                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                         v.

                    CASEY BRANDON SIBLEY, Appellant.

                              No. 1 CA-CR 17-0768
                                FILED 5-31-2018


            Appeal from the Superior Court in Maricopa County
                         No. LC2017-000225-001
                  The Honorable Patricia A. Starr, Judge

                                   AFFIRMED


                                    COUNSEL

Scottsdale City Prosecutor’s Office, Scottsdale
By Seth Peterson
Counsel for Appellee

Wilenchik & Bartness, P.C., Phoenix
By Dennis I. Wilenchik, David Timchak (argued)
Counsel for Appellant
                              STATE v. SIBLEY
                             Decision of the Court



                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined.


M c M U R D I E, Judge:

¶1            Casey Brandon Sibley appeals his conviction and imposition
of probation for threatening or intimidating. He challenges the facial
constitutionality of the statute that defines the offense. 1 For the following
reasons, we affirm.

             FACTS 2 AND PROCEDURAL BACKGROUND

¶2             When the concierge at Sibley’s condominium complex
informed Sibley he needed to move his vehicle because it was illegally
parked, Sibley became upset and “[en]raged.” Sibley repeatedly stated he
was “gonna shoot those bitches in the HOA” if his car was towed. Believing
Sibley’s statement to be a threat, the concierge informed security of the
statements. When two women who worked in the HOA office learned of
the threat, they became concerned, scared, stressed, distraught, and felt
threatened. 3 The victims hired undercover police officers and extra security
guards for protection.



1       Sibley also argues insufficient evidence supports his conviction. As
Sibley correctly recognizes, this court lacks jurisdiction to address that
contention because Sibley’s case commenced in municipal court. Ariz. Rev.
Stat. § 22-375; State v. Yabe, 114 Ariz. 89, 90 (App. 1977). We decline Sibley’s
invitation to treat his request for relief on this basis as a petition for special
action.

2       We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against Sibley. State v. Harm, 236 Ariz.
402, 404, ¶ 2, n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App.
1996)).

3       Sibley had previously been very loud and “verbally aggressive” to
at least one of the women who worked in the HOA office.


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                             Decision of the Court

¶3            The City of Scottsdale subsequently charged Sibley with one
count each of threatening or intimidating and disorderly conduct, both
class 1 misdemeanors. The municipal court found Sibley guilty of
threatening or intimidating, and not guilty of disorderly conduct. The court
suspended sentence and placed Sibley on 11 months of unsupervised
probation. Sibley appealed to superior court, which affirmed. Sibley timely
appealed to this court, and we have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, -4033(A)(1), and
22-375.

                                DISCUSSION

¶4            As relevant here, “[a] person commits threatening or
intimidating if the person threatens or intimidates by word or conduct . . .
[t]o cause physical injury to another person[.]” A.R.S. § 13-1202(A)(1).

¶5            Sibley challenges the facial validity of § 13-1202(A)(1). He first
argues the statute violates the First Amendment because it does not require
proof of “wrongful intent.” He also contends § 13-1202(A)(1) is
unconstitutionally overbroad and vague. We review de novo whether a
statute is constitutional. State v. Russo, 219 Ariz. 223, 225, ¶ 4 (App. 2008).
The party challenging a statute’s constitutionality bears the burden of
establishing its invalidity and must overcome a “strong presumption” that
the statute is constitutional. State v. Kaiser, 204 Ariz. 514, 517, ¶ 8 (App.
2003).

A.     Section 13-1202(A)(1) Does Not Punish Speech Protected by the
       First Amendment.

¶6             In 2001, this court construed § 13-1202(A)(1) as punishing a
“true threat,” which we defined as “a threat if, under the circumstances, a
reasonable person would foresee that [a defendant’s] words would be taken
as a serious expression of an intent to inflict bodily harm, and [the]
statements were not the result of mistake, duress, or coercion.” In re Kyle
M., 200 Ariz. 447, 451–52, ¶¶ 22–23 (App. 2001). In concluding the
legislature intended “true threats” to constitute threatening or intimidating
under § 13-1202(A)(1), we noted the legislature in 1994 deleted from
§ 13-1202(A) the phrase “with the intent to terrify[,]” and did not replace
that phrase with “any words describing a culpable mental state.” Id. at 450,
¶ 13. Accordingly, we rejected the notion that § 13-1202(A)(1) “necessarily
includes the culpable mental state of ‘wrongful intent[]’ . . . [because] . . . we
cannot reinsert into [§] 13-1202(A)(1) under the guise of judicial
construction words of limitation that the legislature has expressly deleted.”
Id. at ¶ 14. Instead, we explained “a culpable mental state is necessarily

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                                STATE v. SIBLEY
                               Decision of the Court

involved in the commission of the offense,” and that our adopted definition
of “true threat” “sufficiently narrows the words or conduct prohibited
without infringing upon the privileges of free speech guaranteed by our
state and federal constitutions.” Id. at 450, 451, ¶¶ 15, 22.

    ¶7            In a subsequent case, we noted that the Kyle M. court’s
    “[g]rafting the ‘true threat’ requirement into [§ 13-1202(A)(1)] . . . resolved
    constitutional concerns based on the first amendment right to free speech.”
    In re Ryan A., 202 Ariz. 19, 22, ¶ 8 (App. 2002); see United States v. Alvarez,
    567 U.S. 709, 717 (2012) (“true threat[]” is a category of expression
    permissibly subject to a content-based restriction on speech); Virginia v.
    Black, 538 U.S. 343, 359 (2003) (citing the Court’s prior cases that recognize
    “the First Amendment also permits a State to ban a ‘true threat’”).
    Thereafter, the Arizona Supreme Court also noted that the definition of
    “true threat” adopted in Kyle M. “avoid[ed] constitutional conflict[.]”
    Citizen Pub’g Co. v. Miller, 210 Ariz. 513, 520, ¶ 29 (2005). 4


4              Sibley argues the Miller court implicitly recognized that Black
requires proof of wrongful intent for speech to be unprotected as a “true
threat.” Miller did not do so; instead, Miller expressly noted that the United
States Supreme Court in Black held:
          [C]ross burnings committed with an intent to intimidate
          could be constitutionally prohibited, [and] the Court
          explained the true threat doctrine 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.
Miller, 210 Ariz. at 520, ¶ 28 (alteration in original). In making this
argument, Sibley contends the Arizona Supreme Court’s recognition in
Miller that Kyle M. adopted a test “substantially similar” to the Black Court’s
“true threat” test indicates the two tests are not identical. See id. at ¶ 29. We
are not persuaded, however, that the obvious conclusion flowing from this
observation is that proof of a defendant’s wrongful subjective intent is
necessary for a “true threat” to be unprotected by the First Amendment.


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                            Decision of the Court

¶8             Nonetheless, Sibley relies on the United States Supreme
Court’s plurality conclusion in Black to argue that a “true threat” punishable
under the First Amendment must be made with “wrongful intent.” In Black,
the Court considered a First Amendment challenge to a Virginia statute that
criminalized cross burnings committed with the intent to intimidate. Black,
538 U.S. at 347. A majority of the Court held that “[i]nstead of prohibiting
all intimidating messages,” Virginia may ban such a “particularly virulent
form of intimidation.” Id. at 363. The Court also addressed the statute’s
provision, as interpreted through the trial court’s jury instruction, that
specified cross burning was prima facie evidence of intimidation. Id. at
363–64. A plurality of the Court found that provision facially
unconstitutional, reasoning that cross burning was “constitutionally
proscribable intimidation. But that same act may mean only that the person
is engaged in core political speech.” Id. at 364–65. The Court defined
“[i]ntimidation in the constitutionally proscribable sense of the word” as “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.” Id. at 360.

¶9              Black did not hold the First Amendment forbids punishment
of a threat made without proof of “wrongful intent.” As Justice Thomas
recently noted, at issue in Black was a statute that expressly required an
intent to intimidate; thus, the Court “had no occasion to decide whether
such an element was necessary in threat provisions silent on the matter.”
Elonis v. United States, 135 S. Ct. 2001, 2027 (2015) (Thomas, J., dissenting).
Further, although in Cassel—a case Sibley leans upon heavily—the Ninth
Circuit Court of Appeals relied on the Black plurality’s definition of
“intimidation,” see supra ¶ 8, in broadly concluding, “[t]he clear import of
this definition is that only intentional threats are criminally punishable
consistently with the First Amendment[,]” other federal courts have
concluded an objective standard like the one we adopted in Kyle M. and
applied in Ryan A. is appropriate. United States v. Cassel, 408 F.3d 622, 631
(9th Cir. 2005); see Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal.
of Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002) (“It is not necessary that
the defendant intend to, or be able to carry out his threat; the only intent
requirement for a true threat is that the defendant intentionally or
knowingly communicate the threat.”), as amended (July 10, 2002); United
States v. D’Amario, 461 F. Supp. 2d 298, 302 (D.N.J. 2006) (“The Third Circuit
does not share the Ninth Circuit’s apparent inability to determine what
comprises a ‘true threat.’”); Casey Brown, A True Threat to First Amendment
Rights: United States v. Turner and the True Threats Doctrine, 18 Tex. Wesleyan
L. Rev. 281, 295–96 (2011) (noting “[t]he Cassel court’s interpretation of
Black has been severely criticized by other circuits” and discussing cases).


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                            STATE v. SIBLEY
                           Decision of the Court

We agree with those courts’ description of Cassel as an outlier opinion
regarding this issue, and therefore, we do not follow it. 5

¶10            Based on our holding in Kyle M. that § 13-1202(A)(1) prohibits
threats that a reasonable person would foresee would cause fear—a holding
that this court and the Arizona Supreme Court subsequently referred to
approvingly—we decline to conclude that a successful prosecution under
the statute must prove the defendant intended to cause fear. Because the
First Amendment’s guarantee of free speech does not protect “true threats,”
§ 13-1202(A)(1) is not facially unconstitutional on First Amendment
grounds. See State v. Meeds, 1 CA-CR 16-0281, 2018 WL 2054176, at *6, ¶ 28
(Ariz. App. May 3, 2018) (citing Kyle M. for the proposition that the conduct
of threatening or intimidating prohibited in § 13-1202(A)(1) is not protected
by the First Amendment).

B.     Section 13-1202(A)(1) Is Not Unconstitutionally Overbroad or
       Vague.

¶11             Similarly, Sibley argues § 13-1202(A)(1) is unconstitutionally
overbroad and vague because the legislature removed any requirement of
“wrongful intent” from the statute. 6 Sibley also emphasizes the reasonable
person standard enunciated in Kyle M. and complains that “a
conviction . . . rises or falls on the judge’s or jury’s determination of a
reasonable person.” According to Sibley, the statute is therefore vague
because “it imposes criminal liability based on the finder of fact[‘]s


5      While we consider the opinions of the lower federal courts regarding
the interpretation of the Constitution, such authority is not controlling on
Arizona courts. State v. Montano, 206 Ariz. 296, 297, ¶ 1, n.1 (2003) (“We are
not bound by the Ninth Circuit's interpretation of what the Constitution
requires.”); State v. Chavez, 243 Ariz. 313, 315, ¶ 4, n.2 (App. 2017).

6      Sibley arguably lacks standing to raise his vagueness challenge. His
repeatedly stating that he was “gonna shoot those bitches in the HOA”
while “enraged” clearly fell within the legitimate goal of § 13-1202(A)(1) to
protect individuals from fear of violence. See Black, 538 U.S. at 360 (“[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.”)
(quotations omitted); Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose
conduct a statute clearly applies may not successfully challenge it for
vagueness.”).


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                             STATE v. SIBLEY
                            Decision of the Court

determination, months or years later, that a speaker has misjudged a juror’s
or judge’s determination of the allusive ‘reasonable person.’”

¶12            “An overbroad statute is one designed to burden or punish
activities which are not constitutionally protected, but . . . includes within
its scope activities which are protected by the First Amendment.” State v.
Jones, 177 Ariz. 94, 99 (App. 1993) (citation omitted). “A statute is
unconstitutionally vague if it fails to provide ‘person[s] of ordinary
intelligence a reasonable opportunity to know what is prohibited’ and fails
to contain explicit standards of application to prevent arbitrary and
discriminatory enforcement.” State v. Poshka, 210 Ariz. 218, 220, ¶ 5 (App.
2005) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). A statute
need not be drafted with absolute precision to satisfy due process. State v.
Lefevre, 193 Ariz. 385, 390, ¶ 18 (App. 1998).

¶13           We reject Sibley’s challenge to § 13-1202(A)(1) on overbreadth
and vagueness grounds. First, we have expressly decided that the absence
of the speaker’s subjective wrongful intent as a necessary element in
§ 13-1202(A)(1) does not render the statute violative of the First
Amendment, an argument Sibley reiterates. See supra ¶ 10. And Sibley’s
implied assertion that “a threat if, under the circumstances, a reasonable
person would foresee that [a defendant’s] words would be taken as a
serious expression of an intent to inflict bodily harm, and [the] statements
were not the result of mistake, duress, or coercion[,]” In re Kyle M., 200 Ariz.
at 452, ¶ 23, equates to an unpopular “minority view point” strains
credibility.

¶14           Second, Sibley’s complaint about a fact finder’s “post hoc”
determination of reasonableness has no merit as a basis for finding
§ 13-1202(A)(1) is infirm on vagueness grounds. See United States v. Ragen,
314 U.S. 513, 523 (1942) (“The mere fact that a penal statute is so framed as
to require a jury upon occasion to determine a question of reasonableness
is not sufficient to make it too vague to afford a practical guide to
permissible conduct.”). “Such after the fact determinations of
reasonableness by a jury are commonplace. Indeed, as this court has
observed, ‘ex post facto assessments of the reasonableness of conduct and
state of mind are ubiquitous and probably indispensable in the law.’”
Lefevre, 193 Ariz. at 391, ¶ 22 (quoting State v. Buhman, 181 Ariz. 52, 54 (App.
1994)).

¶15          For these reasons, Sibley fails to establish § 13-1202(A)(1) is
unconstitutionally overbroad or vague.




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                           STATE v. SIBLEY
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                             CONCLUSION

¶16           Sibley’s conviction and probation are affirmed. The stay of
Sibley’s sentence previously entered by the court is lifted.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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