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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent, v. GLEN ARTHUR SCHALER, Petitioner. Filed July 29, 2010 NO. 81864-9

EN BANC

STEPHENS, J.--This case concerns the interplay between the threats-to-kill provision of Washington's harassment statute, RCW 9A.46.020, and the First Amendment's limits on the criminalization of speech. We adhere to our previous position that the harassment statute must be read to proscribe only "true threats" and hold that the jury instructions in this case did not adequately limit the statute's reach. Given the evidence at trial, the instructional error was not harmless. We therefore reverse and remand for a new trial under proper instructions.

State v. Schaler (Glen Arthur), 81864-9

BACKGROUND FACTS AND PROCEDURAL HISTORY On the morning of August 10, 2005, Director Tonya Heller-Wilson of Crisis Services for Okanogan Behavioral Healthcare received a call from Glen Schaler, who claimed to have killed his neighbors.1 Schaler was crying and hysterical. He told Heller-Wilson that he awoke from a dream and thought he had killed his neighbor, and that killing his neighbors had been occupying his daytime thoughts, too. Heller-Wilson testified that Schaler seemed extremely upset at the prospect that he might have hurt someone. He threatened to kill himself. Heller-Wilson had a co-worker contact the police. Deputy Connie Humphrey arrived at Schaler's residence several minutes later, while Schaler was still on the phone with Heller-Wilson. When Humphrey knocked on Schaler's door, Schaler told her to "go away" and said, "`I dreamed I slit her throat.'" Verbatim Report of Proceedings (VRP) (Feb. 6, 2007) at 207. Schaler handed Humphrey the phone through the doorway, and Heller-Wilson asked Humphrey to bring Schaler in for an evaluation if the situation did not turn into a criminal investigation. When Humphrey entered, she observed that Schaler was "sweating and panting," as though he "was having difficulty getting a complete breath." Id. at 212. Schaler indicated he had not taken his medication that morning. Humphrey found no evidence that any neighbors had been injured and convinced Schaler to accompany her to Mid Valley Hospital for an evaluation. At Humphrey's urging, Schaler took his medication before leaving for the hospital.
Heller-Wilson's co-worker received Schaler's call and then forwarded it on to Heller-Wilson due to her higher level of experience. -21

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Deputy Humphrey brought Schaler to the hospital and left him in HellerWilson's care. Humphrey was called back to the hospital twice during the next several hours to assist Heller-Wilson. Humphrey tried to get Schaler to comply with the mental health staff, who at one point attempted to give Schaler an injection. In response, Schaler stated, "`[B]ring it on, cause there was going to be a fight, and that someone was going to get hurt[,]' [h]e could guarantee it," but then told the staff how he had previously suffered back and neck injuries. Id. at 220. Schaler also said that "next time he was going to get a bunch of guns, and it would be [a] blood bath." Id. Based on his behavior, Schaler's commitment status was changed from voluntary to involuntary because Heller-Wilson believed Schaler was a danger to himself and to others. Heller-Wilson came "in and out of the room" while Schaler was receiving medical attention at the hospital, including the drawing of his blood. Id. at 250. She testified that Schaler was having some sort of mental breakdown. During HellerWilson's contact with Schaler, he repeatedly referred to two neighbors, Kathy Nockels and Denise Busbin. Schaler "was pretty specific that he, he wanted to kill his neighbors." Id. at 247. Schaler specifically said that "he wanted to kill them with his bare hands, by strangulation," although he also said, "`I hope I didn't really kill her.'" Id. at 248, 267. Schaler said that he had been planning his neighbor's death for months and had dreamt about it, but in the dream she hit him and scratched his face. Heller-Wilson tried to ascertain whether Schaler was making a serious threat:
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I can't recall specifically how I asked him. I, I know that you don't, it's part of my job to try to keep people out of the hospital. And when people tell me that they feel like they want somebody to die, or they want to die, I always go into the explanation that you know, there are times that I wish I were dead, but I don't have a plan to kill myself. I mean, you know, there are just times, and there's times that I wish my, my boss didn't exist, but I don't have a plan to kill him. And I kind of went that way, and I said "You know, sure, you might wish that they weren't there. Maybe you're [sic] life would be a little bit easier." But he said specifically, he wanted to harm them.

Id. at 248-49. Schaler repeated his desire to kill his neighbors to Heller-Wilson over the approximately four hours she spent with him. He appeared angry when he made these comments and never said he was not serious or did not mean what he said. Heller-Wilson believed Schaler had made a "viable threat" and so, pursuant to her duty to warn,2 she contacted Nockels and Busbin to inform them of Schaler's comments. Id. at 251-53. On cross-examination, Heller-Wilson acknowledged that the situation was complicated by the fact that Schaler initiated contact with her office, was clearly agitated, and was requesting help from her as a crisis counselor. Schaler told Heller-Wilson of an incident on June 1, 2005, involving a dispute over fruit trees, which he said was one reason that he wanted to kill his neighbors. Schaler believed that a row of Busbin's fruit trees was interfering with his rightful access to an alley. Nockels called the police after she noticed Schaler cutting the trees with a chain saw. When Nockels asked Schaler to stop, Schaler raised his chain saw toward Nockels and told her to "stay out of this." VRP (Feb. 7, 2007) at 10-11. Deputy Michael Blake arrived in response to the 911 call. After Blake
Under certain circumstances, a mental health counselor has a duty to warn those whom the counselor's patient may harm. See generally Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983). -42

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arrived, Schaler said that "`it was obvious that somebody [was] going to die.'" VRP (Feb. 6, 2007) at 288. Schaler repeated this statement, and Blake asked what Schaler meant and why it was obvious. Schaler did not answer. Blake informed Schaler that Blake took Schaler's statement very seriously, and after a long pause, Schaler stated that he thought he (Schaler) would be the one to die, citing an incident where he claimed Busbin's husband had threatened him with a shotgun. Blake asked Schaler if he thought he was going to kill someone, and Schaler replied that "when he [Schaler] became angry, he did feel like that he wanted to kill someone, and that that was a natural human response." Id. at 291. He did not say anything more specific. Nockels testified that she believed Schaler was going to kill her as a result of the fruit tree incident. She felt similarly after Heller-Wilson warned her of Schaler's comments at the hospital. Busbin felt Schaler was capable of carrying out the threats. Both women obtained protective orders against Schaler after the tree

incident and thereafter made sure that each woman always knew the location of the other. Schaler was charged with two counts under the threats-to-kill provision of the harassment statute, RCW 9A.46.020(1)(a)(i), (b), (2)(b)(ii), for his statements to Heller-Wilson regarding Nockels and Busbin. Schaler successfully requested a jury instruction requiring the jury to find that he subjectively intended to communicate a threat. No party requested an instruction as to the definition of "true threat," nor did Schaler object to the State's proposed definition of "threat," which was not limited
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to true threats. The term "true threat" did not appear in any of the jury instructions. Schaler was sentenced to two 10-month terms of confinement to be served concurrently. On appeal, Schaler argued that the evidence was insufficient to support the jury's verdict. He also challenged the jury instructions for the first time, arguing that the First Amendment requires an explicit "true threat" instruction. The Court of Appeals held that the trial court erred by failing to instruct the jury on "true threats" but that any error was harmless beyond a reasonable doubt. State v. Schaler, 145 Wn. App. 628, 640-41, 186 P.3d 1170 (2008). It further held that the evidence at trial was sufficient to support Schaler's conviction. Id. at 644. We granted review. 165 Wn.2d 1015, 199 P.3d 411 (2009). STANDARD OF REVIEW Instructional errors based on legal rulings are reviewed de novo, as are constitutional questions. 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). We engage in independent review of the record in First Amendment cases "`so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.'" 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)). Here, Schaler failed to raise his First Amendment argument until appeal. An appellate court may refuse to address a claim of error not raised in the trial court
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unless it finds a "manifest error affecting a constitutional right." RAP 2.5(a)(3). An error is "manifest" if it had practical and identifiable consequences in the case. State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). constitutional errors may be harmless. Id. at 98. ANALYSIS I. Jury Instructions 1. True Threats "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). While the scope of the First Amendment is broad, it does not extend to "unprotected speech." Kilburn, 151 Wn.2d at 42-43. "True threats" occupy one category of unprotected speech. Id. at 43. 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." Id. (internal punctuation and quotation marks omitted) (quoting State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890 (2001)). The State has a significant interest in restricting speech that communicates a true threat, including "`protect[ing] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.'" Id. (quoting State v. J.M., 144 Wn.2d 472, 478, 28 P.3d 720 (2001)). The speaker of a
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Even manifest

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"true threat" need not actually intend to carry it out. Id. at 46. It is enough that a reasonable speaker would foresee that the threat would be considered serious. Importantly, only threats that are "true" may be proscribed. 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. Id. at 43. We recently interpreted the bomb threat statute, RCW 9.61.160, to reach only "true threats" in order to save it from a constitutional challenge. State v. Johnston, 156 Wn.2d 355, 364, 127 P.3d 707 (2006). We adhere to this principle and

construe the threats-to-kill provision of RCW 9A.46.020 to the same effect. 2. Instructional Error Schaler assigns error to the trial court's failure to give the jury a true threat instruction. Because he did not object to the instructions at trial, the first question we must address is whether this case involves a manifest error affecting a constitutional right. See RAP 2.5(a). An error is manifest if it had practical and identifiable consequences in the case. O'Hara, 167 Wn.2d at 99. This standard is also referred to as "actual prejudice." Id. As we explained in O'Hara,
[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.

Id. at 99-100 (citation and footnote omitted). This analysis is distinct from deciding whether the error was harmless and therefore does not warrant reversal. Id. at 98.

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State v. Schaler (Glen Arthur), 81864-9

Schaler argues that he did not make a true threat, as constitutionally required, because he was describing his mental state and the contents of a dream he was having to a mental health specialist after calling a crisis services hotline. Pet. for Review at 13, 16. In the context of his mental health evaluation, Schaler contends, his words were a cry for help, and a reasonable person in his position would not foresee that a listener would take them as a serious expression of intent to kill his neighbors. Appellant's Opening Br. at 11-12. The State responds that no true threat instruction was necessary because the threats-to-kill provision was sufficiently narrowed by the instructions at trial. Br. of Resp't at 30-31; Suppl. Br. of Resp't at 3-5. In pertinent part, the threats-to-kill provision reads:
(1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; [and] .... (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. . . . .... [(2)](b) A person who harasses another is guilty of a class C felony if . . . the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened . . . .

RCW 9A.46.020(1)-(2). The trial court instructed the jury as to the statutory elements in instructions 5 and 16. Clerk's Papers (CP) at 26, 33, 44. The court further instructed the jury in instruction 10 that "`threat' means to communicate, directly or indirectly, the intent to cause bodily injury immediately or in the future to the person threatened or to any

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other person."

CP 26, 38 (paralleling RCW 9A.04.110(27)(a)).

At Schaler's

urging, the court added jury instruction 12, which read, "A person threatens `knowingly' when the person subjectively intends to communicate a threat." CP at 26, 40, 55-46. Reading the definitions into the statute, the jury was advised that a person is guilty of threats-to-kill harassment if (1) without lawful authority, he subjectively intends to communicate, directly or indirectly, the intent to kill the person threatened or any other person, and (2) by words or conduct, he places the person threatened in reasonable fear that the threat will be carried out. We can therefore construct the following schematic of what the jury was told is criminalized by the threats-to-kill provision:
Conduct: Communicating, i.e., uttering words or undertaking expressive conduct to another. Circumstances: The words or conduct suggest an intent to kill somebody. Result: The person threatened reasonably fears that the threat will be carried out. Mens Rea: As to the conduct and circumstances, the person acts intentionally.

No mens rea was specified as to the result. The jury instructions did not state that the defendant must know or foresee that the person threatened (or, for that matter, any listener) would reasonably fear that the threat will be carried out. This is because the statute uses the term "knowingly threaten" in subsection (1)(a) but includes no mens rea term in the separate subsection listing the result requirement, (1)(b). RCW 9A.46.020(1). If "knowingly threaten" had been left to its ordinary meaning, it could be understood to require that the speaker be aware that his words
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or actions frightened the hearer

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