Opinion
No. 64508-1-I.
Filed: March 14, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-12212-0, Catherine D. Shaffer, J., entered November 23, 2009.
Affirmed in part and remanded with instructions by unpublished opinion per Cox, J., concurred in by Appelwick and Lau, JJ.
Willem Van Heuven appeals his convictions for felony harassment against his father and misdemeanor harassment against his mother following a bench trial. He argues that there was insufficient evidence that he "knowingly" threatened his parents. Van Heuven also argues that the trial court erred in sentencing him to two years of supervised probation on his one year suspended sentence for the misdemeanor count. In his Statement of Additional Grounds, Van Heuven raises additional issues.
Viewing the evidence in the light most favorable to the State, there is sufficient evidence to support both convictions. The court did err in sentencing Van Heuven. There are no other meritorious issues. We affirm the conviction but remand for correction of his judgment and sentence on the misdemeanor harassment conviction.
In 2004 or 2005, Van Heuven's parents noticed that he was having a difficult time paying his bills, getting enough to eat, and grooming himself. In addition, he had begun to accumulate a large number of belongings. In response, Mr. and Mrs. Van Heuven invited their son to move in with them. Van Heuven declined to move into his parent's house, but agreed to move into their unfinished garage apartment.
After Van Heuven moved into the garage apartment, he continued to have difficulty managing his affairs and that he expressed anger and suspicion on an increasing basis. For example, Van Heuven continued to accumulate belongings, erected barricades around the garage and around his car, and expressed the belief that someone was tampering with his car and watching him. Van Heuven also began to exhibit anger and suspicion about the neighbors to the south, who he referred to as the "inbreds." Over time, the group of people that Van Heuven referred to as the "inbreds" grew to include other people as well.
Van Heuven's relationship with his parents became increasingly strained in 2008 due to the fact that they believed that he was suffering from mental illness and did not believe that he was not being watched. Van Heuven expressed anger toward his parents by stating that they did not do anything right, using foul language, and slamming doors, cabinets, and a table. He carried a concealed revolver and wore a sheath knife around his neck on a regular basis.
Both of Van Heuven's parents came to believe that he included them in the group of people that he referred to as the "inbreds." Mrs. Van Heuven testified, "In the beginning, it was just the neighbors, but then he started including us. He kept saying, `If you're not with me, you're against me.' He thought my husband was spying on him." She stated, "I think we were probably included in the same word `inbred' later on because he felt that we were part of his problem."
Mr. Van Heuven also testified that he told them, "If you're not for me, then you're against me." He stated that he had the "impression" that he was "[o]n the side of the inbreds" based on Van Heuven's statement "that if you are not for me, you are against me."
Between October 19 and 22, 2008, Van Heuven's behavior escalated. During the night, on those dates, he had periods where he was screaming threats to kill the "inbreds." The screaming was mostly done outside but within earshot of the house. His father testified that he was yelling at the neighbors, the "inbreds," and people in general. He yelled that he was going "to do in everybody that was around, and how he was going to come and get them. He would take them with him, and he wouldn't be taken alive and a number of specifics were uttered toward our neighbor boy." Van Heuven also yelled at the "inbreds" that "I'm going to rip your heart out through your throat and pull your head down through your ass and put you down."
During this period, Mr. and Mrs. Van Heuven became afraid that Van Heuven would kill them based on his threats against the "inbreds." Mr. Van Heuven testified that "I think the fear overcame us, and we could not really grasp exactly the words specifically, but ongoing rage." On the night of October 22, 2008, Mr. Van Heuven was afraid that his son would kill him. Mrs. Van Heuven was afraid that her son would injure her or forget who she was and kill her. She and her husband stayed in their bedroom for the entire evening and considered calling the police. They did not call the police because they were afraid that it would result in a confrontation.
The next morning, Mr. Van Heuven offered to make Van Heuven breakfast. When Van Heuven stated that he wouldn't accept anything from his father, Mr. Van Heuven became frightened. He left the house and eventually went to the King County Sheriff's Office, where he reported what had happened the previous evening.
Several police officers went to the Van Heuven home and took him into custody. After being placed in the back of a patrol car, Van Heuven asked to see his father. When his father approached, Van Heuven stated, "what do you think I'm going to do to you when I'm out in a couple of days and pumped up on meth."
Van Heuven faced two counts of felony harassment, threat to kill. Following a bench trial, the court convicted Van Heuven of one count of misdemeanor harassment against his mother and one count of felony harassment against his father. The court imposed a one year suspended sentence with two years of community custody for the misdemeanor conviction. The court imposed three days of confinement, twenty-four months of community custody, and a first time offender waiver on the felony harassment conviction. Van Heuven appeals.
HARASSMENT
Van Heuven argues that the State failed to present sufficient evidence that he "knowingly" threatened his parents. We disagree.
The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." We defer to the trier of fact on "issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence."
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Id.
State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
RCW 9A.46.020 provides in relevant part:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens :
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
. . . .
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. "Words or conduct" includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
(2)(a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor.
(b) A person who harasses another is guilty of a class C felony if . . . the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.
(Emphasis added.)
To "knowingly threaten," means that "the defendant must subjectively know that he or she is communicating a threat, and must know that the communication he or she imparts directly or indirectly is a threat of intent to cause bodily injury to the person threatened. " "Knowingly" modifies "threaten" and relates to each part of the applicable definition of threat: communicating the threat and the intent to cause bodily injury.
State v. J.M., 144 Wn.2d 472, 481, 28 P.3d 720 (2001); see also State v. E.J.Y., 113 Wn. App. 940, 952, 55 P.3d 673 (2002).
J.M., 144 Wn.2d at 481-82.
Van Heuven argues that the evidence is insufficient to show that he knowingly threatened his parents. But the evidence is sufficient to show that Van Heuven included his parents in the group he referred to as the "inbreds." Thus, he knowingly threatened each of them. The evidence shows that the "inbreds" initially referred to the neighbors to the south of the Van Heuven home, and specifically a neighbor that Van Heuven referred to as the "fat boy." Van Heuven's parents testified that the "inbreds" became the label that Van Heuven used to refer to anyone who was "against him." And they both testified that he told them that if "you are not for me, you are against me." They believed that he also considered them "inbreds" because he indicated through his words and actions that they were "against him."
Van Heuven argues that his parents' assumptions are not enough to prove that he knowingly threatened to kill or injure them. He points to testimony that he never told them that they were "inbreds" or directly threatened them. He also points to his mother's testimony that she "was afraid that he was going to forget that I was his mother. You know, I just hoped he wouldn't forget that we were his parents and think we are the inbreds." He argues that if his mother believed that he had to "forget" who she was in order for him to think that she was an "inbred," then it does not follow that he knowingly threatened her.
We have not found any case law in Washington that addresses the question raised in this appeal: What level of specificity is needed to prove an alleged victim of harassment is the "person threatened?" The reported cases all involve a threat to a specific person. But nothing in the plain words of the statute prohibits prosecution of an individual who threatens a group where a member of the group is an object of the threat. As such, the member of the group is the "person threatened" under RCW 9A.46.020.
See, e.g., J.M., 144 Wn.2d at 475 ("I'd only kill Mr. Sharper, Mr. Hashiguchi, and Mr. Boyd."); State v. Kilburn, 151 Wn.2d 36, 39-40, 84 P.3d 1215 (2004) (student charged with harassing K.J. after stating to her "I'm going to bring a gun to school tomorrow and shoot everyone and start with you."); State v. Schaler, 145 Wn. App. 628, 633-34, 186 P.3d 1170 (2008) (defendant told mental health evaluator that he wanted to kill his two neighbors); State v. C.G., 150 Wn.2d 604, 607, 80 P.3d 594 (2003) ("I'll kill you Mr. Haney, I'll kill you."); State v. Kiehl, 128 Wn. App. 88, 90, 113 P.3d 528 (2005) (defendant told mental health counselor "this was all Judge Matheson's fault" and "he was going to kill him.").
Here, the evidence is sufficient for a rational trier of fact to conclude that Van Heuven knowingly threatened his parents when he ranted about killing the "inbreds." Van Heuven repeatedly threatened to kill the "inbreds" while his parents were within earshot, after telling his parents that the "inbreds" included anyone who was "against him" and telling them that they were "against him." This is sufficient evidence to prove that Van Heuven knowingly threatened his parents.
Van Heuven also challenges one of the trial court's findings. He argues that substantial evidence does not support the court's finding that "When Mr. Van Heuven approached the defendant the defendant expressed a clear reiteration of his earlier threats to kill when he stated `what do you think I'm going to do to you when I'm out in a couple days and pumped up on meth.'" Van Heuven argues that his father did not testify to this language, but rather stated that Van Heuven said "When I'm released in a couple of days and bumped up with methamphetamine, what do you think I'm going to do to you?" He argues that the court's misstatement of the testimony and omission of the question mark changes the character of his statement. We conclude that, while the court's finding differs slightly from Mr. Van Heuven's trial testimony, it captures the essence of the trial testimony and is supported by substantial evidence.
Van Heuven also argues that the trial court's finding that this statement expressed a clear threat to kill is not supported by substantial evidence. We disagree.
The trial court found that Van Heuven's statement was "a clear reiteration of his earlier threats to kill." As discussed above, this is supported by the evidence in the record. Van Heuven clearly indicated, through both his words and his actions, that he included his parents in the group of people who were "against him." And he communicated that the "inbreds" were all the people who were "against him." This evidence is sufficient to support the conclusion that Van Heuven threatened his parents when he threatened the "inbreds" and that his later statement to his father was a "reiteration" of these earlier threats to kill. The trial court's finding is supported by substantial evidence.
SUSPENDED SENTENCE
Van Heuven argues that the trial court erred in imposing two years of probation on a one year suspended sentence. We agree.
At sentencing on the misdemeanor harassment conviction, the trial court imposed three days of confinement and a one year suspended sentence with 24 months of supervised probation. The court imposed three days of confinement and 24 months of supervised probation on the felony harassment conviction to run concurrently with the sentence on the misdemeanor harassment conviction.
Van Heuven argues that the trial court lacked statutory authority to order 24 months of probation on the misdemeanor harassment conviction. A criminal defendant may challenge an illegal or erroneous sentence for the first time on appeal.
State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).
Misdemeanor harassment is a gross misdemeanor for which the maximum sentence is 365 days in jail or a $5,000 fine, or both. There are essentially two statutory schemes under which a trial court may prescribe a suspended sentence for a defendant convicted of the commission of a crime: (1) RCW 9.92.060-.064, the Suspended Sentence Act, and (2) RCW 9.95.210, the Probation Act.
State v. Monday, 85 Wn.2d 906, 907, 540 P.2d 416 (1975) (citing State v. Davis, 56 Wn.2d 729, 355 P.2d 344 (1960)).
Here, the court imposed the suspended sentence pursuant to the Suspended Sentence Act. That statute provides in relevant part:
Whenever any person is convicted of any crime . . . the superior court may, in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended until otherwise ordered by the superior court, and that the sentenced person be placed under the charge of a community corrections officer employed by the department of corrections, or if the county elects to assume responsibility for the supervision of all superior court misdemeanant probationers a probation officer employed or contracted for by the county, upon such terms as the superior court may determine.
RCW 9.92.064 specifically limits the period for which a sentence may be suspended under RCW 9.92.060:
In the case of a person granted a suspended sentence under the provisions of RCW 9.92.060, the court shall establish a definite termination date for the suspended sentence. The court shall set a date no later than the time the original sentence would have elapsed and may provide for an earlier termination of the suspended sentence. Prior to the entry of an order formally terminating a suspended sentence the court may modify the terms and conditions of the suspension or extend the period of the suspended sentence.
(Emphasis added.)
Under this provision, the period of suspension may not be longer than the sentence actually imposed. Here, because the court imposed a one year suspended sentence, the longest term of probation authorized by the statute is also one year. The trial court's imposition of two years of probation was error.
See 13B Seth A. Fine Douglas J. Ende, Washington Practice: Criminal Law § 4202, at 450 (1998).
The State argues that the sentence is valid because RCW 9.95.210(1) provides for a period of probation up to two years for all misdemeanor convictions. That statute provides:
In granting probation, the superior court may suspend the imposition or the execution of the sentence and may direct that the suspension may continue upon such conditions and for such time as it shall designate, not exceeding the maximum term of sentence or two years, whichever is longer.
The State's reliance on RCW 9.95.210 is unpersuasive. Here, the trial court explicitly sentenced Van Heuven under RCW 9.92.060 and imposed the 24 months of probation as a condition of the suspended sentence. Because RCW 9.92.064 requires the trial court to establish a definite termination date for the suspended sentence not later than the time the original sentence would have elapsed, this was error. Remand for entry of an order with the corrected community custody period is required.
STATEMENT OF ADDITIONAL GROUNDS
Van Heuven raises a number of issues in his statement of additional grounds. We conclude they are without merit.
Several of the issues, such as the allegation that the trial court's failure to consider the findings of a mental health evaluation at sentencing violated Van Heuven's Sixth Amendment right to confrontation, are not supported by the record, were not raised at trial, and are without merit. The allegation that the court violated Van Heuven's First Amendment right to free speech is also not supported by the record, was not raised at trial, and is without merit.
Van Heuven's additional claims are not supported by citation to relevant legal authority or the record. We are therefore unable to review them.
We affirm the convictions, but remand for correction of the judgment and sentence on the misdemeanor harassment conviction consistent with this opinion.