                                                                          FILED
                                                                       MARCH 21, 2019
                                                                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. 35554-3-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
NOE RUIZ ROQUE,                               )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, J. —Noe Ruiz Roque challenges on appeal his conviction for felony

harassment, his two convictions for cyberstalking, and features of sentencing on those

three convictions. We grant Ruiz Roque partial relief. We vacate without prejudice for

retrial one of the convictions for cyberstalking. We remand for recalculation of his

offender score and for vacation of some of the legal financial obligations.

                                         FACTS

       We garner all facts from a jury trial. Patricia Campos and Noe Ruiz Roque

became Facebook friends. After meeting in person for the first time in April 2017, Ruiz

Roque and Campos spent part of nearly every day together for two months. The dating
No. 35554-3-III
State v. Ruiz Roque


relationship led to a sexual relationship. During the relationship, Campos observed Ruiz

Roque with a revolver handgun.

       In June 2017, Patricia Campos withdrew her affection and presence from Noe

Ruiz Roque. In response, Ruiz Roque grew angry and verbally abusive. Ruiz Roque’s

anger frightened Campos, and she developed concern for her safety and the security of

her daughters. Campos then occasionally threatened Campos with not seeing her

daughters again.

       During the weeks following Patricia Campos’ initial attempt to end her

relationship with Noe Ruiz Roque, she continued to sporadically visit with him because

he told her of the “things he would do if [she] didn’t.” Report of Proceedings (RP) at

184. Campos continually tried to end the relationship, but Ruiz Roque threw fits so she

acquiesced to appease his anger. The fitful behavior included driving recklessly through

Campos’ neighborhood, banging on Campos’ house door sometimes while Campos’

daughters slept, and standing near a window at Campos’ residence.

       Between July 1, 2017 and July 4, 2017, Noe Ruiz Roque dispatched Patricia

Campos many text messages in Spanish. Campos claims the text messages contained

threats. The content and repetition of the text messages on July 3 and July 4, but not July

1, constitute the facts underlying the criminal charges.

       Whether through fear, a wish not to remember, limited command of the English

language, or a personality trait, Patricia Campos’ trial testimony provided few details

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about Noe Ruiz Roque’s texts. Campos testified, in part:

             [The State:] Did he threaten to kill you?
             [Patricia Campos:] I don’t remember.
             [The State:] Okay. How many text messages did he send you when
      you called the police? How many had he sent you?
             [Patricia Campos:] That night? Hundreds.
             [The State:] And what about previously?
             [Patricia Campos:] Thousands.
             [The State:] Had you told him that you didn’t want to be contacted
      by him?
             [Patricia Campos:] Yes.

RP at 174-75.

      Patricia Campos further testified:

             [The State:] Okay. Were you ever afraid when he was texting you
      —did—did he ever threaten you in the texts?
             [Patricia Campos:] Yes.
             [The State:] And were you afraid of those texts?
             [Patricia Campos:] Yes, because I believed what he was saying.
             [The State:] What did you think he could do to you if he wanted to?
             [Patricia Campos:] Exactly what he said.
             [The State:] What was?
             [Patricia Campos:] I don’t remember.
             ....
             [Patricia Campos:] . . . I was scared he was going to do what he
      said. He said it was like hunting.
             [The State:] Okay. Were you afraid he was going to hunt you?
             [Patricia Campos:] That’s what he said he was doing.
             ....
             [The State:] Were you scared?
             [Patricia Campos:] I was more scared for my friends that were there.
             [The State:] Okay. Was that—do you remember what day that was?
             [Patricia Campos:] No.
             [The State:] Did the text messages continue?
             [Patricia Campos:] Yes.


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RP at 178-80.

      On cross-examination, Patricia Campos testified:

             [Defense counsel:] I think you indicated, Ms. Campos, that the thing
      you were worried about was the idea that Mr. Ruiz Roque was going to
      hunt you? That’s what you testified to? Right?
             [Patricia Campos:] What?
             [Defense counsel:] You testified that you were concerned that Mr.
      Ruiz Roque was going to do what he had said he would do?
             [Patricia Campos:] Yeah. He said he was going to do it and the way
      that he acted and things he said, I had no reason to not believe it.
             [Defense counsel:] Okay. And that was what he said he was going
      to do was to hunt you? Right?
             [Patricia Campos:] It was through text something in that sort, but
      that’s what it meant.

RP at 186-87.

      Patricia Campos first reported harassing text messages from Noe Ruiz Roque to

law enforcement on July 1, 2017. On July 1, Officer Tim Weed of the Ellensburg Police

Department took photos of the text messages on Campos’ phone. Officer Weed

estimated that he saw one hundred messages. Weed summoned Officer Andrew Hall,

fluent in Spanish, to join Weed and Campos in reviewing the texts. Hall observed

Campos as trembling and tearful.

      During trial, the trial court admitted as an exhibit eighty pages of photographs

taken by Officer Tim Weed on July 1 of text messages sent by Noe Ruiz Roque to

Patricia Campos. The State projected photographs of the messages onto a screen, while

Ellensburg Police Department Officer Andrew Hall, a certified interpreter, translated


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from Spanish to English, for the jury, some of the photographed text messages. Hall

testified concerning the texts sent on July 1:

              [The State]: Okay. So, this one says 9:38 p.m. What’s concerning
       about that message and what is—what are the words in that message?
              HALL: What I’m going to do is translate the idea.
              [The State]. Okay.
              HALL: I’m not going to do anything about touching or anything.
       I’m just going to hunt deer and that’s what I’m going to do and see.
              [The State]: Okay. Why was that concerning to you?
              HALL: Why would he be talking about hunting deer? And it seems
       to me based on the context of that and some of the other messages that were
       sent that he was using that as a reference to go after a—somebody that she
       knows.
              ....
              [The State]: Were there text messages about a rifle?
              HALL: There was. There was a mention of a rifle.
              [The State]: Okay. And was that concerning to you?
              HALL: Well, if somebody’s making threats and referencing hunting
       deer and using a rifle, then that was a concern to me.
              [The State]: Okay. Aside from the hunting references and the rifle
       references, anything else in those text messages that were concerning to
       you?
              HALL: That he was referencing not her, but somebody that she
       knows—that he was going to go after somebody that she knows.
              [The State]: Okay.
              HALL: And I don’t know who that person was.

RP at 234-35.

       Patricia Campos next reported harassing text messages from Noe Ruiz Roque to

law enforcement on July 3, 2017. Ellensburg Police Department Officer Ryan Potter met

with Campos at 9:47 that night at a McDonald’s restaurant. Potter noticed that an upset

Campos had been crying. During that night, Ruiz Roque texted Campos “hundreds” of


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State v. Ruiz Roque


texts. Campos returned one text by directing Ruiz Roque to leave her alone.

Nevertheless, Ruiz Roque continued with many threatening text messages. Campos

again grew frightened. Officer Potter took photos of the text messages on Campos’

phone. According to Potter, Campos periodically and scaredly peered over her shoulder

even though she sat in a well-lit parking lot with a police officer by her side. Potter left

Campos’ presence at 11:55 p.m. that night.

       The trial court admitted as a separate exhibit photographs of text messages taken

by Officer Ryan Potter on July 3, and the State showed the photographs on a screen. This

exhibit showed approximately forty texts sent on July 3 between 11:00 p.m. and 11:55

p.m. Officer Andrew Hall again translated some of the July 3 texts from Spanish to

English:

               [The State]: Okay. How about the last one on there?
               HALL: “Good. The rifle is ready.”
               [The State]: Okay. And then I think they pick up kind of here on the
       next—
               HALL: Okay.
               [The State]:—page. You see that “the rifle is ready,” and then what?
               HALL: “Yeah, they’re gonna go.” And I can’t read—11:07 is a
       little washed out. The first word—I’m not sure what it—oh, okay. “I’ll
       come—I came by the house right now” or “I came by your house right
       now, okay.”
               [The State]: And then this last little—
               HALL: And then watchita (sp)? And I’m not—I think that’s a
       mixture of Spanish and English that would mean watch out for yourself.
               [The State]: Okay. How about—can you read—I’m going to hand
       these to you because they’re hard to read on the—the next page after the
       watchita, there are additional text messages after that.
               HALL: Oh, okay. They are kind of dark.

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             [The State]: What—what is being texted after the watch out for
      yourself?
             HALL: [Spanish]. “They don’t sleep, perhaps they’re not going to
      wake up.”
             [The State]: And anything else there?
             HALL: “Don’t get near the windows, okay.” That’s the next one.
             [The State]: Okay.
             HALL: And then the one after that—it’s kind of washed out here. “If
      you—if you go out right now to bring it and you’re going to see that what I
      do okay. That would be about 2, 3, or 4. You’ll see.” And then there’s
      one last one here. “Okay, you played with me and now you’re going pay.”
      And then there’s—I think this message might be cut off.
             [The State]: The next—check the last page.
             HALL: Yeah.
             [The State]: [Inaudible]?
             HALL: It’s—it’s continued here. “You played with me and now
      you’re going to pay with me.”
             [The State]: Any messages after that?
             HALL: Yeah, there’s a whole page here.
             [The State]: Okay. What does it say?
             HALL: “Again you’re going to see what happens okay” and then
      “right now that you get here mine is coming” whatever mine is.
             [The State]: Okay.
             HALL: And then there’s four more blocks here. “Now when you—
      when you go, you’re going to make it secret. I’m not going to tell you
      anything because you have something of mine that you’ll pay for me—that
      you’ll pay for” and then “you wanted to bring this game right now and
      you’ll play it until I say. You’re not going to know when he’s outside, but
      be careful because until the shadows I’m going to haunt. Nothing messages
      now look tonight it’s going to begin—the good thing is going to begin” I’d
      say. And that’s the end of the page.
             [The State]: Okay. Without having a lot of context for what’s going
      on in these messages, do they appear to be threatening in nature?
             HALL: Cryptically so. I mean, it—it depends on what he’s talking
      about, but it seems like you could say yes.

RP at 237-40.

      On July 4, 2017, Officer Ryan Potter contacted Patricia Campos at her residence.

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State v. Ruiz Roque


Officer Potter learned that Campos received additional text messages and even phone

calls from Noe Ruiz Roque after Potter left Campos’ presence at 11:55 the night before.

Law enforcement officers took no photographs of July 4 texts.

       Ellensburg officers arrested Noe Ruiz Roque on the evening of July 4. The text

messages ended only after Ruiz Roque’s arrest.

                                      PROCEDURE

       The State of Washington charged Noe Ruiz Roque with one count of felony

harassment occurring on July 3 and another count of felony harassment occurring on July

4. The State also charged Noe Ruiz Roque with one count of cyberstalking on July 3 and

another count of cyberstalking on July 4. All four counts included a domestic violence

allegation.

       During trial, Noe Ruiz Roque testified in his own defense. He averred that

Patricia Campos was not the intended recipient of his text messages. Instead, Ruiz

Roque, at least on July 3, sent messages through Patricia Campos to Billy Martin. Ruiz

Roque believed Martin to be Campos’ boyfriend, and Ruiz Roque lacked Martin’s

telephone number. Ruiz Roque claimed he sent the texts to tell Martin: “[j]ust for him to

leave me alone—that the rifle was ready.” RP at 276. Ruiz Roque admitted that he sent

text messages on July 3 and that Campos replied to his messages by asking him to leave

her alone.

       The trial court instructed the jury on count IV, July 4 cyberstalking, about two of

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State v. Ruiz Roque


the alternative means of committing cyberstalking:

              To convict the defendant of the crime of cyberstalking, each of the
      following four elements must be proved beyond a reasonable doubt:
              (1) That on or about July 4, 2017, the defendant made an electronic
      communication to another person;
              (2) That at the time the defendant made the electronic
      communication the defendant intended to harass, intimidate, or torment any
      other person;
              (3) That the defendant:
              (a) made the electronic communication repeatedly whether or not a
      conversation occurred; or
              (b) threatened to inflict injury on the person called or to whom the
      electronic communication was made; and
              (4) That the electronic communication was made or received in the
      State of Washington. If you find from the evidence that elements (1), (2),
      and (4), and any of the alternative elements (3)(a) or (3)(b), 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 of alternatives (3)(a) or (3)(b) 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 any
      one of these four elements, then it will be your duty to return a verdict of
      not guilty.

Clerk’s Papers (CP) at 98.

      The jury found Noe Ruiz Roque guilty of felony harassment for conduct on July 3,

but reached no verdict on the alleged harassment based on his conduct on July 4. The

jury found Ruiz Roque guilty of cyberstalking on both July 3 and July 4. As for all three

guilty counts, the jury found that Ruiz Roque and Campos were members of the same

family or household for purposes of the domestic violence allegation. The State



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thereafter dismissed the second count of felony harassment in order to retry Ruiz Roque

on the July 4 charge.

       At sentencing, the trial court assigned Noe Ruiz Roque an offender score of six for

his conviction on felony harassment. This offender score included one point for each of

the following prior felony convictions: a violation of the uniform controlled substances

act on July 3, 2014; three counts of second degree unlawful possession of a firearm on

June 28, 2016, with all three counts scored as a total of three points despite the earlier

sentencing court declaring that the three convictions encompassed the same criminal

conduct; and one point for each of the current cyberstalking convictions. Ruiz Roque did

not object to the inclusion of the earlier firearm convictions as three points or to the

present cyberstalking convictions in his offender score. The trial court sentenced Ruiz

Roque to twenty-seven months on the felony harassment conviction. The sentencing

court also sentenced Ruiz Roque to 364 days on the cyberstalking convictions, with the

364 days to run concurrently with the 27-month sentence for felony harassment.

       At sentencing, the trial court entered a domestic violence no-contact order. The

no-contact order expires on September 8, 2027, ten years from the date of sentencing.

Noe Ruiz Roque did not object to the entry of the order.

       The sentencing court imposed mandatory legal financial obligations on Noe Ruiz

Roque, including a $200 criminal filing fee and a $100 DNA collection fee. The trial

court entered an order of indigency that granted Ruiz Roque a right to appellate review at

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State v. Ruiz Roque


public expense.

                                  LAW AND ANALYSIS

       Issue 1: Does sufficient evidence support Noe Ruiz Roque’s conviction for felony

harassment on July 3?

       Answer 1: Yes.

       Noe Ruiz Roque challenges the sufficiency of the evidence for two of his

convictions: the conviction for felony harassment and the conviction for cyberstalking on

July 4. We address the convictions in such order.

       We recite familiar principles of law concerning sufficiency of the evidence. The

standard of review for determining the sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact

could have found the essential elements of the crime charged beyond a reasonable doubt.

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Green, 94 Wn.2d

216, 220-22, 616 P.2d 628 (1980). When the sufficiency of the evidence is challenged in

a criminal case, all reasonable inferences from the evidence must be drawn in favor of the

State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d at

201. Circumstantial evidence and direct evidence carry equal weight when reviewed by

this court. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). Finally, an

appellate court does not review credibility determinations made by the jury. State v.

Romero, 113 Wn. App. 779, 798, 54 P.3d 1255 (2002).

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No. 35554-3-III
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       Noe Ruiz Roque contends that insufficient evidence supported his conviction of

felony harassment because the evidence presented at trial failed to show that he

threatened to kill Patricia Campos and failed to establish that Campos experienced

reasonable fear that he would execute his threat to kill. Therefore, no rational trier of fact

could have found him guilty for felony harassment on July 3. We disagree.

       RCW 9A.46.020 supplies the elements for the misdemeanor and felony levels of

criminal harassment. The statute reads in relevant part with regard to felony harassment

because of a threat to kill:

               (1) A person is guilty of harassment if:
               (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. “Words or conduct”
       includes, in addition to any other form of communication or conduct, the
       sending of an electronic communication.
               (2)(a) Except as provided in (b) of this subsection, a person who
       harasses another is guilty of a gross misdemeanor.
               (b) A person who harasses another is guilty of a class C felony if any
       of the following apply: . . . (ii) the person harasses another person under
       subsection (1)(a)(i) of this section by threatening to kill the person
       threatened or any other person. . . .

A person is guilty of felony harassment if the person knowingly threatens to kill

someone, immediately or in the future, and the person by words or conduct places the

person threatened in reasonable fear that the threat will be carried out. State v. C.G., 150

Wn.2d 604, 609, 80 P.3d 594 (2003). The statute requires that the person threatened


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subjectively feel fear and the fear must be reasonable. State v. E.J.Y., 113 Wn. App. 940,

952-53, 55 P.3d 673 (2002).

       A statute that makes a threat a crime may prohibit only “‘true threats.’” State v.

Boyle, 183 Wn. App. 1, 7, 335 P.3d 954 (2014). The Washington Supreme Court has

adopted an objective test of what constitutes a “true threat.” State v. Kilburn, 151 Wn.2d

36, 43, 84 P.3d 1215 (2004). A “true threat” is “a statement made in a “context or under

such circumstances wherein a reasonable person would foresee that the statement would

be interpreted . . . as a serious expression of intention to inflict bodily harm upon or to

take the life” of another person.” State v. Kilburn, 151 Wn.2d at 43. A true threat

constitutes a serious threat, not one said in jest, idle talk or political argument. State v.

J.M., 144 Wn.2d 472, 478, 28 P.3d 720 (2001). Whether a statement is a threat depends

on all the facts and circumstances, and the trier of fact should not limit the inquiry to a

literal translation of the words spoken. State v. C.G., 150 Wn.2d at 611 (2003).

       The circumstances of this appeal pose the question of whether a reasonable person

could have foreseen that the text messages dispatched by Noe Ruiz Roque would be

interpreted as a serious expression of an intent to kill Patricia Campos. Ruiz Roque

argues that he did not directly or indirectly threaten to kill Campos on July 3 because

Campos did not remember what Ruiz Roque wrote in the text messages other than “it was

like hunting” and he sent that text message on July 1, not July 3. RP at 179. In so

arguing, Ruiz Roque limits the universe of messages that he sent, including messages

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dispatched on July 3.

       Patricia Campos received alarming text messages from Noe Ruiz Roque on July 3,

2017. The texts include statements like “my rifle is ready.” “I came by your house right

now.” “[W]atch out for yourself.” “Don’t get near the windows.” “You played with me

and now you’re going to pay.” “You’re not going to know when he’s outside, but be

careful because until the shadows I’m going to haunt.” “I’m not going to tell you

anything because you have something of mine that you’ll pay for.” “You wanted to bring

this game right now and you’ll play it until I say.” RP at 237-39.

       A reasonable speaker in Noe Ruiz Roque’s position would foresee that Ruiz

Roque’s statements would be interpreted by a listener as a serious expression of intention

to kill, particularly in light of messages sent on July 1. Patricia Campos testified that Noe

has guns. Campos further testified that she understood Ruiz Roque’s texts to be threats to

“hunt” her. The jury could reasonably infer that “hunting” means killing because of

Campos’ evident fear of Ruiz Roque’s capabilities and her contacting law enforcement

that evening and because of another reference to “rifles.” Officers testified to the

consuming fear experienced by Campos.

       Noe Ruiz Roque further asserts that Patricia Campos was not placed in reasonable

fear that he would perform his threat to kill. Under the law, the State must prove

reasonable fear. RCW 9A.46.020(1)(b). Assuming the evidence establishes the victim’s

subjective fear, a rational trier of fact, viewing the evidence in the light most favorable to

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the State, must still find beyond a reasonable doubt, using an objective standard, that the

victim’s fear was reasonable. State v. Alvarez, 74 Wn. App. 250, 260-61, 872 P.2d 1123

(1994), aff’d, 128 Wn.2d 1, 904 P.2d 754 (1995).

       Noe Ruiz Roque cites State v. C.G., 150 Wn.2d at 610 (2003). In C.G., the State

charged a juvenile with felony harassment after she made the following threat to her

school’s vice-principal: “I’ll kill you Mr. Haney, I’ll kill you.” State v. C.G., 150 Wn.2d

at 606-07. At the adjudicatory hearing, Tim Haney testified that C.G.’s threat caused him

concern, but did not employ a word stronger in emotion than “concern.” Our supreme

court reversed the juvenile’s conviction while finding that no evidence placed Haney in

reasonable fear that she would in fact kill him.

       We see major distinctions between the circumstances faced by Patricia Campos

and the vice-principal in C.G. Campos’ and Ruiz Roque’s intimate relationship lacks

comparison to a student/principal relationship. At the end of the dating relationship,

Campos endured Ruiz Roque’s angry fits when he banged on her windows, drove wildly

through her neighborhood, knocked on her door, and stood by her window to listen. This

erratic behavior caused her to lock her house at certain hours because she knew he would

appear. Contrary to the vice-principal in C.G., Campos testified that Ruiz Roque’s

threatening text caused her fear because she believed his texts. Campos reached out to

the police due to her fear. The police confirmed the consuming fright experienced by

Campos when receiving the messages. A reasonable person, under these circumstances,

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would consider references to hunting her with a rifle a threat to kill. A reasonable person,

confronted with a former lover threatening to get what he is due, would also worry of

death.

         Issue 2: Does sufficient evidence support Noe Ruiz Roque’s conviction for

cyberstalking on July 4?

         Answer 2: Yes.

         Noe Ruiz Roque claims no evidence supported a conviction for the second count

of cyberstalking. The cyberstalking statute, RCW 9.61.260, declares:

                (1) A person is guilty of cyberstalking if he or she, with intent to
         harass, intimidate, torment, or embarrass any other person, and under
         circumstances not constituting telephone harassment, makes an electronic
         communication to such other person or a third party:
                (a) Using any lewd, lascivious, indecent, or obscene words, images,
         or language, or suggesting the commission of any lewd or lascivious act;
                (b) Anonymously or repeatedly whether or not conversation occurs;
         or
                (c) Threatening to inflict injury on the person or property of the
         person called or any member of his or her family or household.

The State relied on subsections (b) and (c) when prosecuting Noe Ruiz Roque.

         Noe Ruiz Roque contends the State presented no evidence of a text on July 4,

2017. He underscores that the exhibits admitted at trial containing the text messages sent

from Ruiz Roque to Patricia Campos contain no text messages from July 4. We agree

that none of the exhibits confirm a text sent on July 4. Nevertheless, testimony of

Patricia Campos and other witnesses permitted the jury to draw reasonable inferences that


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State v. Ruiz Roque


Ruiz Roque repeatedly sent messages on July 4 in violation of subsection (b) of RCW

9.61.260.

       One exhibit confirmed that Noe Ruiz Roque sent approximately forty text

messages from his phone to Patricia Campos between 11:00 p.m. and 11:55 p.m. on July

3, 2017. Campos testified that the texts and phone calls only stopped when police

arrested Ruiz Roque during the evening of July 4. Therefore, the texting must have

continued throughout July 4. Officer Ryan Potter confirmed that Campos received many

text messages and some phone calls from Ruiz Roque after 11:55 p.m. on July 3. July 4

arrived only five minutes later. Other evidence suggests that Ruiz Roque would not

cease his incessant communications until stopped by law enforcement.

       Issue 3: Whether Noe Ruiz Roque was denied his right to a unanimous jury verdict

for cyberstalking on July 4 because evidence did not support one of the alternative means

of committing the crime?

       Answer 3: Yes.

       Noe Ruiz Roque argues that the trial court instructed the jury on alternative means

of committing cyberstalking without including a unanimity instruction. Ruiz Roque

further maintains that, because the State presented insufficient evidence to prove one of

the alternative means for his conduct on July 4, the trial process breached his

constitutional right to a unanimous verdict. We agree.



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       The alternative means determination relates to the constitutionally protected right

of jury unanimity required under article I, section 21 of the Washington Constitution.

State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014). An alternative means crime

results from multiple means of proving the charge. State v. Owens, 180 Wn.2d at 96.

When the State may present compound means of proving the crime, the trial court must

instruct the jury that it must be unanimous as to the particular means on which it convicts,

unless sufficient evidence supports each of the alternative means. State v. Owens, 180

Wn.2d at 95.

       The legislature has not defined what constitutes an alternative means crime or

designated which crimes comprise alternative means crimes. State v. Owens, 180 Wn.2d

at 96. Therefore, the courts must determine whether a crime constitutes an alternative

means crime by reviewing each statute on its own merits. State v. Owens, 180 Wn.2d at

96. We must review the nature of the language employed with regard to differing

methods to commit the crime.

       In one sense, any statute that lists more than one action when defining the crime

creates an alternative means crime. Nevertheless, the law does not deem any such statute

to construct an alternative means crime if the actions, be they described by verbs, nouns,

or prepositional phrases, vary inconsequentially in meaning. Alternative means should

be probed based on how varied the actions are that could constitute the crime. State v.

Owens, 180 Wn.2d at 97. The more varied the criminal conduct, the more likely the

                                            18
No. 35554-3-III
State v. Ruiz Roque


statute describes alternative means. State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87

(2015). But when the statute describes minor nuances inhering in the same act, the more

likely the various “‘alternatives’” are merely facets of the same criminal conduct. State

v. Sandholm, 184 Wn.2d at 734. If no single action expressed in the statute can be

completed without simultaneously completing at least one other action, the various acts

are too similar to constitute distinct alternative means. State v. Butler, 194 Wn. App.

525, 530, 374 P.3d 1232 (2016).

       Use of the disjunctive “or” in a list of methods for committing the crime does not

necessarily create alternative means of committing the crime. State v. Peterson, 168

Wn.2d 763, 770, 230 P.3d 588 (2010). An alternative means analysis places less weight

on the use of the disjunctive “or” and more weight on the distinctiveness of the verbs or

nouns that form the criminal conduct. A statute divided into subparts is more likely to

designate alternative means. State v. Butler, 194 Wn. App. at 528; State v. Lindsey, 177

Wn. App. 233, 241, 311 P.3d 61 (2013).

       Determining whether a crime is an alternative means crime is not an end in itself

but determines what proof the State must present. In alternative means cases, when

substantial evidence supports all alternative means submitted to the jury, unanimity as to

the means is not required. State v. Armstrong, 188 Wn.2d 333, 340, 394 P.3d 373 (2017);

State v. Woodlyn, 188 Wn.2d 157, 164, 392 P.3d 1062 (2017). Conversely, if insufficient

evidence supports any of the means, the constitution demands a particularized expression

                                            19
No. 35554-3-III
State v. Ruiz Roque


of juror unanimity. State v. Woodlyn, 188 Wn.2d at 165. When insufficient evidence

supports one of the alternative means charged and the jury does not specify that it

unanimously agreed on the other alternative, we face the danger that the jury rested its

verdict on an invalid ground. State v. Armstrong, 188 Wn.2d at 343-44.

       I note two anomalies regarding the alternative means crime rule of sufficient or

substantial evidence. First, the constitution demands that one be convicted of a crime

beyond a reasonable doubt. In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed.

2d 368 (1970). One might conclude then that, on review before an appellate court, the

State must provide overwhelming evidence or proof beyond a reasonable doubt of guilt

for each alternative means so that we do not face a compromise of jury unanimity. No

decision forwards such a proposition. Second, one might reason that, if the State

provides overwhelming evidence of guilt on one of the alternative means, harmless error

saves the verdict from reversal. After all, a unanimous jury could convict the accused of

the crime if the evidence supports only one alternative means beyond a reasonable doubt.

No decision supports this proposition.

       The State charged Noe Ruiz Roque with cyberstalking (DV) contrary to RCW

9.61.260, which provides:

              (1) A person is guilty of cyberstalking if he or she, with intent to
       harass, intimidate, torment, or embarrass any other person, . . . makes an
       electronic communication to such other person or a third party:
              (a) Using any lewd, lascivious, indecent, or obscene words, images,
       or language, or suggesting the commission of any lewd or lascivious act;

                                            20
No. 35554-3-III
State v. Ruiz Roque


              (b) Anonymously or repeatedly whether or not conversation occurs;
       or
             (c) Threatening to inflict injury on the person or property of the
       person called or any member of his or her family or household.

No published decisions in Washington address whether cyberstalking is an

alternative means crime.

       After dissecting the language of the cyberstalking statute, we agree with Noe Ruiz

Roque that the crime of cyberstalking is an alternative means crime. Subsection (1) of

the statute lists, in further subsections, three methods by which one may violate the

statute. The disjunctive “or” separates the three means. Each of the three sub-

subsections describes distinct acts that amount to cyberstalking. For example, a person

can send an electronic communication with intent to intimidate or torment that threatens

to inflict injury but without using lewd, lascivious, indecent, or obscene words. One

could intend to harass and dispatch repetitive electronic communications without

intending to embarrass by sending lewd communications. We reserve for a later day

whether the statute contains more than three distinct means that might separate the

various intents or distinguish between anonymous and repetition communications.

       The trial court instructed the jury to convict Noe Ruiz Roque on count IV,

cyberstalking on July 4, if he (a) made the electronic communication repeatedly whether

or not a conversation occurred or (b) he threatened to inflict injury on the person to whom

he sent the electronic communication. The court further instructed the jury that, in order


                                            21
No. 35554-3-III
State v. Ruiz Roque


to return a guilty verdict, the jury need not be unanimous as to which of the alternatives

the State proved beyond a reasonable doubt as long as each juror found that at least one

alternative had been proved beyond a reasonable doubt. We must therefore determine if

sufficient evidence existed to support each alternative. We already determined that

sufficient evidence supported a conviction for repetitious communications. We focus on

whether the texts threatened injury or death.

       Noe Ruiz Roque asserts that insufficient evidence supported the alternative means

element that he threatened to inflict injury on Patricia Campos by any texts on July 4.

We agree. The evidence supported a finding that Ruiz Roque continued to send texts on

July 4. But the State presented no evidence as to the content of those text messages.

Patricia Campos and Officer Ryan Potter never testified to the nature of the July 4 texts.

Although some texts sent on July 3, as shown by the photographs of the texts, contained

threats of bodily injury, some also embedded no threats. Therefore, the texts sent on July

4 could have as easily contained no threats.

       Issue 4: Whether the sentencing court committed error when counting each of the

three 2016 convictions for possession of a firearm as one point for the offender score, for

a total of three points, when the earlier sentencing court declared the three convictions to

entail the same criminal misconduct?

       Answer 4: Yes.



                                               22
No. 35554-3-III
State v. Ruiz Roque


       Noe Ruiz Roque asserts that the trial court erred by not counting his three prior

convictions of second degree unlawful possession of a firearm as one offense for

purposes of his offender score. The State concedes this miscalculation of the offender

score. We accept the concession.

       We otherwise remand Noe Ruiz Roque’s prosecution to the trial court to vacate

the conviction for cyberstalking on July 4. The State may retry this count. Whether or

not the State retries the count, the trial court will need to conduct another resentencing

during which the three 2016 convictions for unlawful possession of a firearm should be

rescored as one total point.

       Issue 5: Whether this court should review Noe Ruiz Roque’s assignment of error

that the sentencing court committed error when the court counted Ruiz Roque’s current

gross misdemeanor conviction for cyberstalking-domestic violence as one point in his

offender score, when Ruiz Roque failed to argue before the sentencing court that the

conviction could not be included in the offender score calculation?

       Answer 5: Yes.

       Noe Ruiz Roque next contends that the sentencing court miscalculated his

offender score by counting his current gross misdemeanor cyberstalking convictions in

his offender score because the convictions do not qualify as “repetitive domestic violence

offenses.” In response, the State argues that Ruiz Roque waived this argument by failing

to assert it at sentencing. We note that we vacated the July 4 cyberstalking conviction

                                             23
No. 35554-3-III
State v. Ruiz Roque


such that Ruiz Roque’s assignment of error extends for the time being only to one

conviction.

       The Washington Supreme Court has declared that, in the context of sentencing,

erroneous or illegal sentences may be challenged for the first time on appeal. In re

Personal Restraint of Call, 144 Wn.2d 315, 331, 28 P.3d 709 (2001). In turn, in general,

a defendant cannot waive a challenge to a miscalculated offender score, and waiver does

not apply when the alleged sentencing error is a legal error leading to an excessive

sentence. In re Personal Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P.3d 618 (2002).

But, waiver may be found when the alleged error involves an agreement to facts, later

disputed, or when the alleged error involves a matter of trial court discretion. In re

Personal Restraint of Goodwin, 146 Wn.2d at 874.

       An offender may challenge erroneous sentences lacking statutory authority for the

first time on appeal. In re Personal Restraint of Goodwin, 146 Wn.2d at 877. A

sentencing court acts without statutory authority when it imposes a sentence based on a

miscalculated offender score. In re Personal Restraint of Johnson, 131 Wn.2d 558, 568,

933 P.2d 1019 (1997).

       Noe Ruiz Roque asserts that his assignment of error with regard to assessing one

point for each cyberstalking conviction does not involve a factual dispute nor an issue of

trial court discretion. Ruiz Roque contends the assignment poses a purely legal issue

involving statutory interpretation: whether gross misdemeanor cyberstalking (DV) is a

                                             24
No. 35554-3-III
State v. Ruiz Roque


“repetitive domestic violence offense” under RCW 9.94A.030(42). The State concedes

that the question is one of statutory interpretation. Therefore, we agree with Ruiz Roque

that he may assert this claimed error for the first time on appeal.

       Issue 6: Whether the court committed error when the court counted Ruiz Roque’s

current gross misdemeanor conviction for cyberstalking domestic violence as one point

in his offender score?

       Answer 6: Yes.

       We move to the merits of Noe Ruiz Roque’s challenge to his offender score based

on the scoring of the cyberstalking convictions. RCW 9.94A.525 is a comprehensive

statute addressing criminal offender scores, which, in turn, determines the length of

criminal sentences. Under RCW 9.94A.589(1):

              [W]henever a person is to be sentenced for two or more current
       offenses, the sentence range for each current offense shall be determined by
       using all other current and prior convictions as if they were prior
       convictions for the purpose of the offender score.

The level of seriousness of the pending conviction and the defendant’s offender score

determine the standard sentence range under Washington’s Sentencing Reform Act of

1981, chapter 9.94A RCW. The court calculates the offender score by counting the prior

and current felony convictions in accordance with the rules for each offense. RCW

9.94A.525. The offender score is the sum of points accrued under RCW 9.94A.525

rounded down to the nearest whole number.


                                             25
No. 35554-3-III
State v. Ruiz Roque


       To determine the proper offender score for Noe Ruiz Roque we must navigate a

morass of sections in Washington’s Sentencing Reform Act. Generally, when sentencing

involves a nonviolent offense, the sentencing court should not include gross misdemeanor

convictions, such as Ruiz Roque’s convictions for cyberstalking, in the offender score.

RCW 9.94A.525(7). RCW 9.94A.030(34) defines “nonviolent offense” as “an offense

which is not a violent offense.” In turn, RCW 9.94A.030(55) lists fourteen categories of

crimes that constitute a “violent offense.” The statutory subsection does not list

cyberstalking. Nevertheless, another statutory provision addresses domestic violence

offenses being counted in the score. The jury found that Noe Ruiz Roque’s cyberstalking

convictions entailed domestic violence crimes. RCW 9.94A.525 declares:

              (21) If the present conviction is for a felony domestic violence
       offense where domestic violence as defined in RCW 9.94A.030 was
       pleaded and proven, count priors as in subsections (7) through (20) of this
       section; however, count points as follows:
              ....
              (d) Count one point for each adult prior conviction for a repetitive
       domestic violence offense as defined in RCW 9.94A.030, where domestic
       violence as defined in RCW 9.94A.030, was pleaded and proven after
       August 1, 2011.


In turn, RCW 9.94A.030(42) defines “repetitive domestic violence offense” as:

              (v) Domestic violence stalking offense under RCW 9A.46.110 that is
       not a felony offense. . . .

       Noe Ruiz Roque’s gross misdemeanor cyberstalking convictions are considered

prior convictions for the purposes of calculating his offender score. Therefore, this court

                                            26
No. 35554-3-III
State v. Ruiz Roque


must ask whether cyberstalking is a “repetitive” domestic violence offense. The

sentencing reform act does not define “cyberstalking.” RCW 9.94A.030. Furthermore,

the definition of “[r]epetitive domestic violence offense” does not include cyberstalking.

RCW 9.94A.030(42). Consequently, Noe Ruiz Roque asserts that his gross misdemeanor

cyberstalking convictions are not repetitive offenses.

       In response, the State argues that legislative history and case law on the statute do

not support Noe Ruiz Roque’s contention. Yet, the State fails to cite to any authority

when critiquing Ruiz Roque’s argument. In reading the language of the statutes, we

conclude that Noe Ruiz Roque did not engage in repetitive offenses. We remand for

resentencing on this error also.

       Issue 7: Whether Noe Ruiz Roque’s trial counsel engaged in ineffective assistance

of counsel when failing to object to the imposition of a domestic violence no-contact

order ten years in length?

       Answer 7: We decline to address this contention, since we may grant Noe Ruiz

Roque’s requested relief on other grounds.

       Generally, a court imposed prohibition, such as a no-contact order, may not

exceed the statutory maximum sentence for the crime of conviction. State v. Armendariz,

160 Wn.2d 106, 120, 156 P.3d 201 (2007). Noe Ruiz Roque asserts that his Sixth

Amendment right to effective assistance of counsel was denied when defense counsel

failed to object to the imposition of a ten-year domestic violence no-contact order when

                                             27
No. 35554-3-III
State v. Ruiz Roque


the maximum sentence for a class C felony such as felony harassment is five years.

RCW 9A.20.021(1)(c).

       RCW 9.94A.505(9) provides that a court may impose and enforce crime-related

prohibitions as part of any sentence. A “[c]rime-related prohibition” includes a court

order “prohibiting conduct that directly relates to the circumstances of the crime for

which the offender has been convicted.” RCW 9.94A.030(10). A no-contact order is a

crime-related prohibition. In re Personal Restraint of Rainey, 168 Wn.2d 367, 376, 229

P.3d 686 (2010). The statutory maximum for Noe Ruiz Roque’s underlying felony

harassment offense, a class C felony, is five years. RCW 9A.20.021(1)(c). Thus, the

maximum length of a no-contact order imposed is five years.

       We need not address Ruiz Roque’s ineffective assistance claim. We may remand

for the shortening of the no-contact order to five years on other grounds. An error at

sentencing may be challenged for the first time on appeal. In re Personal Restraint of

Call, 144 Wn.2d at 331 (2001). A trial court may only impose a sentence that is

expressly authorized by statute. In re Postsentence Review of Leach, 161 Wn.2d 180,

184, 163 P.3d 782 (2007). The State concedes that the sentencing court should shorten

the years of the no-contact order.

       Issue 8: Whether we should direct the vacation of the sentencing court’s

imposition of a criminal filing fee and DNA collection fee as part of Noe Ruiz Roque’s

legal financial obligations?

                                            28
No. 35554-3-III
State v. Ruiz Roque


       Answer 8: Yes.

       By motion filed after the filing of appellate briefs, Noe Ruiz Roque asks this court

to reverse the trial court’s imposition of a $200 criminal filing fee and a $100 DNA

collection fee. Ruiz Roque’s argument references the recent amendments to many of the

legal financial obligation statutes by House Bill 1783 and a recent decision by our

Supreme Court. House Bill 1783 became effective on June 7, 2018, nearly two months

after Ruiz Roque filed his opening brief. In addition, our Supreme Court decided State v.

Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018) on September 20, 2018. Consequently,

Ruiz Roque was unable to raise this issue in his opening brief due to the timing of House

Bill 1783 and Ramirez.

       House Bill 1783 amends several statutory provisions related to the imposition of

legal financial obligations. Among its amendments, House Bill 1783 changes former

RCW 10.01.160(3) to prohibit the imposition of any discretionary costs on indigent

defendants. State v. Ramirez, 191 Wn.2d at 748. Additionally, House Bill 1783 amends

former RCW 36.18.020(2)(h) to prohibit the imposition of a $200 criminal filing fee on

indigent defendants. State v. Ramirez, 191 Wn.2d at 748. Lastly, House Bill 1783

amends former RCW 43.43.7541 to make the DNA database fee no longer mandatory if a

defendant’s DNA has been previously collected as a result of a prior conviction. State v.

Ramirez, 191 Wn.2d at 747.



                                            29
No. 35554-3-III
State v. Ruiz Roque


       The Washington Supreme Court, in State v. Ramirez, 191 Wn.2d 732 (2018), held

that the statutory amendments in House Bill 1783 apply prospectively to cases on direct

appeal at the time the legislature enacted the amendment. In Ramirez, David Ramirez’s

case was still pending review, and not final, when the legislature enacted the

amendments. Therefore, our Supreme Court held that Ramirez was entitled to the benefits

of the amendments.

       Noe Ruiz Roque’s case was still pending on direct review when the Washington

State Legislature adopted House Bill 1783. Therefore, he is entitled to the benefits of the

statutory changes. Ruiz Roque was indigent for purposes of appeal and would likely be

found indigent based on the information provided in his reports as to continued

indigency. Thus, on remand, the sentencing court should strike the $200 criminal filing

fee. Because correction officials previously collected Ruiz Roque’s DNA, the court

should also vacate the $100 DNA collection fee.

                                     CONCLUSION

       We remand Noe Ruiz Roque’s prosecution for further proceedings. The trial court

should vacate without prejudice the conviction of cyberstalking occurring on July 4,

2017. Whether or not the State retries the second cyberstalking charge, the trial court

should conduct resentencing. On resentencing, the trial court should count all 2016

convictions for unlawful possession of a firearm as one point on the offender score. The

trial court should not count Ruiz Roque’s current cyberstalking conviction as a point in

                                            30
No. 35554-3-III
State v. Ruiz Roque


the score. The resentencing court should also strike the legal financial obligations of a

criminal filing fee and a DNA collection fee.

      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:




 ~Mcu~.
Siddoway, J.


 Q_ ~-. lrG'.
Pennell, A.CJ.




                                            31
