[No. 58155-4-I. Division One. October 29, 2007.]
[2] Criminal Law — Crimes — Elements — "Threat" — Scope — True Threat. Statutes criminalizing threatening language proscribe only true threats, which are not protected by the First Amendment. [3] Constitutional Law — Freedom of Speech — Threat of Personal Injury — "True Threat" — What Constitutes. A "true threat," which is unprotected by the First Amendment, is a statement made in a context or under such circumstances that 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 individual. [4] Indictment and Information — Sufficiency — Notice of Charge — Essential Elements — Necessity. A charging document must include only the essential elements of the crime charged. An essential element of a crime is one that must be proved to establish the very illegality of the behavior. An element can be essential even though it is not listed in the statute defining the crime. [5] Criminal Law — Trial — Instructions — Formula Instruction — All Elements — Necessity. A "to convict" instruction given in a criminal trial must include only the essential elements of the crime charged. An essential element of a crime is one that must be proved to establish the very illegality of the behavior. An element can be essential even though it is not listed in the statute defining the crime. [6] Constitutional Law — Freedom of Speech — Threat of Personal Injury — "True Threat" — Criminal Prosecution — Instruction — Sufficiency. The nature of a threat as a "true threat" is not an essential element of a threatening-language crime and need not be included either in the information charging the crime or in the "to-convict" instruction given at trial. The constitutional concept of "true threat" merely defines and limits the scope of the essential threat element and is not itself an essential element of the crime. So long as "true threat" is defined for the jury, the defendant's First Amendment rights will be protected. [7] Telecommunications — Telephones — Telephone Harassment — Elements — "True Threat." The nature of a threat as a "true threat" is not an essential element of the crime of felony telephone harassment under RCW 9.61.230(2)(b) and need not be included either in the information charging the crime or in the "to-convict" instruction given at trial. The constitutional concept of "true threat" merely defines and limits the scope of the essential threat element and is not itself an essential element of the crime. So long as "true threat" is defined for the jury, the defendant's First Amendment rights will be protected. Nature of Action: Prosecution for felony telephone harassment based on a threat to kill. Superior Court: The Superior Court for King County, No. 05-1-12117-0, Laura C. Inveen, J., on May 1, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the definitional concept of "true threat" is not a factor that should have been included in the information charging felony telephone harassment or in the "to-convict" instruction given at trial, the court affirms the judgment. Jennifer M. Winkler- (of Nielsen, Broman & Koch, PLLC), for appellant. Daniel T. Satterberg-, Interim Prosecuting Attorney, and Dennis J. McCurdy-, Deputy, for respondent. ¶1 AGID, J. — Emmanuel Tellez challenges his conviction for felony telephone harassment based on a threat to kill. He contends that a true threat is an essential element of his crime and that, because it was not included in the information charging him or the "to convict" instruction, his conviction must be reversed. While we agree that the threat must be a true threat, there is no basis on which to hold that this definitional concept must be included in an information or "to convict" instruction. We affirm. FACTS ¶2 Tellez left a message on his girl friend's answering machine threatening to kill her and her daughter. The State charged him with felony telephone harassment based on a threat to kill. A true threat is a statement made in a context or under such circumstances where a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to carry out the threat. The jury found Tellez guilty of felony telephone harassment based on a threat to kill. Although Tellez did not challenge the information or "to convict" instruction below, he now appeals based on the absence of true threat language in both. DISCUSSION ¶5 The State contends that the constitutional concept of true threat merely defines and limits the scope of the essential threat element in the felony telephone harassment statute and is not itself an essential element of the crime. We agree. In Johnston, the Supreme Court held that, in the context of the bomb threat statute, it is error not to give a limiting instruction defining threat to include only true threats. ¶6 We affirm. COLEMAN and BAKER, JJ., concur.