IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 80987-3-I
v.
UNPUBLISHED OPINION
JAIME MICHAEL ENGEL,
Appellant.
DWYER, J. — Jaime Engel appeals from his conviction of rape in the
second degree. Engel contends that the trial court erred by (1) denying his
motion for a mistrial, and (2) admitting evidence demonstrating that the victim of
the rape had been, on a separate occasion, sexually harassed by a former
employer. Additionally, Engel asserts that his defense attorneys provided
ineffective assistance by not objecting to the exclusion of certain evidence.
Finally, Engel contends that cumulative error deprived him of a fair trial. Because
Engel fails to establish an entitlement to relief on any of these claims, we affirm.
I
In 2017, R.C. was homeless, addicted to heroin, and engaged in sex work.
With no home or vehicle, R.C. slept on the streets around Aurora Avenue North
in Seattle. During this time, R.C. frequented the Aurora Commons, a nonprofit
community space for people without housing.
No. 80987-3-I/2
When R.C. first met Engel, he was looking for someone who had a form of
identification that could be used to rent a motel room on his behalf. R.C. agreed
to rent a motel room for Engel. After renting the room, R.C. entered the room
with Engel. They then conversed and used drugs. R.C. and Engel did not
engage in sexual intercourse on this occasion. However, R.C. informed Engel
that she was a sex worker.
After a few hours, R.C. departed the motel alone and went to the Aurora
Commons. R.C. was left with the impression that Engel was “a very nice
gentleman.” At this time, R.C. did not know Engel’s name and knew him only by
his nickname “Tap Out.”
The following week, R.C. saw Engel near the Aurora Commons. Engel
asked R.C. whether she would like to make some money. R.C. understood this
to mean that Engel wanted to pay her to engage in sexual intercourse with him.
R.C. agreed to do so.
R.C. and Engel then took a bus to the Wallingford Inn, where Engel had a
room already rented. Engel informed R.C. that “he met some black woman that
rented the room for him.” While in the room, R.C. and Engel initially chatted
about what they had been doing over the previous week. During their
conversation, Engel smoked crack cocaine.
R.C. and Engel then left the motel room to purchase heroin for R.C. While
on their way back to the Wallingford Inn, R.C. attempted to discuss what services
Engel wanted to engage in and how much he would pay for those services.
Each time R.C. attempted to discuss these topics, Engel merely informed R.C.
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No. 80987-3-I/3
that he would “take care” of her.
When R.C. and Engel arrived back at the motel room, Engel’s demeanor
changed dramatically. R.C. testified that Engel was “almost instantly
. . . a different person.” Engel demanded that R.C. “go get well in the bathroom”
and told R.C. to “not come out without announcing” herself. Engel also told R.C.
that she was a “cheap whore.”
When R.C. exited the bathroom, Engel was naked, holding a crack pipe,
and watching “some weird workout video on the TV.” Engel then told R.C. to “get
on the floor and suck his dick.” R.C. acquiesced. Over the next several hours,
Engel forced R.C. to engage in oral and vaginal sexual intercourse. R.C. testified
that Engel “was very forceful, slamming [her] head down on him, grabbing [her]
hair, throwing [her] on the bed, [and] pushing [her] down on the bed.”
At one point, R.C. started to cry. R.C. asked Engel, “Why are you acting
like this to me, why are you being so mean?” Engel then “got really angry.” R.C.
testified that she “knew then that [she] just needed to do what he told [her] to do
and went along with it.”
R.C. informed Engel that he was hurting and scaring her. Engel did not
respond to these pleadings. While Engel was raping R.C., he grabbed her hand,
squeezed it tightly, and said “that’s why they call him Tap Out.” Engel also told
R.C. that “it takes thirty seconds to kill somebody before you realize what you did
and it’s already too late.” R.C. understood this to be a threat. R.C. testified that,
because of this threat, she did not resist Engel’s actions.
At one point, Engel told R.C. that, if she was too loud and somebody
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No. 80987-3-I/4
heard her, “he was going to slam his dick in [her] ass.” R.C. testified that she
“put [her] face into the pillow because [she] was too scared that somebody would
hear [her].” R.C. was afraid that she “wasn’t going to make it out of that room.”
R.C. testified that none of the acts of sexual intercourse that Engel forced her to
engage in were consensual.
The rape ended when R.C. informed Engel that she was supposed to
meet her daughter. R.C. told Engel that her daughter would notify the police if
she did not show up. Engel told R.C. that she had 30 seconds to “get out of
there, grab [her] shit and go.” Engel also threated to kill R.C. and her boyfriend
“if [she] told anybody.”
After leaving the motel room, R.C. went to the Aurora Commons. When
R.C. arrived at the Aurora Commons, she informed a friend that she had been
raped. R.C. thought about reporting the incident to the police at that time, but
she was afraid that Engel would kill her and her boyfriend. Another friend
counseled R.C. to bag her underwear and swab her vagina with cotton swabs in
the event that she wanted to report the incident to the police. R.C. testified that
her vagina was so “tor[n] up” that she “couldn’t sit down for almost a month.”
The following day, R.C. informed Lisa Carlson, a founder of the Aurora
Commons, that she had been raped by “Tap Out.” R.C. also gave Carlson the
bag containing the underwear and cotton swabs. Carlson encouraged R.C. to
report the rape to the police if she ever felt ready to do so. R.C. did not indicate
an interest in reporting the rape at that time. However, R.C. permitted Carlson to
inform the police of the rape and to give them the bag containing the underwear
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No. 80987-3-I/5
and cotton swabs.
Carlson telephoned Detective Michael Settle of the Seattle Police
Department and informed him of the rape. Carlson did not provide R.C.’s name
to Detective Carlson. After Carlson informed Detective Settle of the rape,
Detective Settle retrieved the bag containing the underwear and cotton swabs
from Carlson.
Approximately two months after the rape, R.C. informed a detective that
she had been raped by “Tap Out.” This detective contacted Detective Settle,
who arranged an interview with R.C. about the incident. During the course of the
investigation, Detective Settle learned that the individual nicknamed “Tap Out”
may be Engel. Detective Settle compiled a photomontage that included a
photograph of Engel. Detective Settle asked another detective to show the
photomontage to R.C. When R.C. saw the photomontage, she identified Engel
as being the individual who had raped her.
The State charged Engel with two counts of rape in the second degree.
The first count alleged that Engel raped R.C. The second count alleged that
Engel raped another person, M.T.C. Prior to trial, the court granted a motion to
sever count two from count one. The trial court granted the motion.
Following a jury trial on count one, the rape of R.C., Engel was found
guilty as charged. Engel subsequently pleaded guilty to one count of rape in the
third degree. This count alleged that Engel raped two people, M.T.C. and G.M.
With regard to count one, the trial court sentenced Engel to an indeterminate
sentence of 270 months of incarceration to life. With regard to the count of rape
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No. 80987-3-I/6
in the third degree, the trial court sentenced Engel to 60 months of incarceration
to run concurrently with the sentence imposed for count one.
Engel appeals.
II
Engel contends that the trial court erred by denying his motion for a
mistrial. Specifically, Engel asserts that he was entitled to a mistrial because
witness testimony referenced prejudicial evidence that was excluded by the trial
court pursuant to a pretrial ruling. Because Engel fails to show that he was
prejudiced by the improper testimony, we disagree.
“We review the trial court’s denial of a mistrial for abuse of discretion, and
we find abuse only ‘when no reasonable judge would have reached the same
conclusion.’” State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (internal
quotation marks omitted) (quoting State v. Hopson, 113 Wn.2d 273, 284, 778
P.2d 1014 (1989)). “The trial court should grant a mistrial only when the
defendant has been so prejudiced that nothing short of a new trial can ensure
that the defendant will be fairly tried.” Emery, 174 Wn.2d at 765. “‘In determining
the effect of an irregularity, we examine (1) its seriousness; (2) whether it
involved cumulative evidence; and (3) whether the trial court properly instructed
the jury to disregard it.’” Emery, 174 Wn.2d at 765 (quoting Hopson, 113 Wn.2d
at 284). These factors are considered with deference to the trial court “because
the trial court is in the best position to discern prejudice.” State v. Garcia, 177
Wn. App. 769, 776-77, 313 P.3d 422 (2013).
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No. 80987-3-I/7
Prior to trial, Engel moved to exclude the admission of any testimony
regarding a “bad date list.” According to Engel’s motion to exclude, the “bad date
list” was a document that was kept at the Aurora Commons containing
descriptions of perpetrators who had sexually assaulted women engaged in sex
work. During a pretrial hearing, the trial court granted the motion to exclude this
evidence.
During the trial, Detective Settle mentioned the existence of the “bad date
list” when he was asked about his previous conversations with individuals at the
Aurora Commons:
[THE STATE]: And are you -- tell us sort of some of the
conversations or types of conversations that you’ve had with those
in your line of work.
[DET. SETTLE]: A lot of conversations but, you know, many
of the conversations have been contacts where [Lisa Carlson]
would contact me about a woman that wanted to report a crime or
something that she had heard in the Commons related to crime,
maybe. And so multiple conversations over the years regarding
that. And then other conversations, too, just that -- they have a bad
date list at the Commons which is --
[DEFENSE COUNSEL]: Objection, your Honor. Move to
strike.
THE COURT: Sustained. The jury will disregard that.
Really, Detective, answer the question.
Engel subsequently moved for a mistrial, asserting that the improper
testimony was prejudicial and violated the trial court’s order to exclude any
mention of the “bad date list.” The trial court denied the motion, reasoning that
there was no deliberate violation of the order and Engel was not prejudiced
because the improper testimony “was cut off at the pass.”
The trial court did not err by denying Engel’s motion for a mistrial. A
reasonable judge could have concluded that the elicited testimony was not
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No. 80987-3-I/8
serious. The mention of the “bad date list” was brief, and Detective Settle’s
testimony was cut off by an objection before he could explain what the “bad date
list” was. As such, it is speculative to assume that the jury both understood what
the “bad date list” was and inferred that Engel was on the list.
Given that the improper testimony provided the only mention of the “bad
date list” during the trial, the evidence was not cumulative. However, the trial
court immediately instructed the jury to disregard the testimony. It is well
established that “jurors are presumed to follow the court’s instructions.” Emery,
174 Wn.2d at 766. Engel fails to demonstrate that the court’s instruction was
ineffective.
Accordingly, the trial court did not err by denying the motion for a mistrial.
III
Engel asserts that the trial court erred by admitting testimony that R.C.
had been a victim of sexual harassment several years before she was raped by
Engel. According to Engel, this testimony should have been excluded as being
irrelevant and unduly prejudicial. Because this evidence was material to R.C.’s
credibility, we disagree.
We review a trial court’s ruling on the admissibility of evidence for abuse
of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
“Abuse exists when the trial court’s exercise of discretion is ‘manifestly
unreasonable or based upon untenable grounds or reasons.’” Darden, 145
Wn.2d at 619 (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615
(1995)).
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No. 80987-3-I/9
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.” ER 401. Relevant
evidence is generally admissible. ER 402. “The threshold to admit relevant
evidence is very low. Even minimally relevant evidence is admissible.” Darden,
145 Wn.2d at 621. However, relevant “evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” ER 403.
During a pretrial hearing, Engel requested that the trial court exclude
testimony that R.C. was sexually harassed by an employer several years prior to
the incident at issue. Engel argued that the testimony was both irrelevant and
prejudicial. The trial court denied the request, reasoning that the evidence was
material to explaining why R.C. became both homeless and engaged in sex
work:
THE COURT: . . . But, you know, I think the State and the
defense always have the challenge of presenting the people that
they’re dealing with to the jury in a way that the jury can
understand. And the more remote a witness or a defendant’s
circumstances are from the jury, the more explanation is required.
You know, many jurors don’t understand what it’s like to live on the
street or why anybody would ever end up there. There’s a huge
amount of hostility right now in our community that’s been whipped
up by some of our local media outlets against anybody who’s living
on the street. Apparently they’re all supposed to be just awful
people who are out there because they’re awful people.
And I think almost everybody’s who’s been homeless or
close to homeless people knows, you know, how easy it is to other
people who are living a different lifestyle than our jurors are.
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No. 80987-3-I/10
You know, as I just said earlier, jurors have a hard time
understanding sex work because most jurors don’t have contact
with that either.
....
So I think when the State is looking at a witness like [R.C.]
who is living a lifestyle very different from the jurors and knows that
the jurors may be thinking that’s because [R.C.] is some bad
worthless person to begin with and that’s why she’s out on the
street, it’s fair for the State to at least have her explain how she
ended up in the circumstances she did.
The trial court offered to provide the jury with a limiting instruction.
However, Engel declined the limiting instruction and conceded that the testimony
would result in “no connection” to him.
The trial court did not err by denying Engel’s request to exclude the
evidence. Where, as here, “a case stands or falls on the jury’s belief or disbelief
of essentially one witness, that witness’ credibility or motive must be subject to
close scrutiny.” State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980).
“In the prosecution of sex crimes, the right of cross-examination often determines
the outcome. In such cases, the credibility of the accuser is of great importance,
essential to prosecution and defense alike.” Roberts, 25 Wn. App. at 834-35.
During the trial, R.C. testified that, as a result of being sexually harassed by her
former employer, she lost her job and “ended up homeless.” This evidence
provided an explanation as to how R.C. became homeless and, in turn, why she
engaged in sex work. As such, the evidence was material to R.C.’s credibility.
Accordingly, the trial court did not err by admitting the evidence.
IV
Engel next contends that his attorneys were constitutionally ineffective for
not objecting to the exclusion of evidence demonstrating that Engel was on a “no
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No. 80987-3-I/11
rent list”1 at the motel in which he raped R.C. Because, by so doing, Engel’s
attorneys employed a legitimate trial tactic, we disagree.
The defendant bears the burden to prove ineffective assistance of
counsel. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To
meet this burden, the defendant must establish that
(1) defense counsel’s representation was deficient, i.e., it fell below
an objective standard of reasonableness based on consideration of
all the circumstances; and (2) defense counsel’s deficient
representation prejudiced the defendant, i.e., there is a reasonable
probability that, except for counsel’s unprofessional errors, the
result of the proceeding would have been different.
McFarland, 127 Wn.2d at 334-35.
“To combat the biases of hindsight, our scrutiny of counsel’s performance
is highly deferential and we strongly presume reasonableness.” In re Pers.
Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). “For many reasons
. . . the choice of trial tactics, the action to be taken or avoided, and the
methodology to be employed must rest in the attorney’s judgment.” State
v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967). “There are countless ways to
provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.” Strickland
v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
“When counsel’s conduct can be characterized as legitimate trial strategy or
tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215
P.3d 177 (2009).
1 This is a different list than the “bad date list” previously discussed.
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No. 80987-3-I/12
Engel asserts that his attorneys performed deficiently by failing to object to
the exclusion of evidence demonstrating that he was on a “no rent list” at the
Wallingford Inn. The manager of the Wallingford Inn, Eva Milo, kept a “no rent
list,” which was comprised of people who were not permitted to rent rooms at the
inn. Engel’s name was on that list. During a pretrial hearing, the State indicated
that it had come to an agreement with defense counsel to exclude evidence
demonstrating that Engel was on the “no rent list”:
[THE STATE]: . . . [E]va will testify -- she will testify that she
knows him to be somebody who had rented rooms there before, but
we would agree . . . that the reason why -- that her reminder of his
identification because he’s on a no-rent-to-any-longer list is
prejudicial. So we’re going to lead.
....
THE COURT: Okay. All right. Granted. With -- and then the
understanding is that the State will lead here to avoid violating this
motion in limine.
Engel contends that evidence demonstrating that he was on the “no rent
list”—to the exclusion of evidence as to why he was on the list—was important to
establishing that he was guilty of only rape in the third degree. This is so, Engel
avers, because his “defense turned on jurors finding that [the] demands, threats,
and force during the course of the rape were used – not to force compliance with
the sex acts – but to make sure no one was alerted to anything occurring inside
the room during or after the rape.”2 According to Engel, evidence demonstrating
that he was not authorized to rent a room at the motel supported such a defense.
2 Br. of Appellant at 24.
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No. 80987-3-I/13
Additionally, Engel asserts that this evidence was important to providing an
explanation as to why he had another person rent the room on his behalf.
However, Engel’s attorneys’ decision to not object to the exclusion of the
“no rent list” was a legitimate trial tactic. Indeed, evidence indicating that Engel
was not permitted to rent a room at the Wallingford Inn may have been
prejudicial to his defense. Without knowing the reason why Engel was not
permitted to stay at the Wallingford Inn, the jury may have been left to speculate
as to any number of unfavorable explanations for his banishment.
Additionally, other evidence adduced at trial tended to support the defense
theory of the case more strongly. The evidence adduced at trial was that Engel
had paid to engage in sexual intercourse in a motel room wherein heroin and
crack cocaine were located. During closing argument, one of Engel’s attorneys
argued that, in light of this evidence, Engel may have had reasons for threatening
R.C. aside from compelling her to engage in sexual intercourse:
[DEFENSE COUNSEL]: . . . His purpose was not to force
the sex. Let’s turn to the other reason. He says, “Don’t let anybody
outside hear you, neighbors or the people who are walking outside
the door or the room. Don’t let anybody hear you.” Why would he
say something like that? Sure, maybe it’s because he doesn’t want
to be caught in the act of non-consensual sex. Maybe it’s because
he has got heroin and cocaine in his room. Maybe it’s because he
is engaged in the act of prostitution which we know is illegal.
Maybe it’s because he knows he didn’t use his own ID to get that
room. Best case scenario, he gets kicked out in the middle of the
night and has no place to live or go. Worst-case scenario, 911 gets
called and he gets picked up. So the purpose of these threats,
again, is not to force compliance with sex, he has alternative
motives, “Don’t tell anybody, don’t let anybody hear you.”
Thus did defense counsel put the tactical decision to good use.
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No. 80987-3-I/14
In short, Engel fails to show deficient performance. Because both prongs
of the ineffective assistance of counsel test must be met for appellate relief to be
warranted, the failure to demonstrate either prong ends our inquiry.3 State
v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d 489 (2018).
Affirmed.
WE CONCUR:
3 Engel also asserts that cumulative error deprived him of a fair trial. “The cumulative
error doctrine applies when several trial errors occurred and none alone warrants reversal but the
combined errors effectively denied the defendant a fair trial.” State v. Jackson, 150 Wn. App.
877, 889, 209 P.3d 553 (2009). Because no trial errors occurred, there was no cumulative error.
14