Michael Jared Henderson v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL JARED HENDERSON,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14081
Trial Court No. 1KE-22-00077 CR
O P I N I O N
No. 2834 — October 16, 2026
Appeal from the Superior Court, First Judicial District,
Ketchikan, Daniel E. Doty, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage (opening
brief), and Barbara Dunham, Assistant Public Advocate, and
James Stinson, Public Advocate, Anchorage (reply brief and
oral argument), for the Appellant. Madeline M. Magnuson,
Assistant Attorney General, Office of Criminal Appeals,
Anchorage, and Treg R. Taylor, Attorney General, Juneau, for
the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge ALLARD.

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Michael Jared Henderson was convicted, following a jury trial, of one
count of interference with an official proceeding after he threatened to kill a witness
while participating telephonically in a bail hearing for his son.1
Henderson appeals his conviction, raising four claims. First, Henderson
argues that the superior court erred when it failed to include a “true threat” definition in
the jury instructions. This claim requires us to examine recent First Amendment
jurisprudence. Because we conclude that the jury instructions that were given in this
particular case adequately incorporated the concept of a “true threat,” we reject this
claim.
Second, Henderson argues that the evidence at trial was insufficient to
support his conviction and that the superior court therefore erred in failing to grant his
motion for judgment of acquittal. But, viewing the facts in the light most favorable to
the conviction, as we are required to do, we conclude that the evidence was sufficient
to support Henderson’s conviction.
Third, Henderson argues that we should conduct an independent review
of the evidence presented at his trial to ensure that he was not convicted for engaging
in speech that is protected by the First Amendment. Having conducted that review, we
again conclude that the jury’s findings were sufficient to ensure that Henderson was not
punished for engaging in protected speech.
Fourth, Henderson argues that the superior court erred in failing to grant
his motion for a new trial on the grounds that the jury’s verdict was against the weight
of the evidence. But the record shows that the superior court applied the correct legal
test and that the court reasonably found that the verdict was not against the weight of
the evidence. We therefore defer to the superior court’s ruling.
In addition to challenging his conviction, Henderson also challenges two
portions of a probation search condition that the court imposed in his case. For the
1 AS 11.56.510(a)(1)(C).

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reasons explained here, we affirm one portion of the probation search condition but
vacate the other portion. We otherwise affirm Henderson’s conviction.
Background facts
Michael Jared Henderson had two sons: Isaac and Tyler Henderson.2 In
December 2021, eighteen-year-old Isaac shot and killed his older brother, Tyler. Tyler’s
friend, Katrina Johnson, was standing in between the brothers when Tyler was shot.
Based, in part, on Johnson’s eyewitness account, the State charged Isaac with first-
degree murder.3 The State also charged Isaac with third-degree assault for recklessly
placing Johnson in fear of imminent serious physical injury by means of a dangerous
instrument.4
On February 1, 2022, Superior Court Judge William Carey held a bail
hearing in Isaac’s case. A number of people participated telephonically in the hearing,
including Henderson, who called into the bail hearing with his then-long-term
girlfriend, Deborah Staples. Henderson and Staples had been drinking and were alone
in Henderson’s sister’s home. They used Henderson’s cell phone to listen to the
proceedings on speaker phone. Although they initially muted the phone, Staples
testified that the phone later changed hands multiple times and that she did not know if
the phone was muted when Henderson had it.
At the bail hearing, Isaac’s attorney requested a reduction in monetary bail
and approval of a third-party custodian. Johnson, who was appearing telephonically,
opposed this proposal, stating that she “would not feel safe if [Isaac] were let out on
bail.” Following questioning of the proposed third-party custodian, the prosecutor
2 Because the brothers share a last name with Henderson, this opinion will refer to
them by their first names.
3 See AS 11.41.100.
4 See AS 11.41.220.

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argued against the proposed reduction in monetary bail, citing (among other
considerations) Johnson’s fear for her own safety.
The judge indicated that he intended to keep the monetary bail high to
protect Johnson, who was “still extremely afraid.” After the judge acknowledged that
this would likely mean that Isaac would stay in jail, Henderson interrupted the judge
for the first time. Immediately preceding Henderson’s interruption, Staples could be
heard warning Henderson not to interrupt, saying, “You’re gonna make your son look
bad, don’t do it.”
Slurring his words, Henderson directly addressed the judge, “This is
[Isaac’s] father, Mr. fuckin’ William Carey. I watch you run by my house every day. . . .
What are you trying to do? Put him away?” When Isaac’s attorney tried to interject,
Henderson said, “Fuck you, bitch!” and then continued, raising his voice, “What’re you
trying to do, Judge Carey, put him away? Eighteen-year-old boy. He didn’t do that to
his brother!” The defense attorney asked Henderson to “please stop, please, please stop,
this is all recorded.”
The parties then discussed whether to hear from other defense witnesses.
When the court agreed to do so, saying, “I will open it up, but you’ll need to be civil,”
Henderson began yelling again. Staples could be heard telling Henderson to “stop,”
asking him, “What made you do that? Why would you do that?” Henderson replied,
“Because they fucking owe me.” The judge asked the in-court clerk, “Can you cut them
off the line, please?” The clerk responded, “Done.” The clerk later testified at trial that
she muted all of the participants on the telephone line and then unmuted those who
needed to participate.
After several members of the community spoke in support of Isaac,
Johnson’s mother spoke. After identifying herself as Johnson’s mother, she referenced
Henderson’s swearing and asked if Johnson could get a restraining order against
Henderson for Johnson’s safety. The prosecutor told her that he would call her to
discuss that. One of Isaac’s family members spoke on his behalf.

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The judge then resumed his ruling. The judge indicated that he was
approving the third-party custodian but only reducing bail from $100,000 to $75,000.
He noted that electronic monitoring would still be required because he had “concerns
about the alleged victim, Miss Johnson.”
At some point, although the clerk did not announce it, Henderson’s line
was unmuted. Staples then interrupted, stating, “Fuck that bitch.” The following
exchange occurred:
Henderson: Katrina [Johnson] fucked my boy.
Staples: I know she did.
Defense attorney: Okay, guys, you’re all recorded.
Henderson: She fucked Tyler.
Staples: I know. She fucked them all very well, didn’t
she?
Judge Carey: Can we please have everybody — we’re
just going to have to shut off those folks or mute them
somehow so I can get through this, please. Alright. Okay.
The in-court clerk’s testimony at trial indicated that, when the judge asked her to mute
the parties, she blanket-muted all participants (although she did not announce that she
was doing so).
The judge resumed his ruling without incident. After answering a question
by the prosecutor, the judge stated, “We’ll be off record, thank you,” but he then
corrected himself, saying, “Oh, we still have [another matter].” The in-court clerk asked
about paperwork for the third-party custodian. The in-court clerk testified that she
unmuted everyone at that point.
While the parties were addressing the paperwork for the third-party
custodian, Staples could be heard saying, in reference to the bail amount, “75,000?
100,000?” Henderson, in a slurred but otherwise calm and matter-of-fact tone,
responded, “Don’t worry about that. I’m going to kill Katrina Johnson.”

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The prosecutor, who was in the courtroom, heard the threat and
immediately drew the court’s attention to it. Johnson also heard the threat. She later
testified at trial that it scared her and that she went to the police to request a restraining
order the next day.
Two days after the bail hearing, Alaska State Trooper Larry Dur’an called
Henderson on the phone to investigate the threat. When Trooper Dur’an told Henderson
that “some folks . . . were just a little concerned” about his comments during the hearing,
Henderson responded, “Yeah, I know, I’ve got to write a letter of apology to the court.”
Trooper Dur’an asked Henderson if he remembered what he had said to Johnson.
Henderson responded:
I don’t believe — it was just — it was all over the court
monitors, the monitors. And I was just trying to express, like,
my feeling that it was an accident. . . . And apparently she,
she feels she, her, her, she feels that she would be, her safety
would be threatened if Isaac were to be let out, but I
disagreed.
Trooper Dur’an told Henderson not to contact Johnson. Henderson agreed
not to contact her and then stated, “You know, what I had to say I felt like I could say
in front of everybody, in the courtroom, you know?” He added, “I probably took it a
little too far. But . . . I really wanted everybody in the courtroom to understand that this
was an accident. . . . [Isaac] has a lot of support behind him.”
The same day, Alaska State Trooper Joey Beaudoin called Henderson.
Henderson agreed that he was intoxicated during the hearing, and he explained that he
was “angry” that the judge did not invite Isaac’s supporters to speak on his behalf and
frustrated that the court seemed to prioritize Johnson’s professed fear. According to
Henderson, “All [the judge] wanted to hear was this little girl, claiming to be a victim.
It was a little frustrating, so I said some things I shouldn’t have said on the court call.
And I’ve got an apology letter getting ready to go to the court for that.”

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Procedural history
A week later, a grand jury indicted Henderson on one count of interference
with official proceedings and one count of second-degree terroristic threatening.5 The
State subsequently dismissed the terroristic threatening charge. Henderson proceeded
to trial on the interference with official proceedings charge, a class B felony.6
To prove interference with official proceedings under
AS 11.56.510(a)(1)(C), the State was required to prove beyond a reasonable doubt that
Henderson knowingly threatened Katrina Johnson with the intent to retaliate against her
for her participation in an official proceeding.
Prior to opening statements, the parties litigated the definition of “threat.”
Citing to an unpublished Alaska case, Melugin v. State, Henderson’s attorney proposed
instructing the jury with language from Melugin defining the objective test for a “true
threat” under the First Amendment: A “threat” is a statement that a reasonable person
would foresee would be interpreted by those to whom the speaker communicates as a
serious expression of an intention to inflict physical injury on someone.7 The superior
court declined to use this definition and instead drafted an instruction based on the
statutory definition of threat.8 The jury instruction stated: “‘Threat’ means a menace,
however communicated, to inflict physical injury on anyone.”
5 AS 11.56.510(a)(1)(C) and AS 11.56.810(a)(1)(A), respectively.
6 See AS 11.56.510(b).
7 Melugin v. State, 1992 WL 12153153, at *4 (Alaska App. May 6, 1992)
(unpublished) (defining a true threat, for purposes of the First Amendment, as a statement
made “wherein a reasonable person would foresee that the statement would be interpreted
by those to whom the maker communicates a statement as a serious expression of an
intention to inflict bodily harm upon or to take the life of [another individual]” (quoting
United States v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986))).
8 See former AS 11.81.900(b)(65) (2022). “Threat” has since been renumbered to
subsection (b)(67).

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At trial, the primary factual dispute was whether Henderson intended
Johnson to hear his threat to kill her, as the State contended, or whether the threat was
a private comment to Staples (Henderson’s then-girlfriend) that Henderson did not
realize was being broadcast, as Henderson contended. According to the prosecutor,
“Michael Henderson believed that Katrina Johnson was the one responsible for keeping
his son in jail and so he retaliated against her by threatening to kill her.” The prosecutor
argued that Henderson knew that the threat would be heard by everyone (including
Johnson) because he had already been warned that he was being recorded. The
prosecutor also characterized Henderson’s statements to the troopers as indicating that
he wanted others to hear his remarks.
In contrast, Henderson’s attorney maintained that Henderson’s remark
was a private comment to his then-girlfriend “that no one else was supposed to hear.”
Henderson did not testify at trial. But in closing, the defense attorney argued that
Henderson believed that the phone line had been muted by the clerk and that his own
phone was muted, noting that Staples had testified that she believed they were muted.
Counsel also argued that Henderson had no reason to think that Johnson was still on the
line as it had been a long time since she had spoken and people were continuously
getting on and off the phone line (as evidenced by the beeps). The attorney emphasized
the mens rea elements of the statute, arguing that the jury could not find an intent to
retaliate if Henderson had not intended to relay the threat to Johnson. Defense counsel
asserted that “this whole case comes down to . . . whether or not [Henderson] intended
for [Johnson] to hear these statements” and that “this entire case turns on whether or
not Mr. Henderson realized that people could hear him.” According to the defense
attorney, “Someone can say . . . evil things in the privacy of their own home, but unless
they intended the person to whom those threats were directed to, to hear them, they did
not intend to threaten them.”
In rebuttal closing, the prosecutor argued that Henderson was aware that
Johnson was still on the line because “she was participating actively in this court

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hearing” and was “a big part of this case.” The prosecutor emphasized again that
Henderson had been warned twice that he was being recorded but that “he didn’t care”
because “he wanted to be heard.” The prosecutor pointed out that “if he really didn’t
want to be heard as he let off steam, you’d think that he’d at least make sure his phone
was muted.” The prosecutor ended her rebuttal closing by asserting that “[Henderson]
wanted to be heard and he did not want to be silenced.”
Prior to the jury deliberating, Henderson moved for a judgment of
acquittal, arguing that there was insufficient evidence that he knew his comments were
not private. The court took the matter under advisement.
Following deliberations, the jury found Henderson guilty of one count of
interference with official proceedings. Henderson renewed his motion for a judgment
of acquittal and also filed a motion, in the alternative, for a new trial, arguing that the
verdict was against the weight of the evidence.
The superior court denied both motions in a written order. The court found
that the State had shown that Henderson knowingly threatened Johnson. The court
viewed the question of intent to retaliate as the “closer question,” noting that “if
[Henderson] (incorrectly) believed that he was speaking privately to Ms. Staples, it
would be difficult to construe his statements as retaliatory.” The court noted, however,
that the evidence had shown that “Mr. Henderson had collected himself by the time he
said he was going to kill Katrina Johnson” and that, “[d]runk or not, he had been warned
repeatedly that people could hear him.” The court found that, based on the evidence
presented at trial, “it is reasonable to conclude, as the jury did, that he actually knew
the line was open, and he intended for someone to hear the threat and convey to her that
he wanted her dead.”
The court acknowledged that this was not the only rational interpretation
of the evidence. But the court saw this as a “mere disagreement” where reasonable
minds could view the same evidence and reach “different, reasonable conclusions.” The
court concluded that the jury’s guilty verdict reflected “a well-informed and carefully

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considered decision about that evidence” and that the verdict was not against the weight
of the evidence such that a new trial should be granted.
At sentencing, the court again acknowledged that there was support for
Henderson’s position that he did not intend Johnson to hear the comment. But the court
also found that there was “substantial support” for the jury’s guilty verdict, which the
court characterized as implicitly finding the following:
That Mr. Henderson made a threat to kill Katrina Johnson
and that at the moment he made the threat, he both knew that
she would either hear it or become aware of it, and that his
intent in making it was retaliating against her for acting as a
witness in his son’s murder prosecution.
The court also acknowledged that “people lash out in ways that aren’t helpful” when
they are grieving and that alcohol clearly played a role in Henderson’s offense.
The court noted that the evidence of whether Henderson actually intended
to kill Johnson was “ambiguous at best.” But the court nevertheless emphasized that
Henderson’s threat to kill Johnson “carried the very real risk of undermining the
integrity of a murder prosecution because it very deeply frightened Ms. Johnson and
reasonably so.” The court further noted that,
By their verdict, the jury sent a message to the court and to
Mr. Henderson that they didn’t see his conduct as simply
empty words spoken while he was drunk to no one in
particular. They saw it as a real threat with real impacts on
real people in a major and important real court proceeding.
So the sentence that’s imposed here needs to reflect that.
The court ultimately sentenced Henderson to 48 months with 30 months suspended
(18 months to serve) and a 4-year term of probation.
This appeal followed.

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Overview of First Amendment law as it applies to “true threats”
The First Amendment of the United States Constitution, made applicable
to the states through the Fourteenth Amendment, provides that the government shall
“make no law . . . abridging the freedom of speech.”9 The Alaska Constitution similarly
provides that “[e]very person may freely speak, write, and publish on all subjects, being
responsible for the abuse of that right.”10
A law that proscribes speech based on the message that the speech
conveys is considered content-based.11 As a general matter, content-based restrictions
on speech are “presumptively invalid” under the First Amendment and are upheld only
if they survive strict scrutiny — i.e., only if the government proves that they are
narrowly tailored to serve a compelling state interest.12
But the United States Supreme Court has identified certain “historic[,] . . .
traditional,” and “narrowly limited” categories of speech that fall outside the First
Amendment’s protection and whose restriction is not presumptively invalid.13 These
categories of unprotected speech are “‘often described . . . as being of such slight social
value as a step to truth that any benefit that may be derived from them is clearly
9 U.S. Const. amend. I, § 2; U.S. Const. amend. XIV, § 1.
10 Alaska Const. art. I, § 5.
11 See McCullen v. Coakley, 573 U.S. 464, 479 (2014) (explaining that a restriction is
“content based if it require[s] ‘enforcement authorities’ to ‘examine the content of the
message that is conveyed to determine whether’ a violation has occurred”) (quoting F.C.C.
v. League of Women Voters of Cal., 468 U.S. 364, 383 (1984)).
12 United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813, 817 (2000) (quoting
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)); see also McCullen, 573 U.S. at 479.
13 United States v. Stevens, 559 U.S. 460, 468-69 (2010) (first quoting Simon &
Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991)
(Kennedy, J., concurring in the judgment); and then quoting Chaplinsky v. New Hampshire,
315 U.S. 568, 571 (1942)).

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outweighed by the social interest’ in their proscription.”14 The categories of unprotected
speech include obscenity, incitement, defamation, fraud, true threats, and speech
integral to criminal conduct.15
The current case involves the “true threats” category of unprotected
speech. “True threats are ‘serious expression[s]’ conveying that a speaker means to
‘commit an act of unlawful violence.’”16 As the United States Supreme Court recently
explained in Counterman v. Colorado, the word “true” is what distinguishes
constitutionally unprotected speech from “jests, ‘hyperbole,’ or other statements that
when taken in context do not convey a real possibility that violence will follow (say, ‘I
am going to kill you for showing up late’).”17 Notably, the speaker need not actually
intend to carry out the threat.18 Instead, the “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.’”19
14 Counterman v. Colorado, 600 U.S. 66, 73-74 (2023) (quoting Stevens, 559 U.S. at
470).
15 Id.; Stevens, 559 U.S. at 468-69.
16 Counterman, 600 U.S. at 74 (alteration in original) (quoting Virginia v. Black,
538 U.S. 343, 359 (2003)).
17 Id. (quoting Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam)).
18 Black, 538 U.S. at 359-60; see also State v. Borowski, 378 P.3d 409, 411 (Alaska
App. 2016) (“[A] person can be prosecuted for communicating a threat of harm to another
person even if the speaker does not seriously intend to carry out the threat, so long as the
speaker is aware that people would reasonably interpret the words as a real threat of
harm.”).
19 Black, 538 U.S. at 360 (alteration in original) (quoting R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992)).

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Before Counterman, most jurisdictions applied solely an objective test
when defining what constitutes a “true threat” for First Amendment purposes.20 In
Melugin v. State, the unpublished case Henderson’s attorney cited in the trial court
proceedings, this Court described the objective test as follows:
[I]n order for the government to establish a “true threat” it
must demonstrate that the defendant made a statement in a
context or under such circumstances wherein a reasonable
person would foresee that the statement would be interpreted
by those to whom the maker communicates a statement as a
serious expression of an intention to inflict bodily harm upon
or to take the life of [another individual].[21]
This test was consistent with the test used by many state and federal courts, although
sometimes the test was framed in terms of a reasonable recipient rather than a
reasonable speaker.22
20 See Harriet S. Shelly, Counterman v. Colorado — True Threats and the First
Amendment: Long-Awaited Clarity on the True Threat Doctrine, 48 Am. J. Trial Advoc.
453, 460-61 (2025).
21 Melugin v. State, 1992 WL 12153153, at *4 (Alaska App. May 6, 1992)
(unpublished) (alterations in original) (quoting United States v. Hoffman, 806 F.2d 703,
707 (7th Cir. 1986)). We note that we used a different “true threats” definition in Powell v.
State, 12 P.3d 1187 (Alaska App. 2000). In that case, we quoted from a 1976 Second
Circuit case and required the threat to be “on its face and in the circumstances in which it
was made to be so unequivocal, unconditional, immediate and specific as to the person
threatened, as to convey a gravity of purpose and imminent prospect of execution.” Powell,
12 P.3d at 1190-91 (Alaska App. 2000) (quoting United States v. Kelner, 534 F.2d 1020,
1027 (2d Cir. 1976)).
22 See, e.g., United States v. Turner, 720 F.3d 411, 420 (2d Cir. 2013) (explaining that
the Second Circuit test for whether conduct amounts to a true threat “is an objective one
— namely, whether an ordinary reasonable recipient who is familiar with the context of
the [communication] would interpret it as a threat of injury” (alteration in original) (quoting
United States v. Davila, 461 F.3d 298, 305 (2nd Cir. 2006))); United States v. Mabie,
663 F.3d 322, 330 (8th Cir. 2011) (“A ‘true threat’ is defined as a ‘statement that a
reasonable recipient would have interpreted as a serious expression of an intent to harm or
cause injury to another.’” (quoting Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616,
624 (8th Cir. 2002) (en banc))); see also Adrienne Scheffey, Note, Defining Intent in 165
Characters or Less: A Call for Clarity in the Intent Standard of True Threats After Virginia

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Courts also struggled with whether there is a subjective mens rea element
to the “true threats” test.23 Alaska cases, although recognizing that some subjective
mens rea element applies, has not been uniform on which mens rea applies.24 In
Baker v. State, for example, this Court suggested that a defendant must be at least
reckless with regard to the fact that a reasonable listener would view their statements as
a serious expression of an intention to inflict bodily harm.25 But in State v. Borowski,
this Court suggested that the mens rea for a “true threat” was knowingly — that is, the
person must be aware that their communication would be interpreted as “a real threat
of harm.”26
v. Black, 69 U. Miami. L. Rev. 861, 879, 883 (2015) (“The First, Third, and Seventh
Circuits use a reasonable speaker standard, grounding their interpretations of a true threat
in how the ‘reasonable speaker’ would ‘foresee that the statement would be interpreted.’ .
. . The Second, Fourth, Sixth, [and] Eighth . . . Circuits all apply an objective ‘reasonable
recipient’ test, which looks at whether a reasonable recipient who is familiar with the
context of the statement would see the speech as a ‘serious expression of an intent to do
harm.’”).
23 See Counterman v. Colorado, 600 U.S. 66, 72 (2023); Elonis v. United States,
575 U.S. 723, 740-42 (2015); see also Shelly, supra note 20, at 460-61, 467 (“Prior to
Counterman, the First, Second, Third, Fourth, Sixth, Seventh, and Eighth Circuits
interpreted the true threat doctrine under an objective standard. . . . [T]he Ninth and Tenth
Circuits had already adopted a requisite subjective intent standard for true threat crimes.”).
24 See, e.g., Baker v. State, 22 P.3d 493, 499 (Alaska App. 2001) (recklessly); State v.
Borowski, 378 P.3d 409, 413 (Alaska App. 2016) (knowingly).
25 Baker, 22 P.3d at 499 (“[T]o prove that a defendant has made a [true] threat, the
State must prove (at a minimum) that the defendant acted recklessly concerning the
possibility that their words or conduct would be threatening to others — that their words
or conduct, reasonably construed, communicated an intention to inflict harm.”).
26 Borowski, 378 P.3d at 413 (“[T]he government’s case against Borowski [for
disorderly conduct] would be established if the government proved (1) that Borowski
knowingly made an electronic communication, (2) that this electronic communication
threatened physical injury, (3) that Borowski knew that the communication would be
viewed as a threat, and (4) that Borowski made the communication with the intent of
harassing or annoying another person.”).

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In 2023, the United States Supreme Court resolved each of these issues in
Counterman v. State.27 There, the Court adopted the “reasonable recipient” formulation
of the objective test.28 As the Court described, “The existence of a [true] threat depends
not on ‘the mental state of the author,’ but on ‘what the statement conveys’ to the person
on the other end.”29
The Court also resolved the mens rea question, at least with regard to the
federal constitution.30 To prevent the chilling of protected speech, the Counterman
Court held that the First Amendment erects a buffer zone around true threats, requiring
the government to prove a subjective mens rea before a speaker may be punished
criminally for making a true threat.31 Balancing the competing interests of free
expression and “protecting against the profound harms . . . that attend true threats of
violence,” a majority of the Court determined that “recklessness” was the appropriate
mens rea for a prosecution based on “true threats.”32
Justice Sonia Sotomayor, joined in part by Justice Neil Gorsuch, wrote
separately to express her view that the majority overstepped by announcing a single
mens rea standard (recklessness) for all threat-based prosecutions.33 Justice Sotomayor
agreed that recklessness was the appropriate standard in Counterman, where the
statements were repeated and the speech was closely intermingled with illegal stalking
27 Counterman v. Colorado, 600 U.S. 66 (2023).
28 Id. at 74.
29 Id. (quoting Elonis, 575 U.S. at 733).
30 Id. at 79-82.
31 Id. at 69, 75.
32 Id. at 73, 80.
33 Id. at 83-84 (Sotomayor, J., concurring in part and concurring in the judgment).

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conduct.34 She argued, however, that when a prosecution is based on a “single
intemperate utterance,” the First Amendment should demand a higher mens rea
standard, such as intentionally, to prevent accidental liability and the chilling of heated
(but protected) expression.35
Thus, after Counterman, a government prosecuting a defendant for the
issuance of a threat of violence based purely on speech must prove both an objective
and a subjective test to satisfy the First Amendment. First, the prosecution must prove
beyond a reasonable doubt that the defendant’s statement was a “true threat” in the
sense that the statement occurred in a context or under such circumstances where a
reasonable recipient would interpret the communication as a serious expression of an
intent to do harm, rather than as something said in jest, idle talk, or hyperbole.36 Second,
the prosecution must prove beyond a reasonable doubt that the defendant acted
recklessly with regard to the fact that the statement would be viewed as a true threat —
that is, the prosecution must prove that “the defendant consciously disregarded a
substantial risk that their communication would be viewed as threatening violence.”37
As we explain later in this opinion, it is possible that a higher mens rea — such as
knowingly or intentionally — applies under the Alaska Constitution, but we need not
decide that issue in this case.
34 Id. at 85-86.
35 Id. at 86-88.
36 Id. at 74 (majority opinion); State v. Hill, 307 A.3d 1157, 1166 (N.J. 2024) (“A true
threat is speech that, when taken in context, objectively threatens unlawful violence.”).
37 Counterman, 600 U.S. at 69.

– 17 – 2834
Henderson’s argument that the superior court erred in failing to give a
“true threats” instruction to the jury in his case
In the current case, Henderson was prosecuted for the content of his
speech — that is, he was prosecuted for saying that he was going to kill Johnson, a
witness in his son’s murder prosecution. Because this was a prosecution based on
speech, this case directly implicates the First Amendment concerns discussed above. In
the proceedings before the superior court, the parties did not meaningfully discuss these
First Amendment concerns (although when Henderson’s attorney proposed a jury
instruction defining the word “threat,” she did cite to an unpublished First Amendment
case and noted in the abstract that some threats are protected by the First Amendment).
On appeal, however, Henderson focuses on the First Amendment
implications of his case, raising a number of interrelated claims of error.
First, Henderson argues that it was error for the superior court to use the
statutory definition of “threat” rather than the “true threats” instruction that his attorney
proposed. Second, Henderson argues that it was error for the superior court to fail to
instruct the jury on the subjective mens rea required for prosecutions of “true threats”
post-Counterman. Indeed, Henderson goes further and argues that this Court should
adopt Justice Sotomayor’s Counterman concurrence and hold that, under the Alaska
Constitution, the State was required to prove that Henderson intended his statement
“I’m going to kill Katrina Johnson” to be received as a “true threat” — i.e., as a serious
expression of an intention to inflict bodily harm upon another person.38
Henderson acknowledges that his trial attorney never requested a “true
threats” instruction that included a subjective mens rea and that this issue is therefore
being raised for the first time on appeal. However, as a new constitutional rule, the
38 See Counterman, 600 U.S. at 83-84 (Sotomayor, J., concurring in part and
concurring in the judgment).

– 18 – 2834
Counterman holding is retroactively applicable to Henderson’s case because his case is
still under direct review.39
The rules of preservation nevertheless still apply.40 Because Henderson
did not request a “true threats” instruction with a subjective mens rea requirement in
the trial court proceedings, he must show plain error.41 “Plain error is an error that
(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was
obvious; (3) affected substantial rights; and (4) was prejudicial.”42 When assessing
whether an error is “obvious” for purposes of a retroactively applied new constitutional
rule, Alaska courts look to the law at the time of the appeal rather than the law as it
existed at the time of trial.43
39 See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding “that a new rule for the
conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal,
pending on direct review or not yet final”).
40 See Charles v. State, 326 P.3d 978, 986-87 (Alaska 2014) (explaining that a trial
court’s decision “not to apply a not-yet-announced constitutional rule” is reviewed for plain
error).
41 See id.; Griffith, 479 U.S. at 322 (explaining that “failure to apply a newly declared
constitutional rule to criminal cases pending on direct review violates basic norms of
constitutional adjudication”); Henderson v. United States, 568 U.S. 266, 268-69 (2013)
(clarifying that an error “can . . . still count as ‘plain’ even if the erroneous nature of that
ruling is not ‘plain’ until the time of appellate review”).
42 Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
43 See Charles, 326 P.3d at 986-87 (explaining that “in deciding whether it was plain
error not to apply a not-yet-announced constitutional rule, . . . we ask whether the error was
‘so prejudicial to the fairness of the proceedings that . . . failure to correct it would
perpetuate manifest injustice’” (quoting Charles v. State, 287 P.3d 779, 783 (Alaska
App. 2012))); see also Henderson, 568 U.S. at 269, 271 (reasoning that appellate courts
must generally apply the law in effect at the time of the appellate courts’ decision and
holding that “as long as the error was plain as of . . . the time of appellate review — the
error is ‘plain’ within the meaning of [Federal Rule of Criminal Procedure 52(b)]”).

– 19 – 2834
The State acknowledges that Henderson’s case implicates First
Amendment concerns because Henderson was prosecuted for the contents of his speech.
The State argues, however, that Henderson was not prejudiced by the absence of a
comprehensive “true threats” instruction at trial for two reasons.
First, citing to Turney v. State, the State argues that the “true threats”
doctrine does not apply to prosecutions involving interference with official proceedings
that prohibit retaliatory threats against witnesses because these prosecutions necessarily
involve unprotected speech.44 Turney was convicted of jury tampering for approaching
three prospective jurors in front of a courthouse and telling them to call a phone number
that would inform them about jury nullification.45 The Alaska Supreme Court upheld
the jury tampering statute against a First Amendment challenge, holding that “[s]peech
aimed at influencing the juror’s conduct as a juror . . . in a particular case, is not
constitutionally protected.”46 The State argues that “Turney’s logic and result control
here” and that “[s]urely an attempt to obstruct justice by threatening to kill the main
witness in a murder case is not worthy of more constitutional protection than an attempt
to obstruct justice by giving jurors accurate information about jury nullification.”47
44 Turney v. State, 936 P.2d 533 (Alaska 1997).
45 Id. at 537-38.
46 Id. at 538-39, 541.
47 See also Baker v. State, 22 P.3d 493, 499 (Alaska App. 2001) (holding that the
statute prohibiting interference with official proceedings including threatening or bribing
a witness “does not punish protected speech, for there is no First Amendment right to
threaten someone else with harm”); United States v. Shoulberg, 895 F.2d 882, 886 (2d Cir.
1990) (“The First Amendment does not guarantee a right to make intimidating threats
against government witnesses.” (collecting cases)); People v. Hickman, 988 P.2d 628, 639
(Colo. 1999) (en banc) (noting “various threats not entitled to First Amendment protection,
such as threats to kill a person and threats to retaliate forcibly against governmental
witnesses”).

– 20 – 2834
Although we are inclined to agree with the State that retaliatory death
threats against witnesses in official proceedings are not protected by the First
Amendment, we note that Turney is an older First Amendment case that pre-dates the
United States Supreme Court’s 2010 decision United States v. Stevens.48 In Stevens, the
Court held that the prohibited speech must fit within one of the “narrowly limited”
categories of unprotected speech such as obscenity, incitement, defamation, fraud, true
threats, and speech integral to criminal conduct.49 Arguably, the Alaska Supreme
Court’s decision in Turney implicitly rested on the exception for “speech integral to
criminal conduct,” but the State’s brief does not directly analyze this exception in its
discussion of Turney.50
In the alternative, the State argues that the superior court’s failure to
provide a comprehensive true threats instruction is harmless beyond a reasonable doubt
because the jury instructions that were given at trial subsumed the constitutional
requirements for a true threat and ensured that Henderson was not convicted for
protected speech.
For the reasons explained in the next section, we conclude that the jury
instructions — which required the jury to find that Henderson “knowingly threatened
48 United States v. Stevens, 559 U.S. 460, 468-69 (2010).
49 Id.
50 As a general matter, speech integral to criminal conduct is “speech that is intended
to bring about a particular unlawful act.” State v. Hill, 307 A.3d 1157, 1167 (N.J. 2024).
However, courts and legal scholars have cautioned against the potential circular logic
inherent in this exception. See e.g., People v. Burkman, 15 N.W.3d 216, 235-36
(Mich. 2024); United States v. Matusiewicz, 84 F. Supp. 3d 363, 369 (D. Del. 2015);
Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L.
Rev. 981, 986-87 (2016). Because we conclude that the jury instructions that were given
in this case adequately incorporated the constitutional requirements for prosecution of a
“true threat” and ensured that Henderson was not convicted for constitutionally protected
speech, we do not need to reach the speech integral to criminal conduct exception here.

– 21 – 2834
[Johnson] with the intent to retaliate against her for her participation [as a witness] in
an official proceeding” — adequately conveyed the legal principles underlying a
comprehensive true threats instruction, thereby ensuring that Henderson was not
convicted for speech that was protected by the First Amendment. Accordingly, even if
omission of a “true threats” instruction was erroneous, this omission was harmless
beyond a reasonable doubt.51
Why we conclude that the jury instructions for interference with official
proceedings subsumed the constitutional requirements of a “true threat”
The question of when jury instructions defining “true threats” and
requiring the necessary subjective mens rea need to be given can be difficult.52 In some
cases, it is obvious that such an instruction is needed and that failure to specifically
instruct the jury on “true threats” is reversible error.53 In other situations, however, the
51 Henderson also claims on appeal that omission of a “true threats” instruction was
structural error, requiring reversal under Jordan v. State, 420 P.3d 1143 (Alaska 2018). But
we decline to apply structural error when the facts found by the jury necessarily embrace
the omitted element, as we find that they do in this case. See, e.g., Brown v. State, 435 P.3d
989, 992 (Alaska App. 2018); Young v. State, 2023 WL 8923676, at *3-5 (Alaska App.
Dec. 27, 2023) (unpublished) (citing Neder v. United States, 527 U.S. 1, 35 (1999) (Scalia,
J., dissenting)).
52 We note that Counterman made clear that a “true threat” is defined objectively by
“‘what the statement conveys’ to the person on the other end,” but that to prosecute a person
for making a true threat, the government must show that the defendant was at least reckless
with regard to the fact that their words would be received as a serious expression of a threat
to do harm. Counterman v. Colorado, 600 U.S. 66, 69, 74 (2023) (quoting Elonis v. United
States, 575 U.S. 723, 733 (2015)). Some courts therefore treat the question of whether a
particular statement is a true threat as separate from proving whether the speaker made it
with the requisite mens rea. See, e.g., Drexel v. Commonwealth, 900 S.E.2d 524, 536
(Va. App. 2024) (“Proving that a particular statement is a [true] threat is separate from
proving the speaker made it with the requisite mens rea.”). For purposes of this opinion,
however, we treat the requirements of a proper “true threats” instruction as incorporating
both the objective and subjective tests.
53 See, e.g., Mead v. State, 2021 WL 717838, at *2-3 (Alaska App. Feb. 24, 2021)
(unpublished) (reversing conviction for third-degree assault because the jury was not

– 22 – 2834
elements of the criminal offense may be such that the jury’s findings under those
elements are sufficient to establish the constitutional requirements of a “true threat.”54
In United States v. Stewart, for example, the Ninth Circuit affirmed a defendant’s
conviction for threatening a federal judge, concluding that the elements of the offense
“subsume[d]” any constitutional requirement under the First Amendment that the
defendant actually intend his speech to be a threat.55
Stewart was issued prior to the United States Supreme Court’s
clarification in Counterman of the mens rea required for true threats. Because this issue
was still undecided, the Ninth Circuit assumed without deciding that the federal
constitution required the defendant to intend to make a true threat — the higher
mens rea later advocated by Justice Sotomayor in Counterman and argued by
Henderson in this case.56
The statute at issue in Stewart, 18 U.S.C. § 115(a)(1)(B), prohibited
“threaten[ing] to assault, kidnap, or murder [a federal judge] . . . with intent to impede,
intimidate, or interfere with such . . . judge . . . or with intent to retaliate against such
. . . judge . . . on account of the performance of official duties.”57 The defendant, a
federal prisoner, was convicted under this statute after he threatened to kill the judge
provided with either the statutory definition of “threat” or the constitutional requirements
of a “true threat”).
54 See, e.g., United States v. Stewart, 420 F.3d 1007, 1017-19 (9th Cir. 2005); People
v. Casper, 577 P.3d 489, 496-98 (Colo. App. 2025) (concluding that the jury instructions
were constitutionally adequate in that they required the jury to find that the defendant acted
with a culpable mental state higher than recklessness in stalking conviction).
55 Stewart, 420 F.3d at 1017-19.
56 Id.
57 Id. at 1012-13 (quoting 18 U.S.C. § 115(a)(1)(B)).

– 23 – 2834
who presided over his criminal case.58 On appeal, the defendant argued that his
conviction violated the First Amendment because his threat did not qualify as a “true
threat.”59 In rejecting this claim, the Ninth Circuit emphasized that the statute required
proof of a specific intent to “impede, intimidate, interfere with, or retaliate against” the
target of the threat (the federal judge), and the court reasoned that proof of this specific
intent met any constitutional requirement under the First Amendment that the defendant
subjectively intended his speech to be a threat.60 As the Ninth Circuit explained,
A conviction under that statute could only be had upon proof
that the speaker intended the speech to impede, intimidate,
interfere with, or retaliate against the protected official. Such
proof would seem to subsume the subjective “true threat”
definition announced in Black and recognized by Cassel; one
cannot have the intent required under section 115(a)(1)(B)
without also intending to make the threat.[61]
Henderson’s case is similar to Stewart in that the elements of the offense
necessarily ensured that Henderson was not convicted for speech that was protected by
the First Amendment.
Henderson was prosecuted for interference with official proceedings
under AS 11.56.510(a)(1)(C). This statutory provision provides, in relevant part,
A person commits the crime of interference with official
proceedings if the person
(1) uses force on anyone, damages the property of anyone,
or threatens anyone with intent to
. . . .
58 Id. at 1010-12.
59 Id. at 1015.
60 Id. at 1019.
61 Id. at 1017 (first citing Virginia v. Black, 538 U.S. 343, 359-60 (2003); and then
citing United States v. Cassel, 408 F. 3d 622, 631 (9th Cir. 2005)).

– 24 – 2834
(C) retaliate against a witness or juror because of
participation by the witness or juror in an official
proceeding.
At Henderson’s trial, the superior court instructed the jury as follows:
Michael Henderson, the defendant in this case, has
been charged with the crime of interference with official
proceedings.
To prove that the defendant committed this crime, the
state must prove beyond a reasonable doubt each of the
following elements:
1. Katrina Johnson was a witness in an official
proceeding;
2. The defendant knew Katrina Johnson was a witness in
an official proceeding;
3. The defendant knowingly threatened Katrina Johnson
with the intent to retaliate against her for her participation
in an official proceeding.
. . . .
“Threat” means a menace, however communicated,
to inflict physical injury on anyone.
There are three critical components to this instruction. First, the
instruction required the jury to find that Henderson “knowingly threatened” Johnson.
Second, the instruction required the jury to find that Henderson knowingly threatened
Johnson with the specific intent of “retaliating” against her for her participation as a
witness in an official proceeding. Lastly, the instruction required the jury to find that
Henderson’s statement was a “threat,” or a “menace . . . to inflict physical injury on
anyone.” We conclude that, viewed together, these instructions were sufficient to ensure
that Henderson was not prosecuted for engaging in constitutionally protected speech.
First, as the State points out in its briefing, the court’s use of the word
“menace” automatically elevated the seriousness of the threat and distinguished it from
something said in jest or hyperbole. As a general matter, the word “menace” connotes

– 25 – 2834
something objectively harmful or evil.62 The Merriam-Webster dictionary defines
“menace” as “a show of intention to inflict harm: threat.”63 Likewise, Roget’s New
Thesaurus defines “menace” as “[o]ne regarded as an imminent danger” or “an
expression of the intent to hurt or punish another.”64
Moreover, like the word “menace,” the word “retaliation” is associated
with doing something harmful to another person. The Merriam-Webster Dictionary
defines “retaliate” as “to return like for like; especially: to get revenge.”65 The Collins
Dictionary similarly defines retaliate as “to return like for like, esp[ecially], to return
evil for evil.”66 Thus, based on the jury instructions, the jury could not convict
Henderson unless it found that his threat objectively qualified as “a menace”— i.e., as
a serious expression of an intent to cause harm — and that Henderson specifically
intended it to be received as such.67
62 See, e.g., Melugin v. Hames, 38 F.3d 1478, 1485 (9th Cir. 1994) (holding that
AS 11.56.510(a)(1)(D), interference with official proceedings, did not criminalize
constitutionally protected communications because it relied upon a statutory definition of
“threat” that meant “‘a menace,’ which requires some evil or improper act”).
63 “Menace,” Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/menace (last visited Oct. 12, 2026).
64 “Menace,” Roget’s II: The New Thesaurus 629 (3d ed. 1995); see also “Menace,”
Black’s Law Dictionary (12th ed. 2024) (“1. A show of hostile intent or of likely infliction
of harm; a threat, esp. of violence. 2. An implied threat or danger.”).
65 “Retaliate,” Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/retaliate (last visited Oct. 12, 2026); see also “Retaliate,” Oxford Reference,
https://www.oxfordreference.com/display/10.1093/oi/authority.20110803100416499 (last
visited Oct. 12, 2026) (defining retaliate as to “make an attack or assault in return for a
similar attack”).
66 “Retaliate,” Collins Dictionary, https://www.collinsdictionary.com/dictionary/
english/retaliate (last visited Oct. 12, 2026).
67 See Counterman v. Colorado, 600 U.S. 66, 74 (2023) (“The ‘true’ in that term
distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken

– 26 – 2834
We note that, at trial, Henderson did not argue that his statement, “I’m
going to kill Katrina Johnson,” uttered in the middle of a court hearing, was not an
objectively frightening statement if it had been heard by Johnson. Instead, the main
focus of his defense, and of the trial, was whether he had intended the statement to be
heard by anyone other than his then-girlfriend. As the defense attorney argued,
“Someone can say . . . evil things in the privacy of their own home, but unless they
intended the person to whom those threats were directed to, to hear them, they did not
intend to threaten them.” The attorney therefore focused on the facts that could have led
the jury to conclude that Henderson meant only to speak with his then-girlfriend and
had not intended for Johnson to hear the death threat.68
But in finding that Henderson “knowingly threatened” Johnson “with the
intent to retaliate” against her, the jury necessarily rejected this defense — and found
that Henderson acted with a mens rea exceeding the requirements of Counterman.69
in context do not convey a real possibility that violence will follow.” (quoting Watts v.
United States, 394 U.S. 705, 708 (1969) (per curiam))).
68 Prior to trial, the defense attorney filed an ex parte notice of Henderson’s theory of
defense. The notice stated:
Mr. Henderson will argue at trial that he did not have the requisite intent to
commit the crime of Interference with Official Proceedings because he
believed that his phone line was muted. Specifically, he will argue that he
could not have had the intent because the Judge requested that the court clerk
mute Mr. Henderson’s phone line just before Mr. Henderson made the
statement, “I’m going to kill Katrina Johnson.” Mr. Henderson, therefore
reasonably believed that his statement to Deborah Staples could not be
overheard, as the judge had just announced that Mr. Henderson’s line would
now be muted. As he did not have a desire to communicate a threat, he could
not have intended to retaliate against her.
The defense attorney primarily followed this defense at trial. Although Henderson on
appeal argues that his statements were hyperbole, his attorney did not argue that at trial.
69 Counterman, 600 U.S. at 69 (stating the required mental state is “recklessness”).

– 27 – 2834
Taken together, the jury instructions defining “knowingly” and the
elements of interference with official proceedings required the jury to find that
Henderson threatened Johnson with an awareness that his conduct was of that nature —
i.e., a “menace.” That is, the jury was required to find that Henderson knew that “others
w[ould] take his words as threats.”70
Furthermore, the jury had to find that he uttered those words with an intent
to retaliate. As the superior court explained in its order denying the motion for judgment
of acquittal and a new trial, “if [Henderson] (incorrectly) believed that he was speaking
privately to Ms. Staples, it would be difficult to construe his statements as retaliatory.”
Instead, to find Henderson’s statement “I’m going to kill Katrina Johnson” was made
“with the intent to retaliate,” the jury must necessarily have found that Henderson
intended for Johnson to hear the death threat (or at least hear of it) and to be harmed by
its threatening nature in return for the harm he believed she had caused his son Isaac as
a witness in an official proceeding.
As we previously explained, the test for a “true threat” post-Counterman
includes both an objective and a subjective component: that a reasonable recipient
would find the speech threatening and that the defendant was at least reckless with
respect to whether the recipient would find the speech threatening.71 Here, in order to
convict Henderson, the jury was required to find beyond a reasonable doubt that
(1) Henderson’s threat to kill Johnson was “a menace . . . to inflict physical injury,”
(2) Henderson made this threat “knowingly” and (3) he did so “with the intent to
retaliate against [Johnson] for her participation [as a witness] in an official proceeding.”
We conclude that these findings, like the jury findings in Stewart, subsumed the
findings that the jury would otherwise have needed to make if it had received
70 Id. at 79.
71 Id. at 69, 74.

– 28 – 2834
instructions defining the constitutional requirements of “true threats” under federal law
or the heightened mens rea standard (intent) under the Alaska Constitution for which
Henderson advocates on appeal. In other words, the jury here necessarily found that a
reasonable recipient would find the words “I’m going to kill Katrina Johnson”
threatening and that Henderson intended for his words to be received as a threat. We
therefore need not reach the question of whether a heightened mens rea applies under
the Alaska Constitution.
Henderson’s argument that the evidence at trial was insufficient to
support his conviction
Henderson also argues that the evidence at trial was insufficient to support
his conviction and that the court therefore erred in denying his motion for judgment of
acquittal. Whether the evidence presented at trial is sufficient to support the defendant’s
conviction is a question of law that we review de novo.72 When a defendant challenges
the sufficiency of the evidence to support a criminal conviction, we are required to view
the evidence, and all reasonable inferences that can be drawn from that evidence, “in
the light most favorable to upholding the jury’s verdict.”73 Viewing the evidence in this
light, we then decide whether a fair-minded juror exercising reasonable judgment could
conclude that the State had met its burden of proving guilt beyond a reasonable doubt.74
As we already explained, to convict Henderson of interference with an
official proceeding under AS 11.56.510(a)(1)(C), the State was required to prove that
Henderson “knowingly threatened” Johnson “with the intent to retaliate” against
Johnson for her participation as a witness in the State’s prosecution of Henderson’s son.
72 Stacy v. State, 500 P.3d 1023, 1032 (Alaska App. 2021).
73 Id.
74 Id.

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As an initial matter, we note that there was nothing equivocal or
conditional about Henderson’s threatening words. The threat was overt — “I’m going
to kill Katrina Johnson.”75 Moreover, as the superior court found, the statement was
made “calmly” and in a “matter-of-fact way” under circumstances — in the midst of a
public court hearing — that demonstrated a gravity of purpose to the threatening words.
Notably, there was no suggestion at trial that Henderson’s tone was joking or that he
was engaged in hyperbole, political or otherwise (as he suggests on appeal). Indeed, the
threat was against a lay witness in a murder prosecution; it was not verbal criticism or
a challenge directed at a political figure or police officer.76
When the superior court denied Henderson’s motion for judgment of
acquittal, it found that there was sufficient evidence presented at trial from which a fair-
minded factfinder could reasonably find that the State had proven that Henderson
knowingly threatened Johnson with the intent to retaliate against her for her
participation as a witness in an official proceeding.
75 See State v. Chung, 862 P.2d 1063, 1072 (Haw. 1993) (asserting that “a statement
that amount[s] to a threat to kill . . . would not be protected by the First Amendment”
(alterations in original) (quoting Rankin v. McPherson, 483 U.S. 378, 386-87 (1987)));
People v. Hickman, 988 P.2d 628, 639 (Colo. 1999) (en banc) (noting “various threats not
entitled to First Amendment protection, such as threats to kill a person and threats to
retaliate forcibly against governmental witnesses”); Baker v. State, 22 P.3d 493, 499
(Alaska App. 2001) (explaining that statute criminalizing threats and bribes communicated
to witnesses does not punish protected speech because “there is no First Amendment right
to threaten someone else with harm”); Melugin v. Hames, 38 F.3d 1478, 1484 (9th Cir.
1994) (“Courts have consistently held that statutes proscribing threats of death and physical
injury are not, on their face, overbroad.”).
76 See Melugin, 38 F.3d at 1484 (“Statements that are mere ‘political hyperbole’ must
be viewed ‘against the background of a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials.’” (quoting Watts v. United States, 394 U.S. 705, 708 (1969))).

– 30 – 2834
At trial, Henderson’s attorney argued that Henderson had not intended for
Johnson to hear his statement, “I’m going to kill Katrina Johnson.” She argued, instead,
that his words were merely an expression of frustration said privately to Staples
(Henderson’s then-girlfriend) at a time when Henderson believed that the telephone line
was muted and nobody could hear what he said. On appeal, Henderson points to facts
that support this claim: namely, that Henderson was appearing telephonically and not
in person and the judge had just requested that the in-court clerk mute the line because
of previous outbursts by Henderson and Staples.
But, as the superior court explained in its order denying Henderson’s
motion for judgment of acquittal, there were also facts supporting a finding that
Henderson was aware that his statement, “I’m going to kill Katrina Johnson,” could be
heard by the others on the line and that, in his intoxicated state, he intended that Johnson
hear it (or, at least, hear of it) because he intended to retaliate against her for her
participation as a witness at the bail hearing.77 As the court stated in its order:
Mr. Henderson had collected himself by the time he said he
was going to kill Katrina Johnson. Drunk or not, he had been
warned repeatedly that people could hear him. He said what
he said, and according to Ms. Staples he had the phone when
he said it. On these facts, it is reasonable to conclude, as the
jury did, that he actually knew the line was open, and he
intended for someone to hear the threat and convey to her
that he wanted her dead.
There are also other facts that support the conclusion that Henderson knew
that Johnson would hear the threat. As the recording of the bail hearing shows,
Henderson became very angry at Johnson during the hearing because she expressed that
she was afraid of Henderson’s son, and Henderson made derogatory remarks against
Johnson at a time when he clearly knew his remarks could be heard because he had
77 We note that Henderson’s attorney did not argue that Henderson was too intoxicated
to form an intent to retaliate.

– 31 – 2834
been repeatedly admonished by the defense attorney not to speak. The recording also
shows that the judge had previously requested that the line be muted because of
Henderson’s outbursts, only for the clerk to unmute the line a short time later without
any warning. Henderson was therefore on notice that a muted line could, and did,
become unmuted without warning.
Moreover, as the prosecutor argued at closing, if Henderson had wanted
to keep the threat private, he had the ability to mute his own line. A reasonable juror
could find that Henderson did not mute the line because he wanted his threat to be heard
by other people, including Johnson (much like the statements he had earlier directed at
the judge presiding over the bail hearing). Indeed, a reasonable juror could interpret
Henderson’s subsequent statements to the troopers (that what he had to say he felt he
could say “in front of everybody in the courtroom” but took it a “little too far”) as an
acknowledgement that he said things he should not have said at the bail hearing and
that he said them precisely because he wanted them to be heard.
Taking all these facts in the light most favorable to upholding the verdict
— as we are required to do when evaluating the sufficiency of the evidence — we
conclude that the evidence at trial was sufficient to support Henderson’s conviction for
interference with official proceedings.78
Henderson’s argument that the evidence was insufficient to prove that he
was not prosecuted for constitutionally protected speech
In his reply brief, Henderson argues for the first time that because this case
raises First Amendment issues, we should also independently review the record of trial
to determine whether Henderson’s speech is protected by the First Amendment.
78 See Stacy v. State, 500 P.3d 1023, 1032 (Alaska App. 2021).

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As Henderson points out, we conducted such a review in Powell v. State.79
As Judge Mannheimer explained in his Powell concurrence, “even though a jury must
initially decide whether a defendant’s words violate a criminal statute . . . it is ultimately
the reviewing court’s task to decide whether, consistent with the First Amendment, the
defendant’s words can be punished.80 Other appellate courts have similarly conducted
an independent review of the record to ensure that the conviction does not violate the
First Amendment.81
Typically, arguments raised for the first time in a reply brief are
considered waived.82 We will nevertheless conduct the requested independent review
in this case because the review involves essentially the same First Amendment analysis
that we have already conducted.
On appeal, Henderson argues that the Alaska Constitution requires the
State to prove that he intended Johnson to hear the threat and he asserts that the evidence
was insufficient to prove that Henderson intended Johnson to hear the threat. But, as we
already explained, the jury necessarily found that Henderson was aware that Johnson
would hear the statement (or hear of it from others at the hearing) and intended the
79 Powell v. State, 12 P.3d 1187, 1190-91 (Alaska App. 2000).
80 Id. at 1193 (Mannheimer, J., concurring).
81 See, e.g., United States v. Turner, 720 F.3d 411, 419-20 (2d Cir. 2013) (“[W]e in
some contexts independently review so-called ‘constitutional facts,’ ‘scrutiniz[ing]
carefully the lower court’s application of the relevant standards to the facts at hand’ to
ensure that a judgment does not intrude on First Amendment rights.” (alteration in original)
(quoting United States v. Cutler, 58 F.3d 825, 833-34 (2d Cir. 1995))); State v. Johnston,
127 P.3d 707, 712 (Wash. 2006) (“[A] rule of independent appellate review applies in First
Amendment speech cases. An appellate court ‘must “make an independent examination of
the whole record, . . .” so as to assure itself that the judgment does not constitute a
forbidden intrusion on the field of free expression.’” (quoting State v. Kilburn, 84 P.3d
1215, 1223 (Wash. 2004) (en banc))).
82 See Alaska R. App. P. 212(c)(3); Berezyuk v. State, 282 P.3d 386, 398 (Alaska App.
2012).

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statement to be received as threatening when it found that he “knowingly threatened
Katrina Johnson with the intent to retaliate” against her for her participation as a witness
in an official proceeding. Our role in determining whether a conviction violates the First
Amendment does not include second-guessing factual determinations made by the
jury.83
Here, as the superior court acknowledged, the jury’s verdict indicates that
the jury rejected any claim that Henderson’s statement was simply drunken ramblings
that were not intended to frighten anyone. As the superior court stated at sentencing:
By their verdict, the jury sent a message to the court and to
Mr. Henderson that they didn’t see his conduct as simply
empty words spoken while he was drunk to no one in
particular. They saw it as a real threat with real impacts on
real people in a major and important real court proceeding.
We therefore reject Henderson’s argument on appeal that he was prosecuted for
threatening speech without proof of the required mens rea for a “true threat.”
Henderson also argues that there is no evidence “that Henderson truly
meant that he planned to kill Johnson in retaliation for her participation in the bail
proceeding.” But proof that the speaker actually intended to carry out the threat is not
required to prove that a statement qualifies as a “true threat.”84 The law is well-
established that the speaker need not actually intend to carry out the threat.85 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
83 See State v. Taylor, 866 S.E.2d 740, 755-56 (N.C. 2021) (“Independent whole
record review does not empower an appellate court to ignore a trial court’s factual
determinations.”); Johnston, 127 P.3d at 712 (“Whether language constitutes a true threat
is an issue of fact for the trier of fact in the first instance.”).
84 Virginia v. Black, 538 U.S. 343, 359-60 (2003).
85 Id.

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that the threatened violence will occur.’”86 Contrary to Henderson’s argument on
appeal, the State was not required to show that Henderson actually intended to kill
Johnson.
Based on our independent review of the record, we conclude that
Henderson was not prosecuted for constitutionally protected speech.
Henderson’s argument that the superior court erred in denying his motion
for a new trial
Henderson argues that the superior court erred when it denied his motion
for a new trial on the ground that the verdict was against the weight of the evidence.87
This Court reviews the superior court’s denial of Henderson’s motion for
a new trial for abuse of discretion.88 We will reverse the denial “only if the evidence
supporting the verdict is ‘so slight and unconvincing as to make the verdict plainly
unreasonable and unjust.’”89
Here, the superior court denied Henderson’s motion for a new trial
because it found that the jury’s verdict was not against the weight of the evidence. The
court recognized that it was required to sit as a thirteenth juror and make its own
assessment of the weight and credibility of the evidence. Under this test, the court
86 Id. at 360 (alteration in original) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377,
388 (1992)); see also Melugin v. Hames, 38 F.3d 1478, 1485 (9th Cir. 1994) (recognizing
that “[t]he prosecution need not prove that the defendant had the ability or actually intended
to carry out the threat” and the focus is instead on whether the defendant subjectively
intended the speech as a threat)
87 See Alaska R. Crim. P. 33(a).
88 See Phornsavanh v. State, 481 P.3d 1145, 1157-58 (Alaska App. 2021).
89 Id. at 1159 (quoting Hunter v. Philip Morris USA Inc., 364 P.3d 439, 449 (Alaska
2015)).

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concluded that the jury’s verdict represented “a well-informed and carefully considered
decision about that evidence.”
Because the superior court applied the correct legal test and because the
evidence supporting the verdict is not “so slight and unconvincing as to make the verdict
plainly unreasonable and unjust,” we find no abuse of discretion.90
Henderson’s challenges to the warrantless search probation condition
At sentencing, the superior court imposed Special Probation Condition
No. 1, which states as follows:
[Henderson] [s]hall, at the direction of a probation officer,
or at the direction of a law enforcement officer acting as an
agent of a probation officer, submit to a warrantless and non-
consensual search of [his] person, personal property,
residence, vehicle, or any vehicle in which [he is] found for
the presence of:
a. alcohol
b. firearms or deadly weapon[s]
c. Items used for tampering
On appeal, Henderson argues that the superior court erred when it included warrantless
searches for “firearms or deadly weapons” and “items used for tampering.” A
warrantless search condition is subject to special scrutiny and “must bear ‘a direct
relationship’ to the nature of the defendant’s conviction.”91
Henderson objected to both of these warrantless search provisions in the
superior court proceedings. In response, the superior court found that “it’s a closer
question” whether there should be a warrantless search condition for “firearms or
deadly weapons” because the current case did not involve the use of firearms or deadly
90 Id.
91 State v. Ranstead, 421 P.3d 15, 20 (Alaska 2018) (quoting Roman v. State, 570 P.2d
1235, 1242-43 (Alaska 1977)).

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weapons. The court nevertheless emphasized the jury’s findings, which found that
Henderson had made a death threat to a witness in retaliation for her role as a witness
in his son’s murder prosecution. Given the violent nature of the threat and the fact that
Henderson was otherwise prohibited by his probation conditions from possessing
firearms and deadly weapons, we conclude that the court did not abuse its discretion in
imposing this search provision.92
We come to a different conclusion, however, with regard to the
warrantless search provision for “items used for tampering.” The superior court’s only
justification for allowing warrantless searches for these items was that it would help
ensure that Henderson did not tamper with the alcohol testing that was also ordered as
part of probation supervision. But the court did not find that Henderson had any history
of tampering with alcohol tests or that there was any reason to be particularly concerned
that Henderson might tamper with the alcohol tests. Here, there is no direct relationship
between the challenged probation condition and the nature of Henderson’s criminal
conduct. Additionally, the superior court’s stated reasons for including the condition
would apply to every case where testing for alcohol or controlled substances is
otherwise ordered.
Under these circumstances, we vacate the portion of the condition
authorizing warrantless searches for “items used for tampering.”
Conclusion
We VACATE the portion of Henderson’s probation conditions permitting
the probation officer to conduct warrantless searches for “items used for tampering.” In
all other respects, we AFFIRM the superior court’s judgment.
92 See Allen v. Municipality of Anchorage, 168 P.3d 890, 895 (Alaska App. 2007)
(“We have consistently upheld conditions of probation restricting the defendant from
engaging in the activity that formed the basis for the underlying conviction.”).