When Do You Have to "Intend" to Harass?

The Washington Supreme Court reversed a conviction for telephone harassment yesterday because the jury instructions did not make it clear that the defendant must have intended to harass at the time she initiated the call. State v. Lilyblad, No.9114-7, courts website (Wash. S. Ct. Feb. 7, 2008) (Owens, J.). (If you just skim the opinion, the case name might confuse you. The Court uses the defendant's preferred surname of Paris.)

Divisions I and II of the Court of Appeals had split on interpretation of RCW 9.61.230, Telephone harassment:

(1) Every person who, with intent to harass, intimidate, torment or embarrass any other person, shall make a telephone call to such other person:
* * *
(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household;

is guilty of a gross misdemeanor * * *.

Now, if you (1) intend to harass X, (2) call X, (3) threaten X -- in that order -- it's clear the statute applies. But what if you (1) intend to call your son (who lives with X), (2) chat with your son, (3) talk to X once she picks up the phone, and THEN (4) form the intent to threaten X and say you'll F-ing kill her?

The unanimous court now says that you have to have the intent before you call.

In this case, the defendant (Paris/Lilyblad) may be retried. There are many factual disputes and she "concedes that the State presented sufficient evidence to support a finding that she formed the intent to harass at the initiation of the telephone call."
On retrial, the jury might believe that evidence or it might believe her denial that she made any threat at all.

Photo from the American Experience.