State Of Washington v. Jose Flores Solorio

• Court: Court of Appeals of Washington
• Decided: January 11, 2016
• Docket: 71754-5
• Status: Unpublished

Opinion

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 71754-5-1 Respondent, DIVISION ONE v.

UNPUBLISHED OPINION JOSEAPOLINAR FLORES-SOLORIO, AKA JOSE SOLORIO FLORES, FILED: January 11, 2016 Appellant.

Appelwick, J. — Flores-Solorio appeals his conviction for charges related

to his sexual abuse of three minors. He argues that the trial court erred in denying

his motion to sever the charges. He contends that the trial court abused its

discretion in permitting evidence of uncharged acts of sexual abuse of two other

minors. He asserts that the trial court should have granted a mistrial when several

witnesses alluded to excluded evidence. He alleges that his right to compulsory

process was violated when the State did not request a special interest parole1 for

his out-of-country witnesses and the trial court did not continue the case. He

1 In some cases, an individual who would otherwise be inadmissible to be present in the United States may qualify for a significant public benefit parole to be a witness in a proceeding. 8CFR § 212.5(b); U.S. Immigration & Customs Enforcement, Tool Kit for Prosecutors, at 24-26 (April 2011), http://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-for-prosecutors.pdf. No. 71754-5-1/2

argues that his defense counsel provided ineffective assistance by failing to move

to compel the State to request parole for foreign witnesses. We affirm.

FACTS

In 2009, Joseapolinar Flores-Solorio2 was charged with two counts of child

molestation in the first degree, child molestation in the second degree, two counts

of rape of a child in the second degree, and communicating with a minor for

immoral purposes based on the sexual abuse of P.R.Y. and S.R.Y. P.R.Y. and

S.R.Y. are twin sisters who were minors at the time of the abuse. Then, in 2010

the State filed charges against Flores-Solorio for the sexual abuse of another child,

H.R.R. The trial court joined all of the charges against Flores-Solorio into a single

trial.

P.R.Y. and S.R.Y. were born in Mexico and moved to the United States

when they were six. Their mother grew up with Flores-Solorio in Mexico. This

close connection led to Flores-Solorio and his family moving into P.R.Y. and

S.R.Y.'s family home when the twins were about nine. Flores-Solorio's family

consisted of himself, his partner, Isabel Sanchez, and their two children, O.F. and

C.F. Sanchez babysat the twins and their younger siblings while their parents

worked.

After moving in with them, Flores-Solorio began behaving inappropriately

around P.R.Y. and S.R.Y. He watched pornography on the television while they

were present. He also discussed sexual positions with them.

2 Flores-Solorio is also known by the nickname "Polo." No. 71754-5-1/3

And, Flores-Solorio began touching both P.R.Y. and S.R.Y. in ways that

made them uncomfortable. He would rub P.R.Y.'s legs, inner thighs, and waist

when no one else was around. On one occasion, Flores-Solorio attempted to put

his hands down P.R.Y.'s pants while she was lying down. P.R.Y. did not disclose

the abuse to S.R.Y. or anyone else. She was embarrassed, and she was afraid

that if she told S.R.Y. she would learn that Flores-Solorio was abusing her as well.

Flores-Solorio was also abusing S.R.Y. He first touched S.R.Y.

inappropriately when Flores-Solorio took her and her siblings to the beach. He

offered to teach her how to swim. In the water, he pulled himself close to S.R.Y.,

and she could feel his erect penis. Flores-Solorio would often touch S.R.Y.

between her thighs and under her shirt whenever he found himself alone with her.

And, Flores-Solorio did more than touch the outside of her body. On one occasion,

S.R.Y. felt ill at school, and Flores-Solorio picked her up and took her home. After

she had gone to bed, he came in and put his hand down her pants, penetrating

her vagina with his fingers.

Flores-Solorio and his family moved out of P.R.Y. and S.R.Y.'s home in

2002. But, he continued to abuse P.R.Y. and S.R.Y. Flores-Solorio and his family

moved to an apartment in Kirkland, where P.R.Y. and S.R.Y.'s family often visited.

P.R.Y. testified that when she spent the night at Flores-Solorio's apartment, he

would come into the room where she, S.R.Y., and C.F. were sleeping and touch

her over the sheets.

Then, in 2004, Flores-Solorio's family moved into a new house in Renton,

and they hosted a housewarming party. The twins and their family attended. At No. 71754-5-1/4

this party, Flores-Solorio insisted that S.R.Y. join him on a tour of the new house.

Flores-Solorio took S.R.Y. upstairs, laid her on the bed, and pulled down her pants.

He penetrated her vagina with his penis.

P.R.Y. first disclosed the abuse to her mother when she was 13. She was

supposed to accompany her siblings on a weekend trip to Flores-Solorio's house,

but she refused. P.R.Y.'s mother found her hiding and crying in her closet, terrified

that Flores-Solorio would find her. P.R.Y. revealed to her mother that Flores-

Solorio had been touching her inappropriately. Her mother confronted Flores-

Solorio, but decided not to report him. P.R.Y. and S.R.Y. ultimately went to the

police about the abuse after moving out of their mother's home in 2009.3

When Flores-Solorio and his family lived in Kirkland, his partner, Sanchez,

babysat a number of children at their apartment. During the summer of 2003,

Sanchez babysat H.R.R., who was six at the time, and her older sister. H.R.R.

testified that Flores-Solorio was often home in the mornings when she was at the

apartment. During that time period, Flores-Solorio touched H.R.R. in a way that

made her feel uncomfortable. One day, H.R.R.'s sister did not come to Flores-

Solorio's apartment with her, and Sanchez left to go to the grocery store. H.R.R.

was lying down, and Flores-Solorio approached her wearing only a towel. He

climbed on top of her and began rubbing her chest and vagina underneath her

clothes. H.R.R. testified about another time where Flores-Solorio touched her in

3 Both P.R.Y. and S.R.Y. received U-visas (nonimmigrant status visas) due to their involvement in both this case and another criminal case involving S.R.Y.'s allegations of sexual abuse by their stepfather. No. 71754-5-1/5

the same way. And, on another occasion, Flores-Solorio put H.R.R. onto a bed,

took off her pants and underwear, and penetrated her vagina with his penis.

H.R.R. was too afraid to tell anyone what happened to her. Years later,

sixteen year old C.P. came to live with H.R.R.'s family. In June 2009, C.P. told

H.R.R. about the things her stepfather had done to her. H.R.R. began crying, and

revealed to C.P. that Flores-Solorio had done similar things to her. C.P. pushed

H.R.R. to tell her mother, who took H.R.R. to the police station several days later.

In December 2009, the State filed charges against Flores-Solorio for the

sexual abuse of P.R.Y. and S.R.Y. In February 2010, it filed charges against

Flores-Solorio for the abuse of H.R.R. These charges were joined in 2013.4 The

amended information charged Flores-Solorio with three counts of child molestation

in the first degree for acts involving P.R.Y., S.R.Y., and H.R.R. It also charged him

with rape ofa child in the second degree for S.R.Y., child molestation in the second

degree for P.R.Y., and rape of a child in the first degree for H.R.R. Before trial,

Flores-Solorio moved to sever the P.R.Y. and S.R.Y. charges from the H.R.R.

charges. The court rejected his motion.

The State moved before trial to admit evidence of other victims under ER

404(b). The court decided to allow evidence of victims M.G. and E.G., who would

each testify about a time when Flores-Solorio touched them inappropriately. The court excluded any evidence suggesting that Flores-Solorio abused his own

daughter, C.F., because C.F. denied those allegations.

4 Flores-Solorio was released after his initial arrest, and he returned to Mexico. This case was delayed because the State was required to extradite Flores-Solorio from Mexico to stand trial. No. 71754-5-1/6

At trial, the State called several witnesses, including P.R.Y., S.R.Y., and

H.R.R. E.G. and M.G., the ER 404(b) witnesses, also testified. Flores-Solorio

called Sanchez, H.R.R.'s sister, and P.R.Y. and S.R.Y.'s mother and brother to

discredit the victims. The jury found Flores-Solorio guilty as charged.

Flores-Solorio appeals.

DISCUSSION

Flores-Solorio raises multiple arguments on appeal. He asserts that the

trial court erred in denying his motion to sever the counts pertaining to P.R.Y. and

S.R.Y. from those regarding H.R.R. Flores-Solorio also argues that the trial court

abused its discretion by permitting the testimony of M.G. and E.G. pursuant to ER

404(b). He also contends that the trial court abused its discretion when it refused

to grant a mistrial after the jury heard excluded evidence pertaining to Flores-

Solorio's alleged abuse of C.F. And, Flores-Solorio claims that both the State and

the trial court violated his right to compulsory process when he was unable to bring

witnesses from Mexico to testify on his behalf. He alleges that defense counsel's

failure to move to compel the State to request such a parole constituted ineffective

assistance of counsel.

I. Motion to Sever Counts

Flores-Solorio argues that the trial court erred in denying his motion to sever

the abuse charges relating to P.R.Y. and S.R.Y. from those pertaining to H.R.R.

After assessing the CrR 4.4(b) factors, the trial court concluded that Flores-Solorio

had not met his burden of demonstrating that the possibility of prejudice

outweighed the need for judicial economy. No. 71754-5-1/7

CrR 4.4(b) permits a trial court to sever counts when "severance will

promote a fair determination of the defendant's guilt or innocence of each offense."

In reaching this conclusion, a trial court must consider: "(1) the strength of the

State's evidence on each count; (2) the clarity of defenses as to each count; (3)

court instructions to the jury to consider each count separately; and (4) the

admissibility of evidence of the other charges even if not joined for trial." State v.

Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). The court must then weigh any

residual prejudice against the need for judicial economy, jd, This court reviews a

decision whether to sever counts for a manifest abuse of discretion. State v.

Kalakoskv, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993). The defendant bears the

burden of demonstrating that the trial court abused its discretion. Russell, 125

Wn.2d at 63.

Flores-Solorio challenges the trial court's conclusions on each of the CrR

4.4(b) factors. He first contends that the State's evidence pertaining to P.R.Y. and

S.R.Y. was much weaker than that pertaining to H.R.R. He claims that he cast

serious doubt on P.R.Y.'s and S.R.Y.'s credibility through evidence that S.R.Y. and

P.R.Y. were motivated by immigration benefits.

On the motion to sever, Flores-Solorio argued that recently discovered

evidence would undermine P.R.Y.'s and S.R.Y.'s credibility. Specifically, Scott

Clinton, with whom P.R.Y. and S.R.Y. lived when they left their mother's home,

would testify that he had concerns about their trustworthiness. He had reason to

believe P.R.Y. had shoplifted, and one of the twins made a comment about being

able to stay in the United States now. The trial court recognized that this evidence No. 71754-5-1/8

did somewhat weaken the State's case. Therefore, the trial court properly

considered the evidence before it on this factor.

Flores-Solorio also contends the second factor is satisfied, because he had

different defenses for each set of charges. Flores-Solorio told the court at the

motion to sever hearing that his defenses were very different for P.R.Y. and S.R.Y.

as opposed to H.R.R. Flores-Solorio intended to rely on witness testimony

undermining P.R.Y.'s and S.R.Y.'s credibility. And, Flores-Solorio was considering

testifying as to H.R.R. but not to P.R.Y. and S.R.Y. But, as the trial court

acknowledged, Flores-Solorio's defense to both claims is denial. Although Flores-

Solorio had different impeachment evidence for P.R.Y and S.R.Y than for H.R.R.

Flores-Solorio did not show that these defenses contradicted each other. The jury

could have compartmentalized the evidence. See Kalakoskv, 121 Wn.2d at 537

(jury could compartmentalize the evidence where the victims described different

attacks, but the perpetrator's methods were similar in each).

As to the third factor, the trial court explicitly instructed the jury that it was

to consider each count separately. This factor weighs in favor of the trial court's

decision.

Finally, Flores-Solorio contends that evidence of the abuse of P.R.Y.,

S.R.Y., and H.R.R. would not have been cross admissible in separate trials. While

cross admissibility is a relevant factor under CrR 4.4(b), severance is not

mandated if the crimes would not be cross admissible. See Kalakoskv, 121 Wn.2d

at 538. Moreover, due to the similarities amongst the victims' ages and the manner No. 71754-5-1/9

of abuse, evidence of the other victims would have likely been admissible in

separate trials to show a common scheme or plan.5

Flores-Solorio has not carried his burden of demonstrating that the trial

court's refusal to sever the charges was a manifest abuse of discretion. We

conclude that the trial court did not err in denying his motion to sever the charges.

II. ER 404(b) Testimony

Flores-Solorio asserts that the trial court abused its discretion by admitting

testimony about the alleged sexual abuse of M.G. and E.G. He contends that the

alleged incidents of abuse of M.G. and E.G. constitute nothing more than

opportunistic acts, and therefore cannot demonstrate a common scheme or plan.

Evidence of a person's past wrongs or crimes is not admissible to show the

person acted in conformity with that character. ER 404(b). However, it may be

admissible for another purpose, "such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident." ER

404(b). This court reviews a trial court's decision to admit or exclude evidence for

an abuse of discretion. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207

(2012).

For a trial court to admit evidence of prior acts to show a common scheme

or plan, it must identify the purpose for which the evidence is sought to be

introduced, determine whether the evidence is relevant to prove an element of the

charged offense, and weigh the probative value of the evidence against its

prejudicial effect. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).

5 See infra, section II. No. 71754-5-1/10

Additionally, the party offering the evidence must prove that the misconduct

occurred by a preponderance of the evidence, jd. To show a common scheme or

plan, the prior acts must be substantially similar to the charged offense. State v.

DeVincentis, 150 Wn.2d 11, 20, 74 P.3d 119 (2003). However, this level of

similarity does not require a unique method of committing the offense. Id. at 20-

21.

Flores-Solorio asserts that the ER 404(b) evidence does not demonstrate a

common scheme or plan, but only opportunistic acts. He contends that the

commonalities amongst the acts are coincidental, and do not show that he

manufactured the occasions to abuse the victims. He asserts that he did not plan

the victims' ages or purposely become close to their families, so the evidence does

not show a plan.

This argument ignores the commonalities between these crimes and

misinterprets the common scheme or plan doctrine. For the doctrine to apply, the

prior acts must be substantially similar to the charged offenses, such that they

show the defendant had devised a plan and utilized it multiple times. See

DeVincentis, 150 Wn.2d at 21. In other words, we look to the commonalities

amongst the acts to determine if there was a plan, not for evidence that each act

was planned. And, here the commonalities amongst the acts are substantial.

Flores-Solorio gained access to the victims in a similar manner—utilizing

his close friendships and Sanchez's daycare business. E.G.'s family became

close friends with Flores-Solorio's family after E.G.'s family moved to Flores-

Solorio's neighborhood in Kirkland. M.G.'s mother was close to Flores-Solorio,

10 No. 71754-5-1/11

because they both grew up in the same town in Mexico. When Flores-Solorio

needed a place to stay, M.G.'s mother told him he could park his van in her

driveway and sleep there. P.R.Y. and S.R.Y.'s mother also grew up in the same

town as Flores-Solorio. She allowed Flores-Solorio and Sanchez to move into

their family's home in Woodinville, in exchange for help watching the children.

H.R.R.'s mother, though not already a close friend of Flores-Solorio, first met him

and Sanchez when she needed a babysitter. Thus, Flores-Solorio became close

with the families of E.G., M.G., P.R.Y., and S.R.Y. before abusing them, and

utilized Sanchez's daycare business to become close to P.R.Y., S.R.Y., and

H.R.R.

And, the victims were all between the ages of six to eleven when Flores-

Solorio began abusing them. H.R.R. was six years old when Flores-Solorio

abused her. P.R.Y. and S.R.Y., the twins, were around nine years old when

Flores-Solorio and his family moved into their family's house in Woodinville.

Flores-Solorio began talking about sexual activities around P.R.Y. and S.R.Y.

shortlyafter moving in, and then he began touching both of them. E.G. was around

ten or eleven when she first met Flores-Solorio, and Flores-Solorio touched her

inappropriately soon after that. M.G. was around six or seven when Flores-Solorio

lived in her driveway for six months. It was during this time that he entered her

home once and touched her.

And, the manner in which Flores-Solorio actually abused all five victims was

similar. On several occasions, he began touching the girls while they were lying

down or watching television. H.R.R. testified that on multiple occasions she was

11 No. 71754-5-1/12

lying down when Flores-Solorio climbed on top of her and began rubbing her chest

and genitals. M.G. was sitting on the couch at night watching television when

Flores-Solorio entered her house to go to the bathroom. He then sat down by her

on the couch and began rubbing her legs, moving toward her inner thigh and

crotch. P.R.Y. testified that after Flores-Solorio moved into her family's home, he

began touching her inner thighs and legs when no one else was around. On one

occasion, P.R.Y. was lying down and watching television when Flores-Solorio tried

to touch her underneath her pants. S.R.Y. recalled that any time Flores-Solorio

found her alone, he would touch her chest and between her thighs.

Flores-Solorio also pressed himself against several of the victims. He

entered E.G.'s house with an excuse: he needed to use the restroom. Then, as

she was doing laundry, Flores-Solorio came up behind E.G. and hugged her,

pressing his penis against her. S.R.Y.'s first memory of Flores-Solorio touching

her was when Flores-Solorio offered to teach her how to swim at the beach. In

doing so, he stood close behind S.R.Y., pulling himself closer to her so that she

could feel his erect penis.

Flores-Solorio also exposed himself to more than one of the children.

P.R.Y. testified that Flores-Solorio was getting ready for work one day when she

walked into the living room and he pulled down his zipper, exposing his penis. E.G.

similarly testified that during the encounter in the laundry room, Flores-Solorio

pulled down his pants and told her to look. She realized that he wanted her to look

at his exposed penis.

12 No. 71754-5-1/13

Though the periods of abuse varied, Flores-Solorio continued abusing all of

the victims for as long as he had access to them. He abused H.R.R. continuously

during and after the summer that Sanchez provided childcare for H.R.R. He

abused P.R.Y. continuously until P.R.Y. revealed the abuse to her mother and

refused to be alone with Flores-Solorio again. And, he abused S.R.Y. whenever

he was able to isolate her from the other children. But, Flores-Solorio's access to

M.G. and E.G. was terminated shortly after the acts occurred. M.G. told her mother

immediately after Flores-Solorio touched her inappropriately for the first time.

M.G.'s mother confronted Flores-Solorio and informed him that he was no longer

welcome to stay in their driveway. E.G.'s family lived near Flores-Solorio's family

in Kirkland for only a brief period of time. E.G. testified that her family moved to

Kirkland during the summer, and they left after only a few months.

Additionally, the acts here were not distant in time—they were concurrent

with the charged offenses. Commission of the acts during the same period of time

can also be a factor in demonstrating a common scheme or plan. State v. Thanq,

145 Wn.2d 630, 643, 41 P.2d 1159 (2002). Here, the record shows that Flores-

Solorio abused all five victims during the same time period. Flores-Solorio and his

family lived with P.R.Y. and S.R.Y.'s family in Woodinville from 2000 to 2002.

Flores-Solorio continued abusing S.R.Y. until at least 2004. H.R.R. was abused

by Flores-Solorio during the summer of 2003, when Sanchez babysat her. E.G.

was abused by Flores-Solorio in 2002 or 2003. M.G. was abused by Flores-Solorio

in 2000 or 2001.

13 No. 71754-5-1/14

The substantial similarities amongst these acts show that Flores-Solorio

had a common scheme or plan to molest prepubescent girls. He utilized his close

friendships and Sanchez's daycare business to become close to the victims. He

took advantage of opportunities to isolate the victims. And, when he was alone

with them, he touched the victims' legs, genitals, and chests. The abuse continued

for as long as he had access to them. Given these facts, the trial court did not

abuse its discretion in admitting evidence of the uncharged acts of abuse of M.G.

and E.G.

III. Motion for Mistrial

Flores-Solorio also contends that his conviction should be reversed,

because the trial court abused its discretion by refusing to grant a mistrial. He

asserts that despite the court's ruling excluding evidence of his alleged sexual

abuse of C.F., several witnesses testified about that abuse. He claims these

statements were inherently prejudicial. Flores-Solorio argues that once the jury

heard these statements, the only solution was for the court to order a new trial.

We review a trial court's denial of a mistrial for an abuse of discretion. State

v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A trial court abuses its

discretion only if no reasonable judge would have reached the same conclusion.

Id, We overturn a trial court's refusal to grant a mistrial only if the error is

substantially likely to have affected the verdict. Russell, 125 Wn.2d at 85. The

trial court must consider three factors in deciding whether to grant a motion for a

mistrial: "(1) the seriousness of the irregularity; (2) whether the statement was

cumulative of evidence properly admitted; and (3) whether the irregularity could be

14 No. 71754-5-1/15

cured by an instruction." State v. Post. 118 Wn.2d 596, 620, 837 P.2d 599 (1992).

The trial court should grant a mistrial only if nothing short of a new trial can ensure

the defendant receives a fair trial. Rodriguez, 146 Wn.2d at 270. The potential for

prejudice resulting from an irregularity is highest in sexual abuse cases. Gresham,

173 Wn.2d at 433-34.

Flores-Solorio points to three isolated statements from State witnesses

insinuating that he also sexually abused his daughter, C.F. First, he cites to

Detective Janelle McMillian's testimony that a detective from another agency

called her to inform her that the detective had arrested Flores-Solorio. McMillian

testified that the detective told her "there had been allegations involving him with

two children" and "[tjhey were also concerned about his daughter." Second, he

cites to P.R.Y.'s comment about C.F. during her testimony. When the prosecutor

asked if she had any reason to believe Flores-Solorio was abusing S.R.Y., P.R.Y.

responded, "His daughter would tell me like why don't you let yourself—." Finally,

he points to E.G.'s testimony that, "when Itold [P.R.Y.] about what had happened,

she told me that Polo had something to do with his daughter as well." Flores-

Solorioasserts that taken together, these statements were substantially prejudicial

and the jury could not be guaranteed to disregard them.

Flores-Solorio argues that Washington case law controls the outcome in

this case. He cites State v. Babcock, where the defendant was originally charged

with sexually abusing two young girls, M.B. and AT. 145 Wn. App. 157, 158, 185

P.3d 1213 (2008). At trial, the State introduced hearsay statements ofAT. through

five witnesses. |o\ at 161-62. Then, when the State called AT., she refused to

15 No. 71754-5-1/16

testify. Id. at 162. As a result, the trial court ruled that A.T.'s previous statements

were inadmissible, and it dismissed the charges as to A.T. jd. But, the trial court

refused to grant a mistrial, id. The Court of Appeals reversed, because the acts

relating to A.T. were so similar to those relating to M.B. that it would be inherently

difficult for the jury to disregard the testimony. Id. at 165-66.

Flores-Solorio also cites State v. Escalona, 49 Wn. App. 251, 742 P.2d 190

(1987). In that case, the defendant, Escalona, was charged with second degree

assault with a deadly weapon—a knife. ]g\.at 252. Escalona had previously been

convicted of an identical crime, jd. Before trial, the court excluded any reference

to the earlier conviction. Id. But, at trial the State's key witness testified,

unsolicited, that the defendant "already has a record and had stabbed someone."

jd. at 253. There too the Court of Appeals reversed the trial court's denial of a

mistrial, jd. at 256-57. It determined that the irregularity was extremely serious,

because evidence of prior crimes is permitted only under limited circumstances.

Id. at 255. The court held that a jury instruction could not cure the prejudicial effect,

because the State's case depended almost entirely on that witnesses' testimony,

and evidence of Escalona's prior conviction was logically relevant to the charged

offense. Id at 255-56.

Flores-Solorio is correct that the irregularity here was fairly serious. He was

not charged with abuse of his daughter. The comments could have been

understood to implythat Flores-Solorio had sexually abused a sixth victim, his own

daughter. It was not cumulative of other evidence. And, the evidence came in

16 No. 71754-5-1/17

despite the fact that the trial court ruled that it would not permit evidence regarding

the alleged abuse of C.F.

But, the statements here were capable of being cured by a jury instruction.

The statements were vague. They required the jury to speculate and to infer that

Flores-Solorio sexually abused C.F. in the same way that he abused P.R.Y.,

S.R.Y., and H.R.R. McMillian testified that after another officer arrested Flores-

Solorio for child abuse, they were also worried about his daughter. This statement

did not reveal that officers had any specific reason to suspect that Flores-Solorio

had abused his daughter. P.R.Y., in testifying that C.F. asked her "why don't you

let yourself--," did not mention that C.F. let Flores-Solorio abuse her. This

statement referred only to Flores-Solorio's abuse of P.R.Y., not his alleged abuse

of C.F. Even the most harmful statement, E.G.'s testimony that P.R.Y. told her

that Flores-Solorio had something to do with C.F., is vague. The jury could infer

that, because E.G. made this reference when discussing the abuse she

experienced, E.G. meant that Flores-Solorio was doing something sexual to C.F.

But, E.G. provided no details about what this was. And, E.G. did not speak about

her personal knowledge ofthis abuse. Instead, she spoke to what P.R.Y. told her.6

6The vagueness of these statements becomes even clearer when they are compared to the evidence the State wished to present. Before trial, the State sought to introduce ER 404(b) evidence about Flores-Solorio's alleged abuse of C.F. It would have had P.R.Y. and S.R.Y. testify to the fact that they witnessed Flores-Solorio touching and raping C.F. The twins would have also testified that Flores-Solorio threatened to hurt C.F. if they told anyone about the abuse. However, the trial court excluded that evidence. Despite the isolated statements implying that Flores-Solorio abused C.F., the jury did not hear these specific allegations.

17 No. 71754-5-1/18

The ambiguity of these statements distinguishes this case from Escalona

and Babcock. In Escalona, the trial court excluded evidence mentioning

Escalona's previous conviction for assault with a knife, yet the jury still heard

evidence of that conviction. 49 Wn. App. at 252-53. And, the lack of detail here

distinguishes this case from Babcock. In that case, the jury heard extensive

hearsay testimony from five witnesses concerning A.T. Babcock, 145 Wn. App. at

161-62. The charges pertaining to A.T. were dismissed after the jury heard these

detailed accounts. Jd at 162. The mere suggestion that Flores-Solorio sexually

abused another victim, without any specific information, does not rise to the level

of the irregularities in Escalona or Babcock.

The wealth of evidence against Flores-Solorio further distinguishes the case

from Escalona and Babcock. In Babcock, the State's entire case rested on the

credibility of M.B. 145 Wn. App. at 164. Her testimony was inconsistent at times.

Id Given the dearth of corroborating evidence, testimony regarding similar acts of

abuse perpetrated against A.T. was extremely prejudicial and inherently difficult

for the jury to disregard. ]d at 164-65. And, in Escalona, the State's key witness

was the one who revealed that the defendant had committed a similar crime. 49

Wn. App. at 253, 255. The State's case depended on that witness's testimony. Id

at 255. In such a close case, it would be extremely difficult for a jury to disregard

logically relevant evidence. Escalona, 49 Wn. App. at 255-56.

This was not a close case. The State had a vast amount of evidence against

Flores-Solorio. The three victims of the charged crimes testified before the jury.

They explained what Flores-Solorio did to them in great detail. Two victims of

18 No. 71754-5-1/19

uncharged crimes also testified before the jury about times that Flores-Solorio

touched them inappropriately. And, the jury heard from the investigating officers

and a doctor who examined one of the victims.

The trial court was in the best position to determine whether a jury

instruction could cure the irregularity here. State v. Weber, 99 Wn.2d 158, 166,

659 P.2d 1102 (1983). The court gave a curative instruction. It explicitly told the

jury that it was not to consider any of E.G.'s testimony about what P.R.Y. and

S.R.Y. told her during their conversation.

We hold that the trial court did not abuse its discretion in concluding that a

jury instruction was sufficient.

IV. Right to Compulsory Process

Flores-Solorio argues that his right to compulsory process under the Sixth

Amendment of the United States Constitution and Article I, Section 22 of the

Washington Constitution was violated. This argument traces back to Flores-

Solorio's wanting two witnesses with no legal status to enter the United States to

personally appear to testify on his behalf. He contends that the State violated his

rights by failing to file a request for a significant public benefit parole. He also

alleges that the trial court violated his rights by refusing to continue the trial so that

he could bring his out-of-country witnesses to the United States.

The Sixth Amendment of the United States Constitution provides, "In all

criminal prosecutions, the accused shall enjoy the right... to be confronted with

the witnesses against him [and] to have compulsory process for obtaining

witnesses in his favor." Article I, section 22 of the Washington Constitution

19 No. 71754-5-1/20

similarly protects this right. But, the compulsory process right is not absolute.

State v. McCabe, 161 Wn. App. 781, 787, 251 P.3d 264 (2011). For the right to

be violated, "[t]he contested act or omission must be attributable to the sovereign,

and it must cause the loss or erosion of material testimony which is favorable to

the accused." United States v. Theresius Filippi, 918 F.2d 244, 247 (IstCir. 1990).

The right is also subject to procedural and evidentiary rules. McCabe, 161 Wn.

App. at 788.

Flores-Solorio contends that Theresius Filippi should control. In that case,

the events leading to Filippi's arrest transpired in Quito, Ecuador. Theresius Filippi,

918 F.2d at 245. Filippi contended that an Ecuadorian citizen could corroborate

his testimony. Id Filippi's attorney sent two letters to the United States Attorney

prosecuting the case to ask for assistance procuring a visa for the witness. ]d The United States Attorney never replied, jd Defense counsel requested parole

for the witness from the Immigration and Naturalization Service, but was told that

the United States Attorney must request a public interest parole. Id at 246.

Finally, the trial court ordered the United States Attorney to requestthe parole. Id The United States Attorney still refused, filing a motion for reconsideration, jd

After this long process, Filippi agreed to proceed to trial without the witness, jd On appeal, the First Circuit determined that the United States Attorney violated Filippi's Sixth Amendment right to compulsory process by deliberately failing to

take action when it was required to do so. jd at 247. But, Filippi had waived the

right by proceeding to trial, jd at 248.

20 No. 71754-5-1/21

Although Flores-Solorio asserts that this case mirrors Theresius Filippi, the

facts are distinguishable. Here, the State did act. It responded to defense

counsel's request. It contacted the Department of Justice (DOJ) to ask if there is

any process to bring defense witnesses from Mexico to the United States to testify.

The DOJ provided resources regarding Mutual Legal Assistance Treaties and the

S-visa program and informed the prosecutor that there is no process for bringing

defense witnesses into the United States. The State forwarded this information—

including the DOJ's recommendation that defense counsel contact the Office of

Enforcement Operations—to defense counsel. This effort to assist Flores-Solorio

cannot be said to be a deliberate failure to perform a required task.

Flores-Solorio further asserts that the trial court violated his compulsory

right by refusing to continue the trial date for him to procure out-of-country

witnesses. Flores-Solorio claims that he had no choice but to proceed without

those witnesses, because the trial court had already made clear it would reject

another request to continue on that basis. But, Flores-Solorio did not request

another continuance. He offers no support for his argument that the trial court

violated his right to compulsory process by refusing to grant a continuance that

Flores-Solorio did not request.

We conclude that neither the State nor the trial court violated Flores-

Solorio's compulsory process right.

21 No. 71754-5-1/22

V. Ineffective Assistance of Counsel

Flores-Solorio contends that he received ineffective assistance of counsel,

because his attorney did not move to compel the State to request parole for his

out-of-country witnesses.

An ineffective assistance of counsel claim has two prongs. State v.

Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009). The defendant must show

that counsel's performance was deficient, meaning it fell below an objective

standard of reasonableness. Id. And, the deficient performance must have

prejudiced the defendant. Id. For this to be the case, there must be a reasonable

probability that the outcome of the case would have been different but for counsel's

errors. Statev. McFarland, 127Wn.2d 322, 335, 899 P.2d 1251 (1995). Counsel's

performance is presumed effective, jd

Flores-Solorio claims that his attorney's performance was deficient because

there was no tactical reason not to file a motion compelling the State to request a

significant public benefit parole for the witnesses. He further asserts that, because

of the holding in Theresius Filippi, the trial court would have likely granted the

motion. But, Flores-Solorio has not shown why the court would have granted his

motion—or that, even if the State had requested a parole for the witnesses, such

a parole would have been granted. Though Flores-Solorio asserts that his

witnesses could have obtained a parole to testify on his behalf, the very materials

he relies upon for this assertion reveal the narrow scope of that parole.

U.S. Immigration & Customs Enforcement, Tool Kit for Prosecutors, at 24-

26 (April 2011), http://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-for-

22 No. 71754-5-1/23

prosecutors.pdf. The secretary of homeland security may grant a special interest

parole to an alien who will be a witness in a proceeding. 8 CFR § 212.5(b)(4).

Such a parole is "justified only on a case-by-case basis for 'urgent humanitarian

reasons' or 'significant public benefit.'" 8 CFR § 212.5(b). Thus, this option is

extremely limited, and Flores-Solorio has not shown that this case falls within the

rule's narrow confines. Defense counsel could have recognized the narrow

application of the rule and decided to explore other avenues to present this

evidence.

Further, even assuming counsel's performance was deficient, Flores-

Solorio has not shown that it was prejudicial. After learning that the State had

found no method to parole Sanchez and C.F. into the United States, defense

counsel moved to present their testimony telephonically. The trial court granted

this motion, and Sanchez testified at trial by telephone. And, Flores-Solorio did

not present C.F. as a witness. Although Flores-Solorio contends this decision

would have likely been different had C.F. been available to testify in person, he

offers no reason why she could not have testified by telephone.

Moreover, Flores-Solorio has not shown that the verdict would have been

different if both Sanchez and C.F. had testified in person. Flores-Solorio presented

live testimony suggesting that he was never alone with the victims and could not

have had an opportunity to abuse them. H.R.R.'s sister testified she could not

remember being away from H.R.R. for more than a few minutes while at Flores-

Solorio's home. And, both P.R.Y. and S.R.Y.'s brother and mother testified that

Flores-Solorio always took all the children with him on outings. There is no reason

23 No. 71754-5-1/24

to believe that additional live testimony from two witnesses with potential familial

bias—Flores-Solorio's partner and his daughter—claiming the same things would

have persuaded the jury to discredit the victims' testimony.

We hold that Flores-Solorio has not demonstrated ineffective assistance of

counsel.

We affirm.

WE CONCUR:

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