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(Solved) State v. Ballew, 272 P.3d 925 (Wash. 2012) Court of Appeals of Washington Date Filed: March 26th, 2012 Status: Precedential Citations: 272 P.3d 925,...

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Week 4 Assignment Questions

Applicable cases are located in Course Resources.

1.  Threats to bomb a school or public building are damaging, even if the threat is a hoax. As a result, most states make it a crime to make a bomb threat against a public place or building, even if the person making the threat does not intend to carry out the threat. The mens rea requirement under these statutes is typically “knowingly” making the threat with the intent to cause alarm. Does a call from an inmate at a mental institution to a 911 operator stating bombs have been hidden at an airport violate this statute? See State v. Ballew, 272 P.3d 925 (Wash. App. 2012).

2. What must a defendant do to constitute illegally “bringing” an alien into the United States? Is it enough to give the illegal alien fraudulent documents that are used to get through passport checks? What did the court in United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010) say was required?

State v. Ballew, 272 P.3d 925 (Wash. Ct. App. 2012)
Court of Appeals of Washington
Date Filed: March 26th, 2012
Status: Precedential
Citations: 272 P.3d 925, 167 Wash. App. 359
Docket Number: 65921-9-I
Judges: Cox
Fingerprint: 790cd203f52047a7ba48b54b81dd779710bfd60f
272 P.3d 925 (2012)
167 Wn. App. 359 STATE of Washington, Respondent,
James S. BALLEW, Appellant.
No. 65921-9-I.
Court of Appeals of Washington, Division 1.
March 26, 2012.
*927 Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant.
Ann Marie Summers, King County Prosecutors Office, Seattle, WA, for Respondent. PUBLISHED IN PART
¶ 1 James Ballew appeals his judgment and sentence for threatening to bomb or injure property.
The jury instruction that he challenges correctly stated the law regarding true threats, as required
by the First Amendment. There was no violation of his constitutional right to a unanimous jury
verdict. And there was no prosecutorial misconduct during closing argument. We affirm.
¶ 2 In October 2009, a man, later identified as Ballew, called 911 and asked to speak with Officer
Darin Beam of the Port of Seattle Police. Officer Beam was not on duty, and the dispatcher would not give Ballew Officer Beam's personal phone number. Ballew told the dispatcher that he
would only speak to Officer Beam. Ballew then stated that he had five friends who had placed
bombs in and around the Seattle-Tacoma Airport and hung up.
¶ 3 Authorities traced the call to Harborview Medical Center's psychiatric ward. The dispatcher
also contacted Officer Beam, who identified the caller as Ballew. Several days earlier, Officer
Beam spoke with Ballew at the airport when Ballew attempted to buy an airline ticket with a
promissory note.
¶ 4 Within an hour of Ballew's call, Officer Robert Stecz, who was trained in explosives, arrived
at Harborview where Ballew was involuntarily committed. After gaining Ballew's permission to
speak with him, the officer interviewed Ballew in his room.
¶ 5 The officer asked him whether he had made the 911 call. At first, Ballew denied doing so. He
then claimed he could not remember if he made the phone call.
¶ 6 Eventually, Ballew answered Officer Stecz's questions. He said the explosives hidden at the
airport ranged from the size of a shoebox to a bar of soap. He also said the explosives could not
be detected by electronic devices or trained dogs. He would not say where his friends had placed
the explosives at the airport.
¶ 7 Ballew also told Officer Stecz that he was in the Air Force for 53 years and that he had
"cosmic [security] clearance," which, according to Ballew, was much higher than top secret
clearance. Based on this interview, Officer Stecz determined that Ballew's threat was not
¶ 8 The State charged Ballew with one count of a threat to bomb or injure property based on
RCW 9.61.160. At his jury trial, Ballew did not raise an insanity defense. Moreover, he did not
testify. But he argued, based on his mental health status, that a reasonable person would not have
considered his statements to be true threats. The jury convicted Ballew as charged.
¶ 9 The trial court sentenced Ballew to nine months confinement. With credit for time served, he
was released.
¶ 10 Ballew appeals. JURY INSTRUCTION
¶ 11 For the first time on appeal, Ballew argues that the trial court violated his First Amendment
rights by incorrectly defining "true threat" in the jury instruction. We disagree.
¶ 12 Instructional errors based on legal rulings are reviewed de novo, as are constitutional
questions.[1] We engage in an independent review of the record in First Amendment cases to
ensure that the judgment is not based on a forbidden intrusion on the field of free expression.[2] *928 ¶ 13 The First Amendment, which is applicable to the states through the Fourteenth
Amendment, states that "Congress shall make no law ... abridging the freedom of speech."[3]
While the First Amendment's scope is broad, it does not extend to "unprotected speech."[4]
¶ 14 "True threats" are an unprotected category of speech.[5] "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.'"[6] The State has a significant interest in restricting speech that
communicates a true threat, in order to protect "`individuals from the fear of violence, from the
disruption that fear engenders, and from the possibility that the threatened violence will occur.'"[7]
The speaker of a "true threat" need not actually intend to carry out the threat.[8] Instead, it is
enough that a reasonable speaker would foresee that the threat would be considered serious.[9]
¶ 15 Only "true" threats may be proscribed.[10] "The First Amendment prohibits the State from
criminalizing communications that bear the wording of threats but which are in fact merely
jokes, idle talk, or hyperbole."[11] The supreme court has held that the bomb threat statute, RCW
9.61.160, can only reach "true threats."[12]
¶ 16 Here, the court provided Instruction 8 to the jury:
A person commits the crime of threatening to bomb or injure property when he or she threatens
to bomb or otherwise injure any government property, or any other building or structure, or any
place used for human occupancy, or when he or she communicates or repeats any information
concerning such threatened bombing or injury, knowing such information to be false and with
intent to alarm the person or persons to whom the information is communicated or repeated.
To be a threat, a statement or act must occur in a context or under such circumstances where a
reasonable person would foresee that the statement or act would be interpreted as a serious
expression of intention to carry out the threat.[[13]]
Ballew did not object either to this language or to the absence of additional language that he now
claims should have been included in this instruction. Specifically, Ballew now argues that the
U.S. Supreme Court's decision in Virginia v. Black[14] requires a subjective test when evaluating a
true threat.
¶ 17 In Black, the Supreme Court defined a true threat as a statement "where the speaker means
to communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals."[15] Ballew claims that the jury could have convicted
him for statements protected under Black because the *929 above wording of the court's
instruction only required the jury to apply an objective test.
¶ 18 "An appellate court may refuse to address a claim of error not raised in the trial court unless
it finds a `manifest error affecting a constitutional right.'"[16] An error is "manifest" if it had
practical and identifiable consequences in the case.[17]
¶ 19 Here, the State does not contest Ballew's assertion that the statement of what constitutes a
true threat in this instruction would be a manifest error affecting a constitutional right if it were a misstatement of the law.[18] Rather, the State argues that the language is a correct statement of the
law. We agree with the State.
¶ 20 Washington uses an objective true threat test. In State v. Kilburn,[19] the supreme court stated
that "[w]e have adopted an objective test of what constitutes a `true threat'" based upon how a
reasonable person would foresee the statement would be interpreted.[20] In State v. Johnston,[21]
the supreme court affirmed this rule, explaining that Washington has adopted an objective
standard for determining what constitutes a true threat.[22]
¶ 21 Most recently, in State v. Schaler,[23] the supreme court again defined true threat using an
objective, not a subjective, test. It stated:
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."[[24]]
¶ 22 Here, the true threat instruction properly used an objective test. This is entirely consistent
with the test the supreme court has repeatedly held is controlling.
¶ 23 Moreover, in Schaler, the court expressly noted its approval of Washington Pattern
Instruction Criminal (WPIC) 2.24, as amended in 2008 and on which Instruction 8 is based, as
incorporating "the constitutional mens rea" required to safeguard First Amendment protections.
As Schaler also clarifies, the controlling mens rea is simple negligence, the reasonable person
standard, nothing more.[26]
¶ 24 Ballew correctly argues that the supreme court's statement in Schaler approving the WPIC
2.24 is dicta. But that does not make it wrong.
¶ 25 Kilburn and Schaler are controlling with respect to the use of the objective standard.
Schaler observes that the current version of WPIC 2.24 correctly formulates a jury instruction
meeting that standard. Accordingly, we reject Ballew's challenge to this jury instruction.
¶ 26 At oral argument, Ballew argued that the instruction given was improper because it omitted
the clause "in the position of the speaker," which is included in WPIC 2.24.[27] In Schaler, the
supreme court noted that while the practical difference between a speaker-centric and a hearercentric standard *930 is not meaningful in many cases, such a determination is fact specific.[28]
¶ 27 Here, assuming without deciding that the trial court's failure to include the omitted language
was error, any such error was harmless. The evidence presented at trial showed that Ballew
deliberately called 911. He then threatened to bomb the airport when the dispatcher refused to
release Officer Beam's contact information to him. Then, during his later interview with Officer
Stecz, Ballew again offered to disclose the locations of the bombs, but only to Officer Beam.
Based on this evidence, a reasonable trier of fact could have found that Ballew intentionally
made the threats to alarm the receivers and gain access to Officer Beam. ¶ 28 Ballew argues that Black requires a different result because it requires a subjective test when
evaluating a true threat. We disagree.
¶ 29 In that case, the U.S. Supreme Court considered the constitutionality of a Virginia statute
that criminalized burning a cross with the intent to intimidate.[29] The statute was invalidated on
First Amendment grounds.[30]
¶ 30 Ballew relies on the following excerpt from Justice O'Connor's lead opinion, joined by a
majority of the court, which defined true threat as follows:
"True threats" encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular individual or group
of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition
on true threats protect[s] individuals from the fear of violence and from the disruption that fear
engenders, in addition to protecting people from the possibility that the threatened violence will
occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat,
where a speaker directs a threat to a person or group of persons with the intent of placing the
victim in fear of bodily harm or death.[[31]]
¶ 31 Ballew argues that this language requires a subjective, speaker-based true threat analysis,
rather than an objective test. But, as noted by the Schaler court,[32]Black is distinguishable
because the statute at issue there required the speaker to intimidate the listener, which
necessitates a greater mens rea than simply putting the listener in fear.[33] Here, because the State
was not required to prove that Ballew meant to intimidate the listeners, Black does not support
Ballew's argument.
¶ 32 We also note that the federal circuit courts are split regarding the effect of Black's true threat
definition.[34] We are not *931 bound by these circuit courts,[35] and the U.S. Supreme Court has
not chosen to resolve this conflict within the circuits. Therefore, we continue to follow the law,
as stated by the state supreme court.[36]
¶ 33 Ballew argues that Schaler and State v. Soboroff[37] require reversal. They do not.
¶ 34 In Schaler, the defendant was convicted of harassment for making threats to kill his
neighbors.[38] The threats were made to mental health professionals during a mental health
evaluation.[39] The trial court did not define true threat for the jury.[40] The supreme court reversed
the conviction, holding that the omission of the definition was constitutional error that was not
harmless.[41] Because a correct true threat instruction was given in this case, Schaler does not
support reversal of this conviction. In fact, as we explained earlier in this opinion, Schaler
approves of the WPIC on which the jury instruction given in this case was based.
¶ 35 In Soboroff, the Iowa Supreme Court reversed Soboroff's conviction for threatening to
contaminate the city's water supply because defense counsel did not request a jury instruction
defining true threat.[42] We are not bound by the Iowa Supreme Court. In any event, unlike
Soboroff, Ballew did receive a true threat instruction. ¶ 36 Ballew argues for the first time on appeal that the true threat portion of Instruction 8
violated his First Amendment rights because it failed to inform the jury that idle talk and jokes
are not true threats. He did not object to this omission below.
¶ 37 Whether this claim is a manifest error affecting a constitutional right within RAP 2.5(a) is a
threshold issue. An error is manifest if it had practical and identifiable consequences in the case.
This standard is also referred to as "actual prejudice."[44] As the Supreme Court explained in
State v. O'Hara:[45]
[T]he focus of the actual prejudice [analysis] must be on whether the error is so obvious on the
record that the error warrants appellate review.... Thus, to determine whether an error is practical
and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain
whether, given what the trial court knew at that time, the court could have corrected the error.[[46]]
¶ 38 This analysis is distinct from the harmless error analysis.[47]
¶ 39 Ballew fails to show actual prejudice here. There is no evidence in the record that Ballew's
statements were idle talk or jokes. Although he claims that his involuntary *932 commitment in a
locked hospital psychiatric wing would have permitted a jury to reasonably conclude that his
speech was idle talk or hyperbole, that line of reasoning is unpersuasive. Thus, had this argument
been brought to the attention of the trial court below, the court could have properly declined to
add the additional language to the instruction. In sum, there is no showing of actual prejudice by
the omission of this language.[48] Therefore, we do not address this argument any further.[49]
¶ 40 The balance of this opinion has no precedential value. Accordingly, under RCW 2.06.040, it
shall not be published.
[1] State v. Schaler, 169 Wash.2d 274, 282, 236 P.3d 858 (2010) (citing State v. Grande, 164
Wash.2d 135, 140, 187 P.3d 248 (2008); State v. Brett, 126 Wash.2d 136, 171, 892 P.2d 29
[2] Id. (quoting State v. Kilburn, 151 Wash.2d 36, 49-50, 84 P.3d 1215 (2004) (quoting Bose
Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d
502 (1984))).
[3] Id. at 283, 236 P.3d 858 (quoting Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155
L.Ed.2d 535 (2003)).
[4] Id. (citing Kilburn, 151 Wash.2d at 42-43, 84 P.3d 1215).
[5] Id. (citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215). [6] Id. (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215 (quoting State v. Williams, 144
Wash.2d 197, 208-09, 26 P.3d 890 (2001))).
[7] Id. (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215 (quoting State v. J.M., 144 Wash.2d
472, 478, 28 P.3d 720 (2001))).
[8] Id. (citing Kilburn, 151 Wash.2d at 46, 84 P.3d 1215).
[9] Id.
[10] Id.
[11] Id. (citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215).
[12] Id. at 283-84, 236 P.3d 858 (citing State v. Johnston, 156 Wash.2d 355, 364, 127 P.3d 707
[13] Clerk's Papers at 38 (emphasis added).
[14] 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).
[15] Id. at 359, 123 S.Ct. 1536.
[16] Schaler, 169 Wash.2d at 282, 236 P.3d 858 (quoting RAP 2.5(a)(3)).
[17] Id. at 282-83, 236 P.3d 858.
[18] Brief of Appellant at 20 (citing Schaler, 169 Wash.2d at 282-88, 236 P.3d 858).
[19] 151 Wash.2d 36, 84 P.3d 1215 (2004).
[20] Id. at 43, 84 P.3d 1215.
[21] 156 Wash.2d 355, 127 P.3d 707 (2006).
[22] Id. at 360-61, 127 P.3d 707 (quoting U.S. v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990)
(citing Kilburn, 151 Wash.2d at 43, 84 P.3d 1215)).
[23] 169 Wash.2d 274, 236 P.3d 858 (2010).
[24] Id. at 283, 236 P.3d 858 (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215) (emphasis
[25] Id. at 288 n. 5, 236 P.3d 858.
[26] Id. at 287, 236 P.3d 858. [27] WPIC 2.24("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] [jest, idle talk, or political argument]").
[28] Schaler, 169 Wash.2d at 290 n. 7, 236 P.3d 858 ("While the [difference between the speakercentric and hearer-centric] standards may yield no meaningful difference in many cases, in this
case the difference is not academic").
[29] Black, 538 U.S. at 347-48, 123 S.Ct. 1536.
[30] Id.
[31] Id. at 359-60, 123 S.Ct. 1536 (internal quotation marks and citations omitted) (emphasis
[32] Schaler, 169 Wash.2d at 287 n. 4, 236 P.3d 858.
[33] Black, 538 U.S. at 360, 123 S.Ct. 1536.
[34] See U.S. v. Mabie, 663 F.3d 322, 331-34 (8th Cir.2011) (objective test only); U.S. v. Beale,
620 F.3d 856, 865 (8th Cir.2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1023, 178 L.Ed.2d 847
(2011) (objective test only); U.S. v. Jongewaard, 567 F.3d 336, 339 n. 2 (8th Cir.2009), cert.
denied, ___ U.S. ___, 130 S.Ct. 1502, 176 L.Ed.2d 118 (2010) (objective test only); Riehm v.
Engelking, 538 F.3d 952, 963 (8th Cir.2008) (objective test); U.S. v. Armel, 585 F.3d 182, 185
(4th Cir.2009) (objective test only); U.S. v. Zavrel, 384 F.3d 130, 136 (3d Cir.2004), cert. denied,
544 U.S. 979, 125 S.Ct. 1828, 161 L.Ed.2d 732 (2005) (objective test only); U.S. v. Romo, 413
F.3d 1044, 1051 n. 6 (9th Cir.2005), cert. denied, 547 U.S. 1048, 126 S.Ct. 1638, 164 L.Ed.2d
348 (2006) (subjective test not required). But see Porter v. Ascension Parish Sch. Bd., 393 F.3d
608, 616-17 (5th Cir.2004), cert. denied, 544 U.S. 1062, 125 S.Ct. 2530, 161 L.Ed.2d 1112
(2005) (Black only requires the speaker to knowingly make the statement, not intend it as a
threat); U.S. v. Magleby, 420 F.3d 1136, 1139 (10th Cir. 2005), cert. denied, 547 U.S. 1097, 126
S.Ct. 1879, 164 L.Ed.2d 567 (2006) (subjective test supported by Black, but First Amendment
challenge not reached because the claim was procedurally barred); U.S. v. Parr, 545 F.3d 491,
500 (7th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1984, 173 L.Ed.2d 1083 (2009)
(declining to decide the issue but noting that it is more likely that an entirely objective definition
of true threat is no longer tenable); U.S. v. Cassel, 408 F.3d 622, 631 (9th Cir.2005) (subjective
test required); U.S. v. Stewart, 420 F.3d 1007, 1018 (9th Cir.2005) (an objective test is consistent
with Black, but the statement was a true threat under both tests); Fogel v. Collins, 531 F.3d 824,
831 (9th Cir.2008) (the statement was a true threat under both tests); U.S. v. Bagdasarian, 652
F.3d 1113, 1117 n. 14 (9th Cir.2011) (subjective test required).
[35] Lundborg v. Keystone Shipping Co., 138 Wash.2d 658, 677, 981 P.2d 854 (1999).
[36] 1000 Virginia Ltd. P'ship v. Vertecs Corp., 158 Wash.2d 566, 578, 146 P.3d 423 (2006)
(citing Fondren v. Klickitat County, 79 Wash.App. 850, 856, 905 P.2d 928 (1995) (a Washington Supreme Court decision is binding on all lower courts in the state and the court of appeals errs
when it fails to follow directly controlling authority)).
[37] 798 N.W.2d 1 (Iowa 2011).
[38] Schaler, 169 Wash.2d at 281-82, 236 P.3d 858.
[39] Id. at 289, 236 P.3d 858.
[40] Id. at 290, 236 P.3d 858.
[41] Id.
[42] Soboroff, 798 N.W.2d at 2.
[43] Schaler, 169 Wash.2d at 284, 236 P.3d 858 (citing O'Hara, 167 Wash.2d at 99, 217 P.3d
[44] Id.
[45] 167 Wash.2d 91, 217 P.3d 756 (2009).
[46] Id. at 99-100, 217 P.3d 756 (citation and footnote omitted).
[47] Schaler, 169 Wash.2d at 284, 236 P.3d 858 (citing O'Hara, 167 Wash.2d at 98, 217 P.3d
[48] See RAP 10.3(a)(5) (parties are required to support their arguments with citations to legal
authority and references to relevant parts of the record).
[49] Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992)
(arguments not supported by legal authority or the record need not be considered).


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