Opinion
No. 22459-7-III
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-00746-4. Judgment or order under review. Date filed: 09/23/2003. Judge signing: Hon. Tari S. Eitzen.
Counsel for Appellant(s), Phillip James Wetzel, Attorney at Law, 901 N Adams St, Spokane, WA 99201-2050.
Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Office, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Jason Nelson was charged with intimidating a public servant and harassment. The charges arose from an encounter between Mr. Nelson and a Spokane police officer. Mr. Nelson was convicted of intimidating a public servant. On appeal, he asserts that the conviction should be reversed because: (1) there was insufficient evidence to support the conviction; (2) evidence that he was `an officer safety subject' should have been suppressed; and (3) a unanimity instruction was warranted. We affirm Mr. Nelson's conviction.
FACTS
Sergeant Craig Meidl is a City of Spokane police officer. In March 2003, he resided in an apartment complex with his wife and two children. His wife, Officer Tracie Meidl, was on maternity leave.
On March 3, 2003, Sergeant Meidl went home for lunch. After lunch, he returned to his patrol vehicle and exited the parking lot. A vehicle operated by Jason Nelson passed Sergeant Meidl's vehicle. Sergeant Meidl's attention was attracted to Mr. Nelson's vehicle by the sound of its muffler. Sergeant Meidl followed Mr. Nelson's vehicle. At that point, Mr. Nelson pulled into a driveway. Sergeant Meidl pulled over to the side of the road. Sergeant Meidl could hear Mr. Nelson yelling profanities at him. Sergeant Meidl activated the lights on his police vehicle and initiated a traffic stop.
Sergeant Meidl approached Mr. Nelson. On his own initiative, Mr. Nelson exited his vehicle. Using vulgar and profane language, Mr. Nelson continued yelling at the police officer. His behavior and body language were highly aggressive. Ominously, he stated that he knew where Sergeant Meidl lived. Mr. Nelson worked at the apartment complex where Sergeant Meidl lived.
Sergeant Meidl told Mr. Nelson to return to his vehicle several times. Sergeant Meidl was concerned that Mr. Nelson might assault him. Mr. Nelson eventually returned to his vehicle. Sergeant Meidl requested Mr. Nelson's driver's license, registration, and proof of insurance.
Sergeant Meidl returned to his police vehicle to issue a traffic ticket. Because of Mr. Nelson's highly aggressive behavior, the sergeant was apprehensive about his safety. He did not have any backup. Additionally, Sergeant Meidl was concerned about the safety of his family because of Mr. Nelson's statement that he knew where the sergeant lived. For a moment, Sergeant Meidl considered not issuing the traffic citation.
When Sergeant Meidl inserted Mr. Nelson's name into the law enforcement information system, he learned that Mr. Nelson was an `officer safety subject' — a person who has been identified as a potential threat to an officer. The officer safety caution arises from prior contact with law enforcement officers. After receiving the information about Mr. Nelson, Sergeant Meidl decided that it would be unwise to return to Mr. Nelson's vehicle. He was concerned that Mr. Nelson might have a hidden weapon. Consequently, he asked Mr. Nelson to come to the patrol vehicle. At this point, Spokane County Sheriff's Deputy Shawn Hause arrived.
Mr. Nelson got out of his vehicle and approached. He continued yelling and swearing at the officer. Again, he stated he knew where the officer lived. He stated that when `citizens start losing their rights and serial killers start killing the cops,' Sergeant Meidl was going to be one of the `first among the cops to be killed.' Report of Proceedings at 176. Sergeant Meidl issued the traffic citation.
Afterwards, Sergeant Meidl attempted to call his wife. He knew that Mr. Nelson was still in the area and was troubled by Mr. Nelson's statements that Mr. Nelson knew where Sergeant Meidl lived. He was concerned that Mr. Nelson would attempt to do something to his wife, their children, or their apartment.
Mr. Nelson was charged with harassment and intimidating a public servant. The jury acquitted him of harassment and found him guilty of intimidating a public servant. Mr. Nelson appeals.
ANALYSIS
Mr. Nelson asserts that there was insufficient evidence to support his conviction for intimidating a public servant. First, he argues that there was no evidence of a threat. Rather, he argues that his angry statements were just that — expressions of outrage arising from his perception of harassment. Second, he argues that there was no evidence that his statements were designed to influence official action. In other words, he made no attempt to get Sergeant Meidl to refrain from issuing a citation. Sufficiency of the Evidence. When reviewing the sufficiency of the evidence, the test `is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.' State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In a criminal case, `all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.' Id. `A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.' Id.
Intimidating a Public Servant. `A person is guilty of intimidating a public servant if, by use of a threat, he attempts to influence a public servant's vote, opinion, decision, or other official action as a public servant.' RCW 9A.76.180(1). `Threat' means `to communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time.' RCW 9A.76.180(3)(a). Threat also means `to communicate, directly or indirectly the intent . . . [t]o cause bodily injury in the future to the person threatened or to any other person.' RCW 9A.04.110(25)(a); see RCW 9A.76.180(3)(b). A police officer is a public servant. State v. Graham, 130 Wn.2d 711, 717, 927 P.2d 227 (1996) (citing RCW 9A.04.110(22)).
We review the evidence in the light most favorable to the State. After Mr. Nelson was stopped by the police officer, he conducted himself in a highly aggressive manner. Moreover, he made statements to the police officer that could reasonably be interpreted as thinly disguised threats. At trial, Mr. Nelson argued that these statements were simply angry expressions of his opinion but not direct threats. He asked the jury to look at his actual words and recognize that he did not say he intended to immediately use force against the police officer. And he argued that even if he threatened the police officer, he did not ask the police officer to refrain from issuing the citation. In other words, he emphasized the absence of evidence that the threats, if any, were used to influence the officer's decision to issue or not to issue the citation.
The false premise underlying Mr. Nelson's argument is that the statute prohibiting intimidating a public servant, RCW 9A.76.180(1), is violated only by direct or explicit threats. `Threat,' however, is statutorily defined to include language that indirectly communicates an intent to use force against a person. RCW 9A.76.180(3)(a). For instance, a jury could reasonably infer that Mr. Nelson intended to threaten Sergeant Meidl by telling him that Mr. Nelson knew where he lived and he was going to be one of the first cops to be killed. Such an inference would be well supported by the manner in which Mr. Nelson conducted himself when he made the statements. Finally, a jury could infer from Mr. Nelson's conduct and his threats that Mr. Nelson was attempting to influence the officer's decision whether to issue or not to issue the citation.
After reviewing the evidence in the light most favorable to the State, we conclude a rational trier of fact could have found Mr. Nelson guilty of intimidating a public servant.
Officer Safety. Mr. Nelson asserts that the evidence that he was an `officer safety subject' should have been suppressed. He argues the evidence involved pure character evidence and the prejudice outweighed its probative value. A trial court's decision to admit evidence of a defendant's prior bad acts is reviewed under an abuse of discretion standard. State v. Ragin, 94 Wn. App. 407, 411, 972 P.2d 519 (1999). Prior Bad Acts. `Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person or to show that the person acted in conformity with that character . . . but it may be admissible for other purposes.' State v. Barragan, 102 Wn. App. 754, 758, 9 P.3d 942 (2000) (citing ER 404(b)). To admit evidence for such other purposes, `the trial court must determine that the evidence meets two distinct criteria: 1) it is logically relevant to a material issue before the jury; and 2) the probative value of the evidence outweighs its prejudicial effect.' Ragin, 94 Wn. App. at 411.
In this case, the trial court reasoned the `officer safety subject' evidence was relevant to the charge of harassment. A defendant is guilty of harassment if he or she knowingly threatens to cause bodily injury or death to the person threatened.
RCW 9A.46.020(1)(a)(i), (2)(b). The defendant must also place the victim in reasonable fear that the threat will be carried out. RCW 9A.46.020(1)(b). An objective standard is applied to determine whether the victim's fear is reasonable. Ragin, 94 Wn. App. at 411.
Here, the fact that Mr. Nelson was an `officer safety subject' was logically relevant to the issue of whether it was reasonable for Sergeant Meidl to believe that Mr. Nelson would harm him. In exercising its discretion to allow this evidence, the trial court recognized that the evidence was prejudicial to Mr. Nelson. Despite the prejudice, the court decided to admit the evidence because the evidence was necessary for the jury to determine whether Sergeant Meidl reasonably felt threatened by Mr. Nelson's conduct and words. After weighing the probative value of the evidence against its prejudicial effect, the trial court admitted the evidence. In this regard, the trial court did not abuse its discretion. Unanimity Instruction. Mr. Nelson asserts that a unanimity instruction should have been provided because there was insufficient evidence to convict him for intimidating a public servant on alternative theories. He argues that there was no evidence of a threat to use immediate force or to damage property.
A trial court should provide a unanimity instruction when a defendant is charged with multiple acts. State v. Stockmyer, 83 Wn. App. 77, 86, 920 P.2d 1201 (1996) (quoting State v. Crane, 116 Wn.2d 315, 324-26, 804 P.2d 10 (1991)). However, a trial court need not provide a unanimity instruction when the defendant is engaged in a single act constituting a continuing course of conduct, instead of multiple acts. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). To determine if the defendant's action constitutes a continuing course of conduct, the court reviews the facts in a commonsense manner to decide whether the criminal conduct constitutes one continuing act. Id. Evidence that the conduct occurred at different times and places helps establish multiple acts. Id. By contrast, evidence of a series of actions designed for the same objective purpose helps establish a continuing course of conduct. Id. In this case, a unanimity instruction was not required. Mr. Nelson's actions constituted a continuing course of conduct. First, all of the actions occurred at the same time and place. Second, all of the actions related to intimidating Sergeant Meidl. Third, all of the actions related to the same purpose, persuading Sergeant Meidl not to issue a traffic citation. In conclusion, the trial court did not need to provide a unanimity instruction because Mr. Nelson's actions constituted a continuing course of conduct.
We affirm Mr. Nelson's conviction.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and SWEENEY, J., Concur.