STATE v. SCHALER

SANDERS, J. (concurring in part and dissenting in part)

¶34 I concur with the majority that Glen Schaler's conviction should be reversed because the jury instructions for the harassment statute were required to and did not include the mens rea element.

¶35 However, I dissent from the majority to the extent it remands this case for a new trial. A new trial is unnecessary because, as a matter of law, none of Schaler's statements here constitutes a "true threat." There is no remaining issue for the jury to consider on remand, and the RCW 9A.46.020 charge against Schaler should be dismissed.

¶36 The harassment chapter under Washington law was enacted to "mak[e] unlawful the repeated invasions of a person's privacy by acts and threats which show a pattern of harassment designed to coerce, intimidate, or humiliate the victim." RCW 9A.46.010. "Threat," undefined in the chapter, is defined elsewhere as "[a] communicated intent to inflict harm or loss on another or on another's property, esp[ecially] one that might diminish a person's freedom to act voluntarily or with lawful consent. . . ." BLACK'S LAW DICTIONARY 1618 (9th ed. 2009); see also WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2382 (2002) ("threat" defined as "expression of an intention to inflict loss or harm on another by illegal means and esp[ecially] by mean involving coercion or duress of the person threatened . . ."). Both by the underlying purpose of the harassment statute and the common definition, a threat is something more than merely expressing one wants to do something; it is expressing an intention to do it with a purpose to coerce, intimidate, or humiliate someone.

¶37 "`A "true threat" is a statement made " in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual]."'" State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001) (emphasis added) (alterations in original) (quoting State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998) (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990))).

¶38 Let's view Schaler's statements under the accompanying circumstances. If Schaler seriously intended to kill his neighbors, would he (a) go next door to his neighbor's home and attempt it, (b) tell his friends, co-workers, or even his neighbors that he was going to kill his neighbors, or (c) call a crisis services hotline and seek help? Circumstance (a) demonstrates intent through action. Circumstance (b), depending upon the accompanying details, may constitute a true threat — a reasonable person might foresee the statements would be interpreted as a serious expression of intent to take another's life. However, circumstance (c) would not lead a reasonable person to foresee such intent because the speaker's behavior — seeking help from a crisis services hotline — is entirely inconsistent with actual intent to kill someone. Contacting the hotline implies the individual may have been tempted to cause someone harm. But it also shows the person sought help because he or she did not want or intend to succumb to that temptation and did not want or intend to actually cause harm.

¶39 Glen Schaler was a troubled man — no question. During the day, thoughts of killing his neighbors invaded his mind. He woke up from a dream one morning and — not fully able to distinguish fantasy from reality — thought he might have actually killed his neighbors. In fact, he was extremely upset by the thought and, despite his hysterical state of mind, called the crisis services hotline.

¶40 He then agreed to accompany a police officer to Mid Valley Hospital. Once there, he was involuntarily committed due to his troubled state of mind — which Director Tonya Heller-Wilson, one of the staff members taking part in Schaler's treatment, characterized as "`[v]ery hysterical'" when he originally called, Trial Tr. vol. II at 269 (Feb. 6, 2007) — and due to his antagonistic behavior toward staff.

¶41 After being involuntarily committed — a restraint that probably did not serve to calm an extremely upset individual — he spoke openly, and very heatedly, to medical professionals, saying he wanted to kill his neighbors. Id. at 248. He said he wanted to strangle them with his bare hands. Id. He also stated, in light of the vivid dream he had, that he hoped he didn't really kill his neighbors. Id. at 267.

¶42 A parallel. An alcoholic wants to have a drink. It fills his thoughts during the day. He even has dreams where he does take a drink. None of that means he intends to take a drink. In fact, instead of taking a drink, he attends an Alcoholics Anonymous (AA) meeting. At the meeting he says, "I want to have a drink" and perhaps even, "I've been planning to have a drink and I will sit at the third stool at the Thirsty Scholar Bar and order a Guinness and a shot of Baileys and Jameson." Under those circumstances — where the individual attended an AA meeting instead of going to a bar, would a reasonable person think the alcoholic seriously intended to have a drink? No. A reasonable person would recognize that the alcoholic is having persistent thoughts about drinking and that he or she is tempted to drink again. But the statements in those circumstances, if anything, express the alcoholic's intent not to have a drink, an intent not to give into temptation. So it is with Schaler who, despite his thoughts, sought help to resist a temptation he had previously been struggling with alone.

¶43 As a matter of law and under the circumstances presented, Schaler's statements do not constitute a true threat. He did not violate RCW 9A.46.020. Schaler may have been fighting a temptation to kill his neighbors, but being tempted to commit an action is not a violation of RCW 9A.46.020 nor, certainly, is fighting that temptation or seeking help to prevent acting upon it.

¶44 The facts here demonstrate the extent to which RCW 9A.46.020 has been overextended to criminalize speech that is not intended to coerce, intimidate, or humiliate a victim. Schaler's speech in the context here had everything to do with Schaler, his attempt to get help, and his admirable efforts to try to work through his problems and — to the extent he was tempted to actually commit an unlawful act — his intent to resist that temptation. His speech had nothing to do with any intent to coerce, intimidate, or humiliate his neighbors. To the extent Schaler posed a danger to his neighbors or the community if released without further treatment, there is a legal mechanism (not at issue here) where a person can be civilly confined involuntarily. RCW 9A.46.020 has no relation to that mechanism, nor should RCW 9A.46.020 be unconstitutionally used as a substitute.

¶45 As a practical matter, I cannot help but consider the ridiculous message Schaler's conviction would send to the public. How should Schaler have avoided transgressing the law? Should he have stayed at home without calling the hotline for help, hysterical after his dream and wrestling alone with his morbid and obsessive thoughts? Should he have lied to, or refrained from fully sharing his thoughts and feelings with, the professionals who were there to assess his condition and help him, undermining their ability to assess and help him? A person having a mental breakdown should not be subject to criminal charges for harassment while he seeks professional help in earnest.

¶46 RCW 9A.46.020 is out of control and must be reined in. Although I concur with the majority's decision that Schaler's conviction should be reversed, I dissent from its holding that a new trial is warranted. This case should be remanded with instructions to the trial court to dismiss the RCW 9A.46.020 charge. The facts here fail to establish a violation of the statute as a matter of law.

J.M. JOHNSON, J. (dissenting)

¶47 Over a four-hour period, Glen Schaler threatened to murder his neighbors Kathy Nockels and Denise Busbin by strangling them with his bare hands. The two victims testified about Schaler's threatening behavior, as did law enforcement officers and a mental health specialist. The jury found that Schaler subjectively intended to communicate an intent to cause bodily injury to these victims. However, the majority holds that Schaler's conviction resulted from erroneous instructions in violation of the First Amendment. That is, Schaler may have reasonably failed to foresee that his repeated statements might be taken seriously as an expression of his intent to kill Nockels and Busbin. The facts show that failure by the trial court to include such a simple negligence mens rea instruction as to foreseeability was harmless. Further, the record reveals that Schaler was aware of this alleged instructional deficiency but did nothing to correct the problem. Schaler thus invited the very error he is complaining of, and he cannot seek reversal on the basis of that error. I dissent.

¶48 The trial court did not include an explicit "true threat" definition in its instructions to the jury, nor was such instruction requested by Schaler. Instead, the trial court gave the jury four separate instructions that, taken together, properly conveyed every aspect of the majority's "true threat" definition except one — whether Schaler foresaw that his conduct would be taken by a reasonable person as a true threat. This failure is subject to a harmless error analysis. See State v. Johnston, 156 Wn.2d 355, 364, 127 P.3d 707 (2006). "In order to hold the error harmless, we must `conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.'" State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002) (quoting Neder v. United States, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). According to the majority, the court should have instructed the jury that, to convict, it had to find Schaler negligently failed to foresee that his conduct would be interpreted as a serious expression to kill Nockels and Busbin. There is no reasonable doubt that the jury would have made the same finding of guilty had it received this added instruction.

¶49 The majority suggests Schaler's conduct reasonably could be viewed as stemming from a mental breakdown or confusion. Schaler's first reports that he was covered in blood and had slit his neighbor's throat may reasonably be questioned as true threats; Schaler was very emotional, displayed anxiety-related symptoms, repeatedly referenced a dream of killing his neighbor, and stated he hoped he had not actually killed anyone. But the current criminal charges against Schaler did not arise from this behavior. The charges are based on Schaler's repeated, clear, and direct threatening statements during his hours-long stay at the hospital.

¶50 Schaler repeatedly stated over a four-hour period at the hospital that he wanted to kill Nockels and Busbin. He was specific about the method — strangulation with his bare hands. He gave reasons for wanting to kill the women, including the chain saw incident (that itself led to a police call) and a history of conflicts. He stated he had been thinking of and wanting to kill the women for months. He maintained this position despite a mental health specialist's efforts to dissuade him. All of this occurred after Schaler had taken his medication and been in the care of mental health specialists for hours. Schaler showed no remorse for his statements and was able to distinguish between his dream (where he thought he killed Nockels and Busbin) and reality (where he wanted to kill them with his bare hands).

¶51 Schaler engaged in further conduct that substantiates his willingness to engage in violent crime. Director Tonya Heller-Wilson had to call Deputy Connie Humphrey back to the hospital twice because of Schaler's behavior. While Humphrey was at the hospital trying to assist the mental health staff, Schaler threatened to start a fight and guaranteed "someone [would] get hurt." Verbatim Report of Proceedings (VRP) (Feb. 6, 2007) at 220. Schaler then said that "next time he was going to get a bunch of guns, and it would be [a] blood bath." Id.

¶52 Prior history also shows reason to perceive the threats as real. On June 1, 2005, Schaler had cut a row of the Busbins' fruit trees with a chain saw. When Nockels asked Schaler to stop, he raised the chain saw toward her and told her not to interfere. In response to a 911 call by Nockels, Deputy Blake arrived and Schaler stated that someone was going to die. Asked to explain himself, Schaler said that "when he became angry, he did feel like that he wanted to kill someone, and that that was a natural human response." VRP (Feb. 6, 2007) at 291.

¶53 Shortly thereafter Nockels and Busbin obtained restraining orders against Schaler from a court. Within days, Schaler violated at least one such order. Further, after threatening Nockels and Busbin's lives on August 10, Schaler ran Nockels' car off the road with his car.

¶54 Nockels and Busbin believed Schaler's threats on June 1 and August 10 were genuine and had to adjust their lives in response. Heller-Wilson felt Schaler's August 10 threats were genuine and properly exercised her discretion to warn those threatened. Although Schaler tried to invoke the patient-mental health counselor privilege to dismiss the charges or prevent Heller-Wilson from testifying, the trial court properly found that Heller-Wilson was statutorily justified in warning Nockels and Busbin and contacting the authorities. See RCW 18.225.105(5); RCW 71.05.390(10). Schaler did not appeal this decision. The jury found Schaler subjectively intended to communicate an intent to cause bodily injury to Nockels and Busbin and that they were placed in reasonable fear that Schaler's threats would be carried out. As we recognized in Kilburn, Nockels and Busbin's reasonable belief that Schaler communicated a true threat carries the same effect as a finding that Schaler should have reasonably foreseen that his statements would be taken as true threats. Kilburn, 151 Wn.2d at 45 n. 3.

¶55 There is no reasonable doubt the jury would have found a person in Schaler's position at least negligent in failing to foresee that his conduct would be taken as a true threat. Schaler made repeated, detailed death threats against specific victims who each had protection orders against him. He clearly and emphatically rejected attempts to dissuade him. He was aggressive and displayed disrespect for police officers and court orders. A reasonable person in Schaler's place would understand that his conduct would be taken as a true threat.

¶56 The policies embodied by the majority's opinion are disturbing. First, everyone in this case (except Schaler) did exactly what they were supposed to do. Nockels and Busbin obtained restraining orders. Heller-Wilson probed Schaler's mental state and the seriousness of his death threats for hours before warning Schaler's victims. Deputy Humphrey assisted Schaler at his home, convinced Schaler to take his medication, and took him to the hospital. Yet the majority declares this was not enough to justify the State acting to protect Nockels and Busbin, despite conduct that clearly signaled danger to their lives.

¶57 Second, the majority's reliance on Schaler dealing with the mental health expert as support for its conclusion may suggest that Heller-Wilson did not act appropriately in warning the victims or contacting the police. Sound policy favors candor between a therapist and patient, but the legislature has expressly provided deference to therapists' professional judgment. The trial court denied Schaler's motion to exclude statements made to Heller-Wilson from evidence due to the patient-mental health counselor privilege. Schaler did not appeal that decision, and we may not question it here. Heller-Wilson felt Schaler's threats were serious enough to warrant intervention, and her judgment is entitled to great deference; lives may depend on it. Today's decision unfortunately may dissuade some therapists from appropriate protective reporting.

¶58 Schaler's conviction should also be affirmed because Schaler invited the error alleged. Schaler argues that the trial court erroneously failed to provide an explicit true threat instruction. However, Schaler did not object to the "threat" instruction given by the trial court or propose an alternate threat instruction despite being clearly cognizant of the supposed shortcoming. Schaler thus invited the error he is complaining about.

¶59 Under the doctrine of invited error, a party cannot set up an error and then complain about it on appeal. State v. Momah, 167 Wn.2d 140, 153-54, 217 P.3d 321 (2009); State v. Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512 (1999); State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting State v. Boyer, 91 Wn.2d 342, 344-45, 588 P.2d 1151 (1979)). This doctrine applies to alleged constitutional violations. See Momah, 167 Wn.2d at 145 (public trial right); Henderson, 114 Wn.2d at 869 (due process); Fed. Trade Comm'n v. Accusearch Inc., 570 F.3d 1187, 1204 (10th Cir. 2009) (equal protection and free speech).

¶60 The invited error doctrine often arises in the context of parties assigning error to jury instructions they proposed. However, the doctrine is applicable in other contexts. We recently held in Momah that a defendant could not complain about court closure during part of voir dire because the defendant "affirmatively assented to the closure, argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefited from it." Momah, 167 Wn.2d at 151-52.

¶61 Before trial, Schaler moved the court to suppress evidence and dismiss the charges. Key to the motion was this court's true threat definition in Kilburn and the argument that Schaler could not reasonably have foreseen his conduct would be interpreted as a true threat. Schaler was thus aware of this court's legal definition of a true threat and argued the importance of the foreseeability aspect the majority discusses. However, Schaler never objected to the trial court's threat definition and never proposed an instruction including foreseeability. The majority now reverses based on an alleged error Schaler knew of but made no effort to cure.

¶62 Although Schaler did not propose a faulty instruction, he actively participated in determining the jury instructions and did not object to any relevant instructions; instead, he assented to them. He thus successfully created the very situation the invited error doctrine is designed to prevent: he tries the case and gets a jury verdict; then, if losing, he gets a new trial. We should not condone this strategy.

¶63 There is no doubt that a reasonable person would have foreseen Schaler's statements at the hospital — that he would murder his neighbors by strangulation — would be understood as a true threat. Any error by the trial court in failing to include a foreseeability jury instruction is therefore harmless. Further, Schaler consciously declined to correct the alleged error he now complains of. I would affirm Schaler's conviction. I dissent.

OWENS, J., concurs with J.M. JOHNSON, J.