                                                                              FILED
                                                                           JULY 15,2014
                                                                    In the Office of the Clerk of Court
                                                                  W A State Court of Appeals, Division III




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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    ADRIAN BENTURA OZUNA,                        )         UNPUBLISHED OPINION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
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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
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    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.

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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



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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).

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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



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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

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    with Mr. Avalos on June 22 and showed him the threatening letter. The detective's
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    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.
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I          At 6:26 a.m. on the morning of the June 25 sentencing date, jail personnel
I
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    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> <an

odor communicated to one's fingers> <communicating the disease to others>."

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 

