Opinion
No. 36922-2-II.
November 25, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-8-00488-1, Wm. Thomas McPhee, J., entered September 27, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Hunt, JJ.
Michael Joseph Scanlon appeals his adjudication for the offense of threatening to bomb or injure property. Scanlon contends that the charging document omitted an essential element when it failed to state that he made a true threat. We affirm the juvenile court's adjudication of guilt.
FACTS
While residing at Maple Lane School, a juvenile rehabilitation facility, Michael Scanlon told staff members that a bomb had been planted on the school campus. When asked for more details, Scanlon stated that another resident had recently informed him that a bomb was located between the water tower and the steam plant. Scanlon added that the resident's father had brought the bomb to campus during a weekend visit and that the bomb would go off in about 15 hours. School security imposed a lock-down and notified the Thurston County Sheriff's Office.
After searching unsuccessfully for the bomb, law enforcement questioned Scanlon, and he identified the resident who had planted the bomb and told him about it as Ryan Frahm. School officials verified that Scanlon and Frahm could not have had recent contact. Scanlon then asserted that the bomb would go off at a different time and that Frahm had talked to him about it several months ago. After law enforcement again searched the campus and found nothing suspicious, the State charged Scanlon with one count of making a threat to bomb or injure property.
Several school and law enforcement officials testified to the above facts during Scanlon's juvenile court trial. Scanlon testified that a friend named Derek gave him a note about the bomb and that he believed the threat to be real. The juvenile court found Scanlon guilty as charged and imposed a standard range disposition. Scanlon now appeals his adjudication.
ANALYSIS
Scanlon argues that the charging document was defective because it did not include an essential element of the offense; i.e., that he made a true threat.
The bomb threat statute provides in pertinent part as follows:
(1) It shall be unlawful for any person to threaten to bomb or otherwise injure any public or private school building, any place of worship or public assembly, any governmental property, or any other building, common carrier, or structure, or any place used for human occupancy; or to communicate or repeat any information concerning such a threatened bombing or injury, knowing such information to be false and with intent to alarm the person or persons to whom the information is communicated or repeated.
RCW 9.61.160(1). Scanlon's charging document incorporated this language and specified that he conveyed the threat with the intent to alarm Maple Lane School.
All essential elements of an alleged crime, including statutory and court-imposed elements, must be included in the charging document in order to afford the accused notice of the nature of the allegations so that a defense can be properly prepared. State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). An essential element of a crime is one that must be proved to establish the very illegality of the behavior. State v. Johnson, 119 Wn.2d 143, 147, 829 P.2d 1078 (1992).
Scanlon argues that a true threat is an essential element of the crime of threats to bomb or injure property under RCW 9.61.160(1). He bases this argument on State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006). The Johnston court reversed a conviction under RCW 9.61.160 because the trial court refused to give a limiting instruction explaining that the statute criminalizes only true threats. Johnston, 156 Wn.2d at 364. A true threat is a serious threat, not one said in jest, idle talk, or political argument. Johnston, 156 Wn.2d at 361. The bomb threat statute would be unconstitutionally overbroad unless it proscribed only true threats, which are unprotected speech under the First Amendment. Johnston, 156 Wn.2d at 363; State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004). Accordingly, the jury must be instructed that a conviction under the bomb threat statute requires a true threat and also instructed on the meaning of a true threat. Johnston, 156 Wn.2d at 366.
As Division One recently recognized, the Johnston court did not hold that a true threat is an essential element of the crime of threatening to bomb a building. State v. Tellez, 141 Wn. App. 479, 483, 170 P.3d 75 (2007). Nor did the Johnston court require that an information charging a defendant with violating RCW 9.61.160 allege a true threat. Tellez, 141 Wn. App. at 483. The Tellez court further observed that no Washington court has ever held that a true threat is an essential element of any threatening-language crime, and none has reversed a conviction for failure to include language defining what constitutes a true threat in a charging document. Tellez, 141 Wn. App. at 483.
The Johnston court characterized the true threat concept as definitional but not as an essential element of a threatening-language crime. Tellez, 141 Wn. App. at 484 (citing Johnston, 156 Wn.2d at 364). The constitutional concept of true threat merely defines and limits the scope of the essential threat element. Tellez, 141 Wn. App. at 484. Consequently, the true threat concept is not an essential element of felony telephone harassment based on a threat to kill that must be included in the charging document. Tellez, 141 Wn. App. at 484. Nor, as we hold here, is it an essential element of the threat to bomb crime under RCW 9.61.160.
As the juvenile court recognized, the State had to prove four elements to establish Scanlon's guilt: that Scanlon communicated or repeated information concerning a threatened bombing; that Scanlon knew the information was false; that Scanlon acted with intent to alarm the persons to whom the information was communicated; and that the events occurred in Thurston County. The court observed that for the first element to be proved beyond a reasonable doubt, it had to find that Scanlon communicated a true threat, as required by Johnston. The court made such a finding before concluding that the State had proved each element of the charge beyond a reasonable doubt.
Even if we were to conclude that a true threat is an essential element of the bomb threat statute, the charging document contains language supporting that element under the liberal scrutiny standard that applies in this context. When a defendant initially challenges a charging document on appeal, we construe that document liberally. See State v. Goodman, 150 Wn.2d 774, 787, 83 P.3d 410 (2004). Under this standard, we ask whether the necessary facts appear in any form or can be found by fair construction in the charging document, and if so, whether the defendant can show that he was nonetheless actually prejudiced by the inartful language that caused a lack of notice. Goodman, 150 Wn.2d at 788 (citing Kjorsvik, 117 Wn.2d at 105-06).
Whether a true threat has been made is determined under an objective standard that focuses on the speaker. Kilburn, 151 Wn.2d at 44. A true threat is a statement that a reasonable person would foresee being interpreted as a serious expression of an intent to inflict bodily harm. Kilburn, 151 Wn.2d at 43. The language in the information charging Scanlon with making a bomb threat "with intent to alarm the person or persons to whom the information is communicated or repeated, to wit Maple Lane School" was sufficient to put him on notice that the State had to prove that he made a true threat. Clerk's Papers at 3. As the State asserts, if the intent is to alarm other people, a reasonable defendant can be presumed to know that his listener is going to take the threat seriously.
We find further that Scanlon suffered no prejudice from the information's failure to use the phrase "true threat." The record shows that defense counsel provided both the State and the court with a copy of the Johnston opinion before trial. The court discussed whether Johnston applied before the testimony began and it questioned one witness to determine whether Scanlon did indeed make a true threat. During closing argument, defense counsel referred to Johnston and stated that Scanlon believed the threat was true when he communicated it. Under these facts, Scanlon cannot argue that he was prejudiced by the failure of the information to refer explicitly to a true threat.
We affirm the adjudication.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and HUNT, J., concur.