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FILED
April 9, 2013

In the Office of the Clerk of Court
W A State Court of Appeals, Division III


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, Respondent, v. JESUS VIDALES MORALES, Appellant. SIDDOWAY, J. ) ) ) ) ) ) ) ) )

No. 30235-1-111

PUBLISHED OPINION

The meaning of the harassment statute, RCW 9A.46.020, is

central to Jesus Morales's appeal of his conviction of two counts of felony harassment. He was convicted on one count for a harassment offense against the mother of his children, from whom he was estranged. His conviction on the other count might have been for a second harassment offense against her or might have been for a harassment offense against the third party to whom it was communicated. We agree with Mr. Morales that the criminal information did not put him on notice of one means advanced at trial by the State. We also agree that prosecuting him for a second count, with the mother of his children as the asserted victim, would violate double jeopardy. We reverse his conviction on the problematic count and remand for resentencing.

No.30235-I-II1 State v. Morales

FACTS AND PROCEDURAL BACKGROUND Jesus Morales and Yanett Farias have three children in common but had not lived together for a year and a half as of February 2011. On February 14, Mr. Morales stopped at the home of Ms. Farias's sister and the sister's husband, Trinidad Diaz, where he spoke to Mr. Diaz, venting his anger at Ms. Farias. Mr. Morales believed that Ms. Farias had taken $4,000 belonging to him. He had stopped at her home earlier that day to speak with her and, although she was home, she refused to open the door. According to Mr. Diaz, Mr. Morales was so angry in speaking about Ms. Farias that he was trembling. He told Mr. Diaz that when Ms. Farias dropped her children off at day care the next morning, he would be waiting for her and kill her. Mr. Morales's conversation with Mr. Diaz lasted about three minutes. When it was over, Mr. Diaz, who feared that Mr. Morales would follow through with his threats, told his wife to call her sister and relate what Mr. Morales had said. Ms. Farias's sister called Ms. Farias, Ms. Farias contacted the police, and later that night police spoke with Ms. Farias and Mr. Diaz about the threats. The next morning, Ms. Farias took her children to day care at the home of the baby-sitter, Araceli Castel, as usual, although with a plan for avoiding Mr. Morales ifhe was there when she arrived. She told the children to watch for their father and tell her if they saw him. The children knew why she was concerned, because her ll-year-old

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No.30235-I-II1 State v. Morales

daughter had acted as interpreter when Ms. Farias was contacted by police the night before. As soon as Ms. Farias pulled up to Ms. Castel's home, the children pointed out Mr. Morales's truck across the street. He pulled out and drove his truck toward hers. Ms. Farias told the children to run inside; they quickly got out of the truck and ran into Ms. Castel's home. The children told Ms. Castel that their father was threatening their mother. Ms. Castel helped the I1-year-old call the police and then watched the altercation between Mr. Morales and Ms. Farias from her front door. By then, Mr. Morales and Ms. Farias were still in their respective trucks, with Mr. Morales's truck alongside Ms. Farias's, preventing her 'from leaving. As Ms. Farias tried unsuccessfully to pull out from behind or in front of Mr. Morales's truck, he moved to block her and Ms. Castel heard him yell, "'This is as far as you've gone, you fucking bitch, because I'm going to kill you here.'" Report, of Proceedings (Aug. 11,2011) (RP) at 267. Mr. Morales, whose driver's side window was partly down, was leaning toward Ms. Farias's truck and pointing toward her-perhaps with something in his hand, although no witness claimed to have seen a weapon. Ms. Farias was cowering. Ms. Castel then began yelling at Mr. Morales and he left. After that Ms. Farias came into the house, shaken and crying, and told Ms. Castel, "'I thought they would be killing me today'" and "'[i]f it wouldn't have been for you, he could've killed me.'" RP at 274.

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No. 30235-1-II1 State v. Morales

The State charged Mr. Morales with two counts of felony harassment under RCW 9A.46.020. The amended information stated, as to the first count: On or about February 14,2011, in the State of Washington, without lawful authority, you knowingly threatened to cause bodily injury immediately or in the future to Yanett Farias and the threat to cause bodily injury consisted of a threat to kill Yanett Farias or another person, and did by words or conduct place the person threatened in reasonable fear that the threat would be carried out. Clerk's Papers (CP) at 2. Count two contained identical language, but substituted the date of February 15. At trial, the elements instruction that the State originally proposed to address count one (the February 14 threat) originally read, in part, as follows: To convict the defendant of the crime of Harassment of Another in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about February 14, 2011, the defendant knowingly threatened to kill Yanett Farias immediately or in the future; (2) That the words or conduct of the defendant placed Yanett Farias in reasonable fear that the threat to kill would be carried out. CP at 20. Before the instruction was read and provided to the jury the second numbered element in the instruction was revised to read, "(2) That the words or conduct of the defendant placed Trinidad Diaz &/or Yanett Farias in reasonable fear that the threat to kill would be carried out" (the revision being indicated by italics). CP at 39 (Instruction

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No. 30235

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