                                                                            FILED 

                                                                          MAY 23,2013 

                                                                  In the Office ofthe Clerk of Court 

                                                                W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 29268-1-111
                                               )
                     Respondent,               )
                                               )
              v.                               )
                                               )
DUNCAN JOSEPH McNEIL,                          )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       BROWN, J. -   Duncan Joseph McNeil III appeals his four convictions for gross

misdemeanor harassment by threat of bodily injury. He contends we must reverse

because the trial court erred by failing to give a "true threat" instruction; we agree.

Additionally, he contends we must dismiss because insufficient evidence supports his

convictions; we disagree. Accordingly, we reverse and remand for a new trial without

reaching his unanimity instruction contention.

                                           FACTS

       Mr. McNeil leased an office suite from Michael S. Sullivan. In May 2002, after

long rental conflicts, Mr. McNeil twice angrily confronted Mr. Sullivan and his business

associates, Kenneth Joseph Hall and Stan E. Ashby. The State charged Mr. McNeil

under RCW 9A.46.020 with five counts of felony harassment by threat to kill. Counts I,
No. 29268-1-111
State v. McNeil


II, and III alleged that on May 16,2002, Mr. McNeil threatened to kill Mr. Sullivan, Mr.

Hall, and Mr. Ashby respectively. Counts IV and V alleged that on May 17, 2002, Mr.

McNeil threatened to kill Mr. Sullivan and Mr. Hall respectively.

       At trial, witnesses testified that on May 16, 2002, Mr. Sullivan was meeting with

Mr. Hall and Mr. Ashby in his office suite but had left the front room temporarily when

Mr. McNeil pounded on the locked door, peered through the window, and yelled,

"Where the hell is that fat f**k Mike?," spitting as he spoke. Report of Proceedings (RP)

at 120. Mr. Hall responded Mr. Sullivan was not there. Mr. McNeil turned red in the

face and looked menacingly at Mr. Hall. Mr. McNeil unsuccessfully asked Mr. Hall his

name. Enraged, Mr. McNeil yelled he knew where Mr. Hall lived and would kill him, his

family, and Mr. Ashby. Mr. McNeil appeared "very violent and intimidating" and "very

unstable." RP at 239-40. Afraid, Mr. Sullivan, Mr. Hall, and Mr. Ashby waited for Mr.

McNeil to leave then attempted to avoid him by exiting through a side door. Mr. McNeil

chased them and yelled he would kill them all, particularly Mr. Sullivan.

       Witnesses then testified that on May 17, 2002, Mr. Sullivan was approaching his

office suite with Mr. Hall and another business associate when Mr. McNeil charged

quickly toward them, carrying a baseball bat, guiding a leashed dog, and yelling, "I am

going to kill you, Mike." RP at 222. Mr. Sullivan quickly retreated and Mr. McNeil said,

"Where is that fat f**k going?" RP at 219. Mr. Hall responded he did not know.

Trembling with anger, Mr. McNeil accosted Mr. Hall in a "loud and angry" tone, yelling

profanities at him, spitting in his face, and gesturing at him with the end of the baseball



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State v. McNeil


bat. RP at 188. Mr. Hall dialed 911 on his cellular phone but did not press send. Then,

Mr. McNeil jabbed Mr. Hall's abdomen with the end of the baseball bat, knocking out his

breath and pushing him against a wall. Mr. McNeil lifted the baseball bat high as if

preparing to strike Mr. Hall, who backed away, pressed the send command on his

cellular phone, and cowered with his hands out for protection. Mr. McNeil yelled he

knew where Mr. Hall lived and would kill him and his family. Mr. McNeil left in his

vehicle before law enforcement arrived.

       Mr. Sullivan, Mr. Hall, and Mr. Ashby recounted that both during and after each

incident, they feared Mr. McNeil would fulfill his threats. Mr. Sullivan recalled he

believed Mr. McNeil would attempt to harm or kill him at any time because Mr. McNeil

knew his home and work addresses, tried to strike him with a vehicle three times before,

chased him on foot once before, tried to grab him once before, and was taller than him.

Consequently, Mr. Sullivan, Mr. Hall, and Mr. Ashby obtained restraining orders against

Mr. McNeil. Additionally. Mr. Hall installed alarm and video surveillance systems in his

home and carried a stick in his vehicle for protection.

       Without objection, the trial court instructed the jury, "Threat means to

communicate, directly or indirectly, the intent to cause bodily injury in the future to the

person threatened or to any other person." Clerk's Papers at 188; RP at 664. Mr.

McNeil did not request and the trial court did not give either a true threat instruction or a




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unanimity instruction. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 2.24, at 72, 4.25, at 110 (3d ed. 2008) (WPIC).1

       A jury acquitted Mr. McNeil on count II but found him guilty on counts I, III, IV,

and V of gross misdemeanor harassment as lesser included offenses. By special

verdict, the jury found he made no threats to kill. He appealed.

                                         ANALYSIS

                                 A. True Threat Instruction

       The issue is whether the trial court reversibly erred by failing to instruct the jury

regarding a true threat, violating Mr. McNeil's First Amendment freedom of speech. He

may raise this error claim for the first time on appeal. See RAP 2.5(a)(3); State v.

Schafer, 169 Wn.2d 274, 287-88, 236 P.3d 858 (2010). Jury instructions are proper if

they correctly state the applicable law, do not mislead the jury, and permit the parties to

argue their case theories. State v. Mark, 94 Wn.2d 520,526,618 P.2d 73 (1980).

       The First Amendment, by incorporation into the Fourteenth Amendment due

process clause, bars a state from "abridging the freedom of speech." U.S. CONST.

amend. I; see Gitlow v. New York, 268 U.S. 652, 666, 45 S. Ct. 625,69 L. Ed. 1138

(1925). Threats are speech, but a state may criminalize a "true threat." Virginia v.

Bfack, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (citing Watts v.



       1 While WPIC 2.24 currently incorporates the true threat definition, it did not at
the time of Mr. McNeil's trial in May 2003. See State v. Schafer, 169 Wn.2d 274, 287
n.5, 236 P.3d 858 (2010) (noting the Washington State Supreme Court Committee on
Jury Instructions amended WPIC 2.24 after State v. Johnston, 156 Wn.2d 355, 127
P.3d 707 (2006)).
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No. 29268-1-111
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United States, 394 U.S. 705, 708, 89 S. Ct. 1399,22 L. Ed. 2d 664 (1969». '''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

individual].'" State v. Williams, 144 Wn.2d 197,207-08,26 P.3d 890 (2001) (alteration

and omission in original) (quoting State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d

797 (1998»; see Black, 538 U.S. at 359. "A true threat is a serious one, not uttered in

jest, idle talk, or political argument." State v. Hansen, 122 Wn.2d 712,718 n.2, 862

P.2d 117 (1993) (internal quotation marks omitted); see Black, 538 U.S. at 359. "The

speaker need not actually intend to carry out the threat." Black, 538 U.S. at 359-60; see

State v. Kilburn, 151 Wn.2d 36,48, 84 P.3d 1215 (2004).

       Where, as here, the State charges a defendant under RCW 9A.46.020 with

felony harassment by threat to kill, the trial court must instruct the jury regarding a true

threat. Schaler, 169 Wn.2d at 283-84,287 (citing State v. Johnston, 156 Wn.2d 355,

363-64, 127 P.3d 707 (2006». While the State argues this rule was inapplicable on the

offense dates here, our case law has consistently construed RCW 9A.46.020 as

proscribing solely true threats. See Williams, 144 Wn.2d at 208; State v. J.M., 144

Wn.2d 472, 478, 28 P.3d 720 (2001). Because the trial court failed to do so, it erred.

Thus, we must reverse unless the error was "harmless beyond a reasonable doubt."

Chapman v. California, 386 U.S. 18,24,87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); see

Johnston, 156 Wn.2d at 364, 366.



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State v. McNeil


       "Constitutional error is presumed to be prejudicial and the State bears the burden

of proving that the error was harmless." State v. Guloy, 104 Wn.2d 412, 425,705 P.2d

1182 (1985). The State must "prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24; see

Schaler, 169 Wn.2d at 288. The error is harmless if "uncontroverted evidence" supports

finding the defendant uttered a true threat but is prejudicial if the record is "ambiguous

as to whether the jury could have convicted on improper grounds." Schaler, 169 Wn.2d

at 288 (citing State v. Brown, 147 Wn.2d 330, 341-43, 58 P.3d 889 (2002». We must

"independent[ly] review" those crucial facts necessarily involved in the legal

determination of whether the First Amendment protects certain speech. Kilburn, 151

Wn.2d at 52 (applying Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,104

S. Ct. 1949,80 L. Ed. 2d 502 (1984). Problematic here, the State does not argue

harmless error.

       Considering the jury rejected the threat-to-kill special verdicts, the record is

ambiguous as to whether the jury convicted Mr. McNeil for uttering protected speech.

He argued his statements, if made, were not serious. Given this backdrop, the jury may

have viewed his statements as hyperbole. In other words, if the trial court had given a

true threat instruction, the jury may have acquitted him. Therefore, we reverse Mr.

McNeil's convictions.




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                                  B. Evidence Sufficiency

       The issue is whether sufficient evidence supports Mr. McNeil's convictions for

gross misdemeanor harassment by threat of bodily injury. We consider his evidence

sufficiency challenge to determine whether we must dismiss or remand for a new trial.

       The Fourteenth Amendment due process clause requires the State to prove all

essential elements of the crime charged beyond a reasonable doubt. U.S. CONST.

amend. XIV; In re Winship, 397 U.S. 358,364,90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).

And, "The Double Jeopardy Clause forbids a second trial for the purpose of affording

the prosecution another opportunity to supply evidence which it failed to muster in the

first proceeding." Burks v. United States, 437 U.S. 1, 11,98 S. Ct. 2141,57 L. Ed. 2d 1

(1978) (construing U.S. CONST. amend. V). Evidence is sufficient to support a guilty

finding if, '''after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.'" State v. Green, 94 Wn.2d 216, 221,616 P.2d 628 (1980)

(emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,61

L. Ed. 2d 560 (1979». But we must "independent[ly] review" those crucial facts

necessarily involved in the legal determination of whether the First Amendment protects

certain speech. Kilburn, 151 Wn.2d at 52 (applying Bose Corp., 466 U.S. 485).

       A defendant is guilty of harassment if, without lawful authority, he or she

"knowingly threatens ... [t]o cause bodily injury immediately or in the future to the

person threatened or to any other person," and "by words or conduct places the person



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threatened in reasonable fear that the threat will be carried out." RCW

9A.46.020(1){a){i), (b). This form of harassment is a gross misdemeanor generally but

is a class C felony if the defendant "threaten[s] to kill the person threatened or any other

person." Former RCW 9A.46.020(2)(b) (1999). Either way, the threat must be a true

threat. Kilburn, 151 Wn.2d at 43 (citing Williams, 144 Wn.2d at 208; J.M., 144 Wn.2d at

478). And, "the nature of a threat depends on all the facts and circumstances, [not] ...

a literal translation of the words spoken." State v. e.G., 150 Wn.2d 604, 611,80 P.3d

594 (2003).

       First, Mr. McNeil argues insufficient evidence supports finding he uttered true

threats. He reasons while the State solely presented evidence of threats to kill, the jury

specially found he made no threats to kill. But the jury ultimately convicted him, based

on threats of bodily injury, of gross misdemeanor harassment as a lesser included

offense of felony harassment. His statements, though literally threats to kill, necessarily

threatened to cause bodily injury as well. And, the victims recounted that his behavior

in each incident caused them to fear he would fulfill his threats. From each threat's

context, the jury could infer that a reasonable person would foresee others interpreting

Mr. McNeil's statements as serious expressions of intent to cause bodily injury. Thus,

the jury could find Mr. McNeil uttered true threats beyond a reasonable doubt.

       Second, Mr. McNeil argues insufficient evidence supports finding that on May 16.

2002, he placed Mr. Sullivan, by words or conduct, in reasonable fear he would fulfill his

threat to cause bodily injury. He reasons while the State elected in closing argument to



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rely solely on his harassing behavior inside the building, he did not threaten Mr. Sullivan

until they were outside the building. But the State's omission did not constitute an

election because Mr. McNeil's harassing behavior outside was part of a continuing

course of conduct beginning inside. In context, the jury could find that on May 16, 2002,

he placed Mr. Sullivan, by words or conduct, in reasonable fear he would fulfill his threat

to cause bodily injury. Thus, the jury could find this essential element beyond a

reasonable doubt.

        In sum, sufficient evidence supports Mr. McNeil's convictions for gross

misdemeanor harassment by threat of bodily injury. It follows that we need not dismiss.

        Reversed and remanded for a new trial under a true threat instruction.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                 Brown, J.

WE CONCUR:




Kulik, J.                                        Antosz, J. . .




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