          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   DIVISION ONE
                       Respondent,
                                                   No. 67726-8-I
                      v.
                                                   UNPUBLISHED OPINION
E.J.J.,
D.O.B. 11/29/93

                       Appellant.                  FILED: March 4, 2013



          Dwyer, J. — E.J.J., a juvenile at the time of his adjudication, was found

guilty by the trial court of obstructing a law enforcement officer based upon an
                                                                                      £3        <•" O
incident in which police officers were called by his mother to their home due to ^
                                                                                          -_J   i— _*:
the behavior of E.J.J.'s highly intoxicated sister. On appeal, E.J.J, contends that?            ^CJ--i
                                                                                                T.-_-M

the obstruction statute, RCW 9A.76.020(1), is facially overbroad because, he          f-        r£™'d
                                                                                      ^         ciCO
asserts, it prohibits constitutionally protected speech. He further contends that ^             ^^

insufficient evidence supports his adjudication of guilt. Finally, E.J.J, asserts that

the obstruction statute is unconstitutional as applied because, he alleges, his

actions were protected by various constitutional provisions.

          Because our Supreme Court has construed the obstruction statute to

require conduct in addition to pure speech, E.J.J.'s facial overbreadth challenge

fails. Moreover, based upon the evidence presented, any rational trier of fact

could have found the elements of the offense proved beyond a reasonable doubt.
No. 67726-8-1/2



Thus, sufficient evidence supports E.J.J.'s adjudication of guilt. Finally, with

regard to his as-applied challenge, E.J.J, did not raise in the trial court the

alleged constitutional infirmities that he asserts on appeal; nor did he challenge

the lawfulness of his arrest or seek to exclude the presentation of any evidence

that was admitted. On appeal, his contention is limited to his assertion that his

words and actions could not result in a constitutionally valid conviction.

Accordingly, in reviewing E.J.J.'s as-applied challenge, we determine whether

the obstruction statute is unconstitutional as applied to those of E.J.J.'s actions

the evidence of which was necessary to establish the elements of the offense. In

other words, we examine whether the challenged statute was applied so as to

criminalize speech or conduct that could not constitutionally be criminalized.

After such consideration, we conclude that E.J.J.'s as-applied challenge lacks

merit. Accordingly, we affirm the trial court's disposition.

                                           I


       Geraldine Johnson called the police to her home on the evening of

February 14, 2011. Her juvenile daughter, R., was attempting to fight with
Johnson and to break the windows of the home with rocks. Officers Barreto,

Jenkins, and Mullins responded to the scene, where, Officer Barreto later

testified, they found R. to be "highly intoxicated" and "very belligerent." For
several minutes, the officers attempted "to calm her down while [they] worked out

the situation between her and her mother."

       According to Officer Jenkins, "just as things kind of started to settle,"
E.J.J., R.'s 17-year-old brother, stepped outside of the home and approached R.

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No. 67726-8-1/3



and the officers. Officer Jenkins informed E.J.J, that the officers were "in the

middle of an active investigation" and asked him to go back inside the house and

close the door. Although the officer repeated this request "four or five times,"

E.J.J, refused to comply. Indeed, E.J.J, became "hostile" when the officer made

this request. According to Officer Barreto, E.J.J.'s presence made it "very

difficult" to calm his sister, and, as a result of his presence, the scene "escalated

very quickly into a very hostile situation." Officer Jenkins similarly testified that,

although R. had become calm, she "began to escalate" when E.J.J, came

outside. Officer Jenkins described E.J.J, as "irate" during this exchange, calling

the officers names, yelling, and using profanity. E.J.J, was advised by the

officers that he could be "arrested for obstructing" if he refused to comply with

their orders.

       Eventually, Officer Jenkins, without touching E.J.J., escorted him back to
the house. The officer then asked E.J.J, multiple times to close the door to the

house, and E.J.J, repeatedly refused. Several times, Officer Jenkins closed the

door, and E.J.J, reopened it. The home had two doors, an outer "wrought iron

door" that someone inside the home could see through and an inner "solid door."

Officer Jenkins wanted E.J.J, to close the solid door because, when only the

wrought iron door was closed, E.J.J, "was still able to see what we were doing."
This concerned the officer because if E.J.J, "chose to harm us, he'd have the

ability to do so without us knowing." The officers had searched neither E.J.J, nor
the home for weapons. Several feet away from the doorway was a window

through which someone standing inside the home could see the area in which

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No. 67726-8-1/4



the officers and R. were located.

      The exchange between the officers and E.J.J, lasted for approximately 20

minutes before Officer Jenkins arrested E.J.J. E.J.J, was thereafter charged with

obstructing a law enforcement officer in violation of RCW 9A.76.020(1).

      An adjudication hearing was held on August 23, 2011. E.J.J, testified that

he approached R. and the officers after seeing an officer take out a "nightstick,"
with which E.J.J, thought the officer was going to hit his sister. He stated that he

wasn't trying to "intervene" in the situation, but that he wanted to "observe" and

"supervise" to ensure that his sister was safe. E.J.J, did not deny calling the
officers "inappropriate names," but he stated that the officers were also shouting

profanities at him.

       Following the adjudication hearing, the trial court entered findings offact
and conclusions of law. The court concluded that the State had proved beyond a

reasonable doubt the elements of obstructing a law enforcement officer and,

accordingly, determined E.J.J, to be guilty as charged.

       E.J.J, appeals.

                                          II


       E.J.J, contends that the statute criminalizing obstructing a law

enforcement officer, RCW 9A.76.020(1), prohibits a substantial amount of

constitutionally protected speech and, accordingly, is facially overbroad.
However, our Supreme Court has construed the obstruction statute to require

conduct, in addition to pure speech, in order to avoid such a constitutional

infirmity. State v. Williams. 171 Wn.2d 474, 251 P.3d 877 (2011). Thus, E.J.J.'s

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No. 67726-8-1/5



overbreadth challenge fails.

      "A statute is overbroad if it chills or sweeps within its prohibition

constitutionally protected free speech activities." State v. Hahn, 162 Wn. App.

885, 900, 256 P.3d 1267 (2011). rev'd on other grounds. 174Wn.2d 126,271

P.3d 892 (2012). Such overbreadth, however, must be "substantial"; the United
States Supreme Court has "repeatedly emphasized that where a statute

regulates expressive conduct, the scope ofthe statute does not render it
unconstitutional unless its overbreadth is not only 'real, but substantial as well,

judged in relation to the statute's plainly legitimate sweep.'" Osborne v. Ohio,
495 U.S. 103, 112, 100 S. Ct. 1691, 109 L Ed. 2d 98 (1990) (quoting Broadrick

v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L Ed. 2d 830 (1973)). Thus,

we have held that, "[w]hen analyzing a statute for overbreadth, the key

determination is 'whether the enactment reaches a substantial amount of

constitutionally protected conduct.'" State v. Dvson, 74 Wn. App. 237, 242, 872
P.2d 1115 (1994) (internal quotation marks omitted) (quoting Citv of Seattle v.
Huff. 111 Wn.2d 923, 925, 767 P.2d 572 (1989)). See also Hahn. 162 Wn. App.

at 901 (holding that criminal solicitation statute is not overbroad because it "does
not prohibit a substantial amount of speech"). "Even where a statute at its
margins infringes on protected expression, 'facial invalidation is inappropriate if
the remainder of the statute . . . covers a whole range of easily identifiable and

constitutionally prescribable . . . conduct."' Osborne, 495 U.S. at 112 (alterations
in original) (internal quotation marks omitted) (quoting New York v. Ferber, 458
U.S. 747, 770 n.25, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982)).

                                         -5-
No. 67726-8-1/6



       Moreover, a statute may survive overbreadth scrutiny where the state

supreme court has placed a limiting construction upon the statute, thus restricting

its scope to unprotected conduct. Osborne, 495 U.S. at 112-14. In Osborne, the

defendant challenged his conviction pursuant to an Ohio statute prohibiting the

possession of child pornography, asserting that the statute was overbroad under

the First Amendment. 495 U.S. at 107. However, as the United States Supreme

Court noted, the Ohio Supreme Court, relying on statutory exceptions, read the

statute "as only applying to depictions of nudity involving a lewd exhibition or

graphic focus on a minor's genitals." Osborne. 495 U.S. at 107. Accordingly, the
state supreme court affirmed Osborne's conviction. Osborne, 495 U.S. at 107.
Evaluating the statute as construed by the state supreme court, the United States
Supreme Court similarly rejected Osborne's First Amendment arguments,
holding that "Osborne's overbreadth challenge, in any event, fails because the
statute, as construed by the Ohio Supreme Court on Osborne's direct appeal,
plainly survives overbreadth scrutiny." Osborne. 495 U.S. at 112-13. The Court
explained that it has "long respected" the ability of state supreme courts "to
narrow state statutes so as to limit the statute's scope to unprotected conduct."

Osborne. 495 U.S. at 120.

       Here, E.J.J, challenges the constitutionality of our state's obstruction

statute, which provides: "A person is guilty of obstructing a law enforcement

officer if the person willfully hinders, delays, or obstructs any law enforcement

officer in the discharge of his or her official powers or duties." RCW

9A.76.020(1). He asserts that the statute is unconstitutionally overbroad

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No. 67726-8-1/7



because, he contends, it prohibits a substantial amount of protected speech.

       Our Supreme Court, however, has construed the obstruction statute to

avoid such a constitutional infirmity, adhering to its "jurisprudential history of

requiring conduct in addition to pure speech in order to establish obstruction of

an officer." Williams. 171 Wn.2d at 485. There, Williams was convicted of

obstructing a law enforcement officer when, in an apparent attempt to prevent a

police officer from discovering an outstanding warrant, he gave his brother's

name, instead of his own, to the officer. Williams. 171 Wn.2d at 475. Williams

appealed from his conviction, asserting that legislative history and decisional

authority demonstrate that the statute requires some conduct in addition to

making false statements. Williams. 171 Wn.2d at 475.

       Following an extensive review of case law interpreting the former and

current obstruction statutes, the court concluded that conduct is required in

addition to pure speech to support a conviction for obstructing a law enforcement

officer. Williams. 171 Wn.2d at 478-86. The court determined that, in enacting

RCW 9A.76.020, our legislature was aware that "in order to find obstruction

statutes constitutional, appellate courts of this state have long required conduct."

Williams. 171 Wn.2d at 485. Our courts have required such conduct, the court

explained, in part due to "concern that criminalizing pure speech would implicate
freedom of speech." Williams. 171 Wn.2d at 485: see also State v. Budik. 173

Wn.2d 727, 735-36, 272 P.3d 816 (2012) (citing Williams in holding that mere

false disavowal of knowledge was insufficient to support a conviction for

rendering criminal assistance and, instead, an affirmative act was required);

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No. 67726-8-1/8



State v. Grant. 89 Wn.2d 678, 685-86, 575 P.2d 210 (1978) (holding that former

obstruction statute, the language of which is almost identical to that of the current

statute, "focuses on conduct other than speech"). Thus, the court held that, "[i]n

order to avoid constitutional infirmities, we require some conduct in addition to

making false statements to support a conviction for obstructing an officer."

Williams. 171 Wn.2d at 486.

       Nevertheless, E.J.J, contends that the statute is overbroad because it

"criminalizes any speech, so long as that speech, together with conduct, 'hinders,

delays, or obstructs' a law enforcement officer." Appellant's Br. at 28 (quoting

RCW 9A.76.020(1)). This contention, however, fails to recognize that conduct

may be constitutionally regulated "even though intertwined with expression and

association." Cox v. Louisiana. 379 U.S. 559, 563, 85 S. Ct. 476, 13 L. Ed. 2d

487 (1965) (holding that statute prohibiting "picketing and parading" near a

courthouse did not infringe upon the constitutionally protected rights of free

speech and free assembly). Indeed, the "examples are many of the application"

by the United States Supreme Court "of the principle that certain forms of

conduct mixed with speech may be regulated or prohibited." Cox. 379 U.S. at

563. "'[I]t has never been deemed an abridgement of freedom of speech or

press to make a course of conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of language, either spoken,

written, or printed.'" Cox, 379 U.S. at 563 (quoting Gibonev v. Empire Storage &

Ice Co.. 336 U.S. 490, 502, 69 S. Ct. 684, 93 L Ed. 834 (1949)).

       Moreover, the case to which E.J.J, cites in support of his overbreadth

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No. 67726-8-1/9



challenge, City of Houston. Tex, v. Hill. 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed.

2d 398 (1987), is inapposite. There, Hill challenged as overbroad a city

ordinance making it "'unlawful for any person to ... in any manner oppose,

molest, abuse or interrupt any policeman in the execution of his duty.'" Hill, 482

U.S. at 461 (quoting Code of Ordinances, City of Houston, Tex., §§34-11(a)

(1984)). The evidence showed that the ordinance had been employed to make

arrests for "'arguing,' '[tjalking,' '[interfering,' '[f]ailing to remain quiet,' '[rjefusing

to remain silent,' '[v]erbal abuse,' 'cursing,' '[v]erbally yelling,' and '[tjalking loudly,

[w]alking through the scene.'" Hill, 482 U.S. at 457 (quoting Hill v. City of

Houston. Tex.. 789 F.2d 1103, 1113-14 (5th Cir. 1986)).1 The Supreme Court
invalidated the ordinance, determining that the ordinance, which prohibited

"verbal interruptions of police officers," dealt "not with core criminal conduct, but

with speech." Hill, 482 U.S. at 460-61. Importantly, the Court determined that
the ordinance at issue in HiH had "'received a virtually open-ended interpretation'"

and, thus, was "susceptible of regular application to protected expression." 482

U.S. at 466-67 (quoting Lewis v. City of New Orleans. 415 U.S. 130, 136, 94 S.

Ct. 970 (1974) (Powell, J., concurring in the result)). Moreover, the Court

concluded that the ordinance was unambiguous and, thus, not susceptible to a

limiting construction: "The enforceable portion of this ordinance is a general
prohibition of speech that 'simply has no core' of constitutionally unprotected

expression to which it might be limited." Hi!!. 482 U.S. at 468-69 (quoting Smith


       1 Indeed, Hill himself was arrested for "'wilfully or intentionally interrupting] a city
policeman ... by verbal challenge during an investigation.'" HjM, 482 U.S. at 454.

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No. 67726-8-1/10



v. Goquen. 415 U.S. 566, 578, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974)). Thus,

the Court held that the ordinance "criminalize[d] a substantial amount of

constitutionally protected speech" and, accordingly, was unconstitutionally

overbroad. Hi, 482 U.S. at 466.

       In contrast, the obstruction statute challenged here has been construed by

our Supreme Court to require conduct in addition to speech in order to establish

the offense.2 Williams, 171 Wn.2d at 485. As in Osborne, this construction

narrows the obstruction statute "so as to limit the statute's scope to unprotected

conduct." 495 U.S. at 120. Moreover, a statute is not rendered unconstitutional

unless its overbreadth is both real and substantial in relation to its "'legitimate

sweep.'" Osborne, 495 U.S. at 112 (quoting Broadrick, 413 U.S. at 615).
Because the obstruction statute does not reach a substantial amount of

constitutionally protected conduct, it is not, as E.J.J, contends, unconstitutionally

overbroad.3


        2 E.J.J, asserts that "the caselaw shows that speech is frequently criminalized under [the
obstruction] statute when the speech accompanies conduct." Appellant's Br. at 25. E.J.J, cites to
only two cases in support ofthis assertion, State v. Contreras. 92Wn. App. 307, 966 P.2d 915
(1998), and State v. Williamson. 84 Wn. App. 37, 924 P.2d 960 {1996), and neither case
demonstrates that speech is "frequently criminalized" pursuant to RCW 9A.76.020(1). In
Contreras. the court held that the defendant's refusal to answer questions was not sufficient to
support his obstruction conviction; rather, the court upheld the conviction based upon Contreras's
conduct of disobeying the officer's orders to put his hands in view, exit the car in which he was
sitting, and keep his hands on topofthe car, and giving the officer a false name. 92Wn. App. at
316. In Williamson, the court did not address the defendant's challenge to the sufficiency of the
evidence because the court reversed the obstruction conviction on the basis of a defective
information. 84 Wn. App. at 46.
        3To the extent that the obstruction statute may interfere with an individual's
constitutionally protected right to free speech, we note that "the exerciseof that right, even in
public forums, is subject to valid time, place, and manner restrictions." Citv of Seattle v.
Abercrombie. 85 Wn. App. 393, 399, 945 P.2d 1132 (1997) (upholding the City of Seattle's
obstruction ordinance against an overbreadth challenge). Such restrictions are valid so long as
they "'are content-neutral, are narrowly tailored to serve a significant government interest, and
leaveopen ample alternative channels of communication.'" Citv ofSeattle v. Huff, 111 Wn.2d

                                               -10-
No. 67726-8-1/11




       E.J.J, additionally contends that there was insufficient evidence to support

his adjudication of guilt for obstructing a law enforcement officer. Because,

based upon the evidence presented, any rational trier offact could have found
the essential elements of the offense proved beyond a reasonable doubt, we

disagree.

       When reviewing a challenge to the sufficiency of the evidence, we must

determine "whether, 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." Jackson v. Virginia. 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). This standard of review is so oft-
repeated that lawyers and judges infrequently consider the meaning of its words.
The purpose of the standard is to ensure that the fact finder "rationally applped]"
the constitutional standard required by the due process clause ofthe Fourteenth
Amendment, which allows for conviction of an offense only upon proof beyond a
reasonable doubt. Jackson, 443 U.S. at 317-18. In other words, the Jackson

standard is designed to ensure that the defendant's due process right in the trial
court was properly observed. Pursuant to the Jackson standard, we look neither
to the particular fact finder in the case nor to the specific theory of the case
presented by the State.4 Rather, we look to the evidence admitted at trial to


923, 926, 767 P.2d 572 (1989) (internal quotation marks omitted) (quoting Bering v. Share, 106
Wn.2d 212, 222, 721 P.2d 918 (1986)).
        4Whether the trierof fact was a jury or, as here, a judge "isof no constitutional
significance." Jackson, 443 U.S. at 317 n.8. Indeed, in Jackson itself the Supreme Court

                                              -11 -
No. 67726-8-1/12



determine whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could conclude that the elements of the

offense were proved beyond a reasonable doubt.

         Here, E.J.J, challenges the sufficiency of the evidence for his adjudication

of guilt for obstructing a police officer. The obstruction statute provides that "[a]

person is guilty of obstructing a law enforcement officer if the person willfully

hinders, delays, or obstructs any law enforcement officer in the discharge of his

or her official powers or duties." RCW 9A.76.020(1).

         "The statute's essential elements are (1) that the action or inaction
         in fact hinders, delays, or obstructs; (2) that the hindrance, delay, or
         obstruction be of a public servant in the midst of discharging his [or
         her] official powers or duties; (3) knowledge by the defendant that
         the public servant is discharging his [or her] duties; and (4) that the
         action or inaction be done knowingly by the obstructor!.]"

State v. Contreras. 92 Wn. App. 307, 315-16, 966 P.2d 915 (1998) (quoting State

v. CLR, 40 Wn. App. 839, 841-42, 700 P.2d 1195(1985)). Because a rational

fact finder could determine that these elements were proved beyond a

reasonable doubt, the evidence is sufficient to support E.J.J.'s adjudication of

guilt.

         The State presented evidence, through the testimony of Officers Barreto

and Jenkins, that E.J.J, approached the scene just as the officers were beginning

to successfully calm R. from her agitated state. E.J.J, did not simply stand near
R. and the officers; rather, he was "irate," yelling, using profanity, and calling the


reviewed a conviction resulting from a bench trial. 443 U.S. at 317 n.8. On the other hand, in the
first Washington case to apply the Jackson standard, the conviction at issue resulted from a jury's
verdict. State v. Green. 94 Wn.2d 216, 616 P.2d 628 (1980).

                                              -12-
No. 67726-8-1/13



officers names. According to the testimony, E.J.J.'s presence caused R. to again

become agitated, resulting in the escalation of the situation into a "very hostile"

one. E.J.J, then refused to comply with Officer Jenkins' repeated requests that

he go back inside the house. Finally, Officer Jenkins was compelled to escort

E.J.J, back to the house.

       Viewed in the light most favorable to the prosecution, sufficient evidence

supports a determination that, at this point, E.J.J, had hindered or delayed the
officers in performing their official duties. Accordingly, based upon this evidence,

any rational fact finder could determine beyond a reasonable doubtthat E.J.J,
was guilty of obstructing a law enforcement officer in violation of RCW
9A.76.020(1). E.J.J, was, therefore, not denied due process of law. Whether
additional evidence was admitted is of no moment to the determination of the

sufficiency of the evidence.5
                                                IV


        Finally, E.J.J, asserts that the obstruction statute is unconstitutional as
applied. Specifically, he contends that his adjudication was based in part on
constitutionally protected speech, that he cannot be penalized for conduct
occurring within his own home, and that his adjudication violates an alleged
substantive due process right to observe police officers performing their official




        5 E.J.J, challenges the conduct of the officers after he was escorted back to the house.
However, application ofthe Jackson standard does not necessitate thatwe consider evidence
other than that pertinent to the question of whether the standard was met.

                                              -13-
No. 67726-8-1/14



duties.6 But E.J.J, neither asserted these purported constitutional infirmities in

the trial court nor sought to exclude the admission of related evidence. Neither

did he challenge the lawfulness of his arrest. Thus, we review his as-applied

challenge by determining whether the statute is unconstitutional as applied to

evidence of his actions that was necessary to establish the elements of the

offense. Because, upon such review, we determine that no speech or conduct

was criminalized that could not constitutionally be criminalized, we find E.J.J.'s

as-applied challenge to be without merit.

        We review de novo challenges to a statute's constitutionality. State v.

Steen. 164 Wn. App. 789, 809, 265 P.3d 901 (2011V review denied. 173Wn.2d

1024 (2012). "An as-applied challenge to the constitutional validity of a statute is

characterized by a party's allegation that application of the statute in the specific

context of the party's actions or intended actions is unconstitutional." Citv of

Redmond v. Moore. 151 Wn.2d 664, 668-69, 91 P.3d 875 (2004). "A decision

that a statute is unconstitutional as applied does not invalidate the statute but,

rather, prohibits the statute's future application in a similar context." Steen, 164

Wn.App. at 804.

        On appeal, E.J.J, contends that his adjudication of guilt was based upon

constitutionally protected speech and conduct, and, thus, that the obstruction

statute is unconstitutional as applied. He asserts that his adjudication of guilt

cannot constitutionally be based upon his speech, conduct occurring while he

         6 E.J.J, does not cite to material case law authority in support of his contention that such
a constitutional right has been found to exist. We need not examine that question in order to
decide this appeal.

                                                -14-
No. 67726-8-1/15



was inside his home, or his "observation" of the police officers while they

performed their official duties.7 Neither E.J.J, nor the State, however, briefed on
appeal the question, "as applied to what?" Stated differently, to which of E.J.J.'s

"actions or intended actions," Moore. 151 Wn.2d at 668-69, was the statute

unconstitutionally applied?

       To answer this question, we must look to how the case was litigated and

briefed by the parties. E.J.J, made no challenge in the trial court to the

lawfulness of his arrest; nor did he allege that an unlawful search or seizure had

occurred. Moreover, no motion was made and no relief sought to exclude the

presentation of the evidence that we have set forth herein. E.J.J, did not
challenge the admission of evidence of his speech or his conduct occurring
within his home. Nor did E.J.J, assert a substantive due process right to observe

the police officers while performing their official duties. Thus, there was no

contention in the trial court—nor explicitly on appeal—that due process standards

were not observed in the admission of evidence.

        Based on the manner in which this case was litigated in the trial court and

briefed on appeal, the answer to the question "as applied to what?" is clear—

E.J.J.'s only viable as-applied challenge is with respect to the sufficiency of the

evidence to support his adjudication of guilt.8 Thus, we review his challenge by

        7 E.J.J, contends that his speech is protected by the First Amendment, that conduct
occurring within his home is protected by the Fourth Amendment and article I, section 7 ofour
state's constitution, and that his "observation" of the policeofficers is subject to the alleged
substantive due process right to observe policeofficers performing their official duties.
         8"'[Sufficiency of the evidence is a question of constitutional magnitude and can be
raised initially on appeal.'" State v. Alvarez. 128Wn.2d1, 10, 904 P.2d 754 (1995) (alteration in
original) (quoting Citv of Seattle v. Slack. 113Wn.2d 850, 859, 784 P.2d 494 (1989)).

                                                -15-
No. 67726-8-1/16



determining whether, as applied to those of E.J.J.'s actions evidence of which

was necessary to establish the elements of the offense, the obstruction statute is

unconstitutional. In other words, we determine whether the statute was applied

in such a manner that evidence of constitutionally protected speech or conduct

must necessarily be relied upon in order to satisfy the Jackson test for sufficiency

of the evidence.

      As explained above, our Supreme Court held in Williams that the statute

lawfully criminalizes conduct in addition to speech. 171 Wn.2d at 485.

Accordingly, so long as it is coupled with conduct, a defendant's speech can be

considered in determining whether sufficient evidence supports an adjudication

or conviction of obstructing a law enforcement officer. Considering evidence

allowed by Williams to meet the sufficiency standard set forth in Jackson is not

constitutionally prohibited, given that, pursuant to Williams, constitutionally

protected conduct is not prohibited by the obstruction statute.

       At a bare minimum, the following facts support the trial court's

determination that E.J.J, was guilty of obstructing a law enforcement officer:

E.J.J, approached the officers and his sister while the officers were engaged in
calming R. in order to defuse the situation between R. and her mother. E.J.J.'s

presence escalated the situation with R. E.J.J, was "irate," calling the officers
names, yelling, and using profanity. E.J.J, refused the officers' repeated

requests to leave the scene. Due to E.J.J.'s refusal to comply, an officer was

eventually required to escort E.J.J, away from R., back to the house, thus

hindering and delaying the officers' ability to calm R. and defuse the situation.

                                        -16-
No. 67726-8-1/17



The admission of none of this evidence was prohibited by Williams. This

evidence is properly referenced to evaluate the evidence at trial in accordance

with the Jackson standard. Thus, the challenged statute was not

unconstitutionally applied to the evidence at trial. E.J.J.'s assertion of error must

fail.


        Affirmed.



                                                           /
We concur:




 W,/vw^rX




                                        -17-
