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                                                                                       2013 OCT 29       ANI 9: €48
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    IN THE COURT OF APPEALS OF THE STATE OF WASnil'N ky i vlv

                                           DIVISION II

STATE OF WASHINGTON,                                                       No. 43556 -0 -II


                                 Respondent,


       V.




MARK ANTHONY DAVIS,                                                UNPUBLISHED OPINION




       QUINN- BRINTNALL, P. J. —           A jury found Mark Anthony Davis guilty of felony
                                                                                                      instruction
harassment.   Davis   appeals,   arguing that the charging document           and "   to   convict"




were defective because they failed to include " true threat" as an essential element of the crime.

Our Supreme Court recently resolved the " true threat" issue in State v. Allen, 176 Wn.2d 611,

294 P. 3d 679 ( 2013).      Davis also argues that the trial court erred by imposing a term of

community custody.        The State concedes that the trial court erred by imposing a term of

community custody.        We affirm Davis' s conviction, but accept the State' s concession and


remand to strike the community custody provision of Davis' s judgment and sentence.

                                                  FACTS


       On May 13, 2011, at approximately 4: 00 AM, Officer Cory Peyton of the Tacoma Police

Department    contacted   Davis because   of   Davis'   s suspicious   behavior. After     briefly investigating
No. 43556 -0 -II



the situation, Peyton          lawfully        arrested   Davis.'         While Peyton was transporting Davis to the

Pierce    County     Jail,     Davis      made      several , comments,             including     calling    Peyton     a "   fucking

peckerwood"        and   threatening       to kick Peyton'       s"       ass"    when   he   was not   in   uniform.     Report of


Proceedings ( RP)        at   31.    Davis     also said, "   I from [ sic] this hood around here, and now you just


became a marked mother fucker. Next time I see you, you are going to be just like them other

pigs.    You' re going to         get shot."    RP at 32.


          The State charged Davis with felony harassment. The information read,

                   That MARK ANTHONY DAVIS, in the State of Washington, on or about
          the 13th day of May, 2011, without lawful authority, did unlawfully, knowingly,
          threaten Officer Cory Peyton of the Tacoma Police Department to cause bodily
          injury, immediately or in the future, to that person or to any other person, and by
          words or conduct place the person threatened in reasonable fear that the threat
          would be carried out, and that further, the threat was a threat to kill the person
          threatened   or   any other person, thereby invoking the provisions of RCW
          9A.46. 020( 2)( b) and increasing the classification of the crime to a felony,

          contrary to RCW 9A.46. 020( 1)( a)( i)(b) and 9A.46. 020( 2)( b), and the crime was
          aggravated      by      the   following    circumstance:               pursuant to RCW 9. 94A.535( 3)( v),
          the offense was committed against a law enforcement officer who was performing
          his or her official duties at the time of the offense, the offender knew that the
          victim    was       a     law   enforcement         officer,       and the victim' s status as a law
          enforcement officer is not an element of the offense, and against the peace and
          dignity of the State of Washington.

Clerk' s Papers ( CP) at 1.


           At trial, Officer Peyton testified to the facts                       outlined     above.   Peyton also testified that


 Davis' s specific threats to shoot him caused him to be fearful because they were direct threats to

 his life. Peyton was also concerned because he and his family live in the area.

           The " to convict ".instruction read,




 1
   Davis was arrested on two outstanding warrants. However, the trial court suppressed testimony
 that Davis was arrested on the warrants and the parties agreed that Officer Peyton could testify
 that he lawfully arrested Davis.

                                                                      2
No. 43556 -0 -II



                     To convict the defendant of the crime of felony harassment, each of the
          following elements of the crime must be proved beyond a reasonable doubt:
                   1) That on or about May 13, 2011, the defendant knowingly threatened to
          kill Cory Peyton immediately or in the future;
                     2) That the words or conduct of the defendant placed Cory Peyton in
          reasonable fear that the threat to kill 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 each of these elements has 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   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.


CP at 32. In addition, jury instruction number eight read,

                     Threat means to communicate, directly or indirectly, the intent to cause
          bodily injury in the future to the person threatened or to any other person; or to do
          any other act that is intended to harm substantially the person threatened or
          another with respect to that person' s health, safety, business, financial condition,
          or personal relationships[.]

                 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 or idle talk.

CP at 29.


          The   jury    found Davis guilty      of    felony   harassment.     The jury also returned a special

                                                                        law   enforcement officer.   Although the
verdict    finding    that the   crime was committed against a




jury found an aggravating circumstance, the trial court sentenced Davis to a standard range
 sentence of    51   months.     The trial court also imposed legal financial obligations and 12 months of


 community custody. Davis            appeals.
No. 43556 -0 -II


                                                       ANALYSIS


TRUE THREAT


         Davis argues that the information and " to convict" jury instructions are deficient because

             to include " true threat"                                         felony   harassment.    Our Supreme
they fail                                    as    an essential   element of




Court resolved this exact issue in Allen.

         In Allen, the court held that " true threat" is not an essential element that is required to be

included in either the information or the " to convict" jury instruction. Allen, 176 Wn.2d at 630.

A charging document alleging felony harassment is sufficient if it alleges that the defendant

knowingly       threatened the victim.           Allen, 176 Wn.2d at 627 And the jury instructions for felony

harassment are sufficient if the jury instructions contain the definition of true threat. Allen, 176

Wn.2d at 627 -28.


         Here,      the information specifically alleged that Davis knowingly threatened Officer

Peyton. Furthermore, jury instruction number eight contained the definition of threat which was

approved      by   our   Supreme Court in Allen.         Here, both the information and jury instructions were

proper      and    Davis'   s   claim   fails.      Accordingly, we affirm Davis' s conviction for felony

 harassment.


 COMMUNITY CUSTODY


         Davis also argues that the trial court erred by imposing a term of community custody

 because the legislature has            not authorized     community custody for         felony   harassment.    RCW


 9. 94A. 701.      The State concedes that the trial court exceeded its statutory authority by imposing

 community custody for felony harassment.

            The trial    court' s   sentencing authority is statutory.     State v. Paulson, 131 Wn. App. 579,

 588, 128 P. 3d 133 ( 2006).            RCW 9. 94A.701      provides   the authority for the trial    court   to impose
No. 43556 -0 -II



community custody.           The trial court can impose 12 months of community custody for crimes

against persons which are not a serious violent offense or a violent offense under RCW

                   2
9. 94A. 701( 3).        Crimes    against   persons     are   defined in RCW 9. 94A.411( 2).   Crimes against


persons   do   not     include   felony   harassment.    RCW 9. 94A.411( 2).. We affirm Davis' s conviction,


but the trial court exceeded its statutory authority by imposing 12 months of community custody

for a felony harassment conviction and we remand to the trial court for further sentencing in
accord 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.




                                                                    QVINN- BRINTNALL, P. J.




 MAXA, J.




 2 RCW 9. 94A.701( 3) provides,
          A court shall, in addition to the other terms of the sentence, sentence an offender
          to community custody for one year when the court sentences the person to the
          custody of the department for:
                  a) Any crime against persons under RCW 9. 94A.411( 2);
                  b) An offense involving the unlawful possession of a firearm under RCW
          9. 41. 040, where the offender is a criminal street gang member or associate;
                        c) A felony offense under chapter 69. 50 or 69. 52 RCW, committed on or
          after July 1, 2000; or
                   d) A felony violation of RCW 9A.44. 132( 1) ( failure to register) that is the
          offender' s first violation for a felony failure to register.
 RCW 9. 94A. 701( 3)( b) -(d)        clearly do not apply to felony harassment.
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