IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 71218-7-1
Respondent,
DIVISION ONE IP*
v.
ro
PEDRO MENDOZA-ESCATEL, UNPUBLISHED OPINION
Appellant. FILED: April 27, 2015
Lau, J. — Pedro Mendoza-Escatel appeals his conviction for assault in the
second degree. He contends (1) there was insufficient evidence to prove the
strangulation element beyond a reasonable doubt and (2) statements made during the
State's rebuttal argument amount to prosecutorial misconduct that deprived him of his
right to a fair trial. But because we conclude (1) that the State presented sufficient
evidence such that any reasonable trier of fact could conclude the element of
strangulation proven beyond a reasonable doubt and (2) that the prosecutor's
comments, even if improper, were cured by the trial court's curative instruction, we
affirm the judgment and sentence.
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FACTS
Pedro Mendoza-Escatel was romantically involved with Katie McAlpin. On May
6, 2013, Mendoza-Escatel met Katie and her sister Molly1 for food and drinks at the
Little Water Cantina. While there, Mendoza-Escatel became drunk, angry, and loud, so
Katie and Molly left without him. Katie and Molly gave slightly different accounts of
where they went after leaving the Little Water Cantina. Molly testified that they went
directly to Katie's apartment. Katie testified that she and Molly had additional drinks at a
different restaurant before returning to her apartment.
Regardless, at some point the sisters returned to Katie's apartment where they
met Mendoza-Escatel on the street in front of the building. Katie then got into an
argument with Mendoza-Escatel.2 Specifically, Mendoza-Escatei's pants were undone
and he admitted to having sexual relations with another woman.
Once inside the apartment, both Katie and Molly asked Mendoza-Escatel to
leave. When Mendoza-Escatel did not leave, Katie attempted to physically pull him off
of the couch he was sitting on in an attempt to force him out of the apartment. After
several unsuccessful attempts to remove him from the couch, Mendoza-Escatel
grabbed Katie's throat and began to squeeze. Katie testified that the choking
obstructed her breathing.
1 Because Katie and Molly share the same last name, we refer to them by their
first names.
2 Katie's testimony differs slightly with Molly's on this point as well. Katie testified
that the argument started in the street outside the apartment. Molly testified that the
argument started in the apartment. Regardless of where the argument began, it
continued inside the apartment and culminated with violence inside the apartment.
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[Prosecutor]: How long did it feel to you?
[Katie]: It felt like I was losing my breath; like I couldn't breathe, I couldn't
talk.
[Prosecutor]: Okay. And how hard was he actually pressing on your neck
area?
[Katie]: Really hard.
[Prosecutor]: Okay.
[Katie]: Like squeezing it really hard.
[Prosecutor]: And can you show us again the hold that he was using?
[Prosecutor]: He squeezed right here where my windpipe is.
Report of Proceedings (RP) (Oct. 8, 2013) at 155. Mendoza-Escatel continued to hold
Katie down on the couch and choke her. At some point he released her, and Katie
screamed for Molly, who was in the bathroom trying to call a male friend to come over
and help. After Molly came out of the bathroom, Mendoza-Escatel grabbed Katie's
throat a second time:
[Prosecutor]: And was it the same type of hold that he had [used the first
time]?
[Katie]: Yeah.
[Prosecutor]: How hard was he squeezing that part of your neck?
[Katie]: It was really hard. It hurt really bad. It felt like something maybe
was even like fractured in there after he did it.
[Prosecutor]: And during the second time that he did this, were you able
to talk or breathe?
[Katie]: No.
[Prosecutor]: Did you lose consciousness at any point in time?
[Katie]: No.
[Prosecutor]: And during this period of time, were you able to
communicate with Molly the second time he squeezed [your throat]?
[Katie]: No. She came up and said, what are you doing to my sister, and
she slapped him, and he let go.
RP (Oct. 8, 2013) at 156. Molly then left the room to call the police. After Molly left,
Mendoza-Escatel choked Katie a third time and then tried to "put his hand down [her]
throat." RP (Oct. 8, 2013) at 158. Eventually, Katie got away and she and Molly leftthe
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apartment to wait for police, who arrived 20 minutes later. Police arrested Mendoza-
Escatel, who was noticeably drunk.
During the State's rebuttal closing argument, the prosecutor stated that "[t]here
has been no evidence in this case whatsoever to disprove that he strangled her." RP
(Oct. 9, 2013) at 90. Defense counsel objected to the statement because it suggested
Mendoza-Escatel failed to meet an evidentiary burden. The court sustained the
objection. The prosecutor continued:
Okay. There has been—you have heard no evidence in this case
that strangulation did not occur, and there has been numerous cross-
examination of these witnesses. They all said the same thing: that he
choked her or that Ms. [Katie] McAlpin reported that she was choked. You
heard from none of them that, well, she never claimed she was choked, or
I thought he was choking her, but I might have been mistaken. Well, his
hand was kind of around her face and I thought she was being choked.
You didn't hear none of that. And that's what I'm—that's what I'm implying
when I say that there is no evidence. You've heard nothing to contradict
that—those assertions.
RP (Oct. 9, 2013) at 90-91. At the close of the prosecutor's rebuttal, the court
reminded the jury of the defense objection and that Mendoza-Escatel had no evidentiary
burden:
Ladies and gentlemen, the Prosecutor argued to you that the
Defense had not disproved that strangulation occurred. Defense counsel
objected, I sustained the objection, and I want to reiterate that. And I'm
reading from Instruction No. 3, the State is the Plaintiff and has the burden
of proving each element of the crime beyond a reasonable doubt. The
Defendant has no burden of proving that a reasonable doubt exists as to
these elements.
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RP (Oct. 9, 2013) at 92. The jury convicted Mendoza-Escatel of assault in the second
degree.3 The court sentenced Mendoza-Escatel to six months incarceration. Mendoza-
Escatel appeals.
ANALYSIS
Sufficiency of the Evidence
First, Mendoza-Escatel argues the State failed to prove assault by strangulation
because the evidence was insufficient to show that he obstructed Katie's blood flow or
ability to breathe or that he intended to obstruct Katie's blood flow or ability to breathe.
We disagree.
In a criminal prosecution, the State must prove each element of the charged
crime beyond a reasonable doubt. In reWinship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25
L. Ed. 2d. 368 (1970). A person is guilty of the crime of assault in the second degree by
strangulation where he "[a]ssaults another by strangulation." RCW 9A.36.021(1)(g).
"'Strangulation' means to compress a person's neck, thereby obstructing the person's
blood flow or ability to breathe, or doing so with the intent to obstruct the person's blood
flow or ability to breathe." RCW 9A.04.110(26). "The test for determining the
sufficiency of the evidence is whether, after viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt. When the sufficiency of the evidence is challenged in a criminal
case, all reasonable inferences from the evidence must be drawn in favor of the State
and interpreted most strongly against the defendant. A claim of insufficiency admits the
3The amended information also charged the lesser-included crime of fourth
degree assault.
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truth of the State's evidence and all inferences that reasonably can be drawn
therefrom." State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citations
omitted).
Under this onerous standard, we conclude the State presented sufficient
evidence such that any rational trier of fact could have concluded that Mendoza-Escatel
was guilty of assault by strangulation. See Salinas, 119 Wn.2d at 201.
Katie specifically testified that Mendoza-Escatel obstructed her breathing when
he strangled her. She stated that he grabbed and squeezed her throat three times
during the altercation. Regarding the first instance, Katie said that Mendoza-Escatel
"squeezed" her "windpipe" "really hard" such that she "couldn't talk" and "couldn't
breathe." RP (Oct 8, 2013) at 155. Katie testified that, during the second instance,
Mendoza-Escatel squeezed her throat so hard it felt like something had fractured. She
again stated she could not talk or breathe during Mendoza-Escatei's second attack.
Katie stated that Mendoza-Escatel choked her a third time and then attempted to insert
his fist down her throat. She stated that this also affected her ability to breathe. Katie
also identified bruises on her neck in photographs taken a few days after the incident.
Other witnesses corroborated Katie's testimony. For instance, the responding
officer testified that Katie accused Mendoza-Escatel of choking her:
[Prosecutor]: Okay. And what did [Katie] say had happened?
[Officer]: She said that her and her boyfriend, the Defendant, had gotten
into an argument. . . She asked him to leave, and he then assaulted her
by grabbing her around the neck with her or with his right hand and
choking her, cutting off her breathing. She was able to fight him off a little
bit and then he continued. He did it twice more in the same manner with
his right hand cutting off her breathing each time.
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RP (Oct. 8, 2013) at 23 (emphasis added). Molly also testified that Mendoza-Escatel
choked Katie three times. She witnessed Katie's labored breathing as a result of the
attack:
[Prosecutor]: Okay. And when you walked out [of the bathroom], what did you
see?
[Molly]: A red face with her eyes—he let go of her when I walked out and she
was crying and she was gasping for air.
RP (Oct. 8, 2013) at 82. She later described Katie as "sitting down trying to get her air."
RP(Oct. 9, 2013) at 83.
Viewing this evidence and the reasonable inferences in the light most favorable
to the State, ample evidence supports Mendoza-Escatei's conviction. Assault by
strangulation requires that the defendant "compress a person's neck, thereby
obstructing the person's blood flow or ability to breathe, or doing so with the intent to
obstruct the person's blood flow or ability to breathe." RCW 9A.04.110(26). The
testimony from several witnesses during Mendoza-Escatei's trial indicates that he either
obstructed Katie's ability to breathe or compressed her neck with the intent to obstruct
her ability to breathe.4 Therefore, we conclude the State presented sufficient evidence
such that any reasonable trier of fact could have found the strangulation element proven
beyond a reasonable doubt. See Salinas, 119 Wn. 2d at 201.
4Mendoza-Escatel claims that "[although she stated that she was 'losing my
breath' during this incident, Katie acknowledged that she never lost consciousness." Br.
of Appellant at 8. But whether Katie lost consciousness or not is irrelevant. The State
need only prove that Mendoza-Escatel compressed Katie's neck with the intent to
obstruct her blood flow or breathing or that he actually obstructed her blood flow or
breathing. As explained above, the State presented sufficient evidence to prove this
element.
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Prosecutorial Misconduct
Next, Mendoza-Escatel argues the prosecutor's improper statements during
rebuttal deprived him of his right to a fair trial. We conclude, however, that Mendoza-
Escatel has failed to show that any prosecutorial conduct—even if improper—had a
substantial likelihood of affecting the jury verdict.
A defendant claiming prosecutorial misconduct on appeal must demonstrate that
the prosecutor's conduct at trial was both improper and prejudicial. State v. Fisher. 165
Wn.2d 727, 747, 202 P.3d 937 (2009). "Once a defendant has demonstrated that the
prosecutor's conduct was improper, we evaluate the defendant's claim of prejudice on
the merits under two different standards of review depending on whether the defendant
objected at trial." State v. Sakellis, 164 Wn. App. 170, 183, 269 P.3d 1029 (2011). "If
the defendant objected to the misconduct, we must determine whether the misconduct
resulted in prejudice that had a substantial likelihood of affecting the verdict." State v.
Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009). If the defendant failed to
object, we must ascertain whether the prosecutor's misconduct was so flagrant and ill-
intentioned that it caused an "enduring and resulting prejudice" incurable by a jury
instruction. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). "This
standard requires the defendant to establish that (1) the misconduct resulted in
prejudice that 'had a substantial likelihood of affecting the jury verdict,' and (2) no
curative instruction would have obviated the prejudicial effect on the jury." Sakellis, 164
Wn. App. at 184 (quoting State v. Thorgerson 172 Wn.2d 438, 455, 258 P.3d 43
(2011)).
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Here, Mendoza-Escatel notes that defense counsel objected to some of the
prosecutor's statements but failed to object to others. But we conclude Mendoza-
Escatei's claim for prosecutorial misconduct fails under either standard. Even if we
assume, without deciding, that the prosecutor's comments were improper, Mendoza-
Escatel has failed to show a substantial likelihood that these comments affected the
verdict. See Sakellis, 164 Wn. App. at 184.
Any prejudicial effect from the prosecutor's comments was mitigated by the trial
court's curative instruction. Following rebuttal, the trial court admonished the jury that it
sustained defense counsel's objection. The trial court also turned the jury's attention to
jury instruction 3, which reiterated that the State had the burden of proving all elements
of the crime beyond a reasonable doubt and that the defendant had no burden of
proving a reasonable doubt existed.
Curative instructions such as the one provided by the court here generally cure
prejudicial comments made by prosecutors. See State v. Warren, 165 Wn.2d 17, 28-
29, 195 P.3d 940 (2008). In Warren, a prosecutor suggested that the jury need not
"give the defendant the benefit of the doubt." Warren, 165 Wn.2d at 25. The trial court
then provided a curative instruction explaining the role of reasonable doubt in reference
to the relevant jury instruction. Warren, 165 Wn.2d at 25. Our Supreme Court found
this instruction cured any prejudice: "Had the trial judge not intervened to give an
appropriate and effective curative instruction, we would not hesitate to conclude that
such a remarkable misstatement of the law by a prosecutor constitutes reversible error.
However, reviewing the argument in context, because Judge Hayden interrupted the
prosecutor's argumentto give a correct and thorough curative instruction, we find that
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any error was cured." Warren, 165 Wn.2d at 28. Similarly, in State v. Emery, 174
Wn.2d 741, 278 P.3d 653 (2012), a prosecutor made improper comments during closing
argument. Defense counsel, however, failed to object and the trial court gave no
curative instruction. Emery, 174 Wn.2d at 763-64. The court found the defendants'
claim failed because an instruction would have cured any prejudice had it been given:
[T]he misstatements here could have been cured by a proper instruction.
If either [defendant] had objected at trial, the court could have properly
explained the jury's role and reiterated that the State bears the burden of
proof and the defendant bears no burden. Such an instruction would have
eliminated any possible confusion and cured any potential prejudice
stemming from the prosecutor's improper remarks.
Emery, 174 Wn.2d at 764 (emphasis added). The curative instruction described by the
court in Emery is precisely the instruction provided by the trial court in this case.
Further, "[w]e presume the jury was able to follow the court's instruction." Warren, 165
Wn.2d at 28. Accordingly, even if the prosecutor's comments were improper, any
prejudicial effect was cured by the trial court's instruction. Therefore, Mendoza-Escatel
failed to show a substantial likelihood that the prosecutor's comments affected the
verdict.
Mendoza-Escatel relies on In re Pers. Restraint of Glasmann, 175 Wn.2d 696,
286 P.3d 673 (2012) for the proposition that "the cumulative effect of repeated burden-
shifting during rebuttal was so flagrant that no instruction or series of instructions could
have erased its combined prejudicial effect." Br. of Appellant at 12. But the
prosecutorial misconduct in Glasmann was far more egregious than any statements
made in this case. In Glasmann, the prosecutor used a slide show during closing
argument containing several prejudicial images of the defendant with superimposed
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captions such as "GUILTY!" Glasmann, 175 Wn.2d at 700-02. The court found that the
use of this slideshow amounted to reversible misconduct: "Given the multiple ways in
which the prosecutor attempted to improperly sway the jury and the powerful visual
medium he employed, no instruction could erase the cumulative effect of the
misconduct in this case. The prosecutor essentially produced a media event with the
deliberate goal of influencing the jury to return guilty verdicts on the counts against
Glasmann." Glasmann, 175 Wn.2d at 708. Nothing in this case matches the severity of
the misconduct in Glasmann.
CONCLUSION
Because the State presented sufficient evidence such that any reasonable trier of
fact could conclude the element of strangulation proven beyond a reasonable doubt,
and because Mendoza-Escatel fails to show a substantial likelihood that any of the
prosecutor's comments affected the verdict, we affirm the judgment and sentence.
WE CONCUR:
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