IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 77414-0-I
Respondent, DIVISION ONE
V.
FRANCISCO JAVIER VALDIVIA- UNPUBLISHED OPINION
ENRIQUEZ,
Appellant. FILED: August 5, 2019
CHUN, J. — A jury convicted Francisco Javier Valdivia-Enriquez of one
count of rape of a child in the first degree and one count of rape of a child in the
second degree. The charges stemmed from incidents occurring years earlier
when the victim, J.M.A.H., was a child. By the time of the charges, J.M.A.H. was
20 years old. On appeal, Valdivia-Enriquez claims (1) the trial court erred in
denying his motion to admit evidence of J.M.A.H.’s juvenile criminal record, and
(2) the State engaged in prosecutorial misconduct by vouching for the credibility
of J.M.A.H. We affirm. However, we remand the case for the trial court to strike
the DNA collection fee from the Judgment and Sentence.
BACKGROUND
When he was 20 years old, J.M.A.H. had a sexual encounter with his
girlfriend that caused bad memories to resurface. J.M.A.H then revealed to his
girlfriend that his former soccer coach and friend, Valdivia-Enriquez, molested
and raped him as a child. His girlfriend convinced J.M.A.H. to report the abuse to
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the police. The State charged Valdivia-Enriquez with one count of rape of a child
in the first degree and one count of rape of a child in the second degree.
Prior to trial, Valdivia-Enriquez moved to admit evidence of J.M.A.H.’s
lengthy juvenile criminal record, including multiple adjudications for theft-related
residential burglary, as well as an adjudication for possession of stolen property
and theft of a firearm. Valdivia-Enriquez requested admission of this evidence
under ER 609(d) and ER 404(b) and sought to admit this evidence to
demonstrate that J.M.A.H. made the accusations of sexual assault to repair the
family relationships strained by his prior juvenile criminal behavior. Valdivia
Enriquez also hoped to admit the juvenile convictions for the jury to evaluate and
assess J.M.A.H.’s credibility. The trial court denied admission of this evidence.
A jury convicted Valdivia-Enriquez as charged. The trial court sentenced
Valdivia-Enriquez to a standard range sentence and imposed legal financial
obligations, including a $100 DNA collection fee.
Valdivia-Enriquez appeals.
DISCUSSION
A. Evidentiary Issues
Valdivia-Enriquez argues the trial court deprived him of the right to present
a defense by prohibiting him from impeaching J.M.A.H. with evidence of prior
juvenile convictions for crimes of dishonesty. The State asserts the trial court
properly excluded the evidence because Valdivia-Enriquez failed to show the
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relationship between the witness’s juvenile record and his testimony. We agree
with the State.
The Sixth Amendment to the United States Constitution and article 1,
section 22 of the Washington Constitution grant criminal defendants the right to
present a defense and the right to confront and cross-examine adverse
witnesses. Statev. Hudlow, 99Wn.2d 1,14-15,659 P.2d 514 (1983). However,
the right to present a defense is not absolute. State v. Jones, 168 Wn.2d 713,
720, 230 P.3d 576 (2010). It is subject to the established rules of evidence.
State v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015). “Defendants
have a right to present only relevant evidence, with no constitutional right to
present irrelevant evidence.” Jones, 168 Wn.2d at 720 (emphasis omitted).
Additionally, courts may deny cross-examination if the evidence sought is vague,
argumentative, or speculative. Statev. Darden, 145 Wn.2d 612,621,41 P.3d
1189 (2002).
We review for abuse of discretion a trial court’s decision to exclude
evidence. State v. Perez-Valdez, 172 Wn.2d 808, 814, 265, P.3d 853 (2011). “A
trial court’s evidentiary ruling is an abuse of discretion only if it is ‘manifestly
unreasonable or based upon untenable grounds or reasons.” Perez-Valdez, 172
Wn.2d at 815 (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615
(1995)). When a defendant alleges that a constitutional error arises from an
adverse evidentiary ruling, we first review for abuse of discretion. State v. Blair,
3 Wn. App. 2d 343, 353, 415 P.3d 1232 (2018); State v. Clark, 187 Wn.2d 641,
648-49, 389 P.3d 462 (2017). If we determine the court has not abused its
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discretion, the inquiry ends because there is no error. Blair, 3 Wn. App. 2d at
352. If the trial court abused its discretion, we turn to a de novo review of the
constitutional claim. Blair, 3 Wn. App. 2d at 353.
1. Credibility
Valdivia-Enriquez requested admission of J.M.A. H’s prior juvenile
adjudications to impeach credibility. ER 609 governs the admissibility of prior
convictions for crimes of dishonesty for purposes of attacking credibility.
ER 609(d) generally bars admission of evidence of juvenile adjudications to
impeach credibility. But the court may allow evidence of juvenile convictions “if
conviction of the offense would be admissible to attack the credibility of an adult
and the court is satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence.” ER 609(d). This requires an
“indication of special reasons favoring admissibility” amounting to “a positive
showing that the prior juvenile record is necessary to determine guilt.” State v.
Gerard, 36 Wn. App. 7, 12, 671 P.2d 286 (1983). The trial court has broad
discretion on admissibility of juvenile adjudications sought solely for general
impeachment purposes. Gerard, 36 Wn. App. at 11.
Valdivia-Enriquez fails to establish any special reason favoring admission
of evidence otherwise inadmissible. Therefore, the trial court did not err in
finding the prior adjudications unnecessary for a fair determination of guilt or
innocence and properly exercised its broad discretion to deny admission of the
evidence.
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2. Motive
Valdivia-Enriquez also sought admission of the juvenile convictions to
support his defense that J.M.A.H. made the allegations of molestation in order to
improve J.M.A.H.’s strained relationship with his family. Valdivia-Enriquez argued
the convictions showed motive:
As far as for motive, it’s on the basis of why he and his family might
be on bad footing and why, as a way to get back on better footing
with his family, it would explain, “All my behavior was kind of based
on the fact that Mr. Valdivia had done this horrible things [sic] to me,
and that’s why I had all these indiscretions and everything,” and now
that he has revealed it, his life his relationship with his family is
--
much better and they moved along and things like that.
The trial court determined the evidence lacked a sufficient nexus with the alleged
motive, and that the prejudicial impact outweighed the very low probative value of
the evidence.
ER 404(b) allows admission of evidence of other crimes to show motive.
Prior juvenile adjudications are also admissible to show bias or motive. Gerard,
36 Wn. App. at 11. Even when relevant to prove motive, the trial court must
evaluate the evidence under ER 403 and “exercise its discretion in excluding
relevant evidence if its undue prejudice substantially outweighs its probative
value.” State v. Fuller, 169 Wn. App. 797, 829-30, 282 P.3d 126 (2012).
Valdivia-Enriquez requested admission of J.M.A.H.’s prior juvenile
adjudications to show motive. Upon inquiry from the trial court, Valdivia-Enriquez
acknowledged he lacked any proof that the prior convictions led to the strained
relationship between J.M.A.H. and his family. The evidence of motive was
“inference with a few steps” from anticipated testimony of an “icy” family
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relationship prior to J.M.A.H.’s disclosure of the abuse. Valdivia-Enriquez also
admitted that he could raise this defense without the juvenile adjudications: “I
could do that without convictions. I believe that that provides a little bit of a
further story.”
Based on these statements, J.M.A.H.’s prior juvenile adjudications were
not essential to Valdivia-Enriquez’s defense. The trial court properly found very
low or “non-existent” probative value of the juvenile adjudications. Moreover, the
link between J.M.A.H.’s juvenile record and the alleged motive was merely
speculation. Denial of this speculative evidence falls within the court’s discretion.
See Darden, 145 Wn.2d at 621. The trial court did not abuse its discretion by
denying admission of the juvenile adjudications as evidence of motive.
Because the trial court’s decision on the juvenile adjudications did not
amount to an abuse of discretion, we do not reach Valdivia-Enriquez’s claimed
violation of his constitutional right to present a defense. See Blair, 3 Wn. App. 2d
at 352.
B. Prosecutorial Misconduct
Valdivia-Enriquez asserts the prosecutor engaged in misconduct that
deprived him of his right to a fair trial by vouching for the credibility of the sole
witness against him. The State contends the prosecutor did not express a
personal belief regarding the witness’s credibility. Instead, the State argues the
prosecutor drew reasonable inferences from the evidence. We agree with the
State.
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The prosecutor referred to J.M.A.H. as credible on multiple occasions
during her closing argument. The record shows the prosecutor making
statements such as “Ladies and gentlemen, [J.M.A.H.] is credible, and the
reason why we know that the State proved this case beyond a reasonable doubt
really comes down to that,” and “It comes down to the fact that the credibility of
[J.M.A.H.] is without question. Without question.” Valdivia-Enriquez argues that
these instances, as well as other examples discussed below, indicate
prosecutorial misconduct.
A defendant that claims prosecutorial misconduct must prove that the
prosecutor’s comments were both improper and prejudicial. In re Pers. Restraint
of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). A prosecutor’s
comments are prejudicial only if there is a “‘substantial likelihood the misconduct
affected the jury’s verdict.” State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359
(2007) (emphasis omitted). Where, as here, the defendant failed to object to an
improper remark below, such failure “‘constitutes a waiver of error unless the
remark is so flagrant and ill intentioned that it causes an enduring and resulting
prejudice that could not have been neutralized by an admonition to the jury.”
State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011) (quoting State v.
Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994)). “Jurors are presumed to
follow the court’s instruction.” In re Pers. Restraint of Phelps, 190 Wn.2d 155,
172, 410 P.3d 1142 (2018).
Prosecutors have “wide latitude to draw and express reasonable
inferences from the evidence” in their closing arguments. State v. Robinson, 189
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Wn. App. 877, 893, 359 P.3d 874 (2015). “The prejudicial effect of a
prosecutor’s improper comments is not determined by looking at the comments
in isolation but by placing the remarks ‘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. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)
(quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Prosecutorial misconduct by vouching occurs when the prosecutor either
(1) places the prestige of the government behind the witness, or (2) indicates that
information that was not presented to the jury supports the witness’s testimony.
Robinson, 189 Wn. App. at 892—93. Further, there is a difference between the
prosecuting attorney’s individual opinion presented as an independent fact, and
“an opinion based upon or deduced from the testimony in the case.” Mckenzie,
157 Wn.2d at 53 (quoting State v. Armstrong, 37 Wn. 51, 54—55, 79 P. 490
(1905) (emphasis omitted)).
Valdivia-Enriquez cites an instance in which the prosecutor, as part of a
PowerPoint presentation, presented a slide entitled “[J.M.A.H.] is credible.” In
isolation, such a title may suggest prosecutorial vouching, but the content and
context of the slide shows otherwise. Following the title, the prosecutor listed
four bullet points as a means to guide the jury during her discussion of the
witness’s credibility. The bullet points, “NO MOTIVE,” “Disclosure,”
“Corroboration,” and “Demeanor,” mirrored the prosecutor’s talking points as she
asserted why the evidence supported the witness’s credibility. The prosecutor
cited examples from the record that demonstrated the lack of “bad blood”
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between Valdivia-Enriquez and the witness’s family to emphasize the lack of
motive, as well as the dubious likelihood that the witness could provide “the
performance of a lifetime” and continuously feign distraught emotions, such as
crying, as he recounted the events. This allowed the jury to consider the
evidence and make inferences about credibility and in turn did not demonstrate
prosecutorial vouching for J.M.A. H.’s credibility.
Valdivia-Enriquez also asserts the prosecutor vouched for the witness
through statements such as “we know [J.M.A.H.] is credible” and that the
witness’s credibility was “without question.” Again, the court cannot view such
comments in isolation. When viewed in context, the comments express
reasonable inferences from the evidence. For example, the prosecutor followed
“we know [J.M.A.H.j is credible” with a reminder of the situation in which the
witness first disclosed the incident to emphasize the witness’s motivation:
[J.M.A.H.] was in the middle of an act with his girlfriend that was
supposed to be interesting and fun and new, but it went horribly south
when he hurt her and all of these memories flooded back into his
back [sic]. He described a physical, visceral response to seeing pain
and fear in his girlfriend’s eyes because he was placing himself in
the shoes of the person who had done itto him.
The prosecutor used this example along with the surrounding evidence following
the incident to corroborate the credibility of the witness.
Further examples, such as the witness’s desire to quit soccer, his
emotional withdrawal from family, and his motivation for disclosing the crime,
provided the jury with evidence to consider as it evaluated the witness’s
credibility. The prosecutor addressed credibility by examining the witness’s
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retelling of the incident and resulting emotional behavior after the incident, and
thereby did not inappropriately vouch for the witness’s credibility.
In light of the foregoing, we conclude that the prosecutor did not place the
prestige of the government behind the witness or cite information not provided as
evidence to the jury in order to support the witness’s testimony. As a result,
Valdivia-Enriquez fails to prove prosecutorial misconduct through vouching.
Even if Valdivia-Enriquez were able to successfully argue the comments
were improper, he fails to prove his additional burden that the prejudice resulting
from the prosecutor’s flagrant and ill-intentioned comments was not curable by a
jury instruction. Valdivia-Enriquez argues that the comments would unduly
influence the jurors. However, the prosecution reminded the jury during its
closing argument that it was up to the jury to “go back into that room to determine
who was credible, what testimony was credible.” Furthermore, the jury
instructions in this case ordered jurors to disregard remarks and comments of
any lawyer if they are inconsistent with the law or evidence, while also reminding
jurors that the lawyers’ statements are not evidence. In addition, the jury
instructions informed jurors that they are “the sole judges of the credibility of each
witness.”
Had Valdivia-Enriquez objected to the prosecutor’s statements during
closing arguments, the trial court could have reiterated these jury instructions.
Because jurors are presumed to follow the court’s instructions, and because the
instructions told the jurors to consider themselves the only determiners of
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credibility, Valdivia-Enriquez cannot demonstrate that the comments resulted in
prejudice.
C. DNA Fee
Valdivia-Enriquez and the State both request remand for the trial court to
strike the $100 DNA collection fee because the State previously collected
Valdivia-Enriquez’s DNA due to prior convictions. A legislative amendment
effective June 7, 2018, eliminated the mandatory $100 DNA collection fee where
“the state has previously collected the offender’s DNA as a result of a prior
conviction.” RCW 43.43.7541. This amendment applies prospectively to
Valdivia-Enriquez due to his pending direct appeal at the time of the
amendment’s enactment. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714
(2018). As a result, we remand for the trial court to strike the DNA fee from the
Judgment and Sentence.
Affirmed. Remanded to strike the DNA collection fee.
WE CONCUR:
__________ /~ /