Opinion
No. 26696-6-III.
December 16, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 07-1-02299-7, Salvatore F. Cozza, J., entered December 17, 2007.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Brown, JJ.
Gilberto E. Cruz was convicted of two counts of witness intimidation under RCW 9A.72.110(2). On appeal, he contends that the jury instructions were deficient because they did not define a "true threat." In his pro se statement of additional grounds, Mr. Cruz contends that he is entitled to a new trial because he had insufficient time with defense counsel to prepare for trial. He also argues that the trial court erred in not allowing the jury to view a videotape and in permitting the State to amend the information on the morning of trial. We reject his contentions and affirm.
FACTS
In 1998, Chad Hudlemeyer testified against Mr. Cruz in a trial that resulted in Mr. Cruz's conviction of delivery of a controlled substance. After Mr. Cruz completed his sentence in the spring of 2007, he visited Mr. Hudlemeyer's mother several times. During the last visit, he told her that he wanted her to arrange a meeting with Mr. Hudlemeyer because there were people who wanted to hurt Mr. Hudlemeyer.
Late in the evening of May 10, 2007, Mr. Cruz showed up at Mr. Hudlemeyer's house. During their conversation, Mr. Hudlemeyer was told to meet with Mr. Cruz within five days or Mr. Hudlemeyer would be hurt and a compromising videotape of himself would be given to his family. Mr. Hudlemeyer believed his life was in danger.
The State charged Mr. Cruz with two counts of witness intimidation. At trial, Mr. Hudlemeyer testified that during 1996 and 1997 he was involved in drugs with Mr. Cruz, but that at some point the relationship became involuntary. He stated that about a month after he met Mr. Cruz in 1996, Mr. Cruz directed two men to confine him to a motel room where he was repeatedly beaten and forced to perform sexual acts while Mr. Cruz videotaped the acts.
Mr. Hudlemeyer also testified that during the May 2007 visit, Mr. Cruz showed him pictures of people who were getting out of prison and told him that if he failed to comply with Mr. Cruz's demands, these people would physically hurt him. Mr. Cruz also presented documents to Mr. Hudlemeyer that included Mr. Hudlemeyer's previous four addresses, his mother's address, a map to his and his mother's houses, his work address, and his children's names. After the visit Mr. Hudlemeyer obtained a concealed weapons permit, a home security system, and arranged hiding places for his children.
Detective Mike Ricketts testified that he interviewed Mr. Cruz after his arrest for witness intimidation. Mr. Cruz revealed some lingering anger and resentment about the 1998 trial, stating that Mr. Hudlemeyer walked away from the deal without a felony, whereas he got a raw deal, stating, "I did my time for this fucking kid." Report of Proceedings (RP) at 151. The detective also testified that he viewed the videotape of Mr. Hudlemeyer and saw him being beaten by an unidentified person. The detective testified that he could hear Mr. Cruz's voice in the background.
Mr. Cruz denied threatening Mr. Hudlemeyer or his mother. He explained that his only purpose in contacting them was to assure them that he was no longer angry with the family.
The court instructed the jury that a "[t]hreat means to communicate directly or indirectly the intent . . . [t]o cause bodily injury in the future to the person threatened or to any other person." RP at 240; Clerk's Papers at 14. Defense counsel did not object to the instruction or request an instruction defining a true threat. The jury convicted Mr. Cruz as charged. This appeal followed.
ANALYSIS
Mr. Cruz contends that the trial court committed manifest constitutional error in failing to define a true threat in the jury instructions. The State concedes that current law requires the trial court to define this term, but that the court's failure to do so is harmless error.
We review the adequacy of jury instructions de novo. State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003). A jury instruction must correctly state the applicable law. State v. Mark, 94 Wn.2d 520, 526, 618 P.2d 73 (1980). Generally, an objection to a jury instruction may not be raised by a criminal defendant for the first time on appeal unless it involves a "manifest error affecting a constitutional right." RAP 2.5(a)(3). But even a manifest constitutional error will not help a defendant if the error is harmless beyond a reasonable doubt. State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988).
"While laws may proscribe 'all sorts of conduct' the same is not true of speech." State v. Kilburn, 151 Wn.2d 36, 42, 84 P.3d 1215 (2004). Speech protected by the First Amendment may not be criminalized. Id. To avoid unconstitutional infringement on protected speech, only true threats may be prohibited. Id. at 43. A threat made in jest or idle talk is protected speech, but a true threat is not. Id.; State v. King, 135 Wn. App. 662, 669, 145 P.3d 1224 (2006).
A true threat is defined as "'a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted . . . as a serious expression of intention to inflict bodily harm upon or take the life' of another person." Kilburn, 151 Wn.2d at 43 (alteration in original) (internal quotation marks omitted) (quoting State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001)). It is the context that makes a threat "true" or serious. The test is an objective one: "A 'true' threat exists if the speaker would reasonably foresee under the circumstances that the listener would believe he or she will be subject to physical violence." King, 135 Wn. App. at 669.
RCW 9A.72.110(2) provides that a person is guilty of intimidating a witness if "the person directs a threat to a former witness because of the witness's role in an official proceeding." A "threat" includes communicating an intent to cause bodily injury in the future. RCW 9A.72.110(3)(a)(ii). Mr. Cruz asserts that a true threat is an essential element of the witness intimidation statute that must be included in the jury instructions. To support this position, Mr. Cruz relies on State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006) where the Washington Supreme Court reversed a conviction under the bomb threat statute for the trial court's failure to define a true threat for the jury.
However, Mr. Cruz overstates Johnston's holding. Division One of this court noted:
The Johnston court did not rule that a true threat is an essential element of the crime of threatening to bomb a building. It did not require that the information charging the defendant with criminal use of threatening language allege a true threat. Nor did it rule that a "to convict" instruction is inadequate if it does not require the jury to find a true threat beyond a reasonable doubt. No Washington court has ever held that a true threat is an essential element of any threatening-language crime or reversed a conviction for failure to include language defining what constitutes a true threat in a charging document or "to convict" instruction.
State v. Tellez, 141 Wn. App. 479, 483, 170 P.3d 75 (2007). Thus, the true threat concept is definitional, not an essential element of any threatening-language crime. Id. at 484.
Next, Mr. Cruz contends that the jury should have been given the definition of a true threat. Relying on our recent case of State v. Schaler, 145 Wn. App. 628, 186 P.3d 1170 (2008), petition for review filed (Wash. July 24, 2008) (No. 81864-9), the State agrees that instructional error occurred. However, we fail to see the error. In Schaler, we held that in a felony harassment prosecution, the jury must be instructed on the concept of a true threat. Id. at 640.
However, we have held that Washington's witness intimidation statute does not violate constitutionally protected speech because it prohibits no speech other than true threats. King, 135 Wn. App. at 666. We reasoned that felony harassment and witness intimidation are very different crimes, noting that felony harassment "covers a virtually limitless range of utterances and contexts, any of which might be protected," id. at 669, whereas the witness intimidation statute is confined to threats against witnesses — a context that is inherently threatening. Id. at 671 ("a former adverse witness always knows a reason why the defendant might wish him harm").
We concluded that an instruction defining a threat in the context of witness intimidation is sufficient if it is defined as "'to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to another person.'" Id. at 671 (quoting court record). This is precisely the language used in instruction 8 here. Accordingly, we find no instructional error.
Statement of Additional Grounds for Review
Mr. Cruz raises several claims in his statement of additional grounds. He first asserts that while he was in jail he had insufficient time with counsel to prepare for trial. He also complains that defense counsel failed to raise the fact that the 1997 videotape of Mr. Hudlemeyer was altered by a detective. Both claims are based on evidence outside the record and therefore cannot be considered on appeal. See In re Pers. Restraint of Waggy, 111 Wn. App. 511, 518, 45 P.3d 1103 (2002). However, they can be raised in a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
Next, Mr. Cruz asserts that the trial court violated his due process rights by not allowing the jury to view the videotape. He contends that the videotape would have revealed that Mr. Hudlemeyer was lying about the events in the motel room.
At trial, defense counsel objected to Detective Ricketts' testimony relating to the videotape, arguing the best evidence rule required the jurors to view the tape for themselves. The court overruled the objection, finding the objection went to the weight of the detective's testimony.
This decision was well within the trial court's discretion. State v. Forrester, 21 Wn. App. 855, 587 P.2d 179 (1978). The best evidence rule provides that the original is not required and other evidence of the contents of a writing or recording is admissible if all originals are lost or have been destroyed. ER 1004; State v. Detrick, 55 Wn. App. 501, 503, 778 P.2d 529 (1989). Here, the best evidence rule did not apply because the videotape was neither lost nor destroyed.
Mr. Cruz alleges that the tape should have been admitted because it establishes that Mr. Hudlemeyer lied at trial. However, he failed to make this specific argument below, thus precluding our review of it. ER 103(1); State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985) (even if an objection is made at trial, a party may assign error in the appellate court only on the specific ground made at trial).
Finally, Mr. Cruz argues that the trial court erred by allowing the State to add a second count of witness intimidation on the morning of trial. He complains that this allowed the jury to hear Mr. Hudlemeyer's mother's testimony, which violated Mr. Cruz's due process rights.
We review the trial court's grant of a motion to amend an information for abuse of discretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995). A trial court may allow the amendment of the information at any time before the verdict as long as there is no prejudice to the defendant. CrR 2.1(d); State v. Schaffer, 120 Wn.2d 616, 620-21, 845 P.2d 281 (1993). Mr. Cruz has the burden of showing prejudice from the amendment. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P.2d 974 (1998).
Apart from noting that the amendment of the information allowed Mr. Hudlemeyer's mother to testify, Mr. Cruz does not explain how the amendment prejudiced him. At trial, he did not seek a continuance, which is evidence of lack of surprise and prejudice. State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982); State v. Brown, 74 Wn.2d 799, 801, 447 P.2d 82 (1968) ("If defendant was misled or surprised by the amendment of the information she was entitled to move for a continuance to secure time to prepare her defense.").
Further, "[w]here the principal element in the new charge is inherent in the previous charge and no other prejudice is demonstrated, it is not an abuse of discretion to allow amendment." Gosser, 33 Wn. App. at 435; see also Schaffer, 120 Wn.2d at 622 (amendment allowed where new theory presented in the amended information arose out of the same general factual circumstances).
Here, the trial court permitted the State to substitute a second count of witness intimidation for the original charge of second degree extortion. The court noted that the conduct alleged in the new charge arose from the "same course of interaction between these people as the original count of extortion second degree." RP at 8. Additionally, the record shows that the prosecutor informed defense counsel that this charge would be added if Mr. Cruz refused the plea offer. On this record, the trial court did not abuse its discretion in allowing the State to amend the information.
Affirmed.
A majority of the panel has determined that 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.
SWEENEY, J. and BROWN, J., concur.