FILED MAY 30, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 32719-1-111 ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) NOLAND ASHLEY DOMINGUEZ, ) ) Appellant. )
LAWRENCE-BERREY, A.CJ. - Noland Dominguez appeals his conviction for
felony harassment. He argues (1) Washington's harassment statute, RCW 9A.46.020, is
unconstitutionally overbroad and vague because it lacks a subjective intent requirement,
(2) the State improperly introduced evidence of an incident years earlier where someone
gouged out the victim's eye, (3) the State presented insufficient evidence to prove the
victim's fear was reasonable, and (4) cumulative error deprived him of a fair trial. We
affirm.
FACTS
Dominguez lived next door to Gerardo Medel Jr. The two were friendly.
However, their relationship soured in 2006 after Medel testified against a man named No. 32719-1-III State v. Dominguez
Manny Benavidez, who had previously threatened to kill Medel multiple times and
eventually gouged out Medel's eye with his thumb.
On December 19, 2012, Dominguez shoveled snow from his property onto
Medel' s driveway. Medel asked Dominguez about the snow and pulled out brass
knuckles. In response, Dominguez picked up a flower pqt and said he would break it over
Medel' s head. Dominguez then told Medel that "he was going to get a screwdriver and
shove it in [Medel's] right eye and blind [him] like Manny Benavidez did, and that he was
going to get a gun and shoot [Medel] in [his] right eye too." Report of Proceedings (RP)
at 220. Dominguez also told Medel he was going to kill him.
On June 5, 2013, Medel was barbequing in his front yard with his family. Medel
called the police to report that Dominguez was driving too fast through the neighborhood
and was also driving without a license. Later on in the evening, Dominguez's Jeep was
driven by Medel's house. Dominguez's girlfriend was driving. Dominguez hung out of
the passenger side window and yelled that he was going to kill Medel, called Medel a
"snitch," and said he was going to "blast" him. RP at 217. Dominguez repeated these
statements a few times.
The Jeep pulled into Dominguez's driveway, which was adjacent to Medel's
house. Dominguez got out of the Jeep and said, "I'm going to beat your fucking ass, you
2 No. 32719-1-111 State v. Dominguez
fucking snitch." RP at 21 7. Dominguez continued to scream, cuss, and act aggressively,
and then approached Medel' s house. Dominguez began to walk through the bushes
separating their properties, but a woman stepped in front of Dominguez and physically
pushed him back before he crossed onto Medel' s property.
After the woman pushed Dominguez back to his own property, Dominguez
continued to yell that Medel was a "snitch," that he was going to "blast" him, and that he
would "fuck [them] all up." RP at 218, 242-43. Medel called the police, and both sides
went inside their respective houses. Officer Juan Serrato later arrived and investigated.
Dominguez had surveillance footage of the incident, which Officer Serrato viewed.
The State charged Dominguez with felony harassment for the June 5, 2013
incident. At trial, the State questioned Medel about the 2006 incident involving Manny
Benavidez. Dominguez objected to its relevance. The State argued this evidence was
relevant to show that Medel' s fear that Dominguez would act on his threats was
reasonable, given that Dominguez's threats referenced the 2006 eye gouging incident.
The trial court acknowledged the evidence's relevance, but excluded it under ER 403.
Later, during the State's case in chief, the State proffered 12 police reports
describing prior altercations between Dominguez and Medel, which the State had not
previously provided. Dominguez moved for a mistrial on the grounds that defense
3 No. 32719-1-III State v. Dominguez
counsel would be unable to provide effective assistance in light of this new discovery.
The trial court granted Dominguez's motion and declared a mistrial.
Before the second trial, Dominguez moved in limine to exclude evidence relating
to his December 19, 2012 threats against Medel, arguing these prior threats were
inadmissible under ER 404(b ). The State argued this evidence was admissible under
ER 404(b) because it was relevant to show Medel reasonably feared that Dominguez
would carry out his June 5, 2013 threats. The State argued that Manny Benavidez had
threatened Medel before gouging out his eye, and that Medel could have feared
Dominguez's threats would follow the same pattern. Dominguez asked the court to
exclude evidence relating to his own prior threats, but never asked the court to exclude
evidence relating to the eye gouging incident. The trial court conducted an ER 404(b)
analysis and admitted the evidence of Dominguez's December 19, 2012 threats against
Medel.
The second trial commenced. Medel testified that in 2006, Benavidez gouged out
his eye. Medel testified that Benavidez had threatened to kill him multiple times before
Benavidez gouged out his eye. Medel later testified that Dominguez's June 5, 2013
threats made him fear for his life because Benavidez had previously threatened to kill him
before Benavidez gouged out his eye. Dominguez did not object to any of this testimony.
4 No. 32719-1-111 State v. Dominguez
The jury convicted Dominguez. Dominguez appealed. This court stayed this
appeal pending the United States Supreme Court's decision in Elonis v. United States,
_U.S._, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015), anticipating that the Elonis court
would decide whether the true threat exception to the First Amendment to the United
States Constitution requires an objective or subjective mens rea requirement for the
speaker. The United States Supreme Court decided Elonis in June 2015 and this court
lifted the stay.
This court set this case for consideration in January 2016. Several days later, this
court certified State v. Trey M, 186 Wn.2d 884,383 P.3d 474 (2016),petitionfor cert.
filed, No. 16-7712 (U.S. Jan. 25, 2017), a case similar to this one, to our Supreme Court
on the issue of whether the United States Supreme Court's Elonis decision required
Washington to change its construction of the harassment statute from an objective person
standard to a subjective intent standard. Shortly afterward, our Supreme Court accepted
certification of the Trey M case. In January 2016, this court considered this case and
further stayed this appeal pending our Supreme Court's Trey M decision. Our Supreme
Court decided Trey M on October 27, 2016, and this court lifted the stay. See Trey M,
186 Wn.2d 884.
5 No. 32719-1-III State v. Dominguez
ANALYSIS
A. CONSTITUTIONALITY OF HARASSMENT STA TUTE
Dominguez argues Washington's harassment statute, RCW 9A.46.020, is facially
overbroad because it lacks a subjective intent requirement to exclude speakers who have
spoken idly, in hyperbole, or in jest. He also argues the statute is unconstitutionally vague
because it fails to provide adequate notice of the conduct it prohibits and allows arbitrary
and discriminatory enforcement.
RCW 9A.46.020 provides in relevant part:
( 1) A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person ... [and]
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. ...
[(2)](b) A person who harasses another is guilty of a class C felony if ... the person harasses another person under subsection (I)( a )(i) of this section by threatening to kill the person threatened ....
1. Overarching legal principles
This court reviews de novo whether a statute is unconstitutionally overbroad or
vague under the First Amendment. State v. lmmelt, 173 Wn.2d 1, 6, 267 P.3d 305 (2011).
Although statutes are generally presumed to be constitutional and the party challenging
6 No. 32719-1-111 State v. Dominguez
the statute must prove its unconstitutionality beyond a reasonable doubt, in the First
Amendment context the burden shifts and "the State usually 'bears the burden of
justifying a restriction on speech.'" Id. (internal quotation marks omitted) (quoting
Voters Educ. Comm. v. Pub. Disclosure Comm 'n, 161 Wn.2d 470,482, 166 P.3d 1174
(2007)).
Overbreadth doctrine creates a limited exception to the usual rule that a party "will
not be heard to challenge [a] statute on the ground that it may conceivably be applied
unconstitutionally to others, in other situations not before the Court." Broadrick v.
Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Accordingly,
Dominguez's facial challenge to the harassment statute does not require this court to
address whether his actual speech was constitutionally protected. See lmmelt, 173 Wn.2d
at 7. Rather, the question is whether the statute improperly infringes on protected speech
in general. Id.
2. The harassment statute is not facially over broad
Washington courts apply federal overbreadth analysis. State v. McBride, 74 Wn.
App. 460,464, 873 P.2d 589 (1994). The first step in overbreadth analysis is determining
whether a statute actually criminalizes constitutionally protected speech. lmmelt, 173
Wn.2d at 7. The second step is determining whether the statute prohibits a substantial
7 No. 32719-1-111 State v. Dominguez
amount of that speech. See id. at 6, 11. Finally, even if the law prohibits a substantial
amount of protected speech, it "'will be overturned only if the court is unable to place a
sufficiently limiting construction on a standardless sweep of legislation.'" Id. at 6-7
(quoting City a/Tacoma v. Luvene, 118 Wn.2d 826, 840, 827 P.2d 1374 (1992)).
Here, Dominguez's challenge to Washington's harassment statute does not pass
the first step of overbreadth analysis-the statute does not actually implicate protected
speech. Some categories of speech are unprotected by the First Amendment. State v.
Kilburn, 151 Wn.2d 36, 42, 84 P.3d 1215 (2004). "True threats" is one of them. Id. at
43. A "true threat" is"' a statement made in a context or under such circumstances
wherein a reasonable [speaker] would foresee that the statement would be interpreted ...
as a serious expression of intention to inflict bodily harm upon or to take the life of
another person.'" Id. (second alteration in original) (internal quotation marks omitted)
(quoting State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890 (2001)).
Because a literal reading of the harassment statute criminalizes some types of
protected speech, Washington courts have remedied constitutional concerns by construing
the harassment statute as criminalizing only "true threats." Id. Similarly, to prevent
criminalizing protected speech, trial courts instruct juries that the defendant's threat must
be a "true threat" as defined above. See State v. Schafer, 169 Wn.2d 274, 287-88, 236
8 No. 32719-1-111 State v. Dominguez
PJd 858 (2010); see also State v. Johnston, 156 Wn.2d 355, 364-65, 127 PJd 707
(2006).
Nationwide, two different tests exist as to the mens rea requirement for a "true
threat." Kilburn, 151 Wn.2d at 44. Under the "objective" test, the focus is on whether a
reasonable speaker would foresee the listener to take his or her threat seriously. Id. In
contrast, under the "subjective" test, the focus is on whether the speaker subjectively
intended for the listener to take his or her threat seriously. Id.
Our Supreme Court has expressly adopted the objective test. See Williams, 144
Wn.2d at 207-08. Our Supreme Court has consistently reaffirmed and applied the
objective test since its initial adoption. E.g., Kilburn, 151 Wn.2d at 43; Johnston, 156
Wn.2d at 360; Schafer, 169 Wn.2d at 287. Most recently, in Trey M, our Supreme Court
did so again. See Trey M, 186 Wn.2d at 895-904.
This court stayed these proceedings pending the United States Supreme Court's
decision in Elonis, 135 S. Ct. 2001, anticipating that the Court would resolve whether the
First Amendment requires an objective or subjective test for "true threats." In Elonis, the
defendant was convicted under 18 U.S.C. § 875(c), a federal statute prohibiting'" any
threat to injure the person of another'" made over the Internet. Id. at 2008. The Elonis
court resolved the case based on its construction of 18 U.S.C. § 875(c) and determined it
9 No. 32719-1-III State v. Dominguez
was "not necessary to consider any First Amendment issues." Id. at 2012. In Trey M,
our Supreme Court subsequently held that the Elonis decision had no impact on
Washington's objective test for "true threats" under the First Amendment because it
expressly avoided any First Amendment analysis. Trey M, 186 Wn.2d at 888, 899.
Nevertheless, Dominguez argues our Supreme Court has incorrectly adopted and
applied the objective test. He argues the United States Supreme Court in Virginia v.
Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) established a subjective
test for "true threats" under the First Amendment.
Our Supreme Court in Trey M expressly rejected this exact argument. The Trey
M court reasoned the Black court only engaged in a subjective intent analysis because the
Virginia criminal statute at issue there required subjective intent-not because subjective
intent was a constitutional requirement. Trey M, 186 Wn.2d at 899. The Trey M court
further reasoned Black never imposed a subjective mens rea requirement in all cases. Id.
at 900. The Trey M court acknowledged a nationwide split of authority as to whether
Black established a subjective test under the First Amendment, but expressly held the
objective test remained the law in Washington notwithstanding Black. Id. at 902; see also
State v. Ballew, 167 Wn. App. 359,368,272 P.3d 925 (2012) (also holding Black did not
establish a subjective test under First Amendment).
10 No. 32719-1-III State v. Dominguez
Therefore, because RCW 9A.46.020 only prohibits "true threats"-which our
Supreme Court has repeatedly defined as statements a reasonable speaker would foresee a
listener would take seriously-and because such statements are not constitutionally
protected speech, RCW 9A.46.020 does not criminalize any constitutionally protected
speech. Dominguez's facial overbreadth claim fails.
3. The harassment statute is not facially vague
Dominguez also contends RCW 9A.46.020 is facially vague because the lack of a
subjective intent requirement forces citizens to guess whether their statements are
protected. He also contends this encourages arbitrary and discriminatory enforcement.
"A law that does not reach constitutionally protected conduct and therefore
satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague."
Viii. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,497, 102 S. Ct.
1186, 71 L. Ed. 2d 362 ( 1982). A statute is unconstitutionally vague if it either ( 1) "does
not define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is proscribed" or (2) "does not provide ascertainable standards
of guilt to protect against arbitrary enforcement." City ofSpokane v. Douglass, 115
Wn.2d 171, 178, 795 P .2d 693 ( 1990).
11 No. 32719-1-III State v. Dominguez
Here, an ascertainable standard allows citizens and law enforcement to understand
what statements are proscribed: if a reasonable speaker would foresee that a listener
would take the threat seriously, it is constitutionally unprotected and proscribed by the
harassment statute. See State v. E.J.Y., 113 Wn. App. 940,951, 55 P.3d 673 (2002)
(holding RCW 9A.46.020 is not unconstitutionally vague because the statute only
proscribes "true threats"). Legal standards in statutes and court rulings are presumptively
available to everyone. State v. Smith, 111 Wn.2d 1, 7, 759 P.2d 372 (1988) (holding
RCW 9A.46.020 was not unconstitutionally vague because readily ascertainable sources
of law defined the phrase "lawful authority"). Ample case law interprets whether speech
was protected in similar instances. E.g., State v. Hecht, 179 Wn. App. 497,511,319 P.3d
836 (2014) (holding the statement "I am going to kill you" was a "true threat" because
defendant could foresee the victim would take the threat seriously). Dominguez's
vagueness claim fails.
B. EVIDENCE REGARDING THE EYE GOUGING INCIDENT
Dominguez argues the evidence concerning the incident where Manny Benavidez
gouged out Medel's eye was inadmissible under ER 404(b). Dominguez argues this
evidence was irrelevant because the incident occurred long before he threatened Medel
and was also prejudicial because he had nothing to do with the incident.
12 No. 32719-1-III State v. Dominguez
"[An] appellate court may refuse to review any claim of error which was not raised
in the trial court." RAP 2.5(a). A timely objection "gives a trial court the opportunity to
prevent or cure error," such as striking testimony or giving a curative instruction to the
jury. State v. Kirkman, 159 Wn.2d 918,926, 155 P.3d 125 (2007). If a defendant does
not make objections during trial resembling the challenges raised on appeal, the appellate
court will decline to review the alleged errors. State v. Stenson, 132 Wn.2d 668, 726, 940
P.2d 1239 (1997); State v. Blake, 172 Wn. App. 515,530,298 P.3d 769 (2012).
During the second trial, Medel repeatedly testified regarding the eye gouging
incident. Dominguez never objected to any of this testimony. Dominguez argues he
"made a standing objection to the admission of the testimony pertaining to Mr. Benavidez
gouging out Mr. Medel's eye" during his motions in limine. Br. of Appellant at 17. The
record demonstrates otherwise. During his motions in limine, Dominguez moved under
ER 404(b) to exclude evidence relating to his December 19, 2012 threats to Medel.
Although the State cited the eye gouging incident as a reason why Dominguez's prior
threats were relevant, Dominguez only sought to exclude evidence relating to the threats
13 No. 32719-1-III State v. Dominguez
he made to Medel on December 19, 2012. He never asked the court to exclude evidence
relating to the 2006 eye gouging incident between Benavidez and Medel. 1
Accordingly, because Dominguez never objected to the eye gouging evidence
before or during the trial, we conclude he failed to preserve this issue for review.
C. SUFFICIENCY OF THE EVIDENCE
Dominguez argues the State presented insufficient evidence to prove Medel's fear
of death was objectively reasonable.
In a criminal case, evidence is sufficient to convict if it permits a rational trier of
fact to find the essential elements of the crime beyond a reasonable doubt. State v.
Munoz-Rivera, 190 Wn. App. 870,882,361 P.3d 182 (2015). When a defendant
challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could have
found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d
1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of
1 Dominguez did object to testimony relating to the 2006 eye gouging incident at the first trial, which ended in a mistrial. However, this was insufficient to preserve the issue for appellate review. Judge Sperline-who did not preside over the first trial and did not know about the eye gouging incident-presided over Dominguez's retrial. Without an objection to the eye gouging evidence at the second trial, Judge Sperline did not have an opportunity to address or correct the alleged error. See Kirkman, 159 Wn.2d at 926.
14 No. 32719-1-111 State v. Dominguez
the State and interpreted most strongly against the defendant." Id. Furthermore, "[a]
claim of insufficiency admits the truth of the State's evidence and all inferences that
reasonably can be drawn therefrom." Id.
To convict a person for felony harassment, the State must prove beyond a
reasonable doubt that the defendant (1) without lawful authority, (2) knowingly
threatened to kill some other person immediately or in the future, and (3) the defendant's
words or conduct placed the person threatened in reasonable fear that the threat to kill
would be carried out. RCW 9A.46.020(1)(a)(i), (l)(b), (2)(b)(ii); State v. C.G., 150
Wn.2d 604, 607, 80 P.3d 594 (2003). Dominguez challenges only the sufficiency of the
evidence in support of the last element-that his words or conduct placed Medel in
reasonable fear that his threats to kill would be carried out.
An objective standard determines whether the listener's fear is reasonable. State v.
Ragin, 94 Wn. App. 407,411,972 P.2d 519 (1999). The reasonableness of the person's
fear depends on all the facts and circumstances. C.G., 150 Wn.2d at 611. The victim's
knowledge of the defendant's prior violence is relevant to this question. Ragin, 94 Wn.
App. at 411-12. A considerable distance or some kind of physical barrier separating the
antagonists does not mean the evidence is insufficient when the speaker threatens future
15 No. 32719-1-III State v. Dominguez
harm. See State v. Alvarez, 74 Wn. App. 250, 262, 872 P.2d 1123 (1994), ajf'd, 128
Wn.2d 1, 904 P.2d 754 (1995).
Here, the evidence was sufficient for the jury to find that Medel reasonably feared
that Dominguez would act on his death threats. First, Dominguez's words were
accompanied by threatening conduct. Dominguez was acting "really aggressive." RP at
241. Multiple witnesses testified Dominguez went through the bushes toward Medel' s
property until a woman stepped in front of him and physically pushed him back.
Additionally, Dominguez previously threated to kill Medel on December 19, 2012.
Several of Dominguez's prior threats-specifically, that he was going to shove a
screwdriver in Medel' s eye, and also shoot him in his eye-referenced the 2006 incident
where Benavidez gouged out Medel's eye. Because Benavidez had similarly threatened
Medel before gouging out his eye, Medel could have reasonably feared that Dominguez's
threats would follow the same pattern.
Dominguez argues he and Medel had exchanged words many times, none of which
resulted in physical contact. Therefore, he argues, it was reasonable for his comments to
be interpreted as "' all bark and no bite.'" Br. of Appellant at 24. However, this
inference goes both ways-Medel believed Dominguez would act on his threats because
Dominguez had threatened him in the past, and Dominguez was "not going to keep on
16 No. 32719-1-III State v. Dominguez
saying it for nothing." RP at 220. After a conviction, this court must draw all inferences
in favor of the State. Salinas, 119 Wn.2d at 201. Because of this deferential standard, we
conclude this evidence supports the jury's finding that Medel's fear was reasonable.
Dominguez also argues his threat was an immediate threat rather than a future
threat and, therefore, Medel's fear of immediate harm was unreasonable because he never
actually entered Medel' s property. Dominguez relies on A us tin, which held that the
defendant's statement, "let's fight," was only an immediate threat. 2 State v. Austin, 65
Wn. App. 759,761,831 P.2d 747 (1992). Even assuming Dominguez only threatened
immediate harm rather than future harm, Medel's fear still was reasonable because there
was not a considerable distance or barrier between Dominguez and Medel. Their
properties were directly adjacent and only separated by "a few plants and things," which
did not create a significant barrier. RP at 242.
Dominguez further argues there is a question as to whether he actually made the
statements, given Officer Serrato's testimony that he did not hear the statements on the
videotape. However, Medel and his fiance both testified Dominguez made the
statements. This court assumes the truth of that evidence. Salinas, 119 Wn.2d at 201.
2 At the time Austin was decided, RCW 9A.46.020 only prohibited a person from threatening "[t]o cause bodily injury in the future." Former RCW 9A.46.020(l)(a)(i) (1992) (emphasis added). The legislature amended the statute in 1997 to also prohibit
17 No. 32719-1-III State v. Dominguez
Dominguez finally argues Officer Serrato never found any weapons. While true, Medel
did not know this when Dominguez threatened to kill him. Significantly, Dominguez had
previously threatened to get a gun and shoot Medel.
Drawing all reasonable inferences in favor of the State, as we must after a
conviction, we conclude that the evidence was sufficient for a rational jury to find beyond
a reasonable doubt that Medel reasonably feared Dominguez would act on his death
threats. Sufficient evidence supports Dominguez's felony harassment conviction.
D. CUMULATIVE ERROR
Dominguez argues cumulative error deprived him of a fair trial. The cumulative
error doctrine applies if there were several trial errors, none of which standing alone is
sufficient to warrant reversal, that when combined may have denied the defendant a fair
trial. State v. Greif!, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because Dominguez has
not demonstrated any trial errors occurred, reversal based on cumulative error is
unwarranted.
threats of immediate harm. See LAWS OF 1997, ch. 105, § 1.
18 No. 32719-1-III State v. Dominguez
Affirmed.
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.
WE CONCUR:
71?~~'~' Siddoway, J . ' Pennell, J.