### IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II STATE OF WASHINGTON,Respondent,

V. JASON CHRISTOPHER SCHEIBEL,
ellant. No. 43709 -1 - II 

# 111EB25

UNPUBLISHED OPINION

LEE, J. — 

## Ajuryfound Jason ChristopherScheibel guiltyoffelonyharassment. Scheibel appeals alleging thejury instruction used in his trial was unconstitutional 'under our Supreme Court' s opinion in State v. Mills, 154 Wn.2d 1, 109 P. 3d 415 ( 2005). 

### The State properly
concedes that the 

### jury instruction was erroneous. The error was not harmless. Therefore, we reverse and remand forfurther proceedings consistentwith its opinion. FACTS 

### Karen Gunter was involved in an intimate relationship with Scheibel for approximately eight months, from early 2011 until September 2011. 

### Gunter broke up with Scheibel inthe first
week of September. 

### After Gunter ended the relationship, Scheibel sent her numerous text
messages 

### trying to get back together with her. On September 18, Gunter went to work as a bartender at Scooter' s Bar and Grill. 

### While Gunterwas at work, Scheibel constantly called her and sent her numerous text messages. At one point, Gunter asked her friend, Lincoln Buchan, to
call Scheibel and tell Scheibel to leave her alone. Later, Scheibel came into the bar but he left
when Gunter called the police.No. 43709 -1 -II 

### When Buchan called Scheibel, Scheibel called Buchan a punk and threatened to break him in half. At the time, Buchan believed Scheibel was " another guyjust 

### blowing off steam." 1 Report of Proceedings ( RP) at 47. After Buchan called Scheibel, Scheibel called Buchan's cell 

## phone repeatedly and left him numerous voicemail messages, but Buchan did not immediately listen to the messages. 

### Later, Buchan served Scheibel with an anti-harassment orderprotecting Gunter. Scheibel 

## got angryandtold Buchan that he was not kidding inthe voicemails he leftfor Buchan. Buchan decided to listen to the voicemails. Scheibel left two voicemails in which he said:

How would you like a little f*cking (inaudible.)? You don' t understand, dude. ( inaudible) about the car? I f*cking swiped the tires. I will break you in f*cking two, dude. 

### Don't ever f*ck with my woman, ever, dude, f*ckwith my woman. I ( inaudible) with my woman, on every f*cking 

### day. Don't try to inaudible) f*cking (inaudible), you' re a 

### lying sack a shit, dude. I flicked her like no man could even know. ( inaudible). 

### So whateveryou (inaudible) you're doing then, 

### trying to get ( inaudible). You' re a dead man. You know what, you' re a dead man. inaudible) what Karen said. 

### F *ck the (inaudible) what you' re going to do. First . off,dude, I' ll snap you like a piece of (inaudible). ( inaudible) f*ck your (inaudible) out. ( inaudible), you know who I am. Because I will break you 

## inf*ckingtwo, little boy. Anytime, any place, anywhere. F *ckwith (s /1) my exwoman, you f*ck with death. You don' t even understand, dude. F *ck, I worked hard (s /

1) on her. ( 

### s /1) Okay. 2 RP 140 -

41. 

## After listening to the voicemails Buchan became concerned for his safety and believed Scheibel was going to follow through on his threats. Scheibel continued to text Buchan. 

### Sometimes Buchan replied to the text messages. In two differenttext messages Buchan wrote:

I asked her and she said yes, she would love to marry me. Thanks again, you punk bitch.

2No. 43709 -1 - II Thanks, freak, for all the insane things you' ve done to Karen. You acting like the punk chubby you are. 

### She told ofyesterday, she has been waiting for me all her life. 1 RP 70 -

71. Later, at trial, Buchan testified that he sent the text messages to Scheibel in an 

## attemptto deflect Scheibel's anger awayfrom Gunteronto him. On November 22, 2011, the State charged Scheibel with one count of second degree
malicious mischief, one count of

### felony harassment, and one count ofthird degree theft.' A two

### day trial began on June 27, 2012. Gunter and Buchan testified to the above facts. After 

## testimony, the trial court gave bifurcated jury instructions for the felony harassment charges. First,thetrial court gavethefollowingjury instruction: Instruction No. 17 

### To convictthe defendant ofthe crime ofharassment, each ofthe following elements ofthe crime must be proved beyond a reasonable doubt:

1) That on or about September 19, 2011, 

### the defendant knowingly 

## threatened to cause bodily injury immediately or in the future to Lincoln Douglas Buchan;2) That the words or conduct of the defendant placed Lincoln Douglas Buchan in reasonable fearthat the threat would be carried out;

3) 

### Thatthe defendant acted withoutlawful authority; and 4) That the threat was made or received in the State ofWashington. If you find from the evidence that these have been proved beyond a 

### reasonable doubt,then itwill beyour dutyto return averdict ofguilty. 

## On the other hand, if,after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. Clerk' s Papers (CP) at 80. 

### Thejury was also given aspecial verdictwhich read: 

### Ultimately, thejury also found Scheibel guilty ofsecond degree malicious mischief and third degree theft. However, Schiebel does not appeal those convictions.

3No. 43709 -1 - II
USE THIS SPECIAL VERDICT FORM ONLY IF YOU FIND THE DEFENDANT GUILTY OF HARASSMENT. IF YOU FIND THE DEFENDANT NOT GUILTY OF HARASSMENT, DO NOT USE THIS SPECIAL VERDICT FORM. 

## We,thejury,return aspecialverdictby answering as follows: Did the defendant' s threat to cause bodily harm consist of a threat to kill the person threatened or another person? CP at 4. 

## Thejury found Scheibel guilty ofharassment and answered yes on the special verdict form. 

### The trial court sentenced Scheibel to a standard range sentence of 56 months total confinement. Scheibel appeals. ANALYSIS 

### Scheibel argues that the trial court erred in giving the bifurcated jury instructions on 

## felony harassment because these instructions did not require the State to prove beyond a
reasonable doubt that Buchan was placed in reasonable fear of 

### being killed 

### by Scheibel. The State concedes the 

### jury instructions were erroneous. In Mills, 154 Wn.2d at 15, our Supreme Court held that the same bifurcated 

### instructions on 

### felony harassment were erroneous. Mills is controlling and the State' s concession is well-taken. However, the State argues that the instructional error is harmless and does not require reversal. We disagree. Here, the 

## instructional error was not harmless, and Scheibel's felony harassment conviction must be
reversed.

This court presumes that an instructional error is prejudicial unless the record affirmatively shows that the error was harmless. State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 ( 1997). " 

### In order to hold the error harmless, we must `conclude beyond a reasonable doubt

C!No. 43709 -1 - II

that the 

### jury verdict would have been the same absent the error. "' State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 ( 2002) (

### quoting Neder.v. UnitedStates, 527 U.S. 1, 19, 119 S. Ct. 1827, 144 L. Ed. 2d 35 ( 1999)). 

## When thejury instruction has omitted or misstated an element ofthe crime, the instructional error is harmless if the omitted or misstated element is supported by uncontroverted evidence. Brown, 147 Wn.2d at 341. 

### In Mills, our Supreme Court held that the same felony harassment instruction used here relieves the State of its burden to prove that the victim was placed in reasonable fear that the threat to kill would be carried out. 154 Wn.2d at 14 -15 ( " 

### A jury might believe that [ the defendant] placed the victim in reasonable fear ofbodily injurywithout considering whether [the defendant] placed the victim in reasonable fear of

### being killed. "). The court also held that the 

### error was not harmless under the facts ofthat case. Mills, 154 Wn.2d at 15 n.7. In Mills,the victim testified that she was afraid ofthe defendant and that she believed the defendant would carry out the threats. 154 Wn.2d at 5. 

### However,the victim did nottestifythat
she was in reasonable fear of

### being killed. In response to the State' s harmless error argument, our Supreme Court in Mills stated: Although it is clear from the record that [the defendant] made a threat to kill, we 

## cannot say beyond a reasonable doubt that the jury would find the victim was placed in reasonable fear of 

### being killed. Therefore, the error here is not harmless. 

### Mills, 154 Wn.2d at 15 n.7. 

## Similarly, here, Buchan testified thathewas not immediately afraid ofScheibel's threats. Although Buchan also testified that he became afraidthat Scheibel would carry out histhreat, he did not 

### testify that he was actually afraid Scheibel would kill him. Further, even after Scheibel

ENo. 43709- 1- 11

made the threats, Buchan, on at least two occasions, antagonized Scheibel through text messages. 

### Like the victim in Mills,there is no evidence Buchan was in reasonable fearthat Schiebel would kill him.

Here, the facts are almost identical to the facts in Mills. We reach the same conclusion
and hold that the instructional error was not harmless. 

### Accordingly, 

### Scheibel' s felony harassment conviction is reversed, and the case remanded for further proceedings consistent with this opinion. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

It T- _ --- i Lee,

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