OPINION
Judge ALLARD.
Star page 1*1 Michael Jared Henderson was convicted, following a jury trial, of one count of interference with an official proceeding after he threatened to kill a witness while participating telephonically in a bail hearing for his son.1
Henderson appeals his conviction, raising four claims. First, Henderson argues that the superior court erred when it failed to include a “true threat” definition in the jury instructions. This claim requires us to examine recent First Amendment jurisprudence. Because we conclude that the jury instructions that were given in this particular case adequately incorporated the concept of a “true threat,” we reject this claim.
Second, Henderson argues that the evidence at trial was insufficient to support his conviction and that the superior court therefore erred in failing to grant his motion for judgment of acquittal. But, viewing the facts in the light most favorable to the conviction, as we are required to do, we conclude that the evidence was sufficient to support Henderson's conviction.
Third, Henderson argues that we should conduct an independent review of the evidence presented at his trial to ensure that he was not convicted for engaging in speech that is protected by the First Amendment. Having conducted that review, we again conclude that the jury's findings were sufficient to ensure that Henderson was not punished for engaging in protected speech.
Fourth, Henderson argues that the superior court erred in failing to grant his motion for a new trial on the grounds that the jury's verdict was against the weight of the evidence. But the record shows that the superior court applied the correct legal test and that the court reasonably found that the verdict was not against the weight of the evidence. We therefore defer to the superior court's ruling.
In addition to challenging his conviction, Henderson also challenges two portions of a probation search condition that the court imposed in his case. For the reasons explained here, we affirm one portion of the probation search condition but vacate the other portion. We otherwise affirm Henderson's conviction.
Background facts
Michael Jared Henderson had two sons: Isaac and Tyler Henderson.2 In December 2021, eighteen-year-old Isaac shot and killed his older brother, Tyler. Tyler's friend, Katrina Johnson, was standing in between the brothers when Tyler was shot. Based, in part, on Johnson's eyewitness account, the State charged Isaac with first-degree murder.3 The State also charged Isaac with third-degree assault for recklessly placing Johnson in fear of imminent serious physical injury by means of a dangerous instrument.4
On February 1, 2022, Superior Court Judge William Carey held a bail hearing in Isaac's case. A number of people participated telephonically in the hearing, including Henderson, who called into the bail hearing with his then-long-term girlfriend, Deborah Staples. Henderson and Staples had been drinking and were alone in Henderson's sister's home. They used Henderson's cell phone to listen to the proceedings on speaker phone. Although they initially muted the phone, Staples testified that the phone later changed hands multiple times and that she did not know if the phone was muted when Henderson had it.
Star page 2*2 At the bail hearing, Isaac's attorney requested a reduction in monetary bail and approval of a third-party custodian. Johnson, who was appearing telephonically, opposed this proposal, stating that she “would not feel safe if [Isaac] were let out on bail.” Following questioning of the proposed third-party custodian, the prosecutor argued against the proposed reduction in monetary bail, citing (among other considerations) Johnson's fear for her own safety.
The judge indicated that he intended to keep the monetary bail high to protect Johnson, who was “still extremely afraid.” After the judge acknowledged that this would likely mean that Isaac would stay in jail, Henderson interrupted the judge for the first time. Immediately preceding Henderson's interruption, Staples could be heard warning Henderson not to interrupt, saying, “You're gonna make your son look bad, don't do it.”
Slurring his words, Henderson directly addressed the judge, “This is [Isaac's] father, Mr. fuckin’ William Carey. I watch you run by my house every day.... What are you trying to do? Put him away?” When Isaac's attorney tried to interject, Henderson said, “Fuck you, bitch!” and then continued, raising his voice, “What're you trying to do, Judge Carey, put him away? Eighteen-year-old boy. He didn't do that to his brother!” The defense attorney asked Henderson to “please stop, please, please stop, this is all recorded.”
The parties then discussed whether to hear from other defense witnesses. When the court agreed to do so, saying, “I will open it up, but you'll need to be civil,” Henderson began yelling again. Staples could be heard telling Henderson to “stop,” asking him, “What made you do that? Why would you do that?” Henderson replied, “Because they fucking owe me.” The judge asked the in-court clerk, “Can you cut them off the line, please?” The clerk responded, “Done.” The clerk later testified at trial that she muted all of the participants on the telephone line and then unmuted those who needed to participate.
After several members of the community spoke in support of Isaac, Johnson's mother spoke. After identifying herself as Johnson's mother, she referenced Henderson's swearing and asked if Johnson could get a restraining order against Henderson for Johnson's safety. The prosecutor told her that he would call her to discuss that. One of Isaac's family members spoke on his behalf.
The judge then resumed his ruling. The judge indicated that he was approving the third-party custodian but only reducing bail from $100,000 to $75,000. He noted that electronic monitoring would still be required because he had “concerns about the alleged victim, Miss Johnson.”
At some point, although the clerk did not announce it, Henderson's line was unmuted. Staples then interrupted, stating, “Fuck that bitch.” The following exchange occurred:
Henderson: Katrina [Johnson] fucked my boy.
Staples: I know she did.
Defense attorney: Okay, guys, you're all recorded.
Henderson: She fucked Tyler.
Staples: I know. She fucked them all very well, didn't she?
Judge Carey: Can we please have everybody — we're just going to have to shut off those folks or mute them somehow so I can get through this, please. Alright. Okay.
The in-court clerk's testimony at trial indicated that, when the judge asked her to mute the parties, she blanket-muted all participants (although she did not announce that she was doing so).
The judge resumed his ruling without incident. After answering a question by the prosecutor, the judge stated, “We'll be off record, thank you,” but he then corrected himself, saying, “Oh, we still have [another matter].” The in-court clerk asked about paperwork for the third-party custodian. The in-court clerk testified that she unmuted everyone at that point.
Star page 3*3 While the parties were addressing the paperwork for the third-party custodian, Staples could be heard saying, in reference to the bail amount, “75,000? 100,000?” Henderson, in a slurred but otherwise calm and matter-of-fact tone, responded, “Don't worry about that. I'm going to kill Katrina Johnson.”
The prosecutor, who was in the courtroom, heard the threat and immediately drew the court's attention to it. Johnson also heard the threat. She later testified at trial that it scared her and that she went to the police to request a restraining order the next day.
Two days after the bail hearing, Alaska State Trooper Larry Dur'an called Henderson on the phone to investigate the threat. When Trooper Dur'an told Henderson that “some folks ... were just a little concerned” about his comments during the hearing, Henderson responded, “Yeah, I know, I've got to write a letter of apology to the court.” Trooper Dur'an asked Henderson if he remembered what he had said to Johnson. Henderson responded:
I don't believe — it was just — it was all over the court monitors, the monitors. And I was just trying to express, like, my feeling that it was an accident.... And apparently she, she feels she, her, her, she feels that she would be, her safety would be threatened if Isaac were to be let out, but I disagreed.
Trooper Dur'an told Henderson not to contact Johnson. Henderson agreed not to contact her and then stated, “You know, what I had to say I felt like I could say in front of everybody, in the courtroom, you know?” He added, “I probably took it a little too far. But ... I really wanted everybody in the courtroom to understand that this was an accident.... [Isaac] has a lot of support behind him.”
The same day, Alaska State Trooper Joey Beaudoin called Henderson. Henderson agreed that he was intoxicated during the hearing, and he explained that he was “angry” that the judge did not invite Isaac's supporters to speak on his behalf and frustrated that the court seemed to prioritize Johnson's professed fear. According to Henderson, “All [the judge] wanted to hear was this little girl, claiming to be a victim. It was a little frustrating, so I said some things I shouldn't have said on the court call. And I've got an apology letter getting ready to go to the court for that.”
Procedural history
A week later, a grand jury indicted Henderson on one count of interference with official proceedings and one count of second-degree terroristic threatening.5 The State subsequently dismissed the terroristic threatening charge. Henderson proceeded to trial on the interference with official proceedings charge, a class B felony.6
To prove interference with official proceedings under AS 11.56.510(a)(1)(C), the State was required to prove beyond a reasonable doubt that Henderson knowingly threatened Katrina Johnson with the intent to retaliate against her for her participation in an official proceeding.
Prior to opening statements, the parties litigated the definition of “threat.” Citing to an unpublished Alaska case, Melugin v. State, Henderson's attorney proposed instructing the jury with language from Melugin defining the objective test for a “true threat” under the First Amendment: A “threat” is a statement that a reasonable person would foresee would be interpreted by those to whom the speaker communicates as a serious expression of an intention to inflict physical injury on someone.7 The superior court declined to use this definition and instead drafted an instruction based on the statutory definition of threat.8 The jury instruction stated: “ ‘Threat’ means a menace, however communicated, to inflict physical injury on anyone.”
Star page 4*4 At trial, the primary factual dispute was whether Henderson intended Johnson to hear his threat to kill her, as the State contended, or whether the threat was a private comment to Staples (Henderson's then-girlfriend) that Henderson did not realize was being broadcast, as Henderson contended. According to the prosecutor, “Michael Henderson believed that Katrina Johnson was the one responsible for keeping his son in jail and so he retaliated against her by threatening to kill her.” The prosecutor argued that Henderson knew that the threat would be heard by everyone (including Johnson) because he had already been warned that he was being recorded. The prosecutor also characterized Henderson's statements to the troopers as indicating that he wanted others to hear his remarks.
In contrast, Henderson's attorney maintained that Henderson's remark was a private comment to his then-girlfriend “that no one else was supposed to hear.” Henderson did not testify at trial. But in closing, the defense attorney argued that Henderson believed that the phone line had been muted by the clerk and that his own phone was muted, noting that Staples had testified that she believed they were muted. Counsel also argued that Henderson had no reason to think that Johnson was still on the line as it had been a long time since she had spoken and people were continuously getting on and off the phone line (as evidenced by the beeps). The attorney emphasized the mens rea elements of the statute, arguing that the jury could not find an intent to retaliate if Henderson had not intended to relay the threat to Johnson. Defense counsel asserted that “this whole case comes down to ... whether or not [Henderson] intended for [Johnson] to hear these statements” and that “this entire case turns on whether or not Mr. Henderson realized that people could hear him.” According to the defense attorney, “Someone can say ... evil things in the privacy of their own home, but unless they intended the person to whom those threats were directed to, to hear them, they did not intend to threaten them.”
In rebuttal closing, the prosecutor argued that Henderson was aware that Johnson was still on the line because “she was participating actively in this court hearing” and was “a big part of this case.” The prosecutor emphasized again that Henderson had been warned twice that he was being recorded but that “he didn't care” because “he wanted to be heard.” The prosecutor pointed out that “if he really didn't want to be heard as he let off steam, you'd think that he'd at least make sure his phone was muted.” The prosecutor ended her rebuttal closing by asserting that “[Henderson] wanted to be heard and he did not want to be silenced.”
Prior to the jury deliberating, Henderson moved for a judgment of acquittal, arguing that there was insufficient evidence that he knew his comments were not private. The court took the matter under advisement.
Following deliberations, the jury found Henderson guilty of one count of interference with official proceedings. Henderson renewed his motion for a judgment of acquittal and also filed a motion, in the alternative, for a new trial, arguing that the verdict was against the weight of the evidence.
The superior court denied both motions in a written order. The court found that the State had shown that Henderson knowingly threatened Johnson. The court viewed the question of intent to retaliate as the “closer question,” noting that “if [Henderson] (incorrectly) believed that he was speaking privately to Ms. Staples, it would be difficult to construe his statements as retaliatory.” The court noted, however, that the evidence had shown that “Mr. Henderson had collected himself by the time he said he was going to kill Katrina Johnson” and that, “[d]runk or not, he had been warned repeatedly that people could hear him.” The court found that, based on the evidence presented at trial, “it is reasonable to conclude, as the jury did, that he actually knew the line was open, and he intended for someone to hear the threat and convey to her that he wanted her dead.”
Star page 5*5 The court acknowledged that this was not the only rational interpretation of the evidence. But the court saw this as a “mere disagreement” where reasonable minds could view the same evidence and reach “different, reasonable conclusions.” The court concluded that the jury's guilty verdict reflected “a well-informed and carefully considered decision about that evidence” and that the verdict was not against the weight of the evidence such that a new trial should be granted.
At sentencing, the court again acknowledged that there was support for Henderson's position that he did not intend Johnson to hear the comment. But the court also found that there was “substantial support” for the jury's guilty verdict, which the court characterized as implicitly finding the following:
That Mr. Henderson made a threat to kill Katrina Johnson and that at the moment he made the threat, he both knew that she would either hear it or become aware of it, and that his intent in making it was retaliating against her for acting as a witness in his son's murder prosecution.
The court also acknowledged that “people lash out in ways that aren't helpful” when they are grieving and that alcohol clearly played a role in Henderson's offense.
The court noted that the evidence of whether Henderson actually intended to kill Johnson was “ambiguous at best.” But the court nevertheless emphasized that Henderson's threat to kill Johnson “carried the very real risk of undermining the integrity of a murder prosecution because it very deeply frightened Ms. Johnson and reasonably so.” The court further noted that,
By their verdict, the jury sent a message to the court and to Mr. Henderson that they didn't see his conduct as simply empty words spoken while he was drunk to no one in particular. They saw it as a real threat with real impacts on real people in a major and important real court proceeding. So the sentence that's imposed here needs to reflect that.
The court ultimately sentenced Henderson to 48 months with 30 months suspended (18 months to serve) and a 4-year term of probation.
This appeal followed.
Overview of First Amendment law as it applies to “true threats”
The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, provides that the government shall “make no law ... abridging the freedom of speech.”9 The Alaska Constitution similarly provides that “[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”10
A law that proscribes speech based on the message that the speech conveys is considered content-based.11 As a general matter, content-based restrictions on speech are “presumptively invalid” under the First Amendment and are upheld only if they survive strict scrutiny — i.e., only if the government proves that they are narrowly tailored to serve a compelling state interest.12
Star page 6*6 But the United States Supreme Court has identified certain “historic[,] ... traditional,” and “narrowly limited” categories of speech that fall outside the First Amendment's protection and whose restriction is not presumptively invalid.13 These categories of unprotected speech are “ ‘often described ... as being of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest’ in their proscription.”14 The categories of unprotected speech include obscenity, incitement, defamation, fraud, true threats, and speech integral to criminal conduct.15
The current case involves the “true threats” category of unprotected speech. “True threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’ ”16 As the United States Supreme Court recently explained in Counterman v. Colorado, the word “true” is what distinguishes constitutionally unprotected speech from “jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow (say, ‘I am going to kill you for showing up late’).”17 Notably, the speaker need not actually intend to carry out the threat.18 Instead, the “prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’ ”19
Before Counterman, most jurisdictions applied solely an objective test when defining what constitutes a “true threat” for First Amendment purposes.20 In Melugin v. State, the unpublished case Henderson's attorney cited in the trial court proceedings, this Court described the objective test as follows:
[I]n order for the government to establish a “true threat” it must demonstrate that the defendant made a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm upon or to take the life of [another individual].[21]
This test was consistent with the test used by many state and federal courts, although sometimes the test was framed in terms of a reasonable recipient rather than a reasonable speaker.22
Star page 7*7 Courts also struggled with whether there is a subjective mens rea element to the “true threats” test.23 Alaska cases, although recognizing that some subjective mens rea element applies, has not been uniform on which mens rea applies.24 In Baker v. State, for example, this Court suggested that a defendant must be at least reckless with regard to the fact that a reasonable listener would view their statements as a serious expression of an intention to inflict bodily harm.25 But in State v. Borowski, this Court suggested that the mens rea for a “true threat” was knowingly — that is, the person must be aware that their communication would be interpreted as “a real threat of harm.”26
In 2023, the United States Supreme Court resolved each of these issues in Counterman v. State.27 There, the Court adopted the “reasonable recipient” formulation of the objective test.28 As the Court described, “The existence of a [true] threat depends not on ‘the mental state of the author,’ but on ‘what the statement conveys’ to the person on the other end.”29
The Court also resolved the mens rea question, at least with regard to the federal constitution.30 To prevent the chilling of protected speech, the Counterman Court held that the First Amendment erects a buffer zone around true threats, requiring the government to prove a subjective mens rea before a speaker may be punished criminally for making a true threat.31 Balancing the competing interests of free expression and “protecting against the profound harms ... that attend true threats of violence,” a majority of the Court determined that “recklessness” was the appropriate mens rea for a prosecution based on “true threats.”32
Justice Sonia Sotomayor, joined in part by Justice Neil Gorsuch, wrote separately to express her view that the majority overstepped by announcing a single mens rea standard (recklessness) for all threat-based prosecutions.33 Justice Sotomayor agreed that recklessness was the appropriate standard in Counterman, where the statements were repeated and the speech was closely intermingled with illegal stalking conduct.34 She argued, however, that when a prosecution is based on a “single intemperate utterance,” the First Amendment should demand a higher mens rea standard, such as intentionally, to prevent accidental liability and the chilling of heated (but protected) expression.35
Star page 8*8 Thus, after Counterman, a government prosecuting a defendant for the issuance of a threat of violence based purely on speech must prove both an objective and a subjective test to satisfy the First Amendment. First, the prosecution must prove beyond a reasonable doubt that the defendant's statement was a “true threat” in the sense that the statement occurred in a context or under such circumstances where a reasonable recipient would interpret the communication as a serious expression of an intent to do harm, rather than as something said in jest, idle talk, or hyperbole.36 Second, the prosecution must prove beyond a reasonable doubt that the defendant acted recklessly with regard to the fact that the statement would be viewed as a true threat — that is, the prosecution must prove that “the defendant consciously disregarded a substantial risk that their communication would be viewed as threatening violence.”37 As we explain later in this opinion, it is possible that a higher mens rea — such as knowingly or intentionally — applies under the Alaska Constitution, but we need not decide that issue in this case.
Henderson's argument that the superior court erred in failing to give a “true threats” instruction to the jury in his case
In the current case, Henderson was prosecuted for the content of his speech — that is, he was prosecuted for saying that he was going to kill Johnson, a witness in his son's murder prosecution. Because this was a prosecution based on speech, this case directly implicates the First Amendment concerns discussed above. In the proceedings before the superior court, the parties did not meaningfully discuss these First Amendment concerns (although when Henderson's attorney proposed a jury instruction defining the word “threat,” she did cite to an unpublished First Amendment case and noted in the abstract that some threats are protected by the First Amendment).
On appeal, however, Henderson focuses on the First Amendment implications of his case, raising a number of interrelated claims of error.
First, Henderson argues that it was error for the superior court to use the statutory definition of “threat” rather than the “true threats” instruction that his attorney proposed. Second, Henderson argues that it was error for the superior court to fail to instruct the jury on the subjective mens rea required for prosecutions of “true threats” post-Counterman. Indeed, Henderson goes further and argues that this Court should adopt Justice Sotomayor's Counterman concurrence and hold that, under the Alaska Constitution, the State was required to prove that Henderson intended his statement “I'm going to kill Katrina Johnson” to be received as a “true threat” — i.e., as a serious expression of an intention to inflict bodily harm upon another person.38
Henderson acknowledges that his trial attorney never requested a “true threats” instruction that included a subjective mens rea and that this issue is therefore being raised for the first time on appeal. However, as a new constitutional rule, the Counterman holding is retroactively applicable to Henderson's case because his case is still under direct review.39
The rules of preservation nevertheless still apply.40 Because Henderson did not request a “true threats” instruction with a subjective mens rea requirement in the trial court proceedings, he must show plain error.41 “Plain error is an error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.”42 When assessing whether an error is “obvious” for purposes of a retroactively applied new constitutional rule, Alaska courts look to the law at the time of the appeal rather than the law as it existed at the time of trial.43
Star page 9*9 The State acknowledges that Henderson's case implicates First Amendment concerns because Henderson was prosecuted for the contents of his speech. The State argues, however, that Henderson was not prejudiced by the absence of a comprehensive “true threats” instruction at trial for two reasons.
First, citing to Turney v. State, the State argues that the “true threats” doctrine does not apply to prosecutions involving interference with official proceedings that prohibit retaliatory threats against witnesses because these prosecutions necessarily involve unprotected speech.44 Turney was convicted of jury tampering for approaching three prospective jurors in front of a courthouse and telling them to call a phone number that would inform them about jury nullification.45 The Alaska Supreme Court upheld the jury tampering statute against a First Amendment challenge, holding that “[s]peech aimed at influencing the juror's conduct as a juror ... in a particular case, is not constitutionally protected.”46 The State argues that “Turney’s logic and result control here” and that “[s]urely an attempt to obstruct justice by threatening to kill the main witness in a murder case is not worthy of more constitutional protection than an attempt to obstruct justice by giving jurors accurate information about jury nullification.”47
Although we are inclined to agree with the State that retaliatory death threats against witnesses in official proceedings are not protected by the First Amendment, we note that Turney is an older First Amendment case that pre-dates the United States Supreme Court's 2010 decision United States v. Stevens.48 In Stevens, the Court held that the prohibited speech must fit within one of the “narrowly limited” categories of unprotected speech such as obscenity, incitement, defamation, fraud, true threats, and speech integral to criminal conduct.49 Arguably, the Alaska Supreme Court's decision in Turney implicitly rested on the exception for “speech integral to criminal conduct,” but the State's brief does not directly analyze this exception in its discussion of Turney.50
Star page 10*10 In the alternative, the State argues that the superior court's failure to provide a comprehensive true threats instruction is harmless beyond a reasonable doubt because the jury instructions that were given at trial subsumed the constitutional requirements for a true threat and ensured that Henderson was not convicted for protected speech.
For the reasons explained in the next section, we conclude that the jury instructions — which required the jury to find that Henderson “knowingly threatened [Johnson] with the intent to retaliate against her for her participation [as a witness] in an official proceeding” — adequately conveyed the legal principles underlying a comprehensive true threats instruction, thereby ensuring that Henderson was not convicted for speech that was protected by the First Amendment. Accordingly, even if omission of a “true threats” instruction was erroneous, this omission was harmless beyond a reasonable doubt.51
Why we conclude that the jury instructions for interference with official proceedings subsumed the constitutional requirements of a “true threat”
The question of when jury instructions defining “true threats” and requiring the necessary subjective mens rea need to be given can be difficult.52 In some cases, it is obvious that such an instruction is needed and that failure to specifically instruct the jury on “true threats” is reversible error.53 In other situations, however, the elements of the criminal offense may be such that the jury's findings under those elements are sufficient to establish the constitutional requirements of a “true threat.”54 In United States v. Stewart, for example, the Ninth Circuit affirmed a defendant's conviction for threatening a federal judge, concluding that the elements of the offense “subsume[d]” any constitutional requirement under the First Amendment that the defendant actually intend his speech to be a threat.55
Star page 11*11 Stewart was issued prior to the United States Supreme Court's clarification in Counterman of the mens rea required for true threats. Because this issue was still undecided, the Ninth Circuit assumed without deciding that the federal constitution required the defendant to intend to make a true threat — the higher mens rea later advocated by Justice Sotomayor in Counterman and argued by Henderson in this case.56
The statute at issue in Stewart, 18 U.S.C. § 115(a)(1)(B), prohibited “threaten[ing] to assault, kidnap, or murder [a federal judge] ... with intent to impede, intimidate, or interfere with such ... judge ... or with intent to retaliate against such ... judge ... on account of the performance of official duties.”57 The defendant, a federal prisoner, was convicted under this statute after he threatened to kill the judge who presided over his criminal case.58 On appeal, the defendant argued that his conviction violated the First Amendment because his threat did not qualify as a “true threat.”59 In rejecting this claim, the Ninth Circuit emphasized that the statute required proof of a specific intent to “impede, intimidate, interfere with, or retaliate against” the target of the threat (the federal judge), and the court reasoned that proof of this specific intent met any constitutional requirement under the First Amendment that the defendant subjectively intended his speech to be a threat.60 As the Ninth Circuit explained,
A conviction under that statute could only be had upon proof that the speaker intended the speech to impede, intimidate, interfere with, or retaliate against the protected official. Such proof would seem to subsume the subjective “true threat” definition announced in Black and recognized by Cassel; one cannot have the intent required under section 115(a)(1)(B) without also intending to make the threat.[61]
Henderson's case is similar to Stewart in that the elements of the offense necessarily ensured that Henderson was not convicted for speech that was protected by the First Amendment.
Henderson was prosecuted for interference with official proceedings under AS 11.56.510(a)(1)(C). This statutory provision provides, in relevant part,
A person commits the crime of interference with official proceedings if the person
(1) uses force on anyone, damages the property of anyone, or threatens anyone with intent to
....
(C) retaliate against a witness or juror because of participation by the witness or juror in an official proceeding.
At Henderson's trial, the superior court instructed the jury as follows:
Michael Henderson, the defendant in this case, has been charged with the crime of interference with official proceedings.
To prove that the defendant committed this crime, the state must prove beyond a reasonable doubt each of the following elements:
1. Katrina Johnson was a witness in an official proceeding;
2. The defendant knew Katrina Johnson was a witness in an official proceeding;
3. The defendant knowingly threatened Katrina Johnson with the intent to retaliate against her for her participation in an official proceeding.
....
“Threat” means a menace, however communicated, to inflict physical injury on anyone.
Star page 12*12 There are three critical components to this instruction. First, the instruction required the jury to find that Henderson “knowingly threatened” Johnson. Second, the instruction required the jury to find that Henderson knowingly threatened Johnson with the specific intent of “retaliating” against her for her participation as a witness in an official proceeding. Lastly, the instruction required the jury to find that Henderson's statement was a “threat,” or a “menace ... to inflict physical injury on anyone.” We conclude that, viewed together, these instructions were sufficient to ensure that Henderson was not prosecuted for engaging in constitutionally protected speech.
First, as the State points out in its briefing, the court's use of the word “menace” automatically elevated the seriousness of the threat and distinguished it from something said in jest or hyperbole. As a general matter, the word “menace” connotes something objectively harmful or evil.62 The Merriam-Webster dictionary defines “menace” as “a show of intention to inflict harm: threat.”63 Likewise, Roget's New Thesaurus defines “menace” as “[o]ne regarded as an imminent danger” or “an expression of the intent to hurt or punish another.”64
Moreover, like the word “menace,” the word “retaliation” is associated with doing something harmful to another person. The Merriam-Webster Dictionary defines “retaliate” as “to return like for like; especially: to get revenge.”65 The Collins Dictionary similarly defines retaliate as “to return like for like, esp[ecially], to return evil for evil.”66 Thus, based on the jury instructions, the jury could not convict Henderson unless it found that his threat objectively qualified as “a menace”— i.e., as a serious expression of an intent to cause harm — and that Henderson specifically intended it to be received as such.67
We note that, at trial, Henderson did not argue that his statement, “I'm going to kill Katrina Johnson,” uttered in the middle of a court hearing, was not an objectively frightening statement if it had been heard by Johnson. Instead, the main focus of his defense, and of the trial, was whether he had intended the statement to be heard by anyone other than his then-girlfriend. As the defense attorney argued, “Someone can say ... evil things in the privacy of their own home, but unless they intended the person to whom those threats were directed to, to hear them, they did not intend to threaten them.” The attorney therefore focused on the facts that could have led the jury to conclude that Henderson meant only to speak with his then-girlfriend and had not intended for Johnson to hear the death threat.68
Star page 13*13 But in finding that Henderson “knowingly threatened” Johnson “with the intent to retaliate” against her, the jury necessarily rejected this defense — and found that Henderson acted with a mens rea exceeding the requirements of Counterman.69
Taken together, the jury instructions defining “knowingly” and the elements of interference with official proceedings required the jury to find that Henderson threatened Johnson with an awareness that his conduct was of that nature — i.e., a “menace.” That is, the jury was required to find that Henderson knew that “others w[ould] take his words as threats.”70
Furthermore, the jury had to find that he uttered those words with an intent to retaliate. As the superior court explained in its order denying the motion for judgment of acquittal and a new trial, “if [Henderson] (incorrectly) believed that he was speaking privately to Ms. Staples, it would be difficult to construe his statements as retaliatory.” Instead, to find Henderson's statement “I'm going to kill Katrina Johnson” was made “with the intent to retaliate,” the jury must necessarily have found that Henderson intended for Johnson to hear the death threat (or at least hear of it) and to be harmed by its threatening nature in return for the harm he believed she had caused his son Isaac as a witness in an official proceeding.
As we previously explained, the test for a “true threat” post-Counterman includes both an objective and a subjective component: that a reasonable recipient would find the speech threatening and that the defendant was at least reckless with respect to whether the recipient would find the speech threatening.71 Here, in order to convict Henderson, the jury was required to find beyond a reasonable doubt that (1) Henderson's threat to kill Johnson was “a menace ... to inflict physical injury,” (2) Henderson made this threat “knowingly” and (3) he did so “with the intent to retaliate against [Johnson] for her participation [as a witness] in an official proceeding.” We conclude that these findings, like the jury findings in Stewart, subsumed the findings that the jury would otherwise have needed to make if it had received instructions defining the constitutional requirements of “true threats” under federal law or the heightened mens rea standard (intent) under the Alaska Constitution for which Henderson advocates on appeal. In other words, the jury here necessarily found that a reasonable recipient would find the words “I'm going to kill Katrina Johnson” threatening and that Henderson intended for his words to be received as a threat. We therefore need not reach the question of whether a heightened mens rea applies under the Alaska Constitution.
Henderson's argument that the evidence at trial was insufficient to support his conviction
Henderson also argues that the evidence at trial was insufficient to support his conviction and that the court therefore erred in denying his motion for judgment of acquittal. Whether the evidence presented at trial is sufficient to support the defendant's conviction is a question of law that we review de novo.72 When a defendant challenges the sufficiency of the evidence to support a criminal conviction, we are required to view the evidence, and all reasonable inferences that can be drawn from that evidence, “in the light most favorable to upholding the jury's verdict.”73 Viewing the evidence in this light, we then decide whether a fair-minded juror exercising reasonable judgment could conclude that the State had met its burden of proving guilt beyond a reasonable doubt.74
Star page 14*14 As we already explained, to convict Henderson of interference with an official proceeding under AS 11.56.510(a)(1)(C), the State was required to prove that Henderson “knowingly threatened” Johnson “with the intent to retaliate” against Johnson for her participation as a witness in the State's prosecution of Henderson's son.
As an initial matter, we note that there was nothing equivocal or conditional about Henderson's threatening words. The threat was overt — “I'm going to kill Katrina Johnson.”75 Moreover, as the superior court found, the statement was made “calmly” and in a “matter-of-fact way” under circumstances — in the midst of a public court hearing — that demonstrated a gravity of purpose to the threatening words. Notably, there was no suggestion at trial that Henderson's tone was joking or that he was engaged in hyperbole, political or otherwise (as he suggests on appeal). Indeed, the threat was against a lay witness in a murder prosecution; it was not verbal criticism or a challenge directed at a political figure or police officer.76
When the superior court denied Henderson's motion for judgment of acquittal, it found that there was sufficient evidence presented at trial from which a fair-minded factfinder could reasonably find that the State had proven that Henderson knowingly threatened Johnson with the intent to retaliate against her for her participation as a witness in an official proceeding.
At trial, Henderson's attorney argued that Henderson had not intended for Johnson to hear his statement, “I'm going to kill Katrina Johnson.” She argued, instead, that his words were merely an expression of frustration said privately to Staples (Henderson's then-girlfriend) at a time when Henderson believed that the telephone line was muted and nobody could hear what he said. On appeal, Henderson points to facts that support this claim: namely, that Henderson was appearing telephonically and not in person and the judge had just requested that the in-court clerk mute the line because of previous outbursts by Henderson and Staples.
Star page 15*15 But, as the superior court explained in its order denying Henderson's motion for judgment of acquittal, there were also facts supporting a finding that Henderson was aware that his statement, “I'm going to kill Katrina Johnson,” could be heard by the others on the line and that, in his intoxicated state, he intended that Johnson hear it (or, at least, hear of it) because he intended to retaliate against her for her participation as a witness at the bail hearing.77 As the court stated in its order:
Mr. Henderson had collected himself by the time he said he was going to kill Katrina Johnson. Drunk or not, he had been warned repeatedly that people could hear him. He said what he said, and according to Ms. Staples he had the phone when he said it. On these facts, it is reasonable to conclude, as the jury did, that he actually knew the line was open, and he intended for someone to hear the threat and convey to her that he wanted her dead.
There are also other facts that support the conclusion that Henderson knew that Johnson would hear the threat. As the recording of the bail hearing shows, Henderson became very angry at Johnson during the hearing because she expressed that she was afraid of Henderson's son, and Henderson made derogatory remarks against Johnson at a time when he clearly knew his remarks could be heard because he had been repeatedly admonished by the defense attorney not to speak. The recording also shows that the judge had previously requested that the line be muted because of Henderson's outbursts, only for the clerk to unmute the line a short time later without any warning. Henderson was therefore on notice that a muted line could, and did, become unmuted without warning.
Moreover, as the prosecutor argued at closing, if Henderson had wanted to keep the threat private, he had the ability to mute his own line. A reasonable juror could find that Henderson did not mute the line because he wanted his threat to be heard by other people, including Johnson (much like the statements he had earlier directed at the judge presiding over the bail hearing). Indeed, a reasonable juror could interpret Henderson's subsequent statements to the troopers (that what he had to say he felt he could say “in front of everybody in the courtroom” but took it a “little too far”) as an acknowledgement that he said things he should not have said at the bail hearing and that he said them precisely because he wanted them to be heard.
Taking all these facts in the light most favorable to upholding the verdict — as we are required to do when evaluating the sufficiency of the evidence — we conclude that the evidence at trial was sufficient to support Henderson's conviction for interference with official proceedings.78
Henderson's argument that the evidence was insufficient to prove that he was not prosecuted for constitutionally protected speech
In his reply brief, Henderson argues for the first time that because this case raises First Amendment issues, we should also independently review the record of trial to determine whether Henderson's speech is protected by the First Amendment.
As Henderson points out, we conducted such a review in Powell v. State.79 As Judge Mannheimer explained in his Powell concurrence, “even though a jury must initially decide whether a defendant's words violate a criminal statute ... it is ultimately the reviewing court's task to decide whether, consistent with the First Amendment, the defendant's words can be punished.80 Other appellate courts have similarly conducted an independent review of the record to ensure that the conviction does not violate the First Amendment.81
Star page 16*16 Typically, arguments raised for the first time in a reply brief are considered waived.82 We will nevertheless conduct the requested independent review in this case because the review involves essentially the same First Amendment analysis that we have already conducted.
On appeal, Henderson argues that the Alaska Constitution requires the State to prove that he intended Johnson to hear the threat and he asserts that the evidence was insufficient to prove that Henderson intended Johnson to hear the threat. But, as we already explained, the jury necessarily found that Henderson was aware that Johnson would hear the statement (or hear of it from others at the hearing) and intended the statement to be received as threatening when it found that he “knowingly threatened Katrina Johnson with the intent to retaliate” against her for her participation as a witness in an official proceeding. Our role in determining whether a conviction violates the First Amendment does not include second-guessing factual determinations made by the jury.83
Here, as the superior court acknowledged, the jury's verdict indicates that the jury rejected any claim that Henderson's statement was simply drunken ramblings that were not intended to frighten anyone. As the superior court stated at sentencing:
By their verdict, the jury sent a message to the court and to Mr. Henderson that they didn't see his conduct as simply empty words spoken while he was drunk to no one in particular. They saw it as a real threat with real impacts on real people in a major and important real court proceeding.
We therefore reject Henderson's argument on appeal that he was prosecuted for threatening speech without proof of the required mens rea for a “true threat.”
Henderson also argues that there is no evidence “that Henderson truly meant that he planned to kill Johnson in retaliation for her participation in the bail proceeding.” But proof that the speaker actually intended to carry out the threat is not required to prove that a statement qualifies as a “true threat.”84 The law is well-established that the speaker need not actually intend to carry out the threat.85 Rather, a prohibition on true threats “ ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’ ”86 Contrary to Henderson's argument on appeal, the State was not required to show that Henderson actually intended to kill Johnson.
Star page 17*17 Based on our independent review of the record, we conclude that Henderson was not prosecuted for constitutionally protected speech.
Henderson's argument that the superior court erred in denying his motion for a new trial
Henderson argues that the superior court erred when it denied his motion for a new trial on the ground that the verdict was against the weight of the evidence.87
Here, the superior court denied Henderson's motion for a new trial because it found that the jury's verdict was not against the weight of the evidence. The court recognized that it was required to sit as a thirteenth juror and make its own assessment of the weight and credibility of the evidence. Under this test, the court concluded that the jury's verdict represented “a well-informed and carefully considered decision about that evidence.”
Because the superior court applied the correct legal test and because the evidence supporting the verdict is not “so slight and unconvincing as to make the verdict plainly unreasonable and unjust,” we find no abuse of discretion.90
Henderson's challenges to the warrantless search probation condition
At sentencing, the superior court imposed Special Probation Condition No. 1, which states as follows:
[Henderson] [s]hall, at the direction of a probation officer, or at the direction of a law enforcement officer acting as an agent of a probation officer, submit to a warrantless and non-consensual search of [his] person, personal property, residence, vehicle, or any vehicle in which [he is] found for the presence of:
a. alcohol
b. firearms or deadly weapon[s]
c. Items used for tampering
On appeal, Henderson argues that the superior court erred when it included warrantless searches for “firearms or deadly weapons” and “items used for tampering.” A warrantless search condition is subject to special scrutiny and “must bear ‘a direct relationship’ to the nature of the defendant's conviction.”91
Henderson objected to both of these warrantless search provisions in the superior court proceedings. In response, the superior court found that “it's a closer question” whether there should be a warrantless search condition for “firearms or deadly weapons” because the current case did not involve the use of firearms or deadly weapons. The court nevertheless emphasized the jury's findings, which found that Henderson had made a death threat to a witness in retaliation for her role as a witness in his son's murder prosecution. Given the violent nature of the threat and the fact that Henderson was otherwise prohibited by his probation conditions from possessing firearms and deadly weapons, we conclude that the court did not abuse its discretion in imposing this search provision.92
Star page 18*18 We come to a different conclusion, however, with regard to the warrantless search provision for “items used for tampering.” The superior court's only justification for allowing warrantless searches for these items was that it would help ensure that Henderson did not tamper with the alcohol testing that was also ordered as part of probation supervision. But the court did not find that Henderson had any history of tampering with alcohol tests or that there was any reason to be particularly concerned that Henderson might tamper with the alcohol tests. Here, there is no direct relationship between the challenged probation condition and the nature of Henderson's criminal conduct. Additionally, the superior court's stated reasons for including the condition would apply to every case where testing for alcohol or controlled substances is otherwise ordered.
Under these circumstances, we vacate the portion of the condition authorizing warrantless searches for “items used for tampering.”
Conclusion
We VACATE the portion of Henderson's probation conditions permitting the probation officer to conduct warrantless searches for “items used for tampering.” In all other respects, we AFFIRM the superior court's judgment.