147 Wash. App. 891 | Wash. Ct. App. | 2008
¶1 Edison Alphonse appeals his convictions for felony and misdemeanor telephone harassment. He challenges the sufficiency of the evidence, asserting that RCW 9.61.230 must be construed to require proof that he had the intent to harass, intimidate, torment, or embarrass when he initiated the call. He also contends that the terms “to embarrass,” “lewd,” “lascivious,” “indecent,” and “obscene” render the statute unconstitutionally overbroad on its face and vague as applied to his conduct and that, as applied, the statute violated his First Amendment right to lawfully petition a government official for redress of grievances. Finally, he challenges the trial court’s order banishing him from the city of Everett as a condition of his sentence.
FACTS
¶2 In March 2004, Everett police officer Matt Meyers investigated a complaint made by Nina Reeves, who reported that Alphonse had been sending her harassing e-mails. Reeves was a married woman, who had had a previous relationship with Alphonse and eventually became pregnant. After the relationship ended and Reeves reconciled with her husband, Alphonse contacted Reeves and asserted that he wanted to have a relationship with the child. Reeves told him she did not want him involved with the child, claimed that he was harassing her, and eventually contacted the Everett police.
¶4 In November 2005, six months after closing the investigation, Meyers received an e-mail from Alphonse complaining about the investigation and threatening to sue the police department. In December 2005, he left an angry voice mail on Meyers’ office phone in which, among other things, he told Meyers, “There was never any Matt Meyers. He never existed.” and ‘You’re dead anyway. You’re dead any motherfucking way!” He also stated, “I will blow away 40 hundred cops over my kids dog. 40 hundred, let alone one, let alone one by the name of Matt Meyer.” On January 11, 2006, Alphonse left two more voice mails in which he described sexual acts he wished to perform with Meyers’ wife.
¶5 The State charged Alphonse with one count of felony telephone harassment and one count of misdemeanor tele
I. Proof of the Caller’s Intent under RCW 9.61.230
¶6 In our original opinion in this case, State v. Alphonse,
¶7 On October 1, 2008, the Supreme Court granted Alphonse’s petition for review and remanded this case to us for reconsideration in light of its Lilyblad decision. We have done so and, while we recognize that the court has rejected the Burkhart rationale on which we relied in our original decision, we affirm Alphonse’s conviction on another ground.
¶8 In our original decision, we considered Alphonse’s argument that the “to convict” instruction was infirm because it did not require the jury to find that he formed the intent to harass when he made the calls. We rejected that argument on the ground that he requested the instruction on which he based his argument. We held that the invited error doctrine barred his challenge to the instruction.
¶9 In addition, to the extent that Alphonse’s challenge to the sufficiency of the evidence can be seen as somehow separate from his legal challenge to the “to convict” instruction, the evidence in this case leaves no doubt about when he formed the intent to harass and threaten Officer Meyers. The tapes of his message begin, continue, and end with his expressions of immense ill will toward Meyers and his expressed intention to harm him and his family. The jury heard those tapes and transcripts of them were in evidence. There is no question that their
II. Facial Overbreadth: Intent To Embarrass
¶10 Alphonse next contends that the court’s “to convict” instruction was erroneous because it permitted the jury to convict him if the jury found that he made the calls with intent to “embarrass.” He argues that because similar language was found unconstitutionally overbroad in City of Seattle v. Huff,
III. Lawful Petition To Redress Grievances
¶11 Alphonse argues that prosecuting him for making calls that were a lawful petition to a government official for redress of grievances violated the First Amendment. He contends that the “vague allusions and sexual references” that may have affronted Meyers were not the sole or primary purpose of making the calls. Rather, he argues, he was seeking to lawfully redress his grievances and cannot be prosecuted for doing so. Alternatively, he argues that the trial court was required to instruct the jury that it had to
¶12 The First Amendment provides aggrieved citizens the right to petition the government for redress and protects a significant amount of verbal criticism and challenge directed at police officers.
¶13 Alphonse asserts that the calls made to Meyers in his official capacity as a police officer and the messages left on his police department voice mail were primarily complaints about Meyers’ investigation of Reeves’ harassment allegations. He cites parts of the message in which the caller criticized Meyer for informing his wife that he impregnated another woman, voiced frustration that Meyers did not inform him that the investigation was concluded, expressed his belief that the investigation was racially motivated, and claimed that the unfounded investigation prevented him from seeing his son born. Alphonse contends that the fact that these grievances may have been “interspersed” with offensive language does not take them out of the realm of protected speech.
¶14 In support of this contention, he cites to a footnote in State v. Dyson
¶15 Applying the statute here did not violate Alphonse’s First Amendment rights. While Alphonse may have been legally voicing disapproval about the way in which Meyers handled the investigation, once he used speech to harass, intimidate, torment, or embarrass Meyers, his conduct became criminal. By threatening to harm and kill Meyers, and by using obscene language and vulgar descriptions of sexual acts he threatened to perform on Meyers’ wife to demean and humiliate Meyers, he demonstrated a criminal intent to harass, intimidate, torment, and embarrass. Thus, prosecuting him for making such calls did not violate his First Amendment right to petition the government to redress grievances.
¶16 Alternatively, Alphonse argues that we should reverse and remand with instructions that the jury must find that the calls were made solely to harass and that he had a constitutional right to petition the government to redress grievances.
¶17 But the “to convict” instructions here specifically required a finding of criminal intent, including an intent to harass and a true threat to kill. An additional instruction defined “true threat” to exclude those “said in jest, idle talk, or political argument.”
IV. Overbreadth: Lewd, Lascivious, Indecent, and Obscene Speech
¶18 Alphonse argues that the misdemeanor portion of RCW 9.61.230 is unconstitutionally overbroad because the terms “lewd,” “lascivious,” “indecent,” and “obscene” are not statutorily defined and other definitions result in criminalizing protected speech. A statute is void as overbroad if its prohibitions extend beyond protected free speech activities and no means exist by which to sever its unconstitutional applications.
¶19 Alphonse argues these terms are too subjective, and a person could be convicted for making a legitimate complaint to the government if a jury finds that he used lewd, lascivious, indecent, or obscene language because such a complaint may be considered “tormenting” or “harassing.” Dyson rejected a similar argument that the statute prohibited legitimate complaints when “swear words” were used because the focus of the statute is on the caller’s intent, not the listener’s subjective perception.
¶20 To “complain” is not synonymous with to “torment” or “harass,” as Alphonse suggests. One may certainly voice a legitimate complaint without resorting to speech that rises to the level of tormenting or harassing the recipient. As we recognized in In re Personal Restraint of Parmelee, one may be “held accountable for the degrading, abusive language [one chooses] to use in the exercise of his right [to voice a grievance].”
¶22 The Popa court’s focus was on the statute’s inclusion of speech not at issue here. Washington’s statute does not include speech that annoys or abuses, and while it does contain an intent to harass, it also requires that such intent be accompanied by either (1) lewd, lascivious, profane, or obscene words; (2) suggestions of lewd or lascivious acts; or (3) threats of injury.
¶23 Alphonse further contends that his suggestion of consensual intercourse with Meyers’ wife was “an entirely
¶24 Finally, Alphonse urges us to reconsider Dyson, in light of the Supreme Court’s later decision in City of Bellevue v. Lorang.
¶25 Alphonse argues that the misdemeanor portion of the statute proscribing “lewd,” “lascivious,” “indecent,” or “obscene” words is unconstitutionally vague as applied to his conduct because he must guess whether his use of certain words is “indecent,” “lewd,” or “lascivious.” A statute is “ Void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.’ ”
¶26 Determining whether a statute sufficiently defines an offense “does not demand impossible standards of specificity or absolute agreement.”
¶27 Alphonse argues that because some of the words he used may be deemed by some to be “indecent,” “lewd,” or “lascivious,” but may be commonly used by others, a person must guess whether using these words would constitute criminal conduct. But common use of these words is not equivalent to ignorance of their offensive nature. As discussed above, Alphonse used obscene language here precisely so that he could offend, humiliate, and torment Meyers. The record is also undisputed that he used language “suggesting the commission of any lewd or lascivious act,” which is clearly prohibited by the statute.
¶28 Nor has Alphonse demonstrated that the statute poses a danger of arbitrary or selective enforcement. To do so, he must show that the statute invites an inordinate
VI. Banishment Order
¶29 Banishment orders encroach on an individual’s constitutional right to travel, which includes the right to travel within a state.
¶30 In State v. Schimelpfenig, the court held that an order banishing a murder convict from Grays Harbor County failed strict scrutiny because the order was not narrowly tailored to serve its stated purpose, which was to prevent the victim’s relatives from being reminded of the defendant.
¶31 Applying the factors here, we hold that the trial court’s banishment order does not survive strict scrutiny. The restriction is related to protecting the safety of the victim and other police officers Alphonse included in his harassing phones calls, which has been found to be a compelling State interest.
¶32 The most significant of these factors is the availability of less restrictive means to serve the court’s stated purpose in issuing the order. Even though the purpose was a compelling State interest, the court did not narrowly
¶33 We affirm the conviction but vacate the banishment order and remand to the trial court to enter an order consistent with this opinion.
Review denied at 166 Wn.2d 1011 (2009).
Ex. 2, at 1 (transcript of voice mail recording, attached as appendix B) (“[M]y dick is gonna stay long and I am gonna continuously keep dicking your motherfucking girl.”); App. B at 2 (“And maybe one of these days when you’re at work in that motherfucking cubicle sweating bricks, I might be pounding down that pussy .... Maybe one of these nights when I feel like getting some pussy, I might give [your wife] a call.”); App. B at 3 (“I am gonna forever remain beating your motherfucking bitches down. Every time, open wide, open wide, open wide nigger because this big long ass long fucking dick is coming in, beating that motherfucking pussy down.”).
142 Wn. App. 417, 174 P.3d 684, 197 P.3d 1211, review granted, 164 Wn.2d 1021, 196 P.3d 134 (2008).
99 Wn. App. 21, 27, 991 P.2d 717 (2000).
134 Wn. App. 462, 464, 140 P.3d 614 (2006), aff’d, 163 Wn.2d 1, 177 P.3d 686 (2008).
The instruction read, “ ‘make a telephone call refers to the entire call rather than the initiation of the call.’ ” Id. at 5 (internal quotation marks omitted).
Id. at 13.
Alphonse, 142 Wn. App. at 429 & n.21 (citing State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979); State v. Berry, 129 Wn. App. 59, 71, 117 P.3d 1162 (2005), review denied, 158 Wn.2d 1006 (2006)).
State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979).
The remainder of our original opinion is unchanged.
111 Wn.2d 923, 767 P.2d 572 (1989).
Id. at 928.
State v. Alexander, 76 Wn. App. 830, 836, 888 P.2d 175 (1995).
U.S. Const. amend. I (providing that Congress “shall make no law . . . abridging... the right... to petition the government for a redress of grievances”); City of Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (ordinance prohibiting speech that “ ‘in any manner . . . interrupt^] any policeman’ ” overbroad for failing to limit speech to language that is not constitutionally protected), appeal dismissed, cert. denied, 483 U.S. 1001 (1987).
State v. Kilburn, 151 Wn.2d 36, 43-44, 50-52, 84 P.3d 1215 (2004).
74 Wn. App. 237, 245 n.5, 872 P.2d 1115, review denied, 125 Wn.2d 1005 (1994).
Id. at 243 (citing State v. Talley, 122 Wn.2d 192, 210, 858 P.2d 217 (1993)).
Id. at 245 n.5 (emphasis added).
See In re Pers. Restraint of Parmelee, 115 Wn. App. 273, 287, 63 P.3d 800 (2003) (rejecting claim that vulgar language used in prison grievance was protected First Amendment speech because defendant was punished not for using grievance process, but for “degrading, abusive language he chose to use in the exercise of his right”), review denied, 151 Wn.2d 1017 (2004).
Alphonse did not raise this argument in the trial court. We address it here only because it implicates First Amendment rights.
Alphonse asserts in his reply that, unlike in Parmelee, here no threat was identified that distinguished it from the otherwise valid grievance and a limiting instruction was therefore required. But in Parmelee, the court simply concluded that the offensive language was not necessary to exercise the right to make a grievance and was therefore sanctionable. 115 Wn. App. at 287. And as discussed above, the threats made here were not necessary to convey Alphonse’s grievances.
See also Kilburn, 151 Wn.2d at 43 (holding that interpreting felony harassment statute to prohibit only true threats avoids overbreadth concerns).
Huff, 111 Wn.2d at 925 (citing Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 84 L. Ed. 1093 (1940)); City of Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d 366 (1988).
74 Wn. App. at 243 (citing Talley, 122 Wn.2d at 210).
id. at 244.
74 Wn. App. at 245 n.5 (citing People v. Taravella, 133 Mich. App. 515, 350 N.W.2d 780, 782-84 (1984)); Huff, 111 Wn.2d at 930.
115 Wn. App. 273, 287, 63 P.3d 800 (2003), review denied, 151 Wn.2d 1017 (2004).
337 U.S. App. D.C. 411, 187 F.3d 672 (1999).
Id. at 673-74.
Id. at 678.
RCW 9.61.230(1)(a), (c).
Id. (internal quotation marks omitted) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)); see also Kilburn, 151 Wn.2d at 42 (reiterating that such speech is “ ‘of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality’ ” (internal quotation marks omitted) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 504, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984))).
140 Wn.2d 19, 992 P.2d 496 (2000).
Id. at 29.
Eze, 111 Wn.2d at 26 (quoting O’Day v. King County, 109 Wn.2d 796, 810, 749 P.2d 142 (1988)).
City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990); Lorang, 140 Wn.2d at 30.
115 Wn.2d at 179 (citing Kolender v. Lawson, 461 U.S. 352, 361, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)).
Id. at 182 n.7 (quoting Basiardanes v. City of Galveston, 682 F.2d 1203, 1210 (5th Cir. 1982)).
See City of Seattle v. Webster, 115 Wn.2d 635, 802 P.2d 1333 (1990), cert. denied, 500 U.S. 908 (1992); State v. Stark, 66 Wn. App. 423, 434, 832 P.2d 109 (1992) (when statute requires specific criminal intent, “remaining terms are less vague or indefinite than they might otherwise be considered”).
Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957); State v. J-R Distribs., Inc., 82 Wn.2d 584, 600-01, 512 P.2d 1049 (1973), cert. denied, 418 U.S. 949 (1974).
See State v. Lansdowne, 111 Wn. App. 882, 891-92, 46 P.3d 836 (2002) (defining “indecent” as “ ‘not decent. . . altogether unbecoming; contrary to what the nature of things for which circumstances would dictate as right or expected or appropriate: hardly suitable: unseemly’ ”; defining “obscene” as “ ‘marked by violation of accepted language inhibitions and by the use of words regarded as taboo in polite usage’ ” (quoting Webster’s Third New International Dictionary 1147, 1557 (1993))).
ROW 9.61.230(1)(a). Alphonse refers to his use of the words “nigger, cracker, motherfucker and pussy” but neglects to mention the more explicit sexual references he used to describe sex acts he wished to perform with Meyers’ wife, which would clearly fall within the statute.
See Stark, 66 Wn. App. at 434. The additional cases appellant cited in the reply brief address federal and another State’s statutes and are contrary to our decisions in Dyson and Alexander. See Alexander v. Johnson, 217 F. Supp. 2d 780, 800-01 (S.D. Tex. 2001) (invalidating Texas stalking statute that prohibited calls intended to “ “harass, annoy, alarm, abuse, torment, embarrass, or offend’ ”), aff’d sub nom. Alexander v. Cockrell, 294 F.3d 626 (5th Cir. 2002); Popa, 337 U.S. App. D.C. 411.
Douglass, 115 Wn.2d at 181; Alexander, 76 Wn. App. at 841.
See Alexander, 76 Wn. App. at 842-43.
State v. Schimelpfenig, 128 Wn. App. 224, 226, 115 P.3d 338 (2005) (citing Shapiro v. Thompson, 394 U.S. 618, 630-31, 634, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974); Eggert v. City of Seattle, 81 Wn.2d 840, 845, 505 P.2d 801 (1973)).
Id. (citing Thompson, 394 U.S. at 634).
Id.
Id. at 228-29.
128 Wn. App. 224, 226, 115 P.3d 338 (2005).
Id.
Id. at 230.
Id. at 229.
See id. (holding that even if interest advanced by banishment order was compelling, order was not narrowly tailored to serve that interest); see also Halsted v. Sallee, 31 Wn. App. 193, 197, 639 P.2d 877 (1982) (restraining order banning mentally unstable father from traveling north of a certain town not sufficiently tailored to serve State interest in protecting children).
128 Wn. App. at 230; see also Halsted, 31 Wn. App. at 197 (less restrictive order prohibiting communication or contact could have served State interest in protecting children from mentally unstable father).
See, e.g., People v. Brockelman, 933 P.2d 1315 (Colo. 1997) (brutal assault and violation of restraining orders); Predick v. O’Connor, 2003 WI App 46, 260 Wis. 2d 323, 336-37, 660 N.W.2d 1 (assault, stalking, harassment, and repeated violations of no-contact orders), cert. denied, 540 U.S. 1047 (2003); State v. Nienhardt, 196 Wis. 2d 161, 537 N.W.2d 123 (Ct. App.) (repeated stalking and harassment), review denied, 540 N.W.2d 202 (1995).
Arguably, Reeves’ complaint alleging that Alphonse harassed her by e-mail demonstrates that this was a repeated offense, but no charges were ever filed as a result of this complaint. Additionally, the record indicates that Alphonse complied with a protective order Reeves obtained against him after the case involving her complaint was closed.