BARBARA LAWALL, PIMA COUNTY ATTORNEY. ‘TUCSON, ARIZONA 85701 32 NORTH STONE, SUITE 600 (620) 724-5600 10 1 2 13 14 15 16 17 18 19 20 2 22 BARBARA LAWALL PIMA COUNTY ATTORNEY Jason Gannon Deputy County Attorney Jason.Gannon@pcao.pima.gov State Bar No. 034465/PAN 67149 7 32 North Stone, Suite 800 & Tucson, AZ 85701 = Law Firm No. 69000 2 ‘Telephone: (520) 724-5600 2 Attorney for the State 8 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA a 5 IN AND FOR THE COUNTY OF PIMA STATE OF ARIZONA, Pima County Justice Court Docket No. Case No. CR 16-612627-MI Appellee, vs. APPELLEE’S RESPONSE BRIEF ROY WARDEN, Appellant. ‘The State respectfully requests that the judgment of the trial court be upheld. Appellant argues that his online conduct constituted protected political speech and therefore cannot uphold his conviction. However, opinions from both Pima County Superior Court and the Arizona Court of Appeals have held that Appellant’s conduct was non-protected harassing speech. Therefore, there is sufficient evidence supporting Appellant’s conviction. Furthermore, this Court should not issue a statement regarding the State’s duty to seek justice because the State was seeking justice for Mr. Whitaker, the victim in this case, who merely wanted to be free of Appellant's obsessive harassment.BARBARA LAWALL PIMA COUNTY ATTORNEY. 32 NORTH STONE, SUITE 800 TUCSON, ARIZONA 85701 (620) 724-5600 10 art 12 13 14 15 16 7 18 19 20 21 2 MEMORANDUM OF POINTS AND AUTHORITIES: STATEMENT OF FACTS AND PROCEDURAL HISTORY: In March 2016, Appellant, Roy Warden, began harassing Cody Whitaker. On March 3, 2016, Appellant made comments on Facebook that included accusations that Whitaker “[shot] off [his] pathetic, ignorant, racist, hick mouth.” Appellant also threatened to “draw a weapon and blow [his] hick head clean off.” Following these comments and other events, Whitaker requested an injunction to prevent Appellant from contacting him or his wife. On March 7, 2016, the Superior Court granted an ex-parte injunction pursuant to A.R.S. § 12-1809, and ordered Appellant not to contact Whitaker or his wife. After the injunction, Appellant continued to contact and harass Whitaker. Between March 7, 2016 and October 6, 2016, Appellant posted on Facebook 32 separate times; many of those posts were shared with others online. For example, on April 16, 2016, Appellant responded to a comment thread that included Whitaker and called him “a red- necked thug.” Appellant tagged Whitaker in the response. Appellant also replied to a Facebook post made by Whitaker, claiming that Whitaker has “never done anything for vets, but talk” and again tagged Whitaker in the reply. On the same day, Appellant also tagged Whitaker in two other posts. Appellant also posted articles that he wrote with titles such as, “Is ‘Iron Clyde” Cody Whitaker Confused About His Sexuality?” in which Appellant refers to Whitaker's “steroid-shriveled ‘junk,’” and asks if Whitaker went through “the ‘Bruce Jenner’ ” Appellant also wrote a later article titled “Cody Whitakers ConfusedBARBARA LAWALL PIMA COUNTY ATTORNEY 32 NORTH STONE, SUITE 800 ‘TUCSON, ARIZONA 85701 (620) 724-5600 10 Tt 12 13 14 15 16 17 18 19 20 21 2 Sexuality.” Appellant replied to Whitaker’s Facebook posts linking to this article, and later would send Whitaker articles through email. Appellant appealed the March 7, 2016 injunction. Judge Simmons, of Superior Court, stated that “[t]he sole issue” was whether Appellant’s actions “form[ed] a statutory basis for an Injunction Against Harassment and, if they do, whether those actions are protected.” Minute Entry, at p.2 (Aug. 2, 2016). The Court held, as a matter of law, that, Appellant's comments: were remarks that would cause a reasonable person to be seriously alarmed, annoyed, or harassed and that did cause Mr. Whitaker to be alarmed, annoyed, or harassed. These remarks are personal attacks that serve no legitimate purpose and did not involve a matter of public concern. Id, at 3-4, The Court modified the original injunction to allow contact between Appellant and Whitaker, but still prohibited Appellant from going to Whitaker's house or threatening Whitaker outside of self defense situations. Further, the court ordered Appellant to keep any comments directed at or made to Whitaker free of “lewd, obscene, or profane remarks or which are personal attacks.” Id. at 4 Appellant again appealed, and the Court of Appeals upheld the revised injunction stating that “[wJhat is at issue here . .. is not pure political speech, but rather annoying alarming, and harassing behavior.” Whitaker v. Warden, No. CA-CV 2016-0160, § 12 (Ariz. Ct. App. June 13, 2017). The injunction against Appellant was “content-neutral” and only prohibited communication with one person, Whitaker. Jd, 15. Further, the revised injunction did not try to limit Appellant’s political speech or comments on Whitaker's ideas, only the manner in which Appellant communicated his responses. /d.BARBARA LAWALL PIMA COUNTY ATTORNEY TUCSON, ARIZONA 85701 32 NORTH STONE, SUITE 800 (620) 724-5600 10 uw 12 13 14 15 16 17 18 19 20 21 22 $4 16-17. In upholding the revised injunction, the court analyzed Appellant's conduct under § 12-1809. On August 2, 2016, the State charged Appellant with: Count 1, Harassment under ARS. § 13-2921, and Count 2, Interfering with Judicial Proceedings under A.R.S. § 13- 2810(A)(2),(B). On May 5, 2019, at Appellant's bench trial, Judge Roberts of the Pima County Consolidated Justice Court found Appellant guilty of Count 1, and acquitted Appellant of Count 2. Appellant now appeals and challenges his conviction arguing that his conduct was protected speech under the First Amendment and that the trial court ignored binding precedent which otherwise prohibited his prosecution. ISSUES PRESENTED: 1, Whether Appellant’s conduct was protected political speech prohibiting his harassment conviction under A.R.S. § 13-2921? 2. Whether Appellant’s conviction violates binding precedent or associated rulings? STANDARD OF REVIEW: Claims of insufficient evidence are reviewed de novo, viewing the evidence in the light most favorable to upholding the verdict. State v, Bible, 175 Ariz. 549, 595 (1993). A conviction must be upheld, despite a defendant's claim of insufficient evidence, if “substantial evidence” supports the finding. State v. Roque, 213 Ariz. 193, 93 (2006). “Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of [the] defendant’s guilt beyond a reasonable doubt.” Id, (internal citation and quotation omitted). “To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.” State v. Arredondo, 155 Ariz. 4TUCSON, ARIZONA 85701 (620) 724-5600 BARBARA LAWALL PIMA COUNTY ATTORNEY 32 NORTH STONE, SUITE 600 10 u 12 13 14 15 16 17 18 19 20 2 2 314, 316 (1987). If reasonable minds could differ as to whether the evidence and all inferences from it prove the offense, the verdict should stand. State v, Fischer, 219 Ariz. 408, § 39 (App. 2008). LAW AND ARGUME! I. APELLANT’S CONDUCT WAS NOT PROTECTED SPEECH AND SUPPORTS HIS CONVICTION. One commits harassment if he or she intentionally or knowingly “contacts, communicates or causes a communication with another person by verbal, electronic . or written means in a manner that harasses.” A.R.S. § 13-2921(A)(1). Harassment is “conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person.” A.R.S. § 13-2921(E). In State v. Brown, the Court of Appeals held that “§ 13-2921 regulates neither constitutionally protected speech nor expressive conduct and, thus, does not implicate the First Amendment.” 207 Ariz. 231, 14 (App. 2004). The court stated that “personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act . . . raise[s] no question under that instrument.” Id. § 8 quoting Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940). Section 13-2921 regulates the “manner” and “purpose” of the speech, not the content. Id. 9. Therefore, “the statute does not apply to pure First Amendment speech” because it is aimed at the conduct of an individual who has a clear intent to target a specific person and to harass that person in such a way that a reasonable person would be alarmed, annoyed, or harassed. Id. | 10.BARBARA LAWALL PIMA COUNTY ATTORNEY 32 NORTH STONE, SUITE 800 TUCSON, ARIZONA 85701 (620) 724-5600, 10 rr 12 13 14 15 16 17 18 19 20 21 22 Here, sufficient evidence supports Appellant’s conviction, and the State properly charged Appellant under the statute for his continued harassment of Whitaker. Brown's binding decision found § 13-2921 constitutiorfal under a First Amendment challenge because the Constitution does not protect targeted, abusive language. Appellant's “vigorous political debate” was not protected speech because he aimed it at Whitaker's personal qualities, and not Whitaker’s political beliefs or his role as a political figure. Appellant repeatedly and openly attacked Whitaker’s background, education, intelligence, and sexuality through online articles, posts, tagging, and email. Appellant contacted Whitaker through his own Facebook page and Whitaker’s. Appellant is free to disagree with Whitaker's beliefs, but what Appellant is not free to do is target Whitaker online or in person in a harassing manner. Therefore, the statute under which Appellant was convicted is constitutional, and Appellant’s conduct is exactly the behavior the statute seeks to prohibit. Accordingly, this Court should uphold Appellant's conviction. Il. NEITHER LAFARO NOR APPELLANT'S INJUCTION RELATED APPELLATE DECISIONS FORBID HIS PROSECTION. Appellant cites to LaFaro v. Cahill to assert that A-R.S. § 13-2921 and the County Attorney unconstitutionally interfered with his right to publish political commentary. 203 Ariz, 482 (App. 2002). Specially, Appellant argues that LaFaro “forbids” his prosecution. Appellant Opening Brief, at p. 2. In Lafaro, the court determined that a § 12- 1809 injunction violated the appellant’s First Amendment rights as applied because the injunction was not limited to allow the defendant to express his disagreement and political views. 203 Ariz. 482, 417. The injunction prohibited all “in person” contact which was unconstitutional because it prevented the appellant from participating in 6BARBARA LAWALL PIMA COUNTY ATTORNEY TUCSON, ARIZONA 85701 32 NORTH STONE, SUITE 800 (620) 724-5600 10 it 12 13 14 15 16 17 18 19 20 21 22 certain political events. /d, LaFaro held that that § 12-1809 injunctions cannot be used to constrain political speech, and therefore do not apply to political speech. Jd. § 22. However, the court stated that § 12-1809 is not facially unconstitutional and that “the protection of citizens from harassment—a legitimate and laudable goal—is not incompatible with the protection and exercise of free speech, especially with a common- sense interpretation of the statute.” /d. § 22. Harassment under § 12-1809 excludes “pure political speech” and the statute is properly applied against speech which “serves no legitimate purpose.” Id. § 23. Here, Appellant misapplies LaFaro, which neither mentioned nor considered the statute under which Appellant was charged. In LaFaro, the defendant challenged an injunction that was filed pursuant to § 12-1809. In this case, the trial court found Appellant guilty under § 13-2921 and not guilty of violating the § 12-1809 injunction. Further, both the Superior Court and the Court of Appeals found that Appellant's conduct served no legitimate purpose and was not protected free speech. Therefore, even if LaFaro was relevant, Appellant's claim would still be unavailing. Even applying LaFaro’s analysis to § 13-2921, Appellant’s speech would still be harassment because, as both appellate decisions state, Appellant’s speech had no legitimate purpose when he repeatedly called Whitaker a red-neck thug. Lastly, Appellant alleges that the trial court ignored previous Superior Court and Appellate Court Opinions which forbid his prosecution because they did not hold him in civil contempt. First, there is no mention in either opinion explicitly denying that Appellant was not in contempt. Second, this is irrelevant because Appellant was notBARBARA LAWALL PIMA COUNTY ATTORNEY ‘32 NORTH STONE, SUITE 600 "TUCSON, ARIZONA 85701 (620) 724-5800 10 ul 12 13 14 15 16 17 19 20 2 2 convicted of being in contempt of the injunction. Therefore, Appellant's argument is moot. Regardless, those opinions dealt with the initial injunction, not whether ‘Appellant’s post-injunction conduct was harassment. Both courts held that Appellant was not engaged in protected speech, and did harass Whitaker. Appellant being a political activist does not make all of his speech political and protected. For the foregoing reasons, the State requests that this Court deny Appellant’s Appeal and uphold Appellant's conviction, CONCLUSIO! The State respectfully requests that this Court deny Appellant’s Appeal to have his guilty sentence revoked and a verdict of not guilty entered, Appellant was convicted under a constitutional statute, and Appellant's speech was not protected. Appellant targeted Whitaker and subjected him to Facebook tagging, posts, and articles all attacking Whitaker’s intelligence, background, sexuality, and person. There was no political discussion, much less any attempted constructive exchange of ideas. Furthermore, this, Court should not issue a statement regarding the State’s duty to seek justice because the State was in fact seeking justice for the victim. Accordingly, Appellant’s Opening Brief should be denied, RESPECTFULLY SUBMITTED this 3\ day of July, 2019. BARBARA LAWALL PIMA COUNTY ATTORNEY Deputy County Attomey 8BARBARA LAWALL PIMA COUNTY ATTORNEY 32 NORTH STONE, SUITE 800 TUCSON, ARIZONA 85701 (620) 724-5600 10 oat 12 13 14 15 16 17 18 19 20 21 CERTIFICATE OF SERVICE STATE OF ARIZONA ) ) County of Pima ) Jason Gannon hereby certifies that she is a Deputy County Attorney of Pima County in the above-entitled action and that on the 3| day of July, 2019 he caused to be delivered and/or mailed the following: APPELLEE’S RESPONSE BRIEF That the original and one copy of the foregoing documents were delivered to: Pima County Superior Court 110 West Congress Street Tucson, Arizona 85701 That one copy of the foregoing document was delivered to: Roy Warden, Publisher Arizona Common Sense 6502 E. Golf Links Road #267 Tucson, AZ 85730 520-551-3496 roywarden@hotmail.com