                                                                         FILED
                                                                       MAY 16, 2017
                                                                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. 33419-8-111
                     Respondent,             )         (consolidated with
                                             )         No. 34507-6-111)
      V.                                     )
                                             )
JUAN CARLOS CORTEZ BARAJAS,                  )
                                             )         UNPUBLISHED OPINION
                     Appellant.              )
                                             )
                                             )
In the Matter of the Personal Restraint of   )
                                             )
JUAN CARLOS CORTEZ BARAJAS                   )
                                             )
                     Petitioner.             )

      KORSMO, J. -    By way of appeal, Juan Barajas challenges his unlawful

imprisonment conviction, arguing that the trial court erred in admitting hearsay evidence

and the evidence was insufficient to support the conviction. By way of personal restraint

petition (PRP), Mr. Barajas challenges his intimidation of a witness and bribery of a

witness convictions and argues that the prosecutor committed misconduct in closing

argument. We affirm the convictions and dismiss the petition.

                                         FACTS

       On the evening of March 4, 2014, Maria Guzman returned to her parents' Ephrata
                                                                                                        It
home after picking up her daughter from Ramos Diaz's home in Quincy. Juan Barajas,
No. 33419-8-111; No. 34507-6-111
State v. Barajas; PRP of Cortez Barajas


who lived with the Guzman family, argued with Ms. Guzman. During the argument, Ms.

Guzman asked Mr. Barajas to leave; he refused. When she attempted to leave, Mr.

Barajas prevented her from doing so, leaving cuts and bruises on her arms. Ms. Guzman

managed to get to the car and drove back to Quincy with Mr. Barajas following her.

       Ms. Guzman called Mr. Diaz multiple times during the drive from Ephrata to

Quincy. Mr. Diaz asked Ms. Guzman to call 911 but she refused. When Ms. Guzman

arrived in Quincy, Mr. Diaz was waiting outside after calling 911. Ms. Guzman and her

daughter stayed in the vehicle as Mr. Barajas passed in front of the residence twice, both

times rapidly veering toward Ms. Guzman's vehicle and Mr. Diaz standing in the road.

After Mr. Barajas drove away, Ms. Guzman and her daughter went into the residence.

       The police arrived. One officer went to look for Mr. Barajas and the other, Officer

Bushy, remained with Mr. Diaz to gather information. Officer Bushy tried to speak with

Ms. Guzman in a back bedroom but she did not want him to come in. Officer Bushy

spent 15 minutes gathering Mr. Diaz's statement before Ms. Guzman and her daughter

came out to speak with him. In tears, Ms. Guzman gave her statement to Officer Bushy

as her daughter clung to her.

       In late October 2014, Mr. Diaz recorded phone calls initiated by Mr. Barajas. In

one of the conversations, they discussed monies he owed Mr. Diaz. Mr. Barajas implied

that his payment to Mr. Diaz should stop him from testifying against Mr. Barajas and if




                                            2
No. 33419-8-III; No. 34507-6-III
State v. Barajas; PRP of Cortez Barajas


he still chose to testify, Mr. Barajas would let it be known in the community that he is a

snitch.

          On January 20, 2015, the State charged Mr. Barajas in an amended information

with burglary in the first degree, assault in the second degree, unlawful imprisonment,

bribing a witness, and intimidating a witness.

          At trial, Mr. Barajas objected on hearsay grounds to Mr. Diaz relaying the

conversation he had with Ms. Guzman during her drive back to Quincy. The State

argued that it was an excited utterance and made an offer of proof that included Mr.

Diaz's testimony, Officer Bushy's observation of Ms. Guzman's demeanor, and evidence

of Ms. Guzman's injuries. Based on the offer of proof, the court found that all the

elements of the excited utterance exception were established. Mr. Diaz's testimony

relaying his conversation with Ms. Guzman continued. When Officer Bushy also later

testified about Ms. Guzman's statements to him, Mr. Barajas did not object.

          In closing, the State argued that being called a snitch is either directly or indirectly

communicating a threat. "That's what he's trying to do when he says he's going to out

him as a snitch. He said Mr. Alvaro [Diaz] is a snitch, snitches get stitches, snitches end

up in ditches. It's threatening, it's threatening language." There was no objection to the

argument. The jury found Mr. Barajas not guilty of burglary and assault but convicted

him of the remaining charges. Mr. Barajas appealed to this court. He later filed a PRP

that this court consolidated with the appeal.

                                                 3
No. 33419-8-111; No. 34507-6-111
State v. Barajas; PRP of Cortez Barajas


                                        ANALYSIS

       Mr. Barajas argues that the trial court abused its discretion in admitting Officer

Bushy's hearsay testimony and that the evidence was insufficient to support the unlawful

imprisonment and the intimidating a witness convictions. He also challenges one aspect

of the State's closing argument and argues that his conviction for bribing a witness

should merge with the intimidation of a witness conviction. We address the issues in the

order presented and address the sufficiency issues together.

                                 Officer Bushy 's Testimony

       Mr. Barajas contends that Ms. Guzman was no longer under the influence of the

initial startling event, thus Officer Bushy's testimony was erroneously admitted. Mr.

Barajas waived this argument by failing to object at trial.

       To present an evidentiary argument on appeal, the party must have challenged the

admission of evidence at trial on the same grounds that it raises on appeal. State v.

Guloy, 104 Wn.2d 412,422, 705 P.2d 1182 (1985). As explained in Guloy, a party may

only assign error in the appellate court on the specific ground of the evidentiary objection

made at trial. Id.; State v. Boast, 87 Wn.2d 447, 553 P.2d 1322 (1976). Since the

specific objection made at trial is not the basis Mr. Barajas is arguing before this court, he

has lost his opportunity for review. Guloy, 104 Wn.2d at 422.

       At no time during Officer Bushy's testimony did Mr. Barajas object to hearsay.

The defense had objected during Mr. Diaz's testimony and the trial court overruled that

                                              4
No. 33419-8-111; No. 34507-6-111
State v. Barajas; PRP of Cortez Barajas


objection. However, Mr. Barajas does not assign error to Mr. Diaz's testimony; he

assigns error to the unchallenged testimony of Officer Bushy. That challenge was waived

by his failure to present the matter to the trial court.

                                  Sufficiency of the Evidence

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

on two of the charges. We will first review the challenge to the unlawful imprisonment

conviction before addressing the intimidation of a witness conviction. Well-settled

standards govern our review of these challenges.

       Evidence is sufficient to support a verdict if the trier-of-fact has a factual basis for

finding 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, 221-222, 616 P .2d 628 ( 1980). The reviewing court will consider the

evidence in a light most favorable to the State. Id. at 221.

Unlawful Imprisonment

       Mr. Barajas first argues that the evidence did not establish the restraint element of

the unlawful imprisonment charge. Properly viewed, the evidence did support the

verdict.

       The State was required to prove that Mr. Barajas knowingly restrained Ms.

Guzman. RCW 9A.40.040. "Restraint," in turn, includes restricting "a person's

movements without consent and without legal authority." RCW 9A.40.0I0(6). A

                                                5
No. 33419-8-III; No. 34507-6-III
State v. Barajas; PRP o/Cortez Barajas


"restraint" is "without consent" when it is accomplished by intimidation. Id. It is a

defense to unlawful imprisonment that the victim had a reasonably available avenue of

escape. See State v. Washington, 135 Wn. App. 42, 50, 143 P.3d 606 (2006) (citing State

v. Kinchen, 92 Wn. App. 442,452 n.16, 963 P.2d 928 (1998)).

       Mr. Barajas claims that Ms. Guzman had an available avenue of escape and did

actually escape. However, the jury heard testimony that when Mr. Barajas was asked to

leave Ms. Guzman's home he did not comply, he held her in a headlock, restrained her

arms, and prevented her from leaving. For some period of time, there was no available

avenue of escape because Mr. Barajas was actively preventing it. That Ms. Guzman

eventually was able to escape simply underscores the fact that unlawful imprisonment is

necessarily temporary. The evidence was sufficient to establish restraint.

Witness Intimidation

       Mr. Barajas next argues that the evidence did not establish the threat element of

the intimidation of a witness charge. However, the evidence permitted the jury to reach

the verdict that it returned.

       To convict Mr. Barajas of intimidating a witness, the jury was required to find that

he used a threat against Mr. Diaz, a prospective witness, to induce Mr. Diaz to absent

himself from trial. RCW 9A.72.110. The jury instruction read:

               Threat means to communicate, directly or indirectly, the
       intent to cause bodily injury in the future to the person threatened or
       to any other person; or

                                             6
No. 33419-8-111; No. 34507-6-111
State v. Barajas; PRP a/Cortez Barajas


               to expose a secret or publicize an asserted fact, whether true
       or false, tending to subject any person to hatred, contempt, or
       ridicule; or
               to do any other act that is intended to harm substantially the
       person threatened or another with respect to that person's health,
       safety, business, financial condition, or personal relationships.
               To be a threat, a statement or act must occur in a context or
       under such circumstances where a reasonable person, in the position
       of the speaker, would foresee that the statement or act would be
       interpreted as a serious expression of intention to carry out the threat
       rather than as something said in jest or idle talk."

Report of Proceedings (RP) at 167 (Instruction 30).

       Mr. Barajas contends that his recorded statements to Mr. Diaz were not serious

expressions, but mere jest or idle talk. Mr. Barajas said to Mr. Diaz via phone, "I have

your statements here man if you gonna go up on the stand and do what you gotta do you

know who you are out here man. F***ing out here you'll be known out here too, as a

snitch." Ex. 1 at 3. "Are you sure, are you sure about what you gonna do, go on the

stand, like that against me? Because man you're gonna be known 'cause I'll put it out

there. Like if you do that to me, you don't think I'm gonna put it out there man." Ex. 1

at 6. The jury was free to conclude these statements were threats. Thus, the recorded

conversations were sufficient to support the jury's verdict.

                              Prosecutor's Closing Argument

       Mr. Barajas contends that an unchallenged statement made by the prosecutor

during closing arguments was a material falsehood. The standards for reviewing this

alleged error are well settled. If there was no objection to the behavior at trial, relief can

                                              7
No. 33419-8-III; No. 34507-6-III
State v. Barajas; PRP of Cortez Barajas


be granted only if the error was so egregious that it was beyond cure by the trial judge.

State v. Swan, 114 Wn.2d 613, 665, 790 P.2d 610 (1990); State v. Belgarde, 110 Wn.2d

504, 507, 755 P.2d 174 (1988). Any allegedly improper statements should be viewed

within the context of the prosecutor's entire argument, the issues in the case, the evidence

discussed in the argument, and the jury instructions. State v. Brown, 132 Wn.2d 529,

561, 940 P .2d 546 ( 1997). Moreover, a prosecutor has "wide latitude" in arguing

inferences from the evidence presented. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d

1239 (1997), cert. denied, 523 U.S. 1008 (1998).

       The prosecutor argued, "He [Mr. Barajas] said Mr. Alvaro [Diaz] is a snitch,

snitches get stitches, snitches end up in ditches." RP at 185. Mr. Barajas is correct; the

prosecutor did not quote his exact words but used a short hand expression. However, any

confusion on the part of the jury would have been cured by jury instruction 1 that

expressly stated, "lawyers' statements are not evidence. The evidence is the testimony

and the exhibits." RP at 151. Because it is presumed that the jury follows instructions, it

necessarily follows that the State's closing argument was not evidence. Mr. Barajas has

not established that the challenged statement was an egregious error. Thus, his failure to

object at trial waived any challenge to the statement.

                            Merger Doctrine/Double Jeopardy

      Mr. Barajas argues that since the intimidation and bribing of a witness constitute

the same criminal conduct, these crimes merge and his bribing a witness conviction must

                                             8
No. 33419-8-III; No. 34507-6-III
State v. Barajas; PRP of Cortez Barajas


be vacated. The problem with this argument is that bribing a witness is not a lesser

charge of intimidating a witness. The merger doctrine was not triggered.

       The merger doctrine evaluates whether the legislature intended multiple crimes to

merge into a single crime for punishment purposes. State v. Vladovic, 99 Wn.2d 413, 419

n.2, 662 P.2d 853 (1983) (citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct.

180, 76 L. Ed. 306 (1932)). The merger doctrine applies only where to prove a more

serious crime, the State must prove an act that a statute defines as a separate crime.

Vladovic, 99 Wn.2d at 420-421. Here, the crime of bribing a witness does not have to be

established to prove intimidating a witness. Although both charges share a common

element of inducing a witness to absent himself from a formal proceeding, neither

includes additional elements of the other. They are separate crimes.

       Similarly, being charged with these crimes separately does not violate the

prohibition against double jeopardy. A "defendant's double jeopardy rights are violated

if he or she is convicted of offenses that are identical both in fact and in law." State v.

Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). "If there is an element in each offense

which is not included in the other, and proof of one offense would not necessarily also

prove the other, the offenses are not constitutionally the same and the double jeopardy

clause does not prevent convictions for both offenses." Id. (quoting Vladovic, 99 Wn.2d

at 423). As mentioned above, both statutes share a common element of inducing a

witness to absent himself from a formal proceeding. Both statutes also include unique

                                              9
No. 33419-8-111; No. 34507-6-111
State v. Barajas; PRP of Cortez Barajas


elements. The unique element of bribing a witness is conferring a benefit. RCW

9A.72.090. The unique element of witness intimidation is use of a threat. RCW

9A.72.110. Mr. Barajas's convictions are not constitutionally the same. Therefore, there

is no double jeopardy violation.

      The convictions are affirmed. The PRP is dismissed.

      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.C
                                   j


      Pennell, J.




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