State v. AvilaState v. Avila
Juvenile Wilson Avila was convicted of intimidating his teacher, violating
Fifteen-year-old Wilson Avila attended public school in Waterville. In January 1999, Mr. Avila left a derogatory note on the desk of his teacher, Kenneth Kimes. In response, Mr. Kimes wrote a referral slip reporting Mr. Avila‘s misconduct. Another student, Jami Riddell, escorted Mr. Avila to the principal‘s office with the referral.
On the way, Mr. Avila told Ms. Riddell that if the referral was for him, saying he was not doing his “f_____g” work, he was going to “blow off Mr. Kimes’ f_____g head.” After leaving Mr. Avila at the principal‘s office, Ms. Riddell told Mr. Kimes what Mr. Avila said. Later in the day, Mr. Avila made a similar statement to another classmate, Starrla Scharpp. Ms. Scharpp told Mr. Avila she was going to tell Mr. Kimes. Mr. Avila replied he did not care. Ms. Scharpp then told Mr. Kimes. Mr. Kimes reported the incident to the school administrator and to law enforcement. Mr. Kimes was concerned whether Mr. Avila “was going to do what he said he was going to do.” The day after the incident, Mr. Avila admitted making the statements when questioned by Douglas County Deputy Sheriff Michael Robins. Mr. Kimes also sought a restraining order against Mr. Avila.
The State charged Mr. Avila with one count of intimidating a school administrаtor or teacher,
Mr. Avila appealed.
ANALYSIS
A. Elements
The issues are whether the trial court erred in сoncluding it was unnecessary for the State to establish that Mr. Avila intended to convey his threats to Mr. Kimes and then deciding the evidence was sufficient to support each element of intimidating Mr. Kimes under
The first issue turns on the correct interpretation of
It shall be unlawful for any person, singly or in concert with others, to intimidate by threat of force or violence any administrator, teacher, classified employee, or student of any common school who is in the peaceful discharge or conduct of his or her duties or studies.
Violation of
When interpreting a statutе, the reviewing court strives to give effect to the Legislature‘s intent. Hubbard v. Dep‘t of Labor & Indus., 140 Wash.2d 35, 43, 992 P.2d 1002 (2000). The appellate court reads each provision of the statute in relation to each other and construes the statute as a whole. Id. at 43, 992 P.2d 1002. And unless there is ambiguity, this court derives the meaning of the statute from its language alone. Azpitarte, 140 Wash.2d at 142, 995 P.2d 31.
Mr. Avila contends
The statute does not define “intimidate.” The common meaning of intimidate is “to make timid or fearful: inspire or affect with fear: FRIGHTEN.” Webster‘s Third New International Dictionary 1184 (1993). The term “intimidate” is somewhat ambiguous; it “suggests a display or application (as of force or learning) so as to cause fear or a sense of inferiority and a consequent submission.” Webster‘s, supra, 1184 (emphasis added). Consequently, according to the common meaning of the term, an intimidated teacher
“Violence” includes numerous definitions. Webster‘s, supra, 2554. “Force” also elicits too many disparate meanings to list here, but they run the gamut from “power, violence, compulsion, or constraint exerted upon or against a person or thing” to “the quality of conveying impressions intensely in writing or speech.” Webster‘s, supra, 887.
Read broadly, the statute could apply to а student who intimidates his or her teacher by threatening to openly ridicule the teacher‘s professional qualifications. Or a student could be guilty of intimidation if he or she threatens to blow off his or her teacher‘s head. Hence, the plain language of the statute is ambiguous as to the prohibited activity.
“An ambiguous statute is subject to construction.” State v. Bash, 130 Wash.2d 594, 601, 925 P.2d 978 (1996) (citing Whatcom County v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996)). “Where a statute is amenable to more than оne interpretation, legislative history and other aids to construction may provide guidance in construing the statute to give effect to the intent of the Legislature.” Bash, 130 Wash.2d at 601, 925 P.2d 978 (citing Kadoranian v. Bellingham Police Dep‘t, 119 Wash.2d 178, 185, 829 P.2d 1061 (1992)).
Resort to the legislative history reveals
Section 1 of House Bill No. 162, later codified as
It shall be unlawful for any person, singly or in concert with others, to interfere by force or violence with any administrator, faculty member or student of any university, college, community college or public school who is in the peaceful disсharge or conduct of his duties or studies.
Section 2, later codified as
It shall be unlawful for any person, singly or in concert with others, to intimidate by threat of force or violence any administrator, faculty member or student of any university, college, community college or public school who is in the peaceful discharge or conduct of his duties or studies.
Certain representatives рroposed and failed to pass an amendment inserting the word “willfully” between “interfere” and “by force” in Section 1 and between “to” and “intimidate” in Section 2.1970 House Journal 251-52.
In 1971, the Legislature amended the two statutes and enacted separate and virtually identical provisions pertaining to public schools. Laws of 1971, ch. 45. Apart from some minor amendments, these statutes have remained unchanged. Thus,
A legal commentator analyzed the original campus disturbance statutes soon after their enactment. See Note: Statutory Control of Campus Disorder in Washington: Effect of R.C.W. §§ 28B.10.570-.573 (1970), 47 Wash. L.Rev. 501 (1972). Regarding intent, the commentator reasoned “since the conduct prohibited is malum in se, as distinguished from an offense malum prohibitum, the statute implicitly requires that the actor have a guilty mind to be held criminally responsible.” Note, supra, 47 Wash. L.Rev. at 502 (footnote omitted).
In connection with the clause “to intimidate by threat of force or violence,” the commentator proposed three necessary elements.
The writer went on to note that “intimidation may be difficult to prove, since it is defined by the criminal law as ‘putting in fear.‘” Note, supra, 47 Wash. L.Rev. at 504 (quoting Armstrong v. Ellington, 312 F.Supp. 1119 (W.D.Tenn.1970); Shehany v. Lowry, 170 Ga. 70, 152 S.E. 114 (1930)). “Even though the actor‘s conduct may annoy or perturb some, punishment under the statute wоuld not be justified without a showing of actual interference or a ‘putting in fear.‘” Note, supra, 47 Wash. L.Rev. at 504.
The legislative history and the law review commentary indicate that the Legislature originally intended
The State asserts it need not prove Mr. Avila intended to carry out the threat or intended to communicate the threat directly or indirectly to Mr. Kimes, merely that the threat was made. To support its argument, the State relies on State v. Edwards, 84 Wash.App. 5, 924 P.2d 397 (1996); State v. Kepiro, 61 Wash.App. 116, 810 P.2d 19 (1991); and State v. Hansen, 122 Wash.2d 712, 862 P.2d 117 (1993).
Edwards discussed
The Edwards court relied on Kepiro, which discusses
[A] person is guilty of intimidating a judge if a person directs a threat to a judge because of a ruling or decision of the judge in any official proceeding, or if by use of a threat directed to a judge, a person attempts to influence a ruling or decision of the judge in any official proceeding.
The Kepiro court held the statute did not contain an implied element of actual or subjective intent to cause harm. Kepiro, 61 Wash.App. at 123, 810 P.2d 19. The Kepiro court, relying on policy grounds stated in analogous federal cases, reasoned:
We believe that [RCW 9A.72.160(1) ] was designed in part to prevent the disruption of judicial activity which flows from the making of a threat, and such disruption clearly can result whether or not the maker of the threat has any intent to carry it out.
Kepiro, 61 Wash.App. at 123, 810 P.2d 19.
In Hansen, the Supreme Court held
[W]hoever threatens a judge, either directly or indirectly, e.g., through a third person, because of an official ruling or decision by that particular judge, is chargeable under RCW 9A.72.160. The threat may ultimately find its way to the judge, but that is irrelevant with regards to the commission of the crime.
Hansen, 122 Wash.2d at 718, 862 P.2d 117.
The holdings set forth in Edwards, Kepiro, and Hansen provide support for the State‘s interpretation of
Because the purpose of
But we also conclude
It is quite conceivable a particularly young оr immature student engaging in horseplay could inadvertently utter a threat without “evil intent or guilty knowledge.” See Bash, 130 Wash.2d 594, 605, 925 P.2d 978 (1996) (reviewing court must consider whether strict liability reading of crime would encompass innocent conduct). Logically, it follows that a violation of
For example, a student could intentionally utter a secret desire to kill a teacher to another student without intending the threat to reach the ears of the teacher. But if such a threat does reach the teacher, the teacher may be intimidated. This interpretation is consistent with the Legislature‘s intent to avoid school disruptions and protect persons in school environments from being intimidated by threats of force and violence. Accordingly, we conclude it is not necessary to prove the speaker of the threat intended to intimidate the target of the threat.
Additionally, we conclude
The State‘s position would seem to have merit if this were a prosecution under the companion statute,
Mr. Avila makes a passing reference to the dangers of an overbroad statute infringing upon the First Amendment. But because he cites no authority on the issue and presents no reasoned argument, we do not address the constitutionality of the statute. State v. Johnson, 119 Wash.2d 167, 171, 829 P.2d 1082 (1992).
In sum, the threat must pertain to force or violence. The State is not required
B. Evidence Sufficiency
Next, we test the sufficiency of the evidence using the above standard. The juvenile court convicted Mr. Avila following an adjudicatory hearing. JuCR 7.11. The State must prоve each element of the charged crime beyond a reasonable doubt. State v. Alvarez, 128 Wash.2d 1, 13, 904 P.2d 754 (1995); JuCR 7.11(a).
Particularly significant is the implied element of Mr. Avila‘s intent to utter a threat. “Evidence is sufficient to support an adjudication of guilt in a juvenile proceeding if any rational trier of fact, viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime beyond a reasonable doubt.” State v. Echeverria, 85 Wash.App. 777, 782, 934 P.2d 1214 (1997) (citing, inter alia, State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980)).
Regarding the juvenile court‘s decision, JuCR 7.11(d) partly states:
The court shall enter written findings and conclusions in a case that is appealed. The findings shall state the ultimate facts as to each element of the crime and the evidence upon which the court relied in reaching its dеcision.
On appeal, this court reviews the juvenile court‘s findings “to determine whether they are supported by substantial evidence, which is a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the allegation.” Echeverria, 85 Wash.App. at 783, 934 P.2d 1214 (citing State v. Halstien, 122 Wash.2d 109, 128-29, 857 P.2d 270 (1993)). Here, the juvenile court‘s findings of fact are unchallenged and are thus verities on appeal. State v. Gentry, 125 Wash.2d 570, 605, 888 P.2d 1105 (1995).
The language of JuCR 7.11(d) is mandatory. Alvarez, 128 Wash.2d at 16, 904 P.2d 754. The juvenile court‘s findings of fact and conclusions of law must specifically state the ultimate facts necessary to support a conviction. Id. at 17, 904 P.2d 754. Failure to adhere to JuCR 7.11(d) will result in remand for entry of sufficient findings of fact and conclusions of law. Id. at 19, 904 P.2d 754.
Here, the juvenile court did not enter findings of fact and conclusions of law regarding the ultimate facts whether Mr. Avila intеnded to utter the threatening statements, and whether those statements intimidated Mr. Kimes. Lack of findings requires remand for entry when the record contains facts supporting the missing findings. Id.; see also State v. Hescock, 98 Wash.App. 600, 606, 989 P.2d 1251 (1999) (noting Alvarez court “remanded where evidence supported conviction but trial court failed to enter findings of ultimate facts“).
The unchallenged findings show the incident occurred at a public school, when Mr. Kimes was engaged in his regular teaching activities, and that Mr. Avila said he wanted to blow off Mr. Kimes’ head. Mr. Avila issued the threat to two students at different times. Further, Mr. Avila said he did not care if Ms. Scharpp reported the statement to Mr. Kimes. Mr. Kimes sent a referral slip to the school office regarding Mr. Avila‘s threat. Mr. Kimes contacted law enforcement аuthorities and sought a restraining order against Mr. Avila. Further, Mr. Kimes testified he notified the authorities because of his concern whether Mr. Avila would carry out his threat. Although the trial court specifically found Mr. Avila did not actually intend to convey the threat to Mr. Kimes, from this record, a reasonable trier of fact could find Mr. Avila intended the statements as threats. Last, a fact finder could decide from this record that the threatening
In sum, although the evidence is sufficient to support Mr. Avila‘s conviction, we must, consistent with Alvarez, remand for “revision of findings to adequately state ultimate facts[.]” Id. “However, no additional evidence may be taken; the findings and conclusions are to be based on the evidence already taken.” State v. Head, 136 Wash.2d 619, 625, 964 P.2d 1187 (1998) (citing Alvarez, 128 Wash.2d at 20-21, 904 P.2d 754).
CONCLUSION
Wе decide the evidence is sufficient to prove a violation of
Conviction affirmed, remanded for entry of ultimate findings.
KURTZ, C.J., and SCHULTHEIS, J., concur.