IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JOSE JESUS ESPINOZA, JR.,

Appellant.

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No. 37390-8-III

UNPUBLISHED OPINION

SIDDOWAY, J. — Jose Jesus Espinoza Jr. appeals convictions for third degree 

assault, unlawful possession of a firearm, and witness tampering. 

Mr. Espinoza’s girlfriend was shot by the apparently accidental firing of a 

handgun that the jury could reasonably find, beyond a reasonable doubt, was in the 

possession of Mr. Espinoza. But the State presented limited evidence that the shot was 

fired negligently rather than nonnegligently, and defense counsel provided ineffective 

FILED

September 28, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37390-8-III

State v. Espinoza

2

assistance of counsel when he failed to object to the prosecutor’s argument in closing that 

Mr. Espinoza was not entitled to the benefit of doubt.

We reverse Mr. Espinoza’s conviction for third degree assault with its firearm 

enhancement, affirm Mr. Espinoza’s convictions on the remaining counts, and remand.

FACTS AND PROCEDURAL BACKGROUND

On a late afternoon in July 2019, Jose Jesus Espinoza Jr. rushed his girlfriend, 

Blanca Perez, to Samaritan Hospital in Moses Lake. She had a gunshot wound in her 

back. Admitting clerks who saw Mr. Espinoza approaching, screaming that he needed 

help, unlocked electronic doors so he could enter the emergency room (ER), where 

medical staff assumed responsibility for Ms. Perez. When Mr. Espinoza ran out of the 

ER and past the clerks, they yelled at him to stop and provide information about the 

patient, but he continued running, saying he had to move his car. A few minutes later, 

ER staff informed the admitting clerks that the patient had a gunshot wound. One of the 

clerks notified police.

Moses Lake police officers responded quickly and were at the hospital reviewing 

surveillance video when Mr. Espinoza returned about 25 minutes later. Officer Tyler St. 

Onge and Reserve Officer Roland Alejo were notified of his return and traveled to the 

admitting area to speak with him. At the request of admitting clerk Junelle Monk, the 

officers stood several feet away while she obtained basic information from Mr. Espinoza 

for Ms. Perez’s admission. Officer St. Onge’s body camera captured Mr. Espinoza 
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sitting at the admitting desk, answering intermittent questions from Ms. Monk while at 

the same time placing calls and speaking in Spanish on his phone. Officer St. Onge 

would later describe Mr. Espinoza as upset, emotional, frantic, sweating, and speaking 

extremely fast. Officer Alejo, whose native language is Spanish, heard Mr. Espinoza tell 

whoever he was speaking with on the phone to get a hold of his girlfriend’s parents and 

come to the hospital because there was an accident. 

After the admission information was obtained, Mr. Espinoza spoke to Officers St. 

Onge and Alejo. Mr. Espinoza spoke freely but rapidly, and his description of events was 

not always clear. Asked what had happened, Mr. Espinoza said he and a couple of Ms. 

Perez’s friends “were inside cleaning up, he is bending down cleaning up some items on 

the floor when he heard a loud pop and looked back and his girlfriend had fallen to the 

floor.” Report of Proceedings (RP) at 236. Later in his conversation with officers, Mr. 

Espinoza said Ms. Perez’s friends left before Mr. Espinoza heard the bang and he and 

Ms. Perez were the only ones in the house. Mr. Espinoza told the officers there were no 

guns in the house and he could not own guns. 

The officers allowed Mr. Espinoza to go into the trauma room where Ms. Perez

was in a bed, crying but not seriously injured. Dr. Jay Kovar, the attending physician,

had confirmed that two wounds on her torso were entrance and exit wounds from a single

bullet, which had not struck any organs. 
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The officers stood by while Mr. Espinoza spoke with and comforted Ms. Perez. 

Like their interview of Mr. Espinoza, this was captured on Officer St. Onge’s body 

camera.

Ms. Monk and her coworker Sherry Jensen, who was sitting next to Ms. Monk as 

she obtained information from Mr. Espinoza, were puzzled that Mr. Espinoza was being

permitted to see Ms. Perez. Both had heard Mr. Espinoza say that he shot her. Ms. 

Monk would later testify that when she asked Mr. Espinoza what happened to Ms. Perez,

he said, “I shot her, it was an accident.” RP at 193. Ms. Jensen would later testify that

she heard Mr. Espinoza say “that he was standing in his kitchen and he was handling his 

gun and then he heard the loud shot and realized he had shot the patient.” RP at 209. 

Ms. Monk or Ms. Jensen notified the security guard that Mr. Espinoza had 

admitted shooting Ms. Perez and the guard passed the information along to Officers St. 

Onge and Alejo. Neither officer had heard Mr. Espinoza make these statements while 

they stood nearby during the admitting process. 

The officers retrieved Mr. Espinoza from the trauma room and handcuffed him.

Mr. Espinoza immediately demanded to know what they were doing and why, and they 

said that they were going to take him outside where they would explain. When he asked

if he was being arrested, they said he was being detained, based on new information. Mr. 

Espinoza asked what the new information was, and they refused to tell him until he

listened to his rights and agreed to speak with them.
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When told what the admitting clerks had reported, Mr. Espinoza said they must 

have misunderstood him because he was hysterical. He repeatedly denied shooting Ms. 

Perez and even laughed at the accusation. When reminded by the officers that he said he 

and Ms. Perez were the only people in the house when she was struck, Mr. Espinoza said 

he was only “pretty sure” he and Ms. Perez were the only people in the house; he was just 

guessing. Ex. 1 (Clip 2, St. Onge Body Cam 2130), 4 min., 9 sec. to 4 min., 20 sec. The 

officers took Mr. Espinoza to the Moses Lake police station, where he was placed in a 

holding cell.

Detective Brian Jones spoke with Ms. Perez that afternoon, just before she was 

released from the hospital. Officer St. Onge was present and the interview was recorded 

on his body camera. During the interview, Ms. Perez told the detective she had been 

cleaning and did not know what happened. At the time, she and “Paco” (the name she 

used for Mr. Espinoza) were the only ones in the house. Through tears at times, Ms. 

Perez explained Mr. Espinoza was in front of her, bent over picking up clothes or 

something, and she could not move past him because he was in the way; all she knew was 

there was a loud noise and her back started hurting. She said she had not been paying 

attention to what Mr. Espinoza was doing; they were angry with each other. When the 

detective asked her whether she had ever suffered any domestic violence from him, she 

was emphatic that he had never been violent toward her. 
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Asked whether Mr. Espinoza possessed or had possessed a gun, she acknowledged 

that he had one before he went to jail about a month earlier. She did not know where he 

kept it. Although apparently not knowledgeable about guns, she tried to be cooperative 

as Detective Jones asked questions about the type of gun and its features. As he pressed 

her about the gun, she interjected at one point, “I really don’t think it was him. I don’t 

see how, you know . . . ,” and the detective assured her that shootings can happen as “an 

accident . . . a lot.” Ex. 51, at 8 min., .00 sec. to 8 min., 10 sec. When the detective’s

questions implied that Mr. Espinoza did something with a gun after she was shot, Ms. 

Perez appeared to offer another possibility, volunteering that her friend Brittney and 

Brittney’s friend Bandit left through the front door moments before she was shot, and she 

did not know Bandit. She said the front door had remained open and Brittney and Bandit

left in separate directions. 

After interviewing Ms. Perez, Detective Jones traveled to the police station to 

interview Mr. Espinoza. Throughout the interview Mr. Espinoza insisted he did not 

know what happened. At one point, Detective Jones told Mr. Espinoza he seemed “a 

little manic” or “amped up” and Mr. Espinoza said it was because he was angry, and he 

should not be there. Ex. 3, at 13 min., .00 sec. to 13 min., 25 sec. Officers had obtained 

a search warrant for the Espinoza/Perez home, and Detective Jones mentioned that a 

methamphetamine pipe was found in the living room. Detective Jones asked about its 

use and Mr. Espinoza deflected his questions. When asked whether a drug test of him at 
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that point would be positive, Mr. Espinoza initially said no, but when the detective said

that the Department of Corrections would probably test him, he said it probably would 

be.

A search warrant was obtained for Mr. Espinoza’s car in addition to the warrant to 

search the home, and no firearm was found in either place. Surveillance video from 

security cameras on the exterior of the home was recovered, from which officers

determined that Mr. Espinoza returned to his home after initially taking Ms. Perez to the 

hospital and went inside for 58 to 59 seconds before coming out and returning to the 

hospital. Going into the home, Mr. Espinoza did not appear to be carrying anything; on 

coming out and returning to his car, he appeared to be carrying a black object in his right 

hand. 

The surveillance video revealed that Ms. Perez’s friends Brittney and Bandit had 

left shortly before Mr. Espinoza and Ms. Perez were seen “tumbling” out of the house 

with Ms. Perez obviously injured and bleeding. RP at 534-35. 

Detective Aaron Hintz concluded that Ms. Perez was shot in her and Mr. 

Espinoza’s bedroom based on what he concluded was a bullet hole in the ceiling in that 

room—the only bullet hole found—and a substantial amount of blood just outside of the 

bedroom. He surmised that the bullet went through the ceiling and into the attic, but he 

did not find a bullet in the attic. Detective Hintz determined the bullet was fired from 
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inside the room, up against the wall between the bed and a laundry basket. A 9 mm shell 

was found in the laundry basket. 

Dr. Kovar concluded from his examination that the bullet had entered Ms. Perez’s 

body on the lower side of her right posterior shoulder blade and exited slightly higher on 

her back, between her left shoulder blade and spine. From the size of the wound, it was 

his opinion that the bullet was fired from a pistol, 9 mm or smaller. From the appearance 

of the entrance wound, the gun was not in direct contact with her body. It was Dr. 

Kovar’s opinion that it was probably a few feet away or possibly farther. 

Mr. Espinoza was charged with third degree assault against a family or household 

member while armed with a firearm and with first degree unlawful possession of a 

firearm. The State later amended the charges to include two counts of witness tampering 

based on phone calls made by Mr. Espinoza to Ms. Perez while he was in jail.1 During 

the conversations, Mr. Espinoza told Ms. Perez not to let the police find her and not to 

listen to them. 

Among the evidence presented at trial was the body camera video and a redacted 

videotape of Detective Jones’s interview of Mr. Espinoza at the police station. Hospital 

admitting clerks Monk and Jensen testified, as did a number of the officers involved and 

the ER physician who treated Ms. Perez.

 

1 The State also added a charge of possession of a controlled substance (heroin) 

but it voluntarily dismissed that charge at trial.
No. 37390-8-III

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Mr. Espinoza testified on his own behalf. He testified that on the day Ms. Perez 

was shot, Brittney and her friend Bandit had visited and Ms. Perez fed them breakfast. 

While they were there, Mr. Espinoza said something that made Ms. Perez upset, so he 

went outside and smoked a cigarette. He then came back inside and started doing some 

cleaning. He was in their bedroom stripping the bed when he heard Ms. Perez say 

goodbye to Brittney. Ms. Perez entered the room as he leaned over to throw a comforter 

from the floor into the hallway. While bent over, he heard a pop and wondered what it 

was. He looked at Ms. Perez and saw that blood was staining her shoulder. He tried to 

keep her calm and picked her up but fell on the steps as he took her down the steps. He 

drove as fast as he could to Samaritan Hospital, where he parked in the wrong place and 

entered the wrong door, but the security guard helped direct him to the emergency room.

After he left Ms. Perez with the ER staff, he ran back to his car and drove home, 

because he had left the front door open and did not live in a very safe area. He grabbed 

his cell phone and wallet and drove back to the hospital, where he spoke to the admitting 

clerk. Asked about Ms. Monk’s testimony that he told her he shot Ms. Perez, Mr. 

Espinoza testified, “Yeah, I don’t know where that came from,” and “I said maybe four 

words to this lady,” explaining that he had been more focused on trying to call Ms. 

Perez’s friend and father and his son. RP at 574-75.

He denied shooting Ms. Perez or possessing a handgun on the day of the shooting. 

He testified that when he spoke to Officers St. Onge and Alejo he tried to be clear about 
No. 37390-8-III

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what had happened, but he “might have mis-said something.” RP at 576. He said he was 

dehydrated, explaining, “I’m a pretty heavyweight guy, and that was real hot, and I’m a 

pretty big dude, and she’s not a very light person either.” Id. He testified that he had 

weighed “about 357 pounds” at the time. Id. He testified that the hole in the ceiling that 

Detective Hintz concluded was a bullet hole had been created by a hook for a laterremoved hanging plant. 

In closing argument, the prosecutor suggested to jurors that Mr. Espinoza used his

trip home from the hospital to get rid of his handgun and argued they could conclude 

from the fact that the shot was fired that Mr. Espinoza had not been following handgun 

safety rules. Defense counsel emphasized the body camera recordings during closing, 

telling jurors they could see that Mr. Espinoza had been cooperative with the officers and, 

when he was detained, asked what he was charged with. Defense counsel used and 

concluded with a theme that the presumption of innocence and the State’s burden of 

proof beyond a reasonable doubt required that jurors give Mr. Espinoza “the benefit of 

the doubt.” RP at 704, and see RP at 697-98. 

The prosecutor responded at the outset of rebuttal argument:

So nothing in the jury instructions instructs you to accord him the 

benefit of the doubt. It’s did the state prove the case beyond a reasonable 

doubt?

So it’s important to ignore everything defense counsel says and 

everything that I say that’s not supported by evidence presented to you.
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RP at 705. The defense did not object. As he approached the conclusion of his 

argument, the prosecutor said:

So there’s no possible other way that this occurred other than Mr. 

Espinoza shooting Ms. Perez. There’s no other way. And this isn’t about 

affording anybody the benefit of the doubt. There’s no other way, it’s 

beyond a reasonable doubt. 

RP at 709. The defense did not object.

Mr. Espinoza was found guilty as charged. He appeals.

ANALYSIS

Mr. Espinoza makes four assignments of error, the fourth of which—a scrivener’s 

error in the judgment and sentence—is conceded by the State. Of the remaining three, 

we first address Mr. Espinoza’s challenge to his witness tampering convictions on 

unanimity/sufficiency grounds. We then turn to his arguments that the State committed 

prosecutorial misconduct by telling jurors that Mr. Espinoza was not entitled to the 

benefit of the doubt or, alternatively, that his trial lawyer provided ineffective assistance 

of counsel by failing to object to the improper closing argument.

I. SUFFICIENT EVIDENCE SUPPORTED THE MEANS OF TAMPERING WITH A WITNESS ON 

WHICH THE JURY WAS INSTRUCTED

A person is guilty of tampering with a witness under RCW 9A.72.120(1) if he or 

she attempts to induce a witness or person he or she

has reason to believe is about to be called as a witness in any official 

proceeding or a person whom he or she has reason to believe may have 
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information relevant to a criminal investigation or the abuse or neglect of 

a minor child to:

(a) Testify falsely or, without right or privilege to do so, to withhold any 

testimony; or

(b) Absent himself or herself from such proceedings; or

(c) Withhold from a law enforcement agency information which he or she 

has relevant to a criminal investigation or the abuse or neglect of a minor 

child to the agency.

Counts 4 and 5 of the State’s amended information charged Mr. Espinoza with tampering 

with a witness on or about September 4 and 17, 2019, respectively, in all of the ways 

identified by the statute. 

The court’s elements instructions to the jury for counts 4 and 5 made no reference 

to tampering by testifying falsely, however. Instruction 21, the elements instruction for 

count 4, described the ways in which Mr. Espinoza was alleged to have tampered with a 

witness as follows:

(1) That on or about September 4, 2019, the defendant attempted to 

induce a person to withhold any testimony or absent herself from any 

official proceedings or withhold from a law enforcement agency 

information which she has relevant to a criminal investigation. 

Clerk’s Papers (CP) at 193 (emphasis added). Instruction 22, the elements instruction for 

count 5, was identical in every respect except for its reference to a date “on or about 

September 17, 2019.” CP at 194. The defense did not object to instructions 21 or 22. It 

did not request that “withhold any testimony” be defined.
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Mr. Espinoza contends that witness tampering is an alternative means crime, that 

“withhold any testimony” is a means, and that the State did not present evidence that Mr. 

Espinoza induced Ms. Perez to “withhold any testimony.” 

If a statute describes distinct acts that amount to the same crime, it is referred to as 

an alternative means crime. State v. Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 (2010). 

Washington precedent addressing alternative means crimes requires that a jury be 

unanimous as to the means, but only when a general verdict raises due process concerns 

because one or more of the alternatives presented to the jury are not supported by 

sufficient evidence. State v. Woodlyn, 188 Wn.2d 157, 165, 392 P.3d 1062 (2017). 

No Washington decision is cited by Mr. Espinoza in which the court has examined 

and held that witness tampering under RCW 9A.72.120 is an alternative means crime. 

Mr. Espinoza cites State v. Lobe, 140 Wn. App. 897, 902-03, 167 P.3d 627 (2007), which 

assumed that witness tampering is an alternative means crime. State v. Witherspoon, 171 

Wn. App. 271, 286 P.3d 996 (2012), aff’d, 180 Wn.2d 875, 329 P.3d 888 (2014), made a 

similar assumption. In both of those decisions, however, the State did not need to argue 

the point because it could rely on an easily-met but now-debunked harmless error 

analysis: if the State’s evidence was insufficient as to a means, then presumably the jury 

did not rely on that means. Until our Supreme Court decisively rejected that application 

of harmless error in Woodlyn, 188 Wn.2d at 165-66, the State had little incentive to argue 

that the subsections of RCW 9A.72.120(1) were merely facets of the same criminal 
No. 37390-8-III

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conduct.2 Whether witness tampering is an alternative means crime might bear 

examination in some future case, but the State does not address the issue in responding. 

Because it does not matter to our decision, we assume, without deciding, that it is.

The State responds to this assigned error by arguing that there was sufficient 

evidence from which the jury could find, as required by the elements instructions, that on 

September 4 and 17 “the defendant attempted to induce a person to withhold any 

testimony.” The State relied on the following conversation of September 4:

Female: I’ll put money in your books today.

Inmate: I just don’t want them to find you, eh.

Female: What? Dude.

Inmate: Don’t let them find you because they are going to put an arrest 

warrant to find you and everything. They’re going to put a warrant and 

everything for you. I need you to.

Inmate: Okay?

Female: Why?

Inmate: Because without you they don’t have a case. You get me? If you 

don’t come to court they can’t charge me with anything.

. . . . 

Inmate: Don’t be out in the streets too much so they won’t find you.

. . . .

Female: That’s scary. I don’t want to do that, that’s scary. 

Inmate: I love you babe, ok.

 

2

“The more varied the criminal conduct, the more likely the statute describes 

alternative means. But when the statute describes minor nuances inhering in the same 

act, the more likely the various ‘alternatives’ are merely facets of the same criminal 

conduct.” State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87 (2015). “The mere use 

of a disjunctive in a statute does not an alternative means crime make.” Peterson, 168 

Wn.2d at 770. “Nor has it been found that structuring the statute into subsections is 

dispositive or that definitional statutes create alternative means.” Sandholm, 184 Wn.2d 

at 734 (citing State v. Lindsey, 177 Wn. App. 233, 241, 311 P.3d 61 (2013)).
No. 37390-8-III

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Br. of Appellant, App. A at 4-5 (Ex. 49) (emphasis added).

It relied on the following conversation of September 17:

Female: Hey.

Inmate: Did you calm her?

Female: Yes.

Inmate: Poor baby, why is she crying?

Female: Ah, because we are leaving the *unintelligible.

. . . .

Inmate: Hey dude don’t say anymore of that stuff on the phone, dude about 

what you told me when you answered, and send them to hell dude. Don’t 

go, dude.

Female: Ok.

Inmate: And now, disappear for a little while.

Female: Ahm, well they told me, ahm.

Inmate: Ha?

Female: Said that, ahm, it was nothing bad they just wanted to talk.

Inmate: It’s not true babe, don’t listen to them, send them to hell.

Female: They wanted to sit down and discuss what we, what they want 

to do.

Inmate: No, send them to hell. Okay? You hear me?

Female: Yes.

Inmate: But listen to me. Are you (unintelligible) from the credit card? 

Don’t lie to me.

Br. of Appellant, App. B at 3-4 (Ex. 50) (emphasis added). 

The State argues that telling Ms. Perez on September 4 not to let police find her 

because the only way the State could make its case against him was if she came to court 

was an inducement to withhold testimony. It argues that telling her on September 17 to 

disappear for a while and not listen to people who wanted her to cooperate was likewise 

an inducement to withhold testimony. It argues this was sufficient evidence from which 

the jury could infer an inducement to withhold testimony. 
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The State’s argument is persuasive. When the sufficiency of the evidence is 

challenged in a criminal case, all reasonable inferences from the evidence must be drawn 

in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 

119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of 

the State’s evidence and all inferences that reasonably can be drawn therefrom. Id.

Applying the plain meaning of “withhold,” one could “withhold . . . testimony” by 

making oneself unavailable. As relevant here, “withhold” is defined to mean:

1 : to hold back : keep from action : CHECK, RESTRAIN <frequent bursts of 

grief . . . obliged her, at intervals, to ~ her pen —Jane Austen> 2 : to desist 

or refrain from granting, giving, or allowing : keep in one’s possession or 

control : keep back <distribute among the youngsters all blankets and 

provisions and gear, ~ing for myself only a canteen —Hodding Carter> 

<~ permission>.

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2627 (1993) (alteration in 

original).

Anticipating this response from the State, Mr. Espinoza contends that the State 

cannot advance a meaning for “withhold any testimony” as used in subsection (a) of 

RCW 9A.72.120(1) that encompasses absenting oneself from proceedings, because 

“[a]bsent[ing oneself] from . . . proceedings” constitutes witness tampering under RCW 

9A.72.120(1)(b). He argues that a rule of statutory construction “requires courts, 

whenever possible, to give effect to every word in a statute, leaving no part superfluous.” 

Br. of Appellant at 21 (citing Cox v. Helenius, 103 Wn.2d 383, 387-88, 693 P.2d 683 
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(1985)). Since RCW 9A.72.120(1)(a) states in full “[t]estify falsely or, without right or 

privilege to do so, to withhold any testimony,” Mr. Espinoza argues that considered in its 

statutory context, “inducing the withholding of testimony refers to inducing testimony 

that is false by way of omission.” Br. of Appellant at 21 (emphasis added).

If “withhold any testimony” is a statutory means that, properly defined, means 

“inducing testimony that is false by way of omission,” then the trial court’s instructions 

21 and 22 have one of two shortcomings. The first possible shortcoming is that the 

instructions include a means of committing witness tampering—“withhold any 

testimony” as commonly understood—that is not a statutory means. Our review of this 

first assignment of error by Mr. Espinoza is sufficiency review of the means on which the 

jury was instructed, however. Among the facets of Washington’s “law of the case” 

doctrine is the “‘principle that jury instructions that are not objected to are treated as the 

properly applicable law for purposes of appeal.’” State v. Johnson, 188 Wn.2d 742, 755, 

399 P.3d 507 (2017) (quoting Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 

(2005)). If an elements instruction states the law in a manner that does not describe a 

crime, it is constitutionally defective and a conviction based on the instruction must be 

reversed. State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). But Mr. Espinoza 

does not contend that the witness tampering elements instruction did not describe a 

crime; he concedes that it describes, and the evidence was sufficient to prove, witness 

tampering under RCW 9A.72.120(1)(b) and (c). His only argument is that it does not 
No. 37390-8-III

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accurately describe what he contends is the means made criminal by RCW 

9A.72.120(1)(a).

The second possible shortcoming is that the instructions include the statutory 

means, “withhold any testimony,” but fail to provide the technical meaning of that term 

that Mr. Espinoza argues is required after applying rules of statutory interpretation to 

RCW 9A.72.120(1) as a whole. “A term is ‘technical’ when it has a meaning that differs 

from common usage.” State v. Brown, 132 Wn.2d 529, 611, 940 P.2d 546 (1997).

If Mr. Espinoza believed that “withhold any testimony” as used in RCW 

9A.72.120(1)(a) has a technical meaning narrower than suggested by that plain, standalone language, he should have proposed a jury instruction that conveyed that narrower 

meaning.3 RAP 2.5(a) states the general rule for appellate disposition of issues not raised 

in the trial court: appellate courts will not entertain them. State v. Scott, 110 Wn.2d 682, 

685, 757 P.2d 492 (1988). CrR 6.15(c) requires that timely and well-stated objections be 

made to jury instructions given or refused in order that the trial court may have the 

opportunity to correct any error. City of Seattle v. Rainwater, 86 Wn.2d 567, 570-71, 

 

3 We are not suggesting that the narrower meaning is the correct one. “[R]ules or 

maxims of statutory interpretation should be recognized and treated as nothing more than 

aids or tools which may or may not be pertinent or useful in determining the meaning of 

statutory language. There is nothing mandatory about the applicability of a rule of 

statutory interpretation. . . .” Schneider v. Forcier, 67 Wn.2d 161, 167, 406 P.2d 935 

(1965) (Finley, J., dissenting). In crafting language about action that constitutes a crime, 

the legislature might use overlapping language to prevent evasion. 
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546 P.2d 450 (1976). The failure to define a technical term in a jury instruction is not 

constitutional error that can be raised for the first time on appeal. Scott, 110 Wn.2d at 

690; see also State v. Daniels, 87 Wn. App. 149, 156, 940 P.2d 690 (1997) (if defendant 

was worried that jurors could understand an undefined term to mean what it means in 

some other form of a charged crime, he should have asked for a definitional instruction); 

State v. Ng, 110 Wn.2d 32, 44, 750 P.2d 632 (1988) (failure to define “theft” as used in a 

robbery instruction was not a matter of constitutional consequence).

The two cases relied on by the dissent do not hold otherwise. State v. Owens, 180 

Wn.2d 90, 323 P.3d 1030 (2014), merely holds that to determine whether a statute creates 

an alternative means crime, we engage in statutory interpretation. We agree. In State v. 

Sweany, the second case relied on by the dissent, there was no technical term: the plain 

meaning of the jury instruction conformed to the plain meaning of the statutory means. 

174 Wn.2d 909, 915-16, 281 P.3d 305 (2012) (meaning arrived at by the court was the 

term’s “natural reading,” “only logical” interpretation, and was “consistent with the 

dictionary definition”). In interpreting the meaning of “valued at” in the statute, the court 

was construing how it was understood by the jury at the same time.

If there is no objection to a jury instruction, the due process concern presented by 

a unanimity/sufficiency challenge is satisfied if the jury was presented with substantial 

evidence of the element as identified for the jury. In that case, we do not measure the 
No. 37390-8-III

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20

trial evidence against statutory language that the jury did not see, interpreted according to 

a rule that the jury was never told about. The evidence was sufficient. 

II. PROSECUTORIAL MISCONDUCT IS NOT SHOWN, BUT INEFFECTIVE ASSISTANCE OF 

COUNSEL IS, AT LEAST AS TO COUNT 1

Mr. Espinoza contends that the prosecutor’s statements about the burden of proof 

and the presumption of innocence during closing argument constituted prosecutorial 

misconduct and his attorney’s failure to object amounted to ineffective assistance of 

counsel. He argues that either error requires reversal of his convictions for count 1 and 

count 2. 

Count 1 charged Mr. Espinoza with assault in the third degree under RCW 

9A.36.031(1)(d), under which a party is guilty if, under circumstances not amounting to 

first or second degree assault, the person “[w]ith criminal negligence, causes bodily harm 

to another person by means of a weapon or other instrument or thing likely to produce 

bodily harm.” The jury was properly instructed:

A person is criminally negligent or acts with criminal negligence when 

he fails to be aware of a substantial risk that bodily harm may occur and 

this failure constitutes a gross deviation from the standard of care that a 

reasonable person would exercise in the same situation.

CP at 186; see RCW 9A.08.010(1)(d).

Count 2 charged Mr. Espinoza with first degree unlawful possession of a firearm, 

which the jury was instructed is committed when the person has previously been 

convicted of a serious offense and knowingly owns or has in his possession or control 
No. 37390-8-III

State v. Espinoza

21

any firearm. Mr. Espinoza stipulated that he had previously been convicted of a serious 

offense. 

Prosecutorial misconduct

To succeed on a prosecutorial misconduct claim, an appellant has the burden of 

establishing that the prosecutor’s conduct was improper (as being at least mistaken) and 

was prejudicial. State v. Stenson, 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). When 

a defendant fails to object in the trial court to a prosecutor’s statements, he waives his 

right to raise a challenge on appeal unless the remark was so flagrant and ill intentioned 

that it evinced an enduring and resulting prejudice that could not have been neutralized 

by an admonition to the jury. Id. at 719. 

Our Supreme Court has previously held that arguing that a criminal defendant is 

not entitled to the benefit of the doubt is “clearly improper.” State v. Warren, 165 Wn.2d 

17, 24, 195 P.3d 940 (2008). In that case the prosecutor told jurors during her rebuttal 

closing:

 that for the defense “to ask you to infer everything to the benefit of the defendant 

is not reasonable;” 

 that “[r]easonable doubt does not mean give the defendant the benefit of the doubt, 

and that is clear when you read the definition;” and that

 “Finally, in this case I want to point out that this entire trial has been a search for 

the truth. And it is not a search for doubt. I talked to you about the fact that you 

must find the defendant guilty beyond a reasonable doubt. That is the standard to 

be applied in the defendant’s case, the same as any other case. But reasonable 

doubt does not mean beyond all doubt and it doesn’t mean, as the defense wants 

you to believe, that you give the defendant the benefit of the doubt.” 
No. 37390-8-III

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Id. at 24-25. 

The defense objected to the first comment and was overruled. Id. at 24. But after 

the third comment, the court read the jury a portion of the reasonable doubt instruction 

and provided a further explanation that we quote in part:

[A]fter you have reviewed all of the evidence or lack of evidence, and you 

continue to have a reasonable doubt then you must find the defendant not 

guilty. And if in still having a reasonable doubt that is a benefit to the 

defendant, then in a sense you are giving the benefit of the doubt to the 

defendant.

So I don’t want you to misconstrue the language that somehow there 

is no benefit here. Indeed there is, because the benefit of the doubt is if 

you still have a doubt after having heard all of the evidence and lack of 

evidence, if you still have a doubt, then the benefit of that doubt goes to 

the defendant, and the defendant is not guilty.

So we are playing with words here in a sense. The instruction is 

here in the package. I commend it to you for your reading.

Id. at 25 (emphasis added). 

While finding the argument clearly improper, the court concluded that the error 

was cured because defense counsel objected and the trial judge gave “a correct and 

thorough curative instruction.” Id. at 28. The court noted, “Had the trial judge not 

intervened to give an appropriate and effective curative instruction, we would not hesitate 

to conclude that such a remarkable misstatement of the law by a prosecutor constitutes 

reversible error.” Id.

The State concedes in this case, as it must, that the prosecutor’s comments were 

improper. Yet because Mr. Espinoza failed to object, he must show that a curative 
No. 37390-8-III

State v. Espinoza

23

instruction could not have cured the prejudice. Warren establishes that instruction can

cure the prejudice from this sort of problematic argument. 

Ineffective assistance of counsel

Alternatively, Mr. Espinoza argues that it was ineffective assistance of counsel for 

his trial lawyer not to object and obtain a curative instruction. To prevail on a claim of 

ineffective assistance of counsel, a defendant must demonstrate (1) that defense counsel’s 

representation was deficient, i.e., it fell below an objective standard of reasonableness; 

and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a 

reasonable probability that, except for counsel’s unprofessional errors, the result of the 

proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 

899 P.2d 1251 (1995). 

The State concedes that defense counsel’s failure to object amounts to deficient 

performance. The concession is reasonable. Not only did our Supreme Court find the 

same argument improper in Warren, but giving a criminal defendant the “benefit of the 

doubt” is accepted as a way to explain the concept of reasonable doubt. See, e.g., Victor 

v. Nebraska, 511 U.S. 1, 26-27, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994); FED.

JUDICIAL CTR., PATTERN CRIMINAL JURY INSTRUCTIONS instr. 21 (1988) (“Definition of 

Reasonable Doubt”); MODEL CIVIL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF 

THE THIRD CIRCUIT 4.13.1 (“Section 1983 – Burdens of Proof in Civil and Criminal 
No. 37390-8-III

State v. Espinoza

24

Cases”) (2019). There was no reason for defense counsel to fail to make an objection and 

request a curative instruction. 

The State argues that Mr. Espinoza was not prejudiced by the improper argument 

because the evidence against him was “overwhelming.” Br. of Resp’t at 23. With 

respect to the third degree assault conviction with its firearm enhancement, however, we 

disagree.

The State relies heavily on the testimony of Ms. Monk and Ms. Jensen that Mr. 

Espinoza admitted shooting Ms. Perez, but their testimony was contradicted by other 

evidence. Ms. Jensen’s testimony that Mr. Espinoza admitted accidentally firing his gun 

in the kitchen was inconsistent with all the other evidence in the case; it was inconsistent 

with Mr. Espinoza’s testimony, Ms. Perez’s testimony, the blood evidence, the absence 

of any bullet hole in the kitchen, and law enforcement’s assessment of where the shot was

fired. Two police officers standing nearby never heard Mr. Espinoza say what the 

admitting clerks claim they heard. The clerks acknowledged that Mr. Espinoza was 

“erratic,” “stumbling with words,” and uttering “a lot of scrambled speech.” RP at 192, 

209. Jurors could see for themselves on the body camera video that he was upset and 

agitated.

The State further relies on the evidence that Mr. Espinoza and Ms. Perez were the 

only persons present in the home. That, and Ms. Perez’s statements to Detective Jones 

that Mr. Espinoza had recently been in possession of a handgun satisfies us that there is 
No. 37390-8-III

State v. Espinoza

25

no reasonable probability that the jury would have decided the possession of a firearm 

count differently. But the fact that they were the only two individuals in the house says 

nothing about whether the shooting could have been not only an accident, but 

nonnegligent. 

Finally, the State relies on an argument that Mr. Espinoza was high on drugs when 

Ms. Perez was shot. While witnesses agreed that he was agitated, however, they ascribed 

it differently. Dr. Kovar, for instance, characterized Mr. Espinoza as “obviously very 

upset and concerned.” RP at 460. And while the trial court allowed some evidence of 

drug paraphernalia found in the home to be admitted subject to a limiting instruction that 

it was relevant only to negligence,

4

the court itself commented outside the presence of the 

jury that there was no medical evidence Mr. Espinoza was high and his behavior might be 

explained by the stress of the situation. 

There is a reasonable probability that the verdict on the third degree assault count 

would have been different if defense counsel had objected to the prosecutor’s improper 

argument and obtained a curative instruction. That conviction must be reversed.

III. SCRIVENER’S ERROR

The parties agree that the judgment and sentence states, in error, that the firearm 

enhancement imposed relates to count 2 rather than count 1. Correction is required.

 

4 The court instructed the jury that “evidence has been presented that there was 

drug paraphernalia in the home. This evidence may only be considered for the limited 

purpose of whether or not the defendant acted negligently.” RP at 659.
No. 37390-8-III

State v. Espinoza

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STATEMENT OF ADDITIONAL GROUNDS

In a pro se statement of additional grounds, Mr. Espinoza raises one: he challenges 

the sufficiency of the evidence that he possessed a firearm as required for count 2.

No witness testified that Mr. Espinoza was seen with a firearm on or about the 

date charged, and no firearm was found in a search of his home or car. But Ms. Perez 

said when interviewed that Mr. Espinoza had been in possession of a firearm 

approximately a month earlier. She was shot in her home when only she and Mr. 

Espinoza were present. A 9 mm shell was found near where she was shot, and her 

attending ER physician testified, based on her wounds, that the bullet that had passed 

through her torso was fired by a 9 mm or smaller pistol. The firearm she described as 

having been in Mr. Espinoza’s possession was consistent with her wounds and with the 

shell. Ms. Monk and Ms. Jensen testified that Mr. Espinoza said he shot Ms. Perez. As 

argued by the State, it was possible that Mr. Espinoza had an opportunity to retrieve and 

dispose of a firearm when he briefly returned home from the hospital.

Direct and circumstantial evidence are equally reliable, and we “defer to the trier 

of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness 

of the evidence.” State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), aff’d, 

166 Wn.2d 380, 208 P.3d 1107 (2009). The evidence was sufficient.

We reverse Mr. Espinoza’s conviction for count 1 and the associated firearm 

enhancement. We remand for resentencing and for further proceedings consistent with 
No. 37390-8-III

State v. Espinoza

27

this opinion including, at the State’s option, a retrial of the third degree assault charge 

with its firearm enhancement.

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.

_____________________________

Siddoway, J.

I CONCUR:

_____________________________

Pennell, C.J.
No. 37390-8-III

STAAB, J. (Dissenting) — While I agree with the majority on the issue of 

prosecutorial misconduct and ineffective assistance of counsel, I disagree on the 

alternative means issue. In my opinion, the majority reaches a conclusion that is contrary 

to precedent and the statutory language. 

On appeal, Jose Espinoza argues that the State presented insufficient evidence on 

each of the three alternative means of committing witness tampering that were presented 

to the jury. The State acknowledges that the crime of witness tampering is an alternative 

means crime and that there are three alternative means: “(1) testify falsely or withhold 

testimony, (2) absent himself or herself from an official proceeding, or (3) withhold 

information from a law enforcement agency.” State v. Andrews, 172 Wn. App. 703, 707, 

293 P.3d 1203 (2013); State v. Lobe, 140 Wn. App. 897, 902-03, 167 P.3d 627 (2007), 

RCW 9A.72.120(1)(a)-(c). Mr. Espinoza was charged, and the jury was instructed on all 

three alternatives. 

While the State presented the trial court with to-convict jury instructions that 

included all three means, the proposed instructions shortened the first means to simply 

“withholding any testimony.” Since the State did not seek a unanimity jury instruction, 

there must be sufficient evidence to support each of the three alternative means. State v. 
No. 37390-8-III

State v. Espinoza—Dissent

2

Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014). Mr. Espinoza argues that the statutory 

term “withholding testimony” needs to mean more than absenting oneself from the trial 

to avoid redundancy. The State disagrees and contends that it presented sufficient 

evidence that Espinoza attempted to induce another to withhold her testimony by telling 

her to disappear and not come to court. 

The majority finds sufficient evidence to support the alternative means as outlined 

in the jury instructions. To reach this conclusion, the majority notes that the due process 

concern with sufficiency of the evidence in an alternative means crime is jury unanimity 

and whether the alternative means presented to the jury were supported by evidence. In 

other words, the issue is not strictly sufficiency of the evidence since the defendant 

acknowledges there is sufficient evidence to support two of the three alternatives. 

Instead, the question is whether a jury presented with alternative means of committing a 

crime could find evidence to support each alternative. To this effect, the majority 

concludes that terms used within an alternative means statute, when not explicitly defined 

in the jury instructions, can be given their ordinary meaning, even if the statute would 

require a narrower definition. While I understand the majority’s reasoning, I disagree 

because there is no precedent to support this position. Indeed, the majority does not cite 

any authority to support its conclusion. Instead, several Supreme Court cases clarify that 

defining terms within an alternative means crimes is a statutory interpretation issue, not a 

jury instruction interpretation issue. 
No. 37390-8-III

State v. Espinoza—Dissent

3

In State v. Sweany, the Supreme Court addressed the sufficiency of evidence for 

the alternative means crime of first degree arson. 174 Wn.2d 909, 914, 281 P.3d 305 

(2012). The defendant argued that the evidence was insufficient to support the alternative 

means of causing a fire on property “valued at” ten thousand dollars or more. To 

determine the definition of the term “valued at,” the court applied rules of statutory 

construction including the term’s use in context of the statute as a whole. Id. at 914-15. 

The court found that a more “natural reading of the statute” would define the term 

“valued at” as referring to the market value. Id. at 915. The court then applied this 

statutory definition and found the evidence sufficient under the alternate means. Id. at 

917-18. 

Similarly, in Owens, the Supreme Court was asked to consider whether there was 

sufficient evidence to support the alternative means of trafficking in stolen property. In 

doing so, the court noted: “The first issue is whether [the statute] is an alternative means 

crime and, if so, what those alternative means are. This presents an issue of statutory 

interpretation.” Owens, 180 Wn.2d at 96 (emphasis added). The court went on to 

determine the statute’s alternative means by employing rules of statutory construction. 

Id. at 96-97. After defining the two alternative means of committing the crime, the Court 

considered the sufficiency of evidence to support each means by applying the language of 

the statute to the evidence at trial. In rejecting the defendant’s argument on the 
No. 37390-8-III

State v. Espinoza—Dissent

4

sufficiency of evidence to support an alternative means, the court noted that it was “not 

supported by the statutory language.” Id. at 100. 

In this case, the majority holds that since the jury was not provided with the entire 

context of the statute’s first alternative means or a definition, the jury was free to apply 

an ordinary meaning even if that meaning would be broader than the term’s definition 

under statutory interpretation. The majority cites no authority for this position. 

Mr. Espinoza does not claim that the jury instructions misstate the law or 

inaccurately describe the first means of committing the crime. Instead, he contends that 

the first alternative set forth in the instructions is the same alternative set forth in the 

statute, albeit shorter. While shortening the first means in the jury instruction removed 

statutory context, it does not change the meaning of the term. The State only included the 

bracketed language of the first alternative on withholding testimony, believing that 

withholding testimony is the same as encouraging someone to disappear and not testify at 

all. 

The jury instructions accurately reflected the statute. Indeed, this shortened 

version of the to-convict instruction is supported by the pattern jury instructions, which 

instructs attorneys to use the bracketed language as applicable. 11A WASHINGTON 

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 115.81 note on use at 

492 (4th ed. 2016). Therefore, in determining whether sufficient evidence supports each 
No. 37390-8-III

State v. Espinoza—Dissent

5

alternative means as set forth in the instructions, terms used in the instructions should be 

given the same meaning as identical terms used in the statute. 

This is a statutory construction issue. In construing the meaning of terms used in a 

statute, our goal is to ascertain and give meaning to the legislature’s intent. Sweany, 174 

Wn.2d at 914. The best indication of legislative intent is the plain language of the statute, 

the context in which the provision is found, related provisions, and the statute as a whole. 

Id. at 914-15. In considering the statute as a whole, the court should avoid an 

interpretation that would render any part inoperative or superfluous. In re Det. of Strand, 

167 Wn.2d 180, 189, 217 P.3d 1159 (2009). 

The first alternative means of committing witness tampering includes inducing a 

witness to “(a) [t]estify falsely, or without right or privilege to do so, to withhold any 

testimony.” RCW 9A.72.120(1)(A). While the second alternative prohibits inducing a 

witness to “(b) [a]bsent himself or herself from such proceedings.” RCW 

9A.72.120(1)(b). Considering the context of the first alternative, it is clear that 

“withholding testimony” means getting on the stand as a witness and either refusing to 

answer or failing to give the whole truth. The modifier “without right or privilege to do 

so” would apply if a witness had a valid reason for refusing to answer, such as a right 

under the Fifth Amendment to the United States Constitution. It is also clear from the 

context of phrases and the statute as a whole that absenting oneself from a proceeding is 
No. 37390-8-III

State v. Espinoza—Dissent

6

different than withholding testimony. If the second alternative subsumed the first 

alternative, then the first alternative would be superfluous. 

In this case, since the State failed to present any evidence that Mr. Espinoza 

induced another to withhold testimony, i.e. appear in court but refuse to answer questions 

or provide the whole truth, there is insufficient evidence to support the first means of 

witness tampering as provided to the jury. Because the evidence is insufficient to support 

the first alternative means, and the jury did not provide a particularized expression of 

unanimity as to which of the means it relied on, I would reverse Mr. Espinoza’s 

conviction for witness tampering without prejudice. 

_________________________________

Staab, J.