                                                                            HAY - q ZGIJ




   COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

STATE OF WASHINGTON,                        )         No. 30340-3-III
                                            )
                          Respondent,       )
                                            )
      v.                                    )
                                            )         ORDER CORRECTING
JOSE LUIS NIEVES,                           )         OPINION
                                            )
                          Appellant.        )

     IT IS ORDERED the court's opinion of May 7,2013, is corrected as follows:
     On page 3, lines 8 and 9, Sorefio shall be deleted and Surefio put in its place.
     DATED:      May 9, 2013

     FOR THE COURT:
     PANEL: Judges Korsmo, Brown, Siddoway




                                            KEVIN if. KORSMO
                                            Chief Judge
                                                                 FILED

                                                            MAY 07,2013

                                                    In the Office of the Clerk of Court 

                                                  W A State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )          No. 30340-3-111
                                              )
                              Respondent,     )
                                              )
        v.                                    )
                                              )          UNPUBLISHED OPINION
JOSE LUIS NIEVES,                             )
                                              )
                              Appellant.      )

       KORSMO, C.J. -      A Grant County jury convicted Mr. Jose Luis Nieves of assault

in the first degree, intimidating a public servant, drive-by shooting, unlawful possession

of a firearm, and three counts of intimidating a witness, most of which included various

enhancements and aggravating factors. We reverse the three convictions for intimidating

a witness due to instructional error. We affirm all other aspects of his trial and remand

for further proceedings.

                                            FACTS

       On October 31, 2010, Mr. Nieves, Mr. Eduardo Najera Cruz, Mr. Salvador Garcia,

and Mr. Luis Enrique Flores Martinez attended a Halloween party in Othello. Around
No.30340-3-III
State v. Nieves


11 :00 p.m., the four men left together in Mr. Martinez's car to meet up with some young

women in Soap Lake. When they got to Soap Lake, they picked up Ms. Vanessa Barajas,

Ms. Sashea Hollis, Ms. Silvia Espino, and Ms. Rosamaria Montano. The enlarged group

headed to a different party, but never arrived at it.

       Shortly after midnight, Soap Lake Police Officer Dustin Slabach was in uniform

and on patrol in a fully marked police car. Around this time, the officer's attention was

drawn to Mr. Martinez's car because it had a taillight out. Officer Slabach followed for a

while and eventually saw an illegal U-turn. The officer activated his lights and attempted

to make a traffic stop.

       Instead of stopping, Mr. Martinez kept going and started to speed up at Mr.

Nieves's urging. As Officer Slabach looked down to report the speed to dispatch he

heard what he believed to be eight to ten gunshots in the span of about two seconds. At

the time the shots were fired, he was about three car lengths behind Mr. Martinez's car.

Upon hearing the shots, Officer Slabach slowed down to put a safer distance between him

and the car. He quickly stopped pursuit and soon pulled over due to an unrelated vehicle

malfunction.

       According to various witness accounts, Mr. Nieves either pulled the gun from his

sweater or was handed the gun at his request and started shooting out the window. Ms.

Montano was the only person who actually claimed to see the direction in which Mr.


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No.30340-3-III
State v. Nieves


Nieves shot the gun. According to her written statement to police, Mr. Nieves "pointed

back towards the cop and fired about five more times." Ex. 84 at 2-3.

       Mr. Martinez decided to abandon the car. Everyone immediately got out and

started running. At one point during their tlight, Mr. Nieves stopped the group, loaded

his gun, and said, "whoever snitches me out, when I come out, I'm going to kill you

guys." Report of Proceedings (RP) at 246. Mr. Nieves then singled out Ms. Barajas and

said, "especially you." Id. He singled her out because he knew that her cousin was a

"buster," which is a Sorefio slur for members of rival Nortefio gangs. Mr. Nieves was a

member of the South Side Locos, a local Sorefio gang.

       The next day, Mr. Martinez went to the police and reported the car stolen at the

party. Mr. Martinez returned to the police on the following day, confessed to the

incident, and informed them of Mr. Nieves's involvement. He said that he had falsely

reported the first time out of fear of being a suspect in the drive-by shooting.

       After the identification of Mr. Nieves as the shooter, police went to his mother's

house and arrested him on an unrelated probation violation. Later that day, police

obtained and executed a search warrant for the house. During the search, police found a

9mm pistol wrapped in a blue bandana. In a nearby closet, police found a box of bullets

that matched the brand of the two 9mm bullet casings that police found along the




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No. 30340-3-III
State v. Nieves


highway near the shooting. Ballistics testing later identified the gun as the weapon that

fired the casings found along the highway.

       The State filed seven felony charges against Mr. Nieves. He defended on the basis

that he was not present during the shooting and flight, but was at a party. Nonetheless,

the jury found Mr. Nieves guilty on all charges and found that five of them were

committed with a deadly weapon. The court subsequently imposed an exceptional

sentence of 500 months on the assault count. He, timely appealed to this court.

                                        ANALYSIS

       Mr. Nieves presents a number of issues on appeal. I:'irst, he argues that the State

did not present sufficient evidence of each of the alternative means of intimidating a

witness. Second, he argues that the definition of "threat" used at his trial misstates the

law. Third, he argues the trial court erred by admitting evidence pertaining to his gang

and his gang membership and, fourth, that two ofthe jury instructions relating to his gang

membership deprived him of a fair trial. Fifth, he argues that the trial court erred by

admitting two Smithl affidavits. Sixth, he argues RCW 9A.36.045(1) (criminalizing

drive-by shootings) as originally enacted violated Washington State Constitution article




       I   State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982).

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No. 30340~3~III
State v. Nieves


II, section 19? Seventh, he argues that the State failed to present sufficient evidence of

the crime of assault in the first degree. Eighth, he argues that the trial judge commented

on the evidence in violation of Washington State Constitution article IV, section 16. 3

Ninth, he argues that the warrant to search his mother's house lacked probable cause.

Tenth, he argues the sentencing court exceeded its authority by ordering him to pay a

second DNA (deoxyribonucleic acid) fee. 4 We take these issues up in turn. s

Witness Intimidation

        The jury convicted Mr. Nieves of intimidation of three witnesses: Mr. Luis

Enrique Flores Martinez, Ms. Vanessa Barajas, and Ms. Silvia Espino. The instructions

read:




        2This argument is meritless. A constitutionally infirm statute may be cured by a
later amendment or reenactment, which we presume to be constitutional absent argument
to the contrary. Morin v. Harrell, 161 Wn.2d 226, 228, 23l~32, 164 P.3d 495 (2007).
The statute has been amended on mUltiple occasions since its enactment, including by
Initiative 159. LAWS OF 1995, ch. 129, § 8. For similar reasons, we also decline to
review his second contention that the original title of the bill that criminalized drive-by
shooting created an implied element.
       We decline to review this argument because it was not properly briefed. See
        3
Alexander v. Gonser,42 Wn. App. 234, 236 n.2, 711 P.2d 347 (1985).
        This contention also is meritless since RCW 43.43.754(2) is written in
        4
permissive language neither requiring, nor prohibiting, courts from ordering a second
DNA fee and sample from repeat offenders.
        S He also presents a cumulative error argument that we do not address in light of
the fact that we find only a single error.
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No.30340-3-II1
State v. Nieves


              To convict the defendant of the crime of intimidating a witness as
      charged in Count 5, each of the following elements of the crime must be
      proved beyond a reasonable doubt:
              (1) That on or about November 1, 20 I 0, the defendant by use of a
      threat against a current or prospective witness, to-wit: [victim], attempted to
              (a) influence the testimony of that other person or
              (b) induce that person to elude legal process summoning him or her
              to testify or
              (c) induce that person to absent himself or herself from an official
              proceeding or
              (d) induce that person not to report the information relevant to a
              criminal investigation or
              (e) induce that person not to have the crime prosecuted or
              (f) induce that person not to give truthful or complete information
              relevant to a criminal investigation; and
              (2) That this act occurred in the State of Washington.
              If you find from the evidence that element (2) and any of alternative
      elements (l)(a), (l)(b), (l)(c), (l)(d), (l)(e) or (1)(f) have been proved
      beyond a reasonable doubt, then it will be your duty to return a verdict of
      guilty. To return a verdict of guilty, the jury need not be unanimous as to
      which alternatives (1)(a), (1)(b), (1)(c), (l)(d), (l)(e) or (1)(f) has been
      proved beyond a reasonable doubt, as long as each juror finds that at least
      one alternative has been proved beyond a reasonable doubt.
              On the other hand, if, after weighing all the evidence, you have a
      reasonable doubt as to anyone of elements (1) or (2), then it will be your
      duty to return a verdict of not guilty.

Clerk's Papers (CP) at 670.

      Unless it elects between the alternative means, the State must present sufficient

evidence to convict on each and every alternative means presented to the jury. State v.

Boiko, 131 Wn. App. 595, 598-99, 128 PJd 143 (2006). Mr. Nieves argues that the State




                                            6

No. 30340-3-111
State v. Nieves


failed to present sufficient evidence to convict him of each of the alternative means .. We

agree. 6

           In Bolko, the defendant also was convicted of intimidating a "current or

prospective witness." ld. at 598. Mr. Boiko's friend had raped a minor and Mr. Boiko

later told the victim that "he was going to shaot her horse if she did not lie about" the

friend. ld. at 597. Here, Mr. Nieves pulled out his gun, loaded it, and told the group,

"whoever snitches me out, when 1 come out, I'm going to kill you guys." RP at 246. Just

as in this case, the trial court in Boiko instructed on each of the alternative means for

committing this crime. Bo iko , 131 Wn. App. at 598. As here, there was no election of

means in Bolko. ld. at 599.

       This court reversed because "there is no evidence that Mr. Boiko attempted to

induce [the victim] to elude legal process summoning her to testifY or that he attempted

to induce her to absent herself from such proceeding." ld. at 600. Those same alternative

means were instructed in this case under (1 )(b) and (1)( c) above.

       Following Bolko, Mr. Nieves argues that the State failed to present sufficient

evidence to convict him of these alternative means. A threat to kill people who snitch

immediately after the crime has been committed is not an attempt to induce them to elude



      The State tries to distinguish Boiko based on the instruction given in that case.
       6
However, the two instructions have no meaningful difference.

                                                7

No.30340-3-III
State v. Nieves


a summons under alternative (1)(b) because no summons has been issued. The threat

also failed to satisfy alternative (1)(c) because it was not an attempt to induce someone to

absent themselves from an official proceeding that does not yet, and might never, exist.

       Mr. Nieves also challenges the sufficiency with regards to alternatives (1)(e) and

(I)(f). We agree that the evidence is insufficient under alternative (1)(e) because a threat

to nonvictim witnesses who have no say in or control over charging decisions is not an

attempt to have the crime not prosecuted. Mr. Nieves's threat to kill any snitchers does,

however, satisfy alternative (1 )(f) because someone who gives truthful or complete

information to authorities would be "snitching." While the evidence supports some of the

alternative instructional theories, it does not support all of them. The three counts are

reversed and remanded for a new trial with proper instructions. Bo iko , 131 Wn. App. at

601.

Sufficiency ofWPIC 2.24's Definition of "Threat"

       Mr. Nieves next argues that WPIC 7 2.24, used in this case to define "threat" for

the intimating a public servant count, exceeds the statutory definition by encompassing

nonverbal threats where RCW 9A.76.l80(3) only reaches verbally communicated threats.




       11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
       7
CRIMINAL (3d ed. 2008) (WPIC).

                                              8

No. 30340-3-III
State v. Nieves


This is a question of statutory interpretation, which we review de novo. Berger v.

Sonne land, 144 Wn.2d 91, 104-05,26 P.3d 257 (2001).

       "A person is guilty of intimidating a public servant if, by use of a threat, he or she

attempts to influence a public servant's vote, opinion, decision, or other official action as

a public servant." RCW 9A.76.l80(1).8 "Threat" means: "(a) To communicate, directly

or indirectly, the intent immediately to use force against any person who is present at the

time; or (b) Threats as defined in RCW 9A.04.11O." RCW 9A.76.180(3). In turn, RCW

9A.04.110(28) also defines "threat" in terms of "to communicate." Thus, under both ,

subsections (a) and (b) of section 180, threat means "to communicate." The legislature

has not defined the word "communicate." Where the legislature does not specifically

define a statutory term, the court will read the word according to its plain and ordinary

meaning. First Covenant Church v. City o/Seattle, 120 Wn.2d 203,220,840 P.2d 174

(1992).

       Several Washington cases have held under these statutes that communication

encompasses both verbal and nonverbal communication. In Burke, this court held that a

defendant's fighting stance "like a boxer" met the definition of a "threat" under this

statute. State v. Burke, 132 Wn. App. 415, 421, 132 P.3d 1095 (2006). In Toscano, this



      8 We quote the current version ofRCW 9A.76.l80(l), which was amended by
Laws of20l1, ch. 336, § 407, to make the language gender neutral.

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No.30340-3-III
State v. Nieves


court agreed with Burke and held that the crime of intimidating a public servant 


encompasses nonverbal threats. State v. Toscano, 166 Wn. App. 546,554,271 P.3d 912, 


review denied, 174 Wn.2d 1013 (2012). There, however, we reversed the conviction 


because the acts of failing to yield and blocking an intersection for the purpose of 


interrupting a police chase were "not clear nonverbal communication" like in Burke. 


ld. 


        In analogous circumstances, courts have held that the display of a deadly weapon

alone can be sufficient to communicate a threat. This court once determined that the

nonverbal act of setting a gun down next to a rape victim was sufficiently threatening to

constitute "threatened ... use of a deadly weapon" for first degree rape. State v. Lubers,

81 Wn. App. 614,620-21,915 P.2d 1157 (1996). The definition of "threatens" as used in

the rape statute is the same definition used in the crime of intimidating a public servant.

State v. Bright, 129 Wn.2d 257,270,916 P.2d 922 (1996) (defining "threatens" for

purposes of rape by reference to RCW 9A.04.110). In Bright the court concluded that the

act of wearing a holstered weapon while committing a rape constituted a "threat" under

RCW 9A.04.11O. Bright, 129 Wn.2d at 270.

        We believe that if displaying a deadly weapon is sufficient to constitute a threat,

the act of firing that weapon at another person undeniably constitutes the communication




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No.30340-3-II1
State v. Nieves


ofa threat for purposes ofRCW 9A.76.l80(3)(b) and RCW 9A.04.110. Thus, WPIC

2.24 does not misstate the law and the trial court did not err in using it here.

Admissibility o/Gang-Related Evidence

       The court admitted substantial evidence of Mr. Nieves's membership in the South

Side Locos, crimes committed by the Locos, and the identity of other Locos members.

Mr. Nieves challenges the admission of this evidence as irrelevant under ER 401 and 402,

unfairly prejudicial under ER 403 because of its irrelevance, and inadmissible character

evidence under ER 404.

       Evidentiary rulings are reviewed for abuse of discretion. State v. Guloy, 104

Wn.2d 412,429-30,705 P.2d 1182 (1985). "In close cases, the balance must be tipped in

favor of the defendant." Statev. Wilson, 144 Wn.App.166, 177, 181 P.3d 887 (2008).

An erroneous evidentiary ruling is not prejudicial "unless, within reasonable

probabilities, had the error not occurred, the outcome of the trial would have been

materially affected." State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).

       Because of First Amendment concerns, "evidence of criminal street gang

affiliation is not admissible in a criminal trial when it merely reflects a person's beliefs or

associations." State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009). "Accordingly,

to admit gang affiliation evidence there must be a nexus between the crime and gang

membership." Id. Here, the trial court admitted the evidence to prove: (1) the special


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No. 30340-3-III
State v. Nieves


allegation of criminal street gang membership under RCW 9.94A.829; (2) who

committed the crime of witness intimidation against Ms. Barajas; and (3) both Mr.

Nieves's unlawful possession of a firearm and his use of the firearm against Officer

Slabach. The evidence was relevant for each of these purposes.

       The special allegation required proof that Mr. Nieves belonged to a "criminal

street gang." RCW 9.94A.829. The South Side Locos is not a "criminal street gang"

unless it is a gang. The Locos is not a gang unless it is a "group of three or more

persons." RCW 9.94A.030(12). Thus, the State needed to present evidence that the

Locos had other members. The Locos also is not a gang unless it has "a common name

or common identifying sign or symbol." Id. Thus, the State needed to present evidence

regarding the Locos' identifying symbols and characteristics.

       A gang is not a "criminal street gang" unless it has "as one of its primary activities

the commission of criminal acts," that its members "engage in or have engaged in a

pattern of criminal street gang activity," and that the Locos operate on an ongoing basis.

Id. Thus, the State needed to present evidence of other crimes committed by the Locos to

show that it was an ongoing criminal organization and that these crimes were committed

to further the gang's interests or to further the status of one of its members. Thus, the

gang evidence presented by the State was relevant to proving the special allegation.




                                             12 

No. 30340-3-III
State v. Nieves


       While that reason alone is sufficient to support the court's ruling, the evidence also

was properly admitted for the other identified purposes. The use of Surefio slang to

threaten Ms. Barajas helped identify Mr. Nieves as the one who intimidated her.9 The

use of a gang slur suggested that a gang member made the threat. Thus, the evidence

helped the State prove its case on that count.

       Finally, the gang evidence also was relevant to prove possession ofthe gun. The

fact that it was wrapped in a blue bandana is what tied Mr. Nieves to the gun, but the

evidence was meaningless without the knowledge that the blue bandana also was the

uniform and a symbol of Mr. Nieves's gang. Thus, the trial court did not err by finding

the gang membership evidence relevant to proving who possessed the gun used in the

drive-by shooting and to proving Mr. Nieves's unlawful possession of a firearm. to

       Mr. Nieves also argues that the gang evidence was inadmissible character

evidence under ER 404. However, it was admissible for several reasons, including proof

of identity. ER 404(b). In addition to proving the "criminal street gang member or

associate" element, the evidence also identified Ms. Barajas's intimidator and the identity

of the owner of the gun found at Mr. Nieves's home.




       9 He denied being present during the shooting and subsequent flight.
       10Because Mr. Nieves's ER403 argument hinged on the evidence being
irrelevant, that contention also necessarily fails.

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No.30340-3-II1
State v. Nieves


       Mr. Nieves also argues that the trial court erred in failing to conduct a complete

ER 404(b) analysis on the record. "Before admitting evidence under ER 404(b), 'the trial

court must ( 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 of the evidence against its prejudicial effect.'" State v. McCreven,

170 Wn. App. 444, 458,284 PJd 793 (2012) (internal quotation marks omitted) (quoting

State v. Asaeli, 150 Wn. App. 543, 576, 208 P.3d 1136 (2009)), review denied, 176

Wn.2d 1015 (2013). Failure to conduct such an analysis on the record is an evidentiary

error. Id. at 455. However, the error is not reversible unless it is shown to be harmful.

Id. at 460.

       The error in McCreven was harmful because the gang evidence at issue there was

irrelevant to prove identity because it was evidence about a gang other than the one to

which the defendants belonged. Id. at 455-56. Furthermore, McCreven did not receive a

proper limiting instruction. Id. at 456-57. Neither deficiency is present in this case.

Even if a complete balancing was not conducted on the record, the trial court's reasoning

is sufficiently in the record to explain the ruling. The court did not err by admitting the

gang-related evidence.




                                             14 

No. 30340-3-III
State v. Nieves


Gang-Related Jury Instructions

       Mr. Nieves next challenges the trial court's jury instructions that defined several

gang-related terms and limited the use of the gang-related evidence. "We review the

court's choice ofjury instructions for abuse of discretion." State v. Butler, 165 Wn. App.

820,835,269 P.3d 315 (2012). But, we "review claims oflegal error, including whether

the instruction amounts to a comment on the evidence, de novo." Id.

       Instruction 45 defined "criminal street gang," "criminal street gang member or

associate," "pattern of criminal street gang activity," and "criminal street gang-related

offense." For reasons similar to why the gang-related evidence was relevant to proving

the special allegation, these statutory definitions were also necessary for the jury to

determine whether the special allegation of criminal street gang membership applied.

       RCW 9.94A.829 establishes a special allegation that the offense of unlawful

possession of a firearm was committed by "[a] criminal street gang member or associate."

To apply this special allegation, the jury must find "by a preponderance of the evidence

that the accused is a criminal street gang member or associate as defined in RCW

9.94A.030." RCW 9.94A.829. "Criminal street gang member or associate" is a statutory

term of art; thus, the jury needed to know how the legislature defined it.

       That term is defined by reference to another statutory term of art: the person's

participation in a "criminal street gang." RCW 9.94A.030(12). "Criminal street gang" is


                                             15 

No.30340-3-III
State v. Nieves


defined by reference to yet another statutory term of art: the gang members must engage

in a "pattern of criminal street gang activity." ld. Finally, "pattern of criminal street

gang activity" is defined by still another statutory term of art: the pattern of criminal

activity must include "criminal street gang-related offenses." RCW 9.94A.030(36).

Because each of the four terms defined in Instruction 45 was necessary for understanding

and applying the special allegation, the trial court did not err by giving this instruction.

       Mr. Nieves also takes exception to Instruction 46, which limited the use of the

gang evidence to the three issues discussed above. He argues that the instruction was

overly broad because the gang-related evidence was not admissible for each of the

instructed purposes. Having already found that the trial court properly admitted the gang-

related evidence, this argument necessarily fails. The court likewise did not err in giving

Instruction 46.

Admissibility ofthe Smith Affidavits

       At trial, the State called Ms. Espino and Ms. Montano as witnesses, but they

contradicted their previous statements to police when they took the stand. The State was

then permitted to impeach their testimony through admission of their Smith affidavits. In

Smith, the Supreme Court held that a "sworn statement given during a police-station

interrogation" is admissible under ER 801(d)(I) as long as "'[m]inimal guarantees of




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No. 30340-3-III
State v. Nieves


truthfulness'" were met. Smith, 97 Wn.2d at 861-62 (quoting D. LOUISELL & C.

MUELLER, FEDERAL EVIDENCE § 419, at 169-71 (1980)).

       In Smith, those minimal guarantees of truthfulness were that "the statement was

attested to before a notary, under oath and subject to penalty for perjury." Id. at 862.

"Additionally, the witness wrote the statement in her own words." Id. But, Smith did not

hold that each of those is necessary in every case and did not define "minimal guarantees

oftruthfulness" because "each case depends on its facts with reliability the key." Id. at

863. Along with "minimal guarantees of truthfulness," the court must also consider

"whether the witness voluntarily made the statement," "whether the statement was taken

as standard procedure in one of the four legally permissible methods for determining the

existence of probable cause," and "whether the witness was subject to cross examination

when giving the subsequent inconsistent statement." State v. Nelson, 74 Wn. App. 380,

387,874 P.2d 170 (1994) (citing Smith, 97 Wn.2d at 861-63).

       "The proponent of the statement's admissibility bears the burden of proving each

of these elements." State v. Nieto, 119 Wn. App. 157, 161, 79 P.3d 473 (2003). The

decision to admit evidence is reviewed for an abuse of discretion. Id. "If the trial court

based its evidentiary ruling on an incomplete legal analysis or a misapprehension of legal

issues, the ruling may be an abuse of discretion." Id. Mr. Nieves argues that the trial

court abused its discretion by admitting the.affidavits.


                                             17
No. 30340-3-III
State v. Nieves


       Minimal guarantees oftruthfulness. An unsworn statement may have the same

force and effect as a sworn statement if it:

              (1) Recites that it is certified or declared by the person to be true
       under penalty of perjury;
              (2) Is subscribed by the person;
              (3) States the date and place of its execution; and
              (4) States that it is so certified or declared under the laws of the state
       of Washington.

RCW 9A.72.085.

       In Nelson, this court held that a Smith statement made in compliance with this

statute satisfies the minimal guarantees of truthfulness. 74 Wn. App. at 390. In the

present case, the affidavits fully complied with RCW 9A.72.085.

       Mr. Nieves invites this court to hold that these statements must be notarized in

order to satisfy the minimal guarantees of truthfulness because affidavits in Smith and

Nelson were both notarized. In light of the fact that RCW 9A.72.085 exists to guarantee

truthfulness in the absence of a statement being notarized, we decline to hold that Smith

affidavits always require a notary's services. Accordingly, the Smith affidavits in this

case satisfy the minimal guarantees of truthfulness.

       Voluntariness ofthe statements. Mr. Nieves next challenges the voluntariness of

the statements. Nelson is the only case to explicitly discuss voluntariness. There, a

woman arrested for prostitution was allegedly promised by police that charges would not

be pressed and she would be released if she named her pimp. Nelson, 74 Wn. App. at

                                               18 

No. 30340-3-111 

State v. Nieves 



388. The appellant argued that the statement was coerced by these promises, but the

Court of Appeals disagreed because when police broke their alleged promise to the

witness she did not appear upset about it. Id. This implies that (1) the alleged promise

was never made or (2) she did not rely on the promise when making her statement.

       In the present case, the question ofvoluntariness revolves around the effect of two

days of questioning of the witnesses. The two young women were initially questioned

separately on November 3,2010. Ms. Espino was 15 years old when police questioned

her and 16 at the time of trial. She was questioned alone by two male detectives and did

not want to talk to them. Displeased with Ms. Espino's silence, the detectives decided to

lie to her and threaten her in order to coax her to talk. One detective started suggesting

that she shot at the officer. Ms. Espino continued to deny her guilt. The detective

proceeded to tell her that Mr. Nieves accused her of being the shooter and that she faced

life in prison for the attempted murder of a police officer if she did not talk. The

detective told her that she might as well be dead if she did not cooperate. He told her that

the officer was shot. He told her that "the big boy [is saying that] [t]he bitches did it."

RP at 621. Mr. Nieves in fact never once spoke to police and never once made any

accusati ons.




                                              19 

No. 30340-3-111
State v. Nieves


       While going through the Smith factors, the court permitted Mr. Nieves's counsel to

read an excerpt of this detective's statements from the interview transcript to refresh Ms ..

Espino's memory:

       Well, you might-you might have done it, that's for you to decide. That's
       for you to make the determination. You were in the car, so it's one of
       eight. There was eight people in the car. You were one. Do you
       understand what I'm saying? Do you understand that the boy that probably
       did it has a lot to lose-meaning he's got a lot to lose? Do you know what
       he's going to do, he's going to try to pin it off on somebody else. Now, you
       can sit here as smug as you want to sit­

               -you can sit here as smug as you want to sit and sit there and act
       like you don't care, but understand that you've got the rest of your life to
       think about it and if your DNA and fingerprints are in the car, there ain't
       nothing from him saying, yup, she did it, Silvia [Espino] did it, 1 didn't do
       it. Do you understand that? Do you understand that what the rest of your
       life is might as well be being dead?

RP at 610-11. The detectives then transitioned into discussing Ms. Espino's two

brothers-in-law who had been murdered recently. At that point, Ms. Espino started

crying and asking for her mom, which caused the detectives to end the interview.

       The following day, Ms. Espino agreed to give a statement. During this second

interview, a different detective was present as well as a female juvenile corrections

officer. Ms. Espino was also told during this second interview that she could leave at any

time. She explained her changed attitude as caused by a conversation she had with her

mother after the first interview who also told Ms. Espino that she was being accused of



                                             20 

No. 30340-3-III
State v. Nieves


the shooting. Her mother's misinformation came from the same detective who said Ms.

Espino might as well be dead.

       On November 3,2010, the same two detectives also questioned Ms. Montano.

She was 13 years old. Like her sister, Ms. Montano did not want to talk to them. To get

her to talk, the detectives made her fear for her sister. At one point, a detective told her,

"Maybe you don't care about your sister or maybe it's not you that [Mr. Nieves] dimes

out, maybe it's your sister. You don't care about her either?" RP at 742. Ms. Montano

responded that she did care about her sister. To which, the detective responded, "why are

you going to let [Mr. Nieves] do that to your sister? ... Dime your sister out. Said Silvia

[Espino] did it." RP at 747.

       The following day, Ms. Montano agreed to make a statement to the same detective

and the juvenile corrections officer who were present for Ms. Espino's second interview.

When the detectives asked Ms. Espino why she had changed her mind about talking, she

responded, "it was because my mom told me that [the detective] said that I could get in

trouble for it and get 25 years for something that I didn't do." RP at 737.

       Compared to Nelson, the voluntariness of Ms. Espino's and Ms. Montano's

statements is questionable due to the coercive tactics applied here. Both young women

stated that these tactics did in fact influence their decision to make the statements.




                                              21 

No. 30340-3-III
State v. Nieves


       However, the affidavits still contained minimal guarantees of truthfulness, were

taken as standard procedure for determining the existence of probable cause, and the

witnesses were subject to extensive cross-examination at trial. The trial court permitted

defense counsel to read extensively from the interview transcripts, giving the jury the

flavor of the interrogation that led to the affidavits. Thus, even if the statements were not

voluntary, that factor does not so obviously outweigh the other three factors as to render

the admission of the affidavits an abuse of discretion.

Sufficient Evidence ofAssault in the Fir sf Degree

       In addressing a sufficiency of the evidence challenge, we view the evidence in a

light most favorable to the State and ask whether any rational trier of fact could have

found the essential elements of the charged crime beyond a reasonable doubt. State v.

Rempel, 114 Wn.2d 77, 82, 785 P .2d 1134 (1990). Here, Mr. Nieves argues that there

was insufficient evidence of his specific intent to assault Officer Slabach.

       His argument is based on the fact that there was no live testimony regarding where

Mr. Nieves aimed the gun. Officer Slabach was looking down at his speedometer. Ms.

Barajas ducked. Mr. Martinez only saw Mr. Nieves point the gun out the window. Ms.

Espino and Ms. Montano both denied Mr. Nieves's very presence. However, Ms.

Montano's affidavit says that Mr. Nieves "pointed back towards the cop and fired about

five more times." Viewing the evidence in a light most favorable to the State, Ms.


                                             22
No. 30340-3-III
State v. Nieves


Montano's affidavit is sufficient for a jury to find beyond a reasonable doubt that Mr.

Nieves had specific intent to assault Officer Slabach.

Probable Cause to Search Mr. Nieves's Mother's House

       "A search warrant may issue only upon a determination of probable cause." State

v. Thein, 138 Wn.2d 133, 140,977 P.2d 582 (1999). Probable cause exists when the

evidence establishes "a reasonable inference" that "evidence of a crime can be found at

the place to be searched." Id. The probable cause showing also "'requires a nexus

between criminal activity and the item to be seized, and also a nexus between the item to

be seized and the place to be searched.'" Id. (quoting State v. Goble, 88 Wn. App. 503,

509,945 P.2d 263 (1997)). "Although we defer to the magistrate's determination, the

trial court's assessment of probable cause is a legal conclusion we review de novo."

State v. Neth, 165 Wn.2d 177, 182, 196 PJd 658 (2008) (citing State v. Chamberlin, 161

Wn.2d 30, 40-41, 162 PJd 389 (2007)).

       A search warrant issued on November 2,2010, authorizing a search of Mr.

Nieves's mother's house, where Mr. Nieves lived, for "firearms [and] ammunition

apparently accessible by [Mr.] Nieves prior to his arrest." CP at 68. Mr. Nieves argues

that the detective did not have any information establishing a nexus between the house

and the gun. Because the gun was last seen two days earlier in Ephrata, Washington




                                            23 

No. 30340-3-111
State v. Nieves


(over 30 miles from Mr. Nieves's Royal City home), he argues that the gun was no more

likely to be found in his home than in Ephrata.

       Thein held that the State cannot establish a nexus between the items to be seized

and the place to be searched simply because the suspect resides at the place to be

searched. Thein, 138 Wn.2d at 148-49. However, Thein does have limits. It specifically

exempted "personal items of continuing utility" from its holding. Id. at 149 n.4. The

court noted that in "specific circumstances it may be reasonable to infer such items will

likely be kept where the person lives." Id. '''Where the object of the search is a weapon

used in the [commission of a] crime or clothing worn at the time of the crime, the

inference that the items are at the offender's residence is especially compelling, at least in

those cases where the perpetrator is unaware that the victim has been able to identify him

to police.'" Id. (alteration in original) (quoting WAYNE R. LAFAVE, SEARCH AND

SEIZURE § 3.7(d), at 381-85 (3d ed. 1996).

       We believe a firearm is a "personal item of continuing utility" that is usually kept

at a suspect's residence. In this case, it was all the more likely to be found at the

residence because Mr. Nieves was arrested less than two days after commission of the

crime and before he knew that he had been identified to the police. Furthermore, the fact

that Mr. Nieves reloaded the gun and threatened to shoot anyone who snitched suggested

his intent to retain possession of the firearm. Because no firearm was found on Mr.


                                             24
No.30340-3-III
State v. Nieves


Nieves at the time of his arrest, it was likely that the firearm was nearby the place of

arrest (Le., his house). Putting these facts together, there was probable cause to believe

that Mr. Nieves's gun would be found at his residence.

       Affirmed in part, reversed in part, and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                      ,
                                                                Korsmo, C.l.

WE CONCUR:




       Brown, l.




                                             25 

