguous
as to whether the jury could have convicted on improper grounds." Schaler, 169 Wn.2d
at 288 (citing State v. Brown, 147 Wn.2d 330, 341-43, 58 P.3d 889 (2002». We must
"independent[ly] review" those crucial facts necessarily involved in the legal
determination of whether the First Amendment protects certain speech. Kilburn, 151
Wn.2d at 52 (applying Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,104
S. Ct. 1949,80 L. Ed. 2d 502 (1984). Problematic here, the State does not argue
harmless error.
Considering the jury rejected the threat-to-kill special verdicts, the record is
ambiguous as to whether the jury convicted Mr. McNeil for uttering protected speech.
He argued his statements, if made, were not serious. Given this backdrop, the jury may
have viewed his statements as hyperbole. In other words, if the trial court had given a
true threat instruction, the jury may have acquitted him. Therefore, we reverse Mr.
McNeil's convictions.
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B. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. McNeil's convictions for
gross misdemeanor harassment by threat of bodily injury. We consider his evidence
sufficiency challenge to determine whether we must dismiss or remand for a new trial.
The Fourteenth Amendment due process clause requires the State to prove all
essential elements of the crime charged beyond a reasonable doubt. U.S. CONST.
amend. XIV; In re Winship, 397 U.S. 358,364,90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
And, "The Double Jeopardy Clause forbids a second trial for the purpose of affording
the prosecution another opportunity to supply evidence which it failed to muster in the
first proceeding." Burks v. United States, 437 U.S. 1, 11,98 S. Ct. 2141,57 L. Ed. 2d 1(1978) (construing U.S. CONST. amend. V). Evidence is sufficient to support a guilty
finding if, '''after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.'" State v. Green, 94 Wn.2d 216, 221,616 P.2d 628 (1980)
(emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,61
L. Ed. 2d 560 (1979». But we must "independent[ly] review" those crucial facts
necessarily involved in the legal determination of whether the First Amendment protects
certain speech. Kilburn, 151 Wn.2d at 52 (applying Bose Corp., 466 U.S. 485).
A defendant is guilty of harassment if, without lawful authority, he or she
"knowingly threatens ... [t]o 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
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threatened in reasonable fear that the threat will be carried out." RCW
9A.46.020(1){a){i), (b). This form of harassment is a gross misdemeanor generally but
is a class C felony if the defendant "threaten[s] to kill the person threatened or any other
person." Former RCW 9A.46.020(2)(b) (1999). Either way, the threat must be a true
threat. Kilburn, 151 Wn.2d at 43 (citing Williams, 144 Wn.2d at 208; J.M., 144 Wn.2d at
478). And, "the nature of a threat depends on all the facts and circumstances, [not] ...
a literal translation of the words spoken." State v. e.G., 150 Wn.2d 604, 611,80 P.3d
594 (2003).
First, Mr. McNeil argues insufficient evidence supports finding he uttered true
threats. He reasons while the State solely presented evidence of threats to kill, the jury
specially found he made no threats to kill. But the jury ultimately convicted him, based
on threats of bodily injury, of gross misdemeanor harassment as a lesser included
offense of felony harassment. His statements, though literally threats to kill, necessarily
threatened to cause bodily injury as well. And, the victims recounted that his behavior
in each incident caused them to fear he would fulfill his threats. From each threat's
context, the jury could infer that a reasonable person would foresee others interpreting
Mr. McNeil's statements as serious expressions of intent to cause bodily injury. Thus,
the jury could find Mr. McNeil uttered true threats beyond a reasonable doubt.
Second, Mr. McNeil argues insufficient evidence supports finding that on May 16.
2002, he placed Mr. Sullivan, by words or conduct, in reasonable fear he would fulfill his
threat to cause bodily injury. He reasons while the State elected in closing argument to
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rely solely on his harassing behavior inside the building, he did not threaten Mr. Sullivan
until they were outside the building. But the State's omission did not constitute an
election because Mr. McNeil's harassing behavior outside was part of a continuing
course of conduct beginning inside. In context, the jury could find that on May 16, 2002,
he placed Mr. Sullivan, by words or conduct, in reasonable fear he would fulfill his threat
to cause bodily injury. Thus, the jury could find this essential element beyond a
reasonable doubt.
In sum, sufficient evidence supports Mr. McNeil's convictions for gross
misdemeanor harassment by threat of bodily injury. It follows that we need not dismiss.
Reversed and remanded for a new trial under a true threat instruction.
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.
Brown, J.
WE CONCUR:
Kulik, J. Antosz, J. . .
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