### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OFWASHINGTON, No. 77606-1-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION HARJINDER SINGH KABARWAL,

Appellant. FILED: April 15, 2019 APPELwIcK, C.J.

— Kabarwal appeals his convictions forfelony harassment and intimidating a judge. He argues that the State failed to prove beyond a reasonable doubt that (1) the victims were placed in actual and reasonable fear thatathreatwould be carried out, and (2) his statements constituted a“truethreat.” We affirm. FACTS In April 2016, Harjinder Kabarwal was a defendant in ajurytrial atthe King County District Court in Shoreline. He had been charged with driving under the influence (DUI), physical control, and driving with a suspended license. Thejury found Kabarwal guilty of physical control. The courtset Kabarwal’s sentencing for June, but later continued his sentencing to July 7. Judge Marcine Anderson presided overthe trial, and Carmen McDonald was the prosecuting attorney.No. 77606-1 -1/2

In May and June 2016, Kabarwal was a patient atValley Cities Behavioral Health, a community-based outpatient treatment center in Federal Way. Around May 12,2016, Kabarwal metwith Dhanapati Neopaney, a care-coordination intern at Valley Cities. Neopaney had conducted Kabarwal’s initial case management assessment. The May 12 meeting was a regular case management counseling session. During the session, the two discussed how Kabarwal was feeling about his pending case in Shoreline. Kabarwal told Neopaney that he was very frustrated with his prosecuting attorney, and that he wanted to harm that attorney. Kabarwal said, “I’m very frustrated with the ongoing prosecution, and if I have to go tojail, then I’ll kill my prosecuting attorney.” Kabarwal did not name the prosecutor, but referred to the prosecutor as “she” and said he wanted to kill her because she did not hear him very well. After consulting his supervisor, Neopaney reported Kabarwal’s statements to the Federal Way Police Department. On June 6, 2016, Olivia Uhart, a psychiatric nurse practitioner at Valley Cities, saw Kabarwal for a follow up visit. During the visit, Uhart observed that Kabarwal was exhibiting “suicidality,” thoughts about death, and “homicidality,” plans orthoughts to harm other people. Uharttestified thatthis was abnormal for Kabarwal. She testified that “[Kabarwal] mentioned wanting to harm people in his court case that he had been dealing with,” and part of his intentwas for him to die in the process. Specifically, he called thejudges and attorneys in his case liars, and said that was why he wanted to harm them. Due to the nature ofthe threat, Uhart consulted hersupervisorand reported Kabarwal’s statements to police.

2No. 77606-1-113

On June 16, 2016, Kabarwal visited ValleyCities again and metwith William Greenwood, a mental health clinician. This was the first time the two had met. During the session, Kabarwal brought up his DUI case. Kabarwal stated he intended to “‘do likewhat happened in Orlando” ifhewas sentenced to servetime in prison on July 7. He further stated that he would “‘feel bad having to hurt innocent people, but I have to do it.” And, he stated, “They have ruined my life.” The previousweekend, there had been a shooting atan Orlando, Florida nightclub, during which a single shooter killed a large number of people, and injured many more. Greenwood noted that Kabarwal was not interested in engaging in the problem solving process. After the session ended, Greenwood spoke with his supervisor about Kabarwal’s statements, and reported them to the Federal Way Police Department. On May 19, 2016, Annette Scholl, a major crimes detective for the city of Federal Way, was assigned the case involving Kabarwal’s statements. That day, she contacted McDonald, the prosecutor handling Kabarwal’s DUI case, and told her about Kabarwal’s statements to Neopaney. She spoke with McDonald two
more times during the investigation. On July 7, 2016, while Judge Anderson was getting ready to preside over Kabarwal’s sentencing, members of hercourt staffentered herchambers and told her that she could not go into the courtroom. After not being allowed in the courtroom, she learned that Kabarwal had threatened to kill her and had been

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arrested that day.1 On July 12, Detective Scholl notified Judge Anderson of Kabarwal’s statements. On September 28, 2017, the State charged Kabarwal with felony harassment of McDonald (count 1), felony harassment ofJudge Anderson (count 2), and intimidating a judge (count 3).2 A jury found him guilty on all counts. Kabarwal appeals. DISCUSSION Kabarwal makes two arguments. First, he argues that the State failed to prove that McDonald and Judge Anderson actually and reasonablyfeared that a threatwould be carried out, an element offelony harassment. Second, he argues that the State failed to prove that his statements constituted a true threat, a requirement underthe felony harassment and intimidating ajudge statutes. The sufficiency ofthe evidence is a question of constitutional law that this court reviews de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). Evidence is sufficientto support a conviction if, viewed in the light mostfavorable tothe prosecution, it permits any rational trieroffacttofind the essential elements ofthe crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth of the State’s

1 In hertestimony, Judge Anderson could not remember if itwas court staff whotold her Kabarwal had threatened to kill herand had been arrested, butstated that it was probably court staff. She then testified that she thought her court managertold her, and that she read the probable cause statementfor his arrest.

2The State first charged Kabarwal with felony harassment of McDonald on June 29, 2016. In a November 14, 2016 first amended information, the State added the charge forfelony harassment ofJudge Anderson. In a September28, 2017second amended information, the State lastadded the chargeforintimidating ajudge.
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evidence and all inferences that reasonably can be drawn therefrom.” ki. We deferto the trieroffact on issues of conflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence. See State v. Johnston, 156 Wn.2d 355, 365-66, 127 P.3d 707 (2006). I. Felony Harassment Kabarwal argues that the State failed to present sufficient evidence to sustain his felony harassment convictions. Specifically, he argues that the State failed to provethat McDonald and JudgeAnderson actuallyand reasonablyfeared that a threat would be carried out. And, he argues that his statements did not constitute a true threat. RCW 9A.46.020(2)(b)(ii) makes it a felony for a person to knowingly threaten to kill the person threatened, oranyotherperson. The statute also makes it a felony to knowingly threaten to cause bodily injury to a criminal justice participant because ofan action taken ordecision made bythat participant during the performance of his or herofficial duties. RCW 9A.46.020(1)(a)(i), (2)(b)(iv). According tothejury instructions, to convict Kabarwal offelony harassment of McDonald, the State had to prove beyond a reasonable doubt that, between May 12, 2016 and June 21, 2016: (i) The defendant knowingly threatened to kill Carmen McDonald immediately or in the future; and (ii) That the words or conduct of the defendant placed Carmen McDonald in reasonable fearthat the threat to kill would be carried out. In the alternative, the State had to prove beyond a reasonable doubtthat,

5No. 77606-1 -116 (I) The defendant knowingly threatened on May 12, 2016 to cause bodily injury immediately or in thefuture to Carmen McDonald, and (ii) (a) That Carmen McDonald was a criminaljustice participantwho was performing his or her official duties at the time the threat was made; or (b) That Carmen McDonald was atthe time a criminal justice participant and the threat was made because of an action taken or decision made by Carmen McDonald during the performance of her duties; (iii) That the words or conduct of the defendant placed Carmen McDonald in reasonable fear that the threat would be carried out; and (iv) Thatthefearfrom thethreatwas afearthata reasonablecriminal justice participantwould have underall the circumstances. Under each alternative, the State also had to prove that the defendant acted without lawful authority and thatthe threatwas made or received in Washington.3 To convict Kabarwal of felony harassment of Judge Anderson, the State had to prove beyond a reasonable doubt,

(1) That between June 16, 2016 and July 7, 2016, the defendant knowingly threatened to kill Marcine Anderson immediatelyor in the future; (2) Thatthewords orconductofthe defendant placed Marcine Anderson in reasonable fear that the threat to kill would be carried out; (3) Thatthe defendant acted without lawful authority; and (4) That the threat was made or received in the State of Washington.

~ The verdict form does not indicate underwhich alternative thejuryfound Kabarwal guilty. 6No. 77606-1 -117

A. Reasonable Fear Relying on State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003), Kabarwal argues thatthe State failed to prove that McDonald and Judge Anderson actually and reasonablyfeared that a threatwould be carried out. Ifthe evidence in a case establishes the victim’s subjective fear, “the issue is whether a rational trier offact, viewing the evidence in the light most favorable to the State, could have found beyond a reasonable doubt” that the victim’s fear
was reasonable. State v. Alvarez, 74 Wn. App. 250, 260-61, 872 P.2d 1123 (1994), affd 128Wn.2d 1, 904 P.2d 754 (1995). To determinewhetherthevictim’s fearwas reasonable, the trieroffact uses an objective standard. ki. at260. In C.G., a high school student becamedisruptive in classwhen asked about
a missing pencil. C.G., 150Wn.2d at606. The student, C.G., becameangry, used profanity, kicked a study carrel, moved her chair, and made other noise. ki. The teaching assistant called in the school’s vice principal, Haney, who asked C.G. to leave the classroom with him. ki. 

### C.G. went with Haney after some resistance, and continued to yell obscenities. ki. Haneythen called anotherteacherto assist him, atwhich point C.G. told Haney, “I’ll kill you Mr. Haney, I’ll kill you.” ki. at606- 07. At C.G.’s trial forfelony harassment, Haneytestified that C.G.’sthreat caused him concern, and that, based on what he knew, she might try to harm him or someone else in the future. j~ at 607. The trial courtfound C.G. guilty offelony harassment of Haney. On appeal, C.G. argued thattherewas insufficientevidencethat Haneywas placed in reasonablefearthatC.G. would kill him. ki. She asserted that itwas not

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enough forthe State to provethat Haney reasonablyfeared bodily injurywould be inflicted. ki. The State Supreme Court agreed. ki. at 612. The court stated that, to obtain a misdemeanorconviction based on thethreats in RCW9A.76.020(1)(a), the State must prove thatthe threat made and the threatfeared are the same. ki. at 608-09. Although the “threat to kill” is not listed in subsection (1)(a), the court determined that the legislature meant to proscribe those threats because “it expressly provided that a threat to kill results in a felony.” j.4. at 609. Thus, like misdemeanorthreats, “thefearin the case ofthethreatto kill must be ofthe actual threat made—the threat to kill.” ki. The court found that there was no evidence Haney was placed in reasonable fear that C.G. would kill him, and reversed the conviction. kL at 610, 612.

1. McDonald On May 19, 2016, Detective Scholl first notified McDonald of Kabarwal’s statements to Neopaney. Attrial, when asked ifshe took Kabarwal’s threat “to kill the prosecutor” seriously, McDonald responded, “I did.” When asked if Kabarwal had indicated when his threatwould be carried out, she responded, “I believe that his intention was the sentencing hearing.” McDonald was removed from Kabarwal’s case. On the day of his sentencing hearing, she left the courthouse when his casewas coming up.4

~ Specifically, McDonald was asked, “Sowereyou presentatthesentencing hearing in June?” She responded, “I was presentatthe courthouse, butwhen his case was coming up, I leftthe courthouse.” Kabarwal’s sentencing was originally setforJune, butwas latercontinued to July7. It is unclearwhether McDonald was referring tothe original date of his sentencing, orto July 7. 8No. 77606-1-1/9
Here, there is evidence that McDonald was placed in subjectivefearbased
on the threats Kabarwal made—that hewould kill the attorneywho prosecuted his trial, wanted to harm the attorneys in his case, and would “do like what happened in Orlando” if he was incarcerated on July 7. And, unlike C.G., the threats made and the threats feared are the same. Viewed in the light most favorable to the State, the evidence was sufficient to establish that McDonald actually feared that Kabarwal would carry out his threats. The evidence supportsthe conclusion that itwas reasonable for McDonald tofearthe threats. Attrial, McDonald was also asked whatwentthrough hermind when she heard Kabarwal’s threat. She responded, Well, I recalled Mr. Kabarwal and I recalled how upset he was, and I recalled that there was some pretty significant mental instability there. And that, coupled with his use of alcohol, it’s not unheard of in my line of work that someone may self-medicate mental illness with alcohol. The fact that he was seeking therapy and that he had gone through one therapist and on to another therapist and was making these specific threats to me, frankly, I’ve got small kids and, you know, when someone gets reallyangry, I can’tjust necessarily brush thataside and hope that it’s nottrue. I didn’tdiscount it, based upon his condition, at all. McDonald stated that she was familiar with Kabarwal’s use of alcohol based on “the facts of his physical-control case” and the information she was privy to in preparation forthattrial. In May through July of 2016, McDonald’s office was in the courthouse, directly across the hallway from the courtroom. Her office also had a window, which faced the parking lot.

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In hertestimony, McDonald recalled how upset Kabarwal had been. She cited his multiple threats to more than one therapist, and stated that she believed he intendedto carryoutthosethreatsathis sentencing. And, herofficewas across the hallwayfrom the courtroom, with a windowthatfaced the parking lot. Viewed inthe light mostfavorabletothe State, the evidencewas sufficientto establish that McDonald reasonablyfeared that Kabarwal would carry out his threats.

2. Judc~eAnderson On July 7, 2016, Judge Anderson was about to take the bench for Kabarwal’s sentencing hearing when hercourtstaffstopped her. Shethen learned that Kabarwal had threatened to kill her, had threatened to do “like Orlando” in the courthouse, and had been arrested. Attrial, she testified that she did not know if Kabarwal was sentenced on July 7. When asked ifshe understood immediatelythe reference to the shooting in Orlando, Judge Anderson responded that she did.5 And, when asked if she thoughtthat Kabarwal would dowhat he said he was going to do, she responded, “Yes. And I still do.” She stated thatthe Orlando reference made herfeel ‘[s]cared ofwhatcould happen tothe people I workwith, the publicwho mightcome into our courthouse, and scared formyo[wn} personal safety, aswell.” Whileshe had been threatened before, she stated, “This seems a little bit more surreptitious, a little bit
more sneaky, a little bit more something that I really needed to be concerned

~ In her testimony, she stated, “There were a lot of people who were shot by a single person, and many people died and many people were injured and it was a complete and total surprise to all the peoplewho were there.” 10No. 77606-1-I/il

about.” Shesoughta protection orderagainst Kabarwal, and, closertotrial, sought
an anti-harassment orderagainst him.6 Here, there is evidence thatJudge Anderson was placed in subjective fear based on the threats Kabarwal made—that he wanted to harm the judge in his case, and would “do likewhat happened in Orlando” if he wentto prison on July7. And, unlike C.G., the threats made and the threats feared are the same. Viewed in the light mostfavorabletothe State, the evidence was sufficientto establish that Judge Anderson actuallyfeared that Kabarwal would carry out his threats. The evidence supports the conclusion that it was reasonable for Judge Anderson to fear the threats. In her testimony about the nature of Kabarwal’s threats, Judge Anderson cited the fact that Kabarwal had made threatening statements regarding his case to more than one person. She also stated, Based ontheevidencethatI heard athistrial abouthis mental-health condition, his traumatic brain injury, the types of medication he was on, the quantity of medication that he was on, the possibility that he was an alcoholic just given the high [blood alcohol concentration], the factthat he was mixing alcohol with all ofthese other chemicals, I really couldn’t rely on hisjudgment to not do what he said he was going to do. Atthe Shoreline courthouse in July2016, bagswere hand checked and did not go through an x-ray machine. Where Judge Anderson sat in herchambers on

6 Kabarwal pointsto JudgeAnderson’sfailureto obtain an anti-harassment orderuntil months afterhisthreats, butshe already had a protection orderin place. She had asked the King County Prosecutor’s Office to get an order of protection in this case, and an order of protection was then assigned. Judge Anderson did not obtain the anti-harassment order until closerto trial, because she understood that protection orders connected with criminal cases last only as long as the criminal case is active.
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the first floor,7 she was visible from outside, and her window did not have bulletproofglass. Judge Anderson testified thatshe immediately understood the referenceto the Orlando shooting. She cited whatshe knewabout Kabarwal from trial, and the factthat he had made threatening statements to more than one person. She was prevented from entering her courtroom to preside over his sentencing hearing. And her chambers window, through which she was visible from outside, did not have bulletproof glass. Viewed in the light most favorable to the State, the evidence was sufficient to establish that Judge Anderson reasonably feared that Kabarwal would carry out his threats. B. True Threat Kabarwal argues that the State also failed to prove a true threat underthe reasonable person standard, therebyviolating the FirstAmendment.8 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 thejurythat

To be a threat, a statement 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

~ The Shoreline courthouse is on one floor. 8 Kabarwal also argues thatthe Statefailed to prove atruethreat underthe subjective intent standard. He recognizes that Washington does not apply this standard, but “raises this issue to preserve it in the event the U[nited] S[tates] Supreme Court expressly resolves the conflict against Washington’s reasonable person standard.” Because Kabarwal does not actually argue thatthe subjective intent standard should apply, we do not address this argument. 12No. 77606-1 -1/13 interpreted as a serious expression ofintention to carryoutthethreat ratherthan as something said injest, idle talk, or political argument. “[T]he FirstAmendment does not requirethatthe speakeractually intend to carry outthe threat in orderfora communication to constitute atrue threat.” State
v. Kilburn, 151 Wn.2d 36, 48, 84 P.3d 1215 (2004). Rather, “[i]t is enough that a reasonable speakerwould foresee that the threat would be considered serious.” State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010). When examining the sufficiency ofthe evidence of a true threat, the First Amendmentdemands morethan “the usual process ofassessing whetherthere is sufficient evidence in the record to supportthe trial court’s findings.” Kilburn, 151 Wn.2d at 49. “We must independently reviewthe crucial facts in the record, i.e., those which bearon the constitutional question.” Id. at 52. In true threat cases, [lit is notjustthewords and phrasing ofthe alleged threatthatmatter, butalsothe largercontext in which thewordswere 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 threatwas made. State v. Kohonen, 192 Wn. App. 567, 580, 370 P.3d 16 (2016). Kabarwal told Neopaney that he was very frustrated with the ongoing prosecution in his case, and that ifhe had to gotojail he would kill his prosecuting attorney. He later stated that he wanted to harm the judge and attorney in his case, and would “do likewhat happened in Orlando” if hewas sentenced to prison
on July 7. He stated that he would feel bad having to hurt innocent people, but that he had to do it. Kabarwal underscored his threatsto kill orcause bodily injuryto McDonald by specifically referring to the “prosecuting attorney,” whom he called “she,” and

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stating he would “do like what happened in Orlando” if he went to prison on a specific date, July 7. ~ State v. Locke, 175 Wn. App. 779, 793, 307 P.3d 771 (2013) (“menace ofthe communication

. . . further heightened by its specificity”). McDonald was the prosecuting attorney at Kabarwal’s trial, and July 7 was the date of his sentencing hearing. Days before Kabarwal’s Orlando statements, a single person had shotand killed many people atan Orlando nightclub. Therefore, Kabarwal’s statements suggesta plan to shoot his prosecuting attorney at his July 7 sentencing hearing. Kabarwal underscored his threat to kill Judge Anderson by stating that he wanted to harm thejudge in his case specifically. Judge Anderson presided over Kabarwal’strial, and had planned to preside over his July 7 sentencing. Thus, his Orlando statements also suggest a plan to kill people, including thejudge, in the courtroom at his sentencing hearing. And, Kabarwal made his Orlando statements to Greenwood after meeting him for the first time in a counseling session. Thus, the two did not have a preexisting relationship or communications from which Kabarwal might have expected that Greenwood would not take his statements seriously. ~ Locke, 175 Wn. App. at 793. Under these circumstances, a reasonable person in Kabarwal’s position would foreseethat his statements would be interpreted as a serious expression of intention to carry out his threats against McDonald and Judge Anderson. Thus, the evidence was sufficientto establish a true threat.

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II. Intimidating a Judge Kabarwal argues nextthatthe State failed to presentsufficient evidence to sustain his conviction for intimidating a judge. Again, he argues that the State failed to prove that his statements constituted a true threat. To convict a defendant of intimidating ajudge under RCW 9A.72.160, the State must prove (1) that “a person direct[ed] a threat,” eitherdirectly or indirectly; (2) to ajudge; and (3) “because ofa ruling ordecision” bythatjudge “in anyofficial proceeding.” Here, the trial court instructed thejurythat to convict Kabarwal, the State must prove beyond a reasonable doubt: (1) That on June 16, 2016, the defendant directed a threat, directly or indirectly, to ajudge, and (2) the threatwas made because ofa ruling ordecision ofthejudge of any official proceeding, orthe threat was made in an attempt to influence a ruling or decision of the judge in any official proceeding, and (3) Thatthethreatwas made or received in the State ofWashington. We construe ROW 9A.72.160 as prohibiting “only unprotected true threats.” See Allen, 176 Wn.2d at 626. As established above, Kabarwal underscored his threat against Judge Anderson by specifically referring to his sentencing date, July 7, and stating that he would “do like what happened in Orlando” if he wentto prison on July 7. Days before he made that statement, a single person had shot and killed many people at an Orlando nightclub. Under these circumstances, a reasonable person in Kabarwal’s position would foresee that his statement would be interpreted as a

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serious expression of intention to carry out his threat. Thus, the evidence was sufficientto establish a true threat. We affirm. 

# 42

WE CONCUR:

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