IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 11...,
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THE STATE OF WASHINGTON, ) No. 77328-3-1 -4--
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Respondent, ) DIVISION ONE . %.0 -13r•
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EDWARD ALBERTO MOZQUEDA, ) c....) 2.z
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) FILED: April 29, 2019
HAZELRIGG-HERNANDEZ, J. — To prevail on a claim of ineffective assistance
of counsel, defendant must show deficient performance and a reasonable
probability of a different outcome. Because the decision not to object to out-of-
court statements was a reasonable tactical decision, and because the jury would
have received very similar information even with the objections, Mozqueda's
ineffective assistance of counsel claim fails. We affirm.
FACTS
On March 6, 2016, G.M.C. disclosed to her mother, A.C., that she had been
sexually assaulted by her brother-in-law, Edward A. Mozqueda. G.M.C. provided
a written statement to the police that day. She alleged that Mozqueda had started
touching her inappropriately when she was seven, and that the most recent assault
was in February, 2016. She was examined by doctors at Seattle Children's
Hospital, and made statements regarding the assault to the doctors. G.M.C. was
No. 77328-3-1/2
also seen by a nurse practitioner and social worker at the Harborview Center for
Sexual Assault and Traumatic Stress, and made statements regarding the assault
to them. She also participated in a forensic interview with law enforcement.
Mozqueda was charged with one count of rape of a child in the first degree
and one count of rape of a child in the second degree. At trial, G.M.C. testified
regarding two incidents where Mozqueda forced her to perform oral sex on him.
The State introduced statements from A.C., law enforcement, and several medical
professionals that G.M.C. identified Mozqueda as her assailant. Mozqueda
objected to the statements during the testimony of A.C., but the trial court permitted
them as statements of identification. The State also elicited testimony from its
witnesses that G.M.C. had not identified anyone else. Mozqueda elicited
testimony regarding animosity between A.C. and Mozqueda, and testimony that
suggested A.C. had coached G.M.C. after her initial accusation. Mozqueda also
elicited testimony regarding G.M.C.'s inconsistency regarding the timing of the
assaults. The jury returned guilty verdicts on both counts.
Mozqueda appeals, claiming his counsel was ineffective for failing to object
to the statements of third party witnesses that G.M.C. identified him as her
assailant.
DISCUSSION
I. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, Mozqueda must
demonstrate (1) counsel's performance was deficient and (2) resulting prejudice.
State v. Estes, 188 Wn.2d 450, 457-58, 395 P.3d 1045(2017)(citing Strickland v.
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No. 77328-3-1/3
Wash., 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Performance is
deficient if it falls below an objective standard of reasonableness based on all the
circumstances. Id. (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d
1251 (1995)). The defendant"must overcome 'a strong presumption that counsel's
performance was reasonable." State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260
(2011) (quoting State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).
Performance is not deficient when counsel's conduct can be characterized as
reasonable trial strategy. Id. (citing KvIlo, 166 Wn.2d at 863). "The relevant
question is not whether counsel's choices were strategic, but whether they were
reasonable." Roe v. Flores-Oreteqa, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L.
Ed. 2d 985 (2000).
Given the circumstances of this case, declining to object to the statements
identifying Mozqueda was a reasonable tactical decision. G.M.C. never identified
any other person and her identification of Mozqueda was never disputed by the
parties. Instead, the defense argued that G.M.C. had fabricated her story, either
to cover up activity with a boyfriend or at the behest of A.0 because of A.C.'s
animosity toward Mozqueda. Additionally, when Mozqueda's counsel did object
to similar statements, the court made it clear that it did not consider statements of
identification hearsay. This may have impacted defense trial strategy moving
forward.
Declining to object to the statements of the treating physician, nurse and
social worker who assessed G.M.C. pursuant to the case was also a reasonable
tactical decision. A hearsay exception clearly permits statements for the purposes
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No. 77328-3-1/4
of medical treatment to be admitted at trial. ER 803(a)(4). G.M.C. was being
treated by medical professionals as a result of the assaults, and Mozqueda
concedes that statements by a child victim identifying a family member fall within
this exception because medical professionals have a duty to protect children from
future abuse. See State v. Butler, 53 Wn. App. 214, 221, 766 P.2d 505 (1989),
(citing United States v. Renville, 779 F.2d 430, 438 (8th Cir. 1985)).
Mozqueda instead argues that if counsel had objected, those statements
would have been excluded under ER 403 because their unfair prejudice
substantially outweighed the statements' probative value. We are unconvinced
that the trial court would have excluded the statements. While the statements were
cumulative of other evidence and prejudicial to Mozqueda, Mozqueda has not
shown that the resulting prejudice substantially outweighed the significant
probative value of the statements. Because declining to object to those statements
was a reasonable tactical decision, and because Mozqueda has not shown that
those statements would have been excluded if defense counsel had made a proper
objection, we find no ineffective assistance of counsel.
Furthermore, it appears that even sustained objections to the statements
would have provided little help to Mozqueda. The State regularly followed up the
identification questions by asking its witnesses if G.M.C. ever identified anyone
else as her assailant. The witnesses consistently noted that she had not. While
the corroborative value of this question was not identical to the statements
identifying Mozqueda, it bolsters G.M.C.'s credibility in the same way: as to
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No. 77328-3-1/5
identity, her accusations remained consistent. No valid objection would have
prevented that testimony.
For the same reason, Mozqueda has not demonstrated the necessary
prejudice for reversal. In order to show prejudice, the defendant must show there
is a reasonable probability the outcome of the proceedings would have been
different. Estes, 188 Wn.2d at 458 (citing KvIlo, 166 Wn.2d at 862). The defendant
"must show more than a 'conceivable effect on the outcome." Id. (quoting State v.
Crawford, 159Wn.2d 86,99, 147 P.3d 1288(2006)). Here, because the jury would
have received similar information corroborating G.M.C.'s allegations even if
Mozqueda's counsel had made objections that were sustained, we cannot find a
reasonable probability the outcome of the proceedings would have been different.
Affirmed.
WE CONCUR:
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