State Of Washington, V. Lola Felipa Luna

• Court: Court of Appeals of Washington
• Decided: June 11, 2024
• Docket: 57943-0
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

June 11, 2024

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 57943-0-II

Respondent,

v.

LOLA FELIPA LUNA, UNPUBLISHED OPINION

Appellant.

CRUSER, C.J. — In January 2021, Lola Felipa Luna and SPT, two teenaged girls, engaged

in a verbal altercation that turned physical. During the fight Luna repeatedly stabbed SPT, sending

her to the hospital in critical condition. SPT died a few hours after the fight while receiving care

in the hospital. The case went to trial and a jury found Luna guilty of murder in the second degree.

On appeal, Luna raises a variety of evidentiary arguments. She argues that the trial court erred in

(1) admitting evidence of a prior fight between Luna and another girl; (2) admitting character

evidence to disprove Luna’s self-defense theory and show motive and intent; (3) admitting

evidence of a 911 call made by SPT’s friends on the way to the hospital; (4) excluding character

evidence of SPT; (5) excluding evidence to support Luna’s alternative cause of death theory; and

(6) admitting an interrogation interview after finding that Luna knowingly waived her Miranda

rights. Luna maintains that the cumulative effect of these evidentiary errors deprived her of a fair No. 57943-0-II

trial. Alternatively, Luna argues that if these evidentiary errors are deemed to be waived or invited,

then Luna is entitled to reversal due to ineffective assistance of counsel.

We hold that the trial court did not abuse its discretion in most of the decisions it made to

which Luna now assigns error. However, the court did err in admitting character evidence from

Luna’s social media in order to prove motive and intent and to disprove Luna’s theory of self-

defense. The error was harmless, however, because it is not reasonably probable that the admission

of the evidence materially affected the outcome of trial. We therefore affirm.

FACTS

I. BACKGROUND & UNDERLYING CRIME

A. Background Leading up to the Fight

Prior to the day of the fight, SPT and Luna had never met in person. The two had only

communicated on social media. Luna and SPT had mutual connections, including another teenaged

girl, HD. In August 2020, five months before the fight between Luna and SPT, Luna and HD got

into a physical fight at the Kitsap shopping mall (the mall fight). HD testified at trial that the fight

between her and Luna occurred over “drama about a boy,” because HD had become “really close

with [Luna’s] ex-boyfriend.” 2 Verbatim Rep. of Proc. (VRP) at 448. Luna testified that the fight

occurred because Luna heard through mutual friends that HD was “talking about [her].” 4 VRP at

1224. Luna also testified that she and HD reconciled and became cordial again after the fight.

SPT and HD were close friends; HD saw SPT as an older sister figure. On the day of the

fight, SPT told HD that she wanted to fight Luna. According to HD, the fight between HD and

Luna was only part of why SPT wanted to fight Luna. HD testified that Luna and SPT “had drama,”

but she could not recall what it was about, specifically. 2 VRP at 456-57. SPT told HD to send

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Luna a message saying that HD wanted to fight her and asking for her address. Luna responded

and provided HD with her address. HD testified that when Luna provided HD with her address,

Luna was unaware that HD was communicating with SPT and that Luna did not know that SPT

planned to go to Luna’s house to fight her.

B. The Fight & SPT’s Death

SPT received Luna’s address from HD and traveled to Luna’s house. SPT was

accompanied by two of her friends, JO and KN. SPT’s infant daughter was also in the car.

According to JO, when they arrived at Luna’s house, she got out of the car and accompanied SPT

to the sidewalk in front of Luna’s house. Luna’s house sits above the sidewalk; a flight of

approximately 13 stairs separates the fenced-in front yard from the sidewalk. SPT went up the

stairs but JO remained on the sidewalk below. JO observed the fight from below. Luna’s stepdad

and boyfriend were also present and stood outside observing the fight. Luna’s boyfriend

videotaped the fight.

The fight itself spanned for approximately 30 seconds. The video shows Luna holding a

knife slightly behind her while having a heated conversation with SPT. Eventually, SPT took the

first swing and then Luna and SPT exchanged punches and hit each other repeatedly. The two

eventually separate and as she started to walk away, back to the car where her friends were waiting,

SPT exclaimed, “What the [f***] is wrong with you? Girl, what the [f***]?” Ex. 103, at 48 sec.

The video captured Luna’s boyfriend behind the camera stating “She just stabbed her.” Id., at 49

sec.

SPT walked away from Luna’s house, back to the street where JO and KN were waiting

for her with the car. According to JO, SPT did not look good when she reached them and “[t]here

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was just a lot of blood.” 2 VRP at 233. KN and JO called 911 while driving SPT to the hospital.

During the call, KN and the operator discussed the car’s location in relation to the hospital and KN

shared overarching details about the fight between Luna and SPT that lead to SPT’s injuries. KN

shared the following details with the operator: “. . . and she got stabbed pretty bad . . . in the face,

in the stomach in the back.” Ex. 97, at 23 sec. Either JO or KN can be heard pleading with SPT,

saying “[SPT, SPT, SPT, SPT] come on stay awake [SPT] come on.” Id., at 2 min., 1 sec. KN and

JO are clearly shaken up but they remain relatively calm on the phone. Someone can be heard

breathing heavily and someone can be heard crying in the background.

It took the group roughly five minutes to drive to the nearby hospital. However, the

emergency room at the local hospital had recently shut down, and it only had an urgent care center.

As such, when the girls arrived at the hospital, SPT did not receive treatment immediately and an

ambulance was called. A police officer arrived to the hospital parking lot before the ambulance

and began taking photos of SPT’s injuries while she laid down in the car. Approximately three

minutes later, the ambulance arrived and began administering care.

SPT received medical care from the team of EMTs that arrived at the local hospital in the

ambulance. The medics administered epinephrine as well as ketamine. It became clear that SPT

was in critical condition and needed to be airlifted to the trauma center at Harborview Medical

Center in Seattle. The medics transferred SPT to the flight team, who continued providing care

and also administered epinephrine. The team at Harborview was prepared and waiting for SPT’s

arrival and sprang into action to attempt to stabilize her as soon as the helicopter arrived.

Despite the ongoing efforts from medical personnel, SPT was declared dead at 3:27 PM.

At the time of her death, the attending doctor made the presumed finding that she died of

4 No. 57943-0-II

hemorrhagic shock, meaning that she bled to death. The medical examiner who performed the

autopsy on SPT testified that she suffered 24 sharp force wounds. At the time of her death, SPT

had stab wounds on her face, her neck, her chest, her arm, and her back.

Officer Hoyson of the Bremerton Police Department responded to Luna’s house after the

fight. When Hoyson arrived at the house Luna’s stepdad answered the door, and Luna came to the

door to speak to Hoyson. Hoyson noticed that Luna had cuts on her hands. Luna told Hoyson that

she had learned someone was coming to her house to fight her, and that during the fight she stabbed

the other party. At the time of this statement Luna was not free to leave but had not been told that

she was being detained.

Following this statement, Hoyson arrested Luna. Officer Hoyson handcuffed and read Luna

her Fifth Amendment rights, as well as the juvenile warning. Luna told Hoyson that she understood

her rights. The officers then took Luna to the police station, where she was again advised of her

Fifth Amendment rights and interviewed by Detective Martin Garland in an interrogation room.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

II. PROCEDURE AND TRIAL1

Luna was charged by amended information with one count of murder in the first degree

and two counts of murder in the second degree (one count charging intentional murder and one

count charging felony murder based on the underlying felony of assault in the second degree).

Prior to trial, the court held an ER 404(b) hearing and a CrR 3.5 hearing. The trial court

found that Luna’s statements were made voluntarily and after Luna waived her Miranda rights.

1 For conciseness, we discuss additional facts in our analysis section below that do not appear in this statement of facts.

5 No. 57943-0-II

The interview was video recorded and then admitted and played for the jury. Luna objected to the

admission of her statements made to the police following her arrest.

The case proceeded to trial and several witnesses to the fight and the events leading up to

the fight testified for the State consistent with the facts outlined above.

During Luna’s interview with Detective Garland, she told Garland that SPT did not

overpower her during the fight. Luna also told him that she stopped stabbing SPT because she

became too tired and worn out to continue stabbing SPT. Detective Garland believed that Luna

did not know, at the time of the interview, whether SPT was still alive.

During the interview, Luna contradicted HD’s version of events leading up the mall fight.

She explained to Detective Garland that HD had been speaking disrespectfully about Luna’s

brother, who helped raised Luna. Luna said she was feeling protective and that’s why she fought

with HD. She claimed that on the day of her fight with SPT, she did not want to fight HD, or

anyone else for that matter. Luna said that she and HD had already settled their drama and become

friends again so she was confused as to why HD was texting her asking to fight. She told Garland

that she kept the pocket knife with her for self-defense, because there was a group of girls that

wanted to “jump” her, and it made her particularly nervous that a group of people showed up at

her house wanting to fight her. Ex. 102, at 2 min., 10 sec.

Luna asserted that she stabbed SPT in self-defense. Luna testified that she was afraid of

SPT. The day before the fight, Luna said that HD sent her messages on Snapchat to arrange a place

for HD and Luna to fight. Luna declined HD’s invitation to fight. The next morning, the day of

the fight, HD messaged Luna again asking to fight. Luna told HD that HD could come to Luna’s

house. She said, “I didn’t genuinely think that [HD] was going to come to my house or that there

6 No. 57943-0-II

was -- anything bad was going to happen. I thought all it would take was us talking and figuring

out what the issue was and how to solve that.” 4 VRP at 1318-19.

HD did not come to Luna’s house, but SPT did. Luna testified that every time she walked

outside of her house, she brought her pocketknife with her. In explaining why, she said that she

brings it “[f]or multiple reasons. Opening stuff, . . . like packages with tape and stuff. If I were to

get into a situation where I needed to use something to protect myself, then I would have that on

me at the time.” Id. at 1320. Luna testified that she was surprised to see SPT walk through her

front gate. When Luna and SPT first started talking, Luna testified that she had the pocketknife in

her pocket. Luna testified that as SPT got closer and, according to Luna, became more aggressive

in her posturing, Luna took out her pocketknife and slipped it behind her back. Luna claimed that

she was afraid that SPT was going to hurt her. She also testified that she did not retreat into the

house as things escalated because she was afraid that SPT would attack her from behind. Luna

testified that she used her knife because SPT started choking her. Luna claimed that at the time,

she was not aware whether her knife was making contact with SPT during the fight. Luna testified

that she could not tell whether using the knife had any effect on SPT.

The jury found Luna guilty of murder in the second degree with a deadly weapon

enhancement and she was sentenced to 168 months in prison. 2 This timely appeal followed.

2 Luna was found guilty of murder in the second degree as charged in both counts II and III, with a deadly weapon enhancement finding as to count II. The trial court vacated the verdict in count III so as to avoid double jeopardy.

7 No. 57943-0-II

ANALYSIS

Luna challenges the admission of the following evidence at her trial: (1) a TikTok video

showing the mall fight between HD and Luna; (2) a TikTok video that Luna shared of herself that

followed a trending video template at the time, based on the film The Purge, (referred to as “the

Purge video”); (3) a comment Luna made on social media regarding “stabbing energy;” (4) the

911 call that SPT’s friend, KN, made while they drove SPT to the hospital; and (5) the video of

Luna’s interview with a detective on the day of the stabbing. Br. of Appellant at 37.

Additionally, Luna argues that the court erred in excluding evidence she offered about

SPT’s character and evidence regarding Luna’s theory of an alternative cause of death. Luna

contends that if these errors do not alone warrant a new trial, there was cumulative error that

entitles her to a new trial.3

We hold that (1) the trial court did not abuse its discretion in admitting the video of the

mall fight, as the video was relevant to complete the story for the jury; (2) while the court erred in

admitting Luna’s social media post and comment to prove motive/intent and disprove self-defense,

this error was harmless because it was not significant in light of the overall evidence; (3) the court

did not err in admitting the recording of the 911 call; (4) the court did not err in excluding some

character evidence of SPT because the excluded evidence lacked relevance and/or foundation; (5)

3 Luna also asserts, without argument, that if we were to find any claim of error invited or unpreserved, she suffered ineffective assistance of counsel. This appears to be a throwaway argument, as Luna makes no attempt to show that the actions of counsel were not legitimate tactical decisions, and that as a result of those decisions the outcome of the trial would probably have been different. Luna also does not specifically identify the specific acts or omissions of counsel that she wants us to review as constituting deficient performance. We will not review an issue that has not been briefed or argued in a meaningful way. Ameriquest Mortg. Co. v. State Att’y Gen., 148 Wn. App. 145, 166, 199 P.3d 468 (2009), aff’d on other grounds, 170 Wn.2d 418, 241 P.3d 1245 (2010).

8 No. 57943-0-II

the court did not err in excluding the toxicology report, as Luna’s alternative cause of death

arguments were speculative and would have confused the jury; (6) the trial court did not err in

finding that Luna knowingly waived her Miranda rights, and Luna failed to prove that the new

statute regarding juvenile interrogations was intended to apply retroactively; (7) Luna’s claim of

error related to Detective Garland’s testimony about her veracity was invited; and (8) cumulative

error does not warrant reversal. We affirm.

I. PRIOR BAD ACTS UNDER ER 404(b) AND RES GESTAE

“The determination of admissibility under ER 404(b) is a matter within the sound discretion

of the trial court.” State v. Fish, 99 Wn. App. 86, 94, 992 P.2d 505 (1999). In general, character

evidence is not admissible to prove conduct. ER 404. The rule reads, in relevant part:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

....

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Id. (boldface and italics omitted).

9 No. 57943-0-II

In order for evidence of prior misconduct to be properly admitted, the court must “ ‘(1)

find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for

which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to

prove an element of the crime charged, and (4) weigh the probative value against the prejudicial

effect.’ ” State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting State v. Vy Thang,

145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). When it comes to weighing the probative value of a

piece of evidence against its prejudicial effect, “trial courts have considerable discretion in

determining this balance.” State v. Gantt, __ Wn. App. 2d __, 540 P.3d 845, 858 (2024).

One of the exceptions allowing evidence that would otherwise be excluded by ER 404(b),

is the res gestae exception. Under this exception, evidence of other bad acts may be permitted if

they are part of the “ ‘same transaction’ ” as the charges at hand. State v. Brown, 132 Wn.2d 529,

570-71, 940 P.2d 546 (1997) (quoting State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995)).

Such evidence is admissible in order to provide the jury with a full story through “establishing the

immediate time and place of its occurrence,” filling in gaps, and providing a “ ‘link in the chain’

of an unbroken sequence of events surrounding the charged offense.” Id. at 571 (quoting State v.

Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981)). In other words, each act that is admitted under

res gestae “must be ‘a piece in the mosaic necessarily admitted in order that a complete picture be

depicted for the jury.’ ” Fish, 99 Wn. App. at 94 (internal quotation marks omitted) (quoting State

v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995)). In determining whether evidence falls within

an exception to ER 404(b), the court must answer “whether the bad acts are relevant for a purpose

other than showing propensity.” State v. Slocum, 183 Wn. App. 438, 456, 333 P.3d 541 (2014).

10 No. 57943-0-II

II. THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE OF THE MALL FIGHT UNDER RES GESTAE EXCEPTION

The court admitted a video made on TikTok showing the mall fight between HD and Luna

which occurred in August 2020. The TikTok video is ten seconds long and begins with Luna and

HD walking towards each other in the Kitsap Mall. The girls exchange punches and end up

wrestling on the ground, where Luna appears to repeatedly punch HD.

In its offer of proof in support of this evidence being admitted, the State argued that Luna

modified this video on the day she stabbed SPT: “A search of the Defendant’s phone revealed that

on January 30, 2021, the same date the Defendant planned to fight [HD] again and killed [SPT],

the Defendant created a ‘TikTok’ video, imposing a song over the video of her attacking HD.”

Clerk’s Papers (CP) at 36-37.

The trial court found that the video of the mall fight with HD was admissible as res gestae

evidence because the video “was created relatively close to the incident date, if not the incident

date itself, and was something that was potentially reviewed by the defendant at that time.”

Verbatim Rep. of Proc. (VRP) (Sept. 19, 2022) at 41.

Luna focuses the bulk of her argument on whether evidence of the mall fight should have

been admitted at all—particularly, HD’s testimony about the fight. In her brief Luna argues that

the mall fight was too remote because it occurred nearly six months prior to the fight between Luna

and SPT, and therefore cannot be considered to be part of an unbroken sequence of events. She

further argues that the mall fight was not necessary to tell the story of what happened between

Luna and SPT and that “the mall fight with [HD] was just one reason why [SPT] decided to attack

[Luna].” Br. of Appellant at 41 (emphasis omitted).

11 No. 57943-0-II

But Luna did not object to HD testifying about the fight on the grounds that it was irrelevant

or would violate ER 404(b). In the trial court, Luna limited her 404(b) and relevancy objection to

the video of the fight. As it relates to HD’s testimony, Luna lodged hearsay, foundation, and “asked

and answered” objections, but she did not argue that evidence of the fight, writ large, was

inadmissible as improper evidence of other bad acts or irrelevant due to the passage of time. 2

VRP at 449, 451-52, 454. Because objecting to evidence in the trial court on one ground does not

preserve an objection on appeal based on any or all other grounds, we decline to consider Luna’s

argument as it relates to the broader evidence of the mall fight and confine our analysis to the video

of the fight. See RAP 2.5(a); State v. Mason, 160 Wn.2d 910, 933, 162 P.3d 396 (2007); State v.

Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).

With respect to the admission of the video particularly, Luna argues in her brief that the

video was unduly prejudicial because it was “set to inflammatory music with violent lyrics” and

because HD’s testimony about the fight was sufficient to alert the jury that there had been a prior

conflict between HD and SPT, rendering the video unnecessary. Br. of Appellant at 42. But Luna

did not make this argument in the trial court below. Luna’s written response to the State’s motion

to admit ER 404(b) evidence focused primarily on case law and did not parse out the many

different items of evidence the State sought to admit. The mall video is not mentioned at all in the

written memorandum beyond it being lumped in with the other ER 404(b) evidence that Luna

generally objected to on the ground that it did not show Luna’s motive or intent to stab SPT. To

the extent that Luna now argues that the mall video was unduly prejudicial because it was set to

“inflammatory music,” this argument is raised for the first time on appeal. Id.

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The State responds that “the mall altercation is what precipitated the events that led to the

stabbing,” but does not respond specifically to Luna’s argument about the supposedly

inflammatory nature of the music. Br. of Resp’t at 29-30. The State further responds that the

evidence surrounding the mall fight was properly admitted under the res gestae theory because it

“completes the story of the crime charged.” Id. at 29. The State explains that “without the mall

fight evidence, the entire crime would appear to the jury in a vacuum. It was therefore highly

relevant and properly admitted under ER 401 and ER 402.” Id. at 30.

Even assuming we should consider this particular argument for the first time on appeal, the

trial court did not abuse its considerable discretion in admitting this video. First, it depicts the level

of animosity between HD and Luna in a way that may not have been adequately conveyed by

testimony alone. Although Luna suggests that the prior altercation with HD had nothing to do with

the altercation she had with SPT, this ignores the fact that HD was the common denominator in

the friction between Luna and SPT, and it was only through her communications with HD that

Luna came into contact with SPT on the day of the stabbing. SPT went through HD to get Luna’s

address. Even though HD testified that the fight between Luna and SPT occurred, in part, due to

separate tensions between Luna and SPT, Luna’s fight with HD still played a role. Furthermore,

Luna watched, and possibly edited, the TikTok on the same day of her fight with SPT.

Although Luna relies on cases suggesting that prior acts involving different actors should

not be admitted under res gestae, this, again, ignores the interrelationship between Luna, HD, and

SPT. Moreover, the video of the fight could have benefitted Luna because it somewhat contradicts

HD’s testimony and paints Luna in a more favorable light. For instance, HD claims that Luna

13 No. 57943-0-II

approached her from behind and started fighting her in the mall, but the video shows the two

walking towards each other before starting to fight.

The trial court did not abuse its discretion in admitting the video of the mall fight because

the video was not unduly prejudicial in light of the other evidence presented to the jury and because

it depicted HD—one of the State’s key witnesses—in an equally unfavorable light.4

III. THE TRIAL COURT ERRED IN ADMITTING A SOCIAL MEDIA VIDEO AND COMMENT TO SHOW MOTIVE/INTENT AND DISPROVE SELF-DEFENSE BUT THE ERROR WAS HARMLESS

Luna argues that the trial court erred in admitting a video that the parties refer to as “the

Purge video,” as well as comments she made on social media about “stabbing energy,” based upon

its finding that these posts demonstrated Luna’s plan, intent, and motive to stab SPT.

“The Purge video” is a TikTok video that Luna made of herself and apparently posted about

three months prior to the murder. In the video, Luna appears to be holding a large kitchen knife.

The caption posted onto the video reads “once those purge sirens go off i know exactly what girls

house im going too.” Ex. 99. The trial court held that the video was admissible evidence because

it was relevant as to Luna’s state of mind and intent, and was highly probative. The trial court

explained that the video depicted Luna “fantasizing about stabbing another girl,” and that the

depiction of Luna “repeatedly stabbing a large kitchen knife at the camera” was relevant to her

4 Relying on cases dealing with juvenile sentencing, Luna argues for the first time on appeal that because of her age, the trial court abused its discretion in admitting evidence of the mall fight because of the impetuosity of juveniles and their diminished ability to appreciate consequences. The State asks us not to consider this new claim for the first time on appeal. Because Luna cites no cases suggesting that a trial court must consider the mitigating qualities of youth when deciding whether to admit evidence, this argument was not sufficiently developed below and we decline to consider this issue for the first time in this appeal. State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000).

14 No. 57943-0-II

state of mind, her motive, and her intent. VRP (Sept. 19, 2022) at 41-42. The trial court determined

that the probative value of the video outweighed its prejudicial effect.

During Luna’s testimony, she explained that she made “the Purge video” around

Halloween 2020 and it was based off of a popular TikTok trend and template that was based on

the thriller movie, The Purge. It was part of a larger trend and when Luna made the video, she had

already seen over 100 similar videos.

With respect to the “stabbing energy” comment on social media, this refers to the following

exchange which occurred between Luna and another person on Instagram three weeks before the

murder:

[Other Person:] “That’s funny cause weren’t you just last weekend blowing our phones up to pull up but we are the only ones with the issue?? And weren’t you the one posting about [N.D.] cause you was upset your [N****] was cool with her but WE have the issue?? Righttt. You know we wouldn’t even be having this issue but guess who decided to keep running there mf mouth?? Nobody likes a [b****] who only likes to talk [s***] on social media. What happened to allll that energy saying you was gonna stab us and our moms?? But it’s alright she finna learn her lesson soon (yawning face emoji)

[Luna]: @[other person] if im blowing up y’all’s phones or something.. literally cause [N.D.] wants to post slick [s***] (neutral face emoji). no the stabbing energy has never left (loudly crying face emoji). I do wtf want when tf wanttt”

CP at 39 (emphasis added) (some alterations in original). The comments were posted on Instagram

on January 10, 2021. The court admitted this post, explaining that “the defendant’s statements are

a good indication of what’s going on in her mind regarding motive intent or premeditation.” VRP

(Sept. 19, 2022) at 42-43.

Luna argues that these posts were “[a]morphous” and were not a serious expression of

Luna’s intent. Br. of Appellant at 47. Luna relies on State v. Wade, 98 Wn. App. 328, 335, 989

P.2d 576 (1999) for the well-settled proposition that the mere commission of a similar prior act

15 No. 57943-0-II

cannot be used to show propensity to commit the current act. Stated another way, even assuming

Luna had, in the past, harbored the true intent to stab someone, that prior intent is not admissible,

without more, to show that she harbored a similar premeditated intent to stab SPT. The intent to

commit a particular crime against a particular person on one date is not evidence of intent to

commit the same crime against a different person on a different date. Wade, 98 Wn. App. at 335.

Luna contends that not only was this evidence inadmissible to prove her intent, motive, plan, or

state of mind, but the evidence “[w]as [f]ar [m]ore [p]rejudicial [t]han [p]robative.” Br. of

Appellant at 49.

The State responds that both of the posts that Luna currently challenges, “the Purge video”

and the “stabbing energy” comment, were made shortly prior to the incident between Luna and

SPT. As such, the State argues, the posts were evidence of Luna’s premeditated intent5 and negated

her claim of self-defense.

We hold that the trial court erred in admitting “the Purge video” and the “stabbing energy”

comment under ER 404(b). However, the error is harmless because it is not reasonably probable

that the admission of these two pieces of evidence materially affected the outcome of the trial. See

State v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). With respect to “the Purge video,”

it was too far removed in time from the fight between Luna and SPT to be probative of Luna’s

intent or state of mind. Moreover, it is precarious for the State to use TikTok videos that employ

“trends” as proof of the creator’s state of mind. TikTok is a social media application in which

people post videos both of original, extemporaneous content as well as videos that draw on popular

5 At the time the State sought admission of this evidence, Luna was also charged with first degree murder. The jury acquitted Luna of that charge.

16 No. 57943-0-II

“trends” within the app.6 It is questionable that a person could draw an inference about a creator’s

intent or actual state of mind in a video that is made for the purpose of participating in a TikTok

trend. In the absence of some form of expert testimony interpreting or explaining the trend being

represented in the video, there is a significant risk that a jury would misuse or be confused by this

evidence—particularly if the jury is comprised of older adults who are less likely to use or

understand this application. Evidence that would confuse or mislead a jury should be generally be

excluded because such evidence is not relevant under ER 403. State v. Jennings, 199 Wn.2d 53,

63, 502 P.3d 1255 (2022).

The same can be said of the “stabbing energy” comment. Although this is a much closer

call given its relatively close proximity in time to the murder, the probative value of this evidence

was outweighed by the danger it would confuse or mislead the jury. It is the stock in trade of

teenagers to make improvident, ill-thought-out comments with the intent of being edgy and making

an impression, or to garner a laugh from peers. We think it too risky to open the floodgates of

examination to slang terms used by teenagers for use as evidence of intent in a murder case.

Neither the trial court nor the jury would have any way of knowing who Luna and the other

person she was speaking with on Instagram were referring to in their cryptic, nearly indecipherable

conversation. Most of the members of the judiciary in this state grew up in a time where our

conversations were not permanently memorialized on a digital platform owned by a corporation

6 See, e.g., Amy Adler & Jeanne C. Fromer, Memes on Memes and the New Creativity, 97 N.Y.U. L. REV. 453, 553-55 (2022); Lillian H. Rucker, The End of an Era: The Uncertain Future of Section 230 Immunity for Social Media Platforms, 26 VAND. J. ENT. & TECH. L. 241, 248-49 (2023); Roseanne Planker, Dance Like Everyone Is Watching: Why Tiktok Choreography and Copyright Aren't in Sync, 42 CARDOZO ARTS & ENT. L.J. 231, 241 (2024).

17 No. 57943-0-II

subject to subpoena. This singular exchange, rife with slang terms and emojis and nearly devoid

of punctuation, is entirely devoid of context.

A teenager using a popular TikTok template to join in a trend about a fictional thriller

movie (made around the time of Halloween) does not speak to that teenager’s intent and motive to

commit murder three months later—particularly in light of the fact that it was HD who contacted

Luna on the day of the murder as opposed to Luna seeking out HD and SPT. The same is true

about Luna’s use of youthful vernacular about “stabbing energy.” This evidence from social media

had little to no probative value, but carried a significant danger of confusing or misleading the

jury.

For these reasons, the trial court erred in admitting “the Purge video” and the “stabbing

energy” comment to prove Luna’s intent and motive, and to disprove her theory of self-defense.

However, the error was harmless. A trial court’s error in admitting evidence is reviewed under the

standard for nonconstitutional error. Gunderson, 181 Wn.2d at 926. A nonconstitutional error is

harmless where there is not a reasonable probability that the error materially affected the verdict.

Id. Here, in light of significant evidence introduced by the State showing that Luna did not use

reasonable force during her fight with SPT, it is not reasonably likely that the admission of this

evidence materially affected the jury’s verdict.

While Luna was not aware that it was SPT, not HD, who intended to fight her, she still

willingly provided HD with her address knowing that it might lead to a fight, as HD expressed the

intention to fight. Luna could have declined to give HD her address. She could have stayed inside

and not come to the door when SPT arrived. She could have called the police if she feared for her

safety or she could have sought support from her stepfather, brother, or boyfriend, all of whom

18 No. 57943-0-II

were in the house at the time. Instead, Luna armed herself with a pocketknife and went outside.

She held the knife behind her back while arguing with SPT and at no point did she warn SPT not

to come near her. At no point during her interaction with SPT did she call for help from someone

inside the house. As such, while the trial court erred in admitting “the Purge video” and the

“stabbing energy” comment, these pieces of evidence carried minor significance in light of the

overall evidence presented by the State to prove intent and to disprove Luna’s claim of self-

defense. See Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994). The error was harmless

because it is not reasonably probable that the admission of these two pieces of evidence materially

affected the outcome of the trial. See Gunderson, 181 Wn.2d at 926.

IV. THE TRIAL COURT DID NOT ERR IN ADMITTING THE 911 CALL

Luna argues that the trial court also erred in admitting the 911 call that SPT’s friends made

while driving her to the hospital.

As we note above, SPT’s friends KN and JO called 911 while driving SPT to the hospital.

During the call, KN told the operator that SPT “got stabbed pretty bad” in her face, stomach, and

back. Ex. 97, at 23 sec. One of the friends can also be heard pleading with SPT to “stay awake”

and “come on.” Id. at 2 min., 3 sec. Someone can be heard crying in the background.

Luna, relying on City of Auburn v. Hedlund, 165 Wn.2d 645, 655, 201 P.3d 315 (2009),

contends that this evidence was more prejudicial than probative and played to the emotions of the

jury. The State responds that Luna did not properly object to the 911 call below, and therefore this

claim should not be considered for the first time on appeal. The State also argues that Luna’s

reliance on Hedlund is misplaced and the call at issue here is distinguishable from the call in

Hedlund because it does not resemble a “gruesome crime scene.” Br. of Resp’t at 73. We agree

19 No. 57943-0-II

with the State that the call in this case is nothing like the call in Hedlund and did not unduly

prejudice Luna.

A. Legal Principles

Evidence Rule 403 states that even if evidence is relevant, it may still be “excluded if its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” In reviewing a trial court’s weighing of the probative value

of a piece of evidence against its potential for prejudicial effect, an appellate court will overturn

that finding “ ‘only if no reasonable person could take the view adopted by the trial court.’ ” State

v. Johnson, 185 Wn. App. 655, 670-71, 342 P.3d 338 (2015) (quoting State v. Posey, 161 Wn.2d

638, 648, 167 P.3d 560 (2007)).

Luna relies on Hedlund for support. In Hedlund, the supreme court found that the trial

court abused its discretion it admitting a recording of a 911 call because it was “inflammatory and

of dubious probative value.” Hedlund, 165 Wn.2d at 655. The call described multiple dead bodies

with limbs cut off, including a decapitation (which was actually false). Id. The court found that the

prejudicial effect outweighed the probative value because it included false and inflammatory

details and gruesome depictions, and it was repetitive evidence and therefore unnecessary. Id. at

655-56

B. Application

The 911 call in this case bears no resemblance to the call in Hedlund. In Hedlund, the

description of the accident scene was extremely gruesome, with depictions of severed limbs and a

severed head, possibly belonging to a child. Id. at 655. Not only were these depictions

20 No. 57943-0-II

inflammatory, they were in some respects outright false. Id. at 656. Moreover, the condition of the

car accident victims in the 911 call in Hedlund bore no relationship to the elements of the crimes

that Hedlund was charged with (DUI, reckless driving as an accomplice, and furnishing alcohol to

minors), which significantly diminished its probative value. Id. at 649, 655-57.

Here, while KN was emotional during the call, the evidence does not demonstrate that she

exaggerated or falsely described the events. KN was relatively calm while describing what

happened, where they were going, and SPT’s injuries. Moreover, she did not describe gruesome

or gory details, as the caller in Hedlund did. In admitting the call, the trial court did not take a view

that “no reasonable person could take,” and we conclude that the trial court did not abuse its

discretion in admitting the recording of the 911 call. Posey, 161 Wn.2d at 648.

V. THE TRIAL COURT DID NOT ERR IN EXCLUDING CHARACTER EVIDENCE OF SPT

At trial, Luna sought to introduce various exhibits that pertained to SPT’s character, many

of which came in the form of interactions and posts on social media.7 Luna also sought to introduce

a toxicology report showing that SPT’s blood alcohol level was .082.

Luna argued that by excluding this evidence regarding SPT’s character, and the level of

alcohol in her system, the court deprived the jury of evidence that was necessary in evaluating

Luna’s claim of self-defense.

Within this group of exhibits that Luna offered, the court first excluded exhibit 159, which

was a photo of SPT on social media that shows her holding a beer, for lack of relevance. Second,

the court excluded exhibit 161D, which was a Facebook post shared by SPT with the text, “[m]y

7 Most admissions were accompanied by a limiting instruction to the jury that they were only relevant to the defendant’s state of mind and were not to be considered for any other purpose.

21 No. 57943-0-II

family needs a cousin only retreat. No aunties or uncles. Just straight ignorance and illegal

activities.” 4 VRP at 1176. The court excluded this exhibit for lack of relevance. Third, the court

excluded Exhibit 161E, which was a post that SPT shared on Facebook featuring a cartoon picture

with the statement, “You had all that mouth when I was pregnant, [b****] wassup.” Id. at 1177.

This was also excluded for lack of relevance. Fourth, the court excluded Exhibit 161H, which was

another post that SPT shared to her Facebook page showing photos of Gucci gloves with a

comment from another Facebook user that read “I want to murder my husband in these.” Id. at

1181. The court found that this exhibit was not relevant and that any probative value would be

outweighed by the prejudicial effect.

Next, the court excluded exhibit 161K, two messages between SPT and another person on

social media, after finding them to be prejudicial. The messages appear to be about selling

marijuana and possibly getting into a fight. The court also excluded exhibits 162, 163, 164, and

165. Exhibit 162 was an Instagram post of SPT purportedly making gang signs with her hands,

which the court excluded because the prejudicial effect outweighed the probative value. Exhibit

163 was a Snapchat message captioned “Its Greenlight period.” Ex. 163. The snapchat includes a

photo of a woman whose identity is unclear, and the text imposed on the original snapchat reads

“I want all the information anyone got on her.” Id. Presumably, a second user sent a copy of the

original snapchat to Luna, with additional text imposed on the photo, stating “[SPT] got a whole

gang of mfs ready to take you out.” Id. The State argued that exhibit 163 did not indicate that SPT

was a part of the conversation, the source who claimed it was about SPT was unknown, and the

evidence was hearsay. The court found that exhibit 163 was “not yet relevant” because it was “not

22 No. 57943-0-II

significantly tied to [SPT] concerning her attitude towards [Luna]” prior to the date of the fight. 4

VRP at 1164. As such, the court excluded exhibit 163 as hearsay and for lack of foundation.

Exhibit 164 was a Facebook post made by another user that SPT shared showing what

appears to be a gun with a patterned design on it. The court excluded this exhibit after finding that

the prejudicial effect outweighed the probative value. Exhibit 165 was a definition from Urban

Dictionary defining the term “green light,” which the court excluded for lack of relevance. Id. at

1168.

In addition to assigning error to the court’s ruling excluding the above social media posts

and comments, Luna also argues that because the court allowed good character evidence of SPT,

it effectively opened the door for her to introduce the evidence outlined above. The character

evidence that Luna argues “open[ed] the door” was testimony from SPT’s sister, LT, that SPT was

motherly and caring toward her family members. Br. of Appellant at 60. LT testified about how

helpful SPT was, and how much her nieces and nephews loved her.

When Luna moved to admit the toxicology report as character evidence to show SPT’s

intoxication level at the time she was murdered, the court excluded it for lack of relevance. Luna

argued that the report showed that SPT was “legally drunk.” 3 VRP at 893. This was relevant,

according to Luna, because it would demonstrate “the decedent’s lack of boundaries and/or lack

of impulse control which further shows her quarrelsome and violent disposition,” and would

explain why SPT fought Luna. CP at 176. The toxicology report showed that SPT’s blood alcohol

concentration was .082. The court ruled that SPT’s reason for fighting Luna was irrelevant, and

the State noted that it was not disputing that SPT was the first aggressor. The court declined to

admit the toxicology report.

23 No. 57943-0-II

Luna argues that in excluding character evidence of SPT, the trial court denied Luna “her

constitutional right to fully present her defense.” Br. of Appellant at 53. She contends that the

character evidence she sought to introduce, as well as SPT’s alcohol level at the time of the fight,

support the notion that she feared SPT and acted in self-defense.

The State responds that the court properly excluded certain exhibits based on a lack of

relevance and foundation. Furthermore, the State highlights that the trial court did, in fact, admit a

number of exhibits offered by Luna to support her self-defense claim.8 We also note that the jury

heard other evidence of SPT’s consumption of alcohol and marijuana prior to the day of the

stabbing. We agree with the State on this issue and hold that the trial court properly excluded the

exhibits in question because they lacked relevance and foundation.

While character evidence is generally inadmissible to prove conduct, ER 404 outlines

multiple exceptions. The exceptions allow for:

[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of

8 Specifically, the trial court admitted the following exhibits offered by Luna to support her claim of self-defense: 161A, 161B, 161F, 161G, 161I, and 161L. Exhibit 161A shows a third-party’s social media post which SPT shared that reads “don’t let me get mad, i’ll [f***] up the energy. ain’t nobody having fun [laughing crying emoji].” Exhibit 161B features one social media post SPT made saying “I’m finna ruin this [b****] life real quick brb [laughing crying emoji],” and one social media post another user made, that SPT shared, reading “**Me, 3 hours in a relationship** ‘I don’t think I can do this anymore.’ ” Exhibit 161F is a social media post made by another user which SPT shared. The post depicts a zero-star rating icon and reads “Disrespecting my sister . . . would not recommend. i’ll [f***] you up.” Ex. 161F. Exhibit 161G shows a third-party’s social media post which SPT shared that reads “Are you a [B]lack girl and if yes how did you get the scar on your left knee?” SPT captioned the post with “Fighting at Walmart.” Ex. 161G. Exhibit 161I is a social media post that SPT made which includes a GIF (an animated set of images) with the caption “I will beat ur [a**].” Lastly, Exhibit 161L is a long string of messages between SPT and two other users on social media, in which they appear to be talking about social drama, affairs, and potentially fighting in the future.

24 No. 57943-0-II

peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

ER 404(a)(2). Character evidence of a victim’s propensity toward violence “is admissible to show

reason for apprehension and grounds for self-defense by the defendant.” State v. Cloud, 7 Wn.

App. 211, 217, 498 P.2d 907 (1972). “[S]uch evidence is admissible to show the defendant’s reason

for fear and the basis for acting in self-defense.” State v. Duarte Vela, 200 Wn. App. 306, 319-20,

402 P.3d 281 (2017). “The vital question is the reasonableness of the defendant’s apprehension of

danger, and his good faith in acting upon such apprehension.” State v. Ellis, 30 Wash. 369, 373,

70 P. 963 (1902).

Luna relies primarily on Duarte Vela. In that case, Duarte Vela sought to introduce

evidence that the victim threatened to kill his family and that the victim had a history of domestic

violence. Duarte Vela, 200 Wn. App. at 320. He sought to introduce this evidence in order to

establish his claim that he reasonably feared the victim and acted in self-defense when he killed

the victim. Id. The trial court excluded the evidence and Division Three of this court held that

doing so deprived Duarte Vela of his ability to present his defense. Id.

The character evidence of the victim excluded in this case did not involve threats to kill the

defendant’s family or a history of domestic violence. Rather, the bulk of the excluded exhibits that

Luna complains of are irrelevant social media posts that lack context or any discernible

relationship to this case, most of which were not even made by SPT but only shared by her. For

25 No. 57943-0-II

example, the exhibits include a photo of SPT drinking a beer, a cartoon meme,9 and another user’s

comment about Gucci gloves. While a few of the posts came directly from SPT, Luna failed to

prove relevance, demonstrate their probative value, and establish proper foundation. Accordingly,

the trial court did not abuse its discretion in excluding these exhibits.

With regard to SPT’s alcohol level, Luna’s argument focuses exclusively on the notion that

SPT was “legally drunk,” citing the alcohol levels at which a person is deemed to be, per se, too

intoxicated to operate a motor vehicle. Br. of Appellant at 60. But SPT did not drive to Luna’s

house, nor is there any allegation she was driving while intoxicated on the date of her murder. A

person having a blood alcohol level that exceeds the per se level for driving10 is irrelevant where

the person is not charged with an alcohol-related driving offense. There is no concept of being

“legally drunk,” as Luna phrases it, because mere intoxication, by itself, is not a violation of the

law. The trial court did not err in ruling that evidence that SPT’s blood alcohol level exceeded the

per se level for driving a motor vehicle in Washington was not relevant to any issue to be decided

by the jury.

Because we find that the trial court did not abuse its discretion under the evidentiary

standard, we next must look to whether the trial court nevertheless violated the defendant’s

constitutional right—in this case, Luna’s Sixth Amendment right to present a defense. Jennings,

199 Wn.2d at 59. However, the evidence a defendant seeks to admit must still adhere to the other

rules of evidence: it must be relevant, and its potential prejudicial effect must not outweigh its

9 A meme is “an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media.” Meme, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/meme (last visited May 31, 2024). 10 See RCW 46.61.502(1)(a); RCW 46.61.503(1)(b)(i).

26 No. 57943-0-II

probative value. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). Evidence is considered

relevant if it has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence.”

ER 401. As we explain above, Luna failed to show how the character evidence that the trial court

excluded was relevant to her claim of self-defense, and she failed to show that the probative value

of some of the evidence outweighed its prejudicial effect. For example, the photo of SPT drinking

a beer does not establish that Luna had good reason to fear her. Nor do the memes that SPT

reposted. Luna was able to argue her theory of self-defense based on the considerable evidence of

SPT’s intent to engage in a physical fight with her and SPT’s efforts, through HD, to contact Luna

and set up the altercation. The trial court’s rulings to exclude various pieces of character evidence

that Luna offered did not violate her constitutional right to present a defense.

As for Luna’s claim that LT’s testimony about SPT being a good mother and a good aunt

effectively opened the door for her admission of her proposed character evidence, that claim is

misplaced. When a party opens the door for character evidence, the door is only open for the other

party to rebut or contradict the evidence admitted. State v. Vazquez, 198 Wn.2d 239, 253-55, 494

P.3d 424 (2021). Here, Luna does not argue that this evidence would have been admitted to

specifically contradict LT’s claims that SPT was a good mother and aunt. Rather, Luna essentially

seeks a balancing of the scales, as though each time one side successfully admits evidence, the

other side gets to have an item admitted as well.

The trial court did not abuse its discretion in excluding this evidence, nor did it violate

Luna’s constitutional right to present a defense.

27 No. 57943-0-II

VI. THE TRIAL COURT DID NOT ERR IN EXCLUDING EVIDENCE REGARDING LUNA’S ALTERNATIVE CAUSE OF DEATH THEORY

Luna claims that the trial court erred by preventing her from presenting evidence of an

“alternative theory of death”—specifically, that the combined effect of the alcohol in SPT’s system

and the ketamine and epinephrine11 she was administered while medical personnel were trying to

save her life was the true cause of her death, not her multiple stab wounds. Br. of Appellant at 75.

However, as the State points out, Luna’s record citations in support of this assignment of error are

to the portions of the record where she sought to introduce evidence of SPT’s alleged alcohol

intoxication as character evidence, and as evidence of Luna’s state of mind about SPT’s intent,

not because it supported an alternative cause of death.

The portions of the record where Luna advised the trial court that she sought to offer an

alternative cause of death are found at 2 VRP at 160-68, and 3 VRP at 886-899. In these portions

of the record, Luna first sought to ask the emergency department physician about whether the

administration of ketamine was the actual cause of SPT’s death. The trial court ruled that this

question would need to be posed to the medical examiner who performed the autopsy and

determined the cause of death rather than the emergency department physician. Luna does not

challenge this ruling.

Luna next sought to ask the medical examiner, Dr. Micheline Lubin, about SPT’s blood

alcohol level by questioning her about the toxicology report that had not been admitted. The trial

court did not allow Luna to question the medical examiner about the toxicology report produced

11 Although Luna mentions epinephrine in her brief, she did not mention epinephrine to the trial court as one of the drugs she sought to ask the medical examiner about as part of her question about whether something other than the stab wounds caused SPT’s death.

28 No. 57943-0-II

by the crime lab because it ruled that the report was hearsay. Luna does not challenge this ruling

on appeal. The trial court, however, expressly permitted Luna to ask Dr. Lubin whether anything

other than the stab wounds caused SPT’s death. Luna posed the question to Dr. Lubin, and Lubin

replied “No.” 3 VRP at 897.

It is unclear what alleged error Luna complains of on appeal. She was permitted to ask the

medical examiner about an alternative cause of death, and Dr. Lubin replied “No” to the question.

To the extent Luna is actually attempting to argue that she should have been permitted to introduce

evidence of SPT’s blood alcohol level, Luna did not call the toxicologist who tested SPT’s blood

for alcohol and subsequently prepared the report to testify. Moreover, Dr. Lubin prepared her

report about SPT’s cause of death before she received the toxicology report and did not rely on the

report in forming her opinion about SPT’s cause of death. Luna’s claim of error fails.12

We additionally note that Luna did present expert testimony from a forensic pathologist at

trial who testified about the nature and category of SPT’s stab wounds. The pathologist testified

12 Luna’s reliance on State v. Perez-Cervantes, 141 Wn.2d 468, 476, 6 P.3d 1160 (2000), is unavailing. Here, Luna’s claim is predicated either on actions of the trial court to which she does not assign error (the trial court’s hearsay ruling with respect to the toxicology report, and the trial court’s ruling that questions about an alternative cause of death needed to be asked of the medical examiner rather that the emergency department physician), or an action that did not actually occur (the trial court did not prevent Luna from asking the medical examiner about an alternative cause of death). Moreover, in Perez-Cervantes the supreme court held that the trial court did not err in excluding argument regarding an alternative cause of death. 141 Wn.2d at 480. The court reasoned that such an argument would only be admissible if the defendant could present evidence to show that “[the victim’s] drug use or failure to seek medical attention caused a fatal injury independent of the stabbing, or that these acts constituted a subsequent, proximate cause that Perez-Cervantes could not have reasonably anticipated.” Id. at 478. Here, Dr. Lubin was unwavering in her testimony before the jury that it was SPT’s numerous stab wounds that caused her death.

29 No. 57943-0-II

that the amount of time it took for SPT to receive emergency care could have impacted her chances

of survival.

VII. THE TRIAL COURT DID NOT ERR IN ADMITTING LUNA’S CUSTODIAL STATEMENTS TO THE POLICE

Luna objected to the admission of her custodial statements made to Detective Garland

during an interview at the police station under CrR 3.5.13

When officers responded to Luna’s house after the stabbing, Officer Hoyson, after asking

Luna some preliminary questions, arrested Luna and read her the Miranda warnings, including a

juvenile warning advising her that if she is under 18, any statements she made could be used against

her in a juvenile court prosecution as well as an adult court prosecution in the event she was tried

as an adult. Luna responded that she understood the rights Hoyson read to her. Luna did not appear

to be confused by the rights that were read to her, nor did she appear to be under the influence of

any substances. After reading Luna her rights, Hoyson did not ask Luna any additional questions.

The officers then took Luna to the police station, where she was interviewed by Detective Garland.

Before beginning the interview with Luna, Detective Garland asked Luna whether she

wanted anything to eat or drink, and offered her use of the restroom. Garland also reread Luna her

Miranda rights and the juvenile warning, and advised her the interview was being recorded.

Garland testified that Luna responded that she understood her Miranda rights, as well as the

juvenile addition, and was aware that the interview was being recorded.

Luna told Garland that at no point in the fight did SPT overpower her. Luna also told him

that she stopped stabbing SPT because she became too tired and worn out to continue. As far as

13 Luna does not challenge the statements she made to Officer Hoyson prior to her arrest when Hoyson responded to Luna’s house in response to the 911 call.

30 No. 57943-0-II

Detective Garland knew, Luna did not know, at the time of the interview, whether SPT was still

alive.

In addition to Garland’s testimony, the video of Luna’s police interview was played for the

jury.14 Luna now challenges the admission of her custodial statements to law enforcement.

1. Waiver of Rights

The right not to incriminate oneself arises from the Fifth Amendment to the United States

Constitution, as well as article I, section 9 of the Washington Constitution. State v. Radcliffe, 164

Wn.2d 900, 905, 194 P.3d 250 (2008). To protect this right, a suspect must receive Miranda

warnings when facing custodial interrogation by an agent of the State. State v. Heritage, 152

Wn.2d 210, 214, 95 P.3d 345 (2004). A person is in custody if “a reasonable person in a suspect’s

position would have felt that [their] freedom was curtailed to the degree associated with a formal

arrest.” Id. at 218.

If a suspect does not receive Miranda warnings, their statements are presumed involuntary

and must be excluded. Id. at 214. If a suspect received Miranda warnings and proceeded to give a

statement, the State bears the burden to show that the suspect knowingly, intelligently, and

voluntarily waived their Miranda rights. State v. Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007).

“Factors considered include a defendant’s physical condition, age, mental abilities, physical

14 During the interview, Luna made several exculpatory statements that she could not otherwise put before the jury without testifying. For example, she said that on the day of the stabbing she did not want to fight HD or anyone else. She said that she and HD had settled their dispute and become friends again and she was confused why HD would be texting her asking to fight. Luna told Garland that she kept the pocket knife with her for self-defense, because there was a group of girls that wanted to “jump” her, and it made her particularly nervous that a group of people showed up at her house wanting to fight her. Ex. 102, at 2 min., 11 sec.

31 No. 57943-0-II

experience, and police conduct.” State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). Courts

look to the totality of the circumstances to determine whether a statement is voluntary. Id. at 663-

64.

“We will not disturb a trial court’s conclusion that a waiver was voluntarily made if the

trial court found, by a preponderance of the evidence, that the statements were voluntary and

substantial evidence in the record supports the finding.” Athan, 160 Wn.2d at 380. Evidence is

substantial if the record contains a sufficient quantity of evidence to persuade a fair-minded,

rational person of the truth of the assertion. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

2. RCW 13.40.740

RCW 13.40.740 took effect in January 2022. The statute addresses access to attorneys for

juveniles. The statute provides that children cannot knowingly, intelligently, and voluntarily waive

their Miranda rights until they have consulted with an attorney. RCW 13.40.740(3)(a).

Luna makes two arguments about why the trial court should have excluded the custodial

statements she made to the police.

First, she contends that she did not knowingly, intelligently, and voluntarily waive her Fifth

Amendment rights because the trial court did not consider her “age, lack of experience with the

police, the trauma she had endured minutes earlier, [and] her complaints of head injuries.” Br. of

Appellant at 65. Luna argues that had the trial court considered those factors, it would not have

found a proper waiver under the totality of the circumstances.

The State, in its response, notes that Luna “superficially argues” that nine of the trial courts

findings of fact on the CrR 3.5 hearing are not supported by substantial evidence. Br. of Resp’t at

32 No. 57943-0-II

52. The State is correct on this point, because Luna, in an unserious nod to RAP 10.3 merely states,

in a parenthetical in the argument section of her brief, that findings of fact VIII, XV, XVI, XVII,

XXIV, XXVII, XXVIII, XXIX, and XXX are not supported by substantial evidence.

Luna provides no argument, utilizing facts from the record, about why these findings of

fact are allegedly unsupported by substantial evidence. This falls far short of the requirement in

RAP 10.3(g) that “[a] separate assignment of error for each finding of fact a part contends was

improperly made must be included with reference to the finding by number,” and the requirement

in RAP 10.3(a)(6) that an argument must be supported by references to relevant parts of the record.

We decline to review Luna’s challenges to the findings of fact and consider them to be verities on

appeal. State v. Eriksen, 172 Wn.2d 506, 507 n.1, 259 P.3d 1079 (2011).

To the extent Luna argues that her age and her mental and physical trauma from the fight

rendered her statements involuntary, the trial court found that Luna understood the rights that were

read to her, that Luna was not in a coercive environment when her rights were read to her, and that

Luna was capable of understanding and did not appear to be under the influence of any substances

or suffering from any mental health issues at that time. Luna does not argue that the trial court

erred in reaching these findings and she does not point to evidence in the record to show that these

findings are not supported by substantial evidence. Luna also cites no case that holds that a

suspect’s age, standing alone, precludes a finding that their statements made to police after being

properly advised of both their Miranda warnings and the additional juvenile advisement are

involuntary.

We will not consider an argument on appeal if the grounds for that argument are not

supported by citation to authority or adequate argument. Cowiche Canyon Conservancy v. Bosley,

33 No. 57943-0-II

118 Wn.2d 801, 809, 828 P.2d 549 (1992); State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082

(1992).

Second, Luna asserts that the legislature intended for RCW 13.40.740, the new statute on

juvenile questioning that went into effect after Luna’s custodial interview, to apply retroactively

and, accordingly, we should conclude that her custodial statements are now inadmissible.

We review de novo whether a statute applies retroactively. State v. Brake, 15 Wn. App. 2d

740, 743, 476 P.3d 1094 (2020). RCW 10.01.040 provides, “No offense committed and no penalty

or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether

such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is

expressly declared in the repealing act.” To that end, “statutes generally apply prospectively from

their effective date unless a contrary intent is indicated.” State v. Jefferson, 192 Wn.2d 225, 245,

429 P.3d 467 (2018) (plurality opinion). Accordingly, “a statute in effect on the date of a criminal

offense is the applicable statute ‘absent clear legislative intent to the contrary.’ ” Brake, 15 Wn.

App. 2d at 744 (quoting In re Pers. Restraint of Flint, 174 Wn.2d 539, 559 n.9, 277 P.3d 657

(2012) (Stephens, J., dissenting)).

Here, the legislature did not express a clear intent that RCW 13.40.740 should apply

retroactively to juvenile interrogations that occurred before the statute went into effect. In her reply

brief, Luna argues that

Chapter 13.40 RCW evidences a legislative intent to provide children with the protections of ‘due process’ and respond and be accountable for their unique needs in the criminal justice system. RCW 13.40.010(2)(e). This policy, rooted in constitutional protections, should make RCW 13.40.740’s bar on [Luna’s] police interview inadmissible because it was in place when the trial occurred.

34 No. 57943-0-II

Reply Br. of Appellant at 27. But these arguments do not persuade us that the legislature intended

for RCW 13.40.740 to apply to custodial interrogations that occurred before the statute went into

effect.

Accordingly, we agree with the State and hold that the trial court did not err in finding that

Luna knowingly waived her Miranda rights and admitting the custodial statements she made to

Detective Garland.

VIII. TESTIMONY TOUCHING ON LUNA’S VERACITY

Finally, as it relates to Luna’s custodial statements, Luna argues Detective Garland should

not have been permitted to offer an opinion about Luna’s veracity. Our review of this claim is

hampered by Luna’s failure to identify the exact remarks she complains of. Her citation to 3 VRP

at 710 suggests that she is referring to the questions her own attorney posed to Garland:

[Mr. Kannin:] You saw the video; right? [Det. Garland:] I was there during the video. [Mr. Kannin:] And she was cooperating with you? [Det. Garland:] Absolutely. [Mr. Kannin:] Telling the truth to you? [Det. Garland:] I think that’s up for discussion. .... [Mr. Kannin:] Are you saying she’s lying about this? [Det. Garland:] Yes. I think she was lying about this. I think that she told me things in there that were clearly lies. After I observed the video you pointed out, I’d already seen -- [Mr. Kannin:] Yeah. [Det. Garland:] -- there was clearly things that she told me in there that were not truthful. [Mr. Kannin:] Okay. So now you’re being critical of her because what? Because she didn’t know whether the knife was folded or unfolded? And clearly -- I mean, we have the video, and she admits that she had the knife, took it out, and then the only time she stabbed at the other girl is after she got socked in the head; isn’t that right? [Det. Garland:] You asked me if she was being truthful when I interviewed her, and I’m telling you that she was not. That’s the question I was answering.

35 No. 57943-0-II

[Mr. Kannin:] Okay. Well, that’s your opinion. You’re saying it’s about the knife, that somehow she didn’t tell you the truth about the knife; is that what it is? [Det. Garland:] I’m telling you that she didn’t tell me the truth about the knife, yes. I’m also telling you that she gave me several different stories, that not all of them could have been truthful. It’s just not possible.

3 VRP at 709-10.

Luna frames this issue as trial court error in admitting this testimony, ignoring that this

testimony was given in direct response to Luna’s own questioning. This error was plainly invited.

The invited error doctrine prohibits “ ‘a party from setting up an error at trial and then complaining

of it on appeal.’ ” City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002) (quoting State

v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson,

126 Wn.2d 315, 893 P.2d 629 (1995)). If “a party takes an affirmative and voluntary action that

induces the trial court to take an action that a party later challenges on appeal,” the doctrine applies.

Casper v. Esteb Enters., Inc., 119 Wn. App. 759, 771, 82 P.3d 1223 (2004). Invited error prevents

review of instructional errors even if they are of constitutional magnitude. Patu, 147 Wn.2d at 720.

To the extent that Luna implicitly suggests that a trial court should intervene when a

defendant’s lawyer asks questions that, if asked by the State, would be flatly improper and

inadmissible, Luna cites no authority for that novel proposition. Defense counsel’s strategic

decisions should be afforded wide latitude. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280

(2002). It is not the role of the trial court to interfere in tactical decisions made by a defendant and

36 No. 57943-0-II

their counsel.15 Luna’s claim of error fails, both under the invited error doctrine and because Luna

fails to apprise us of the exact statements on which her claim is based.

IX. ANY ERRORS MADE BY THE TRIAL COURT WERE HARMLESS AND DID NOT DEPRIVE LUNA OF A FAIR TRIAL

Luna argues that each of the errors outlined above prejudiced her, but “to the extent there

is any doubt, reversal is warranted under the cumulative error doctrine” because “the accumulation

of errors discussed above is of sufficient magnitude that reversal is necessary.” Br. of Appellant at

77-78. We disagree.

“Under the cumulative error doctrine, we may reverse a defendant’s conviction when the

combined effect of errors during trial effectively denied the defendant [their] right to a fair trial,

even if each error standing alone would be harmless.” State v. Venegas, 155 Wn. App. 507, 520,

228 P.3d 813 (2010). “The doctrine does not apply where the errors are few and have little or no

effect on the trial’s outcome.” Id.

The only claim of error Luna makes for which we have found merit is her claim that the

trial court should not have admitted “the Purge video” and the “stabbing energy” comment on

social media. But these errors were harmless and relatively minor in light of the evidence as a

whole. Luna did not deny that she stabbed SPT, and the primary issues to be decided by the jury

15 With respect to Luna’s citation to pages 1447-54 of the trial record, this portion of the record contains Detective Garland’s rebuttal testimony. Luna does not advise us which statement in this portion of Garland’s testimony she is challenging. We are not inclined to guess which statement Luna complains of in this eight-page span of the transcript. See Multicare v. Dep’t of Soc. & Health Servs., 173 Wn. App. 289, 299, 294 P.3d 768 (2013).

37 No. 57943-0-II

were whether she acted with premeditation (the jury found she did not and acquitted her of first

degree murder), and whether she killed SPT in self-defense.

The evidence presented by the State that Luna did not act in self-defense was substantial,

if not overwhelming. Luna could have declined to give HD her address prior to the stabbing. She

also could have declined to come outside and meet SPT, and she could have called the police for

help. Although the jury was instructed that Luna had no duty to retreat, she also had no obligation

to actively engage SPT, whom she knew to be unarmed. Moreover, Luna’s stepfather and

boyfriend were both present at the fight and Luna’s boyfriend recorded it. Luna’s actions belie her

claim that she feared harm from SPT. The jury could reasonably infer from the evidence that Luna

was eager for a fight and had enlisted her boyfriend to record it so that she could post it on social

media.

Luna is not entitled to relief under the cumulative error doctrine.16

16 Luna’s final assignment of error is that if we were to conclude that of any of her claims of error were invited or not preserved, then she suffered ineffective assistance of counsel. Luna fails to identify any specific act or omission of counsel that she claims fell below the standard of care, and she fails to demonstrate that the outcome of her trial probably would have been different but for counsel’s unprofessional errors. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). She provides no argument on this claim, and seemingly expects us to comb the record in search of deficient performance on the part of counsel and to speculate, without benefit of argument, that she suffered prejudice. We decline this invitation. An assignment of error containing nothing but boilerplate citations to the law and devoid of argument or citations to the record does not warrant our consideration. Cowiche Canyon, 118 Wn.2d at 809.

38 No. 57943-0-II

CONCLUSION

Finding no reversible error, we affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

CRUSER, C.J. We concur:

LEE, J.

CHE, J.