FILED JULY 15,2014 In the Office of the Clerk of Court W A State Court of Appeals, Division III
t
I 1 ~ IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 31208-9-111 ) 1 Respondent, ) I ) v. ) 1 ) ADRIAN BENTURA OZUNA, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Adrian Bentura Ozuna appeals his intimidating a witness conviction.
He contends (1) the trial court erred in denying his CrR 3.6 motion to suppress, (2) the 1 record lacks sufficient evidence for the jury to find the communication of an actual threat
j and the presence of gang aggravators, (3) the trial court improperly imposed a domestic 1 violence (DV) assessment and costs of incarceration, and (4) a police officer improperly
provided a sentencing statement. In his pro se statement of additional grounds for
review (SAG), Mr. Ozuna contends the court erred in admitting gang evidence under ER
404(b). We accept the State's error concession concerning the imposition of the DV
assessment, but find no error in Mr. Ozuna's other contentions. Accordingly, we affirm
and remand to delete the DV assessment.
I I I No. 31208-9-111 State v. Ozuna
FACTS
While Mr. Ozuna was incarcerated at the Yakima County Jail on June 8, 2010,
he was moved from one unit to another unit. Before the move, Mr. Ozuna's belongings
were searched. Corrections officers found two letters Mr. Ozuna admits he wrote that
were addressed to "Primo" and signed by "Primo." Report of Proceedings (RP) at 318.
The Washington State Patrol Crime Lab for Forensic Analysis later determined the
handwriting was Mr. Ozuna's. The letters contained threatening language that officers
believed were directed at Augustin Jaime Avalos, Mr. Ozuna's fellow gang member, but
a witness against him in a previous criminal case. One of the letters states, "bad things
come to those that snitch." RP at 279. One letter called the recipient a "fucking trader"
and that another gang "can have him." RP at 279. Soon after, Mr. Avalos was attacked 1 l J in a jail holding cell. He received lacerations to his scalp and his upper lip. David Soto
was the inmate who attacked Mr. Avalos. Mr. Ozuna, Mr. Avalos, and Mr. Soto all have
ties to a gang known as the Sureiios.
On June 25,2010, Mr. Ozuna made a telephone call from the jail. The call
indicated that he had been written up for witness tampering. He wanted to explain to
the judge that he was mad when he wrote the letters.
The State charged Mr. Ozuna with intimidating a witness. The information
contained a special allegation that the offense was committed "with intent to directly or
indirectly cause any benefit, ... to or for criminal street gang" and the offense was
No. 31208-9-111 State v. Ozuna
committed to "obtain or maintain ... membership ... in ... an organization." Clerks
Papers (CP) at 1.
Mr. Ozuna unsuccessfully requested CrR 3.6 suppression of the letters seized
from his cell. During the suppression hearing, a corrections officer testified Mr. Ozuna
was on a watch mail list and inmates on this list have their mail opened. The court
concluded, "The Defendant was placed on the mail watch list based on a prior incident.
As an inmate with a prior similar incident, the defendant has a lessen[ed] expectation
with regards to his mail." CP at 210. The court further concluded, "The defendant also
did not have a reasonable expectation of privacy because the jail had a legitimate
governmental interest in maintaining order and discipline within its confines to preserve
the safety of the staff and other individuals in and out of the jail as well as institutional
security." CP at 210.
Sunnyside Police Officer, Jose J. Ortiz, testified as a gang expert at trial. He
testified that gangs commit various crimes to enhance their personal status and to
further group interests; and all gangs have a snitch code. Officer Ortiz indicated that the
word "campana," which was contained in one of the letters, means the English word
"bell." This referenced the Bel Garden Locos or Lokotes (BGL) gang. Both Mr. Avalos
and Mr. Ozuna are members of the BGL. Officer Ortiz further testified that if a gang
member snitches on another then retaliation will usually occur.
The jury found Mr. Ozuna guilty as charged. The jury found the crime was
committed with the "intent to directly or indirectly cause any benefit, aggrandizement,
gain, profit, or other advantage to or for a criminal street gang." CP at 147. And, the
jury found Mr. Ozuna committed the crime "to obtain or maintain his membership or to
advance his position in the hierarchy of an organization." CP at 148.
During sentencing, Sunnyside Police Detective, Robert Layman, stated,
"Intimidation is the biggest key that keeps gangs in power" and officers "would like, I
guess, a message shown that that's not going to be tolerated." RP (Oct. 16, 2012) at 5.
The sentencing court imposed restitution costs, including $100 for "Domestic
Violence Assessment." CP at 198. The court imposed incarceration costs of "$50.00
per day of incarceration or in the Yakima County Jail at the actual rate of incarceration
but not to exceed $100.00 per day of incarceration." CP at 198.
Mr. Ozuna appealed.
ANALYSIS
A. Suppression Ruling
The issue is whether the trial court erred by denying Mr. Ozuna's CrR 3.6 motion
to suppress the letters. He contends the court erred in concluding he had a lessened
expectation of privacy and the jail had a legitimate governmental interest in maintaining
order and discipline. We disagree.
"We review a trial court's denial of a CrR 3.6 suppression motion to determine
whether substantial evidence supports the trial court's challenged findings of fact and, if
so, whether the findings support the trial court's conclusions of law." State v. Cole, 122
Wn. App. 319, 322-23, 93 P.3d 209 (2004). Mr. Ozuna does not assign error to the trial
No. 31208-9-111 . State v. Ozuna
court's factual findings, so they are verities on appeal. State v. O'Neill, 148 Wn.2d 564,
571,62 P.3d 489 (2003). We review the court's conclusions of law de novo. State v.
Eisfeldt, 163 Wn.2d 628, 634, 185 P.3d 580 (2008).
Although the Supreme Court in Stroud v. United States, 251 U.S. 15, 40 S. Ct.
50,64 L. Ed. 103 (1919), appears to have authorized inspection of prisoners' mail, most
modern decisions recognize that, under Katz v. United States, 389 U.S. 347, 88 S. Ct.
507, 19 L. Ed. 2d 576 (1967), "[T]he focus is on whether the authorities violated a
justified expectation of privacy." 4 WAYNE R. LAFAVE, Search and Seizure § 10.9(c), at
744 (3d ed. 1996).
"One of the primary functions of government is the preservation of societal order
through enforcement of the criminal law, and the maintenance of penal institutions is an
essential part of that task. The identifiable governmental interests at stake in this task
are the preservation of internal order and discipline." Procunier v. Martinez, 416 U.S.
396,412-14,94 S. Ct. 1800,40 L. Ed. 2d 224 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401,109 S. Ct. 1874,104 L. Ed. 2d 459 (1989).
Washington courts applied the Procunier reasoning in State v. Copeland, 15 Wn.
App. 374, 549 P.2d 26 (1976), where prison officials intercepted and read the contents
of a letter written by an inmate who was suspected of being involved in a prison assault.
The court held the evidence was admissible in the inmate's assault trial. Id. at 377-78.
Here, the trial court found that Mr. Ozuna, "a confirmed Sureiios gang member,
had written a note to another gang member. In this letter, the defendant brags about
how he sent another gang member to assault another inmate who he believed to be a
snitch." CP 208-09 (Finding of Fact I). The court further found another letter "was
addressed to another gang member and described how that person can redeem himself
with the Surelios gang by assaulting a rival gang member." CP at 209 (Finding of Fact
I). Next, the court found "[a]s a result of these letters, [Mr. Ozuna] was placed in a mail
watch list. When an inmate is placed in the mail watch list, his outgoing mail is read to
ensure that he is not violating a court order or violating any rules in the jail." CP at 209
(Finding of Fact I). The court then found that evidence showed "the importance of rules I and discipline or internal order within the jail to ensure the safety of the staff and
I everyone in the jail." CP at 209 (Finding of Fact II).
These unchallenged findings are sufficient to show Mr. Ozuna had a lessened
expectation of privacy based on his prior letters and that there was a legitimate
government interest of the jail's to protect other inmates. Accordingly, the trial court did
not err in allowing the evidence and denying Mr. Ozuna's CrR 3.6 motion to suppress.
B. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Ozuna's intimidating a
witness conviction and the gang aggravator. He contends first, he did not communicate
a threat, and second, no evidence shows the incident was gang related.
Evidence is sufficient to support a conviction if, viewed in the light most favorable
to the State, it would permit any rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). An insufficiency claim admits the truth of the State's evidence and
requires that all reasonable inferences be drawn in the State's favor and interpreted
most strongly against the defendant. /d. Circumstantial evidence is equally as reliable
as direct evidence. State v. De/marter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
First, to prove a charge of intimidating a witness, the State must show beyond a
reasonable doubt that Mr. Ozuna, by use of threat against a current or prospective
witness, attempted to influence the testimony of that person or to convince the person to
absent himself or herself from proceedings. RCW 9A.72.11 O. ''Threat'' as used in RCW
9A.72.110 means, "To communicate, directly or indirectly, the intent immediately to use
force against any person who is present at the time; or ... as defined in RCW
9A.04.110(27)."1 RCW 9A.72.110(3)(a)(i), (ii). Under RCW 9A.04.110(28)(a), "threat"
means to communicate, directly or indirectly the intent ... [t]o cause bodily injury in the
future to the person threatened or to any other person."
Here, Mr. Avalos was a witness against Mr. Ozuna in a previous criminal case.
They were members of the same gang. When an officer was moving Mr. Ozuna from
one cell to another he discovered letters with threats that "bad things come to those that
snitch." RP at 279. Mr. Avalos was attacked soon after. Mr. Ozuna argues the letters
alone are insufficient to show a threat was communicated. But, as the State points out,
the letters are circumstantial evidence not direct evidence. And, circumstantial
evidence is equally as reliable as direct evidence. De/marter, 94 Wn.2d at 638.
1 The legislature changed RCW 9A.04.11 0(27) to RCW 9A.04.11 0(28) in 2011.
I I !
1 No. 31208-9-111 State v. Ozuna
Significantly, "[n]o Washington court has ever held that a true threat is an
essential element of any threatening-language crime." State v. Tellez, 141 Wn. App.
479,483, 170 P.3d 75 (2007). Here, in addition to the letters, there is evidence of a
history between the men, testimony about gangs and retaliation, and Mr. Ozuna's
I telephone conversation about being mad when drafting the letters. I l Mr. Ozuna's reliance on State v. Hosier, 157 Wn.2d 1,133 P.3d 936 (2006) is
unpersuasive. There, the court held, "[u]nless a person's message is both transmitted
by the person and received by the minor, the person has not communicated." Id. at 9.
But, the court, there, was addressing the offense of communication with a minor for
immoral purposes, an offense that is distinct with different elements from intimidating a
witness.
We view the evidence in the light most favorable to the State, draw all
reasonable inferences in the State's favor, and interpret this evidence most strongly
against Mr. Ozuna. Applying this standard, we agree the evidence sufficiently supports
the jury finding of the essential elements of intimidating a witness beyond a reasonable
doubt.
Second, a finding of fact supporting an exceptional sentence will be reversed
solely when '''no substantial evidence'" supports it. State v. Jeannotte, 133 Wn.2d 847,
856,947 P.2d 1192 (1997) (quoting State v. Grewe, 117Wn.2d 211, 218, 813 P.2d
1238 (1991)). A court may impose a sentence higher than the standard range if a jury
finds "[t]he defendant committed the offense with the intent to directly or indirectly cause
any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street
gang as defined in RCW 9.94A.030, its reputation, influence, or membership." RCW
9.94A.535(3)(aa). Or, the offense was committed "to obtain or maintain ...
membership or to advance ... position in the hierarchy of the organization." RCW
9.94A.535(3)(s).
Some evidence must show gang involvement actually motivated the defendant to
commit a crime to support RCW 9.94A.535(3)(s)'s gang aggravating factor. State v.
Yarbrough, 151 Wn. App. 66, 210 P.3d 1029 (2009). In Yarbrough, Mr. Yarbrough
yelled gang-related insults and challenges before shooting two people. Id. at 97. The
evidence showed Mr. Yarbrough's gang had a run-in with a rival gang a few days prior
to the shooting and Mr. Yarbrough believed the victims were members of that rival
gang. Id. In State v. Monschke, 133 Wn. App. 313, 135 P.3d 966 (2006), Mr.
Monschke and three other white supremacists beat a homeless man to death. Id. at
318-19. In both cases, some evidence showed the defendants committed their crimes
because of their gang membership. Testimony from police or other gang experts is
insufficient, standing alone, to support the aggravating factor. State v. Blueshorse, 159
Wn. App. 410, 431,248 P.3d 537 (2011).
Here, Mr. Ozuna was a member of the Surerios gang and wrote letters
referencing a gang. A gang expert testified without objection to gangs and gang culture.
He was asked specific questions based on his expertise regarding signs, rules and
orders. The officer testified specifically about the content of the letters pointing out
I No. 31208-9-111 State v. Ozuna
specific BGL gang sections. The officer pointed to specific passages and sections in
the seized letters, as well as the signature that would identify that this letter was written
by a person who was a BGL. The officer testified to actions taken against a person who
was declared a "RATA" or rat; a snitch. RP at 446. The officer addressed breaking the
silence code and consequent retaliation. Lastly, the officer testified to the reputation of
a gang member who had been snitched on and did nothing in return.
Based on the above, the jury could, in weighing the testimony and deciding
credibility from the sufficient evidence presented, infer the offense was committed to
directly or indirectly cause benefit to a gang or to advance Mr. Ozuna's position in a
gang. Considering all, we conclude the evidence is sufficient to prove the gang
aggravator. Therefore, the sentencing court properly imposed an exceptional sentence.
C. Sentencing Hearing Remarks
The issue is whether the sentencing court improperly considered Detective
Layman's statement during Mr. Ozuna's sentencing hearing. Mr. Ozuna contends
allowing an officer to provide a statement at a sentencing hearing is inappropriate.
Mr. Ozuna fails to provide legal authority to support his argument. On the other
hand, RCW 9.94A.500 provides that prior to sentencing "[t]he court shall ... allow
arguments from the prosecutor, the defense counsel, the offender, the victim, the
survivor of the victim, or a representative of the victim or survivor, and an investigative
law enforcement officer as to the sentence to be imposed." Detective Layman was a
law enforcement officer, who requested a high-end sentence because "[i]ntimidation is
the biggest key that keeps gangs in power" and officers "would like, I guess, a message
shown that that's not going to be tolerated." RP (Oct. 16,2012) at 5. Under RCW
9.94A.500, his statement was properly considered by the court prior to sentencing.
D. DV Assessment and Costs
The issue is whether the sentencing court erred by imposing a DV assessment
and costs of incarceration. The State concedes the DV assessment was wrongly
imposed. Because the offense does not involve domestic violence, we accept the
State's concession and rem?lnd for sentence correction. See State v. Naillieux, 158
Wn. App. 630, 646, 241 P.3d 1280 (2010) (remedy for minor error in judgment and
sentence is remand to the trial court for correction).
Turning to the costs of incarceration, for the first time on appeal, Mr. Ozuna
contends the court erred in not making a determination on the record regarding his
current or future ability to pay costs of incarceration. Mr. Ozuna asks us to strike the
requirement that he pay costs of incarceration, but we note under RAP 2.5(a)(3), solely
manifest errors implicating a specifically identified constitutional right may be raised for
the first time on appeal.
In State v. Blazina, 174 Wn. App. 906, 911,301 P.3d 492, review granted, 178
Wn.2d 1010,311 P.3d 27 (2013), Division Two of this court held that legal financial
obligation 2 (LFO) issues may not be raised for the first time on appeal. Agreeing with
2 "[Clost of incarceration" imposed by RCW 9.94A.760(2) fall within the broad definition of "legal financial obligations." In re Pers. Restraint of Pierce, 173 Wn.2d 372, 379,268 P.3d 907 (2011).
Blazina, this court recently held, "The ability to pay LFOs is not an issue that defendants
overlook-it is one that they reasonably waive - we view this as precisely the sort of
issue we should decline to consider for the first time on appeal." State v. Duncan,_ Wn. App. _ , _ P.3d _ (2014 WL 1225910 at *4 (Mar. 25, 2014). Based on recent
legal authority, Mr. Ozuna is precluded from raising the costs issue for the first time on
appeal.
E. Gang Affiliation Evidence
In his pro se SAG, Mr. Ozuna alleges the trial court abused its discretion when it .
admitted evidence of gang affiliation under ER 404(b). We disagree.
We review ER 404(b) evidentiary rulings for abuse of discretion. Yarbrough, 151
Wn. App. at 81. A trial court abuses its discretion when its decision is manifestly
unreasonable or exercised on untenable grounds or for untenable reasons. State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007). A trial court abuses its discretion
when it relies on unsupported facts, takes a view that no reasonable person would take,
applies an incorrect legal standard, or bases its ruling on an erroneous legal view. Id. at
284.
Courts consider evidence of gang affiliation prejudicial. State v. Asaeli, 150 Wn.
App. 543, 579, 208 P.3d 1136 (2009) (noting "the inflammatory nature of gang evidence
generally"). Therefore, a nexus must exist between the crime and the gang before the
trial court may find the evidence relevant. State v. Scott, 151 Wn. App. 520,526,213
P.3d 71 (2009). Courts may admit gang affiliation evidence to establish the motive for a
crime or to show that defendants acted in concert. Id. at 527. Gang evidence falls
within the scope of ER 404{b). Yarbrough, 151 Wn. App. at 81. A trial court may admit
gang evidence offered for proof of motive, intent, or identity. Id. But before the trial
court may admit such evidence, it must U(1) find by a preponderance of the evidence
that the misconduct occurred, (2) identify the purpose for which the evidence is sought
to be introduced, (3) determine whether the evidence is relevant to prove an element of
the crime charged, and (4) weigh the probative value against the prejudicial effect." Id.
at 81-82.
Mr. Ozuna failed to object to evidence regarding his gang membership under ER
404(b). Indeed, evidence presented shows he was a self-professed Surenos member.
Because Mr. Ozuna did not object at trial to the State's gang evidence on ER 404{b)
grounds, we will not address this argument for the first time on appeal. See State v.
Boast, 87 Wn.2d 447, 451, 553 P .2d 1322 (1976) (party may assign error in appellate
court only on specific ground of evidentiary objection made at trial).
Affirmed and remanded for sentence correction.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J. .
1CONCUR:
No. 3l208-9-III
SIDDOWAY, C.J. (dissenting in part) - The State lacked evidence that Adrian
Bentura Ozuna shared with anyone the contents of his unsealed, unstamped letter
pledging vengeance against a witness, which corrections officers found in Mr. Ozuna's
personal effects at the county jail. When Augustin Jaime Avalos (the evident target of
the letter) was assaulted in a holding cell a month after Mr. Ozuna's letter was
discovered, the State developed no evidence that Mr. Ozuna had communicated with
David Soto, who was ultimately charged with the assault.
The State's evidence against Mr. Ozuna amounted to evidence of a vengeful
attitude but it included no evidence of when or where he is believed to have
communicated that threat to anyone else. For the gang aggravators, the State offered only
evidence that Mr. Ozuna wanted to see Mr. Avalos punished and that Mr. Avalos was
thereafter assaulted. Our standard for reviewing the jury's findings that Mr. Ozuna is
guilty of intimidating a witness and of two gang aggravators is highly deferential but we
must still be satisfied that a rational juror could have found guilt "beyond a reasonable
doubt." This is the rare case where insufficient evidence supports the jury's verdict.
More details on the timeline and events will help demonstrate my concern. It was
on June 8, 2010 that corrections officers found two letters in Mr. Ozuna's belongings No. 31208-9-111 - dissent State v. Ozuna
during a cell change, only one of which included the threats resulting in the State's
charge. That four-page handwritten letter was addressed to "Primo" and was also signed
"Primo," meaning "cousin." It can clearly be read as expressing the writer's request that
vengeance be carried out against a witness. The jury was instructed on what was required
for a true threat and substantial evidence supported the jury's implicit finding that the
letter contained true threats. There was substantial evidence that the letter was written by
Mr. Ozuna; by the time of trial, the defense admitted that he wrote it. There was
substantial evidence that the witness that Mr. Ozuna wanted to see punished was Mr.
Avalos, who had testified against Mr. Ozuna in connection with a crime committed in
2008 for which Mr. Ozuna was soon to be sentenced. The letter is reasonably read to ask
that action be taken on June 25, the date set for Mr. Ozuna's sentencing:
So now you know what 1 want primo, don't hesitate vato. take action reep the rewards later. Don't think, just act. thinking is already hesitating. hit me up when after the shit get's handled. Do it on the 25 cause that's when 1 have court, 1 want to have a smile on my face that day knowing that, that fool's getting a lil tast of what's comeing to him. The 25 is the day 1 get sentenced. Good looking out primo, don't let me down fucker! 1 knew 1 could depend on you, a lillate but better late than never, que-no.
State Ex. ID (errors in original).
At issue is whether the threats reflected in the letter were communicated. The
letter was found in an unsealed, unstamped envelope, although it was addressed to Laura
Garces and bore, as a return address, another inmate's name and number. No evidence
was offered as to the existence of a person named "Laura Garces" and defense counsel
1 I No. 31208-9-III - dissent
State v. Ozuna
argued during closing, and without objection, that "[n]obody seems to know who Laura
Garces was." Report of Proceedings (RP) at 547. f I After being seized by corrections officers on June 8, the letters were turned over ~
I on June 14 to Detective Erica Rollinger, who had arrested Mr. Ozuna and Mr. Avalos for
the 2008 crime for which Mr. Ozuna was about to be sentenced. Detective Rollinger.met
I ! with Mr. Avalos on June 22 and showed him the threatening letter. The detective's ! presentation of the letter to Mr. Avalos was the first time he saw the letter or heard that i I I Mr. Ozuna was making threats. i
I At 6:26 a.m. on the morning of the June 25 sentencing date, jail personnel I , recorded a telephone call from Mr. Ozuna that Detective Rollinger later listened to and
construed to be between Mr. Ozuna and several people on the receiving end of the call,
including, she believed, Mr. Ozuna's father. Among other things, Mr. Ozuna and
whomever he called discussed the afternoon's sentencing. The State offered the
recording as an admission by Mr. Ozuna that he was the writer of the threatening letter;
during the conversation, he told the person whom Detective Rollinger believed to be his
father that jail staff had written him up for threatening a witness and he was concerned
the letter would be brought to the attention of the sentencing judge. He explained how he
planned to deal with the letter if it came up:
If anything I'm going to try to be prepared and I'm like hey man, you've got to understand, you know, I'm doing ten years because of this gato and I was mad and-[inaudible on tape-language]-you know? Try to just set
No. 3l208-9-II1 dissent State v. Ozuna
that whole shit down. Hey, I wrote it in-in a time of passion and, you know?
RP at 390 (alteration in original). No transcript of the sentencing hearing is included in
the record on appeal, so we do not know whether the letter or the sanctions imposed on
Mr. Ozuna for possessing it were raised during the sentencing hearing.
A couple of weeks after Mr. Ozuna's sentencing, a transport officer who was
escorting a lawyer into a holding area to see an inmate found Mr. Avalos on the floor of
the holding area, bleeding profusely from what appeared to be a head wound. There were
seven other individuals in the holding area at the time. Mr. Avalos claims that he was
struck in the back of the head and fell, hitting a bench. He was treated for a laceration on
the back of the head and a lacerated upper lip. The individuals in the holding area at the
time were not cooperative when the transport officer questioned them about what had
happened. It is undisputed that Mr. Ozuna was in custody on a different floor of the jail
at the time of the assault.
The State eventually charged David Soto with the assault on Mr. Avalos. While
the State would later present evidence that Mr. Soto was a member of the Surefios, the
same gang to which Mr. Ozuna belonged, it offered no evidence of any other connection
or communications between the two.
Mr. Ozuna argues that the State presented insufficient evidence of the intimidation
charge or the two gang aggravators found by the jury.
No. 31208-9-III dissent State v. Ozuna
With respect to his conviction for intimidation of a witness, Mr. Ozuna challenges
the sufficiency of the evidence to establish that he "direct[ed] a threat to a former
witness," a component of the crime on which the jury was instructed. RCW
9A.72.11 0(2) (emphasis added).] He argues that what was missing from the State's
evidence was evidence of any "communication" of the threat as required by former RCW
9A.04.11O(27) (2007) (now subsection (28) of the statute) on which the jury was also
instructed, as follows:
["]Threat["] means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened; or to do any other act which is intended to harm substantially the person threatened with respect to his health or safety.
Clerk's Papers at 160 (Instruction 8) (emphasis added).
1 The to-convict instruction read, in its entirety: To convict the defendant of the crime of Intimidating a Witness, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about or between June 8, 2010 and July 9, 2010, the defendant directed a threat to a former witness because ofthe witness' role in an official proceeding; and (2) That this act occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of gUilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to anyone of these elements, then it will be your duty to return a verdict of not guilty. Clerk's Papers at 157 (instruction 5).
The State appears to defend the sufficiency of its evidence against Mr. Ozuna on
two alternative grounds. With respect to the intimidating a witness charge, it makes one
argument that we should read State v. Hansen, 122 Wn.2d 712, 862 P.2d 117 (1993);
State v. Anderson, 111 Wn. App. 317, 44 P.3d 857 (2002); and State v. Williamson, l31
Wn. App. 1, 86 P.3d 1221 (2004) as requiring no communication to a third party at all,
but only the writing-down of a threat against a fonner witness.
As alternative support for the sufficiency of the intimidation evidence and as
support for the sufficiency of evidence to support the jury's findings of the gang
aggravators, it argues that the fact that an assault occurred on July 9 is sufficient
circumstantial evidence that Mr. Ozuna communicated the threat to some third party
sometime before July 9. I address the State's arguments in tum.
Hansen, Anderson, and Williamson as authority that no communication to another person is required
In Hansen, our Supreme Court construed statutory language and a definition
associated with the crime of intimidating a judge. The defendant had verbally expressed
a threat '''to get a gun and blow ... away'" a judge-not to the judge, but in a
conversation with a lawyer. 122 Wn.2d at 715. At issue was whether, to prove that a
threat was "directed" at a judge, the State was required to prove that the defendant's
threat was made with the intention or knowledge that it would reach the judge.
The statute defining the crime of intimidating a judge examined in Hansen is
virtually identical to the language defining the crime of intimidating a witness with which
we are concerned. See RCW 9A.72.160 (criminalizing, inter alia, "direct[ing] a threat to
a judge because of a ruling or decision of the judge in any official proceeding"). RCW
9A.72.l60 and RCW 9A.72.110 both incorporate the definition of ''threat'' as defined in
RCW 9A.04.llO. It includes the threat of future harm relevant in both cases:
"communicat[ing], directly or indirectly the intent [t]o cause bodily injury in the future to
the person threatened or to any other person." Former RCW 9A.04.l10(27)(a) (emphasis
added).
The five-member majority in Hansen held that to prove intimidation of a judge,
the State was not required to prove that a threat was made by a defendant with the intent
or knowledge that it would reach the judge, explaining that the statutory definition
evidences a clear intent by the Legislature that RCW 9A. 72.160 include threats communicated in an indirect fashion as well as direct threats. To carry out this legislative intent ... the statute must be construed as a whole by incorporating the definition. . .. Under this interpretation, whoever threatens a judge, either directly or indirectly, e.g., through a third person, because of an official ruling or decision by that particular judge, is chargeable under RCW 9A.72.160.
122 Wn.2d at 718 (emphasis added).
The four members of the Supreme Court who concurred or dissented in Hansen
were of the view that the statute should be construed to require that a defendant intended
or was aware that his threat would be communicated to the target judge. One justice
No. 31208-9-III - dissent State v. Ozuna
concurred in the result of the majority's opinion on the basis that the evidence was
sufficient to establish the defendant's intent or knowledge that the threat would be
communicated. Three justices dissented on the basis that the evidence was insufficient to
establish that intent or knowledge on the part of the defendant.
In Anderson, this court applied Hansen's construction of the judicial intimidation
statute to the witness intimidation statute, finding their subject matter and purposes to be
the same. The defendant in Anderson communicated a threat to harm his community
corrections officer and a child protective services (CPS) investigator in phone calls and a
letter directed to third parties. The letter, which the defendant sent to his mother,
included a notation, '''Throw this in the trash when done reading it please!'" III Wn.
App. at 320. The defendant argued that he never intended his threats to be communicated
to his community custody officer and the CPS investigator. This court held, citing
Hansen, that his intent in that regard did not matter; "[i]t is enough if threats are directed
to a third party." Id. at 322.
Williamson involved the same context of witness intimidation committed
indirectly; the defendant spoke with one victim, asking him to convey to another victim a
threat of adverse consequences if she were to testifY against him. The Williamson court
cited Hansen and Anderson for their holdings that intimidation statutes are violated even
if the threat is not communicated to the victim.
Hansen, Anderson, and Williamson do not support the conclusion that the letter
alone is sufficient evidence of intimidating a witness; accepting the State's position that
the letter is sufficient requires going beyond the holdings of those three cases and holding,
in effect, that a defendant can "communicate" a threat merely by writing it down.
The statute does not define "communicate." Where there is no statutory definition
to guide us, words should be given their ordinary meaning. State v. Roden, 179 Wn.2d
893,904,321 P.3d 1183 (2014). The transitive verb "communicate" is defined to mean
"2a : to make known: inform a person of: convey the knowledge or information of <~ the
news> <~ his secret to a friend> b: IMPART, TRANSMIT <~ his pleasure to us>
odor communicated to one's fingers> ."
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1993). "Communicate"
cannot reasonably be understood to include the creation of a private record. Proof that Mr.
Ozuna wrote the letter, standing alone, is insufficient to prove intimidation of a witness.
The July 9 assault ofMr. Avalos as "circumstantial evidence" that Mr. Ozuna communicated his threats to a third person and as support for the gang aggravators
Alternatively, the State relies on its proof that Mr. Avalos was assaulted on July 9
as circumstantial evidence that Mr. Ozuna conveyed his threats to a third party.
During the course of trial, the jury was presented with evidence, mostly from the
State's witnesses, that having testified against a fellow Surefio Mr. Avalos faced a risk of
harm from multiple quarters.
No. 31208-9-111 dissent State v. Ozuna
Corrections Lieutenant Gordon Costello testified that the statement "bad things
come to those that snitch" was a true statement in his experience as a corrections officer,
that it was not always the person who gets "snitched on" that does the "bad things," and
that revenge based on snitching was "common injail[,] period." RP at 279,286-87,289.
Transport Officer Roberta Gamino testified that it is dangerous to be a snitch and that
many inmates will attack a snitch. RP at 301-02. Police Officer Jose Jaime Ortiz, the
State's expert on gang culture, testified that a "no snitch code" is one of the "main
staples" of gang culture. RP at 437. While he testified that the directive to retaliate
against a snitch must generally come from someone with a mid- to upper-level status in a
gang, he did not suggest that Mr. Ozuna was the only one who could have given the
directive to assault Mr. Avalos and he acknowledged that sometimes evenjunior
members of a gang wilI take retaliatory action although not authorized to do so. Mr.
Avalos testified himself that when he spoke with Detective Rollinger about Mr. Ozuna's
letter, he expressed concern to the detective-not about Mr. Ozuna doing anything,
"[j]ust other people in general." RP at 417.
A defense witness, Corrections Corporal Loren Merriman, testified that based on
his "numerous" experiences with situations where one gang member has testified against
another gang member, word gets around the jail "very quickly," and measures are taken
in order to try to protect the witness by separating him from others. RP at 486-87. He
testified that the attack or threat to a witness could come from "anybody within their-it
doesn't even have to be their own gang. If somebody knows that somebody testified and
that word gets back to the jail it gets around fairly quickly and then word gets out that the
guy is-needing to be kept away from everybody else." RP at 488.
Despite this evidence of a general peril that a gang member who has testified
against another gang member faces, despite the State's presenting no evidence of a
connection between Mr. Ozuna and Mr. Soto other than that they were both Surefios, and
despite its offering no theory of when and to whom Mr. Ozuna conveyed an order to
assault Mr. Avalos, the State makes the alternative argument that the attack on Mr.
Avalos-even though on a date other than that specified by Mr. Ozuna's letter-was
sufficient circumstantial evidence to prove the intimidation charge and gang aggravators
beyond a reasonable doubt. It asked the jury to make a connection between Mr. Ozuna
and Mr. Soto even though personnel of the jail (whom the jury had been told would
follow enhanced measures for Mr. Avalos's security) evidently did not recognize a
connection when they placed Mr. Soto in the holding area with Mr. Avalos.
In my view, no rational juror could have found the elements of the crime or the
aggravators beyond a reasonable doubt. I respectfully dissent on the issue of the
sufficiency of the evidence.
Slddoway, C.J. .