State v. Dominguez
| Decision Date | 30 May 2017 |
| Docket Number | 32719-1-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. NOLAND ASHLEY DOMINGUEZ, Appellant. |
UNPUBLISHED OPINION
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.
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 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 pot 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 fucking snitch." RP at 217. 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 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.
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), petition for 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., 186Wn.2d884.
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.
This court reviews de novo whether a statute is unconstitutionally overbroad or vague under the First Amendment. State v. Immelt, 173 Wn.2d 1, 6, 267 P.3d 305 (2011). Although statutes are generally presumed to be constitutional and the party challenging 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 Immelt, 173 Wn.2d at 7. Rather, the question is whether the statute improperly infringes on protected speech in general. Id.
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. Immelt, 173 Wn.2d at 7. The second step is determining whether the statute prohibits a substantial 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 of 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...
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