State v. Warnock

STATE OF WASHINGTON, Respondent, v. APOLLO GENE WARNOCK, Appellant.

No. 37693-1-III

Court of Appeals of Washington, Division 3

October 28, 2021

UNPUBLISHED OPINION

Fearing, J.

Apollo Warnock appeals his conviction for cyberstalking, after a bench trial, on insufficiency of evidence, statutory construction, and constitutional grounds. We affirm his one conviction.

FACTS

This prosecution arises from e-mails sent by Apollo Warnock, then a resident of the Asotin County jail, to his sister, Mica Cato, on April 18, 2020. Warnock had previously assaulted his sister. Recently, however, the two had maintained limited but civil, communications while Warnock sat in jail on burglary charges. Warnock lacked funds for bail.

On March 30, 2020, Apollo Warnock's and Mica Cato's mother died. On the evening of April 18, 2020, Apollo Warnock sent his sister, Mica Cato, five e-mails through the Asotin County jail's monitored e-mail system about inheritance from the mother. We quote the e-mails in their original spelling, punctuation, and grammar.

At 7:13 p.m., Warnock sent the following transmission to Cato:

Subject: fucked up brother

dont get ahead of yourself you think you inherited that property and your wrong. thats my property, you try to take my moms legacy and i promise the results wont be good. you keep fucking running your mouth about my moms stuff and ill fucking murder you over my moms legacy. . . ha ha just kidding. . . not.

Clerk's Papers (CP) at 3-4 (emphasis added) (alteration in original). At 7:40 p.m., Apollo Warnock sent a second e-mail to Mica Cato:

Subject: my house

you think that was a wise move to remove me from the will while my mom was to weak to discuss it. well your wrong, i know what mom wanted and connie isnt an even split connie gets 10% because thats what mom told me, but you should consider something that i can be a best friend or a worst nightmare its up to you how you want to play it because i have no conscience at all when it comes tomy mom. you want to fucking make a friend bail me out you want to make an enemy say you inherited that property one more time. i will fucking take you, josh your kid, my dog right to the gates of heaven with mom

CP at 5-6 (emphasis added).

Mica Cato responded to Apollo Warnock's second e-mail:

Subject: No contact from now on.

I take threats to the safety of me and my family very seriously. Do not contact me again. We are definitely done now. I will not be replying to any more emails, or answering any more calls. I will not live my life in fear of you anymore.

CP at 13-14.

At 7:56 p.m., Apollo Warnock sent his sister a third e-mail, reading:

Subject: boo

i guess ill be seeing you when i get out

CP at 7-8. Two minutes later, Warnock e-mailed Mica Cato a fourth time:

Subject: theft

im going to kill you

CP at 9-10 (emphasis added). At 8:31 p.m., on April 18, 2020, Apollo Warnock sent a fifth and final message to Mica Cato from the jail:

Subject: mistakes

my plan was to get bailed and go right to work to pay off everyone i owe and then pay my moms truck and property and be there for you and live right. now i guess ill be spending the rest of my life behind bars. so I just want to say this. . . i wish i never had you for a sister

CP at 11-12 (alteration in original).

Mica Cato testified, during trial, that she believed Apollo Warnock capable of executing his threat to kill her. Her belief and fear stemmed from Warnock's previous assault on her and his reputation as unpredictable. Because Warnock had friends that lived near Cato, she feared, despite Warnock then residing in jail, that he would task one of the friends with injuring her.

On April 19, 2020, Deputy Ashlee Bremer, Asotin County jail corrections officer, reviewed the five e-mails Apollo Warnock transmitted to Mica Cato. Also on April 19, Cato requested the jail for protection from her brother. Asotin County Sheriff Deputy Joe Snyder spoke with Mica Cato over the phone. According to Deputy Snyder, Cato expressed a belief and fear that Warnock would execute his threat. Cato informed Snyder that Warnock had physically hurt her in the past and that they shared an "up and down" relationship. CP at 1.

PROCEDURE

The State of Washington charged Apollo Warnock with one count each of cyberstalking and harassment arising from threats to kill Mica Cato. The matter proceeded to a bench trial.

During trial, while reviewing printouts of the e-mails that Apollo Warnock sent her, Mica Cato's hands visibly shook. When asked by the prosecutor whether her hands normally shook, Cato responded that they did not.

The trial court acquitted Apollo Warnock of harassment based on a finding that a reasonable person, with the background of Mica Cato, would discount the e-mail as statements uttered in the heat of emotion and without intent to harm. The crime of harassment requires proof of "reasonable fear" in the mind of the recipient of the threat. RCW 9A.46.020(1)(b).

Conversely, the trial court found Apollo Warnock guilty of cyberstalking. The court concluded that Warnock's e-mail to his sister constituted electronic communications made "with the intent to harass, intimidate, or torment" Mica Cato. CP at 20. In so ruling, the court refused to apply the portion of the cyberstalking statute that outlaws communications made with the intent to "embarrass." RCW 9.61.260(1).

For purposes of the charge of cyberstalking, the trial court employed an objective standard from the standpoint of the speaker, not the listener. The accused commits the crime if he should have reasonably expected that the recipient would suffer embarrassment, harassment, intimidation, or torment. The court concluded that a reasonable speaker would foresee that Warnock's statements "would be interpreted as a serious expression of intention to carry out the threat rather than a statement made in jest or mere idle talk." CP at 19-20. The court further found that Warnock intentionally directed threats to kill, which threats placed Cato, albeit unreasonably because of her background, in fear for her life.

LAW AND ANALYSIS

Apollo Warnock challenges his conviction for cyberstalking on four grounds. First, insufficient evidence supports the conviction. Second, the trial court should have employed a subjective standard when determining whether the speaker himself, should have expected that the recipient would deem the threat serious. Third, the cyberstalking statute, RCW 9.61.260, breaches the overbreadth doctrine under the First Amendment to the United States Constitution. Fourth, the statute is void for vagueness under the First and Fourteenth Amendments. We address the challenges in such order.

Sufficiency of Evidence

Apollo Warnock's challenge to the sufficiency of evidence implicates the "true threat" test applied when the State charges one with a crime for his or her speech. Warnock argues that, given his incarceration at the time he sent Mica Cato the five emails, his emotional volatility as a result of his mother's death, and the trial court's finding that his sister lacked a reasonable fear of his supposed threat, the State failed to prove that his statements constituted a "true threat" under Washington's objective standard. We disagree.

RCW 9.61.260 governs cyberstalking. The statute declares in relevant part:

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:

. . . .

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.

When analyzing whether sufficient evidence supports a defendant's conviction, this court views the evidence in the light most favorable to the prosecution and determines whether any rational fact finder could have found the elements of the crime beyond a reasonable doubt. State v Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). Subject to the rules governing First Amendment analysis, we draw all reasonable inferences from the evidence in the State's favor and interpret the evidence most strongly against the defendant. State v. Locke, 175 Wn.App. 779, 788, 307 P.3d 771 (2013).

The true threat doctrine arises from free speech jurisprudence. The First Amendment, applicable to the states through the Fourteenth Amendment, prohibits the government from abridging the freedom of speech. Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); State v. Locke, 175 Wn.App. 779, 789 (2013). Nevertheless, the First Amendment does not extend to unprotected speech. State v. Locke, 175 Wn.App. at 789. If the speaker issues a true threat, the speech falls outside constitutional protection. State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004). True threats are unprotected speech due to "[t]he fear of harm aroused in the person threatened and the disruption that may occur as a result of that fear." State v. Kilburn, 151 Wn.2d at 46.

Washington courts apply an objective test from the viewpoint of the speaker to determine whether speech constitutes a true threat:

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.

State v. Kilburn, 151 Wn.2d 43-44 (alteration in original) (internal quotation mark omitted). On this basis Washington courts hold, along with a majority of other courts, that the First Amendment does not require that the speaker intend to execute a threat for his remarks to constitute a...