                                                                            FILED 

                                                                         JUNE 05,2014 

                                                                  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. 31483-9-111
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
TIMOTHY A. HAYS,                              )          UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, J.-Timothy Allen Hays appeals his conviction for intimidating municipal

court judge Michelle Szambelan. Mr. Hays knew Judge Szambelan from when he

previously stood trial in her court on an obstruction charge and pleaded guilty in her

court to domestic violence charges. Angered over her evidentiary ruling in his

obstruction trial, he eventually confronted her in the courthouse. He now challenges the

admission of his prior domestic violence convictions, the wording of a limiting

instruction, and the effectiveness of his attorney in his intimidation trial. We find no

reversible error, and affirm.

                                          FACTS

       Mr. Hays appeared before Judge Szambelan as a defendant in three separate

cases involving charges of obstructing a law enforcement officer, domestic violence

assault, and violating a domestic violence no-contact order. She oversaw a trial in
No. 31483-9-111
State v. Hays

which a jury found him guilty of the obstruction charge. She later accepted his guilty

pleas to the domestic violence charges. In each proceeding before Judge Szambelan,

Mr. Hays conducted himself appropriately and expressed no displeasure, whether

through allocutions, appeals, or affidavits of prejudice, regarding how she handled his

obstruction trial.

       On a Friday afternoon in September 2012, Mr. Hays drank alcohol and visited

Judge Szambelan at her chambers. Appearing red faced and intoxicated, he said in a

mean, growly voice '''I want to talk to you'" and '''I'm very angry.'" Report of Proceedings

(RP) at 58-59. He repeatedly said he was very angry and elaborated she ruined his life

by excluding certain evidence in his obstruction trial. Then, standing uncomfortably

close to her, he said in a slow, measured, and menacing voice '''I'm going to cut you

down.'" RP at 60. Judge Szambelan asked Mr. Hays to leave. When he began to

reach his hand into her chambers, she shut the door. Other court personnel viewing

this incident called security, who arrested Mr. Hays outside the courthouse.

       The State charged Mr. Hays with intimidating a judge and moved in limine to

admit evidence of his prior convictions under ER 404(b). Over Mr. Hays's objection, the

trial court granted the motion after identifying several alternative purposes for admitting

the convictions. The court partly reasoned "knowledge of these crimes and their
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underlying facts may assist the jury in determining whether Hays' statements to Judge

Szambelan could reasonably be viewed as 'true threats' by Hays as he made them and

interpreted as such by Judge Szambelan as she heard them." Clerk's Papers (CP) at

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No. 31483-9-111
State v. Hays

58~   Additionally, the court concluded the probative value of Mr. Hays's prior convictions

outweighed their prejudicial effect.

        Upon the State's request, the trial court gave the jury a limiting instruction

regarding Mr. Hays's prior convictions:

               Evidence has been presented in this trial that the defendant has
        been convicted of certain crimes. You may consider this evidence only for
        the purpose of giving possible context to the events described in this case,
        for evaluating possible motives of the defendant, to determine whether the
        alleged threats were true threats, and to determine whether a reasonable
        person would have felt threatened under the circumstances presented in
        evidence. You must not consider the evidence for any other purpose.

CP at 74; RP at 194. The court gave a similar precautionary instruction before Judge

Szambelan testified about the convictions. Defense counsel did not object to the

wording of these instructions.

        Judge Szambelan testified she became a judge after a special panel

recommended her, the mayor appointed her, the city council confirmed her, and the

voters retained her in reelection. A colleague testified Judge Szambelan was generally

empathetic, even-tempered, and not prone to overreaction on the bench. Partly relying

on this evidence, the State argued a reasonable person in Mr. Hays's position would

foresee Judge Szambelan would interpret his statement "I'm going to cut you down" as

a serious expression of his intent to injure or kill her. Defense counsel did not object

when the State elicited or argued from this evidence. Mr. Hays testified he meant his

statement as a threat to destroy Judge Szambelan in "her career, her credibility, and her

character." RP at 163, 164. The jury found him guilty as charged. He appealed.




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State v. Hays

                                         ANALYSIS

                                    A. Prior Convictions

       The issue is whether the trial court erred by admitting evidence of Mr. Hays's

prior domestic violence convictions under ER 404{b). Mr. Hays contends no reasonable

judge would have ruled as the trial court did in admitting his convictions. We review

evidence admission under ER 404{b) for abuse of discretion where, as here, the trial

court interpreted the rule correctly. State   v. DeVincentis, 150 Wn.2d 11, 17,74 P.3d
119 (2003). A trial court abuses its discretion in admitting evidence under ER 404(b) if

"no reasonable judge would have ruled as the trial court did."1 State    v. Mason, 160
Wn.2d 910,934, 162 P.3d 396 (2007). ER 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.

       To admit evidence of a prior conviction under ER 404(b), a trial court must "(1)

find by a preponderance of the evidence that the misconduct occurred, (2) identify the

purpose for which the evidence is sought to be introduced, (3) determine whether the

evidence is relevant to prove an element of the crime charged, and (4) weigh the



        1 More generally, a trial court abuses its discretion if its decision is "manifestly
unreasonable," based on "untenable grounds," or made for "untenable reasons." State
ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971); see also State v.
Rohrich, 149 Wn.2d 647,654,71 P.3d 638 (2003) ("A decision is based on untenable
grounds or made for untenable reasons if it rests on facts unsupported in the record or
was reached by applying the wrong legal standard. A decision is manifestly
unreasonable if the court, despite applying the correct legal standard to the supported
facts, adopts a view that no reasonable person would take, and arrives at a decision

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I	   No. 31483-9-111
i	   State v. Hays

     probative value against the prejudicial effect." State v. Vy Thang, 145 Wn.2d 630, 642,
J
J
1    41 P.3d 1159 (2002) (citing State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995)).

     Evidence is relevant if it "ha[s] any tendency to make the existence of any fact that is of

     consequence to the determination of the action more probable or less probable than it

     would be without the evidence." ER 401.

            Mr. Hays argues his domestic violence convictions did not serve the stated

     purposes and were not relevant to prove the identified elements. The elements of

     intimidating a judge include "direct[ing] a threat to a judge because of a ruling or

     decision of the judge in any official proceeding." RCW 9A.72.160(1). A threat means

     "[t]o communicate, directly or indirectly the intent ... [t]o cause bodily injury in the future

     to the person threatened or to any other person." RCW 9A.04.11 0(28)(a); see RCW

     9A.72.160(2)(b).

            But the threat must be a "true threat."2 '"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 individual].'" State v. Williams, 144

     Wn.2d 197,207-08,26 P.3d 890 (2001) (omission and alteration in original) (quoting

     State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998)); see Virginia v. Black,



     outside the range of acceptable choices." (citations omitted) (internal quotation marks
     omitted)).
            2 The First Amendment, by incorporation into the Fourteenth Amendment due
     process clause, bars a state from "abridging the freedom of speech." U.S. CONST.
     amend. I; see Gitlow v. New York, 268 U.S. 652, 666, 45 S. Ct. 625, 69 L. Ed. 1138
     (1925). But a state may criminalize a "true threat." Virginia v. Black, 538 U.S. 343, 359,

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No. 31483-9-111
State v. Hays

538 U.S. 343, 359,123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). The threat must be "a

serious one, not uttered in jest, idle talk, or political argument." State v. Hansen, 122

Wn.2d 712,718 n.2, 862 P.2d 117 (1993) (internal quotation marks omitted); see Black,

538 U.S. at 359. However, U[t]he speaker need not actually intend to carry out the

threat." Black, 538 U.S. at 359-60; see State v. Kilburn, 151 Wn.2d 36,48,84 P.3d

1215 (2004). Additionally, "the nature of a threat depends on all the facts and

circumstances, [not] ... a literal translation of the words spoken." State v. C. G., 150

Wn.2d 604, 611,80 P.3d 594 (2003).

       The trial court said Mr. Hays's domestic violence convictions were admissible to

show his statement ''I'm going to cut you down" was a true threat directed to Judge

Szambelan. Specifically, the court reasoned the convictions were relevant to show a

reasonable person in his position would foresee she would interpret his statement as a

serious expression of his intent to injure or kill her. We cannot say no reasonable judge

would have ruled as the trial court did. He testified he meant his statement as a threat

to destroy her career and reputation, and not to injure or kill her. The convictions show

what Mr. Hays knew: Judge Szambelan was aware he had a history of transgressing

personal security because she accepted his guilty pleas to charges of domestic violence

assault and violating a domestic violence no-contact order. By emphasizing his

knowledge of her awareness, the convictions tended to make it more probable that a

reasonable person in his position would foresee she would interpret his statement as a

serious expression of his intent to injure or kill her, and not just to destroy her career


123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (citing Watts v. United States, 394 U.S. 705,

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No. 31483-9-111
State v. Hays

and reputation. Through this lens, the trial court could reasonably conclude the

probative value of the convictions outweighs their prejudicial effect.

       Therefore, we hold the trial court did not abuse its discretion and did not err in

admitting evidence of Mr. Hays's prior domestic violence convictions under ER 404(b).

Because the main rationale withstands scrutiny, we do not consider the alternative

purposes for admitting the convictions.

                                  B. Limiting Instruction

       The issue is whether the trial court misstated the law and unconstitutionally

commented on the evidence while instructing the jury regarding Mr. Hays's prior

convictions. First, Mr. Hays contends the limiting instruction misstated the law by

allowing the jury to consider his convictions in determining whether a reasonable person

in Judge Szambelan's position would have felt threatened by his statement. Second,

Mr. Hays contends the limiting instruction unconstitutionally commented on the

evidence by suggesting it was important for the jury to consider whether a reasonable

person in Judge Szambelan's position would have felt threatened by his statement.

       Mr. Hays waived his first contention because he did not object to the limiting

instruction before the trial court read it to the jury. See RAP 2.5(a); CrR 6.15(c).

However, Mr. Hays may raise his second contention for the first time on appeal because

it concerns a manifest constitutional error. See RAP 2.5(a)(3}; State v. Lampshire, 74

Wn.2d 888, 893,447 P.2d 727 (1968); State v. Levy, 156 Wn.2d 709,719-20,132 P.3d

1076 (2006).


708,89 S. Ct. 1399,22 L. Ed. 2d 664 (1969)}.

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No. 31483-9-111
State v. Hays

       We review an alleged instructional error de novo in the context of all instructions

as a whole. State v. Brett, 126 Wn.2d 136, 171, 892 P .2d 29 (1995); State v. Benn, 120

Wn.2d 631, 654-55, 845 P .2d 289 (1993). A trial court cannot comment on factual

matters when instructing the jury. CONST. art. IV, § 16. "A statement by the court

constitutes a comment on the evidence if the court's attitude toward the merits of the

case or the court's evaluation relative to the disputed issue is inferable from the

statement." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).

       The trial court instructed the jury it could consider Mr. Hays's prior convictions "to

determine whether a reasonable person would have felt threatened" by his statement

'''I'm going to cut you down.'" CP at 74; RP at 60, 194. He argues the limiting

instruction unconstitutionally commented on the evidence because it suggested the jury

should assess the statement directly from Judge Szambelan's perspective, whereas

applicable law required the jury to assess the statement indirectly from Mr. Hays's

perception of how she would view the statement. But the instruction did not imply the

court's attitude toward or evaluation of the case one way or another. The instruction

highlighted an irrelevant issue left open for jury resolution. While highlighting an

irrelevant issue is improper, Mr. Hays waived that error claim as discussed above.

Therefore, we conclude the trial court did not unconstitutionally comment on the

evidence while instructing the jury regarding Mr. Hays's prior convictions.

                                C. Assistance of Counsel

      The issue is whether Mr. Hays received ineffective assistance of counsel. He

contends defense counsel did not object to the improper limiting instruction,


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No. 31483-9-111
State v. Hays

inadmissible character evidence bolstering Judge Szambelan's credibility, or

prosecutorial misconduct arguing from the inadmissible evidence.

       The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel. McMann     v. Richardson,    397 U.S. 759, 771 & n.14, 90 S. Ct.

1441,25 L. Ed. 2d 763 (1970); Yarborough      v.   Gentry. 540 U.S. 1,5,124 S. Ct. 1, 157 L.

Ed. 2d 1 (2003). To prove counsel was ineffective, the defendant must show "counsel's

performance was deficient" and "the deficient performance prejudiced the defense."

Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Failure to show either element defeats the claim. Id. at 697.

       Deficient performance occurs if "counsel's representation fell below an objective

standard of reasonableness." Id. at 688. This standard requires "reasonableness under

prevailing professional norms" and "in light of all the circumstances." Id. at 688, 690.

The defendant must overcome a "strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance." Id. at 689. To do so, the

defendant must show counsel's performance cannot be explained as a sound defense

strategy. Id.

       Prejudice occurs if "there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different." Id. at

694. A reasonable probability of a different result exists where counsel's deficient

performance "undermine[s] confidence in the outcome." Id. The defendant "need not




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show that counsel's deficient conduct more likely than not altered the outcome in the

case." Id. at 693. Instead, the defendant "has ... the burden of showing that the


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decision reached would reasonably likely have been different absent the errors." Id. at

696. This standard requires evaluating the totality of the record. Id. at 695.

       Mr. Hays argues defense counsel acceded to errors introducing irrelevant

matters into the jury's determination of his guilt. But Mr. Hays fails to show how

removing those irrelevant matters might have produced a different trial result. Upon the

totality of the record, it appears the trial result would have been the same anyway.

Defense counsel's performance does not undermine our confidence, and therefore,

does not raise a reasonable probability of a different outcome. Mr. Hays cannot show

prejudice. It follows that Mr. Hays did not receive ineffective assistance of counsel.

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                   Brown, Acting Assi    nt C.J.
WE CONCUR: 





                                                   Lawrence-Berrey, J.




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