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Published by: pwissel3066 on Mar 27, 2012
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STATE OF WASHINGTON,Respondent,v.JAMES S. BALLEW,Appellant.)))))))))))No.65921-9-IDIVISION ONEPUBLISHEDIN PARTFILED: March 26, 2012Cox, J. —James Ballewappeals his judgment and sentence forthreatening to bomb or injure property. The jury instruction that he challengescorrectly statedthe law regarding true threats, as required by the FirstAmendment. There was no violation ofhis constitutional right to a unanimous jury verdict. And there was no prosecutorial misconduct during closingargument.Weaffirm.InOctober 2009, a man, later identified as Ballew,called 911 and askedto speak with Officer Darin Beamof the Port of Seattle Police. Officer Beam wasnot on duty, and the dispatcher would not give Ballew Officer Beam’s personalphone number. Ballewtold the dispatcher that he would only speak to OfficerBeam. Ballew then stated that he had fivefriends who had placed bombs in andaround the Seattle-Tacoma Airport and hung up.
No. 65921-9-I/2Authorities traced the call to Harborview Medical Center’s psychiatricward. The dispatcher also contacted Officer Beam, who identified the caller asBallew. Several days earlier, Officer Beam spoke with Ballew at the airportwhen Ballew attempted to buy an airline ticketwith a promissory note.Within an hourof Ballew’s call, Officer Robert Stecz, who was trained inexplosives,arrived at Harborview whereBallewwasinvoluntarily committed.After gaining Ballew’s permission to speak with him, the officer interviewedBallewin his room.The officer asked him whether he had made the 911 call. At first, Ballewdenied doing so. He thenclaimed he could not remember if he made the phonecall.Eventually, Ballew answeredOfficer Stecz’s questions. He said theexplosiveshidden at the airportranged from the size of a shoebox to a bar ofsoap. He also said the explosives could not be detected by electronic devices ortrained dogs. He would not say where his friends had placed the explosives atthe airport.Ballew also told Officer Stecz that he was in the Air Force for 53 yearsand that he had “cosmic [security] clearance,”which, according to Ballew,wasmuch higher than top secret clearance. Based on this interview, Officer Steczdetermined that Ballew’s threat was not credible.The State charged Ballew with one count ofathreat to bomb or injureproperty based on RCW9.61.160. At his jury trial, Ballew did not raise an2
No. 65921-9-I/3
State v. Schaler, 169 Wn.2d 274, 282, 236 P.3d 858(2010)(citing Statev. Grande,164 Wn.2d 135, 140, 187 P.3d 248 (2008); State v. Brett,126 Wn.2d136, 171, 892 P.2d 29 (1995)).
Id.(quoting State v. Kilburn,151 Wn.2d 36, 49-50, 84 P.3d 1215 (2004)(quoting Bose Corp. v. Consumers Union of United States, Inc.,466 U.S. 485,508, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984))).
Id.at 283 (quoting Virginia v. Black,538 U.S. 343, 358, 123 S.Ct. 1536,155 L.Ed.2d 535 (2003)).insanity defense. Moreover, he did not testify. But he argued,based on hismental healthstatus,that a reasonable person would not have consideredhisstatements to be true threats. The jury convicted Ballew as charged.The trial court sentenced Ballew to nine months confinement. With creditfor time served, he was released.Ballew appeals.
For the first time on appeal, Ballewarguesthat the trial court violatedhisFirst Amendment rightsby incorrectly defining“true threat”in the jury instruction.Wedisagree.Instructional errors based on legal rulings are reviewed de novo, as areconstitutional questions.
Weengage in an independent review of the record inFirst Amendment cases to ensurethat the judgment isnot based on a forbiddenintrusion on the field of free expression.
The First Amendment, which is applicable to the states through theFourteenth Amendment, statesthat “Congress shall make no law . . . abridgingthe freedom of speech.”
While the First Amendment’s scopeis broad, it does3

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