FILED
SEPTEMBER 10, 2020
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. 36846-7-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
ILARIO MANJARES, )
)
Appellant. )
SIDDOWAY, J. — Ilario Manjares appeals convictions for two counts of felony
harassment. He concedes that sufficient evidence supports the required elements of a
threat to kill that placed two victims in fear the threat would be carried out. But he
contends the evidence was insufficient to prove that his threats created an objectively
reasonable fear of being killed.
The evidence was sufficient. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Ilario Manjares testified in the trial below, and we begin with his own account of
his bizarre behavior on the night of his offenses.
No. 36846-7-III
State v. Manjares
At around 9:30 one night in November 2018, Mr. Manjares went looking for his
wife, Hailey,1 in Sunnyside. Mr. Manjares and Hailey were in the process of divorcing,
and according to Mr. Manjares, she was denying him visitation with their two children.
When he received a text that she was at a bar, Egley’s, he drove there in his white SUV.2
On arriving, he encountered four men out front who he took to be bouncers, and he asked
them if Hailey was there. Mr. Manjares claims they became confrontational with him,
which Mr. Manjares later testified made him believe Hailey was there. When they
threatened to shoot him, Mr. Manjares says, he drove around to the back of the bar, since
he had not seen Hailey’s car out front.
Behind the bar, he saw a black Mitsubishi that he claims was the exact same
vehicle as one belonging to a coworker of Hailey’s. He approached the occupant of the
car, a woman, and questioned her about Hailey’s whereabouts. He got the impression the
woman “was trying to like[,] not tell.” Report of Proceedings (RP) at 323. When the
woman drove away she circled the bar, leading Mr. Manjares to believe that Hailey was
probably inside and was “gonna jump out in a minute and hop in the car with her,” so he
followed the Mitsubishi. Id. When the woman drove away from the bar, Mr. Manjares
followed her.
1
Because all of the record references to Ms. Manjares are by her first name, we
refer to her throughout as Hailey. We intend no disrespect.
2
Sport utility vehicle.
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No. 36846-7-III
State v. Manjares
The woman stopped in front of a home where a man was standing. Mr. Manjares
pulled in behind her. Mr. Manjares testified the man in front of the home looked
familiar, too, like someone “that also goes over there to my wife’s work.” RP at 326.
Mr. Manjares said he was persistent in asking about Hailey and his children and was
irritated that the couple would not tell him anything. He finally gave up and left.
He testified that he then drove to a nearby gas station, where he saw a couple in a
car who looked like people he had seen at Egley’s. He followed them to an apartment
complex where they stopped and parked. He parked nearby and walked to their car,
where a woman was sitting in the driver’s seat and a man was sitting in the front
passenger’s seat. He confronted them from the passenger’s side about the whereabouts of
Hailey and his children. He observed that they were possibly afraid of him, “but I don’t
see why cause . . . I wasn’t there for them.” RP at 333. When the woman backed out and
drove out of the parking lot and away, Mr. Manjares started to follow them but then
changed his mind.
Not long thereafter, Mr. Manjares rolled his SUV while being pursued by a police
officer. He testified he was not trying to elude the officer and did not notice “at first” that
a police car with lights and siren activated was following him. RP at 340. He claims to
have seen the officer’s car only when he was “further down the tracks.” Id.
Mr. Manjares was charged with attempting to elude a police vehicle and—based
on 911 calls and statements made by the two couples he had confronted that night about
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No. 36846-7-III
State v. Manjares
the whereabouts of Hailey—with two counts of second degree assault and two counts of
felony harassment.
All of the victims testified at Mr. Manjares’s trial. Since his challenge on appeal
is to whether sufficient evidence supports his convictions for felony harassment, we
recount the evidence provided by witnesses Alejandra Morfin Ixtas and Hector Gallardo
in more detail.
On the night of the offenses, Ms. Morfin had plans to meet friends at Egley’s. She
drove to the back of the bar, where she always parks. The back parking area was dark
and no other cars were there. As she parked, she sensed someone staring at her and
turned to see Mr. Manjares standing close to her driver’s window, his face almost
touching the window. She had never seen Mr. Manjares before. He asked about Hailey
and his two daughters. Ms. Morfin told him she was sorry, but she did not know a
Hailey.
Ms. Morfin had not turned off her car and decided she would find another place to
park. As she circled the bar looking for another spot, none was available in the front, and
she noticed that a white SUV appeared to be following her, making every turn she was
making. She began to get scared and decided to drive to the home of her friend, Hector
Gallardo, who lived about one mile away. She phoned him and, in tears, asked him if he
would come out because someone was following her and she was scared.
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No. 36846-7-III
State v. Manjares
She testified that the white SUV tailgated her as she drove to Mr. Gallardo’s
home. At one point, she claims, it even tried to sideswipe her, causing her to almost hit
cars parked on the side of the road. Mr. Gallardo had remained on the phone with Ms.
Morfin, and as she got close to his home, she asked him to “please come out right now.”
RP at 201.
Mr. Gallardo was waiting outside when she arrived. She parked in front of the
home. The SUV pulled in behind her and Mr. Manjares got out. He was holding a knife
in his left hand. Ms. Morfin testified that Mr. Manjares asked her about Hailey and even
accused her of being Hailey, “hiding in all this makeup.” RP at 212. He accused Mr.
Gallardo of being “the fat fuck that [was] fucking Hailey.” RP at 203. Ms. Morfin told
Mr. Manjares she did not know a Hailey, told him to leave her alone, and ran toward Mr.
Gallardo.
Ms. Morfin then called 911. She testified that when Mr. Manjares saw that she
was making the call, he “said that he was gonna come back and shoot us up.” RP at 205.
He then got in his car and left. She testified she thought Mr. Manjares was being serious
because he “seemed very aggressive, . . . very angry” and “look[ed] like he was on
drugs.” Id.
After Mr. Manjares left, Ms. Morfin testified she was “very scared,” was crying,
and “closed all the blinds to the house.” RP at 206. When she had called 911, she said
she would go into the station and sign a statement, but when an officer called back a little
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No. 36846-7-III
State v. Manjares
later to see if she was coming, she said, “[N]o, because I was scared to go outside,
because I was scared [Mr. Manjares] was gonna come back.” Id.
Mr. Gallardo testified he was outside when Ms. Morfin arrived at his house, crying
and screaming. He testified that when the SUV pulled in behind her, Mr. Manjares came
out “cussing and just saying stuff,” and holding a knife. RP at 225-26. Mr. Manjares
was accusing Ms. Morfin of being Hailey and Mr. Gallardo of sleeping with Hailey. Mr.
Gallardo testified that he told Mr. Manjares to “get back,” and Mr. Manjares stayed about
five feet away. RP at 228. Asked if Mr. Manjares ever gestured toward him with the
knife, Mr. Gallardo answered that he did not, but that Mr. Manjares was holding the knife
“kind of aggressively.” Id.
Mr. Gallardo testified that when Mr. Manjares got back into his SUV, he said “he
was gonna come back there and shoot up my house.” RP at 228. Mr. Gallardo thought
that might happen based on how Mr. Manjares was acting.
After leaving Mr. Gallardo’s home and traveling to the nearby gas station, Mr.
Manjares saw the vehicle that he followed because it looked like people from Egley’s.
The vehicle was being driven by Daisy Perez, with Julio Ramirez in the front passenger
seat. They had eaten at a fast food restaurant and were returning to Mr. Ramirez’s
apartment when they noticed a white SUV that appeared to be following them. When
they parked at the apartment complex, the SUV pulled in and parked, and Mr. Manjares
approached their car. Mr. Ramirez lowered his window to speak to Mr. Manjares and
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No. 36846-7-III
State v. Manjares
asked him if something was wrong. Mr. Manjares asked if they had Hailey, Mr. Ramirez
responded “no, I think you’re confusing us.” RP at 123. At that point, Mr. Manjares
pulled a knife from his pocket. He swore at Mr. Ramirez, accused him of knowing where
Hailey was, and began swinging his knife toward Mr. Ramirez. Mr. Ramirez testified
that he raised his window as quickly as he could and told Ms. Perez they should leave.
She put the car in reverse, drove off, and they called the police.
Thereafter, a Sunnyside police officer heard radio traffic about an attempted
assault involving a man in a white SUV. The SUV was described as being near the
officer’s location. When he saw Mr. Manjares’s SUV traveling at a high rate of speed he
followed it and activated his lights and sirens, trying to stop it. He pursued the SUV into
an industrial area, where it eventually turned onto and drove on train tracks. When the
SUV attempted to turn off the tracks, it rolled into a canal. Mr. Manjares emerged from
the SUV angry, yelling that he was going to kill the officer. He was arrested.
The jury acquitted Mr. Manjares of the charge that he had assaulted Daisy Perez.
It found him guilty of the second degree assault of Mr. Ramirez while armed with a
deadly weapon, guilty of felony harassment of both Ms. Morfin and Mr. Gallardo, and
guilty of attempting to elude a police vehicle. Mr. Manjares appeals.
ANALYSIS
Mr. Manjares’s only assignment of error on appeal is to the sufficiency of
evidence to support the felony harassment convictions. He contends that a threat to shoot
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No. 36846-7-III
State v. Manjares
up a home cannot objectively create a reasonable fear of death if the threat is carried out,
explaining:
The record indicates that Morfin and Gallardo believed Manjares
was a gang member and were afraid he would come back to commit a drive
by shooting against them or their house. It is understandable that this belief
would cause fear. But it is not reasonable to fear that they would be killed
because it is not reasonably likely that they would die, even if they were
shot. Philip J. Cook, Ariadne E. Rivera-Aguirre, Magdalena Cerda &
Garen Wintemute, Constant Lethality of Gunshot Injuries From Firearm
Assault: United States, 2003-2012, American Journal of Public Health 107,
no. 8 (August 1, 2017): pp. 1324-1328 (establishing gunshot lethality rate
of 22% for all causes). It is true that they could be hurt, even severely, but
fear of bodily injury is insufficient to prove a felony charge—it only
supports the misdemeanor.
Because it is not reasonably likely that Morfin and Gallardo would
die if Manjares carried out the threat, any subjective fear of death is not
reasonable.
Br. of Appellant at 10-11 (record citation and footnote omitted).
One problem with this novel argument is treating a reasonable “fear” of being
killed as the same as a scientifically-assessed “risk” of being killed. Jurors can be
expected to give the undefined word “fear” its common meaning. “Fear” is “an
unpleasant emotional state characterized by anticipation of pain or great distress and
accompanied by heightened autonomic activity esp[ecially] involving the nervous system
: agitated foreboding often of some real or specific peril.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 831 (1993). Statistically analyzing risk based on data is
something else entirely.
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No. 36846-7-III
State v. Manjares
Second, and relatedly, the rarity of being threatened, apparently seriously, with
being killed calls for liberality in assessing a reasonable response. In imposing liability
for a tort, we require a reasonable person to know matters “in so far as they are matters of
common knowledge at the time and in the community.” RESTATEMENT (SECOND) OF
TORTS § 290 (AM. LAW INST. 1965). We expect a reasonable person to “exercise the
power of intelligent correlation . . . with previous knowledge, belief, and experience.”
RESTATEMENT § 289 cmt. g. Jurors would not expect Ms. Morfin or Mr. Gallardo to
know the likelihood they would die if Mr. Manjares returned to shoot them up or shoot up
their house, as he threatened to do.
If the evidence in a case “establishes the victim’s subjective fear, the issue is
whether a rational trier of fact, viewing the evidence in the light most favorable to the
State, could have found beyond a reasonable doubt, using an objective standard, that the
victim’s fear in each case was reasonable.” State v. Alvarez, 74 Wn. App. 250, 260-61,
872 P.2d 1123 (1994), aff’d, 128 Wn.2d 1, 904 P.2d 754 (1995). Just as “the nature of a
threat depends on all the facts and circumstances,” State v. C.G., 150 Wn.2d 604, 611, 80
P.3d 594 (2003), so does the reasonableness of a victim’s fear. We must defer to the trier
of fact’s assessment of the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d
821, 874-75, 83 P.3d 970 (2004). The trial court instructed the jury on the lesser included
crime of misdemeanor harassment but the jury found felony harassment. We note that in
connection with another count the jury demonstrated its independent judgment: in the
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No. 36846-7-III
State v. Manjares
case of Ms. Perez, the jury found Mr. Manjares not guilty of either the second degree
assault charged or the lesser included crime of fourth degree assault.
The State presented evidence of Mr. Manjares's sustained, aggressive,
inexplicable behavior toward two people he did not know. That, coupled with his threats
to shoot them or shoot up Mr. Gallardo's home, was substantial evidence supporting an
objectively reasonable fear that they would be killed if Mr. Manjares carried out the
threats.
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.
I CONCUR:
Q.
Pennell, CJ.
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