Opinion Information Sheet

			

                                                                               FILED

                                                                          March 15, 2012

                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29580-0-III
                                                )
                      Respondent,               )
                                                )         Division Three
       v.                                       )
                                                )
STEPHANIE ANNE STRONG,                          )
                                                )         PUBLISHED OPINION
                      Appellant.                )
                                                )

       Siddoway, J.  --  Stephanie Strong appeals her conviction of second degree 

extortion.  She argues that the conduct prosecuted in her case -- demanding payment from 

a public servant in exchange for silence about the public servant's wrongdoing -- is no 

different from accepting payment to settle and hold in confidence embarrassing facts 

underlying a threatened lawsuit.  She insists that the First Amendment protects the party 

demanding payment in either case. We disagree and affirm her conviction.

                      FACTS AND PROCEDURAL BACKGROUND

       Stephanie Strong's indictment and arrest for federal bank fraud in 2008 brought 

her into contact with Velven York, a corrections officer at the Spokane County Jail.  She  

No. 29580-0-III
State v. Strong

was housed on the floor to which Mr. York was assigned for many months and the two 

became friendly.  After Ms. Strong was convicted and was transferred to a federal facility 

to serve her sentence, Mr. York maintained contact with her family and eventually sent a 

letter to Ms. Strong in prison. When Ms. Strong returned to Spokane to complete her 

sentence in a federal work-release facility, Mr. York renewed contact, texting or speaking 

to her frequently, driving her to counseling appointments, and buying her dinner.  He paid 

off several of Ms. Strong's fines and other expenses, which totaled more than $2,000.  

Although both testified that their relationship never became romantic, they both knew that 

Mr. York's conduct violated county policy, which strictly forbade corrections officers 

from fraternizing with current or former inmates.

       On June 27, 2010, a Sunday evening, Mr. York received a call on his cell phone

from a male caller who stated, "'Hey, I know you're having girl troubles at work.'"  

2 Report of Proceedings (RP) (Nov. 16, 2010) at 175. The caller went on to say he was 

aware Mr. York was giving rides to an inmate in a federal halfway house and "'here's 

what I want. I want $5000,'" and hung up.  Id. at 176. Mr. York called Ms. Strong and 

told her about the call.  

       Shortly thereafter, Mr. York received a second call from the same male caller.  

This time, the caller demanded that Mr. York bring $5,000 cash to Dick's Hamburgers, a 

Spokane drive-in restaurant, at 3:45 the next afternoon.  The caller said that Mr. York 

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should buy a particular type of hamburger (presumably for its recognizable bag), eat it,

put the cash in the bag, and then leave the bag by a designated trash can.  Mr. York again 

called Ms. Strong and told her about the second call.  Mr. York and Ms. Strong spoke by 

phone several times that evening about the threat and what he should do.  Ms. Strong 

counseled Mr. York that he should pay the money.

       Instead, Mr. York decided the next morning to notify his supervisors at the jail, 

who contacted police.  Eight to ten officers set up surveillance at the appointed time and 

watched as Mr. York made a stop at a bank to feign withdrawing the $5,000, traveled to 

the drive-in restaurant, bought the hamburger, returned to his car to eat it, placed an 

empty envelope into the bag, and then placed the bag near the designated garbage can.  

After Mr. York left the parking lot, officers saw Douglas Mobley walk to the trash can 

and pick up the bag.  Officers immediately arrested Mr. Mobley, who turned out to be 

Ms. Strong's boyfriend.  They also detained Ms. Strong, who they had seen arrive at the 

restaurant with Mr. Mobley and then conceal herself from view behind bushes at a 

neighboring building.  

       Mr. York resigned his position with the county to avoid being fired for the 

violation of policy.  

       Ms. Strong was charged with second degree extortion as an accomplice.  She 

testified at trial that in her last conversation with Mr. York about the extortion threat he 

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indicated he did not intend to comply with the caller's demands.  She claimed she and 

Mr. Mobley traveled to Dick's at the appointed drop time out of curiosity, never

expecting Mr. York to be there.  She testified she had no involvement in the extortion and 

never saw Mr. Mobley pick up the bag.  The jury did not believe her.  She was convicted 

and sentenced to 55 months' confinement.  

       She appeals, arguing that Mr. Mobley's speech, threatening to disclose only

truthful information and not a "true threat" within the meaning of First Amendment 

jurisprudence, is constitutionally protected.  She argues that she cannot be convicted as an 

accomplice to something that is not a crime.  

                                         ANALYSIS

       The State must prove each element of a crime beyond a reasonable doubt.  In re 

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).  Ms. Strong argues

that the State presented insufficient evidence that the threat conveyed to Mr. York by Mr. 

Mobley was unprotected speech under the First Amendment.

       Whether the crime of extortion in the second degree requires proof of a "true 

threat" within the meaning adopted by our Supreme Court in State v. Williams, 144 

Wn.2d 197, 26 P.3d 890 (2001) is a question of law that we review de novo.  

       If Ms. Strong's conviction may have been based on protected speech, we conduct 

an independent examination of the entire record "'to be sure that the speech in question 

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actually falls within the unprotected category and to confine the perimeters of any 

unprotected category within acceptably narrow limits in an effort to ensure [that] 

protected expression will not be inhibited.'"  State v. Kilburn, 151 Wn.2d 36, 50, 84 P.3d 

1215 (2004) (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 

485, 505, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984)).

                                               I

       As a threshold matter, the State argues that Ms. Strong was charged as an 

accomplice and the speech for which she claims protection -- the extortionate threat -- was 

not her own.  It argues that since her speech was not at issue, there is no First 

Amendment issue she can raise.

       As framed by Ms. Strong, however, the issue is whether she can be convicted as an 

accomplice if no underlying crime occurred.  An accessory may be convicted of the 

underlying offense even though he or she is the only one charged, if there is proof the 

crime was committed.  State v. Mora, 110 Wn. App. 850, 859, 43 P.3d 38, review denied, 

147 Wn.2d 1021 (2002); State v. Dault, 25 Wn. App. 568, 573, 608 P.2d 270, review 

denied, 93 Wn.2d 1030 (1980).  However, "[e]ven though the accessory may be tried and 

convicted as principal, either before or after the principal actor, he may not be convicted 

in the absence of proof that the one to whom he is charged as accessory actually 

committed the crime."  State v. Nikolich, 137 Wash. 62, 66-67, 241 P. 664 (1925); State 

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v. Taplin, 9 Wn. App. 545, 547, 513 P.2d 549 (1973).  We agree with Ms. Strong that if 

Mr. Mobley's conduct was no crime, because protected by the First Amendment, then she 

cannot be convicted as an accessory.

                                               II

       "The First Amendment, applicable to the States through the Fourteenth 

Amendment, provides that 'Congress shall make no law . . . abridging the freedom of 

speech.'"  Virginia v. Black, 538 U.S. 343, 358, 123 S. Ct. 1536, 155 L. Ed. 2d 535 

(2003) (alteration in original). A state criminal law "may be invalidated as overbroad if 

'a substantial number of its applications are unconstitutional, judged in relation to the 

statute's plainly legitimate sweep.'" United States v. Stevens, __ U.S. __, 130 S. Ct. 

1577, 1587, 176 L. Ed. 2d 435 (2010) (quoting Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 449 n.6, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008)).  

       Ms. Strong argues that RCW 9A.56.130, defining the crime of extortion in the 

second degree, is constitutionally overbroad in criminalizing threats that enjoy First 

Amendment protection.  But she does not ask us to invalidate the statute on that basis; she 

asks, instead, that we construe it to require proof of a true threat, which she argues is 

essential to preserve its constitutionality.  Ms. Strong argues that a true threat was not 

established by the State's evidence in this case.

       A limiting construction of a State's definition of a crime is sometimes required by 

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No. 29580-0-III
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the canon of constitutional avoidance, an interpretive tool that the United States Supreme 

Court has counseled so that "ambiguous statutory language be construed to avoid serious 

constitutional doubts."  Fed. Commc'ns Comm'n v. Fox Television Stations, Inc., 556 

U.S. 502, 129 S. Ct. 1800, 1811, 173 L. Ed. 2d 738 (2009).  But adopting a limiting 

construction is only appropriate if the statute is readily susceptible to the limiting 

construction; rewriting a law to conform it to constitutional requirements would 

constitute a serious invasion of the legislative domain.  Stevens, 130 S. Ct. at 1592 

(quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 884, 117 S. Ct. 2329, 138 L. 

Ed. 2d 874 (1997); United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 479 n.26, 

115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995)).

       The United States Supreme Court's recent First Amendment jurisprudence 

provides that "'[t]he first step in overbreadth analysis is to construe the challenged 

statute; it is impossible to determine whether a statute reaches too far without first 

knowing what the statute covers.'"  Id. at 1587 (alteration in original) (quoting United 

States v. Williams, 553 U.S. 285, 293, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)). The 

second is to examine whether the statute as construed criminalizes a substantial amount 

of protected expressive activity.  Williams, 553 U.S. at 297.  We conduct the two steps of 

the analysis in turn.

                                               A

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No. 29580-0-III
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       Washington defines "extortion" as knowingly to obtain or attempt to obtain by 

threat property or services of the owner.  RCW 9A.56.110.  Extortion committed by 

means of a threat to inflict bodily harm or take the life of another constitutes extortion in 

the first degree.  RCW 9A.56.120.

       A person is guilty of extortion in the second degree if she commits extortion by 

means of other specified wrongful threats; in Ms. Strong's case, the charge was that she 

committed extortion by means of a threat to harm substantially Mr. York with respect to 

his health, safety, business, financial condition, or personal relationships.  Clerk's Papers

at 5; RCW 9A.56.130; former RCW 9A.04.110(27)(j) (2007).  Other threats qualifying as 

"wrongful" for purposes of a charge of extortion in the second degree are threats (1) to 

accuse any person of a crime or cause criminal charges to be instituted against any 

person; (2) to expose a secret or publicize an asserted fact, whether true or false, tending 

to subject any person to hatred, contempt, or ridicule; (3) to reveal any information 

sought to be concealed by the person threatened; (4) to testify or provide information or 

withhold testimony or information with respect to another's legal claim or defense; (5) to 

take wrongful action as an official against anyone or anything, or wrongfully withhold 

official action, or cause such action or withholding; or (6) to bring about or continue a 

strike, boycott, or other similar collective action to obtain property that is not demanded 

or received for the benefit of the group that the actor purports to represent.  Former RCW 

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No. 29580-0-III
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9A.04.110(27)(d)-(i).

       The gravamen of the common law crime of extortion -- a crime against the 

administration of justice -- is a corrupt taking of a fee by a public officer.  See 3 Wayne R. 

LaFave, Substantive Criminal Law § 20.4, at 197 (2d ed. 2003).  In its modern form, 

statutory extortion, a crime in practically every state, "is, of course, closely related to the 

crime of robbery, having in fact been created in order to plug a loophole in the robbery 

law by covering sundry threats which will not do for robbery."  Id. § 20.4(a), at 198 & 

n.3.  The central importance to the crime of nonspeech conduct -- the wrongful 

acquisition or attempted acquisition of another's property -- takes extortion outside the 

category of pure speech.  

       The overbreadth doctrine's concern with chilling protected speech "attenuates as 

the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure 

speech' toward conduct."  Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 

L. Ed. 2d 830 (1973).  "'[I]t has never been deemed an abridgment of freedom of speech 

or press to make a course of conduct illegal merely because the conduct was in part 

initiated, evidenced, or carried out by means of language, either spoken, written, or 

printed.'" Cox v. Louisiana, 379 U.S. 559, 563, 85 S. Ct. 476, 13 L. Ed. 2d 487 (1965) 

(quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S. Ct. 684, 93 L. 

Ed. 834 (1949)).

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       Where a regulated activity involves elements of both speech and conduct, the 

intermingling of protected and unprotected elements permits subjecting the activity to 

controls that would not be constitutionally permissible in the case of pure speech.  

Amalgamated Food Emps. Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 

314, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968) (picketing), overruled on other grounds by

Hudgens v. Nat'l Labor Relations Bd., 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196

(1976). When "speech" and "nonspeech" elements are combined in the same course of 

conduct, a sufficiently important governmental interest in regulating the nonspeech 

element can justify incidental limitations on First Amendment freedoms. Barnes v. Glen 

Theatre, Inc., 501 U.S. 560, 567, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991) (quoting 

United States v. O'Brien, 391 U.S. 367, 376-77, 88 S. Ct. 1673, 20 L. Ed. 2d 672 

(1968)).

       Washington courts performing overbreadth analysis have examined whether a 

statute's objective is to regulate conduct, with only an incidental impact on speech.  Such 

statutes are less likely to be invalid, chilling, at most, incidental speech, "uttered during 

lawless conduct."  State v. Talley, 122 Wn.2d 192, 211, 858 P.2d 217 (1993) (reviewing 

challenge to hate crime statute).  In State v. Dyson, 74 Wn. App. 237, 243, 872 P.2d 

1115, review denied, 125 Wn.2d 1005 (1994), the court observed that the statute defining 

the crime of telephone harassment was "clearly directed against specific 

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No. 29580-0-III
State v. Strong

conduct -- making telephone calls with the intent to harass, intimidate, or torment 

another," although at the same time using lewd, profane, or other offensive language 

identified by the statute.  It noted that "[b]ecause the requisite intent establishes the 

criminality of the communicative conduct, any impact . . . on speech is insubstantial."  Id.

       The criminal code's provisions criminalizing second degree extortion and 

identifying the types of threats that satisfy its required element of a wrongful threat 

therefore cover a type of theft, carried out by means of language.

                                               B

       Having determined what the challenged provisions cover, we address Ms. Strong's 

contention that it criminalizes a substantial amount of protected expressive activity.  She 

argues that it does, by criminalizing threats that fall short of true threats within the 

meaning of First Amendment jurisprudence. 

       The significance of true threats in the First Amendment context was first identified 

in Watts v. United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), 

which reviewed Robert Watts' conviction of threatening Lyndon B. Johnson, for 
statements made by Watts at an antiwar rally.1 The Supreme Court reversed the 

       1 In a break-out discussion group at a public rally taking place during the Vietnam 
War, Watts stated that he had received his draft classification as 1-A and had to report for 
his physical, and "'I am not going.  If they ever make me carry a rifle the first man I want 
to get in my sights is L.B.J.'  'They are not going to make me kill my black brothers.'"  
394 U.S. at 706.

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conviction, stating that a statute "which makes criminal a form of pure speech, must be 

interpreted with the commands of the First Amendment clearly in mind" (emphasis 

added) and, in the case of the statute under which Mr. Watts was convicted, must 

distinguish true "threats" from political hyperbole. 394 U.S. at 707.  In Williams our 

Supreme Court adopted a definition of "true threat" that emerged in the wake of Watts, as 

"'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 individual]."'"  

Williams, 144 Wn.2d at 207-08 (alterations in original) (quoting State v. Knowles, 91 Wn. 

App. 367, 373, 957 P.2d 797, review denied, 136 Wn.2d 1029 (1998) (quoting United 

States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.), cert. denied, 498 U.S. 986 (1990))).  

       As with the federal law at issue in Watts, the misdemeanor criminal harassment 

statute examined in Williams criminalized pure speech.  Id. at 207.  Criminal harassment 

was defined to include a threat "'[m]aliciously to do any . . . act which is intended to 

substantially harm the person threatened or another with respect to his or her physical or 

mental health or safety.'"  Id. at 203 (emphasis omitted) (quoting former RCW 

9A.46.020(1)(a)(iv) (1992)).  The court found the statute unconstitutionally vague and 

overbroad in criminalizing not only true threats, but even threats intended to harm a 

person's mental health; "mental health" was undefined. 

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No. 29580-0-III
State v. Strong

       Ms. Strong argues that only a true threat can suffice, constitutionally, for 

conviction, but every case she cites concerns a law that regulates pure speech.  She relies 

on Kilburn, 151 Wn.2d at 41, which examines Washington's felony harassment statute, a 

statute that the court finds as a threshold matter "criminalizes pure speech."  She cites 

State v. Johnston, 156 Wn.2d 355, 360, 127 P.3d 707 (2006), which construes a bomb 

threat statute that the court likewise observes "regulates pure speech."  

       Laws that regulate criminal conduct as to which speech is incidental are 

distinguishable.  If the nonspeech conduct is a sufficient basis for criminal punishment, 

the fact that the incidental speech falls short of a true threat does not present a 

constitutional problem.  "[E]xtortionate speech has no more constitutional protection than 

that uttered by a robber while ordering his victim to hand over the money, which is no 

protection at all."  United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975), cert. 

denied, 424 U.S. 955 (1976); accord United States v. Hutson, 843 F.2d 1232, 1235 (9th 

Cir. 1988). "Although the First Amendment broadly protects 'speech,' it does not protect 

the right to 'fix prices, breach contracts, make false warranties, place bets with bookies, 

threaten, [or] extort.'"  R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 420, 112 S. Ct. 

2538, 120 L. Ed. 2d 305 (1992) (Stevens, J., concurring) (alteration in original) (quoting 

Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. 

L. Rev. 265, 270 (1981)). In holding unconstitutional a coercion ordinance that it found 

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No. 29580-0-III
State v. Strong

to be overbroad, Division One of our court recognized that extortion statutes are generally 

upheld as constitutionally valid, on the basis that extortion requires the unlawful 

compelling of the victim to give up property; it is an extension of theft.  City of Seattle v. 

Ivan, 71 Wn. App. 145, 154, 856 P.2d 1116 (1993) (citing State v. Robertson, 293 Or. 

402, 418-20, 649 P.2d 569 (1982)).

       Ms. Strong raises one viable issue of First Amendment concern, but one that was 

addressed by our Supreme Court in State v. Pauling, 149 Wn.2d 381, 69 P.3d 331, cert. 

denied, 540 U.S. 986 (2003). She posits that

       [c]ivil suits are often resolved with a payment in turn for an agreement not 
       to disclose details of the settlement.  Civil suits, too, are often initiated with 
       a demand letter seeking payment in return for an agreement not to sue.  

Br. of Appellant at 9.  Demand for payment in satisfaction of a legal claim is not 

wrongful conduct.  We agree that if any threat accompanying such a demand were to be 

treated as a crime, the First Amendment would require that it be a true threat.  But this 

argument for overbreadth was squarely presented in Pauling and our Supreme Court 

addressed it by adopting a limiting construction that removed the danger to 

constitutionally protected expression.  The court limited the crime of extortion to threats 

that are inherently wrongful as lacking any nexus to a plausible claim of right.  It relied 

upon the limiting construction of a federal extortion statute, 18 U.S.C. § 875(d) (1994),

arrived at by the Second Circuit Court of Appeals in United States v. Jackson, 180 F.3d 

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No. 29580-0-III
State v. Strong

55, superseded on reh'g, 196 F.3d 383 (2d Cir. 1999), cert. denied, 530 U.S. 1267 

(2000).  We find no case that has improved upon Jackson's explanation of the limiting 

construction:

              Where there is no plausible claim of right and the only leverage to 
       force the payment of money resides in the threat, where actual disclosure 
       would be counterproductive, and where compliance with the threatener's 
       demands provides no assurance against additional demands based on 
       renewed threats of disclosure, we regard a threat to reputation as inherently 
       wrongful. We conclude that where a threat of harm to a person's reputation 
       seeks money or property to which the threatener does not have, and cannot 
       reasonably believe she has, a claim of right, or where the threat has no 
       nexus to a plausible claim of right, the threat is inherently wrongful and its 
       transmission in interstate commerce is prohibited by § 875(d).

180 F.3d at 71.  

       Ms. Strong acknowledges Pauling but mistakenly argues that its limiting 

construction of extortion in the second degree does not solve the constitutional infirmity.  

She argues, first, that a prospective plaintiff's "good faith belief" in the merit of his or her 

threatened suit is not enough to constitute a claim of right, leaving the plaintiff vulnerable 

to a charge of extortion.  Br. of Appellant at 9.  She reads the nexus requirement too 

narrowly.  If a prospective plaintiff threatening litigation has or reasonably believes he or 

she has a claim of right, or threatens litigation with a nexus to a plausible claim of right, 

the threat falls outside the scope of the extortion statute.  Pauling does not require that the 

claim of right be proved.

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No. 29580-0-III
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       Ms. Strong's second argument that Pauling does not solve the constitutional 

problem is that "the words themselves, the threat, may nonetheless be constitutionally 

protected speech. . . .  Thus, regardless of whether one has a claim of right to the property 

sought, so long as the threat is constitutionally protected speech, the person cannot be 

criminally sanctioned."  Id.  Her error here, as discussed earlier, is in assuming that a 

threat falling short of a true threat is always protected from criminal punishment.  A 

threat falling short of a true threat will be protected from punishment as pure speech.  

Watts, 394 U.S. at 707; Williams, 144 Wn.2d at 207.  But when the threat is a part of 

verbal and other conduct whose criminal punishment can be justified independent of the 

speech, the wrong, collectively, is not guaranteed protection from criminal punishment.  

It is not protected from punishment as extortion in the second degree.

                                               III

       Finally, Ms. Strong argues that because she has raised a First Amendment claim, 

we must engage in independent review of the record, "'so as to assure ourselves that the 

judgment does not constitute a forbidden intrusion on the field of free expression.'"  

Kilburn, 151 Wn.2d at 50 (internal quotation marks omitted) (quoting Bose, 466 U.S. at

508).  The constitutionally-warranted independent review is factual review, limited to 

"those 'crucial' facts that necessarily involve the legal determination whether the speech 

is unprotected." Id. at 52.  

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No. 29580-0-III
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       The evidence at Ms. Strong's trial was undisputed that Mr. Mobley threatened to 

disclose Mr. York's career-ending violations of the county's fraternization policy unless 

he was paid the $5,000 he demanded.  On this evidence, Ms. Strong's conviction as an 

accessory does not punish speech protected by the First Amendment.

       We affirm.

                                                ___________________________________
                                                Siddoway, J.

WE CONCUR:

_________________________________               ___________________________________
Sweeney, J.                                     Brown, J.

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