WPIC 36.72 Telephone Harassment—Gross Misdemeanor—Elements

Use this instruction if the defendant is charged with the gross misdemeanor crime of telephone harassment or if the gross misdemeanor is being offered as a lesser included offense of the felony charge. If the only charge going to the jury is the felony-level offense, then use WPIC 36.74 (Telephone Harassment—Felony—Previous Convictions—Elements) or WPIC 36.75 (Telephone Harassment—Felony—Threat to Kill—Elements) instead of this instruction.

Use with WPIC 10.01 (Intent—Intentionally—Definition). If element (3)(d) is used, then also use WPIC 2.24 (Threat—Definition).

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For any case in which substantial evidence supports only one of the alternatives in element (3), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

In element (4), choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction).

RCW 9.61.230(1).

Introduction. The crime of telephone harassment has been in existence since 1985. The statute has been amended several times since it was first adopted, most recently in 2003. An instruction similar to WPIC 36.72 was cited with approval. State v. Meneses, 169 Wn.2d 586, 592, 238 P.3d 495 (2010).

For ease of comprehension, the WPI Committee has substituted the word “occurred” for the statutory term “ensued” in element 3(c). RCW 9.61.230(1)(b). In addition, the WPI Committee has broken up RCW 9.61.230(1)(a) into two alternatives, as this section of the statute embraces two distinct types of conduct—using obscene language and suggesting the commission of lewd acts.

RCW 9.61.230(1)(a) purports to prohibit “lewd, lascivious, profane, indecent, or obscene telephone calls.” As discussed below, the prohibition of profane calls was found to be unconstitutionally overbroad in City of Bellevue v. Lorang, 140 Wn.2d 19, 992 P.2d 496 (2000), and thus has been omitted from this instruction.

Jurisdiction. The crime of telephone harassment is “deemed to have been committed” at either the place the call was made or the place the call was received. RCW 9.61.250. The jurisdictional element has been drafted to reflect this special provision.

Constitutionality. The constitutionality of the telephone harassment statute (or of various municipal ordinances closely paralleling RCW 9.61.230) has been upheld against numerous constitutional challenges. See, e.g., United States v. Waggy, 936 F.3d 1014 (9th Cir. 2019) (defendant was charged with violation of Washington law on federal land; the 9th Circuit found the statute, prohibiting “obscene” words, did not violate the Free Speech Clause). Accord State v. Alphonse, 147 Wn.App. 891, 197 P.3d 1211 (2008); City of Seattle v. Huff, 111 Wn.2d 923, 767 P.2d 572 (1989); State v. Alexander, 76 Wn.App. 830, 888 P.2d 175 (1995); State v. Dyson, 74 Wn.App. 237, 240, 872 P.2d 1115 (1994). However, in Lorang, the Supreme Court concluded that the portion of RCW 9.61.230(1)(a) that purported to criminalize the making of “profane” phone calls was unconstitutionally overbroad. City of Bellevue v. Lorang, 140 Wn.2d at 23–30.

For a discussion of the constitutional issues relating to true threats, see the discussion in the Comment to WPIC 2.24 (Threat—Definition).

Formation of intent. The defendant's requisite intent is evaluated at the time that the defendant initiates the call, rather than when the conversation is under way. State v. Lilyblad, 163 Wn.2d 1, 177 P.3d 686 (2008).

True threat. If element (3)(d) is used, then also use WPIC 2.24 (Threat—Definition). While “true threat” is not an element of harassment, the jury must be instructed on the definition of “true threat.” See State v. Allen, 176 Wn.2d 611, 632, 294 P.3d 679 (2013). See also State v. Meneses, 149 Wn.App. 707, 205 P.3d 916 (2009), affirmed in part, 169 Wn.2d 586, 238 P.3d 495 (2010).

Calls “repeatedly.” The term “repeatedly” is not defined in statute for use with the crime of telephone harassment. One court has said that persons of common intelligence can understand the conduct which is prohibited by use of that term in telephone harassment statutes. State v. Alexander, 76 Wn.App. 830, 888 P.2d 175 (1995). Use care if it is necessary to instruct the jury on this issue.