IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. JESSICA L. KOHONEN, Appellant, DIVISION ONE
No. 73339-7-1 

### PUBLISHED OPINION ^

FILED: February 8, 2016 V?

o 

### Dwyer, J. — J.K. was adjudicated guilty, injuvenile court, ofcyberstalking based on two tweets that she sent from her personal Twitter account. She now 

### appeals, contending both thatinsufficient evidence wasadduced toestablish that she acted with the intent to "harass, intimidate, torment, or embarrass" another 

### person and thatinsufficient evidence was presented that hertweets constituted "true threats." Because we agree that insufficient evidence was presented that J.K.'s tweets constituted a true threat, we reverse the conviction and remand for the cause to be dismissed with prejudice.
I 

### WhenJ.K. was in eighth grade, a classmate, S.G., informed a teacherthat another student was behaving oddly. As a result, the other student and J.K. 

### wereboth suspendedfrom school. J.K. and S.G. had no otherinteraction until enNo. 73339-7-1/2

the incident at the center of this case. 

### Two years later, whenJ.K. and S.G. were sophomores in high school, 

### they shared a first period class. One morning, J.K. saw S.G. in class and was reminded of the incident two years before. She quickly posted two short 

### messages, known astweets, via the web site Twitter. The first read, "Tbh[1] Istill want topunch you in thethroat even tho itwas 2years ago." The second read, "#[S.G.]mustdie." 

### J.K. later explained that she posted tweets frequently. She usedTwitter


### as a "virtual diary," posting herthoughts, reactions, feelings, and more. She testified that she sent the messages quickly and without thinking, as a fleeting 

### expression ofher agitation atthe memory from middle school. Although she was aware thatthe posts were public, and that shehad approximately 100 people who followed her,2 shetestified that shedid not considerthe potential impact her tweets might have on S.G. 

### After school that day, J.K. and afriend, J.G., were walking through the school and saw"a bunch ofred paint" spilled on theground. J.G. joked toJ.K. 

### that it looked as ifsomeone had been murdered. J.K. responded by tweeting the
word "murder." 

## Fornearly afull day afterthese tweets, there was no reaction. None of J.K.'s Twitterfollowers mentioned them to heror, to herknowledge, responded to 

### them in any way. S.G. was unaware ofthe tweets. The next day, however, another student, I.R., who follows J.K. on Twitter, noticed the tweets and showed 1Testimony established that "Tbh" is an abbreviation for "to be honest." 

### 2

Testimony established that auser's "followers" are otherusers who have chosen to subscribe to that user's tweets.No. 73339-7-1/3

them to S.G. I.R. later explained that the only reason she became aware of J.K.'s tweets was that she followed J.K. on Twitter, which meant that anything that J.K. posted automatically appeared on I.R.'s Twitter page. I.R. also explained that, because J.K.'s Twitter account was public, anyone who searched for her page could see the things that she had posted that were not specifically blocked. S.G. testified that she felt angry and embarrassed upon learning of the tweets because she knew that others would see them. She was not frightened, 

### though, because she did not think that J.K. would actually hurt her. Nevertheless, S.G. decided to bring the tweets to the attention of school administrators. She first showed them to Nicole Lockhart, the dean of students, 

### whom she encountered on the way into the administration building. Lockhart consulted with other administrators before summoning the school resources 

### officer, Officer George Brown of the Bellingham Police Department. Lockhart and Brown reviewed the tweets together with S.G. and her 

### mother, whom S.G. had called soon after seeing the tweets. Despite the 

### significanttime difference between thetweets about S.G. from theprior morning and the "murder" tweet from the prior afternoon, because they appeared in 

### sequence on J.K.'sTwitter page,3 the group treated the tweets as ifall three

were related. J.K. was taken from class to the administration office, where Lockhart and Brown confronted her with the tweets. J.K. immediately admitted that she had

3Testimony established that tweets appear on the author's Twitter page in reverse chronological order.No. 73339-7-1/4 written and posted the tweets but stated that she had not intended for her actions to harm S.G. J.K. also explained that the "murder" tweet was unrelated to the
other two. J.K. was charged with one count of cyberstalking. After trial, the commissioner adjudicated J.K. guilty as charged, finding that J.K. had acted with the intent to embarrass, harass, and torment S.G. and that she was not credible on the question ofwhether she had considered the effect the tweets could have 

### before posting them. The court also concluded that the tweets constituted a true threat. J.K. was sentenced to six months ofprobation and 30 hours of community service. 

### The superior court denied J.K.'s motion to revise. A notice of appeal was timely filed.
II J.K. contends that insufficient evidence was presented that the tweets in 

### questionconstituted "true threats," as required bythe federal and state constitutions. This is so, she asserts, because a reasonable person in her 

### position would not have foreseen that the tweetswould be interpreted as serious threats to inflict harm. We agree. 

### We review the superior court's ruling, not the commissioner's. On revision, the superior court reviews both the commissioner's 

### findings of fact and conclusions oflaw de novobased upon the evidence and issues presented to the commissioner. In re Marriage of Moody, 137 Wn.2d 979, 993, 976 P.2d 1240 (1999);[] State v. Wicker, 105 Wn. App. 428, 433, 20 P.3d 1007 (2001). 

### Once the superior court makes a decision on revision, "the appeal isfrom the superior court's decision, not the commissioner's."No. 73339-7-1/5 State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003)[, reversed on other grounds, 150 Wn.2d 536, 78 P.3d 1289 (2003)]. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). 

### The due process clauses of the federal and state constitutions require that 

### the government prove every element of a crime beyond a reasonable doubt. Apprendi v. New Jersev, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 

### 435 (2000); U.S. Const, amend. XIV; Wash. Const, art. I, § 3. "[T]he 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 ofguilt beyond a reasonabledoubt." Jacksonv. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). "[T]he 

### relevant question iswhether, afterviewing the evidence in the light most favorable to the prosecution, any rational trier offact could havefound the essential elements ofthe crime beyond a reasonable doubt." Jackson, 443 U.S.

at 319.

### "The purpose ofthis standard ofreview is to ensure thatthetrial courtfact finder 'rationally appl[ied]' the constitutional standard required by the dueprocess clause of the Fourteenth Amendment, which allows for conviction of a criminal 

### offense only upon proofbeyond a reasonable doubt." State v. Rattana Keo Phuong, 174Wn. App. 494, 502, 299 P.3d 37 (2013) (alteration in original) 

### (quoting Jackson, 443 U.S. at317-18), review denied, 182Wn.2d 1022 (2015). This standard ofreview is also designed to ensure that the factfinder at trial 

### reached the "subjective state ofnearcertitude oftheguilt oftheaccused," asNo. 73339-7-1/6 required by the Fourteenth Amendment's proof beyond a reasonable doubt standard. Jackson, 443 U.S. at 315. "A claim of insufficiency admits the truth ofthe 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). Circumstantial evidence and direct 

### evidence carry equal weight when reviewed by an appellate court. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Finally, we defer to the fact 

### finder on issues ofconflicting testimony, witness credibility, and persuasiveness ofthe evidence. State v. Rodriguez, 187 Wn. App. 922, 930, 352 P.3d 200, review denied, 184Wn.2d 1011 (2015). 

### J.K. was charged with misdemeanorcyberstalking contrary to RCW 9.61.260, which provides, in pertinent part: 

### (1) Aperson is guilty ofcyberstalking ifhe or she, with intent[4] to harass, intimidate, torment, or embarrass any other person, . . . makes an electronic communication to such other person or a third party: 

### (c) Threatening151 to inflict injury on theperson orproperty of the personcalled or anymember ofhis or herfamily orhousehold. Thus, to convict J.K. ofthe crime ofcyberstalking, the State was required 

### to prove, in pertinent part, eachofthefollowing elements beyond a reasonable doubt: (1) thatJ.K. made an electronic communication to another person, (2) that, at the timeJ.K. made the electronic communication, she specifically intended to harass, intimidate, torment, or embarrass another person, and (3)

4"A person actswith intent orintentionally when he orshe actswith theobjective or purpose toaccomplish a resultwhich constitutes acrime." RCW 9A.08.010(1)(a). 5"Threat' means to communicate,directly or indirectly the intent... [t]o cause bodily 

### injury in the future to the person threatened orto any other person." RCW 9A.04.110(28)(a).

-6-No. 73339-7-1/7 that J.K. threatened to inflict injury on the person to whom the electronic communication was made. See 11 Washington Pattern Jury Instructions: Criminal 36.82 (3d ed. Supp. 2014). J.K. contends that insufficient evidence was presented to support a finding that her tweets constituted "true threats." Where a threat to commit bodily harm is an element of a crime, the State 

### must prove that the alleged threat was a "truethreat." State v. Kilburn, 151 Wn.2d 36, 54, 84 P.3d 1215 (2004). This is because of the danger that the criminal statute will be used to criminalize pure speech and impinge on First 

### Amendment rights. True threats are notprotected speech because ofthe "fear of harm aroused in the person threatened and the disruption that may occur as a result ofthat fear." Kilburn, 151 Wn.2d at 46. 

### The test fordetermining a "truethreat" is an objective test that focuses on 

### the speaker. Kilburn, 151 Wn.2d at54. The question is whether a reasonable person in the speaker's position would foresee thatthe threatwould be 

### interpreted as a serious expression ofintention to inflictthe harm threatened.6

6We recognize thatthere issomedisagreement among thefederal circuit courts regarding the testfor whether speech rises tothe level ofatrue threat. This disagreement stems 

### from divergent readings ofthe Supreme Court's opinion in Virginia v. Black, 538 U.S. 343, 360, 123 S. Ct. 1536, 155L. Ed. 2d 535(2003), in particularthe statementthat"[ijntimidation in the constitutionally proscribable sense oftheword isa type oftrue threat, where a speakerdirects a threatto a person orgroup ofpersons with the intentofplacing thevictim in fear ofbodily harm or death." (Emphasis added.) Following Black, amajority ofthe federal courts ofappeals continued 

### to apply the objective testoftrue threats setforth above. SeeUnited States v. Martinez, 736 F.3d 981, 986 (11th Cir. 2013) ("Black did not work a 'seachange,' tacitly overruling decadesofcase 

### law by importing arequirementofsubjective intent into all threat-prohibiting statutes."), overruled on othergrounds 135 S. Ct. 2798 (2015) (vacated and remanded in light ofthe statutory holding in Elonis v. United States. 575 U.S. _, 135 S. Ct. 2001, 192 L Ed. 2d 1 (2015)); United States v. Elonis, 730 F.3d 321, 332(3d Cir. 2013), overruled on othergrounds, Elonis, 135S. Ct. 2001; United States v. Nicklas. 713 F.3d 435, 440 (8th Cir. 2013); United States v. Jeffries, 692 F.3d 473, 479 (6th Cir. 2012); United Statesv. White. 670 F.3d 498, 508 (4th Cir. 2012). However, a minority ofsuch courts began toapply a subjective test, requiring proofthatthespeakerNo. 73339-7-1/8 State v. Allen. 176 Wn.2d 611, 626, 294 P.3d 679 (2013); accord Kilburn, 151
Wn.2d at 46. A true threat is a serious threat, not one said injest, idle talk, or political argument. Kilburn, 151 Wn.2d at 43 (citing United States v. Howell, 719 F.2d 1258, 1260 (5th Cir. 1983)). Stated another way, communications that "bear the wording ofthreats but which are infact merelyjokes, idle talk, or hyperbole" are not true threats. State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010). The nature of a threat "depends on all the facts and circumstances, and it is not proper to limit the inquiry to a literal translation ofthe words spoken." State v. C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003). Statements may "connote something 

### they do not literally say . . . ." Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal, of Life Activists, 290 F.3d 

### 1058, 1085 (9th Cir. 2002). Consistently with this recognition, our court has held that "[wjhether a statement is a true threat or a joke is determined in light ofthe entire context" and that a person can 

### indirectly threaten to harm orkill another. Kilburn, 151 Wn.2d at 46, 48. Further, "[t]he speaker of a 'true threat' need notactually intend 

### to carryit out. It is enough that a reasonable speakerwould foresee that the threat would be considered serious." Schaler, 169 Wn.2d at 283 (citation omitted). 

### State v. Locke, 175Wn. App. 779, 790, 307 P.3d 771 (2013), review denied, 179 Wn.2d 1021 (2014). 

### Although the sufficiency principles set forth above are generally 

### applicable, because oftheconstitutional implications ofour analysis, we conduct
a limited independentreview of facts crucial to the true threat inquiry. 

### [T]he FirstAmendment demands more than application ofourusual standard of review for sufficiency of the evidence. Kilburn, 151 Wn.2d at 48-49. Instead, we must independently examine the subjectively intended tothreaten listeners. See United States v. Cassel, 408 F.3d 622, 633 (9th Cir. 2005) ("[Sjpeech may bedeemed unprotected by the First Amendment as a 'true threat' only upon proofthat the speaker subjectively intended the speech as athreat."). The Supreme Court has declined to address the constitutional question raised by Black. Elonis, 135 S. Ct. at 2012. Thisdebate, while interesting, is immaterial to our task. TheWashington Supreme Court has consistently applied theobjective test setforth above, including aftertheBlack opinion was filed. See, e.g., State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013); Kilburn. 151 Wn.2d at 46. We follow this binding precedent.

8No. 73339-7-1/9 whole record to ensure that thejudgment does not constitute a forbidden intrusion into the field offree expression. Kilburn, 151 Wn.2d at 50. We are required to independently review only crucial facts, that is, those facts so intermingled with the legal question that it is necessary to analyze them in order to pass on the constitutional question. Kilburn, 151 Wn.2d at 50-51. In doing so, we may review evidence in the record not considered by the lower court in deciding the constitutional question. Kilburn. 151 Wn.2d at 51. However, our review does not extend to factual determinations such as witness credibility. State v. Johnston, 156 Wn.2d 355, 365- 66, 127 P.3d 707 (2006). Locke, 175 Wn. App. at 790-91. 

### Applying the foregoing principles of law to the facts herein, the relevant 

### question is whether a reasonable person in J.K.'s position would have foreseen that the tweets would be interpreted as a serious expression of an intent to physically harm S.G. 

### We focus first on the exact language of the tweets. In this regard, a 

### description of the threats at issue in Locke is useful. Locke concerned a series of Internet threats made against former 

### Governor Christine Gregoire overapproximately five minutes. In Locke's first e

### mail to the governor, the author identified his city as "Gregoiremustdie" and stated his desire for her to witness a family member "raped and murdered by a 

### sexual predator." Locke. 175 Wn. App. at791. Thee-mail also stated thatthe 

### governor had "putthis state in thetoilet" and requested that she "pull theleverto send us down before you leave Olympia." Locke, 175Wn. App. at 791. The court concluded that the various messages in the e-mail did not constitute a true 

### threat because the messages were "more in the nature ofhyperbolic politicalNo. 73339-7-1/10 

### speech, predicting threatening personal consequences from the State'spolicies." Locke, 175 Wn. App. at 791. 

### Locke's second e-mail again identified his city as "Gregoiremustdie." In 

### thise-mail, he addressed the governor with an emphatic, gender-specific epithet 

### and expressedhis opinion that she should be "burned at the stake like any heretic." Locke, 175Wn. App. at 791. While noting that "[the e-mail's] message, 

### expressed twice, [was] thatthe governor should be killed," the courtconcluded that, because ofits "passive and impersonal phrasing," this email also did not constitute a true threat. Locke. 175Wn. App. at 792. The author's message, it 

## explained, "[was] that someone should kill the governor, notthathe intends to." Locke, 175 Wn. App. at 791. 

### Thefinal threat was submitted through the governor's website on aform 

## entitled, "Invite Governor Gregoire to an Event." Using this form, the author, who 

## again identified his organization as "Gregoire Must D[i]e," requested that an event beheld at theGovernor's mansion. He stated thatthe event's subject 

## would be "Gregoire's public execution" and thatthe governor's role would be "Honoree." Locke, 175 Wn. App. at792. He also noted thatthe eventwould last 

### 15 minutes, the media would beinvited, and the audience's size would be 

## greaterthan 150. Locke, 175Wn. App. at793. The courtconcluded that, inthis instance, taken in context, the communication constituted a"truethreat." In the context oftheauthor's threats, there had been a "rapid progression of [his] 

### communications from expressing his displeasure with herto his bluntdesire for her death." Locke, 175 Wn. App. at792. In particular, the specificity ofthe final

10No. 73339-7-1/11 communication "thr[e]w the threat into higher relief and translate^] it from the realm of the abstract to that of the practical." Locke, 175 Wn. App. at 793. In the broader context, as Locke was aware, there had recently been a shooting of an elected official in another state. Furthermore, all ofthe witnesses from the governor's office testified that they took Locke's communications to be serious threats. Finally, Locke himself told police that he understood that his threats would be taken seriously. 

### A comparison of the text of the threats at issue herein with those analyzed 

### in Locke suggest that—in terms of the words alone—thetweets do not constitute true threats. First, the similaritybetween Locke's "Gregoiremustdie" statement 

### and J.K.'s "#[S.G.]mustdie" tweet is striking. Apart from the person named, the difference between the text ofJ.K.'s tweet and this part of Locke's e-mails is the 

### hashtag. This difference isimmaterial. The hashtag does not elevate thetweet to a true threat but, rather, is indicative of the social media context in which itwas 

### published. As summarized above, these statements were deemed notto constitute true threats in Locke. There are also commonalities between J.K.'s second tweet and the 

### threats analyzed in Locke. In particular, similar to the threats regarding violence 

### againstthegovernor ormembers of herfamily included in Locke's first two e-mails, J.K.'s second tweet expressed a desireto harm S.G., not an intention to 

### do so. Again, the court in Locke held that the comparable statements—those expressing a desirefor, orprediction of, violence—did not constitute truethreats.

11No. 73339-7-1/12 However, in true threat cases, it is notjust the words and phrasing ofthe alleged threat that matter, but also the larger context in which the words were uttered, including the identity of the speaker, the composition of the audience, the medium used to communicate the alleged threat, and the greater environment in 

### which the alleged threat was made. Herein, the combinedhigh school and social media context in which the alleged threats were made further supports the conclusion that J.K.'s tweets did not constitute true threats. 

### The author of the alleged threats was J.K., an adolescent high school student. The intended audience was J.K.'s Twitter followers, approximately 100 

### of herfriends and acquaintances—in short, members of her peer group. The 

### alleged threats were disseminated via Twitter, a popular social media platform. Testimony established thatJ.K. and her peers usedTwitterto "tweettheir 

### feelings, things that aregoing on, funny pictures, just pictures in general" and to 

### "post [their] thoughts, [their] reactions to things, [their] feelings, things that happen to [them] on a daily basis[, and] insidejokes with friends." The commissioner heard testimonyregarding the actual reactions of three members of the intended audience—S.G., I.R., and an unidentified student at the 

### same high school. These reactions provide aguide for that which constituted a reasonable reaction under the circumstances and, therefore, for what reaction a 

### reasonable speakerunder thecircumstances would have foreseen. See Kilburn, 151 Wn.2d at 45 n.3 ("[l]n the vast majority ofthe cases ... a reasonably foreseeable response from the listener and an actual reasonable response 

### should be the same [T]he only case where there might be a different

12No. 73339-7-1/13
outcome is where the recipient suffers from some unique sensitivity unknown to 

### the speaker." (citing Doe v. Pulaski County Special Sch. Dist. 306 F.3d 616, 623 (8th Cir. 2002))). The commissioner first heard about I.R.'s reaction to the tweets. I.R. testified that, when she saw the tweet that included S.G.'s name, she found it 

### "suspicious," because she did notknow that the two girls knew each other. She also testified that she allowed S.G. to bring her cellular telephone to the school 

### administration office because "[i]t was a serious situation for [S.G.]." (Emphasis 

### added.) I.R. was never asked whether she perceived the tweets to be serious threats to harm S.G. Nevertheless, based on the foregoing testimony, the State 

### asks us to infer that I.R. so perceived the tweets. However, the strongest 

### inference from thetotality ofI.R.'s testimony is to thecontrary. I.R. alsotestified that she did not realize "to what extent" S.G. would involve the school 

### administration or that S.G. would involve her mother "or anything like that" at all. If I.R. had taken J.K.'s tweets as a serious death threat, she certainly would not 

### have beensurprised by themanner in which S.G. involved both theschool
administration and her mother. The commissioner next heard from S.G. who recounted not only her own 

### response, but also theoverheard response ofanother student. According to S.G., she heard another student at schooltalking about "how funny" the tweets 

### were. Regarding her own response, S.G. repeatedly recalled feeling "upset," 

### "angry," and "embarrassed" upon learning ofthe tweets.7 By contrast, S.G.

7Asthe State acknowledged atoral argument, S.G.'stestimony that, upon seeing the tweets, shefelt "upset," "angry," and "embarrassed" isdifferent in animportantway from her

-13-No. 73339-7-1/14 

### repeatedly denied that she felt scared or afraid as a result of the tweets.8 Consistent with her stated lack offear, after leaving the school administration building, S.G. returned directly to class. Thus, even S.G., who did not know J.K. well and who knew that J.K. might resent her because ofthe incident two years earlier, did not view these tweets as expressing an actual intent to cause physical stating, for example, that she feltscared or afraid upon seeing them. Unlike feeling afraid or scared, the emotions that S.G. experienced do not reflect fear. Oral argument at 18:20-20:30. Therefore, even this evidence ofS.G.'s reaction to the tweets fails to support the State's assertion that, viewed objectively, the tweets expressed or conveyed a serious threat to harm S.G. 8S.G. explicitly denied feeling scared or afraid at least twice. The following exchange on the subject of her fear occurredduring the defense attorney's cross-examination of S.G.: Q So earlier you said you were upset and angry, is that correct? A Yes. Q You weren't scared? A Not really, no. Q You didn't think [J.K.] was going to come hit you? A No. S.G. confirmed her lack of fear during the prosecutor's redirectexamination of her. Q [S.G.] you saidyou weren't scared that [J.K.] was going to actuallyjump out and hit you or hurt you in any way. A Correct. Despite S.G.'s denials, theprosecutor repeatedly attempted tocommit S.G. to testifying that she feltfear as a result of the tweets. For example, the following exchange transpired during the prosecutor's direct examination of S.G.: Q

... You mentioned a few things, you mentioned being scared, is that accurate? [Defense attorney]: Objection. Q Howdid you feel [S.G.]

- I'll ask her directly- [Defense attorney]: Okay. Q Howdid you feel after you saw the tweets? A Iwas upset and embarrassed. The prosecutor persisted during his redirectexamination. Q [W]ere you scared of anybody other than [J.K.]? [Defense attorney]: Objection, relevance. [Prosecutor]: Iask, the question was asked of counselearlier whether she was scared and she said she wasn't of [J.K.] but she had testified she was scared so Iwant to know who, what she was scared of, how she was scared. [Defenseattorney]: She's nevertestified that she was scared. THE COURT: . . . She has said she was upset, angry and embarrassed and at one point she also said that she was upset and embarrassed and a third time she said she was upset and angry. She denied being scared ofanything that[J.K.] said and she did notsay she was scared in any of the previous answers. So ifyou ask herifshe['s] scared, she's going to have totestify to that first because that's what counsel asked her. [Prosecutor]: Okay. No question regarding whether she was scared was forthcoming.

-14-No. 73339-7-1/15 harm. Indeed, not one ofthe people in J.K.'s intended audience who testified perceived the tweets to be serious threats. It is clear that both Lockhart and Brown—neither of whom was a member ofJ.K.'s intended audience—took the tweets seriously. However, it is not clear that the reason either adult took them seriously was because they perceived them to be true threats. Indeed, neither Brown nor Lockhart was asked at trial whether he or she perceived the tweets to be serious threats to inflict harm on S.G. There is reason to believe that Lockhart, at least, would have taken them 

### seriously even ifshe did not believe them to be true threats because—true threats or not—they were affecting the high school dynamic. Furthermore, 

### Brown testified that he was "particularly" interested in the "murder" tweet, which,
as the commissionerfound, was not at all related to the othertwo. Finally, both 

### individuals testified that they wereunfamiliarwith Twitter. In fact, both stated that 

### the underlying incident was the first time thatTwitter had been atthe centerofan investigation in which they were involved. 

### J.K.'s tweets bear the signs of—admittedly mean-spirited—hyperbolic 

### expressions offrustration, and that isprecisely how they were received. A reasonable person in J.K.'s position would not have anticipated a different reception. Therefore, insufficient evidence was presented that thetweets constituted true threats. Because Lockhart and Brown were not part of J.K.'s 

### peergroup and were unfamiliarwith Twitter, their reactions toJ.K.'s tweets are a 

### poor measure ofthe reaction that a reasonable person in J.K.'s position would have anticipated from her peers.

15No. 73339-7-1/16

Reversed and remanded to the trial court for the cause to be dismissed with prejudice.9

We concur:

9Given our resolution ofthe true threat issue, we do not address J.K.'s additional contention that insufficientevidence was presented that she acted with the specific intent to "harass, intimidate, torment, or embarrass" S.G.

16