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, in juvenile court, of cyberstalking

based on two tweets that she sent from her personal Twitter account. She now

appeals, contending both thatinsufficient evidence was adduced to establish that

she acted with the intent to "harass, intimidate, torment, or embarrass" another

person and that insufficient 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

When J.K. was in eighth grade, a classmate, S.G., informed a teacher that

another student was behaving oddly. As a result, the other student and J.K.

were both suspended from school. J.K. and S.G. had no otherinteraction until

en
No. 73339-7-1/2

the incident at the center of this case.

Two years later, when J.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 to punch you in the throat even tho it was 2 years ago." The second read,

"#[S.G.]mustdie."

J.K. later explained that she posted tweets frequently. She used Twitter

as a "virtual diary," posting her thoughts, reactions, feelings, and more. She

testified that she sent the messages quickly and without thinking, as a fleeting

expression of her agitation atthe memory from middle school. Although she was

aware that the posts were public, and that she had approximately 100 people

who followed her,2 she testified that she did not consider the potential impact her

tweets might have on S.G.

After school that day, J.K. and a friend, J.G., were walking through the

school and saw"a bunch ofred paint" spilled on the ground. J.G. joked to J.K.

that it looked as if someone had been murdered. J.K. responded by tweeting the

word "murder."

For nearly a full day after these tweets, there was no reaction. None of

J.K.'s Twitter followers mentioned them to her or, to her knowledge, responded to

them in any way. S.G. was unaware of the 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."

2Testimony established that a user's "followers" are other users 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

significant time difference between the tweets about S.G. from the prior 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 if all 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 of whether 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 of probation 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

question constituted "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 tweets would 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 of law de novo based 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 reasonable doubt." Jackson v.

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 have found the

essential elements ofthe crime beyond a reasonable doubt." Jackson, 443 U.S.

at 319.

"The purpose ofthis standard ofreview is to ensure thatthe trial court fact

finder 'rationally appl[ied]' the constitutional standard required by the due process

clause of the Fourteenth Amendment, which allows for conviction of a criminal

offense only upon proof beyond 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. at 317-18), review denied, 182 Wn.2d 1022 (2015).

This standard of review is also designed to ensure that the fact finder at trial

reached the "subjective state of near certitude ofthe guilt of the accused," as
No. 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 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). 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 of conflicting testimony, witness credibility, and persuasiveness

of the evidence. State v. Rodriguez, 187 Wn. App. 922, 930, 352 P.3d 200,

review denied, 184Wn.2d 1011 (2015).

J.K. was charged with misdemeanor cyberstalking contrary to RCW

9.61.260, which provides, in pertinent part:

(1) Aperson is guilty of cyberstalking if he 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 the person or property of

the person called or any member of his or herfamily or household.

Thus, to convict J.K. ofthe crime of cyberstalking, the State was required

to prove, in pertinent part, each of thefollowing elements beyond a reasonable

doubt: (1) thatJ.K. made an electronic communication to another person, (2)

that, at the time J.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 acts with theobjective or

purpose toaccomplish a result which constitutes a crime." 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 not protected speech because ofthe "fear of

harm aroused in the person threatened and the disruption that may occur as a

result of that fear." Kilburn, 151 Wn.2d at 46.

The test for determining a "truethreat" is an objective test that focuses on

the speaker. Kilburn, 151 Wn.2d at 54. The question is whether a reasonable

person in the speaker's position would foresee thatthe threatwould be

interpreted as a serious expression of intention to inflict the harm threatened.6

6We recognize thatthere issome disagreement among the federal circuit courts

regarding the testfor whether speech rises tothe level ofa true threat. This disagreement stems

from divergent readings of the Supreme Court's opinion in Virginia v. Black, 538 U.S. 343, 360,

123 S. Ct. 1536, 155 L. Ed. 2d 535(2003), in particular the statementthat "[ijntimidation in the

constitutionally proscribable sense oftheword isa type oftrue threat, where a speaker directs a

threat to a person orgroup ofpersons with the intent ofplacing the victim in fear of bodily harm or

death." (Emphasis added.) Following Black, a majority ofthe federal courts ofappeals continued

to apply the objective testoftrue threats setforth above. See United States v. Martinez, 736 F.3d

981, 986 (11th Cir. 2013) ("Black did not work a 'sea change,' tacitly overruling decadesofcase

law by importing a requirement of subjective 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 States v. White. 670 F.3d 498, 508 (4th Cir. 2012). However, a

minority ofsuch courts began toapply a subjective test, requiring proof that thespeaker
No. 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 in jest, 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 of threats but

which are in fact merely jokes, 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 of the 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 of the entire context" and that a person can

indirectly threaten to harm or kill another. Kilburn, 151 Wn.2d at 46,

48. Further, "[t]he speaker of a 'true threat' need not actually intend

to carry it out. It is enough that a reasonable speaker would 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 ofthe constitutional implications ofour analysis, we conduct

a limited independent review of facts crucial to the true threat inquiry.

[T]he First Amendment demands more than application ofour usual

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 be deemed unprotected by the First Amendment as a 'true threat' only

upon proof that the speaker subjectively intended the speech as a threat."). 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. The Washington Supreme Court

has consistently applied the objective test set forth above, including after the Black 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.

8
No. 73339-7-1/9

whole record to ensure that the judgment does not constitute a

forbidden intrusion into the field of free 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 over approximately five minutes. In Locke's first email 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. at 791. The e-mail also stated thatthe

governor had "put this state in the toilet" and requested that she "pull the lever to

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 of hyperbolic political
No. 73339-7-1/10

speech, predicting threatening personal consequences from the State's policies."

Locke, 175 Wn. App. at 791.

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

this e-mail, he addressed the governor with an emphatic, gender-specific epithet

and expressed his 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] that the governor should be killed," the court concluded

that, because of its "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, not that he intends to."

Locke, 175 Wn. App. at 791.

The final threat was submitted through the governor's website on a form

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 be held at theGovernor's mansion. He stated that the event's subject

would be "Gregoire's public execution" and that the governor's role would be

"Honoree." Locke, 175 Wn. App. at 792. He also noted that the event would last

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

greater than 150. Locke, 175 Wn. App. at 793. The court concluded that, in this

instance, taken in context, the communication constituted a "true threat." In the

context of the author's threats, there had been a "rapid progression of [his]

communications from expressing his displeasure with her to his blunt desire for

her death." Locke, 175 Wn. App. at 792. In particular, the specificity of the final

10
No. 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 of the 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—the tweets do not constitute

true threats. First, the similarity between Locke's "Gregoiremustdie" statement

and J.K.'s "#[S.G.]mustdie" tweet isstriking. Apart from the person named, the

difference between the text of J.K.'s tweet and this part of Locke's e-mails is the

hashtag. This difference isimmaterial. The hashtag does not elevate the tweet

to a true threat but, rather, is indicative of the social media context in which itwas

published. As summarized above, these statements were deemed not to

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

against the governor or members of herfamily included in Locke's first two

e-mails, J.K.'s second tweet expressed a desire to harm S.G., not an intention to

do so. Again, the court in Locke held that the comparable statements—those

expressing a desire for, or prediction of, violence—did not constitute true threats.

11
No. 73339-7-1/12

However, in true threat cases, it is not just the words and phrasing of the

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 combined high 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 her friends 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 used Twitter to "tweet their

feelings, things that are going 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] inside jokes with friends."

The commissioner heard testimony regarding 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 a guide for that which constituted a

reasonable reaction under the circumstances and, therefore, for what reaction a

reasonable speaker under the circumstances 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

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No. 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 not know 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 the totality ofI.R.'s testimony is to the contrary. I.R. also testified

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 been surprised by the manner in which S.G. involved both the school

administration and her mother.

The commissioner next heard from S.G. who recounted not only her own

response, but also the overheard response of another student. According to

S.G., she heard another student at school talking about "how funny" the tweets

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

"angry," and "embarrassed" upon learning of the tweets.7 By contrast, S.G.

7Asthe State acknowledged at oral argument, S.G.'stestimony that, upon seeing the

tweets, she felt "upset," "angry," and "embarrassed" is different in an important way from her

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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 of fear, 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 of the 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 of S.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 occurred during 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 said you weren't scared that [J.K.] was going to actually jump

out and hit you or hurt you in any way.

A Correct.

Despite S.G.'s denials, the prosecutor 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 redirect examination.

Q [W]ere you scared of anybody other than [J.K.]?

[Defense attorney]: Objection, relevance.

[Prosecutor]: I ask, the question was asked of counsel earlier 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.

[Defense attorney]: She's never testified 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 of anything

that[J.K.] said and she did notsay she was scared in any of the previous

answers. So if you ask her if she['s] scared, she's going to have to testify to that

first because that's what counsel asked her.

[Prosecutor]: Okay.

No question regarding whether she was scared was forthcoming.

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No. 73339-7-1/15

harm. Indeed, not one of the 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

of J.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 if she 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 commissioner found, was not at all related to the other two. Finally, both

individuals testified that they were unfamiliar with Twitter. In fact, both stated that

the underlying incident was the first time that Twitter had been at the center of an

investigation in which they were involved.

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

expressions of frustration, and that is precisely 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 the tweets

constituted true threats. Because Lockhart and Brown were not part of J.K.'s

peergroup and were unfamiliar with Twitter, their reactions to J.K.'s tweets are a

poor measure of the reaction that a reasonable person in J.K.'s position would

have anticipated from her peers.

15
No. 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 of the 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