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March 19, 2026 Get Citation Alerts Download PDF Add Note

State v. Calloway

Washington Supreme Court

• Citations: None known

• Docket Number: 103,374-5

• Opinion

• Authorities (43)

• Cited By (0)

• Summaries (0)

• Similar Cases (936)

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Combined Opinion

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
MARCH 19, 2026
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON

MARCH 19, 2026 SARAH R. PENDLETON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 103374-5
Respondent, )
)
v. ) En Banc
)
TURNER LEE CALLOWAY, )
) Filed: March 19, 2026
Petitioner. )
_______________________________________)

MADSEN, J.—The First Amendment was designed to protect essential pillars of a

democratic society—most notably freedom of speech. U.S. CONST. amend. I. Still, this

freedom is not without limits. This case asks us to determine whether Washington’s

harassment statute, RCW 9A.46.020, is facially unconstitutional in violation of the First

Amendment. This court previously held that in order to be convicted of felony

harassment, the State must prove that a “true threat” was made, and that the defendant

was negligent as to whether their words would be understood as a threat.
No. 103374-5

Turner Lee Calloway was convicted of one count of felony harassment. While his

appeal was pending, the United States Supreme Court released its decision in

Counterman v. Colorado, 600 U.S. 66, 82, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023),

which held that recklessness is the appropriate mens rea to support a criminal conviction

for communications constituting a “true threat.” 1 Based on Counterman, Calloway

argued that Washington’s harassment statute is unconstitutional because it criminalizes

threats based on a negligence standard. He further argued that as a result, the jury

instructions used in his case were erroneous and that the State cannot prove that the error

was harmless beyond a reasonable doubt due to the controverted evidence in this case.

The Court of Appeals affirmed his conviction and held that Counterman did not render

the harassment statute unconstitutional on its face. Calloway sought review here.

We hold that the harassment statute is constitutional. Counterman requires a mens

rea standard of at least “recklessness.” As written, our felony harassment statute does not

prevent the State from proving a true threat based on recklessness. However, the jury

instruction defining a “true threat” informed the jury that the mens rea required to convict

Calloway of making a true threat under the statute was negligence, while Counterman

held the mens rea must be at least recklessness. Therefore, the remaining issue is

whether the instructional error was harmless. This court recently clarified the test for

constitutional harmless error in State v. Magaña-Arévalo, No. 103586-1, slip op. at 4

(Wash. Jan. 15, 2026). Accordingly, we affirm the Court of Appeals in part, reverse in

1
Both parties agree that Counterman applies since Calloway’s appeal was pending when
Counterman was released.

2
No. 103374-5

part, and remand for the court to determine whether the error in the “true threat”

instruction was harmless beyond a reasonable doubt as explained in Magaña-Arévalo.

BACKGROUND

Turner Calloway and A.D. were close friends for about a decade. Calloway

initially had a romantic interest in A.D.; however, they never dated and they maintained a

platonic friendship. Calloway and A.D.’s friendship ebbed and flowed, particularly in

2020, since a miscommunication resulted in the pair not speaking for about a year. In

October 2021, they both apologized and reconciled. The reconciliation was short-lived;

A.D. testified that Calloway began acting strange after drinking some beers when they

were together at a bar watching a football game. He then got angry with her when she

did not want to go see the city lights in Seattle with him. Shortly thereafter, things took a

turn.

In the morning on the last day of October, Calloway testified that he received a

call from A.D. after he had only texted, not called, about whether she had seen his

missing glasses. However, A.D. testified that Calloway was calling her nonstop that

same morning with the calls starting as early as 6:51 a.m. A.D. testified that the calls

were brief since Calloway would say something and then hang up and call again, and if

she did not answer, he would leave threatening and degrading voicemails. A.D. initiated

some of the calls to Calloway and left a voice message, which the jury heard, where she

used profanity, mocked Calloway, and told him she was not scared of him; although she

3
No. 103374-5

later testified that she was “very terrified” and was attempting to “[s]care him off.”

Verbatim Rep. of Proc. (VRP) (July 5, 2022) at 118-19.

As the day went on, A.D. testified that the threats escalated. In the afternoon

when the calls persisted, A.D. had an acquaintance of hers join in a three-way call and

pose as her boyfriend. She testified that Calloway threatened to kill them both. A.D.

further stated that “he threatened everything; kidnap me, what he was going to do to me.”

Id. at 116. However, Calloway testified that the acquaintance had threatened to kill him,

which concerned his girlfriend, leading him to take her to her parent’s home for the night.

When questioned about the exact words Calloway used to threaten her, A.D.

testified that he told her:

Bitch, you going to die today; bitch you ain’t shit; bitch you going [to] the
devil the day that you die; you going to hell today, bitch; today is your day;
you’re going to die today, bitch and hang up, call back; I’m on my way to
kill you, bitch; you’re going to die today, bitch.

Id. at 120. 2 These threats prompted A.D. to call the police later in the evening.

Deputy Brent Johnson responded to the call and testified that upon arriving he

found A.D. crying and shaking, and that she had told him she was being harassed and

was going to leave for the night for fear of her safety. He further testified that while he

was speaking with A.D. for about half an hour, “[h]er cell phone kept ringing over and

over.” VRP (July 6, 2022) at 153. A.D. informed the deputy that Calloway kept calling

her and she proceeded to answer some of the calls on speakerphone, but the deputy was

2
A.D. testified that Calloway threatened her during phone calls, through text messages, and by
leaving voicemails. However, none of these were entered into evidence as A.D. testified that she
had a government phone with limited data. VRP (July 5, 2022) at 137.

4
No. 103374-5

unable to understand what was being said. Eventually she handed the phone to Deputy

Johnson, who identified himself as a Pierce County Sheriff’s deputy and asked Calloway

why he kept calling A.D. Calloway angrily told the deputy to “fuck off.” Id. at 156. He

then stated he was outside A.D.’s house and was going to kill A.D.

At this point, Deputy Johnson called for another police unit to come to their

location for both his and A.D.’s safety in case Calloway did show up. Shortly after,

Deputy Riley Jorgensen arrived and they were all standing on A.D.’s porch when they

saw a white Chevy truck drive by, which A.D. identified as Calloway’s vehicle.

Calloway’s vehicle was stopped by another deputy about 30 blocks from A.D.’s

home. Deputy Jorgensen testified that Calloway had told him that he had been drinking

with his friends and had driven by to fight A.D.’s “boyfriend” who had threatened him

earlier in the day. He further stated he had no intention of fighting A.D. Calloway later

testified that he went to see why her “boyfriend” wanted to kill him.

Calloway was placed under arrest and charged with one count of felony

harassment and one count of stalking. Calloway later testified that he made no threats to

A.D., Deputy Johnson, or A.D.’s acquaintance.

At the time of trial, this court held that “[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 upon or to take the life’ of another person.” State v. Kilburn, 151 Wn.2d 36, 43, 84

P.3d 1215 (2004) (second alteration in original) (internal quotation marks omitted)

5
No. 103374-5

(quoting State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)). The jury

received the following instruction:

Threat means to communicate, directly or indirectly, the intent to
cause bodily injury in the future to the person threatened or to any other
person.

To be a threat, a statement or act must occur in a context or under
such circumstances where a reasonable person, in the position of the
speaker, would foresee that the statement or act would be interpreted as a
serious expression of intention to carry out the threat rather than as
something said in jest or idle talk.

Clerk’s Papers (CP) at 20 (jury instruction 7).

In its closing argument, the State argued:

It’s not a jest or idle talk to say, bitch, you’re going to die. You’re
done. I’m outside your—I’m outside, I’m around the corner, I’m coming to
kill you, as you heard Deputy Johnson testify that he heard the defendant
himself say over the phone. These were threats that were not done in jest;
they were not done as a joke. These are threats the defendant—that a
reasonable person in the defendant, the speaker’s shoes, what the intention
behind those were and what those words meant, and the impact they would
have on Ms. [A.D.].

So putting that all together, on October 31st, 2021, the defendant
knowingly threatened to kill [A.D.] immediately or in the future.

VRP (July 6, 2022) at 224. The defense argued that the State did not prove

beyond a reasonable doubt that Calloway made any threats at all given the lack of

voicemails or text messages produced at trial to show that Calloway made the

threats that A.D. and Deputy Johnson testified to hearing.

The jury found Calloway not guilty of the stalking charge but guilty of the

harassment charge. Calloway appealed.

6
No. 103374-5

After he appealed his judgment and sentence, the United States Supreme Court

released its decision in Counterman. Based on Counterman, Calloway asserted a First

Amendment facial challenge to Washington’s harassment statute, RCW 9A.46.020(1), 3

and argued further that Counterman rendered the true threat jury instruction used in his

case erroneous since it misinformed the jury of the requisite mens rea and that the error

was not harmless.

The Court of Appeals held, among other things, that RCW 9A.46.020 is not

facially unconstitutional. It further held that “the jury instructions in this case were

erroneous because they allowed the jury to convict Calloway without finding that he

acted recklessly, as Counterman requires. But this error was harmless beyond a

reasonable doubt in light of the threatening statements Calloway made and the

circumstances under which he made them.” State v. Calloway, 31 Wn. App. 2d 405, 409-

10, 550 P.3d 77, review granted, 3 Wn.3d 1031 (2024). Therefore, Calloway’s judgment

and sentence was affirmed, but the case was remanded for the trial court to strike the

$500 crime victim penalty assessment. Id. at 427. Calloway sought discretionary review

here. We granted review.

3
Calloway was convicted of violating an older version of the harassment statute; however, we
cite the current version as the amendment does not impact our analysis.

7
No. 103374-5

ANALYSIS

1. Standard of Review

The constitutionality of a statute is reviewed de novo. State v. Reynolds, 2 Wn.3d

195, 201, 535 P.3d 427 (2023). “We interpret statutes as constitutional if we can.” ZDI

Gaming, Inc. v. State ex rel. Wash. State Gambling Comm’n, 173 Wn.2d 608, 619, 268

P.3d 929 (2012); Utter ex rel. State v. Bldg. Indus. Ass’n of Wash., 182 Wn.2d 398, 434,

341 P.3d 953 (2015) (“We construe statutes to avoid constitutional doubt”).

1. RCW 9A.46.020 Is Facially Constitutional

A statute is presumed constitutional, and the burden falls on the challenging party

to demonstrate unconstitutionality beyond a reasonable doubt. Gerberding v. Munro, 134

Wn.2d 188, 196, 949 P.2d 1366 (1998). A statute is facially unconstitutional if “‘no set

of circumstances exists in which the statute, as currently written, can be constitutionally

applied.’” State v. Hunley, 175 Wn.2d 901, 916, 287 P.3d 584 (2012) (quoting City of

Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004)). Essentially, the statute is

“rendered totally inoperative.” Id. Statutes that criminalize protected speech will be

invalidated only if a limiting instruction cannot save them. See State v. Johnston, 156

Wn.2d 355, 363, 127 P.3d 707 (2006).

Both the federal and state constitutions protect freedom of speech. U.S. CONST.

amends. I, XIV; WASH. CONST. art. I, § 5. The government cannot punish or restrict

speech based on its message, ideas, subject matter, or content. Police Dep’t of Chi. v.

Mosley, 408 U.S. 92, 95, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972). However, the

8
No. 103374-5

government may do so in limited instances, such as communications involving “true

threats.” This is because we recognize the government’s overriding interest in protecting

“‘individuals from the fear of violence, from the disruption that fear engenders, and from

the possibility that the threatened violence will occur.’” Kilburn, 151 Wn.2d at 43

(internal quotation marks omitted) (quoting State v. J.M., 144 Wn.2d 472, 478, 28 P.3d

720 (2001)).

State courts were divided on whether the First Amendment requires proof of a

defendant’s subjective mental state in true threat cases or whether an objective reasonable

person standard suffices. Washington courts have historically applied an objective

standard to determine whether a statement constitutes a true threat. We stated that 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 upon or to take the life of another person.’”

State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010) (quoting Kilburn, 151 Wn.2d

at 43). However, “we have never held the true threat requirement to be an essential

element of a harassment statute.” State v. Allen, 176 Wn.2d 611, 628, 294 P.3d 679

(2013) (plurality opinion).

In Schaler, we interpreted the threats-to-kill provision of RCW 9A.46.020, which

is the same provision at issue here, to require only that a defendant be at least negligent as

to their threats’ effect on listeners. Therefore, we analyzed whether “a reasonable

speaker would foresee that the threat would be considered serious.” Schaler, 169 Wn.2d 9
No. 103374-5

at 283; see State v. Trey M., 186 Wn.2d 884, 892-93, 902-04, 383 P.3d 474 (2016)

(applying an objective reasonable person standard, rather than a subjective intent to

threaten, to determine whether a statement is a “true threat”); Williams, 144 Wn.2d at

207-08.

Calloway argues that based on Counterman, our felony harassment statute is

facially unconstitutional and cannot be constitutionally applied because the legislature

has acquiesced to our use of the negligence-based standard to determine whether a

statement is a “true threat.” 4 See O’Day v. King County, 109 Wn.2d 796, 807, 749 P.2d

142 (1988) (once this court construes a statute, that construction becomes a part of the

legislation as if it were written into it).

4
Calloway cites a Michigan case, People v. Kvasnicka, No. 371542, 2025 WL 492469, at *1
(Mich. Ct. App. Feb. 13, 2025), to support his argument that our felony harassment statute is
unconstitutional under Counterman and the First Amendment. The Michigan Court of Appeals
held that their statute proscribing the making of a terrorist threat was facially unconstitutional
because it did not provide a proper mens rea standard as applied to the defendant. Id. at 4. The
Kvasnicka case was vacated by the Michigan Supreme Court and remanded to the Court of
Appeals, which, on remand, held that the statute at issue was not facially unconstitutional.
People v. Kvasnicka, No. 371542, 2025 WL 2045006, at *6 (Mich. Ct. App. July 21, 2025). The
Michigan Supreme Court has now granted review of three issues: “(1) whether the plain language
of MCL 750.543m(1)(a) includes a scienter requirement that is consistent with Counterman . . . (2)
whether the constitutional-doubt canon permits a court to deviate from ordinary principles of
statutory interpretation when assessing ‘whether a construction of the statute is fairly possible by
which the [constitutional] question may be avoided[,]’ . . . and (3) whether it is appropriate to adopt
a limiting construction of MCL 750.543m(1)(a) to remedy any remaining constitutional
deficiency.” People v. Kvasnicka, 28 N.W.3d 710, 710 (Mich. Dec. 29, 2025) (order granting
review) (second and third alterations in original). The case has yet to be decided and thus has
limited persuasive value. As discussed below, we will hold a statute to be facially unconstitutional
only if it cannot be constitutionally applied. Here, we hold that a limiting instruction remedies any
constitutional deficiency in the statute.

10
No. 103374-5

Counterman rejected an objective reasonableness standard in favor of a subjective

mental state requirement in true threat prosecutions; thus, the State has the burden to

prove at least “recklessness.” This standard requires that a defendant “consciously

disregarded a substantial risk that his communications would be viewed as threatening

violence.” Counterman, 600 U.S. at 69.

In Counterman, the defendant was charged with violating Colorado’s stalking

statute, COLO. REV. STAT. 18-3-602(1)(c). 5 Id. at 70. The defendant argued that his

messages were not “true threats” and moved to dismiss the charge on First Amendment

grounds. Id. at 71. The trial court denied the motion after finding that an objective,

reasonable person would view the messages as threatening. Id. The appellate court

affirmed. Id. However, the United States Supreme Court ultimately determined that the

First Amendment requires the State to prove that the defendant was at least reckless even

though that standard would shield some true threats from liability. Id. at 75. It held that

in true threat cases, a subjective mental state of “recklessness” is constitutionally required

to avoid chilling protected speech. “Recklessness” in the context of true threats “means

5
The statute stated:
(1) A person commits stalking if directly, or indirectly through another person, the person
knowingly:
(a) Makes a credible threat to another person, and in connection with the threat,
repeatedly follows, approaches, contacts, or places under surveillance that person
. . . . or
(b) Makes a credible threat to another person and, in connection with the threat,
repeatedly makes any form of communication with that person . . . . or
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any
form of communication with another person . . . that would cause a reasonable
person to suffer serious emotional distress . . . .

11
No. 103374-5

that a speaker is aware ‘that others could regard his statements as’ threatening violence

and ‘delivers them anyway.’” Id. at 79 (quoting Elonis v. United States, 575 U.S. 723,

746, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015) (Alito, J., concurring in part and dissenting

in part)).

However, as discussed above, a statute is facially unconstitutional only if there are

no circumstances in which the statute, as currently written, can be constitutionally

applied. That is not the case here.

Our felony harassment statute provides that

(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; . . . [and]

....

(b) The person by words or conduct places the person threatened in
reasonable fear that the threat will be carried out. “Words or conduct”
includes, in addition to any other form of communication or conduct, the
sending of an electronic communication.

(2) (a) Except as provided in (b) of this subsection, a person who
harasses another is guilty of a gross misdemeanor.

(b) A person who harasses another is guilty of a class C felony if any of
the following apply: . . . (ii) the person harasses another person under
subsection (1) (a) (i) of this section by threatening to kill the person
threatened or any other person . . . .

RCW 9A.46.020. The statute requires the State to prove that a defendant knowingly

threatened another person. Yet nothing in the statute prevents it from being applied in a

constitutionally permissible manner post-Counterman. It neither requires the State to

12
No. 103374-5

prove a true threat based on negligence nor prevents the State from proving a true threat

based on recklessness. Since Counterman does not change any of the elements of our

felony harassment statute, it is sufficient to give the jury an instruction defining true

threat and explaining the requisite mens rea required to convict in true threat prosecutions

as was done here. We have commonly held that such an instruction is sufficient to

protect a defendant’s First Amendment rights. See Allen, 176 Wn.2d at 630; Johnston,

156 Wn.2d at 363-64; State v. Tellez, 141 Wn. App. 479, 483-84, 170 P.3d 75 (2007).

1. Harmless Error

Here a “to convict” jury instruction was given, separate from the “true threat”

instruction, requiring the jury to find that Calloway knowingly threatened to kill A.D.

immediately or in the future. The issue is that pre-Counterman, true threat jury

instructions used an objective “reasonable person” standard regarding a defendant’s

understanding that the content of their communication would be understood by the

listener as a threat. In other words, the true threat instruction did not ensure that the jury

understood it must find, at a minimum, that Calloway was “aware ‘that others could

regard [the] statements as’ threatening violence,” but that he “‘deliver[ed] them

anyway.’” Counterman, 600 U.S. at 79 (quoting Elonis, 575 U.S. at 746 (Alito, J.,

concurring in part and dissenting in part)).

Given the error, it is the State’s burden to prove harmlessness beyond a reasonable

doubt. State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013). Not every

erroneous jury instruction requires a conviction to be set aside. See Neder v. United

13
No. 103374-5

States, 527 U.S. 1, 15-16, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); Delaware v. Van

Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)) (“‘[A]n otherwise

valid conviction should not be set aside if the reviewing court may confidently say, on the

whole record, that the constitutional error was harmless beyond a reasonable doubt.’”).

This requires a reviewing court to consider both the strength of the evidence of guilt as

well as the prejudicial impact of the erroneous jury instruction. See Magaña-Arévalo,

No. 103586-1, slip op. at 4; State v. Brown, 147 Wn.2d 330, 338, 58 P.3d 889 (2002).

The harmless error analysis “serve[s] a very useful purpose insofar as they block

setting aside convictions for small errors or defects that have little, if any, likelihood of

having changed the result of the trial.” Chapman v. California, 386 U.S. 18, 22, 87 S. Ct.

824, 17 L. Ed. 2d 705 (1967). An error is not harmless “when the evidence and

instructions leave it ambiguous as to whether the jury could have convicted on improper

grounds.” Schaler, 169 Wn.2d at 288. Alternatively, a misstatement of the law in a jury

instruction or even an omission of an essential element is harmless if that element is

supported by uncontroverted evidence. Brown, 147 Wn.2d at 341.

Since it is rare that the State’s key evidence in criminal trials will not be

controverted in some way, the reviewing court may find harmless error when after a

thorough examination of the record, it concludes beyond a reasonable doubt that the jury

verdict would have been the same. State v. Berube, 150 Wn.2d 498, 505 n.2; 79 P.3d

1144 (2003). We remand to the Court of Appeals to determine whether the State can

14
No. 103374-5

prove that the erroneous jury instruction here was harmless beyond a reasonable doubt as

clarified in Magaña-Arévalo.

CONCLUSION

We hold that our felony harassment statute is facially constitutional and that the

true threat jury instruction in this case did not properly inform the jury of the requisite

mens rea to be convicted under our felony harassment statute. We affirm in part, reverse

in part, and remand for the Court of Appeals to determine whether the State has

established beyond a reasonable doubt that the instructional error was harmless.

---

WE CONCUR:

---

---

---

---

Yu, J.P.T.

15
State v. Calloway (Turner Lee)

No. 103374-5

GORDON McCLOUD, J. (concurring)—I agree with the majority that the

United States Supreme Court’s decision in Counterman v. Colorado 1 changed

Washington law as it relates to our felony harassment statute, RCW 9A.46.020. But

I disagree about exactly how it changed Washington law.

The majority acknowledges that “the true threat instruction [in this felony

harassment case] did not ensure that the jury understood it must find, at a minimum,

that [Turner Lee] Calloway was ‘aware that others could regard [the] statements as

threatening violence,’ but that he ‘deliver[ed] them anyway.’” Majority at 13 (third

and fourth alteration in original) (quoting Counterman, 600 U.S. at 79). The majority

nevertheless concludes that “Counterman does not change any of the elements

our felony harassment statute.” Id. at 13.

The majority does not reach this conclusion because our felony harassment

statute already used the mental state, or “mens rea,” of “recklessness,” as

Counterman requires. The majority could not do that because RCW 9A.46.020 does

not use that word, and our prior controlling precedent interpreting that statute

1
600 U.S. 66, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023).
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

requires the State to prove only negligence, not recklessness. See, e.g., State v.

Schaler, 169 Wn.2d 274, 287, 236 P.3d 858 (2010). Instead, the majority reaches

that conclusion because the statute does not bar trial courts from telling the jury the

correct mens rea (i.e., recklessness) if they choose to do so. Id. at 12-13.

This analysis is strained. I would candidly acknowledge that our felony

harassment statute does not clearly say that the State must prove at least recklessness

to obtain a conviction. See RCW 9A.46.020. I would further acknowledge that our

controlling precedent has interpreted that statute to mean that the State must prove

only negligence, not recklessness, knowledge, or intent, to prove a violation of that

statute. E.g., Schaler, 169 Wn.2d at 287. I would continue that those prior controlling

precedential interpretations do concern an element of the crime—the element of

intent, or mens rea, or scienter. And I would explain that that interpretation was

incorrect, based on Counterman. Finally, I would adopt a different interpretation of

the statute—based on its plain language and controlling rules concerning

interpretation of statutes to protect First Amendment rights—by concluding that

RCW 9A.46.020 requires the State, in order to gain a conviction, must prove that the

defendant knowingly threatened the victim. U.S. CONST. amend. I.

I therefore concur in the outcome, but offer a different analysis.

2
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

I. COUNTERMAN OVERRULES OUR PRIOR PRECEDENT ABOUT AN ELEMENT
OF FELONY HARASSMENT. IT HOLDS THAT THE STATE MUST PROVE A
MENTAL ELEMENT OF AT LEAST RECKLESSNESS, RATHER THAN JUST
NEGLIGENCE
As explained above, our prior controlling precedent held that the mens rea for

a conviction of felony harassment is negligence. E.g., Schaler, 169 Wn.2d at 287.

Counterman overrules that line of cases. Counterman ruled that “[t]rue threats

of violence are outside the bounds of First Amendment protection and punishable as

crimes” and that “a statement can count as such a threat based solely on its objective

content.” 600 U.S. at 69, 72. To be clear about that point, the Supreme Court said it

again in different words: “Whether the speaker is aware of, and intends to convey,

the threatening aspect of the message is not part of what makes a statement a threat

. . .” id. at 74 (citing Elonis v. United States, 575 U.S. 723, 733, 135 S. Ct. 2001, 192

L. Ed. 2d 1 (2015)), and again: “The existence of a threat depends not on ‘the mental

state of the author,’ but on ‘what the statement conveys’ to the person on the other

end.” Id. (quoting Elonis, 575 U.S. at 733). So, words constitute a true threat if they

are sufficiently harassing, threatening, or terrorizing—regardless of the speaker’s

mental state.

Counterman continued, however, that such true threats cannot be criminalized

unless the government proves something more: that the defendant made that true

threat with a culpable state of mind, that is, a mental state of at least recklessness.

3
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

That’s clear from Counterman’s introductory remarks, framing the question that

court was addressing: “True threats of violence, everyone agrees, lie outside the

bounds of the First Amendment’s protection. And a statement can count as such a

threat based solely on its objective content. The first dispute here is about whether

the First Amendment nonetheless demands that the State in a true-threats case prove

that the defendant was aware in some way of the threatening nature of his

communications.” Id. at 72 (emphasis added).

The Counterman majority ruled that the answer is yes—a statute that

criminalizes true threats requires the State to prove a culpable mental state as an

element of the crime for the statute to comply with the First Amendment. To be sure,

Counterman reiterates that “‘[t]rue threats’ of violence is [a] historically unprotected

category of communications.” Id. at 74 (citing Virginia v. Black, 538 U.S. 343, 359,

123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003); United States v. Alvarez, 567 U.S. 709,

717-18, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012) (plurality opinion)). But

Counterman continues that those unprotected true threats still can’t be criminalized

without proof of one additional element—the element of a culpable mental state of

at least recklessness: “Yet the First Amendment may still demand a subjective

mental-state requirement shielding some true threats from liability. The reason

relates to what is often called a chilling effect. . . . [A]n important tool to prevent

4
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

that [chilling effect] outcome—to stop people from steering ‘wide[ ] of the unlawful

zone’—is to condition liability on the State’s showing of a culpable mental state.”

Id. at 75 (fourth alteration in original).

Thus, the Supreme Court ruled that the government must prove a specific

intent element—the element that the defendant had a culpable mental state when

uttering a “true threat” that was objectively threatening—in order to convict one of

a crime. The mental state element that the Supreme Court chose—after considering

the risks and benefits of different mental states—was at least “recklessness.” Id. at

79-83.

Notably, the Supreme Court called this recklessness mental state a necessary

“element” of the crime in a case like Counterman’s: “The same reasoning counsels

in favor of requiring a subjective element in a true-threats case.” Id. at 77 (emphasis

added).

I don’t think the Supreme Court was being sloppy when they called this

mental state an “element.” I think they meant it. The majority used the same

description “element” again just one paragraph later in explaining how it came to its

conclusion.2 And the majority analogized to prior Supreme Court decisions requiring

2
“The reasoning—and indeed some of the words—came straight from this Court’s
decisions insisting on a subjective element in other unprotected-speech cases, whether
involving defamation, incitement, or obscenity.” Id. at 78.
5
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

proof of “actual malice” in defamation and libel cases and proof of scienter in

obscenity cases 3—all elements of those claims.

I therefore disagree with the majority’s assertion that Counterman did not

change any element of Washington’s felony harassment crime. It changed the

required mental state element that we had previously read into that statute from

negligence to at least recklessness.

II. WE SHOULD NOW INTERPRET THE FELONY HARASSMENT STATUTE’S
MENTAL ELEMENT OF KNOWLEDGE TO APPLY TO ALL PARTS OF THE
STATUTE—INCLUDING THE “TRUE THREATS” PART—TO RENDER IT
CONSTITUTIONAL

RCW 9A.46.020 lacks that required mental state element in its subsection

prohibiting “true threat[s].” Does that mean that Washington’s harassment statute is

unconstitutional on its face? I answer no for two reasons. 4

3
Id. at 76 (“False and defamatory statements of fact, we have held, have ‘no
constitutional value.’ Yet a public figure cannot recover for the injury such a statement
causes unless the speaker acted with ‘knowledge that it was false or with reckless disregard
of whether it was false or not.’ New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.
Ct. 710, 11 L. Ed. 2d 686 (1964) . . . .” (citations omitted) (quoting Gertz v. Robert Welch,
Inc., 418 U.S. 323, 340, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974))); see also id. at 80-81.
4
I disagree with the majority’s statement about what Calloway must show to win
on this point in this case. The majority asserts, without qualification, “A statute is presumed
constitutional, and the burden falls on the challenging party [Calloway] to demonstrate
unconstitutionality beyond a reasonable doubt.” Majority at 8 (citing Gerberding v. Munro,
134 Wn.2d 188, 196, 949 P.2d 1366 (1998)). But we have qualified that traditionally cited
standard quite a bit: “As used in this context, ‘“beyond a reasonable doubt”’ is not an
evidentiary standard but a reflection of “‘respect for the legislature.’” Sch. Dists.’ All. for
6
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

First, that’s not what the Counterman Court ruled. It ruled that Colorado’s

harassment statute was unconstitutional as applied in that particular case, but not

unconstitutional on its face.

Second, Washington’s felony harassment statute does contain a mens rea,

even though it’s not in the subsection defining “true threat.” It states in relevant part

(and I’m highlighting the mens rea of “knowledge” here):

(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; [and]
....
(b) The person by words or conduct places the person threatened
in reasonable fear that the threat will be carried out. “Words or conduct”
includes, in addition to any other form of communication or conduct,
the sending of an electronic communication.
(2)(a) Except as provided in (b) of this subsection, a person who
harasses another is guilty of a gross misdemeanor.
(b) A person who harasses another is guilty of a class C felony if
any of the following apply: … (ii) the person harasses another person
under subsection (1) (a) (i) of this section by threatening to kill the
person threatened or any other person . . . .

Adequate Funding of Special Educ. v. State, 170 Wn.2d 599, 606, 244 P.3d 1 (2010). It
signifies that we will not invalidate a statute unless the challenger, ‘by argument and
research, convince[s] the court that there is no reasonable doubt that the statute violates the
constitution.’ Island County v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998).” Quinn v.
State, 1 Wn.3d 453, 471 n.9, 526 P.3d 1 (2023) (alteration in original).
7
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

RCW 9A.46.020 (emphasis added). As noted by the majority, the to-convict jury

instruction in this case used basically the same language and structure, including the

“knowingly” mental element in the first part but not in the second part, concerning

true threats. Majority at 13. I agree with the majority that that was a problem in this

case.

And I also agree with the majority that it doesn’t have to be a problem in future

cases. But not just because we can reword jury instructions to say what the statute

doesn’t. It’s because we can interpret the statute itself to require that its listed mens

rea of “knowingly” applies to all portions of the statute. And proof of “knowledge,”

of course, suffices to prove “recklessness” because knowledge is a higher—more

culpable—mental state than recklessness. RCW 9A.08.010(1)(b), (c).

I would interpret the mens rea of “knowingly,” which appears in the

introductory portion of the RCW 9A.46.020’s subsection (1)(a), to modify both

elements listed in subsection (1), that is, both (1)(a)(i)’s element of the type of threat

(“[t]o cause bodily injury immediately or in the future to the person threatened or to

any other person”) and (1)(b)’s element concerning the impact of the threat (“[t]he

person by words or conduct places the person threatened in reasonable fear that the

threat will be carried out”).

8
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

I understand that the introductory clause in subsection (1)(a) would not

necessarily, grammatically, be read to apply to subsection (1)(b). But it can be read

that way if necessary to save the statute from constitutional infirmity. That’s exactly

what the United States Supreme Court said in United States v. X-Citement Video,

Inc. when interpreting another statute that would have violated the First Amendment

if a limiting mens rea from one subsection were not read to also cover an act

described in a later subsection. 513 U.S. 64, 70-71, 115 S. Ct. 464, 130 L. Ed. 2d

372 (1994) (imposing scienter requirement on every element of a federal statute that

prohibited shipping and transporting child pornography, including the child’s age,

even though that was not necessarily the best grammatical read of the elements to

which the listed scienter applied).

The X-Citement Video decision did not come to that analysis out of the blue.

It relied on prior Supreme Court decisions in which it had done basically the same

thing—read the element of “knowledge” in one part of a criminal statute to apply to

other parts of that criminal statute to save the statute from constitutional infirmity,

even though that was not the most grammatical reading of the statute.5 The Supreme

5
For example, the Court in X-Citement Video relied on Morissette v. United States,
342 U.S. 246, 271, 72 S. Ct. 240, 96 L. Ed. 2d 288 (1952), which took the “knowingly”
mens rea in the federal embezzlement statute and applied it to all the prohibited acts listed
in that statute even though, grammatically, it really modified only one of those verbs
(“‘converts’”). 513 U.S. at 70. As another example, the Court in X-Citement Video relied
on Liparota v. United States, 471 U.S. 419, 424 n.6, 426, 105 S. Ct. 2084, 85 L. Ed. 2d 434
9
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

Court ruled that it was the best constitutional reading of those statutes, and that’s

what counted.

CONCLUSION

The problem in this case—as the majority correctly notes—is that the

instructions did not ensure that the jury applied the statutory mens rea of knowledge

to the defendant’s own understanding of his threatening words. But we do not need

to rewrite the statute to fix that—we can reinterpret the mental state element of

“knowingly” already present in the statute to apply to the “true threat” act and then

instruct trial courts to ensure that the jury instructions reflect this interpretation of

the statute. That is the best constitutional reading of this statute, and that’s what

counts.

I therefore agree with the majority’s conclusion that we must reverse due to

the erroneous jury instructions in this case, which failed to ensure that the State

proved that the defendant acted with at least recklessness before convicting him of

(1985), which considered “a challenge to a federal statute prohibiting certain actions with
respect to food stamps. The statute’s use of ‘knowingly’ could be read only to modify ‘uses,
transfers, acquires, alters, or possesses’ or it could be read also to modify ‘in any manner
not authorized by [the statute].’ Noting that neither interpretation posed constitutional
problems, the Court held the scienter requirement applied to both elements by invoking the
background principle set forth in Morissette. In addition, the Court was concerned with the
broader reading which would ‘criminalize a broad range of apparently innocent conduct.’”
Id. at 70-71 (alteration in original) (citation omitted) (quoting Liparota, 471 U.S. at 426).

10
State v. Calloway (Turner Lee), No. 103374-5
(Gordon McCloud, J., concurring)

harassment based on his true threats. But I disagree with the majority’s reasoning,

because it seems to interpret both Counterman and RCW 9A.46.020 incorrectly.

I respectfully concur.

11