* State of Washington v. D.R.C.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
D.R.C.,
Appellant.
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)
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)
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)
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No. 36821-1-III
PUBLISHED OPINION
PENNELL, C.J. — The State is prohibited from penalizing constitutionally protected
speech. But not all speech is protected. When it comes to the crime of harassment, speech is
not protected if it constitutes a true threat, as opposed to mere bluster or hyperbole. The test
for a true threat is objective, though not abstract. The State must show a reasonable person in
the defendant’s position would have foreseen the speech would be perceived as a true threat
by the individuals in the defendant’s intended audience.
FILED
JULY 14, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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No. 36821-1-III
State v. D.R.C.
2
Here, D.R.C. sent a series of text messages to her friends, indicating she wanted to kill
her mother. The texts were sent in the midst of a mother-daughter fight. They were vaguely
worded and peppered with smiling emojis and the initialism “LOL.”1 There is no indication
D.R.C. ever meant for her mother to see the texts or that D.R.C. ever threatened her mother
directly. Given these circumstances, the State has not met its burden of proving a true threat.
The record shows nothing more than odious expressions of frustration. D.R.C.’s guilty
adjudication and disposition is therefore reversed.
BACKGROUND
The case against 17-year-old D.R.C. began with a mother-daughter dispute over
whether D.R.C. violated house rules by possessing gang-colored clothing. The argument
took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut.
D.R.C.’s mother responded by removing the door from its hinges.
During the argument with her mother, D.R.C. was on her phone and texting
with several friends. The primary correspondent was an individual identified as “Joshua.”
The message thread between D.R.C. and Joshua read as follows:
JOSHUA
How was school
1 Laugh out loud.
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No. 36821-1-III
State v. D.R.C.
3
[D.R.C]
My mom took my fucking shit and she
fucking took my door off
She’s a dumb fucking cunt
JOSHUA
Hahahah no door !’
Damn guess u can’t masterbate
[D.R.C.]
Imma fucking do whatever tf [2] I want she’s
fucking stupid
JOSHUA
Haha beat her ass
[D.R.C.]
Bet imma get her killed if anything
JOSHUA
Woh chill just beat her ass that’s it lol
[D.R.C.]
Nah
I hope she does
Does
JOSHUA
Damn too wild you are
2 The fuck.
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No. 36821-1-III
State v. D.R.C.
4
[D.R.C.]
I’m running away
She’s stupid
N she takes my fucking shit
So fuck her what’s the point of fucking
being here
JOSHUA
Haha dude mows not the time to do that
with court coming up and Shit
Exs. 1, 4.
D.R.C. also had the following text exchange with “Lexy”:3
[D.R.C.]
Can’t wait to fucking move out tired of this bullshit
[LEXY]
Damn she’s being hella harsh on u
[D.R.C.]
Imma fucking kill this bitch
She is tryna make me go to my dads
Ex. 2.
After removing D.R.C.’s bedroom door, the mother confiscated D.R.C.’s phone
and turned to leave the room. As she was leaving, D.R.C.’s mother heard a loud noise.
3 The exhibit documenting this exchange with Lexy fails at times to clearly
distinguish one speaker from the other. Our identification of the different speakers is
based on context.
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No. 36821-1-III
State v. D.R.C.
5
D.R.C. had punched her bedroom wall, leaving a hole in it. D.R.C.’s mother called the
police. The police arrived and talked to D.R.C. and her mother, but did not take further
action.
Later that night, D.R.C.’s mother reviewed D.R.C.’s phone and discovered the
texts between D.R.C., Joshua, and Lexy. She also saw a series of older texts between
D.R.C. and Lexy, wherein D.R.C. made violent comments about an acquaintance. The
older messages read as follows:
[D.R.C.]
. . . I’ll shank a hoe with my pencil or bald point
pen let a bitch get ink poisoning and bleed
out n die stupid hoe really trying me.
LEXY
Damnn bitch i can’t with you 	u really
scare me sometimes !!
[D.R.C.]
Lmfao [4] I scare hella people ion care tho wtf [5]
a bitch wanna think she about it Imma
take her life 	don’t fw [6] my girls 	family
over everything so if a bitch fw u lmk [7] and
imma fucking take her life or slam her face
in the wall if she’s lucky
4 Laughing my fucking ass off.
5 What the fuck.
6 Fuck with.
7 Let me know.
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No. 36821-1-III
State v. D.R.C.
6
I love u too bitch
Ex. 3.
D.R.C.’s mother found the texts alarming. Although D.R.C. had never threatened
her mother directly or engaged in any physical violence, D.R.C.’s mother took
precautionary measures. She changed the locks on the entry doors to the house and slept
with a knife under her pillow until she was able to obtain a stun gun. D.R.C.’s mother
took screen shots of D.R.C.’s text messages and shared them with the police.
The State charged D.R.C. with harassment in juvenile court. The case proceeded to
trial. The State presented testimony from D.R.C.’s mother and introduced printouts of the
foregoing texts.
D.R.C. testified in her defense. She explained she never intended her messages to
be seen by anyone other than her friends. Nor did she intend her texts to be taken
seriously. They were instead a form of venting and expressing her emotions. D.R.C.
testified she and her friends often used exaggerated language in their texts. Violent
language was common but was not intended to be taken literally. According to D.R.C.,
she and her friends often denoted sarcasm through the use of emojis and initialisms such
as LOLs or LMFAOs. D.R.C. did not think any of her friends would have taken the text
messages about her mother seriously.
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No. 36821-1-III
State v. D.R.C.
7
The juvenile court found D.R.C. guilty of harassment under RCW 9A.46.020(1)
and (2)(a). The court reasoned D.R.C.’s messages constituted true threats, as required by
the First Amendment to the United States Constitution, because they were taken seriously
by both D.R.C.’s mother and Joshua, who advised D.R.C. to tone things down. The court
imposed 13 days’ confinement and 12 months’ community supervision.
D.R.C. timely appeals.
ANALYSIS
D.R.C. claims the State’s evidence was insufficient to justify her conviction. Faced
with this type of challenge, we review the evidence in the light most favorable to the State
and ask whether “any rational trier of fact could have found guilt beyond a reasonable
doubt.” State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010). “‘[A]ll reasonable
inferences from the evidence must be drawn in favor of the State and interpreted most
strongly against the defendant.’” Id. (quoting State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992)).
D.R.C.’s challenge goes not to the State’s proof of harassment’s criminal elements;
rather, she claims the State failed to meet the additional burden of proving a true threat.
As D.R.C. points out, because the crime of harassment penalizes pure speech, its
enforcement raises First Amendment concerns. State v. Williams, 144 Wn.2d 197, 206-07,
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No. 36821-1-III
State v. D.R.C.
8
26 P.3d 890 (2001). To penalize a defendant for harassment, the State must prove not
only the elements of the offense but also that the defendant’s words were not the type of
speech protected by the First Amendment. Proof of a true threat meets this requirement.
State v. Allen, 176 Wn.2d 611, 630, 294 P.3d 679 (2013) (plurality opinion).
“A true threat is a serious threat.” State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d
1215 (2004). It is not an idle statement, a joke, or even a “hyperbolic expression[] of
frustration.” State v. Kohonen, 192 Wn. App. 567, 583, 370 P.3d 16 (2016). When
assessing whether a statement at the heart of a criminal prosecution constitutes a true
threat, our analysis is more demanding than otherwise applicable in a sufficiency
challenge. We look carefully at context and independently assess whether a statement in
fact “falls within the ambit of a true threat in order to avoid infringement on the precious
right to free speech.” Kilburn, 151 Wn.2d at 49.
The focus of the true threat analysis is on the speaker. But we do not look at
the speaker’s actual intent. State v. Trey M., 186 Wn.2d 884, 893, 383 P.3d 474 (2016).
Instead, the test is objective. Id. We ask whether a reasonable person in the speaker’s
position would foresee their statement would be interpreted as a serious expression
of intent to cause physical harm. Williams, 144 Wn.2d at 207-08.
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No. 36821-1-III
State v. D.R.C.
9
While the true threat analysis requires an objective analysis with respect to the
speaker, the same is not true of the audience. When assessing whether a reasonable
person in the speaker’s position would foresee a statement interpreted as a serious threat,
we look at the speaker’s actual intended audience, not a reasonable audience or an
unintended recipient. See Kilburn, 151 Wn.2d at 52-53 (reviewing foreseeable impact on
the actual audience, a juvenile identified as “K.J.”); Kohonen, 192 Wn. App. at 580
(reviewing foreseeable impact on the actual audience, a juvenile defendant’s peer group
on Twitter).
Our case law has identified various tools for distinguishing true threats from
hyperbole or a joke. Specific plans of causing harm are more threatening than vagaries.
State v. Locke, 175 Wn. App. 779, 793, 307 P.3d 771 (2013). A threat will be perceived
as more serious when it is conveyed with a serious demeanor. Trey M., 186 Wn.2d at 906-
07. And a threat is understood as more serious when it is repeated to different audiences.
Id.
In assessing whether the defendant’s speech constituted a true threat, it is helpful
to hear from members of the defendant’s intended audience. An audience member’s
actual reactions are often typical of what would be expected and therefore provide a guide
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No. 36821-1-III
State v. D.R.C.
10
for “what reaction a reasonable speaker under the circumstances would have foreseen.”
Kohonen, 192 Wn. App. at 580.
With these principles in mind, we consider D.R.C.’s case. D.R.C.’s intended
audience was not her mother, it was her two friends Joshua and Lexy. Thus, whether
D.R.C.’s mother found her daughter’s texts alarming is not our focus. We instead must
ask whether a reasonable person in D.R.C.’s position would have foreseen that either
Joshua or Lexy would have interpreted D.R.C.’s texts as true threats, as opposed to
merely a joke or an expression of emotion.
Our analysis of the perspective of Joshua and Lexy is hampered by the fact that
neither was called as a witness at trial. Unlike prior cases such as Kilburn and Kohonen,
we lack testimony here explaining the actual reactions of D.R.C.’s audience to her texts.
Such reactions would be important in assessing whether it was reasonable for D.R.C. to
believe her statements would have been interpreted as a joke or merely venting. These
reactions also would have been helpful in analyzing the meaning of the various emojis
D.R.C. sprinkled throughout her texts. Without explicatory testimony, we are left with
only our impressions of the text message exchanges.
We look first to D.R.C.’s exchange with Joshua. According to the State’s exhibit,
Joshua was the one who started using violent language when he texted, “Haha beat her
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No. 36821-1-III
State v. D.R.C.
11
ass.” Ex. 1. By prefacing his comment with “Haha,” Joshua unambiguously indicated he
was entertaining a joke. D.R.C. then made the comment, “imma get her killed.” Id. At this
point, Joshua did not change his joking tone. Instead he completed his comment “Woh
chill just beat her ass” with the initialism “lol.” Id. Given the entirety of this exchange, the
record simply does not suggest Joshua interpreted D.R.C. as conveying a serious threat.
Even if Joshua had been troubled by D.R.C.’s comments, the context of the text
messages is still not indicative of a true threat. Immediately after Joshua’s “lol” text,
D.R.C. reiterated the joking nature of the exchange by accenting her message with an
emoji entitled “rolling on the floor laughing,” 	.8 Ex. 4. A reasonable person using this
emoji in the context of Joshua’s “Haha” and “lol,” would not have foreseen D.R.C.’s
statements as conveying a true intent to cause harm.
We next look at D.R.C.’s statements to Lexy. Unfortunately, the State’s exhibits
do not provide much context for this exchange. We do not have Lexy’s response to
D.R.C.’s text, “Imma fucking kill this bitch.” Ex. 2. However, D.R.C. prefaced her text
with an emoji entitled “face with tears of joy,” 	.9 Id. In addition, D.R.C. indicated she
8 Full Emoji List, v11.0, UNICODE, http://www.unicode.org/emoji/charts-11.0/full-
emoji-list.html (last updated Dec. 19, 2018). “Unicode is the leading organization
attempting to standardize emojis.” Eric Goldman, Emojis and the Law, 93 WASH . L. REV .
1227, 1232 (2018).
9 Full Emoji List, supra.
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No. 36821-1-III
State v. D.R.C.
12
was upset because her mother was going to make D.R.C. live with her father. This parent-
child conflict is the type of circumstance commonly associated with teenage frustration,
but not homicidal ideation. Given the vagueness of D.R.C.’s statement that she wanted to
kill her mother, and the other contextual indicators, the statement to Lexy is not
reasonably interpreted as a true threat.
D.R.C.’s past conversation with Lexy supports D.R.C.’s testimony that she tended
to use hyperbolic language with her friends. In the prior text between D.R.C. and Lexy,
D.R.C. accompanied her statements about harming or killing a mutual acquaintance with
”Lmfao”; the face with tears of joy emoji, 	; a shrug emoji, 	; a smiling face with
horns emoji, 	;10 a zany face emoji, 	; and a heart emoji, 	. Ex. 3. The combination of
the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a
serious intent to cause harm or death.
The fact that D.R.C. repeated the statements about her mother to both Joshua and
Lexy is not indicative of a serious threat to kill. Both Joshua and Lexy were known to
10 A smiling face with horns is used to convey playful mischief. Smiling Face with
Horns, E MOJIPEDIA , https://emojipedia.org/smiling-face-with-horns/ (last visited June 18,
2020); Smiling Face with Horns Emoji, DICTIONARY .COM,
https://www.dictionary.com/e/emoji/smiling-face-with-horns-emoji/ (last visited June 18,
2020).
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No. 36821-1-III
State v. D.R.C.
13
D.R.C. and appeared to be a part of the same social group. As a result, D.R.C.’s
messaging to both Joshua and Lexy is akin to a peer group tweet, see Kohonen, 192 Wn.
App. at 580, as opposed to a statement that was repeated to nonpeers in positions of
authority. Trey M., 186 Wn.2d at 907.
The language used by D.R.C. was distastefully violent, but it was not as disturbing
as some of the past statements held to fall within First Amendment protections. In
Kilburn, the juvenile defendant said to a classmate, “I’m going to bring a gun to school
tomorrow and shoot everyone and start with you . . . maybe not you first.” 151 Wn.2d at
39. Despite the specificity of this statement and the fact the classmate found it troubling,
our Supreme Court ruled that, in context, the statement did not constitute a true threat.
If Kilburn’s statement was not a true threat, then D.R.C.’s emoji-filled texts certainly
were not.
Because the record fails to establish D.R.C.’s statements constituted true threats,
we reverse her adjudication of guilt. While we rule in D.R.C.’s favor, our disposition
should not be interpreted as approval of D.R.C.’s choice of language. We, like the trial
court, find nothing funny in the texts. Nevertheless, the First Amendment protects all
sorts of speech, even when the sentiment is hurtful or vile. See, e.g., Snyder v. Phelps,
562 U.S. 443, 458, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011); Collin v. Smith, 447 F.
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No. 36821-1-III
State v. D.R.C.
14
Supp. 676, 686 (N.D. Ill. 1978). D.R.C. would do well to heed the advice of the juvenile
court judge and find a peer group that does not consist of “mean girls.” 1 Report of
Proceedings (Apr. 22, 2019) at 115. It appears from the record D.R.C. had turned her life
around by the time of trial. We hope that remains the case.
CONCLUSION
The adjudication and disposition is reversed.
Pennell, C.J.
WE CONCUR:
Siddoway, J.
Fearing, J.
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