FILED
COURT OF APPEALS
DIVISION 11
2015 APR - 7 AM 9: 23
STATE OF WASHINGTON
Y
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45401 -7 -II
Respondent,
v.
JAIME NMI SILVA- ARROYO, UNPUBLISHED OPINION
Appellant.
LEE, J. — A jury found Jaime Silva- Arroyo guilty of attempted second degree rape. Silva -
Arroyo appeals, arguing that ( 1) his conviction should be reversed because the prosecutor
committed misconduct during closing argument and ( 2) certain community custody provisions
should be stricken from his judgment and sentence because they are not crime related. The State
concedes that the community custody provisions should be stricken. We find the prosecutor' s
comments were not improper and affirm Silva- Arroyo' s conviction. And, we accept the State' s
concession and remand for the trial court to strike the improper community custody provisions.
FACTS
On July 22, 2012, S. M.1 was shopping at a local grocery store when she noticed a man,
later identified as Silva-Arroyo, who appeared to be following her through the store. Leaving the
1
We use initials to preserve the victim' s privacy.
No. 45401 -7 -II
grocery store, S. M. went to another store in the same shopping center. After she left the second
store, Silva-Arroyo walked up to her, said something in Spanish, and started rifling through his
wallet. S. M. did not speak Spanish, so she motioned for him to leave her alone and walked away.
S. M. began walking toward her house and turned down an alleyway.
While in the alleyway, Silva-Arroyo came up behind her and pushed her to the ground.
Silva-Arroyo sat on top of her and held her down. Silva-Arroyo started hitting S. M., grabbed her
throat, and tried pulling down S. M.' s pants. S. M. began screaming. Silva-Arroyo lifted his hand
off of S. M.' s mouth and S. M. bit him. Silva- Arroyo got up and walked away. S. M. called her
boyfriend and they went to her boyfriend' s parents' house and called the police.
Bainbridge Island Police Officer Dale Johnson was the responding officer. When Johnson
contacted S. M., he noticed that her lip was swollen, she had bruises on the side of her head, and
she had scratches on her neck. Johnson went with S. M. to the scene of the attack and found a hat
on the ground. S. M. identified the hat as the one Silva-Arroyo had been wearing during the attack.
Officers were also able to obtain a surveillance video from the grocery store. The video showed
Silva-Arroyo in the store.
Bainbridge Island Police Detective Michael Tovar was assigned to S. M.' s case. The day
after he was assigned, Tovar saw Silva- Arroyo in the area of the grocery store, recognized Silva -
Arroyo from the grocery store surveillance video, and stopped to talk to Silva- Arroyo. Later,
Tovar showed S. M. a photo montage that included Silva- Arroyo' s picture. S. M. identified Silva -
Arroyo. When Tovar contacted Silva-Arroyo again, Tovar noticed an injury to Silva- Arroyo' s
hand which he believed to be a bite mark.
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The State charged Silva- Arroyo with attempted second degree rape. At Silva- Arroyo' s
jury trial, S. M., Johnson, and Tovar testified to the facts above.
Silva-Arroyo presented a defense of general denial and argued that S. M. misidentified him
as the perpetrator. Silva- Arroyo testified that he was at the shopping center the day of the assault.
He testified that he went into the grocery store but realized that he had left his wallet at his brother' s
house. He left the grocery store and walked down the alleyway. He testified that he regularly used
the alleyway to get to his brother' s house. When he got halfway to his brother' s house, he realized
that he was going to be late for work, so he turned around and walked back toward the shopping
center. He testified that he put his hat in his hip pocket when he left the grocery store, but he did
not have it when he arrived at work. He also testified that he cut his hand while working as a
dishwasher.
During closing argument, the prosecutor described S. M.' s attack as a woman' s " worst
nightmare." 3 Report of Proceedings (RP) ( July 2, 2013) at 393. At the beginning of his argument,
the prosecutor stated:
This case represents every woman' s worst nightmare. [ S. M.] was alone.
The defendant took advantage of it. The defendant assaulted her, and he tried to
pull down her pants. It is every woman' s worst nightmare.
3 RP ( July 2, 2013) at 393. Later, the prosecutor referred to the attack as " every woman' s worst
nightmare" because it was an attack by a stranger. 3 RP ( July 2, 2013) at 406. The prosecutor
then went on to argue that because S. M. did not know Silva- Arroyo, she did not have a bias against
him and contrasted that to Silva- Arroyo' s witnesses, who were Silva -Arroyo' s brother and sister.
Silva- Arroyo did not object to the State' s characterization of the attack.
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Silva -Arroyo argued, in closing, that he provided innocent explanations for all of the
State' s evidence, and therefore, there was a reasonable doubt. In rebuttal argument, the prosecutor
stated:
The defense is giving you a lot of reasons. He is giving you a lot of
explanations. And, you know, that is all to the good, but what he hasn' t provided
is reasonable doubt. You will-
3 RP ( July 2, 2013) at 433 -34. Silva-Arroyo objected immediately and the trial court excused the
jury. Silva- Arroyo moved for a mistrial and argued that the prosecutor had improperly shifted the
burden of proof to the defense: The trial court disagreed, ruling that the prosecutor' s argument
was a proper response to Silva-Arroyo' s argument that Silva- Arroyo' s explanations created a
reasonable doubt. The trial court denied Silva-Arroyo' s motion for a mistrial.
The jury found Silva- Arroyo guilty of attempted second degree rape. The trial court
imposed a low end term of confinement within the standard range. The trial court also imposed
several community custody provisions including prohibiting Silva -Arroyo from (1) contacting any
children under the age of 18, ( 2) loitering or frequenting places where children congregate, and ( 3)
entering into romantic relationships without prior permission from his community corrections
officer. Silva- Arroyo appeals.
ANALYSIS
A. PROSECUTORIAL MISCONDUCT
Silva -Arroyo argues that the prosecutor committed misconduct by ( 1) improperly
appealing to the passions and prejudices of the jury and (2) improperly shifting the burden of proof
to the defendant. We disagree.
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No. 45401 -7 -II
Silva- Arroyo failed to object to the prosecutor' s comments that, allegedly, appealed to the
passions and prejudices of the jury; but, Silva- Arroyo did object to the prosecutor' s comments that
allegedly shifted the burden of proof. Therefore, we apply two different standards for analyzing
prosecutorial misconduct.
Regardless of whether the defendant objected to the alleged prosecutorial misconduct, the
defendant must show that the prosecutor' s conduct was both improper and prejudicial. State v.
Emery, 174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012) ( citing State v. Thorgerson, 172 Wn.2d 438, .
442, 258 P. 3d 43 ( 2011)). First, this court determines if the prosecutor' s conduct was improper.
Id. at 759. Second, if this court determines that the prosecutor' s conduct was improper, this court
determines whether the prosecutor' s improper conduct was prejudicial. Id. at 760 -61.
1. Appeal to Jury' s Passions and Prejudices
First, Silva -Arroyo argues that the prosecutor improperly appealed to the jury' s passions
and prejudices by referring to S. M.' s attack as a " woman' s worst nightmare." See e.g. 3 RP ( July
2, 2013) at 393. Silva-Arroyo did not object to the prosecutor' s comments.
If the defendant did not object at trial, this court considers any error waived, " unless the
prosecutor' s misconduct was so flagrant and ill intentioned that an instruction could not have
cured" any resulting prejudice. Emery, 174 Wn.2d at 760 -61. " Under this heightened standard of
review, the defendant must show that ( 1) ` no curative instruction would have obviated any
prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that `had a substantial
likelihood of affecting the verdict. "' Id. at 761 ( quoting Thorgerson, 172 Wn.2d at 455).
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No. 45401 -7 -II
Here, the prosecutor' s comments regarding S. M.' s attack being a " woman' s worst
nightmare" were not improper. In closing argument, prosecutors are " afforded wide latitude to
draw and express reasonable inferences from the evidence." State v. Reed, 168 Wn. App. 553,
577, 278 P. 3d 203, review denied, 176 Wn.2d 1009 ( 2012). This court does not look at the
comments in isolation, but " in the context of the total argument, the issues in the case, the evidence
addressed in the argument, and the instructions given to the jury." State v. Yates, 161 Wn.2d 714,
774, 168 P. 3d 359 ( 2007), cert. denied, 554 U. S. 922 ( 2008) ( quoting State v. McKenzie, 157
Wn.2d 44, 52, 134 P. 3d 221 ( 2006)). "' The prosecutor should not use arguments calculated to
inflame the passions and prejudices of the jury. ' In re the Matter of the Pers. Restraint of
Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012) ( quoting ABA, STANDARDS FOR CRIMINAL
JUSTICE std. 3- 5. 8( c) ( 2d ed. 1980)). Instead, prosecutors " must ` seek convictions based only on
probative evidence and sound reason. ' Id. (quoting State v. Casteneda -Perez, 61 Wn. App. 354,
363, 810 P. 2d 74 ( 1991)).
Silva -Arroyo argues that the prosecutor' s comment " was designed to scare the jurors into
considering the possibility of rapists running free" and " served no other purpose than to scare the
jurors into deciding the case based on their own personal fears rather than on the facts of the case."
Br. of Appellant at 11. Silva -Arroyo specifically relies on State v. Belgarde, 110 Wn.2d 504, 755
P. 2d 174 ( 1988) and State v. Powell, 62 Wn. App. 914, 816 P. 2d 86 ( 1991), to support his assertion
that the prosecutor committed reversible misconduct by referring to S. M.' s attack as a " woman' s
worst nightmare." Br. of Appellant at 11. Silva-Arroyo' s reliance on these cases is misplaced.
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No. 45401 -7 -II
In Powell, the prosecutor committed reversible misconduct by arguing that, if the jury
acquitted the defendant, it would be sending a message that child victims would not be believed
and, as a result, the jury would be declaring " open season" on children. 62 Wn. App. at 918 -19.
The prosecutor' s argument was improper because the prosecutor was asking the jury to find the
defendant guilty based on considering the effect of the verdict on child sex abuse victims. Id.
And, the prosecutor was asking the jury to return a guilty verdict, not because the evidence
established the defendant was guilty, but rather, because the jury needed to protect children. Id.
In Belgarde, the prosecutor told the jury that the defendant was a member of a group which
the prosecutor described as " a deadly group of madmen" and " butchers that kill indiscriminately."
110. Wn.2d at 508. The prosecutor' s comments were improper because they were calculated to
revolt the jury. Id. And, the prosecutor was attempting to secure a conviction based on the
defendant' s association with a group rather than the evidence presented at trial. Id.
Here, the prosecutor did not argue that the jury should find the defendant guilty because
S. M.' s attack was a " woman' s worst nightmare." And, the prosecutor did not ask the jury to find
the defendant guilty in order to prevent other women from suffering the same " nightmare." The
prosecutor' s comment was primarily related to arguing that S. M. was a credible witness because
she had no investment in testifying that Silva- Arroyo was the person who attacked her. The
prosecutor' s comment that S. M.' s attack was a " woman' s worst nightmare" was not an argument
calculated to inflame the passions and prejudices. of the jury. Rather, it was a minor comment
within an argument during which the prosecutor continuously encouraged the jury to find Silva -
Arroyo guilty based on the evidence presented at trial. Therefore, we hold that the prosecutor did
not make an improper comment.
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No. 45401 -7 -II
2. Burden Shifting
Silva-Arroyo also argues that the prosecutor committed misconduct by improperly shifting
the burden of proof to the defense. Silva- Arroyo objected to the prosecutor' s argument; therefore,
he must show improper conduct and prejudice resulting from the improper conduct. Emery, 174
Wn.2d at 760 -61. Here, we need not determine whether the prosecutor' s comment was improper
because Silva-Arroyo fails to show a substantial likelihood that the prosecutor' s conduct affected
the jury' s verdict. Id. at 760.
There was substantial testimonial and physical evidence presented at trial. S. M. testified
about what occurred, and Silva -Arroyo' s testimony placed him in the vicinity of the incident.
There was physical evidence corroborating S. M.' s testimony as to what happened, including a
surveillance video placing Silva-Arroyo at the scene, Silva -Arroyo' s hat found at the scene, S. M.' s
injuries, and Silva- Arroyo' s injuries. In light of the evidence presented, we hold the prosecutor' s
fleeting comment did not prejudice Silva-Arroyo, and Silva-Arroyo' s prosecutorial misconduct
claim fails.
B. COMMUNITY CUSTODY PROVISIONS
Silva-Arroyo also argues that the trial court erred by imposing three specific community
custody provisions: ( 1) a provision prohibiting Silva- Arroyo from having unsupervised contact
with minors, (2) a provision prohibiting Silva- Arroyo from frequenting or loitering in places where
children are known to congregate, and ( 3) a provision prohibiting Silva-Arroyo from entering into
a consensual relationship without prior permission from his community custody officer.
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Specifically, Silva -Arroyo argues that the provisions are improper because they are not crime
related. The State concedes that the community custody provisions are improper. We accept the
State' s concession and remand to the trial court to strike the improper community custody
conditions.
Under RCW 9. 94A.703( 3)( f),the trial court may require the defendant to " comply with
any crime -related prohibitions." A crime -related prohibition is " an order of a court prohibiting
conduct that directly relates to the circumstances of the crime for which the offender has been
convicted." RCW 9. 94A. 030( 10). This court reviews the trial court' s imposition of crime -related
prohibitions for an abuse of discretion. State v. Warren, 165 Wn.2d 17, 32, 195 P. 3d 940 ( 2008).
Here, there is no evidence that Silva- Arroyo' s crime involved minors in any way.
Therefore, prohibitions involving contact with minors are not crime -related. The trial court abused
its discretion by imposing community custody provisions prohibiting contact with minors and
prohibiting Silva -Arroyo from frequenting or loitering in places where minors are known to
congregate.
And, there is no evidence that Silva-Arroyo' s crime was related to a consensual
relationship. S. M. was a stranger to Silva-Arroyo. Therefore, prohibiting Silva- Arroyo from
entering into a consensual relationship without prior permission from his community custody
officer was not crime -related. The trial court abused its discretion by imposing a community
custody provision prohibiting Silva-Arroyo from entering into a consensual relationship without
prior permission from his community custody officer.
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No. 45401 -7 -II
The State' s concession is proper. Accordingly, we affirm Silva- Arroyo' s conviction, but
remand to the trial court to strike the improper community custody provisions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
Mdnick, J.
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