State v. Stanley

STATE OF WASHINGTON, Respondent, v. SLOAN PATRICK STANLEY, Appellant.

No. 74204-3-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

September 5, 2017

UNPUBLISHED OPINION

VERELLEN, C.J. — Following a jury trial, Sloan Stanley was convicted of nine counts of felony cyberstalking. He now appeals, contending that (1) the trial court incorrectly instructed the jury on what constitutes a "true threat," (2) the State presented insufficient evidence that he made true threats to kill as charged in counts six and nine, (3) the cyberstalking statute is unconstitutionally overbroad and vague, in violation of the First Amendment, and (4) the prosecutor committed prejudicial misconduct during closing argument. We affirm the convictions.

FACTS

In 2009, Sloan Stanley began patronizing the Atlantic Crossing Pub in Seattle's Roosevelt district. Elizabeth Williams worked as a bartender at the pub. Friends Alyson Gray, Miriam Much, and Leah Mesford lived in the neighborhood and frequented the pub.

While at the pub, Stanley would make small talk with Gray, Much, and Mesford, but appeared to focus specifically on Gray, which made Gray uncomfortable. Stanley and Gray's relationship were mere acquaintances, and they did not exchange contact information.

In July 2010, Stanley got into an argument with the kitchen manager at the pub and threatened to slit his throat. Williams kicked Stanley out and told him he was permanently banned from the pub. As Stanley was leaving, he threatened to shoot up the pub.

In December 2010, Stanley found Gray's email address on the internet and began emailing her. Gray had since moved out of the neighborhood and no longer patronized the Atlantic Crossing Pub. The emails were initially friendly, and Gray responded courteously. In his emails, Stanley asked Gray about the night of June 10, 2010. Stanley apparently believed there had been some form of encounter between him, Gray, Much, and Williams that night but he could not remember. Stanley's emails quickly became hostile and aggressive. Gray told him not to contact her anymore, but Stanley continued to send Gray emails for months. The emails were "dark" and they "terrified" Gray.¹

Gray told Much about the emails and learned Stanley also had been sending similar emails to Much, questioning her about the night of June 10, 2010. Much initially responded to Stanley's emails, telling him she did not know what he was talking about, but she soon began to delete the emails and did not respond. Like the emails to Gray,Stanley's emails to Much became increasingly hostile and threatening. Much changed her email address, but Stanley began sending her private messages through Facebook.

Despite being banned from the Atlantic Crossing Pub, Stanley tried to enter the pub on April 18, 2011, and the police were called. A week later, on April 25, 2011, Stanley entered the pub and refused to leave. Williams called the police. By the time an officer arrived, Stanley had left. One of Stanley's ex-roommates was at the pub and gave the officer Stanley's telephone number. The officer called Stanley and told him not to return to the pub and not to contact anyone there. Stanley agreed he would not.

In January 2012, after continuing to receive messages from Stanley, Gray and Much contacted the police. An officer reviewed Stanley's messages and suggested the women close their social media accounts, change their email addresses, and get restraining orders against Stanley. Gray and Much changed their contact information but decided against a restraining order so as not to further agitate Stanley.

In June 2012, Much created a new Facebook account and Stanley immediately began using the name "Erwin Jenkins" to send messages. Much did not respond. Like his previous emails, Stanley's messages were aggressive and threatening: "[I] want to kill you people. [I] want to strangle you with my bare hands until you are no longer breathing you fucking whore."² Much was very frightened by the messages, which continued for two more years, until May 2014.

Meanwhile, Stanley also sent messages to Mesford through Facebook. Consistent with the theme of his messages to Gray and Much, Stanley repeatedly asked Mesford what happened that June 2010 night. Stanley's messages werethreatening. Just two weeks into messaging Mesford, Stanley told her, "I'm going to cut the little fucking heart out of your dog and shove it down your throat and make you fucking choke on it. I like all the death in this world. [I] want to see more. I want to see society tremble."³ Stanley sent Mesford hundreds of messages, many describing the horrific ways in which he wanted to kill her.⁴ In the messages, Stanley also mentioned he had stopped by Mesford's place of work and had been to her apartment complex. Mesford eventually quit checking the messages, but later discovered many more from Stanley and realized "they had progressed into more threatening" messages.⁵ Mesford became concerned she had not "realize[d] the severity of the situation."⁶

Stanley also used the name Erwin Jenkins to send Williams harassing and threatening messages on Facebook. Beginning in January 2013, his messages continued for a year and a half and became increasingly aggressive. When Williams discovered the messages, she felt "fearful and threatened."⁷

After previously cancelling her online accounts in 2012 to avoid Stanley, Gray rejoined Facebook in early 2014. Within a couple of weeks, Stanley started using the name Erwin Jenkins to send her vulgar threatening messages. Gray was "terrified."⁸ She blocked him, but he began sending messages to her business accounts.

Between May and August 2014, Stanley sent Gray nearly 50 messages, threatening and harassing her. For example, on June 26, 2014: "[I] want to kill you fucking whores. I can't fight this feeling anymore[. I] will find you and [I] will fucking kill you you fucking worthless fucking whore. . . . I swear to god [I] will fucking kill you."⁹ On August 12, 2014, Stanley wrote her, "[I]'ll find you and put a bullet in your fucking head. . . . [I] will fucking kill you you worthless fucking whore. [I] will fucking find you."¹⁰ And on August 17, 2014, Stanley messaged Gray, "I am ready to hunt you down and fucking kill you. [I] swear to fucking god something bad will happen. . . . I'll send you all to hell."¹¹ In August 2014, Gray called the police again and reported the messages. She obtained a permanent stalking protection order against Stanley.

Detective Rande Christensen spoke to Stanley on the phone in late September 2014. When Detective Christensen told Stanley that Gray, Much, Mesford, and Williams were alleging harassment, Stanley admitted he had been harassing the women for four years and that he used the made-up name Erwin Jenkins. He also admitted he threatened to kill the women. Detective Christensen arranged an in-person interview with Stanley on October 3, 2014. During the recorded interview, Stanley told Detective Christensen that the purpose of his messages was to "break [the women] down" so they would talk to him.¹² He said he threatened the women to "increase their stress" and to "scare" them.¹³ When asked how he would feel if someone made similarthreats to him, Stanley admitted he would be concerned and would report the threats to the police. Detective Christensen arrested Stanley.

The State charged Stanley with nine counts of felony cyberstalking (counts 1 through 3 with Gray as the alleged victim; counts 4 through 6 with Much as the alleged victim; counts 7 and 8 with Mesford as the alleged victim; and count 9 with Williams as the alleged victim). Stanley represented himself at trial. A jury convicted him of all nine counts. The court sentenced Stanley to 25 months in custody and 25 months on community custody.

Stanley appeals.

ANALYSIS

I. Jury Instruction 9

Stanley argues the trial court incorrectly instructed the jury on what constitutes a "true threat." His argument fails.

"True threats" are an unprotected category of speech under the First Amendment.¹⁴ "A true threat is 'a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person.'"¹⁵ "The speaker of a 'true threat' need not actually intend to carry it out."¹⁶ Instead, it is enough that a reasonable speaker would foresee that the threat would be considered serious.¹⁷

Here, the court properly instructed the jury as to this standard in Instruction 9:

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.

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, or political argument.¹⁸

Nevertheless, Stanley argues that the United States Supreme Court's decisions in Virginia v. Black¹⁹ and Elonis v. United States²⁰ require a subjective test when evaluating "true threats" under the First Amendment. But our Supreme Court in State v. Trey M. expressly rejected this exact argument.²¹ Stanley acknowledges this precedent, yet relies on State v. Tyler for the proposition that the Court of Appeals should follow the United States Supreme Court rather than the Washington Supreme Court on issues of federal constitutional law.²²

Stanley misreads the observation in Tyler that when the most recent pronouncement on an issue of federal constitutional law comes from the United StatesSupreme Court, this court applies that analysis rather than a contrary Washington Supreme Court opinion that predates the United States Supreme Court's.²³ Here, the most recent pronouncement is from our Supreme Court. Because "[i]t is...