State of Iowa v. Jeffrey Alan Soboroff , 798 N.W.2d 1 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 08–0623
Filed May 20, 2011
STATE OF IOWA,
Appellee,
vs.
JEFFREY ALAN SOBOROFF,
Appellant.
Appeal from the Iowa District Court for Clinton County, J. Hobart
Darbyshire, Judge.
Jeffrey Soboroff appeals his conviction for making threats in
violation of Iowa Code section 712.8 (2007). REVERSED AND
REMANDED FOR NEW TRIAL.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant
Attorney General, and Michael L. Wolf, County Attorney, for appellee.
2
MANSFIELD, Justice.
Jeffrey Soboroff was convicted following a jury trial of the offense of
“threats” in violation of Iowa Code section 712.8 (2007) after posting on
his website a slideshow entitled “Target for Tonight.” The slides included
a photograph of a city’s water tower, references to putting Thorazine in
the city’s water supply, and photographs of certain residents of the city
with a caption expressing the view that these individuals “could use
some medication.”
On appeal, Soboroff argues that section 712.8, which prohibits
threats to place “any destructive substance” where it will endanger
people, does not apply to the potential contamination of a city water
supply with a psychotropic drug. Soboroff also contends his trial
counsel was constitutionally ineffective for not moving for a judgment of
acquittal because Soboroff did not make a “true threat,” i.e., a threat that
a reasonable person of ordinary intelligence would have understood as
such. Additionally, Soboroff argues his counsel should have requested
an instruction that would have required the jury to find the elements of a
“true threat.”
We hold section 712.8 can cover threats to contaminate a water
supply with a psychotropic drug. Also, there was substantial evidence
Soboroff made statements that would be understandable as threats by a
person of reasonable intelligence. However, we agree with Soboroff that
he received ineffective assistance when his counsel failed to ask for an
instruction requiring the jury to find a “true threat.” While there was
evidence that Soboroff’s threats were real, there was also evidence from
which a jury could have concluded his statements were not real threats,
and this issue should have been squarely presented to the jury.
Therefore, we reverse and remand for a new trial.
3
I. Background Facts and Proceedings.
Based upon the testimony and other evidence presented at trial, a
jury could have found the following facts.
The City of Calamus water system serves approximately 400
residents and an additional 350 people when the elementary school
located in the city is in session. In November 2007, the Calamus water
system included a 128-foot tall water tower and a reservoir tank.
Duane Levien managed public works for Calamus. In that
position, Levien oversaw the water system for Calamus. Levien checked,
recorded, and refilled the chlorine, phosphate, and residual levels within
the water supply daily. He also measured the amount of water pumped
daily and maintained the necessary paperwork for the State. Levien
usually injected about a half gallon of chlorine into the water system a
day, but if he was in the process of “shocking the system,” he could
“dump a hundred pounds of granule in . . . just a matter of twenty
minutes.”
On the morning of Monday, November 12, 2007, Levien was
approached by an unnamed citizen and handed a printout from an
internet website known as “freeworldkgb.” The printout was of a
slideshow entitled “Target for Tonight.” The first slide contained a
photograph of the Calamus water tower with the text, “I am thinking that
if we drop enough Thorizine (sic) in the city water supply it might calm
the population down enough so that they wont (sic) call us n-----s
anymore, or dumb Jew n-----s.” The second slide had a photograph of a
toad and said that “with his help, freeworldkgb has procured 500 pounds
of Thorizine (sic).” Subsequent slides contained candid photographs of
three city residents with various comments, including a statement, “I
4
have decided that they could use some medication.” It was stipulated
that the “freeworldkgb” website belonged to Soboroff.
Levien knew Soboroff as someone who had both made and been
the subject of numerous complaints within the community. Levien had
signed a petition to have Soboroff civilly committed in June or July 2007.
It was also fairly common knowledge in Calamus that “freeworldkgb” was
Soboroff’s website.
Levien believed that “Target for Tonight” was a reference to the
previous night. He contacted the Clinton County Sheriff’s Office and the
regional field office for the Iowa Department of Natural Resources.
Levien then flushed the entire Calamus water system and drained all of
the water out of the tower and the reservoir tank, a process that took
approximately five to six hours. Levien did not take a sample of the
water to test whether any Thorazine had actually been placed into the
water tower or the reservoir tank.
Clinton County Deputy Tom Christoffersen responded to Levien’s
initial call. After being shown the slideshow printout, Deputy
Christoffersen went to speak with Soboroff at his residence in Calamus.
Deputy Christoffersen recorded his conversation with Soboroff using the
audio from his in-car camera. This recording was played for the jury.
The recording began with Soboroff stating, “I’m not f---ing around with
anybody anymore. I’m tired of these a--holes.” When Deputy
Christoffersen later disclosed that someone had made a complaint,
Soboroff said, “F---’em! I put that on there to irritate them, and I’m glad
they’re irritated.” The recording then ended with Soboroff stating that he
did not believe he had crossed the line and, if the sheriff’s office did, they
could call his attorney.
5
On November 14, 2007, a search warrant was executed at
Soboroff’s residence. Soboroff was present and recorded the events with
a handheld video camera. Later, he posted the recording on the internet,
and it was played for the jury as well. During the video, Soboroff
acknowledged twice that the officers were looking for 500 pounds of
Thorazine. When the officers informed Soboroff they were seizing his
computer, Soboroff questioned why, and then stated, “Look, that is a
satirical article, that’s all that that is.” The background image on
Soboroff’s computer was a picture of the Calamus water tower. The
officers did not find any Thorazine during the search.
On November 20, 2007, the State charged Soboroff by trial
information with threats in violation of Iowa Code section 712.8. 1 On
March 7, 2008, Soboroff moved to dismiss the trial information on the
ground there was no evidence in the minutes of testimony that he had
made a threat involving “any incendiary or explosive device or material,
or any destructive substance or device in any place where it will
endanger persons or property” as required by section 712.8. The district
court denied the motion, ruling that it was untimely and, alternatively,
that section 712.8 was not limited to incendiary or explosive types of
devices and materials. The case proceeded to trial on March 10 and 11,
2008.
In addition to presenting the testimony of Levien and the two
sheriff’s deputies who had handled the investigation, the State also
introduced the testimony of a pharmacist, Cynthia Ryan. Ryan testified
that Thorazine is a psychotropic drug commonly used to treat mental or
mood disorders, especially schizophrenia. She stated the common side
1The State also charged Soboroff with unlawful possession of a prescription drug
in violation of Iowa Code section 155A.21, but this charge was dismissed before trial.
6
effects for Thorazine include drowsiness, dizziness, blurred vision, and
constipation, with less common side effects including a malignant
syndrome that can cause a high temperature, muscle rigidity, irregular
heartbeats, tardive dyskinesia (involuntary muscle spasms), and possibly
even death. Ryan testified it would be impossible to predict what would
happen if Thorazine were added to a city’s water supply, but it was her
opinion that “any use of a drug that is improper I would consider
dangerous . . . . Drugs are only appropriate when prescribed for a
particular patient for a particular condition.” Ryan further testified
Thorazine is not a controlled substance, but is restricted to “purchase by
order of prescription.” Ryan estimated that a single prescription would
provide about 30 tablets of Thorazine ranging from 10 to 100 milligrams.
Ryan further opined that it would be “near impossible” to obtain 500
pounds of Thorazine even with a relatively long period of time to do so.
After the State rested its case, Soboroff’s counsel moved for a
judgment of acquittal, renewing his arguments in the motion to dismiss
and asserting there was “no evidence presented by the State” to establish
the alleged threat involved a substance covered by section 712.8. The
district court denied the motion. After further discussion, the following
dialogue ensued:
MR. VILMONT: And are we to conclude, Your Honor, that
the State has proven in this case up to this point in time that
Thorazine is a destructive substance?
THE COURT: The Court finds the State has provided
sufficient evidence to make a prima facie case so that the
jury should consider the issue, yes.
Soboroff then took the stand in his own defense and testified in a
rambling way. Soboroff maintained that the slideshow was “a story” and
“a metaphor.” Soboroff gave the jury the following explanation for why
he had posted the slideshow:
7
I wrote this story about a toad who is down at the river
mourning the loss of his friend because some individual,
either an adult or a child, took a firecracker, put it in the
animal’s cloaca and blew it up. Now I – I like animals. One
of my things in college was herpetology. I saw this there.
My dog – I got this Rottweiler who wouldn’t hurt a soul, and
he’s there, and he’s looking at this thing blown up, and he’s
looking at me, and he’s just really puzzled.
This was right after I got out – out of Mercy Hospital.
And I’m sitting on my stoop, and out comes Mr. Toad. And
he would sit with me at night, and I started imagining this
dialogue between me and Mr. Toad. And Mr. Toad wants to
get even for the death of his friend . . . .
Soboroff further testified that he used the title “Target for Tonight”
because “Toads come out at night.” Soboroff also stated that he had
suffered a closed head injury and for the last twelve years had been
seeing a psychologist, Dr. Frank Gersch, but had not been prescribed
any medications by him.
The case was submitted to the jury. In the marshalling
instruction, the jury members were told they had to find the following
elements to convict Soboroff:
1. On or about November 12, 2007, Defendant threatened to
place a destructive substance in the water supply for the
city of Calamus, Iowa.
2. The destructive substance was of a type that would
endanger persons or property.
3. Defendant made the threats willfully and unlawfully.
A jury instruction, to which Soboroff objected, defined “destructive”
as meaning “damaging, harmful, detrimental or injurious.” Another
instruction, to which Soboroff did not object, defined “threaten” to mean
“intimidate, bully, pressure, menace, warn, terrorize or make threats.”
On March 11, 2008, the jury returned a guilty verdict. Soboroff
was sentenced to a term of incarceration not to exceed five years. See
Iowa Code § 902.9(5). The sentence was suspended, and Soboroff was
placed on probation for two years. See id. § 907.3(3).
 8
Soboroff appeals. He contends there is insufficient evidence to
sustain his conviction because section 712.8, which is part of the “arson”
chapter of the Iowa Code (chapter 712), applies only to threats or
attempts involving materials that might cause fires or explosions, not to
materials whose harmful effects occur when they are consumed within
the human body. He further alleges his counsel was ineffective for:
(1) failing to move for a judgment of acquittal on the grounds that the
State failed to prove Soboroff made a “true threat,” i.e., a threat that
would have been interpreted by a reasonable person as such; (2) failing
to request a jury instruction defining the legal requirements of a “true
threat”; and (3) failing to call Dr. Gersch as a witness.
II. Standard of Review.
We review challenges to the sufficiency of the evidence for the
correction of errors at law. State v. Hennings, 791 N.W.2d 828, 832
(Iowa 2010). We will uphold the jury’s verdict if supported by substantial
evidence. State v. McCullah, 787 N.W.2d 90, 93 (Iowa 2010).
“Substantial evidence is evidence that ‘would convince a rational trier of
fact the defendant is guilty beyond a reasonable doubt.’ ” Id. (quoting
State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008)). We view the
evidence in the light most favorable to the State, including all legitimate
inferences and presumptions that may fairly and reasonably be deduced
from the record. Hennings, 791 N.W.2d at 832–33. The evidence must
at least raise a fair inference of guilt and do more than raise mere
suspicion, speculation, or conjecture. McCullah, 787 N.W.2d at 93. To
the extent the insufficiency claim involves the district court’s
construction of a statute, our review remains for the correction of errors
at law. Id.
9
III. Applicability of Section 712.8 to Thorazine in Drinking
Water.
Iowa Code section 712.8 provides:
Any person who threatens to place or attempts to
place any incendiary or explosive device or material, or any
destructive substance or device in any place where it will
endanger persons or property, commits a class “D” felony.
Soboroff maintains he did not violate section 712.8 because
Thorazine is not a “destructive substance.” Soboroff insists that the term
“destructive substance” as used in the second part of section 712.8
should be limited to items that might be used to commit the crime of
arson as defined in section 712.1. He urges that “destructive substance”
should be construed as something similar to “incendiary or explosive”
material as referenced in the first part of section 712.8. By contrast, the
State argues Thorazine was a “destructive substance or device” in this
case because it could ruin the water supply and endanger people.
The primary goal in interpreting a statute is to ascertain and give
effect to the legislature’s intent. State v. Anderson, 782 N.W.2d 155, 158
(Iowa 2010). When determining legislative intent, we look first to the
language of the statute. State v. Sluyter, 763 N.W.2d 575, 581 (Iowa
2009). We also consider “ ‘the statute’s “subject matter, the object
sought to be accomplished, the purpose to be served, underlying policies,
remedies provided, and the consequences of various interpretations.” ’ ”
State v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006) (quoting Cox v. State,
686 N.W.2d 209, 213 (Iowa 2004)). Legislative intent is gleaned from the
words chosen by the legislature, not what it should or might have said.
State v. Stone, 764 N.W.2d 545, 549 (Iowa 2009). When a statutory
definition is absent, “ ‘[w]e may refer to prior decisions of this court and
others, similar statutes, dictionary definitions, and common usage’ to
10
determine its meaning.” State v. Shanahan, 712 N.W.2d 121, 142 (Iowa
2006) (quoting State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996)).
We assess a “ ‘statute in its entirety, not just isolated words or
phrases,’ and we will seek to interpret it so that no part of it is rendered
redundant or irrelevant.” McCullah, 787 N.W.2d at 94 (quoting State v.
Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006)). We strive for “ ‘an
interpretation that is reasonable, best achieves the statute’s purpose,
and avoids absurd results.’ ” State v. Spencer, 737 N.W.2d 124, 130
(Iowa 2007) (quoting State v. Bower, 725 N.W.2d 435, 442 (Iowa 2006)).
The General Assembly has not told us what they meant by
“destructive substance or device.” But the word “destructive” is broad. It
is defined by one dictionary as “having the capability, property, or effect
of destroying.” Webster’s Third New International Dictionary 615 (unabr.
ed. 2002). “Destroy” is then defined as: “to ruin the structure, organic
existence, or condition of.” Id.
Many things are thus potentially “destructive.” The statute does
not limit the definition to substances that cause harm through a
chemical reaction outside the human body, as opposed to a metabolic
reaction within it. Destruction can result from contamination as well as
from burning or wrecking. See 18 U.S.C. § 31(a)(3) (2006) (defining
“destructive substance” to mean “an explosive substance, flammable
material, infernal machine, or other chemical, mechanical, or radioactive
device or matter of a combustible, contaminative, corrosive, or explosive
nature”) (emphasis added); United States v. Jones, 308 F.3d 748, 749–50
(7th Cir. 2002) (holding that real anthrax spores would have been a
“destructive substance” within the meaning of this statute and, therefore,
an individual who staged phony anthrax incidents violated the federal
“Bomb Hoax Act”).
11
Soboroff’s argument also runs contrary to the principle that we try
to avoid construing statutory language as superfluous. See Iowa
Code § 4.4(2); State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003) (stating
statutes are interpreted in a manner to avoid rendering any part of the
enactment superfluous). If the second part of section 712.8 were limited
to the kinds of materials covered by the first part, there would be no need
for it. In fact, the second part is worded as an alternative to the first
part. Threats involving “any incendiary or explosive device or material, or
any destructive substance or device,” are prohibited. Iowa Code § 712.8
(emphasis added); Cole v. Laucamp, 213 N.W.2d 532, 535 (Iowa 1973)
(“[T]he word ‘or’ . . . has a commonly accepted and well-known meaning.
In ordinary usage it signifies an alternative . . . .”). Hence, we do not
discern within the statutory language a basis for limiting its scope to
materials that might cause fires or explosions; rather, we see the
opposite. Some materials are destructive but not incendiary or explosive;
some incendiary materials might not be considered destructive; but
regardless, the legislature intended that all be covered when there was a
threat or attempt to place them in a location where they would endanger
persons or property.
It is true that section 712.8 is part of a chapter entitled “Arson,”
and what Soboroff did would not have been considered a threat to
commit common law arson. Veverka v. Cash, 318 N.W.2d 447, 450 (Iowa
1982) (noting that the common law definition of arson required a “willful
and malicious burning”). Section 712.8’s presence in the arson chapter,
however, is largely a historical accident. When the threats statute was
first enacted in 1967, it was placed in chapter 697, entitled, “Injuries by
Explosives—Bomb Threats.” See 1967 Iowa Acts ch. 412, § 2 (codified at
Iowa Code § 697.7 (1971)). Later, during the complete revision of the
12
Iowa Criminal Code effective January 1, 1978, the threats statute was
modified and moved to the arson chapter. 1976 Iowa Acts ch. 1245, ch.
1, § 1208 (codified at Iowa Code § 712.8 (Supp. 1977)). 2
Thus, the present arson chapter (712) includes not only sections
712.1 through 712.6, which appear to be arson-related laws that address
only fires, explosions, and “incendiary or explosive” materials and
devices, but also sections 712.7 and 712.8, covering “false reports” and
“threats.” Unlike the preceding provisions in chapter 712, sections 712.7
and 712.8 apply to materials that are “destructive,” as well as those that
are “incendiary or explosive.” If anything, the difference in wording
between sections 712.1 through 712.6, on the one hand, and sections
712.7 and 712.8, on the other, not to mention their separate ancestry,
supports a broader interpretation of the latter provisions.
For these reasons, we agree with the district court that section
712.8 can cover a threat to put large quantities of a psychotropic drug
into a town’s water supply. This kind of threat, like a threat to release
radioactive—but not incendiary or explosive—matter, can be viewed by a
fact finder as involving a “destructive substance.” Substantial evidence
therefore supports a jury finding that Soboroff’s statements on his
website related to the placement of a destructive substance in a place
where it would endanger people.
2Because of this history, we believe it would be inappropriate to draw an
inference about what section 712.8 means from the chapter in which it is located. Cf.
Rolfe State Bank v. Gunderson, 794 N.W.2d 561, 567 (Iowa 2011) (expressing the view
that a provision added to a division of the Iowa Banking Act dealing with bank mergers
was meant to apply to bank mergers and not to bank transactions more generally).
13
IV. Sufficiency of Evidence that Soboroff Made a “True
Threat.”
Soboroff next argues his counsel was constitutionally ineffective
when he failed to move for a judgment of acquittal on the ground that the
evidence failed to show his website communications were a “true threat,”
i.e., “understandable as a threat by a reasonable person of ordinary
intelligence.” State v. Milner, 571 N.W.2d 7, 10 (Iowa 1997). Soboroff
must make this appellate argument under the ineffective assistance
rubric because, although his counsel argued for a judgment of acquittal
based on the lack of a “destructive substance,” his motion in the district
court did not claim the absence of a “true threat.” See State v. Crone,
545 N.W.2d 267, 270 (Iowa 1996) (holding a motion for judgment of
acquittal does not preserve error when counsel does not make reference
to the specific elements of the crime on which the evidence was claimed
to be insufficient). Before us, Soboroff now contends that no reasonable
juror could conclude he had made a “true threat” and that his slideshow
was not meant to be taken seriously.
To establish ineffective assistance of counsel, Soboroff must
demonstrate by a preponderance of the evidence: (1) his counsel failed to
perform an essential duty, and (2) prejudice resulted. State v. Vance,
790 N.W.2d 775, 785 (Iowa 2010); see also Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Generally, claims of ineffective assistance of counsel are preserved
for postconviction relief proceedings. State v. Biddle, 652 N.W.2d 191,
203 (Iowa 2002). We do this so an adequate record of the claim can be
developed and the attorney charged with providing ineffective assistance
may have an opportunity to respond to defendant’s claims. Id. However,
if we determine the record is adequate, we may resolve the claim on
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direct appeal. State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We
believe the record is adequate to address this claim. We decide de novo
whether Soboroff’s trial counsel was constitutionally ineffective. State v.
Canal, 773 N.W.2d 528, 530 (Iowa 2009).
In Milner, we were called upon to review section 712.8 in the
context of an angry citizen who had been denied unemployment benefits
and repeatedly said he would drive his truck to the Department of
Employment Services Office and blow it up. 571 N.W.2d at 9. The
incident occurred shortly after the 1995 Oklahoma City bombing and
Milner at one point referred to that bombing. Id. In upholding Milner’s
conviction for violating section 712.8, we held the statute covered only
“true threats,” that is, statements that would be viewed as a threat by a
reasonable person of ordinary intelligence when the statement is viewed
in light of the surrounding circumstances. Id. at 10. We made clear that
the statute “does not reach expressions that a reasonable person would
understand as a joke, idle talk, or mere statements of political
hyperbole.” Id. In addition to finding sufficient evidence to support
Milner’s conviction, we also held that section 712.8 was not
constitutionally infirm, since it extended only to “true threats” and such
threats were not protected by the First Amendment. Id. at 13–14.
We do not believe Soboroff’s trial counsel failed to perform an
essential duty here. Even if he had moved for a judgment of acquittal on
the ground that his client had not made true threats, the motion would
have had to be denied. In this case, the State presented “sufficient
evidence for a reasonable jury to find ‘a reasonable person of ordinary
intelligence would interpret [Soboroff’s] statement as a threat . . . in light
of the surrounding circumstances.’ ” State v. Lane, 743 N.W.2d 178,
183–84 (Iowa 2007) (quoting Milner, 571 N.W.2d at 10).
15
Although Soboroff claimed at trial that his “Target for Tonight”
slideshow was not to be taken literally, a reasonable jury could have
found otherwise. The initial slide showed a photograph of the water
tower with a specific comment about contaminating the city water supply
with Thorazine. Next, there was a photograph of a toad with an
indication that “with his help [Soboroff] has procured 500 pounds of
Thorizine (sic).” The toad photograph could have been viewed as a
reference to a confidential source of the material. Several candid shots of
citizens followed, with the last slide including the statement, “I have
decided that they could use some medication.” The State’s most
compelling piece of evidence, perhaps, was Levien’s testimony that, after
he saw the slideshow, he flushed out the city’s entire water supply, a
process that took five to six hours. This shows, at a minimum, that he
took the threat seriously.
Hence, the district court properly submitted the section 712.8
charge to the jury, and Soboroff’s counsel was not ineffective for failing to
move to acquit on the ground that a reasonable person could not have
viewed Soboroff’s statements as a threat. See State v. Dudley, 766
N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel has no duty to raise an issue
that has no merit.”).
V. Jury Instruction Defining “Threat.”
Soboroff also contends his counsel was ineffective for not
requesting a jury instruction that defined threat and made it clear to the
jury that he could be found guilty only if he committed a “true threat.”
The State concedes that such an explanation should have been provided
to the jury. However, it argues that Soboroff did not suffer prejudice,
because the evidence that a reasonable person would view Soboroff’s
statements as a threat was overwhelming.
16
We disagree. While there was substantial evidence of a real threat,
there was also evidence from which a jury could have concluded that
Soboroff’s statements were “idle talk.” Milner, 571 N.W.2d at 10. The
State’s own expert testified that Thorazine is available only by
prescription and in small quantities. It would be “near[ly] impossible” to
obtain 500 pounds of it. Someone who claimed to have such a quantity
might not have deserved to be taken seriously. Also, there was no
evidence that Soboroff intentionally disseminated his statements to
anyone, apart from putting them on his website. And, although it is a
double-edged sword, Soboroff’s reputation for instability could have
supported a jury finding that a reasonable person would not take his
statements seriously (although it could have potentially warranted the
opposite conclusion). In short, had the jury been instructed on the
“reasonable person” standard for illegal threats, we think there is a
reasonable probability the outcome of Soboroff’s trial would have been
different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at
698; State v. Palmer, 791 N.W.2d 840, 850 (Iowa 2010) (noting also that
the reasonable probability test for prejudice requires only a showing that
the probability of a different result is “sufficient to undermine confidence
in the outcome”) (quoting Strickland).
Accordingly, we hold that Soboroff received ineffective assistance of
counsel when his attorney failed to request an instruction that defined
“threats” for the jury as statements that would be understandable by a
reasonable person of ordinary intelligence as threats, in light of the
surrounding circumstances. Milner, 571 N.W.2d at 10. Because section
712.8 criminalizes a category of speech, without any conduct
requirement, see id. at 13 (noting that section 712.8 targets speech), it is
important for the jury to be advised of its limited, proper scope. This
17
insures that defendants will be found guilty only for making statements
not protected by the First Amendment. Id. at 13–14 (stating “the First
Amendment does not protect speech that constitutes a true threat” and,
when interpreted as limited to true threats, section 712.8 is not
overbroad). Our views on this subject coincide with those of a number of
other jurisdictions. See State v. Cook, 947 A.2d 307, 317–18 (Conn.
2008) (finding the omission of a “true threat” instruction required
remand for new trial to ensure punishment was not based on
constitutionally protected speech); State v. Martins, 102 P.3d 1034,
1042–43 (Haw. 2004) (same); Abbott v. State, 989 A.2d 795, 823–26 (Md.
Ct. Spec. App. 2010) (same); State v. Schaler, 236 P.3d 858, 865–67
(Wash. 2010) (same); State v. Perkins, 626 N.W.2d 762, 772–73 (Wis.
2001) (same). We therefore reverse Soboroff’s conviction and remand for
a new trial. 3
VI. Conclusion.
For the foregoing reasons, we find sufficient evidence to sustain
Soboroff’s conviction for making threats in violation of section 712.8.
However, because the jury was not instructed that the threats had to be
understandable by a reasonable person of ordinary intelligence as such,
Soboroff received ineffective assistance of counsel and is entitled to a new
trial.
REVERSED AND REMANDED FOR NEW TRIAL.
3Soboroff
also argues on appeal that his counsel was ineffective for not calling as
a witness Dr. Gersch, Soboroff’s attending psychologist. In light of our disposition of
the appeal, we need not reach this claim.