### FILED MAY30, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent,


### v. NOLAND ASHLEYDOMINGUEZ, Appellant. ) ) ) ) ) ) ) ) ) No. 32719-1-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.CJ.

- NolandDominguez appeals his conviction for felony harassment. He argues (1) Washington's harassment statute, RCW9A.46.020, is unconstitutionally overbroad and vaguebecause it lacks a subjective intentrequirement, (2) the State improperly introduced evidence ofan incidentyears earlierwhere someone gouged outthe victim's eye, (3) the Statepresented insufficient evidence toprovethe victim's fear was reasonable, and ( 4) cumulative errordeprivedhim ofa fair trial. We affirm. FACTS Dominguez lived next doorto Gerardo Medel Jr. Thetwo were friendly. However, theirrelationship soured in 2006 after Medel testified against a mannamedNo. 32719-1-III State v. Dominguez Manny Benavidez, whohadpreviously 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 aboutthe snow andpulled outbrass knuckles. In response, Dominguezpickedup a flower pqt and said he wouldbreak it over Medel's head. Dominguezthen told Medel that "hewas going to get a screwdriver and shove it in [Medel's] right eye and blind [him] like Manny Benavidez did, andthat he was going to get a gun and shoot [Medel] in [his] right eye too." Report ofProceedings (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 calledthe police to reportthatDominguezwas driving too fast throughthe neighborhood and was also driving without a license. Later on inthe evening, Dominguez's Jeep was driven by Medel's house. Dominguez's girlfriend was driving. Dominguezhung out of the passenger side window and yelledthat he was going to kill Medel, calledMedel a "snitch," and said he was going to "blast" him. RP at 217. Dominguezrepeatedthese statements a few times. The Jeep pulled into Dominguez's driveway, whichwas adjacentto Medel's house. Dominguez got out ofthe Jeep and said, "I'm going to beatyour fucking ass, you
2No. 32719-1-111 State v. Dominguez fucking snitch." RP at 217. Dominguez continued to scream, cuss, and act aggressively, and then approached Medel's house. Dominguezbegan to walk through the bushes separating theirproperties, but a woman stepped in front ofDominguez andphysically pushed him back before he crossed onto Medel's property. Afterthe woman pushed Dominguez backto his ownproperty, Dominguez continued to yell thatMedel was a "snitch,"thathe was going to "blast" him, and thathe would "fuck [them] all up." RP at 218, 242-43. Medel calledthepolice, and both sides went inside their respective houses. OfficerJuan Serrato later arrived and investigated. Dominguez had surveillance footage ofthe incident, which Officer Serrato viewed. The State charged Dominguez with felony harassment for the June 5, 2013 incident. Attrial, the State questioned Medel aboutthe 2006 incident involving Manny Benavidez. Dominguez objected to its relevance. The State argued this evidence was relevant to show that Medel's fear thatDominguez would act onhis threats was reasonable, given thatDominguez's threats referenced the 2006 eye gouging incident. The trial court acknowledgedthe evidence's relevance, but excluded it underER403. Later, during the State's case in chief, the Stateproffered 12 policereports describing prior altercations between Dominguez and Medel, which the State had not previouslyprovided. Dominguez moved for a mistrial on the grounds that defense


### 3No. 32719-1-III State v. Dominguez
counsel would be unable to provide effective assistance in light ofthis new discovery. The trial court granted Dominguez's motion and declared a mistrial. Before the second trial, Dominguez moved in limine to exclude evidencerelating to his December 19, 2012 threats against Medel, arguing these priorthreats were inadmissible underER404(b). The State argued this evidence was admissible under ER404(b) because it was relevantto show Medel reasonably feared that Dominguez would carry out his June 5, 2013 threats. The State argued that Manny Benavidezhad 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 ownpriorthreats, but never asked the courtto exclude evidence relating to the eye gouging incident. The trial court conducted an ER404(b) analysis and admitted the evidence ofDominguez's December 19, 2012 threats against Medel.The secondtrial commenced. Medel testified that in 2006, Benavidez gouged out his eye. Medel testified that Benavidezhad threatenedto kill him multiple times before Benavidez gouged out his eye. Medel latertestified thatDominguez's June 5, 2013 threats made him fear for his life because Benavidezhad previously threatenedto kill him before Benavidez gouged out his eye. Dominguez did not objectto any ofthis testimony.
4No. 32719-1-111 State v. Dominguez
Thejury convicted Dominguez. Dominguez appealed. This court stayed this appeal pending the United States Supreme Court's decision inElonis v. UnitedStates, _U.S._, 135 S. Ct. 2001, 192 L. Ed. 2d 1(2015), anticipating that theElonis court would decide whetherthe true threat exception to the FirstAmendmentto the United States Constitution requires an objective or subjective mens rearequirement for the speaker. The United States Supreme Court decidedElonis in June 2015 and this court lifted the stay. This court set this case for consideration in January 2016. Several days later, this court certifiedState 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 similarto this one, to our Supreme Court

on the issue ofwhetherthe United States Supreme Court'sElonis decision required Washington to change its construction ofthe harassment statute from an objective person standard to a subjective intent standard. Shortly afterward, our Supreme Court accepted certification ofthe Trey M case. In January 2016, this court considered this case and further stayed this appeal pending our Supreme Court's TreyM decision. Our Supreme Court decided Trey M on October 27, 2016, and this court lifted the stay. See Trey M, 186 Wn.2d 884.

5No. 32719-1-III State v. Dominguez
ANALYSIS A. CONSTITUTIONALITY OF HARASSMENT ST ATUTE Dominguez argues Washington's harassment statute, RCW 9A.46.020, is facially overbroad because it lacks a subjective intent requirementto exclude speakers whohave spoken idly, in hyperbole, orinjest. He also argues the statute is unconstitutionallyvague because it fails toprovide adequate notice ofthe conduct itprohibits and allows arbitrary and discriminatory enforcement. RCW 9A.46.020 provides in relevantpart: (1) A person is guilty ofharassment if: (a) Without lawful authority, theperson knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened orto any otherperson ... [and] (b) Thepersonbywords or conductplaces the personthreatened in reasonable fear thatthe threat will be carried out. ... [(2)](b) A person who harasses another is guilty ofa class C felony if
... the person harasses anotherpersonunder subsection (I)(a)(i) ofthis section by threatening to kill the person threatened
.... 1. Overarching legalprinciples This court reviews de novo whether a statute is unconstitutionally overbroad or vague underthe First Amendment. State v. lmmelt, 173 Wn.2d 1, 6, 267 P.3d 305 (2011). Although statutes are generallypresumedto be constitutional and theparty challenging
6No. 32719-1-111 State v. Dominguez
the statute must prove its unconstitutionality beyond areasonable 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." Broadrickv. 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 courtto address whether his actual speech was constitutionallyprotected. See lmmelt, 173 Wn.2d at 7. Rather, the question is whetherthe statute improperly infringes onprotected speech in general. Id. 2. The harassmentstatute is not facially overbroad 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 constitutionallyprotected speech. lmmelt, 173 Wn.2d at 7. The second step is determining whetherthe statute prohibits a substantial

7No. 32719-1-111 State v. Dominguez

amount ofthat speech. See id. at 6, 11. Finally, even ifthe lawprohibits a substantial amount ofprotected speech, it "'willbe overturned only ifthe court is unable to place a sufficiently limiting construction on a standardless sweep oflegislation.'" 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 ofoverbreadth analysis-the statute does not actually implicate protected speech. Some categories ofspeech are unprotected by the FirstAmendment. State v. Kilburn, 151 Wn.2d 36, 42, 84 P.3d 1215 (2004). "Truethreats" is one ofthem. Id. at 43. A "true threat" is"'a statement made in a context orunder such circumstances wherein a reasonable [speaker] would foresee that the statementwould be interpreted
... as a serious expression ofintention to inflictbodily harm upon orto 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 ofthe 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 criminalizingprotected speech, trial courts instructjuries that the defendant's threat must be a "true threat" as defined above. See State v. Schafer, 169 Wn.2d 274, 287-88, 236
8No. 32719-1-111 State v. Dominguez
PJd 858 (2010); see also State v. Johnston, 156 Wn.2d 355, 364-65, 127 PJd707 (2006). Nationwide, two different tests exist as to the mens rearequirement for a "true threat." Kilburn, 151 Wn.2d at 44. Underthe "objective"test, the focus is on whether a reasonable speaker would foresee the listenerto take his or herthreat seriously. Id. In contrast, under the "subjective"test, the focus is on whetherthe speaker subjectively intended for the listener to take his or herthreat 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. Mostrecently, 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 Courtwould resolve whetherthe 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 ofanother'" made overthe Internet. Id. at 2008. TheElonis court resolved the case based on its construction of 18 U.S.C. § 875(c) and determined it
9No. 32719-1-III State v. Dominguez

was "not necessary to consider any FirstAmendment 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 "truethreats" under the FirstAmendmentbecause it expressly avoided any FirstAmendment analysis. Trey M, 186 Wn.2d at 888, 899. Nevertheless, Dominguez argues our Supreme Courthas 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 Blackcourt only engaged in a subjective intent analysis because the Virginia criminal statute at issue there required subjective intent-notbecause subjective intent was a constitutional requirement. Trey M, 186 Wn.2d at 899. The Trey M court further reasonedBlacknever imposed a subjective mens rearequirement in all cases. Id. at 900. The Trey M court acknowledged a nationwide split ofauthority as to whether Blackestablished a subjective test under the FirstAmendment, but expressly held the objective test remained the law in Washington notwithstandingBlack. Id. at 902; see also State v. Ballew, 167 Wn. App. 359,368,272 P.3d 925 (2012) (also holdingBlackdid not establish a subjective test under FirstAmendment).
10No. 32719-1-III State v. Dominguez Therefore, because RCW 9A.46.020 onlyprohibits "truethreats"-which our Supreme Courthas repeatedly defined as statements a reasonable speakerwould foresee a listener would take seriously-andbecause such statements are not constitutionally protected speech, RCW 9A.46.020 does not criminalize any constitutionallyprotected speech. Dominguez's facial overbreadth claim fails. 3. The harassmentstatute is not facially vague Dominguez also contends RCW 9A.46.020 is facially vaguebecause the lack ofa subjective intent requirement forces citizens to guess whethertheir statements are protected. He also contends this encourages arbitrary and discriminatory enforcement. "A law that does notreach constitutionallyprotected 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 ifit either (1) "does not define the criminal offense with sufficient definiteness that ordinarypeople can understand what conduct is proscribed" or (2) "does notprovide ascertainable standards ofguiltto protect against arbitrary enforcement." City of Spokane v. Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990).

11No. 32719-1-III State v. Dominguez Here, an ascertainable standard allows citizens and law enforcementto understand what statements are proscribed: ifa reasonable speakerwould foresee that a listener would take the threat seriously, it is constitutionally unprotected andproscribedby 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 courtrulings 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 oflaw 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 goingto kill you" was a "truethreat" 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 underER404(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.
12No. 32719-1-III State v. Dominguez "[An] appellate court may refuse to review any claim oferror whichwas not raised in the trial court." RAP 2.5(a). A timely objection "gives a trial court the opportunityto 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). Ifa 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 objectedto any ofthis testimony. Dominguez argues he "made a standing objectionto the admission ofthe testimony pertaining to Mr. Benavidez gouging out Mr. Medel's eye" during his motions in limine. Br. ofAppellant at 17. The record demonstrates otherwise. During his motions in limine, Dominguez moved under ER404(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'sprior threats were relevant, Dominguez only soughtto exclude evidence relating to the threats

13No. 32719-1-III State v. Dominguez
he made to Medel on December 19, 2012. He never asked the courtto exclude evidence relating to the 2006 eye gouging incidentbetween 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 ofdeath was objectively reasonable. 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, theproper inquiry is "whether, after viewing 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

1Dominguezdid objectto testimony relating to the 2006 eye gouging incident at the first trial, which ended in a mistrial. However, this was insufficienttopreserve the issue for appellate review. Judge Sperline-who did not preside overthe first trial and did not know about the eye gouging incident-presided overDominguez's retrial. Without an objection to the eye gouging evidence atthe second trial, Judge Sperline did not have an opportunity to address or correct the alleged error. See Kirkman, 159 Wn.2d at 926. 14No. 32719-1-111 State v. Dominguez
the State and interpreted most strongly against the defendant." Id. Furthermore, "[a] claim ofinsufficiency admits the truth ofthe State's evidence and all inferences that reasonably can be drawn therefrom." Id. To convict aperson for felony harassment, the State mustprove beyond a reasonable doubt that the defendant (1) without lawful authority, (2) knowingly threatened to kill some otherperson immediately or in the future, and (3) the defendant's words or conductplaced the person threatened in reasonable fear thatthe 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 onlythe sufficiency ofthe evidence in support ofthe last element-thathis words or conductplacedMedel in reasonable fear thathis threats to kill would be carried out. An objective standard determines whetherthe listener's fear is reasonable. State v. Ragin, 94 Wn. App. 407,411,972 P.2d 519 (1999). The reasonableness ofthe person's fear depends on all the facts and circumstances. C.G., 150 Wn.2d at 611. The victim's knowledge ofthe defendant's prior violence is relevant to this question. Ragin, 94 Wn. App. at 411-12. A considerable distance or some kind ofphysical barrier separating the antagonists does not mean the evidence is insufficient when the speakerthreatens future

15No. 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 thejuryto find that Medel reasonably feared that Dominguez would act on his death threats. First, Dominguez's words were accompanied by threatening conduct. Dominguezwas acting "really aggressive." RP at 241. Multiple witnesses testified Dominguezwentthrough the bushes toward Medel's property until a woman stepped in front ofhim and physically pushed him back. Additionally, Dominguezpreviously threated to kill Medel on December 19, 2012. Several ofDominguez'spriorthreats-specifically, that he was going to shove a screwdriver in Medel's eye, and also shoot him in his eye-referencedthe 2006 incident where Benavidez gouged out Medel's eye. Because Benavidezhad similarly threatened Medel before gouging out his eye, Medel could have reasonably feared thatDominguez's threats would follow the samepattern. Dominguez argues he and Medel had exchanged words many times, none ofwhich resulted in physical contact. Therefore, he argues, it was reasonable for his comments to be interpreted as "'all bark and no bite.'" Br. ofAppellant at 24. However, this inference goes both ways-Medelbelieved Dominguez wouldact on his threats because Dominguez had threatened him in the past, and Dominguez was "notgoing to keep on
16No. 32719-1-III State v. Dominguez saying it for nothing." RP at 220. After a conviction, this court must draw all inferences in favor ofthe State. Salinas, 119 Wn.2d at 201. Because ofthis deferential standard, we conclude this evidence supports thejury'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 ofimmediate harm was unreasonable because he never actually entered Medel's property. Dominguez relies onAustin, 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 orbarrierbetween Dominguez and Medel. Their properties were directly adjacent and only separated by "afew plants and things," which did not create a significant barrier. RP at 242. Dominguez further argues there is a question as to whetherhe actually made the statements, given Officer Serrato's testimony that he did not hearthe statements on the videotape. However, Medel and his fiance both testified Dominguez made the statements. This court assumes the truth ofthat evidence. Salinas, 119 Wn.2d at 201.

2 At the timeAustin was decided, RCW 9A.46.020 only prohibited aperson from threatening "[t]o cause bodily injury in thefuture." Former RCW 9A.46.020(l)(a)(i) (1992) (emphasis added). The legislature amended the statute in 1997 to also prohibit 17No. 32719-1-III State v. Dominguez Dominguez finally argues Officer Serrato never found any weapons. While true, Medel did not knowthis when Dominguezthreatened to kill him. Significantly, Dominguezhad previously threatened to get a gun and shootMedel. Drawing all reasonable inferences in favor ofthe State, as wemust after a conviction, we conclude that the evidence was sufficient for a rationaljuryto find beyond
a reasonable doubt thatMedel reasonably feared Dominguez would act onhis death threats. Sufficient evidence supports Dominguez's felony harassment conviction. 

### D. CUMULATIVE ERROR Dominguez argues cumulative error deprivedhim ofa fair trial. The cumulative
error doctrine applies ifthere were several trial errors, none ofwhich standing alone is sufficientto warrantreversal, that when combined may have denied the defendant a fair trial. State v. Greif!, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). BecauseDominguezhas not demonstrated any trial errors occurred, reversal based on cumulative error is unwarranted.

threats ofimmediate harm. See LAWS OF 1997, ch. 105, 

### § 1. 18No. 32719-1-III State v. Dominguez
Affirmed. A majority ofthe 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: 

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

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