State v. Morales

• Decision Date: 09 April 2013
• Docket Number: No. 30235–1–III.,30235–1–III.
• Citation: 174 Wash.App. 370,298 P.3d 791
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Jesus Vidales MORALES, Appellant.

174 Wash.App. 370

298 P.3d 791

STATE of Washington, Respondent,

v.Jesus Vidales MORALES, Appellant.

No. 30235–1–III.

Court of Appeals of Washington,

Division 3.

April 9, 2013.

Janet G. Gemberling, Janet Gemberling PS, Spokane, WA, for Appellant.

James Patrick Hagarty, Yakima County Prosecuting Attorney's Office, Yakima, WA, David Brian Trefry, Attorney at Law, Spokane, WA, for Respondent.

SIDDOWAY, J.

[174 Wash.App. 374]¶ 1 The meaning of the harassment statute, RCW 9A.46.020, is central to Jesus Morales's appeal of his conviction of two counts of felony harassment. He was convicted on one count for a harassment offense against the mother of his children, from whom he was estranged. His conviction on the other count might have been for a second harassment offense against her or might have been for a harassment offense against the third party to whom it was communicated. We agree with Mr. Morales that the criminal information did not put him on notice of one means advanced at trial by the State. We also agree that prosecuting him for a second count, with the mother of his children as the asserted victim, would constitute double jeopardy. We reverse his conviction on the problematic count and remand for resentencing.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Jesus Morales and Yanett Farias have three children in common but had not lived together for a year and a half as of February 2011. On February 14, Mr. Morales stopped at the home of Ms. Farias's sister and the sister's husband, Trinidad Diaz, where he spoke to Mr. Diaz, venting his anger at Ms. Farias. Mr. Morales believed that Ms. Farias had taken $4,000 belonging to him. He had stopped at her home earlier that day to speak with her and, although she was home, she refused to open the door.

¶ 3 According to Mr. Diaz, Mr. Morales was so angry in speaking about Ms. Farias that he was trembling. He told Mr. Diaz that when Ms. Farias dropped her children off at day care the next morning, he would be waiting for her and kill her. Mr. Morales's conversation with Mr. Diaz lasted about three minutes. When it was over, Mr. Diaz, who feared that Mr. Morales would follow through with his threats, told his wife to call her sister and relate what Mr. Morales had said. Ms. Farias's sister called Ms. Farias, Ms. Farias contacted the police, and later that night police spoke with Ms. Farias and Mr. Diaz about the threats.

[174 Wash.App. 375]¶ 4 The next morning, Ms. Farias took her children to day care at the home of the baby-sitter, Araceli Castel, as usual, although with a plan for avoiding Mr. Morales if he was there when she arrived. She told the children to watch for their father and tell her if they saw him. The children knew why she was concerned, because her 11–year–old daughter had acted as interpreter when Ms. Farias was contacted by police the night before.

¶ 5 As soon as Ms. Farias pulled up to Ms. Castel's home, the children pointed out Mr. Morales's truck across the street. He pulled out and drove his truck toward hers. Ms. Farias told the children to run inside; they quickly got out of the truck and ran into Ms. Castel's home. The children told Ms. Castel that their father was threatening their mother. Ms. Castel helped the 11–year–old call the police and then watched the altercation between Mr. Morales and Ms. Farias from her front door.

¶ 6 By then, Mr. Morales and Ms. Farias were still in their respective trucks, with Mr. Morales's truck alongside Ms. Farias's, preventing her from leaving. As Ms. Farias tried unsuccessfully to pull out from behind or in front of Mr. Morales's truck, he moved to block her and Ms. Castel heard him yell, “ ‘This is as far as you've gone, you fucking bitch, because I'm going to kill you here.’ ” Report of Proceedings (Aug. 11, 2011) (RP) at 267. Mr. Morales, whose driver's side window was partly down, was leaning toward Ms. Farias's truck and pointing toward her—perhaps with something in his hand, although no witness claimed to have seen a weapon. Ms. Farias was cowering. Ms. Castel then began yelling at Mr. Morales and he left. After that Ms. Farias came into the house, shaken and crying, and told Ms. Castel, “ ‘I thought they would be killing me today’ ” and “ ‘[i]f it wouldn't have been for you, he could've killed me.’ ” RP at 274.

¶ 7 The State charged Mr. Morales with two counts of felony harassment under RCW 9A.46.020. The amended information stated, as to the first count:

On or about February 14, 2011, in the State of Washington, without lawful authority, you knowingly threatened to cause bodily injury immediately or in the future to Yanett Farias and the threat to cause bodily injury consisted of a threat to kill Yanett Farias or another person, and did by words or conduct place the person threatened in reasonable fear that the threat would be carried out.

Clerk's Papers (CP) at 2. Count two contained identical language, but substituted the date of February 15.

¶ 8 At trial, the elements instruction that the State originally proposed to address count one (the February 14 threat) originally read, in part, as follows;

To convict the defendant of the crime of Harassment of Another in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about February 14, 2011, the defendant knowingly threatened to kill Yanett Farias immediately or in the future;

(2) That the words or conduct of the defendant placed Yanett Farias in reasonable fear that the threat to kill would be carried out.

CP at 20.

¶ 9 Before the instruction was read and provided to the jury the second numbered element in the instruction was revised to read, “(2) That the words or conduct of the defendant placed Trinidad Diaz &/or Yanett Farias in reasonable fear that the threat to kill would be carried out” (the revision being indicated by italics). CP at 39 (Instruction 7). The modification was discussed by counsel and was clearly intentional. Mr. Morales did not object to the instruction.

¶ 10 The jury found Mr. Morales guilty on both counts.

¶ 11 At sentencing, defense counsel argued the two threats constituted a single course of conduct and that the unit of prosecution should be the number of victims rather than the number of threatening statements. The court rejected the argument, treated the two counts as separate convictions for purposes of Mr. Morales's offender score, and imposed a standard-range 10–month sentence for each count, to run concurrently. Mr. Morales appeals.

ANALYSIS

¶ 12 Two of Mr. Morales's arguments on appeal are based on an asserted inconsistency between count one as it was charged and as tried. The parties' disagreement about the asserted inconsistency largely arises from the several actors contemplated by subsection (a)(i) of RCW 9A.46.020(1)—one of the four alternative means of committing harassment—and which role Mr. Diaz played in the State's theory of count one. In addition to the perpetrator, subsection (a)(i) contemplates (A) a person to whom a threat is communicated, (B) an intended victim of bodily harm, and (C) a target of the perpetrator's harassment (the individual the perpetrator hopes to coerce, intimidate, or humiliate). For clarity, we will sometimes refer to the person to whom the threat is communicated as A, the intended victim of bodily harm as B, and the target of the harassment as C. The A, B, and C roles can be filled by one, two, or three persons.

¶ 13 The relevant provisions of the harassment statute state;

(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.

RCW 9A.46.020. “Threat” is defined elsewhere as including “to communicate, 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.04.110(27)(a) (2007) (emphasis added).

¶ 14 Two cases are key in sorting out the parties' conflicting views of Mr. Diaz's role in the State's theory of count one. In State v. G.S., 104 Wash.App. 643, 17 P.3d 1221 (2001), Division One of this court examined whether the definition of harassment in RCW 9A.46.020(1)(a) created alternative means of committing the crime or only a single means. In that case, a juvenile made statements to Tina Myrick, a school bus driver, threatening students at his school. She became concerned, reported the threats to school administrators, and G.S. was charged in juvenile court with felony harassment. The information alleged that he “ ‘knowingly and without lawful authority, did threaten to cause bodily injury immediately or in the future to Tina Myrick, by threatening to kill students of Westside Place Alternative School, and the words or conduct did place said person in reasonable fear that the threat would be carried out.’ ” Id. at 647–48, 17 P.3d 1221. G.S. was found guilty.

¶ 15 On appeal, he argued that the definition of the first element of the crime in RCW 9A.46.020(1)(a)(i) created two alternative means. One was to communicate to A a threat to cause bodily injury to A, and the other was to communicate to A a threat to cause bodily injury to B. He maintained that the information charged him with a “communicate to A/bodily injury to A” alternative (relying on “did threaten to cause bodily injury immediately or in the future to Tina Myrick”) but the State's only evidence was evidence of a “communicate to A/bodily injury to B” alternative (B being his fellow students)—an uncharged offense. Division One concluded that the definition created only a single means of committing the crime: communicating to A a threat to cause bodily injury to A or B.

¶ 16 A second issue raised by G.S. was whether, when the threat is to cause bodily injury not to the person to whom the threat is...