SCHINDLER, J.
¶ 1 A person commits the crime of malicious harassment by intentionally threatening a specific individual and placing that individual in reasonable fear of harm because of the victim's race, color, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap.
¶ 2 Saba Zewdu and her family emigrated from Ethiopia to the United States when she was six-years-old. Zewdu completed two years of college and speaks fluent English. In May 2009, 28-year-old Zewdu was working as a parking-lot attendant for Diamond Parking Service (Diamond) at the Elliott Bay Marina in Seattle. Zewdu is five-feet two-inches tall and weighs approximately 120 pounds.
¶ 3 On May 7, Charles Read and his spouse Arlene Read drove to the Elliott Bay Marina to have dinner. Read is a Caucasian man who owns a manufacturing company. Sixty-three-year-old Read is six-feet tall and weighs approximately 240 pounds. Because Read did not want to park his Ford F-150 Super Crew Cab pickup truck near another vehicle, he parked the truck across at least two parking spaces in the parking lot.
¶ 4 Zewdu issued Read a parking ticket for improperly parking his truck across more than one parking space. Read and his spouse left the restaurant at approximately 5:45 p.m. When Read found the parking ticket he was furious. Read immediately got into his truck and drove across the parking lot to talk to the valet working at an adjacent restaurant, Brian Smith, a Caucasian male.
¶ 5 During the conversation between Read and Smith, Read remained inside the truck. Read rolled down the truck window and yelled at Smith, "`What is this? Who wrote this? I am not going to pay it. This is bullshit.'" Smith said that he did not issue the ticket and told Read that he should call the telephone number located on the back of the ticket. Read then asked Smith "where he could find the person who gave him the ticket." Smith pointed toward the Diamond parking lot.
¶ 6 When Read "spott[ed]" Zewdu, he drove toward her "in a manner that screeched his trucks [sic] tires." After Read stopped the truck near Zewdu, he yelled at her, "`Did you give me this fucking ticket?'" Zewdu said that she issued the ticket and told him to call the number on the back if he had any questions. Read then yelled, "`You nigger, you gave me this fucking ticket,'" and got out of his truck.
¶ 7 Read's face and the veins in his eyes were red, he "was shaking in rage," and his fists were clenched. As he advanced toward Zewdu, Read repeatedly yelled, "`You g[a]ve me this fucking ticket.'" When Read got to within two to three feet of Zewdu, she started
¶ 8 Zewdu was frightened. There was no one else in the parking lot except Arlene Read, who remained inside the truck the entire time. Zewdu said that as Read continued to advance toward her "with rage and clenched fists," she tried to stop him by telling him that there were cameras at the marina and holding up her cell phone. Zewdu told Read that she was going to call the police. Read responded, "`I don't care about fucking cops.... I know where you work.'" Zewdu then turned and started running away. While she was running, Zewdu heard the truck engine revving and the tires screeching in her direction. Zewdu hid in the bushes while she called 911. Zewdu told the 911 operator: CALLER:
¶ 9 After calling 911, Zewdu ran to the harbor master's office. Marina dockhand John De Maria and Smith were in the office and said that when Zewdu arrived, she was crying and trembling. Smith testified that Zewdu was so upset that she was only able to stop crying approximately 20 minutes later.
¶ 10 Sergeant William Robertson responded to the 911 call. Zewdu showed Sergeant Robertson the truck license plate number she wrote on her hand. Zewdu said she was afraid Read was going to come back and kill her and asked Sergeant Robertson to stay with her. Before leaving, Sergeant Robertson suggested that Zewdu buy pepper spray.
¶ 11 For the next several days, Zewdu had trouble sleeping. Zewdu purchased pepper spray, asked her supervisor to change her shift, and asked the staff at the marina to frequently patrol the parking lot when she was at work.
¶ 12 The State charged Read with malicious harassment. Read entered a plea of not guilty and waived his right to a jury trial.
¶ 13 Zewdu, Smith, De Maria, Sergeant Robertson, Detective Rolf Norton, and Charles and Arlene Read testified at trial. The recording of the 911 call was admitted into evidence.
¶ 14 Read testified that he was angry and admitted using profanity and racial slurs, but said that he did not intend to threaten Zewdu. Read testified that he only wanted to understand why Zewdu issued the parking ticket, and the reason he got out of his truck was because "it was the proper thing to get out and greet somebody that is walking towards you."
¶ 15 Arlene Read testified that her husband was very upset about the parking ticket because he thought Diamond was trying to steal from him. Arlene said that she "cringed" when she heard Read use a racial slur but that he later apologized to her. Arlene also testified that Zewdu did not look like she was upset. According to Arlene, Zewdu "did not cry while we were there. She was very stoic."
¶ 16 Based on the testimony and evidence at trial, the court found Zewdu's testimony credible, and rejected the testimony of Read and his spouse Arlene as not credible. The court found Read guilty of maliciously and intentionally threatening Zewdu and placing her in fear of harm because of her race, national origin, ethnicity, or color. The court found that Read's statement—"I don't give a fuck about cops.... I know where you work;" coupled with his conduct, including "his clenched fists, red face, raged look, and manner in which he approached [her,] ... clearly amounted to a threat."
¶ 17 The court's oral ruling states, in pertinent part:
The trial court also ruled:
¶ 18 The written findings and conclusions incorporate the court's oral ruling. The written findings and conclusions further state, in pertinent part:
¶ 19 The trial court sentenced Read to 30 days confinement converted to 240 hours plus an additional 480 hours of community service. The court prohibited contact with Zewdu for five years, and required Read to engage in anger management and diversity training. Read appeals his conviction of malicious harassment.
¶ 20 Read argues the State did not prove beyond a reasonable doubt that he threatened Zewdu because of her race, and the trial court erred in failing to determine whether Zewdu's race was the primary motivating factor.
¶ 21 Because the crime of malicious harassment implicates First Amendment rights, we must conduct "an independent examination of the whole record" to assure the conviction "does not constitute a forbidden intrusion on the field of free expression." State v. Kilburn, 151 Wn.2d 36, 50, 84 P.3d 1215 (2004) (internal quotation marks omitted) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 508, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710,
¶ 22 An independent review of the record is "not complete de novo review." Kilburn, 151 Wash.2d at 50-52, 84 P.3d 1215. Review is limited to "those `crucial' facts that necessarily involve the legal determination whether the speech is unprotected." Kilburn, 151 Wash.2d at 52, 84 P.3d 1215. "Crucial facts" are those facts that are "so intermingled with the legal questions as to make it necessary, in order to pass on the constitutional question, to analyze the facts." Kilburn, 151 Wash.2d at 51, 84 P.3d 1215. An independent constitutionally-based review requires us to give due regard "to the trial judge's opportunity to observe the demeanor of the witnesses" and the trial court's determination as to credibility. Bose, 466 U.S. at 499-500, 104 S.Ct. 1949.
¶ 23 To convict Read of malicious harassment, the State must prove beyond a reasonable doubt that he maliciously and intentionally threatened Zewdu and placed her in fear of harm because of his perception of her race, ancestry, or national origin. RCW 9A.36.080. Words alone cannot constitute malicious harassment "unless the context or circumstances surrounding the words indicate the words are a threat," and it is apparent that the person can carry out the threat. RCW 9A.36.080(1)(c).
¶ 24 The intent of the malicious harassment statute is not to punish bigoted speech or thought, "but rather the act of victim selection." State v. Talley, 122 Wn.2d 192, 206, 858 P.2d 217 (1993).
Talley, 122 Wash.2d at 211, 858 P.2d 217.
¶ 25 In Talley, the court held that the malicious harassment hate crime statute does not violate the First Amendment because it "is aimed at criminal conduct and enhances punishment for that conduct where the defendant chooses his or her victim because of their perceived membership in a protected category." Talley, 122 Wash.2d at 201, 858 P.2d 217.
¶ 26 Read contends that because the primary reason he confronted Zewdu was because she gave him a parking ticket, the First Amendment protects his use of racial slurs. Read claims that to convict him of malicious harassment, the court must find that racial motivation was the primary motivating factor or the proximate cause for selecting Zewdu as a victim.
¶ 27 Read's argument that the court must find that Zewdu's race, color, national origin, or ethnicity was the primary motivating factor was considered in State v. Pollard, 80 Wn.App. 60, 906 P.2d 976 (1995). In Pollard, the defendant argued that "because of" means that the State must prove the victim's
Pollard, 80 Wash.App. at 69-70, 906 P.2d 976.
¶ 28 In an attempt to distinguish Pollard, Read cites Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) and National Ass'n for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) to argue that the State must prove racial bias is the primary motivating factor that caused him to threaten Zewdu. Brandenburg and Claiborne are distinguishable and do not support Read's argument. Neither Brandenburg nor Claiborne address the question of whether the State must prove that racial bias was the primary motivating factor to convict under the malicious harassment statute, RCW 9A.36.080.
¶ 29 In Brandenburg, the Supreme Court reversed the conviction of a Ku Klux Klan member convicted under the Ohio Criminal Syndicalism statute for expressing derogatory views about African Americans and Jews and the possibility of revenge by the "white, Caucasian race." Brandenburg, 395 U.S. at 445-47, 89 S.Ct. 1827 (internal quotation marks omitted). The Supreme Court struck down a criminal syndicalism statute that punished "`advocat[ing] ... sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform' and for `voluntarily assembl[ing] ... to teach or advocate the doctrines of criminal syndicalism.'" Brandenburg, 395 U.S. at 444-45, 89 S.Ct. 1827 (quoting Ohio Rev.Code Ann. § 2923.13). The Court held that a statute that fails to draw a distinction between advocating the use of force and advocacy "directed to inciting or producing imminent lawless action ... likely to incite or produce such action" violates the First Amendment. Brandenburg, 395 U.S. at 447-48, 89 S.Ct. 1827.
¶ 30 In Claiborne, the Supreme Court reversed entry of a joint and several judgment against African American defendants for damages owed to the Caucasian merchants for business losses from a boycott. Claiborne, 458 U.S. at 915, 102 S.Ct. 3409. The Court held that the defendants were entitled to protection under the First Amendment for engaging in the nonviolent boycott.
Claiborne, 458 U.S. at 918, 102 S.Ct. 3409.
¶ 31 Read also argues the evidence does not establish beyond a reasonable doubt that he threatened Zewdu "because of" her race, and the trial court improperly considered his use of racial slurs in deciding that he was guilty of malicious harassment. We disagree.
¶ 32 In Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), the Supreme Court held that the First Amendment "does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." Consistent with Mitchell, our supreme court in Talley also held that the defendant's statements may be used to prove malicious harassment.
Talley, 122 Wash.2d at 211, 858 P.2d 217; see also State v. Halstien, 122 Wn.2d 109, 125, 857 P.2d 270 (1993).
¶ 33 Here, the record shows Read's words and conduct establish that he is guilty of intentionally and maliciously harassing Zewdu because of her race, ethnicity, or national origin. There is no question that Read was angry about the parking ticket, but that anger escalated and his behavior changed "as soon as he saw" Zewdu. While Read angrily asked the Caucasian male parking valet— "`What is this? Who wrote this?'" he did not get out of his truck to confront him. By contrast, after Read saw Zewdu he immediately started using offensive racial epithets, got out of his truck, confronted her in an aggressive manner, and repeatedly yelled at her "[y]ou nigger, you gave me this fucking ticket." Read then advanced on Zewdu with a red face and clenched fists, "coming after" her and repeatedly calling her "nigger." Our independent review of the record supports the trial court's finding that "[a]lthough Mr. Read's reason for anger was because he was cited a ticket, his reason for anger switched to his perception of Ms. Zewdu's race, color, ancestry, or national origin as soon as he saw Ms. Zewdu. He threatened her because of her race, color, ancestry, or national origin."
¶ 34 Read relies heavily on Zewdu's testimony during cross-examination to assert that the record does not establish malicious harassment. Specifically, Read argues that Zewdu "thought that Read threatened her because she issued the ticket and not because she was Ethiopian." (Emphasis omitted.) The testimony Read relies on is taken out of context. Zewdu testified during cross-examination, in pertinent part:
¶ 35 Further, Zewdu's belief that Read wanted to kill her because she gave him a parking ticket does not undermine the evidence at trial showing that Read threatened Zewdu because of her race.
¶ 36 In the alternative, Read argues there is insufficient evidence to support finding a "true threat" and the malicious harassment conviction. Read asserts there is no evidence that he intended to frighten Zewdu or place her in fear of bodily harm.
¶ 37 RCW 9A.36.080 provides, in pertinent part:
¶ 38 In determining the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A challenge to the sufficiency of the evidence admits the truth of the State's evidence. Salinas, 119 Wash.2d at 201, 829 P.2d 1068. Further, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Salinas, 119 Wash.2d at 201, 829 P.2d 1068.
¶ 39 It is well established that the First Amendment does not protect "true threats." Kilburn, 151 Wash.2d at 43, 84 P.3d 1215; State v. J.M., 144 Wn.2d 472, 477-78, 28 P.3d 720 (2001). The speaker of a true threat need not actually intend to carry out the threat. Kilburn, 151 Wash.2d at 46, 84 P.3d 1215. Our supreme court defines a "true threat" as:
State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010) (quoting Kilburn, 151 Wash.2d at 43, 84 P.3d 1215) (internal punctuation and quotation marks omitted) (quoting State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)).
¶ 40 Citing to the Supreme Court's definition of "true threat" in Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) and the Ninth Circuit decision in United States v. Cassel, 408 F.3d 622 (9th Cir. 2005), Read claims no evidence supports finding a true threat in this case.
Black, 538 U.S. at 359-60, 123 S.Ct. 1536 (second alteration in original).
¶ 42 In Cassel, the Ninth Circuit concluded that the definition of "true threat" in Black "embraces not only the requirement that the communication itself be intentional, but also the requirement that the speaker intend for his language to threaten the victim." Cassel, 408 F.3d at 631 (emphasis omitted). The Court held that "speech may be deemed unprotected by the First Amendment as a `true threat' only upon proof that the speaker subjectively intended the speech as a threat." Cassel, 408 F.3d at 633.
¶ 43 But in United States v. Romo, 413 F.3d 1044 (9th Cir.2005), another panel of the Ninth Circuit did not follow Cassel, and instead used an objective definition of "true threat" in determining whether the defendant's statement was a true threat. Romo, 413 F.3d at 1051. The Court in Romo concluded that the decision in Cassel did not change the reasonable person analysis used to analyze true threats. Romo. 413 F.3d at 1051, n. 6. See also United States v. Stewart, 420 F.3d 1007, 1018-19 (9th Cir.2005); Fogel v. Collins, 531 F.3d 824, 831 (9th Cir.2008).
¶ 44 Here, sufficient evidence supports the finding that Read made a "true threat" under either the definition in Black or an objective speaker standard.
¶ 45 Further, the trial court rejected Read's implausible claim that he did not intend to threaten Zewdu, and the only reason he got out of his truck was because "it was the proper thing to get out and greet somebody that is walking towards you," as not credible. Sufficient evidence supports the determination that Read meant to communicate a serious expression of intent to harm Zewdu.
¶ 46 The evidence also supports finding that a reasonable person in Read's position would foresee that Zewdu would interpret his statements as a serious expression of intent to cause her physical harm under the reasonable person standard. Viewing the evidence in the light most favorable to the State, Read's words and conduct establish his "intent to intimidate the victim, put her in fear and threaten her."
¶ 47 We affirm.
WE CONCUR: SPEARMAN, J., and DWYER, C.J.
State v. Pollard, 80 Wn.App. 60, 66, 906 P.2d 976 (1995).