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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 67631-8-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
       v.                                   )       UNPUBLISHED OPINION
                                            )
OSCAR ARMANDO ESCOBAR,                      )
                                            )
                      Appellant.            )       FILED: June 11, 2012
                                            )

       Leach, C.J.  --  Oscar Escobar appeals his judgment and sentence for first 

degree kidnapping, first degree burglary, first degree robbery, second degree 

assault, and felony harassment on multiple grounds.  Specifically, he challenges 

(1) the adequacy of the information, (2) the trial court's failure to instruct the jury 

on a "true threat" and the need for unanimity on an alternative means charge, (3)

the sufficiency of the evidence, and (4) the effectiveness of his trial counsel.  He 

also contends that his conviction for second degree assault violates the 

prohibition against double jeopardy.  

       The State appropriately concedes that we should reverse the conviction 

for robbery because the court instructed the jury on an alternative means not 

alleged in the information.  Because "true threat" is not an element of felony 

harassment, Escobar's other challenge to the information fails.  The trial court's 

failure to instruct the jury that the crime of harassment requires a "true threat" 

NO. 67631-8-I / 2

was harmless beyond a reasonable doubt.  Because substantial                   evidence 

supported each alternative means of burglary alleged, a unanimity instruction 

was not required.  The record contains insufficient evidence to support the 

kidnapping conviction because it does not show restraint and movement of the 

victim with a purpose independent of Escobar's intent to commit assault.

Because Escobar fails to demonstrate deficient performance and prejudice from

the challenged conduct of his trial counsel, his claim fails.  Sufficient evidence 

supports his second degree assault conviction.  Because we reverse the robbery 

conviction, Escobar's double jeopardy claim fails.

                                        FACTS

       Early in the evening on February 4, 2008, Escobar went to Rigoberto 

Hernandez's apartment looking for someone named "Justin."             After Hernandez 

said he did not know "Justin," Escobar pulled a gun and entered the apartment.  

Escobar put the gun to Hernandez's head and threatened to kill him if he did not 

tell Escobar where Justin was.  As they entered the kitchen, Escobar ordered 

Hernandez to give him a cordless phone from the counter.  Escobar dialed a 

number and forced Hernandez to speak to the woman who answered the phone.  

Hernandez does not speak English fluently and did not understand everything 

Escobar instructed him to say; he also did not understand the woman's 

responses.  After the woman (later identified as Escobar's wife) hung up, 

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NO. 67631-8-I / 3

Escobar continued to walk around the apartment looking for Justin, keeping 

Hernandez at gunpoint the entire time.  When Escobar lowered the gun to open 

a closet door, Hernandez ran out of the apartment.

       Hernandez ran down the stairs and into the parking lot, where he found 

his brother and a friend sitting in a parked car.  Hernandez got into the car, and 

they drove away.  As they left the parking lot, he saw Escobar standing next to a 

Mitsubishi Eclipse.  That car followed them for a while before they lost sight of it.  

Then Hernandez called 911 and met with police.  When police escorted 

Hernandez home, he found that his cordless phone was missing from his 

apartment.  Later, a neighbor told police that he had seen a Hispanic male 

running down the stairs of the apartment complex, followed soon after by 

another Hispanic male carrying a cordless phone.  The witness did not 

remember if the second man was carrying a gun, and he could not positively 

identify Escobar or Hernandez as the men he had seen.

       Police arrested Escobar several hours later at the home of his mother-in-

law, Rita McDonald.  He smelled of alcohol and seemed intoxicated, but not 

enough to impair his speech.  Officers read Miranda  warnings to Escobar

twice -- first when putting him into the patrol car and again in an interrogation 

room at the police station.  At the station, Escobar signed a written Miranda 

waiver and spoke with Officer Jeff Martin.  Escobar stated, "I f --  -- ed up, okay.  I 

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NO. 67631-8-I / 4

went into the apartment looking for Justin.  I'm a jealous man.  I asked the guy 

where he was.  He told me Justin didn't live here -- he didn't live there and I 

didn't believe him."   Escobar later stated, "I'm sorry for what I did.  I made a 

mistake.  Take me to jail," at which point Martin terminated the interview.

       The State charged Escobar with kidnapping, robbery, burglary, assault, 

and harassment.  The jury convicted him on all charges.  Escobar appeals.

                                      ANALYSIS

       Escobar challenges the robbery and harassment convictions for alleged 

charging errors.  First, he argues that the trial court improperly instructed the jury 

on an uncharged alternative means of committing robbery.  The amended 

information charged only one means of committing first degree robbery -- that 

"the defendant displayed what appeared to be a firearm or other deadly 

weapon."    However, the "to convict" instruction included two alternative means: 

"the defendant was armed with a deadly weapon or displayed what appeared to 

be a firearm or other deadly weapon."         The State concedes reversible error.  

Because a criminal defendant cannot be tried for an uncharged offense,1 we 

accept the State's concession and reverse the robbery conviction.2  

       1 State v. Bray, 52 Wn. App. 30, 34, 756 P.2d 1332 (1988) (citing State v. 
Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942)).
       2 Because we accept the State's concession and reverse the robbery 
conviction, Escobar's claim that the assault conviction violates double jeopardy 
becomes moot.  Therefore, we do not consider it here.  Our failure to consider 
this claim is without prejudice to Escobar's ability to assert it if he is again 
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NO. 67631-8-I / 5

       Escobar also argues that "true threat" is an essential element of the crime

of harassment,3 which must be pleaded in the information.           In State v. Tellez,4

we held that the "constitutional concept of 'true threat' merely defines and limits 

the scope of the essential threat element in the felony . . . harassment statute 

and is not itself an essential element of the crime" and need not be included in 

the charging document.       Thus, Escobar's  challenge to the sufficiency of the 

information to charge harassment fails.

       Escobar next asserts that the court erred by failing to instruct the jury that 

the crime of harassment requires a "true threat."5       RCW 9A.46.020 provides in 

relevant part: 

       (1) A person is guilty of harassment if:
              (a) Without lawful authority, the person knowingly threatens:
              (i) To cause bodily injury immediately or in the future to the 
       person threatened or to any other person; [and]
              . . . .
              (b) The person by words or conduct places the person 
       threatened in reasonable fear that the threat will be carried out.
              . . . .
              [(2)](b) A person who harasses another is guilty of a class C 
       felony if . . . the person harasses another person under subsection 
       (1)(a)(i) of this section by threatening to kill the person threatened.

convicted of robbery on remand.
       3RCW 9A.46.020(1)-(2).
       4141 Wn. App. 479, 484, 170 P.3d 75 (2007).
       5 Escobar failed to raise this error below, but he may raise for the first time
on appeal the absence of a jury instruction on the true threat requirement.        State 
v. Schaler, 169 Wn.2d 274, 287-88, 236 P.3d 858 (2010).

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NO. 67631-8-I / 6

       To avoid an unconstitutional infringement of protected speech, this statute 

prohibits only true threats.6  In State v. Schaler,7 our Supreme Court held a jury 

must be instructed about the true threat requirement; the State "must establish 

that a reasonable person in the defendant's position would foresee that his 

statements or acts would be interpreted as a serious expression of intention to 

carry out the threat" to prove felony harassment.  The challenged instruction in 

Schaler read,  "'A person threatens "knowingly" when the person subjectively 

intends to communicate a threat.'"8     Because this instruction required a knowing 

mens rea for         the conduct (communicating) and the circumstances 

(communicating an intent to kill) but did not require any mens rea about the 

result (that the victim reasonably feared the threat would be carried out), the 

court determined that a jury could have convicted Schaler on something less 

than a true threat.9  

       Escobar contends that Schaler requires reversal of his felony harassment

conviction.    Because the challenged instructional error was harmless, we 

disagree.  "A constitutional error is harmless if the appellate court is convinced 

beyond a reasonable doubt that any reasonable jury would have reached the 

same result in the absence of the error."10        Here, despite the lack of a "true 

       6 State v. Kilburn, 151 Wn.2d 36, 41, 84 P.3d 1215 (2004).
       7 169 Wn.2d 274, 292, 236 P.3d 858 (2010).
       8 Schaler, 169 Wn.2d at 285.

       9Schaler, 169 Wn.2d at 286-87. 
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NO. 67631-8-I / 7

threat" instruction, the jury could have found only that Escobar acted with the 

intent that Hernandez believe he meant to kill him.  His threat  to kill Hernandez 

and the actions that accompanied that threat -- putting a gun to the victim's head 

and keeping the gun on him throughout the entire incident -- establish that any 

reasonable jury would have found both that Escobar intended the threat to be 

taken seriously and that Hernandez would have indeed taken the threat 

seriously.  

       Escobar claims that the jury could have determined from his intoxication

that his threats "were hyperbole or puffery rather than serious threats to kill."  

But the   jury heard no evidence from which it could reasonably              reach this 

conclusion.  Escobar told Hernandez that he wanted to kill someone; if he did 

not find Justin, then he would kill Hernandez.  Escobar pulled a bundle of cash 

out of his pocket and told Hernandez that he would take off with the money if he 

killed Hernandez.  He pointed a gun at Hernandez's head and kept it pointed at 

him until he escaped.  Afterward, Escobar told McDonald that he had gone to 

Justin's house with a gun.  He intended to scare Justin away from his wife.  He 

pointed his gun at Justin's brother (actually Hernandez).

       On appeal, Escobar contends that he merely engaged in "drunk talk."           But 

Escobar's threats included much more than talk.  They included the display and 

       10 State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985).
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NO. 67631-8-I / 8

pointing of a gun that demonstrated to Hernandez the immediate ability to carry 

out the verbal threat.  We are persuaded beyond a reasonable doubt that any 

reasonable jury given a "true threat" instruction and hearing the trial evidence 

would have convicted Escobar.

       Contrary to Escobar's briefing, State v. Johnston11 does not support his 

claim.   In  Johnston,  a drunken airline passenger threatened to blow up the 

airport after a flight attendant confiscated his personal liquor and removed him 

from the plane.12  Our Supreme Court held that a bomb threat statute would be 

overbroad unless limited to true threats.         It reversed Johnston's conviction 

because the trial court failed to instruct the jury about this limitation.13  The State 

conceded  this error was not harmless.  While the Johnston court described this 

concession as appropriate,14       it did not address       whether  the    defendant's

intoxication made it so.    Therefore, Escobar's analogy of his case to Johnston

fails. 

       Next, Escobar challenges the sufficiency of the evidence to support  the 

kidnapping and assault convictions.  When reviewing a sufficiency challenge, we 

view the evidence in the light most favorable to the prosecution and ask whether 

any rational trier of fact could have found the essential elements of the crime 

       11 156 Wn.2d 355, 127 P.3d 707 (2006).
       12 Johnston, 156 Wn.2d at 357-58.
       13 Johnston, 156 Wn.2d at 366.
       14 Johnston, 156 Wn.2d at 364.
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NO. 67631-8-I / 9

beyond a reasonable doubt.15         We draw all reasonable inferences from the 

evidence in favor of the State.16       A defendant challenging the sufficiency of 

evidence admits the truth of the State's evidence.17  

       To convict Escobar for first degree kidnapping, the State must prove he 

intentionally abducted Hernandez with the "intent to facilitate the commission of 

assault in the second degree or flight thereafter."18    (Emphasis added.)  "Abduct"

means "to restrain a person by either (a) secreting or holding him or her in a 

place where he or she is not likely to be found, or (b) using or threatening to use 

deadly force."19   "Restrain" means  "to restrict a person's movements without 

consent and without legal authority in a manner which interferes substantially 

with his or her liberty."20   But our Supreme Court has held that "the mere 

incidental restraint and movement of [a] victim during the course of another 

crime" cannot support a separate kidnapping charge where the movement and 

       15 State v. Lord, 117 Wn.2d 829, 881, 822 P.2d 177 (1991).
       16 State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
       17 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       18 RCW 9A.40.020 states that kidnapping is an intentional abduction with 
the intent to facilitate the commission of a felony, but the State's amended 
information specified the crime of assault, and the jury instructions reflected the 
charging document.  Because unobjected-to jury instructions become the law of 
the case, we do not address the possibility that Escobar may have intentionally 
abducted Hernandez with the intent to commit some other felony, i.e., burglary, 
robbery, or harassment.  State v. Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 
(1995).
       19 RCW 9A.40.010(1).
       20 RCW 9A.40.010(6).
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NO. 67631-8-I / 10

restraint had "no independent purpose or injury."21         Whether a kidnapping is 

incidental to the commission of other crimes is a fact-specific determination.22  

       The State argues that Escobar's restraint of Hernandez had an 

independent purpose because the restraint continued even after Escobar had 

taken the cordless phone.  However, our decision in  State v. Manchester23

directly conflicts with the State's position; we held that a robbery is not complete 

until the assailant has made his escape.  Furthermore, in State v. Korum,24

Division Two held that a defendant's kidnapping convictions were incidental to 

the robberies as a matter of law.  Korum and several friends robbed the homes 

of several known drug dealers, binding the residents with duct tape and zip 

ties.25 The State charged Korum with multiple counts of robbery, burglary, and 

kidnapping.26   Reversing the kidnapping convictions, the court reasoned, "That 

all robberies necessarily involve some degree of forcible restraint, however, 

does not mean that the legislature intended prosecutors to charge every robber 

with kidnapping."27 Based on Manchester and Korum, Escobar  did not complete 

       21 State v. Brett, 126 Wn.2d 136, 166, 892 P.2d 29 (1995).
       22 State v. Elmore, 154 Wn. App. 885, 901, 228 P.3d 760, review denied, 
169 Wn.2d 1018, 238 P.3d 502 (2010).  
       23 57 Wn. App. 765, 770, 790 P.2d 217 (1990).
       24 120 Wn. App. 686, 689, 86 P.3d 166 (2004), rev'd on other grounds, 
157 Wn.2d 614, 141 P.3d 13 (2006).
       25 Korum, 120 Wn. App. at 690-92.
       26 Korum, 120 Wn. App. at 692-93.
       27 Korum, 120 Wn. App. at 705.
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NO. 67631-8-I / 11

the robbery until he actually left the apartment with the phone, and the restraint 

used to abduct Hernandez was incidental to the taking.  We agree that the State 

lacked sufficient evidence to support Escobar's kidnapping conviction.

       Escobar also challenges the sufficiency of the "deadly weapon" evidence 

supporting the second degree assault conviction.  Count IV of the amended 

information charged Escobar with intentionally assaulting Hernandez with a 

deadly weapon -- a handgun.  Consistent with RCW                 9A.36.021(1)(c), the "to 

convict"  instruction for second degree assault required the State to prove 

beyond a reasonable doubt that "the defendant assaulted . . . Hernandez with a 

deadly weapon."    Escobar argues that the court's instructions required the State 

to  prove that the object Escobar used to threaten Hernandez was a deadly 

weapon under the circumstances in which it was used,28 and the State failed to 

do so.  

       Sufficient evidence supports a deadly weapon finding if a witness to the 

crime has testified to the presence of a gun.29     Hernandez testified that Escobar 

held a gun to his head, that it was small, and that it was a real gun, rather than 

someone's hand held up as if imitating a gun.  Officer Martin testified that 

       28 Jury instruction 19 defined a deadly weapon as "any firearm, whether 
loaded or unloaded, which under the circumstances in which it is used, 
attempted to be used, or threatened to be used, is readily capable of causing 
death or substantial bodily injury."  
       29 State v. Faust, 93 Wn. App. 373, 381 n.6, 967 P.2d 1284 (1998).
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NO. 67631-8-I / 12

Hernandez, communicating through a bilingual police officer, originally 

described the gun as a small, black, semiautomatic handgun.  Although 

Hernandez could not remember what the gun looked like at trial, the jury could 

infer that this was due to a simple lack of memory, rather than the absence of a 

gun.    Therefore, sufficient evidence supports         the  second degree assault 

conviction.

       Escobar  also  challenges his burglary        conviction,  claiming insufficient 

evidence supports one of the means submitted to the jury without any way to 

determine that the jury unanimously relied upon a means for which there was 

sufficient evidence.30   Criminal defendants have a right to a unanimous jury 

verdict31 that may be raised for the first time on appeal.32  In alternative means 

cases, where an offense may be committed in more than one way, the jury must 

unanimously agree as to guilt for  the crime charged but need not expressly 

agree  as to the means, so long as substantial evidence supports each 

alternative.33  In this circumstance, we "infer that the jury rested its decision on a 

unanimous finding as to the means."34

       30Escobar makes the same argument for his robbery conviction, but we 
have reversed it on other grounds.
       31 State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994).
       32 State v. Furseth, 156 Wn. App. 516, 519 n.3, 233 P.3d 902, review 
denied, 170 Wn.2d 1007, 245 P.3d 227 (2010).
       33 State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988) (citing 
State v. Whitney, 108 Wn.2d 506, 511, 739 P.2d 1150 (1987)).
       34 Ortega-Martinez, 124 Wn.2d at 707-08. 
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NO. 67631-8-I / 13

       To convict Escobar of first degree burglary, the State had to prove that he 

entered or remained unlawfully in the apartment with the intent to commit a crime 

and that in so entering or while in the building, he was armed with a deadly 

weapon or assaulted a person.  As discussed above, the State presented 

sufficient evidence to support each alternative means; therefore, a unanimity 

instruction was not required.  

       Escobar also maintains that he received ineffective assistance of counsel.  

Claims of ineffective assistance present mixed questions of law and fact that the 

courts review de novo.35      To  prove ineffective assistance, a defendant must 

show deficiency as well as prejudice.36  Counsel's representation is deficient if it 

falls below an objective standard of reasonableness.37  "The reasonableness of 

counsel's challenged conduct must be viewed in light of all of the circumstances, 

on the facts of the particular case as of the time of counsel's conduct."38  

Prejudice occurs when it is reasonably probable that but for counsel's errors 

"'the result of the proceeding would have been different.'"39        There is a strong 

presumption that counsel was effective, and the defendant bears the burden of 

demonstrating that there was no legitimate strategic or tactical reason for the 

       35 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
       36 State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986) .
       37 State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
       38 Lord, 117 Wn.2d at 883 (citing Strickland v. Washington, 466 U.S. 668, 
689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
       39 Lord, 117 Wn.2d at 883-84 (quoting Strickland, 466 U.S. at 694).
                                          -13- 

NO. 67631-8-I / 14

challenged conduct.40  

       Escobar argues his  counsel        was ineffective when he       elicited Officer 

Martin's testimony about Hernandez's original detailed description of the gun to 

impeach Hernandez's trial testimony, without requesting an instruction limiting 

the use of this evidence.  But during the trial, the defense used this testimony for 

more than impeachment purposes.  Further, Hernandez's description of the gun 

was only one of many pieces of evidence that Escobar was armed with a gun.  

Escobar fails to show deficient performance or prejudice on this allegation.  

       Next he claims counsel was deficient by failing to make  a hearsay 

objection to Rita McDonald's statement that Escobar must have told her he had 

taken a gun to Justin's house.  Because this testimony is admissible under ER 

801(d)(2) as an admission by party-opponent, counsel did not err by failing to 

object to it.  

                                        CONCLUSION

       We vacate the kidnapping and robbery convictions but otherwise affirm

and remand for further proceedings consistent with this opinion.   

WE CONCUR:

       40 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
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NO. 67631-8-I / 15

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