                                                                FILED 


                                                           APR 18,2013 


                                                  In the Office of the Clerk of Court 

                                                 WA State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                        )           No. 30653-4-III
                                            )
                           Respondent,      )
                                            )
        v.                                  )           UNPUBLISHED OPINION
                                            )
RUDY RAY CORDOVA,                           )
                                            )
                           Appellant.       )

      KORSMO, C.J. -Rudy Ray Cordova challenges the sufficiency of the evidence

supporting the jury's determination that he committed felony harassment against a police

officer. Although thin, we conclude there was sufficient evidence and affirm.

                                         FACTS

      Mr. Cordova called 911 to report that he had been assaulted by his wife. Spokane

Police Department Officers Holton Widhalm and Chris McMurtrey responded to the

report. The officers split up to interview Mr. and Mrs. Cordova separately. Officer

Widhalm initially interviewed Mr. Cordova; the two officers later switched so that each

officer interviewed each member of the couple. Both officers observed that Mr. Cordova
No. 30653-4-III
State v. Cordova

was intoxicated and slurring his words. He also was bleeding from his lip and had

smeared blood on his cheek.

       Mrs. Cordova did not want her husband arrested or prosecuted. However, during

his interview of Mr. Cordova, Officer McMurtrey determined that Mr. Cordova had been

the initial aggressor and would have to be arrested. When the officer communicated that

information, Mr. Cordova became agitated and then increasingly angrier. Mr. Cordova

accused the officer of racism, but the officer testified that he "just shucked it off." Report

of Proceedings (RP) at 251.

       Mr. Cordova then began yelling at Officer McMurtrey. As Mr. Cordova became

even angrier, Officer McMurtrey called for Officer Widhalm to come into the room. Mr.

Cordova was seated on an ottoman while Officer McMurtrey stood near him. Mr.

Cordova remained seated while yelling at the officer. He stood up at the request of the

officers and was handcuffed without incident after a third officer arrived at the scene.

       While walking to the car, Mr. Cordova asked Officer McMurtrey for his name; the

officer supplied the information. Mr. Cordova responded, saying, "'That's how people

die right there.'" RP at 237. Mr. Cordova then repeated the statement and added,

'''That's how people die, by taking the wrong people to jail.'" RP at 237-38. He then

said, "'You don't have shit on me. Don't worry, I'll get out ofjail tomorrow and find out

where you guys live. I've been to prison. '" RP at 238. Officer McMurtrey also testified

that Mr. Cordova's tone and demeanor were cold and deliberate and that his whole body
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No. 30653-4-II1
State v. Cordova

was tensed when he made those statements. It was not a joking situation; the officer

interpreted the remarks as Mr. Cordova being very angry at him. At the car, Mr. Cordova

"bowled his chest out" and took a small step toward the officer. RP at 240.

       When asked at trial if he had been concerned about the statements, Officer

McMurtrey answered "yes." He also testified that he was "a little big aghast at the direct

nature of the threat." RP at 238. The officer noted that in the computer age it was easy

to discover where someone lived and that was one reason the incident was "concerning."

Officer Widhalm provided similar testimony concerning the statements. He was "very

worried" about them. RP at 223.

       The prosecutor ultimately filed charges of fourth degree assault for the altercation

with Mrs. Cordova and felony harassment for the statements made to Officer McMurtrey.

Prior to trial the prosecutor moved in limine to admit testimony that the officers had

received information from dispatch concerning Mr. Cordova. Officer McMurtrey told

the court that the officers had been advised of his criminal history, alerting them that he

was a convicted felon and armed career criminal. The dispatcher also relayed a T3 code,

which was a caution notice for the officers. RP at 77. After hearing argument from

counsel, the court excluded evidence that Mr. Cordova was a convicted felon and ruled

that use of the word "career" might mislead the jury. RP at 157-58. At trial, Officer

McMurtrey testified only that dispatch had alerted the officers that Mr. Cordova was an



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No.30653-4-II1
State v. Cordova

"armed criminal" and a temperament code 3, indicating an officer safety caution. RP at

227-28.

       The two officers and Mrs. Cordova were the only witnesses at trial. The defense

argued self-defense on the assault charge and that it was not reasonable for the officers to

fear the threats Mr. Cordova had made. The jury acquitted on the assault count, but

convicted on the harassment charge.

       Mr. Cordova timely appealed to this court.

                                       ANALYSIS

       Mr. Cordova challenges the sufficiency of the evidence to support the jury's

verdict and the court's decision to admit some evidence of the dispatcher's

communication to the officers.

       Sufficiency ofthe Evidence

       Well-established standards govern review of a sufficiency of the evidence

challenge. Such challenges are reviewed to see ifthere was evidence from which the trier

of fact could find each element of the offense proved beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v.

Green, 94 Wn.2d 216, 221-22, 616 P .2d 628 (1980). The reviewing court will consider

the evidence in a light most favorable to the prosecution. Green, 94 Wn.2d at 221-22.

       As charged here:

      (1) A person is guilty of harassment if:
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No. 30653~4-II1
State v. Cordova

              (a)    Without lawful authority, the person knowingly threatens:
              (i)    To cause bodily injury immediately or in the future to the
       person threatened or to any other person; 

              .... and 

              (b)    The person by words or conduct places the person threatened
       in reasonable fear that the threat will be carried out.

RCW 9A.46.020.

       The issue in this case concerns the sufficiency of the evidence establishing the

elements of subsection (1 )(b) of the statute. By its terms, that language requires proof of

both the victim's subjective fear ("places the person threatened in ... fear") and the

reasonableness of the fear. State v. Cross, 156 Wn. App. 568, 582-83, 234 P.3d 288

(2010); State v. Alvarez, 74 Wn. App. 250, 260-61, 872 P.2d 1123 (1994), affd, 128

Wn.2d 1,904 P.2d 754 (1995); 13A SETH A. FINE & DOUGLAS J. ENDE, WASHINGTON

PRACTICE: CRIMINAL LAW § 1308, at 259 (2d ed. 1998).

       Although he did not argue the point below, Mr. Cordova contends here that there

was no evidence that Officer McMurtrey was in subjective fear since he was only

"concerned" about the threat. Mr. Cordova also reprises his trial argument that it was not

reasonable to feel threatened in this circumstance. Since the evidence overlaps, we

address these two elements together.

       Mr. Cordova bases his argument on language in State v. CG., 150 Wn.2d 604, 80

P.3d 594 (2003). That felony harassment case was charged under a theory that the

defendant had threatened to kill the victim, but the victim only testified that he had


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No. 30653-4-111
State v. Cordova

"concern" that the defendant "might try to harm him." Id. at 607. The court ruled that

the statute required proof"that a threat to kill will be carried out." Id. at 610. It then

concluded the evidence was insufficient, stating:

          there is no evidence that [the victim] was placed in reasonable fear that she
          would kill him.

Id.

          The State's case in e.G. failed because there was no threat to kill rather than there

being no actual threat. Use of the word "concern" did not itself fail to satisfy the statute;

if the   e. G. court had felt there was no threat at all, as opposed to no death threat, it would
not have needed to address the "kill" issue and would simply have reversed the case for

lack of evidence of a threat. Thus, the prosecutor's failure here to ask if Officer

McMurtrey was in "fear" is not insufficient evidence as a matter of law.

          Instead, the question is whether the totality of the evidence established both that

the officer had a subjective fear and that it was a reasonable fear. It did. Not only did the

officer express his "concern" and that he was "aghast" about Mr. Cordova's statements,

he explained why-in the Internet age it is comparatively easy to locate another person.

The direct nature of the threat to kill also caught his attention, and the defendant's body

language showed that he was angry with the officer. Following the defendant's

unsolicited statement that he had been in prison and would soon be released from jail

after this arrest, the officer understandably took the remarks as a threat that caused him


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No.30653-4-II1
State v. Cordova

fear. Indeed, Mr. Cordova has never suggested there was some innocent purpose to his

comments. On these facts, the jury was permitted to conclude that the officer feared Mr.

Cordova's threats.

       Those same facts help establish that the fear was reasonable. Not only was there a

threat to kill coming from a self-admitted felon who was angry and aggressive, the

officers had received a temperament "caution" from dispatch before meeting Mr.

Cordova. That information, in light of subsequent developments, could understandably

raise concerns about the seriousness of the threat. A victim's knowledge of the

defendant's past behavior is highly probative evidence that bears directly on the

reasonableness of the victim's fear. State v. Barragan, 102 Wn. App. 754,9 P.3d 942

(2000)~   State v. Ragin, 94 Wn. App. 407, 411,972 P.2d 519 (1999) (per curiam); State v.

Binkin, 79 Wn. App. 284, 291, 902 P.2d 673 (1995). There was sufficient evidence for

the jury to conclude the officer's fear was reasonably justified.

       The evidence was sufficient to support the jury's determination that Officer

McMurtrey was placed in reasonable fear that Mr. Cordova would kill him.

       Officer Caution

       Mr. Cordova also challenges the trial court's decision, allegedly in violation ofER

404(b), to admit evidence that Mr. Cordova was an "armed criminal" whose temperament

suggested that the officers proceed with caution. We are not convinced this truly presents



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No. 30653-4-III
State v. Cordova

an ER 404(b) issue. The trial court carefully considered the evidence and did not abuse

its discretion.

       Evidentiary rulings, including those under ER 404(b), are reviewed for abuse of

discretion. State v. DeVincentis, 150 Wn.2d 11,17,74 P.3d 119 (2003). Discretion is

abused if ,it is exercised on untenable grounds or for untenable reasons. State ex rei.

Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).

       The purpose of ER 404(b) is to prohibit the admission of evidence that suggests

that the defendant is a "criminal type" and thus likely guilty of committing the crime with

which he is charged. State v. Lough, 125 Wn.2d 847,853,889 P.2d 487 (1995). When

ER 404(b) evidence is admitted, the trial court is required to state its reasoning on the

record. State v. Jackson, 102 Wn.2d 689,693,689 P.2d 76 (1984). As an evidentiary

matter, ER 404(b) does not implicate constitutional concerns. Id. at 695.

       Mr. Cordova argues, as he did in the trial court, that the dispatch information

should have been excluded under ER 404(b) as previous "bad acts" evidence. He

specifically contends on appeal that the trial court erred in failing to find there was a

factual basis for the police department's assessment of his character and.in failing to

balance the prejudicial impact of the information against its probative value. We do not

agree that this presents an ER 404(b) issue.

       Admittedly, this court previously has treated similar evidence as an ER 404(b)

problem. In both Barragan and Ragin, this court assessed trial court rulings admitting

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No.30653-4-III
State v. Cordova

evidence of a defendant's own statements to victims detailing prior bad acts under an ER

404(b) analysis. I We do not believe that approach is proper in this case. What was at

issue here was not the defendant's own prior bad acts, but, instead, law enforcement's

assessment of the defendant in light of his prior actions.

       Appellant agrees, somewhat begrudgingly, that this is not a true "bad acts" case. 2

Instead, he argues that because the police assessment implies that he has a bad criminal

record, it is the functional equivalent ofER 404(b) evidence and should itselfbe

subjected to analysis under that rule. By moving the focus from the evidence used at trial

to the basis for that evidence, his argument loses its force. The police assessment is not

itself "other crimes, wrongs, or acts" to which ER 404(b) applies. 3 The assessment

reflects law enforcement opinion of Mr. Cordova based on his prior conduct, but the

assessment itself is not a prior bad act of the defendant. ER 404(b) is not applicable to


       I Both Barragan and Ragin followed the approach used in Binkin, 79 Wn. App.
284. The problem with that approach is that Binkin involved a case where the evidence
admitted was a prior bad act-a previous assault by the defendant against the victim-in
order to establish the ieasonablenessofher fear of his threat in the current harassment
prosecution. Neither Barragan nor Ragin involved efforts to establish a prior bad act of
the defendant; both involved use of the defendant's own statements to the victim.
       2"Although this evidence is not 'prior bad act' evidence per se, these un attributed
statements about Mr. Cordova's reputation with the police department imply prior bad
acts have occurred to lead to these statements in his police record." Br. of Appellant at
11 n.1.
       3Whether the assessment was objectively accurate, something that trial counsel
argued needed to be proved, was irrelevant. What was relevant was the effect of the
defendant's threat on the officers in light of that assessment.

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No. 30653-4-111
State v. Cordova

this situation anymore than it would be to the opinion of a witness 4 or impeachment by

prior conviction, 5 all of which can have basis in the prior bad acts of the defendant or

witness.

       Instead, the appropriate rule is ER 403, which permits the trial court to exclude

probative evidence when its "value is substantially outweighed by the danger of unfair

prejudice." The trial court applied ER 403 in its analysis of this evidence and used it to

exclude particularly prejudicial components of the police assessment while leaving the

most probative evidence in place. The trial court carefully exercised its authority and did

not abuse its discretion in its ruling. The reasonableness of the officer's fear was an

element of the State's case and made evidence of why the threafshould be taken

seriously highly probative. Barragan, 102 Wn. App. 754; Ragin, 94 Wn. App. 407;

Binkin, 79 Wn. App. 284. The trial court carefully limited the evidence to its core

components (defendant was an armed criminal who should be approached with caution)

while limiting the more prejudicial and extraneous elements. The court carefully

weighed the situation and did not abuse its discretion in striking its balance. There was

no error.

       The conviction is affirmed.




       4   ER 405; ER 701; ER 702; ER 703. 

       5    ER609. 


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No.30653-4-II1
State v. Cordova

      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.J.

WE CONCUR:




      Brown, J.




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