                                                                 FILED
                                                              AUGUST 15, 2019
                                                         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
                               DIVISION THREE

STATE OF WASHINGTON,                         )         No. 35988-3-III
                                             )
                      Respondent,            )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
PETER JOHN ARENDAS,                          )
                                             )
                      Appellant.             )

       PENNELL, J. — Peter John Arendas appeals his convictions for two counts of

harassment, threats to kill. We affirm Mr. Arendas’s convictions but strike imposition of

a criminal filing fee and DNA 1 collection fee based on recent statutory changes.

                                         FACTS

       Peter Arendas was in custody at the Klickitat County jail when he made statements

to third parties involving threats to kill two correctional officers, Tammera Anderson and

Tim Curran. The State charged Mr. Arendas with making threats against the two officers


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State v. Arendas


and Mr. Arendas exercised his right to a jury trial. 2 At trial, the State presented testimony

from the two third parties who heard Mr. Arendas’s threats as well as the two correctional

officers who were the targets of the threats.

       One of the third parties who reported the threats against Officer Anderson was a

fellow inmate of Mr. Arendas. The inmate testified that he was housed near Mr. Arendas

at the jail and heard Mr. Arendas yelling that he was going to “stab” Officer Anderson

and subject her to bodily harm. 1 Report of Proceedings (RP) (Mar. 21, 2018) at 468.

Mr. Arendas said he would use a piece of metal or a pencil as a shank to stab Officer

Anderson multiple times in the neck. This fellow inmate also stated that Mr. Arendas

was always angry. The inmate said he took Mr. Arendas’s threat seriously and wrote a

note to Officer Anderson notifying her about Mr. Arendas’s statements. The inmate was

provided no benefit or leniency in exchange for his testimony at trial.

       Officer Anderson testified that she had nine years’ experience as a correctional

officer and that she took the threats outlined in the note seriously. During her testimony,

Officer Anderson described her previous interactions with Mr. Arendas. She recounted



       2
       The State’s amended information charged two counts of harassment by threats to
harm and two counts of harassment by threats to kill. The counts regarding threats to
harm were ultimately dismissed on double jeopardy grounds. U.S. CONST. amend. V;
WASH. CONST. art. I, § 9.

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State v. Arendas


an incident when Mr. Arendas was making generalized threats toward law enforcement.

Mr. Arendas stated he was “aware that officers wear chest protectors so he wouldn’t even

aim for the chest, he would aim for the face.” 2 RP (Mar. 22, 2018) at 563. Mr. Arendas

said “he was going to buy . . . large weapons, large rifles, and hide them in the woods so

that officers would not find them so that when he got out he would use them against

officers.” Id. Officer Anderson also recounted a separate incident during which she

heard Mr. Arendas chanting and stating that “a female CO’s gonna die today, a female

CO is gonna die today.” Id. at 578. Officer Anderson stated that she understood Mr.

Arendas’s statement as a threat.

       The third party who reported the threat against Officer Curran was a Klickitat

County jail control board operator. The operator testified that she heard Mr. Arendas

talking through the speaker in his jail cell. Mr. Arendas said he would kill Officer

Curran, did not care if Officer Curran was in court, and he would go and kill Officer

Curran. The operator took Mr. Arendas’s statements seriously and informed Officer

Curran. The operator explained that she never heard Mr. Arendas specify how he would

kill Officer Curran, but saw Mr. Arendas through his cell window making gun gestures

with his hand and shooting noises.




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State v. Arendas


       Officer Curran testified that he had worked with numerous dangerous people

during the course of his eight years as a correctional officer, but he had never before

received a threat against his life. Officer Curran testified that he took Mr. Arendas’s

threats so seriously that he purchased a firearm for protection at home. Officer Curran

felt that Mr. Arendas was “very frightening” and “unpredictable.” Id. at 641-42. He

pointed out that Mr. Arendas was in jail for assaulting a police officer and that he had

observed Mr. Arendas jumping up and down or celebrating upon hearing news that a

Washington police officer had been shot.

       The jury found Mr. Arendas guilty of all pending charges and the court issued a

judgment and sentence for two felony counts of harassment by threats to kill. Legal

financial obligations were imposed against Mr. Arendas, including a $200 criminal filing

fee and a $100 DNA collection fee.

       Mr. Arendas appeals his judgment and sentence.

                                        ANALYSIS

Whether Mr. Arendas’s custodial statements qualified as true threats

       In order to prevent criminalizing constitutionally protected speech, a conviction

for harassment requires the State to prove the defendant’s words constituted a “‘true

threat.’” State v. Schaler, 169 Wn.2d 274, 287-88, 236 P.3d 858 (2010). A “true threat”


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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. at 283

(quoting State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)). A true threat is

a serious threat, not said in jest, idle talk, or political argument. Id. The nature of a threat

“depends on all the facts and circumstances, and it is not proper to limit the inquiry to a

literal translation of the words spoken.” State v. C.G., 150 Wn.2d 604, 611, 80 P.3d 594

(2003). The State need not prove that the defendant intended to carry out the threat or

that the defendant actually knew the threat would be taken seriously. State v. Trey M.,

186 Wn.2d 884, 894-95 383 P.3d 474 (2016); State v. Kilburn, 151 Wn.2d 36, 48, 84 P.3d

1215 (2004). Instead, true threat analysis turns on how a reasonable person would have

understood the defendant’s statements. Trey M., 186 Wn.2d at 907.

       Mr. Arendas argues the State’s evidence was insufficient to prove his statements

qualified as true threats. To review this claim, we engage in an independent review of the

entire record to ensure a conviction is not a “forbidden intrusion into the field of free

expression.” State v. Locke, 175 Wn. App. 779, 790, 307 P.3d 771 (2013), review denied,

179 Wn.2d 1021 (2014). Although this is a special standard of review, our sufficiency

analysis still looks to whether the facts, taken in the light most favorable to the State,


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State v. Arendas


support the jury’s judgment of conviction. Trey M., 186 Wn.2d at 905. We will not

conclude the State’s evidence was insufficient simply because the jury could have

interpreted the defendant’s statements as protected speech. See Schaler, 169 Wn.2d at

289-91.

       The evidence here supports the jury’s finding of true threats. Mr. Arendas’s

demeanor and the context of his statements indicated he was not joking or engaged in

some sort of political speech. Unlike the facts of Kilburn, Mr. Arendas was not giggling

or confiding to a friend. Instead, Mr. Arendas was in a custodial setting, where he was

being held for assaulting a law enforcement officer. Knowing his statements would be

heard by others, Mr. Arendas angrily expressed an intent to use lethal force against two

named correctional officers. The threats pertaining to Officer Anderson detailed a

method of attack. The threat against Officer Curran was accompanied by hand gestures

referencing a firearm. Mr. Arendas’s threats were consistent with prior, more

generalized, threats, thus suggesting an escalating desire to cause harm. See Locke,

175 Wn. App. at 791-92 (escalating nature of threats suggestive of seriousness). Given

these circumstances, the jury had sufficient facts to meet the objective standard for true

threats, as set forth in our jurisprudence.




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Criminal filing & DNA fees

       Mr. Arendas contends, and the State concedes, that a $200 criminal filing fee and

$100 DNA collection fee should be struck from his judgment and sentence because Mr.

Arendas is indigent and has been previously convicted of a felony in Washington (and

therefore has previously paid the DNA fee). RCW 36.18.020(2)(h); RCW 43.43.7541.

We accept this concession and remand for the limited purpose of striking the two

aforementioned fees.

           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his statement of additional grounds for review (SAG), Mr. Arendas contends

that several witnesses lied and were not credible at trial, and that numerous reports made

by witnesses and entered as exhibits at trial contained no proof or were frivolous. He also

asserts that Officer Curran assaulted him after he was sentenced and continues to have

contact with him in violation of a court order.

       Mr. Arendas’s SAG arguments do not merit appellate scrutiny. The Court of

Appeals does not make credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71,

794 P.2d 850 (1990). In addition, we cannot review allegations of misconduct that are

unsupported by the existing trial record. To the extent Mr. Arendas believes there are

facts outside the record to support a challenge to his convictions, his recourse is to file a


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properly supported personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335,

899 P.2d 1251 (1995).

                                    CONCLUSION

       Mr. Arendas’s convictions are affirmed. This matter is remanded with instructions

to strike the criminal filing fee and DNA collection fee from Mr. Arendas’s judgment and

sentence.

       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.


                                          _________________________________
                                          Pennell, J.

WE CONCUR:



______________________________            _________________________________
Lawrence-Berrey, C.J.                     Fearing, J.




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