### HAY

- q 

### ZGIJ



### COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON STATE OF WASHINGTON, ) No. 30340-3-III ) 

### Respondent, ) ) 

### v. ) ) 

### ORDERCORRECTING 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 

### FORTHE COURT: PANEL: Judges Korsmo, Brown, Siddoway

KEVIN

## if. KORSMO ChiefJudge

### FILED 

### MAY 07,2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, 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### UNPUBLISHED OPINION JOSE LUIS NIEVES, ) ) 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 CountyjuryconvictedMr. JoseLuis Nieves ofassault in the first degree, intimidating a public servant, drive-by shooting, unlawful possession ofa firearm, andthree 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 OnOctober 31, 2010, Mr. Nieves, Mr. EduardoNajera Cruz, Mr. Salvador Garcia, and Mr. Luis EnriqueFloresMartinez attended a Halloweenparty in Othello. Around

### No.30340-3-III State v. Nieves
11 :00 p.m., the four men lefttogether in Mr. Martinez's carto meet up with some young
women in Soap Lake. When they got to Soap Lake, they picked up Ms. VanessaBarajas, Ms. Sashea Hollis, Ms. SilviaEspino, and Ms. Rosamaria Montano. The enlarged group headed to a differentparty, 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 ofstopping, Mr. Martinez kept going and started to speed up at Mr. Nieves's urging. As Officer Slabach looked down to reportthe speed to dispatch he heard what he believed to be eight to ten gunshots in the span ofabouttwo seconds. At the time the shots were fired, he was aboutthree car lengths behindMr. Martinez's car. Upon hearing the shots, Officer Slabach slowed down to put a safer distance betweenhim 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 orwas handedthe 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. 

### 2

### 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 ofProceedings (RP) at 246. Mr. Nieves then singled outMs. 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 ofrival Nortefio gangs. Mr. Nieves was a member ofthe South Side Locos, a local Sorefio gang. The next day, Mr. Martinez wentto thepolice and reported the car stolen at the party. Mr. Martinez returned to thepolice on the following day, confessed to the incident, and informed them ofMr. Nieves's involvement. He said that he had falsely reported the first time out offear ofbeing a suspect inthe drive-by shooting. After the identification ofMr. 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 abox ofbullets that matched the brand ofthe two 9mm bullet casings thatpolice found along the

3No. 30340-3-III State v. Nieves highway nearthe shooting. Ballistics testing later identifiedthe gun as theweapon that fired the casings found alongthe highway. The State filed seven felony charges against Mr. Nieves. He defended on the basis that he was notpresent during the shooting and flight, but was at a party. Nonetheless, thejury found 

### Mr. Nieves guilty on all charges and found that five ofthem were committed with a deadly weapon. The court subsequently imposed an exceptional sentence of500 months on the assault count. He, timely appealed to this court. ANALYSIS 

### Mr. Nieves presents a number ofissues on appeal. I:'irst, he argues that the State did notpresent sufficient evidence ofeach ofthe alternative means ofintimidating a witness. Second, he argues that the definition of"threat"used at his trial misstates the law. Third, he argues the trial court erredby admitting evidencepertaining to his gang and his gang membership and, fourth, thattwo ofthejury instructions relating to his gang membership deprived him ofa 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). 4No.**30340~3~III** State v. Nieves II, section 19? Seventh, he argues that the State failed to present sufficient evidence of the crime ofassault in the first degree. Eighth, he argues that the trialjudgecommented
on the evidence in violation ofWashington State Constitution article IV, section 16. 3 Ninth, he argues that the warrant to searchhis 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 Thejuryconvicted Mr. Nieves ofintimidation ofthree witnesses: Mr. Luis Enrique FloresMartinez, Ms. Vanessa Barajas, and Ms. SilviaEspino. The instructions read:

2 This argument is meritless. A constitutionally infirm statute may be cured by a later amendment or reenactment, whichwe presume to be constitutional absent argument to the contrary. 

### Morin v. 

### Harrell, 161 Wn.2d 226, 228,**23l~32,** 164 P.3d495 (2007). The statute has been amended on mUltiple occasions since its enactment, includingby Initiative 159. LAWS OF 1995, ch. 129, § 8. For similar reasons, we also decline to review his second contentionthatthe original title ofthe bill that criminalized drive-by shooting created an implied element. 3 We decline to reviewthis argumentbecause it was notproperly briefed. 

### See Alexander v. 

### Gonser,42 Wn. App. 234, 236 n.2, 711 P.2d 347 (1985). 4This contention also is meritless since RCW43.43.754(2) is written in permissive language neither requiring, nor prohibiting, courts from ordering a second DNA fee and sample from repeat offenders. SHe also presents a cumulative error argument that we do not address in light of the fact that we find only a single error. 

### 5No.30340-3-II1 State v. Nieves
To convict the defendant ofthe crime ofintimidating a witness as charged in Count 5, each ofthe following elements ofthe crime mustbe provedbeyond a reasonable doubt: (1) That on or about November 1, 20I0, the defendant by use ofa threat against a current orprospective witness, to-wit: [victim], attempted to (a) influence the testimony ofthat otherperson or (b) induce thatperson to elude legal process summoninghim orher to testify or (c) induce thatpersonto absent himselforherselffrom an official proceeding or (d) induce thatperson not to report the information relevant to a criminal investigation or (e) induce thatperson notto have the crimeprosecuted or (f) induce thatperson notto give truthful orcomplete information relevantto a criminal investigation; and (2) Thatthis act occurred in the State ofWashington. Ifyou find from the evidence that element (2) and any ofalternative elements (l)(a), (l)(b), (l)(c), (l)(d), (l)(e) or (1)(f) have beenproved beyond a reasonable doubt, then 

### it will be your duty to return a verdict of guilty. To return a verdict ofguilty, thejuryneed notbeunanimous as to which alternatives (1)(a), (1)(b), (1)(c), (l)(d), (l)(e) or(1)(f) has been provedbeyond a reasonable doubt, as long as eachjurorfinds that at least one alternative has beenproved beyond a reasonable doubt. Onthe otherhand, if, afterweighing all the evidence, you have a reasonable doubt as to anyone ofelements (1) or (2), then itwill be your duty to return a verdict ofnot guilty. Clerk's Papers (CP) at 670. Unless it elects between the alternative means, the State mustpresent sufficient evidence to convict on each and every alternative means presented to thejury. 

### State v. 

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

6No. 30340-3-111 State v. Nieves
failed to present sufficient evidence to convict him ofeach ofthe alternative means.. We 6 agree. InBolko, the defendant also was convicted ofintimidating a "current or prospective witness." 

### ld. at 598. 

### Mr. Boiko's friend had raped a minor and 

### Mr. Boiko latertold the victim that "hewas going to shaother horse ifshe 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 1 come out, I'm going tokill you guys." RP at 246. Just
as in this case, the trial court in Boiko instructed oneach ofthe alternative means for committingthis crime. Boiko, 131 Wn. App. at 598. As here, there was no election of
means inBolko. 

### ld. at 599. This court reversed because "there is no evidence that

### Mr. Boiko attempted to induce [the victim] to elude legal process summoninghertotestifY orthat he attempted to induce her to absent herselffrom suchproceeding." 

### ld. at 600. Those same alternative
means were instructed in this case under (1)(b) and (1)(c) above. FollowingBolko, Mr. Nieves argues that the State failed topresent sufficient evidence to convict him ofthese alternative means. A threattokill people who snitch immediately afterthe crimehas been committed is not an attempt to induce them to elude

6 The State tries to distinguishBoiko based on the instruction given in that case. However, the twoinstructions have no meaningful difference. 7No.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 itwas not an attemptto induce someoneto absentthemselves 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 attemptto have the crime notprosecuted. 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 ofthem. Thethree counts are reversed and remanded for a new trial withproper instructions. 

### Boiko, 131 Wn. App. at 601. 

### Sufficiency ofWPIC2.24'sDefinition 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) onlyreaches verbally communicatedthreats.

7 11 WASHINGTON PRACTICE: WASHINGTON PATTERNJURY INSTRUCTIONS: CRIMINAL (3d ed. 2008) (WPIC). 

### 8No. 30340-3-III State v. Nieves
This is a question ofstatutory interpretation, which we review de novo. 

### Berger v. 

### Sonneland, 144 Wn.2d 91, 104-05,26 P.3d 257 (2001). "Aperson is guilty ofintimidating a public servant if, by use ofa threat, he or she attempts to influence a public servant's vote, opinion, decision, orother official action as
apublic servant." RCW 9A.76.l80(1).8 "Threat" means: "(a)To communicate, directly
or indirectly, the intent immediately to use force against anypersonwho 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, underboth , subsections (a) and (b) ofsection 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" metthe definition ofa "threat"underthis statute. 

### State v. 

### Burke, 132 Wn. App. 415, 421, 132 P.3d 1095 (2006). 

### In Toscano, this

8We quotethe currentversion ofRCW 9A.76.l80(l), which was amendedby Laws of20l1, ch. 336, §407, to make the language gender neutral. 

### 9

### No.30340-3-III State v. Nieves

court agreed withBurke and held that the crime ofintimidating 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, wereversed the conviction because the acts offailing to yield and blocking an intersection for the purpose of interrupting a police chase were "not clear nonverbal communication" like inBurke. 

### ld. In analogous circumstances, courts have held that the display ofa 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 ofa 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 ofintimidating 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). InBrightthe court concluded thatthe 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 ifdisplaying a deadly weapon is sufficient to constitute a threat, the act offiring that weapon at anotherperson undeniably constitutes the communication



### 10No.30340-3-II1 State v. Nieves
ofathreat 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 courtdid not err in using it here. 

### Admissibility o/Gang-RelatedEvidence The court admitted substantial evidence ofMr. Nieves's membership inthe South SideLocos, crimes committedby the Locos, and the identity ofotherLocos members. Mr. Nieves challenges the admission ofthis evidence as irrelevant underER401 and 402, unfairly prejudicial underER403 because ofits irrelevance, and inadmissible character evidence underER 404. Evidentiary rulings are reviewed for abuse ofdiscretion. 

### State v. 

### Guloy, 104 Wn.2d 412,429-30,705 P.2d 1182 (1985). "In close cases, the balance mustbe tipped in favor ofthe defendant." 

### Statev. Wilson, 144 Wn.App.166, 177, 181 P.3d 887 (2008). An erroneous evidentiaryruling is notprejudicial "unless, withinreasonable probabilities, hadthe error not occurred, the outcome ofthe trial wouldhave been materially affected." 

### State v. 

### Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). Because ofFirstAmendment concerns, "evidence ofcriminal 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 admitgang affiliation evidence there must be a nexus between the crime and gang membership." 

### Id. Here, the trial court admitted the evidenceto prove: 

### (1) the special 

### 11No. 30340-3-III State v. Nieves allegation ofcriminal street gang membership under RCW 9.94A.829; (2) who committed the crime ofwitness intimidation against Ms. Barajas; and (3) both Mr. Nieves's unlawful possession ofa firearm and his use ofthe firearm against Officer Slabach. The evidence was relevant for each ofthesepurposes. The special allegationrequired proofthatMr. 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 ofthree or more persons." RCW9.94A.030(12). Thus, the State needed to present evidence that the Locos had other members. TheLocos also is not a gang unless ithas "acommon 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 "asone ofits primary activities the commission ofcriminal acts," that its members "engage in or have engaged in a pattern ofcriminal street gang activity," and thatthe Locos operate on an ongoingbasis. 

### Id. Thus, the State needed to present evidence ofother crimes committed by the Locos to showthat it was an ongoing criminal organization and that these crimes were committed to further the gang's interests orto further the status ofone ofits members. Thus, the gang evidence presented by the State was relevant to proving the special allegation.

12No. 30340-3-III State v. Nieves
While that reason alone is sufficientto supportthe court's ruling, the evidence also
was properly admitted for the other identified purposes. Theuse ofSurefio slangto threaten Ms. Barajas helped identify Mr. Nieves as the one who intimidated her.9 The
use ofa gang slur suggestedthat a gang membermade the threat. Thus, the evidence helped the Stateprove its case on that count. Finally, the gang evidence also was relevanttoprovepossession ofthe gun. The fact that it was wrapped in a blue bandana is what tied Mr. Nieves tothe gun, butthe evidencewas meaningless without the knowledge that the blue bandana also was the uniform and a symbol ofMr. Nieves's gang. Thus, the trial court did noterr by finding the gang membership evidence relevantto proving who possessed the gunused inthe drive-by shooting and toproving Mr. Nieves's unlawful possession ofa firearm.to Mr. Nieves also argues thatthe gang evidence was inadmissible character evidence underER 404. However, it was admissible for several reasons, includingproof ofidentity. ER404(b). In addition to proving the "criminal street gang member or associate" element, the evidence also identifiedMs. Barajas'sintimidator and the identity ofthe owner ofthe gun found at Mr. Nieves's home.

9He denied beingpresent during the shooting and subsequent flight. 10 BecauseMr. Nieves's ER403 argument hinged on the evidence being irrelevant, that contention also necessarily fails. 13

### No.30340-3-II1 State v. Nieves


### Mr. Nieves also argues that the trial court erred in failing to conduct a complete ER404(b) analysis on the record. "Before admitting evidence underER404(b), 'the trial court must (1) find by a preponderance ofthe evidence thatthe misconduct occurred, (2) identifY the purpose for which the evidence is soughtto be introduced, (3) determine whetherthe evidence is relevant to prove an element ofthe crime charged, and (4) weigh the probative value ofthe 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 otherthan 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 ifa 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 errby admitting the gang-related evidence.

14No. 30340-3-III State v. Nieves 

### Gang-RelatedJuryInstructions Mr. Nieves next challenges the trial court'sjury instructions that defined several gang-related terms and limited the use ofthe gang-related evidence. "Wereview the court's choice of jury instructions for abuse ofdiscretion." 

### State v. 

### Butler, 165 Wn. App. 820,835,269 P.3d 315 (2012). But, we "review claims oflegal error, includingwhether the instruction amounts to a comment on the evidence, de novo." 

### Id. Instruction 45 defined "criminal street gang," "criminal street gangmember or associate," "pattern ofcriminal street gang activity," and "criminal street gang-related offense." Forreasons similarto why the gang-related evidence was relevantto proving the special allegation, these statutory definitions were also necessary for thejury to determine whether the special allegation ofcriminal street gangmembership applied. RCW 9.94A.829 establishes a special allegation thatthe offense ofunlawful possession ofa firearm was committed by "[a] criminal street gang member or associate." To apply this special allegation, thejury 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 ofart; thus, thejury needed to know how the legislature defined it. That term is defined by reference to another statutory term ofart: the person's participation in a "criminal street gang." RCW 9.94A.030(12). "Criminal street gang" is 15

### No.30340-3-III State v. Nieves
defined by reference to yet another statutory term ofart: the gang members must engage in a "pattern ofcriminal street gang activity." 

### ld. Finally, "pattern ofcriminal street gang activity" is defined by still another statutory term ofart: the pattern ofcriminal 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 errby giving this instruction. Mr. Nieves also takes exception to Instruction 46, which limited the use ofthe 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 ofthe instructedpurposes. Having already found that the trial court properly admitted the gangrelated evidence, this argumentnecessarily fails. The court likewise did not err in giving Instruction 46. Admissibilityof the SmithAffidavits 

### At trial, the State called Ms. Espino and Ms. Montano as witnesses, but they contradicted theirprevious statements to police when they took the stand. The State was then permitted to impeach their testimony through admission oftheirSmith 

### 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

16No. 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 statementwas 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 ofthose is necessary in every case and did not define "minimal guarantees oftruthfulness"because "eachcase depends on its facts withreliability the key." 

### Id. at 863. Along with "minimal guarantees oftruthfulness," the court must also consider "whetherthe witness voluntarily made the statement," "whetherthe statement was taken
as standard procedure in one ofthe four legally permissible methods for determining the existence ofprobable cause," and "whetherthe witness was subjectto 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). "Theproponent ofthe statement's admissibility bears the burden ofproving each ofthese elements." 

### State 

### v. Nieto, 119 Wn. App. 157, 161, 79 P.3d473 (2003). The decision to admit evidence is reviewed for an abuse ofdiscretion. 

### Id. "Ifthe trial court based its evidentiary ruling on an incomplete legal analysis or a misapprehension oflegal issues, the ruling maybe an abuse ofdiscretion." 

### Id. Mr. Nieves argues that the trial court abused its discretion by admitting the.affidavits. 17No. 30340-3-III State v. Nieves


### Minimalguarantees of truthfulness. An unsworn statement may have the same force and effect as a sworn statementifit: (1) Recites that it is certified or declared by thepersonto be true underpenalty ofperjury; (2) Is subscribedby the person; (3) States the date and place ofits execution; and (4) States that it is so certified ordeclared underthe laws ofthe state ofWashington. RCW 9A.72.085. In

### Nelson, this court held that a 

### Smith statement made in compliance with this statute satisfies the minimal guarantees oftruthfulness. 74 Wn. App. at 390. In the present case, the affidavits fully compliedwithRCW 9A.72.085. Mr. Nieves invites this courtto hold that these statements mustbe notarized in orderto satisfy the minimal guarantees oftruthfulness because affidavits in 

### Smith and 

### Nelson were both notarized. In light ofthe fact thatRCW 9A.72.085 exists to guarantee truthfulness in the absence ofa statementbeing 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 oftruthfulness. 

### Voluntariness of the 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 bepressed and she would be released ifshe namedherpimp. 

### Nelson, 74 Wn. App. at 18

### No. 30340-3-111 State v. Nieves
388. The appellant argued that the statement was coerced by these promises, but the Court ofAppeals 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 oftwo days ofquestioning ofthe 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 oftrial. 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 ofbeing the shooter and that she faced life in prison for the attempted murder ofapolice officer ifshe did not talk. The detective told her that she might as well be dead ifshe 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 accusations.

19

### No. 30340-3-111 State v. Nieves
While going through the Smith 

### factors, the courtpermitted Mr. Nieves's counsel to read an excerpt ofthis detective's statements from the interview transcript to refresh Ms
.. Espino's memory: Well, you might-youmight 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 eightpeople in the car. You were one. Do you understand what I'm saying? Do you understand thatthe boy thatprobably 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 offon somebody else. Now, you can sit here as smug as you want to sit­ -youcan 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 ofyour life to think about it and ifyour DNA and fingerprints are in the car, there ain't nothing from him saying, yup, she did it, Silvia [Espino] did it, 1didn't do it. Do you understand that? Do you understand that what the rest ofyour 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. Atthatpoint, 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 femalejuvenile 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. Likeher 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, "Maybeyou don'tcare about your sister or maybe it's not you that [Mr. Nieves] dimes out, maybe it'syour 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 thejuvenile corrections officerwho were present for Ms. Espino's second interview. When the detectives asked Ms. Espino why she had changed her mind abouttalking, she responded, "itwas 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 ofMs. Espino's andMs. 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.

21No. 30340-3-III State v. Nieves However, the affidavits still contained minimal guarantees oftruthfulness, were taken as standard procedure for determining the existence ofprobable cause, and the witnesses were subject to extensive cross-examination at trial. The trial courtpermitted defense counsel to read extensively from the interview transcripts, giving thejurythe flavor ofthe interrogation that led to the affidavits. Thus, even ifthe statements were not voluntary, that factor does not so obviously outweigh the other three factors as to render the admission ofthe affidavits an abuse ofdiscretion. Sufficient Evidence 

### of Assault in the FirsfDegree 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 offact 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 ofhis 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 "pointedbacktowards 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 Statev. Nieves
Montano's affidavit is sufficient for ajuryto 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 searchwarrant may issue only upon a determination ofprobable cause." State


### v. Thein, 138 Wn.2d 133, 140,977P.2d 582 (1999). Probable cause exists when the evidence establishes "areasonable inference" that "evidence ofa crime can be found at the place to be searched." Id. The probable cause showing also "'requires a nexus between criminal activity andthe item to be seized, and also a nexus betweenthe item to be seized andthe place to be searched.'" Id. (quoting State 

### v. Goble, 88 Wn. App. 503, 509,945 P.2d 263 (1997)). "Although we deferto the magistrate's determination, the trial court's assessment ofprobable 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 onNovember 2,2010, authorizing a search ofMr. Nieves's mother's house, where Mr. Nieves lived, for "firearms [and] ammunition apparently accessible by [Mr.] Nieves priorto his arrest." CP at 68. Mr. Nieves argues thatthe detective didnot have any information establishing a nexus between the house and the gun. Becausethe gun was last seen two days earlier in Ephrata, Washington

23No. 30340-3-111 Statev. Nieves (over 30 miles from Mr. Nieves's Royal City home), he argues thatthe gun was no more likely to be found in his home than in Ephrata. 

### Thein held thatthe State cannot establish a nexus betweenthe items to be seized and theplace tobe searched simply because the suspectresides at the placeto be searched. 

### Thein, 138 Wn.2d at 148-49. However, 

### Thein does have limits. 

### It specifically exempted "personal items ofcontinuing 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 bekept where the person lives." 

### Id. '''Where the object ofthe search is a weapon used in the [commission ofa] crime or clothing worn atthe time ofthe crime, the inferencethat the items are at the offender'sresidence is especially compelling, at least in those cases where the perpetratoris unawarethatthe 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). Webelieve a firearm is a "personal item ofcontinuing utility" that is usually kept at a suspect's residence. Inthis case, it was all the more likely to be found atthe residence because Mr. Nieves was arrested less than two days after commission ofthe crime and beforehe knew thathehadbeen identifiedto the police. Furthermore, the fact thatMr. Nieves reloaded the gun and threatened to shoot anyone who snitched suggested his intent to retain possession ofthe firearm. Becauseno firearm was found on Mr.
24No.30340-3-III State v. Nieves
Nieves at the time ofhis 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 determinedthis opinion will not be printed in the Washington Appellate Reports, but it will be filed for publicrecord pursuant to RCW 2.06.040.



### , Korsmo, C.l. WE CONCUR:

Brown, 

### l.



### 25