### FILED MAY 16, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) Respondent, ) ) V. ) ) JUAN CARLOS CORTEZ BARAJAS, ) ) Appellant. ) ) ) Inthe Matter ofthe Personal Restraint of ) ) JUAN CARLOS CORTEZBARAJAS ) ) Petitioner. ) No. 33419-8-111 (consolidatedwith No. 34507-6-111)

UNPUBLISHED OPINION

KORSMO,J.

- Byway ofappeal, Juan Barajas challenges his unlawful imprisonment conviction, arguing thatthe trial court erred in admitting hearsay evidence andthe evidencewas insufficientto supporttheconviction. Byway ofpersonalrestraint petition (PRP), Mr. Barajas challenges his intimidation ofa witness andbribery ofa witness convictions and argues thatthe prosecutor committedmisconduct in closing argument. We affirm the convictions and dismiss thepetition. FACTS Onthe evening ofMarch4, 2014, Maria Guzmanreturnedto herparents' Ephrata home afterpicking up herdaughter from Ramos Diaz'shome in Quincy. Juan Barajas, 

# I tNo. 33419-8-111; No. 34507-6-111 State v. Barajas; PRP of Cortez Barajas
who lived with the Guzman family, argued with Ms. Guzman. During the argument, Ms. Guzman asked Mr. Barajas to leave; he refused. When she attempted to leave, Mr. Barajas prevented her from doing so, leaving cuts and bruises on her arms. Ms. Guzman managed to get to the car and drove back to Quincy with Mr. Barajas following her. Ms. Guzman called Mr. Diaz multiple times during the drive from Ephratato Quincy. Mr. Diaz asked Ms. Guzman to call 911 but she refused. When Ms. Guzman arrived in Quincy, Mr. Diaz was waiting outside after calling 911. Ms. Guzman and her daughter stayed in the vehicle as Mr. Barajaspassed in front ofthe residence twice, both times rapidly veering toward Ms. Guzman's vehicle and Mr. Diaz standing in the road. AfterMr. Barajas drove away, Ms. Guzman and her daughterwent into the residence. Thepolice arrived. One officerwentto look for Mr. Barajas and the other, Officer Bushy, remained with Mr. Diazto gather information. Officer Bushy triedto speakwith Ms. Guzman in abackbedroom but she did not want him to come in. OfficerBushy spent 15 minutes gathering Mr. Diaz's statementbefore Ms. Guzman and her daughter

came outto speak with him. In tears, Ms. Guzman gave her statementto OfficerBushy

as her daughter clung to her. In late October 2014, Mr. Diazrecordedphone calls initiated by Mr. Barajas. In

one ofthe conversations, they discussed monies he owed Mr. Diaz. Mr. Barajas implied that his payment to Mr. Diaz should stop him from testifying against Mr. Barajas and if

2No. 33419-8-III; No. 34507-6-III State v. Barajas; PRP of CortezBarajas
he still chose to testify, Mr. Barajas would let it be known in the community thathe is a snitch.On January 20, 2015, the State charged Mr. Barajas in an amended information with burglary in the first degree, assault in the second degree, unlawful imprisonment, bribing a witness, and intimidating a witness. Attrial, Mr. Barajas objected on hearsay grounds to Mr. Diazrelaying the conversation he had with Ms. Guzman during her drive backto Quincy. The State argued that it was an excited utterance and made an offer ofproofthat included Mr. Diaz's testimony, Officer Bushy's observation ofMs. Guzman's demeanor, and evidence ofMs. Guzman's injuries. Based on the offer ofproof, the court found that all the elements ofthe excited utterance exception were established. Mr. Diaz'stestimony relaying his conversation with Ms. Guzman continued. When Officer Bushy also later testified about Ms. Guzman's statements to him, Mr. Barajas did not object. In closing, the State argued that being called a snitch is either directly or indirectly communicating a threat. "That'swhat he's trying to do when he says he's going to out him as a snitch. He said Mr. Alvaro [Diaz] is a snitch, snitches get stitches, snitches end up in ditches. It's threatening, it's threatening language." There was no objectionto the argument. Thejury found Mr. Barajas not guilty ofburglary and assault but convicted him ofthe remaining charges. Mr. Barajas appealed to this court. He later filed a PRP that this court consolidated with the appeal. 3No. 33419-8-111; No. 34507-6-111 State v. Barajas; PRPof Cortez Barajas
ANALYSIS Mr. Barajas argues that the trial court abused its discretion in admitting Officer Bushy's hearsay testimony and that the evidence was insufficientto supportthe unlawful imprisonment and the intimidating a witness convictions. He also challenges one aspect ofthe State's closing argument and argues that his conviction for bribing a witness should merge with the intimidation ofa witness conviction. We address the issues in the orderpresented and address the sufficiency issues together. OfficerBushy 's Testimony Mr. Barajas contends that Ms. Guzman was no longer underthe influence ofthe initial startling event, thus OfficerBushy'stestimony was erroneously admitted. Mr. Barajas waived this argumentby failing to object at trial. To present an evidentiary argument on appeal, the party musthave challengedthe admission ofevidence at trial onthe same grounds that it raises on appeal. State v. Guloy, 104 Wn.2d 412,422, 705 P.2d 1182 (1985). As explained in Guloy, a party may only assign error in the appellate court on the specific ground ofthe evidentiary objection made at trial. 

### Id.; State v. Boast, 87 Wn.2d 447, 553 P.2d 1322 (1976). Since the specific objection made at trial is not the basis Mr. Barajas is arguing before this court, he has lost his opportunity for review. Guloy, 104 Wn.2d at 422. At no time during OfficerBushy'stestimony did Mr. Barajas objectto hearsay. The defense had objected during Mr. Diaz's testimony and the trial court overruled that 4No. 33419-8-111; No. 34507-6-111 State v. Barajas; PRP of CortezBarajas objection. However, Mr. Barajas does not assign errorto Mr. Diaz'stestimony; he assigns errorto the unchallengedtestimony ofOfficer Bushy. That challenge was waived by his failure to present the matter to the trial court. Sufficiency of the Evidence Mr. Barajas challenges the sufficiency ofthe evidence to support thejury'sverdict

ontwo ofthe charges. We will first review the challenge to the unlawful imprisonment conviction before addressing the intimidation ofa witness conviction. Well-settled standards govern our review ofthese challenges. Evidence is sufficient to support a verdict ifthe trier-of-fact has a factual basis for finding each element ofthe offense proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will considerthe evidence in a light most favorable to the State. Id. at 221. UnlawfulImprisonment Mr. Barajas first argues that the evidence did not establishthe restraint element of the unlawful imprisonment charge. Properly viewed, the evidence did supportthe verdict. The State was required to prove thatMr. Barajas knowingly restrained Ms. Guzman. RCW 9A.40.040. "Restraint," in turn, includes restricting "aperson's movements without consent and without legal authority." RCW 9A.40.0I0(6). A 

### 5No. 33419-8-III; No. 34507-6-III State v. Barajas; PRP o/CortezBarajas
"restraint" is "without consent" when it is accomplished by intimidation. Id. It is a defense to unlawful imprisonment that the victim had areasonably available avenue of escape. See State v. Washington, 135 Wn. App. 42, 50, 143 P.3d 606 (2006) (citing State

v. Kinchen, 92 Wn. App. 442,452 n.16, 963 P.2d 928 (1998)). Mr. Barajas claims that Ms. Guzman had an available avenue ofescape and did actually escape. However, thejuryheard testimony that when Mr. Barajas was asked to leave Ms. Guzman's home he did not comply, he held her in a headlock, restrained her arms, and prevented her from leaving. For some period oftime, there was no available

avenue ofescape because Mr. Barajas was activelypreventing it. That Ms. Guzman eventually was able to escape simply underscores the fact that unlawful imprisonment is necessarily temporary. The evidence was sufficientto establishrestraint. Witness Intimidation Mr. Barajas next argues that the evidence did not establish the threat element of the intimidation ofa witness charge. However, the evidence permitted thejuryto reach the verdict that it returned. To convict Mr. Barajas ofintimidating a witness, thejury was required to find that he used a threat against Mr. Diaz, a prospective witness, to induce Mr. Diazto absent himselffrom trial. RCW 9A.72.110. Thejury instruction read: Threat means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any otherperson; or 6No. 33419-8-111; No. 34507-6-111 State v. Barajas; PRP a/CortezBarajas

to expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or to do any other act that is intended to harm substantially the person threatened or another with respect to that person's health, safety, business, financial condition, orpersonal relationships. To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression ofintention to carry out the threat rather than as something said injestor idle talk." Report ofProceedings (RP) at 167 (Instruction 30). Mr. Barajas contends that his recorded statements to Mr. Diazwere not serious expressions, but merejestor idle talk. Mr. Barajas said to Mr. Diazviaphone, "Ihave your statements here man ifyou gonna go up on the stand and do whatyou gotta do you know who you are out here man. F***ing out here you'll be known out here too, as a snitch." Ex. 1 at 3. "Areyou sure, are you sure about what you gonna do, go on the stand, like that against me? Because man you're gonnabe known 'cause I'llput it out there. Like ifyou do thatto me, you don'tthink I'm gonnaput it out there man." Ex. 1 at 6. Thejurywas free to conclude these statements were threats. Thus, the recorded conversations were sufficientto supportthejury'sverdict. Prosecutor's ClosingArgument Mr. Barajas contends that an unchallenged statement made by the prosecutor during closing arguments was a material falsehood. The standards for reviewing this alleged error are well settled. Ifthere was no objection to the behavior at trial, reliefcan 7No. 33419-8-III; No. 34507-6-III State v. Barajas; PRP of CortezBarajas
be granted only ifthe errorwas so egregious that it was beyond cure by the trialjudge. State v. Swan, 114 Wn.2d 613, 665, 790 P.2d 610 (1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). Any allegedly improper statements should be viewed within the context ofthe prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and thejury instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Moreover, a prosecutor has "wide latitude" in arguing inferences from the evidence presented. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). The prosecutor argued, "He [Mr. Barajas] said Mr. Alvaro [Diaz] is a snitch, snitches get stitches, snitches end up in ditches." RP at 185. Mr. Barajas is correct; the prosecutor did not quote his exact words butused a short hand expression. However, any confusion on the part ofthejury would have been cured byjury instruction 1that expressly stated, "lawyers' statements are not evidence. The evidence is the testimony and the exhibits." RP at 151. Because it is presumed that thejury follows instructions, it necessarily follows that the State's closing argument was not evidence. Mr. Barajas has not established that the challenged statement was an egregious error. Thus, his failure to object at trial waived any challenge to the statement. MergerDoctrine/DoubleJeopardy Mr. Barajas argues that since the intimidation and bribing ofa witness constitute the same criminal conduct, these crimes merge and his bribing a witness conviction must 8No. 33419-8-III; No. 34507-6-III State v. Barajas; PRP of Cortez Barajas
be vacated. The problem with this argument is that bribing a witness is not a lesser charge ofintimidating a witness. The merger doctrine was nottriggered. The merger doctrine evaluates whetherthe legislature intended multiple crimes to merge into a single crime for punishment purposes. State v. Vladovic, 99 Wn.2d 413, 419 n.2, 662 P.2d 853 (1983) (citingBlockburger v. UnitedStates, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). The merger doctrine applies only where to prove a more serious crime, the State mustprove an act that a statute defines as a separate crime. Vladovic, 99 Wn.2d at 420-421. Here, the crime ofbribing a witness does not have to be established to prove intimidating a witness. Although both charges share a common element ofinducing a witness to absent himselffrom a formal proceeding, neither includes additional elements ofthe other. They are separate crimes. Similarly, being chargedwith these crimes separately does notviolate the prohibition against doublejeopardy. A "defendant's doublejeopardyrights are violated ifhe or she is convicted ofoffenses that are identical both in fact and in law." State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). "Ifthere is an element in each offense which is not included in the other, and proofofone offense would not necessarily also prove the other, the offenses are not constitutionally the same and the doublejeopardy clause does not prevent convictions for both offenses." Id. (quoting Vladovic, 99 Wn.2d at 423). As mentioned above, both statutes share a common element ofinducing a witness to absent himselffrom a formal proceeding. Both statutes also include unique 9No. 33419-8-111; No. 34507-6-111 State v. Barajas; PRP of CortezBarajas

elements. The unique element ofbribing a witness is conferring a benefit. RCW 9A.72.090. The unique element ofwitness intimidation is use ofa threat. RCW 9A.72.110. Mr. Barajas's convictions are not constitutionally the same. Therefore, there is no doublejeopardy violation. The convictions are affirmed. The PRP is dismissed. A majority ofthe panel has determinedthis opinionwill notbe printed inthe Washington Appellate Reports, but it will be filed for publicrecordpursuantto RCW 2.06.040.

WE CONCUR:

_Lawrence-Berrey, A.C 

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Pennell, J.

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