[No. 58449-9-I. Division One. December 29, 2008.]
Susan F. Wilk (of Washington Appellate Project), for appellant.
Janice E. Ellis, Prosecuting Attorney, and Thomas M. Curtis, Deputy, for respondent.
Written by: Agid.
Concurred by: Schindler, Ellington.
¶1 AGID, J. -- Edison Alphonse appeals his convictions for felony and misdemeanor telephone harassment. He challenges the sufficiency of the evidence, asserting that RCW 9.61.230 must be construed to require proof that he had the intent to harass, intimidate, torment, or embarrass when he initiated the call. He also contends that the terms "to embarrass," "lewd," "lascivious," "indecent," and "obscene" render the statute unconstitutionally overbroad on its face and vague as applied to his conduct, and that as applied, the statute violated his First Amendment right to lawfully petition a government official for redress of grievances. Finally, he challenges the trial court's order banishing him from the city of Everett as a condition of his sentence.
FACTS
¶2 In March 2004, Everett police officer Matt Meyers investigated a complaint made by Nina Reeves, who reported that Alphonse had been sending her harassing e-mails. Reeves was a married woman, who had a previous relationship with Alphonse and eventually became pregnant. After the relationship ended and Reeves reconciled with her husband, Alphonse contacted Reeves and asserted that he wanted to have a relationship with the child. Reeves told him she did not want him involved with the child, claimed that he was harassing her, and eventually contacted the Everett police.
¶3 Meyers called Alphonse's home in Olympia and spoke with a woman who answered the telephone. He told her that threats had been made from her computer, that Alphonse had been involved with Reeves, and that Alphonse threatened Reeves and her husband, and asked her to tell Alphonse to call him. Alphonse called Meyers back, told Meyers he was unaware of the investigation, and sent a written statement to Meyers, in which he denied threatening Reeves, suggested that her allegations were retaliatory, criticized the police department's handling of the investigation, and stated that he intended to sue. No charges were filed against Alphonse based on Reeve's complaint, and the case was closed. But Reeves did obtain a protection order against Alphonse, with which he complied.
¶4 In November 2005, six months after closing the investigation, Meyers received an e-mail from Alphonse complaining about the investigation and threatening to sue the police department. In December 2005, he left an angry voice mail on Meyers' office phone in which, among other things, he told Meyers, "There was never any Matt Meyers. He never existed." and "You're dead anyway. You're dead any motherfucking way!" He also stated, "I will blow away 40 hundred cops over my kids dog. 40 hundred, let alone one, let alone one by the name of Matt Meyer." On January 11, 2006, Alphonse left two more voice mails in which he described sexual acts he wished to perform with Meyers' wife. ¶5 The State charged Alphonse with one count of felony telephone harassment and one count of misdemeanor telephone harassment. A jury found him guilty of both charges. The trial court sentenced him to a term of four months, ordered that he have no contact with Meyers and his family, and ordered that he "not appear in the city limits of the City of Everett" unless required for "legal or judicial reasons." I. Proof of the Caller's Intent under RCW 9.61.230 [1] ¶6 In our original opinion in this case, State v. Alphonse, ¶7 On October 1, 2008, the Supreme Court granted Alphonse's petition for review and remanded this case to us for reconsideration in light of its Lilyblad decision. We have done so and, while we recognize that the court has rejected the Burkhart rationale on which we relied in our original decision, we affirm Alphonse's conviction on another ground. [2] ¶8 In our original decision, we considered Alphonse's argument that the "to convict" instruction was infirm because it did not require the jury to find that he formed the intent to harass when he made the calls. We rejected that argument on the ground that he requested the instruction on which he based his argument. We held that the invited error doctrine barred his challenge to the instruction. [3] ¶9 In addition, to the extent that Alphonse's challenge to the sufficiency of the evidence can be seen as somehow separate from his legal challenge to the "to convict" instruction, the evidence in this case leaves no doubt about when he formed the intent to harass and threaten Officer Meyers. The tapes of his message begin, continue, and end with his expressions of immense ill will toward Meyers and his expressed intention to harm him and his family. The jury heard those tapes and transcripts of them were in evidence. There is no question that their verdict would have been the same even if the "to convict" instruction had required them to find that Alphonse had formed the intent to harass, intimidate, torment, or embarrass Meyers at the time he made the calls. II. Facial Overbreadth: Intent To Embarrass [4] ¶10 Alphonse next contends that the court's "to convict" instruction was erroneous because it permitted the jury to convict him if the jury found that he made the calls with intent to "embarrass." He argues that because similar language was found unconstitutionally overbroad in City of Seattle v. Huff, III. Lawful Petition To Redress Grievances ¶11 Alphonse argues that prosecuting him for making calls that were a lawful petition to a government official for redress of grievances violated the First Amendment. He contends that the "vague allusions and sexual references" that may have affronted Meyers were not the sole or primary purpose of making the calls. Rather, he argues, he was seeking to lawfully redress his grievances and cannot be prosecuted for doing so. Alternatively, he argues that the trial court was required to instruct the jury that it had to find that the calls were made solely to harass and the failure to do so requires reversal. [5, 6] ¶12 The First Amendment provides aggrieved citizens the right to petition the government for redress and protects a significant amount of verbal criticism and challenge directed at police officers. ¶13 Alphonse asserts that the calls made to Meyers in his official capacity as a police officer and the messages left on his police department voice mail were primarily complaints about Meyers' investigation of Reeves' harassment allegations. He cites parts of the message in which the caller criticized Meyer for informing his wife that he impregnated another woman, voiced frustration that Meyers did not inform him that the investigation was concluded, expressed his belief that the investigation was racially motivated, and claimed that the unfounded investigation prevented him from seeing his son born. Alphonse contends that the fact that these grievances may have been "interspersed" with offensive language does not take them out of the realm of protected speech. [7] ¶14 In support of this contention, he cites to a footnote in State v. Dyson [8, 9] ¶15 Applying the statute here did not violate Alphonse's First Amendment rights. While Alphonse may have been legally voicing disapproval about the way in which Meyers handled the investigation, once he used speech to harass, intimidate, torment, or embarrass Meyers, his conduct became criminal. By threatening to harm and kill Meyers, and by using obscene language and vulgar descriptions of sexual acts he threatened to perform on his wife to demean and humiliate Meyers, he demonstrated a criminal intent to harass, intimidate, torment, and embarrass. Thus, prosecuting him for making such calls did not violate his First Amendment right to petition the government to redress grievances. [10] ¶16 Alternatively, Alphonse argues that we should reverse and remand with instructions that the jury must find that the calls were made solely to harass and that he had a constitutional right to petition the government to redress grievances. ¶17 But the "to convict" instructions here specifically required a finding of criminal intent, including an intent to harass and a true threat to kill. An additional instruction defined "true threat" to exclude those "said in jest, idle talk, or political argument." IV. Overbreadth: Lewd, Lascivious, Indecent, and Obscene Speech [11-13] ¶18 Alphonse argues that the misdemeanor portion of RCW 9.61.230 is unconstitutionally overbroad because the terms "lewd," "lascivious," "indecent," and "obscene" are not statutorily defined and other definitions result in criminalizing protected speech. A statute is void as overbroad if its prohibitions extend beyond protected free speech activities and no means exist by which to sever its unconstitutional applications. ¶19 Alphonse argues these terms are too subjective, and a person could be convicted for making a legitimate complaint to the government if a jury finds that he used lewd, lascivious, indecent, or obscene language because such a complaint may be considered "tormenting" or "harassing." Dyson rejected a similar argument that the statute prohibited legitimate complaints when "swear words" were used because the focus of the statute is on the caller's intent, not the listener's subjective perception. ¶20 To "complain" is not synonymous with to "torment" or "harass," as Alphonse suggests. One may certainly voice a legitimate complaint without resorting to speech that rises to the level of tormenting or harassing the recipient. As we recognized in In re Personal Restraint of Parmelee, one may be "held accountable for the degrading, abusive language [one chooses] to use in the exercise of his right [to voice a grievance]." ¶21 Contrary to Alphonse's contentions, United States v. Popa ¶22 The Popa court's focus was on the statute's inclusion of speech not at issue here. Washington's statute does not include speech that annoys or abuses, and while it does contain an intent to harass, it also requires that such intent be accompanied by either (1) lewd, lascivious, profane, or obscene words; (2) suggestions of lewd or lascivious acts; or (3) threats of injury. ¶23 Alphonse further contends that his suggestion of consensual intercourse with Meyers' wife was "an entirely legal act" and was therefore constitutionally protected speech. But as we held in Dyson, this type of speech, which was made over the telephone with the intent to harass, intimidate, torment, or embarrass the officer is afforded minimal constitutional protection. ¶24 Finally, Alphonse urges us to reconsider Dyson, in light of the Supreme Court's later decision in City of Bellevue v. Lorang. V. Vagueness [14-18] ¶25 Alphonse argues that the misdemeanor portion of the statute proscribing "lewd," "lascivious," "indecent," or "obscene" words is unconstitutionally vague as applied to his conduct because he must guess whether his use of certain words is "indecent," "lewd," or "lascivious." A statute is "'void for vagueness if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.'" ¶26 Determining whether a statute sufficiently defines an offense "does not demand impossible standards of specificity or absolute agreement." ¶27 Alphonse argues that because some of the words he used may be deemed by some to be "indecent," "lewd," or "lascivious," but may be commonly used by others, a person must guess whether using these words would constitute criminal conduct. But common use of these words is not equivalent to ignorance of their offense nature. As discussed above, Alphonse used obscene language here precisely so that he could offend, humiliate, and torment Meyers. The record is also undisputed that he used language "suggesting the commission of any lewd or lascivious act," which is clearly prohibited by the statute. ¶28 Nor has Alphonse demonstrated that the statute poses a danger of arbitrary or selective enforcement. To do so, he must show that the statute invites an inordinate amount of police discretion. VI. Banishment Order [19-21] ¶29 Banishment orders encroach on an individual's constitutional right to travel, which includes the right to travel within a state. ¶30 In State v. Schimelpfenig, the court held that an order banishing a murder convict from Grays Harbor County failed strict scrutiny because the order was not narrowly tailored to serve its stated purpose, which was to prevent the victim's relatives from being reminded of the defendant. ¶31 Applying the factors here, we hold that the trial court's banishment order does not survive strict scrutiny. The restriction is related to protecting the safety of the victim and other police officers Alphonse included in his harassing phones calls, which has been found to be a compelling State interest. ¶32 The most significant of these factors is the availability of less restrictive means to serve the court's stated purpose in issuing the order. Even though the purpose was a compelling State interest, the court did not narrowly tailor the order to serve that interest. ¶33 We affirm the conviction but vacate the banishment order and remand to the trial court to enter an order consistent with this opinion. SCHINDLER, C.J., and ELLINGTON, J., concur.