Opinion
No. 28870-6-III.
Filed: May 10, 2011.
Appeal from a judgment of the Superior Court for Benton County, No. 09-1-01183-8, Craig J. Matheson, J., entered March 11, 2010.
Affirmed by unpublished opinion per Kulik, C.J., concurred in by Brown and Siddoway, J J.
UNPUBLISHED OPINION
Rogelio M. Hernandez appeals his Benton County convictions for residential burglary, third degree assault for spitting at a police officer, felony harassment for threatening to kill a police officer, and attempting to harm a police dog. The court imposed a 60-month exceptional sentence for the burglary based upon the jury's special verdict finding that the victim was present during the crime.
We conclude that the evidence was sufficient to support the convictions. No objection was made to the jury instruction requiring a unanimous "no" to the special verdict. And Mr. Hernandez shows no manifest error. Therefore, we will not review the instruction on appeal. We affirm the convictions.
FACTS
Early in the morning on December 15, 2009, Benjamin St. Hilaire and his wife were asleep at their residence in Kennewick when Mr. St. Hilaire awoke and saw a person leaving their bedroom. Mr. St. Hilaire remained in the bedroom for several minutes until he heard the sliding glass door in another room open and shut. He called police. The intruder took a laptop computer from the bedroom.
Fresh footprints in the snow led to and from the St. Hilaires' sliding glass door into the backyard area and then to a stored motor home on neighboring property. Officer Roy Kohn followed the footprints and heard noises inside the motor home. The suspect soon exited and fled when Officer Kohn shined a flashlight and identified himself. Officer Kohn sent his police dog, Vego, in pursuit. Vego placed the suspect in a bite-and-hold. Officer Kohn struggled with the suspect and twice tasered him, to no avail. The suspect repeatedly punched Vego and continued to stay on his feet and move toward Officer Kohn, who took the suspect to the ground with a right cross to the head. Vego sustained a limp from the altercation.
The suspect still stood up and remained aggressive as backup officers arrived. Corporal Glenn Ball testified that he used several knee strikes to the suspect's rib cage and torso. The suspect swore profusely at the officers and threatened to shoot and kill them, telling Corporal Ball he would put a bullet in his head. The suspect was finally handcuffed and placed face down with Corporal Ball on his lower back area. But the suspect was able to grab Corporal Ball's service pistol and actively try to remove it from the holster. Corporal Ball testified that he felt the suspect's threat to kill him was real. He said that had the suspect been able to remove the pistol, the suspect's cuffed hand was still free to operate, and he presented a "very credible lethal threat." Report of Proceedings (RP) at 83.
Officers transported the suspect to the hospital to be medically cleared for jail booking. He was very uncooperative and spit at Officer Keith Noble's head as the officer escorted him from the emergency room gurney. Officer Noble said he normally wears gloves when dealing with saliva or blood out of concern for the possible spread of infections.
The footprints leading to and from the St. Hilaires' sliding glass door and to the motor home had the same tread pattern. The suspect's Nike tennis shoes were seized. The tread on those shoes was consistent with the footprints observed at various parts of the crime scene.
In total, five officers testified about their involvement in the incident. Although none specifically pointed Mr. Hernandez out in court as the suspect, each officer referred to the suspect in court as the defendant.
Upon finding Mr. Hernandez guilty of burglary, the jury was asked to find as an aggravating circumstance whether the victim of the burglary was present in the residence when the crime was committed. The court's special verdict instruction for the aggravating circumstance provided in pertinent part:
If you find the defendant guilty of Residential Burglary, you will then use the special verdict form and fill in the blank with the answer "yes" or "no" according to the decision you reach. Because this is a criminal case, all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form "yes," you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer "no".
Clerk's Papers (CP) at 40, Instruction 31. Mr. Hernandez did not object to the giving of this instruction.
The jury found Mr. Hernandez guilty as charged of residential burglary, third degree assault, felony harassment, and attempting to harm a police dog. The jury also answered "yes" to the special verdict. CP at 47. Based on the aggravating circumstance, the court imposed a 60-month exceptional sentence for the burglary and lesser concurrent sentences for the other crimes. Mr. Hernandez appeals.
ANALYSIS
Sufficiency of the Evidence. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). A defendant claiming insufficiency admits the truth of the State's evidence and all reasonable inferences drawn in favor of the State, with circumstantial evidence and direct evidence considered equally reliable. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
"It is axiomatic in criminal trials that the prosecution bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense." State v. Hill, 83 Wn.2d 558, 560, 520 P.2d 618 (1974).
Mr. Hernandez is correct that no trial witness identified him by name or specifically pointed him out in court as the perpetrator of the crimes. But all of the officer witnesses referred to the defendant as the person they encountered during the December 15, 2009 incident. Mr. Hernandez was present throughout the proceedings and was the only defendant on trial. In addition, several hospital photographs identified as being of the defendant were admitted at trial, without objection, and published to the jury, thus indicating identity of the person involved in the police altercation was not an issue. In these circumstances, the evidence was adequate to establish Mr. Hernandez's identity in connection with the charged crimes. Moreover, each jury verdict was in the form: "We, the jury, find the defendant ROGELIO MENDOZA HERNANDEZ Guilty of the crime of. . . ." CP at 43-46.
Mr. Hernandez's cited case State v. Huber, 129 Wn. App. 499, 119 P.3d 388 (2005) is distinguishable. There, a jury convicted Wayne Huber of bail jumping based solely on certified documents admitted in evidence. The State did not call any witnesses or otherwise attempt to show that the exhibits related to the same Wayne Huber who was then before the court. The defense did not make an opening statement or present any evidence. The conviction was reversed on appeal because the State produced no evidence that the person named in the documents was the same person on trial. Id. at 503-04. Here, in contrast, live witnesses described their encounter with Mr. Hernandez that led to the charges for which he was being tried.
Reasonable Fear. The elements of felony harassment are that the defendant knowingly made a threat to kill immediately or in the future, and the victim reasonably feared that the threat would be carried out. RCW 9A.46.020(1)(a)(i), (2)(b). Here, the court's instructions mirrored these elements. The jury was also instructed that
RCW 9A.46.020(1), (2)(b) provide 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; or
. . . .
(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
. . . .
(b) A person who harasses another is guilty of a class C felony if . . . (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person.
[t]o be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest, idle talk, or political argument.
This instruction satisfies the mens rea requirement for a true threat, thus distinguishing two cases cited in Mr. Hernandez's statement of additional authorities where that instruction was lacking. State v. Schaler, 169 Wn.2d 274, 236 P.3d 858 (2010) (instructions failed to specify mens rea as to result, i.e., that the defendant must know or foresee that the person threatened would reasonably fear that the threat will be carried out); State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006) (failure to instruct jury as to "true threat" on charge of making a bomb threat not harmless error).
Mr. Hernandez was highly belligerent and aggressive during the police apprehension. Officer Kohn twice tasered him. Mr. Hernandez repeatedly assaulted the police dog Vego. Mr. Hernandez persisted in trying to assault Officer Kohn, even with the dog clamped onto his arm. Officer Kohn knocked him down but Mr. Hernandez was still aggressive and stood up. It took several knee strikes by Corporal Ball to finally subdue him. Mr. Hernandez swore profusely at the officers and made repeated threats to kill them, including the threat to Corporal Ball that he would put a bullet in his brain. After being handcuffed, Mr. Hernandez was still able to grab Corporal Ball's pistol and actively tried to remove it from the holster.
Thus, Mr. Hernandez's threat to kill the officers became immediate when he grabbed Corporal Ball's pistol and tried to remove it from the holster. Corporal Ball testified he felt that Mr. Hernandez's threat to kill him was real. Corporal Ball testified that had Mr. Hernandez been able to remove the pistol, his cuffed hand was still free to operate, and Mr. Hernandez presented a "very credible lethal threat." RP at 83. Mr. Hernandez's aggressive physical actions suggested his verbal threats were not idle talk.
In this situation, the evidence was sufficient for the jury to find beyond a reasonable doubt that Corporal Ball reasonably feared an intended threat to kill by Mr. Hernandez could be carried out at the arrest scene. The reasonableness of Corporal Ball's fear and Mr. Hernandez's ability or inability to actually unholster the pistol and fire it while in handcuffs were matters of weight solely for the jury to determine. See State v. Walton, 64 Wn. App. 410, 415, 824 P.2d 533 (1992).
We conclude that a rational trier of fact could find each element of felony harassment beyond a reasonable doubt based upon the testimony at trial.
Instruction 31 — Special Verdict. Mr. Hernandez's trial occurred in March 2010, prior to the Supreme Court's July 1, 2010 decision in State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010). Mr. Hernandez did not object to instruction 31. It was the functional equivalent of the instruction given in Bashaw, requiring jury unanimity for a "no" answer for a finding that the defendant's controlled substance deliveries did not take place within 1,000 feet of a school bus stop. See id. at 137.
In Bashaw, the court reiterated the common law rule articulated in State v. Goldberg that a unanimous jury decision is not required to find that the State failed to prove the presence of a special finding increasing the defendant's maximum allowable sentence and that a nonunanimous jury decision is a final determination that the State has not proved the special finding beyond a reasonable doubt. Bashaw, 169 Wn.2d at 146 (citing State v. Goldberg, 149 Wn.2d 888, 894-95, 72 P.3d 1083 (2003)).
Applying Goldberg, the Bashaw court held that the instruction requiring all 12 jurors to unanimously agree to find absence of the special finding on an answer to the special verdict was an incorrect statement of the law. Bashaw, 169 Wn.2d at 147. In view of the flawed deliberative process, the court concluded it could not determine how the jury would have answered the special verdicts had it been properly instructed and, thus, the error was not harmless beyond a reasonable doubt. Id. at 147-48.
The Bashaw court did not address whether the erroneous instruction challenged for the first time on appeal presented a manifest error affecting a constitutional right under RAP 2.5(a)(3).
In State v. Nunez, the defendant challenged the same type of unanimity instruction given in Bashaw for the first time on appeal. State v. Nunez, 160 Wn. App. 150, 248 P.3d 103 (2011). This court rejected Enrique Nunez's claim that the instruction requiring a jury to deliberate to unanimity in order to acquit a defendant of an aggravating factor constitutes manifest constitutional error reviewable for the first time on appeal under RAP 2.5(a)(3). Nunez, 160 Wn. App. at 164-65. Similarly, we reject Mr. Hernandez's challenge.
Here, instruction 31 comported with 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 50.60, at 986 (3d ed. 2008). And the jury was instructed that it was the State's burden to prove the aggravating factor beyond a reasonable doubt and that it had to be unanimous to find the presence of the aggravating factor. As in Nunez, the jury here was able to make all of the findings required, applying the proper burden of proof under the instructions given. Thus, Mr. Hernandez's reply brief argument that the instruction unconstitutionally shifted the burden of proof is without merit. He makes no affirmative showing of actual prejudice and, therefore, shows no "manifest" error reviewable under RAP 2.5(a)(3). Under Nunez, we decline further review of the instructional error for the first time on appeal. Mr. Hernandez's counsel filed a statement of additional authorities citing State v. Ryan, No. 64726-1-I, 2011 WL 1239796 (Wash. Ct. App. Apr. 4, 2011), disagreeing with Nunez. We acknowledge but disagree with Ryan and adhere to Nunez.
We affirm the convictions for residential burglary, third degree assault for spitting at a police officer, felony harassment for threatening to kill a police officer, and attempting to harm a police dog.
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.
SIDDOWAY, J. and BROWN, J., concur.