FILED 

MARCH 15, 2018 

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, 

Respondent, 

V. 

RAYMOND RICHARD RAAB, 

Appellant. 

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No. 34705-2-III 

UNPUBLISHED OPINION 

KORSMO, J. - Raymond Raab challenges his convictions for two counts of 

intimidating a public servant and two counts of obstructing a law enforcement officer, 

primarily arguing that the jury instructions commented on the evidence. We disagree and 

affirm. 

FACTS 

Mr. Raab, age 74 at the time of this incident, lives on property he owns in rural 

Okanogan County northeast of Tonasket. On October 22, 2015, firefighters spotted a 

small unattended fire in a rural area during a bum ban. Two two-man firefighting crews 

arrived at the scene to put out the fire. They were met by Mr. Raab, apparently 

intoxicated, who opposed their efforts to fight the fire. 
No. 34705-2-111 

State v. Raab 

Engine leaders Enrique Ortega and Cody Epps attempted to negotiate with Mr. 

Raab, telling him they would not issue a citation ifhe only let them put out the fire. The 

leaders were accompanied by crew members Carlos Moreno and Mick Fulmer. Mr. Raab 

threatened to get a rifle and shoot the crews. The firefighters left the property and called 

for assistance from the Okanagan County Sheriff. 

By the time a deputy sheriff had arrived, Mr. Raab had put out the fire with a 

garden hose. Mr. Raab was arrested and eventually charged with four counts of 

intimidating a public servant and four counts of obstructing a law enforcement officer. 

Each firefighter was identified as the victim of one count for each offense. 

The matter proceeded to jury trial. The court dismissed the obstruction charges 

involving the two crew members at the conclusion of the State's case. For each of the six 

remaining charges, the first element of the "to convict" instruction included a 

parenthetical identifying the firefighter involved in that charge. In each instance, the first 

element of the intimidating charge states (in part): "attempted to influence a public 

servant's opinion, decision or other official action as a public servant ([ name of specific 

victim])." Clerk's Papers (CP) at 25-28. Similarly, the first element of the obstructing a 

law enforcement officer charges stated that the State needed to prove the defendant 

"willfully hindered, delayed, or obstructed a law enforcement officer ([name of 

firefighter]) in the discharge of the law enforcement officer's official powers or duties." 

CP at 30-31. 

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No. 34705-2-III 

State v. Raab 

Mr. Raab denied threating to shoot the firefighters. The defense argued the case to 

the jury on the theory that his actions did not amount to intimidation because he never 

sought to retrieve his gun. He also argued there was no obstruction because his fire was 

lawfully set and that the crew's fire-fighting obligations did not extend to his fire. The 

jury acquitted on the intimidation charges involving the two crew members, but 

convicted on all four charges relating to the two crew leaders. 

The court discussed with Mr. Raab at sentencing his ability to pay legal financial 

obligations (LFOs). Mr. Raab's sole income was his social security retirement, but he 

owned 110 acres of land valued at $60,000. When asked ifhe could pay a minimum of 

$50 per month, he agreed that he could. The court imposed LFOs of $1260.50; $800.00 

of that figure consisted of mandatory assessments. 

Mr. Raab timely appealed to this court. A panel considered the matter without 

argument. 

ANALYSIS 

This appeal argues that the court commented on the evidence in each of the six 

elements instructions by including the names of each firefighter in parentheses. Mr. Raab 

also argues that the court erred in finding he was able to pay his LFOs and requests that 

we waive appellate costs. We address first the instructional issue, followed by joint 

consideration of the financial matters. 

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No. 34705-2-III 

State v. Raab 

Instructions 

Mr. Raab argues that the parenthetical reference to each firefighter's name 

constituted a judicial comment on the evidence. We disagree, but further note that any 

error also would be harmless under these facts. 

"Judges shall not charge juries with respect to matters of fact, nor comment 

thereon, but shall declare the law." WASH. CONST. art. IV,§ 16. This provision 

"prohibits a judge from conveying to the jury his or her personal attitudes toward the 

merits ofthe case." State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). The 

purpose of this provision "is to prevent the jury from being unduly influenced by the 

court's opinion regarding the credibility, weight, or sufficiency of the evidence." State v. 

Sivins, 138 Wn. App. 52, 58, 155 P.3d 982 (2007) (citing State v. Eisner, 95 Wn.2d 458, 

462, 626 P.2d 10 (1981)). "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). Thus, a jury instruction which removes a factual matter 

from the jury constitutes a comment on the evidence in violation of this section. Becker, 

132 Wn.2d at 64-65. In determining whether a statement by the court amounts to a 

comment on the evidence, a reviewing court looks to the facts and circumstances of the 

case. State v. Jacobsen, 78 Wn.2d 491,495,477 P.2d 1 (1970). 

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No. 34705-2-III 

State v. Raab 

Mr. Raab bases his argument primarily on State v. Jackman, 156 Wn.2d 736, 132 

P .3d 136 (2006). There the defendant was charged with three counts of sexual 

exploitation of a minor involving three different victims. Id. at 7 40-7 41. The second 

element for each count (with different initials and dates of birth for each count), required 

the State to establish "that B.L.E., DOB 04/21/1985, was a minor." Id. at n.3. The court 

unanimously agreed that instructing the jury on the victim's birthdate was a comment on 

the evidence since the youth of the victim was one of the elements the State needed to 

prove in order to establish the case. Id. at 744. Presenting the birthdates to the jury as a 

statement of fact conveyed the impression that the judge believed the dates had been 

proven. Id. 

A similar problem was presented in Becker. There, a special verdict form asked 

the jury if the crime had been committed within 1,000 feet of a school, "to-wit: Youth 

Employment Education Program School." 132 Wn.2d at 64. The parties had contested at 

trial whether the Youth Employment Education Program constituted a school or not. Id.

at 63. Because the form stated that the program was a school, the special verdict 

constituted a comment on the evidence. Id. at 65. 

Mr. Raab equates the parentheticals used in his case with the jury instructions used 

in Jackman and Becker. For two reasons, his equation fails. First, in both of the earlier 

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No. 34705-2-III 

State v. Raab 

decisions, the plain language of the elements instructions stated as fact one of the 

elements the State needed to prove. Here, the parenthetical notations of the names of the 

firefighter involved in each count did not address an element of the crime. The State was 

under no obligation to prove the name of each public servant it contended was 

intimidated or obstructed by Mr. Raab, so the inclusion of the name could not logically 

have constituted a comment on an element of the offense. 1 The names in the 

parentheticals were a modifying phrase; they were not elements of the offense. 

There is a second reason, however, that Mr. Raab's argument is fundamentally 

flawed. He wrongly views the parenthetical name reference as somehow proving the 

status of public servant. For instance, in the intimidation of a public servant context, Mr. 

Raab treats the public servant element as if it was proven by the mere identification of a 

firefighter's name. It was not. The parenthetical refers to th� phrase it is modifying, not 

the other way around. If for example, the instruction had read: "Enrique Ortega, a public 

servant," Mr. Raab would have an argument that it constituted a comment on the evidence 

by indicating that Mr. Ortega was a public servant. Here, that was not the case. Even if 

the inclusion of the name in the parenthetical amounted to a judicial comment, it would be 

1 We also question, but do not decide, whether the inclusion of the name in a 

parenthetical notation was otherwise the equivalent of a "to wit" designation such as that 

used in Becker. 

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No. 34705-2-III 

State v. Raab 

only a comment about what the firefighter's name actually was. It would not prove the 

specific named firefighter was a public servant-the fact that the State needed to prove.2

For both reasons, there was no error. But, even if there had been an error, it was 

harmless. 

An improper judicial comment is presumed to be prejudicial. State v. Levy, 156 

Wn.2d 709, 723-725, 132 P.3d 1076 (2006); State v. Bogner, 62 Wn.2d 247,382 P.2d 

254 (1963). However, such an error is harmless where the record contains overwhelming 

untainted evidence to support the conviction. Lane, 125 Wn.2d at 839-840; Sivins, 138 

Wn. App. at 60-61. Under this standard, the appellate court looks to the untainted 

evidence to determine if it is so overwhelming that it necessarily leads to a finding of 

guilt. State v. Guloy, 104 Wn.2d 412,426, 705 P.2d 1182 (1985). 

That standard is satisfied here. The names of the individual firefighters were not a 

contested issue in the case. More critically, the fact that the firefighters were public 

servants likewise was not in issue, and the fact that firefighters were law enforcement 

officers was a correct statement of law. As noted earlier, Mr. Raab denied making the 

threat that the firefighters claimed he made and also asserted that his failure to seek out 

2 Mr. Raab's argument is even weaker in the context of the obstructing a law 

enforcement officer charge. There, the jury was told by instruction 19 that firefighters 

were law enforcement officers. CP at 38. Thus, even if the name of the firefighter was 

equivalent to identifying him as a law enforcement officer, it constituted a correct 

statement of law instead of a comment on the facts of the case. 

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No. 34705-2-111 

State v. Raab 

his weapon meant he had not threatened them: The fact that firefighters were public 

servants and/or law enforcement officers simply was not at issue in this case. If the court 

commented on the evidence by noting the identity of the firefighters, the error was 

harmless in light of the uncontested nature of the elements, which were amply supported 

in fact. 

Mr. Raab has not established the existence of prejudicial error. The convictions 

are affirmed. 

Cost Issues 

Lastly, Mr. Raab argues that the trial court erred in imposing discretionary LFOs 

and that this court should waive costs on appeal.3 We defer the appellate cost issue to our 

commissioner in the event that the State claims costs. RAP 14.2. Therefore, we briefly 

tum to the LFO issue. 

The trial court assessed $460.50 worth of discretionary LFOs. Mr. Raab agreed 

with the trial judge that he was able to pay $50 per month. In light of that agreement, it is 

difficult to understand how the trial judge may have erred or how Mr. Raab can now say 

that the court erred in accepting his agreement. On these facts, we see no error. 

3 Mr. Raab also filed a statement of additional grounds that raises two contentions. 

The first involves matters outside the record of this case and cannot further be 

considered. The second involves Mr. Raab's interruption of the testimony of Mr. Epps 

and somehow equates his outburst with suppression of testimony. Since the outburst 

from counsel table is not evidence, we fail to understand how any evidence was 

suppressed. The claim is without merit. 

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No. 34705-2-111 

State v. Raab

Nonetheless, Mr. Raab still has the ability to file a motion for remission of the 

discretionary costs. RCW 10.01.160( 4 ). He can explain any change of circumstances 

that justifies remitting those costs or otherwise indicate how he erred in agreeing that he 

could pay the $50 per month. 

The convictions are 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: 

Lawrence-Berrey, A. .J �\ 

j 

Pennell, J. ) "" 

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