Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )         No. 65921-9-I
                                              )
                      Respondent,             )         DIVISION ONE
                                              )
              v.                              )
                                              )
JAMES S. BALLEW,                              )         PUBLISHED IN PART
                                              )
                      Appellant.              )         FILED: March 26, 2012
                                              )
                                              )

       Cox, J.  --  James Ballew appeals his judgment and sentence for 

threatening to bomb or injure property.  The jury instruction that he challenges 

correctly stated the law regarding true threats, as required by the First 

Amendment.  There was no violation of his constitutional right to a unanimous 

jury verdict.  And there was no prosecutorial misconduct during closing 

argument. We affirm.

       In October 2009, a man, later identified as Ballew, called 911 and asked 

to speak with Officer Darin Beam of the Port of Seattle Police.  Officer Beam was 

not on duty, and the dispatcher would not give Ballew Officer Beam's personal 

phone number.  Ballew told the dispatcher that he would only speak to Officer 

Beam.  Ballew then stated that he had five friends who had placed bombs in and 

around the Seattle-Tacoma Airport and hung up. 

No. 65921-9-I/2

       Authorities traced the call to Harborview Medical Center's psychiatric 

ward.  The dispatcher also contacted Officer Beam, who identified the caller as 

Ballew.  Several days earlier, Officer Beam spoke with Ballew at the airport 

when Ballew attempted to buy an airline ticket with a promissory note.

       Within an hour of Ballew's call, Officer Robert Stecz, who was trained in 

explosives, arrived at Harborview where Ballew was involuntarily committed.  

After gaining Ballew's permission to speak with him, the officer interviewed

Ballew in his room.  

       The officer asked him whether he had made the 911 call.  At first, Ballew 

denied doing so.  He then claimed he could not remember if he made the phone 

call.  

       Eventually, Ballew answered Officer Stecz's questions.  He said the 

explosives hidden at the airport ranged from the size of a shoebox to a bar of 

soap.  He also said the explosives could not be detected by electronic devices or 

trained dogs.  He would not say where his friends had placed the explosives at 

the airport.

       Ballew also told Officer Stecz that he was in the Air Force for 53 years 

and that he had "cosmic [security] clearance," which, according to Ballew, was 

much higher than top secret clearance.  Based on this interview, Officer Stecz 

determined that Ballew's threat was not credible.

       The State charged Ballew with one count of a threat to bomb or injure 

property based on RCW 9.61.160.  At his jury trial, Ballew did not raise an 

                                               2 

No. 65921-9-I/3

insanity defense.  Moreover, he did not testify.  But he argued, based on his 

mental health status, that a reasonable person would not have considered his 

statements to be true threats.  The jury convicted Ballew as charged.

       The trial court sentenced Ballew to nine months confinement.  With credit 

for time served, he was released.

       Ballew appeals.

                                JURY INSTRUCTION

       For the first time on appeal, Ballew argues that the trial court violated his

First Amendment rights by incorrectly defining "true threat" in the jury instruction. 

We disagree.

       Instructional errors based on legal rulings are reviewed de novo, as are 
constitutional questions.1 We engage in an independent review of the record in 

First Amendment cases to ensure that the judgment is not based on a forbidden 
intrusion on the field of free expression.2

        The First Amendment, which is applicable to the states through the 

Fourteenth Amendment, states that "Congress shall make no law . . . abridging 
the freedom of speech."3 While the First Amendment's scope is broad, it does 

       1 State v. Schaler, 169 Wn.2d 274, 282, 236 P.3d 858 (2010) (citing State 
v. Grande, 164 Wn.2d 135, 140, 187 P.3d 248 (2008); State v. Brett, 126 Wn.2d 
136, 171, 892 P.2d 29 (1995)).

       2 Id. (quoting State v. Kilburn, 151 Wn.2d 36, 49-50, 84 P.3d 1215 (2004) 
(quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 
508, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984))).

       3 Id. at 283 (quoting Virginia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 
155 L. Ed. 2d 535 (2003)).

                                               3 

No. 65921-9-I/4

not extend to "unprotected speech."4

       "True threats" are an unprotected category of speech.5 "A true threat is 'a 

statement made in a context or under such circumstances wherein a reasonable 

person would foresee that the statement would be interpreted as a serious 

expression of intention to inflict bodily harm upon or to take the life of another 
person.'"6 The State has a significant interest in restricting speech that 

communicates a true threat, in order to protect "'individuals from the fear of 

violence, from the disruption that fear engenders, and from the possibility that 
the threatened violence will occur.'"7 The speaker of a "true threat" need not 

actually intend to carry out the threat.8 Instead, it is enough that a reasonable 

speaker would foresee that the threat would be considered serious.9

       Only "true" threats may be proscribed.10 "The First Amendment prohibits 

the State from criminalizing communications that bear the wording of threats but 
which are in fact merely jokes, idle talk, or hyperbole."11 The supreme court has 

       4 Id. (citing Kilburn, 151 Wn.2d at 42-43).

       5 Id. (citing Kilburn, 151 Wn.2d at 43).

       6 Id. (quoting Kilburn, 151 Wn.2d at 43 (quoting State v. Williams, 144 
Wn.2d 197, 208-09, 26 P.3d 890 (2001))).

       7 Id. (quoting Kilburn, 151 Wn.2d at 43 (quoting State v. J.M., 144 Wn.2d 
472, 478, 28 P.3d 720 (2001))).

       8 Id. (citing Kilburn, 151 Wn.2d at 46).

       9 Id.

       10 Id.

       11 Id. (citing Kilburn, 151 Wn.2d at 43).

                                               4 

No. 65921-9-I/5

held that the bomb threat statute, RCW 9.61.160, can only reach "true threats."12  

       Here, the court provided Instruction 8 to the jury:

              A person commits the crime of threatening to bomb or injure 
       property when he or she threatens to bomb or otherwise injure any 
       government property, or any other building or structure, or any 
       place used for human occupancy, or when he or she 
       communicates or repeats any information concerning such 
       threatened bombing or injury, knowing such information to be false 
       and with intent to alarm the person or persons to whom the 
       information is communicated or repeated.

              To be a threat, a statement or act must occur in a 
       context or under such circumstances where a reasonable 
       person would foresee that the statement or act would be 
       interpreted as a serious expression of intention to carry out 
       the threat.[13]

Ballew did not object either to this language or to the absence of additional 

language that he now claims should have been included in this instruction. 

Specifically, Ballew now argues that the U.S. Supreme Court's decision in 
Virginia v. Black14 requires a subjective test when evaluating a true threat.  

       In Black, the Supreme Court defined a true threat as a statement "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."15

Ballew claims that the jury could have convicted him for statements protected 

       12 Id. at 283-84 (citing State v. Johnston, 156 Wn.2d 355, 364, 127 P.3d 
707 (2006)).

       13 Clerk's Papers at 38 (emphasis added).

       14 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003).

       15 Id. at 359.

                                               5 

No. 65921-9-I/6

under Black because the above wording of the court's instruction only required 

the jury to apply an objective test.  

       "An appellate court may refuse to address a claim of error not raised in 
the trial court unless it finds a 'manifest error affecting a constitutional right.'"16

An error is "manifest" if it had practical and identifiable consequences in the 
case.17  

       Here, the State does not contest Ballew's assertion that the statement of 

what constitutes a true threat in this instruction would be a manifest error 
affecting a constitutional right if it were a misstatement of the law.18 Rather, the

State argues that the language is a correct statement of the law.  We agree with 

the State.
       Washington uses an objective true threat test.  In State v. Kilburn,19 the 

supreme court stated that "[w]e have adopted an objective test of what 

constitutes a 'true threat'" based upon how a reasonable person would foresee 
the statement would be interpreted.20 In State v. Johnston,21 the supreme court 

affirmed this rule, explaining that Washington has adopted an objective standard 

       16 Schaler, 169 Wn.2d at 282 (quoting RAP 2.5 (a)(3)).

       17 Id. at 282-83.

       18 Brief of Appellant at 20 (citing Schaler, 169 Wn.2d at 282-88).

       19 151 Wn.2d 36, 84 P.3d 1215 (2004).

       20 Id. at 43.

       21 156 Wn.2d 355, 127 P.3d 707 (2006).

                                               6 

No. 65921-9-I/7

for determining what constitutes a true threat.22  

       Most recently, in State v. Schaler,23 the supreme court again defined true 

threat using an objective, not a subjective, test. It stated: 

       A true threat is "a statement made in a context or under such 
       circumstances wherein a reasonable person would foresee that 
       the statement would be interpreted as a serious expression of 
       intention to inflict bodily harm upon or to take the life of another 
       person."[24]

       Here, the true threat instruction properly used an objective test.  This is 

entirely consistent with the test the supreme court has repeatedly held is 

controlling.  

       Moreover, in Schaler, the court expressly noted its approval of 

Washington Pattern Instruction Criminal (WPIC) 2.24, as amended in 2008 and 

on which Instruction 8 is based, as incorporating "the constitutional mens rea"
required to safeguard First Amendment protections.25  As Schaler also clarifies, 

the controlling mens rea is simple negligence, the reasonable person standard, 
nothing more.26  

       Ballew correctly argues that the supreme court's statement in Schaler

approving the WPIC 2.24 is dicta.  But that does not make it wrong.

       22 Id. at 360-61 (quoting U.S. v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 
1990) (citing Kilburn, 151 Wn.2d at 43)).

       23 169 Wn.2d 274, 236 P.3d 858 (2010).

       24 Id. at 283 (quoting Kilburn, 151 Wn.2d at 43) (emphasis added).

       25 Id. at 288 n.5.

       26 Id. at 287.

                                               7 

No. 65921-9-I/8

       Kilburn and Schaler are controlling with respect to the use of the objective 

standard.  Schaler observes that the current version of WPIC 2.24 correctly 

formulates a jury instruction meeting that standard.  Accordingly, we reject 

Ballew's challenge to this jury instruction.

       At oral argument, Ballew argued that the instruction given was improper 

because it omitted the clause "in the position of the speaker," which is included 
in WPIC 2.24.27 In Schaler, the supreme court noted that while the practical 

difference between a speaker-centric and a hearer-centric standard is not 
meaningful in many cases, such a determination is fact specific.28  

       Here, assuming without deciding that the trial court's failure to include the 

omitted language was error, any such error was harmless.  The evidence 

presented at trial showed that Ballew deliberately called 911.  He then 

threatened to bomb the airport when the dispatcher refused to release Officer 

Beam's contact information to him.  Then, during his later interview with Officer 

Stecz, Ballew again offered to disclose the locations of the bombs, but only to 

Officer Beam.  Based on this evidence, a reasonable trier of fact could have 

found that Ballew intentionally made the threats to alarm the receivers and gain 

       27 WPIC 2.24 ("To be a threat, a statement or act must occur in a context 
or under such circumstances where a reasonable person, in the position of the 
speaker, would foresee that the statement or act would be interpreted as a 
serious expression of intention to carry out the threat rather than as something 
said in [jest or idle talk] [jest, idle talk, or political argument].").

       28 Schaler, 169 Wn.2d at 290 n.7 ("While the [difference between the 
speaker-centric and hearer-centric] standards may yield no meaningful 
difference in many cases, in this case the difference is not academic.").

                                               8 

No. 65921-9-I/9

access to Officer Beam.

       Ballew argues that Black requires a different result because it requires a 

subjective test when evaluating a true threat.  We disagree.  

       In that case, the U.S. Supreme Court considered the constitutionality of a 
Virginia statute that criminalized burning a cross with the intent to intimidate.29  

The statute was invalidated on First Amendment grounds.30

       Ballew relies on the following excerpt from Justice O'Connor's lead 

opinion, joined by a majority of the court, which defined true threat as follows:

              "True 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. The speaker need not actually intend to carry 
       out the threat. Rather, a prohibition on true threats protect[s]
       individuals from the fear of violence and from the disruption that 
       fear engenders, in addition to protecting people from the possibility 
       that the threatened violence will occur.  Intimidation in the 
       constitutionally proscribable sense of the word is a type of 
       true threat, where a speaker directs a threat to a person or group 
       of persons with the intent of placing the victim in fear of bodily 
       harm or death.[31]

       Ballew argues that this language requires a subjective, speaker-based 

true threat analysis, rather than an objective test. But, as noted by the Schaler
court,32 Black is distinguishable because the statute at issue there required the 

       29 Black, 538 U.S. at 347-48.

       30 Id.

       31 Id. at 359-60 (internal quotation marks and citations omitted) (emphasis 
added).

       32 Schaler, 169 Wn.2d at 287 n.4.

                                               9 

No. 65921-9-I/10

speaker to intimidate the listener, which necessitates a greater mens rea than 
simply putting the listener in fear.33  Here, because the State was not required to 

prove that Ballew meant to intimidate the listeners, Black does not support 

Ballew's argument.

       We also note that the federal circuit courts are split regarding the effect of
Black's true threat definition.34  We are not bound by these circuit courts,35 and 

the U.S. Supreme Court has not chosen to resolve this conflict within the circuits.  

       33 Black, 538 U.S. at 360.

       34 See U.S. v. Mabie, 663 F.3d 322, 2011 WL 6004082, *7-8 (8th Cir. 
2011) (objective test only); U.S. v. Beale, 620 F.3d 856, 865 (8th Cir. 2010), cert. 
denied, 131 S. Ct. 1023 (2011) (objective test only); U.S. v. Jongewaard, 567 
F.3d 336, 339 n.2 (8th Cir. 2009), cert. denied, 130 S. Ct. 1502 (2010) (objective 
test only); Riehm v. Engelking, 538 F.3d 952, 963 (8th Cir. 2008) (objective test); 
U.S. v. Armel, 585 F.3d 182, 185 (4th Cir. 2009) (objective test only); U.S. v. 
Zavrel, 384 F.3d 130, 136 (3d Cir. 2004), cert. denied, 544 U.S. 979 (2005)
(objective test only); U.S. v. Romo, 413 F.3d 1044, 1051 n.6 (9th Cir. 2005), cert. 
denied, 547 U.S. 1048 (2006) (subjective test not required).  But see Porter v. 
Ascension Parish Sch. Bd., 393 F.3d 608, 616-17 (5th Cir. 2004), cert. denied, 
544 U.S. 1062 (2005) (Black only requires the speaker to knowingly make the 
statement, not intend it as a threat); U.S. v. Magleby, 420 F.3d 1136, 1139 (10th 
Cir. 2005), cert. denied, 547 U.S. 1097 (2006) (subjective test supported by 
Black, but First Amendment challenge not reached because the claim was 
procedurally barred); U.S. v. Parr, 545 F.3d 491, 500 (7th Cir. 2008), cert. 
denied, 129 S. Ct. 1984 (2009) (declining to decide the issue but noting that it is 
more likely that an entirely objective definition of true threat is no longer 
tenable); U.S. v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005) (subjective test 
required); U.S. v. Stewart, 420 F.3d 1007, 1018 (9th Cir. 2005) (an objective test 
is consistent with Black, but the statement was a true threat under both tests); 
Fogel v. Collins, 531 F.3d 824, 831 (9th Cir. 2008) (the statement was a true 
threat under both tests); U.S. v. Bagdasarian, 652 F.3d 1113, 1117 n.14 (9th Cir. 
2011) (subjective test required).

       35 Lundborg v. Keystone Shipping Co., 138 Wn.2d 658, 677, 981 P.2d 
854 (1999).

                                              10 

No. 65921-9-I/11

Therefore, we continue to follow the law, as stated by the state supreme court.36  

       Ballew argues that Schaler and State v. Soboroff37 require reversal.  They 

do not.  

       In Schaler, the defendant was convicted of harassment for making threats 
to kill his neighbors.38 The threats were made to mental health professionals 

during a mental health evaluation.39 The trial court did not define true threat for 

the jury.40 The supreme court reversed the conviction, holding that the omission 

of the definition was constitutional error that was not harmless.41  Because a 

correct true threat instruction was given in this case, Schaler does not support 

reversal of this conviction.  In fact, as we explained earlier in this opinion, 

Schaler approves of the WPIC on which the jury instruction given in this case

was based.

       In Soboroff, the Iowa Supreme Court reversed Soboroff's conviction for 

threatening to contaminate the city's water supply because defense counsel did 

       36 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wn.2d 566, 578, 146 
P.3d 423 (2006) (citing Fondren v. Klickitat County, 79 Wn. App. 850, 856, 905 
P.2d 928 (1995) (a Washington Supreme Court decision is binding on all lower 
courts in the state and the court of appeals errs when it fails to follow directly 
controlling authority).

       37 798 N.W.2d 1 (Iowa 2011).

       38 Schaler, 169 Wn.2d at 281-82.

       39 Id. at 289.

       40 Id. at 290.

       41 Id.

                                              11 

No. 65921-9-I/12

not request a jury instruction defining true threat.42  We are not bound by the 

Iowa Supreme Court.  In any event, unlike Soboroff, Ballew did receive a true 

threat instruction.  

       Ballew argues for the first time on appeal that the true threat portion of 

Instruction 8 violated his First Amendment rights because it failed to inform the 

jury that idle talk and jokes are not true threats.  He did not object to this 

omission below.

       Whether this claim is a manifest error affecting a constitutional right within 

RAP 2.5(a) is a threshold issue.  An error is manifest if it had practical and 
identifiable consequences in the case.43 This standard is also referred to as 

"actual prejudice."44 As the Supreme Court explained in State v. O'Hara:45

       [T]he focus of the actual prejudice [analysis] must be on whether 
       the error is so obvious on the record that the error warrants 
       appellate review . . . . Thus, to determine whether an error is 
       practical and identifiable, the appellate court must place itself in 
       the shoes of the trial court to ascertain whether, given what the trial 
       court knew at that time, the court could have corrected the error.[46]

This analysis is distinct from the harmless error analysis.47

       42 Soboroff, 798 N.W.2d at 2.

       43 Schaler, 169 Wn.2d at 284 (citing O'Hara, 167 Wn.2d at 99).

       44 Id.

       45 167 Wn.2d 91, 217 P.3d 756 (2009).

       46 Id. at 99-100 (citation and footnote omitted).

       47 Schaler, 169 Wn.2d at 284 (citing O'Hara, 167 Wn.2d at 98).

                                              12 

No. 65921-9-I/13

       Ballew fails to show actual prejudice here.  There is no evidence in the 

record that Ballew's statements were idle talk or jokes.  Although he claims that 

his involuntary commitment in a locked hospital psychiatric wing would have 

permitted a jury to reasonably conclude that his speech was idle talk or 

hyperbole, that line of reasoning is unpersuasive.  Thus, had this argument been 

brought to the attention of the trial court below, the court could have properly 

declined to add the additional language to the instruction.  In sum, there is no 
showing of actual prejudice by the omission of this language.48  Therefore, we do 

not address this argument any further.49

       The balance of this opinion has no precedential value. Accordingly, 

under RCW 2.06.040, it shall not be published.

                                     UNANIMITY

       Ballew argues that he was denied his constitutional right to a unanimous 

jury verdict.  Specifically, he alleges that the State did not present substantial 

evidence proving each of what he characterizes as the alternative means of 
violating RCW 9.61.160.50  We assume without deciding that this is an 

       48 See RAP 10.3(a)(5) (parties are required to support their arguments 
with citations to legal authority and references to relevant parts of the record).

       49 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 
P.2d 549 (1992) (arguments not supported by legal authority or the record need 
not be considered).

       50 RCW 9.61.160(1) states:

              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 

                                              13 

No. 65921-9-I/14

alternative means statute.  Nevertheless, the State made an election 

during closing that the jury should convict on the basis of RCW 

9.61.160(1)(a) and there was sufficient evidence to convict under that 

subsection without violating Ballew's constitutional right to a unanimous jury.

       To convict on a criminal charge, the jury must be unanimous that the 
defendant committed the criminal act.51 When the prosecution presents 

evidence of multiple acts of like misconduct, any one of which could form the 

basis of the crime charged, the State must either elect which of the acts it relies

upon for a conviction or the court must instruct the jury to agree on a specific 
criminal act.52  Where there is neither an election nor a unanimity instruction, a 

constitutional error occurs.53  By requiring a unanimous verdict on one criminal 

       human occupancy; or to communicate or repeat any information 
       concerning such a threatened bombing or injury, knowing such 
       information to be false and with intent to alarm the person or 
       persons to whom the information is communicated or repeated.

(emphasis added).  Furthermore, the WPIC treats this statute as creating two 
separate means of the crime.  The "Notes on Use" advise that: 

       The instruction is drafted for cases in which the jury needs to be 
       instructed using two or more of the alternatives for element (1). 
       Care must be taken to limit the alternatives to those that were 
       included in the charging document and are supported by sufficient 
       evidence.

11 Washington Practice:  Washington Pattern Jury Instructions: Criminal 
86.02 (3d ed. 2008) (emphasis added).

       51 State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007).

       52 Id.

       53 Id. at 512.

                                              14 

No. 65921-9-I/15

act, a criminal defendant's right to a unanimous verdict based on an act proved 
beyond a reasonable doubt is protected.54

       An election that all 12 jurors must agree that the same underlying act has 

been proved beyond a reasonable doubt assures a unanimous verdict on the
criminal act.55 Such an election avoids the risk that some jurors will rely on one 

act or incident and some will rely on another, resulting in a lack of unanimity on 
all of the elements necessary for a valid conviction.56

       Sufficient evidence is evidence that, when viewed in a light most 

favorable to the State, is adequate to persuade a rational trier of fact of guilt 
beyond a reasonable doubt.57  

       Here, the trial court instructed the jury that, in order to find Ballew guilty of 

threatening to bomb or injure property, it had to find that the State proved 

beyond a reasonable doubt:

              (1)  That on or about October 17, 2009, the defendant

              a)  threatened to bomb or otherwise injure governmental 
       property, any other building or structure a place used for human 
       occupancy; or

              b)  communicated or repeated any information concerning a 

       54 Id. at 511-12 (citing State v. Camarillo, 115 Wn.2d 60, 63-64, 794 P.2d 
850 (1990)).

       55 Id. at 512.

       56 Id. (citing State v. Kitchen, 110 Wn.2d 403, 411-12, 756 P.2d 105 
(1988)).

       57 State v. Ortega-Martinez, 124 Wn.2d 702, 708, 881 P.2d 231 (1994)
(citing State v. Green, 94 Wn.2d 216, 220, 616 P.2d 628 (1980); State v. 
Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990)).

                                              15 

No. 65921-9-I/16

       threat to bomb or otherwise injure governmental property, or a [sic] 
       any other building or structure a common carrier or a place used 
       for human occupancy; and

                      (i)  That the defendant acted knowing such 
       information was false; and

                      (ii) That the defendant acted with the intent to alarm 
       the person or persons to whom the information was communicated 
       or repeated; 

              and
              (2)  That the acts occurred in the State of Washington.[58]

       The court did not give a unanimity instruction.  But during closing 

argument, the State explained:

              There are two ways in instruction number nine that a person 
       can be guilty of this crime as listed [in] 1(a) and subsection 1(b).  

              We're really talking in this case about subsection 1(a), that it 
       was the defendant himself who threatened to bomb a building.  
       Section 1(b) is another way that this crime can be proven.

              However, it talks about communicating or repeating some 
       information knowing it's false, so a -- I heard this person's making a 
       threat to bomb, or I heard this person said he was going to bomb a 
       building, knowing that it's false and intending to scare somebody.

              That's not the situation we have here.  We have the 
       scenario listed in 1(a), which is the defendant himself making that 
       threat to bomb.[59]

Because the State elected to rely on the defendant's own threat, as described in 

(1)(a) of the jury instruction, there is no unanimity issue in this case.  Therefore, 

Ballew's constitutional right to a unanimous jury verdict was not violated.

       58 Clerk's Papers at 39.

       59 Report of Proceedings (July 6, 2010) at 60-61.

                                              16 

No. 65921-9-I/17

       Ballew argues that the State failed to present sufficient evidence to prove 

that he threatened to bomb or otherwise injure property beyond a reasonable 

doubt in accordance with (1)(a) in the jury instruction.  He is mistaken.

       As described above, the State presented testimony that Ballew called 

911. When the dispatcher refused to give him Officer Beam's person telephone 

number, he told her that his friends placed bombs around the airport.  

Furthermore, Officer Stecz testified that Ballew offered to disclose where his 

friends had placed the bombs if he could speak to Officer Beam. Taking this 

evidence in the light most favorable to the State, a rational person could 

conclude that Ballew's statements to the dispatcher and Officer Stecz were

threats to bomb the airport.  That person could also conclude that Ballew 

communicated the threat knowing it to be untrue.

       Ballew argues that this evidence was insufficient because he was 

involuntarily committed and had no ability to place a bomb at the airport. But 

Ballew's inability to actually bomb the airport does not disprove that he 

threatened to do so.  

       Next, Ballew argues that it is possible that a reasonable person in his 

position would not believe that his threat would be taken seriously or frighten the 

recipient.  But the evidence presented showed that Ballew called 911, 

threatened to bomb the airport when he did not receive the information he 

sought, and then continued to make the same threat in a later interview.  Based 

on this evidence, a reasonable trier of fact could have found that Ballew's threat 

                                              17 

No. 65921-9-I/18

was serious and meant to alarm the receiver.  

                         PROSECUTORIAL MISCONDUCT

       Ballew argues that the prosecutor committed misconduct when she 

referenced John Hinckley during closing argument.  We disagree.

       "Prosecutorial misconduct is grounds for reversal if the prosecuting 
attorney's conduct was both improper and prejudicial."60 We evaluate a 

prosecutor's conduct by examining it in the full trial context, including the 

evidence presented, the total argument, the issues in the case, the evidence 
addressed in the argument, and the jury instructions.61 A defendant suffers 

prejudice only where there is a substantial likelihood that the prosecutor's 
misconduct affected the jury's verdict.62 The defendant bears the burden of 

showing both prongs of prosecutorial misconduct.63

       Here, Ballew did not raise an insanity defense.  But his primary defense 

theory was that, in light of his mental health, a reasonable person would not 

believe that his statements were true threats. Anticipating that argument during 

closing, the prosecutor made the following statement:

              Defense may just say this is a person who was delusional, 
       this was a person who had these -- these thoughts in his head that 

       60 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal 
quotation marks and citations omitted).

       61 Id. (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) 
(quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997))).

       62 Id. (quoting State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007) 
(quoting McKenzie, 157 Wn.2d at 52; Brown, 132 Wn.2d at 561))).

       63 State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003).

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No. 65921-9-I/19

       he had extra contact with the President, that he had a 
       secret job with the military that no one knew about and, 
       as a result, he can't possibly be taken seriously in any way, 
       that he's just someone that needs to be discounted as not making 
       a viable threat at all, and that he possibly couldn't make a bomb.

              But just think about who -- who does bomb people?  Who 
       does bomb an airport?  Who does, you know, harm other people?  
       What, crazy people, that's who's going to be making those -- that's 
       who's going to be making those threats to begin with.  Think about 
       John Hinkley [sic] -- [64]

       Defense counsel objected on the basis that the argument was irrelevant 

and not in evidence.  The trial court overruled the objection, stating that the 
prosecutor could make a "common-sense point."65 The prosecutor continued:

              . . . You think about John Hinkley [sic] and his decision to 
       shoot President Reagan, and doing so out of some, you know, 
       obsessive love for Jodie Foster.  

              Does anybody really think that, that when you hear that, that 
       that's the mind of a -- of a sane person or a cogent person, but it's 
       not something that you can discount, and sometimes it's true.

              You have to follow up on these things when they're said, 
       even if they don't make sense. 

              Because it's not gon'a [sic] make sense for lots of people to 
       think that bombs would be placed at the airport.

              It's not going to make sense for you to think I'm -- I think it's 
       an okay thing to do to place a bomb at an airport.

              Nobody thinks it's okay to place a bomb at an airport.  But 
       crazy people will make those threats, and crazy people will follow 
       through on those threats.[66]

       64 Report of Proceedings (July 6, 2010) at 66 (emphasis added).

       65 Id. at 66-67.

       66 Id. at 67.

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No. 65921-9-I/20

       There was no further objection by the defense.

       The prosecutor's argument was not improper.  The prosecutor sought to 

use an example from life likely known to the jurors that even a person who had 

mental health challenges was capable of making credible threats.  The comment 

was made in anticipation of the very argument that Ballew made during his 

closing statement that followed.  This was not improper.

       Ballew argues that it is improper for the prosecutor to draw analogies to 
infamous criminals in closing argument.  He cites State v. Belgarde,67 State v. 

Rivers,68 State v. Neidigh,69 People v. Roman,70 DeFreitas v. State,71 and United 

States v. Thiel72 in support of this proposition.  

       In Rivers and Neidigh, the prosecutor did not reference an infamous 
person during closing argument.73 Therefore, those cases are not helpful. 

       67 110 Wn.2d 504, 755 P.2d 174 (1988).

       68 96 Wn. App. 672, 981 P.2d 16 (1999).

       69 78 Wn. App. 71, 895 P.2d 423 (1995).

       70 323 Ill. App. 3d 988, 753 N.E.2d 1074 (2001).

       71 701 So.2d 593, 22 Fla. L. Weekly D2462 (1997).

       72 619 F.2d 778 (8th Cir. 1980).

       73 Rivers, 96 Wn. App. at 673-76 (prosecutor's description of the 
defendant as a vicious rocker, a predator, a hyena, and a jackal was 
misconduct); Neidigh, 78 Wn. App. at 75-77 (prosecutor's attempts during cross-
examination to get the defendant to state that several witnesses lied on the 
stand were improper but not reviewable).

                                              20 

No. 65921-9-I/21

       In the other cases, the prosecutor's argument directly compared the 
defendant's actions to the infamous character's actions.74 Here, the prosecutor 

did not compare Ballew to Hinckley.  Rather, she used Hinckley to illustrate that 

threats by individuals with mental health issues can be taken seriously.

       Ballew argues that the prosecutor's reference to Hinckley "invited the jury 

to believe Mr. Ballew was like Hinckley" even though their crimes were very 

different.  This assertion is simply unsupported by a fair reading of this record.

       Ballew argues that the prosecutor's comment that "crazy people" will 

make and follow through on threats to bomb airports appealed to the jury's fear 

of the mentally ill.  Again, this assertion is unsupported by a fair reading of this 

record.
       Relying on State v. Beebe,75 an Idaho appellate case, Ballew argues that 

the prosecutor's argument improperly focused the jury on public safety and the 

fear of airport bombings.  In Beebe, the prosecutor committed misconduct by 

arguing that the jury should convict the defendant in order to protect the public 

and send a message to the mentally ill that they are not allowed to commit 

       74 Belgarde, 110 Wn.2d at 506-07 (comparing the American Indian 
Movement, in which defendant was involved to the Irish Republican Army and 
Kaddafi, as well as explaining that the American Indian Movement butchered 
people in Wounded Knee, South Dakota); Roman, 323 Ill. App. 3d at 999-1000 
(comparing the defendant to individuals who carry out premeditated attacks on 
unarmed persons, like those at Columbine High School); DeFreitas, 701 So.2d 
at 601 (comparing the facts of defendants' case with those of the O.J. Simpson 
case); Thiel, 619 F.2d at 781-82 (comparing defendant's defense that he was 
justified in defying the income tax laws to parents poisoning their children in 
Jonestown in Guyana and the Holocaust).

       75 145 Idaho 570, 181 P.3d 496 (2007).

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No. 65921-9-I/22

crimes.76 Here, the prosecutor made no analogous statement -- she did not 

mention public safety or the need to hold the mentally ill accountable for their 

actions.  Therefore, Beebe is not persuasive.

       Ballew also argues that the prosecutor's reference to Hinckley was 

improper because Hinckley's story was not in evidence.  As a matter of likely 

common knowledge to the jury, there was no need for it to be in evidence to 

illustrate the point the State was making.  And we simply reject the claim that 

Hinckley's story improperly injected an insanity or diminished capacity defense 

into the jury's consideration.  It did not.

       Because Ballew did not meet his burden to show that the prosecutor's 

conduct was improper, we need not determine whether the reference to Hinckley 

prejudiced him.  

       We affirm the judgment and sentence.

WE CONCUR:

       76 Beebe, 145 Idaho at 575-76.

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