                                                                            FILED 

                                                                         JULY 23, 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. 30242-3-111
                                               )         Consolidated with
                     Respondent,               )         No. 30243-1-111
                                               )
               v.                              )
                                               )
URIEL PONCE,                                   )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )
                                  1
       BROWN, J. - Uriel Ponce appeals his felony harassment and witness tampering

convictions, contending we must reverse both for insufficient evidence. We affirm his

felony harassment conviction, but reverse his witness tampering conviction for

insufficient evidence. Additionally we review, and reject, his claims surrounding the trial

court's late filing of written CrR 3.5 factual findings and legal conclusions.

                                              FACTS

       Considering Uriel's evidence sufficiency challenge, we present the facts in the

light most favorable-to the State. See State v. Green, 94 Wn.2d 216,221,616 P.2d 628

(1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560


       1  To avoid confusing appellant with his brother, we address Uriel Ponce as
"Uriel" and Jose Ponce as "Jose." We intend no disrespect.
No. 30242-3-111, consol. with No. 30243-1-111
State v. Ponce

(1979». Antonia Ponce and her son, Jose Ponce, each worked at a Taco Bell in Pasco.

The store manager, Freddy Chavez, eventually fired Jose and fired Ms. Ponce four or

five months later. Ms. Ponce sued Taco Bell for wrongful termination. During her

employment, Mr. Chavez periodically interacted with Ms. Ponce's sons, including Uriel,

and became familiar with their voices.

       On January 10, 2011, Mr. Chavez answered a telephone call at work. The caller,

who was male, requested Mr. Chavez's name. When Mr. Chavez responded, the caller

spoke profanities, saying Mr. Chavez "was a b***h" because he "talked s**t to women."

Report of Proceedings (RP) at 106. Then, the caller said he was going to "beat" and

"kill" Mr. Chavez, telling him to "come outside" upon the caller's arrival. RP at 106. Mr.

Chavez hung up the telephone and reported the conversation to law enforcement about

five minutes later, upon a coworker's suggestion.

       Based on what the caller said, Mr. Chavez thought there was a possibility the

caller would carry out his threat. Because the threat seemed related to Ms. Ponce's

lawsuit against Taco Bell and the caller sounded like one of her sons, Mr. Chavez

became concerned for his and his family's safety. Thus, Mr. Chavez dialed *69 from the

Taco Bell line, wrote down the last telephone number to call in, and gave it to law

enforcement, who determined it belonged to Uriel's cellular phone. Jose had no access

to Uriel's cellular phone at the time.

       The State charged Uriel with felony harassment, witness tampering, and witness

intimidation. Uriel did not ask Jose if he was involved in the criminal charges or pending




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No. 30242-3-111, consol. with No. 30243-1-111
State V. Ponce

trial. But Uriel's girl friend, Kelsey Cavazos, wrote a confession on behalf of Jose, who

signed it upon Uriel's prompting. The confession states,

         I Jose Ponce admit guilt for threatening Freddy Chavez, the charge for
         which my brother Uriel Ponce was charged for. I was angry with my
         brother. We had, had an altercation, I had stolen his phone, and made a
         phone call to Taco Bell. I asked Freddy if they accepted Visa, then
         proceeded to threaten him. I was angry because Freddy had fired me and
         my mom, and because of the resulting lawsuit my mom had with Taco
         Bell. I knew the cops would go for my brother because of his criminal
         record. I knew the cops would take him, no questioning, but did not think
         of the reprocusisions [sic] my brother faced. All this happened on the day
         of 1.10.11 at around between 12:45 pm - 1:OOpm.

                                           x    Jose Ponce

Ex. 5.

         Jose signed the confession "[o]ut of fear" for his safety because he thought Uriel

"would do something to [him] if [he] didn't." RP at 214, 221. But Jose never threatened

Mr. Chavez. Uriel later admitted to Ms. Ponce that he, not Jose, made the telephone

call to Taco Bell. Uriel told Ms. Ponce he convinced Jose to sign the confession

because he was a juvenile and would receive a less severe sentence than Uriel. About

a month after signing it, Jose recanted the confession in a meeting with a prosecutor

and detective.

         Following a CrR 3.5 suppression hearing, the trial court ruled orally to admit

certain statements Uriel gave law enforcement during arrest and interrogation. But the

trial court did not enter written CrR 3.5 factual findings and legal conclusions.




                                               3

No. 30242-3-111, conso/. with No. 30243-1-111
State V. Ponce

       Uriel did not testify at trial. A jury found him guilty of felony harassment and

witness tampering but acquitted him of witness intimidation. He appealed each

conviction separately. This court consolidated the two appeals.

       In his second opening brief, Uriel requested remand for the trial court to enter

written CrR 3.5 factual findings and legal conclusions. The trial court did so

preemptively about two months later. The State then supplemented the clerk's papers

and argued in its second responsive brief that the belated entry is harmless error

because Uriel cannot show it prejudiced him. He did not file a reply brief.

                                         ANALYSIS

                                 A. Evidence Sufficiency

      The issue is whether sufficient evidence supports Uriel's felony harassment and

witness tampering convictions. 2 He contends we must reverse both convictions

because the State failed to prove certain elements beyond a reasonable doubt.

      The Fourteenth Amendment Due Process Clause requires the State to prove all

essential elements of a charged crime beyond a reasonable doubt. U.S. CONST.

amend. XIV, § 1; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970). And, "The Double Jeopardy Clause forbids a second trial for the purpose of

affording the prosecution another opportunity to supply evidence which it failed to

muster in the first proceeding." Burks   V.   United States, 437 U.S. 1, 11, 98 S. Ct. 2141,


      2  At the close of evidence, Uriel moved unsuccessfully for either dismissal or a
directed verdict based on insufficient evidence to prove witness tampering. We review
the denial of Uriel's motion de novo, performing the same function as the trial court.
See State v. Longshore, 141 Wn.2d 414,420,5 P.3d 1256 (2000); State V. Jackson, 82
Wn. App. 594,607-08,918 P.2d 945 (1996).

                                                4

No. 30242-3-111, con sol. with No. 30243-1-111
State v. Ponce

57 L. Ed. 2d 1 (1978) (construing U.S. CONST. amend. V). Evidence is sufficient to

support a guilty finding if, '''after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.'" Green, 94 Wn.2d at 221 (emphasis omitted)

(quoting Jackson, 443 U.S. at 319). An evidence sufficiency challenge "admits the truth

of the State's evidence and all inferences that reasonably can be drawn therefrom."

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We defer to the jury's

assessment of witness credibility and evidence weight or persuasiveness. State v.

Carver, 113 Wn.2d 591, 604, 781 P.2d 1308,789 P.2d 306 (1989).

       First, Uriel challenges his felony harassment conviction. A defendant is guilty of

harassment if, without lawful authority, he or she "knowingly threatens ... [t]o cause

bodily injury immediately or in the future to the person threatened or to any other

person," and "by words or conduct places the person threatened in reasonable fear that

the threat will be carried out." RCW 9A.46.020(1)(a)(i), (b). This form of harassment is

a class C felony if the defendant "threaten[s] to kill the person threatened or any other

person." Former RCW 9A.46.020(2)(b)(ii) (2003).

       Uriel contends insufficient evidence shows he, by words or conduct, placed Mr.

Chavez in reasonable fear Uriel would fulfill his threat to kill. We disagree because Mr.

Chavez testified he thought, based on what the caller said, a possibility existed the

caller would carry out his threat. Mr. Chavez recounted he became concerned for his

and his family's safety because the threat seemed related to Ms. Ponce's lawsuit

against Taco Bell and the caller sounded like one of her sons. Thus, a rational jury


                                              5

No. 30242-3-111, conso!. with No. 30243-1-111
State v. Ponce

could infer the caller's words caused Mr. Chavez to reasonably fear the caller would

carry out his threat. And, Ms. Ponce testified Uriel admitted he, not Jose, made the call

to Taco Bell. Other witnesses confirmed the call came from Uriel's cellular phone, to

which Jose had no access at the time. Viewing the evidence in the light most favorable

to the State, a rational jury could 'find beyond a reasonable doubt that Uriel's words

placed Mr. Chavez in reasonable fear Uriel would fulfill his threat to kill. Therefore, we

affirm Uriel's felony harassment conviction.

       Second, Uriel challenges his witness tampering conviction. A defendant is guilty

of witness tampering if he or she "attempts to induce a witness or person he or she has

reason to believe is about to be called as a witness in any official proceeding" to

"[t]estify falsely," "withhold any testimony," or "[a]bsent himself or herself from such

proceedings." RCW 9A.72.120(1)(a)-(b). Additionally, a defendant may, by statute, be

guilty of witness tampering with respect to "a person whom he or she has reason to

believe may have information relevant to a criminal investigation." RCW 9A.72.120(1).

But the trial court omitted this element from the jury instructions without objection.

Therefore, the omission is the law of the case. See State v. Hickman, 135 Wn.2d 97,

102, 954 P.2d 900 (1998). While the State attempts to fill this void by applying the jury

instruction defining a "current or prospective witness," the definition applies solely to

witness intimidation, not witness tampering. 11A WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CRIMINAL 115.53 note on use at 439 (3d ed. 2008).

       Moreover, Uriel aptly contends insufficient evidence shows he knew Jose was a

witness or had reason to believe he was about to be called as such in Uriel's criminal


                                               6

No. 30242-3-111, consol. with No. 30243-1-111
State v. Ponce

trial. Under RCW 9A. 72.120(1)'s applicable language, "The accused must know that

the person approached is a witness, or ... have reason to believe that he is about to be

called as such." State v. Stroh, 91 Wn.2d 580,583,588 P.2d 1182 (1979); see State v.

Rempel, 53 Wn. App. 799,805,770 P.2d 1058 (1989), rev'd on other grounds, 114

Wn.2d 77 (1990). While the State apparently identified Jose as a potential witness

before Uriel prompted him to sign the confession, no testimony or exhibit disclosed this

fact. Jose recounted Uriel did not ask him if he was involved in the criminal charges or

pending trial. And, Uriel did not testify regarding his knowledge. A rational jury would

lack evidence to infer Uriel knew Jose was a witness or had reason to believe he was

about to be called as such in Uriel's criminal trial. Viewing the evidence in the light most

favorable to the State, a rational jury could not find this essential element beyond a

reasonable doubt. Therefore, we reverse Uriel's witness tampering conviction and

remand for the trial court to dismiss the charge.

                                B. Written CrR 3.5 Record

       The issue is whether the trial court reversibly erred by failing to enter written CrR

3.5 factual findings and legal conclusions until after Uriel filed his second opening brief

with this court. His initial request for remand is now moot because we can no longer

provide such relief. See In re Oet. of Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828

(1983). Thus, we instead consider the State's argument that reversal is unwarranted

because the belated entry is harmless error.

       Following a CrR 3.5 suppression hearing, a trial court "shall set forth in writing:

(1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts;


                                             7

 No. 30242-3-111, consol. with No. 30243-1-111
 State v. Ponce

 and (4) conclusion as to whether the statement is admissible and the reasons therefor."

CrR 3.5(c). A trial court's belated entry of written CrR 3.5 factual findings and legal

conclusions is harmless error unless a party shows it prejudiced him or her. State         V.


Eaton, 82 Wn. App. 723,727,919 P.2d 116 (1996); see State            V.   Moore, 61 Wn.2d 165,

175,377 P.2d 456 (1963).

       Here, the trial court's later written decision is consistent with its prior oral ruling,

which was itself sufficient to permit meaningful appellate review. And, the trial court

could not have tailored its later written decision to the issues presented on appeal

because Uriel has not challenged admission of his statements to law enforcement.

Therefore, the belated entry is harmless error because Uriel cannot show it prejudiced

him.

       Affirmed in part. Reversed in part, and remanded for dismissal of the witness

tampering charge.

       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.


                                                    Brown, J.
WE CONCUR:



'Korsmo, C.J.                                       Si~(f·

                                               8

