    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                              No. 71810-0-1
                   Respondent,
                                              DIVISION ONE
                                                                                 ro
             v.

                                              UNPUBLISHED OPINION
MARVIN GARRY KRONA,

                   Appellant.                 FILED: July 27, 2015



      Trickey, J. —A jury convicted Marvin Krona of harassment, driving while under

the influence (DUI), and driving while license revoked. The State presented sufficient

evidence to support the jury's finding that Krona made a true threat and that the law

enforcement officer's fear that Krona would carry out the threat was reasonable. The

trial court did not err in admitting testimony about a law enforcement safety alert

regarding Krona because the evidence was not hearsay and was logically relevant to an
element of the crime. Finally, although the court miscalculated the offender score for

the DUI count, the error did not affect Krona's standard range. We remand for the trial

court to correct the offender score as to the DUI count, but otherwise affirm the

judgment and sentence.

                                        FACTS

      On the evening of July 13, 2013, James Grout observed a gray Oldsmobile slide

sideways when turning onto an easement road on the side of his property and hit his

fence. The car did not stop, but continued up the easement road adjacent to the fence.

Grout had seen the car several times before and believed it to be associated with the
No. 71810-0-1/2


Krona family, neighbors who lived at the end of the easement road. Grout saw that the

driver was a man with dark hair but could not identify him.

       At around the same time, Grout's neighbor was standing at her window and saw

Marvin Krona drive up the easement road in the gray Oldsmobile. Krona was slumped

over and leaning toward the passenger side. Groutwent to the Krona residence directly

after the incident and told Krona's bother what had happened. Krona's brother noticed

that Krona was sitting in the parked Oldsmobile and was visibly intoxicated. Grout

called the police to report the incident.

       Three sheriff's deputies responded to the reported hit and run. They learned

through a law enforcement database about an "officer safety caution" regarding Krona,
who was associated with the address.1 They also learned that the safety caution was

based on prior "threats to kill law enforcement and prior resisting arrest."2
       The deputies found the Oldsmobile in a field by the house. As they approached
the vehicle, the officers could see Krona slumped over the steering wheel. The driver's
side door was open, the ignition key was turned on, but the engine was not running.
There were two empty cans and three full cans of beer in the car and the deputies could
hear the radio playing and the door chiming.

       The deputies identified themselves and Krona confirmed his identity. Krona
appeared to be highly intoxicated. Krona complied when asked to step out of the car,
but needed assistance and because he was unsteady, the deputies placed him in

handcuffs and had him sit on the ground. The officers arrested Krona and Deputy




1Report of Proceedings (RP) (Mar. 3, 2014) at 112.
2RP(Mar. 3, 2014) at 112.
No. 71810-0-1/3


Jacob Navarro advised him of his Miranda3 rights.              Krona interrupted during the

advisement and said that he "kn[e]w better" than to drive because he was "suspended."4

       Krona became uncooperative and physically resisted when the deputies

attempted to place him in the patrol car. Once in the car, Krona began acting violently,

angrily screaming "as loud as he could," and trying to hit his head on the partition.5 He

called Deputy Navarro and his field training officer various offensive names and

expletives and stated that he and his friends would find them and "slice [them] up."6

Krona told both deputies that his brother would find them and "slit [their] throats" and kill

their families.7

       Because of Krona's obvious intoxication, the deputies decided that he should be

cleared by medical personnel before being booked in jail.             Krona made numerous

offensive comments and threats to medical staff while in transit to the hospital and at

the hospital, telling staff he would "find them, beat their ass, [and] kill them."8 Hospital

staff placed Krona in four-point restraints, but he struggled to break free of the restraints

and attempted to urinate on the hospital floor. At one point, Krona looked directly at

Deputy Navarro and said he would "find [his] Indian ass and kill [him]."9 Hospital staff

drew Krona's blood several hours after his arrest, which revealed a blood alcohol level

of 0.28.

       The State charged Krona with driving under the influence, harassment, and

driving while license revoked. At trial, Krona testified that he "drank a fifth of vodka"

3 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4 RP (Mar.   4,   2014)   at 30.
5RP (Mar.    3,   2014)   at 123; RP (Mar. 4, 2014) at 43.
6RP(Mar.     3,   2014)   at 123.
7RP(Mar.     4,   2014)   at 45.
8RP(Mar.     3,   2014)   at 125-26.
9RP(Mar.     3,   2014)   at 126.
No. 71810-0-1/4


before he was arrested, but only after Grout came to the house to report damage to the

fence.10 He maintained that he was merely sitting in the Oldsmobile when the deputies

arrested him and denied having driven the car. He did not dispute that he "said some

nasty things" to the deputies during the arrest but insisted that he did not mean the

things he said when intoxicated.11     The jury convicted Krona as charged.         Krona

appeals.

                                       ANALYSIS


I. Sufficiency of the Evidence

       Krona's harassment conviction was based on the specific threat to find and kill

Deputy Navarro's "Indian ass." Krona contends that the State failed to prove (1) that
this was a "true threat" and (2) that Deputy Navarro's fear that he would carry out the
threat was reasonable under the circumstances.

       To convict Krona of harassment as charged here, the State was required to

prove beyond a reasonable doubt that he (1) without lawful authority (2) knowingly
threatened (3) to cause bodily harm immediately or in the future (4) to a criminal justice
participant performing official duties at the time the threat was made and (5) the criminal
justice participant reasonably feared that the threat would be carried out. RCW
9A.46.020(1)(a)(i), (2)(b)(iii).

        Where, as here, a criminal statute implicates speech, the State must prove both
the statutory elements of the offense and that the speech was not protected by the First
Amendment. State v. Kilburn, 151 Wn.2d 36, 54, 84 P.3d 1215 (2004). Because a
threat is pure speech, the harassment statute is limited in its reach to "true threats."

 i°RP(Mar. 4, 2014) at 105.
 11 Clerks Papers at 111, 120.
No. 71810-0-1/5


State v. Allen. 176 Wn.2d 611, 626, 294 P.3d 679 (2013) (interpreting RCW 9A.46.020);

Watts v. United States. 394 U.S. 705, 707, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969).

      A   "true threat"   is   a   statement made    in   a   context or   under such
      circumstances wherein a reasonable person would foresee that the
      statement would be interpreted ... as a serious expression of intention to
      inflict bodily harm upon or to take the life of another person. A true threat
      is a serious threat, not one said in jest, idle talk, or political argument.
      Under this standard, whether a true threat has been made is determined
      under an objective standard that focuses on the speaker.

Kilburn. 151 Wn.2d at 43-44 (internal citations and quotation marks omitted); accord

Allen, 176 Wn.2d at 626; State v. Schaler. 169 Wn.2d 274, 287, 236 P.3d 858 (2010).

       A statement can constitute a true threat even if the speaker has no actual intent

to cause bodily injury. Kilburn, 151 Wn.2d at 46.         One reason that a true threat is

unprotected speech is because it arouses fear in the person threatened and that fear

does not depend on the speaker's intent.        Kilburn, 151 Wn.2d at 46. Therefore, a

statement will be considered a true threat if a "reasonable speaker would foresee that

the threat would be considered serious."12 Schaler. 169 Wn.2d at 283.

       Generally, the test for determining sufficiency of the evidence in a criminal case

is whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found that the elements of the crime were established

beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). We assume the truth of the State's evidence and all reasonable inferences

drawn from that evidence. Salinas, 119 Wn.2d at 201. We defer to the trier of fact's

12 In his briefing before this court, Krona noted the United States Supreme Court's grant of
certiorari in Elonis v. United States, _ U.S. _, 135 S. Ct. 2001 (2015), anticipating that the
Court would address the true threat exception to the First Amendment's protection of free
speech. However, the Court resolved the case based on its construction of the federal criminal
statute and it was therefore "not necessary to consider any First Amendment issues." Elonis,
135 S. Ct. at 2012. Accordingly, we rely on the definition of "true threat" established by our
jurisprudence.
No. 71810-0-1/6


resolution of conflicting testimony and evaluation of the persuasiveness of the evidence.

State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). However, because of

the First Amendment implications, we must engage in an independent review of the
"crucial" facts that involve the legal determination of whether the speech is unprotected.

Kilburn, 151 Wn.2d at 52.

       Deputy Navarro testified that Krona was looking directly at him and when he
explicitly threatened to find and kill his "Indian ass." Krona points to evidence of his
obvious intoxication, the fact that he was in handcuffs or otherwise restrained during

virtually the entire encounter, and to the evidence that he made multiple threats directed
at numerous individuals. He claims that under these circumstances, no reasonable
person would foresee that his threat to kill Deputy Navarro would be interpreted as a
serious expression of intention to harm the officer. And Krona claims that in this
context, no reasonable criminal justice participant would fear that Krona would "single
him out of all the people threatened and carry out his threat in the future."13
        Certainly, there was ample evidence that Krona was extremely intoxicated and
that, when he made the threat, he did not have the immediate means to carry it out. But
the record also fairly suggests that he was in control of his faculties to the extent that he
was initially able to comply with and respond to the deputies' questions and requests.
And his demeanor when he threatened to kill Deputy Navarro was unmistakably angry
and aggressive. He made the threat in the context of sustained, escalating, and violent
attempts to resist law enforcement and medical staff as they transported and medically
 assessed him. A reasonable person in Krona's position, under these circumstances,
 would have expected Deputy Navarro to take his threat seriously, not as a joke, idle
 13 Appellant's Br. at 10.
No. 71810-0-1/7



talk, or exaggeration. There is sufficient evidence in this record for the trier of fact to

conclude beyond a reasonable doubt that the threat at issue was a true threat.

       Deputy Navarro also testified that he feared that Krona would carry out his threat,

and that his concern was sufficient that he notified his spouse. This is ample evidence

of his subjective fear.      And again, we consider context in evaluating whether the

deputy's fear was reasonable. Deputy Navorro explained that he was concerned about

the threat because it was not a "common" or blanket threat that could be aimed at any

number of people. It was directed at him in particular. And the context of the threat was

Krona's increasingly belligerent and unpredictable behavior that began as soon as

Deputy Navarro attempted to place him in the patrol vehicle. It is true that he did not

have the immediate means to carry out the threat because he was restrained. But the

threat he made was to harm or to kill the officer in the future.                See RCW

9A.46.020(1)(a)(i). Under the circumstances, the evidence was sufficient for the trier of
fact to conclude that Deputy Navarro reasonably feared that Krona would carry out his

threat against him sometime in the future after he was released from jail.

II. Officer Safety Caution

       Krona challenges the trial court's admission of the testimony about the officer
safety caution database entry based on previous threats against law enforcement and
incidents of resisting arrest. He contends that the testimony was inadmissible because
it was hearsay, unfairly prejudicial, and improper propensity evidence.            He also
contends that admission of the evidence violated his right to confront witnesses. We

review de novo whether a statement was hearsay, and a trial court's admission of
No. 71810-0-1/8


testimony for an abuse of discretion. State v. Edwards, 131 Wn. App. 611, 614, 128

P.3d 631 (2006); State v. Bourgeois. 133 Wn.2d 389, 399, 945 P.2d 1120 (1997).

       Before trial, the State moved to admit the testimony, arguing that it was relevant

to an element of the crime: Deputy Navarro's subjective and reasonable belief as a

criminal justice participant that the threat would be carried out. The court granted the

motion, observing that even if the information in the database was incorrect, it was still

relevant to Deputy Navarro's state of mind.

      After Deputy Navarro testified about the officer safety caution and the factual

basis for it, the court provided a limiting instruction, stating that "Deputy Navarro's

testimony about officer safety caution information" was to be considered by the jury

"only as to how it may relate to the deputy's state of mind and for no other purpose."14
      An out-of-court statement introduced to prove the truth of the matter asserted is

generally inadmissible under the prohibition against hearsay. ER 801(c), 802. On the

other hand, statements are not hearsay if they are not offered to prove the truth of the

matter asserted. State v. Chambers, 134 Wn. App. 853, 859, 142 P.3d 668 (2006). "A

statement is not hearsay if it is used only to show the effect on the listener, without

regard to the truth of the statement." Edwards, 131 Wn. App. at 614.

       Krona asserts that the evidence about the officer safety caution was relevant only

if true. But as the trial court observed, it made no difference to the State's case whether

or not the assessment of danger was accurate. The knowledge of the officer safety

caution, even if it was a mistake or based on inaccurate information, contributed to

Deputy Navarro's subjective evaluation of the threat and was logically relevant to the

issue of whether it was reasonable for the deputy to believe that Krona would harm him.

14RP(Mar. 3, 2014) at 113.
                                              8
No. 71810-0-1/9


The trial court did not err in concluding that the evidence was not offered as substantive

proof and was not hearsay.15

      The State did not rely on the evidence to show that Krona had previously

threatened law enforcement officers or that he was, in fact, a dangerous person.

Contrary to Krona's argument, the State's closing argument, read as a whole,

demonstrates that State relied on the evidence only for the purpose of arguing that the

deputy's subjective fear was reasonable. And the court specifically directed the jury to

consider the evidence for only this purpose.

       For largely the same reason, the evidence did not violate Krona's confrontation

rights. The confrontation clause bars the admission of testimonial hearsay statements

when the declarant is unavailable to testify and the defendant has not had an

opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54, 59,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Testimonial statements include those

created solely for evidentiary purposes and those created for the purpose of

establishing or proving past events potentially relevant to later prosecution. Bullcoming

v. New Mexico, _ U.S. _, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610 (2011); Davis v.

Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). And even

when statements are testimonial, the confrontation clause "does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted." Crawford. 541 U.S. at 60 n.9. The apparent purpose of the database entry

here was to protect officers in the field, not to prove the prior acts in a criminal

15 Krona contends that even if Deputy Navarro's testimony about the officer safety caution was
relevant to his state of mind, it was error to allow the other two deputies to present similar
testimony about the database entry. However, that evidence was not only cumulative but
because each deputy testified about what they collectively learned from the database entry, the
testimony of the other deputies' was also relevant to Deputy Navarro's state of mind.
No. 71810-0-1/10


prosecution. And again, because the statements were not admitted to prove the truth of

the matter asserted, admission of the evidence did not violate Krona's right to confront

witnesses against him.

      Finally, for the first time on appeal, Krona claims the testimony about prior threats

against law enforcement was inadmissible propensity evidence under ER 404(b) and

unfairly prejudicial under ER 403. However, because Krona did not object on this basis

below and because evidentiary errors under ER 404(b) and ER 403 are not of

constitutional magnitude, they cannot be raised for the first time on appeal. State v.

Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984); RAP 2.5(a)(3). And moreover, to

warrant reversal, an evidentiary error must be prejudicial. State v. Benn, 161 Wn.2d

256, 268, 165 P.3d 1232 (2007).         Even if the evidence showed his propensity to

threaten law enforcement officers, Krona conceded that he made threats and offensive

comments during the incident. His defense was that the threats were not serious and
that given the circumstances, the deputy in question did not reasonably fear that he

would carry out any of the threats.

III. Offender Score

       Krona contends that the trial court miscalculated his offender score for the felony

counts of DUI and harassment.         He did not challenge the State's calculation of his

criminal history at sentencing. Nevertheless, a defendant may challenge an offender
score calculation for the first time on appeal. State v. Arndt, 179 Wn. App. 373, 388 n.9,

320 P.3d 104 (2014). We review de novo a trial court's calculation of a defendant's

offender score. State v. Wilson, 113 Wn. App. 122, 136, 52 P.3d 545 (2002).




                                             10
No. 71810-0-1/11


      With respect to the DUI conviction, Krona contends that the sentencing court

erred by including in the offender score prior felony convictions for taking a motor

vehicle without permission and attempting to elude, and his current felony conviction of

harassment.


      The court calculated Krona's offender score for the DUI as nine. His judgment

and sentence lists nine prior convictions, but does not specify which of those

convictions were included in the score for the DUI conviction. It is clear from the record,

however, that Krona's offender score for the DUI was calculated as follows: two points

for prior felony DUI convictions, five points for prior non-felony convictions for DUI and

reckless driving, one point for his other current DUI felony conviction, and one point for

his community custody status. Therefore, Krona's prior convictions for attempt to elude

and taking a motor vehicle were not included in the DUI offender score and he does not

challenge the inclusion of the felony DUI convictions or any non-felony DUI and other

serious traffic offense as beyond the scope of the governing statute, former RCW

9.94A.525(2)(e)(2011).16

       The State admits, however, that harassment is not one of the offenses that may

be included in the offender score for DUI under former RCW 9.94A.525(2)(e).

Therefore, the State concedes that Krona's offender score for DUI should not have


16 At the time of Krona's offense, former RCW 9.94A.525(2)(e) provided as follows:
       If the present conviction is felony driving while under the influence of intoxicating
       liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle
       while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)),
       prior convictions of felony driving while under the influence of intoxicating liquor
       or any drug, felony physical control of a vehicle while under the influence of
       intoxicating liquor or any drug, and serious traffic offenses shall be included in
       the offender score if: (i) The prior convictions were committed within five years
       since the last date of release from confinement (including full-time residential
       treatment) or entry of judgment and sentence; or (ii) the prior convictions would
       be considered "prior offenses within ten years" as defined in RCW 46.61.5055.
                                                11
No. 71810-0-1/12


included his current conviction for felony harassment and the score should have been

eight, rather than nine.   But whether the score was eight or nine, Krona's standard

range sentence was 60 months, the statutory maximum sentence for his class C felony.

RCW 9.94A.510. Thus, the error did not affect Krona's standard range.

       With respect to the harassment conviction, Krona contends that the evidence

demonstrates that the same two prior convictions, his 1985 conviction for taking a motor

vehicle and 1995 conviction for attempting to elude, "washed out" and should not have

been included in the offender score.

       Krona's offender score for purposes of the harassment conviction was six, based

on the following: four points for prior convictions; one point for his other current felony

DUI conviction; and one point for his community custody status.            The four prior

convictions consisted of the 1985 and 1995 felony convictions and two 2009 felony DUI

convictions. Krona does not dispute that the State provided certified copies of the

judgments and sentences for each of the prior convictions included in the offender score

calculation.

       Nonetheless, Krona claims the court improperly included the 1985 and 1995

convictions because the State failed to meet its burden to prove the facts or convictions

necessary to establish that these convictions had not washed out under RCW
9.94A.525(2)(c). In other words, Krona maintains that the State was required to prove
by means of certified judgments and sentences each intervening conviction necessary

to demonstrate that the crimes did not wash out. We disagree.

       Krona's reliance on the Supreme Court's decisions in State v. Ford, 137 Wn.2d

472, 479, 973 P.2d 452 (1999) and State v. Hunlev. 175 Wn.2d 901, 910, 287 P.3d 584


                                            12
No. 71810-0-1/13


(2012), is misplaced. These cases establish that the State must prove the existence of

prior convictions included in the offender score by a preponderance of the evidence and

that the best evidence for discharging this burden is a certified copy of the judgment and

sentence. See Ford, 137 Wn.2d at 479-80. The State met its burden of proof as set

forth in Ford and Hunlev.

      Class C prior felony convictions, other than sex offenses, are not included in the

offender score if, since the last date of release from confinement pursuant to a felony

conviction or entry of judgment and sentence, the offender had spent five consecutive

years in the community without committing any crime that subsequently results in a

conviction. RCW 9.94A.525(2)(c). The evidence in the record, including the State's

understanding of Krona's criminal history that Krona specifically agreed to when he

pleaded guilty to the felony DUI charges in 2009, establishes that subsequent to his

1985 conviction for taking a motor vehicle without permission, Krona was convicted of

misdemeanors in 1986, 1987, 1988, 1989, 1991, 1992, and 1994. Similarly, after his

1995 conviction for attempting to elude, Krona was convicted of misdemeanors in 1996,

1999, 2002, 2003, 2006, 2007, and 2008. Then, he was sentenced in January 2009 to

60 months of confinement followed by community custody on the two felony DUI counts.

Contrary to Krona's argument, the evidence does not demonstrate that the 1985 and

1995 convictions washed out.

       Krona demonstrates no error with respect to his offender score for harassment.

Because Krona's offender score for the DUI count should have calculated as eight, we

direct the trial court to correct the offender score computation on the judgment and




                                            13
No. 71810-0-1/14


sentence. But, as explained, because the change does not affect the standard range,

there is no need to conduct a new sentencing hearing.

IV. Statement of Additional Grounds

       In a statement of additional grounds, Krona challenges the sufficiency of the

evidence supporting his DUI conviction.        While not entirely clear, Krona appears to

suggest various reasons why the jury should have discredited the testimony of the

State's witnesses and argues that the jury should have drawn certain inferences in his

favor. But the jury was not required to accept Krona's testimony or his interpretation of

the evidence. The testimony of the State's witnesses was sufficient for a rational trier of

fact to conclude beyond a reasonable doubt that he drove the Oldsmobile on July 13,

2013, while under the influence of alcohol.

        Krona also argues, based on State v. Crediford, 130 Wn.2d 747, 927 P.2d 1129

(1996), that his conviction is constitutionally infirm because the burden was placed upon

him to prove the affirmative defense that his blood alcohol level was above the legal

limit because of alcohol consumed after he drove.            However, the jury instructions

specifically informed the jury that the State bore the burden of proving beyond a

reasonable doubt that the defendant did not consume alcohol after driving or that the

alcohol he consumed after driving did not cause his blood alcohol level to exceed the

legal limit.17

        Finally, Krona contends that the State knowingly presented false evidence in

support of the DUI charge and that his trial counsel was ineffective for failing to

investigate and present certain pieces of evidence. Because these claims involve

17 Although we grant Krona's motion to supplement with additional authority, because of the jury
instructions assigned the burden of proof to the State, State v. W.R., Jr., 181 Wn.2d 757, 765,
336 P.3d 1134 (2014), is inapplicable.
                                              14
No. 71810-0-1/15


matters outside the record before us on direct review, the appropriate means of raising

these claims is through a personal restraint petition. State v. McFarland, 127 Wn.2d

322, 335, 899 P.2d 1251 (1995).

      We remand and direct the trial court to correct the offender score computation for

the DUI count on the judgment and sentence, and otherwise, affirm.




                                                T/-i'<A<w j
WE CONCUR:




                                                ff.Q A^o oL




                                           15
