                                                                            FILED
                                                                         MARCH 15, 2018
                                                                   In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division Ill




               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION THREE

STATE OF WASHINGTON,                             )
                                                 )          No. 34705-2-III
                        Respondent,              )
                                                 )
          V.                                     )
                                                 )
RAYMOND RICHARD RAAB,                            )          UNPUBLISHED OPINION
                                                 )
                        Appellant.               )

          KORSMO, J.   - Raymond Raab challenges his convictions for two counts of

intimidating a public servant and two counts of obstructing a law enforcement officer,

primarily arguing that the jury instructions commented on the evidence. We disagree and

affirm.

                                            FACTS

          Mr. Raab, age 74 at the time of this incident, lives on property he owns in rural

Okanogan County northeast of Tonasket. On October 22, 2015, firefighters spotted a

small unattended fire in a rural area during a bum ban. Two two-man firefighting crews

arrived at the scene to put out the fire. They were met by Mr. Raab, apparently

intoxicated, who opposed their efforts to fight the fire.
No. 34705-2-111
State v. Raab


       Engine leaders Enrique Ortega and Cody Epps attempted to negotiate with Mr.

Raab, telling him they would not issue a citation ifhe only let them put out the fire. The

leaders were accompanied by crew members Carlos Moreno and Mick Fulmer. Mr. Raab

threatened to get a rifle and shoot the crews. The firefighters left the property and called

for assistance from the Okanagan County Sheriff.

       By the time a deputy sheriff had arrived, Mr. Raab had put out the fire with a

garden hose. Mr. Raab was arrested and eventually charged with four counts of

intimidating a public servant and four counts ofobstructing a law enforcement officer.

Each firefighter was identified as the victim ofone count for each offense.

       The matter proceeded to jury trial. The court dismissed the obstruction charges

involving the two crew members at the conclusion ofthe State's case. For each ofthe six

remaining charges, the first element ofthe "to convict" instruction included a

parenthetical identifying the firefighter involved in that charge. In each instance, the first

element ofthe intimidating charge states (in part): "attempted to influence a public

servant's opinion, decision or other official action as a public servant ([name ofspecific

victim])." Clerk's Papers (CP) at 25-28. Similarly, the first element ofthe obstructing a

law enforcement officer charges stated that the State needed to prove the defendant

"willfully hindered, delayed, or obstructed a law enforcement officer ([name of

firefighter]) in the discharge ofthe law enforcement officer's official powers or duties."

CP at 30-31.

                                              2
No. 34705-2-III
State v. Raab


       Mr. Raab denied threating to shoot the firefighters. The defense argued the case to

the jury on the theory that his actions did not amount to intimidation because he never

sought to retrieve his gun. He also argued there was no obstruction because his fire was

lawfully set and that the crew's fire-fighting obligations did not extend to his fire. The

jury acquitted on the intimidation charges involving the two crew members, but

convicted on all four charges relating to the two crew leaders.

       The court discussed with Mr. Raab at sentencing his ability to pay legal financial

obligations (LFOs). Mr. Raab's sole income was his social security retirement, but he

owned 110 acres ofland valued at $60,000. When asked ifhe could pay a minimum of

$50 per month, he agreed that he could. The court imposed LFOs of$1260.50; $800.00

ofthat figure consisted ofmandatory assessments.

       Mr. Raab timely appealed to this court. A panel considered the matter without

argument.

                                         ANALYSIS

       This appeal argues that the court commented on the evidence in each ofthe six

elements instructions by including the names ofeach firefighter in parentheses. Mr. Raab

also argues that the court erred in finding he was able to pay his LFOs and requests that

we waive appellate costs. We address first the instructional issue, followed by joint

consideration ofthe financial matters.



                                             3
No. 34705-2-III
State v. Raab


      Instructions

       Mr. Raab argues that the parenthetical reference to each firefighter's name

constituted a judicial comment on the evidence. We disagree, but further note that any

error also would be harmless under these facts.

       "Judges shall not charge juries with respect to matters of fact,nor comment

thereon,but shall declare the law." WASH. CONST. art. IV,§ 16. This provision

"prohibits a judge from conveying to the jury his or her personal attitudes toward the

merits ofthe case." State v. Becker, 132 Wn.2d 54,64, 935 P.2d 1321 (1997). The

purpose ofthis provision "is to prevent the jury from being unduly influenced by the

court's opinion regarding the credibility,weight,or sufficiency ofthe evidence." State v.

Sivins, 138 Wn. App. 52,58,155 P.3d 982 (2007) (citing State v. Eisner, 95 Wn.2d 458,

462,626 P.2d 10 (1981)). "A statement by the court constitutes a comment on the

evidence ifthe court's attitude toward the merits ofthe case or the court's evaluation

relative to the disputed issue is inferable from the statement." State v. Lane, 125 Wn.2d

825,838,889 P.2d 929 (1995). Thus,a jury instruction which removes a factual matter

from the jury constitutes a comment on the evidence in violation ofthis section. Becker,

132 Wn.2d at 64-65. In determining whether a statement by the court amounts to a

comment on the evidence,a reviewing court looks to the facts and circumstances ofthe

case. State v. Jacobsen, 78 Wn.2d 491,495,477 P.2d 1 (1970).



                                            4
No. 34705-2-III
State v. Raab


       Mr. Raab bases his argument primarily on State v. Jackman, 156 Wn.2d 736, 132

P.3d 136 (2006). There the defendant was charged with three counts of sexual

exploitation of a minor involving three different victims. Id. at 740-741. The second

element for each count (with different initials and dates of birth for each count), required

the State to establish "that B.L.E., DOB 04/21/1985, was a minor." Id. at n.3. The court

unanimously agreed that instructing the jury on the victim's birthdate was a comment on

the evidence since the youth of the victim was one of the elements the State needed to

prove in order to establish the case. Id. at 744. Presenting the birthdates to the jury as a

statement of fact conveyed the impression that the judge believed the dates had been

proven. Id.

       A similar problem was presented in Becker. There, a special verdict form asked

the jury if the crime had been committed within 1,000 feet of a school, "to-wit: Youth

Employment Education Program School." 132 Wn.2d at 64. The parties had contested at

trial whether the Youth Employment Education Program constituted a school or not. Id.

at 63. Because the form stated that the program was a school, the special verdict

constituted a comment on the evidence. Id. at 65.

      Mr. Raab equates the parentheticals used in his case with the jury instructions used

in Jackman and Becker. For two reasons, his equation fails. First, in both of the earlier




                                             5
No. 34705-2-III
State v. Raab


decisions, the plain language of the elements instructions stated as fact one of the

elements the State needed to prove. Here, the parenthetical notations of the names of the

firefighter involved in each count did not address an element of the crime. The State was

under no obligation to prove the name of each public servant it contended was

intimidated or obstructed by Mr. Raab, so the inclusion of the name could not logically

have constituted a comment on an element of the offense. 1 The names in the

parentheticals were a modifying phrase; they were not elements of the offense.

       There is a second reason, however, that Mr. Raab's argument is fundamentally

flawed. He wrongly views the parenthetical name reference as somehow proving the

status of public servant. For instance, in the intimidation of a public servant context, Mr.

Raab treats the public servant element as if it was proven by the mere identification of a

firefighter's name. It was not. The parenthetical refers to th� phrase it is modifying, not

the other way around. If for example, the instruction had read: "Enrique Ortega, a public

servant," Mr. Raab would have an argument that it constituted a comment on the evidence

by indicating that Mr. Ortega was a public servant. Here, that was not the case. Even if

the inclusion of the name in the parenthetical amounted to a judicial comment, it would be




       1
        We also question, but do not decide, whether the inclusion of the name in a
parenthetical notation was otherwise the equivalent of a "to wit" designation such as that
used in Becker.

                                             6
No. 34705-2-III
State v. Raab


only a comment about what the firefighter's name actually was. It would not prove the

specific named firefighter was a public servant-the fact that the State needed to prove.2

       For both reasons,there was no error. But,even if there had been an error,it was

harmless.

       An improper judicial comment is presumed to be prejudicial. State v. Levy, 156

Wn.2d 709, 723-725,132 P.3d 1076 (2006); State v. Bogner, 62 Wn.2d 247,382 P.2d

254 (1963). However, such an error is harmless where the record contains overwhelming

untainted evidence to support the conviction. Lane, 125 Wn.2d at 839-840; Sivins, 138

Wn. App. at 60-61. Under this standard,the appellate court looks to the untainted

evidence to determine if it is so overwhelming that it necessarily leads to a finding of

guilt. State v. Guloy, 104 Wn.2d 412,426,705 P.2d 1182 (1985).

       That standard is satisfied here. The names of the individual firefighters were not a

contested issue in the case. More critically,the fact that the firefighters were public

servants likewise was not in issue,and the fact that firefighters were law enforcement

officers was a correct statement of law. As noted earlier,Mr. Raab denied making the

threat that the firefighters claimed he made and also asserted that his failure to seek out



       2
        Mr. Raab's argument is even weaker in the context of the obstructing a law
enforcement officer charge. There,the jury was told by instruction 19 that firefighters
were law enforcement officers. CP at 38. Thus,even if the name of the firefighter was
equivalent to identifying him as a law enforcement officer,it constituted a correct
statement of law instead of a comment on the facts of the case.

                                              7
No. 34705-2-111
State v. Raab


his weapon meant he had not threatened them: The fact that firefighters were public

servants and/or law enforcement officers simply was not at issue in this case. If the court

commented on the evidence by noting the identity of the firefighters, the error was

harmless in light of the uncontested nature of the elements, which were amply supported

in fact.

       Mr. Raab has not established the existence of prejudicial error. The convictions

are affirmed.

       Cost Issues

       Lastly, Mr. Raab argues that the trial court erred in imposing discretionary LFOs

and that this court should waive costs on appeal.3 We defer the appellate cost issue to our

commissioner in the event that the State claims costs. RAP 14.2. Therefore, we briefly

tum to the LFO issue.

       The trial court assessed $460.50 worth of discretionary LFOs. Mr. Raab agreed

with the trial judge that he was able to pay $50 per month. In light of that agreement, it is

difficult to understand how the trial judge may have erred or how Mr. Raab can now say

that the court erred in accepting his agreement. On these facts, we see no error.


       3 Mr. Raab also filed a statement of additional grounds that raises two contentions.
The first involves matters outside the record of this case and cannot further be
considered. The second involves Mr. Raab's interruption of the testimony of Mr. Epps
and somehow equates his outburst with suppression of testimony. Since the outburst
from counsel table is not evidence, we fail to understand how any evidence was
suppressed. The claim is without merit.

                                             8
No. 34705-2-111
State v. Raab


       Nonetheless, Mr. Raab still has the ability to file a motion for remission of the

discretionary costs. RCW 10.01.160(4). He can explain any change of circumstances

that justifies remitting those costs or otherwise indicate how he erred in agreeing that he

could pay the $50 per month.

       The convictions are affirmed.

      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.




WE CONCUR:



      Lawrence-Berrey, A.      .J�\
                                 j


      Pennell, J.    )   ""




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