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

v. JAMES MICHAEL MCCLURE, Appellant. No. 70516-4-1 DIVISION ONE 3E- i n 

## UNPUBLISHEDOPINION -'' |; •2- '--:- 

## FILED: November17,201<C %

_ en c 

### Appelwick, J. — A jury found McClure guilty of felony harassment. McClure 

### fails to demonstrate that excusal of twojurors prior to presenting the venire for voir dire violated his public trial right or right to be present at all criticalproceedings. We also conclude that the evidence was sufficient to establish a "true threat" to kill and 

### the victim's reasonable beliefthat McClure would carry out his threat. We affirm. FACTS Between December2012 and January 2013, James McClure called the Island 

### County 911 dispatch center more than 100 times, sometimes up to 15 times per night. Each call lasted at least 6 to 7 minutes, and McClure frequently asked to talk to dispatcher Erin Peterson. McClure never reported any emergencies, but generally talked about his years of service in the Navy, his wife, and poker. McClure's conversations were occasionally rambling and vulgar, and he sometimes sounded intoxicated. On December 28, 2012, McClure delivered a suspicious package to the dispatch center addressed to Peterson. The bomb squad responded and determined that the package contained playing cards, a book about poker, and some written
notes.No. 70516-4-1/2 

### Based on the package incident and McClure's continuing calls, Island County Sheriff's Lieutenant Mike Hawley began an investigation. Lt. Hawley attempted to contact McClure several times, but he was not home. On January 6, 2013, Hawley 

### spoke with McClure bytelephone and threatened him witharrest if he did not stop the
calls. 

### Immediately after the conversation with Hawley, McClure placed another series of calls to the dispatch center. In one ofthe calls, McClure had the following conversation with the dispatcher: JAMES McCLURE: This is a message for whoever the senior 

### bastard is, you have a Hawleythat used to be sheriff. ERIN PETERSEN: Okay. 

### JAMES McCLURE: Ihad to sign a letter that said Iwould not talk about, discuss or release any press releases for 20 years after Igot out 

### of the Navy. And Igot out of the Navy on the 31st ofMay, 1993. But due to Internet technology and everything else, it's leaking out. 

### So I'm kind of fuzzy a little bit. So I cleared itwith three Navy captains and an admiral.

ERIN PETERSEN: Okay. 

### JAMES McCLURE: Lives right here on Whidbey Island. They're all retired. 

### ERIN PETERSEN: So you're [sic] weren't supposed to do - You weren't supposed to talk aboutwhat? I'm sorry.

JAMES McCLURE: Everything Idid inthe Navy. ERIN PETERSEN: Okay.No. 70516-4-1/3 JAMES McCLURE: Okay. And my Navy references are: VO-67, Albadron-67 (phonetic), VAH-21, Heavy 21.
ERIN PETERSEN: Mm-hmm. JAMES McCLURE: And I had an Ace of Diamonds and a Queen 

### ofSpades painted on my tail. Yes, ma'am. Iput 'em upthere myself.
ERIN PETERSEN: Mm-hmm. 

### JAMES McCLURE: Pretty thing. Pretty thing. Gun ships, ma'am. Gun ships. 

### And after Italked to captain - Well, Italked to the Master Chief first. He's here, too. He talked with Captain. Captain called me. 

### Captain called the Admiral. Admiral approved it. 

### He says, "Forget about that last five months, Chief. Go ahead and let him have it." ERIN PETERSEN: Okay. JAMES McCLURE: You know what the Admiral wants to see 

### happen to MikeHawley? ERIN PETERSEN: Oh. Idon't know. 

### JAMES McCLURE: Smoking hole (indiscernible).

JAMES McCLURE: Idon't know what he did to piss the admiral 

### off, but the admiral said, "Chief, you're flying tonight in a black airplane. 

### We'reall going to bedwiththeirwives, you poor E7 son of a bitch. Now, go get 'em!"

ERIN PETERSEN: Mmm. JAMES McCLURE: Ahhh! Thatwas terrifying! ERIN PETERSEN: Goodness. JAMES McCLURE: So I had another little -- Ma'am, I had another little drink ofscotch.No. 70516-4-1/4 ERIN PETERSEN: Okay. JAMES McCLURE: Put allthe switches up. Turned allthe knobs to the right. Push allthe levers allthe way forward.

JAMES McCLURE: U.S.S. Barque Road Iis readyfor combat.

ERIN PETERSEN: Okay. JAMES McCLURE: And so is Navy 902 circling overhead. And them 30-calibermini guns, they're so heavy my wings are tipping down. And when Iblast, there's nothing left. I'll take outthat filbert orwalnut farm, his wife, his kids. And you know what? I'll feel no sorrow tomorrow. ERIN PETERSEN : You would

- JAMES McCLURE: Because the admiral told me to do it. ERIN PETERSEN: Okay. JAMES McCLURE: And Ilove it! That's why Igot 31 years, six months and 17 days as an E7.

ERIN PETERSEN: Okay. JAMES McCLURE: Yeah. Because theyjust send me the shit like this. ERIN PETERSEN: Oh. JAMES McCLURE: I think they (indiscernible). Because I'm a 

### Cherokee outlaw. They look through the windows to see if they can find me my buffalo graves. 

### Hawleylived with his wife M'Liss Hawley on a fiveacre farm with an orchard of filberts and walnuts. The property is not open to the public. Upon learning of the personal references in McClure's call, Hawley alerted his wife to thethreats.No. 70516-4-1/5 

### Hawley investigated a similar series of calls that McClure placed to the dispatch center in 2008. Hawley and otherofficers repeatedly contacted McClure at 

### his house in an unsuccessful effort to persuade him to stop the calls. During the 2008incidents, McClure was arrested for brandishing aflare gunin a local attorney's 

### office. Another attorney obtained a protection order againstMcClure forthreatening and harassing calls. Based on the protection order, Hawley removed 6-12 firearms from McClure's house. 

### Lt. Hawley took McClure'sthreats seriously. He knew that McClure "had gone mobile [and] was out driving all the time." He believed that McClure was unpredictable and dangerous and could be "spiraling out of control." Based on the 

### information supplied by her husband, Ms. Hawley believed the threat was serious
and credible. 

### The State charged McClure with one count of felony harassment, threatto kill, 

### involving Ms. Hawley and one count of telephone harassment involving Erin 

### Peterson. Prior to commencement of voir dire in the courtroom, the trial judge informed the parties that 11 potential jurors had failed to appear and 2 had been
excused. Thejury found McClure guilty as charged offelony harassment, threat to kill, and not guilty oftelephone harassment. The court imposed a three month standard range term.

-5-No. 70516-4-1/6 DECISION McClure contends that his right to a public trial was violated when two jurors

were excused outside of the courtroom before voir dire. He also maintains that he had a constitutional right to be present atthe excusal proceeding. 

### A criminal defendant has a right to a public trial under both the state and federal constitutions. State v. Lormor. 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011);
see U.S. Const, amends. VI, XIV; Wash. Const, art. I, § 22. But "'[n]ot every interaction between the court, counsel, and defendants will implicate the right to a 

### public trial, or constitute a closure ifclosed to the public.'" State v. Koss. Wn.2d 

### , 334 P.3d 1042, 1045 (2014) (quoting State v. Sublett. 176Wn.2d 58, 71, 292 P.3d 715 (2012)). Before determining whether a publictrial violation occurred, an 

### appellate courtfirst considers"whethertheproceeding at issue was one towhich the constitutional right to a public trialattaches." id. 

### The court addressed an essentially identicalissue inState v.Wilson, 174 Wn. 

### App. 328, 298 P.3d 148 (2013). In Wilson, the bailiffexcused twojurorsfor illness before voir dire began in the courtroom, id. at 332. The excusal was in accordance with the trial court's written policy, which allowed administrative staff "toexcusejurors 

### pretrial for illness-related reasons, and rescheduled them forjury service at a later date." id. On appeal, Wilson argued that the excusals violated his right to a public 

### trial and hisrightto be present atall crucial proceedings. JcL at 333. Afterexamining theclaims in lightofthe "experienceandlogic" test, the courtdisagreed. Id at 337. Under the "experience" prong, the court noted that no Washington decision has held that preliminaryjuror excusals for hardships have historically been open to

-6-No. 70516-4-1/7 

### the public. ]g\ at 342. Norhas a court held that the publictrial right implicates any componentof juryselection "thatdoes not involve'voirdire' or a similar juryselection proceeding involving the exercise of 'peremptory' challenges and 'for cause' juror excusals." id In general, the trial court and its delegated agents retain broad discretion to excuse jurors for administrative or hardship reasons outside of the courtroom "provided that the excusals are not the equivalent of peremptory or for
cause juror challenges." ]d at 344; see also RCW 2.36.100(1); CrR 6.3; State v. Rice, 120Wn.2d 549, 561-62, 844 P.2d 416 (1993). 

### Underthe "logic" prong, the Wilson courtfound no showing that public access played "'a significant positive role"' in pre voir dire juror excusals for hardships. 174 Wn. App. at 346 (quoting Sublett. 176 Wn.2d at 73). Moreover, because the bailiff had broad discretion to excusejury pool members for "hardship" and other reasons, openness during the pre voir dire excusal proceeding would not have "'enhance[d] both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.'" jd. (alteration in original) (quoting Sublett, 176 Wn.2d at 75). The court concluded that the bailiff's administrative excusal of two jurors for illness did not implicate Wilson's public trial right and no courtroom closure occurred, jd. at 347. The court also rejected Wilson's claim that he had a constitutional right to be presentduring such proceedings, id. at 350. The court noted thatthe excusals were not based on any circumstances related to Wilson personally or to the issues in his
case. ]d Moreover, there was no showing that his presence bore any "'relation, reasonably substantial, to the ful[l]ness of his opportunity to defend against the

-7-No. 70516-4-1/8 

### charge'" or "'that a fair and just hearing would be thwarted by his absence.'" jd (quoting State v. Irbv. 170Wn.2d 874, 881, 246 P.3d 796 (2011)). 

### Nothing in the record suggests that the excusals herewere related to McClure 

### personally or to the circumstances of his case or that they involved any error or abuse of discretion. Under Wilson. McClure fails to demonstrate that the excusals 

### priorto the venirebeing presentedforvoirdireviolated hispublictrial rightorrightto be present. 

### McClure contends that, unlike Wilson, the record here fails to reveal who 

### excused thejurors, when the excusals occurred, and the reason for the excusals. 

### Although true, these contentions are alsofatal toMcClure's claim oferror. Generally, the trial court bears the burden of making a record demonstrating the proper 

### procedures for closing a court proceeding to which the open trial right attaches. Koss. 334 P.3d at 1047. But the appellant "bears the responsibility to provide a 

### record showing thatsuch aclosureoccurred inthefirstplace." ]d (appellantfailed to show that courtroom closure occurredduring proceedings related to jury questions). 

### The trial courtinformed the parties before voir dire began that there were 11 "noshows" and "two excuses." McClure did not object or request any further 

### explanation. Underthecircumstances, hecannot demonstrate a courtroom closure or trial courterror related to the administrativejurorexcusals. 

### McClure also contends the evidence was insufficient to support his 

### harassment conviction. He argues that a reasonable person in McClure's position would not foresee that such enigmatic remarks would be interpreted as a serious 

### expression of anintenttokill Ms. Hawley and that the Statethereforefailed toprove

-8-No. 70516-4-1/9
a "true threat." He also claims that the evidence failed to establish that Ms. Hawley 

### reasonably feared he would carry out the threat to kill her. Evidence is sufficient if, 

### when viewed in a lightmostfavorable to the State, itpermits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas. 119Wn.2d 192, 201, 829 P.2d 1068(1992). In orderto convict McClure ofharassment as charged, the State was required 

### to prove, among other things, that he knowingly threatened to kill Ms. Hawley and that his words placed her "in reasonable fear that the threat to kill would be carried out." See RCW 9A.46.020(1), (2). To avoid violating the FirstAmendment, a statute 

### criminalizing threatening language must also be construed "as proscribing only unprotected true threats." State v. Allen. 176 Wn.2d 611, 626, 294 P.3d 679 (2013). Here, the trial court instructed thejury that 

### [t]o be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position ofthe 

### 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 injestor idle talk. 

### Even if couched in the language of threats, communications are not true 

### threats ifthey are in fact"merelyjokes,idletalk, orhyperbole." State v. Schaler. 169 Wn.2d 274, 283, 236 P.3d 858 (2010). The existence of a true threat does not 

### depend on the subjective intentof the speaker. See State v. Kilburn. 151 Wn.2d 36, 48, 84 P.3d 1215 (2004). "It is enough that a reasonable speakerwould foresee that the threatwould be considered serious." Schaler. 169Wn.2d at 283. 

### Immediately afterLt. Hawley told him that he would be arrested if he placed 

### anymore unnecessarycallsto thedispatch center, McClure called the centerwith "a
-9-No. 70516-4-1/10 

### message for whoever the senior bastard is, you have a Hawley that used to be sheriff." He referenced his past service on Navy "gun ships" and then told the 

### dispatcherthat "theAdmiral" wanted "Mike Hawley" to become a "smoking hole" and said, "Now, go get 'em." McClure, who lived on Barque Road, then announced that 

### the "U.S.S. Barque Road is readyfor combat" and "when Iblast, there's nothing left." "I'll take outthatfilbert or walnut farm, his wife, his kids. And you knowwhat? I'llfeel

no sorrow tomorrow." McClure underscored his intention and threats to blast a "smoking hole" and to "take out" Hawley's farm and family through specific references to Hawley, to the location of Hawley's personal residence, to private details of Hawley's residence and property, and to his military service. See State v. Locke. 175 Wn. App. 779, 793, 307 P.3d 771 (2013) ("menace of the communication
. . . further heightened by its specificity"), review denied. Wn.2d , P.3d (2014). McClure had no preexisting amicable relationship or communications with the Hawleys from which he could reasonably expect that they would not take his statements seriously. See Kilburn. 151 Wn.2d at 39. When Lt. Hawley investigated a similar series of calls in 2008, he had removed firearms from McClure's home. McClure had recently resumed the calls and appeared to be escalating his conduct. Under the circumstances, a reasonable person in McClure's position would foresee that his statements would be interpreted as a serious expression ofan intent to carry outthe threat. The evidence was sufficientto establish a true threat. McClure's communication also encompassed a specific threat to "take out" Lt. 

### Hawley's wife. Ms. Hawley testified that she was awayfrom the house on a business

-10-No. 70516-4-1/11 

### trip when her husband called and told her "that mylife and his life and our children's 

### li[ves were] threatened." This was thefirsttime he hadinformed her about a specific threat to her life. She recognized that her husband believed the threat was "very serious" and "credible," and she became very upset. Lt. Hawley also told her about 

### McClure's frequent calls to the dispatch center, the suspicious package that he left, and his personal reference to the family's nut farm. Upon returning home, she immediately took additional safety precautions, including no longer taking walks outside in the field or walking the dogs in the orchard. She also obtained a concealed weapons permit. Contrary to McClure's suggestion, the evidence establishes more than a suspicion that he might do "something." Implicit in Ms. Hawley's words and actions is her beliefthat McClure had threatened to kill her. Viewed inthe light mostfavorable to the State, the evidence was sufficientto establish that she reasonably believed he would carry out this threat.
Affirmed.

WE CONCUR 

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