This case presents two separate issues. First, did Martin Kilburn's statement constitute a true threat for First Amendment purposes, making it unprotected speech? Second, if the statement was a true threat, did the State prove all of the elements under RCW 9A.46.020 beyond a reasonable doubt? Although I agree with the rationale of the majority, I believe that Kilburn's *Page 55 statement did constitute a true threat, making it unprotected speech. Further, I find that the State did prove all of the necessary elements under RCW 9A.46.020. For these reasons, I would affirm the appellate court and uphold Kilburn's conviction.
I. TRUE THREAT I agree with the majority that a threat may be a true threat even if the speaker does not actually intend to carry out the threat. Majority at 46 and 48. I further agree that an objective test should be applied to determine if the communication constitutes a true threat. The court must look at the entire context of the statement and ask if "a reasonable person in the defendant's place would foresee that in context the listener would interpret the statement as a serious threat or a joke." Majority at 46. For constitutional purposes, it is then appropriate for the court to engage in an independent review of the record, limited to the crucial facts necessary to decide if the speech is unprotected. Majority at 52. However, in this case, I part ways with the majority on the application of this independent review.
As the majority explains, K.J. and Kilburn were acquaintances talking at the end of class about their reading books. Verbatim Report of Proceedings (VRP) at 68-69. K.J. did not know Kilburn that well but previously had no bad relations with Kilburn. VRP at 74, 77-78.4 During the discussion, Kilburn stated, "`I'm going to bring a gun to school, shoot everyone — go around shooting [everybody and] I'm going to start with you first,'" and then said, "`[m]aybe I won't start with you first.'" VRP at 70. Although Kilburn was "kind of giggling" after the statement, K.J. was "surprised" and "kind of freaked out." VRP at 70, 75, 81. She immediately told a friend but was not sure if Kilburn was joking or was *Page 56 serious. VRP at 72, 73. K.J. thought he might be serious because all of the kids knew they were not supposed to talk about bringing guns to school. VRP at 71, 75. K.J. was unsure of what to do and did not want to tell anyone if Kilburn was just joking, so she decided to go home and ask her parents what to do. VRP at 72, 73, 83. K.J. and her parents eventually decided to call the police, and K.J. felt that if Kilburn was serious she helped save lives. VRP at 75, 94-95.
The majority reviewed these same facts and concluded that a reasonable person in Kilburn's position would not foresee that his statement to shoot K.J., and other middle school students, could be interpreted as a serious threat. Majority at 52-54. I disagree. There was a school policy prohibiting such statements, which K.J. testified the kids knew about, and in light of the current atmosphere engendering fear around school shootings, a reasonable person in Kilburn's position would foresee that the communication would be interpreted by K.J. as a serious threat. Applying the majority's objective test, and independently reviewing the record, I conclude that Kilburn's speech was a true threat and was not protected by the First Amendment.
II. HARASSMENT STATUTE Although Kilburn's statement constitutes a true threat, and is not protected speech, the State must still prove all elements of harassment beyond a reasonable doubt. Kilburn claims that there is insufficient evidence to convict him under RCW 9A.46.020. This statute provides in relevant part:
*Page 57(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
. . . and
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. . . .See also majority at 41. As the majority explains, this statute prohibits only true threats and is therefore not overbroad because true threats are not constitutionally protected speech. Majority at 43.(2) A person who harasses another . . . is guilty of a class C felony if . . . (b) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened.
The appropriate standard for reviewing a sufficiency of evidence claim is "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier offact could have found the essential elements of the crimebeyond a reasonable doubt.'" State v. Green, 94 Wn.2d 216, 221,616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).5 The reviewing court does not have to decide if it believes the evidence establishes guilt beyond a reasonable doubt, but rather must decide if any rational trier of fact could find guilt.Id. at 220-22. The court should give deference to the trier of fact "to resolve conflicts in testimony, weigh evidence and draw reasonable inferences therefrom." State v. Gerber,28 Wn.App. 214, 216, 622 P.2d 888 (1981) (citing Jackson,443 U.S. at 319). Further, an insufficiency of the evidence claim "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201,829 P.2d 1068 (1992) (citing State v. Theroff, 25 Wn. App. 590,593, 608 P.2d 1254, aff'd, 95 Wn.2d 385, 622 P.2d 1240 (1980)). These inferences "must be drawn in favor of the State and interpreted most strongly against the defendant." *Page 58 Id. (citing State v. Partin, 88 Wn.2d 899, 906-07,567 P.2d 1136 (1977)).
The harassment statute has three main elements that the State must prove beyond a reasonable doubt. Kilburn had to knowingly threaten bodily injury, and K.J. had to be placed in reasonable fear that the threat would be carried out. Additionally, to sustain the class C felony conviction, Kilburn had to threaten to kill K.J.
The first element that must be proved is "knowingly threaten." I agree with the majority that this element is subjective: Kilburn had to subjectively know he was communicating a threat and that the communication was a threat of intent to cause bodily injury to the person threatened or another person. Majority at 48; see State v. J.M., 144 Wn.2d 472, 481-82, 28 P.3d 720 (2001). As the court noted in J.M., Kilburn had to be aware he was communicating the threat, Kilburn's intent to carry out the threat is not relevant, and the threat must be serious. J.M.,144 Wn.2d at 481-82.
The trial court concluded that Kilburn "subjectively knew that he communicated a threat, and the respondent [Kilburn] knew that the communication he imparted was a threat of intent to cause bodily injury." Conclusion of Law (CL) 3, Clerk's Papers (CP) at 17-18. The court cited to J.M. and concluded that the intent could be proved by what was reflected in the words. Id.; seealso VRP at 117-20 (discussing the subjective knowledge element of J.M..).6 The court further found that Kilburn's actual intent to carry out the threat, and whether Kilburn was serious or joking, was irrelevant. CL 4, 5, CP at 18.
The trial court's findings of fact support this conclusion.See State v. McDaniels, 39 Wn. App. 236, 239, 692 P.2d 894 (1984) (noting that it is appropriate to start a review of the *Page 59 evidence by examining the trial court's findings of fact).7 The trial court found that Kilburn said, "`I'm going to bring a gun to school tomorrow and shoot everyone and start with you,'" and then he said, "`maybe not you first.'" Finding of Fact (FF) 3, CP at 16. K.J. was not sure if Kilburn was kidding, and the more she thought about the statement the more scared she became. FF 5, 6, CP at 17. K.J. felt Kilburn might have been serious because the kids knew they were not supposed to talk about guns at school, and if he was not joking K.J. felt she had saved lives. FF 8, 9, CP at 17. Viewing these findings in the light most favorable to the State, a reasonable trier of fact could infer subjective knowledge: the communication was uttered out loud to K.J., there was a school policy all kids knew about, and it was not clear to K.J. whether Kilburn was joking or serious. Therefore, the State proved element one beyond a reasonable doubt.
The second element the State must prove is that K.J. was placed in reasonable fear. Based on K.J.'s testimony, the trial court found that K.J. was scared. VRP at 123. The court further found that this fear was reasonable because of previous shootings in other schools. VRP at 124; see also CL 6, CP at 18. The record supports the court's conclusion that K.J. was placed in reasonable fear that she would be killed. K.J. testified she was scared, she did not know Kilburn well, it was unclear if he was joking, and if he was not joking she feared the event could happen based on other school shootings. Viewing all inferences in the light most favorable to the State, a reasonable trier of fact could find K.J. was placed in reasonable fear she would be killed. Therefore, element two is proved beyond a reasonable doubt.
The last element the State must prove is that Kilburn threatened to kill K.J. Kilburn argues that a threat to shoot does not constitute a threat to kill. The trial court found that the communication was not ambiguous, was clear on *Page 60 its face, and could not be interpreted in some other way. VRP at 116-17. Viewing all inferences in favor of the State, a rational trier of fact could find that the communication constituted a threat to kill, not just shoot and injure, K.J. Therefore, element three is proved beyond a reasonable doubt.
III. CONCLUSION After independently reviewing the record and applying the objective standard test for a true threat, I believe Kilburn's statement to K.J. was unprotected speech. Viewing the evidence and all reasonable inferences in the light most favorable to the State, I further conclude that a rational trier of fact could have found that the State proved all elements of harassment beyond a reasonable doubt. Based on these conclusions, I would affirm the trial court and the Court of Appeals.
IRELAND, CHAMBERS, and FAIRHURST, JJ., concur with OWENS, J.