IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 82539-9-I
)
Respondent, )
) DIVISION ONE
v. )
)
DOUGLAS WAYNE DUNN, )
)
Appellant. ) UNPUBLISHED OPINION
)
MANN, C.J. — Douglas Dunn appeals his judgment and sentence for one count of
felony harassment and two counts of gross misdemeanor harassment. Dunn argues
that: (1) the two harassment convictions against Robin Steeley violate the double
jeopardy clause; (2) the trial court erred in excluding relevant evidence; (3) the State
failed to prove all the essential elements of the crime; (4) the trial court erred by
improperly instructing the jury on the definition of “true threat”; and (5) the trial court
erred in ordering community custody supervision fees. The State concedes, and we
agree, that the two counts of felony and misdemeanor harassment against Robin
Steeley violate double jeopardy, and that the court improperly imposed community
supervision fees due to Dunn’s indigence. We vacate the one count of misdemeanor
Citations and pin cites are based on the Westlaw online version of the cited material.
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harassment of Robin and remand to strike the cost of community supervision fees. We
otherwise affirm.
FACTS
On June 8, 2018, Dunn invited Nicole 1 and her friend, Melody Steeley, 2 to his
house in Vancouver to smoke methamphetamine. This was Dunn’s first time meeting
Melody. Not having any drugs or money, Melody drove the three to a pawn shop so
that Dunn could pawn his guitar for $50 or $60. Melody offered to take Dunn’s money
to her dealer nearby. The dealer only allowed people he knew in his house. Dunn gave
Melody and Nicole the money and waited at the closest McDonald’s for one to two
hours, but the pair never returned. Dunn called both Melody and Nicole separately;
each blamed the other for the theft.
Dunn sent Melody an angry message accusing her of “burning” him and asking
her to get in touch with him or “I’m coming after you.” Dunn then spoke to Melody over
Facebook video chat. Dunn noticed a drill in the background that he believed was his
and accused Melody of stealing his drill, his money, and his phone charger that he left
in her car. Dunn stated that he was going to get his stuff and Melody responded, “Good
luck. You won’t make it two feet” and, “My family’s got guns.” Dunn said, “What are
you going to shoot me?” She responded, “Well, whatever it takes” and then hung up.
Dunn sent Melody a follow up message stating:
If you think I am playing or just talking shit or anything less than
completely serious about the lengths I will go to to [sic] see that a lesson is
taught to both of you then I am sorry for the rude awakening you are about
to endure. Nothing is off limits to me. If I can’t get at you then I will go
after your family and friends.
1The record does not disclose Nicole’s last name.
2For clarity, this opinion refers to Melody Steeley and Robin Steeley by their first names. We
intend no disrespect.
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Dunn then examined Melody’s Facebook page for close friends and family.
Unaware that she was Melody’s mother, Dunn sent a voicemail message on Facebook
Messenger to Robin. Dunn said, “Melody came into my house and stole from me.
Because of that, her life is in danger.” He continued,
I was hoping that you would have a talk with her and have her make
things right before something bad happens to her. Something bad is
going to happen to her anyway, the severity of it depends on how she
proceeds from this point forward. Because you’re a friend of hers, or
family, you will be also subject to any repercussions that may come her
way if she decides to hide or in any way avoid facing her consequences.
You guys will pay the price as well.
Robin immediately sent Dunn angry text messages, which the two continued to
exchange throughout the day. In his last message, Dunn replied, “I’m doing nothing
more than you are protecting my home with up to and including deadly force if
necessary.”
Robin contacted the police and later testified that she believed Dunn was
threatening to kill her and Melody. However, Robin later sent a text message to a friend
stating, “My quiet life blew up crazy shit that makes the last few days look like vanilla
LOL so wish me luck. Some guy thinks my kid stole from him.”
The State charged Dunn with one count of felony harassment and one count of
misdemeanor harassment in regard to Robin, and one count of misdemeanor
harassment in regard to Melody. At trial, Dunn testified he did not intend to threaten
Melody or Robin, just that he wanted his stuff back. On December 5, 2019, the jury
found Dunn guilty of all three harassment counts as charged. The trial court sentenced
Dunn to 51 months.
Dunn appeals.
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ANALYSIS
A. Double Jeopardy Clause
Dunn argues that his threatening messages to Robin constitute only a single unit
of prosecution, therefore, the conviction for one count of misdemeanor harassment
must be vacated. The State concedes and we accept the State’s concession.
The double jeopardy clause “protects a defendant from being convicted twice
under the same statute for committing just one unit of the crime.” State v. Adel, 136
Wn.2d 629, 634, 965 P.2d 1072 (1998). The inquiry is “what act or course of conduct
has the Legislature defined as the punishable act.” Adel, 136 Wn.2d at 34.
Harassment constitutes a single unit of the crime when “a perpetrator (1) threatens to
cause bodily harm to a single identified person at a particular time and place and (2)
places a single victim of the harassment in reasonable fear that the threat will be carried
out.” State v. Morales, 174 Wn. App. 370, 387, 298 P.3d 791 (2013).
Here, Dunn threatened Robin on June 9, 2019, over a span of a few minutes.
Dunn directed his threats to Robin in one place during a short time. Thus, Dunn’s
threats directed at Robin constitute a single offense of harassment and his combined
felony and misdemeanor harassment charges violate double jeopardy. The remedy for
a violation of double jeopardy is to vacate the lesser offense. State v. Albarran, 187
Wn.2d 15, 21-22, 383 P.3d 1037 (2016).
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B. Exclusion of Evidence
Dunn argues 3 that the court erred and violated his right to present a full defense
by excluding relevant evidence that Robin had previously accused her neighbor of
threatening to kill her. 4 We disagree.
When a defendant asserts that an evidentiary ruling resulted in a violation of his
right to present a defense, the court utilizes a two-step standard of review. State v.
Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019). First, this court reviews the
evidentiary ruling for an abuse of discretion. Arndt, 194 Wn.2d at 797. A trial court
abuses its discretion when its decision is manifestly unreasonable or rests on untenable
grounds. State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). Second, we
review de novo whether these evidentiary rulings deprived the defendant of his Sixth
Amendment right to present a defense. Arndt, 194 Wn.2d at 797.
To prove felony harassment, the State must establish that Dunn knowingly
threatened to cause bodily injury; that Dunn’s conduct placed Robin in reasonable fear
that the threat would be carried out; and that Dunn threatened to kill Robin. RCW
9A.46.020(1)(a)(i), (1)(b), (2)(b)(ii). Thus, the State was required to show that Robin
subjectively feared Dunn would carry out his threats, and that the fear was objectively
reasonable. State v. E.J.Y., 113 Wn. App. 940, 953, 55 P.3d 673 (2002).
3 In his statement of additional grounds, Dunn also argues that this evidence was relevant to
rebut a prior inconsistent statement. Respectfully, this argument is extraneous. Dunn’s statement does
not present which prior statements are now inconsistent for impeachment purposes.
4 The State argues that Dunn’s offer of proof regarding the evidence that Robin was a named
victim in a previous harassment death threat case was insufficient. This argument is unpersuasive. Dunn
submitted the previous victim statement and argued to the court following the objection the purpose of the
evidence, its relevance, and some additional detail. Therefore, it is important only for us to determine
whether excluding this evidence was in error.
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During cross-examination, Dunn asked, “So in response to the State’s
questioning, you indicated something to the effect that you’ve never had something like
this happen to you before?” Robin responded, “Have I ever had someone threaten me
in the past? Yes.” The State objected on relevance grounds. The defense explained to
the court that the information regarding Robin’s previous listing as a victim of a death
threat, and the victim impact statement, was relevant to show that she may be overly
vigilant in her reactions to perceived threats and was, essentially, an eggshell plaintiff.
The court ruled that:
The difference between anything that you may refer to previously and
what we have here is the fact that we have communications between the
defendant and the alleged victims concerning what statements were there.
It’s right in front of the jury; the jury can weigh the credibility of this
particular defendant. We don’t need additional information.
Here, the court properly weighed the evidence, and determined that it was
irrelevant to the defense because the jury was presented with text messages,
statements, and newspaper clippings allowing them, as the trier of fact, to determine
whether Robin subjectively felt fear and whether that fear was objectively reasonable.
The court did not abuse its discretion in excluding the evidence.
Because the trial court did not abuse its discretion by excluding the evidence, we
next determine if the exclusion violated Dunn’s right to present a defense. The right to
present a defense is not absolute; defendants do not have a “constitutional right to
present irrelevant evidence.” State v. Burnam, 4 Wn. App. 2d 368, 377, 421 P.3d 977
(2018). A defendant’s right to present a defense is still “subject to ‘established rules of
procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.’” State v. Blair, 3 Wn. App. 2d 343, 350, 415 P.3d
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1232 (2018) (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L.
Ed. 2d 297 (1973)). A court may properly limit evidence without violating a defendant’s
right to present a defense when the defendant was still able to present evidence
relevant to the central defense theory. Arndt, 194 Wn.2d at 814. Thus, the defendant’s
right to present a defense is examined in context of the entire record. State v. Duarte
Vela, 200 Wn. App. 306, 326, 402 P.3d 281 (2017).
Here, the court properly concluded that Robin’s status as a victim in a prior
harassment case involving a death threat was irrelevant in light of the record and
abundance of relevant evidence to assist the trier of fact. Additionally, Dunn had the
opportunity to establish Robin’s objective and subjective fear through her text
messages, cross-examination, and his own testimony. The fact that Robin was a prior
harassment victim was irrelevant, the exclusion of which did not deprive Dunn of his
right to present a defense.
C. Proof Beyond a Reasonable Doubt
Dunn argues that the State failed to provide sufficient evidence that he made a
true threat to kill. 5 We disagree.
“The critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction must be . . . to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). The question is, whether,
5 In Dunn’s statement of additional grounds, he argues that the State failed to prove, beyond a
reasonable doubt, that the defendant “by words or conduct place[d] the person threatened in reasonable
fear that the threat [to kill] would be carried out.” RCW 9A.46.020(1)(a)(i), (1)(b), (2)(b)(ii). We will
reverse a conviction “only where no rational trier of fact could find that all elements of the crime were
proved beyond a reasonable doubt.” State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). Here,
the State presented evidence of audio messages, text messages, and Facebook messages to prove that
Robin’s fear of Dunn’s threat to kill was reasonable.
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after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson, 443 U.S. at 319; State v. Salinas, 119 Wn.2d 192, 829 P.2d 1068 (1992). On
review, the court defers to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60,
71, 794 P.2d 850 (1990). The appellate court does not “reweigh the evidence and
substitute [its] judgment for that of” the fact finder. State v. McCreven, 170 Wn. App.
444, 284 P.3d 793 (2012). In harassment cases, the reviewing court also applies “the
rule of independent review” to determine what constitutes a true threat. State v. Kilburn,
151 Wn.2d 36, 52 P.3d 1215 (2004). The purpose of independent review is to ensure
that “the judgment does not constitute a forbidden intrusion on the field of free
expression.” Kilburn, 151 Wn.2d at 50. Independent review is “limited to review of
those crucial facts that necessarily involve the legal determination” of whether there was
a true threat and “does not extend to factual determinations such as witness credibility.”
Kilburn, 151 Wn.2d at 52; State v. Locke, 175 Wn. App. 779, 791, 307 P.3d 771 (2013).
Under RCW 9A.46.020, a person is guilty of harassment if the person knowingly
threatens to cause bodily injury and, by words or conduct, this places the threatened
person in reasonable fear that the threat will be carried out. Harassment is a felony
charge when the threat is to kill the person threatened. RCW 9A.46.020(2)(b)(ii).
“Under the First Amendment only a true threat suffices for a conviction under RCW
9A.46.020.” Kilburn, 151 Wn.2d at 41. 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
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upon or to take the life of another person.” State v. Schaler, 169 Wn.2d 274, 283, 236
P.3d 858 (2010). The test for determining a true threat is objective and focuses on the
speaker. Kilburn, 151 Wn.2d at 54. A true threat is a serious threat, not one said in
jest, idle talk, hyperbole, or political argument. Kilburn, 151 Wn.2d at 43. The nature of
the threat, “depends on all the facts and circumstances, and it is not proper to limit the
inquiry to a literal translation of the words spoken.” State v. C.G., 150 Wn.2d 604, 611,
80 P.3d 594 (2003).
There is substantial evidence that Dunn’s statements to Robin, in light of all facts
and circumstances, constituted a true threat to kill. In his voice message to Robin,
Dunn stated that because Melody stole from him that “her life is in danger” and that
“because you are a friend of hers, or family, you will be also subject to any
repercussions that may come her way.” He continued to say “I promise you that, this is
not a threat this is just something that’s going to happen, this is how I operate.” Using
the phrase, “life is in danger” and extending that threat to Robin is explicit language of a
threat to kill. In addition to these words, Robin and Dunn exchanged angry text
messages. Robin stated, “if you touch one hair on her I will make sure you spend the
rest of your life in prison.” Dunn responded, “if it’s life in prison that I’m facing then I will
make sure it’s a life in prison offense.” The context of the conversation additionally
supports the notion that Dunn was making a true threat to kill. Dunn made it clear that
he wanted his possessions back and went to great lengths to retrieve them. 6 In sum,
6 In Dunn’s statement of additional grounds, he analyzes whether three of the statements are true
threats to kill separately. The appropriate inquiry, however, is to view these statements as a whole
including the context.
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viewed in a light most favorable to the State, there is sufficient evidence for the trier of
fact to support a finding that Dunn made a true threat to kill.
D. Jury Instruction Definition of “True Threat”
Dunn argues that the jury instruction defining a true threat was improper under
the First Amendment. Dunn argues we should abandon Washington precedent and
adopt a subjective standard for what constitutes a true threat under the First
Amendment. We disagree.
In State v. Trey M., 186 Wn.2d 884, 892, 383 P.3d 474 (2016), the Washington
Supreme Court declined to adopt a subjective test, and held that Washington courts
must apply an objective test for what constitutes a true threat under the First
Amendment. Washington courts consistently relied on the objective (reasonable
person) test since its adoption in State v. Williams, 144 Wn.2d 197, 208, 26 P.3d 890
(2001). We decline to stray from this clear precedent.
E. Community Supervision Fees
Dunn argues that the trial court erred in applying community supervision fees due
to his indigency. The State concedes and we accept the State’s concession.
The community supervision fee is a discretionary legal financial obligation. RCW
9.94A.703(2)(d); State v. Lundstrom, 6 Wn. App. 2d 388, 396 n.3, 429 P.3d 1116
(2018), review denied, 193 Wn.2d 1007 (2019). A person who is determined indigent is
not required to pay community custody supervision fees. State v. Dillion, 12 Wn. App.
2d 133, 152, 456 P.3d 1199, review denied, 195 Wn.2d 1022 (2020). Because the trial
court found Dunn indigent, and because it intended to strike community custody
supervision fees, we remand to strike the fees.
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We vacate the one count of misdemeanor harassment of Robin and remand to
strike the cost of community supervision fees. We otherwise affirm.
WE CONCUR:
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State Of Washington, V. Douglas Wayne Dunn
Combined Opinion