IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) NO. 78382-3-I
Respondent, ) DIVISION ONE
v. )
) UNPUBLISHED OPINION
JUAN JOSE CARRILLO, )
Appellant. ) FILED: November 18, 2019
LEACH, J. — Juan Carrillo appeals his conviction for assault in the second
degree and felony harassment. First, he challenges the trial court’s admission of
prior bad act evidence to show the victim’s reasonable fear, its exclusion of part
of a 911 tape as not relevant, and its admission of another 911 call that he claims.
was not admissible under any hearsay exception. He also asserts a police
officer’s testimony about Carrillo’s invocation of his Miranda’ rights is
constitutional error. Finally, he claims that cumulative error deprived him of a fair
trial.
Carrillo fails to establish that the court abused its discretion when it
admitted a prior bad act under ER 404(b). In addition, the trial court did not
Miranda v. Arizona, 384 U.S. 436, 86 5. Ct. 1602, 16 L. Ed. 2d 694
(1966).
No. 78382-3-I /2
abuse its discretion by excluding part of the 911 call as not relevant and
admitting another 911 call as a present sense impression. Finally, while the
officer’s comment was error, this error was harmless beyond a reasonable doubt,
and no cumulative error exists. We affirm the conviction.
FACTS
On July 12, 2016, S.B. and Juan Carrillo were at home. Their two
children, C.C. and A.C, were in their bedroom. S.B. and Carrillo began to argue
in their bedroom. Carrillo followed S.B. out into the living room, and they
continued to argue. Carrillo “yanked” S.B.’s phone from her, they struggled over
the phone, and Carrillo pushed S.B. against the couch. While S.B. was on the
ground, Carrillo used a decorative metal car to hit S.B. in the head 10 to 20
times, repeatedly telling her he was going to kill her. S.B. yelled for help. In
response, C.C. came out of her bedroom and down the hallway. C.C. saw her
father hitting her mother on the head with the car and her mother on the ground,
trying to block his hits. C.C. returned to the bedroom to get her sister, A.C. A.C.
then came out of the bedroom and took her father off her mother.
As A.C. removed her father, S.B. and C.C. left out the front door. S.B.
was able to get outside where A.C. and a neighbor each spoke to a 911 operator.
Police officers Lewis and Wilkinson then arrived on the scene and saw S.B.
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No. 78382-3-I I 3
sitting on the front steps of the apartment with blood coming from her face. S.B.
directed the officers to the apartment, CarriHo allowed the officers inside, and
they arrested Carrillo.
The State charged Carrillo with assault in the second degree and felony
harassment. Before trial, the State asked to admit at trial evidence of a 2015
incident where Carrillo strangled and threatened to kill S.B. to show the victim’s
reasonable fear element of felony harassment. The trial court admitted the
evidence for this purpose and gave the jury a limiting instruction. It excluded
other evidence of a number of other prior bad acts by Carrillo against S.B.
The State asked the court to exclude a part of A.C.’s 911 call where she
said that “this has never happened before” and that the police had not visited
their house before. The court agreed with the State that this part of her 911 call
was not relevant and excluded it.
Carrillo then sought to exclude the 911 call from the neighbor. The court
allowed a recording of the call. It reasoned that the statements were
nontestimonial and fit within a hearsay exception.
At trial, Officer Lewis testified to the following:
Q. [Prosecutor] And was he also provided with the Miranda
warnings?
A. [Officer Lewis] Yes, I read him his Miranda warnings from a
department issued card.
Q. Okay. And after that, what happens next?
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No. 78382-3-I /4
A. He said that he invoked his Miranda rights.
Q. I’m going [to] ask you—just ask us to move on from that.
After this exchange, the court instructed the jury to “disregard the
witness’s answer that the defendant invoked his Miranda rights.”
The jury found Carrillo guilty as charged. Carrillo appeals.
ANALYSIS
Admission of Evidence
ER 4 04(b) Evidence
Carrillo contends that the trial court abused its discretion under ER 404(b)
when it admitted evidence that he strangled S.B. about one year earlier. Carrillo
claims that the State did not show how this prior bad act tended to prove her
reasonable fear.
Interpretation of an evidentiary rule presents a question of law that we
review de novo.2 We review the trial court’s decision to admit evidence under ER
404(b) for an abuse of discretion.3 A court abuses its discretion when it
exercises it on untenable grounds or for untenable reasons.4
ER 404(b) prohibits evidence of prior bad acts to show the defendant’s
character or propensity to commit crimes.5 But evidence of prior bad acts may
2 State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).
~ DeVincentis, 150 Wn.2d at 17.
~ State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
~ State v. Lough, 125 Wn.2d 847, 862-63, 889 P.2d 487 (1995).
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No. 78382-3-I I 5
be admitted for other purposes.6 To prove felony harassment, the State must
establish that the victim had a reasonable fear that the attacker would carry out
his attack.7 If a party wants to introdUce a prior bad act for a purpose other than
for propensity, the trial court must (I) find by a preponderance of the evidence
that the misconduct occurred, (2) identify the purpose for admitting the evidence,
(3) determine whether the evidence is relevant to an element of the current
charge, and (4) find that the probative value of the evidence outweighs its
prejudicial effect.8
The trial court must conduct this analysis on the record.9 In doubtful
cases, the trial court should exclude the evidence.10 If the court admits the
evidence, it must also give a limiting instruction to the jury.11 If the trial court
gives a limiting instruction, we presume that jurors have followed that instruction,
absent evidence proving the contrary.12
S.B. testified to a prior event when Carrillo squeezed her neck “very hard”
and she had difficulty breathing. The court could reasonably conclude that the
~ State v. Raqin, 94Wn. App. 407, 411, 972 P.2d 519 (1999).
~ State v. C.G., 150 Wn.2d 604, 612, 80 P.3d 594 (2003).
8 State v. Saltarelli, 98 Wn.2d 358, 362-63, 655 P.2d 697 (1982).
~ State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986) (citing State v.
Jackson, 102 Wn.2d 689, 694, 689 P.2d 76 (1984)).
10 Smith, 106 Wn.2d at 776.
11 State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007).
12 State v. Montciomerv, 163 Wn.2d 577, 596, 183 P.3d 267 (2008).
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No. 78382-3-I I 6
prior incident showed S.B. reasonably feared Carrillo would carry out his threat.
It considered all of the prior misconduct evidence and the parties’ arguments on
the record. The court conducted the four-step ER 404(b) analysis in light of the
evidence of prior acts being offered for an alternative purpose. It found by a
preponderance of the evidence that the prior misconduct occurred, it was
relevant about S.B.’s reasonable fear, and it was highly probative. Because
demonstrating that S.B. had a reasonable fear that Carrillo would carry out his
threat to kill her is a critical element of the crime charged—felony harassment—
the court acted within its discretion to find that its probative value outweighed its
possible prejudicial effect.13 Also, the trial court gave the jury an appropriate
limiting instruction based on the testimony. It instructed the jury to consider the
prior bad act only for the purpose of determining whether Carrillo “placed [S.B.] in
reasonable fear that the alleged threat to kill . . . would be carried out.”
Carrillo further claims that because S.B. never testified whether or not this
prior event specifically made her reasonably believe Carrillo’s threat to kill, the
State did not establish the requisite nexus. However, Carrillo provides no
supporting authority that this testimony is required before a court may admit
13 C.G., 150 Wn.2d at 612.
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No. 78382-3-I I 7
evidence of prior acts for this purpose.14 So the trial court did not abuse its
discretion in admitting the evidence of the strangulation under ER 404(b).
Excluded Evidence
Carrillo next contends that the trial court erred in excluding part of a 911
call made by A.C. He claims that the excluded portion of the call was relevant to
his defense because it countered S.B.’s claim that Carrillo assaulted her in the
past. He further claims that the trial court violated his constitutional right to
present a full defense by excluding the evidence.
We review a trial court’s decision to exclude evidence for abuse of
discretion.15 “State courts have broad latitude under the Constitution to establish
rules excluding evidence from criminal trials.”16 While the Sixth Amendment
grants a criminal defendant the right to present his defense,17 this right extends
only to “‘relevant evidence that is not otherwise inadmissible.”18 “[A] criminal
14State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000)
(“‘Where no authorities are cited in support of a proposition, the court is not
required to search out authorities, but may assume that counsel, after diligent
search, has found none.”) (quoting DeHeer v. Seattle Post-Intelligencer, 60
Wn.2d 122, 126, 372 P.2d 193 (1962)).
15 State v. Atsbeha, 142 Wn.2d 904, 91 3-14, 16 P.3d 626 (2001).
16 State v. Donald, 178 Wn. App. 250, 263, 316 P.3d 1081 (2013) (citing
United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413
(1998)), review denied, 180 Wn.2d 1010 (2014).
17 Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d
1019 (1967).
18 State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006)
(quoting State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)).
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No. 78382-3-I I 8
defendant has no constitutional right to have irrelevant evidence admitted in his
or her defense.”19
‘The threshold to admit relevant evidence is very low.”20 Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.”21 Relevant evidence may still be deemed
inadmissible if the State can show the evidence is “so prejudicial as to disrupt the
fairness of the fact-finding process at trial.”22 If the State establishes that the
evidence would have a prejudicial effect, the prejudice from admission must be
balanced against the defendant’s need for the information sought.23
A.C. stated in the 911 call that “this has never happened before” and that
the police had never visited their house. S.B. testified that neither of her children
witnessed the prior incident, nor did they have information about it. Because
A.C. had no knowledge of any prior assaults, the excluded evidence did not have
“any tendency” to make the prior assault “more probable or less probable than it
19Statev. Hudlow, 99Wn.2d 1,15,659 P.2d 514 (1983).
20 State v. Darden, 145 Wn.2d 612, 621,41 P.3d 1189 (2002).
21 ER 401.
22 Darden, 145 Wn.2d at 622.
23 Darden, 145 Wn.2d at 622.
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No. 78382-3-I I 9
would be without the evidence.”24 During an evidentiary hearing, the trial court
found that A.C.’s statements were not relevant to any issue in the case.
The trial court did not abuse its discretion in excluding A.C.’s statements
and did not violate Carrillo’s constitutional right to present a full defense.
Admission of the 911 Tape
Carrillo next claims that the trial court abused its discretion by admitting
the neighbor’s 911 call. Namely, he claims that the neighbor’s statements do not
qualify under the present sense impression exception to the hearsay rule
because (1) the caller was responding to questions from the operator and (2) she
did not personally perceive what she was reporting. We disagree.
We review admission of evidence under hearsay exceptions for abuse of
discretion.25 ‘Hearsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.”26 Hearsay is inadmissible unless it falls under an exception to
the hearsay rule.27 In instances of multiple hearsay, each level of hearsay must
be independently admissible.28
24ER 401.
25Brundrjdqe v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 450, 191 P.3d
879 (2008).
26 ER 801(c).
27 ER 802.
28 ER 805.
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No. 78382-3-I /10
Present sense impression and excited utterance are two exceptions to the
hearsay rule.29 A present sense impression is ‘[a] statement describing or
explaining an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter.”3° An excited utterance is ‘[a]
statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.”31
Here, the 911 caller stated that “there’s a female outside yelling that she
got hit” and “she’s outside and she’s screaming that she needs help because
somebody hit her.”
Statements made in response to an operator’s questions do not disqualify
these statements as present sense impressions.32 So long as the responses are
describing or explaining an event or condition as the speaker is perceiving it, the
statements can show a present sense impression.33
Carrillo cites State v. Martinez34 to support his claim that statements made
in response to questions by an operator do not qualify as present sense
29 ER 803.
30 ER 803(a)(1).
31 ER 803(a)(2).
32 State v. Robinson, 189 Wn. App. 877, 889, 359 P.3d 874 (2015)
(explaining how statements made from a 911 caller in response to an operator’s
questions were present sense impressions).
~ ER 803(a)(1).
~~105 Wn. App. 775,784,20 P.3d 1062 (2001).
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No. 78382-3-I /11
impression. However, the facts in Martinez differ significantly from this case. In
Martinez, an informant made statements to police about an undercover drug
operation.35 The court noted that the statements were not a present sense
impression because they were inconsistent and were “an inadmissible statement
of memory or belief.”36
Here, the court played the 911 tape and heard the speaker reporting the
event as it happened. Carrillo does not challenge the accuracy of the
statements, unlike in Martinez. So the fact that the speaker was responding to
the operator’s questions does not prevent the statements from qualifying as a
present sense impression.
Next, Carrillo’s claim that the statements do not qualify as present sense
impression because the speaker did not personally perceive what she was
reporting is without merit. The 911 call included statements that qualify under the
hearsay-within-hearsay exception. The trial court correctly identified S.B.’s
statements as excited utterances and the caller’s statements as a present sense
impression. The court did not abuse its discretion in admitting the evidence.
~ Martinez, 105 Wn. App. at 784.
36 Martinez, 105 Wn. App. at 784.
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Right Against Self-Incrimination
Carrillo contends the court violated his Fifth Amendment right to remain
silent when Officer Lewis testified during trial that Carrillo “invoked his Miranda
rights” after the State asked what happened after he read Carrillo his rights.
Carrillo claims that the question and answer had no purpose other than to inform
the jury that he refused to talk to police.
The Fifth and Fourteenth Amendments to the United States Constitution
and article I, section 9 of the Washington Constitution protect a defendant’s right
against self-incrimination.37 “In the postarrest context, it is well-settled that it is a
violation of due process for the State to comment upon or otherwise exploit a
defendant’s exercise of his right to remain silent.”38 A police witness may not
comment on the defendant’s silence in a way that infers guilt from the
defendant’s refusal to answer questions.39 If, during trial, the State or an officer
directly comments on a suspect’s right to remain silent, we must determine
whether the error was harmless beyond a reasonable doubt.4° It is harmless
~ State v. Easter, 130 Wn.2d 228, 238, 922 P.2d 1285 (1996).
38 State v. Romero, 113 Wn. App. 779, 786-87, 54 P.3d 1255 (2002)
(citing Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91(1976);
State v. Fricks, 91 Wn.2d 391, 395-96, 588 P.2d 1328 (1979)).
~ State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996).
40 Romero, 113 Wn. App. at 790.
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No. 78382-3-1/13
beyond a reasonable doubt if any reasonable jury would reach the same result
absent the error.41
Officer Lewis testified that Carrillo invoked his Miranda rights. So his
testimony is a direct comment on Carrillo’s silence and is improper.42
After Officer Lewis stated that Carrillo invoked his Miranda rights, the
State immediately stated that they should ‘move on from that” and the court
instructed the jury to disregard the comment. Also, Carrillo’s two daughters
witnessed the assault. Carrillo admitted and apologized to his daughters after
the assault. When the officers entered the apartment, Carrillo told them on the
scene, ‘i’m sorry.” After the officers entered the apartment, they witnessed drops
of blood in the entryway and the weapon. Given the overwhelming evidence in
this case, a reasonable jury would have reached the same result absent Officer
Lewis’s comment. Although Officer Lewis made an improper comment on
Carrillo’s invocation of his right to silence, the error was harmless beyond a
reasonable doubt.
Cumulative Error
Carrillo asserts that cumulative error exists and warrants reversal. A
defendant may be entitled to a new trial if cumulative errors exist to deny the
41 Easter, 130 Wn.2d at 242.
42 Romero, 113 Wn. App. at 791.
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No. 78382-3-I /14
defendant a fair trial.43 The only error that occurred in this case was testimony
on Carillo’s invocation of his right to silence. Without additional errors, there
cannot be cumulative error. Carrillo is not entitled to a new trial.
CONCLUSION
We affirm. Because the State used prior misconduct to prove an element
of the charged crime, the court conducted a 404(b) analysis, and the court gave
a limiting instruction, Carrillo fails to establish that the court abused its discretion
when it admitted the prior misconduct evidence. And the trial court did not abuse
its discretion by excluding A.C.’s statements or admitting a 911 call as a present
sense impression. Finally, while Officer Lewis did comment on Carrillo’s right to
remain silent, this error was harmless beyond a reasonable doubt and no
cumulative error exists.
WE CONCUR:
Cfr~~4~’
~ State v. Saunders, 120 Wn. App. 800, 826, 86 P.3d 232 (2004).
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