State v. Locke, 307 P.3d 771

Background

In January 2011 Robert Locke sent two e‑mails to Governor Gregoire’s website and submitted an online event invitation within a four‑minute span: the e‑mails expressed violent, sexually graphic wishes and called the governor a derogatory epithet; the event request described "Gregoire’s public execution" to be held at the Governor’s Mansion with media and a large audience.
Office staff and the Executive Protection Unit perceived the communications as threatening, especially in light of the recent Giffords shooting; state patrol contacted and interviewed Locke, who admitted sending the messages, said he was venting personal anger about grievances with the State, and denied intent to carry out any threat.
Locke was charged under RCW 9A.36.090(1) (threats against the governor or family), convicted by a jury, and sentenced to 12 months’ confinement; the trial court also ordered a mental health evaluation and treatment as a sentencing condition.
On appeal Locke argued (1) insufficiency of evidence to prove a "true threat," (2) instructional and information errors for failing to reference "true threat," (3) need for a Petrich (unanimity) instruction, and (4) improper imposition of the mental health condition.
The State conceded the mental health condition was imposed improperly. The court affirmed the conviction, held the evidence met the First Amendment "true threat" standard, upheld the instructions and charging document, found no Petrich unanimity error because the acts formed a continuous course of conduct, and remanded to vacate the mental health condition.

Issues

Issue	Locke's Argument	State's Argument	Held
Whether evidence proved a First Amendment "true threat"	Locke: messages were hyperbolic, passive, political speech; no serious intent or plan to harm	State: messages escalated quickly in menace and specificity (e‑mails + event request); reasonable person would foresee they’d be taken seriously	Affirmed: combination of second e‑mail and event request supported a true threat under Washington precedent
Whether "true threat" must be pleaded/included in the to‑convict instruction/information	Locke: omission deprived him of constitutionally essential element	State: defining instruction limited "threat" to true threats; information and instructions (together) gave adequate notice	Affirmed: WPIC‑style definitional instruction sufficed; true threat need not be pleaded in the information or restated in the to‑convict instruction (per Allen/Schaler)
Whether jury needed a Petrich unanimity instruction (multiple acts)	Locke: each communication could be a separate act requiring unanimity	State: communications were a continuous course of conduct in a short time against one victim with same objective	Affirmed: no unanimity instruction required—acts were a single, continuous course of conduct
Whether sentencing condition ordering mental health evaluation/treatment was lawful	Locke: court imposed condition without required findings/presentence procedures	State: conceded the condition was imposed improperly	Remanded: vacate the mental health evaluation/treatment condition (State concedes error)

Key Cases Cited

State v. Kilburn, 151 Wn.2d 36 (recognizes true threat test and contextual inquiry)
State v. Schaler, 169 Wn.2d 274 (discusses limits of threat instructions and true threat mens rea)
State v. Allen, 176 Wn.2d 611 (holds that a WPIC‑style definition of "threat" incorporating true threat suffices for instruction/charging purposes)
State v. Petrich, 101 Wn.2d 566 (requires unanimity instruction when multiple distinct acts could each support the charged offense)
Watts v. United States, 394 U.S. 705 (political speech context; distinguishes hyperbolic political expression from true threats)
Planned Parenthood of Columbia/Willamette v. Am. Coalition of Life Activists, 290 F.3d 1058 (Ninth Circuit decision on threatening speech and contextual indicators of true threats)
United States v. Lincoln, 403 F.3d 703 (Ninth Circuit case distinguishing passive/indirect threats from actionable true threats)