State v. Kohonen: No Proof of Cyberstalking

In State v. Kohonen, Division I of the WA Court of Appeals decided the State failed to prove that a defendant’s tweets constituted “true threats” sufficient to support a conviction for Cyberstalking.

When the defendant J.K. was in eighth grade, a classmate, S.G., informed a teacher that another student was behaving oddly. As a result, the other student and J.K. were both suspended from school. J.K. and S.G. had no other interaction until the incident at the center of this case.

Two years later, when J.K. and S.G. were sophomores in high school, they shared a first period class. One morning, J.K. saw S.G. in class and was reminded of the incident two years before. She quickly posted two short messages, known as tweets, via the web site Twitter. The first read, “Tbh (to be honest), I still want to punch you in the throat even tho it was 2 years ago.” The second read, “#[S.G.]mustdie.”

Eventually, J.K. was taken from class to the school administration office, where she was confronted her with the tweets. J.K. immediately admitted that she had written and posted the tweets but stated that she had not intended for her actions to harm S.G. Later, J.K. also explained that she posted tweets frequently. She used Twitter as a “virtual diary,” posting her thoughts, reactions, feelings, and more. She testified that she sent the messages quickly and without thinking, as a fleeting expression of her agitation at the memory from middle school. Although she was aware that the posts were public, and that she had approximately 100 people who followed her, she testified that she did not consider the potential impact her tweets might have on S.G.

J.K. was charged with one count of Cyberstalking. After trial, the juvenile commissioner adjudicated J.K. guilty as charged, finding that J.K. had acted with the intent to embarrass, harass, and torment S.G. and that she was not credible on the question of whether she had considered the effect the tweets could have before posting them. The court also concluded that the tweets constituted a true threat. J.K. was sentenced to six months of probation and 30 hours of community service. The superior court denied J.K.’s motion to revise. Division I accepted her appeal.

The Court of Appeals held there was insufficient evidence that the tweets in question constituted “true threats,” as required by the federal and state constitutions.

The Court reasoned that due process clauses of the United States Constitution and WA Constitution require that the government prove every element of a crime beyond a reasonable doubt. The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt.  The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The Court further reasoned that in order to convict J.K. of Cyberstalking, the State was required to prove each of the following elements beyond a reasonable doubt: (1) that J.K. made an electronic communication to another person, (2) that, at the time J.K. made the electronic communication, she specifically intended to harass, intimidate, torment, or embarrass another person, and (3) that J.K. threatened to inflict injury on the person to whom the electronic communication was made.

Under the circumstances, the Tweets were not true threats:

“J.K.’s tweets bear the signs of—admittedly mean-spirited—hyperbolic expressions of frustration, and that is precisely how they were received. A reasonable person in J.K.’s position would not have anticipated a different reception. Therefore, insufficient evidence was presented that the tweets constituted true threats.”

On that, the Court of Appeals reversed the conviction and dismissed the case.

Good decision.