                                                            COURT OF APPEALS DiV I
                                                             STATE OF WASHINGTON

                                                            2013 APR 29 AH 10:03


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

STATE OF WASHINGTON,                      )      No. 66747-5-1
                                          )
                     Respondent,          )
                                          )      ORDER WITHDRAWING
             v.                           )      OPINION AND SUBSTITUTING
                                          )      OPINION, AND
MUHAMET M. SUMAJ,                         )      WITHDRAWING ORDER
                                          )      AMENDING OPINION
                     Appellant.           )
       The Respondent, State of Washington, having filed a motion to change

the opinion filed on July 23, 2012, to replace the full name of the victim with the
victim's initials, and the panel having determined that the motion should be

granted and the opinion be withdrawn and a substitute unpublished opinion shall
be filed replacing the name ofthe victim with initials, now therefore it is hereby
       ORDERED that the opinion filed July 23, 2012, be withdrawn and a

substitute unpublished opinion is filed. It is hereby
       FURTHER ORDERED that the Order Amending Opinion filed on March

25,2013, is withdrawn.

       DATED this ll^day of 0(\)Yu\                     2013.
                                         ,M1f:c?q f.vUO-03




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           No. 66747-5-1


                      Respondent,              DIVISION ONE

             v.                                UNPUBLISHED OPINION

MUHAMET M. SUMAJ,

                      Appellant.                FILED: April 29, 2013

      Schindler, J. — A jury convicted Muhamet M. Sumaj of felony harassment and

malicious harassment of A.M., Count I and Count II; and one count of felony

harassment of Donald Tidd, Count III. For the first time on appeal, Sumaj argues the

charging document omitted an essential element of the crime of felony harassment.

Sumaj also argues insufficient evidence supports the conviction for felony harassment

of Tidd. We affirm.

                                        FACTS

      Neighbours is a nightclub on Capitol Hill that caters to the gay and transgender

community. The main entrance to the club is in an alley that runs between East Pike

Street and East Pine Street.

      A.M. is a male-to-female transgender woman. A.M. frequently went to

Neighbours on Sundays. A.M. testified that she saw Muhamet Sumaj each time she
No. 66747-5-1/2


was at the club but never interacted with him.1 A.M. said that Sumaj "always stared at
me, so I tried to stay away from him" because "I didn't get a good vibe."

       On Sunday, January 24, 2010, A.M. drove to Neighbours and parked her car on

East Pike Street close to the alley. At about 11:30 p.m., A.M. left the club to check on

her car. As A.M. started walking back to the club, Sumaj walked by and said, "I like real

ladies. I hate fags. You're a fucking nigger, and I would never go for you." When A.M.

asked why Sumaj came to Neighbours if he "hate[d] fags," Sumaj told her, "I'm going to

cut your throat."

       A.M. said that she felt "threatened because he was serious." A.M. testified that

Sumaj came toward her, "getting closer and closer, throwing fists, and I was backing

off." Sumaj screamed, "[Fjucking nigger, I will kill you wherever you go. You're a

nigger. I find you." A.M. started running towards the club's entrance in the alley.

Sumaj followed A.M.2 and continued to yell obscenities at her.
        Donald Tidd is the head of security for Neighbours. Tidd was standing at the

door to the club and saw A.M. run into the alley shouting, "[Hje's trying to kill me, he

said he's going to kill me." When Tidd asked what was happening, A.M. pointed at

Sumaj and repeated, "[Hje's trying to kill me." Tidd testified that A.M. "seemed terrified."

       Tidd told Sumaj to stop. Tidd got between A.M. and Sumaj and Sumaj lunged at

A.M. over Tidd's shoulder, yelling "faggot." As Sumaj continued yelling and trying to

push past him to reach A.M., Tidd radioed for additional security personnel to help.

Tidd told A.M. to go inside the club "to get away from the situation."




       1We referto A.M. by pronoun in the female gender consistentwith the parties' briefing.
       2Sumaj was "not running."
No. 66747-5-1/3


          Security personnel Matthew Harrison and Freddy Gonzalez responded to Tidd's

radio call. Tidd again told Sumaj to leave. Sumaj refused. Harrison testified that he

and Tidd "made a barrier" in front of Sumaj and walked toward him. Sumaj then backed

away and the security personnel followed him down the alley toward East Pike Street.

Sumaj yelled, "[Tjhis [is] not your problem," and "tried to fight." Gonzalez testified that

Sumaj called Tidd a "faggot" and said, "I don't give a fuck who you are."

          When Sumaj reached the end of the alley, he screamed, "I'm going to go to my

car and get my gun and kill you." Tidd immediately called 911. Tidd told the 911

operator that he was walking away from Sumaj as Sumaj approached because he did

not want to get shot.

          Sumaj ran across the street but within moments, returned. A few minutes later,

Seattle Police Officers Adam Julius and Matthew Blackburn responded. Tidd was

standing at the entry of the alley and Sumaj was standing less than half a block away at

the corner of East Pike Street and Harvard Avenue. The officers placed Sumaj under

arrest.


          The State charged Sumaj with felony harassment of A.M., Count I; malicious

harassment of A.M., Count II; and felony harassment of Tidd, Count III.

          Officer Julius, Officer Blackburn, Tidd, Harrison, Gonzalez, and A.M. testified at

trial, and the court admitted a recording of the 911 call.

          The jury convicted Sumaj as charged. The court imposed a standard range

sentence.
No. 66747-5-1/4


                                        ANALYSIS

Charging Document

       For the first time on appeal, Sumaj asserts the charging document did not allege

as an essential element of the crime of felony harassment that he made a "true threat."

       A charging document must allege "[a]ll essential elements of a crime, statutory or

otherwise," to provide a defendant with sufficient notice of the nature and cause of the

accusation against him. State v. Kiorsvik. 117Wn.2d93, 97, 812 P.2d 86(1991); U.S.

Const, amend. VI; Wash. Const, art. I, § 22 (amend. 10). The primary purpose of the

rule is to give the defendant sufficient notice of the charges so he can prepare an

adequate defense. State v. Tandecki. 153 Wn.2d 842, 846-47, 109 P.3d 398 (2005).

       Where, as here, the defendant has failed to challenge the sufficiency of an

information at trial and instead raises his challenge for the first time on appeal, we

liberally construe the document in favor of validity. State v. Brown. 169 Wn.2d 195,

197, 234 P.3d 212 (2010). In making that determination, we engage in a two-part

inquiry: (1) Whether the essential elements appear in any form, or can be found by any

fair construction, in the information; and (2) if so, whether the defendant nonetheless

was actually prejudiced by the inartful language used. Brown, 169 Wn.2d at 197-98.

       Here, the information charging Sumaj with the crime of felony harassment

alleged:

                                         COUNT I


              That the defendant MUHAMET M SUMAJ in King County,
       Washington, on or about January 24, 2010, knowingly and without lawful
       authority, did threaten to cause bodily injury immediately or in the future to
       [A.M.], by threatening to kill [A.M.], and the words or conduct did place
       said person in reasonable fear that the threat would be carried out.
No. 66747-5-1/5


                                            COUNT

              That the defendant MUHAMET M SUMAJ in King County,
       Washington, on or about January 24, 2010, knowingly and without lawful
       authority, did threaten to cause bodily injury immediately or in the future to
       Donald Tidd, by threatening to kill Donald Tidd, and the words or conduct
       did place said person in reasonable fear that the threat would be carried
       out.


       Under 9A.46.020(1), a person commits harassment if, "[w]ithout lawful authority,

the person knowingly threatens" to 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 threatened in reasonable fear that the threat will be carried out."

       A statute that makes a threat a crime must proscribe only "true threats." State v.

Schaler, 169 Wn.2d 274, 283-84, 236 P.3d 858 (2010). Our supreme court defines a

"true threat" 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 person.

State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)3 (quoting State v. Williams,
144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)). "The speaker of a true threat need not

actually intend to carry it out. It is enough that a reasonable speaker would foresee that

the threat would be considered serious." Schaler, 169 Wn.2d at 283.4
       In State v. Tellez, 141 Wn. App. 479, 170 P.3d 75 (2007), we held that the true

threat concept is definitional and "limits the scope of the essential threat element," but
"is not itself an essential element of the crime." Tellez, 141 Wn. App. at 484; see ajso

State v. Atkins. 156 Wn. App. 799, 802, 236 P.3d 897 (2010); State v. Allen. 161 Wn.


       3(Internal punctuation and quotation marks omitted.)
       4(Internal quotation marks and citation omitted.)
                                                  5
No. 66747-5-1/6



App. 727, 755-56, 255 P.3d 784 (2011), review granted, 172 Wn.2d 1014, 262 P.3d 63

(2011).

       In Schaler, the defendant challenged the jury instructions defining the crime of

felony harassment. Schaler, 169 Wn.2d at 281-82. Because the definition of threat was

not limited to a true threat, the court concluded the jury could have erroneously

convicted Schaler based on "something less than a 'true threat'" and reversed.

Schaler, 169 Wn.2d at 287-88.

       But the supreme court in Schaler expressly notes that it did not reach the

question of whether a true threat is an essential element of the crime of felony

harassment that must be alleged in the charging document. Schaler, 169 Wn.2d at 288,

n.6.

       The situation is not identical to omitted-element cases. Whether the
       constitutionally required mens rea is an "element" of a felony harassment
       charge is a question that we need not decide. (We note that there is a
       Court of Appeals opinion on point, State v. Tellez, 141 Wn. App. 479, 170
       P.3d 75 (2007), but we express no opinion on the matter.)

Schaler, 169 Wn.2d at 288, n.6.5
       We adhere to our decision in Tellez and reject the argument that the convictions

should be reversed because the information did not allege "true threat" as an essential

element ofthe crime offelony harassment.6




          5(Emphasis in original.)
          6 Further, the information expressly alleged that Sumaj knowingly threatened to kill both A.M. and
Tidd and the words or conduct placed them in reasonable fear that the threat would be carried out.
Consistent with Schaler, the language in the charging document "satisfies the 'know or foresee' mens rea
element" as to the result of intending the hearer's fear. Allen, 161 Wn. App. at 755. "Knowingly threaten"
may be"understood to require that the speaker be aware that his words oractions frightened the
hearer—after all, how can one knowingly threaten without knowing that what one says is threatening to
another?" Schaler, 169 Wn.2d at 286.
No. 66747-5-1/7


Sufficiency of the Evidence, Count III

        Sumaj also claims insufficient evidence supports the jury finding Sumaj guilty of

the charge of felony harassment of Tidd. In determining the sufficiency of the evidence,

we view the evidence in the light most favorable to the State and determine whether any

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

reasonable doubt. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). A

challenge to the sufficiency of the evidence admits the truth of the evidence. State v.

Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the trier of fact on

"issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence." State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Further, "all

reasonable inferences from the evidence must be drawn in favor of the State and

interpreted most strongly against the defendant." Salinas, 119 Wn.2d at 201.

Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter. 94

Wn.2d 634, 638, 618 P.2d 99 (1980).

        A person commits harassment if the person knowingly threatens to cause "bodily

injury immediately or in the future to the person threatened," and "by words or conduct

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

RCW 9A.46.020(1). A person is guilty of felony harassment if the person harasses

another person by threatening to kill the person threatened. RCW 9A.46.020(2)(b).

        Sumaj contends the evidence was insufficient to prove Tidd reasonably feared

that Sumaj would carry outthe threat to kill him.7 The trier offact uses an objective



        7The to-convict instruction for the felony harassment of Tidd charged in Count III states, in
pertinent part, "[t]hatthe words or conduct of the defendant placed Donald Tidd in reasonable fear that
the threat to kill would be carried out."
No. 66747-5-1/8


standard to determine whether the victim's fear that the threat will be carried out is

reasonable. State v. Alvarez. 74 Wn. App. 250, 260-61, 872 P.2d 1123 (1994).

Importantly, "the nature of a threat depends on all the facts and circumstances." State

v. C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003).

       Viewing the evidence in the light most favorable to the State, the testimony

established that Tidd reasonably feared that Sumaj would carry out the threat to kill him.

Sumaj "had his fist balled" and was "very aggressive" when Tidd told him to leave the

alley. Sumaj "put his hands on" Tidd when Sumaj tried to get to A.M. When Sumaj said

he was "going to go to my car and get my gun and kill you," Tidd immediately called 911

and told the operator that he had "a threat of gun violence" from a man "going to a car to

get his gun." Tidd then tells the 911 operator that Sumaj is "walking up right now" and

"coming directly at us.. . . I'm walking away, I don't want to get shot."

       The testimony Sumaj relies on to argue that the evidence shows A.M. was the

target of his threat is taken out of context and does not support his argument.

       Tidd testified that he felt the threat was directed at him, rather than the other two

security personnel. Tidd also testified that Sumaj "was angry enough to do something,

so I took that threat seriously."

       Q.     Now, why did you feel - ifthe defendant is interacting with
       [Harrison] and [Gonzalez], why did you feel that the threat was directed at
       you?

       A.   The volume at which he screamed. I felt like he was intending for
       someone beyond standing in front of him to hear.
       Q.     And who were the people standing at the front of the club?
       A.      Myself, the alleged victim. . . .
       Q.      Have you ever been threatened before?

       A.     Yes.
       Q.      Have you taken every threat you received seriously?

                                                   8
No. 66747-5-1/9


       A.      No.
       Q.    Why did you take this threat seriously?
       A.    The gentleman seemed very angry. He had already showed
       aggression. He had already put his hands on me and tried to get at the
       lady.
      Q.       Now, what did you decide to do at this point when he runs off?
      A.       Once he ran off, I immediately took my phone out and called 911.
       Q.      Cell phone?
       A.      Yes.
       Q.      And what, if anything, happened while you were on the phone with
       911?
       A.     While I was speaking to the 911 operator, I was down at the end of
       the alley at this point on Pike. I saw him coming back.
       Q.     And how did that make you feel?
       A.      A little scared.
       Q.    Why?
       A.    Well, if someone says they are going to get a gun and come back,
       seeing them come back makes you believe they have a gun and they are
       coming back to shoot you.

       Because sufficient evidence supports the jury conviction of felony harassment of

Tidd, we affirm.




                                              VcP*^Wcgfl>
WE CONCUR:




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