State Of Washington, Respondent V. Nathan Eric Peters, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
NATHAN PETERS,
Appellant.
DIVISION ONE
No. 85701-1-I
UNPUBLISHED OPINION
DWYER, J. — Nathan Peters appeals from the judgment entered on a
jury’s verdict convicting him of one count of felony harassment. Peters asserts
that the harassment statute under which he was convicted is unconstitutional.
Peters also asserts that the jury was not presented with sufficient evidence to
find that his words and conduct toward Tabitha Jefferson-Ayosa constituted a
“true threat” as that term was clarified by the United States Supreme Court in
Counterman v. Colorado, 600 U.S. 66, 72-83, 143 S. Ct. 2106, 216 L. Ed. 2d 775
(2023). Because Peters fails to establish manifest error as to the constitutionality
of the harassment statute, both facially and as applied to him, and because the
record contains ample evidence to support that he knew of and disregarded a
substantial risk that his actions in this matter would be interpreted as a serious
expression of an intention to carry out a threat to kill Jefferson-Ayosa, Peters’
assertions fail. Accordingly, we affirm.

No. 85701-1-I/2
2
I
In March 2023, an affidavit of probable cause submitted by a police officer
from the Lummi Nation Police Department stated, in pertinent part, as follows:
On 03/25/2023 at about 2049 hours, I was dispatched to a
brandishing of a handgun at [an address in Smokehouse Road in
Bellingham, WA]. It was dispatched [that] Tabitha Jefferson-Ayosa
and Nathan Peters got into a verbal altercation and [that] Nathan
pulled out a handgun during the argument. It was dispatched [that]
Tabitha fled the residence with their two children en route to her
mother’s residence. I proceeded there and contacted Tabitha.
Tabitha stated she lives with Nathan Peters, they are breaking up
from a dating relationship, and they share a child in common[.]
Tabitha said she recently got a new phone line since Nathan had
been bothering her by threatening to cut her off from the data plans
they currently have together. Tabitha said the argument continued
with Nathan and he slammed a door a couple times. Tabitha said
she heard Nathan digging around by their safe and then was
pacing back and forth around the hallway, outside the bathroom
door. Tabitha said the verbal argument picked up again before
Nathan sighed and turned around, walking towards the bedroom.
She said she saw something in his hands, behind his back.
Tabitha said she asked him several times verbally “is that your
fucking gun?” before Nathan replied something to the extent of: so
what if it is. Tabitha said she heard the gun “click”, as if Nathan
was loading a bullet into the chamber. She said he turned around
with a black handgun in his left hand. Tabitha said Nathan is left-
handed and the gun was in his left hand. Tabitha motioned to
indicate the gun was pointed at the ground in front of Nathan.
Tabitha said she immediately felt like she was in danger of being
shot since the argument was heated and Nathan doesn’t usually
pull the gun out. Tabitha said she ran down the stairs as fast as
she could, gathered her children hastily and left in her vehicle
before calling her mother/911. Tabitha said she turned and ran so
fast when she saw the gun that she didn’t see if he pointed it at her
as she was fleeing. She felt his actions were so strange that she
was in immediate danger of being shot.

No. 85701-1-I/3
3
In July 2023, the State, by amended information, charged Peters with one
count of harassment by threatening, through words or conduct, to kill an intimate
partner, Jefferson-Ayosa, a class C felony.1
A two-day jury trial resulted. The State’s theory of the case was that
Peters’ words and conduct on the night in question, in the context of his
relationship with Jefferson-Ayosa, reflected that he knew of and disregarded a
substantial risk that she would interpret his actions as a serious expression of an
intention to carry out a threat to kill her. For his part, Peters’ defense theory was
that he did not say any menacing words to her and that he had only retrieved his
firearm so that he could safely go on a walk in their dangerous neighborhood in
order to take a break from Jefferson-Ayosa arguing with him.
In its case in chief, the State called to testify both Jefferson-Ayosa and two
police officers who were dispatched in response to her 911 call, presented the
audio of the 911 call to the jury, and provided the jury with photographs of the
firearm in question. Peters testified in his own defense.
After the parties rested their cases, the trial court provided, in pertinent
part, the following instructions to the jury:
INSTRUCTION NO. 5
To convict the defendant of the crime of felony harassment as
charged in count one, each of the following elements of the crime
must be proved beyond a reasonable doubt:
(1) That on or about March 25, 2023, the defendant knowingly
threatened to kill Tabitha Jefferson-Ayosa immediately or in
the future;
1 RCW 9A.46.020(1); .020(2)(b)(ii).

No. 85701-1-I/4
4
(2) That the words or conduct of the defendant placed Tabitha
Jefferson-Ayosa in reasonable fear that the threat to kill
would be carried out;
(3) That the defendant acted without lawful authority; and
(4) That the threat was made or received in the State of
Washington.
If you find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have
a reasonable doubt as to any one of these elements, then it will be
your duty to return a verdict of not guilty.
INSTRUCTION NO. 6
Threat means to communicate, directly or indirectly, the
intent to cause bodily injury in the future to the person threatened or
to any other person.
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, idle talk, or
political argument. In addition, the speaker must know of and
disregard a substantial risk that the statement or act would be
interpreted in that way.
(Emphasis added.)
Thereafter, the parties presented their closing arguments and the jury was
excused to deliberate.
The jury returned its verdict the following day, finding Peters guilty of one
count of felony harassment. Thereafter, the superior court entered judgment on
the jury’s verdict.
Peters now appeals.
II
Peters asserts that the harassment statute under which he was convicted
is unconstitutional under the First Amendment to the federal constitution. In so

No. 85701-1-I/5
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doing, however, Peters does not specify whether he is asserting a facial
challenge or an as-applied challenge to the constitutionality of that statute.
Additionally, Peters did not present the issue of the constitutionality of the
harassment statute to the trial court and is therefore presenting this issue for the
first time on appeal. Because he has not demonstrated that his claim of
constitutional error meets the requirement of being a manifest error, we decline
to review the merits of the claim. RAP 2.5(a)(3).
A
We may “refuse to review any claim of error which was not raised in the
trial court.” RAP 2.5(a). However, a party may raise a manifest error affecting a
constitutional right for the first time on appeal. RAP 2.5(a)(3). Our Supreme
Court has explained the analytical process called for in such a situation.
It has long been the law in Washington that an “appellate
court may refuse to review any claim of error which was not raised
in the trial court.” RAP 2.5(a); State v. Lyskoski, 47 Wn.2d 102,
108, 287 P.2d 114 (1955). The underlying policy of the rule is to
“encourag[e] the efficient use of judicial resources. The appellate
courts will not sanction a party’s failure to point out at trial an error
which the trial court, if given the opportunity, might have been able
to correct to avoid an appeal and a consequent new trial.” State v.
Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). The rule comes
from the principle that trial counsel and the defendant are obligated
to seek a remedy to errors as they occur, or shortly thereafter. See
City of Seattle v. Harclaon, 56 Wn.2d 596, 597, 354 P.2d 928
(1960).
The general rule that an assignment of error be preserved
includes an exception when the claimed error is a “manifest error
affecting a constitutional right.” RAP 2.5(a). This exception
encompasses developing case law while ensuring only certain
constitutional questions can be raised for the first time on review.
RAP 2.5 cmt. (a) at 86 Wn.2d 1152 (1976).
To meet RAP 2.5(a) and raise an error for the first time on
appeal, an appellant must demonstrate (1) the error is manifest,

No. 85701-1-I/6
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and (2) the error is truly of constitutional dimension. State v.
Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (citing State v.
WWJ Corp., 138 Wn.2d 595, 602, 980 P.2d 1257 (1999); Scott, 110
Wn.2d at 688). Stated another way, the appellant must “identify a
constitutional error and show how the alleged error actually affected
the [appellant]’s rights at trial.” Id. at 926-27. If a court determines
the claim raises a manifest constitutional error, it may still be
subject to a harmless error analysis. State v. McFarland, 127
Wn.2d 322, 333, 899 P.2d 1251 (1995); State v. Lynn, 67 Wn. App.
339, 345, 835 P.2d 251 (1992).
In analyzing the asserted constitutional interest, we do not
assume the alleged error is of constitutional magnitude. Scott, 110
Wn.2d at 687. We look to the asserted claim and assess whether,
if correct, it implicates a constitutional interest as compared to
another form of trial error. See id. at 689-91. In instances where
the allegation is that the defendant’s due process rights were
violated because he or she was denied a fair trial, the court will look
at the defendant’s allegation of a constitutional violation, and the
facts alleged by the defendant, to determine whether, if true, the
defendant’s constitutional right to a fair trial has been violated. See
id. (holding because nothing in the constitution requires the
meaning of particular terms in a jury instruction to be specifically
defined, the defendant’s unpreserved claim regarding the jury
instructions did not constitute constitutional error and, thus, was not
properly preserved for appellate review).
After determining the error is of constitutional magnitude, the
appellate court must determine whether the error was manifest.
“‘Manifest’ in RAP 2.5(a)(3) requires a showing of actual prejudice.”
Kirkman, 159 Wn.2d at 935 (citing State v. Walsh, 143 Wn.2d 1, 8,
17 P.3d 591 (2001); McFarland, 127 Wn.2d at 333-34). To
demonstrate actual prejudice, there must be a “‘plausible showing
by the [appellant] that the asserted error had practical and
identifiable consequences in the trial of the case.’” Kirkman, 159
Wn.2d at 935 (internal quotation marks omitted) (quoting WWJ
Corp., 138 Wn.2d at 603). In determining whether the error was
identifiable, the trial record must be sufficient to determine the
merits of the claim. Id. at 935 (citing WWJ Corp., 138 Wn.2d at
602; McFarland, 127 Wn.2d at 333 (citing State v. Riley, 121 Wn.2d
22, 31, 846 P.2d 1365 (1993))). “If the facts necessary to
adjudicate the claimed error are not in the record on appeal, no
actual prejudice is shown and the error is not manifest.” Id.
State v. O’Hara, 167 Wn.2d 91, 97-99, 217 P.3d 756 (2009).

No. 85701-1-I/7
7
With regard to a challenge to the constitutionality of a statute, we have
explained that,
[a] constitutional challenge to a statute presents a question of law
that this court . . . reviews de novo. City of Bothell v. Barnhart, 172
Wn.2d 223, 229, 257 P.3d 648 (2011). A reviewing court presumes
that a statute is constitutional, and the party challenging it bears the
burden of proving otherwise beyond a reasonable doubt. Morrison
v. Dep’t of Labor & Indus., 168 Wn. App. 269, 272, 277 P.3d 675
(2012) (citing State v. Shultz, 138 Wn.2d 638, 642, 980 P.2d 1265
(1999)). A party may bring a facial or an as-applied challenge. City
of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004).
To prevail in a facial challenge, a party must show that “no set of
circumstances exists in which the statute, as currently written, can
be constitutionally applied.” Moore, 151 Wn.2d at 669. By
contrast, a party succeeds in an as-applied challenge by proving
that an otherwise valid statute is unconstitutional as applied to that
party. Moore, 151 Wn.2d at 668-69.
Didlake v. State, 186 Wn. App. 417, 422-23, 345 P.3d 43 (2015). Therefore, in
order to establish manifest error in this matter, Peters must show that the
harassment statute underlying his conviction is unconstitutional either facially or
as applied to his case. As discussed, infra, Peters fails to establish manifest
error under either theory.
B
If Peters is asserting a challenge to the harassment statute under which
he was convicted in reliance on a theory that the statute is facially
unconstitutional under the First Amendment, he fails to establish manifest error.
Peters was convicted under RCW 9A.46.020. It reads, in pertinent part,
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the
person threatened or to any other person . . . [and]
. . . .

No. 85701-1-I/8
8
(b) The person by words or conduct places the person
threatened in reasonable fear that the threat will be carried out. . . .
(2) . . . (b) A person who harasses another is guilty of a class
C felony if . . .
(ii) the person harasses another person under subsection
(1)(a)(i) of this section by threatening to kill the person threatened.
RCW 9A.46.020.
Our State Supreme Court has recognized that, because the foregoing
harassment statute criminalizes a form of pure speech—threats—it must be
“‘interpreted with the commands of the First Amendment clearly in mind.’” State
v. Williams, 144 Wn.2d 197, 207, 26 P.3d 890 (2001) (quoting Watts v. United
States, 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969)).
Additionally, it is well-established that “true threats” constitute a form of speech
that is not protected by the First Amendment. See, e.g., Watts, 394 U.S. at 708;
Williams, 144 Wn.2d at 207-08.
“A true threat is a serious threat, not one said in jest, idle
talk, or political argument. [State v. ]Kilburn, 151 Wn.2d [36, ]43[,
84 P.3d 1215 (2004)] (citing United States v. Howell, 719 F.2d
1258, 1260 (5th Cir.1983)). Stated another way, communications
that ʻbear the wording of threats but which are in fact merely jokes,
idle talk, or hyperbole’ are not true threats. State v. Schaler, 169
Wn.2d 274, 283, 236 P.3d 858 (2010). The nature of a threat
ʻdepends on all the facts and circumstances, and it is not proper to
limit the inquiry to a literal translation of the words spoken.’ State v.
C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003). Statements may
ʻconnote something they do not literally say . . . .’ Planned
Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life
Activists, 290 F.3d 1058, 1085 (9th Cir. 2002).”
State v. Kohonen, 192 Wn. App. 567, 576-77, 370 P.3d 16 (2016) (alteration in
original) (quoting State v. Locke, 175 Wn. App. 779, 790, 307 P.3d 771 (2013)).
Accordingly, in order for Peters to demonstrate manifest error in pressing
a facial challenge to the harassment statute in question, he must show that,

No. 85701-1-I/9
9
under the First Amendment, “‘no set of circumstances exists in which the statute,
as currently written, can be constitutionally applied.’” Didlake, 186 Wn. App. at
423 (quoting Moore, 151 Wn.2d at 669).
Peters fails to establish a manifest error arising from his conviction under
the harassment statute. Our Supreme Court has instructed that a “true threat” is
not an essential element of that statute but, rather, is a definitional component
thereof. State v. France, 180 Wn.2d 809, 818, 329 P.3d 864 (2014) (“‘true threat’
is not an element of felony harassment,” rather, “‘true threat’ defines and limits
the scope of criminal statutes, such as felony harassment, that potentially
encroach on protected speech” (citing State v. Allen, 176 Wn.2d 611, 626, 294
P.3d 679 (2013))).
Indeed, our Supreme Court has repeatedly confirmed that the word
“threat” in the challenged statute can be defined as only applying to “true
threats.” See, e.g., Schaler, 169 Wn.2d at 283-84 (construing “the threats-to-kill
provision of RCW 9A.46.020” “to reach only ‘true threats’”); Kilburn, 151 Wn.2d at
41 (“Under the First Amendment only a true threat suffices for a conviction under
RCW 9A.46.020.”); Williams, 144 Wn.2d at 208 (“Washington’s criminal
harassment statute clearly prohibits true threats.”); see also State v. Trey M., 186
Wn.2d 884, 908, 383 P.3d 474 (2016).
Furthermore, although the United States Supreme Court recently clarified
that a criminal conviction in a “true threat” case requires proof of a mental state of
at least recklessness in order to avoid the criminalization of speech protected by
the First Amendment, Counterman, 600 U.S. at 72-83, the Court’s clarification as

No. 85701-1-I/10
10
to the definition of “true threat” does not affect a court’s capacity to construe the
harassment statute as only proscribing “true threats.”2
Thus, the harassment statute can be constitutionally applied as only
criminalizing “true threats.” Accordingly, if Peters is asserting that the
harassment statute under which he was convicted is facially invalid, he does not
establish manifest error.
C
In the alternative, Peters may be asserting an as-applied challenge to the
constitutionality of the harassment statute on the basis that, in convicting him of
felony harassment, the jury unconstitutionally applied the harassment statute to
him. Because he again fails to show manifest error with regard to this challenge,
this assertion fails as well.
To be clear, “a party succeeds in an as-applied challenge by proving that
an otherwise valid statute is unconstitutional as applied to that party.” Didlake,
186 Wn. App. at 423 (citing Moore, 151 Wn.2d at 668-69). Additionally, as set
forth above, a criminal prosecution of a “true threat” case requires proof of a
mental state of at least recklessness in the making of the threat in order to avoid
the First Amendment’s bar against criminalizing protected speech. Counterman,
2 Because “[t]he United States Supreme Court is the paramount authority on the federal
constitution,” State v. Tyler, 195 Wn. App. 385, 389, 382 P.3d 699 (2016), aff’d on other grounds,
191 Wn.2d 205, 422 P.3d 436 (2018), the Court’s holding in Counterman abrogates certain of our
Supreme Court’s prior decisions to the extent that they held, in a “true threat” criminal
prosecution, that the State must only prove a criminal defendant’s negligence in order to not
criminalize speech protected by the First Amendment. See, e.g., Schaler, 169 Wn.2d at 287.
Indeed, as Division Two of this court recently stated, although the United States Supreme
Court’s recklessness standard “contradicts the Washington Supreme Court’s pre-Counterman
cases, we do not presume the Washington Supreme Court will now reject a United States
Supreme Court holding on the federal constitution.” State v. Calloway, __ Wn. App. 2d __, 550
P.3d 77, 86 (2024).

No. 85701-1-I/11
11
600 U.S. at 72-83. Therefore, in order to succeed in an as-applied challenge,
Peters must establish that the jury convicted him based on evidence of words or
conduct that did not constitute a true threat. “In normal usage, ‘manifest’ means
unmistakable, evident or indisputable” and “‘[a]ffecting’ means having an impact
or impinging on.” Lynn, 67 Wn. App. at 345 (citing State v. Taylor, 83 Wn.2d
594, 596, 521 P.2d 699 (1974)).
Here, Peters was charged with one count of harassment pursuant to RCW
9A.46.020. As set forth above, the jury in this matter was instructed as follows:
INSTRUCTION NO. 6
Threat means to communicate, directly or indirectly, the
intent to cause bodily injury in the future to the person threatened or
to any other person.
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, idle talk, or
political argument. In addition, the speaker must know of and
disregard a substantial risk that the statement or act would be
interpreted in that way.
(Emphasis added.) The jury convicted Peters as charged.
Peters fails to establish manifest error. He—correctly—does not
challenge on appeal whether the foregoing instruction aligned with the Supreme
Court’s guidance in Counterman.3 It plainly does. He also does not present
3 Indeed, the instructions given in Peters’ case are nearly identical to those recently
approved by the Washington Pattern Instruction Committee:
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]. In addition, the speaker must know of and
disregard a substantial risk that the statement or act would be interpreted in that
manner.

No. 85701-1-I/12
12
evidence that the jurors, in convicting him of the harassment charge, did not
follow the court’s instructions. Absent any such evidence to the contrary, we
presume that the jury did follow its instructions. State v. Montgomery, 163 Wn.2d
577, 596, 183 P.3d 267 (2008) (citing Kirkman, 159 Wn.2d at 928). Therefore,
Peters fails to make “ʻa plausible showing . . . that the asserted error had
practical and identifiable consequences in the trial of the case.’” Kirkman, 159
Wn.2d at 935 (internal quotation marks omitted) (quoting WWJ Corp., 138 Wn.2d
at 603).
Thus, if Peters is asserting that the harassment statute is unconstitutional
as applied to him, he does not establish manifest error in support of this
assertion. Accordingly, under either potential theory, Peters has failed to
preserve his challenge to the constitutionality of the harassment statute for
appeal. We need not further review his claim.
III
Peters next asserts that the State failed to present a constitutionally
sufficient quantum of evidence that his words or conduct constituted a “true
threat.” This is so, Peters contends, because the record does not contain
sufficient evidence for the jury to find that he knew of and disregarded a
substantial risk that his statements and actions toward Jefferson-Ayosa would be
interpreted as a serious expression of an intention to carry out a threat to kill her.
Peters’ assertion fails.
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2.24, at 4 (5th ed.
Supp. 2024).

No. 85701-1-I/13
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A
“A challenge to the sufficiency of the evidence admits the truth of the
State’s evidence and all reasonable inferences from that evidence.” State v.
Boyle, 183 Wn. App. 1, 6-7, 335 P.3d 954 (2014) (citing State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992)). “We defer to the trier of fact on issues
of credibility or persuasiveness of the evidence.” Boyle, 183 Wn. App. at 7 (citing
State v. Johnston, 156 Wn.2d 355, 365-66, 127 P.3d 707 (2006)).
In addition to generally applicable sufficiency principles, because of the
constitutional implications inherent in our review of a “true threat,” we conduct a
limited independent review of the facts crucial to the true threat inquiry.
Kohonen, 192 Wn. App. at 577.
“[T]he First Amendment demands more than application of our
usual standard of review for sufficiency of the evidence. Kilburn,
151 Wn.2d at 48-49. Instead, we must independently examine the
whole record to ensure that the judgment does not constitute a
forbidden intrusion into the field of free expression. Kilburn, 151
Wn.2d at 50. We are required to independently review only crucial
facts, that is, those facts so intermingled with the legal question that
it is necessary to analyze them in order to pass on the
constitutional question. Kilburn, 151 Wn.2d at 50-51. In doing so,
we may review evidence in the record not considered by the lower
court in deciding the constitutional question. Kilburn, 151 Wn.2d at
51. However, our review does not extend to factual determinations
such as witness credibility. State v. Johnston, 156 Wn.2d 355, 365-
66, 127 P.3d 707 (2006).”
Kohonen, 192 Wn. App. at 577 (alteration in original) (quoting Locke, 175 Wn.
App. at 790-91).
To support a conviction for harassment under RCW 9A.46.020, the State
must establish that a threat to commit bodily harm was made. Because, in so

No. 85701-1-I/14
14
requiring, the statute criminalizes pure speech, the State must further prove that
the alleged threat was a “true threat” in order to satisfy the protections of the First
Amendment. Kohonen, 192 Wn. App. at 575 (citing Kilburn, 151 Wn.2d at 54).
Again, we have described a “true threat” in general terms as follows:
“A true threat is a serious threat, not one said in jest, idle
talk, or political argument. Kilburn, 151 Wn.2d at 43 (citing United
States v. Howell, 719 F.2d 1258, 1260 (5th Cir.1983)). Stated
another way, communications that ‘bear the wording of threats but
which are in fact merely jokes, idle talk, or hyperbole’ are not true
threats. State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858
(2010). The nature of a threat ‘depends on all the facts and
circumstances, and it is not proper to limit the inquiry to a literal
translation of the words spoken.’ State v. C.G., 150 Wn.2d 604,
611, 80 P.3d 594 (2003). Statements may ‘connote something they
do not literally say . . . .’ Planned Parenthood of
Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d
1058, 1085 (9th Cir. 2002).”
Kohonen, 192 Wn. App. at 576-77 (alteration in original) (quoting Locke, 175 Wn.
App. at 790).
In light of the United States Supreme Court’s decision in Counterman, “the
State must prove in true-threats cases that the defendant had some
understanding of his statements’ threatening character.” 600 U.S. at 72-73. The
Court instructed that proof of “recklessness . . . is enough” to satisfy the
protections of the First Amendment. Counterman, 600 U.S. at 72-73. The court
defined recklessness “[i]n the threats context” as meaning “that a speaker is
aware ‘that others could regard his statements as’ threatening violence and
‘delivers them anyway.’” Counterman, 600 U.S. at 79 (quoting Elonis v. United
States, 575 U.S. 723, 746, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015) (Alito, J.,
concurring in part and dissenting in part)).

No. 85701-1-I/15
15
B
Here, Peters only challenges whether a constitutionally sufficient quantum
of evidence was presented to the jury with regard to the subjective test
announced in Counterman. Thus, the question before us is whether sufficient
evidence supports the conclusion that Peters knew of and disregarded a
substantial risk that his words and conduct toward Jefferson-Ayosa would be
interpreted as a serious expression of intention to carry out a threat to kill her. A
sufficient quantum of such evidence was adduced.
1
Here, at trial, both Jefferson-Ayosa and Peters testified that, five years
prior to the time in question, they began a romantic relationship with one another.
About one year later, they moved into the same household, had a child of their
own, and also raised a child from a prior relationship of Peters’. They had a good
relationship in the beginning, with Jefferson-Ayosa testifying that Peters was not
“always the best at communicating” his frustrations during their relationship.
They also testified that, sometime between the end of 2022 and the
beginning of 2023, they ended their committed relationship.4 They continued to
live with one another and share resources. Jefferson-Ayosa paid the rent for the
apartment while Peters paid for other shared amenities, including their cell phone
service plan.
4 Jefferson-Ayosa testified that their relationship ended because of Peters’ poor
communication issues.

No. 85701-1-I/16
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They each testified that, sometime in March 2023, they unsuccessfully
attempted to reconcile. Peters testified that they ended their relationship again
on March 24 while Jefferson-Ayosa testified that she did not remember exactly
when they did so. Peters testified that he ended their relationship because he
thought that she was acting in a “suspicious” manner in response to him
searching through her cell phone and finding messages between Jefferson-
Ayosa and one of her former partners, timestamped from when Peters and
Jefferson-Ayosa had previously ended their relationship a few months prior,
including a photograph of a pregnancy test. Peters testified that he did not feel
jealous when he saw either those messages or that photograph.
They also testified that, on March 24, Peters removed Jefferson-Ayosa as
a member of his cell service phone plan without notifying her.
Jefferson-Ayosa testified that, the next day, on March 25, she purchased
her own cell phone and a service plan for that phone with a new phone number.
Peters testified that, on that day, he received a text message from Jefferson-
Ayosa from a phone number different than the one she had been previously
assigned under their shared plan.
They both testified that, on the evening of March 25, Peters was already
upstairs in their shared apartment at the time that Jefferson-Ayosa arrived with
the children. Jefferson-Ayosa left the children downstairs and approached
Peters who was upstairs in the bedroom. With regard to the layout of the
apartment in question, its first floor had a living room with a staircase leading up

No. 85701-1-I/17
17
to the second floor and, near the top of the stairs on its second floor, was a
bedroom and an adjoining bathroom.
They both testified that, as Jefferson-Ayosa walked up the staircase
towards Peters, he asked her about her new cell phone number. Jefferson-
Ayosa testified that she did not appreciate such questioning and told him that it
was none of his business. Jefferson-Ayosa testified that the questioning
escalated into an argument between the two of them, with Peters raising his
voice and calling her “dumb.” Peters, for his part, testified that he asked her
about her new cell phone number “[c]almly,” that she had an “attitude” in
response to his “simple question,” but that the manner in which she responded to
him did not cause him to feel frustrated.
They both testified that they then walked away from one another, with
Jefferson-Ayosa going into the bathroom and Peters going into the bedroom.
Jefferson-Ayosa asked Peters to get the children a snack. He then went
downstairs and, sometime thereafter, came back upstairs.
Jefferson-Ayosa testified that, when Peters came upstairs, she heard him
slamming doors and rustling around in the bedroom closet where they kept,
among other things, a lockbox containing a handgun and ammunition. She
testified that she was worried that he was retrieving the handgun that he had
stored in the lockbox but, she thought, “no, he wouldn’t do that.”
Peters testified that, when he came back upstairs, he went into the
bedroom closet to retrieve his handgun from the lockbox. He testified that he
was calm and collected after their exchange. He denied slamming doors but

No. 85701-1-I/18
18
testified that he did shut certain doors with heavy mirrors mounted on them that,
when closed, made a slamming sound. He testified that, once he was in the
bedroom, he changed into sweatpants and a long sleeve t-shirt and opened his
firearm lockbox in the bedroom closet. He retrieved from inside the lockbox his
pistol and a magazine containing twelve bullets, inserted the magazine into the
pistol, and secured the firearm by his lower back by tucking it into the elastic
band of his sweatpants.
Peters testified that he changed clothes and retrieved his firearm because
he “wanted to go out for a walk.” He testified that, “at that point, I felt like I
needed to process everything from the week before when I went through her
phone and went with the attitude that she shared with me after asking a simple
question.”5
They both testified that Peters then approached the doorway to the
bathroom where Jefferson-Ayosa was located. Jefferson-Ayosa testified that, as
Peters approached, they began to argue again, with Peters telling her that she
had an attitude and Jefferson-Ayosa telling him that he was the one who started
the argument by asking her about the cell phone. Peters, for his part, testified
that he approached her and asked her to return the cell phone that he had
previously purchased for her and that, in response to his request, she began to
argue with him.
5 The following exchange also occurred during Peters’ cross-examination: “[Prosecutor]:
You were so calm and collected though that you needed to go take a walk and get some space;
is that accurate? [Peters]: Yes.”

No. 85701-1-I/19
19
Both parties testified that, as he approached the bathroom, Peters was
concealing from Jefferson-Ayosa what was behind his back. Jefferson-Ayosa
testified that, when she turned to face Peters, he appeared frustrated, his hands
were behind his back, and that she could not see what was behind his back. She
testified that, in the conversations earlier that night, his hands had not been
behind his back. She also testified that she observed that Peters had changed
his clothing and was wearing jeans, rather than sweatpants, with a sweatshirt
and shoes.
Both parties testified that, at that time and during the following exchange,
Peters did not tell Jefferson-Ayosa that he was planning on going somewhere or
leaving the apartment.
Both parties testified that Peters then turned away from Jefferson-Ayosa
and began to walk to the bedroom. Jefferson-Ayosa testified that, when Peters
turned away from the bathroom and began walking toward the bedroom, he
walked with his body turned to the side, rather than walking with his back to her.
She testified that she saw something behind his back that did not look like his
wallet or his phone and she became worried and afraid that it was his handgun.
Peters, for his part, testified that his back was facing her as he walked away.
Both parties testified that Jefferson-Ayosa asked Peters if he was carrying
his pistol. Peters did not respond to her question and remained silent. Peters
testified that “I didn’t respond because I thought that it might escalate the
situation more than I wanted it to escalate to.” Peters also acknowledged that he

No. 85701-1-I/20
20
knew that, at the time, Jefferson-Ayosa was unarmed and had no way to defend
herself.
They both testified that Jefferson-Ayosa repeated the question twice more.
Peters again did not respond to her questions and instead withdrew to the
bedroom entryway near the staircase landing, keeping his back facing away from
her. Jefferson-Ayosa followed him down the hallway toward both the bedroom
entrance and the staircase down to the first floor of the apartment.
They both testified that, when Jefferson-Ayosa was within reaching
distance of Peters, Jefferson-Ayosa again urged Peters to tell her if he had his
firearm behind his back, saying, “Is that your fucking gun?” Peters then turned
his body to the side away from Jefferson-Ayosa, took his handgun out from the
waistband of his pants, and held the gun in one hand to the side of his body
away from her. She heard him “cocking the gun” as he pulled back on the slide
on the top of the firearm, loading a bullet into the gun’s chamber with an audible
click.
Jefferson-Ayosa testified that, in response to her fourth time urging him to
tell her whether he had his firearm behind his back, Peters turned toward her,
“cocked” the firearm not once, but twice, and said, “so what if it is?” Jefferson-
Ayosa testified that, at the moment, she was terrified that Peters was going to
shoot and kill her or the children.
Peters, for his part, testified that, after she had repeated her question for
the fourth time, she observed the firearm in his hand, that he only “cocked” it

No. 85701-1-I/21
21
once, and that he said nothing to her, including no words of reassurance.6 He
testified that he loaded a bullet into the chamber of his pistol in the entryway to
the upstairs bedroom “[t]o prepare myself for the walk so I didn’t have to do it
when I was outside walking and came across something threatening” like “[a]n
animal or somebody else walking.”7 He testified that, when he loaded the
firearm, he was not planning to kill Jefferson-Ayosa, he was not planning to shoot
her, and he was not intending to scare her.
They each testified that, immediately after Peters loaded a bullet into the
chamber of the firearm, Jefferson-Ayosa ran down the stairs to their children,
leaving her keys and cell phone upstairs, told the children to get outside, grabbed
a set of spare keys, and quickly escorted them out of the apartment with her.
Jefferson-Ayosa testified that she did not recall if Peters said anything to her as
she ran down the stairs and screamed at the children to get out of the house.
She testified that, after fleeing the apartment with the children, she called 911
through the cell service on her digital smart watch and drove to her mother’s
house. The audio of her 911 call was played for the jury. Jefferson-Ayosa
testified that she was afraid and was physically shaking while making the call.
Peters, for his part, testified that, after loading the firearm, he “heard her
panicking. I heard her going down the stairs, then I placed the firearm back in
the back of my pants again and I went downstairs to the top where she could see
me and I stated that I was going to leave.”
6 Jefferson-Ayosa testified that she heard him attempt to load the gun twice, the first time
unsuccessfully loading a bullet into the chamber and the second time successfully doing so.
7 Both parties testified that Peters did not point the gun at Jefferson-Ayosa.

No. 85701-1-I/22
22
Additionally, during Peters’ cross-examination, the following exchange
occurred:
Q: [D]o you agree with this statement, a gun can kill?
A: Yes.
Q: Okay. And you are inside your house and you ready your
gun; is that accurate?
A. Yes.
Q. And this is during an argument with Ms. Jefferson-Ayosa;
isn’t that right?
A: Yes, because I thought the argument wasn’t going
anywhere, so, I thought I would leave the argument.
Q: So you would agree there was an argument?
A: There was a conversation.
Q: Okay. So now it’s a conversation. It’s not an argument?
You remember talking to law enforcement, right?
A: Yes.
Q: You told them there was an argument; isn’t that right?
A: I even said that an argument, even if I called it an argument.
I recall saying that.
When asked about his desire to take a walk, Peters testified that, despite
testifying that he lives on a dangerous street with wild animals, he wanted to go
on a walk. He did not want to find some space in his car. He testified that he
wanted to, for the first time, take his gun on that walk. He testified that there
could be a cougar in the area and that he would have attempted to shoot it and
scare it away. He testified that the fear of a cougar and the danger of his street
was the reason why he loaded a bullet into the chamber of his gun while inside of
the apartment. Jefferson-Ayosa, for her part, testified that, in the past, they
would walk around the neighborhood with their children and she would
sometimes jog in the neighborhood as well.
Both parties testified that Peters did not usually use his firearm, that he
would not carry it with him when they went out for a walk in the neighborhood or

No. 85701-1-I/23
23
out in public, and that he would not take it with him when he went out for a walk
by himself. In response to the question “have you ever felt the need to use your
gun for protection before this March 25th incident,” Peters responded, “No.”
2
Admitting the truth of the State’s evidence, viewing all reasonable
inferences from that evidence in favor of the verdict, and deferring to the jury on
the matter of witness credibility, the record contains sufficient evidence to support
that Peters knew of and disregarded a substantial risk that his actions would be
interpreted as a serious expression of his intention to carry out a threat to kill
Jefferson-Ayosa.8
The record reflects that, during the five and a half years that they had lived
with one another in a committed relationship, Peters had rarely, if ever, used his
firearm or carried it with him indoors or outdoors. The record further reflects that,
sometime after they were no longer in a committed relationship with one another
and, shortly after getting into an argument with Jefferson-Ayosa inside their
previously shared home, Peters intentionally took the unusual step of retrieving
his handgun from a lockbox in their bedroom closet, placing a 12-bullet magazine
inside of the handgun, and carrying the handgun with him out of the bedroom.
The record also reflects that, around this time, he knew that he was
shutting doors with heavy mirrors mounted on them that, to a nearby listener,
could sound as if a door is being slammed and that Jefferson-Ayosa was in the
8 We reach the same conclusion after engaging in the required limited independent
review of facts pursuant to the true threat inquiry.

No. 85701-1-I/24
24
nearby bathroom, and he, regardless, proceeded to shut the doors in the manner
described.
The record further reflects that Peters, after retrieving the handgun,
intentionally placed it behind his back, approached the bathroom where
Jefferson-Ayosa was located, and re-initiated their earlier argument. Additionally,
the record reflects that he was aware that he was concealing the firearm from
Jefferson-Ayosa, that he heard her repeatedly urging him to tell her whether he
was concealing his handgun behind his back, and that he was aware that a gun
is, as a general matter, capable of causing death. Despite all of this, he did not
answer her, nor reassure her, nor communicate his supposed intention to leave
the apartment to her, any of which might have decreased the risk that his
conduct would be interpreted by her as a serious threat to her life.
The record additionally reflects that, despite all of this, and while indoors
on the second floor of their apartment within no more than five feet of Jefferson-
Ayosa, Peters then grabbed his handgun from behind his back, held the gun
down to his side, slid the rack on the top of the gun back—loading a bullet into its
chamber with an audible click—and said to her “so what if it is?”
Given all of this, the record amply supports a finding that Peters knew of
and disregarded a substantial risk that Jefferson-Ayosa would interpret his
conduct and statement as a serious expression of a threat to kill her. Therefore,
Peters’ assertion that the jury was not presented with sufficient evidence to find
that his conduct in this matter constituted a “true threat” fails.

No. 85701-1-I/25
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Peters does not prevail on either of his claims on appeal. Accordingly,
Peters has not established an entitlement to appellate relief.
Affirmed.
WE CONCUR: