State of Washington v. Anthony Jesse Hernandez, Jr. ( 2014 )

FILED
MARCH 13,2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 30397-7-111
Respondent, )
)
v. )
)
ANTHONY JESSE HERNANDEZ JR, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, C.J. - Mr. Anthony Hernandez Jr. threatened a male friend of his
estranged wife and pointed his service revolver at the man. This appeal challenges the
sufficiency of the evidence to support the jury's determination that he was armed with a
deadly weapon when he committed the crime. We affirm.
FACTS
Mr. Hernandez, a tribal police officer, was separated from his wife Miranda while
the couple was in the process of dissolving their marriage. Mr. Hernandez moved to his
parents' house while Miranda continued to reside in the marital home. Mr. Hernandez
would stop by the rural house daily to feed his dog and collect mail.
No. 30397-7-111
State v. Hernandez
He arrived at the house between 7:00 a.m. and 8:00 a.m. on September 18,2009.
Mr. Hernandez was dressed for work as a tribal police officer wearing a standard
uniform; he also wore a gun in a holster. He discovered that the door to the master
bedroom was locked .. A conversation ensued, although accounts of that conversation
vary. According to Miranda, Mr. Hernandez demanded entry to the room and became
more insistent as she delayed in order to give her male companion time to hide in the
bathroom and get dressed. According to Mr. Hernandez, Miranda told him she needed
help.
Both accounts agree that Mr. Hernandez broke down the door to the bedroom. He
drew his gun and proceeded into the bathroom where he found the companion in the
shower, naked. He ordered the man to the floor at gunpoint and holstered his gun before
handcuffing the man. He left the bathroom and told his wife that he was "gonna kill him"
repeatedly; she begged him not to do so.
Mr. Hernandez returned to the bathroom and identified the male, writing down the
information in his police notebook. He told the man that he could kill and bury him on
Mt. Adams "and probably get away with it." The man testified that he thought he was
going to die that morning. After a period oftime, Mr. Hernandez released the man and
gave him three minutes to dress and leave. The man complied and fled the location on
foot.
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No.30397-7-III
State v. Hernandez
Charges of first degree kidnapping and felony harassment of the male victim were
filed along with a charge of reckless endangerment of Miranda Hernandez. The jury
ultimately acquitted Mr. Hernandez of the kidnapping and reckless endangerment counts,
but found him guilty of felony harassment. The jury also concluded that Mr. Hernandez
was armed with a deadly weapon at the time of the crime.
The trial court imposed a standard range sentence. Mr. Hernandez then timely
appealed to this court.
ANALYSIS
The sole issue 1 presented in this appeal is an argument that the evidence was
insufficient to support the deadly weapon enhancement. Having used the weapon in the
course of his encounter with the victim, the evidence supported the jury's conclusion.
Well-settled standards govern this review. Appellate courts review such
challenges to see if there was evidence from which the trier of fact could find each
element of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307,319,99 S. Ct. 2781,61 L. Ed. 2d 560 (1979); State v. Green, 94 Wash. 2d 216, 221-22,
616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most
favorable to the prosecution. Green, 94 Wash. 2d at 221.
I Mr. Hernandez also argued that the court erred in failing to include "true threat"
in the elements instruction. That issue subsequently was decided against his position in
State v. Allen, 176 Wash. 2d 611, 294 P.3d 679 (2013). We will not further discuss the
argument.
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No. 30397-7-111
State v. Hernandez
A person is armed with a deadly weapon when he or she is armed while
committing a crime. RCW 9.94A.825. "A person is 'armed' if a weapon is easily
accessible and readily available for use, either for offensive or defensive purposes." State
v. Valdobinos, 122 Wash. 2d 270, 282,858 P.2d 199 (1993). In cases of constructive
possession, at least, there also must be evidence of a connection ("nexus") between the
defendant, the weapon and the crime. E.g., State v. Gurske, 155 Wash. 2d 134, 141, 118
PJd 333 (2005). In cases of actual possession of a weapon, it is "likely" that the jury
need not be instructed about the nexus requirement. State v. Easterlin, 159 Wash. 2d 203,
209, 149 PJd 366 (2006).
The jury in this case was not given a nexus instruction. Mr. Hernandez does not
actually challenge that decision, but does argue that the jury would have acquitted him if
it had received a nexus instruction. However, since he did not assign error to any action
of the trial court concerning a nexus instruction and frames his argument solely as a
sufficiency of the evidence challenge, we have no basis to consider whether or not the
jury was properly instructed concerning the deadly weapon.
Instead, the sole issue is whether the jury had a sufficient reason for believing that
Mr. Hernandez was "armed" while committing the crime of harassment. It did. Here,
Mr. Hernandez brandished the weapon, using it to take custody of the victim. He then
holstered the weapon and made a series of threats to kill the victim while wearing the
gun. In these factual circumstances, he was clearly armed with a deadly weapon. Cf
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No.30397-7-III
State v. Hernandez
Easterlin, 159 Wash. 2d at 206, 210 (drug dealer was armed when he possessed drugs in his
sock while a gun was sitting on his lap). On the basis of Easterlin, we have no difficulty
concluding that Mr. Hernandez was equally "armed" while threatening the victim with a
holstered gun attached to his body.
We also find support for this conclusion in State v. Bright, 129 Wash. 2d 257, 916
P.2d 922 (1996). There a police officer was convicted of rape for twice having sexual
intercourse with the victim while his gun was holstered around his waist. Id. at 263. The
question for the court was whether or not the defendant "used" or "threatened to use" the
gun in the commission of the rapes. Id. at 266. The majority concluded that he did do so
in the commission of the crimes. Id. at 274. The dissenting justices, in contrast, argued
that all the State had proven was that the defendant was armed with a weapon. Id. at 275,
278 (Madsen, J., dissenting).
If wearing a gun in a holster constitutes "use" of a deadly weapon to commit rape,
it certainly is evidence that the defendant was "armed" while threatening to kill the victim
in this case. Accordingly, the evidence was sufficient to support the jury's verdict.
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No.30397-7-III
State v. Hernandez
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Korsmo, CJ.
WE CONCUR:
Brown, J.
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