FILED
AUGUST 31, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37435-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JAVIER CHAVEZ, )
)
Appellant. )
PENNELL, C.J. — Javier Chavez was convicted at a bench trial of two felony
violations of a no-contact order. We affirm.
FACTS
During fall of 2018, a domestic violence no-contact order (NCO) prohibited
“Javier Chavez from contacting or coming within 200 feet of Patricia Reyes.” Clerk’s
No. 37435-1-III
State v. Chavez
Papers (CP) at 15; see Ex. 1 at 2. Mr. Chavez and Ms. Reyes “had been romantically
involved and had multiple children in common.” CP at 15. The NCO listed Ms. Reyes as
residing at an address in Pasco, Washington. A previous NCO had listed Ms. Reyes’s
address as a residence on Jadwin Avenue in Richland, Washington.
On or around October 25, 2018, Mr. Chavez and Ms. Reyes were both present at
the Jadwin Avenue home. Mr. Chavez knew he was at the same home as Ms. Reyes.
They argued. Mr. Chavez contacted his pastor, and “went to the hospital” after his pastor
arrived at the home. Id. Police responded to the home following Mr. Chavez’s departure.
When the police contacted Ms. Reyes at the house, she lied and said Mr. Chavez had not
been present.
On November 20, 2018, Mr. Chavez and Ms. Reyes were again together at the
Jadwin Avenue address. Ms. Reyes’s oldest daughter ran over to a neighbor’s home and
complained Ms. Reyes was out of control and in violation of her own restraining order. 1
The police arrived and arrested both Mr. Chavez and Ms. Reyes. Ms. Reyes subsequently
pleaded guilty to violation of a restraining order.
The State charged Mr. Chavez with two felony violations of the NCO for
the incidents of October 25, 2018, and November 20, 2018. Just before the start of
1
Ms. Reyes had been restrained from contacting her oldest daughter.
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State v. Chavez
Mr. Chavez’s bench trial, the prosecutor asked the court for permission to “switch tables.”
1 Report of Proceedings (RP) (Dec. 16, 2019) at 4. The prosecutor explained Ms. Reyes
was “[v]ery frightened of [Mr. Chavez]” and the switch would prevent her from sitting
“directly across from him.” Id. Mr. Chavez’s defense attorney objected because the
attorney “would rather not be moving” after having sat at the table “for quite a while
waiting for the State to proceed.” Id. at 4-5. When the attorney did not supply any further
justification to deny the State’s request, the court granted the request. It noted “the setup
for this courtroom is not in the best circumstances with respect to the safety of everyone
. . . because of just how the courtroom is designed.” Id. at 6.
The State presented testimony from Ms. Reyes and her oldest daughter. According
to both witnesses, Mr. Chavez and Ms. Reyes lived together in the Jadwin Avenue home
during the fall of 2018. Ms. Reyes explained she lied about moving to Pasco because she
did not want the NCO and did not want Mr. Chavez to get in trouble.
Mr. Chavez’s defense was based on the claim that Ms. Reyes had moved out of
the residence and she was the one responsible for any unauthorized contact. Mr. Chavez
testified that his contact with Ms. Reyes on October 25 and November 20 was inadvertent
and he did his best to avoid contact with Ms. Reyes. During his testimony, Mr. Chavez
stated he was tired of Ms. Reyes coming to the Jadwin Avenue home without permission.
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No. 37435-1-III
State v. Chavez
He claimed Ms. Reyes was “chasing” him and the situation “wasn’t fair.” RP (Dec. 17,
2019) at 39-40. On cross-examination, Mr. Chavez agreed he felt he was “somewhat”
“the victim” under the circumstances. Id. at 52.
During summation, the prosecutor focused on contrasting the testimony of Ms.
Reyes and Mr. Chavez. He stated, “I think it’s clear from the demeanor of the witnesses
in this case who has the power in this relationship. Although Mr. Chavez has claimed to
be the victim, you can see that Ms. Reyes was emotionally unstable, that she was hurting,
that she was struggling.” Id. at 58-59. The prosecutor continued, “She never wanted to be
here . . . . She never tried to get [Mr. Chavez] in trouble. And that’s why this situation is
so complex.” Id. at 59. The prosecutor rejected the idea that Mr. Chavez was “a victim of
domestic violence.” Id. The prosecutor later reiterated “the evidence shows that this idea
that Mr. Chavez is a victim is a work of fiction.” Id. at 65.
In rebuttal closing, the prosecutor further opined,
I think the Court can look in there and find credibility in [the witnesses’]
testimony by looking at the different facts and circumstances that surround
this.
And I’ll testify to this, Judge, the testimony here in trial by Patti
Reyes is far more credible than [Mr. Chavez]’s. She admits when she makes
mistakes. She says, “Yes, I lied. I lied because I loved him. I wanted to stay
with him.”
Here’s what [Mr. Chavez] says, “No, I never talked to police. No,
no. Officer Fancher, no, I don’t know who that is. Well, yeah, I knew they
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State v. Chavez
were after me. Yeah, I fled them, but, you know, I didn’t want to be
there . . . .”
He has a tampering with a witness conviction.[2] There are multiple
reasons to doubt his credibility. All those came out on the stand, your
Honor.
Id. at 71. Mr. Chavez did not object to the prosecutor’s arguments.
The trial court made credibility findings regarding Ms. Reyes, her daughter, and
Mr. Chavez. It found Ms. Reyes fully credible, and found her testimony partially
supported by the credible testimony of law enforcement. The court made mixed
credibility findings regarding Ms. Reyes’s daughter and Mr. Chavez. Overall, it
concluded the “most relevant portion” of the daughter’s testimony was credible and Mr.
Chavez “admitted to being within 200 feet of [Ms. Reyes] on both occasions.” CP at 16.
The court determined the State met its burden to show beyond a reasonable doubt that
Mr. Chavez knowingly violated the NCO protecting Ms. Reyes and found him guilty
of two felony violations of the order. 3
2
The trial court admitted evidence Mr. Chavez had “a[t] least two prior
convictions for violating protection orders.” CP at 16; see Exs. 3-4 (October 1998
conviction for court order violation); Ex. 5 (four December 2009 convictions for
protection order violations); Ex. 7 (March 2004 conviction for protection order violation).
It also admitted evidence of Mr. Chavez’s 2010 conviction for tampering with a witness.
See Ex. 6.
3
The trial court inadvertently referred to the October 25 incident as occurring on
“October 23” and “the 23rd day of September” in its findings and conclusions. CP at 15-
16; see id. at 7.
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Mr. Chavez timely appeals.
ANALYSIS
Mr. Chavez argues his conviction should be reversed based on insufficiency of the
State’s evidence and multiple instances of prosecutorial misconduct. In his opening brief,
Mr. Chavez also alleged the court had imposed an illegal sentence. The sentencing
allegation has since been withdrawn. We therefore limit our review to Mr. Chavez’s two
challenges to his conviction.
Sufficiency of the evidence
Mr. Chavez argues the State failed to present sufficient evidence to prove he
willfully violated the NCO in October and November 2018. Relying on his version of the
events in question, Mr. Chavez argues he made every effort to comply with the NCO and
did not willfully have contact with Ms. Reyes.
Mr. Chavez’s analysis misses the mark as it fails to take into account the
applicable standard of proof. We are not triers of fact. When faced with a sufficiency
challenge, this court construes the facts in the light most favorable to the State and
asks whether a reasonable fact finder could have found the elements of the offense
beyond a reasonable doubt. State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019)
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No. 37435-1-III
State v. Chavez
(quoting State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (plurality opinion)),
cert. denied sub nom. Scanlon v. Washington, 140 S. Ct. 834 (2020).
Here, the State’s evidence was that Ms. Reyes was living at the Jadwin Avenue
residence along with Mr. Chavez on October 25 and November 20, 2018. Accepting this
evidence as true, Mr. Chavez’s claim of incidental contact fails. Regardless of whether
Mr. Chavez tried to separate himself from Ms. Reyes after the two came into conflict,
the fact of the shared residence means Mr. Chavez could not have been surprised by
Ms. Reyes’s presence. Mr. Chavez’s contact with Ms. Reyes was not incidental. It was
the expected result of Mr. Chavez’s continued willful presence at the Jadwin residence.
The State amply proved its case.
Prosecutorial misconduct
For the first time on appeal, Mr. Chavez contends the prosecutor committed
several instances of reversible misconduct during trial. Unpreserved claims of misconduct
are generally not fertile grounds for relief on appeal. State v. Hoffman, 116 Wn.2d 51,
93, 804 P.2d 577 (1991). In the bench trial context, the burden is even more onerous, as
we presume a trial judge understands the law and will disregard inadmissible matters.
See State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970).
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No. 37435-1-III
State v. Chavez
Mr. Chavez’s first claim of misconduct pertains to the prosecutor’s request to have
the parties switch tables during trial. We find no impropriety. The prosecutor had a
tenable basis for making the request and the court had authority to arrange for courtroom
security. See State v. Jackson, 195 Wn.2d 841, 852, 467 P.3d 97 (2020). We note judges
are often privy to information about a defendant’s background that would never be shared
with a jury. For example, a judge may rule on bail decisions, issue a pretrial restraining
order, or set conditions for accommodating incarcerated litigants. Such involvement is
normal. It does not render a judge incapable of impartial adjudication. This case is no
different. The prosecutor did nothing wrong in asking the court to have the parties switch
seats for safety reasons. Mr. Chavez’s misconduct claim fails.
Second, Mr. Chavez claims the prosecutor engaged in improper vouching when he
stated, “I’ll testify to this, Judge, the testimony here in trial by Patti Reyes is far more
credible than the [Mr. Chavez]’s.” RP (Dec. 17, 2019) at 71. The prosecutor’s use of the
word “testify” was unfortunate; however, we find no misconduct. Reviewed in context, it
is apparent the prosecutor was arguing about Ms. Reyes’s credibility. He was not
personally vouching for Ms. Reyes’s veracity. Given this was a bench trial, there was no
reasonable danger the trial court might have been confused about the nature of the
prosecutor’s comments.
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No. 37435-1-III
State v. Chavez
Mr. Chavez’s next claim is that the prosecutor improperly asked Mr. Chavez
about the pendency of unrelated charges involving Ms. Reyes’s daughter. According to
Mr. Chavez, the prosecutor’s question improperly implicated his right to silence under
the Fifth Amendment to the United States Constitution. Regardless of the merits of
Mr. Chavez’s claim, we find no prejudice. At trial, the court sustained an objection to the
prosecutor’s question about Mr. Chavez’s conduct. As a result, Mr. Chavez only affirmed
that there was an “allegation” he had assaulted Ms. Reyes’s daughter. RP (Dec. 17, 2019)
at 51. Mr. Chavez was never compelled to testify against himself in an unrelated matter
and no prejudicial information was conveyed to the court. While the prosecutor’s question
about Ms. Reyes’s daughter may not have been relevant, the question and Mr. Chavez’s
brief answer had no bearing on the merits of the case or the trial court’s ultimate verdict.
Finally, Mr. Chavez argues the prosecutor improperly expressed an opinion on
credibility when the prosecutor argued Mr. Chavez was not a victim of Ms. Reyes’s
domestic violence. We disagree with this assessment. The prosecutor’s comments were
proper argument, aimed at Mr. Chavez’s testimony suggesting he was the victim of
Ms. Reyes’s misconduct. There was no misconduct. 4
4
Mr. Chavez also argues his conviction should be reversed based on multiple
instances of prosecutorial misconduct. Because we do not find multiple errors, we reject
this claim.
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CONCLUSION
The judgment of conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Fearing, J.
______________________________
Staab, J.
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