IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

POLICARPO CRUZ-NAVA,

Appellant.

)

)

)

)

)

)

)

)

)

No. 35114-9-III

UNPUBLISHED OPINION

PENNELL, A.C.J. — Policarpo Cruz-Nava appeals his convictions and sentence for 

second degree assault, first degree assault with a deadly weapon enhancement, and felony 

harassment. We affirm Mr. Cruz-Nava’s convictions, but a majority of the panel has

voted to reverse the discretionary legal financial obligations (LFOs) imposed as part of 

Mr. Cruz-Nava’s sentence.

FACTS

Mr. Cruz-Nava was in a long-term intimate relationship with a woman named

Maribel Analco-Gutierrez. On several occasions in the spring of 2016 Mr. Cruz-Nava 

invited his co-worker, Hugo Mateos-Rosas, to the home he shared with Ms. AnalcoGutierrez for dinner and drinking. On each occasion, Mr. Cruz-Nava encouraged Mr. 

Mateos-Rosas to engage Ms. Analco-Gutierrez sexually. His efforts were met with varied 

success.

FILED

AUGUST 9, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35114-9-III

State v. Cruz-Nava

2

Mr. Cruz-Nava’s final effort to encourage sexual relations between Mr. MateosRosas and Ms. Analco-Gutierrez occurred in early April 2016. That evening, after Mr. 

Cruz-Nava and Mr. Mateos-Rosas became heavily intoxicated, Mr. Cruz-Nava asked Mr. 

Mateos-Rosas and Ms. Analco-Gutierrez to disrobe. Both refused. Mr. Cruz-Nava then 

became angry. He grabbed Ms. Analco-Gutierrez by her neck and said he was going to 

kill her. At this point, Ms. Analco-Gutierrez became very scared. Mr. Mateos-Rosas 

eventually was able to pull Mr. Cruz-Nava away from Ms. Analco-Gutierrez. Mr. CruzNava began to punch in Ms. Analco-Gutierrez’s direction, with one hitting her and one 

hitting Mr. Mateos-Rosas.

Mr. Mateos-Rosas followed Mr. Cruz-Nava to the kitchen, where Mr. Cruz-Nava 

procured a small knife.1

 Mr. Mateos-Rosas urged Mr. Cruz-Nava to calm down and took 

hold of a closed folding chair to keep Mr. Cruz-Nava from getting too close. Mr. CruzNava repeatedly came toward Mr. Mateos-Rosas with the knife. Mr. Cruz-Nava held the 

knife firmly in his hand and stated he was going to kill Mr. Mateos-Rosas and Ms. 

Analco-Gutierrez.

Eventually, Mr. Mateos-Rosas grasped Mr. Cruz-Nava’s hand in order to loosen 

his grip on the knife. Mr. Cruz-Nava then threw the knife into the kitchen. Mr. Cruz-

 

1 The knife measured 2 and 15/16 inches.
No. 35114-9-III

State v. Cruz-Nava

3

Nava yelled to call the police because he was going to kill Mr. Mateos-Rosas. Despite 

Mr. Cruz-Nava’s threat, Mr. Mateos-Rosas was able to leave the residence.

Once Mr. Mateos-Rosas was gone, Mr. Cruz-Nava re-entered the bedroom and 

eventually fell asleep. Ms. Analco-Gutierrez subsequently left the house and reported the 

incident to the police.

At trial, the court permitted ER 404(b) testimony from Ms. Analco-Gutierrez 

regarding a prior domestic violence incident between herself and Mr. Cruz-Nava. The 

incident had taken place several years earlier in California. Although the State lacked

evidence of a conviction, it did have a report indicating Mr. Cruz-Nava was arrested in 

California in May 2009 for corporal injury to a spouse or cohabitant.

At the close of trial, the jury found Mr. Cruz-Nava guilty of (1) second degree 

assault by strangulation or suffocation of Ms. Analco-Gutierrez, with a domestic violence 

enhancement, (2) felony harassment for the threat to kill Ms. Analco-Gutierrez, with a 

domestic violence enhancement, (3) felony harassment for the threat to kill Mr. MateosRosas, and (4) first degree assault of Mr. Mateos-Rosas with a deadly weapon or by force 

or means likely to produce great bodily harm, with a deadly weapon enhancement.

At sentencing, the trial court imposed 156 months’ imprisonment and a series of 

LFOs, payable in installments of $35 per month, commencing 60 days after Mr. Cruz-
No. 35114-9-III

State v. Cruz-Nava

4

Nava’s release from custody.2 Mr. Cruz-Nava appeals.

ANALYSIS

Sufficiency of the evidence

Mr. Cruz-Nava argues the State failed to produce sufficient evidence of first 

degree assault because the circumstances in which he wielded the knife did not indicate it 

was a deadly weapon. Evidence is sufficient to support a conviction if, viewed in the 

light most favorable to the State, it permits any rational trier of fact to find the essential 

elements of the crime beyond a reasonable doubt. State v. Kintz, 169 Wn.2d 537, 551, 

238 P.3d 470 (2010). A claim of insufficiency admits the truth of the State’s evidence 

and all reasonable inferences drawn therefrom. Id. Circumstantial evidence and direct 

evidence are equally reliable. Id.

Mr. Cruz-Nava was convicted of violating RCW 9A.36.011(1)(a), which provides: 

“A person is guilty of assault in the first degree if he or she, with intent to inflict great 

bodily harm . . . [a]ssaults another with a firearm or any deadly weapon or by any force or 

means likely to produce great bodily harm or death.” Objects other than firearms and 

explosives constitute deadly weapons only if the State proves, under the circumstances of

 

2 The judgment indicates the court imposed $1,250 in total LFOs. However, the 

individual fees, costs, and assessments listed on the judgment amount to $1,365.
No. 35114-9-III

State v. Cruz-Nava

5

the case, the object was “readily capable of causing death or substantial bodily harm.” 

RCW 9A.04.110(6). “‘Substantial bodily harm’ means bodily injury which involves a 

temporary but substantial disfigurement, or which causes a temporary but substantial loss 

or impairment of the function of any bodily part or organ, or which causes a fracture of 

any bodily part.” RCW 9A.04.110(4)(b).

Here, the State produced sufficient evidence that the knife possessed by Mr. CruzNava constituted a deadly weapon, as required by statute. The State’s evidence was not 

simply that Mr. Cruz-Nava possessed a knife. Cf. In re Pers. Restraint of Martinez, 

171 Wn.2d 354, 366, 256 P.3d 277 (2011) (The deadly weapon statute “requires more 

than mere possession where the weapon in question is neither a firearm nor an 

explosive.”). Instead, Mr. Cruz-Nava gripped the knife in full view of Mr. Mateos-Rosas 

while issuing death threats and moving toward Mr. Mateos-Rosas. Given the small size 

of Mr. Cruz-Nava’s home and the fact that Mr. Mateos-Rosas was able to grab Mr. CruzNava’s hand in an effort to loosen his grip on the knife, it is apparent Mr. Cruz-Nava 

wielded the knife in close enough proximity to Mr. Mateos-Rosas that it could have 

caused significant injury. Although the folding chair used by Mr. Mateos-Rosas provided 

some protection, it did not eliminate the potential for serious injury. Cf. State v. 

Skenandore, 99 Wn. App. 494, 994 P.2d 291 (2000) (A handmade spear did not constitute 
No. 35114-9-III

State v. Cruz-Nava

6

a deadly weapon given that a cell door protected the prison guard from potential injury.). 

The totality of the State’s evidence amply justified the jury’s deadly weapon verdict. 

State v. Holmes, 106 Wn. App. 775, 781-82, 24 P.3d 1118 (2001) (There was sufficient 

evidence that knife constituted deadly weapon when the defendant “held the knife with 

the blade extended and waved it at the [victim] who was standing a few feet away, 

thereby forcing the [victim] to step back.”).

ER 404(b) violation—improperly admitted prior bad act evidence

Mr. Cruz-Nava argues the trial court abused its discretion in admitting evidence of 

the 2009 domestic violence incident from California under ER 404(b). We disagree.

Evidence of a defendant’s prior bad acts is not admissible as character evidence or 

to prove the defendant acted in conformity with a certain character trait. ER 404(b). 

However, bad act evidence may be admissible if it is relevant for a noncharacter purpose 

and is not overly prejudicial. Id. To admit prior bad act evidence under ER 404(b), the 

trial court must (1) find by a preponderance of the evidence that the prior act 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 against the prejudicial effect.” State v. 

Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
No. 35114-9-III

State v. Cruz-Nava

7

The record supports the trial court’s admission of the State’s ER 404(b) evidence 

under the four relevant factors:

FIRST: Reliable evidence supports that the prior act occurred. According to the 

State’s pretrial offer of proof, Ms. Analco-Gutierrez was able to describe the prior 

assault and her account was at least partially corroborated by the existence of an 

arrest record. This was sufficient for the State to meet its factual burden. State v. 

Kilgore, 147 Wn.2d 288, 294-95, 53 P.3d 974 (2002).

SECOND: Evidence of the prior act was relevant to prove Ms. Analco-Gutierrez 

reasonably feared Mr. Cruz-Nava’s threats. State v. Barragan, 102 Wn. App. 754, 

759, 9 P.3d 942 (2000).

THIRD: The reasonableness of Ms. Analco-Gutierrez’s fear bore on the elements 

of the charged crime of felony harassment. Id.; RCW 9A.46.020(1).

FOURTH: The prior act evidence was not overly prejudicial. The trial court 

permitted introduction of only one prior assault. This evidence was brief and was 

limited to Ms. Analco-Gutierrez’s testimony.

Given all four of the elements to admissibility under ER 404(b) were met, the trial 

court did not abuse its discretion in permitting the State to introduce evidence of Mr. 

Cruz-Nava’s prior assault.
No. 35114-9-III

State v. Cruz-Nava

8

LFOs imposed without considering Mr. Cruz-Nava’s ability to pay

Mr. Cruz-Nava argues the trial court did not properly assess his financial capacity

prior to imposing discretionary LFOs. Although no objection was made at the time of 

sentencing, we have discretion to review this issue under RAP 2.5(a). A majority of the 

panel elects to exercise this discretion. See State v. Blazina, 182 Wn.2d 827, 832, 

344 P.3d 680 (2015).

At sentencing, the trial court imposed over $500 in discretionary LFOs.3

 While 

the trial court found Mr. Cruz-Nava had an ability to pay these LFOs, this was based 

solely on trial testimony indicating Mr. Cruz-Nava had been working prior to his arrest.4

 

The trial court never questioned Mr. Cruz-Nava about his work history or financial 

circumstances. There was no evidence considered regarding Mr. Cruz-Nava’s 

employment skills, the amount of his prior earnings, his financial resources, or his debts. 

Because the trial court did not conduct an individualized inquiry into Mr. Cruz-Nava’s 

ability to pay court-ordered financial obligations, the imposition of discretionary LFOs is 

 

3 The mandatory LFOs included a $500 victim assessment, $200 criminal filing 

fee, and $100 DNA (deoxyribonucleic acid) fee. The remaining financial obligations 

were discretionary.

4 Ms. Analco-Gutierrez and Mr. Mateos-Rosas testified that they had worked with 

Mr. Cruz-Nava.
No. 35114-9-III

State v. Cruz-Nava

9

reversed. Blazina, 182 Wn.2d at 838. This matter is remanded with instructions to either 

strike the discretionary LFOs or for resentencing.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

In his statement of additional grounds for review (SAG), Mr. Cruz-Nava argues: 

(1) he never touched the knife introduced at trial and it does not have his fingerprints on 

it, (2) Ms. Analco-Gutierrez intimidated a witness to not appear at trial, (3) the witnesses 

changed dates and times on several occasions during their trial testimony, (4) messages 

sent to Mr. Cruz-Nava on April 4, 2016, from Mr. Mateos-Rosas, which show he never 

felt threatened or afraid of Mr. Cruz-Nava, were not introduced at trial, (5) evidence was 

not introduced to show that the door, from inside the home, cannot be locked with a key, 

contradicting the testimony given that Mr. Cruz-Nava kept the keys to keep Ms. AnalcoGutierrez and Mr. Mateos-Rosas from leaving, (6) the prosecution gave immunity to a 

presumed sexual offender and drug dealer, Mr. Mateos-Rosas, and (7) the dispute from 

May 2009 in California was not with Ms. Analco-Gutierrez, rather, it was with her son 

and she got involved and injured in the arm.

The majority of Mr. Cruz-Nava’s allegations relate to facts and materials outside 

the existing record. As such, review on direct appeal is inappropriate. Instead, the proper 

avenue for relief is a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 
No. 35114-9-III 

State v. Cruz-Nava 

335, 899 P.2d 1251 (1995). To the extent the issues raised in Mr. Cruz-Nava's SAG 

can be assessed under the current record, they are too conclusory to inform the court of 

the nature and occurrence of the alleged errors. We therefore do not review Mr. CruzNava's claims any further. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008); 

RAP 10.lO(c). 

CONCLUSION 

Mr. Cruz-Nava's convictions are affirmed. The trial court's imposition of 

discretionary LFOs is reversed. This matter is remanded with instructions for the trial 

court to either strike the discretionary LFOs or to conduct resentencing as to the 

imposition of discretionary LFOs. Because Mr. Cruz-Nava has partially prevailed on 

appeal, the State shall not be awarded appellate costs. 

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. 

Pennell, A.CJ. 

WE CONCUR: 

~ ' ~ Fearinn) , 

10