FILED
AUGUST 8, 2023
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. 38637-6-III
Respondent, )
)
v. )
)
FERNANDO SANTACRUZ, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J.P.T.⁎ — Fernando Santacruz appeals his conviction of rape in the
third degree of his then-wife. He contends that an off-the-record, unmemorialized
sidebar taking place during trial was a public trial violation, and evidentiary error
occurred when a detective was permitted to testify about the “general response” of people
accused of sexual assault. He also challenges terms of the sexual assault protection order
(SAPO) entered by the court, which the State concedes will unduly interfere with Mr.
Santacruz’s contact with his three minor children.
⁎
Judge Laurel H. Siddoway was a member of the Court of Appeals at the time
argument was held on this matter. She is now serving as a judge pro tempore of the court
pursuant to RCW 2.06.150.
No. 38637-6-III
State v. Santacruz
We deemed the record insufficient for us to determine whether the sidebar
implicated Mr. Santacruz’s public trial right and remanded for fact-finding by the trial
court. Based on the facts found by the court, the sidebar addressed only a mundane
scheduling matter, so no constitutional violation occurred. We agree with Mr. Santacruz
that the objected-to testimony by the detective was irrelevant, but find its admission
harmless. We accept the State’s concession that the SAPO requires modification and
remand for resentencing for that purpose. At resentencing, the trial court shall also make
changes from section 4.3a of the prior judgment and sentence and condition (a)(5) of
Appendix H to take into account intervening changes in the law.
FACTS AND PROCEDURAL BACKGROUND
In October 2020, Fernando Santacruz was charged with having committed third
degree rape of his then-wife in November 2019. His wife did not report the crime until
five months after it occurred, although evidence established that she spoke with family
members about it early on. The charge was later amended to allege domestic violence.
Key among the evidence against Mr. Santacruz was the testimony of his aunt, Jeanie
Wynhoff, who he had requested mediate issues between the couple. She said that after
hearing about the rape from the wife, Mr. Santacruz admitted to her that “he made her
and she didn’t want to and he did it anyways.” Rep. of Proc. (RP) at 702. According to
Mr. Santacruz, the only wrongdoing he recalled discussing with Ms. Wynhoff was having
been unfaithful to his wife.
2
No. 38637-6-III
State v. Santacruz
Errors assigned on appeal are to events taking place at Mr. Santacruz’s jury trial,
during which the State called four witnesses: the victim, Ms. Wynhoff, Detective Stephen
Evitt, and a domestic violence expert. When trial commenced, the defense anticipated
calling three witnesses: Natasha and Elaina Santacruz, both sisters-in-law of Mr.
Santacruz and his wife, and a defense investigator.
The first error alleged by Mr. Santacruz occurred during the examination of
Detective Evitt, the State’s third witness. Detective Evitt testified to his background and
his investigation of Mr. Santacruz’s wife’s complaint. His investigation included an
interview of Mr. Santacruz, which had been recorded, and was played for the jury.
During a brief cross-examination of the detective, defense counsel confirmed that
when interviewed, Mr. Santacruz never admitted to any wrongdoing:
Q. Okay. And during that interview, would it be fair to say that you
asked him repeatedly about what happened with [his wife], what he
talked about with Jeanie Wynhoff, in the—in mid November of
2020?
A. Yes. I spoke with him a couple different times, yes.
Q. Okay. Did—did he ever admit that he raped [his wife]?
A. No.
Q. Did he ever admit that he forced [his wife] to have sex with him?
A. No.
RP at 766.
On redirect and recross, both lawyers asked the detective about Mr. Santacruz’s
response when asked if he had told Ms. Wynhoff about having had nonconsensual sex
3
No. 38637-6-III
State v. Santacruz
with his wife. Detective Evitt agreed that Mr. Santacruz’s response was that he did not
recall discussing anything like that with his aunt. The prosecutor’s further redirect drew
an objection and ruling at issue on appeal:
Q. . . . [H]ow many interviews would you say that you’ve done with
individuals who have been accused of sexual assault?
A. Probably a couple hundred.
Q. And in your experience, if you confront somebody with an
accusation, what is their general response?
[DEFENSE COUNSEL]: Your Honor, I’m going to object to this
just on relevance grounds.
[PROSECUTOR]: He opened the door to it, your Honor.
THE COURT: I’ve overruled the objection.
THE WITNESS: Could you repeat?
Q. (By [the prosecutor]) When you confront somebody with a sexual
assault allegation, generally what is their response to you?
A. Denial or minimization.
RP at 768-69.
Throughout trial, defense counsel repeatedly said they intended to call Elaina
Santacruz as a witness. Whether she would testify was called into doubt only once, when
she was noticed in the courtroom during testimony of another witness and the State asked
that her testimony not be permitted. The State soon relented, acknowledging that there
had been confusion about when a subpoena had required her appearance.
After the State rested its case, the defense called Natasha Santacruz as its first
witness. When she completed her testimony and was excused, defense counsel again
4
No. 38637-6-III
State v. Santacruz
indicated it would be calling Elaina Santacruz and even announced her as its next
witness. Defense counsel quickly corrected, however, stating that it would call its
defense investigator next. After his questioning was completed and the investigator was
excused, the sidebar was conducted that Mr. Santacruz assigns as his second error.
Events are recounted in the transcript as follows:
[DEFENSE COUNSEL]: Your Honor, could we discuss one thing
outside the presence of the jury?
THE COURT: Would a sidebar work?
[DEFENSE COUNSEL]: Yes. Yes.
(A SIDEBAR WITH THE COURT AND COUNSEL WAS HELD.)
[DEFENSE COUNSEL]: Your Honor, we’re not going to call
Elaina Santacruz, your Honor.
THE COURT: Okay. Okay. So does the defense wish to call any
further witnesses?
[DEFENSE COUNSEL]: No, your Honor. Actually, hold on a
second.
(A DISCUSSION WAS HELD BY DEFENSE COUNSEL.)
[DEFENSE COUNSEL]: Your Honor, the defense rests.
RP at 841.
The jury found Mr. Santacruz guilty. The court imposed a standard range
sentence of 48 months total confinement, with 12 months of community custody. As a
condition of community custody, the court prohibited Mr. Santacruz from having “any
direct or indirect contact, including but not limited to, personal, telephonic, written, or
verbal with the victim.” Clerk’s Papers (CP) at 108. To facilitate this condition, the
5
No. 38637-6-III
State v. Santacruz
court entered a SAPO that restricted Mr. Santacruz from coming within 300 feet of his
ex-wife for five years.
Mr. Santacruz appealed. Following the completion of briefing and the effective
date of 2023 legislation that affected Mr. Santacruz’s liability for the penalty assessment
provided by RCW 7.68.035(1), we granted him leave to file a supplemental brief to
address changes of law affecting section 4.3a of his judgment and sentence and condition
(a)(5) of its Appendix H.
ANALYSIS
I. THE SUBJECT MATTER OF THE OFF-THE-RECORD, UNMEMORIALIZED SIDEBAR DID
NOT IMPLICATE MR. SANTACRUZ’S PUBLIC TRIAL RIGHT
Mr. Santacruz’s first assignment of error is to the off-the-record, unmemorialized
sidebar conducted after defense counsel called his last witness. He contends that the
sidebar violated his federal and state constitutional rights to a public trial and requires
reversal. While he acknowledges that our Supreme Court held in State v. Smith, 181
Wn.2d 508, 511, 334 P.3d 1049 (2014), that traditional sidebar conferences do not
implicate the public trial right, he argues that the lack of a record in his case makes it
impossible to know the sidebar’s subject matter or duration, and it is thereby impossible
to know if it was a “proper sidebar” as that term is used in Smith and in State v. Whitlock,
188 Wn.2d 511, 396 P.3d 310 (2017). “Proper sidebars” as defined by the Supreme
Court are “proceedings that ‘deal with the mundane issues implicating little public
6
No. 38637-6-III
State v. Santacruz
interest[, are] . . . done only to avoid disrupting the flow of trial, and . . . [are] either . . .
on the record or . . . promptly memorialized in the record.’” Whitlock, 188 Wn.2d at 522
(alterations in original) (quoting Smith, 181 Wn.2d at 516 & n.10).
One of the State’s responses to this contention was that since it was the
“unknowns” about the sidebar that were the problem, the proper remedy was to remand
for fact-finding by the trial court. That is the course we followed. In response to our
order for fact-finding, the trial court conducted a hearing at which it heard testimony
from the prosecutor and one of Mr. Santacruz’s defense lawyers, both of whom were
present at the time of the sidebar. Mr. Santacruz also testified. The court entered the
following findings of fact:
1. [Jesse] Collins[, one of Mr. Santacruz’s trial lawyers,] asked the
Court to discuss a topic outside the presence of the jury. The Court
suggested a sidebar, and Mr. Collins agreed.
2. The length of time of the sidebar was less than one minute.
3. The Court did not issue any ruling or guidance during the sidebar.
4. Neither party made any objections during the sidebar.
5. At the sidebar, the defense counsel indicated they were not going to
call Ms. Elaina Santacruz as a witness and that the defense would
rest.
6. The subject matter of the sidebar was subsequently indicated on the
record, by defense counsel indicating they were not going to call Ms.
Elaina Santacruz as a witness and the Defense was resting.
Findings of Fact for Fact Finding Proc., State v. Santacruz, No. 20-1-00555-04, at 4-5
(Chelan County Sup. Ct. May 15, 2023).
7
No. 38637-6-III
State v. Santacruz
Whether an accused’s public trial right has been violated is a question of law we
review de novo. State v. Karas, 6 Wn. App. 2d 610, 617, 431 P.3d 1006 (2018) (citing
State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006)). We examine first,
whether the public trial right is implicated at all; second, if it is implicated, whether there
was a closure of the courtroom that was not de minimis; and third, if there was a closure,
whether it was justified. Id.
The experience and logic test is used to determine whether the proceeding at issue
implicates the public trial right. Smith, 181 Wn.2d at 514. Smith found that the
“experience” prong of the test is not satisfied by a traditional sidebar because “[s]idebar
conferences have historically occurred outside the view of the public.” Id. at 515. The
logic prong asks whether public access plays a significant positive role in the functioning
of the particular process in question. Id. at 518. Smith observed that proper sidebars deal
with mundane issues implicating little public interest. Id. at 516. Our Supreme Court has
observed that typical examples of mundane issues that do not implicate public interest are
“scheduling, housekeeping, and decorum.” Whitlock, 188 Wn.2d at 514. The unrecorded
sidebar in Mr. Santacruz’s case was less than one minute long and dealt with only a
scheduling matter.
Mr. Santacruz nevertheless argues that because the sidebar was not “on the record
or . . . promptly memorialized in the record,” it failed to satisfy that part of Smith’s
definition of a “proper sidebar.” See Smith, 181 Wn.2d at 516 & n.10. We have
8
No. 38637-6-III
State v. Santacruz
previously held, however, that the characteristics included in the Supreme Court’s
definition of a “proper sidebar” is not a litmus test for applying the public trial right.
Karas, 6 Wn. App. 2d at 620. “We still examine experience and logic in determining
whether the public trial right applies.” Id. No violation of Mr. Santacruz’s public trial
right is shown.
II. THE TRIAL COURT SHOULD HAVE SUSTAINED THE RELEVANCE OBJECTION TO THE
STATE’S QUESTION ABOUT OTHER INTERVIEWEES’ RESPONSES TO SEXUAL ASSAULT
ALLEGATIONS, BUT THE ERROR WAS HARMLESS
Mr. Santacruz’s next assignment of error is that the trial court abused its discretion
by overruling his relevance objection when Detective Evitt was asked about other
interviewees’ general response when confronted with an accusation of sexual assault.
The prosecutor first elicited the detective’s testimony that he had interviewed a “couple
hundred” individuals accused of sexual assault. RP at 768. The detective was not asked
how many of his interviewees had been found guilty.
On appeal, Mr. Santacruz argues that the detective’s response (“Denial or
minimization”) was not only irrelevant, it was also an impermissible opinion on Mr.
Santacruz’s guilt. The State continues to defend the prosecutor’s question as relevant and
supportable where the defense had “opened the door” by obtaining Detective Evitt’s
agreement that Mr. Santacruz repeatedly denied the accusation.
Only relevant evidence is admissible. ER 402. “‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of consequence to
9
No. 38637-6-III
State v. Santacruz
the determination of the action more probable or less probable than it would be without
the evidence.” ER 401. The “fact of consequence” implicated by the prosecutor’s
objected-to question is whether the fact that Mr. Santacruz denied the accusation should
be viewed as reliable evidence of his innocence. Before turning to a relevance analysis,
we point out that this could have been a matter of argument by the prosecutor even
without the detective’s testimony.
Turning to relevance, we agree that the question was objectionable. This was
unlike testimony by an expert witness discussing social science on a witness issue like
battered woman’s syndrome, or eyewitness identification, or the effect of controlled
substances on the ability to form intent. The detective was testifying about his personal
experience with a couple hundred individuals investigated by the Wenatchee Police
Department, an unknown number of whom were innocent. Common sense would
suggest that the reliability Mr. Santacruz’s denials when interviewed were open to doubt.
But the general response of a couple hundred suspects we have no basis for believing are
representative of all suspects, an unknown number of whom were never proved guilty, is
not evidence that makes it more or less probable that Mr. Santacruz’s denials were
unreliable.
As for Mr. Santacruz’s argument that the detective was providing opinion
testimony on his guilt, we disagree. The gist of Detective Evitt’s answer was not that Mr.
10
No. 38637-6-III
State v. Santacruz
Santacruz had committed rape as charged, it was only that Mr. Santacruz’s denial when
interviewed was not particularly reliable evidence that he had not.
The questioning was addressed to the credibility of defendants, though, which can
itself be objectionable opinion testimony. “Generally, no witness may offer testimony in
the form of an opinion regarding the veracity of the defendant. Such testimony is
unfairly prejudicial to the defendant because it invades the exclusive province of the
jury.” State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007); and see State v.
Lang, 12 Wn. App. 2d 481, 487-88, 458 P.3d 791 (2020).
For Mr. Santacruz to be entitled to raise this issue for the first time on appeal, it
must be manifest constitutional error. RAP 2.5(a)(3). The Supreme Court explained in
Kirkman that no manifest error infringing on a constitutional right necessarily exists
when a witness expresses an opinion that the defendant perceives to be an opinion on his
guilt or credibility. 159 Wn.2d at 935. It held that “‘[m]anifest error’ requires a nearly
explicit statement by the witness” on the ultimate issue. Id. at 936. Detective Evitt’s was
not such a statement. The implication of the detective’s testimony was that as a general
matter, an accused person’s denial of guilt to a police officer is not particularly
credible—not that Mr. Santacruz was not credible or that he was guilty.
Accordingly, the only error demonstrated by Mr. Santacruz is that the trial court
abused its discretion in overruling the objection on relevance grounds. This is
nonconstitutional error. The nonconstitutional harmless error test asks if there is a
11
No. 38637-6-III
State v. Santacruz
reasonable probability that without the error the outcome of the trial would have been
materially affected. State v. Rocha, 21 Wn. App. 2d 26, 34, 504 P.3d 233 (2022)
(quoting State v. Gower, 179 Wn.2d 851, 854, 321 P.3d 1178 (2014)). Unsurprisingly,
the detective’s testimony about the general response of people accused of sexual assault
was not mentioned during either side’s closing arguments to the jury. The prosecutor
evidently saw no need to point out to jurors that Mr. Santacruz would likely deny guilt
even if he was guilty. Detective Evitt’s three-word answer, while erroneously admitted,
was harmless.1
1
For the same reason, we would find admission of the evidence harmless even
under the constitutional harmless error test. That test requires the State to demonstrate by
clear and convincing evidence that the error was harmless beyond a reasonable doubt.
Lang, 12 Wn. App. 2d at 489.
Constitutional harmless error can be found not only where the State’s evidence is
overwhelming, but also where the objectionable evidence is inconsequential. E.g., id.
(expert’s testimony challenging defendant’s credibility was harmless beyond a reasonable
doubt where defendant’s testimony “was patently not credible”); State v. Wilcoxon, 185
Wn.2d 324, 336, 373 P.3d 224 (2016) (plurality opinion) (erroneously admitted
testimony was “unimportant to the State’s overall case”); State v. Myrick, 102 Wn.2d
506, 515, 688 P.2d 151 (1984) (evidence of marijuana seized in warrantless search should
not have been admitted but “was inconsequential” and harmless error); State v. Gocken,
71 Wn. App. 267, 279 n.10, 857 P.2d 1074 (1993) (even if improperly seized,
photographs of a taped door “added very little to the State’s case” and “was
inconsequential”).
That persons interviewed by Detective Evitt generally tended to deny accusations
that they had committed sexual assault was inconsequential information.
12
No. 38637-6-III
State v. Santacruz
III. RESENTENCING IS REQUIRED TO ADDRESS MODIFICATION OF A NO-CONTACT
PROVISION
Mr. Santacruz’s final assignment of error is that the no-contact provision of his
community custody conditions, which bars him from “any direct or indirect contact” with
his ex-wife, with whom he shares three children, interferes with this fundamental right to
parent. He contends modification is required to allow for contact through the court or
counsel. The State agrees the case should be remanded for resentencing to address this
issue.
When sentencing conditions interfere with fundamental rights, including the right
to a parent-child relationship, such conditions must be justified in the record and
“‘reasonably necessary to accomplish the essential needs of the State and public order.’”
In re Pers. Restraint of Rainey, 168 Wn.2d 367, 374, 229 P.3d 686 (2010) (quoting State
v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 (2008)); see State v. Torres, 198 Wn. App.
685, 689-91, 393 P.3d 894 (2017). We accept the State’s concession.
Mr. Santacruz’s conviction is affirmed. We remand for a resentencing at
which the court can consider modification of the no-contact provision and shall
make changes from section 4.3a of the prior judgment and sentence and condition (a)(5)
of Appendix H, to take into consideration changes in the law relieving indigent
defendants from liability for the penalty assessment provided by RCW 7.68.035(1)
13
No. 38637-6-111
State v. Santacruz
(see RCW 7.68.035(4), effective July 1, 2023) and costs of supervision. See State v.
Wemhoff, 24 Wn. App. 2d 198, 201-02, 519 P.3d 297 (2022).
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.
Siddoway, J.P.T. '
WE CONCUR:
~~,.:r.
c.i
Fearing,
j
14