### FILED MARCH 21, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III


### IN THE COURT OF APPEALS OF THE STATE OF WASHING TON DIVISION THREE STATE OF WASHINGTON, ) 

### No. 34054-6-III ) 

### Respondent, ) 

### ) V. ) 

### UNPUBLISHED OPINION ) 

### SETH EDENASH, ) 

### ) Appellant. ) 

### LAWRENCE-BERREY, A.CJ.

- Seth Ash appeals his convictions for felony harassment and fourth degree assault. He asks this courttoreverse his harassment conviction, arguingthe State's evidence was insufficienttoprovethe victim's fear was reasonable andwas also insufficienttoprovehe communicated a true threat. He also argues the trial court erred in imposing $100 in discretionary legal financial obligations (LFOs) without inquiring into his ability topay. We disagree withAsh's first argument, remandto allowthe trial courtto correct its unintentional imposition oftwo discretionary LFOs, and affirm his convictions.No. 34054-6-III State v. Ash
FACTS Ash lived in a house with his mother Ann Ash-Wolffand his stepfather David Wolff. In late August or early September2015, one ofAsh-Wolffs acquaintances, Michael Mize, was having a problem withwhere he was living and was going to become homeless. Ash-WolffinvitedMize toparkhis mobile home ontheirproperty and live in it. Mize did so, andparkedthe mobile home about 70 yards from the Ashs' house. Ash and Mize got along most ofthe time. Mize liked Ash and once offered to take him fishing. However, on September 18, Ash-Wolffasked Mize to sit with her and Wolff
on the porch in front ofthe house. As they were sitting and talking, Ash appeared and beganyelling at Mize. AshtoldMize to leave the property andthreatened tophysically harmMize ifhe did not leave. Ashthen darted at Mize as ifhe was going to pushMize
over. Wolffstepped betweenthe two and walked Ash into the house. Mize did not want to start a problem, so he left. A few days later, Ash confrontedMize about where Mize hadparked his truck. Ash was angry, and told Mize that "hewas going to come back and do something about it." Report ofProceedings (RP) at 219. On September 27, Mize was working in the yard and needed a garbage can. He rode his motorcycle from his motorhome to the Ashs' house to find one. The noise from
2

### No. 34054-6-III State 

### v. Ash


### the motorcycle woke up Ash, who was inside the house trying to sleep. Mize rode back to his mobile home and sat sideways on the motorcycle. Mize then noticed Ash walking angrily toward him. Ash walked up to Mize and told him thathe was a nuisance and had
no right to be on the property. Ashthen physically attacked Mize, and a briefmelee ensued. Ash started to leave but then turned around and came back. He warnedMize to "notreportthis," and that he "better not go call the police." RP at 249. He then told Mize that "he was going to come back and kill [him]." RP at 249. Mize got into his truck and began driving into town to call the police. Although Mize had not reported the prior encounters with Ash, he decided toreportthis one because he believedhis life was in danger. On his way into town, Mize saw a police officer stopped on the road. He pulled overto report whathad happened. Hewas trembling and shaking as he gave his statementto the officer. The State charged Ash with second degree assault and felony harassmentbased on the September 27 incident. The trial court ruled in limine that evidence regarding the two prior encounters was admissible to show that Mize's fear that Ashwould carry outthe threats was reasonable.

3No. 34054-6-III State 

### v. Ash During trial, Mize described the melee on September27. He testified that Ash initially pushed him, and then pulled out a knife and made slashing motions athis chest and arms. He testified the knife contacted his clothing, but did not actually cuthim. He also testified that after slashing at himwiththe knife, Ashpunchedhim onthe forehead. The State introduced evidence that Wolfflater found a knife inhis woodshed, butthe State was unable to establish whose knife it was or who hadput it there. 

### In addition to instructing thejury on second degree assault andharassment, the trial court instructedthe jury on the lesser included offense offourth degree assault. Thejury convicted Ash offourth degree assault andharassment. Atthe sentencing hearing, defense counsel asked the courtto only impose "the standard mandatory LFOs." RP at 471. Defense counsel argued that Ashhad outstanding LFOs in six other cases and wouldbeunable to make payments until he was released from confinement. Defense counsel also notedhe did notknowthe last time Ashhad ajob or whetherAshwas even employable. The trial court imposed $800 in LFOs, which included a $500 victim assessment, a $200 criminal filing fee, a $50 bench warrant fee, and a $50 booking fee. The court did not expressly inquire into Ash's ability to pay, butnoted Ash's substantial outstanding LFOs andthen waived the court-appointed attorney fee and fine. The court statedthe
4

### No. 34054-6-111 State v. Ash 

### booking fee was "pretty much required." RP at 480. Ash did not object. There was no discussion about the bench warrant fee. Ashtimely appealed. ANALYSIS 

### A. SUFFICIENCY OF THE EVIDENCE 

### Ash argues the State presented insufficient evidence to prove Mize's fear was objectively reasonable. He also argues the State failed to prove he communicated a "true threat." In a criminal case, evidence is sufficientto convict ifitpermits a rational trier of fact to find the essential elements ofthe crime beyond a reasonable doubt. State 

### v. Munoz-Rivera, 

### 190 Wn. App. 870, 882, 361 P.3d 182 (2015). When a defendant challenges the sufficiency ofthe evidence, the proper inquiry is "whether, afterviewing the evidence in the light most favorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt." State 

### v. Salinas, 

### 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences from the evidence mustbe drawn in favor of the State and interpreted most strongly against the defendant." Id. 

### "A claim of insufficiency admits the truth ofthe State's evidence and all inferences thatreasonably
can be drawn therefrom." Id.


### 5No. 34054-6-111 

### State v. Ash
1. 

### Reasonablefear of death To convict a person for felony harassmentbased onthreats to kill, the State has to prove beyond a reasonable doubt thatthe defendant 

### (1) without lawful authority (2) knowingly threatened to kill some otherperson immediately or in the future, and (3) the defendant's words or conductplacedthe person threatened in reasonable fear that the threat to kill wouldbe carried out. RCW 9A.46.020(l)(a)(i), (2)(b); 

### State 

### v. CG., 150 Wn.2d 604, 610, 80 P.3d 594 (2003) (felony harassment statute requires victim to reasonably fear the threat 

### to kill will be carried out, notjust fear bodily injury will be inflicted). Ash challenges the sufficiency ofevidence only as to the last element-that Mize reasonably feared Ash would carry outhis threat to kill. This court applies an objective standardto determine whetherthe victim's fear that the threat will be carried out is reasonable. 

### State v. Ragin, 94 Wn. App. 407, 411, 972 P.2d 519 (1999). The victim's knowledge ofthe defendant's prior violent acts is relevant to this question. 

### Id. at 411-12. Here, ample evidence supports thejury's finding that Mize reasonably feared Ash would carry out his threat to kill. Duringthe very first encounter on the porch, Ash threatened to physicallyharm Mize and then darted at him. Ashthen angrily confronted Mize a few days later and told him he was going to "comeback and do something about
6

### No. 34054-6-III State v. 

### Ash


### it." RP at 219. Both encounters were unprovoked. Ash also had a pattern oflosing control, acting rashly, then apologizing later. Moreover, immediately before making the threat at issue here, Ash-whowas bigger and taller than Mize-angrily approached Mize, pushed him, slashed at him with a knife, and then hit him on the forehead. 1 

### Taking this violent confrontation together with the two earlier unprovoked encounters, there was sufficient evidence for thejuryto conclude that Mize's fear was objectivelyreasonable. Ash argues the evidence was insufficient because "Mr. Mize did not offer details
as to why he believed that Mr. Ash's threat to kill him was believable." Br. ofAppellant at 13. However, Mize specifically testified that he believed Ash would follow through

1

### Ash asks this court to reject any evidence that he used a knife in determining whether the evidence supports his harassment conviction, arguing thejury's decision to convict him offourth degree assault "indicates thejury did not believe a knife was used." Br. ofAppellant at 16-17. However, this courtreviews the sufficiency ofthe evidence for any given count "independent ofthejury's determination that evidence on another count was insufficient." UnitedStates 

### v. Powell, 

### 469 U.S. 57, 67, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); see also UnitedStates 

### v. Hart, 

### 963 F.2d 1278, 1282 (9th Cir. 1992) ("[Defendant's] acquittal on the distribution count does not affect our consideration ofthe evidence supporting his conviction for conspiracy."). The fact thatthejurywas unable to reach a verdict on the second degree assault charge may show no more thanjury lenity, compromise, or mistake, Powell, 

### 469 U.S. at 66 n.7, and does not imply that thejury doubted the State's evidence about the knife. This is why "[a] claim ofinsufficiency admits the truth ofthe State's evidence." Salinas, 

### 119 Wn.2d at 201. 7No. 34054-6-111 State 

### v. Ash
with the threat because Ash had confronted him twice before "O]ust out ofthe blue." RP at 254.Ash also argues he had never threatened to kill orphysicallyharmed Mize before making the threat on September 27. While this is true, Ash hadpreviouslythreatened harm and had darted toward Mize as ifhe was going to harmhim. Ash also argues he and Mize generally got along, and Mize once offeredto take him fishing. Even so, Mize could still reasonably fear for his life on September 27. These facts are not mutually exclusive, especially in light ofthe violent confrontation that immediatelyprecipitatedthe threat. 2. True threat When a threat is an element ofa crime, the State mustprove that the alleged threat
was a "true threat." State v. Kohonen, 192 Wn. App. 567, 575, 370 P.3d 16 (2016). This requirement exists so protected speech is not criminalized, as the FirstAmendment does not protect ''true threats." Id. "A 'true threat' is 'a statementmade in a context orunder such circumstances wherein a reasonable person would foresee thatthe statement would be interpreted
... as
a serious expression ofintention to ...take the life ofanother person.'" State v. Allen, 176 Wn.2d 611,626,294 P.3d 679 (2013) (internal quotation marks omitted) (first
8

### No. 34054-6-111 State 

### v. Ash


### alteration in original) (quoting State 

### v. Kilburn, 

### 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)). This is an objective standard that focuses on the speaker. Kilburn, 

### 151 Wn.2d at 44. The speaker does not need to actually intend to carry out the threat. Id. 

### at 46. "Whether a statement is a true threat or ajoke is determined in light ofthe entire context, and the relevant question is whether a reasonable person in the defendant's place would foresee that in contextthe listenerwould interpretthe statement as a serious threat or ajoke." Id. 

### For example, in Kilburn, 

### a group ofeighth grade students were chatting, giggling, and laughing at the endofa school day. Id. 

### at 52. Kilburn and another female student startedtalking aboutbooks they were reading, and Kilburnhad a book about the military and guns. Id. 

### Kilburn turnedto the other student and, halfsmiling, saidhe was going to bring a gun the next day and shoot everyone, beginning with her. Id. 

### Kilburn started to laugh or giggle as ifhe were not serious, and '"was acting kind oflike he wasjoking."' Id. 

### Kilburn and the other student hadknown each other for two years, and Kilburn had always treated herkindly. Id. 

### Kilburn was known to makejokes on occasion, which the other students laughed at. Id. 

### The Kilburn 

### courtheld a reasonable person in Kilburn's position would not have foreseen that his or her comments wouldbe interpreted seriously and, thus, the State failed to prove the comments were a "truethreat." Id. 

### at 53-54.

9No. 34054-6-III State v. Ash
In contrast, a reasonable person in Ash's position would have knownthat his threat would be interpreted seriously. Ash knew he had angrily confrontedMize twice without provocation and hadthreatened to physically harm Mize before. Immediately before threatening Mize's life, he also pushed, punched, and swung a knife atMize.2 There is no evidence he meantthe threat as hyperbole or as ajoke. Viewing the evidence in the light most favorable to the State, this court concludes the evidence was sufficient for thejuryto find that Mize's fear was reasonable and that Ash communicated a "truethreat." Accordingly, sufficient evidence supports Ash's harassment conviction. B. ALLEGED LFOERROR Ash contends the sentencing court erredby orderinghimto pay $100 in discretionary LFOs without first inquiring into his ability to pay. RAP 2.5(a) provides that an "appellate court may refuse to review any claim of
error that was not raised in the trial court." Forthis reason, "[a] defendant who makes no objection to the imposition ofdiscretionary LFOs at sentencing is not automatically

2 Although Ash does not agree this court should considerthe evidence about the knife in determining whether the evidence supports his harassment conviction, he concedes this evidence, ifconsidered, "might
... support[ ] the conclusionthat [he] could have reasonably foreseen thathis threatto kill Mr. Mize
... wouldbe interpreted as a serious expression." Br. ofAppellant at 17.10No. 34054-6-III State v. Ash
entitled to review." State v. Blazina, 182 Wn.2d 827, 832, 344 P.3d 680 (2015). "This rule exists to give the trial court an opportunityto correctthe error andto give the opposingparty an opportunityto respond." Id. at 832-33. Ash argues he preservedthis issue for appeal because he asked the sentencing court to only impose mandatory LFOs, which he contends was "plainly an objection to imposition ofany non-mandatory LFOs." Br. ofAppellant at 22. The problem here is that it appears the trial courtbelieved it was only imposing mandatory LFOs, but actually imposed $100 in discretionary LFOs. This was likely error, butAsh never objected. If Ash had notified the courtthat the benchwarrant fee andthe booking fee were discretionary costs, the trial court would have been able to correct its error. Butbecause he did not, he cannot appeal as a matter ofright. In the alternative, Ash asks this courtto accept discretionary review, which each appellate court is entitledto do. See Blazina, 182 Wn.2d at 835. An approach favored by this author is to considerthe administrative burden and expense ofbringing a defendant to court for a newhearing, versus the likelihood that the discretionary LFO resultwill change. State v. Arredondo, 190 Wn. App. 512,538,360 P.3d 920 (2015), review granted, 185 Wn.2d 1024, 369 P.3d 502 (2016). "An important consideration ofthis analysis is the dollar amount ofdiscretionary LFOs imposed bythe sentencing court." Id.
11

### No. 34054-6-III State 

### v. Ash 

### In this case, the majority ofthese factors weigh in favor ofreviewing Ash'sunpreserved LFO challenge. First, the dollar amount ofthe discretionary LFOs the trial court imposed does not support granting review. The trial court imposed both mandatory and discretionaryLFOs. The mandatory LFOs includedthe $500 victim assessment and the $200 criminal filing fee. See 

### RCW 7.68.035(1)(a); RCW 36.18.020(2)(h). These mandatory LFOs are required irrespective ofAsh's ability to pay. State 

### v. Lundy, 

### 176 Wn. App. 96, 103, 308 P.3d 755 (2013). The discretionary LFOs in this case were the $50 benchwarrant fee and the $50 booking fee, totaling $100. See 

### RCW 10.01.160(2); RCW 70.48.390. However, the second factor-the administrative burden and expense ofbringing Ash to court for a new sentencing hearing-weighs in favor ofreview. This is because the trial court can address the LFO issue without Ashbeingpresent and answering questions abouthis ability to pay. The final factor-whetherthe LFO result would likely change-alsoweighs in favor ofreview. At sentencing, the trial court declined to impose other discretionary LFOs and believed the booking and bench warrant fees were mandatory. Hadthe trial court known the fees were discretionary, it likely would not have imposed them.

12No. 34054-6-111 State v. Ash
We therefore weigh the factors, agree to review the unpreserved error, and determine remand is appropriate so the trial court can correct its unintentional imposition ofdiscretionary LFOs. C. APPELLATE COSTS Ash also requests this court to decline to impose appellate costs in its decision terminating review. In response, the State says it does not intend to seek appellate costs. We therefore grant Ash's request and decline to impose appellate costs. Affirmed in part and remanded. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR: 

## j

Pennell, 

### J.

13