State v. Munoz-Rivera

190 Wash.App. 870

361 P.3d 182

STATE of Washington, Respondent,

v.Adrian MUNOZ–RIVERA, Appellant.

No. 32356–1–III.

Court of Appeals of Washington, Division 3.

Oct. 29, 2015.

Susan Marie Gasch, Gasch Law Office, Spokane, WA, for Appellant.

Brian Hultgrenn, Franklin Co. Prosecutors Office, Pasco, WA, for Respondent.

Opinion

LAWRENCE–BERREY, J.

¶ 1 Adrian Munoz–Rivera appeals his convictions for second degree assault and felony harassment of nine-year-old K.T., his live-in girl friend's daughter. We review his six contentions and affirm his conviction and term of sentence. We however remand for the trial court to (1) strike that portion of the sentence authorizing a 10–year domestic violence protection order in favor of K.T., (2) strike various community custody conditions that are not crime related, (3) conduct a meaningful colloquy to determine whether Mr. Munoz–Rivera has the present or future ability to pay discretionary legal financial obligations (LFOs), and (4) correct a scrivener's error.

FACTS

¶ 2 In November 2013, Adrian Munoz–Rivera was living with Maria Tamayo and her nine-year-old daughter, K.T. They had been living together for approximately 19 months. Mr. Munoz–Rivera and Ms. Tamayo had a difficult relationship, which escalated to physical violence when Mr. Munoz–Rivera drank alcohol.

¶ 3 The night of November 2, 2013, the three returned home from a friend's birthday party. Mr. Munoz–Rivera and Ms. Tamayo had been drinking. While preparing to go to bed, the two argued over various things, including an incident that occurred at the party earlier in the night. When Mr. Munoz–Rivera made advances toward Ms. Tamayo, she attempted to leave their bedroom. Mr. Munoz–Rivera blocked the door, pushed her onto the bed several times, hit her, tried to choke her, and tried to take her telephone away because she wanted to call 911. Ms. Tamayo began banging on the walls and screaming for her daughter. When K.T. approached the bedroom, Ms. Tamayo told her to get help. Mr. Munoz–Rivera attempted to stop K.T. from getting help, but both Ms. Tamayo and K.T. managed to open the door and go outside down the stairs.

¶ 4 Ms. Tamayo began to knock on a neighbor's door to get help, but Mr. Munoz–Rivera grabbed K.T. by the hair and dragged her back up the stairs. Mr. Munoz–Rivera, armed with a knife, forced K.T. inside the apartment. Once inside, he held the knife to K.T.'s neck. Ms. Tamayo ran back to the apartment. When Ms. Tamayo opened the door to the apartment, she saw Mr. Munoz–Rivera holding a knife to K.T.'s neck. Mr. Munoz–Rivera asked Ms. Tamayo if she wanted to see her daughter die. Ms. Tamayo asked Mr. Munoz–Rivera to think about what he was doing. Mr. Munoz–Rivera moved to the side, and K.T. moved away from him. While still holding the knife, Mr. Munoz–Rivera asked Ms. Tamayo again if she wanted to see her daughter die.

¶ 5 After a time, Mr. Munoz–Rivera put the knife away. K.T. went to her room and took the screen off her window. She waved her hands in front of the window to try and get the attention of some people outside the building. During the commotion, a downstairs neighbor called the police. Police arrived quickly.

¶ 6 When City of Pasco Patrol Officer Corey Smith responded to the scene he could see K.T. in the window of the apartment waving at him. When he approached, K.T. told him, “[S]hush, my step-dad is trying to kill me.” Report of Proceedings (RP) at 80. Officer Smith went to the door of the apartment and saw Ms. Tamayo standing there with blood on her face. He saw signs of struggle in the apartment. Mr. Munoz–Rivera was in the bedroom sitting on the bed and buttoning his shirt. Officer Smith observed a bite mark on Ms. Tamayo's inner thigh. Ms. Tamayo also had injuries to her face and neck.

¶ 7 Mr. Munoz–Rivera was arrested. While in jail, Mr. Munoz–Rivera attempted to contact Ms. Tamayo by telephone and letter. In the letters, he sought Ms. Tamayo's help in obtaining an attorney and defusing the allegations against him.

¶ 8 The State charged Mr. Munoz–Rivera with second degree assault of K.T. while armed with a deadly weapon, second degree assault of Ms. Tamayo who was a “family or household member,” felony harassment of K.T. by threatening to kill her, and tampering with a witness as to Ms. Tamayo. Clerk's Papers (CP) at 118–19. The case proceeded to jury trial on March 5–7, 2014.

¶ 9 At trial, K.T. testified under her full name and stated she was 10 years old and had recently had a birthday. K.T. also testified she thought Mr. Munoz–Rivera was going to kill her when he was holding the knife to her neck. Ms. Tamayo testified that while Mr. Munoz–Rivera was pointing the knife at K.T. and asking if she wanted to see her daughter die, she felt very afraid for K.T. Mr. Munoz–Rivera denied threatening K.T. or pointing a knife at her.

¶ 10 The court gave the State's proposed “to convict” instruction for second degree assault. It provided:

INSTRUCTION NO. 11

To convict the defendant of the crime of Assault in the Second Degree, as charged in Count I, each of the following two elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about November 3, 2013, the defendant assaulted K.T. (DOB: 11/27/03) with a deadly weapon;(2) That this act occurred in the State of Washington.

If you find from the evidence that each of these elements has been proven beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to either element (1) or (2), then it will be your duty to return a verdict of not guilty.

CP at 42.

¶ 11 The court also gave the State's “to convict” instruction for felony harassment. It provided:

INSTRUCTION NO. 17

To convict the defendant of the crime of Harassment, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about November 3, 2013, the defendant knowingly threatened to kill K.T. (DOB: 11/27/03) immediately or in the future;

(2) That the words or conduct of the defendant placed K.T. (DOB: 11/27/03) in reasonable fear that the threat to kill would be carried out;

(3) That the defendant acted without lawful authority; and

(4) That the threat was made or received in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

CP at 48.

¶ 12 The jury found Mr. Munoz–Rivera guilty of second degree assault of K.T. while armed with a deadly weapon, felony harassment of K.T., and tampering with a witness as to Ms. Tamayo. The jury found Mr. Munoz–Rivera not guilty of second degree assault of Ms. Tamayo. The jury found by special verdict that Mr. Munoz–Rivera and Ms. Tamayo were members of the same family or household.

¶ 13 At sentencing, the State requested an exceptional sentence and asked that the sentence for tampering with a witness be run consecutively with the other two charges. The court instead entered a standard range sentence with the three sentences running concurrently. However, the judgment and sentence included a finding that “[s]ubstantial and compelling reasons exist which justify an exceptional sentence ... above the standard range for Count I.” CP at 11.

¶ 14 The judgment and sentence also included a condition that Mr. Munoz–Rivera have no contact with K.T. and Ms. Tamayo for 10 years. The trial court issued a 10–year domestic violence no-contact order in conjunction with the sentence naming K.T. and Ms. Tamayo as the protected victims. The no-contact order included a finding that Mr. Munoz–Rivera's relationship with the protected parties was as a “current or former cohabitant as intimate partner” and as an “other family or household member as defined in RCW 10.99.” CP at 4.

¶ 15 Additionally, the court imposed $1,581.25 of discretionary costs consisting of a $381.25 sheriff service fee, a $700.00 fee for a court appointed attorney, and a $500.00 fine under RCW 9A.20.021. The court ordered $1,502.42 of mandatory costs consisting of a $452.42 fee as restitution to the crime victims compensation program, a $500.00 victim penalty assessment, a $200.00 criminal filing fee, a $250.00 jury demand fee, and a $100.00 deoxyribonucleic acid (DNA) collection fee. Mr. Munoz–Rivera's LFOs totaled $3,083.67. The judgment and sentenced contained the following preprinted finding relating to Mr. Munoz–Rivera's ability to pay LFOs:

The court has considered the total amount owing, the defendant's past, present and future ability to pay legal financial obligations, including the defendant's financial resources and the likelihood that the defendant's status will change. The court finds: ... [t]hat the defendant is an adult and is not disabled and therefore has the ability or likely future ability to pay the legal financial obligations imposed herein. RCW 9.94A.753.

CP at 11. Finally, the court imposed an 18–month term of community custody that included several conditions.

¶ 16 Mr. Munoz–Rivera appeals, contending: (1) the State failed to prove beyond a reasonable doubt the elements of second degree assault and felony harassment as instructed to the jury, (2) the trial court lacked authority to designate K.T. as a protected party of a domestic violence no-contact order, (3) Mr. Munoz–Rivera's counsel was ineffective for failing to challenge his offender score, (4) the trial court erred by imposing certain community custody conditions that are not crime related, (5) the trial court erred in imposing discretionary LFOs without considering Mr. Munoz–Rivera's current or future ability to pay as directed by RCW 10.01.160(3), and (6)the judgment and sentence contains a scrivener's error that should be corrected.

ANALYSIS

1. Whether the State's identification of the...