(dissenting) — The Court is presented with the issue of whether a criminal harassment statute is unconstitutionally vague or overbroad based on the use of the *214term “mental health.” The majority concludes RCW 9A-.46.020(1)(a)(iv) is unconstitutional and reverses the conviction and remands the case for a new trial. I respectfully dissent.
A party bringing a constitutional challenge to a statute bears the burden of proving its unconstitutionality beyond a reasonable doubt. State v. Halstien, 122 Wn.2d 109, 118, 857 P.2d 270 (1993). Vagueness is an area of constitutionally protected conduct that continues to receive the highest scrutiny. See, e.g., City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). Overbreadth analysis is intended to ensure legislative enactments do not prohibit constitutionally protected conduct. City of Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992). In the instant case, Williams did not meet his burden of proving the criminal harassment statute unconstitutional beyond a reasonable doubt.
Vague
The majority incorrectly concludes that the statute is unconstitutionally vague because the statute contains no meaningful definition of the term “mental health.” Majority at 202-03.
The statute states in pertinent part:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
....
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety ...
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. “Words or conduct” includes, in addition to any other form of communication or conduct, the sending of an electronic communication.
*215RCW 9A.46.020(1)(a)(i), (a)(iv), (b).
The statute proscribes one knowingly threatening to maliciously do an act intended to substantially harm the person threatened with respect to his or her physical or mental health or safety. As used in the statute, “physical” and “mental” are merely modifiers of “health.” In their ordinary meaning, physical means pertaining to body; mental means pertaining to the mind.
Mental is merely an adjective like physical modifying health. Health is a term of general use just as is safety. The term “health” is no more indefinable than safety.
In the same way that physical health can be easily understood, so too can mental health. Physical health, like mental health embodies a continuum from perfect health to grave illness or disease. In any event, there was no claim in this case of injury to mental health.
Under the Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution, a penal statute is impermissibly vague if: (1) the statute “ ‘does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed’ ”; or (2) the statute “ ‘does not provide ascertainable standards of guilt to protect against arbitrary enforcement.’ ” (Quoting Halstein, 122 Wn.2d at 117 (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990))); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972); City of Bellevue v. Lorang, 140 Wn.2d 19, 30, 992 P.2d 496 (2000). This test serves two purposes. First, it ensures that citizens receive fair warning of what conduct they must avoid and, second, it protects citizens from “arbitrary, ad hoc, or discriminatory law enforcement.” Halstien, 122 Wn.2d at 117. A statute is unconstitutionally vague if either requirement is not satisfied. Id.
Any challenge for vagueness must overcome two burdens — the presumption of constitutionality and recognition that some degree of vagueness is inherent in any case. *216First, a statute is presumed to be constitutional unless the presumption is overcome by proof beyond a reasonable doubt. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 739, 818 P.2d 1062 (1991); City of Seattle v. Eze, 111 Wn.2d 22, 26, 759 P.2d 366 (1988); State v. Aver, 109 Wn.2d 303, 306-07, 745 P.2d 479 (1987). The party challenging the statute carries the burden of proving its unconstitutionality. Id. Second, “ ‘impossible standards of specificity’ ” or “ ‘mathematical certainty’ ” are not required because some degree of vagueness is inherent in any use of language. Halstien, 122 Wn.2d at 117 (quoting Eze, 111 Wn.2d at 26-27); Haley, 117 Wn.2d at 740. “ ‘[A] statute is not unconstitutionally vague merely because a person cannot predict with complete certainty the exact point at which his [or her] actions would be classified as prohibited conduct.’ ” Halstien, 122 Wn.2d at 118 (quoting Eze, 111 Wn.2d at 27).
The majority is correct in stating that “[t]rue enough however ‘[t]he fact that some terms in a statute are not defined does not mean the enactment is unconstitutionally vague.’ ” Majority at 204 (quoting State v. Lee, 135 Wn.2d 369, 393, 957 P.2d 741 (1998)). Under the standard of Halstien, the criminal harassment statute is not vague simply because mental health is not defined. Although not defined in the statute, mental health is a term of general use and is easily understood by the average juror. It is recognized that some degree of vagueness is inherent in any use of language and not all terms in the statute must be defined. In addition, Williams has not offered any arguments providing a sufficient basis for finding vagueness beyond a reasonable doubt in the statute.
Williams also argues that the statute does not give proper notice and is inherently subjective because it does not provide guidelines or limitations. The majority incorrectly finds that “these limitations do nothing to cure the problem.” Majority at 205.
In applying the vagueness test, the term “physical or mental health” is not vague because, when read in its entirety, it contains specific conditions that collectively give *217the ordinary citizen adequate notice of what type of threat it prohibits. First, criminality under the criminal harassment statute prohibits only knowing actions by the defendant to cause substantial harm to another’s mental or physical health. State v. Williams, 98 Wn. App. 765, 774, 991 P.2d 107 (2000). Second, the threat must be made maliciously. Id. Third, the threat must be of an act that is intended to cause harm. Id. Fourth, the harm intended must be a substantial harm. Id. Finally, the statute does not depend on the victim’s subjective reaction as Williams contends, rather, the person threatened must have a reasonable fear that the threat will be carried out. Id.
The statute also overcomes the second part of the vagueness test because it contains ascertainable standards of guilt, which prevent arbitrary enforcement. There are four curbs on arbitrary enforcement that the prosecutor must prove: (1) a “knowing” threat; (2) a “malicious” intent; (3) “substantial harm”; and (4) an objective standard. Furthermore, the burden of proof is the highest standard — beyond a reasonable doubt. These limitations protect against arbitrary, ad hoc, or discriminatory enforcement.
Overbroad
The majority incorrectly finds that this statute criminalizes a form of pure speech, without factoring in the exceptions to pure speech under these facts.
In analyzing a statute for overbreadth, the key inquiry is to determine if a statute reaches a constitutionally protected activity. Halstien, 122 Wn.2d at 122. “A statute is overbroad if its prohibitions extend beyond proper bounds and violate the First Amendment’s protection of free speech.” Eze, 111 Wn.2d at 31.
The criminal harassment statute prohibits threats. See generally City of Seattle v. Ivan, 71 Wn. App. 145, 150, 856 P.2d 1116 (1993). A threat is expressly defined as a communication of the speaker’s intent to perform a specific act. Id. The United States Supreme Court has held that “true threats” must be distinguished from constitutionally pro*218tected speech. Watts v. United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969). A true threat is a statement made in a context in which a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily harm upon or to take the life of another individual. United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.), cert. denied, 498 U.S. 986 (1990). In addition, words that are calculated to produce immediate panic may not be protected speech. Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919).
The United States Supreme Court has long held that certain classes of speech may be constitutionally unprotected. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). These certain classes of speech include: lewd and obscene speech, profane speech, libelous speech, and “fighting words.” Chaplinsky, 315 U.S. at 572. Such speech is unprotected because its slight social value is clearly outweighed by the social interest in order and morality. Id. In Chaplinksy, the Supreme Court defined “fighting words” as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinksy, 315 U.S. at 572. However, speech does not fall within one of the unprotected categories simply because it is provocative or challenging. Hill, 482 U.S. at 461. Speech is unprotected only if it is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest. Id.
The speech prohibited by the criminal harassment statute does not rise to the level of protected speech. The harassment statute does not prohibit speech that causes mere inconvenience, annoyance or unrest. In order to be convicted of harassment, a person must maliciously threaten to do an act that would intentionally and substantially harm another’s physical or mental well being, and must place the person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020(1)(a)(iv). Due *219to the requirement that the threat be malicious and put the person in reasonable fear of an intentional act that would cause substantial harm to the person threatened, the speech must present “a clear and present danger of a serious substantive evil” — the victim is placed in reasonable fear of substantial harm to his or her physical or mental health. Hill, 482 U.S. at 461.
There was evidence that Michael Cannizzaro was placed in reasonable fear of substantial harm to his physical or mental health. Chris Williams’ actions and statements were beyond public inconvenience, annoyance, or unrest. Although arguably reaching constitutionally protected conduct (speech), that does not end the analysis. The court must next examine whether the statute prohibits a “real and substantial” amount of protected conduct in contrast to the statute’s plainly legitimate sweep. Halstien, 122 Wn.2d at 123. Further, even if a statute is “substantially over-broad,” it will not be overturned unless the court is unable to place a sufficiently limiting construction upon the statute. Luvene, 118 Wn.2d at 839-40. In addition, if it is possible, a statute must be interpreted in a manner that upholds its constitutionality. Luvene, 118 Wn.2d at 841; State v. Dixon, 78 Wn.2d 796, 804, 479 P.2d 931 (1971).
Although Williams argues the criminal harassment statute prohibits a substantial amount of protected speech because it reaches a great deal of intentional and malicious conduct which is nonetheless constitutionally protected, he concedes the statute “does indeed contain limitations.” Suppl. Br. of Pet’r at 5. However, he claims, the limitations are “irrelevant in determining whether the statue is substantially overbroad.” Id. This clearly is contrary to current law. Luvene, 118 Wn.2d at 839. The criminal harassment statute, when read as a whole, does not prohibit a real and substantial amount of protected speech because of its limiting factors.
The limiting factors not only require the state to prove that there was a threat, but also that there was intent, malice, and that the victim’s fear was reasonable. Under, *220the criminal harassment statute, a person simply cannot be convicted because he or she makes a threat. The threat must be “malicious,” which means “an evil intent, wish, or design to vex, annoy, or injure another person.” RCW 9A.04.110(12). Criminal liability will attach only if the person threatened has a reasonable fear that the threat will be carried out. Williams, 98 Wn. App. at 774.
Application of the overbreadth doctrine is “strong medicine” and should be employed by the court sparingly and only as a last resort. O’Day v. King County, 109 Wn.2d 796, 804, 749 P.2d 142 (1988); Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). The criminal harassment statute contains substantial limiting factors that prevent it from proscribing a real and substantial amount of protected speech and conduct. Williams’ arguments concerning overbreadth have no merit and the majority incorrectly gives credence to such an argument.
Sufficiency of the Evidence
The majority is correct in finding that there was enough to send the case to the jury. A rational trier of fact could conclude under either subsection (i) or (iv) that Williams violated the criminal harassment statute.
The Fourteenth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution protects the accused against conviction except upon proof of each element of a crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983). In reviewing a challenge to the sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the state. The test is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980); State v. Bradley, 96 Wn. App. 678, 682, 980 P.2d 235 (1999).
In order to constitute the crime of harassment, a threat to cause bodily injury as defined in the former RCW *2219A.46.020(1)(a)(i) (1992),2 there must be a threat of future harm, rather than an immediate harm. State v. Austin, 65 Wn. App. 759, 831 P.2d 747 (1992). In the present case, the threat made by Williams, “don’t make me strap your ass,” viewed in light of the circumstances and other statements made was a threat of bodily injury in the future. “Strap” when used as a verb, means “to beat with a strap.” Webster’s New International Dictionary 2256 (3d ed. 1971). However, as noted by Justice Bridge at oral argument, in street vernacular, “strap your ass” means “to kill with a gun.” Williams claims there was insufficient evidence for the jury to conclude that he threatened to cause future bodily injury. However, this statement was made after Williams had obtained his paycheck. Viewing the evidence in the light most favorable to the state, the threat was made to deter Cannizzaro from any future action that might give cause for the defendant to act on his statement.
The jury was instructed as to both alternative elements to commit the crime: a threat to cause bodily injury and a malicious threat to do an act intended to substantially harm the person physically or mentally. Clerk’s Papers at 63.
A rational trier of fact could conclude beyond a reasonable doubt that the statement, along with the victim’s knowledge that the defendant was armed with a handgun, suggests bodily injury. Therefore, there was sufficient evidence to support Williams’ conviction.
Conclusion
Williams’ has not met his burden of proof. The majority has incorrectly accepted Williams’ argument in attributing his conviction to the use of the term “mental health” in the criminal harassment statute. It is impossible to define every ordinary common term, especially when some degree *222of vagueness is inherent in any use of language.
For the foregoing reasons, I would uphold the Court of Appeals’ decision to affirm the conviction based on the constitutionality of RCW 9A.46.020(1)(a)(iv).
Bridge, J., and Guy, J. Pro Tem., concur with Ireland, J.
In 1997, ROW 9A.46.020(1)(a)(i) was amended to read, “To cause bodily injury immediately or in the future to the person threatened or to any other person.” (emphasis added). Laws op 1997, ch. 105, § 1. Since the amendment took effect two years after the defendant committed the crime, it is inapplicable to the present case.