                                                                                   FILED
                                                                              OURT OF APPEALS
                                                                                 DIVISION 11

                                                                             2913 AUG -6 AM 9: 13
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                              S" OF WASHINGTON
                                                                               4ATE
                                             DIVISION II                      BY           In
                                                                                      OEUy
STATE OF WASHINGTON,                                                    No. 42035 0 II
                                                                                  - -


                                    Respondent,                     PUBLISHED OPINION


            Wq




ROBERT LOCKE,

                                    Appellant.

            BJORGEN, J. —Robert Locke appeals his conviction and sentence for one count of

making threats against the Governor or her family. He argues that: ( )
                                                                   1 sufficient evidence does

not support that he made a "true threat," defined under First Amendment case law, or a
                                        as

threat"as defined by the jury instructions; 2) trial court erred in not including the true
                                            ( the

threat concept in the " o convict"jury instruction and the information does not contain all
                      t

essential elements because it fails to refer to     true
                                                  a "                3)
                                                           threat "; ( the   trial court erred in not

providing the jury with a Petrich multiple acts unanimity instruction; and (4) trial court
                                                                             the
improperly ordered Locke to have a mental health evaluation and to follow any recommended
                                 -
treatment as a condition of his sentence. The State concedes that the trial court improperly

imposed the mental health condition. We hold that sufficient evidence supports the finding of a




1
    State   v.   Petrich, 101 Wn. d 566, 569, 683 P. d
                                2                  2     173 (1984).
No. 42035 0 II
          - -



true threat, consistently with the first Amendment, that the jury instructions were proper, and that

a Petrich instruction was not necessary. Therefore, we affirm the conviction,but remand for

vacation of the improper mental health condition.

                                              FACTS


         In the early morning of January 25, 2011, Locke sent two e mail messages to the
                                                                    -

Governor through a section of the Governor's web site entitled " ontact Governor Gregoire."
                                                               C

Exh. 3 at 1, 4 5. The web page required the sender's first and last name, e mail address, physical
               -                                                            -

address, city, state, and zip code as contact information.

         In his first e mail,sent at 6:9 AM, Locke identified himself as "Robb Locke"and
                        -             0

provided   a   phone number; an   e mail
                                    -      address, robblocke2004 @yahoo. om "; zip code, 98334;
                                                    "                   c     a

and a state, Washington. Exh. 4. For his address, Locke entered " 313 Mockingbird Lane,"
                                                                1                      an

address used in the television comedy " he Munsters."Exh. 4;Report of Proceedings (RP)at
                                      T

186. For his city,he entered " regoiremustdie."Exh. 4. His message stated,
                             G

         I hope you have the opportunity to see one of your family members raped and
         murdered by asexual predator. Thank you for putting this state in the toilet. Do
         us a favor and pull the lever to send us down before -
                    -                                         you leaveOlympia. - - - - - - -

Exh. 4


         At 6:1 AM, Locke used the web page to send a second e mail,providing the same
             1                                                 -

contact information. His second message stated, You fucking CUNT!!You should be burned
                                                "

at the stake like any heretic."Exh. 5.

         Finally, at 6:3 AM, Locke accessed another section of the Governor's web site titled,
                      1

Invite Governor Gregoire to an Event."Exh. 1. Through a form on this web page, Locke

requested an event, again identifying himself as "Robb Locke,"
                                                             noted that he lived in

                                                     2
No. 42035 0 II
          - -



Washington state, and identified his organization as "Gregoire Must DIe [sic]." 2. He
                                                                             Exh.

requested that the event be held at the Governor's mansion and stated the event's subject would

be "Gregoire's public execution."Exh. 2. He wrote that the Governor's role during the event•

would be " onoree," event would last 15 minutes, the media would be invited, and the
         H        the

audience's size would be greater than 150. Exh. 2.

       Barbara Winkler, the Governor's executive scheduler, discovered Locke's event request

when she arrived at work the morning of January 25. The request alarmed her, and she

considered it as serious because it occurred shortly after a recent shooting of an elected official in

Arizona. She forwarded the event request to a member of the Executive Protection Unit ( PU)
                                                                                      E

of the Washington State Patrol.

       After speaking with Winkler, Rebecca Larsen, the Governor's executive receptionist,

searched the computer system for the name Locke provided in the event request and discovered

the two earlier e mails from him. Because Larsen was " larm[ d]" the e-
                  -                                  a     e  by      mails, she printed

them and gave them to the EPU. RP at 126, 128.

       Washington State Patrol Ser eant Carlos Rodriguez of the EPU reviewed the e mails and -- -- -
                               -                                             -     =

event request. After considering their content and the Arizona shootings, he interpreted them as

a serious threat to do harm to the governor."RP at 171, 178. Rodriguez reviewed the

communications with Detective James Kirk of the state patrol, who dialed the


2
 The Arizona shooting referred to by multiple witnesses in this case was the shooting of United
States Representative Gabrielle Giffords. On January 8,2011, a gunman shot Representative
Giffords and 18 other people during a public meeting held in a supermarket parking lot in
Arizona.

3
 The response of law enforcement is a relevant part of the background of this appeal. It is not
dispositive, however, as to whether an unprotected true threat was made.
                                                  3
No. 42035 0 II
          - -



telephone number provided with the e mail. A male voice answered, and Kirk asked if he was
                                     -

speaking with Locke. Locke answered yes, and Kirk identified himself and said he wanted to

discuss the e-
             mails. Locke replied, Yeah," either hung up or lost cellular service. RP at
                                   "    and

204. When Kirk called back, the call went to voice mail.

        Kirk and Trooper Albert Havenner went to an address believed to be Locke's residence

and saw someone matching Locke's description walking down the street. Havenner contacted

the individual. Locke identified himself and   replied, Yeah,I
                                                        "        know   why you're   here ....   I


figured you guys would be contacting me." at 197. Kirk then identified himself and said he
                                        RP

had spoken with Locke on the telephone earlier that morning. Locke replied, Y]ah, I want
                                                                            "[ e

you to know ...   I didn't hang up on you, I have poor cell service."RP at 207. Kirk then

transported Locke to a state patrol office.

        At the office, Locke acknowledged that he sent the e mails and an event request from a
                                                             -

computer in his residence. He stated that he did this because, while Governor Gregoire was the

attorney general, he had filed a complaint with that office about an employer depriving him of

his last two p aY checks arid the attorney general's
                                         y g             failed to follow   uP•   In October 2010 - "


Locke became unable to work because of a back condition, and the Department of Social and

Health Services twice reduced benefits he was receiving. When Locke awoke the morning of

January 25,2011, he was angry over those circumstances and having to walk three miles to

physical therapy while in pain. He described his communications to the Governor as "giv[ng]
                                                                                       i

her a piece of his]mind," he did not recall making any direct threats to her safety and had no
               [        but

intention of carrying out any threats. Ex. 6 at 7;10. He " rofusely apologize[d] [ is]
                                                         p                     for h




                                                  0
No. 42035 0 II
          - -



temper"and        said that " t
                            i     was ...    the worst judgment"to have sent the communications, but he

needed the outlet at the moment ... [            a]d,it was there." 6 at 15.
                                                  n                Ex

       The State charged Locke with one count of threats against the Governor or her family. A
                                                                              -

jury convicted him as charged. The trial court sentenced him to 12 months' confinement and

ordered a mental health evaluation. Locke appeals.

                                                     ANALYSIS


                                            1. SUFFICIENCY OF THE EVIDENCE


       Locke argues that sufficient evidence does not support his making a "true threat"against

the Governor under First Amendment case law or his making a " hreat"as defined by the jury
                                                            t

instructions. We disagree.

       Sufficient evidence supports a conviction if,when viewed in the light. ost favorable to
                                                                            m

the State, any rational trier of fact could have found the essential elements of the charged crime

proved beyond a reasonable doubt. State v. Hosier, 157 Wn. d 1,8, 133 P. d 936 (2006).
                                                         2             3

Subject to the rules governing First Amendment analysis set out below, we draw all reasonable
             4-
inferences    from the in the State's favor and interpret them most strongly against the -- -

defendant. Hosier, 157 Wn. d at 8. In the sufficiency context, we consider circumstantial
                         2

evidence as probative as direct evidence. State v. Goodman, 150 Wn. d 774, 781, 83 P. d 410
                                                                  2                 3

2004).We may infer specific criminal intent of the accused from conduct that plainly indicates


4
  Locke, citing State v. Weaver, 60 Wn. d 87, 88, 371 P. d 1006 (1962),
                                       2                   2                argues that the State
cannot rely on a "pyramiding of inferences"to demonstrate sufficient evidence supporting his
convictions. Br. of Appellant at 9. Our Supreme Court, however, subsequently rejected the rule
in Weaver, citing with approval the statement that "[ f the inferences and underlying evidence
                                                     i]
are strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt, a
conviction may be properly based                 pyramiding inferences. "' State v. Bencivenga, 137 Wn. d
                                              on `                                                    2
703, 711, 974 P. d 832 (1999).
               2
                                                           5
No. 42035 0 II
          - -



such intent as a matter of logical probability. Goodman, 150 Wn. d at 781. Finally, we defer to
                                                               2

the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the

evidence. State v. Thomas, 150 Wn. d 821, 874 75, 83 P. d 970, abrogated in part on other
                                 2            -       3

grounds by Crawford v. Washington, 541 U. .36, 24 S. Ct. 1354, 158 L.Ed. 2d 177 (2004).
                                        S    1

A.     True Threat


       Locke was convicted under RCW 9A. 6.
                                     090(
                                        1 which
                                        3 ),provides:

       Whoever knowingly and willfully deposits for conveyance in the mail or for a
       delivery from any post office or by any letter carrier any letter, paper, writing,
       print, missive, or document containing any threat to take the life of or to inflict
       bodily harm upon the governor of the state or his or her immediate family ... or
       knowingly and willfully otherwise makes any such threat against the governor ...
       shall be guilty of a class C felony.

       The First Amendment, applicable to the States through the Fourteenth Amendment,

provides        Congress shall make
           that "                     no   law ...   abridging the freedom of speech."Virginia v.

Black, 538 U. .343, 358, 123 S. Ct. 1536, 155 L.Ed. 2d 535 (2003).The First Amendment,
            S

though, does not extend to speech held to be unprotected, one category of which comprises true
                                                                                          "

threats."State v. Allen, 176 Wn. d 611, 626, 249 P. d 679 (2013).
                               2                  3

           A true threat is " statement made in a context or under such circumstances wherein a.
                            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."Allen,

176 Wn. d at 626 (internal quotation marks omitted) quoting State v. Kilburn, 151 Wn. d 36,
      2                                             (                               2

43, 84 P. d 1215 (2004)). avoid violating the First Amendment, our Supreme Court has held
        3              To

that it will "nterpret statutes criminalizing threatening language as proscribing only unprotected
             i

true threats."Allen, 176 Wn. d at 626. Consequently, we construe RCW 9A. 6.
                           2                                         090(
                                                                        1 as
                                                                        3 )

prohibiting only true threats.

                                                      C
No. 42035 0 II
          - -



        A true threat is a serious threat, not one said in jest, idle talk, or political argument.

Kilburn, 151 Wn. d at 43 (citing United States v. Howell, 719 F.d 1258, 1260 (5th Cir. 1984)).
               2                                               2

Stated another way, communications that " ear the wording of threats but which are in fact
                                        b

merely jokes, idle talk, or hyperbole"are not true threats. State v. Schaler, 169 Wn. d 274,
                                                                                    2

283, 236 P. d 858 (2010).The nature of a threat " epends on all the facts and circumstances,
          3                                     d

and it is not proper to limit the inquiry to a literal translation of the words spoken."State v.

C.G., Wn. d 604, 611, 80 P. d 594 (2003).Statements may " onnote something they do not
    150 2                 3                             c

literally   say ...."   Planned Parenthood of ColumbiaWillamette, Inc. v. A. ., F. d 1058,
                                                      /                   C. .
                                                                           A
                                                                           L 290 3

1085 (9th Cir. 2002).Consistently with this recognition, our court has held that " hether a
                                                                                 w

statement is a true threat or a joke is determined in light of the entire context"and that a person

can indirectly threaten to harm or kill another. See Kilburn, 151 Wn. d at 46, 48. Further, t]
                                                                    2                       "[ he

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: d at
                                                                                  2

283 (citation omitted).

        Because oursufficiency of theevidence -
                                              determination " sthe heart of the `true threat' -
                                                            i            -

inquiry," i"
        it mplicates core First Amendment protection."Kilburn, 151 Wn. d at 48.
                                                                     2

Accordingly, the First Amendment demands more than application of our usual standard of

review for sufficiency of the evidence. Kilburn, 151 Wn. d at 48 49. Instead, we must
                                                       2         -

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

forbidden intrusion into the field of free expression. Kilburn, 151 Wn. d at 50. We are required
                                                                      2

to independently review only crucial facts, that is,those facts so intermingled with the legal

question that it is necessary to analyze them in order to pass on the constitutional question.


                                                    7
No. 42035 0 II
          - -



Kilburn, 151 Wn. d at 50 51. In doing so, we may review evidence in the record not considered
               2         -

by the lower court in deciding the constitutional question. Kilburn, 151 Wn. d at 51. However, .
                                                                           2

our review does not extend to factual determinations such as witness credibility. State v.

Johnston.,156 Wn. d 355, 365 66, 127 P. d 707 ( 006).
                2            -        3       2

        With these principles in mind, we turn to whether any of Locke's communications

constituted a true threat. Locke's first e mail identified his city as "Gregoiremustdie"and stated
                                           -

his desire for the Governor to witness a family member " aped and murdered by a sexual
                                                       r

predator."Exh. 4. The e mail also stated that the Governor had " ut this state in the toilet"and
                        -                                      p

requested that she "pull the lever to send us down before you leave Olympia."Exh. 4.

        Although identifying his city as "Gregoiremustdie"is surely menacing, the force of the

message itself is the desire that the Governor see a family member raped or murdered, coupled

with the opinion that the Governor had put the state "in the toilet."
                                                                    Although crude and

upsetting,this is more in the nature of hyperbolic political speech, predicting threatening

personal consequences from the state's policies. Under the standards above, this does not rise to

the level a true threat5as recently defined in Allen: - - - — -- ___.

        Locke's second e mail,sent only two minutes later, intensified in its violent tone and
                         -

 content. In this    mail,Locke again identified his city
                    e-                                         Gregoiremustdie "; addressed the
                                                            as "




 Governor with an emphatic, gender -specific epithet; and expressed his opinion that she should be

 burned at the stake like any heretic."Exh. 5. Unlike the first e mail,this expresses more than
                                                                  -

 the desire that the Governor's policies will lead to horrible consequences to her family. Rather,

 its message, expressed twice, is that the Governor should be killed.
No. 42035 0 II
          - -



       Its passive phrasing, though, blunts the implication that Locke is threatening to do this

himself. As the dissent points out, Locke's message is that someone should kill the Governor,

not that he intends to. The dissent argues also that since burning heretics at the stake is a

historically political act, the second e mail is removed from the realm of a true threat in the same
                                         -

way the first e mail was protected by its political content. There is a conceptual gulf,though,
                -

between the first e- s hope that the Governor's family would suffer harm from the
                   mail'

Governor's policies and the message of the second e mail that the Governor should be killed in a
                                                    -

horrible way once reserved for religious and political dissenters. The ancient political or

religious pedigree of burning at the stake in no way transforms its menace into legitimate

political speech today.

        Even so, under Allen,the passive and impersonal phrasing of this sort of statement would

at best reach only the margins of a true threat; viewed in isolation, we cannot deem it unprotected

speech. •However, it and the event request discussed below, considered together, do cross into

the territory of a true threat. See Schaler, 169 Wn. d at 283 84;Kilburn, 151 Wn. d at 48.
                                                   2          -                 2

        Locke's event request,                 two minutes after thesecondemail
                                                                           - further escalated


the violent tone and content of his communications. Locke sent the request through a section of

the Governor's web site entitled " nvite Governor Gregoire to an Event."Exh. 1. He identified
                                 I

his organization as "Gregoire Must DIe [sic],"
                                            requested that the event be held at the Governor's

mansion, and stated the subject of the event would be " regoire's public execution," which
                                                      G                            at

she would be the "
                 Honoree."Exh. 2.


        We must consider these facts in light of Locke's own admission that he was aware of

Representative   Giffords's   shooting   17   days   earlier. In such   a   context, a reasonable   speaker
No. 42035 0 II
          - -



would foresee that the Governor would take seriously an invitation to her own public execution

from " regoire Must DIe [sic],"
     G                       especially in light of the rapid progression of Locke's

communications from expressing his displeasure with her to his blunt desire for her death.

Although Locke did not directly state that he himself would kill her, a direct threat is not

required for his communications to constitute a true threat. See Kilburn, 151 Wn. d at 48;
                                                                                2

Planned Parenthood, 290 F.d at 1085.
                         3

       The menace of the communication was further heightened by its specificity. Locke

requested a 15-
              minute event at the Governor's mansion, with media present, with an audience of

over 150, at which the Governor would be the honoree, and at which she would be publicly

executed. These details throw the threat into higher relief and translate it from the realm of the

abstract to that of the practical. They plainly suggest an attempt to plan an execution, even

though Locke may have intended nothing.

        Further, Locke had no preexisting relationship or communications with the Governor

from which he might have an expectation that she would not take his statements seriously. See

Kilburn, 151 Wri. d at 52 53. In fact, all the witnesses from the Governor's office testifi that
         - - 2            -    "

they took Locke's communications as serious threats. Finally, Locke himself seemed to

acknowledge that he knew his threats would be taken seriously; he admitted that he knew why

the state patrol contacted him, that he expected them to do so, and that he exercised " he worst
                                                                                      t

judgment"in sending the communications. Exh. 6.

        The dissent asserts that the outlandishness of the event request means that no reasonable

person would take it seriously. The threat, though, lay not in the possibility that the request

would actually be granted or that a fire would be kindled beneath a stake. It lay,rather, in the


                                                  10
No. 42035 0 II
          - -



escalation of the communications from passive abstraction to a more detailed plan for the

Governor's murder, coupled with the repeated admonition that " regoire must die."
                                                             G                  The dissent

asserts also that the short time between the e mails shows a continuous statement, not an
                                               -

escalation of threats. To the contrary, the evidence shows a rapid fire e mail sequence of
                                                                    -     -

increasing specificity and menace. If anything, the short intervals between the e mails suggest a
                                                                                  -

troubling explosiveness lying behind them. That message would be taken seriously by a

reasonable person.

        The dissent asserts also that Locke's messages do not disclose any serious plan to harm

the Governor. Underlying planning, however, is not an essential element of a true threat. In

Schaler, underlying planning was simply evidence of circumstances that fell into the true threat

category. Further, Schaler itself held that the speaker of a true threat need not actually intend to

carry it out. Schaler, 169 Wn. d at 283. Under both Schaler's rationale and its result, Locke's
                             2

statements crossed well into the precincts of unprotected speech.

        Finally,the contrast between the circumstances of the threat in Kilburn and Locke's

communications highlight the serious nature of Locke's actions.On its faced the eighth
                                                               --

grader's statement to a classmate that he was " oing to bring a gun to school tomorrow and shoot
                                              g

everyone and start with you"is chilling and serious. Kilburn, 151 Wn. d at 39. The Court
                                                                    2

pointed out, though, that the speaker and the classmate had been talking about books they were

reading and Kilburn's book involved the military and guns; that Kilburn had known the

 classmate for two years and had always been friendly to her; that he joked around with other

 students, including this classmate; and that he had been laughing when he made the statement.




                                                 11
No. 42035 0 II
          - -


Kilburn, 151 Wn. d at 52 53. These circumstances led our Supreme Court to deem this not a
               2         -

true threat. Nothing approaching these circumstances is present here.

       The dissent also asserts that Locke's a mails are protected by the First Amendment
                                               -

because they are political speech. In support, the dissent cites the Supreme Court's recognition

of a profound national commitment to the principle that debate on public issues should be

uninhibited, robust and wide[]
                            open, and that it may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on government and public officials."'
                                                                         Watts v. United

States, 394 U. .705, 708, 89 S. Ct. 1399, 22 L.Ed. 2d 664 ( 969)quoting N. . Times v.
             S                                            1      (       Y

Sullivan, 376 U. .254, 270, 84 S. Ct. 710, 116 L.Ed 2d 686 (1964)).
               S

       As set out above, we recognize that the terms of the first e- are of an arguably
                                                                   mail

political nature, and we, too, deem it to be protected speech. Locke's own statements, however,

make clear that his motivation for sending the e mails as a whole had nothing to do with public
                                                 -

or political matters. He was upset at Governor Gregoire because, when she was attorney general,

that office failed to follow up on a private complaint he had made. He was upset more generally

because his had been reduced, and he was angry at having walk to physical

therapy while in pain. Locke's threats, consequently, were an expression of undiluted ire over a

private grievance with the state, of which Gregoire was then Governor. The sentiments

expressed in the second and third e mails conveyed no view or position on public issues or
                                    -

policies. To suggest a "profound national commitment"to the protection of such threatening

outbursts risks trivializing our critical commitment to uninhibited speech on public issues, even

if it crosses into the vehement and caustic. The second and third e mails were not political.
                                                                    -

speech.


                                                12
No. 42035 0 II
          - -



       Finally,the dissent notes that United States v. Lincoln, 403 F.d 703, 704 05 ( th Cir.
                                                                     3           - 9

2005),
     held that a true threat was not conveyed by a letter an inmate attempted to send to the

President stating, in part: " ou Will Die too George W Bush real Soon They Promissed [sic]
                            Y

That you would."If Locke had confined himself to the passive, indirect hopes that the Governor

or her family would be harmed, found in the first two e-
                                                       mails, Lincoln might be dispositive.

Locke continued, though, with the increasingly specific and detailed threats described above.

These escalating steps forfeited any protection of his threatening speech under Lincoln's

rationale.


       We agree wholly with the dissent that the guarantee of free speech has its most important

application to those with whom we disagree. There are limits, though, to its protection, and here

those limits were crossed. Whether the event request is viewed alone or together with the second

e mail, a reasonable person would foresee that it would be interpreted as a serious expression of
  -

intention to harm or to kill another person. Thus, sufficient evidence supports the finding that

Locke made a true threat.

B.- - - - -- -
    Threat Jury Instruction    - - --

       As part of his challenge to the sufficiency of the evidence, Locke argues also that the

evidence does not support his making a "threat"as defined by the jury instructions.

       Jury instruction 7 provided:

                Threat means to communicate, directly or indirectly, the intent to take the
       life of, or to inflict bodily harm upon the governor of the state.
                To be a threat, a statement or act must occur in a context or under such
       circumstances where a reasonable person, in the position of the speaker, would
       foresee that the statement or act would be interpreted as a serious expression of
       intention to carry out the threat rather than as something said in jest, idle talk, or
       political argument.


                                                 13
No. 42035 0 II
          - -



Clerk's Papers (CP)at 19.

       This definition of threat"directly included the element of true threat. Even without that,
                          "

the concept of threat"is an inherent element of the notion of true threat."As held above, the
               "                                              "

evidence is sufficient to show that Locke made a true threat. Therefore, it is sufficient to show

he made a threat.


                          II. JURY INSTRUCTIONS AND THE INFORMATION


       Locke contends for the first time on appeal that the trial court's decision is flawed,

because both the " o convict"jury instruction and the information lacked the essential element
                 t

that the threat had to be a "true threat."This argument also fails.

A.     Failure to Preserve Alleged Error


       RAP 2. (
           a)
            5 generally does not allow parties to raise claims for the first time on appeal.

State v. Robinson, 171 Wn. d 292, 304, 253 P. d 84 (2011).RAP 2. (
                         2                  3                 a)(however, allows
                                                               3),
                                                               5

appellants to raise claims for the first time on appeal if such.claims constitute manifest error

affecting a constitutional right.

       A claim of error is of constitutional magnitude under RAP 2. ( - -
                         -                                       a)(
                                                                  3)
                                                                  5 when the claim, if _

correct, implicates a constitutional interest as compared to another form of trial error. State v.

O' ara, 167 Wn. d 91, 98, 217 P. d 756 (2009).An alleged error is manifest if it results in
 H            2                3

actual prejudice; that is,if it had " ractical and identifiable consequences" at trial. State v.
                                    p

Gordon, 172 Wn. d 671, 676, 260 P. d 884 (2011)internal quotation marks omitted) quoting
              2                  3              (                                (

O' ara, 167 Wn. d at 99).
 H            2

       By its nature, this threshold test under RAP 2. can bleed into an analysis of the merits of
                                                     5

the claimed error. See State v. Walsh, 143 Wn. d 1, 8, 17 P. d 591 (2001)in determining
                                             2             3              (


                                                  14
No. 42035 0 II
          - -



whether an error is manifest, we " review[] merits of the claimed constitutional error to
                                 p        the

determine whether the argument is   likely to   succeed ").   Whichever lens is used, our Supreme

Court's recent decision in Allen makes clear that the jury instructions and the information did not

err in their treatment of the notions of threat and true threat. Therefore, Locke cannot meet the

manifest constitutional error exception to RAP 2. (Whether viewed under RAP 2. ( on
                                               a).
                                                5                           a)
                                                                             5 or

the merits, Locke's claims fail.

B.     The Jury Instructions


       Jury instruction 22, the trial court's to convict"instruction, stated in part that:
                                               "

       t] convict the defendant of the crime of threats against the governor or family each of
         o
       the following elements of the crime must be proved beyond a reasonable doubt: ( That
                                                                                        1)
       on January 25, 2011, the defendant, knowingly and willfully, 2)( makes any threat against
       the governor of the state.

CP at 22. The basic concept in this instruction, that of threat," defined in instruction 7 in
                                                         "      was

the following terms:

               To be a threat, a statement or act must occur in a context or under such
       circumstances where a reasonable person, in the position of the speaker, would
       foresee that the statement or act would be interpreted as a serious expression of
       intention to carry out the threat rather than as something -
                                                        -         said in jest, idle talk,or
       political argument.

CP at 19. Instruction 7 was identical to Washington's pattern jury instruction defining " hreat."
                                                                                        t

See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2.4, at
                                                                            2

72 (3d ed. 2008)WPIC).
                (

       In Allen,the defendant was convicted of felony harassment for threatening to kill an

individual. Allen, 176 Wn. d at 614. Among his claims on appeal, Allen argued that the
                         2

constitutional requirement of a "true threat"is an essential element of the crime and, therefore,

must be stated in both the information and the " o convict"jury instruction. Allen, 176 Wn. d at
                                               t                                          2

                                                   15
No. 42035 0 II
          - -



626 27. Because that did not occur, Allen argued, his convictions were flawed. Allen, 176
    -

Wn. d at 626 27.
  2          -


       Our Supreme Court issued a lead opinion by four justices; a concurrence by Chief Justice

Madsen; and a concurrence by Justice Chambers,joined by Justice Fairhurst. After surveying

the case law, the lead opinion held that even though the " o convict"instruction did not
                                                         t

specifically convey the elements of a true threat, those elements were conveyed by the

instruction defining " hreat," term used in the " o convict"instruction. Allen, 176 Wn. d at
                     t       a                  t                                     2

628, 630. The lead opinion distinguished the Court's prior decision in Schaler, 169 Wn. d at
                                                                                      2

287 88,which reversed a felony harassment conviction because the instruction defining " hreat"
    -                                                                                 t

was not limited to true threats. Allen, 169 Wn. d at 628 29. The Allen court also reiterated its
                                              2          -

observation in Schaler that WPIC 2.4 had been amended to include the definition of true
                                  2                                                "


threat," that "` [ ases employing the new instruction defining `threat' will therefore
       and       c]

incorporate   the constitutional   mens rea as   to the result. "'   Allen, 176 Wn. d at 629 (quoting
                                                                                  2

Schaler, 169 Wn. d at 288 n. ). lead opinion in Allen also drew on the Court of Appeals
               2           5 The

decision in State v.Tellez, 141 Wn:App. 479,484,P.
                                                 75 which held that the true - - -- -

threat concept is not an essential element of felony telephone harassment and need not be

included in the " o convict"instruction, as long as the instruction defining " hreat"is limited to
                t                                                            t

true threats. Allen, 176 Wn. d at 630. The Allen lead opinion expressly adopted the holding that
                           2

the true threat requirement is not an essential element of felony harassment and that the

instruction defining `true threat' in this case safeguarded Allen's First Amendment rights."

Allen, 176 Wn. d at 632.
             2




                                                       16
No. 42035 0 II
          - -



         As noted, instruction 22,the " o convict"instruction, stated in part that to convict the
                                      t

defendant it must be proved that he knowingly and willfully made a threat against the Governor.

Instruction 7,which is consistent with the version of WPIC 2.4 approved by Schaler, then
                                                            2

defined " hreat"in the following terms:
        t

                 To be a threat, a statement or act must occur in a context or under such
         circumstances where a reasonable person, in the position of the speaker, would
         foresee that the statement or act would be interpreted as a serious expression of
         intention to carry out the threat rather than as something said in jest, idle talk, or
         political argument.

CP at 19.


         This instruction's language is identical to the passage in the definitional instruction

approved in Allen,except for the addition of the ending reference here to "political argument."
CP at 19. This ending reference, though, is expressly set out in WPIC 2.4 as approved
                                                                       2

alternative language. The constitutional contours of the notion of true threat do not vary between

the crime of felony harassment at issue in Allen and Schaler and the crime of threats against the

Governor at issue here. Thus, under the lead opinion in Allen and under Schaler, the instructions

 ere were not   erroneous-.----- -- -- __ -
C.       The Information


         Locke contends also that the information does not contain all essential elements of the

crime.




         The relevant part of the information stated:




5 We acknowledge that the Allen lead opinion was by a plurality of four justices. However,
Justice Chambers's concurring opinion,joined by Justice Fairhurst, expressly agreed with the
lead opinion that " rue threat"need not be pleaded in the information or included in the " o
                  t                                                                      t
convict"jury instruction. Allen, 176 Wn. d at 634.
                                       2
                                                   17
No. 42035 0 II
          - -



       ROBERT RAY LOCKE ...             did unlawfully, feloniously, knowingly, and willfully
       deposit for conveyance in the mail or for delivery from any post office or by any
       letter carrier a letter, paper, writing,print, missive or document which contained a
       threat to take the life of or to inflict bodily harm upon the governor of the State of
       Washington ... or did knowingly and willfully otherwise make any such threat
       against the governor.

CPat1.


       All essential elements of a crime, statutory or otherwise, must be included in an

information. State v. Kjorsvik, 117 Wn. d 93, 97, 812 P. d 86 (1991).When a defendant
                                      2                2

challenges the sufficiency of the information for the first time on appeal, we liberally construe

the document in favor of its validity. Kjorsvik, 117 Wn. d at 105 06. We consider ( )
                                                       2          -               1 whether

the necessary facts appear in any form, or by fair construction can be found, in the charging

document; and, if so, 2)
                      ( whether the defendant can nonetheless demonstrate actual prejudice

suffered as a result of the imprecise, vague, or ambiguous charging language. Kjorsvik, 117

Wn. d at 105 06. The primary goal of the essential elements rule is to provide constitutionally
  2          -

mandated notice of the charges to the defendant. Kjorsvik, 117 Wn. d at 97, 101. This goal is
                                                                 2

met where a fair, commonsense construction of the charging document " ould reasonably
                                                                    w

apprise an accused of the elements of the crime charged."Kjorsvik, 117 Wn. d at 109. "
                                                                         2           Words

in a charging document are read as a whole, construed according to common sense, and include

facts which are necessarily implied."Kjorsvik, 117 Wn. d at 109.
                                                     2

         In Allen, a majority of the Court would uphold the information against the challenge

that it did not adequately set out the element of a true threat. The lead opinion held that "he true
                                                                                            t

threat requirement is not an essential element of felony harassment."Allen, 176 Wn. d at 632.
                                                                                  2

It also noted that its prior decision in Schaler held that the term " nowingly threaten"satisfies
                                                                    k



                                                 M .
No. 42035 0 II
          - -



the mens rea element as to the result, so long as "threat"is defined consistently with the true

threat standard. Allen, 176 Wn. d at 632 n. l (
                              2           l citing Schaler, 169 Wn. d at 287 88).
                                                                  2          -

         Just like the information upheld in Allen, the information in this matter charged the

defendant with knowingly threatening to injure or kill the victim. Just as in Schaler,the charge

in the information that Locke " nowingly"made a threat implies that he was aware that his
                              k

words or actions frightened or threatened their recipient. Just as in Allen, an express definition of

true threat"was included in the jury instructions. Further, Locke was aware of and relied on the

true threat concept in preparing and presenting his defense at trial. Thus, he cannot demonstrate

any actual prejudice.

       If the information in Allen adequately sets out the notion of threat, so does the

information in this case. Under Allen and Schaler, we must uphold the information.

                                   III. UNANIMITY INSTRUCTION


       Locke argues for the first time on appeal that the trial court erred under Petrich, 101

Wn. d 566, in not instructing the jury that it must be unanimous as to which act or incident
  2

constitutes the charged crime. -
                               This instruction isrequired;Locke argues;because the e

mails and the event requests were separate, multiple acts, any one of which could form the basis

of the charge against him. The State responds that no unanimity instruction was required,

because Locke's crime consisted of a continuous course of conduct. We agree with the State.

       As noted, RAP 2. (
                     a)(allows appellants to raise claims for the first time on appeal if
                      3)
                      5

they constitute manifest error affecting a constitutional right. The failure to provide a required

unanimity instruction is of constitutional magnitude. State v. Bobenhouse, 166 Wn. d 881, 893,
                                                                                 2

214 P. d 907 (2009).The error in failing to do so is manifest if the appellant can demonstrate
     3


                                                 19
No. 42035 0 II
          - -



actual prejudice resulting from it;that is that the error had " ractical and identifiable
                                                              p

consequences"at trial. Gordon, 172 Wn. d at 676 (internal quotation marks omitted)quoting
                                     2                                            (

O' ara, 167 Wn. d at 99).
 H            2

       Each of these requirements demands that the alleged action, in this case the omission of a

unanimity instruction, in fact be in error. The law is plain that where the evidence indicates that

more than one distinct criminal act has been committed, but the defendant is charged with only

one count of criminal conduct, the jury must be unanimous as to which act or incident constitutes

the charged crime. State v. Noltie, 116 Wn. d 831, 842 43,809 P. d 190 (1991);
                                          2            -       2             Petrich, 101

Wn. d at 572. That is,the " ury must be unanimous as to which act or incident constitutes a
  2                       j

particular charged count of criminal conduct."State v. Borsheim, 140 Wn. App. 357, 365, 165

P. d 417 (2007).
 3

       The determination of whether a unanimity instruction is required turns on whether the

prosecution constitutes a "multiple acts case."Bobenhouse, 166 Wn. d at 892 (emphasis
                                                                 2

omitted).A multiple acts prosecution occurs when " everal acts are alleged and any one of them
                                                 s

could the crime charged.` Kitchen, 110 Wn. d 403,411, 756 P. d 105 ( - - -- - --
                        v.               2                 2

Multiple acts tend to be shown by evidence of acts that occur at different times, in different .

places, or against different victims. State v. Love, 80 Wn.App. 357, 361, 908 P. d 395 (1996).
                                                                               2

        Courts must distinguish, though, between one continuous offense and several distinct

acts, each of which could be the basis for the criminal charge. Love, 80 Wn. App. at 361.

A multiple acts unanimity instruction is not required when the State presents evidence of

multiple acts that indicate a "continuing course of conduct."State v. Crane, 116 Wn. d 315,
                                                                                   2

326, 804 P. d 10 (1991);
          2            Love, 80 Wn. App. at 361. " continuing course of conduct requires
                                                 A


                                                  20
No. 42035 0 II
          - -



an ongoing enterprise with a single objective."Love, 80 Wn. App. at 361. To determine

whether multiple acts constitute a continuing course of conduct, we evaluate the facts in a

commonsense manner. Love, 80 Wn. App. at 361.

       Washington courts have found a continuing course of conduct in cases where multiple

acts of the charged crime were committed with a single purpose against one victim in a short

period of time. For example, the Crane court applied the continuing course of conduct exception

to multiple acts of assault against a child victim over a two hour time period, ending in the
                                                              -

child's death. Crane, 116 Wn. d at 330. Similarly, we held in State v. Marko, 107 Wn. App.
                            2

215, 221, 27 P. d 228 (2001), a defendant's statements to two different people over a period
              3             that

of 90 minutes constituted a continuous course of conduct for the crime of intimidating a witness.

       As held above, Locke's event request and the second e mail together constituted the
                                                             -

charged crime of threats against the Governor. Locke sent all three of his communications

within the short span of four minutes. He sent them from the same location, his residence's

computer, to the same location, the Governor's office. Furthermore, all three communications

served the same objective of communicating, at the very least, Locke's desire that the Governor -

or her family be harmed or killed. Accordingly, the facts here demonstrate a continuous course

of conduct, and no multiple acts unanimity instruction was required. Locke fails to demonstrate
a manifest error allowing him to raise his claim for the first time on appeal under RAP 2. (
                                                                                        a).
                                                                                         5

                                IV. MENTAL HEALTH EVALUATION


        Finally, Locke argues that the trial court improperly ordered a mental health evaluation

and recommended treatment as a condition of his sentence without making statutorily-
                                                                                   required


6
  Although not multiple acts for Petrich purposes, Locke's e mails were a " ourse of conduct"of
                                                             -            c
increasingly specific and menacing statements as described in part I.A.above.
                                                 21
No. 42035 0 II
          - -



findings. The State concedes that the trial court improperly imposed this sentence condition.

The trial court did not obtain the pre-
                                      sentence report required by RCW 9. before
                                                                      080
                                                                       94B.

requiring a mental health evaluation. Therefore, we accept the State's concession and we

remand for the trial court to vacate this sentence condition.


       We affirm the conviction, but remand for vacation of the mental health condition.




                                                     Bio EN;J.
I concur: °




       J.




7
 Although by its terms chapter 9. RCW appears to apply only to sentences imposed before
                                  94B
July 1,2000, an uncodified portion of the statute makes clear that the provision also applies "to
all sentences imposed after August 1, 2009, for any crime committed on or after the effective
date of this section. LAWS   of   2008, ch. 231, §55 (referring   to LAWS of   2008, ch. 231, §53,
codified at RCW 9.
                080).
                 94B.

                                                   22
No. 42035 0 II
          - -




                 JOHANSON, A. .dissenting) — It is easy to believe in freedom of speech for
                           J.
                            C       (


those with whom we agree. The First Amendment, however, also protects those with whom we

disagree. Here the majority holds that Locke's second e mail and his event request, when read
                                                        -

together, constitute a true threat to former Governor Christine Gregoire, who served in that

position from 2005 through 2013. I disagree because even when the evidence is viewed in the

light most favorable to the jury's verdict, no rational trier of fact could conclude that Locke's

statements constitute a true threat. Because Locke's statements lack the indicia of true threats


and because his speech was political in nature, the First Amendment protects Locke's statements

and I would reverse.


                    A. Locke's Statements Do Not Bear Indicia of True Threats


       Locke's passive statements lack the indicia of true threats required under Washington

law. 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."State v. Kilburn,

151 Wn. d 36, 43, 84 P. d 1215 (2004)quoting State v. Williams, 144 Wn. d 197, 208 09,26
      2               3               (                               2            -

P. d 890 (2001)).
 3              Because          here Locke challenges the sufficiency of the evidence, we must

determine whether, viewing the evidence most favorably.to the State, any rational trier of fact

could find a true threat. See State v. Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006).Additionally, .
                                                     2              3

since Locke's constitutional right to free speech is implicated, we may examine the entire record,

including    evidence that the trial court did not consider.     Kilburn,    151 Wn. d at 51. We also
                                                                                   2


scrutinize   political speech   more   rigorously   than other types of   speech. See Collier v. City of

Tacoma, 121 Wn. d 737, 746, 854 P. d 1046 (1993) citing Metromedia, Inc. v. City of San
              2                  2               (

                                                      23
No. 42035 0 II
          - -



Diego, 453      U. . 490, 513, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981)).
                 S                                                      Locke's statements,

however, do not convey a serious expression of his intent to harm.

          First, Locke's statement, You should be burned at the stake like any heretic," 5,was
                                    "                                                  Ex.

not a true threat because (1)
                            Locke does not express a serious intent to harm Governor Gregoire,

therefore a reasonable person in his position would not foresee that the statement would be

interpreted as a serious expression of an intent to inflict harm; and (2) statement involved a
                                                                         the

historically political event.

          Locke's e- states his belief that it would be appropriate to burn the governor at the
                   mail

stake because she is a heretic. While offensive, this statement does not convey, either directly or

indirectly, a serious intent to harm Governor Gregoire. A reasonable speaker in Locke's position

would not have expected anyone to interpret this statement as a serious expression of intent to

harm Governor Gregoire because it does not convey that Locke personally intended or planned

to    burn the governor at the stake.        Moreover, the impracticality of accomplishing this threat

underscores its unreasonableness.            Locke has serious political disagreements with former

Governor Gregoire and is with her. It not reasonable; as the majority contends, that he
                  -

should have foreseen that the governor would actually think that he intended to drive a stake into

the    ground   and burn her   on   it.   A reasonable person would not interpret Locke's anger with

former Governor Gregoire, stated distastefully, as a serious intent to personally harm her.

          Furthermore, burning heretics at the stake is a historically political act of persecution,

usually perpetrated against those with beliefs outside the political or religious mainstream. Like

the first e- which the majority held constituted political speech, the e mail calling for the
           mail,                                                         -

heretical Governor     Gregoire     to be burned at the   stake, too, possesses the political   overtones
        No. 42035 0 II
                  - -



        traditionally protected by the First Amendment. See e. .,
                                                             g Grayson v. Schuler, 666 F.d 450, 453
                                                                                        3

        7th Cir. 2012) noting that the First Amendment protects the religious rights of heretics).
                       (

        Because burning heretics at the stake is both impractical and historically symbolic of political

        dissent, based on the entire record in this case, no rational trier of fact could find that Locke's e-

        mail was a true threat.


               Second, Locke's     event   request   was   not   a   true threat.   He invited the governor to

        participate in her own public execution. Locke never issued a threat in the event request. He

        never described any plan or intent to harm Governor Gregoire, or even indicated a desire to

        participate. Furthermore, the outlandishness of the request itself does not convey a serious intent

        to inflict harm.   The event request was just thata request that Governor Gregoire agree to
                                                          —

        participate in her own public executionan outcome no reasonable person would foresee and no
                                               —

        rational trier of fact could conclude establishes a serious expression of intent to harm.

               Finally, the majority argues that the final two communications, taken together, indicate a

        progression to a "more detailed plan" and, therefore, a reasonable person could easily foresee

l- --    a i
        tht; n combination the messages demonstrate a serious intent to harm. Maj orit Y at
                                    g                                  Y


        11. The facts, however, do not support this finding.

               The event request included only four details: the location of the event, its length, who

        should attend, and the "[
                               h] onoree." Ex. at 2. Of these facts, none makes it more likely that, in

        context, Locke had a serious and legitimate plan to kill or do serious bodily harm to Governor

        Gregoire. Nor do any of these details show a progression or escalation from the previous

        message, sent just two minutes prior stating that Governor Gregoire "should be burned at the

        stake like any heretic." Ex. 5. At trial, Governor Gregoire's executive scheduler testified that


                                                           25
No. 42035 0 II
          - -



Locke chose 15 minutes as the anticipated time for his event. She also stated that this was the

website's default choice,         indicating    no   planning   at all.   Locke did not make only default

selections.    But as he stated in his interview with the Washington State Patrol, he was just

flippantly checking        off          again indicating
                                 things,"                       very little   planning. 2 Verbatim Report of

Proceedings at 212. More importantly, the presence of the media, the number of attendees, and

the choice of the governor's mansion as the location for this event do not make the threat more

legitimate or reasonable. If anything, in the context of an online event invitation,the addition of

those details exacerbates the ridiculousness of Locke's request.

          Locke's statements, in fact, are not an escalation or progression established by three

discrete messages but rather,           one   continuous statement. He submitted three communications


through Governor Gregoire's public website in just four minutes; an e mail at 6:9 AM, a second
                                                                      -        0

e mail at 6:1 AM, and the event request at 6:3 AM. It was not possible for him to spend any
  -        1                                1

meaningful amount of time considering and formulating a "more detailed plan" if only two

minutes elapsed between each communication. The majority's reliance on the escalation from

one message to thenext confirms that the messages are, in fact; connected. That the statements - -
                  -

are connected is particularly significant because, as the majority holds and I agree, the first e-

mail   was   political speech     and   political speech   receives   more    strident   protection. Collier, 121

Wn. d at 746.
  2


                                                     B. Case Law


          The majority cites Kilburn for the proposition that indirect statements may constitute true

threats and that the speaker need not intend to carry out the threat in order for it to be a true

threat.   Majority   at                                                                      J half-
                          7, 10. In Kilburn, Kilburn, an eighth grader, told his classmate, K. .,
      No. 42035 0 II
                - -



      smiling, I' going to bring a gun to school tomorrow and shoot everyone and start with you, "'
               "` m

      maybe    not you first. "' 151 Wn. d at 39.
                                       2              They had been talking about books they were

      reading, and Kilburn's book involved the military and guns. Kilburn, 151 Wn. d at 52. Kilburn
                                                                                 2

      had also known K. .for two years and he had always been friendly to her,he joked around with
                      J

      classmates, including K. ., had been laughing when he made the statement, and he did not
                             J he

      scare K. .with the statement because she was not sure if he was joking or not. Kilburn, 151
             J

      Wn. d at 52 53.
        2         -


             Our Supreme Court held that Kilburn's statement did not constitute a true threat because

      Kilburn: ( )
               1 made the statement in the context of the conversation about their books; 2)
                                                                                          ( had an

      amicable past relationship with K. .; (
                                       J 3) laughed when he made the comments; and (4) joked
                                                                                     had

      with K. .and her classmates before. Kilburn, 151 Wn. d at 53. Therefore, the court held that a
            J                                            2

      reasonable person in Kilburn's position would foresee that his comments would not be

      interpreted seriously. Kilburn, 151 Wn. d at 53.
                                            2

             Like in Kilburn, here a reasonable person in Locke's position would not foresee that

j-   Locke's e mails and event request would be interpreted asaserious threat that Locke intended to - - --
               -                                            - -

      harm Governor Gregoire. Locke stated a mere belief that Governor Gregoire was a heretic and

      requested that she agree to participate in her own public execution. Locke did not indicate that

      he would personally carry out these acts, nor did the record demonstrate that he would have the

      means or opportunity to actually force her onto a stake or to coerce her into participating in her

      own execution. Here the context makes it clear that Locke made no true threat. Locke's e-
                                                                                              mail,

      stating his belief that the governor should be burned at the stake like a heretic, and his request

      that she agree to participate in her own execution both lacked an express statement of Locke's


                                                     27
No. 42035 0 II
          - -



serious intent to harm or participate at all. Moreover, the language and context in which Locke

made his statements were not nearly so direct or intentional as Kilburn's.

       The majority also relies on State v. Allen to establish the definition of a true threat. 176

Wn. d 611, 626, 249 P. d 679 (2013). And although Allen applies the same definition as the
  2                  3

Kilburn court, the Allen court's decision is distinguishable from this case factually and legally.

Allen, 176 Wn. d at 626. In Allen, Bryan Allen and another man approached Gerald Kovacs and
             2

offered to sell him marijuana. Allen, 176 Wn. d at 613 14. Kovacs became irritated and gave an
                                            2          -

expletive laden
           -      response.   Allen, 176 Wn. d
                                           2     at 614.   Allen and his colleague cursed back at

Kovacs and began to follow him. Allen, 176 Wn. d at 614. One of the men told Kovacs that
                                             2

I' going to kill you [Kovacs]"
 m                           before lifting up his shirt to display what Kovacs believed was

a gun. Allen, 176 Wn. d at 614. Allen is factually distinguishable because Allen made a threat
                    2

directly to Kovacs and backed up his threat by brandishing a firearm, making the threat more

serious and credible. While any rational trier of fact could find that Allen's actions constituted a

true threat, the same cannot be said about Locke's.Locke, again, never met the governor and his

communications were made by e mail through apublic website and not to her directly. Unlike -
                              -               --

Allen's gun, the second and third messages that Locke sent did not add credibility to the threat;

they were connected to the first message and, if anything, made his threat seem more

improbable. Locke was clear that his anger was based on the effect of former Governor

Gregoire's policies and her conduct in office arguing that she had put "this state in the toilet."

Ex.4. Factually,Allen is clearly distinguishable.

       Additionally, our Supreme Court in Allen did not consider whether a true threat existed

and, thus, Allen offers no guidance on what constitutes a true threat. The issue before the Allen


                                                 28
No. 42035 0 II
          - -



court was "[
           w]hether the `true threat' requirement of an antiharassment statute is an essential

element of the offense that must be pleaded in the information and included in the `to-
                                                                                      convict'

instruction."Allen, 176 Wn. d at 616. The Supreme Court did not analyze whether the facts of
                          2

that case established a true threat or what other factors might be probative in future cases, thus,

Allen does not        guide   us   on   that issue.   Any rational trier of fact would see that Locke's

communications are more like Kilburn, hyperbolic and consistent with the context of his history

with former Governor Gregoire, and not like Allen which dealt with a clear, direct threat of

violence by brandishing a firearm.

           Perhaps the most important distinction between this case and Kilburn and Allen is that

Locke's      speech   was     political.   Political speech, under Washington law, receives " greater

protection over other forms of speech."Collier, 121 Wn. d at 746 (citing Metromedia, Inc.,
                                                      2                                  453

U. . at 513). In Kilburn, an eighth grader told a friend that he was planning to bring a gun to
 S

school. Kilburn, 151 Wn. d at 39. In Allen, the defendant brandished a gun and threatened to
                       2

kill   a   passerby. Allen,        176 Wn. d at 614.
                                         2                Locke's speech, though crude and abusive, is

distinguishable from these cases - that it is undeniably political. -
                                 in                                 His first message stated, -- - -

               Thank
sarcastically, "              you for   putting   this state in the toilet." Ex. 4. Even in the context of


Locke's other messages, this is a political statement: Locke was angry about the direction in

which the governor was leading the state. Here, the majority overemphasizes the tragic shooting

of former Congresswoman Giffords and does not even mention Locke's personal history with

Governor Gregoire's policies in its analysis of relevant context. Majority at 9. His anger and

political dissent are typical responses to that history and should be considered in our analysis.

Contrary to the majority's contention, the fact that Locke's complaint is over the personal impact


                                                          29
       No. 42035 0 II
                 - -



       of former Governor Gregoire's policies does not negate the political nature of his speech and his

       concerns.        Although his chosen mode of expression may be offensive, Locke's anger is, at

       bottom,      over    the   former    governor's performance and policy choices.               Because Locke's


       statements were political in nature, our review of Locke's e mails and event request should, in
                                                                    -

       light of Collier, be more deferential than the scrutiny applied in Allen or in Kilburn.

                 As the United States Supreme Court stated in Watts v. United States, regardless of the

       quality of Locke's speech, it must be viewed "`
                                                     against the background of a profound national

       commitment to the principle that debate on public issues should be uninhibited, robust and

       wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp

       attacks   on     government and public officials. "' 394 U. . 705, 706, 708, 89 S. Ct. 1399, 22 L.Ed.
                                                                 S

       2d 664 (1969)quoting New York Times Co. v. Sullivan, 376 U. .254, 270, 84 S. Ct. 710, 11 L.
                     (                                           S

       Ed. 2d 686 (1964)) (
                        holding that a man who, in protesting the draft, stated, If they ever make
                                                                                 "`

       me   carry   a   rifle the first   man   I want to get in my    sights is L. . did "'
                                                                                 J,
                                                                                  B       not make   a true threat).

                 In United States v. Lincoln, a man incarcerated at the Oregon State Penitentiary wrote

       statements in workbook that threatened the life of President Bush. 403 F.d 703, 704 (9th Cir.
                                                                               3
I -_




       2005). During a follow up interview, Lincoln told a federal agent that he was planning to
                              -

       assemble a team to go to Washington, D. . to kill the president. Lincoln, 403 F.d at 704. No
                                             C                                        3

       charges were filed until six months later when Lincoln attempted to mail a threatening letter to

       the president. Lincoln, 403 F. d at 704. The letter stated, You Will Die too George W Bush
                                    3                              "


       8
           It is important to note that no case law supports the proposition that the response of law
       enforcement is         dispositive   of whether     a   true   threat exists. The Executive Protection Unit is,
       appropriately, designed to be overly cautious in protecting the governor and his or her family.
       When political speech is restricted, however, we must be careful to analyze the speech
       considering the entire context and separate from the response of law enforcement.
                                                                      30
No. 42035 0 II
          - -



real Soon They Promissed [sic] That you would."Lincoln, 403 F. d at 705. The Ninth Circuit
                                                             3

Court of Appeals held, however, that despite his specific plan to attempt an assassination,

Lincoln's letter was not a true threat because it did not "connote anything that it [did] not

literally say,"
              meaning that the letter only included indirect threats that some other entity would

kill the president. Lincoln, 403 F.d at 707.
                                  3

       The Ninth Circuit distinguished Lincoln's case from the true threat in Planned

Parenthood of Columbia/ illamette, Inc. v. Am. Coal. of Life Activists, 290 F.d 1058 (9th Cir.
                      W                                                      3

2002),cent. denied, 539 U. . 958 ( 2003),
                         S              because Lincoln's letter was written directly to

President Bush and because it was an isolated incident. See Lincoln, 403 F.d at 706 07. The
                                                                          3         -

Ninth Circuit found that these factors were important contextual elements because, unlike the

posters in Planned Parenthood that were posted publicly and on the internet, there was no

implication that Lincoln's letter was intended to encourage others to act. Lincoln, 403 F. d at
                                                                                         3
707.


       Like the letter in Lincoln, Locke's messages were for Governor Gregoire and Governor

Gregoire   alone.   The messages - do not incite others -to harm or even tocriticize Governor - -- --
                                                                    --

Gregoire but express Locke's own anger with her leadership. Locke's messages did not include

direct threats of harm and did not indicate any serious plan. Unlike the defendant in Lincoln,

Locke regretted sending the messages and said that he just " eeded the outlet"to vent his anger
                                                           n

and frustration. Ex. 6 at 15.   Moreover, Locke's three communications were sent in a single

four-
    minute period, indicating that there was no legitimate, developed, long term plan like in
                                                                             -

Lincoln.




                                                31
No. 42035 0 II
          - -



         While highly offensive and inappropriate, neither the a mails nor the event request
                                                                 -

conveyed a serious and reasonable expression of intent to actually harm the governor. Not only

do Locke's a mails and the event request lack the indicia of true threats under Washington law,
             -

they   are   clearly political   in nature and   are   thus afforded   more   protection.   And while it is


certainly reasonable that Locke might realize that his word choice was poor, no rational trier of

fact could find, based on the entire record, that Locke's statements were a true threat.

Accordingly, I would reverse because Washington law and the First Amendment protect Locke's

speech.


                                                                   Johanson, A. .
                                                                             J.
                                                                              C




                                                        32
