765448MAJJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 76544-8
Title of Case: State of Washington, Respondent V Tracey
Jade Johnston, Petitioner.
File Date: 01/26/2006
Oral Argument Date: 10/11/2005


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County
01-1-06348-7
Honorable Dale Ramerman


JUSTICES
--------
Authored by Barbara A. Madsen
Concurring: James Johnson
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Susan Owens
Tom Chambers
Mary Fairhurst
Dissenting: Richard B. Sanders


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Sarah Mcneel Hrobsky
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Gregory Charles Link
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Ian Michael Goodhew
King Co Pros Ofc
516 3rd Ave
Seattle, WA 98104-2390

Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA 98104

James Morrissey Whisman
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2362

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 76544-8
Respondent, )
)
v. ) En Banc
)
TRACEY JADE JOHNSTON a/k/a )
TRACEY JADE JOHNSON, )
)
Petitioner. ) Filed January 26 2006
)

MADSEN, J. - Petitioner Tracey Johnston contends that because the jury
instructions did not define 'threat' as a 'true threat,' the Court of
Appeals erred in affirming his conviction for threatening to bomb Sea-Tac
International Airport. He also argues that the bomb threat statute is
unconstitutionally overbroad unless it is given a limiting construction to
prohibit only true threats. Finally, Johnston argues that there is
insufficient evidence that he made a true threat and, thus, the charge
against him must be dismissed. We agree that the jury was improperly
instructed and that the statute must be construed to prohibit only true
threats and reverse the Court of Appeals. However, we remand for a new
trial under proper instructions.
FACTS
On May 2, 2001, Alaska Airlines flight attendant Jennifer Stellflug
noticed two passengers, petitioner Tracey Johnston and another man, who
appeared to be intoxicated. After seeing the men drinking alcoholic
beverages, Stellflug told the men the use of personal alcohol was not
permitted. Following a second warning about the use of alcohol, she
confiscated an alcoholic beverage from the men. She and other flight
attendants advised the pilots of the situation, who notified controllers at
Sea-Tac, who in turn notified Port of Seattle police.
Port of Seattle Officer Raymond Blackwell met the incoming flight.
Blackwell testified that when Johnston got off the plane it was obvious he
had been drinking -- '{t}here was a strong odor of alcohol and his eyes
were watery and blood shot.' Transcript of Proceedings (Oct. 4, 2001) (TR)
at 85. Blackwell detained Johnston, obtained his identification and ran a
computer check, then arrested Johnston on two outstanding misdemeanor
warrants. Blackwell took Johnston to the airport security office.
Blackwell testified that Johnston was 'visibly upset' about the arrest, TR
at 96, and that while Blackwell was booking Johnston and writing his report
Johnston 'started vocalizing his unhappiness.' TR at 92. Johnston said
that 'he would come back to the airport and . . . this place up' and that
'he was going to blow this place up.' TR at 94. Blackwell testified that
Johnston said that 'he knew about the airport, and he knew what it would
take . . . all he needed was a Ryder truck and some nitro diesel fuel . . .
.' TR at 94-95. Johnston also said that 'he would fin{d} that bitch of a
flight attendant . . . and get her and said he believed she lived in Mercer
Island.' TR at 94.
Johnston was charged with threats to bomb or injure property in
violation of RCW 9.61.160.1 Over defense counsel's objection, the trial
court instructed the jury that '{t}hreat means to communicate, directly or
indirectly, the intent to wrongfully cause physical damage to the property
of a person other than the actor,' Clerk's Papers (CP) at 16 (Jury
Instruction 2.02), and declined to give Johnston's proposed instruction
defining a 'true threat.' In closing argument, Johnston's counsel
described Johnston as drunk and suggested that the jury should not convict
because Johnston's threat could not be taken seriously under these
circumstances. The State's objection to this argument was sustained. The
prosecuting attorney argued that intent to carry out the threat was not
required. During jury deliberations, the jury asked, 'Are we suppose{d} to
judge if defendant is guilty of only 'saying the words' or deciding if
defendant 'actually has intent to carry out the threat{?}'' CP at 21.
Over a defense objection, the trial court responded, 'Intent to carry out
the threat is not an element of the crime.' CP at 21. Johnston was
convicted and he appealed.
The Court of Appeals affirmed the conviction in an unpublished
opinion. Johnston petitioned for discretionary review. We granted the
petition and remanded to the Court of Appeals for reconsideration in light
of State v. Kilburn, 151 Wn.2d 36, 84 P.3d 1215 (2004). The Court of
Appeals again affirmed the conviction in an unpublished opinion. State v.
Johnston, noted at 123 Wn. App. 1044, 2004 Wash. App. LEXIS 2364. The
court reiterated its prior holdings that RCW 9.61.160(1) is neither
overbroad nor limited to unprotected speech and the jury was properly
instructed. The Court of Appeals distinguished Kilburn on the basis that
the statements in Kilburn were made in jest, unlike Johnston's statements.
Johnston again sought discretionary review, which we granted.
ANALYSIS
The parties agree that RCW 9.61.160 must be construed to limit its
application to true threats in order to avoid facial invalidation of the
statute on overbreadth grounds2 under the first amendment to the United
States Constitution and article I, section 5 of the Washington
Constitution.3 The Court of Appeals, however, concluded that RCW 9.61.160
is neither overbroad nor limited to unprotected speech. See Johnston, 2004
Wash. App. LEXIS 2364, at **6, 9.
RCW 9.61.160(1) provides in relevant part:
It shall be unlawful for any person to threaten to bomb or otherwise injure
any public or private school building, any place of worship or public
assembly, any governmental property, or any other building, common carrier,
or structure, or any place used for human occupancy . . . .

The statute regulates pure speech and therefore 'must nevertheless be
'interpreted with the commands of the First Amendment clearly in mind.''
State v. Williams, 144 Wn.2d 197, 207, 26 P.3d 890 (2001) (quoting Watts v.
United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969)).
Certain categories of speech ''are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.'' Kilburn, 151 Wn.2d at 42 (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)). One of these categories of punishable words is
'true threats.' Virginia v. Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155
L. Ed. 2d 535 (2003); Kilburn, 151 Wn.2d at 43 (citing cases) ('true
threats' are unprotected speech).4
We have adopted an objective standard for determining what constitutes
a true threat: A 'true threat' is a statement
'in a context or under such circumstances wherein a reasonable person would
foresee that the statement would be interpreted . . . as a serious
expression of an intention to inflict bodily harm upon or to take the life
of {another individual}.'

United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990) (alteration
in original) (quoting United States v. Hoffman, 806 F.2d 703, 707 (7th Cir.
1986)), quoted in Williams, 144 Wn.2d at 207-08; State v. J.M., 144 Wn.2d
472, 478, 28 P.3d 720 (2001); Kilburn, 151 Wn.2d at 43; see State v.
Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998). '{W}hether a true
threat has been made is determined under an objective standard that focuses
on the speaker.' Kilburn, 151 Wn.2d at 44.5 'A true threat is a serious
threat, not one said in jest, idle talk, or political argument.' Id. at
43.
The United States Supreme Court has said that ''{t}rue threats'
encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.' Black, 538 U.S. at 359.6
'The speaker need not actually intend to carry out the threat.' Id. at 359-
60; see Kilburn, 151 Wn.2d at 45-48. The reasons that true threats of
violence are unprotected speech are to protect individuals from the fear of
violence, the disruption engendered by that fear, and the possibility that
the threatened violence will occur. Black, 538 U.S. at 360; see R.A.V. v.
City of St. Paul, 505 U.S. 377, 388, 112 S. Ct. 2538, 120 L. Ed. 2d 305
(1992); Kilburn, 151 Wn.2d at 43; J.M., 144 Wn.2d at 478.
The constitutionality of the Washington bomb threat statute has been
addressed in only a few cases. The Court of Appeals in the present case
relied on two cases in support of its conclusion that RCW 9.61.160 is not
overbroad, State v. Edwards, 84 Wn. App. 5, 16-17, 924 P.2d 397 (1996) and
State v. Smith, 93 Wn. App. 45, 47-48, 966 P.2d 411 (1998). Initially, as
Johnston correctly points out, the analysis in Edwards is flawed because it
conflates two categories of unprotected speech, fighting words and true
threats, as the court in Smith explained. Id. at 49-50. The court in
Smith properly recognized that the statute must be construed to prohibit
only unprotected speech in order to avoid overbreadth. Id. at 48-50; see
also State v. Brown, 50 Wn. App. 405, 411, 748 P.2d 276 (1988) (RCW
9.61.160 is 'not overbroad because it is readily susceptible to a narrow
construction . . . which limits its application to unprotected speech,'
i.e., threats of harm to others). But as Johnston contends, Edwards and
Smith do not support the Court of Appeals' twin conclusions that the
statute is neither overbroad nor limited to unprotected speech.7
As the parties here agree, unless the bomb threat statute is given a
limiting instruction so that it proscribes only true threats, it is
overbroad. A law criminalizing speech is unconstitutionally overbroad
under the First Amendment ''if it sweeps within its prohibitions
constitutionally protected free speech activities.'' City of Bellevue v.
Lorang, 140 Wn.2d 19, 26, 992 P.2d 496 (2000) (quoting City of Seattle v.
Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989)). The overbreadth doctrine
will invalidate a statute only if the ''enactment reaches a substantial
amount of constitutionally protected conduct,'' City of Houston v. Hill,
482 U.S. 451, 458, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987) (quoting
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102
S. Ct. 1186, 71 L. Ed. 2d 362 (1982)), 'judged in relation to the statute's
plainly legitimate sweep,' Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.
Ct. 2908, 37 L. Ed. 2d 830 (1973). See State v. Pauling, 149 Wn.2d 381,
386, 69 P.3d 331 (2003); Lorang, 140 Wn.2d at 26-27. Further, '{a} statute
will be invalidated only if the court is unable to limit sufficiently its
standardless sweep by a limiting construction.' Pauling, 149 Wn.2d at 386.
Here, the statute reaches a substantial amount of protected speech.
For example, threats made in jest, or that constitute political statements
or advocacy, would be proscribed unless the statute is limited to true
threats. Accordingly, the statute must be limited to apply to only true
threats. See Kilburn, 151 Wn.2d at 43; Williams, 144 Wn.2d at 208.
We construe RCW 9.61.160 to avoid an overbreadth problem by limiting
it to true threats.
The next question is whether the jury was properly instructed.
Johnston proposed a jury instruction defining a true threat, although the
instruction did so in terms of the reasonable listener-based standard
rather than the speaker-based standard this court has adopted. The trial
court refused to give the instruction and instead instructed the jury
solely in terms of RCW 9A.04.110(25)(b). The parties agree that the jury
instructions were erroneous because they did not define 'true threat.'
The Court of Appeals held, however, that the instruction of 'threat'
provided to the jury 'was . . . not improper because it did not require the
threat to rise to the level of a true threat,' reasoning that RCW 9.61.160
is not limited to unprotected speech. Johnston, 2004 Wash. App. LEXIS
2364, at *9. This holding conflicts with the United States Supreme Court
decision in Black, our decisions in Williams, J.M., and Kilburn, and the
body of federal case law. RCW 9.61.160 must be limited to true threats, as
explained above, and the jury must be instructed accordingly.
While pointing out that instructional error involving the elements of
a crime may be harmless error, see State v. Brown, 147 Wn.2d 330, 340, 58
P.3d 889 (2002), the State nevertheless concedes that the error in this
case cannot be deemed harmless beyond a reasonable doubt in light of the
facts and the jury's inquiry. This concession is appropriate. The
evidence presented at trial appears close on the question whether
Johnston's statements constituted a true threat. Exacerbating the problem,
the jury inquired whether it could convict based on the words alone, or
whether it had to find that Johnston intended to carry out the threat.
Because this inquiry was couched in the alternative, when the trial court
responded that intent to carry out the threat was not an element of the
crime,8 the jury could infer that the alternative was correct, i.e., that
it could convict merely on the basis that Johnston said the words.9
Finally, Johnston contends that the evidence was insufficient to
convict him of violating RCW 9.61.160. He urges that an independent
examination of the record shows that he did not make a true threat. He
contends that because there was insufficient evidence that he made a true
threat, his conviction must be reversed and the charge dismissed.
Whether language constitutes a true threat is an issue of fact for the
trier of fact in the first instance. United States v. Fulmer, 108 F.3d
1486, 1492 (1st Cir. 1997); Khorrami, 895 F.2d at 1192; Melugin v. Hames,
38 F.3d 1478, 1485 (9th Cir. 1994). However, as explained in Kilburn, a
rule of independent appellate review applies in First Amendment speech
cases. An appellate court 'must 'make an independent examination of the
whole record, . . .' so as to assure {itself} that the judgment does not
constitute a forbidden intrusion on the field of free expression.'
Kilburn, 151 Wn.2d at 50 (quoting Bose, 466 U.S. at 508) (internal
quotation marks omitted). The appellate court is required to independently
review only ''crucial facts' -- those so intermingled with the legal
question as to make it necessary, in order to pass on the constitutional
question, to analyze the facts.' Kilburn, 151 Wn.2d at 50-51. Thus,
whether a statement constitutes a true threat is a matter subject to
independent review. The rule of independent appellate review does not
extend to factual determinations such as findings on credibility, however.
Id.; see United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002) (when
applying the principle of independent review, the appellate court defers to
the trier of fact on matters such as determinations of historical facts and
credibility).
If, however, the trial proceedings are tainted by error, an appellate
court may be unable to conduct an independent review of the record -- for
example, where inadmissible evidence that was admitted may have influenced
the jury. Id. at 1088. In Johnston's case, the jury was influenced by the
erroneous jury instructions that governed the trial. Under these
circumstances, independent appellate review is inappropriate. Instead,
this case must be remanded for a new trial under proper instructions.
CONCLUSION
We construe the bomb threat statute, RCW 9.61.160, to apply only to
true threats. Construed in this way, the statute is not unconstitutionally
overbroad. We hold that the jury instructions given at trial were
insufficient to ensure a constitutional verdict, and the instructional
error cannot be deemed to be harmless beyond a reasonable doubt.
Accordingly, we reverse the Court of Appeals and remand this case for a new
trial with directions that the jury must be instructed that a conviction
under RCW 9.61.160 requires a true threat and must be instructed on the
meaning of a true threat.

WE CONCUR:

1 Former RCW 9.61.160 (1977) was amended and recodified as RCW 9.61.160(1).
Laws of 2003, ch. 53, sec. 38 (effective July 1, 2004). No substantive
change was made, and this opinion will therefore refer to the current
statute.
2 Johnston contended in briefing to the Court of Appeals that RCW
9.61.160(1) is overbroad both facially and as applied. He does not make
this claim in the briefing filed in this court. 'An overbreadth challenge
is facial . . . .' City of Bellevue v. Lorang, 140 Wn.2d 19, 26, 992 P.2d
496 (2000); see Ward v. Utah, 398 F.3d 1239, 1246 (10th Cir. 2005) (an
overbreadth challenge is a facial challenge).
3 While Johnston relies on both the First Amendment and article I, section
5 of the Washington Constitution, he does not argue for an independent
analysis under the state constitution.
4 The United States Supreme Court has explained that statements in its
opinions that certain categories of expression are unprotected speech mean
'that these areas of speech can, consistently with the First Amendment, be
regulated because of their constitutionally proscribable content . . . -not
that they are categories of speech entirely invisible to the Constitution,
so that they may be made the vehicles for content discrimination unrelated
to their distinctively proscribable content.' R.A.V. v. City of St. Paul,
505 U.S. 377, 383-84, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992).
5 As we noted in Kilburn, the federal circuits are split over whether an
objective speaker-based or listener-based standard should be used to
determine if a threat is a true threat. Kilburn, 151 Wn.2d at 45 n.3;
compare, e.g., United States v. Schiefen, 139 F.3d 638 (8th Cir. 1998)
(speaker-based standard); United States v. Orozco-Santillan, 903 F.2d 1262
(9th Cir. 1990) (speaker-based standard); with, e.g., United States v.
Alaboud, 347 F.3d 1293 (11th Cir. 2003) (listener-based standard); see
generally Jennifer E. Rothman, Freedom of Speech and True Threats, 25 Harv.
J.L. & pub. Pol'y 283, 302 (Fall 2001) ('{t}he majority of circuits have
developed a version of a reasonable person test, but are split over whether
the test should be from the perspective of the speaker or the listener').
As we also noted in Kilburn, the Eighth Circuit has reasoned that the
difference between the standards is insignificant because a reasonably
foreseeable response from the listener and an actual reasonable response
should be the same. Kilburn, 151 Wn.2d at 45 n.3 (citing John Doe v.
Pulaski County Special Sch. Dist., 306 F.3d 616, 623 (8th Cir. 2002)); see
also Alaboud, 347 F.3d at 1297 n.3. The First Circuit disagrees, however,
rejecting the listener-based standard in part because the speaker-based
standard 'better avoids the perils that inhere in the 'reasonable-recipient
standard,' namely that the jury will consider the unique sensitivity of the
recipient.' United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997).
The court said that it is 'particularly untenable that, were we to apply a
standard guided from the perspective of the recipient, a defendant may be
convicted for making an ambiguous statement that the recipient may find
threatening because of events not within the knowledge of the defendant.'
Id.
The Seventh Circuit has expressly stated that its test in Khorrami,
which we have adopted, is a speaker-based test. In United States v.
Saunders, 166 F.3d 907, 913 (7th Cir. 1999), for example, the court quoted
the standard from Khorrami and explained that '{t}his objective standard
presented in Khorrami focuses on whether a reasonable speaker would foresee
that the recipient of his words would take the statement seriously.' Id.
at 913.
6 In Black, the United States Supreme Court addressed a Virginia statute
criminalizing a type of threat, cross burning with intent to intimidate,
which the Virginia Supreme Court had found unconstitutional. The Virginia
statute also contained a provision permitting a presumption of intent to
intimidate from evidence of the cross burning itself. Two cases were
presented. The first involved defendant Black, a leader at a Ku Klux Klan
rally, who was convicted for burning a cross on private property. The
cross was visible to people on nearby property who were not part of the
rally. Black's conviction rested on the presumption. The second case
involved men convicted of burning a cross in the yard of one of the men's
neighbors, an African-American. Although race may have been a factor, the
burning was evidently in retaliation for complaints about target shooting
at the defendant's house. Evidence of actual intent to intimidate was
offered in this case.
The Court held that Virginia could criminalize cross burning with the
intent to intimidate 'because burning a cross is a particularly virulent
form of intimidation.' Black, 538 U.S. at 363. But the Court also held
that the statutory presumption rendered the law unconstitutional under the
First Amendment because it permitted a conviction solely on the basis of
cross burning, although cross burning may have one of two meanings --
either constitutionally proscribable intimidation or constitutionally
protected core political speech (a statement of ideology). Id. at 364-67;
id. at 384-87 (Souter, J., concurring in part and dissenting in part).
7 This court found the statute constitutional as applied in State v. Young,
83 Wn.2d 937, 523 P.2d 934 (1974), where the defendant argued that his
threat to bomb a public school building was mere advocacy. The court
observed that the statute prohibits a present threat or intent to bomb or
otherwise injure school buildings, and rejected the defendant's argument
that his threat was mere advocacy on the basis that the trial court had
found otherwise. Id. at 941-42. Young does not address the issue raised
by Johnston.
8 This response correctly stated the law, but in context was incomplete.
9 Johnston also complains that the jury was improperly instructed, over
defense counsel's objection, in terms of RCW 9.61.160(2) (formerly RCW
9.61.170), that '{i}t is not a defense to a prosecution for threats to bomb
that the threatened bombing was a hoax. A hoax is an act intended to trick
or dupe.' CP at 18 (Jury Instruction 2.04). Johnston argues the
instruction failed to conform to the evidence because he neither presented
evidence nor argued that his statements were a hoax. It is unlikely that
this issue will arise on remand and therefore we do not address it.
>>