The Washington Supreme Court’s decision in State v. Calloway, No. 103374-5 (filed March 19, 2026), is an important case on Washington felony harassment law, the First Amendment, and jury instructions in “true threat” prosecutions. The court held that Washington’s felony harassment statute, RCW 9A.46.020, is not facially unconstitutional after the United States Supreme Court’s decision in Counterman v. Colorado. But the court also held that the jury instruction used at trial was wrong because it allowed conviction based on a negligence-style understanding of a true threat rather than the recklessness standard required by Counterman.
That means the statute survives, but the conviction does not simply stand untouched. The case was remanded for further harmless error analysis.
Background of the Case
Turner Lee Calloway and A.D. had been close friends for about 10 years. According to the opinion, the friendship was platonic, though Calloway had earlier been romantically interested in A.D. Their relationship had periods of conflict, including a year when they did not speak, but they reconciled in October 2021.
That reconciliation quickly fell apart. A.D. testified that on October 31, 2021, Calloway repeatedly called her, left degrading and threatening voicemails, and escalated throughout the day. She testified that he said things like, “you’re going to die today” and “I’m on my way to kill you.” She also testified that he threatened to kidnap her and threatened to kill both her and a man who joined a three-way call pretending to be her boyfriend.
A responding deputy testified that A.D. was crying and shaking when police arrived. While the deputy was there, A.D.’s phone kept ringing. She answered some calls on speakerphone, and eventually the deputy spoke directly with Calloway, who allegedly said he was outside and was going to kill A.D. Officers later saw a truck A.D. identified as Calloway’s and another deputy stopped it about 30 blocks away.
Calloway denied making threats. He testified that he had gone to see why A.D.’s supposed boyfriend had threatened to kill him. A jury acquitted him of stalking but convicted him of felony harassment.
The First Amendment Issue in Washington Felony Harassment Law
The legal issue changed while the case was on appeal. During that appeal, the United States Supreme Court decided Counterman v. Colorado, holding that the First Amendment requires proof of at least recklessness in true threat prosecutions. In other words, criminal liability cannot rest only on whether a reasonable person would interpret the statement as threatening. The State must prove the speaker consciously disregarded a substantial risk that the statements would be viewed as threats.
Calloway argued that this new rule made Washington’s harassment statute unconstitutional because Washington cases had previously approved a negligence-based true threat standard. He also argued that the jury instructions in his case were therefore erroneous.
Why the Court Upheld the Statute
RCW 9A.46.020 Survived the Facial Challenge
The Washington Supreme Court rejected Calloway’s facial constitutional challenge. The court emphasized that a statute is facially unconstitutional only if there is no set of circumstances in which it can be constitutionally applied.
The court held that RCW 9A.46.020 does not require the State to prove a true threat using negligence, and it does not prevent the State from proving a true threat using recklessness. The statute requires proof that the defendant knowingly threatens another person, and nothing in the statutory text blocks a constitutionally proper application after Counterman.
So the court’s basic conclusion was straightforward: the statute itself is not invalid just because prior jury instructions or prior case law used the wrong mental-state standard.
The Jury Instruction Was Still Wrong
The “True Threat” Definition Used Negligence
Even though the statute survived, the jury instruction in Calloway’s case did not. The jury was instructed that a threat exists when, in context, “a reasonable person, in the position of the speaker, would foresee” the statement would be interpreted as a serious intent to carry out the threat.
That was the problem.
After Counterman, that is not enough. The required constitutional minimum is recklessness, not negligence. The jury needed to understand that it had to find that Calloway was at least aware of a substantial risk that others would regard his statements as threatening violence, and that he made them anyway.
Because the instruction used the older negligence-style definition, the Washington Supreme Court held that it was erroneous.
Why the Court Did Not Simply Reverse the Conviction
The court did not immediately vacate the conviction. Instead, it remanded for the Court of Appeals to decide whether the instructional error was harmless beyond a reasonable doubt under the standard clarified in State v. Magaña-Arévalo.
That matters because constitutional instructional errors do not always require automatic reversal. A reviewing court must look at the whole record, including the strength of the evidence and the prejudicial impact of the error. If the court can conclude beyond a reasonable doubt that the verdict would have been the same, the conviction may still stand.
Here, the Supreme Court did not complete that harmless error analysis itself. It sent the case back for that determination.
The Concurrence Took a Different Approach
Justice Gordon McCloud agreed with the result but not the majority’s reasoning. The concurrence argued that Counterman changed an actual element of felony harassment law in Washington because prior Washington precedent had treated negligence as sufficient. In the concurrence’s view, Washington courts should candidly recognize that earlier interpretations were wrong and should interpret RCW 9A.46.020 to require that the statute’s “knowingly” mental state applies more broadly, including to the true threat component.
That difference matters for future litigation. The majority said the statute is constitutional because it can be applied constitutionally with proper instructions. The concurrence would go further and reinterpret the statute itself to make that constitutional reading explicit.
Why State v. Calloway Matters
This case is important because it draws a clean line between a statute and the instructions used to apply it. State v. Calloway holds that Washington’s felony harassment statute is still valid, but courts must now ensure that true threat prosecutions comply with Counterman’s recklessness requirement.
For defense lawyers, this case creates a clear argument whenever a jury instruction uses the older objective reasonable-person formulation without the required subjective mental state. For prosecutors, it confirms that felony harassment charges remain viable, but only if the case is presented under constitutionally correct instructions.
In practical terms, Calloway is now a key Washington case on felony harassment, true threats, and how First Amendment doctrine affects criminal jury instructions.
Contact Blanford Law today at ken@blanfordlaw.com or 253-720-9304 for guidance on your legal matter.
Additional Resources
Beetlejuice Crimes Washington Law
A creative look at how bizarre conduct from a fictional character could translate into criminal charges under Washington law.
https://blanfordlaw.com/beetlejuice-crimes-washington-law/
Gremlins Crimes Washington Law
This article explores how chaotic or destructive conduct can lead to real criminal liability under Washington statutes.
https://blanfordlaw.com/gremlins-crimes-washington-law/
State v. Jackson Decision
A useful case resource for readers interested in how Washington appellate courts analyze criminal convictions and legal error.
https://blanfordlaw.com/state-v-jackson-decision/
55 Failure to Appear, Court, Bail Jump, Jury Nullification
This article discusses Washington criminal procedure issues involving court appearance obligations and related trial concepts.
https://blanfordlaw.com/55-failure-appear-court-bail-jump-jury-nullification/
State v. Stephenson Jury Unanimity
A helpful resource on Washington jury unanimity law and how appellate courts review instructional and verdict issues.
https://blanfordlaw.com/state-v-stephenson-jury-unanimity/