FILED 

MAY 30, 2017 

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, 

Respondent, 

v. 

NOLAND ASHLEY DOMINGUEZ, 

Appellant. 

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No. 32719-1-111 

UNPUBLISHED OPINION 

LAWRENCE-BERREY, A.CJ. - Noland Dominguez appeals his conviction for 

felony harassment. He argues (1) Washington's harassment statute, RCW 9A.46.020, is 

unconstitutionally overbroad and vague because it lacks a subjective intent requirement, 

(2) the State improperly introduced evidence of an incident years earlier where someone 

gouged out the victim's eye, (3) the State presented insufficient evidence to prove the 

victim's fear was reasonable, and ( 4) cumulative error deprived him of a fair trial. We 

affirm. 

FACTS 

Dominguez lived next door to Gerardo Medel Jr. The two were friendly. 

However, their relationship soured in 2006 after Medel testified against a man named 
No. 32719-1-III 

State v. Dominguez 

Manny Benavidez, who had previously threatened to kill Medel multiple times and 

eventually gouged out Medel's eye with his thumb. 

On December 19, 2012, Dominguez shoveled snow from his property onto 

Medel' s driveway. Medel asked Dominguez about the snow and pulled out brass 

knuckles. In response, Dominguez picked up a flower pqt and said he would break it over 

Medel' s head. Dominguez then told Medel that "he was going to get a screwdriver and 

shove it in [Medel's] right eye and blind [him] like Manny Benavidez did, and that he was 

going to get a gun and shoot [Medel] in [his] right eye too." Report of Proceedings (RP) 

at 220. Dominguez also told Medel he was going to kill him. 

On June 5, 2013, Medel was barbequing in his front yard with his family. Medel 

called the police to report that Dominguez was driving too fast through the neighborhood 

and was also driving without a license. Later on in the evening, Dominguez's Jeep was 

driven by Medel's house. Dominguez's girlfriend was driving. Dominguez hung out of 

the passenger side window and yelled that he was going to kill Medel, called Medel a 

"snitch," and said he was going to "blast" him. RP at 217. Dominguez repeated these 

statements a few times. 

The Jeep pulled into Dominguez's driveway, which was adjacent to Medel's 

house. Dominguez got out of the Jeep and said, "I'm going to beat your fucking ass, you 

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State v. Dominguez 

fucking snitch." RP at 21 7. Dominguez continued to scream, cuss, and act aggressively, 

and then approached Medel' s house. Dominguez began to walk through the bushes 

separating their properties, but a woman stepped in front of Dominguez and physically 

pushed him back before he crossed onto Medel' s property. 

After the woman pushed Dominguez back to his own property, Dominguez 

continued to yell that Medel was a "snitch," that he was going to "blast" him, and that he 

would "fuck [them] all up." RP at 218, 242-43. Medel called the police, and both sides 

went inside their respective houses. Officer Juan Serrato later arrived and investigated. 

Dominguez had surveillance footage of the incident, which Officer Serrato viewed. 

The State charged Dominguez with felony harassment for the June 5, 2013 

incident. At trial, the State questioned Medel about the 2006 incident involving Manny 

Benavidez. Dominguez objected to its relevance. The State argued this evidence was 

relevant to show that Medel' s fear that Dominguez would act on his threats was 

reasonable, given that Dominguez's threats referenced the 2006 eye gouging incident. 

The trial court acknowledged the evidence's relevance, but excluded it under ER 403. 

Later, during the State's case in chief, the State proffered 12 police reports 

describing prior altercations between Dominguez and Medel, which the State had not 

previously provided. Dominguez moved for a mistrial on the grounds that defense 

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No. 32719-1-III 

State v. Dominguez 

counsel would be unable to provide effective assistance in light of this new discovery. 

The trial court granted Dominguez's motion and declared a mistrial. 

Before the second trial, Dominguez moved in limine to exclude evidence relating 

to his December 19, 2012 threats against Medel, arguing these prior threats were 

inadmissible under ER 404(b ). The State argued this evidence was admissible under 

ER 404(b) because it was relevant to show Medel reasonably feared that Dominguez 

would carry out his June 5, 2013 threats. The State argued that Manny Benavidez had 

threatened Medel before gouging out his eye, and that Medel could have feared 

Dominguez's threats would follow the same pattern. Dominguez asked the court to 

exclude evidence relating to his own prior threats, but never asked the court to exclude 

evidence relating to the eye gouging incident. The trial court conducted an ER 404(b) 

analysis and admitted the evidence of Dominguez's December 19, 2012 threats against 

Medel. 

The second trial commenced. Medel testified that in 2006, Benavidez gouged out 

his eye. Medel testified that Benavidez had threatened to kill him multiple times before 

Benavidez gouged out his eye. Medel later testified that Dominguez's June 5, 2013 

threats made him fear for his life because Benavidez had previously threatened to kill him 

before Benavidez gouged out his eye. Dominguez did not object to any of this testimony. 

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No. 32719-1-111 

State v. Dominguez 

The jury convicted Dominguez. Dominguez appealed. This court stayed this 

appeal pending the United States Supreme Court's decision in Elonis v. United States, 

_U.S._, 135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015), anticipating that the Elonis court 

would decide whether the true threat exception to the First Amendment to the United 

States Constitution requires an objective or subjective mens rea requirement for the 

speaker. The United States Supreme Court decided Elonis in June 2015 and this court 

lifted the stay. 

This court set this case for consideration in January 2016. Several days later, this 

court certified State v. Trey M, 186 Wn.2d 884,383 P.3d 474 (2016),petitionfor cert. 

filed, No. 16-7712 (U.S. Jan. 25, 2017), a case similar to this one, to our Supreme Court 

on the issue of whether the United States Supreme Court's Elonis decision required 

Washington to change its construction of the harassment statute from an objective person 

standard to a subjective intent standard. Shortly afterward, our Supreme Court accepted 

certification of the Trey M case. In January 2016, this court considered this case and 

further stayed this appeal pending our Supreme Court's Trey M decision. Our Supreme 

Court decided Trey M on October 27, 2016, and this court lifted the stay. See Trey M, 

186 Wn.2d 884. 

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No. 32719-1-III 

State v. Dominguez 

ANALYSIS 

A. CONSTITUTIONALITY OF HARASSMENT ST A TUTE 

Dominguez argues Washington's harassment statute, RCW 9A.46.020, is facially 

overbroad because it lacks a subjective intent requirement to exclude speakers who have 

spoken idly, in hyperbole, or in jest. He also argues the statute is unconstitutionally vague 

because it fails to provide adequate notice of the conduct it prohibits and allows arbitrary 

and discriminatory enforcement. 

RCW 9A.46.020 provides in relevant part: 

( 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. ... 

[(2)](b) A person who harasses another is guilty of a class C felony 

if ... the person harasses another person under subsection (I)( a )(i) of this 

section by threatening to kill the person threatened .... 

1. Overarching legal principles 

This court reviews de novo whether a statute is unconstitutionally overbroad or 

vague under the First Amendment. State v. lmmelt, 173 Wn.2d 1, 6, 267 P.3d 305 (2011). 

Although statutes are generally presumed to be constitutional and the party challenging 

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No. 32719-1-111 

State v. Dominguez 

the statute must prove its unconstitutionality beyond a reasonable doubt, in the First 

Amendment context the burden shifts and "the State usually 'bears the burden of 

justifying a restriction on speech.'" Id. (internal quotation marks omitted) ( quoting 

Voters Educ. Comm. v. Pub. Disclosure Comm 'n, 161 Wn.2d 470,482, 166 P.3d 1174 

(2007)). 

Overbreadth doctrine creates a limited exception to the usual rule that a party "will 

not be heard to challenge [a] statute on the ground that it may conceivably be applied 

unconstitutionally to others, in other situations not before the Court." Broadrick v. 

Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Accordingly, 

Dominguez's facial challenge to the harassment statute does not require this court to 

address whether his actual speech was constitutionally protected. See lmmelt, 173 Wn.2d 

at 7. Rather, the question is whether the statute improperly infringes on protected speech 

in general. Id. 

2. The harassment statute is not facially over broad 

Washington courts apply federal overbreadth analysis. State v. McBride, 74 Wn. 

App. 460,464, 873 P.2d 589 (1994). The first step in overbreadth analysis is determining 

whether a statute actually criminalizes constitutionally protected speech. lmmelt, 173 

Wn.2d at 7. The second step is determining whether the statute prohibits a substantial 

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No. 32719-1-111 

State v. Dominguez 

amount of that speech. See id. at 6, 11. Finally, even if the law prohibits a substantial 

amount of protected speech, it "'will be overturned only if the court is unable to place a 

sufficiently limiting construction on a standardless sweep of legislation.'" Id. at 6-7 

(quoting City a/Tacoma v. Luvene, 118 Wn.2d 826, 840, 827 P.2d 1374 (1992)). 

Here, Dominguez's challenge to Washington's harassment statute does not pass 

the first step of overbreadth analysis-the statute does not actually implicate protected 

speech. Some categories of speech are unprotected by the First Amendment. State v. 

Kilburn, 151 Wn.2d 36, 42, 84 P.3d 1215 (2004). "True threats" is one of them. Id. at 

43. A "true threat" is"' a statement made in a context or under such circumstances 

wherein a reasonable [speaker] 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.'" Id. (second alteration in original) (internal quotation marks omitted) 

(quoting State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890 (2001)). 

Because a literal reading of the harassment statute criminalizes some types of 

protected speech, Washington courts have remedied constitutional concerns by construing 

the harassment statute as criminalizing only "true threats." Id. Similarly, to prevent 

criminalizing protected speech, trial courts instruct juries that the defendant's threat must 

be a "true threat" as defined above. See State v. Schafer, 169 Wn.2d 274, 287-88, 236 

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No. 32719-1-111 

State v. Dominguez 

PJd 858 (2010); see also State v. Johnston, 156 Wn.2d 355, 364-65, 127 PJd 707 

(2006). 

Nationwide, two different tests exist as to the mens rea requirement for a "true 

threat." Kilburn, 151 Wn.2d at 44. Under the "objective" test, the focus is on whether a 

reasonable speaker would foresee the listener to take his or her threat seriously. Id. In 

contrast, under the "subjective" test, the focus is on whether the speaker subjectively 

intended for the listener to take his or her threat seriously. Id. 

Our Supreme Court has expressly adopted the objective test. See Williams, 144 

Wn.2d at 207-08. Our Supreme Court has consistently reaffirmed and applied the 

objective test since its initial adoption. E.g., Kilburn, 151 Wn.2d at 43; Johnston, 156 

Wn.2d at 360; Schafer, 169 Wn.2d at 287. Most recently, in Trey M, our Supreme Court 

did so again. See Trey M, 186 Wn.2d at 895-904. 

This court stayed these proceedings pending the United States Supreme Court's 

decision in Elonis, 135 S. Ct. 2001, anticipating that the Court would resolve whether the 

First Amendment requires an objective or subjective test for "true threats." In Elonis, the 

defendant was convicted under 18 U.S.C. § 875(c), a federal statute prohibiting'" any 

threat to injure the person of another'" made over the Internet. Id. at 2008. The Elonis 

court resolved the case based on its construction of 18 U.S.C. § 875(c) and determined it 

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No. 32719-1-III 

State v. Dominguez 

was "not necessary to consider any First Amendment issues." Id. at 2012. In Trey M, 

our Supreme Court subsequently held that the Elonis decision had no impact on 

Washington's objective test for "true threats" under the First Amendment because it 

expressly avoided any First Amendment analysis. Trey M, 186 Wn.2d at 888, 899. 

Nevertheless, Dominguez argues our Supreme Court has incorrectly adopted and 

applied the objective test. He argues the United States Supreme Court in Virginia v. 

Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) established a subjective 

test for "true threats" under the First Amendment. 

Our Supreme Court in Trey M expressly rejected this exact argument. The Trey 

M court reasoned the Black court only engaged in a subjective intent analysis because the 

Virginia criminal statute at issue there required subjective intent-not because subjective 

intent was a constitutional requirement. Trey M, 186 Wn.2d at 899. The Trey M court 

further reasoned Black never imposed a subjective mens rea requirement in all cases. Id. 

at 900. The Trey M court acknowledged a nationwide split of authority as to whether 

Black established a subjective test under the First Amendment, but expressly held the 

objective test remained the law in Washington notwithstanding Black. Id. at 902; see also 

State v. Ballew, 167 Wn. App. 359,368,272 P.3d 925 (2012) (also holding Black did not 

establish a subjective test under First Amendment). 

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No. 32719-1-III 

State v. Dominguez 

Therefore, because RCW 9A.46.020 only prohibits "true threats"-which our 

Supreme Court has repeatedly defined as statements a reasonable speaker would foresee a 

listener would take seriously-and because such statements are not constitutionally 

protected speech, RCW 9A.46.020 does not criminalize any constitutionally protected 

speech. Dominguez's facial overbreadth claim fails. 

3. The harassment statute is not facially vague 

Dominguez also contends RCW 9A.46.020 is facially vague because the lack of a 

subjective intent requirement forces citizens to guess whether their statements are 

protected. He also contends this encourages arbitrary and discriminatory enforcement. 

"A law that does not reach constitutionally protected conduct and therefore 

satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague." 

Viii. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,497, 102 S. Ct. 

1186, 71 L. Ed. 2d 362 ( 1982). A statute is unconstitutionally vague if it either ( 1) "does 

not define the criminal offense with sufficient definiteness that ordinary people can 

understand what conduct is proscribed" or (2) "does not provide ascertainable standards 

of guilt to protect against arbitrary enforcement." City of Spokane v. Douglass, 115 

Wn.2d 171, 178, 795 P .2d 693 ( 1990). 

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No. 32719-1-III 

State v. Dominguez 

Here, an ascertainable standard allows citizens and law enforcement to understand 

what statements are proscribed: if a reasonable speaker would foresee that a listener 

would take the threat seriously, it is constitutionally unprotected and proscribed by the 

harassment statute. See State v. E.J.Y., 113 Wn. App. 940,951, 55 P.3d 673 (2002) 

(holding RCW 9A.46.020 is not unconstitutionally vague because the statute only 

proscribes "true threats"). Legal standards in statutes and court rulings are presumptively 

available to everyone. State v. Smith, 111 Wn.2d 1, 7, 759 P.2d 372 (1988) (holding 

RCW 9A.46.020 was not unconstitutionally vague because readily ascertainable sources 

of law defined the phrase "lawful authority"). Ample case law interprets whether speech 

was protected in similar instances. E.g., State v. Hecht, 179 Wn. App. 497,511,319 P.3d 

836 (2014) (holding the statement "I am going to kill you" was a "true threat" because 

defendant could foresee the victim would take the threat seriously). Dominguez's 

vagueness claim fails. 

B. EVIDENCE REGARDING THE EYE GOUGING INCIDENT 

Dominguez argues the evidence concerning the incident where Manny Benavidez 

gouged out Medel's eye was inadmissible under ER 404(b). Dominguez argues this 

evidence was irrelevant because the incident occurred long before he threatened Medel 

and was also prejudicial because he had nothing to do with the incident. 

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No. 32719-1-III 

State v. Dominguez 

"[An] appellate court may refuse to review any claim of error which was not raised 

in the trial court." RAP 2.5(a). A timely objection "gives a trial court the opportunity to 

prevent or cure error," such as striking testimony or giving a curative instruction to the 

jury. State v. Kirkman, 159 Wn.2d 918,926, 155 P.3d 125 (2007). If a defendant does 

not make objections during trial resembling the challenges raised on appeal, the appellate 

court will decline to review the alleged errors. State v. Stenson, 132 Wn.2d 668, 726, 940 

P.2d 1239 (1997); State v. Blake, 172 Wn. App. 515,530,298 P.3d 769 (2012). 

During the second trial, Medel repeatedly testified regarding the eye gouging 

incident. Dominguez never objected to any of this testimony. Dominguez argues he 

"made a standing objection to the admission of the testimony pertaining to Mr. Benavidez 

gouging out Mr. Medel's eye" during his motions in limine. Br. of Appellant at 17. The 

record demonstrates otherwise. During his motions in limine, Dominguez moved under 

ER 404(b) to exclude evidence relating to his December 19, 2012 threats to Medel. 

Although the State cited the eye gouging incident as a reason why Dominguez's prior 

threats were relevant, Dominguez only sought to exclude evidence relating to the threats 

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No. 32719-1-III 

State v. Dominguez 

he made to Medel on December 19, 2012. He never asked the court to exclude evidence 

relating to the 2006 eye gouging incident between Benavidez and Medel. 1 

Accordingly, because Dominguez never objected to the eye gouging evidence 

before or during the trial, we conclude he failed to preserve this issue for review. 

C. SUFFICIENCY OF THE EVIDENCE 

Dominguez argues the State presented insufficient evidence to prove Medel's fear 

of death was objectively reasonable. 

In a criminal case, evidence is sufficient to convict if it permits a rational trier of 

fact to find the essential elements of the 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 of the evidence, the proper inquiry is "whether, after viewing 

the evidence in the light most favorable to the State, any rational trier of fact 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 must be drawn in favor of 

1 Dominguez did object to testimony relating to the 2006 eye gouging incident at 

the first trial, which ended in a mistrial. However, this was insufficient to preserve the 

issue for appellate review. Judge Sperline-who did not preside over the first trial and 

did not know about the eye gouging incident-presided over Dominguez's retrial. 

Without an objection to the eye gouging evidence at the second trial, Judge Sperline did 

not have an opportunity to address or correct the alleged error. See Kirkman, 159 Wn.2d 

at 926. 

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No. 32719-1-111 

State v. Dominguez 

the State and interpreted most strongly against the defendant." Id. Furthermore, "[a] 

claim of insufficiency admits the truth of the State's evidence and all inferences that 

reasonably can be drawn therefrom." Id. 

To convict a person for felony harassment, the State must prove beyond a 

reasonable doubt that the defendant (1) without lawful authority, (2) knowingly 

threatened to kill some other person immediately or in the future, and (3) the defendant's 

words or conduct placed the person threatened in reasonable fear that the threat to kill 

would be carried out. RCW 9A.46.020(1)(a)(i), (l)(b), (2)(b)(ii); State v. C.G., 150 

Wn.2d 604, 607, 80 P.3d 594 (2003). Dominguez challenges only the sufficiency of the 

evidence in support of the last element-that his words or conduct placed Medel in 

reasonable fear that his threats to kill would be carried out. 

An objective standard determines whether the listener's fear is reasonable. State v. 

Ragin, 94 Wn. App. 407,411,972 P.2d 519 (1999). The reasonableness of the person's 

fear depends on all the facts and circumstances. C.G., 150 Wn.2d at 611. The victim's 

knowledge of the defendant's prior violence is relevant to this question. Ragin, 94 Wn. 

App. at 411-12. A considerable distance or some kind of physical barrier separating the 

antagonists does not mean the evidence is insufficient when the speaker threatens future 

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No. 32719-1-III 

State v. Dominguez 

harm. See State v. Alvarez, 74 Wn. App. 250, 262, 872 P.2d 1123 (1994), ajf'd, 128 

Wn.2d 1, 904 P.2d 754 (1995). 

Here, the evidence was sufficient for the jury to find that Medel reasonably feared 

that Dominguez would act on his death threats. First, Dominguez's words were 

accompanied by threatening conduct. Dominguez was acting "really aggressive." RP at 

241. Multiple witnesses testified Dominguez went through the bushes toward Medel' s 

property until a woman stepped in front of him and physically pushed him back. 

Additionally, Dominguez previously threated to kill Medel on December 19, 2012. 

Several of Dominguez's prior threats-specifically, that he was going to shove a 

screwdriver in Medel' s eye, and also shoot him in his eye-referenced the 2006 incident 

where Benavidez gouged out Medel's eye. Because Benavidez had similarly threatened 

Medel before gouging out his eye, Medel could have reasonably feared that Dominguez's 

threats would follow the same pattern. 

Dominguez argues he and Medel had exchanged words many times, none of which 

resulted in physical contact. Therefore, he argues, it was reasonable for his comments to 

be interpreted as "' all bark and no bite.'" Br. of Appellant at 24. However, this 

inference goes both ways-Medel believed Dominguez would act on his threats because 

Dominguez had threatened him in the past, and Dominguez was "not going to keep on 

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No. 32719-1-III 

State v. Dominguez 

saying it for nothing." RP at 220. After a conviction, this court must draw all inferences 

in favor of the State. Salinas, 119 Wn.2d at 201. Because of this deferential standard, we 

conclude this evidence supports the jury's finding that Medel's fear was reasonable. 

Dominguez also argues his threat was an immediate threat rather than a future 

threat and, therefore, Medel's fear of immediate harm was unreasonable because he never 

actually entered Medel' s property. Dominguez relies on A us tin, which held that the 

defendant's statement, "let's fight," was only an immediate threat. 2 State v. Austin, 65 

Wn. App. 759,761,831 P.2d 747 (1992). Even assuming Dominguez only threatened 

immediate harm rather than future harm, Medel's fear still was reasonable because there 

was not a considerable distance or barrier between Dominguez and Medel. Their 

properties were directly adjacent and only separated by "a few plants and things," which 

did not create a significant barrier. RP at 242. 

Dominguez further argues there is a question as to whether he actually made the 

statements, given Officer Serrato's testimony that he did not hear the statements on the 

videotape. However, Medel and his fiance both testified Dominguez made the 

statements. This court assumes the truth of that evidence. Salinas, 119 Wn.2d at 201. 

2 At the time Austin was decided, RCW 9A.46.020 only prohibited a person from 

threatening "[t]o cause bodily injury in the future." Former RCW 9A.46.020(l)(a)(i) 

(1992) (emphasis added). The legislature amended the statute in 1997 to also prohibit 

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No. 32719-1-III 

State v. Dominguez 

Dominguez finally argues Officer Serrato never found any weapons. While true, Medel 

did not know this when Dominguez threatened to kill him. Significantly, Dominguez had 

previously threatened to get a gun and shoot Medel. 

Drawing all reasonable inferences in favor of the State, as we must after a 

conviction, we conclude that the evidence was sufficient for a rational jury to find beyond 

a reasonable doubt that Medel reasonably feared Dominguez would act on his death 

threats. Sufficient evidence supports Dominguez's felony harassment conviction. 

D. CUMULATIVE ERROR 

Dominguez argues cumulative error deprived him of a fair trial. The cumulative 

error doctrine applies if there were several trial errors, none of which standing alone is 

sufficient to warrant reversal, that when combined may have denied the defendant a fair 

trial. State v. Greif!, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because Dominguez has 

not demonstrated any trial errors occurred, reversal based on cumulative error is 

unwarranted. 

threats of immediate harm. See LAWS OF 1997, ch. 105, § 1. 

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State v. Dominguez 

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. 

WE CONCUR: 

Siddoway, 71?~~'~' J.' Pennell, J. 

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