A jury found Mark Wooden guilty of two counts of harassment, one under § 565.090.1(2)
Wooden’s emails contained personally offensive language and references to sawed-off shotguns, assassinations, and domestic terrorism and did not constitute protected speech. This Court concludes that § 565.090.1(2) is constitutional as applied to Wooden and that there was sufficient evidence to support his conviction. Because State v. Vaughn invalidated § 565.090.1(5) and the State concedes that manifest injustice will result if the conviction under that statute is not reversed, the judgment as to count II, as conceded, is set aside. The remainder of the judgment is affirmed.
Factual and Procedural History
Between February 19, 2011, and February 24, 2011, Mark Wooden, a resident of the city of St. Louis, sent a number of emails to various St. Louis area public officials. The emails contained text, audio attachments, or both. An alderwoman for the Sixth Ward of St. Louis was one of the recipients of these emails. Wooden did not send any email to the alderwoman exclusively, and each email included as many as 40 recipients. The alderwoman received the emails at an address displayed on her official website.
On February 19, 2011, the alderwoman received an email from Wooden with a 19 minute long audio attachment. The attachment specifically referenced the aider-woman and compared her to the biblical character Jezebel who, Wooden stated, abused her weaker subjects. Wooden asserted that, like Jezebel, the alderwoman spent too much time caring for the powerful and rich in her community and did not visit or care for the poorer neighborhoods in the Sixth Ward. Wooden repeatedly used the word “bitch” and referred to the alderwoman as a “bitch in the Sixth Ward.” In the audio attachment, Wooden made reference to dusting off a sawed-off shotgun and indicated that, at one point in life, he had personally sawed off the barrel of a shotgun and sanded down the edges. Wooden stated he was going to make “a mess of everything with his sawed-off.” Additionally, Wooden referred to himself as a domestic terrorist and referred to the John F. Kennedy assassination, the murder of a federal judge, and the shooting of a congresswoman, presumably the shooting of Congresswoman Gabrielle Giffords and murder of United States District Court Judge John Roll. Wooden’s tone
The alderwoman received four emails between February 19 and February 21. On February 21, after receiving the fourth email, she emailed Wooden and asked him to stop emailing her. Between February 21 and February 24, Wooden sent three additional emails. At some point, the alderwoman contacted the police because she felt threatened by the emails. She also sought a restraining order because, as she testified at trial, she feared for her safety due to the threatening nature of the emails and the references to the sawed-off shotgun.
Wooden was arrested February 24, 2011. The State charged Wooden with one count of harassment under § 565.090.1(2) (count I), one count of harassment under § 565.090.1(5) (count II), and one count of possession of marijuana (count III). Wooden moved for dismissal of the harassment charges arguing that they violated his constitutional rights to freedom of speech and to petition the government for redress of grievances. The circuit court overruled the motion. The case proceeded to a jury trial, and Wooden was found guilty of all three charges. Wooden was sentenced to one day in jail for each count, to be served concurrently. This case involves the validity of a state statute; therefore, this Court has jurisdiction. Mo. Const, art. V, sec. 3.
Constitutionality of § 565.090.1(2)
Standard of Review
This Court reviews the circuit court’s determination of the constitutional validity of a state statute de novo. Vaughn,
Analysis
Wooden asserts that § 565.090.1(2) is unconstitutional as applied to him because his speech was protected under the First Amendment to the United States Constitution and Mo. Const, art. I, sec. 8.
1. A person commits the crime of harassment if he or she:
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(2) When communicating with another person, knowingly uses coarse language offensive to one of average sensibility and thereby puts such person in reasonable apprehension of offensive physical contact or harm[.]
Wooden asserts that his communications were meant as a commentary about the performance of his elected governmental representative and, therefore, constituted protected political speech.
“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chicago v. Mosley,
But the right to free speech “is not absolute at all times and under all circumstances.” Chaplinsky v. New Hampshire,
While Wooden’s communications with the alderwoman involved criticism of her work as alderwoman, Wooden has not carried his burden of demonstrating that § 565.090.1(2), as applied to him, clearly contravenes a constitutional provision. In addition to the criticism of the alderwoman and other St. Louis area public officials, Wooden discussed using a sawed-off shotgun, domestic terrorism, and the assassination or murder of politicians. He did so while likening the alderwoman to the biblical character, Jezebel, who was eaten by dogs as punishment for her abuse of power, and referring to the alderwoman as a “bitch in the Sixth Ward.” These communications are words that, taken together, “through their very utterance inflict injury or tend to incite an immediate breach of the peace” and are not protected by the First Amendment or the Missouri Constitution. Chaplinsky,
Wooden urges this Court to follow the United States Supreme Court case of Cohen v. California. Cohen was convicted of disturbing the peace for wearing a jacket bearing the words “F— the Draft.”
Cohen is distinguishable from Wooden’s case. Wooden’s argument that his conviction rests solely on the offensiveness of the language he used completely ignores his references to dusting off his shotgun, domestic terrorism, and the assassination of a number of politicians. Unlike in Cohen, where the statute criminalized only “offensive conduct,” here § 565.090.1(2) required the jury to find Wooden used “coarse language offensive to one of average sensibilities” and that such communication “put[ ] [the alderwoman] in reasonable apprehension of offensive physical contact or harm.” Speech that causes a fear of physical harm is not speech protected by either the United States or Missouri constitutions. Rather, it falls into the category of words “[that] by their very utterance inflict injury or tend to incite an immediate breach of the peace” and do not receive constitutional protection. Chaplinsky,
Sufficiency of the Evidence for the Conviction under § 565.090.1(2)
Standard of Review
When judging the sufficiency of the evidence to support a conviction, appellate courts do not weigh the evidence but accept as true all evidence tending to prove guilt together with all reasonable inferences that support the verdict and ignore all contrary evidence and inferences. State v. Latall,
Analysis
Section § 565.090.1(2) has three elements: 1) the defendant makes a communication with another person, 2) during that communication the defendant uses “coarse language offensive to one of average sensibility,” and 3) “thereby puts such person in reasonable apprehension of offensive physical contact or harm.” Wooden admits that he made a communication, but he asserts that there was insufficient evidence for a juror to reasonably find the final two elements of the crime.
Wooden argues that there was insufficient evidence to support a finding that he used coarse language offensive to one of average sensibility in his communications. This Court in State v. Koetting,
Wooden also argues that there was insufficient evidence to find that the alderwoman’s fear of harm or physical contact was reasonable. Wooden argues that the fear was unwarranted because he did not make any specific threats of harm and his statements were “metaphoric.” As has been noted repeatedly, Wooden singled out the alderwoman in his audio attachment, he discussed the assassination of politicians, referred to himself as a domestic terrorist, and stated he would make a mess of things with his shotgun. Wooden’s claims that the statements were metaphoric is irrelevant. There was no way for the alderwoman, or a reasonable juror, to know Wooden’s subjective intent simply by listening to the audio attachments or reading the email. The lack of specific threats is also unpersuasive. Section 565.090.1(2) does not require specific threats against a person, only a reasonable apprehension of harm. Nothing in this Court’s precedent or the plain meaning of the statute indicates that the only way a person can be put in reasonable apprehension of harm is through specific threats. Reviewing all the evidence on the record, there was sufficient evidence from which a juror could reasonably find that the alderwoman was placed in reasonable apprehension of offensive physical contact or harm by the coarse language used by Wooden.
Conviction Under § 565.090.1(5)
Wooden also challenges his conviction under count II for violation of § 565.090.1(5). Wooden argues that he has suffered a manifest injustice because this Court in State v. Vaughn ruled that § 565.090.1(5) was unconstitutionally over-broad. The State concedes that allowing Wooden’s conviction for count II to stand would constitute a manifest injustice. The judgment as to count II is reversed.
Conclusion
For the foregoing reasons, the judgment as to count II is reversed. In all other respects, the judgment is affirmed.
Notes
. All statutory references are to RSMo Supp. 2011, unless otherwise noted.
. Mo. Const, art. I, sec. 8 provides:
That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.