                                                                     F iLE:1D
                                                           (:OUR'T OF AFTEN 5 DIV I
                                                             STATE OF WASHINGTON

                                                           2018 APR 23 AM 8:3!



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

STATE OF WASHINGTON,                   )       No. 75870-5-1
                                       )
                    Respondent,        )
                                       )
      v.                               )
                                       )       UNPUBLISHED OPINION
BRANDON L. VANWINKLE,                  )
                                       )       FILED: April 23, 2018
                    Appellant.         )
                                       )

      VERELLEN, J. — Brandon VanWinkle appeals his conviction for intimidating
a judge. VanWinkle contends there was insufficient evidence of a true threat.

Given the serious tone and the context in which VanWinkle made the statements,

we conclude a reasonable person in VanWinkle's position would foresee that his

comments would be taken seriously. Thus, there was sufficient evidence to

support VanWinkle's conviction.

      VanWinkle also argues he received ineffective assistance of counsel

because his attorney failed to raise a diminished capacity defense. Because the

record does not suggest VanWinkle's personality disorder prevented him from

forming the requisite intent when he threated Judge Ekstrom, we conclude

VanWinkle cannot show ineffective assistance of counsel.

      Therefore, we affirm.
No. 75870-5-1/2


                                       FACTS

       VanWinkle was represented by Alexandria Sheridan on a pending charge.

On December 17, 2015, during a criminal docket before Judge Alex Ekstrom,

VanWinkle attacked another defendant. The court decided VanWinkle would be

shackled for his next court appearance and a security hearing would take place to

determine what security measures would be needed in the future.

       On December 30, 2015, when Sheridan told VanWinkle about these rulings,

VanWinkle stated he was going to cut up the judge in his chambers. VanWinkle

also threatened the prosecutor and defense counsel. Two correction officers

overheard the conversation.

       The State charged VanWinkle with one count of intimidating a judge. And

following trial, the jury convicted VanWinkle.

       VanWinkle appeals.

                                     ANALYSIS

I. Sufficiency of the Evidence

       VanWinkle contends the State failed to present sufficient evidence of a true

threat to sustain a conviction for intimidating a judge.

      "The sufficiency of the evidence is a question of constitutional law that we

review de novo.'"1 To determine whether there is sufficient evidence to sustain a

conviction, we review the evidence in the light most favorable to the State and ask



       1 State v. Hummel, 196 Wn. App. 329, 352, 383 P.3d 592(2016)(quoting
State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016)).




                                          2
No. 75870-5-1/3



whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.2 "A claim of insufficiency admits the truth of the

State's evidence and all inferences that reasonably can be drawn therefrom."3

       To convict a defendant of intimidating a judge under RCW 9A.72.160, the

State must prove beyond a reasonable doubt "(1) that a person directs a threat,

either directly or indirectly;(2) to a judge; and (3) because of a ruling or decision

by that judge in any official proceeding." In part, "'[t]hreat' means to communicate

directly or indirectly the intent. . . Mc) cause bodily injury in the future to the person

threatened or to any other person."5

       "To avoid violating the First Amendment, our Supreme Court has held that it

will 'interpret statutes criminalizing threatening language as proscribing only

unprotected true threats.'"6 Accordingly, we construe RCW 9A.72.160 as

prohibiting only true threats.7




       2   State v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439(2009).
       3   State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992).
      4 State v. Hansen, 122 Wn.2d 712, 719, 862 P.2d 117(1993)(citing RCW

9A.72.160).
       5   RCW 9A.04.110(28).
       6 State v. Locke, 175 Wn. App. 779, 789, 307 P.3d 771 (2013)(quoting
State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013)).
        7 See also State v. Kepiro, 61 Wn. App. 116, 125, 810 P.2d 19(1991)("[I]t

is implicit in the definition of 'threat' in RCW 9A.04.110(25)(a) that only true or
serious threats are covered.").




                                            3
No. 75870-5-1/4



      "The test for determining a 'true threat' is an objective test that focuses on

the speaker."8 "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.'"8

       When considering the sufficiency of the evidence of a true threat, the First

Amendment demands more than application of the usual standard.1° "[W]e must

independently examine the whole record to ensure that the judgment does not

constitute a forbidden intrusion into the field of free expression."11 "However, thi&

review is limited to review of those 'crucial' facts that necessarily involve the legal

determination whether the speech is unprotected."12

      [tin true threat cases, it is not just the words and phrasing of the
      alleged threat that matter, but also the larger context in which the
      words were uttered, including the identity of the speaker, the
      composition of the audience, the medium used to communicate the
      alleged threat, and the greater environment in which the alleged
      threat was made.(13]




       8 State v. Kohonen, 192 Wn. App. 567, 575, 370 P.3d 16 (2016)(citing
State v. Kilburn, 151 Wn.2d 36, 54, 84 P.3d 1215 (2004)).
       9 Kilburn, 151 Wn.2d at 43(internal quotation marks omitted)(quoting State
v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890(2001)).
       10   Locke, 175 Wn. App. at 790.
       11 Id.
       12 Kilburn, 151 Wn.2d at 52.


       13   Kohonen, 192 Wn. App. at 580.




                                           4
No. 75870-5-1/5



       Here, VanWinkle told Sheridan "that he would cut up the judge in chambers

and not allow anyone to clean it up."14 Samuel Cover and Brandon Goulet,

correction officers, overheard VanWinkle make the statement to Sheridan.

Sheridan and Officer Cover testified that VanWinkle did not appear to be joking.

       Judge Ekstrom testified he was concerned about these threats and he took

certain measures to feel more secure. When asked whether he believed that

VanWinkle could carry out his threats, Judge Ekstrom testified, "That's a more

difficult question. Again, I have a bailiff. There is security through the corrections

officers. That said, it's a human endeavor, things happen.... so there is always a

level of concern because we know that no system is perfect."16

       In State v. Kilburn, our Supreme Court considered whether there was

sufficient evidence of a true threat to sustain Kilburn's conviction of felony

harassment.16 Kilburn told his classmate, K.J., "I'm going to bring a gun to school

tomorrow and shoot everyone and start with you."17 The court concluded that "the

evidence is insufficient for a reasonable person in Kilburn's place to foresee that

K.J. would interpret his statement as a serious threat. .. given his past

relationship with K.J., his joking with her and his other friend in the class before,




       14   Report of Proceedings(Aug. 2,2016) at 291.
       15   Id. at 280.
       16 151   Wn.2d 36, 38, 84 P.3d 1215(2004).
       17   Id. at 39.



                                           5
No. 75870-5-1/6



the discussion that had been taking place about books they were reading, and his

laughing or giggling when he made his comments.18

       In State v. Locke, Division Two of this court considered whether there was

sufficient evidence of a true threat to sustain Locke's conviction for making threats

against the governor." The court determined there was sufficient evidence for a

reasonable person in Locke's possession to foresee his statements would be

taken seriously because of the violent tone, the specificity, and the lack of a

preexisting relationship between the governor and Locke.2° The court was also

persuaded by the context of the statements; Locke sent the emails 17 days after a

member of Congress was shot.21

       Here, VanWinkle did not laugh or otherwise appear to be joking when he

made the statement.22 In fact, Sheridan was so frightened by VanWinkle's

statements that she was unable to visit with her clients for the rest of the day.

VanWinkle did not have a preexisting relationship with Sheridan or Judge Ekstrom

from which he might have an expectation that they would not take his statements




       18   Id. at 53.
       19 175   Wn. App. 779, 784, 307 P.3d 771 (2013).
       20   Id. at 792-94.
       21   Id. at 792.
       22 See Kohonen, 192 Wn. App. at 580("These reactions provide a guide for

what constituted a reasonable reaction under the circumstances and, therefore, for
what reaction a reasonable speaker under the circumstances would have
foreseen.").




                                          6
No. 75870-5-1/7



seriously.23 Also, VanWinkle made the violent threats after Judge Ekstrom

witnessed him attack a defendant in the courtroom. In this context, there is

sufficient evidence that a reasonable person engaged in such conduct would

reasonably foresee his comments being taken seriously.

            We conclude the State did present sufficient evidence of a true threat to

support VanWinkle's conviction for intimidating a judge.

II. Ineffective Assistance of Counsel

            VanWinkle argues he received ineffective assistance of counsel because

his attorney failed to raise a diminished capacity defense.

            We review ineffective assistance of counsel claims de novo.24 "Ineffective

assistance of counsel is a fact-based determination, and we review the entire

record in determining whether a defendant received effective representation at

trial."25

        To prevail on a claim of ineffective assistance of counsel, the defendant

must show both that defense counsel's representation was deficient and that the

deficient representation prejudiced the defendant.26 "When counsel's conduct can




       see Locke, 175 Wn. App. at 793. Sheridan did previously represent
        23

VanWinkle.
        24   State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
        25   State v. Carson, 184 Wn.2d 207, 215-16, 357 P.3d 1064 (2015).
        State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260(2011)(quoting State
        26
v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).



                                              7
No. 75870-5-1/8


be characterized as legitimate trial strategy or tactics, performance is not

deficient.'"27

       The failure of defense counsel to present a diminished capacity defense

satisfies both prongs when the facts support such a defense.28 "A diminished

capacity defense requires evidence of a mental condition, which prevents the

defendant from forming the requisite intent necessary to commit the crime

charged."29

       Here, during sentencing for the December 17 assault, the trial court gave a

downward sentenced based on an expert report related to a failed diminished

capacity defense. In that case, the expert testified VanWinkle assaulted a fellow

defendant because the man was being sentenced for assaulting a child, and

VanWinkle was triggered by his own history. The expert diagnosed VanWinkle

with a personality disorder.

       Defense counsel offered the report in the current case to argue for a

downward sentence. But the report was specific to VanWinkle's mental health as

it related to the assault. Nothing in the record suggests VanWinkle's personality

disorder prevented him from forming the requisite intent when he threatened

Judge Ekstrom on December 30. And defense counsel's decision not to present a




       27   Id. at 33(quoting State v. KvIlo, 166 Wn.2d 856, 863, 215 P.3d 177
(2009)).
       28   State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735(2003).
       29   Id.




                                           8
No. 75870-5-1/9



diminished capacity defense can be characterized as a legitimate trial strategy

because the same defense failed in the assault case.

      We conclude VanWinkle cannot show ineffective assistance of counsel.

      Therefore, we affirm.




WE CONCUR:



                                                   Q




                                        9
