State of Washington v. Adrian Bentura Ozuna ( 2014 )


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  •                                                                               FILED
    JULY 15,2014
    In the Office of the Clerk of Court
    W A State Court of Appeals, Division III
    t
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    ~
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                         )         No. 	 31208-9-111
    )
    1                       Respondent, 	            )
    I                                                )
    v.                              )
    1                                                )
    ADRIAN BENTURA OZUNA,                        )         UNPUBLISHED OPINION
    )
    Appellant.               )
    BROWN, J. - Adrian Bentura Ozuna appeals his intimidating a witness conviction.
    He contends (1) the trial court erred in denying his CrR 3.6 motion to suppress, (2) the
    1
    record lacks sufficient evidence for the jury to find the communication of an actual threat
    j   and the presence of gang aggravators, (3) the trial court improperly imposed a domestic
    1
    violence (DV) assessment and costs of incarceration, and (4) a police officer improperly
    provided a sentencing statement. In his pro se statement of additional grounds for
    review (SAG), Mr. Ozuna contends the court erred in admitting gang evidence under ER
    404(b). We accept the State's error concession concerning the imposition of the DV
    assessment, but find no error in Mr. Ozuna's other contentions. Accordingly, we affirm
    and remand to delete the DV assessment.
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    No. 31208-9-111
    State v. Ozuna
    FACTS
    While Mr. Ozuna was incarcerated at the Yakima County Jail on June 8, 2010,
    he was moved from one unit to another unit. Before the move, Mr. Ozuna's belongings
    were searched. Corrections officers found two letters Mr. Ozuna admits he wrote that
    were addressed to "Primo" and signed by "Primo." Report of Proceedings (RP) at 318.
    The Washington State Patrol Crime Lab for Forensic Analysis later determined the
    handwriting was Mr. Ozuna's. The letters contained threatening language that officers
    believed were directed at Augustin Jaime Avalos, Mr. Ozuna's fellow gang member, but
    a witness against him in a previous criminal case. One of the letters states, "bad things
    come to those that snitch." RP at 279. One letter called the recipient a "fucking trader"
    and that another gang "can have him." RP at 279. Soon after, Mr. Avalos was attacked
    1
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    in a jail holding cell. He received lacerations to his scalp and his upper lip. David Soto
    was the inmate who attacked Mr. Avalos. Mr. Ozuna, Mr. Avalos, and Mr. Soto all have
    ties to a gang known as the Sureiios.
    On June 25,2010, Mr. Ozuna made a telephone call from the jail. The call
    indicated that he had been written up for witness tampering. He wanted to explain to
    the judge that he was mad when he wrote the letters.
    The State charged Mr. Ozuna with intimidating a witness. The information
    contained a special allegation that the offense was committed "with intent to directly or
    indirectly cause any benefit, ... to or for criminal street gang" and the offense was
    2
    No. 31208-9-111
    State v. Ozuna
    committed to "obtain or maintain ... membership ... in ... an organization." Clerks
    Papers (CP) at 1.
    Mr. Ozuna unsuccessfully requested CrR 3.6 suppression of the letters seized
    from his cell. During the suppression hearing, a corrections officer testified Mr. Ozuna
    was on a watch mail list and inmates on this list have their mail opened. The court
    concluded, "The Defendant was placed on the mail watch list based on a prior incident.
    As an inmate with a prior similar incident, the defendant has a lessen[ed] expectation
    with regards to his mail." CP at 210. The court further concluded, "The defendant also
    did not have a reasonable expectation of privacy because the jail had a legitimate
    governmental interest in maintaining order and discipline within its confines to preserve
    the safety of the staff and other individuals in and out of the jail as well as institutional
    security." CP at 210.
    Sunnyside Police Officer, Jose J. Ortiz, testified as a gang expert at trial. He
    testified that gangs commit various crimes to enhance their personal status and to
    further group interests; and all gangs have a snitch code. Officer Ortiz indicated that the
    word "campana," which was contained in one of the letters, means the English word
    "bell." This referenced the Bel Garden Locos or Lokotes (BGL) gang. Both Mr. Avalos
    and Mr. Ozuna are members of the BGL. Officer Ortiz further testified that if a gang
    member snitches on another then retaliation will usually occur.
    The jury found Mr. Ozuna guilty as charged. The jury found the crime was
    committed with the "intent to directly or indirectly cause any benefit, aggrandizement,
    3
    No. 31208-9-111
    State v. Ozuna
    gain, profit, or other advantage to or for a criminal street gang." CP at 147. And, the
    jury found Mr. Ozuna committed the crime "to obtain or maintain his membership or to
    advance his position in the hierarchy of an organization." CP at 148.
    During sentencing, Sunnyside Police Detective, Robert Layman, stated,
    "Intimidation is the biggest key that keeps gangs in power" and officers "would like, I
    guess, a message shown that that's not going to be tolerated." RP (Oct. 16, 2012) at 5.
    The sentencing court imposed restitution costs, including $100 for "Domestic
    Violence Assessment." CP at 198. The court imposed incarceration costs of "$50.00
    per day of incarceration or in the Yakima County Jail at the actual rate of incarceration
    but not to exceed $100.00 per day of incarceration." CP at 198.
    Mr. Ozuna appealed.
    ANALYSIS
    A. Suppression Ruling
    The issue is whether the trial court erred by denying Mr. Ozuna's CrR 3.6 motion
    to suppress the letters. He contends the court erred in concluding he had a lessened
    expectation of privacy and the jail had a legitimate governmental interest in maintaining
    order and discipline. We disagree.
    "We review a trial court's denial of a CrR 3.6 suppression motion to determine
    whether substantial evidence supports the trial court's challenged findings of fact and, if
    so, whether the findings support the trial court's conclusions of law." State v. Cole, 
    122 Wn. App. 319
    , 322-23, 
    93 P.3d 209
     (2004). Mr. Ozuna does not assign error to the trial
    4
    No. 31208-9-111
    . State v. Ozuna
    court's factual findings, so they are verities on appeal. State v. O'Neill, 
    148 Wn.2d 564
    ,
    571,
    62 P.3d 489
     (2003). We review the court's conclusions of law de novo. State v.
    Eisfeldt, 
    163 Wn.2d 628
    , 634, 
    185 P.3d 580
     (2008).
    Although the Supreme Court in Stroud v. United States, 
    251 U.S. 15
    , 
    40 S. Ct. 50
    ,
    64 L. Ed. 103
     (1919), appears to have authorized inspection of prisoners' mail, most
    modern decisions recognize that, under Katz v. United States, 
    389 U.S. 347
    , 
    88 S. Ct. 507
    , 
    19 L. Ed. 2d 576
     (1967), "[T]he focus is on whether the authorities violated a
    justified expectation of privacy." 4 WAYNE R. LAFAVE, Search and Seizure § 10.9(c), at
    744 (3d ed. 1996).
    "One of the primary functions of government is the preservation of societal order
    through enforcement of the criminal law, and the maintenance of penal institutions is an
    essential part of that task. The identifiable governmental interests at stake in this task
    are the preservation of internal order and discipline." Procunier v. Martinez, 
    416 U.S. 396
    ,412-14,
    94 S. Ct. 1800
    ,
    40 L. Ed. 2d 224
     (1974), overruled on other grounds by
    Thornburgh v. Abbott, 
    490 U.S. 401
    ,
    109 S. Ct. 1874
    ,
    104 L. Ed. 2d 459
     (1989).
    Washington courts applied the Procunier reasoning in State v. Copeland, 
    15 Wn. App. 374
    , 
    549 P.2d 26
     (1976), where prison officials intercepted and read the contents
    of a letter written by an inmate who was suspected of being involved in a prison assault.
    The court held the evidence was admissible in the inmate's assault trial. Id. at 377-78.
    Here, the trial court found that Mr. Ozuna, "a confirmed Sureiios gang member,
    had written a note to another gang member. In this letter, the defendant brags about
    5
    No. 31208-9-111
    State v. Ozuna
    how he sent another gang member to assault another inmate who he believed to be a
    snitch." CP 208-09 (Finding of Fact I). The court further found another letter "was
    addressed to another gang member and described how that person can redeem himself
    with the Surelios gang by assaulting a rival gang member." CP at 209 (Finding of Fact
    I). Next, the court found "[a]s a result of these letters, [Mr. Ozuna] was placed in a mail
    watch list. When an inmate is placed in the mail watch list, his outgoing mail is read to
    ensure that he is not violating a court order or violating any rules in the jail." CP at 209
    (Finding of Fact I). The court then found that evidence showed "the importance of rules
    I
    and discipline or internal order within the jail to ensure the safety of the staff and
    I   everyone in the jail." CP at 209 (Finding of Fact II).
    These unchallenged findings are sufficient to show Mr. Ozuna had a lessened
    expectation of privacy based on his prior letters and that there was a legitimate
    government interest of the jail's to protect other inmates. Accordingly, the trial court did
    not err in allowing the evidence and denying Mr. Ozuna's CrR 3.6 motion to suppress.
    B. Evidence Sufficiency
    The issue is whether sufficient evidence supports Mr. Ozuna's intimidating a
    witness conviction and the gang aggravator. He contends first, he did not communicate
    a threat, and second, no evidence shows the incident was gang related.
    Evidence is sufficient to support a conviction if, viewed in the light most favorable
    to the State, it would permit any rational trier of fact to find the essential elements of the
    crime beyond a reasonable doubt. State v. Salinas, 
    119 Wn.2d 192
    , 201, 
    829 P.2d
                                                     6
    No. 31208-9-111
    State v. Ozuna
    1068 (1992). An insufficiency claim admits the truth of the State's evidence and
    requires that all reasonable inferences be drawn in the State's favor and interpreted
    most strongly against the defendant. /d. Circumstantial evidence is equally as reliable
    as direct evidence. State v. De/marter, 
    94 Wn.2d 634
    , 638, 
    618 P.2d 99
     (1980).
    First, to prove a charge of intimidating a witness, the State must show beyond a
    reasonable doubt that Mr. Ozuna, by use of threat against a current or prospective
    witness, attempted to influence the testimony of that person or to convince the person to
    absent himself or herself from proceedings. RCW 9A.72.11 O. ''Threat'' as used in RCW
    9A.72.110 means, "To communicate, directly or indirectly, the intent immediately to use
    force against any person who is present at the time; or ... as defined in RCW
    9A.04.110(27)."1 RCW 9A.72.110(3)(a)(i), (ii). Under RCW 9A.04.110(28)(a), "threat"
    means to communicate, directly or indirectly the intent ... [t]o cause bodily injury in the
    future to the person threatened or to any other person."
    Here, Mr. Avalos was a witness against Mr. Ozuna in a previous criminal case.
    They were members of the same gang. When an officer was moving Mr. Ozuna from
    one cell to another he discovered letters with threats that "bad things come to those that
    snitch." RP at 279. Mr. Avalos was attacked soon after. Mr. Ozuna argues the letters
    alone are insufficient to show a threat was communicated. But, as the State points out,
    the letters are circumstantial evidence not direct evidence. And, circumstantial
    evidence is equally as reliable as direct evidence. De/marter, 
    94 Wn.2d at 638
    .
    1   The legislature changed RCW 9A.04.11 0(27) to RCW 9A.04.11 0(28) in 2011.
    7
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    1   No. 31208-9-111
    State v. Ozuna
    Significantly, "[n]o Washington court has ever held that a true threat is an
    essential element of any threatening-language crime." State v. Tellez, 
    141 Wn. App. 479
    ,483, 
    170 P.3d 75
     (2007). Here, in addition to the letters, there is evidence of a
    history between the men, testimony about gangs and retaliation, and Mr. Ozuna's
    I   telephone conversation about being mad when drafting the letters.
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    Mr. Ozuna's reliance on State v. Hosier, 
    157 Wn.2d 1
    ,
    133 P.3d 936
     (2006) is
    unpersuasive. There, the court held, "[u]nless a person's message is both transmitted
    by the person and received by the minor, the person has not communicated." Id. at 9.
    But, the court, there, was addressing the offense of communication with a minor for
    immoral purposes, an offense that is distinct with different elements from intimidating a
    witness.
    We view the evidence in the light most favorable to the State, draw all
    reasonable inferences in the State's favor, and interpret this evidence most strongly
    against Mr. Ozuna. Applying this standard, we agree the evidence sufficiently supports
    the jury finding of the essential elements of intimidating a witness beyond a reasonable
    doubt.
    Second, a finding of fact supporting an exceptional sentence will be reversed
    solely when '''no substantial evidence'" supports it. State v. Jeannotte, 
    133 Wn.2d 847
    ,
    856,
    947 P.2d 1192
     (1997) (quoting State v. Grewe, 117Wn.2d 211, 218, 
    813 P.2d 1238
     (1991)). A court may impose a sentence higher than the standard range if a jury
    finds "[t]he defendant committed the offense with the intent to directly or indirectly cause
    8
    No. 31208-9-111
    State v. Ozuna
    any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street
    gang as defined in RCW 9.94A.030, its reputation, influence, or membership." RCW
    9.94A.535(3)(aa). Or, the offense was committed "to obtain or maintain ...
    membership or to advance ... position in the hierarchy of the organization." RCW
    9.94A.535(3)(s).
    Some evidence must show gang involvement actually motivated the defendant to
    commit a crime to support RCW 9.94A.535(3)(s)'s gang aggravating factor. State v.
    Yarbrough, 
    151 Wn. App. 66
    , 
    210 P.3d 1029
     (2009). In Yarbrough, Mr. Yarbrough
    yelled gang-related insults and challenges before shooting two people. Id. at 97. The
    evidence showed Mr. Yarbrough's gang had a run-in with a rival gang a few days prior
    to the shooting and Mr. Yarbrough believed the victims were members of that rival
    gang. Id. In State v. Monschke, 
    133 Wn. App. 313
    , 
    135 P.3d 966
     (2006), Mr.
    Monschke and three other white supremacists beat a homeless man to death. Id. at
    318-19. In both cases, some evidence showed the defendants committed their crimes
    because of their gang membership. Testimony from police or other gang experts is
    insufficient, standing alone, to support the aggravating factor. State v. Blueshorse, 
    159 Wn. App. 410
    , 431,
    248 P.3d 537
     (2011).
    Here, Mr. Ozuna was a member of the Surerios gang and wrote letters
    referencing a gang. A gang expert testified without objection to gangs and gang culture.
    He was asked specific questions based on his expertise regarding signs, rules and
    orders. The officer testified specifically about the content of the letters pointing out
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    No. 31208-9-111
    State v. Ozuna
    specific BGL gang sections. The officer pointed to specific passages and sections in
    the seized letters, as well as the signature that would identify that this letter was written
    by a person who was a BGL. The officer testified to actions taken against a person who
    was declared a "RATA" or rat; a snitch. RP at 446. The officer addressed breaking the
    silence code and consequent retaliation. Lastly, the officer testified to the reputation of
    a gang member who had been snitched on and did nothing in return.
    Based on the above, the jury could, in weighing the testimony and deciding
    credibility from the sufficient evidence presented, infer the offense was committed to
    directly or indirectly cause benefit to a gang or to advance Mr. Ozuna's position in a
    gang. Considering all, we conclude the evidence is sufficient to prove the gang
    aggravator. Therefore, the sentencing court properly imposed an exceptional sentence.
    C. Sentencing Hearing Remarks
    The issue is whether the sentencing court improperly considered Detective
    Layman's statement during Mr. Ozuna's sentencing hearing. Mr. Ozuna contends
    allowing an officer to provide a statement at a sentencing hearing is inappropriate.
    Mr. Ozuna fails to provide legal authority to support his argument. On the other
    hand, RCW 9.94A.500 provides that prior to sentencing "[t]he court shall ... allow
    arguments from the prosecutor, the defense counsel, the offender, the victim, the
    survivor of the victim, or a representative of the victim or survivor, and an investigative
    law enforcement officer as to the sentence to be imposed." Detective Layman was a
    law enforcement officer, who requested a high-end sentence because "[i]ntimidation is
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    No. 31208-9-111
    State v. Ozuna
    the biggest key that keeps gangs in power" and officers "would like, I guess, a message
    shown that that's not going to be tolerated." RP (Oct. 16,2012) at 5. Under RCW
    9.94A.500, his statement was properly considered by the court prior to sentencing.
    D. DV Assessment and Costs
    The issue is whether the sentencing court erred by imposing a DV assessment
    and costs of incarceration. The State concedes the DV assessment was wrongly
    imposed. Because the offense does not involve domestic violence, we accept the
    State's concession and rem?lnd for sentence correction. See State v. Naillieux, 
    158 Wn. App. 630
    , 646, 
    241 P.3d 1280
     (2010) (remedy for minor error in judgment and
    sentence is remand to the trial court for correction).
    Turning to the costs of incarceration, for the first time on appeal, Mr. Ozuna
    contends the court erred in not making a determination on the record regarding his
    current or future ability to pay costs of incarceration. Mr. Ozuna asks us to strike the
    requirement that he pay costs of incarceration, but we note under RAP 2.5(a)(3), solely
    manifest errors implicating a specifically identified constitutional right may be raised for
    the first time on appeal.
    In State v. Blazina, 
    174 Wn. App. 906
    , 911,
    301 P.3d 492
    , review granted, 
    178 Wn.2d 1010
    ,
    311 P.3d 27
     (2013), Division Two of this court held that legal financial
    obligation 2 (LFO) issues may not be raised for the first time on appeal. Agreeing with
    2 "[Clost of incarceration" imposed by RCW 9.94A.760(2) fall within the broad
    definition of "legal financial obligations." In re Pers. Restraint of Pierce, 
    173 Wn.2d 372
    ,
    379,
    268 P.3d 907
     (2011).
    11
    No. 31208-9-111
    State v. Ozuna
    Blazina, this court recently held, "The ability to pay LFOs is not an issue that defendants
    overlook-it is one that they reasonably waive - we view this as precisely the sort of
    issue we should decline to consider for the first time on appeal." State   v. Duncan,_
    Wn. App. _ , _      P.3d _    (
    2014 WL 1225910
     at *4 (Mar. 25, 2014). Based on recent
    legal authority, Mr. Ozuna is precluded from raising the costs issue for the first time on
    appeal.
    E. Gang Affiliation Evidence
    In his pro se SAG, Mr. Ozuna alleges the trial court abused its discretion when it .
    admitted evidence of gang affiliation under ER 404(b). We disagree.
    We review ER 404(b) evidentiary rulings for abuse of discretion. Yarbrough, 151
    Wn. App. at 81. A trial court abuses its discretion when its decision is manifestly
    unreasonable or exercised on untenable grounds or for untenable reasons. State        v.
    Lord, 
    161 Wn.2d 276
    , 283-84, 
    165 P.3d 1251
     (2007). A trial court abuses its discretion
    when it relies on unsupported facts, takes a view that no reasonable person would take,
    applies an incorrect legal standard, or bases its ruling on an erroneous legal view. Id. at
    284.
    Courts consider evidence of gang affiliation prejudicial. State v. Asaeli, 
    150 Wn. App. 543
    , 579, 
    208 P.3d 1136
     (2009) (noting "the inflammatory nature of gang evidence
    generally"). Therefore, a nexus must exist between the crime and the gang before the
    trial court may find the evidence relevant. State v. Scott, 
    151 Wn. App. 520
    ,526,
    213 P.3d 71
     (2009). Courts may admit gang affiliation evidence to establish the motive for a
    12
    No. 31208-9-111
    State v. Ozuna
    crime or to show that defendants acted in concert. Id. at 527. Gang evidence falls
    within the scope of ER 404{b). Yarbrough, 151 Wn. App. at 81. A trial court may admit
    gang evidence offered for proof of motive, intent, or identity. Id. But before the trial
    court may admit such evidence, it must U(1) find by a preponderance of the evidence
    that the misconduct occurred, (2) identify the purpose for which the evidence is sought
    to be introduced, (3) determine whether the evidence is relevant to prove an element of
    the crime charged, and (4) weigh the probative value against the prejudicial effect." Id.
    at 81-82.
    Mr. Ozuna failed to object to evidence regarding his gang membership under ER
    404(b). Indeed, evidence presented shows he was a self-professed Surenos member.
    Because Mr. Ozuna did not object at trial to the State's gang evidence on ER 404{b)
    grounds, we will not address this argument for the first time on appeal. See State     v.
    Boast, 
    87 Wn.2d 447
    , 451, 553 P .2d 1322 (1976) (party may assign error in appellate
    court only on specific ground of evidentiary objection made at trial).
    Affirmed and remanded for sentence correction.
    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
    13
    No. 31208-9-111
    State v. Ozuna
    2.06.040.
    Brown, J.   .
    1CONCUR:
    14
    No. 3l208-9-III
    SIDDOWAY, C.J. (dissenting in part) -   The State lacked evidence that Adrian
    Bentura Ozuna shared with anyone the contents of his unsealed, unstamped letter
    pledging vengeance against a witness, which corrections officers found in Mr. Ozuna's
    personal effects at the county jail. When Augustin Jaime Avalos (the evident target of
    the letter) was assaulted in a holding cell a month after Mr. Ozuna's letter was
    discovered, the State developed no evidence that Mr. Ozuna had communicated with
    David Soto, who was ultimately charged with the assault.
    The State's evidence against Mr. Ozuna amounted to evidence of a vengeful
    attitude but it included no evidence of when or where he is believed to have
    communicated that threat to anyone else. For the gang aggravators, the State offered only
    evidence that Mr. Ozuna wanted to see Mr. Avalos punished and that Mr. Avalos was
    thereafter assaulted. Our standard for reviewing the jury's findings that Mr. Ozuna is
    guilty of intimidating a witness and of two gang aggravators is highly deferential but we
    must still be satisfied that a rational juror could have found guilt "beyond a reasonable
    doubt." This is the rare case where insufficient evidence supports the jury's verdict.
    More details on the timeline and events will help demonstrate my concern. It was
    on June 8, 2010 that corrections officers found two letters in Mr. Ozuna's belongings
    No. 31208-9-111 - dissent
    State v. Ozuna
    during a cell change, only one of which included the threats resulting in the State's
    charge. That four-page handwritten letter was addressed to "Primo" and was also signed
    "Primo," meaning "cousin." It can clearly be read as expressing the writer's request that
    vengeance be carried out against a witness. The jury was instructed on what was required
    for a true threat and substantial evidence supported the jury's implicit finding that the
    letter contained true threats. There was substantial evidence that the letter was written by
    Mr. Ozuna; by the time of trial, the defense admitted that he wrote it. There was
    substantial evidence that the witness that Mr. Ozuna wanted to see punished was Mr.
    Avalos, who had testified against Mr. Ozuna in connection with a crime committed in
    2008 for which Mr. Ozuna was soon to be sentenced. The letter is reasonably read to ask
    that action be taken on June 25, the date set for Mr. Ozuna's sentencing:
    So now you know what 1 want primo, don't hesitate vato. take action reep
    the rewards later. Don't think, just act. thinking is already hesitating. hit
    me up when after the shit get's handled. Do it on the 25 cause that's when 1
    have court, 1 want to have a smile on my face that day knowing that, that
    fool's getting a lil tast of what's comeing to him. The 25 is the day 1 get
    sentenced. Good looking out primo, don't let me down fucker! 1 knew 1
    could depend on you, a lillate but better late than never, que-no.
    State Ex. ID (errors in original).
    At issue is whether the threats reflected in the letter were communicated. The
    letter was found in an unsealed, unstamped envelope, although it was addressed to Laura
    Garces and bore, as a return address, another inmate's name and number. No evidence
    was offered as to the existence of a person named "Laura Garces" and defense counsel
    2
    1
    I   No. 31208-9-III - dissent
    State v. Ozuna
    argued during closing, and without objection, that "[n]obody seems to know who Laura
    Garces was." Report of Proceedings (RP) at 547.
    f
    I          After being seized by corrections officers on June 8, the letters were turned over
    ~
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    on June 14 to Detective Erica Rollinger, who had arrested Mr. Ozuna and Mr. Avalos for
    the 2008 crime for which Mr. Ozuna was about to be sentenced. Detective Rollinger.met
    I
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    with Mr. Avalos on June 22 and showed him the threatening letter. The detective's
    !
    presentation of the letter to Mr. Avalos was the first time he saw the letter or heard that
    i
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    I   Mr. Ozuna was making threats.
    i
    I          At 6:26 a.m. on the morning of the June 25 sentencing date, jail personnel
    I
    ,
    recorded a telephone call from Mr. Ozuna that Detective Rollinger later listened to and
    construed to be between Mr. Ozuna and several people on the receiving end of the call,
    including, she believed, Mr. Ozuna's father. Among other things, Mr. Ozuna and
    whomever he called discussed the afternoon's sentencing. The State offered the
    recording as an admission by Mr. Ozuna that he was the writer of the threatening letter;
    during the conversation, he told the person whom Detective Rollinger believed to be his
    father that jail staff had written him up for threatening a witness and he was concerned
    the letter would be brought to the attention of the sentencing judge. He explained how he
    planned to deal with the letter if it came up:
    If anything I'm going to try to be prepared and I'm like hey man, you've
    got to understand, you know, I'm doing ten years because of this gato and I
    was mad and-[inaudible on tape-language]-you know? Try to just set
    3
    No. 3l208-9-II1     dissent
    State v. Ozuna
    that whole shit down. Hey, I wrote it in-in a time of passion and, you
    know?
    RP at 390 (alteration in original). No transcript of the sentencing hearing is included in
    the record on appeal, so we do not know whether the letter or the sanctions imposed on
    Mr. Ozuna for possessing it were raised during the sentencing hearing.
    A couple of weeks after Mr. Ozuna's sentencing, a transport officer who was
    escorting a lawyer into a holding area to see an inmate found Mr. Avalos on the floor of
    the holding area, bleeding profusely from what appeared to be a head wound. There were
    seven other individuals in the holding area at the time. Mr. Avalos claims that he was
    struck in the back of the head and fell, hitting a bench. He was treated for a laceration on
    the back of the head and a lacerated upper lip. The individuals in the holding area at the
    time were not cooperative when the transport officer questioned them about what had
    happened. It is undisputed that Mr. Ozuna was in custody on a different floor of the jail
    at the time of the assault.
    The State eventually charged David Soto with the assault on Mr. Avalos. While
    the State would later present evidence that Mr. Soto was a member of the Surefios, the
    same gang to which Mr. Ozuna belonged, it offered no evidence of any other connection
    or communications between the two.
    Mr. Ozuna argues that the State presented insufficient evidence of the intimidation
    charge or the two gang aggravators found by the jury.
    4
    No. 31208-9-III     dissent
    State v. Ozuna
    With respect to his conviction for intimidation of a witness, Mr. Ozuna challenges
    the sufficiency of the evidence to establish that he "direct[ed] a threat to a former
    witness," a component of the crime on which the jury was instructed. RCW
    9A.72.11 0(2) (emphasis added).] He argues that what was missing from the State's
    evidence was evidence of any "communication" of the threat as required by former RCW
    9A.04.11O(27) (2007) (now subsection (28) of the statute) on which the jury was also
    instructed, as follows:
    ["]Threat["] means to communicate, directly or indirectly, the intent
    to cause bodily injury in the future to the person threatened; or to do any
    other act which is intended to harm substantially the person threatened with
    respect to his health or safety.
    Clerk's Papers at 160 (Instruction 8) (emphasis added).
    1 The  to-convict instruction read, in its entirety:
    To convict the defendant of the crime of Intimidating a Witness,
    each of the following elements of the crime must be proved beyond a
    reasonable doubt:
    (1) That on or about or between June 8, 2010 and July 9, 2010, the
    defendant directed a threat to a former witness because ofthe witness' role
    in an official proceeding; and
    (2) That this act occurred in the State of Washington.
    If you find from the evidence that each of these elements has been
    proved beyond a reasonable doubt, then it will be your duty to return a
    verdict of gUilty.
    On the other hand, if, after weighing all of the evidence, you have a
    reasonable doubt as to anyone of these elements, then it will be your duty
    to return a verdict of not guilty.
    Clerk's Papers at 157 (instruction 5).
    5
    No. 31208-9-III     dissent
    State v. Ozuna
    The State appears to defend the sufficiency of its evidence against Mr. Ozuna on
    two alternative grounds. With respect to the intimidating a witness charge, it makes one
    argument that we should read State v. Hansen, 
    122 Wn.2d 712
    , 
    862 P.2d 117
     (1993);
    State v. Anderson, 
    111 Wn. App. 317
    , 
    44 P.3d 857
     (2002); and State v. Williamson, l31
    Wn. App. 1, 
    86 P.3d 1221
     (2004) as requiring no communication to a third party at all,
    but only the writing-down of a threat against a fonner witness.
    As alternative support for the sufficiency of the intimidation evidence and as
    support for the sufficiency of evidence to support the jury's findings of the gang
    aggravators, it argues that the fact that an assault occurred on July 9 is sufficient
    circumstantial evidence that Mr. Ozuna communicated the threat to some third party
    sometime before July 9. I address the State's arguments in tum.
    Hansen, Anderson, and Williamson as authority that no
    communication to another person is required
    In Hansen, our Supreme Court construed statutory language and a definition
    associated with the crime of intimidating a judge. The defendant had verbally expressed
    a threat '''to get a gun and blow ... away'" a judge-not to the judge, but in a
    conversation with a lawyer. 
    122 Wn.2d at 715
    . At issue was whether, to prove that a
    threat was "directed" at a judge, the State was required to prove that the defendant's
    threat was made with the intention or knowledge that it would reach the judge.
    6
    No. 31208-9-III    dissent
    State v. Ozuna
    The statute defining the crime of intimidating a judge examined in Hansen is
    virtually identical to the language defining the crime of intimidating a witness with which
    we are concerned. See RCW 9A.72.160 (criminalizing, inter alia, "direct[ing] a threat to
    a judge because of a ruling or decision of the judge in any official proceeding"). RCW
    9A.72.l60 and RCW 9A.72.110 both incorporate the definition of ''threat'' as defined in
    RCW 9A.04.llO. It includes the threat of future harm relevant in both cases:
    "communicat[ing], 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.l10(27)(a) (emphasis
    added).
    The five-member majority in Hansen held that to prove intimidation of a judge,
    the State was not required to prove that a threat was made by a defendant with the intent
    or knowledge that it would reach the judge, explaining that the statutory definition
    evidences a clear intent by the Legislature that RCW 9A. 72.160 include
    threats communicated in an indirect fashion as well as direct threats. To
    carry out this legislative intent ... the statute must be construed as a whole
    by incorporating the definition. . .. Under this interpretation, whoever
    threatens a judge, either directly or indirectly, e.g., through a third person,
    because of an official ruling or decision by that particular judge, is
    chargeable under RCW 9A.72.160.
    
    122 Wn.2d at 718
     (emphasis added).
    The four members of the Supreme Court who concurred or dissented in Hansen
    were of the view that the statute should be construed to require that a defendant intended
    or was aware that his threat would be communicated to the target judge. One justice
    7
    No. 31208-9-III - dissent
    State v. Ozuna
    concurred in the result of the majority's opinion on the basis that the evidence was
    sufficient to establish the defendant's intent or knowledge that the threat would be
    communicated. Three justices dissented on the basis that the evidence was insufficient to
    establish that intent or knowledge on the part of the defendant.
    In Anderson, this court applied Hansen's construction of the judicial intimidation
    statute to the witness intimidation statute, finding their subject matter and purposes to be
    the same. The defendant in Anderson communicated a threat to harm his community
    corrections officer and a child protective services (CPS) investigator in phone calls and a
    letter directed to third parties. The letter, which the defendant sent to his mother,
    included a notation, '''Throw this in the trash when done reading it please!'" III Wn.
    App. at 320. The defendant argued that he never intended his threats to be communicated
    to his community custody officer and the CPS investigator. This court held, citing
    Hansen, that his intent in that regard did not matter; "[i]t is enough if threats are directed
    to a third party." Id. at 322.
    Williamson involved the same context of witness intimidation committed
    indirectly; the defendant spoke with one victim, asking him to convey to another victim a
    threat of adverse consequences if she were to testifY against him. The Williamson court
    cited Hansen and Anderson for their holdings that intimidation statutes are violated even
    if the threat is not communicated to the victim.
    8
    No. 31208-9-III - dissent
    State v. Ozuna
    Hansen, Anderson, and Williamson do not support the conclusion that the letter
    alone is sufficient evidence of intimidating a witness; accepting the State's position that
    the letter is sufficient requires going beyond the holdings of those three cases and holding,
    in effect, that a defendant can "communicate" a threat merely by writing it down.
    The statute does not define "communicate." Where there is no statutory definition
    to guide us, words should be given their ordinary meaning. State v. Roden, 
    179 Wn.2d 893
    ,904,
    321 P.3d 1183
     (2014). The transitive verb "communicate" is defined to mean
    "2a : to make known: inform a person of: convey the knowledge or information of <~ the
    news>   <~   his secret to a friend> b: IMPART, TRANSMIT <~ his pleasure to us>  ."
    WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 460 (1993). "Communicate"
    cannot reasonably be understood to include the creation of a private record. Proof that Mr.
    Ozuna wrote the letter, standing alone, is insufficient to prove intimidation of a witness.
    The July 9 assault ofMr. Avalos as "circumstantial
    evidence" that Mr. Ozuna communicated his threats to a
    third person and as support for the gang aggravators
    Alternatively, the State relies on its proof that Mr. Avalos was assaulted on July 9
    as circumstantial evidence that Mr. Ozuna conveyed his threats to a third party.
    During the course of trial, the jury was presented with evidence, mostly from the
    State's witnesses, that having testified against a fellow Surefio Mr. Avalos faced a risk of
    harm from multiple quarters.
    9
    No. 31208-9-111    dissent
    State v. Ozuna
    Corrections Lieutenant Gordon Costello testified that the statement "bad things
    come to those that snitch" was a true statement in his experience as a corrections officer,
    that it was not always the person who gets "snitched on" that does the "bad things," and
    that revenge based on snitching was "common injail[,] period." RP at 279,286-87,289.
    Transport Officer Roberta Gamino testified that it is dangerous to be a snitch and that
    many inmates will attack a snitch. RP at 301-02. Police Officer Jose Jaime Ortiz, the
    State's expert on gang culture, testified that a "no snitch code" is one of the "main
    staples" of gang culture. RP at 437. While he testified that the directive to retaliate
    against a snitch must generally come from someone with a mid- to upper-level status in a
    gang, he did not suggest that Mr. Ozuna was the only one who could have given the
    directive to assault Mr. Avalos and he acknowledged that sometimes evenjunior
    members of a gang wilI take retaliatory action although not authorized to do so. Mr.
    Avalos testified himself that when he spoke with Detective Rollinger about Mr. Ozuna's
    letter, he expressed concern to the detective-not about Mr. Ozuna doing anything,
    "[j]ust other people in general." RP at 417.
    A defense witness, Corrections Corporal Loren Merriman, testified that based on
    his "numerous" experiences with situations where one gang member has testified against
    another gang member, word gets around the jail "very quickly," and measures are taken
    in order to try to protect the witness by separating him from others. RP at 486-87. He
    testified that the attack or threat to a witness could come from "anybody within their-it
    10
    No. 31208-9-111    dissent
    State v. Ozuna
    doesn't even have to be their own gang. If somebody knows that somebody testified and
    that word gets back to the jail it gets around fairly quickly and then word gets out that the
    guy is-needing to be kept away from everybody else." RP at 488.
    Despite this evidence of a general peril that a gang member who has testified
    against another gang member faces, despite the State's presenting no evidence of a
    connection between Mr. Ozuna and Mr. Soto other than that they were both Surefios, and
    despite its offering no theory of when and to whom Mr. Ozuna conveyed an order to
    assault Mr. Avalos, the State makes the alternative argument that the attack on Mr.
    Avalos-even though on a date other than that specified by Mr. Ozuna's letter-was
    sufficient circumstantial evidence to prove the intimidation charge and gang aggravators
    beyond a reasonable doubt. It asked the jury to make a connection between Mr. Ozuna
    and Mr. Soto even though personnel of the jail (whom the jury had been told would
    follow enhanced measures for Mr. Avalos's security) evidently did not recognize a
    connection when they placed Mr. Soto in the holding area with Mr. Avalos.
    In my view, no rational juror could have found the elements of the crime or the
    aggravators beyond a reasonable doubt. I respectfully dissent on the issue of the
    sufficiency of the evidence.
    Slddoway, C.J.            .
    11