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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent, v. GABRIEL NIGHTINGALE, Appellant. ) ) ) ) ) ) ) ) ) NO. 64823-3-I DIVISION ONE

UNPUBLISHED OPINION FILED: November 14, 2011

Lau, J. -- Gabriel Nightingale appeals his conviction for felony harassment and intimidating a public servant, arguing insufficient evidence supports the jury's findings that Agent Patrick Fuller feared that he would carry out his threat and that he attempted to influence Officer Michael Munden's official action. He also contends that the trial court violated his right to a public trial by considering the State's motion to amend the information and his own questions regarding his speedy trial rights while in chambers. Because sufficient evidence supports the convictions and because the issues decided in chambers were purely ministerial matters, we affirm. We also reject the claims Nightingale raises in his statement of additional grounds for review. FACTS Late on March 24, 2009, Marla Mobley approached United States Border Patrol Agent Adan Gonzales and told him that she was afraid of a man who had been living

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with her because he was off his medication and would not leave when she asked. Agent Gonzales called the Blaine Police Department for assistance. Officer Munden responded and spoke to Mobley, who was distraught, shaking, and having trouble speaking. Mobley reported that Gabriel Nightingale had been living with her and he threatened to kill her if she didn't give him $500 for drugs. Mobley also explained that she had known Nightingale for years, that he had threatened her in the past, and that he had a fantasy about being killed by police officers. Mobley asked Officer Munden to go to her apartment and talk Nightingale into going to a hospital for his medication. Officer Munden asked Officer Tom Erickson, Agent Gonzales, and Agent Fuller to assist him at Mobley's apartment. When they arrived, Officer Munden knocked and announced they were police. When there was no response the second time, Officer Munden tried the door and found it unlocked. He opened the door and yelled loudly that they were police officers as they walked inside. The room was dark except for a dim light from a bedroom. Officer Munden opened the bedroom door and saw Nightingale sitting on a mattress on the floor and pointing a flashlight at the officers. When Officer Munden started to explain why he was there, Nightingale told him, "[S]hut the fuck up." Verbatim Report of Proceedings (Dec. 9, 2009) (VRP) at 64. As Officer Munden tried to explain Mobley's concerns and ask for his side of the story, Nightingale continued to interrupt with the same phrase. Nightingale continued to eat from a bowl and appeared to ignore the officers until he began a long rant about Mobley that Officer Munden found difficult to understand. Nightingale appeared to become more and more angry, until he said, -2-

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"Fuck you, man, get the fuck out of my house or shoot me in the head. If you don't, I'm going [to] kill you. I'll kill all of you." VRP at 67. Then Nightingale stood up, turned to face the officers as if he was ready to fight, and said, "Either arrest me or get the fuck out." [VRP 12/9/09 72] Officer Munden observed that Nightingale appeared to be six feet seven or eight inches tall and well over 200 pounds. Officer Munden directed Nightingale to turn around and put his hands behind his back, but Nightingale did not comply until Officer Munden drew his taser, activated the laser light, and aimed it at Nightingale. After Officer Erickson handcuffed Nightingale, the officers took him outside to the police car, where Nightingale said to them, "I will kill you and I will eat your hearts." [VRP 12/9/09 76] The State charged Nightingale with four counts of felony harassment and one count of intimidating a public servant. The jury convicted Nightingale as charged, and the trial court imposed a standard range sentence. Nightingale appeals. DISCUSSION Nightingale first contends that the State failed to present sufficient evidence to support the felony harassment charge as to Agent Fuller and the single count of intimidating a public servant. In reviewing sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Hagler, 74 Wn. App. 232, 234

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