    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                                           "°
                                                      No. 68652-6-1            £    p^
                    Respondent,
                                                      DIVISION ONE             Zt 7^
             v.

                                                      UNPUBLISHED OPINION           =§£-
WILLIAM NEAL FRANCE,
                                                                               CO   o ^

                    Appellant.                        FILED: June 17, 2013 ~~

      Appelwick, J. — France was convicted of five counts of felony harassment and

one count of witness intimidation for sending threatening voice mails.        The court

imposed an exceptional sentence.      France appeals, claiming that: (1) evidence was

insufficient to sustain the convictions; (2) the charging document was defective; and (3)

the court erred in failing to enter written findings and conclusions justifying an

exceptional sentence. The charging document was not defective, and the court did not

err in its procedure for justifying an exceptional sentence. We accept the State's

concession of error and reverse as to witness intimidation.       We affirm the felony

harassment convictions.


                                         FACTS


      This case involves William France's crimes against two victims: his former public

defender, Anita Paulsen, and Lisa Daugaard, Paulsen's supervisor.

       Paulsen was assigned to represent France in August 2009.           The case was

resolved in a plea agreement. Apparently upset with his representation, France began

leaving voice mail messages for Paulsen in October 2010, threatening to sexually

assault her upon his release.
No. 68652-6-1/2




       Paulsen estimated that she received more than 12 calls from France through

early 2011, threatening sexual assault and physical injury. Daugaard, sent a cease and

desist letter to France. France continued to leave messages for Paulsen. He also left

messages for Daugaard, threatening to sexually assault and physically harm Daugaard

and her family members. Paulsen and Daugaard filed a police report, and France was

charged with multiple counts of felony harassment. On November 10, 2011, the trial

court convicted and sentenced France to 180 months and ordered that he was to have

no contact with the victims.


       Later that day, France left another voice mail for Daugaard. He stated:

              "Hey bitch, you fucked up by coming into the courtroom today.

            "You think for one fucking minute nothing's going to happen to you?
       You worthless mother fucking slut.

              "Give a message to Rita, Anita Paulsen, same thing, eight years,
       you'd betterfind a new job, bitch, you betterfind a new fucking job."[1'
       Paulsen also received additional voice mails.     On November 11, France left a

voice mail stating:

       "Hello honey. Glad to hear your voice. What you did in the courtroom
       was outstanding. That was a marvelous fucking act. I never heard
       [inaudible] in my whole life. I called up [a] friend, I called up a few of my
       friends. I told them about [you]. They'll be paying you a visit. Have a nice
       fucking life, you worthless fucking bitch."121




       1 The record of this call was provided by way of Daugaard's verbatim
transcription. France does not dispute its accuracy.
       2 No written transcript of these calls exists. Defense counsel states that he made
a good faith attempt to transcribe the messages in his brief. The State does not dispute
the accuracy of these transcriptions, and neither does this court.
No. 68652-6-1/3



       On November 17, France left Paulsen another voice mail, stating:

       "Hello Anita. That was spectacular you being in the courtroom. That was
       great. I like that, you was really concerned about my welfare. Just want
       to let you know there's a couple of, that a couple of my buddies are
       coming to see ya. They're gonna take you out for lunch. You know.
       Show you appreciation. Just to let [you] know. It's gonna be okay. I told
       them to take care of ya. [You know] treat you really good."

       Paulsen testified that she interpreted France's words, "'[t]hey're gonna to take

you out for lunch,'" as "meaning to take me out, period." She stated that she perceived

these words as a threat, and she believed that France would recruit other people to hurt

her.


       On December 5, France left the following voice mail for Paulsen:

       "Anita Paulsen, I don't have a phone number for you to call me back. The
       only way I can call you, the only way I can get a hold of you is if I call you.
       But I do want to say one thing. You were spectacular in that courtroom on
       the 10th of this last month. Goddamn you were good. But there's one
       thing I want to do though, I want to put a bullet up your fucking ass."

       [Approximately 40 seconds of silence]

       ". . . But before I do that, I'm gonna lick your pussy. Stick my dick in your
       pussy, then I'm gonna stick a broom up your ass. How you gonna feel
       about that little girl?"

       On December 14, France left the following voice mail for Daugaard:

       "Lisa, this is your favorite fucking person in the whole world. I like how
       you, uh, expressed yourself in the courtroom on the 10th of last month.
       Yeah, I liked that. It's been a fucking month, little lady. It's been a month.
       But see in 10 years, I want you to understand something real fuckin quick,
       I'm still gonna get ya. What you said in the courtroom wasn't called for.
       You come to the courtroom, coming to court, wasn't called for. You
       understand? Now I'm gonna do, I'm gonna do 96 fuckin months because
       of you. All because of you. But when I get out, I'm gonna get you in the
       fuckin elevator. I'm gonna fuck you in your ass, bitch. I'm gonna pull your
       fuckin pants down right in the elevator and I'm gonna let it have it. I'll pin it
       up and in ya, you little slut bitch."
No. 68652-6-1/4




       On December 14, 2011, the State brought new charges against France,

stemming from these postsentencing voice mails. On December 27, France left a voice

mail for Daugaard stating, "Don't come to court girl. Don't come to court." Daugaard

testified that she interpreted this voice mail to mean, "don't cooperate with the new

case, basically."

       The State charged France with three counts of felony harassment of Paulsen,

two counts of felony harassment of Daugaard, and one count of witness intimidation of

Daugaard.

       When it came time to instruct the jury, instruction 6 provided the following

definition for felony harassment:

              A person commits the crime of harassment when he, without lawful
       authority, knowingly threatens maliciously to do any act which is intended
       to substantially harm another person with respect to his or her physical
       health or safety and when he or she by words or conduct places the
       person threatened in reasonable fear that the threat will be carried out.

       The "to convict" instructions for felony harassment required the following

elements to be proved beyond a reasonable doubt:

              (1) That... the defendant knowingly threatened"
                     (a)   maliciously to do any act which was intended to
       substantially harm [the victim] with respect to her physical health or safety;
       and
              (2) That the words or conduct of the defendant placed [the victim] in
       reasonable fear that the threat would be carried out;
              (3) That the defendant acted without lawful authority;
              (4) That the defendant was previously convicted of the crimes of
       felony harassment against [the victim]; and
              (5) That the threat was made or received in the State of
       Washington.
No. 68652-6-1/5




The to convict instruction for witness intimidation required the following elements to be
proven beyond a reasonable doubt:

           (1)That ... the defendant by use of a threat against a current or
        prospective witness attempted to induce that person to absent herself
        from an official proceeding and
           (2) That the acts occurred in the State of Washington.
And, instruction 9 provided the following definition of the term "threat":

              As used in these instructions, threat also means to communicate,
        directly or indirectly, the intent immediately to use force against any
        person who is present at the time.
              To be a threat, a statement or act must occur in a context or under
        such circumstances where a reasonable person would foresee that the
        statement or act would be interpreted as a serious expression of intention
        to carry out the threat.

        A jury found France guilty on all counts.      The court imposed an exceptional

sentence by running counts l-lll consecutive to counts IV-VI, for a total of 120 months.

The judgment and sentence, entered March 23, 2012, stated, "An exceptional sentence

above the standard range is imposed .... Findings of fact and Conclusions of Law are

attached in Appendix D." No Appendix D was attached. On December 13, 2012, the

court issued findings of fact and conclusions of law for an exceptional sentence. France

appeals.

                                       DISCUSSION


   I.   Sufficiency of the Evidence of Felony Harassment

        France contends that insufficient evidence supports his convictions for felony

harassment. His argument centers on the claim that the State failed to prove that, with

each count of harassment, he made a "threat" as defined by instruction 9.
No. 68652-6-1/6




      When we review a challenge to the sufficiency of the evidence, we consider the

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

trier of fact could have found the crime's essential elements beyond a reasonable doubt.

State v. Williams. 137 Wn. App. 736, 743, 154 P.3d 322 (2007). We consider both

circumstantial and direct evidence as equally reliable and defer to the trier of fact on

issues of conflicting testimony, witness credibility, and the persuasiveness of the

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

part on other grounds by Crawford v. Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L

Ed. 2d 177 (2004).    We review jury instructions de novo, within the context of the

instructions taken as a whole. State v. Jackman, 156 Wn.2d 736, 743, 132 P.3d 136

(2006). Jury instructions must inform the jury that the State bears the burden of proof

for every element of the crime beyond a reasonable doubt. State v. Pirtle, 127 Wn.2d

628, 656, 904 P.2d 245 (1995).

      Under the law of case doctrine, jury instructions not objected to become the

applicable law, even if the instructions contain an unnecessary element of the crime.

State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). Thus, if an unnecessary

element is added in the to convict instruction in a criminal case, without objection, the

State assumes the burden of proving the added element.           Jd.   In the event of a

sufficiency of the evidence challenge to a law of case conviction, the sufficiency is

determined with reference to the instructions.     kL at 102-03; Tonkovich v. Dep't. of

Labor & Indus.. 31 Wn.2d 220, 225, 195 P.2d 638 (1948).




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No. 68652-6-1/7




       France assigns no error to the instructions. Instead, he relies exclusively on

Hickman and Tonkovich to argue that, because definitional instruction 9 was admitted

without objection, the law of the case required the State to prove that France made a

threat in accordance with the full text of instruction 9. And, France contends, the State

failed to prove that with each count of felony harassment, he threatened Paulsen or

Daugaard with the immediate use of force against persons present at the time of

making the voice mails. Under this reading, evidence would be insufficient, because

France was in custody when he left the voice mails, and neither victim was present.

       Neither Hickman nor Tonkovich compel that result.             Hickman involved an

unnecessary element added to the to convict instructions, and Tonkovich was a civil

case involving neither to convict instructions nor criminal burdens of proof. Hickman,

135 Wn.2d at 105-06; Tonkovich, 31 Wn.2d at 222-23.           France cites no Washington

authority where the appellate courts have held that, in a criminal case, a definitional

instruction, rather than a to convict instruction, creates an additional element of the

crime. Several decisions by Washington courts refute the premise that a definition may

create an element of the crime. For instance, in State v. Marko, the defendant argued

that the statutory definition of "threat," provided to the jury, created an alternative means

of committing the crime of witness intimidation. 107 Wn. App. 215, 218, 27 P.3d 228

(2001). The court held that the statutory definition was "strictly definitional" and did not

create an additional element of the crime justifying unanimity instruction. kL at 218-20.

Similarly, in State v. Laico, the court held that the definition of "great bodily harm" did
No. 68652-6-1/8




not add elements to first degree assault, "but rather is intended to provide

understanding." 97 Wn. App. 759, 764, 987 P.2d 638 (1999).

       France was charged with two "threat" crimes: felony harassment and witness

intimidation.   Instruction 9 contained two definitions of threat. The first paragraph

states, "As used in these instructions, threat also means to communicate, directly or

indirectly, the intent immediately to use force against any person who is present at the

time." (Emphasis added.) France dismisses the term "also" as used in instruction 9 as

having no effect.    France is incorrect.     This language parrots precisely the model

definitional instruction for threat as applied to witness intimidation.    11A Washington

Practice: Washington Pattern Jury Instructions: Criminal 115.52, at 438 (3d ed.

2008) (WPIC). The notes for 11A WPIC 115.52 explain that the word "also" is to be

used "[i]f this instruction is used with one or more of the definitions of threat contained in

[11] WPIC 2.24[, at 7]." And, 11 WPIC 2.24 contains a definition for threat that was

used in instruction 6 and the to convict instruction.3

       Here, instruction 6 and the to convict instruction, modified the word "threaten,"

with the phrase, "maliciously to do any act which is intended to substantially harm

another person with respect to his or her physical health or safety."           This defined

"threaten" for purposes of the felony harassment charges. But, that definition did not

apply to the witness intimidation charge. The first paragraph of instruction 9 defined



       3The second paragraph of instruction 9 defines "true threat." "True threat" is not
an essential element of the crime to be incorporated in the to-convict instruction. State
v. Allen. 176 Wn.2d 611, 632, 628, 294 P.3d 679 (2013). Rather, it safeguards the
defendant's free speech rights when threat is an element in the to convict instructions.
Id. at 632.



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No. 68652-6-1/9




threat for witness intimidation, but it had no application to felony harassment. It did not

add an element to be proven.

       The State needed to prove, in relevant part, that France knowingly threatened to

maliciously do an act intended to substantially harm the victim's physical health or

safety. France told Daugaard, "You think for one fucking minute nothing's going to

happen to you? . . . Anita Paulsen, same thing, eight years, you'd better find a new job."

He said that in 10 years he's "gonna get" her, and that he's going to sexually assault her

in the elevator. He told Paulsen that he would "put a bullet" in her, sexually assault her,

and anally penetrate her with a broom. He told Paulsen that his friends were going to

pay her a visit. He also stated, "[A] couple of my buddies are coming to see ya. They're

going to take you out for lunch." Paulsen testified that she interpreted these words as a

threat, "meaning to take me out, period." A rational trier of fact could determine that in

leaving these voice mails, France intended to substantially harm Paulsen and Daugaard

with respect to their physical health or safety. We conclude that evidence was sufficient

to support France's felony harassment convictions.

   II. Witness Intimidation Conviction

       France also contends that the evidence was insufficient to support his conviction

for witness intimidation.   Specifically, France argues that the voice mail he left with

Daugaard stating, "Don't come to court, girl. Don't come to court," is insufficient to

establish that he made a threat under RCW9A.72.110(1)(c), as read with instruction 9.

       Consistent with the to convict instruction, under RCW 9A.72.110(1)(c), a person

is guilty of witness intimidation when he (1) uses a threat; (2) against a current or
No. 68652-6-1/10



prospective witness; (3) in attempt to induce that person to absent herself from legal

proceedings for which she was summoned to testify. As we explained, instruction 9

defines "threat" as used in the witness intimidation statute.

       France argues that the State presented insufficient evidence that he intended to

immediately use force against any person who was present at the time that he left

Daugaard the voice mail in which he stated, '"Don't come to court.'" We reiterate that

the law of the case, as set forth in Hickman and Tonkovich, does not compel a

definitional instruction to be accepted as an element in the to convict instructions where

the appellant assigns no error to the to convict instructions.    Nonetheless, the State

concedes error on the grounds that the jurors had to refer to instruction 9 in order to

define threat for the purposes of witness intimidation.          We accept the State's

concession. We reverse and dismiss the witness intimidation charge.

   III. Charging Document

       France next argues that the charging document was constitutionally defective,

because it did not include all essential elements of the crimes charged. Namely, France

contends that because a "true threat" is an essential element of witness intimidation and

felony harassment, it must be included in the charging document. Precedent dictates

otherwise.


       We review challenges to the sufficiency of a charging document de novo. State

v. Williams. 162 Wn.2d 177, 182, 170 P.3d 30 (2007). To be constitutionally adequate,

a charging document must include all essential elements of the crime, both statutory

and nonstatutory. State v. Kiorsvik. 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). To




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No. 68652-6-1/11




avoid unconstitutional infringements upon protected speech, we interpret statutes

criminalizing threatening statements as proscribing only true threats. State v. Kilburn.

151 Wn.2d 36, 43, 84 P.3d 1215 (2004). A "true threat" is a statement that, based on

the context or circumstances, a reasonable person would foresee that the statement

would be interpreted as a serious expression of intent to inflict bodily harm upon or kill

another person. kL

      After the parties submitted their briefs for this case, the Washington Supreme

Court decided State v. Allen. 176 Wn.2d 611, 294 P.3d 679 (2013). It concluded that

the definition of a "true threat" is not an essential element of felony harassment that

must be alleged in the charging document provided the definition is supplied to the jury

a defendant's First Amendment rights are sufficiently safeguarded. Id at 630. Here,

Allen controls. France was charged with felony harassment and witness intimidation.

True threat was not included in the charging document, but the jury was given an

instruction defining true threat in the second paragraph of instruction 9.      Failure to

include the true threat requirement in the charging document does not amount to error.

   IV. Findings of Fact and Conclusions of Law Justifying Exceptional Sentence

       France argues that his case should be remanded for entry of findings of fact and

conclusions of law regarding exceptional sentence, because this document was not

attached to the judgment entered on March 23, 2012. Whenever a trial court imposes

an exceptional sentence, the court must explain the reasons for its decision in written

findings of fact and conclusions of law. RCW 9.94A.535.




                                               11
No. 68652-6-1/12




      Tardy findings were entered on December 13, 2012. Findings and conclusions

may be submitted and entered while an appeal is pending if there is no prejudice to the

defendant and no indication that the findings and conclusions were tailored to meet the

issues presented on appeal. State v. Quincv. 122 Wn. App. 395, 398, 95 P.3d 353

(2004).

      The trial court's December 13 findings satisfy RCW 9.94A.535. France does not

argue that he was prejudiced by delay, and we discern no actual prejudice from the

record or the briefs.   And, no evidence indicates that the findings were tailored in

response to France's arguments on appeal. Rather, the findings essentially repeat the

Judge's oral ruling at sentencing.     The written findings did not deviate from, nor

substantively add to, the terms articulated at oral ruling. No remand is necessary.

      We affirm.




WE CONCUR:




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