State v. Espinoza

• Decision Date: 12 October 2020
• Docket Number: No. 79413-2-I,79413-2-I
• Citation: 474 P.3d 570,14 Wash.App.2d 810
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Paul Noah ESPINOZA, Appellant.

14 Wash.App.2d 810

474 P.3d 570

STATE of Washington, Respondent,

v.Paul Noah ESPINOZA, Appellant.

No. 79413-2-I

Court of Appeals of Washington, Division 1.

October 12, 2020

Kate Huber, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant.

Randall Keenan Gaylord, San Juan County Prosecutor, Teresa A. Barnett, San Juan County Prosecuting Attorney, 350 Court St. Po Box 760, Friday Harbor, WA, 98250-0760, Randall Avery Sutton, Emily Jarchow Goodell, Kitsap County Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4614, for Respondent.

PUBLISHED OPINION

Dwyer, J. ¶1 Following a jury trial in San Juan County Superior Court, Paul Noah Espinoza was convicted of a single count of felony harassment after making threats to two different people. On appeal, he avers that he was denied his right to a unanimous jury verdict because the State did not elect or designate a victim for the count charged and the jury was given no unanimity instruction. We agree that the trial court erred by not instructing on the need for jury unanimity. Accordingly, we reverse the conviction and remand for a new trial.

I

¶2 For several years, Dennis Harshbarger employed Paul Noah Espinoza. In March 2018, while the two men were driving in Harshbarger's truck, Espinoza told Harshbarger that his gun rights had been restored and that he would be getting a gun. Espinoza then stated that when he obtained a gun, he would go to the residence of Chris Wilson and Rina Tappan, and "put some caps in their home." Over the course of a 20 minute conversation, Espinoza also stated that he would "go over and shoot Chris Wilson." Harshbarger later testified that Espinoza was not laughing, his tone was "matter of fact," he made these statements several times, and he repeated them at work the next day.

¶3 Several days later, Harshbarger saw Wilson at Wilson's workplace and "mentioned something to him." Wilson testified that Harshbarger told him that Espinoza "was going to get a weapon and come shoot up [Wilson's] house." Wilson felt intimidated. He repeated this information to his fiancée, Tappan, when he got home that evening. Tappan was "[t]errified," "went into panic mode," and "called the [police right] away." Wilson and Tappan gave statements to the police that evening and stayed in a hotel until the next day when they learned that Espinoza had been arrested.

¶4 Wilson, Tappan, and Espinoza had all known each other for many years. Tappan is a close friend of Espinoza's sister. In the past, she had lived with Espinoza as roommates. Espinoza was at one point in a romantic relationship with Tappan's sister. In December 2016, her sister called her and told Tappan that Espinoza had hit her and that she had left the house. She asked Tappan to go to the house and collect some of her belongings. Wilson accompanied Tappan to the house. Tappan and Espinoza argued and Espinoza assaulted Wilson. After this incident, although their families remained close, Tappan attempted to avoid Espinoza. Wilson had no further contact with Espinoza after December 2016.

¶5 Espinoza was charged by information with threatening to kill "Christopher R Wilson and/or Rina Sue Tappan." At trial, the State did not elect between the two victims on the harassment charge. No unanimity instruction was given. The to-convict instruction listed the elements of the crime as follows:

(1) That on or between 3/1/2018 - 3/7/2018, the defendant knowingly threatened to kill Chris Wilson and/or Rina Tappan immediately or in the future;

(2) That the words or conduct of the defendant placed Chris Wilson and/or Rina Tappan in reasonable fear that the threat to kill would be carried out;

(3) That the defendant acted without lawful authority; and (4) That the threat was made or received in the State of Washington.

¶6 A jury convicted Espinoza as charged. He now appeals.

II

¶7 Espinoza contends that because the jury was not provided with a unanimity instruction, and the State did not elect whether Rina Tappan or Chris Wilson was the victim of the crime, he was denied his right to a unanimous jury verdict. Given the manner in which the crime was charged, we agree.

A

¶8 Under both the United States and Washington constitutions, a defendant may not be convicted unless a unanimous jury concludes that the criminal act charged in the information has been committed. Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 1396-97, 206 L. Ed. 2d 583 (2020) ; State v. Petrich, 101 Wash.2d 566, 569, 683 P.2d 173 (1984), abrogated on other grounds by State v. Kitchen, 110 Wash.2d 403, 411, 756 P.2d 105 (1998). When the State charges one count of criminal conduct, and presents evidence of more than one criminal act, there is a danger that a conviction may not be based on a unanimous jury finding that the defendant committed any given single criminal act. Kitchen, 110 Wash.2d at 411, 756 P.2d 105. To ensure that all 12 jurors agree that the same criminal act has been proved beyond a reasonable doubt, either the State must elect a single act or the jurors must be instructed that they must be unanimous in deciding that the same underlying criminal act has been proved beyond a reasonable doubt. Petrich, 101 Wash.2d at 572, 683 P.2d 173.

¶9 When a trial court does not properly instruct on jury unanimity, the error is harmless only when all rational triers of fact would find that each alleged act was proved beyond a reasonable doubt. Kitchen, 110 Wash.2d at 405-06, 756 P.2d 105.

¶10 Here, the State charged Espinoza with a single count of felony harassment of "Christopher R Wilson and/or Rina Sue Tappan." Harassing Wilson and harassing Tappan are two distinct crimes that could have been charged in separate counts. See State v. Vidales Morales, 174 Wash. App. 370, 387, 298 P.3d 791 (2013) (holding that the unit of prosecution for felony harassment is determined by the number of victims, not the number of repeated threats); cf. In re Pers. Restraint of France, 199 Wash. App. 822, 839, 401 P.3d 336 (2017) (multiple units of prosecution may exist when the same victim is subjected to different types of threats of harm made at different times and places).

¶11 To prove Espinoza guilty of harassing Wilson in violation of RCW 9A.46.020(2)(b)(ii), the State was required to prove (1) that Espinoza threatened Wilson by threatening to kill Wilson or any other person, and (2) that Wilson was placed in reasonable fear that the threat would be carried out. Similarly, to prove Espinoza guilty of harassing Tappan in violation of RCW 9A.46.020(2)(b)(ii), the State was required to prove (1) that Espinoza threatened Tappan by threatening to kill Tappan or any other person, and (2) that Tappan was placed in reasonable fear that the threat would be carried out.

¶12 Our Supreme Court has clarified that the words "person threatened," as it appears in the harassment statute, mean the person who is the target of the coercion, intimidation, or humiliation against which the statute intends to protect. State v. J.M., 144 Wash.2d 472, 488, 28 P.3d 720 (2001). The statute contemplates that a person may be threatened by a threat to another—for example, a parent might be threatened by a threat to his or her child. J.M, 144 Wash.2d at 488, 28 P.3d 720. For a threat to kill to constitute felony harassment pursuant to RCW 9A.46.020(2)(b)(ii), it is the threatened person who must be placed in reasonable fear that the threat will be carried out.

¶13 Here, the State charged two crimes in a single count using "and/or" to identify the victim. Unfortunately, the jury instructions permitted Espinoza to be convicted by a jury that might not have found Espinoza guilty on either charge if the two crimes had been charged separately. For example, the jury instructions permitted the jury to find Espinoza guilty if six jurors believed that only Wilson was threatened while the other six believed that only Tappan was threatened.

¶14 Therefore, either an election or a unanimity instruction was required to ensure that all 12 jurors agreed in finding beyond a reasonable doubt that (1) Wilson was the person threatened and placed in reasonable fear, or (2) that Tappan was the person threatened and placed in reasonable fear, or (3) that both Wilson and Tappan were threatened and placed in reasonable fear. A unanimous jury finding on any of these options would comport with the constitutional jury unanimity requirement.

¶15 When a verdict is challenged on the basis of evidentiary insufficiency, we employ the well-known standard articulated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and adopted by our Supreme Court in State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980). This standard is that a constitutionally sufficient quantum of evidence supports a conviction when " ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Green, 94 Wash.2d at 221, 616 P.2d 628 (emphasis omitted) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781 ).

¶16 A predicate for resort to that standard, however, is the existence of a unanimous jury verdict or trial court finding of guilt. Thus, we do not employ the Jackson standard in determining whether the error herein described was harmless. Indeed, in our analysis, we do not grant the State the benefit of disputed evidence, disputed witness credibility, and the like.

¶17 There was, at trial, a factual dispute as to whether Espinoza's threat to kill was directed only at Wilson. Likewise, it was disputed whether Wilson was proved to have felt threatened, given that (unlike Tappan) he did not immediately summon police assistance upon learning of the threat. Similarly, Espinoza's counsel raised questions of the credibility and bias of both Wilson and Tappan given the disharmonious history of Espinoza's prior dealings with the couple. In assessing harmless error, it is the...