HAY - q ZGIJ 

COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON 

STATE OF WASHINGTON, ) No. 30340-3-III 

) 

Respondent, ) 

) 

v. ) 

) ORDER CORRECTING 

JOSE LUIS NIEVES, ) OPINION 

) 

Appellant. ) 

IT IS ORDERED the court's opinion ofMay 7,2013, is corrected as follows: 

On page 3, lines 8 and 9, Sorefio shall be deleted and Surefio put in its place. 

DATED: May 9, 2013 

FOR THE COURT: 

PANEL: Judges Korsmo, Brown, Siddoway 

KEVIN if. KORSMO 

Chief Judge 
FILED 

MAY 07,2013 

In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 30340-3-111 

) 

Respondent, ) 

) 

v. ) 

) UNPUBLISHED OPINION 

JOSE LUIS NIEVES, ) 

) 

Appellant. ) 

KORSMO, C.J. - A Grant County jury convicted Mr. Jose Luis Nieves of assault 

in the first degree, intimidating a public servant, drive-by shooting, unlawful possession 

ofa firearm, and three counts ofintimidating a witness, most ofwhich included various 

enhancements and aggravating factors. We reverse the three convictions for intimidating 

a witness due to instructional error. We affirm all other aspects ofhis trial and remand 

for further proceedings. 

FACTS 

On October 31, 2010, Mr. Nieves, Mr. Eduardo Najera Cruz, Mr. Salvador Garcia, 

and Mr. Luis Enrique Flores Martinez attended a Halloween party in Othello. Around 
No.30340-3-III 

State v. Nieves 

11 :00 p.m., the four men left together in Mr. Martinez's car to meet up with some young 

women in Soap Lake. When they got to Soap Lake, they picked up Ms. Vanessa Barajas, 

Ms. Sashea Hollis, Ms. Silvia Espino, and Ms. Rosamaria Montano. The enlarged group 

headed to a different party, but never arrived at it. 

Shortly after midnight, Soap Lake Police Officer Dustin Slabach was in uniform 

and on patrol in a fully marked police car. Around this time, the officer's attention was 

drawn to Mr. Martinez's car because it had a taillight out. Officer Slabach followed for a 

while and eventually saw an illegal U-turn. The officer activated his lights and attempted 

to make a traffic stop. 

Instead of stopping, Mr. Martinez kept going and started to speed up at Mr. 

Nieves's urging. As Officer Slabach looked down to report the speed to dispatch he 

heard what he believed to be eight to ten gunshots in the span of about two seconds. At 

the time the shots were fired, he was about three car lengths behind Mr. Martinez's car. 

Upon hearing the shots, Officer Slabach slowed down to put a safer distance between him 

and the car. He quickly stopped pursuit and soon pulled over due to an unrelated vehicle 

malfunction. 

According to various witness accounts, Mr. Nieves either pulled the gun from his 

sweater or was handed the gun at his request and started shooting out the window. Ms. 

Montano was the only person who actually claimed to see the direction in which Mr. 

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No.30340-3-III 

State v. Nieves 

Nieves shot the gun. According to her written statement to police, Mr. Nieves "pointed 

back towards the cop and fired about five more times." Ex. 84 at 2-3. 

Mr. Martinez decided to abandon the car. Everyone immediately got out and 

started running. At one point during their tlight, Mr. Nieves stopped the group, loaded 

his gun, and said, "whoever snitches me out, when I come out, I'm going to kill you 

guys." Report of Proceedings (RP) at 246. Mr. Nieves then singled out Ms. Barajas and 

said, "especially you." Id. He singled her out because he knew that her cousin was a 

"buster," which is a Sorefio slur for members of rival Nortefio gangs. Mr. Nieves was a 

member of the South Side Locos, a local Sorefio gang. 

The next day, Mr. Martinez went to the police and reported the car stolen at the 

party. Mr. Martinez returned to the police on the following day, confessed to the 

incident, and informed them of Mr. Nieves's involvement. He said that he had falsely 

reported the first time out of fear of being a suspect in the drive-by shooting. 

After the identification of Mr. Nieves as the shooter, police went to his mother's 

house and arrested him on an unrelated probation violation. Later that day, police 

obtained and executed a search warrant for the house. During the search, police found a 

9mm pistol wrapped in a blue bandana. In a nearby closet, police found a box ofbullets 

that matched the brand of the two 9mm bullet casings that police found along the 

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No. 30340-3-III 

State v. Nieves 

highway near the shooting. Ballistics testing later identified the gun as the weapon that 

fired the casings found along the highway. 

The State filed seven felony charges against Mr. Nieves. He defended on the basis 

that he was not present during the shooting and flight, but was at a party. Nonetheless, 

the jury found Mr. Nieves guilty on all charges and found that five of them were 

committed with a deadly weapon. The court subsequently imposed an exceptional 

sentence of 500 months on the assault count. He, timely appealed to this court. 

ANALYSIS 

Mr. Nieves presents a number of issues on appeal. I:'irst, he argues that the State 

did not present sufficient evidence of each of the alternative means of intimidating a 

witness. Second, he argues that the definition of "threat" used at his trial misstates the 

law. Third, he argues the trial court erred by admitting evidence pertaining to his gang 

and his gang membership and, fourth, that two ofthe jury instructions relating to his gang 

membership deprived him of a fair trial. Fifth, he argues that the trial court erred by 

admitting two Smithl affidavits. Sixth, he argues RCW 9A.36.045(1) (criminalizing 

drive-by shootings) as originally enacted violated Washington State Constitution article 

I State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982). 

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No. 30340~3~III 

State v. Nieves 

II, section 19? Seventh, he argues that the State failed to present sufficient evidence of 

the crime of assault in the first degree. Eighth, he argues that the trial judge commented 

on the evidence in violation of Washington State Constitution article IV, section 16.3 

Ninth, he argues that the warrant to search his mother's house lacked probable cause. 

Tenth, he argues the sentencing court exceeded its authority by ordering him to pay a 

second DNA (deoxyribonucleic acid) fee. 4 We take these issues up in turn.s 

Witness Intimidation 

The jury convicted Mr. Nieves of intimidation ofthree witnesses: Mr. Luis 

Enrique Flores Martinez, Ms. Vanessa Barajas, and Ms. Silvia Espino. The instructions 

read: 

2 This argument is meritless. A constitutionally infirm statute may be cured by a 

later amendment or reenactment, which we presume to be constitutional absent argument 

to the contrary. Morin v. Harrell, 161 Wn.2d 226, 228, 23l~32, 164 P.3d 495 (2007). 

The statute has been amended on mUltiple occasions since its enactment, including by 

Initiative 159. LAWS OF 1995, ch. 129, § 8. For similar reasons, we also decline to 

review his second contention that the original title ofthe bill that criminalized drive-by 

shooting created an implied element. 

3 We decline to review this argument because it was not properly briefed. See 

Alexander v. Gonser,42 Wn. App. 234, 236 n.2, 711 P.2d 347 (1985). 

4 This contention also is meritless since RCW 43.43.754(2) is written in 

permissive language neither requiring, nor prohibiting, courts from ordering a second 

DNA fee and sample from repeat offenders. 

S He also presents a cumulative error argument that we do not address in light of 

the fact that we find only a single error. 

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No.30340-3-II1 

State v. Nieves 

To convict the defendant ofthe crime of intimidating a witness as 

charged in Count 5, each of the following elements ofthe crime must be 

proved beyond a reasonable doubt: 

(1) That on or about November 1, 20 I 0, the defendant by use of a 

threat against a current or prospective witness, to-wit: [victim], attempted to 

(a) influence the testimony of that other person or 

(b) induce that person to elude legal process summoning him or her 

to testify or 

(c) induce that person to absent himself or herself from an official 

proceeding or 

(d) induce that person not to report the information relevant to a 

criminal investigation or 

(e) induce that person not to have the crime prosecuted or 

(f) induce that person not to give truthful or complete information 

relevant to a criminal investigation; and 

(2) That this act occurred in the State of Washington. 

Ifyou find from the evidence that element (2) and any of alternative 

elements (l)(a), (l)(b), (l)(c), (l)(d), (l)(e) or (1)(f) have been proved 

beyond a reasonable doubt, then it will be your duty to return a verdict of 

guilty. To return a verdict of guilty, the jury need not be unanimous as to 

which alternatives (1)(a), (1)(b), (1)(c), (l)(d), (l)(e) or (1)(f) has been 

proved beyond a reasonable doubt, as long as each juror finds that at least 

one alternative has been proved beyond a reasonable doubt. 

On the other hand, if, after weighing all the evidence, you have a 

reasonable doubt as to anyone of elements (1) or (2), then it will be your 

duty to return a verdict of not guilty. 

Clerk's Papers (CP) at 670. 

Unless it elects between the alternative means, the State must present sufficient 

evidence to convict on each and every alternative means presented to the jury. State v. 

Boiko, 131 Wn. App. 595, 598-99, 128 PJd 143 (2006). Mr. Nieves argues that the State 

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No. 30340-3-111 

State v. Nieves 

failed to present sufficient evidence to convict him of each of the alternative means .. We 

6 

agree. 

In Bolko, the defendant also was convicted of intimidating a "current or 

prospective witness." ld. at 598. Mr. Boiko's friend had raped a minor and Mr. Boiko 

later told the victim that "he was going to shaot her horse if she did not lie about" the 

friend. ld. at 597. Here, Mr. Nieves pulled out his gun, loaded it, and told the group, 

"whoever snitches me out, when 1come out, I'm going to kill you guys." RP at 246. Just 

as in this case, the trial court in Boiko instructed on each ofthe alternative means for 

committing this crime. Bo iko , 131 Wn. App. at 598. As here, there was no election of 

means in Bolko. ld. at 599. 

This court reversed because "there is no evidence that Mr. Boiko attempted to 

induce [the victim] to elude legal process summoning her to testifY or that he attempted 

to induce her to absent herself from such proceeding." ld. at 600. Those same alternative 

means were instructed in this case under (1 )(b) and (1)( c) above. 

Following Bolko, Mr. Nieves argues that the State failed to present sufficient 

evidence to convict him of these alternative means. A threat to kill people who snitch 

immediately after the crime has been committed is not an attempt to induce them to elude 

6 The State tries to distinguish Boiko based on the instruction given in that case. 

However, the two instructions have no meaningful difference. 

7 

No.30340-3-III 

State v. Nieves 

a summons under alternative (1)(b) because no summons has been issued. The threat 

also failed to satisfy alternative (1)( c) because it was not an attempt to induce someone to 

absent themselves from an official proceeding that does not yet, and might never, exist. 

Mr. Nieves also challenges the sufficiency with regards to alternatives (1)( e) and 

(I)(f). We agree that the evidence is insufficient under alternative (1)(e) because a threat 

to nonvictim witnesses who have no say in or control over charging decisions is not an 

attempt to have the crime not prosecuted. Mr. Nieves's threat to kill any snitchers does, 

however, satisfy alternative (1 )(f) because someone who gives truthful or complete 

information to authorities would be "snitching." While the evidence supports some ofthe 

alternative instructional theories, it does not support all of them. The three counts are 

reversed and remanded for a new trial with proper instructions. Bo iko , 131 Wn. App. at 

601. 

Sufficiency ofWPIC 2.24's Definition of "Threat" 

Mr. Nieves next argues that WPIC7 2.24, used in this case to define "threat" for 

the intimating a public servant count, exceeds the statutory definition by encompassing 

nonverbal threats where RCW 9A.76.l80(3) only reaches verbally communicated threats. 

7 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: 

CRIMINAL (3d ed. 2008) (WPIC). 

8 

No. 30340-3-III 

State v. Nieves 

This is a question of statutory interpretation, which we review de novo. Berger v. 

Sonne land, 144 Wn.2d 91, 104-05,26 P.3d 257 (2001). 

"A person is guilty of intimidating a public servant if, by use of a threat, he or she 

attempts to influence a public servant's vote, opinion, decision, or other official action as 

a public servant." RCW 9A.76.l80(1).8 "Threat" means: "(a) To communicate, directly 

or indirectly, the intent immediately to use force against any person who is present at the 

time; or (b) Threats as defined in RCW 9A.04.11O." RCW 9A.76.180(3). In turn, RCW 

9A.04.110(28) also defines "threat" in terms of "to communicate." Thus, under both , 

subsections (a) and (b) of section 180, threat means "to communicate." The legislature 

has not defined the word "communicate." Where the legislature does not specifically 

define a statutory term, the court will read the word according to its plain and ordinary 

meaning. First Covenant Church v. City o/Seattle, 120 Wn.2d 203,220,840 P.2d 174 

(1992). 

Several Washington cases have held under these statutes that communication 

encompasses both verbal and nonverbal communication. In Burke, this court held that a 

defendant's fighting stance "like a boxer" met the definition of a "threat" under this 

statute. State v. Burke, 132 Wn. App. 415, 421, 132 P.3d 1095 (2006). In Toscano, this 

8 We quote the current version ofRCW 9A.76.l80(l), which was amended by 

Laws of20l1, ch. 336, § 407, to make the language gender neutral. 

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No.30340-3-III 

State v. Nieves 

court agreed with Burke and held that the crime of intimidating a public servant 


encompasses nonverbal threats. State v. Toscano, 166 Wn. App. 546,554,271 P.3d 912, 


review denied, 174 Wn.2d 1013 (2012). There, however, we reversed the conviction 


because the acts of failing to yield and blocking an intersection for the purpose of 


interrupting a police chase were "not clear nonverbal communication" like in Burke. 


ld. 


In analogous circumstances, courts have held that the display of a deadly weapon 

alone can be sufficient to communicate a threat. This court once determined that the 

nonverbal act ofsetting a gun down next to a rape victim was sufficiently threatening to 

constitute "threatened ... use of a deadly weapon" for first degree rape. State v. Lubers, 

81 Wn. App. 614,620-21,915 P.2d 1157 (1996). The definition of "threatens" as used in 

the rape statute is the same definition used in the crime of intimidating a public servant. 

State v. Bright, 129 Wn.2d 257,270,916 P.2d 922 (1996) (defining "threatens" for 

purposes ofrape by reference to RCW 9A.04.110). In Bright the court concluded that the 

act ofwearing a holstered weapon while committing a rape constituted a "threat" under 

RCW 9A.04.11O. Bright, 129 Wn.2d at 270. 

We believe that if displaying a deadly weapon is sufficient to constitute a threat, 

the act of firing that weapon at another person undeniably constitutes the communication 

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No.30340-3-II1 

State v. Nieves 

ofa threat for purposes ofRCW 9A.76.l80(3)(b) and RCW 9A.04.110. Thus, WPIC 

2.24 does not misstate the law and the trial court did not err in using it here. 

Admissibility o/Gang-Related Evidence 

The court admitted substantial evidence ofMr. Nieves's membership in the South 

Side Locos, crimes committed by the Locos, and the identity of other Locos members. 

Mr. Nieves challenges the admission ofthis evidence as irrelevant under ER 401 and 402, 

unfairly prejudicial under ER 403 because of its irrelevance, and inadmissible character 

evidence under ER 404. 

Evidentiary rulings are reviewed for abuse of discretion. State v. Guloy, 104 

Wn.2d 412,429-30,705 P.2d 1182 (1985). "In close cases, the balance must be tipped in 

favor ofthe defendant." Statev. Wilson, 144 Wn.App.166, 177, 181 P.3d 887 (2008). 

An erroneous evidentiary ruling is not prejudicial "unless, within reasonable 

probabilities, had the error not occurred, the outcome ofthe trial would have been 

materially affected." State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). 

Because ofFirst Amendment concerns, "evidence of criminal street gang 

affiliation is not admissible in a criminal trial when it merely reflects a person's beliefs or 

associations." State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009). "Accordingly, 

to admit gang affiliation evidence there must be a nexus between the crime and gang 

membership." Id. Here, the trial court admitted the evidence to prove: (1) the special 

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No. 30340-3-III 

State v. Nieves 

allegation of criminal street gang membership under RCW 9.94A.829; (2) who 

committed the crime of witness intimidation against Ms. Barajas; and (3) both Mr. 

Nieves's unlawful possession of a firearm and his use ofthe firearm against Officer 

Slabach. The evidence was relevant for each of these purposes. 

The special allegation required proof that Mr. Nieves belonged to a "criminal 

street gang." RCW 9.94A.829. The South Side Locos is not a "criminal street gang" 

unless it is a gang. The Locos is not a gang unless it is a "group of three or more 

persons." RCW 9.94A.030(12). Thus, the State needed to present evidence that the 

Locos had other members. The Locos also is not a gang unless it has "a common name 

or common identifying sign or symbol." Id. Thus, the State needed to present evidence 

regarding the Locos' identifying symbols and characteristics. 

A gang is not a "criminal street gang" unless it has "as one of its primary activities 

the commission of criminal acts," that its members "engage in or have engaged in a 

pattern of criminal street gang activity," and that the Locos operate on an ongoing basis. 

Id. Thus, the State needed to present evidence of other crimes committed by the Locos to 

show that it was an ongoing criminal organization and that these crimes were committed 

to further the gang's interests or to further the status of one of its members. Thus, the 

gang evidence presented by the State was relevant to proving the special allegation. 

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No. 30340-3-III 

State v. Nieves 

While that reason alone is sufficient to support the court's ruling, the evidence also 

was properly admitted for the other identified purposes. The use of Surefio slang to 

threaten Ms. Barajas helped identify Mr. Nieves as the one who intimidated her.9 The 

use of a gang slur suggested that a gang member made the threat. Thus, the evidence 

helped the State prove its case on that count. 

Finally, the gang evidence also was relevant to prove possession ofthe gun. The 

fact that it was wrapped in a blue bandana is what tied Mr. Nieves to the gun, but the 

evidence was meaningless without the knowledge that the blue bandana also was the 

uniform and a symbol ofMr. Nieves's gang. Thus, the trial court did not err by finding 

the gang membership evidence relevant to proving who possessed the gun used in the 

drive-by shooting and to proving Mr. Nieves's unlawful possession of a firearm. to 

Mr. Nieves also argues that the gang evidence was inadmissible character 

evidence under ER 404. However, it was admissible for several reasons, including proof 

ofidentity. ER 404(b). In addition to proving the "criminal street gang member or 

associate" element, the evidence also identified Ms. Barajas's intimidator and the identity 

ofthe owner ofthe gun found at Mr. Nieves's home. 

9He denied being present during the shooting and subsequent flight. 

10 Because Mr. Nieves's ER403 argument hinged on the evidence being 

irrelevant, that contention also necessarily fails. 

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No.30340-3-II1 

State v. Nieves 

Mr. Nieves also argues that the trial court erred in failing to conduct a complete 

ER 404(b) analysis on the record. "Before admitting evidence under ER 404(b), 'the trial 

court must ( 1) find by a preponderance ofthe 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 probative value of the evidence against its prejudicial effect.'" State v. McCreven, 

170 Wn. App. 444, 458,284 PJd 793 (2012) (internal quotation marks omitted) (quoting 

State v. Asaeli, 150 Wn. App. 543, 576, 208 P.3d 1136 (2009)), review denied, 176 

Wn.2d 1015 (2013). Failure to conduct such an analysis on the record is an evidentiary 

error. Id. at 455. However, the error is not reversible unless it is shown to be harmful. 

Id. at 460. 

The error in McCreven was harmful because the gang evidence at issue there was 

irrelevant to prove identity because it was evidence about a gang other than the one to 

which the defendants belonged. Id. at 455-56. Furthermore, McCreven did not receive a 

proper limiting instruction. Id. at 456-57. Neither deficiency is present in this case. 

Even if a complete balancing was not conducted on the record, the trial court's reasoning 

is sufficiently in the record to explain the ruling. The court did not err by admitting the 

gang-related evidence. 

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No. 30340-3-III 

State v. Nieves 

Gang-Related Jury Instructions 

Mr. Nieves next challenges the trial court's jury instructions that defined several 

gang-related terms and limited the use ofthe gang-related evidence. "We review the 

court's choice ofjury instructions for abuse of discretion." State v. Butler, 165 Wn. App. 

820,835,269 P.3d 315 (2012). But, we "review claims oflegal error, including whether 

the instruction amounts to a comment on the evidence, de novo." Id. 

Instruction 45 defined "criminal street gang," "criminal street gang member or 

associate," "pattern of criminal street gang activity," and "criminal street gang-related 

offense." For reasons similar to why the gang-related evidence was relevant to proving 

the special allegation, these statutory definitions were also necessary for the jury to 

determine whether the special allegation of criminal street gang membership applied. 

RCW 9.94A.829 establishes a special allegation that the offense ofunlawful 

possession of a firearm was committed by "[a] criminal street gang member or associate." 

To apply this special allegation, the jury must find "by a preponderance ofthe evidence 

that the accused is a criminal street gang member or associate as defined in RCW 

9.94A.030." RCW 9.94A.829. "Criminal street gang member or associate" is a statutory 

term of art; thus, the jury needed to know how the legislature defined it. 

That term is defined by reference to another statutory term of art: the person's 

participation in a "criminal street gang." RCW 9.94A.030(12). "Criminal street gang" is 

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No.30340-3-III 

State v. Nieves 

defined by reference to yet another statutory term of art: the gang members must engage 

in a "pattern of criminal street gang activity." ld. Finally, "pattern of criminal street 

gang activity" is defined by still another statutory term of art: the pattern of criminal 

activity must include "criminal street gang-related offenses." RCW 9.94A.030(36). 

Because each ofthe four terms defined in Instruction 45 was necessary for understanding 

and applying the special allegation, the trial court did not err by giving this instruction. 

Mr. Nieves also takes exception to Instruction 46, which limited the use of the 

gang evidence to the three issues discussed above. He argues that the instruction was 

overly broad because the gang-related evidence was not admissible for each of the 

instructed purposes. Having already found that the trial court properly admitted the gangrelated evidence, this argument necessarily fails. The court likewise did not err in giving 

Instruction 46. 

Admissibility ofthe Smith Affidavits 

At trial, the State called Ms. Espino and Ms. Montano as witnesses, but they 

contradicted their previous statements to police when they took the stand. The State was 

then permitted to impeach their testimony through admission oftheir Smith affidavits. In 

Smith, the Supreme Court held that a "sworn statement given during a police-station 

interrogation" is admissible under ER 801(d)(I) as long as "'[m]inimal guarantees of 

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No. 30340-3-III 

State v. Nieves 

truthfulness'" were met. Smith, 97 Wn.2d at 861-62 (quoting D. LOUISELL & C. 

MUELLER, FEDERAL EVIDENCE § 419, at 169-71 (1980)). 

In Smith, those minimal guarantees oftruthfulness were that "the statement was 

attested to before a notary, under oath and subject to penalty for perjury." Id. at 862. 

"Additionally, the witness wrote the statement in her own words." Id. But, Smith did not 

hold that each of those is necessary in every case and did not define "minimal guarantees 

oftruthfulness" because "each case depends on its facts with reliability the key." Id. at 

863. Along with "minimal guarantees oftruthfulness," the court must also consider 

"whether the witness voluntarily made the statement," "whether the statement was taken 

as standard procedure in one ofthe four legally permissible methods for determining the 

existence ofprobable cause," and "whether the witness was subject to cross examination 

when giving the subsequent inconsistent statement." State v. Nelson, 74 Wn. App. 380, 

387,874 P.2d 170 (1994) (citing Smith, 97 Wn.2d at 861-63). 

"The proponent ofthe statement's admissibility bears the burden ofproving each 

of these elements." State v. Nieto, 119 Wn. App. 157, 161, 79 P.3d 473 (2003). The 

decision to admit evidence is reviewed for an abuse of discretion. Id. "Ifthe trial court 

based its evidentiary ruling on an incomplete legal analysis or a misapprehension oflegal 

issues, the ruling may be an abuse of discretion." Id. Mr. Nieves argues that the trial 

court abused its discretion by admitting the.affidavits. 

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No. 30340-3-III 

State v. Nieves 

Minimal guarantees oftruthfulness. An unsworn statement may have the same 

force and effect as a sworn statement if it: 

(1) Recites that it is certified or declared by the person to be true 

under penalty ofperjury; 

(2) Is subscribed by the person; 

(3) States the date and place of its execution; and 

(4) States that it is so certified or declared under the laws ofthe state 

of Washington. 

RCW 9A.72.085. 

In Nelson, this court held that a Smith statement made in compliance with this 

statute satisfies the minimal guarantees of truthfulness. 74 Wn. App. at 390. In the 

present case, the affidavits fully complied with RCW 9A.72.085. 

Mr. Nieves invites this court to hold that these statements must be notarized in 

order to satisfy the minimal guarantees oftruthfulness because affidavits in Smith and 

Nelson were both notarized. In light of the fact that RCW 9A.72.085 exists to guarantee 

truthfulness in the absence of a statement being notarized, we decline to hold that Smith 

affidavits always require a notary's services. Accordingly, the Smith affidavits in this 

case satisfy the minimal guarantees of truthfulness. 

Voluntariness ofthe statements. Mr. Nieves next challenges the voluntariness of 

the statements. Nelson is the only case to explicitly discuss voluntariness. There, a 

woman arrested for prostitution was allegedly promised by police that charges would not 

be pressed and she would be released if she named her pimp. Nelson, 74 Wn. App. at 

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No. 30340-3-111 


State v. Nieves 


388. The appellant argued that the statement was coerced by these promises, but the 

Court of Appeals disagreed because when police broke their alleged promise to the 

witness she did not appear upset about it. Id. This implies that (1) the alleged promise 

was never made or (2) she did not rely on the promise when making her statement. 

In the present case, the question ofvoluntariness revolves around the effect of two 

days of questioning of the witnesses. The two young women were initially questioned 

separately on November 3,2010. Ms. Espino was 15 years old when police questioned 

her and 16 at the time of trial. She was questioned alone by two male detectives and did 

not want to talk to them. Displeased with Ms. Espino's silence, the detectives decided to 

lie to her and threaten her in order to coax her to talk. One detective started suggesting 

that she shot at the officer. Ms. Espino continued to deny her guilt. The detective 

proceeded to tell her that Mr. Nieves accused her of being the shooter and that she faced 

life in prison for the attempted murder of a police officer if she did not talk. The 

detective told her that she might as well be dead if she did not cooperate. He told her that 

the officer was shot. He told her that "the big boy [is saying that] [t]he bitches did it." 

RP at 621. Mr. Nieves in fact never once spoke to police and never once made any 

accusati ons. 

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No. 30340-3-111 

State v. Nieves 

While going through the Smith factors, the court permitted Mr. Nieves's counsel to 

read an excerpt of this detective's statements from the interview transcript to refresh Ms .. 

Espino's memory: 

Well, you might-you might have done it, that's for you to decide. That's 

for you to make the determination. You were in the car, so it's one of 

eight. There was eight people in the car. You were one. Do you 

understand what I'm saying? Do you understand that the boy that probably 

did it has a lot to lose-meaning he's got a lot to lose? Do you know what 

he's going to do, he's going to try to pin it off on somebody else. Now, you 

can sit here as smug as you want to sit­

-you can sit here as smug as you want to sit and sit there and act 

like you don't care, but understand that you've got the rest of your life to 

think about it and if your DNA and fingerprints are in the car, there ain't 

nothing from him saying, yup, she did it, Silvia [Espino] did it, 1 didn't do 

it. Do you understand that? Do you understand that what the rest of your 

life is might as well be being dead? 

RP at 610-11. The detectives then transitioned into discussing Ms. Espino's two 

brothers-in-law who had been murdered recently. At that point, Ms. Espino started 

crying and asking for her mom, which caused the detectives to end the interview. 

The following day, Ms. Espino agreed to give a statement. During this second 

interview, a different detective was present as well as a female juvenile corrections 

officer. Ms. Espino was also told during this second interview that she could leave at any 

time. She explained her changed attitude as caused by a conversation she had with her 

mother after the first interview who also told Ms. Espino that she was being accused of 

20 

No. 30340-3-III 

State v. Nieves 

the shooting. Her mother's misinformation came from the same detective who said Ms. 

Espino might as well be dead. 

On November 3,2010, the same two detectives also questioned Ms. Montano. 

She was 13 years old. Like her sister, Ms. Montano did not want to talk to them. To get 

her to talk, the detectives made her fear for her sister. At one point, a detective told her, 

"Maybe you don't care about your sister or maybe it's not you that [Mr. Nieves] dimes 

out, maybe it's your sister. You don't care about her either?" RP at 742. Ms. Montano 

responded that she did care about her sister. To which, the detective responded, "why are 

you going to let [Mr. Nieves] do that to your sister? ... Dime your sister out. Said Silvia 

[Espino] did it." RP at 747. 

The following day, Ms. Montano agreed to make a statement to the same detective 

and the juvenile corrections officer who were present for Ms. Espino's second interview. 

When the detectives asked Ms. Espino why she had changed her mind about talking, she 

responded, "it was because my mom told me that [the detective] said that I could get in 

trouble for it and get 25 years for something that I didn't do." RP at 737. 

Compared to Nelson, the voluntariness of Ms. Espino's and Ms. Montano's 

statements is questionable due to the coercive tactics applied here. Both young women 

stated that these tactics did in fact influence their decision to make the statements. 

21 

No. 30340-3-III 

State v. Nieves 

However, the affidavits still contained minimal guarantees of truthfulness, were 

taken as standard procedure for determining the existence ofprobable cause, and the 

witnesses were subject to extensive cross-examination at trial. The trial court permitted 

defense counsel to read extensively from the interview transcripts, giving the jury the 

flavor ofthe interrogation that led to the affidavits. Thus, even if the statements were not 

voluntary, that factor does not so obviously outweigh the other three factors as to render 

the admission ofthe affidavits an abuse of discretion. 

Sufficient Evidence ofAssault in the Fir sf Degree 

In addressing a sufficiency ofthe evidence challenge, we view the evidence in a 

light most favorable to the State and ask whether any rational trier of fact could have 

found the essential elements ofthe charged crime beyond a reasonable doubt. State v. 

Rempel, 114 Wn.2d 77, 82, 785 P .2d 1134 (1990). Here, Mr. Nieves argues that there 

was insufficient evidence of his specific intent to assault Officer Slabach. 

His argument is based on the fact that there was no live testimony regarding where 

Mr. Nieves aimed the gun. Officer Slabach was looking down at his speedometer. Ms. 

Barajas ducked. Mr. Martinez only saw Mr. Nieves point the gun out the window. Ms. 

Espino and Ms. Montano both denied Mr. Nieves's very presence. However, Ms. 

Montano's affidavit says that Mr. Nieves "pointed back towards the cop and fired about 

five more times." Viewing the evidence in a light most favorable to the State, Ms. 

22 
No. 30340-3-III 

State v. Nieves 

Montano's affidavit is sufficient for a jury to find beyond a reasonable doubt that Mr. 

Nieves had specific intent to assault Officer Slabach. 

Probable Cause to Search Mr. Nieves's Mother's House 

"A search warrant may issue only upon a determination of probable cause." State 

v. Thein, 138 Wn.2d 133, 140,977 P.2d 582 (1999). Probable cause exists when the 

evidence establishes "a reasonable inference" that "evidence of a crime can be found at 

the place to be searched." Id. The probable cause showing also "'requires a nexus 

between criminal activity and the item to be seized, and also a nexus between the item to 

be seized and the place to be searched.'" Id. (quoting State v. Goble, 88 Wn. App. 503, 

509,945 P.2d 263 (1997)). "Although we defer to the magistrate's determination, the 

trial court's assessment of probable cause is a legal conclusion we review de novo." 

State v. Neth, 165 Wn.2d 177, 182, 196 PJd 658 (2008) (citing State v. Chamberlin, 161 

Wn.2d 30, 40-41, 162 PJd 389 (2007)). 

A search warrant issued on November 2,2010, authorizing a search ofMr. 

Nieves's mother's house, where Mr. Nieves lived, for "firearms [and] ammunition 

apparently accessible by [Mr.] Nieves prior to his arrest." CP at 68. Mr. Nieves argues 

that the detective did not have any information establishing a nexus between the house 

and the gun. Because the gun was last seen two days earlier in Ephrata, Washington 

23 

No. 30340-3-111 

State v. Nieves 

(over 30 miles from Mr. Nieves's Royal City home), he argues that the gun was no more 

likely to be found in his home than in Ephrata. 

Thein held that the State cannot establish a nexus between the items to be seized 

and the place to be searched simply because the suspect resides at the place to be 

searched. Thein, 138 Wn.2d at 148-49. However, Thein does have limits. It specifically 

exempted "personal items of continuing utility" from its holding. Id. at 149 n.4. The 

court noted that in "specific circumstances it may be reasonable to infer such items will 

likely be kept where the person lives." Id. '''Where the object of the search is a weapon 

used in the [commission of a] crime or clothing worn at the time of the crime, the 

inference that the items are at the offender's residence is especially compelling, at least in 

those cases where the perpetrator is unaware that the victim has been able to identify him 

to police.'" Id. (alteration in original) (quoting WAYNE R. LAFAVE, SEARCH AND 

SEIZURE § 3.7(d), at 381-85 (3d ed. 1996). 

We believe a firearm is a "personal item of continuing utility" that is usually kept 

at a suspect's residence. In this case, it was all the more likely to be found at the 

residence because Mr. Nieves was arrested less than two days after commission of the 

crime and before he knew that he had been identified to the police. Furthermore, the fact 

that Mr. Nieves reloaded the gun and threatened to shoot anyone who snitched suggested 

his intent to retain possession of the firearm. Because no firearm was found on Mr. 

24 
No.30340-3-III 

State v. Nieves 

Nieves at the time of his arrest, it was likely that the firearm was nearby the place of 

arrest (Le., his house). Putting these facts together, there was probable cause to believe 

that Mr. Nieves's gun would be found at his residence. 

Affirmed in part, reversed in part, and remanded. 

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. 

, Korsmo, C.l. 

WE CONCUR: 

Brown, l. 

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