FILED AUGUST 1, 2017 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STATE OF WASHINGTON, ) ) No. 34059-7-111 Respondent, ) ) V. ) UNPUBLISHED OPINION ) ADRIAN RAY LOPEZ, ) ) Appellant. )
KORSMO, J. -Adrian Lopez appeals from convictions for first degree child rape
and child molestation, raising objections to evidentiary rulings and the prosecutor's
closing argument. We affirm.
FACTS
Mr. Lopez, 20, would sometimes babysit his two youngest siblings in the summer
of2011.1 LG. was 8 and N.L. was 5 that summer. In 2013, I.G. reported that Mr. Lopez
had sexually touched her in the summer of 2011. The parents reported the disclosure to
the Pasco Police Department and an investigation ensued.
1 Living in a blended family, he had a half-brother, a stepsister, and a brother and sister. The charges involve his stepsister. No. 34059-7-111 State v. Lopez
Four charges were filed involving LG. The jury was unable to return a verdict at
the first trial in September 2015. A second trial was conducted in December 2015, over
four years after the last of the alleged incidents. Prior to the retrial, several rulings were
entered that have some bearing on this appeal.
The State moved in limine to exclude allegation of a third party perpetrator. Mr.
Lopez alleged that his father, N.L., had sexually assaulted his sister (N.L.'s oldest
daughter), A.L. The court ruled that Mr. Lopez could not suggest that N.L. had
committed the crime against LG., but he was allowed to question detectives concerning
their investigation of members of the household. At trial, the court reversed itself and
sustained the prosecutor's objection to a question asking a detective if any other
household member had been investigated.
During motions in limine, defense counsel stated "this case, it's a he said, she said
case, where a little girl made up a story." Report of Proceedings (RP) at 27. Pursuing the
strategy at trial, the defense asked the detective questions about whether it was important
to corroborate whether the child was telling the truth, why LG.'s stories did not match,
and whether the detective had made a critical examination of the child's statements. The
prosecutor promptly asked the next witness, LG.'s father, if LG. was "the type of child
that would make up a story to get attention." Over objection, the father was allowed to
answer, "no."
2 No. 34059-7-111 State v. Lopez
Also, during the mother's testimony, the State sought to admit three photographs
of LG. at age 8. The defense objected on relevance grounds and the prosecutor argued
that they were necessary to illustrate her size and what LG. looked like at that time. The
court permitted use of one photo that was shown to the jury for demonstrative purposes
only and was not admitted into evidence.
Several times questions were asked or answers given that used the word "victim"
in reference to LG. There was no motion in limine concerning use of the term and no
objections to its use raised during testimony. In closing argument, the defense
unsuccessfully objected to the prosecutor's repeated use of the word "re-victimized" in
the same sentence. Also, during closing, the prosecutor referred to the burden of proof
beyond a reasonable doubt as "more than 50 percent, but it's not a 100 percent." There
was no objection to the argument.
The prosecutor conceded in argument that one of the counts was not proved and,
the court dismissed the count. The jury returned guilty verdicts on the three counts
submitted to it. The court ordered a thorough presentence investigation (PSI) as required
for convicted sex offenders. The court considered the information in the PSI when
imposing legal financial obligations (LFOs). Mr. Lopez had been represented by retained
counsel at trial, but was found indigent for purposes of appeal.
An appeal was timely taken and counsel was appointed for Mr. Lopez at public
expense. A panel considered this case without argument.
3 No. 34059-7-III State v. Lopez
ANALYSIS
The appeal raises an argument concerning two aspects of the prosecutor's closing
argument and several arguments concerning the noted trial testimony. We first address
the closing argument claim before turning to the evidentiary arguments. We finally
address two contentions concerning financial aspects of this case.
Closing Argument
Mr. Lopez contends that the prosecutor erred in closing argument by using the
word "re-victimized" and in referring to the burden of proof in statistical terms. There
was no error.
Familiar standards govern review of these claims. The appellant bears the burden
of demonstrating prosecutorial misconduct on appeal and must establish that the conduct
was both improper and prejudicial. State v. Stenson, 132 Wn.2d 668,718,940 P.2d 1239
( 1997). Prejudice occurs where there is a substantial likelihood that the misconduct
affected the jury's verdict. Id. at 718-19. The allegedly improper statements should be
viewed within the context of the prosecutor's entire argument, the issues in the case, the
evidence discussed in the argument, and the jury instructions. State v. Brown, 132 Wn.2d
529,561,940 P.2d 546 (1997).
Reversal is not required where the alleged error could have been obviated by a
curative instruction. State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). The
failure to object constitutes a waiver unless the remark was so flagrant and ill-intentioned
4 No. 34059-7-III State v. Lopez
that it evinced an enduring and resulting prejudice that could not have been neutralized
by an admonition to the jury. Id.; State v. Swan, 114 Wn.2d 613,665, 790 P.2d 610
(1990); State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). Finally, a
prosecutor has "wide latitude" in arguing inferences from the evidence presented.
Stenson, 132 Wn.2d at 727.
The prosecutor argued that inconsistencies arose due to all of the times I.G. had to
tell her story; she described those repeated retellings of the child's story as "re-
victimizing" I.G. The court overruled defense counsel's objection to "[t]he
characterization of re-victimized," citing "[i]t's closing." RP at 290-291. Mr. Lopez now
claims that this statement constituted "a comment on the evidence." Br. of Appellant at
23. It is doubtful that his trial objection can be stretched into that claim. Assuming,
however, that it was an objection on the same basis now being argued, it is without merit.
The context is telling in this instance. The prosecutor used the word "re-
victimized" in reference to the number of occasions I.G. had to disclose details of the
sexual abuse rather than in references to the existence of sexual abuse. As such, it was not
a comment on the truthfulness of her testimony about the crimes. There was no error. 2
2 Even if the prosecutor had been referring to the sexual assaults, using the term "victim" in closing argument would not have constituted error. I.G.'s testimony supported a determination that she was a victim of sexual assault and the prosecutor could argue that the evidence supported that characterization.
5 No. 34059-7-III State v. Lopez
More problematic is the reference to proof beyond a reasonable doubt as greater
than 50 percent and less than 100 percent. This statement was not challenged, so relief is
appropriate only if the remark meets the standard of "flagrant and ill-intentioned," with
resulting nonremediable enduring prejudice. Gentry, 125 Wn.2d at 596. It does not.
Mr. Lopez likens this to cases where prosecutors, using analogies to incomplete
puzzle pictures, argued that a juror could be satisfied beyond a reasonable doubt with
only 50 percent of the pieces in place, an argument that improperly lowers the burden of
proof. E.g., State v. Lindsay, 180 Wn.2d 423,436,326 P.3d 125 (2014). One problem
with such arguments is that they attempt to quantify the concept of reasonable doubt. Id.
Our courts have not attempted to quantify that concept in the past and are unlikely to do
so in the future.
The prosecutor did not attempt here to do so and the prosecutor's remarks could
not be construed as suggesting that 50 percent is enough to satisfy the beyond a
reasonable doubt standard. The remark was made in the context of trying to say that
absolute certainty was not required to satisfy the standard, but that the prosecutor did not
know what level of lesser certainty was appropriate. This statement did not fall into the
category of an attempted quantification. 3 To the extent that the first portion of the remark
3 Nonetheless, we strongly discourage arguments that apply numerical concepts to the burden of proof beyond a reasonable doubt. Mathematical expressions imply a level of precision and certainty that our courts have not attempted to apply to this standard and can too easily be misconstrued.
6 No. 34059-7-III State v. Lopez
("more than 50 percent") might have been capable, in isolation, of being misconstrued, it
was not such an egregious error that a curative instruction would have been unavailing. 4
Because the prosecutor was not trying to quantify the level of certainty she needed
to establish, this remark was not such an irremediably egregious misstatement of the law
that relief is available to Mr. Lopez. Appellant has not established that the prosecutor
committed misconduct in closing argument.
Trial Testimony
Mr. Lopez raises numerous claims of error related to testimony admitted at trial.
After initially noting the standards that govern review of these contentions, we will turn
to consideration of his claims seriatim.
As with the previous topic, the standards of review governing these issues are very
well settled. Trial court judges have great discretion with respect to the admission of
evidence and will be overturned only for manifest abuse of that discretion. State v.
Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995). Discretion is abused where it is
exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,
79 Wn.2d 12, 26, 482 P.2d 775 (1971). Furthermore, the failure to raise an evidentiary
objection to the trial court waives the objection. State v. Guloy, 104 Wn.2d 412,422, 705
4 The failure of the defense to object also is evidence that correction is unnecessary. Swan, 114 Wn.2d at 661 (noting that the absence of an objection or motion for mistrial "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial").
7 No. 34059-7-III State v. Lopez
P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Boast, 87 Wn.2d 447, 451-
452, 553 P.2d 1322 (1976). As explained in Guloy:
A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review.
104 Wn.2d at 422 ( citation omitted).
Another general rule that also is at issue in this case is that appellate courts will
not consider an issue on appeal that was not first presented to the trial court. RAP 2.5(a);
State v. Scott, 110 Wn.2d 682,685, 757 P.2d 492 (1988). However, RAP 2.5(a)(3)
permits a party to raise initially on appeal a claim of "manifest error affecting a
constitutional right." This authority is permissive; an appellate court will refuse to
consider such issues if the record is not sufficient to permit review of the claim. State v.
McFarland, 127 Wn.2d 322,338,899 P.2d 1251 (1995).
With these principles in mind, it is time to address Mr. Lopez's specific
evidentiary arguments.
Use of the word "victim. " In conjunction with his previous prosecutorial
misconduct argument, Mr. Lopez argues that it was error for the prosecutor and witnesses
to use the word "victim" during questioning and testimony. There was no effort made
pretrial to prohibit use of the term and no objection was ever raised during testimony.
8 No. 34059-7-III State v. Lopez
Accordingly, this claim is waived unless Mr. Lopez can establish that use of the word
constituted manifest constitutional error. He cannot.
Mr. Lopez correctly acknowledges that no Washington case has found use of this
term constitutes manifest constitutional error, and he notes a previous unpublished case
from this division where we indicated there may be some circumstances where it would
constitute a comment on the evidence to use the term, but declined to find error in that
circumstance. State v. McFarland, No. 32873-2-III (Wash. Ct. App. Mar. 8, 2016)
(unpublished), http://www.courts.wa.gov/opinions/pdf/328732.unp.pdf. He, therefore, has
no basis for his argument that use of the word constituted manifest constitutional error. 5
This argument is unpreserved.
Photo of I. G. at age 8. Mr. Lopez next challenges the display to the jury of a
picture of l.G. at the time of the alleged offenses when she was age 8. The defense
objected to the relevance of this evidence, so the issue has been preserved for our review.
5 We also note that this is exactly the type of argument that RAP 2.5(a) is intended to foreclose. An objection at trial could easily have cured any potential problem and have avoided putting the parties through a flawed trial. Parties should not allow alleged evidentiary errors to go forward without challenge and then complain about them on appeal following an adverse verdict. We also think the Swan observation noted earlier has force here. The failure to object is significant evidence that the defense perceived no error at trial. 114 Wn.2d at 661.
9 No. 34059-7-III State v. Lopez
Evidence is relevant if it makes "the existence of any fact that is of consequence to
the determination of the action more probable or less probable." ER 401. Relevant
evidence is generally admissible at trial, but can be excluded where its value is outweighed
by other considerations such as misleading the jury or wasting time. ER 402; ER 403.
The trial court deemed the evidence relevant due to the passage of time between
the events at issue and the trial. Nearly four and one-half years had passed from the
summer 2011 incidents and the December 2015 trial. LG. was no longer 8 years old and
apparently had gained weight after these events. These are tenable reasons for displaying
the picture of the child to the jury. Her physical ability to resist advances in 2011 may
have been significantly different than it appeared in 2015.
While there appears to be little value to the photograph, we cannot say that there
was none. The trial court did not err in allowing demonstrative use of a photograph.
Investigation offather. Mr. Lopez next argues that he was deprived of his ability
to put forth a defense when the court prevented him from asking the detective whether
others in the house had been investigated. Since he admitted he was not alleging that his
father sexually assaulted LG., there was no relevance to his question.
The federal and state constitutions guarantee a defendant the opportunity to
present a defense to the crime charged. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct.
10 No. 34059-7-III State v. Lopez
1920, 18 L. Ed. 2d 1019 (1967); State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970
(2004); State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). There is, however,
no right to present irrelevant or inadmissible evidence. State v. Hudlow, 99 Wn.2d 1, 15,
659 P.2d 514 (1983).
Prior to the second trial, the prosecutor moved in limine to prohibit testimony about
N.L. allegedly molesting A.L. in the past. Defense counsel agreed that he would not be
presenting third party perpetrator evidence, but did desire to cross examine the police about
their investigation of the case and whether anyone in the house had been investigated. RP
at 21, 25. The court indicated it would permit the inquiry, but also ruled that it did not
want "any intimating, insinuating, or anything like that." RP at 25. Defense counsel cross
examined a police sergeant extensively about the police investigation. RP at 85-94.
However, when counsel asked whether police had "investigated anyone else in the case,"
the prosecutor objected. RP at 94. The court sustained the objection, ruling the question
inappropriate and reversing itself "[i]f I said that." RP at 94.
Mr. Lopez now contends that the court denied his right to present a defense (1) by
reversing itself concerning the question about investigating others in the household, and
(2) by prohibiting "other suspects" evidence. The second argument is contrary to the
facts of this case and will not be entertained here other than to note that defense counsel
expressly and repeatedly told the court at two separate hearings that he was not
11 No. 34059-7-III State v. Lopez
presenting other suspects evidence. RP at 21-22, 24. The court did not exclude the
evidence because the defense never sought to offer it. 6
The court did not err by sustaining the objection to the question. The defense had
previously agreed that it was not presenting an "other suspects" defense in light of its
general denial defense, and the trial court ruled that there would be no "intimating [or]
insinuating" that N.L. had committed the crime. Yet, the defense still sought to inquire
about whether N.L. (the only adult male in the household) had been investigated in
violation of the court's ruling on the topic. Whether N.L. specifically had been
investigated was information that only would have supported the rejected "other
suspects" defense. If the true interest of the inquiry concerned the quality of the police
investigation, then a properly phrased question would have been something along the
lines of "did the police investigate only my client?" or other, neutrally phrased questions
that did not seek to point out a specific other individual. Not only would that phrasing
have satisfied the court's earlier rulings, it still would have supplied the answer
sought-N.L. had not been investigated because no one else had been investigated.
6 Contrary to the appellant's assertion that it had strong "other suspects" evidence, it actually had next to nothing on point. There must be significantly more evidence than motive and opportunity to commit the crime before the defendant can accuse another of the crime. See generally State v. Starbuck, 189 Wn. App. 740,355 P.3d 1167 (2015), review denied, 185 Wn.2d 1008 (2016) and the authorities cited therein.
12 No. 34059-7-111 State v. Lopez
The question asked was not relevant in light of the defense decision not to pursue
an "other suspects" defense. The relevant question was not asked. The court did not err
in excluding the irrelevant question.
Vouching for I.G. Mr. Lopez also argues that the court erred in permitting the
prosecutor to ask if LG. was the type of child to make up stories to gain attention. The
defense opened the door for this limited question.
It is improper for one witness to testify about the credibility of another witness.
State v. Korum, 157 Wn.2d 614,651, 141 P.3d 13 (2006). A defendant claiming error in
this regard must show that there was improper and prejudicial conduct that had a
substantial likelihood of affecting the jury's verdict. Id. at 650. Testimony does not
amount to error unless it is "a nearly explicit statement by the witness that the witness
believed the accusing victim." State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125
(2007).
The prosecution contends there was no vouching at all because the question and
answer did not rise to the level of a nearly explicit statement. We need not answer that
argument, however, because the defense clearly opened the door to the topic. The trial
court has discretion to admit evidence that otherwise might be inadmissible if the
defendant opens the door to the evidence. State v. Bennett, 42 Wn. App. 125, 127, 708
P.2d 1232 (1985) (citing State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969); State
v. Olson, 30 Wn. App. 298,633 P.2d 927 (1981)).
13 No. 34059-7-III State v. Lopez
The defense claimed this was a "he said, she said" case where I.G. made up the
accusation. To that end, the defense pointed out the inconsistent statements the child
gave over the course of the investigation. Her character for truthfulness was cl~arly put
in issue. The topic was thus relevant. ER 404(a)(2). Having opened the door to this
topic, Mr. Lopez cannot claim there was error in responding to his invitation.
Mr. Lopez has not established any evidentiary error that deprived him of a fair
trial.
Financial Matters
Finally, Mr. Lopez argues that the trial court did not adequately inquire into his
ability to pay the LFOs imposed at sentencing and that this court should waive
recoupment of appellate expenses. A majority of this court concludes that the trial court
did not err in imposing LFOs at sentencing. We defer the issue of appellate costs to our
comm1ss1oner.
The trial court determined that Mr. Lopez, who was represented by retained
counsel at trial, had the ability to pay LFOs. We review the trial court's decision to
impose LFOs for abuse of discretion. State v. Clark, 191 Wn. App. 369,372,362 P.3d
309 (2015) (citing State v. Baldwin, 63 Wn. App. 303,312,818 P.2d 1116 (1991)).
14 No. 34059-7-111 State v. Lopez
Mr. Lopez argues that the trial court's inquiry was inadequate. 7 We disagree. The
court received a thorough PSI that included information about Mr. Lopez's work history
and finances. He had worked full time for several years and was supporting himself and
voluntarily supporting others. At the hearing, he was able to argue any information he
thought relevant to the LFO inquiry. Mr. Lopez did not claim indigency until after
sentencing when he sought appointment of counsel at public expense to pursue this
appeal. Presented with no indication that Mr. Lopez could not pay the LFOs, and plenty
of information suggesting he could do so, the trial court had a tenable basis for ordering
them.
Mr. Lopez also requests that we waive appellate costs; he has complied with our
General Order on that topic. His updated financial form shows that he has several years
of full time employment prior to his incarceration for these convictions. Under the
circumstances, we deem this matter best presented to our commissioner for consideration
under recently amended RAP 14.2 in the event that the State seeks costs as the prevailing
party.
7 This case does not present the issue of a court's failure to make an inquiry, the problem at issue in State v. Blazina, 182 Wn.2d 827, 344 P .3d 680 (2015) and its progeny.
15 No. 34059-7-III State v. Lopez
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.
WE CONCUR:
0 ~ n 'd Pennell, J. i
I 16 I f
l