State v. Alvarez
| Decision Date | 02 November 1995 |
| Docket Number | No. 61867-4,61867-4 |
| Citation | 128 Wn.2d 1,904 P.2d 754 |
| Parties | The STATE of Washington, Respondent, v. David A. ALVAREZ, Appellant. |
| Court | Washington Supreme Court |
Norm Maleng, King County Prosecutor, Michael J. Lang, Deputy, Theresa L. Fricke, Deputy, Seattle, for respondent.
Appellant David A. Alvarez seeks review of a decision of the Court of Appeals, Division I, affirming a King County Superior Court (Juvenile Department) finding
of "guilty" of harassment in violation of RCW 9A.46.020 and "guilty" of cruelty to animals in violation of former RCW 16.52.070, and remanding to that court a finding of "guilty" of harassment in violation of RCW 9A.46.020 for entry of findings of ultimate facts. We granted review. We affirm.
The questions presented in this case are (1) whether the Court of Appeals erred in holding that a conviction for harassment under the Anti-Harassment Act of 1985 can be based upon a single act; (2) whether the Court of Appeals erred in remanding Appellant's conviction of "guilty" of harassment to the trial court for entry of findings of ultimate facts; and (3) whether the remand violated state and federal constitutional prohibitions against double jeopardy.
On December 7, 1990, Appellant David A. Alvarez was charged by information in two cases in the King County Juvenile Court. Case one, cause number 91-8-01699-4, charged him with three counts of cruelty to animals in violation of RCW 16.52.070 and one count of harassment in violation of RCW 9A.46.020 under the Anti-Harassment Act of 1985. Case two, cause number 91-8-02659-1, charged him with one count of harassment in violation of RCW 9A.46.020.
Count I of the information in case one charged Appellant with the offense of cruelty to animals:
That the respondent David A. Alvarez, in King County, Washington, on or about 7 December 1990, did torture, torment, cruelly beat, mutilate or cruelly kill an animal, to-wit: a pigeon Contrary to RCW 16.52.070, and against the peace and dignity of the state of Washington.[ 1
Count IV of the information in case one charged Appellant with the offense of harassment:
That the respondent David A. Alvarez, in King County, Washington, on or about 7 December 1990, did, without lawful authority, knowingly threaten to cause bodily injury in the future to Pam Koenig, or any other person, or to cause physical damage to the property of Pam Koenig, and the respondent by words or conduct placed Pam Koenig in reasonable fear that the threat would be carried out;
Contrary to RCW 9A.46.020, and against the peace and dignity of the state of Washington.
(Emphasis added.)
The information in case two also charged Appellant with the offense of harassment:
That the respondent David A. Alvarez, in King County, Washington, on or about 27 March 1991, did, without lawful authority, knowingly threaten David Paul to cause bodily injury in the future to David Paul or any other person or to cause physical damage to the property of David Paul the person threatened or maliciously to do any other act which is intended to substantially harm or another with respect to his or her physical or mental health or safety and the respondent by words or conduct placed David Paul in reasonable fear that the threat would be carried out;
Contrary to RCW 9A.46.020, and against the peace and dignity of the state of Washington.
(Emphasis added.)
On July 29, 1991 and on July 30, 1991, the Honorable Faith Enyeart Ireland, sitting in juvenile court, held a fact-finding hearing in both cases and a disposition hearing on October 2, 1991. In case one, Judge Enyeart Ireland On January 16, 1992, Judge Enyeart Ireland entered findings of fact and conclusions of law for case one which charged three counts of cruelty to animals and one count of harassment, and provided in relevant part:
found Appellant Alvarez "guilty" of one count of harassment and "guilty" of two counts of cruelty to animals. In case two, the court found Appellant "guilty" of one count of harassment.
....
II.
Pam Koenig has lived next door to the Alvarez family in Seattle, King County, for five years. The respondent has lived next door during that time.
III.
Koenig was home on 7 December 1990 when she saw respondent in his yard. She was in her bedroom on the second floor of her house, about 25-30 feet away from respondent. There is a 6-7 foot fence between their properties.
IV.
Koenig stated that she saw the respondent go into a pigeon coop, remove a bird, throw the bird down to the ground and then beat it with a shovel. She said she saw the bird convulsing.
V.
Koenig stated that she said to respondent, "That's a start." The respondent replied, "Shut up bitch or I'll take you out too." The respondent lifted up the headless body of the pigeon and held it up as he was making his comment to her. Respondent did not advance toward her when making his statement.
VI.
Koenig was extremely fearful because she says she believed ....
he would carry out his threat. She believed this because of what she had just seen, which she described as cruelly beating a bird into the ground. She was upset and was unable to return to work.
XV.
Respondent said that on the day when Koenig saw him, he broke one pigeon's neck and then cut its' (sic ) head off when he saw it was still moving.
....
II.
The court finds the respondent not guilty as to Count I, Cruelty to Animals.
III.
As to Counts II and III, respondent's actions were not done under the prescribed methods of killing a pigeon. His actions were vindictive and angry. He killed the birds in a deliberate and cruel fashion.
IV.
The court believes Koenig about what respondent said to her. The meaning of those words is plain. They were spoken under circumstances which made it a threat of bodily harm.
V.
The offense of Harassment has been proven beyond a reasonable doubt.
....
VII.
The court finds the respondent guilty of one count of Harassment and guilty of two counts of Cruelty to Animals.
On December 16, 1992, Judge Enyeart Ireland entered findings of fact and conclusions of law in case two on one count of harassment, which provided in relevant part:
Findings of Fact
The respondent, David A. Alvarez, was born on 1 February 1974. He was 17 years old at the time of this hearing.
David C. Paul is a special education teacher at Shorecrest High School in Seattle, King County. He teaches in a behavior disorder classroom. He has known the respondent for two years at the school since respondent has been a student of his.
....
V.
As Paul spoke with respondent's father on the phone, he heard respondent making statements as respondent was leaving the office. He heard respondent say something about putting Drano in Paul's drink.
VI.
Paul saw respondent go to his seat in the classroom and continue what Paul considered to be a tirade. Paul heard respondent mention dynamite. He also heard respondent mention burning Paul's house down.
VII.
Paul was agitated and concerned. He locked up his lawnmower gasoline at his house as a precaution. He stated that he usually keeps the gasoline outdoors.
....
IX.
After speaking with Hart about what had happened, Paul Conclusions of Law
did not change his opinion that he had been threatened. Paul reported these threats to the Assistant Principal.
....
These threats were very specific in their nature; they were very graphic. These statements could reasonably be taken very seriously by a victim.
These statements were taken seriously by the victim and he took steps to ensure his safety.
The offense of Harassment has been proven beyond a reasonable doubt.[ 2
On May 16, 1994, the Court of Appeals, Division I, Judge Mary Kay Becker writing, affirmed the trial court's conviction in case number one which found Appellant Alvarez "guilty" of two counts of cruelty to animals, but remanded the harassment count for findings of ultimate facts on the "essential element of reasonable fear." 3 The Court of Appeals affirmed the trial court's conviction in case number two which found Appellant "guilty" of one count of harassment. On November 2, 1994, this court granted Appellant's petition for review.
The State first asserts that Appellant Alvarez' appeal should be rejected because he did not object to the trial court's findings of fact and conclusions of law nor assign Appellant claims the State did not prove the elements necessary to convict him of harassment under the Anti-Harassment Act of 1985. He asserts that because he did not repeatedly invade his victim's privacy or engage in any "pattern of harassment," his conduct was not intended by the Legislature to be made criminal under the Anti-Harassment Act.
error to them under RAP 10.3(g). This argument has no merit. Appellant Alvarez only contends the findings of fact do not contain ultimate facts sufficient to support his conviction. "[S]ufficiency of the evidence is a question of constitutional magnitude and can be raised initially on appeal." 4 The Court of Appeals accepted review on this issue because it "will likely recur." 5
Appellant Alvarez was charged with and convicted under the Anti-Harassment Act of 1985. RCW 9A.46.020 under the act provides:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury in the future to the person threatened or to any other person; or
(ii) To cause physical damage to the property of a person other than the actor; or
(iii) To subject the person threatened or any other person to physical confinement or restraint; or
(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or...
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... ... Edwards, 84 Wash.App. at 12, 924 P.2d 397. Assuming evidence shows the victim's subjective fear, the standard for determining whether the fear was reasonable is an objective standard considering the facts and circumstances of the case ... State v. Alvarez, 74 Wash.App. 250, 260-61, 872 P.2d 1123 (1994), ... aff'd, 128 Wash.2d 1, 904 P.2d 754 (1995). ¶ 24 Here, neither RCW 9A.46.020 nor the definition of “threat” in RCW 9A.04.110 requires the State to prove a nonconditional present threat for a jury to find the person making ... ...
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