                                                                                                                       111EB 25
       IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                         DIVISION II

STATE OF WASHINGTON,                                                                        No. 43709 -1 - II


                                             Respondent,


         V.



JASON CHRISTOPHER SCHEIBEL,                                                         UNPUBLISHED OPINION


                                                  ellant.




           LEE, J. —      A jury found Jason Christopher Scheibel guilty of felony harassment. Scheibel

appeals alleging the jury instruction used in his trial was unconstitutional 'under our Supreme

Court' s    opinion    in State         v.   Mills, 154 Wn.2d 1,            109 P. 3d 415 ( 2005).         The State properly

concedes      that the    jury    instruction      was erroneous.           The   error   was   not   harmless.   Therefore, we


reverse and remand for further proceedings consistent with its opinion.

                                                                  FACTS


           Karen Gunter was involved in an intimate relationship with Scheibel for approximately

eight months,       from early 2011            until   September 2011.         Gunter broke up with Scheibel in the first

week    of    September.          After Gunter ended the relationship, Scheibel sent her numerous text

messages      trying to     get    back together         with     her.     On September 18, Gunter went to work as a


bartender     at   Scooter'   s   Bar    and   Grill.   While Gunter was at work, Scheibel constantly called her

and sent her numerous text messages. At one point, Gunter asked her friend, Lincoln Buchan, to

call   Scheibel     and   tell Scheibel to leave            her   alone.    Later, Scheibel came into the bar but he left


when    Gunter     called   the   police.
No. 43709 -1 - II



         When Buchan called Scheibel, Scheibel called Buchan a punk and threatened to break

him in half. At the time, Buchan believed Scheibel                             was " another   guy just   blowing   off steam."   1


Report   of   Proceedings ( RP)            at   47. After Buchan called Scheibel, Scheibel called Buchan' s cell


phone repeatedly and left him numerous voicemail messages, but Buchan did not immediately

listen to the messages.


         Later, Buchan served Scheibel with an anti- harassment order protecting Gunter. Scheibel

got angry and told Buchan that he was not kidding in the voicemails he left for Buchan. Buchan

decided to listen to the           voicemails.          Scheibel left two voicemails in which he said:


                    How       would you          like   a   little f*cking ( inaudible.)?       You don' t understand,
         dude. ( inaudible)            about     the    car?    I f*cking      swiped   the tires.   I will break you in
         f*cking two, dude.    Don' t ever f*ck with my woman, ever, dude, f*ck with my
         woman.                   with my woman, on every f* cking day.
                         I ( inaudible)                                            Don' t try to
          inaudible) f*cking ( inaudible), you' re a lying sack a shit, dude. I flicked her like
         no man could even know. ( inaudible). So whatever you ( inaudible) you' re doing

         then,    trying      to   get (   inaudible).         You'   re a   dead   man.   You know what, you' re a
         dead man.


                              inaudible)        what    Karen    said.       F *ck the ( inaudible) what you' re going
         to do.            off, dude, I' ll snap you like a piece of (inaudible). ( inaudible) f*ck
                     First .
         your    ( inaudible) out. ( inaudible), you know who I am. Because I will break you

         in f*cking two, little boy. Any time, any place, anywhere. F *ck with (s /1) my ex-
         woman, you           f*ck     with     death. You don' t            even understand,   dude. F * ck, I worked
         hard ( s /1)    on   her. (   s /1) Okay.

2 RP 140 -41.           After listening to the voicemails Buchan became concerned for his safety and

believed Scheibel         was      going to follow through             on    his threats. Scheibel continued to text Buchan.


Sometimes Buchan replied to the text messages. In two different text messages Buchan wrote:

         I   asked      her   and she said yes,             she would        love to marry     me.   Thanks again, you
         punk bitch.




                                                                         2
No. 43709 -1 - II



                            Thanks, freak, for             all   the   insane things   you' ve   done to Karen.    You

         acting like the          punk       chubby     you are.       She told of yesterday, she has been waiting
         for me all her life.


1 RP 70 -71.     Later, at trial, Buchan testified that he sent the text messages to Scheibel in an


attempt to deflect Scheibel' s anger away from Gunter onto him.

         On November 22, 2011, the State charged Scheibel with one count of second degree

malicious mischief, one count of                      felony harassment,       and one count of   third degree theft.'     A two-


day   trial   began        on   June 27, 2012.             Gunter       and   Buchan testified to the    above    facts.    After


testimony, the trial court gave bifurcated jury instructions for the felony harassment charges.

First, the trial court gave the following jury instruction:

                                                              Instruction No. 17


                    To convict the defendant of the crime of harassment, each of the following
         elements of the crime must be proved beyond a reasonable doubt:

                      1)        That        on   or   about   September 19, 2011,         the defendant knowingly
         threatened to cause bodily injury immediately or in the future to Lincoln Douglas
         Buchan;
                      2)        That the words or conduct of the defendant placed Lincoln Douglas
         Buchan in reasonable fear that the threat would be carried out;
                      3)    That the defendant acted without lawful authority; and
                      4) That the threat was made or received in the State of Washington.


                    If you find from the evidence that these have been proved beyond a
         reasonable doubt, then it will be your duty to return a verdict of guilty.

                On the other hand, if, after weighing all of the evidence, you have a
         reasonable doubt as to any one of these elements, then it will be your duty to
         return a verdict of not guilty.


Clerk' s Papers ( CP)            at   80.    The jury was also given a special verdict which read:


  Ultimately, the jury also found Scheibel guilty of second degree malicious mischief and third
degree theft. However, Schiebel does not appeal those convictions.




                                                                         3
No. 43709 -1 - II




           USE THIS           SPECIAL VERDICT FORM ONLY IF YOU FIND                                                     THE
           DEFENDANT              GUILTY             OF   HARASSMENT.                        IF   YOU     FIND          THE
           DEFENDANT NOT GUILTY OF HARASSMENT, DO NOT USE THIS
           SPECIAL VERDICT FORM.


           We, the jury, return a special verdict by answering as follows:

           Did the defendant' s threat to cause bodily harm consist of a threat to kill the
           person threatened or another person?



CP   at   4.   The jury found Scheibel guilty of harassment and answered yes on the special verdict

form.      The trial court sentenced Scheibel to a standard range sentence of 56 months total

confinement. Scheibel appeals.


                                                          ANALYSIS


           Scheibel argues that the trial court erred in giving the bifurcated jury instructions on

felony harassment because these instructions did not require the State to prove beyond a

reasonable      doubt that Buchan            was placed    in   reasonable       fear   of    being   killed   by   Scheibel.     The


State     concedes   the   jury   instructions       were erroneous.        In Mills, 154 Wn.2d at 15, our Supreme


Court held that the        same    bifurcated instructions on            felony   harassment were           erroneous.        Mills is


controlling       and   the    State'   s   concession    is   well- taken.       However, the State argues that the


instructional      error      is harmless       and     does   not     require   reversal.        We disagree.           Here, the


instructional error was not harmless, and Scheibel' s felony harassment conviction must be

reversed.




           This    court presumes             that   an instructional       error       is    prejudicial      unless    the record


affirmatively      shows      that the      error was   harmless. State v. Smith, 131 Wn.2d 258, 263, 930 P. 2d


917 ( 1997). "     In order to hold the error harmless, we must ` conclude beyond a reasonable doubt




                                                                  C!
No. 43709 -1 - II



that the    jury   verdict would          have been the        same absent            the   error. "'   State v. Brown, 147 Wn.2d


330, 341, 58 P. 3d 889 ( 2002) (               quoting Neder. v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827,

144 L. Ed. 2d 35 ( 1999)).                When the jury instruction has omitted or misstated an element of the

crime, the instructional error is harmless if the omitted or misstated element is supported by

uncontroverted evidence. Brown, 147 Wn.2d at 341.


           In Mills, our Supreme Court held that the same felony harassment instruction used here

relieves the State of its burden to prove that the victim was placed in reasonable fear that the

threat to kill        would       be   carried    out.     154 Wn.2d         at       14 -15 ( "   A jury might believe that [ the

defendant] placed the victim in reasonable fear of bodily injury without considering whether [ the

defendant]        placed    the    victim    in   reasonable    fear   of   being killed. ").           The court also held that the


error was not harmless under the facts of that case. Mills, 154 Wn.2d at 15 n.7.

            In Mills, the victim testified that she was afraid of the defendant and that she believed the

defendant      would       carry   out    the threats.     154 Wn.2d        at   5.     However, the victim did not testify that

she was      in   reasonable       fear   of   being   killed. In response to the State' s harmless error argument,


our Supreme Court in Mills stated:


            Although it is clear from the record that [ the defendant] made a threat to kill, we
            cannot say beyond a reasonable doubt that the jury would find the victim was
            placed    in    reasonable         fear   of   being   killed.        Therefore, the error here is not
            harmless.


Mills, 154 Wn.2d at 15 n.7.

            Similarly, here, Buchan testified that he was not immediately afraid of Scheibel' s threats.

Although Buchan also testified that he became afraid that Scheibel would carry out his threat, he

did   not   testify   that he      was    actually    afraid   Scheibel     would           kill him. Further, even after Scheibel




                                                                       E
No. 43709- 1- 11



made the threats, Buchan, on at least two occasions, antagonized Scheibel through text messages.


Like the victim in Mills, there is no evidence Buchan was in reasonable fear that Schiebel would

kill him.


                Here, the facts   are almost   identical to the facts in Mills. We reach the same conclusion


and           hold that the instructional      error   was   not   harmless.   Accordingly, Scheibel' s felony

harassment conviction is reversed, and the case remanded for further proceedings consistent with


this opinion.


                A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.



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