FILED AUGUST 4, 2020 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STATE OF WASHINGTON, ) ) No. 37345-2-III Respondent, ) ) v. ) ) JACOB M. DUENAS, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. — Raising multiple challenges, Michael Duenas appeals from five
convictions for sexual offenses against a child, T.M. We affirm the convictions and
remand to strike the criminal filing fee.
FACTS
During the summer of 2000, T.M., then an eight-year-old, traveled from California
to visit his grandfather in Gig Harbor for two or three weeks. Also staying there that
summer were the child’s older cousin, Bryan Friebel, and Jacob Duenas, a son of the No. 37345-2-III State v. Duenas
grandfather’s wife. Friebel attended firefighting school and Duenas was attending
college. T.M. was sexually abused on repeated occasions during the visit.
T.M. disclosed the abuse to his older brother, K.M., three or four years later. He
identified the abuser as the person staying at his grandfather’s house who wanted to be a
police officer. Duenas was studying criminal justice at Crown College in 2000-2001; he
moved back to California in the fall of 2001 and eventually joined the California
Highway Patrol.
Although T.M. did not want to report the matter, the abuse eventually was brought
to the attention of Washington authorities following an investigation in California.
Charges were filed against Duenas and the case proceeded to jury trial in the Pierce
County Superior Court. Over objection, K.M. repeated his sibling’s disclosure
conversation for the jury.
The trial court prohibited the defense from asking Friebel about the student
uniform he wore while in school and from arguing that Friebel was the abuser. Mr.
Duenas testified in his own behalf, telling jurors that he was in Gig Harbor for school
before returning to California in 2001. He denied abusing T.M. and told jurors that his
interest in law enforcement did not develop until after 9/11. In closing, the prosecutor
argued that Duenas lied to the jury about when he desired to become an officer in order to
distance himself from T.M.’s childhood description of the abuser as the person studying
to be a police officer.
2 No. 37345-2-III State v. Duenas
The jury convicted Mr. Duenas of two counts of first degree child rape, two counts
of first degree child molestation, and one count of attempted first degree child rape.
Although defense counsel asked the court for a bottom of the standard range sentence, the
court imposed concurrent high end sentences.
Mr. Duenas timely appealed. This case was administratively transferred to
Division Three. A panel then considered the appeal without conducting oral argument.
ANALYSIS
Mr. Duenas raises seven arguments; we address six of them.1 In order, we
consider his contentions: (1) the statute of limitations barred the attempted rape charge,
(2) the exclusion of other suspects evidence, (3) prosecutorial misconduct, (4) disclosure
to K.M., (5) imposition of criminal filing fee, and (6) counsel’s performance at
sentencing.
Statute of Limitations
The initial contention is a claim that the attempted child rape conviction was
untimely filed. His own testimony defeats the argument.
This court has stated that the statute of limitations period can be argued for the
first time on appeal. State v. Novotny, 76 Wn. App. 343, 345 n.1, 884 P.2d 1336 (1994),
1 In the absence of multiple errors, we do not address his cumulative error claim.
3 No. 37345-2-III State v. Duenas
abrogated in part by In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 353, 5 P.3d
1240 (2000). That particular statement was based on a theory of jurisdiction that
subsequently was rejected by Peltier. Since the State does not contest Mr. Duenas’s
ability to raise this issue, we will consider it.
However, like many arguments raised for the first time on appeal, there must still
be an adequate record to permit review of the issue. State v. McFarland, 127 Wn.2d 322,
333, 899 P.2d 1251 (1995). In the event of an inadequate record or the need to develop
additional evidence, a personal restraint petition (PRP) is the appropriate vehicle for
raising an argument that was not presented to the trial court. Id. at 338.2
The parties debate which statute of limitations applies to an attempted child rape.
For felony charges not otherwise specified, the three year limitations period of RCW
9A.04.080(1)(i) applies. Since 2000, various extended time periods have governed the
time for filing child rape and child molestation charges. See Former RCW
9A.04.080(1)(c) (1998); former RCW 9A.04.080(1)(c) (2009); former RCW
9A.04.080(1)(c) (2017). There currently is no statute of limitations on those offenses.
See LAWS OF 2019, ch. 87, §2.
2 Because an appellate ruling on the merits of an argument will often foreclose review of the issue in a PRP, an appellant is not well served raising an issue on appeal that is not fully developed. In re Pers. Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986). However, we leave the wisdom of raising issues on appeal to appellate counsel and will assume that they will not raise claims better brought in a PRP.
4 No. 37345-2-III State v. Duenas
However, the statute does not expressly list attempted crimes. That omission is
the basis for appellant’s argument and the State’s rejoinder. We need not resolve that
dispute because the defendant’s own testimony establishes it is unnecessary.
The exception to the statutory limitations period is found in RCW 9A.04.080(2):
The periods of limitation prescribed in subsection (1) of this section do not run during any time when the person charged is not usually and publicly resident within this state.
(Emphasis added.)
Assuming that the crime of attempted child rape is subject to a three year
limitations period, the argument fails here. Mr. Duenas and the family members testified
that he left Washington in the fall of 2001 and returned to California. He completed law
enforcement training in California, joined the California Highway Patrol in 2003, and
was living in that state at the time the crimes were divulged to law enforcement more
than a decade later. There is no evidence that he ever resided in Washington after leaving
Gig Harbor in 2001.
On this record, the statute of limitations argument must fail. If he has evidence
that he later resided publicly in Washington, he must bring it in a PRP. McFarland, 127
Wn.2d at 338; In re Pers. Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986).
Other Suspects Evidence
Mr. Duenas next argues that his constitutional right to counsel and his right to
present a defense were violated when the court (1) excluded evidence that Mr. Friebel
5 No. 37345-2-III State v. Duenas
wore a blue uniform while attending firefighting school and (2) prohibited him from
arguing that Friebel committed the crimes. The trial court did not err.
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.
1920, 18 L. Ed. 2d 1019 (1967); State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970
(2004). The party seeking admission of evidence bears the burden of establishing
relevance and materiality. State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986). In
establishing a foundation for admission of “other suspects” evidence, the defendant must
show a clear nexus between the other person and the crime. State v. Rafay, 168 Wn. App.
734, 800, 285 P.3d 83 (2012), review denied, 176 Wn.2d 1023, cert. denied, 134 S. Ct.
170 (2013).
The trial court’s decision to admit or exclude evidence is reviewed for abuse of
discretion. State v. Franklin, 180 Wn.2d 371, 377 n.2, 325 P.3d 159 (2014). Discretion
is abused if 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). “An erroneous evidentiary
ruling that violates the defendant’s constitutional rights, however, is presumed prejudicial
unless the State can show the error was harmless beyond a reasonable doubt.” Franklin,
180 Wn.2d at 377 n.2. However, a defendant does not have a constitutional right to
present irrelevant or inadmissible evidence. State v. Jones, 168 Wn.2d 713, 720, 230
P.3d 576 (2010); State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
6 No. 37345-2-III State v. Duenas
A trial court’s exclusion of “other suspects” evidence is an application of the
general evidentiary rule that excludes evidence if its probative value is outweighed by
such factors as unfair prejudice, confusion of the issues, or potential to mislead the jury.
Franklin, 180 Wn.2d at 378 (citing Holmes v. South Carolina, 547 U.S. 319, 326-27, 126
S. Ct. 1727, 164 L. Ed. 2d 503 (2006)). Before the trial court will admit “other suspects”
evidence, the defendant must present a combination of facts or circumstances that points
to a nonspeculative link between the other suspect and the crime. Franklin, 180 Wn.2d at
381. The standard for the relevance of such evidence is whether it tends to connect
someone other than the defendant with the charged crime. Id.
The blue uniform evidence did not satisfy the standard. The purpose of the
testimony was to attempt to impeach T.M.’s in-court identification of Duenas as the
abuser. As a child, the boy had identified the abuser as the person who was studying to
be a cop. He did not state that the abuser wore a blue uniform. The attempted
impeachment did not constitute evidence that Friebel was the abuser. Accordingly, it was
not “other suspects” evidence. The trial court had a tenable basis for excluding the
evidence. There was no abuse of discretion.
Similarly, the court did not err in prohibiting Duenas from arguing that Friebel
was the abuser. There was no evidence that he committed the crimes. Duenas was
properly allowed to argue that others were in the house and that T.M. may have been
7 No. 37345-2-III State v. Duenas
mistaken in his identification. However, he lacked evidence that Friebel did abuse the
child. The court had a tenable basis for prohibiting the argument.
The court did not err in its treatment of the other suspects evidence.
Prosecutorial Misconduct
Appellant next argues that the prosecutor engaged in misconduct by telling the
jury that Duenas lied about when he decided to enter into law enforcement. The
prosecutor clearly tied that statement to the evidence and did not engage in misconduct.
Familiar standards guide our review of this issue. 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 718-719. 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
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
8 No. 37345-2-III State v. Duenas
(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.
In closing, the prosecutor argued that Mr. Duenas had a strong motive to lie about
the timing of his choice to enter into law enforcement:
So what are the two things that he distanced himself from this morning? Identity and opportunity. He knew that because [T.M.] was not able to provide a name for his disclosure, he identified him as the guy who wanted to be a law enforcement officer. Jacob Duenas is smart enough to know that he needs to distance himself from that. So he took the stand and he lied.
Report of Proceedings at 594-595. For several pages leading up to this statement, and
again afterward, the prosecutor noted all of the witnesses who had stated Duenas desired
to go into law enforcement prior to 9/11. She focused on that testimony and asked the
jurors to conclude that Duenas was lying about the timing. This was not a statement of
personal opinion; the prosecutor was arguing an inference from the conflicting testimony.
Mr. Duenas also argues that the prosecutor erred in misstating the burden of proof
and in appealing to the jury’s passions. Neither argument has merit.
The prosecutor told the jurors that T.M. was either making up the story, was
mistaken about the identity of the abuser, or was telling the truth. She then went through
the evidence and explained why it supported T.M.’s testimony. This was not an instance
of the prosecutor giving the jury a “false choice” between either believing the victim or
9 No. 37345-2-III State v. Duenas
acquiting the defendant. Rather, she listed the possible explanations and then discussed
why only one of those options was supported by the evidence.
Finally, Mr. Duenas argues that the prosecutor appealed to the emotions of the
jury when she repeated some of the victim’s testimony. Again, this was done in the
context of explaining why T.M. should be believed—he discussed difficult topics that
cost him emotionally. Those were not the type of statements one would expect to hear if
the victim were creating a false narrative. He had a difficult time talking about the abuse
and how it impacted him. The jury could properly weigh the sincerity of T.M.’s
testimony in reaching its decision.
Appellant has not established that the prosecutor engaged in misconduct in closing
argument.
Disclosure to K.M.
Mr. Duenas next argues that the court erred in allowing K.M. to repeat his
brother’s description of the sexual abuse as an excited utterance. We agree, but conclude
that the error was harmless.
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, 706-707, 903 P.2d 960 (1995). The trial court erred in applying the test for
admitting an excited utterance.
10 No. 37345-2-III State v. Duenas
ER 803(a)(2) provides that any statement “describing or explaining an event or
condition” is admissible hearsay if it was “made while the declarant was under the stress
of excitement caused by the event or condition.” Id. The requirements of this exception
were discussed in State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046, cert. denied, 534
U.S. 964 (2001):
An out-of-court statement offered to prove the truth of the matter asserted is admissible at trial if the statement relates to “a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” ER 803(a)(2). We have previously stated that three closely connected requirements must be satisfied in order for a hearsay statement to qualify as an excited utterance. First, a startling event or condition must have occurred. Second, the statement must have been made while the declarant was under the stress or excitement caused by the startling event or condition. Third, the statement must relate to the startling event or condition. [State v.] Chapin, 118 Wn.2d [681], 686, [826 P.2d 194 (1992)]. Often, the key determination is whether the statement was made while the declarant was still under the influence of the event to the extent that the statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment. State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992).
An excited utterance is admissible because it is “believed to be ‘a spontaneous and
sincere response to the actual sensations and perceptions already produced by [an]
external shock.’” Chapin, 118 Wn.2d at 686 (quoting 6 JOHN HENRY WIGMORE,
EVIDENCE IN TRIALS AT COMMON LAW § 1747, at 195 (James H. Chadbourn rev. ed.
1976)). As noted above, an excited utterance has three requirements: (1) a startling event
or condition occurred, (2) the declarant made a statement that relates to the startling
11 No. 37345-2-III State v. Duenas
event, and (3) the declarant made the statement while still under the stress of excitement
caused by the event. ER 803(a)(2); Woods, 143 Wn.2d at 597.
The disclosure in this case came three to four years after the abuse. That is well
after the stress of the abuse had passed. Although the mere passage of time does not
necessarily prevent a finding of continuing influence, the timing of the statement is still
key. In other cases where statements have been determined to be timely, the disclosure
had come within hours, not years, of the exciting event: State v. Thomas, 46 Wn. App.
280, 284, 730 P.2d 117 (1986), aff’d, 110 Wn.2d 859, 757 P.2d 512 (1988) (victim still
under influence six to seven hours after rape); State v. Flett, 40 Wn. App. 277, 287, 699
P.2d 774 (1985) (victim still under influence of event when reporting rape seven hours
after occurrence); State v. Woodward, 32 Wn. App. 204, 206-207, 646 P.2d 135 (1982)
(report 20 hours after rape); State v. Fleming, 27 Wn. App. 952, 956, 621 P.2d 779
(1980) (three to four hours after rape).
The disclosure in this case came much longer after the event than the time periods
noted in the earlier cases. This case is far closer to the facts in State v. Ramirez-Estevez,
164 Wn. App. 284, 263 P.3d 1257 (2011). There the victim made disclosures to a family
member and a counselor two to three years after the event. This court concluded that too
much time had passed for the victim to still be under the stress of the original attack.
Accordingly, we conclude that the court erred in admitting the statements as
excited utterances. Nonetheless, the error was harmless. Evidentiary error is harmless if,
12 No. 37345-2-III State v. Duenas
within reasonable probability, it did not materially affect the verdict. State v. Zwicker,
105 Wn.2d 228, 243, 713 P.2d 1101 (1986). The testimony was similar to that T.M.
recited to the jury. Generally speaking, the improper admission of cumulative evidence
does not constitute reversible error. State v. Todd, 78 Wn.2d 362, 372, 474 P.2d 542
(1970). At worst, that is what happened here.3
The erroneous testimony did not materially impact the verdict. The error was
harmless.
Criminal Filing Fee
Mr. Duenas next argues, and the State concedes, that the court erroneously
imposed the $200 filing fee after finding him indigent. After the sentencing here, the
legislature amended the statutes governing imposition of financial obligations on criminal
defendants. In State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), the Washington
Supreme Court ruled that the amendments were retroactive and applied to all sentencings
that were not final on the effective date of the new legislation, June 7, 2018. LAWS OF
2018, ch. 269.
We accept the concession of error and remand for the trial court to strike the
criminal filing fee.
3 Some of the identity testimony appears to have been admissible in response to the cross-examination of T.M. We need not parse the testimony to determine what was admitted in error and what was not.
13 No. 37345-2-III State v. Duenas
Sentencing Hearing
Lastly, Mr. Duenas argues that his defense counsel erred in not arguing his youth
as a mitigating factor. There is no factual support in the record for this argument.
We also consider this issue in accordance with well settled law. Counsel’s failure
to live up to the standards of the profession will require a new trial when the client has
been prejudiced by counsel’s failure. McFarland, 127 Wn.2d at 334-335. Review is
highly deferential and we engage in the presumption that counsel was competent;
moreover, counsel’s strategic or tactical choices are not a basis for finding error.
Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel’s
performance failed to meet a standard of reasonableness and (2) actual prejudice resulted
from counsel’s failures. Id. at 690-692. When a claim can be resolved on one ground, a
reviewing court need not consider both Strickland prongs. Id. at 697.
An exceptional sentence may be imposed if the trial court finds “substantial and
compelling” reasons to go outside the standard range. RCW 9.94A.535. The trial court
must enter written findings of fact and conclusions of law if it does impose an
exceptional sentence. Id. A nonexclusive list of mitigating factors is recognized by
statute. RCW 9.94A.535(1).
The Washington Supreme Court has recognized that all youthful offenders
sentenced in adult court must be able to seek exceptional sentences based on their
14 No. 37345-2-III State v. Duenas
immaturity at the time of the commission of the crime. State v. Houston-Sconiers, 188
Wn.2d 1, 18-21, 391 P.3d 409 (2017); State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359
(2015). However, a youthful offender has no presumption or entitlement to a mitigated
sentence. State v. Gregg, 9 Wn. App. 2d 569, 578-581, 444 P.3d 1219, review granted,
104 Wn.2d 1002, 451 P.3d 341 (2019). The defendant still bears the burden of
establishing that mitigating circumstances exist. Id. at 574.
An exceptional sentence may be available to a youthful offender whose offense
bears the hallmarks of youth—lack of maturity, impetuous or ill-considered actions and
decisions, susceptibility to peer pressure, and transitory (rather than fixed) character
traits. Gregg, 9 Wn. App. 2d at 574-575 (citing Roper v. Simmons, 543 U.S. 551, 569-
570, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)). To receive a mitigated sentence, a
defendant must demonstrate he is less culpable because of his age and immaturity. State
v. Moretti, 193 Wn.2d 809, 824, 446 P.3d 609 (2019).
Here, Mr. Duenas was prosecuted in adult court for an offense committed while he
was 19, making an exceptional sentence based on youthfulness possible. Odell, 183
Wn.2d 680. However, his argument fails because Mr. Duenas presented no evidence that
he committed these offenses because of youthful character traits. Indeed, since Mr.
Duenas denied committing the offense, it is exceptionally unlikely that he would have
appealed for sentencing leniency by admitting that he perjured himself before the jury.
15 No. 37345-2-III State v. Duenas
Understandably, there was no evidence in the record suggesting that youthful immaturity
was a factor in this crime.
Counsel could not have erred by failing to pursue the youthfulness mitigating
factor under the facts of this case. He did not perform ineffectively.
Affirmed and remanded.
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.
_________________________________ Korsmo, J.
WE CONCUR:
______________________________ Fearing, J.
______________________________ Pennell, C.J.