No. 49883-5-I | Wash. Ct. App. | Mar 10, 2003
The State charged Morning Mills with felony harassment. The crime of misdemeanor harassment is elevated to a felony when a jury finds the defendant threatened to kill his or her victim. In this case, the to-convict instruction contained all the elements of harassment, as defined by statute. A special verdict instruction and accompanying form were used to instruct the jury to decide, beyond a reasonable doubt, whether or not Mills threatened to kill her victim. After the jury found her guilty
FACTS
Billy Edwards has known Morning Mills and her family for years. Mills and Edwards were involved in a romantic relationship and had a child. When Mills’ relationship with Edwards later deteriorated, they stopped dating and Edwards began dating other women. On one occasion, Mills stabbed one of Edwards’ former girl friends and served 33 days in jail. Mills and Edwards stay in contact because of their child.
In June 1999, Edwards began a romantic relationship with Jonnika Lawrence, and a year later they moved in together. On June 7, 2000, at approximately 1:24 a.m., Lawrence and Edwards were asleep when the telephone rang. Lawrence answered it and recognized Mills on the other end of the line. Mills told her, “I told you about messing with him.” The defendant then told Jonnika to “shut up” and “look at your Altima, go look at your Altima.” Mills then hung up.
Hearing Lawrence on the phone, Edwards awoke and asked who called. Lawrence was frightened and upset by the call and talked to Edwards about it. Lawrence then went outside and saw that her car’s front window was
After talking to the police, Lawrence checked her phone messages and discovered a message left at 3:24 a.m.
Bitch, you fuckin’ bitch. I’m tired of playin’ around with you. Watch, I’m gonna get a year tops cause I murder your ass. I stabbed somebody for messing with Bill, I got 33 days. Now watch what I’m gonna get for murder. Bitch, you think I’m fuckin’ playin’. You get the motherfucker to my house. Bitch, you didn’t wanna call me back. Yeah, I’m a I’m a show you what I’m a gonna do. I’m a kill you suicide, you need to know who the fuck I am. I’m gonna kill you in the back of your head, I’m going to walk . . . slit your fuckin’ neck, you dumb ass bitch. That’s why I just found out what apartment you live in. Now I’m coming over now.
Lawrence was extremely frightened by the message and believed Mills would carry out her threat. Both Lawrence and Edwards listened to the message and thought they recognized the voice as Mills’. Lawrence believed the caller was Mills because of what the message said.
On June 3, 2000, Mills left a phone message with her phone number, telling Lawrence to call her “to discuss . . . our friend Billy Edwards.” Both Lawrence and Edwards listened to this message and recognized Mills’ voice as the person who made the call. Lawrence did not return the call.
The State charged Mills with second degree malicious mischief for the damage to the car, harassment for threatening to cause bodily injury to Lawrence, and felony harassment for threatening to kill her. At trial, Lawrence testified that she was unable to positively identify Mills’ voice on the 3:24 a.m. call on June 7, but she believed Mills made it for several reasons. During the message, the caller spoke in the first person, referred to the June 3, 2000 message by asking her why she had not returned her call to
Kent Police Detective David Trogden testified that after listening to the telephone messages and speaking with Lawrence and Edwards, he telephoned Mills using the number she left on the June 3 message. The person who answered the phone said she was Morning Mills and confirmed her birth date, but she denied leaving a threatening message. She also told Detective Trogden that she served 33 days for stabbing someone in the head for “messing with” Edwards, and Trogden confirmed that Mills had done so.
The jury found Mills guilty, and Mills appeals.
DISCUSSION
I. To-Convict Instruction
Mills contends she was deprived of due process because the to-convict jury instruction for felony harassment omitted the “threat to kill” element. The State argues that (1) she waived her right to appeal under RAP 2.5(a) by failing to object to the instruction below and (2) in any case the trial court instructed the jury on all of the crime’s elements. Failure to instruct the jury on every element of the crime charged is an error of constitutional magnitude that may be raised for the first time on appeal.
At the conclusion of the testimony, the trial court instructed the jury on the law. For count 1, felony harassment, the court instructed the jury that in order to find Mills guilty, each of the following elements must be proved beyond a reasonable doubt (instruction 8):
(1) That on or about June 7, 2000, the defendant knowingly threatened:
... to cause bodily injury immediately or in the near future to Jonnika Lawrence ...[;]
(2) That the words or conduct of the defendant placed Jonnika Lawrence in reasonable fear that the threat would be carried out;
(3) That the defendant acted without lawful authority; and -
(4) That the acts occurred in the County of King.[
The court also gave the jury the following special verdict instruction (instruction 9), which read:
If you find the defendant guilty of harassment, as charged in count 1, you will complete the special verdict form provided to you for this purpose. Since this is a criminal case, all twelve of you must agree on the answer to the special verdict. If you find the defendant not guilty of harassment, do not use the special verdict form.
If you find that the State has proved beyond a reasonable doubt that the defendant’s threat to cause bodily harm was a threat to kill the person threatened or another person, it will be your duty to answer the special verdict “yes”, as to count 1.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt that the defendant’s threat to cause bodily harm was a threat to kill the person threatened or another person, it will be your duty to answer the special verdict “no”, as to count 1.
THIS SPECIAL VERDICT IS TO BE ANSWERED ONLY IF THE JURY FINDS THE DEFENDANT GUILTY OF HARASSMENT.
We, the jury, return a special verdict by answering as follows, as to Count 1:
Did the defendant’s threat to cause bodily harm consist of a threat to kill the person threatened or another person?
Mills argues that omitting the “threat to kill” element from the to-convict instruction was fatal and requires reversal. The State asserts there was no error because the court’s instructions included a special verdict instruction and accompanying form including that element, and instructions 8 and 9 contained all of the crime’s elements. We agree.
As a general rule, the to-convict instruction need not specify every element of the charged crime in every case.
The State relies on State v. Oster.
Oster’s approach to evaluating jury instructions logically applies here as well because the crime charged, felony harassment, has the same statutory structure as the crime
The to-convict instruction here did not purport to contain all of the crime’s elements. Rather, the trial court followed the Washington Pattern Jury Instructions: Criminal (WPIC)
With murder, robbery, assault and other traditionally defined crimes, the jury’s failure to unanimously find any one of the elements requires it to acquit on the greater crime. But with crimes structured like harassment and violation of a no-contact order, there is only one specific element that distinguishes the greater, felony crime from the lesser, misdemeanor crime. Constructing a single instruction on the lesser included model under these circumstances has great potential to confuse the jury and result in erroneous verdicts. Indeed, the statutory structure of these crimes is more akin to enhancements like committing a crime while in possession of a firearm which the jury regularly decides by special verdict.
As stated, all the pertinent law need not be incorporated in one instruction.
In addition, there is no danger that this approach confused the jury. Instruction 1 informed the jury to consider the instructions as a whole and not place undue emphasis on any particular instruction or part of an instruction. Instruction 3 told them that each element was at issue, and the burden of proving each element beyond a reasonable doubt rested with the State. And instructions 8 and 9, when read together, supply all of the crime’s elements. The elements were not scattered throughout the court’s 22 instructions. Rather, they were clearly listed in two instructions placed one after the other, as contemplated by the WPIC.
The remainder of this opinion has no precedential value. Therefore, it will not be published but has been filed for public record. See RCW 2.06.040; CAR 14.
Affirmed.
Coleman and Ellington, JJ., concur.
Review granted at 149 Wn.2d 1032 (2003).
State v. DeRyke, 110 Wash. App. 815" court="Wash. Ct. App." date_filed="2002-03-11" href="https://app.midpage.ai/document/state-v-deryke-4740874?utm_source=webapp" opinion_id="4740874">110 Wn. App. 815, 819, 41 P.3d 1225" court="Wash. Ct. App." date_filed="2002-03-11" href="https://app.midpage.ai/document/state-v-deryke-2600832?utm_source=webapp" opinion_id="2600832">41 P.3d 1225 (2002) (citing State v. Aumick, 126 Wash. 2d 422" court="Wash." date_filed="1995-05-18" href="https://app.midpage.ai/document/state-v-aumick-1123467?utm_source=webapp" opinion_id="1123467">126 Wn.2d 422, 429-30, 894 P.2d 1325" court="Wash." date_filed="1995-05-18" href="https://app.midpage.ai/document/state-v-aumick-1123467?utm_source=webapp" opinion_id="1123467">894 P.2d 1325 (1995)).
Id. (citing State v. Pirtle, 127 Wash. 2d 628" court="Wash." date_filed="1995-10-12" href="https://app.midpage.ai/document/state-v-pirtle-4710921?utm_source=webapp" opinion_id="4710921">127 Wn.2d 628, 656, 904 P.2d 245" court="Wash." date_filed="1995-10-12" href="https://app.midpage.ai/document/state-v-pirtle-1387349?utm_source=webapp" opinion_id="1387349">904 P.2d 245 (1995), cert. denied, 518 U.S. 1026" court="SCOTUS" date_filed="1996-06-24" href="https://app.midpage.ai/document/austin-v-united-states-9156936?utm_source=webapp" opinion_id="9156936">518 U.S. 1026 (1996)).
Id. at 819-20 (citing State v. Brown, 132 Wash. 2d 529" court="Wash." date_filed="1997-07-24" href="https://app.midpage.ai/document/state-v-brown-4711260?utm_source=webapp" opinion_id="4711260">132 Wn.2d 529, 605, 940 P.2d 546" court="Wash." date_filed="1997-08-13" href="https://app.midpage.ai/document/state-v-brown-1172674?utm_source=webapp" opinion_id="1172674">940 P.2d 546 (1997), cert. denied, 523 U.S. 1007" court="SCOTUS" date_filed="1998-03-09" href="https://app.midpage.ai/document/jackson-v-california-9162976?utm_source=webapp" opinion_id="9162976">523 U.S. 1007 (1998)).
Id. at 820 (citing State v. Mark, 94 Wash. 2d 520" court="Wash." date_filed="1980-10-09" href="https://app.midpage.ai/document/state-v-mark-1391499?utm_source=webapp" opinion_id="1391499">94 Wn.2d 520, 526, 618 P.2d 73 (1980)).
The court also instructed the jury on alternative means of threatening the victim.
State v. Emmanuel, 42 Wash. 2d 799" court="Wash." date_filed="1953-07-02" href="https://app.midpage.ai/document/state-v-emmanuel-1163092?utm_source=webapp" opinion_id="1163092">42 Wn.2d 799, 819, 259 P.2d 845 (1953).
42 Wash. 2d 799" court="Wash." date_filed="1953-07-02" href="https://app.midpage.ai/document/state-v-emmanuel-1163092?utm_source=webapp" opinion_id="1163092">42 Wn.2d 799, 259 P.2d 845 (1953).
Emmanuel, 42 Wash. 2d 799" court="Wash." date_filed="1953-07-02" href="https://app.midpage.ai/document/state-v-emmanuel-1163092?utm_source=webapp" opinion_id="1163092">42 Wn.2d at 819.
Id.
id.
Brown, 132 Wash. 2d 529" court="Wash." date_filed="1997-07-24" href="https://app.midpage.ai/document/state-v-brown-4711260?utm_source=webapp" opinion_id="4711260">132 Wn.2d at 605.
147 Wash. 2d 141" court="Wash." date_filed="2002-08-15" href="https://app.midpage.ai/document/state-v-oster-4712290?utm_source=webapp" opinion_id="4712290">147 Wn.2d 141, 52 P.3d 26" court="Wash." date_filed="2002-08-15" href="https://app.midpage.ai/document/state-v-oster-2519675?utm_source=webapp" opinion_id="2519675">52 P.3d 26 (2002).
Id. at 144.
Id. at 147.
Id. Mills argues that Oster authorizes this procedure only when prior convictions are the factor that elevate a misdemeanor to a felony because it benefits the defendant only in that circumstance. We do not read Oster so narrowly. The language Mills relies on limits its precise holding to the facts of that case but does not preclude applying its rationale to other similarly-structured crimes.
RCW 26.50.110.
RCW 26.50.110(5).
Under RCW 9A.46.020,
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person;. . .
(2) A person who harasses another is guilty of a gross misdemeanor. . . except that the person is guilty of a class C felony if. .. (b) the person harasses another person under subsection (l)(a)(i) of this section by threatening to kill the person threatened or any other person.
Technically, there is no separate crime of “felony harassment.” The crime is harassment, and the severity of the penalty depends on the severity of the threat.
For example, the Revised Code of Washington has four separate statutes for the crime of assault. While the different felony classes of assault are set forth under RCW 9A.36.011-.031, misdemeanor assault is set forth under its own statute, RCW 9A.36.041. The Revised Code of Washington also separates felony theft from misdemeanor theft. While RCW 9A.56.030-.040 set forth the elements of felony theft, RCW 9A.56.050 sets forth the elements of misdemeanor theft.
11 Washington Pattern Jury Instructions: Criminal 36.07-.09 (2d ed. 1998).
Former RCW 9.94A.310(3) (2000) recodified as RCW 9.94A.510(3). Other similar examples are the drug crime enhancements for proximity to a school, school bus or park. Former RCW 9.94A.310(5) recodified as RCW 9.94A.510(5) (2001).
Emmanuel, 42 Wash. 2d 799" court="Wash." date_filed="1953-07-02" href="https://app.midpage.ai/document/state-v-emmanuel-1163092?utm_source=webapp" opinion_id="1163092">42 Wn.2d at 819.
DeRyke, 110 Wash. App. 815" court="Wash. Ct. App." date_filed="2002-03-11" href="https://app.midpage.ai/document/state-v-deryke-4740874?utm_source=webapp" opinion_id="4740874">110 Wn. App. at 819-20 (citing Brown, 132 Wash. 2d 529" court="Wash." date_filed="1997-07-24" href="https://app.midpage.ai/document/state-v-brown-4711260?utm_source=webapp" opinion_id="4711260">132 Wn.2d at 605).
While the WPIC’s are not binding on the court, they are persuasive authority. State v. L.J.M., 79 Wash. App. 133" court="Wash. Ct. App." date_filed="1995-08-29" href="https://app.midpage.ai/document/state-v-ljm-6880403?utm_source=webapp" opinion_id="6880403">79 Wn. App. 133, 140, 900 P.2d 1119" court="Wash. Ct. App." date_filed="1995-08-29" href="https://app.midpage.ai/document/state-v-ljm-1158314?utm_source=webapp" opinion_id="1158314">900 P.2d 1119 (1995), reversed on other grounds, 129 Wash. 2d 386" court="Wash." date_filed="1996-06-20" href="https://app.midpage.ai/document/state-v-ljm-4711014?utm_source=webapp" opinion_id="4711014">129 Wn.2d 386, 918 P.2d 898" court="Wash." date_filed="1996-06-20" href="https://app.midpage.ai/document/state-v-ljm-1192518?utm_source=webapp" opinion_id="1192518">918 P.2d 898 (1996).