IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 74819-0-1
)
Respondent, )
) DIVISION ONE
v. )
)
RODOLFO A. QUINONEZ, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: November 13, 2017
)
MANN, J. —A jury convicted Rodolfo Quinonez of child molestation in the first
degree. He claims that two instances of prosecutorial misconduct denied him his right
to a fair trial. We disagree and affirm his judgment and sentence.
FACTS
Sometime in 2009 or 2010, Alva Franco-Hernandez and her husband Roberto
Hernandez met Rodolfo Quinonez and his family through church. The families were
close. Although they were unrelated, Alva and Roberto's young daughter, V.H. called
Quinonez her uncle.
Quinonez's teenage daughter, Erika, began babysitting V.H. a few days each
week after school. V.H. was ten years old at the time. Erika would pick V.H. up from
her school and take her back to the Quinonez family's apartment. The babysitting
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arrangement began in November 2014, but ended a month later in December after V.H.
told her mother that she did not want to go to the Quinonez family's apartment anymore.
V.H. did not explain why. Because Alva Franco-Hernandez assumed that her daughter
wanted to play with someone her own age, she did not press V.H. for an explanation.
On December 10, 2014, V.H. told Leslie Astudillo-Ortega, a staff member at her
school, that her cousin Eric, had touched her inappropriately when she was younger.
The touching occurred at V.H.'s church. V.H. also described being touched by a
different family member; Ortega could not tell if V.H. was referring to a cousin or an
uncle. At her supervisor's request, Ortega contacted Child Protective Services(CPS).
School staff then notified V.H.'s mother, Alva, that the school had made a report to
CPS. Alva confronted V.H. and asked why she had not confided in her. V.H. began to
cry and told her mother that she did not want her cousin Eric to be in trouble. She then
said that Quinonez had touched her, not Eric.
On January 8, 2015, V.H. told Stephanie Rohwer, the school psychologist, that
her cousin and an adult man inappropriately touched her. Rohwer made another CPS
report based on this allegation. On January 15, Bellevue Police Detective Jay Moriarty
met with V.H., her mother, and the pastor of the family's church to investigate V.H.'s
cousin. During the conversation V.H. told Detective Moriarty that "her babysitter's father
touched her private part." V.H. told Detective Moriarty that her babysitter's father was
Rodolfo Quinonez. Quinonez was arrested and charged with one count of first degree
child molestation.
At trial, V.H. testified that Quinonez touched her while Erika was babysitting V.H.
at the Quinonez family's apartment. She explained that one day while she was at the
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apartment and while Erika was in her room with the door closed, she was sitting on the
couch watching a scary movie when Quinonez sat down next to her, covered her with a
blanket, and put his hand down her pants and felt her vagina. She believed Quinonez's
finger penetrated her vagina. This frightened V.H., and soon after, she left the couch for
Erika's room. V.H. was afraid to tell anyone what happened because she believed that
her parents would fight with her uncle Rodolfo.
Dr. Rebecca Wiester, the medical director of the CPS program at Seattle
Chldren's Hospital, testified that during her examination of V.H. she said that a "grown-
up touched [her] private parts." When Dr. Wiester asked who touched her, V.H. replied
"Rubolfo [sic]." V.H. also told Dr. Wiester that Quinonez "grabbed [her] hand and made
[her] touch his private part" and that he tried to kiss her. Dr. Wiester testified that V.H.
told her that Quinonez told V.H. not to tell her mother what he had done.
Erika Quinonez testified that there was never a time when her father was alone
with her and V.H. She admitted, however, that there may have been times where her
older brother and her father were with her and V.H. in the apartment.
Quinonez did not testify or call any witnesses in his defense. In his closing
argument to the jury, Quinonez's counsel argued that V.H. made up the story about
Quinonez in order to protect her family's relationship with her cousin Eric's family.
In rebuttal, the prosecutor addressed Quinonez's defense theory:
[STATE]: Ladies and gentlemen, if you believe fV.H.1 is lying, then you
should absolutely find rQuinonez1 not guilty.
[DEFENSE]: Objection. Burden shifting.
COURT: Sustained.
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DEFENSE: I would move—
COURT: That will be disregarded by the jury. Ladies and Gentlemen, the
burden stays on the State.
STATE: If you don't believe the State has satisfied its burden beyond a
reasonable doubt, then you should absolutely find [Quinonez] not guilty.
That is your job. That is our duty here. But the evidence is proven beyond
any reasonable doubt that [V.H.] is not lying about this. She is telling the
truth, and she's been telling the truth since December 10th, 2014. You
folks have an incredible duty. I agree with [Defense Counsel] on that point.
You represent the conscience of the community.
DEFENSE: Objection.
COURT: Sustained.
DEFENSE: I would ask for a corrective instruction.
COURT: Again, ladies and gentlemen, your role here is not to be the
conscience of the community. Your role is to assess the State's
presentation of evidence and whether or not they have carried the burden
of proof or not.
Back to the State. And try to stick with appropriate argument.
STATE: I believe I am, your Honor. The State—
COURT: You cannot tell the jury that they are the conscience of the
community, . . . Don't do it again.
STATE: Yes, your Honor.
You started off this case with the assumption the State has not met
its burden, the State got it wrong. That's still the assumption you have
right now and you should have until you go back in that deliberation room
and you believe one way or the other whether the State's met its burden.
If you believe the State has met its burden, it's your duty to find this
defendant guilty. And that's what I am asking you to do, because the
evidence proves beyond a reasonable doubt that the defendant committed
this crime. We waited—you waited a long time for us when we were out
here working. Now we are going to wait for you when you begin your
deliberations. Thank you very much for all of your time.1'
1 Report of Proceedings(Nov. 24, 2015) at 771-73(adding emphasis to show specific remarks
objected to).
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The jury found Quinonez guilty of child molestation in the first degree. After the
verdict, Quinonez moved for a new trial based on prosecutorial misconduct. The trial
court held a posttrial hearing on the motion. It agreed that the prosecutor's statements
were out of place but believed that its instructions cured any prejudice. The court
denied the motion for a new trial. Quinonez appeals.
ANALYSIS
Quinonez argues that he was denied a fair trial because of two instances of
prosecutorial misconduct and that the trial court abused its discretion when it denied his
motion for a new trial.
A trial court may grant a new trial when it "affirmatively appears that a substantial
right of the defendant was materially affected" by prosecutorial misconduct. CrR
7.5(a)(2). Trial court rulings based on allegations of prosecutorial misconduct are
reviewed for abuse of discretion. State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239
(1997). A trial court abuses its discretion when its decision is manifestly unreasonable
or based on untenable grounds or reasons. Stenson, 132 Wn.2d at 701.
The defendant bears the burden of showing that the prosecutor's conduct was
improper and prejudicial. Even if the conduct was improper, it does not constitute
prejudicial error unless we determine that there is a substantial likelihood that the
misconduct affected the jury's verdict. Stenson, 132 Wn.2d at 718. We view allegedly
improper comments in the context of the entire argument. State v. Gentry, 125 Wn.2d
570, 640, 888 P.2d 1105 (1995).
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(
Shifting or Misstating the Burden ofProof
Quinonez first asserts that the prosecutor committed misconduct when he told
the jury that if it believed V.H. was lying, then it had to acquit Quinonez. This, Quinonez
maintains, shifted the burden of proof, which was improper. We agree with Quinonez
and the trial court that the comment was improper, but Quinonez has not shown that
there is a substantial likelihood that the misconduct affected the verdict.
We have repeatedly held that "it is misconduct for a prosecutor to argue that in
order to acquit a defendant, the jury must find that the State's witnesses are either lying
or mistaken." State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996).
Here, although this remark was improper, Quinonez fails to show prejudice. The
remark was isolated and brief. Immediately following it, and before Quinonez could ask
the court to strike it, the court ordered the jury to disregard it: "[t]hat will be disregarded
by the jury. Ladies and Gentlemen, the burden stays on the State." The court cured
any resulting prejudice by immediately admonishing the jury to disregard it and properly
instructing the jury. Then, after the court's admonition and instruction, the prosecutor
reiterated the State's burden of proof: "If you don't believe the State has satisfied its
burden beyond a reasonable doubt, then you should absolutely'find [Quinonez] not
guilty. That is your job. That is our duty here." The court's decisive and emphatic
admonition staved off any prejudice. During the trial court's posttrial hearing on this
issue it explained: "I told [the jury] in the strongest language the burden stays with the
State. And all the jurors, as I recall, looked at me, as they always did when I talked to
them, and nodded at me because they got it at that point."
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Quinonez makes three counter arguments but each fails. First, Quinonez argues
that the statement here was just as prejudicial as the prosecutor's statement in Fleming.
In Fleming, we held that a new trial was required after the prosecutor flagrantly
misstated the law and misrepresented the jury's role and the State's burden of proof.
83 Wn. App. at 213. In Fleming, the prosecutor opened closing argument by saying,
Ladies and gentlemen of the jury, for you to find the defendants, Derek
Lee and Dwight Fleming, not guilty of the crime of rape in the second
degree, with which each of them have been charged, based on the
unequivocal testimony of[the victim] as to what occurred to her back in
her bedroom that night, you would have to find either that [the victim' has
lied about what occurred in that bedroom or that she was confused;
essentially that she fantasized what occurred back in that bedroom.
83 Wn. App. at 213.
The statements in Fleming were far more egregious than the statement here. In this
case, the statement was more like an offhand remark than an attention-drawing opening
statement of the State's theory of the case. While this remark was improper, the court's
immediate admonition and instruction cured any prejudice.
Second, Quinonez argues the placement of the statement in the State's rebuttal
and Quinonez's decision not to testify increased the statement's prejudicial effect. We
recognize that these "lying" arguments can be more pernicious in trials where the
defendant does not testify than when the defendant does testify. See Fleming, 83 Wn.
App. at 214. But even if the argument's placement increased its prejudicial effect to
Quinonez, we believe the court's instructions cured any prejudice.
Finally, Quinonez argues that in the absence of the prosecutor's misconduct the
verdict was far from certain. We disagree. The prejudicial impact of the remark was
minimal. The prejudice was cured by the court's instruction and the prosecutor's correct
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recitation of the State's burden of proof. The record shows that the court believed that
the jury clearly understood its instruction to disregard the improper remark. The
misconduct here did not create prejudicial error.
Inflaming Passions of Jury
Quinonez asserts next that the prosecutor's "conscience of the community"
remark constituted prosecutorial misconduct and warrants a new trial. Again, we
disagree. Read in context, the remark was unartful but not improper.
A prosecutor's "appeals for the jury to act as a conscience of the community are
not impermissible, unless specifically designed to inflame the jury." State v. Finch, 137
Wn.2d 792, 842, 975 P.2d 967(1999)(quoting United States v. Lester, 749 F.2d 1288,
1301 (9th Cir. 1984)).
Here, the "conscience of the community" remark was not improper because the
prosecutor was speaking about the jury's duty to hold the State to its burden of proof,
not specifically about the consequences to society of failing to find Quinonez guilty. The
remark was not intended to inflame the jury's passions and set them against Quinonez.
But even if we assume that the remark was improper, it caused no prejudice. After
Quinonez objected to the remark, the court again instructed the jury on the correct
standard. The court "very strongly" instructed the jurors, and they acknowledged this
instruction by "again nodd[ing] at [the court]."
The prosecutor's next line of argument also tempered any prejudice. Although
he started to challenge the court's admonition, the prosecutor quickly returned to the
appropriate argument. He reiterated the State's burden of proof by saying that the jury
"started off this case with the assumption the State has not met its burden, the State got
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it wrong." Quinonez fails to show why the court's actions failed to cure any resulting
prejudice caused by the prosecutor's "conscience of the community" remark.
Quinonez's prosecutorial misconduct claims fail. Accordingly, his claim that the
trial court abused its discretion by denying his CrR 7.5(a)(2) motion for a new trial based
on prosecutorial misconduct also fails.
Affirmed.
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WE CONCUR:
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State Of Washington v. Rodolfo A. Quinonez
Combined Opinion