State Of Washington, Respondent V. Sergio Donato, Appellant

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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SERGIO AUGUSTIN DONATO,
Appellant.
No. 69538-0-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 3, 2014
Leach, C.J. — In this prosecution for felony harassment and other acts of
domestic violence, the trial court failed to instruct the jury on the "true threat"
requirement for felony harassment. 	Because the error was harmless beyond a
reasonable doubt and because the court acted within its discretion in concluding
that two of the offenses were not the same criminal conduct, we affirm.
FACTS
Based on allegations that Sergio Donato assaulted and threatened to kill
his 	live-in 	girl 	friend, 	Vivian Gonzalez, 	the 	State 	charged 	him with felony
harassment, 	third 	degree 	assault, 	and 	interfering 	with 	domestic 	violence
reporting.
At trial, the court admitted a recording of a 911 call Gonzalez made shortly
after noon on May 1, 2012. 	On the recording, 	Donato and 	Gonzalez can 	be

No. 69538-0-1 / 2
heard speaking in Spanish. 	A translated transcription of the recording admitted
at trial1 states in part as follows:
[Gonzalez] 	Help me.
[Donato] 	To you. . . Nothing will happen to the child. The problem
is with you.
[Gonzalez] 	But it's just that...
[Donato] 	I can't involve the child with anything. . . .
[Gonzalez] 	Please stop! [crying]
[Donato] 	. . . The problem is with you, uh?
[Gonzalez] 	But why do you want to take my son with you?
[Donato] 	The problem is with you bitch! 	Let's go dude.
[Gonzalez] 	You've already been told that.. . [crying]
[Donato] 	If I kill you, I will kill you, I won't do anything to the child.
Uh? Just you.
[Gonzalez] 	[crying]
During the next portion of the recording, 	Donato questioned Gonzalez
repeatedly as to whether she had used her phone to call the police. 	Gonzalez
cried throughout this 	portion of the 	recording. 	The 	transcript ends with the
following statements:
[Donato] 	Did you call the police?
[Gonzalez] 	Please .. . stop!
[Donato] 	Hand me the phone.
[Gonzalez] 	Please . .. just go! Go!
[Gonzalez] 	Let go of me! 	Don't hit me! Please! 	Noooo! No . . . the
child! [Screams] [crying] 	Please . . .
1 The court admitted two different translated transcriptions of the 911 call.
The State's transcription, quoted above, was prepared with forensic audio tools.
The interpreter who prepared the other transcription did not hear the threat to kill
but did not use audio tools and conceded that using them could have captured
more audio detail.

No. 69538-0-1 / 3
[the call was cut off]
Gonzalez did not appear at trial. 	The State's witnesses testified that
Renton 	Police Officer 	Desiree Scott immediately responded 	to the 911 	call.
When she arrived at Gonzalez's home, the front door "flew open," and Gonzalez
ran toward her. 	Gonzalez yelled "help!" and 	cowered 	behind Officer Scott.
According to Scott, Gonzalez was "hysterical" and clutching her son as she ran
from the home. 	Another officer on the scene, Officer Scott Phipps, testified that
Gonzalez bolted from the home like she was "being chased."
Using gestures and fractured English, Gonzalez said through tears that
Donato had just beaten her and that she was afraid. She clutched at her ribs and
pointed out injuries on her head, back, side, and legs. 	She pointed to a belt and
then to a mark on her back that was consistent with a belt mark. 	She showed the
officers a "goose egg bump" on the top of her head, pointed to her foot and then
to Donato, saying, "Kicked head." 	She also pointed to some boots, then to some
of her injuries, and gestured in a manner that indicated she was struck by boots.
Photographs of her injuries were admitted at trial.
Eventually, Donato emerged from the house with a belt draped around his
neck. 	He told Officer Scott that Gonzalez fell off the bed during an argument and
hit her head. 	While he admitted to "some pushing" during the argument, he
denied hitting Gonzalez.

No. 69538-0-1/4
A defense 	investigator 	testified 	that 	a 	few 	weeks 	after the 	incident,
Gonzalez asked a municipal court to dissolve a no-contact order against Donato
that had been issued in another case.
A jury convicted 	Donato as charged. 	At sentencing, 	defense counsel
argued 	that the assault and 	harassment convictions were 	part of the same
criminal conduct and should therefore count as one offense in Donato's offender
score. 	Counsel argued that the offenses "furthered each other in some sort of
grand enterprise." 	The prosecutor countered that, viewed objectively, Donato's
intent changed from one crime to the other. 	The assault, she argued, "wasn't to
further any crime of threat to kill; but, rather, ... to punish her for her acts of
calling the police. 	And so, there is a shift in the criminal objective, or the criminal
intent of the defendant." 	The court agreed with the prosecutor and counted the
crimes separately. 	Donato appeals.
DECISION
Donato first contends he is entitled to a new trial because the trial court
did not give the jury a "true threat" instruction on the felony harassment count.
Our courts have held that to be consistent with constitutional speech protections,

No. 69538-0-1 / 5
statutes criminalizing threatening language can only proscribe "true threats."2 	To
be a "true threat,"
a 	statement 	or 	act 	must 	occur 	in 	a 	context 	or 	under 	such
circumstances where a 	reasonable person, in the position of the
speaker, 	would 	foresee 	that 	the 	statement 	or 	act 	would 	be
interpreted as a serious expression of intention to carry out the
threat rather than as something said in [jest or idle talk] [jest, idle
talk, or political argument].[3]
Donato contends, and the State does not dispute, that the trial court erred in
failing to give the jury an instruction setting forth the true threat requirement. 	We
agree.4
The State argues, however, that the error cannot be raised for the first
time on appeal and was harmless in any event. 	Assuming, without deciding, that
failure to give the instruction was manifest constitutional error,5 we conclude the
error was harmless. 	"A constitutional error is harmless if the appellate court is
convinced 	beyond 	a 	reasonable doubt that any reasonable jury would 	have
2 State v. Allen. 	176 Wn.2d 611, 626, 630, 294 P.3d 679 (2013) (no
constitutional violation occurred where "the jury was instructed as to the true
threat requirement").
3 11 Washington Practice: Washington Pattern Jury Instructions:
Criminal 2.24, at 72 (3d ed. 2008); Allen, 176 Wn.2d at 626.
4 See Allen, 176 Wn.2d at 626-30.
5 Under State v. Schaler, 169 Wn.2d 274, 287-88, 236 P.3d 858 (2010), it
could be argued that omission of the instruction is manifest constitutional error if
the instructions given "allowed the jury to convict. . . based on [the] utterance of
protected speech" and the court could have corrected the error.

No. 69538-0-1 / 6
reached the same result in the absence of the error."6 	Having listened to the 911
recording and reviewed the record, we are convinced beyond a reasonable doubt
that giving the omitted instruction would not have changed the jury's verdict.
The 	911 	transcription 	begins with Gonzalez pleading for 	help. 	Then
Donato, who is apparently in the 	middle of a threatening statement, says to
Gonzalez, "To you. . . Nothing will happen to the child. The problem is with you."
He proceeds to tell Gonzalez that he "can't involve the child with anything" and
that "[t]he problem is with you bitch." 	This is followed by a threat: 	"If I kill you, I
will kill you, I won't do anything to the child. . . . Just you." 	Near the end of the
call, Gonzalez screams, "Let go of me! Don't hit me! Please! Noooo!" 	Donato's
statements are made in an angry tone, and Gonzalez is alternately crying or
screaming throughout the recording. 	Considering the threat in the context of all
the circumstances, no reasonable person in Donato's position could believe that
the threat would be interpreted as anything other than a serious threat.
Donato contends a reasonable person in his position could view the threat
as conditional and therefore not serious. 	But a conditional threat is still a threat
for purposes of criminal harassment,7 and it is a "true threat" if the circumstances
6 State v. Gulov. 104 Wn.2d 412, 425, 705 P.2d 1182 (1985); see also
Schaler, 169 Wn.2d at 288 (failure to give true threat instruction is harmless
"when it is clear that the omission did not contribute to the verdict").
7 See State v. Cross. 156 Wn. App. 568, 580-84, 234 P.3d 288 (2010)
(citing State v. Edwards, 84 Wn. App. 5, 12, 924 P.2d 397 (1996)).

No. 69538-0-1 / 7
convey a genuine intent to harm the person threatened.8 As discussed above,
when viewed 	in context and from the perspective of a 	reasonable person in
Donato's position, the threat can only be viewed as a serious threat. 	The error
was therefore harmless.9
Donato also contends the court abused its discretion in concluding that the
harassment and assault convictions were not the same criminal conduct. 	Crimes
are considered the same criminal conduct if they require the same criminal intent,
are committed at the same time and place, and involve the same victim.10 	We
review a court's same criminal conduct determination for abuse of discretion.11
Here, there is no dispute that the crimes were committed at the same time
and place and involved the same victim. The only issue is whether the offenses
shared the same criminal intent. 	Whether crimes share the same criminal intent
depends on "'the extent to which the criminal intent, objectively viewed, changed
from one crime to the next. . . . This, in turn, can be measured in part by whether
one crime furthered the other.'"12
8See State v. Williams. 144 Wn.2d 197, 211-12, 26 P.3d 890 (2001) (fired
employee's statement to former employer—"Don't make me strap your ass"—
was sufficient, under the circumstances, to prove felony harassment).
9 In light of our conclusion, Donato's claim that his counsel was ineffective
for failing to request the omitted instruction fails.
10RCW9.94A.589(1)(a).
11 State v. Wilson, 136 Wn. App. 596, 613, 150 P.3d 144 (2007).
12 State v. Williams, 135 Wn.2d 365, 368, 957 P.2d 216 (1998) (alteration
in original) (quoting State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994)).
-7-

No. 69538-0-1 / 8
Donato contends his objective intent did not change between the offenses
because the offenses were part of a brief, uninterrupted sequence of events, and
the assault furthered the threat by putting Gonzalez in reasonable fear that the
threat would be carried out. 	But the record also supports a 	conclusion that
Donato's objective intent changed from creating fear in Gonzalez to punishing
her for calling the police after the threat. 	Given these reasonable inferences from
the evidence, the trial court did not abuse its discretion in ruling that the offenses
were not the same criminal conduct.
Affirmed.
WE CONCUR:
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