PORT ANGELES — A Sedro-Woolley man, serving more than a decade in prison after setting a former girlfriend’s Beaver house on fire on New Year’s Day 2016, had his sentence reduced by two years after the state Court of Appeals threw out convictions for cyberstalking and telephone harassment.
Marshall Jay Lewis, 41, was re-sentenced last week to 8½ years followed by 18 months of community custody by Clallam County Superior Court Judge Brent Basden.
Basden reimposed the original judgment and sentence for first-degree arson with domestic violence and residential burglary with domestic violence, rejecting Lewis’ pleas that he is a changed man.
Lewis was convicted April 3, 2018.
The justices ruled Superior Court Judge Brian Coughenour, who retired June 1, violated Lewis’ First Amendment right by not instructing the seven-woman, five-man jury of the legal definition of a “true threat to injury” suffered by the victim from the cyberstalking and harassment, according to the appeals court’s opinion dated March 3, 2020.
The justices mandated their ruling to Clallam County Superior Court for further proceedings Oct. 7.
Seattle appellate lawyer Suzanne Lee Elliott, representing Lewis, successfully argued that Coughenour’s omission could have caused the jury to convict Lewis based on speech protected by the Constitution.
Lewis communicated with the victim at least 38 times via email and twice via voicemail, from New Year’s Eve afternoon 2015 to early New Year’s Day 2016, before and as he drove from Skagit County to torch her unoccupied home, according to court records.
Lewis was drunk when he told her New Year’s Eve that he was “on my way over that way” to her house, according to court records.
He alternately suggested engaging in lewd sexual acts with her, called her names, said he and his friends were going to follow her, told her “You’re done,” and said he loved her.
According to the state Pattern Jury Instructions, standards issued by the Washington State Administrative Office of the Courts, “To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in (jest or idle talk) (jest, idle talk, or political argument),” according to the ruling.
“Although his words are lewd and offensive, Lewis never actually threatened to inflict bodily injury” on the woman, the court ruled, adding Lewis never said he was going to physically harm her.
“In its oral argument before us, the State was unable to provide an answer to our questions asking counsel to identify the evidence of a true threat for either charge.”
While he threatened to follow her, that is not a threat to harm her, the justices ruled.
“In light of the vague messages and the lack of anything approaching an explicit threat to inflict injury, we cannot say that the trial court’s failure to give the true threat instruction was harmless beyond a reasonable doubt.”
The appeals court also ruled that Coughenour erred by imposing $1,500 in legal financial obligations without determining if Lewis is indigent.
Basden lowered his legal financial obligations to $500.
The Forks High School graduate and former La Push-area executive chef has attended culinary school.
His criminal record includes third-degree rape in 2009 and four violations of a no-contact order in one day in 2013.
Incarcerated at Stafford Creek Corrections Center in Aberdeen as a minimum-security inmate, Lewis told Basden remotely at the Feb. 22 hearing that he has been unable to work while in prison because of COVID-19 restrictions.
Lewis, who did not say anything at his first sentencing, told Basden that he wanted to emphasize “how sorry” he is.
“I’ve been doing walk-the-line redemption classes, taking therapy twice a month, everything to better myself and to understand why I lose my anger and why I do lose my temper,” Lewis said.
“Prison isn’t easy. I mean, it’s a rough place, and I accept responsibility that I did what I did. I’m just, I’m just asking for a chance, that I’m not a wasted person, that I deserve a chance, and that’s all I really want to say.”
It did not sway Basden to change the original 102 months on the arson and burglary charges.
“It is encouraging to hear that you’re taking advantage of some of the programs that are available in the institution that will likely benefit you greatly upon your release,” Basden said.
“But it doesn’t necessarily change the sentence that’s appropriate in this matter.”
That sentence includes, in effect, a lifetime no-contact order with the victim that expires Dec. 31, 2099.
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 55650, or at firstname.lastname@example.org.