Attorney reviewed by Mark Blair, a Washington-admitted attorney who handles the firm's criminal defense matters. Last updated July 24, 2026.
A Washington jury instruction that adds an element the charging statute does not require still binds the State to prove it. That rule decided a felony harassment appeal on July 13, 2026, where prosecutors wrote a specific date into the to-convict instruction and then introduced no evidence of when the threat was actually made.
Felony harassment under RCW 9A.46.020 has no date among its elements. The State took on that burden anyway by including one in the instruction the jury received without objection, and under the law of the case doctrine an added element becomes an element that must be proved beyond a reasonable doubt. In State v. Bell, the State could not prove it.
What Felony Harassment Requires in Washington
A person commits harassment by knowingly threatening to cause bodily injury, immediately or in the future, where the words or conduct place the person threatened in reasonable fear that the threat will be carried out. Harassment is ordinarily a gross misdemeanor. It becomes a class C felony when the person threatens to kill, when there is a qualifying prior harassment conviction involving the same victim or household, or when the target is a criminal justice participant or election official.
The felony trigger is the threat itself, not any injury that follows. A domestic violence designation under chapter 10.99 rides on top of the charge and does not change what the State has to prove about the underlying harassment offense.
The to-convict instruction in Bell listed four elements:
- That on or about June 19, 2022, the defendant knowingly threatened to kill the named victim, immediately or in the future
- That his words or conduct placed her in reasonable fear the threat would be carried out
- That he acted without lawful authority
- That the threat was made or received in Washington
The first element is where the case came apart, and the reason is the eight words at the front of it.
The Law of the Case Doctrine
The law of the case doctrine is the rule that the State must prove every element written into the to-convict instruction, including elements the charging statute does not require. Once an added element goes to the jury without objection, it becomes an essential element, and even an erroneous instruction creates a new element the State is bound to.
The instruction functions as the yardstick by which the jury measures the evidence. Washington courts have applied that principle for decades, and the remedy when the State comes up short on any element, added or otherwise, is reversal and dismissal with prejudice rather than a new trial.
The criminal defense attorneys at Blair Kim Moeller read the proposed instructions in every King County and Snohomish County jury trial with this in mind, because language the State adopts casually can become the thing it has to prove.
What Division I Did on July 13, 2026
The defendant and his wife had been married about 27 years. He often spent evenings drinking and sending her insulting messages, and on one such night he posted publicly on Facebook that he was thinking about using his rifle on her and looking forward to killing her, tagging her in the post. Deputies conducting a welfare check the next morning showed her a screenshot of the post. She was frightened, and the deputies found a rifle matching the description in the bedroom.
The problem was proof of timing. The defendant had deleted the post, so the only evidence was a screenshot stamped 9:22, without a.m. or p.m. and without a date, taken about seven hours after the post went up. None of the State's three witnesses testified to the date. The wife said he drank and sent abusive messages frequently, which cut against any inference that a particular night was unique. The State never called the person who made the 911 call.
The only reasonable inference available to the jury was that the threat came seven hours before 9:22 on an unspecified day. The Court of Appeals held that was insufficient to satisfy the instruction and due process, reversed, and remanded with instructions to dismiss with prejudice. The trial court had imposed 45 days of confinement and 6 to 12 months of community supervision. The decision is unpublished and is not binding precedent.
Charges built largely on screenshots and social media evidence carry proof problems that are not obvious from a police report. Our attorneys can review what the State actually has before a trial date forces the question.
Why the State's Fallback Arguments Failed
The State offered three responses and lost all of them. It argued first that time is not a material element of harassment and that the instruction language came from the pattern instruction. The court's answer was that the source of the language does not matter, because the burden attaches when the element goes to the jury unopposed.
It argued next that "on or about" language ordinarily permits proof of an act at any point within the limitations period. The court distinguished the sexual assault cases applying that rule, noting that in those cases the evidence established the date. Here nothing in the record supported an inference of any specific date, and an inference resting on guesswork is not enough.
It argued last that RCW 9A.46.030 let the offense be deemed committed when the deputies showed the victim the threat. That section addresses the place where harassment is committed, not the timing, and the court declined to stretch it. The defendant had also raised a First Amendment challenge to the threat instruction under Counterman v. Colorado and several other claims, none of which the court needed to reach.
Talk to a Seattle Criminal Defense Attorney About a Harassment Charge
Blair Kim Moeller, PLLC defends felony harassment and domestic violence charges in Seattle, Bellevue, and the district and municipal courts across King, Pierce, and Snohomish Counties. Mark Blair spent years as a deputy prosecuting attorney before moving to the defense side, and he knows where the State's proof of a threat charge tends to be thinnest. Contact our office at 888-478-4001 or schedule a consultation.
