Opinion
No. 37674-1-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Clark County, No. 07-1-00433-5, Roger A. Bennett, J., entered April 18, 2008.
Affirmed by unpublished opinion per QuinnBrintnall, J., concurred in by Houghton and Hunt, JJ.
Unpublished Opinion
Christopher Setzer appeals his conviction for felony telephone harassment, arguing that the to-convict instruction omitted an essential element of the crime and that the State failed to present sufficient evidence to prove that element. Setzer also filed a statement of additional grounds (SAG) under RAP 10.10. Concluding that the to-convict instruction was proper, the State presented sufficient evidence, and Setzer's SAG issues cannot be reviewed in this appeal, we affirm.
A commissioner of this court initially considered Setzer's appeal as a motion on the merits under RAP 18.14 and then transferred it to a panel of judges.
On November 13, 2006, Setzer arrived at Richie's Tire Factory for an appointment to get his Toyota aligned and to have two new tires put on. Service Manager Duane McCollum guided Setzer onto the rack in the service bay. Setzer got out of the vehicle. McCollum, who was holding a Richie's Tire Shop pen, opened the driver's side door, leaned into the truck, pressed a button on the dashboard to get the odometer reading, and wrote down that reading. He did not recall anything been scraped or scratched during the process. As McCollum was starting the lift, Setzer told him he did not have time for the alignment and he just wanted the new tires put on. McCollum complied, lowered the lift, and directed Setzer out of the service bay.
Setzer parked his truck and "storm[ed]" into the office of David Montei, the owner of Richie's Tire Factory. 2 Report of Proceedings (RP) at 73. Setzer wanted the two new tires put in his truck so he could have another shop put them on. Montei asked Setzer what the problem was. Setzer started yelling that McCollum had "messed up his truck" by scraping the Plexiglas on the dashboard with his pen. 2 RP at 74. When Montei refused to put the new tires in Setzer's truck, Setzer replied "you'll do what I tell you to do." 2 RP at 74. Montei then ordered Setzer out of his shop. Setzer parked his truck in the adjoining parking lot and stayed there for about two hours.
The next day, Setzer called Richie's Tire Factory and asked for McCollum. Montei transferred the call to McCollum. Setzer "immediately blew off the handle," telling McCollum that he was going to sue the shop for the damage to his dashboard and for using screwdrivers to scrape the sides of his truck. 2 RP at 37. Setzer was yelling and using profanity throughout the telephone call. According to McCollum, Setzer said that "he was gonna come back and take care of me . . . even if he had to kill me." 2 RP at 39. Setzer hung up and McCollum told Montei that Setzer had threatened to kill him.
Montei notified the police. Officer Macavoy Shipp interviewed McCollum, who appeared to Shipp to be calm but "clearly frazzled by what was said to him." 2 RP at 110. McCollum told Shipp that Setzer had said "[a]fter I take care of you in court I'm going to take care of you personally, even if I have to kill you." 2 RP at 111. McCollum told Officer Shipp that the call made him fear for his life. Shipp then interviewed Setzer, who admitted to being upset when he called McCollum but denied making any threats.
The State charged Setzer with telephone harassment under RCW 9.61.230(2)(b), which makes it a felony for a person "with intent to harass, intimidate, torment or embarrass any other person, [to] make a telephone call to such other person . . . threatening to inflict injury on the person . . . [and] threatening to kill the person threatened or any other person." McCollum, Montei, and Officer Shipp testified as described above. Dean and Tyler Gregory testified that they saw that Setzer's truck had been damaged and they overheard Setzer's telephone call to McCollum. They heard Setzer threaten to sue McCollum but denied that Setzer swore or threatened to kill McCollum.
The trial court gave the jury the following to-convict instruction without objection:
To convict the defendant of the crime of telephone harassment, each of the following elements must be proved beyond a reasonable doubt:
(1) That on or about the 14th day of November, 2006, the defendant made a telephone call to Duane McCollum, and
(2) The defendant made that telephone call with the intent to harass, intimidate or torment Duane McCollum, and
(3) The defendant did in the course of that telephone call threaten to inflict injury on the person of Duane McCollum, and
(4) That the threat made by the defendant included a threat to kill Duane McCollum, and
(5) That the call was received in the State of Washington.
Clerk's Papers at 20.
The jury found Setzer guilty.
First, Setzer argues that the to-convict instruction omitted an essential element of crime in that it did not instruct the jury that the State must prove that he had the intent to threaten to kill McCollum when he made the telephone call. He relies on State v. Lilyblad, 163 Wn.2d 1, 9, 177 P.3d 686 (2008) (quoting RCW 9.61.230(1)), in which the Washington Supreme Court held that in order to commit telephone harassment, the State must prove that the defendant had the "'intent to harass, intimidate, torment or embarrass'" when he placed the telephone call. Setzer contends that in the case of felony telephone harassment, the State had the duty to prove that he had the intent to threaten to kill when he placed the telephone call. And he contends that the absence of this element from the to-convict instruction makes it constitutionally defective.
Challenges to the essential elements in a to-convict instruction may be raised for the first time on appeal. State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005).
But Lilyblad does not require that a defendant charged with felony telephone harassment have the intent to threaten to kill when he places a telephone call. It only addresses the defendant's intent to harass, intimidate, or torment when he places a telephone call. The making of a threat to kill during a telephone call made with the intent to harass, intimidate, or torment someone elevates the crime to felony telephone harassment. RCW 9.61.230(2)(b). But the statute does not appear to require that the defendant have the intent to make that specific threat to kill when he initiates the telephone call. Setzer does not show that the to-convict instruction was constitutionally defective.
Second, Setzer argues that the State failed to present sufficient evidence that he had the intent to threaten to kill McCollum when he placed the telephone call and therefore failed to prove an essential element of the crime. But as addressed above, having the intent to threaten to kill when placing a telephone call is not an essential element of felony telephone harassment. The essential elements are that the defendant made a threat to kill during a telephone call placed with the intent to harass, intimidate, or torment someone. Evidence is sufficient to support a conviction if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the light most favorable to the State. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). An appellant claiming insufficiency of the evidence "'admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.'" Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Taken in the light most favorable to the State, McCollum testified that Setzer called him to intimidate him with the threat of a lawsuit and then threatened to kill him. A rational jury could find that Setzer called McCollum with the intent to intimidate him and then threatened to kill him. Sufficient evidence supports the jury's verdict.
Finally, Setzer claims in his SAG that (1) the court clerk did not draw juror names randomly; (2) his lawyer failed to object when a prospective juror said that a defense witness was a "no good" (SAG at 1); (3) his lawyer did not object when two of the first twelve jurors questioned had appointments at Richie's Tire Factory; (4) his lawyer had another person giving him legal advice; and (5) his lawyer threatened to quit in the middle of the trial. But none of these matters appear in the record before us, therefore we cannot address them. Setzer must raise his claims through a personal restraint petition.
Setzer also contends that the evidence was insufficient, a contention we have addressed above.
We affirm Setzer's conviction.
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, PJ. and HUNT, J., concur.