¶33 (dissenting) The central issue in this case is not whether Glen Schaler said what he said, but whether his statements were intended as true threats. Here is what his lawyer argued: “This was not a criminal act on the part of Mr. Schaler, because he never intended that his action was the communication of a threat. His action was a cry, cry for help. And that’s exactly what he was doing.” Report of Proceedings (Feb. 7, 2007) at 110. The Supreme Court concluded in State v. Johnston (on what I believe are less compelling facts than the facts here) that *645the failure to instruct on true threats was not harmless and remanded for a new trial. State v. Johnston, 156 Wn.2d 355, 366, 127 P.3d 707 (2006). Of course, the court erred by failing to instruct on “true threat.” And this error was not harmless by any principled standards. To conclude otherwise is effectively to conclude that Mr. Schaler is guilty as a matter of law. We should not do that.
¶34 I would conclude that the threats here were true threats were I the fact finder in this case. I am persuaded. But I am not the finder of fact. I am instead a concluder of law. And, so, for me to find true threats (beyond a reasonable doubt, no less) usurps the role properly reserved to a jury. And it deprives Mr. Schaler of his constitutional right to have a jury make those findings. Johnston, 156 Wn.2d at 365. We should not do that. The error would be harmless if Mr. Schaler denied making these threats. He, however, admits he made the statements. His defense is that he did not mean them, i.e., they were not true threats. But the jury here, like the jury in Johnston, was not able to evaluate whether they were or not because there was no definitional instruction that told it how to do so.
¶35 Courts of appeals, as institutions, are capable of evaluating whether evidence is sufficient (burden of production). Welch Foods, Inc. v. Benton County, 136 Wn. App. 314, 322, 148 P.3d 1092 (2006). We are not, however, well situated to decide how persuasive that evidence was to this particular jury or to any jury. See id. (fact finders determine whether the burden of persuasion has been met). Again, we should not try to. Judges are sometimes surprised by the results juries reach. I do not know what this jury might have done if properly instructed. It may well have concluded that Mr. Schaler’s statements were not true threats and that, accordingly, they were protected speech. See Johnston, 156 Wn.2d at 362 (true threats are unprotected speech). I, therefore, respectfully dissent.
Review granted at 165 Wn.2d 1015 (2009).