IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 84771-6-I Respondent,
v. ORDER GRANTING MOTION FOR RECONSIDERATION, LUIS RUBEN IBARRA, WITHDRAWING OPINION, AND SUBSTITUTING OPINION Appellant.
Respondent State of Washington moved for reconsideration of the opinion
filed on March 25, 2024. Appellant Luis Ibarra filed an answer. A panel of the
court has considered the motion pursuant to RAP 12.4 and has determined that
respondent’s motion for reconsideration should be granted, the opinion should be
withdrawn, and a substitute opinion be filed.
Now, therefore, it is hereby
ORDERED that the respondent’s motion for reconsideration is granted;
and it is further
ORDERED that the unpublished opinion filed on March 25, 2024 is
withdrawn; and it is further
ORDERED that a substitute unpublished opinion be filed.
FOR THE COURT:
Judge IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84771-6-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION LUIS RUBEN IBARRA,
Appellant.
SMITH, C.J. — Luis Ibarra, a registered nurse, was charged with and
convicted of rape in the second degree after he assaulted a patient while she
was nearly immobile and recovering from spinal surgery. He was sentenced to
102 months to life. On appeal, Ibarra asserts that the trial court erred in denying
his motion for mistrial based on irrelevant and prejudicial testimony by his ex-wife
and in determining that he opened the door to evidence that he had been
previously counseled or warned about sexual contact with patients. He also
alleges cumulative error and asks for the court to remand to strike a victim
penalty assessment, DNA1 collection fees, and the community custody condition
requiring urinalysis and/or breathanalysis upon request.
In a statement of additional grounds, Ibarra argues that the trial court
erred in improperly refusing to dismiss a juror and by placing improper time
restraints on the trial. Ibarra asserts ineffective assistance of counsel and a lack
1 Deoxyribonucleic acid. No. 84771-6-I/2
of sufficient evidence to support his conviction. Finding the majority of his
arguments unpersuasive we affirm the conviction, however, we remand for the
court to strike the victim penalty assessment, DNA collection fee, and the
community custody condition requiring urinalysis and/or breathanalysis upon
request.
FACTS
Background
In October 2020, Luis Ibarra was a registered nurse working in the
neuroscience-epilepsy unit of Swedish Hospital (Swedish) in Seattle,
Washington. The unit mostly houses patients receiving pre- or postoperative
care. I.W. was one such patient, recovering from spinal surgery. The surgery
was intensive, resulting in titanium screws in her spine and 17 staples in her back
to keep the incisions closed. I.W. needed assistance for even slight adjustments
in position. She was also in a significant amount of pain. Ibarra was I.W.’s night
nurse for the second night of her hospital stay.
Over the course of the night, I.W.’s pain remained intense, despite having
received as much pain medication as was allowed. She informed Ibarra that the
medication was not working and Ibarra offered ice packs. I.W. declined. In the
early hours of the morning, she asked about additional medication but Ibarra
offered alternative methods instead. He began with aromatherapy, pinning
cotton balls soaked in orange oil to I.W.’s hospital gown, which smelled nice but
did not alleviate any pain. Ibarra then offered reflexology, which is a form of
massage that targets pressure points in the hands and feet. Ibarra was aware
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that, per Swedish’s rules, he was prohibited from performing reflexology on a
patient without a third-party present. He nevertheless offered the massage and
I.W. agreed. Ibarra massaged each hand which again failed to reduce I.W.’s
pain. Ibarra next offered a foot massage and I.W. agreed. Ibarra began by
putting lotion on I.W.’s left foot, before moving his hands all the way up her leg.
When Ibarra reached the top of I.W.’s left thigh, his hand bumped her groin. He
then moved to I.W.’s right foot, worked his way up her right leg, and when Ibarra
reached the top of I.W.’s right thigh, moved his hand between her legs, inserted
his fingers into her vagina, and began to rub her clitoris. He was not wearing
gloves. Eventually, Ibarra asked I.W. if she had an orgasm and she replied that
she had. I.W. later testified that she lied so he would stop touching her. Ibarra
then left the room.
I.W. left the hospital a few days later and immediately began taking care of
her husband, three dogs, and a friend, despite remaining in acute pain. In early
November, as she started to more fully recover, I.W. started having “flashbacks”
of the experience. She took notes on these memories and, about three weeks
after the incident, called both the police and Swedish’s hospital security.
Swedish fired Ibarra in November 2020.
Arrest and Pre-Trial Motions
In December 2020, the Seattle Police Department interviewed I.W. and
opened a case, assigning Detective Matt Atkinson as an investigator. Detective
Atkinson reached out to Ibarra, who went to the police station to be interviewed.
In contrast to I.W.’s account, Ibarra stated that he had not touched I.W.’s
3 No. 84771-6-I/4
genitals. He recounted that he had performed reflexology only on I.W.’s hands
and feet, never moving up her legs. Ibarra then described that, while he was
touching her, I.W. masturbated herself to orgasm. He acknowledged that he did
not discourage the behavior, framing it as pain relief. Detective Atkinson
repeatedly asked Ibarra if he was telling the truth, noting the differences between
his description and I.W.’s account. Ibarra confirmed that he was telling the truth.
At the close of the interview, Detective Atkinson placed Ibarra under arrest for
rape in the second degree and indecent liberties.2
Before trial, the State moved to admit another patient’s similar experience
with Ibarra under ER 404(b) as evidence of a common scheme or plan. This first
incident took place in 2005 at a different hospital and involved a patient alleging
that Ibarra inappropriately touched her genitals while checking a catheter
placement. Ibarra admitted to unprofessional behavior and his nursing license
was suspended but the patient did not press charges.
The court initially ruled that the 2005 incident was admissible for the rape
charge because related sanctions tended to rebut Ibarra’s consent defense. The
court ruled that it was admissible for the indecent liberties charge as well to show
common scheme or plan and evidence of knowledge. The State later moved to
2 The indecent liberties charge arose out of a 2019 incident that had not been investigated until after the 2020 allegation. This incident involved a patient alleging that Ibarra had pinched her nipple during a massage while she was recovering from surgery at Swedish.
4 No. 84771-6-I/5
dismiss the indecent liberties charge3 and the court reevaluated whether to admit
the 2005 incident. On this second pass, the court ruled that the evidence was
not admissible to show a common scheme or plan but that the defense might
open the door to related evidence by presenting their own evidence of consent.
Trial
The case proceeded to trial in October 2022. While testifying in his own
defense, Ibarra gave a vastly different account of the incident than he did while
talking to the police. Ibarra stated that he offered reflexology as a “last resort,”
despite knowing that it violated hospital rules. He asserted that when he reached
I.W.’s groin, she told him to “go for it,” which he understood as a command to
touch her genitals. He then recounted touching I.W. as she had described, but
denied any penetration. He testified that after I.W. orgasmed, she thanked him
and promised it would stay “just between [them].” He also admitted that he had
lied to the police, stating that he did so to avoid being fired.
Because Ibarra testified that he was aware he was not allowed to perform
reflexology without a third-party present, the State argued that he opened the
door to questions about any warnings or counseling he received following his
prior misconduct. Defense counsel objected, asserting that the evidence was not
relevant and was more prejudicial than probative. The court determined that
Ibarra had opened the door, but only as to warnings and counseling from the
3 The State moved to dismiss the indecent liberties charge because the patient from the 2019 incident was medically unavailable for the foreseeable future and the State could not proceed without their testimony.
5 No. 84771-6-I/6
hospitals, not patient allegations. The State proceeded to use evidence of prior
warnings to rebut Ibarra’s assertion of consent.
Ibarra’s ex-wife Laura Ibarra testified.4 The State intended to use Laura’s
testimony to establish that Ibarra had lied to the police about his interaction with
I.W. However, Laura’s responses to the questions presented by the State
involved seemingly irrelevant concerns about Ibarra’s relationship with his sons,
the large response law enforcement had mounted to find Ibarra, the fact that
Ibarra had been jailed, and that Ibarra had lied to the police about owning guns.
Defense counsel immediately objected to the statements and the court sustained
the objections. In a side-bar away from the jury, the court reprimanded the State
for eliciting the testimony. The State made clear that they had warned Laura
away from those statements and did not intend to produce the information.
Defense counsel moved for a mistrial, asserting that Ibarra was so prejudiced by
Laura’s statements that he required a new trial. The court denied the motion,
noting that the State did not intentionally elicit the evidence5 and that as the court
had immediately sustained any objections, the jury knew to disregard what they
heard.
4 As the appellant and his ex-wife share the same last name, we will address Laura by her first name. We intend no disrespect. 5 At oral argument, the State argued briefly that it believed Laura’s
testimony that Ibarra had lied about guns would be admissible. But the State repeatedly asserted that it did not intend to elicit that evidence and had warned Laura away from mentioning it. Given all of the State’s assertions, the former does not constitute a concession that the State purposefully elicited the testimony.
6 No. 84771-6-I/7
The jury found Ibarra guilty. The court sentenced Ibarra to 102 months to
life in prison. The court also waived most mandatory fees but imposed the then-
mandatory DNA collection fee and victim penalty assessment. It further required
Ibarra to submit to urine and breath analysis testing upon the request of his
corrections officer.
Ibarra appeals.
ANALYSIS
Motion for Mistrial
Ibarra contends that the trial court erred in failing to grant a mistrial based
on several prejudicial and inadmissible statements during his ex-wife’s testimony.
He objected to the testimony at trial. The court did not err in denying the mistrial
because any irregularities were not serious and the statements were both
cumulative and able to be cured.
We review a trial court’s denial of a motion for a mistrial for an abuse of
discretion. State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). A trial
court abuses its discretion if its decision is manifestly unreasonable or exercised
on untenable grounds or for untenable reasons. State v. Lord, 161 Wn.2d 276,
283-84, 165 P.3d 1251 (2007). A mistrial is appropriate “ ‘only when the
defendant has been so prejudiced that nothing short of a new trial can insure that
the defendant will be tried fairly.’ ” State v. Rodriguez, 146 Wn.2d 260, 270, 45
P.3d 541 (2002) (quoting State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407, cert.
denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986)). The trial court is
7 No. 84771-6-I/8
in the best position to judge prejudice. State v. Garcia, 177 Wn. App. 769, 777,
313 P.3d 422 (2013).
We use a three-part test to determine whether the defendant was so
prejudiced as to require a new trial. State v. Taylor, 18 Wn. App. 2d 568, 579,
490 P.3d 263 (2021). “We consider (1) the seriousness of the irregularity,
(2) whether the statement at issue was cumulative of other properly admitted
evidence, and (3) whether the irregularity was able to be cured by an instruction
to disregard the improper testimony, which the jury is presumed to follow.”
Taylor, 18 Wn. App. 2d at 579.
1. Seriousness of Irregularity
When reviewing an irregularity at trial, we consider who was responsible
for the errant testimony. Taylor, 18 Wn. App. 2d at 581. “When trial irregularities
are brought about by one of the attorneys, as opposed to a noncompliant
witness, the seriousness increases.” Taylor, 18 Wn. App. 2d at 581.
Here, the trial irregularities were the result of a noncompliant witness. The
State informed the court, in a side-bar away from the jury, that it had no intention
of eliciting Laura’s testimony about law enforcement’s search for Ibarra, that he
was ultimately jailed, that he might ruin his son’s birthday, or that he lied to the
police about owning guns. As evidenced by the State’s opening argument, the
State only intended to elicit the fact that Ibarra had lied to the police about sexual
conduct with I.W., a fact that Ibarra himself conceded. And Ibarra acknowledges
that lack of intent, noting in his opening brief that the prosecutor admonished
8 No. 84771-6-I/9
Laura to avoid those matters. Because the improper statements are the result of
a noncompliant witness, the seriousness of the irregularities decreases.
Ibarra asserts that the irregularities were serious because Laura’s volunteered
comments told the jury that Ibarra, whose defense depended on the jury
believing him, was a liar. But Ibarra testified that he lied to the police. His own
testimony, admitting that he lied to the police about the topic of the case at hand,
is much more likely to have an impact on Ibarra’s credibility than his ex-wife’s
stricken testimony suggesting he lied about irrelevant information.
In addition, while Laura’s description of the law enforcement response and
the fact that Ibarra was ultimately jailed may have painted Ibarra in a negative
light, neither statement was beyond the jury’s realm of assumption. Given the
subject matter of this case, it is not unlikely that jurors would assume that law
enforcement had been involved and that Ibarra had been jailed at some point in
the process. It does not follow that the jury would assume guilt as a result.
And finally, Laura’s statements about their children, while clearly
irrelevant, are not likely to sway the outcome of the case. None of the trial
irregularities are serious enough to warrant a mistrial.
2. Cumulative Statement
Ibarra’s primary concern surrounding Laura’s testimony is that she makes
him out to be a liar. Laura did testify as such twice, stating that Ibarra lied to the
police when he told them he had not touched I.W. and that he had lied about
owning guns. But Ibarra explicitly testified that he lied to the police. In fact, he
testified that he lied to the police specifically about whether he touched I.W. So
9 No. 84771-6-I/10
Laura’s first statement was clearly cumulative of his own testimony. And while
Laura’s irrelevant testimony that Ibarra had lied about owning guns provided the
jury with more information that he had been dishonest, any impact it had on his
credibility was similarly cumulative.
3. Able to be Cured
“ ‘Courts generally presume jurors follow instructions to disregard
improper evidence.’ ” State v. Christian, 18 Wn. App. 2d 185, 199, 489 P.3d 657
(2021) (quoting State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994)).
Defense counsel immediately objected and moved to strike the testimony. The
court sustained the objection and struck the testimony from the record. The court
then provided the jury with a clear instruction, stating “[w]hen I sustain an
objection, whether or not I tell you to disregard, you don’t consider whatever it
was I sustained the objection to.” And the court reiterated that instruction twice
before deliberations. With the extent of the court’s instruction to disregard the
improper statements and the presumption that juries follow those instructions,
any irregularity was able to be cured.
The court did not err in denying Ibarra’s motion for mistrial.
Evidentiary Ruling
Ibarra asserts that the trial court erred in determining that he opened the
door to having been previously counseled or warned about sexual contact with
patients. Ibarra opened the door by testifying that I.W. consented to the contact.
We review a trial court’s ruling on admissibility for abuse of discretion. State v.
Jennings, 199 Wn.2d 53, 59-60, 502 P.3d 1255 (2022). A trial court abuses its
10 No. 84771-6-I/11
discretion if “ ‘no reasonable person would take the view adopted by the trial
court.’ ” Jennings, 199 Wn.2d at 59 (quoting State v. Atsbeha, 142 Wn.2d 904,
914, 16 P.3d 626 (2001)). Evidence is 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.
And the open-door doctrine is a theory of expanded relevance. State v.
Rushworth, 12 Wn. App. 2d 466, 474, 458 P.3d 1192 (2020).
“The open door doctrine permits trial courts to admit evidence on a subject
normally barred on policy or prejudice grounds, so long as the party who
otherwise stands to benefit from the exclusion has increased the subject’s
relevance through actions at trial.” Rushworth, 12 Wn. App. 2d at 475. A party
may waive protection from a usually “forbidden” topic by addressing the subject
themselves. Rushworth, 12 Wn. App. 2d at 473. At that point, the opposing
party is “entitled to respond.” Rushworth, 12 Wn. App. 2d at 473.
Ibarra placed any prior admonishment informing him not to engage in any
sexual contact with patients before the jury as a matter of impeaching his
credibility, when he testified about being surprised by the sexual encounter with
I.W. He testified that the encounter was unusual and unexpected, stating
“[y]eah, I told her that that was kind of, you know, weird for me. . . . you know,
unusual, unpredicted.” That is belied by the fact that he had been trained about
such an encounter twice before.
Ibarra also called his credibility into question when he testified that he
interpreted I.W.’s statement of “go for it,” which she denies saying, as a
11 No. 84771-6-I/12
“command” he had to obey. His prior training is relevant to establish that that
belief is unreasonable. Having been informed not to engage in any sexual
conduct with a patient, Ibarra knew not only that he could disobey that
“command,” but that he was required to refuse.
Additionally, the court had specifically cautioned Ibarra that any education
or counseling he received following prior misconduct could become admissible
as rebuttal evidence if he introduced evidence of consent. Ibarra’s statement
that I.W. had told him to “go for it,” suggests that she not only consented to the
encounter, but that she initiated it.
Because Ibarra addressed the subject of I.W.’s consent as well as the
concept that this was an isolated incident he could not have anticipated, the court
did not abuse its discretion in determining that he opened the door to the State’s
cross-examination on prior education.
Cumulative Error
Ibarra argues that, even if either asserted error alone is not enough to
warrant reversal, the combined effects of both denied him a fair trial under the
cumulative error doctrine. There is no error to warrant reversal.
The cumulative error doctrine applies when “several trial errors that
standing alone may not be sufficient to justify reversal but when combined may
deny a defendant a fair trial.” State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390
(2000). “The test to determine whether cumulative errors require reversal of a
defendant’s conviction is whether the totality of the circumstances substantially
prejudiced the defendant and denied him a fair trial.” In re Pers. Restraint of
12 No. 84771-6-I/13
Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) (abrogated on other grounds
by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018)). The defendant bears
the burden of proving cumulative error. In re Pers. Restraint of Lord, 123 Wn.2d
296, 332, 868 P.2d 835 (1994).
Here, Ibarra failed to establish any trial errors. The court did not err in
denying Ibarra’s motion for mistrial or in determining that Ibarra opened the door
to evidence of prior warnings and education around sexual contact with patients.
Although some of Laura’s testimony was improper, the court struck that
testimony from the record and Ibarra cannot establish that the statements she
made resulted in any prejudice.
Because reversal under the cumulative error doctrine requires
circumstances that substantially prejudiced the defendant and Ibarra has failed to
show error or prejudice, reversal is not warranted.
Community Custody Conditions
Ibarra asserts that the community custody requirement that he be
available for drug and alcohol testing at the request of his community corrections
officer (CCO) or treatment provider unconstitutionally invades his right to privacy.
We remand to strike that community custody condition.
Constitutional challenges to community custody may be raised for the first
time on appeal. State v. Reedy, 26 Wn. App. 2d 379, 395, 527 P.3d 156, review
denied, 1 Wn.3d 1029 (2023). Generally, sentencing courts may impose and
enforce crime-related prohibitions and affirmative conduction as a condition of
community custody. State v. Martinez Platero, 17 Wn. App. 2d 716, 725-26, 487
13 No. 84771-6-I/14
P.3d 910 (2021). That said, there must be “a reasonable relationship between
the condition and the defendant’s behavior.” Martinez Platero, 17 Wn. App. 2d at
726.
The State recognizes that alcohol and drug use did not contribute to
Ibarra’s offense. The State asserts, however, that the legislature has expressed
an intent that the rehabilitation of felony offenders may include alcohol and drug
prohibitions even if their use did not contribute to the crime. Pointing to a
singular statute and a handful of unpublished cases, the State asks this court to
carefully consider those cases “anew,” and hold that the requirement to submit to
urinalysis and breath testing is sufficiently narrowly tailored regardless of whether
alcohol or drugs were involved in Ibarra’s crime. We decline to do so. Current
binding caselaw provides that there must be a reasonable relationship between
community custody conditions requiring urinalysis and/or breathanalysis and the
defendant’s behavior and the State cannot establish such a relationship. We
remand for the court to strike the community custody condition requiring
urinalysis and/or breathanalysis upon request.
Victim Penalty Assessment and DNA Collection Fee
Ibarra contends that the victim penalty assessment (VPA) should be
stricken because he is indigent. He also asserts that the DNA collection fee
should be stricken. The State does not object. We remand for the court to strike
the VPA and DNA collection fees from the judgment and sentence.
In July 2023, the legislature amended RCW 7.68.035 to prohibit the
imposition of a VPA if the court finds a defendant indigent at the time of
14 No. 84771-6-I/15
sentencing. The legislature also eliminated DNA collection fees. Recently
amended RCW 43.43.7541 provides that the court shall waive any DNA
collection fee previously imposed upon a motion by the defendant. These
amendments apply retroactively in this case because Ibarra’s appeal was
pending when the amendments took effect. State v. Ellis, 27 Wn. App. 2d 1, 17,
530 P.3d 1048 (2023).
Here, neither party disputes that Ibarra was indigent at sentencing, and
that the VPA should be stricken. Likewise, neither party disputes that the DNA
collection fee should be stricken. On remand, we instruct the court to strike both
fees.
Statement of Additional Grounds
In a statement of additional grounds, Ibarra asserts that the trial court
improperly refused to excuse a juror based on their ethnicity, that the court put
improper time constraints on the length of the trial, that his counsel was
ineffective, and that there was insufficient evidence to support his conviction. We
disagree.
A defendant may submit a pro se statement of additional grounds under
RAP 10.10. We only consider issues raised in that statement of additional
grounds if they adequately inform us of the “nature and occurrence of the alleged
errors.” State v. Calvin, 176 Wn. App. 1, 26, 316 P.3d 496 (2013). We do not
consider arguments repeated from the briefing. RAP 10.10(a).
15 No. 84771-6-I/16
1. Improper Refusal to Excuse Juror
Ibarra argues that the court denied dismissal of a juror based solely on her
desire for ethnic diversity and in violation of Ibarra’s right to challenge jurors for
cause during voir dire. We disagree.
We review a trial court’s decision to remove, or decline to remove, a juror
for abuse of discretion. State v. Hopkins, 156 Wn. App. 468, 474, 232 P.3d 597
(2010). A trial court abuses its discretion if its decision is manifestly
unreasonable or exercised on untenable grounds or for untenable reasons. Lord,
161 Wn.2d at 283-84.
RCW 2.36.110 states, “it shall be the duty of a judge to excuse from
further jury service any juror, who in the opinion of the judge, has manifested
unfitness as a juror by reason of bias, prejudice, indifference, inattention or any
physical or mental defect or by reason of conduct or practices incompatible with
proper and efficient jury service.”
Defense counsel challenged the juror at issue on the basis that she was a
physician and may have been in a position to second-guess testimony about
healthcare standards and the varying responsibilities of doctors and nurses.
Defense counsel was also concerned that the juror had been given training “to
avoid exactly this type of thing.” The court noted, however, that the juror did not
have any particular awareness of nursing standards and that “doctors are given
training on this, just as lawyers are and every other professional.” The court also
pointed out that this juror, in contrast to a juror who had been excused, gave no
indication that she was unable to separate her position and responsibilities from
16 No. 84771-6-I/17
the allegations against Ibarra. The court concluded that there was no basis to
strike this juror as compared to any other witness. Because there was no
“cause” upon which to excuse the juror, the court did not violate Ibarra’s right to
challenge jurors for cause.
2. Improper Time Restraints
Ibarra asserts that the court put improper time restraints on the trial that
prevented defense counsel from addressing pertinent issues and that allowing
I.W. to take breaks during testimony portrayed a sympathetic and biased court.
This argument is unpersuasive.
“The trial court has broad discretion to make trial management decisions
. . . because the trial court is generally in the best position to perceive and
structure its own proceedings.” State v. Bejar, 18 Wn. App. 2d 454, 460-61, 491
P.3d 229 (2021). We will not reverse a trial court’s decision unless it is
manifestly unreasonable or based on untenable grounds or reasons. State v.
Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013).
Ibarra first points to the fact that the court casually stated timeline
expectations throughout the trial. He notes that the court made comments about
not wanting to lose time and promised the jury that they would be done by a
certain day. He does not, however, explain how this interfered with defense
counsel’s ability to present its case. He also does not articulate any of the
“pertinent issues and concerns” that were interfered with because of to the
court’s time constraints.
17 No. 84771-6-I/18
Ibarra next argues that the court “coddled” I.W. by allowing her to take
breaks during testimony. This then supposedly cut into Ibarra’s time to present
his case while suggesting a bias in her favor. But again, Ibarra fails to establish
that allowing I.W. to take breaks during testimony prejudiced him in any way.
The court stated that it told I.W. she could take a break because I.W. was
beginning to cry. The court elaborated, stating “I do this for all witnesses who
appear to be getting emotional on the stand. . . . it wouldn’t, frankly, improve the
fairness of our proceedings for the Court to allow people to just burst into tears
and have emotional displays on the stand.” Ibarra has not shown how forcing
I.W. to testify through her emotional response, as opposed to allowing her a
break, would avoid a bias in her favor. And there is no evidence that the few
minutes of respite had any impact, let alone a negative impact, on Ibarra’s time
before the court.
The court did not impose any improper time restraints and did not abuse
its discretion in allowing I.W. to pause during her testimony.
3. Ineffective Assistance of Counsel
Ibarra contends that defense counsel was ineffective in failing to introduce
evidence that Ibarra believed demonstrates I.W. had motive to fabricate an
assault. He argues that his chance at a fair trial was hindered “because [defense
counsel] wanted to maintain a professional, non-confrontational reputation.” This
is again unpersuasive.
We review ineffective assistance of counsel claims de novo. State v.
Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). The Sixth Amendment to the
18 No. 84771-6-I/19
United States Constitution and article I, section 22 of the Washington State
Constitution guarantee the right to effective assistance of counsel. Estes, 188
Wn.2d at 457. To prevail on an ineffective assistance claim, the defendant must
establish that (1) counsel’s performance was deficient, and (2) that deficiency
resulted in prejudice. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
Performance is deficient if it falls “below an objective standard of reasonableness
based on consideration of all the circumstances.” State v. McFarland, 127
Wn.2d 322, 334-35, 899 P.2d 1251 (1995). To show prejudice, the appellant
must show a “ ‘reasonable probability’ ” that but for the deficient performance, the
outcome of the proceedings would have been different. State v. Jones, 183
Wn.2d 327, 339, 352 P.3d 776 (2015) (quoting Strickland v. Washington, 466
U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). There is a strong
presumption that representation was effective. State v. Grier, 171 Wn.2d 17, 33,
246 P.3d 1260 (2011). And “[w]hen counsel’s conduct can be characterized as
legitimate trial strategy or tactics, performance is not deficient.” Kyllo, 166 Wn.2d
at 863.
Ibarra provides four reasons that he contends establish I.W. had motive to
lie and that defense counsel was unwilling to argue at trial. He asserts that she
felt too guilty to face her husband after consenting to sexual behavior with
someone else, that her husband was older than she was so it had likely “been a
while” for I.W., that she had been assaulted before and had a “vindictive nature
towards men,” and that she was hoping for a big settlement from Swedish.
19 No. 84771-6-I/20
Defense counsel’s choice not to pursue any of these theories does not fall
below an objective standard of reasonableness. Ibarra does not provide any
evidence to support any of the theories nor present any legal argument regarding
them. Rather, his proposed evidence centers on accusing I.W. of lying,
embarrassing her or exploiting her past trauma. And while Ibarra asserts that his
proposed reasons establish motive for I.W. to lie, they involve pure conjecture.
There is no evidence to support that I.W. lied for any of these reasons. It was not
unreasonable for defense counsel to choose not to raise these issues at trial.
As to the second factor, Ibarra cannot establish that, had defense counsel
introduced the fact that her husband was older than she was or had cross-
examined I.W. on the fact that she had been sexually abused in the past, the
outcome of the proceedings would have been any different. Ibarra is correct in
that this case centered on credibility. However, Ibarra’s proposed statements,
not backed by evidence, were unlikely to diminish I.W.’s credibility. In fact, it is
not unreasonable that Ibarra’s attorney may have determined that it would have
harmed Ibarra’s case or diminished his credibility to highlight irrelevant but highly
personal facts about I.W.
Defense counsel was not deficient.
4. Sufficient Evidence
Finally, Ibarra asserts that there was insufficient evidence to support the
conviction of rape in the second degree because I.W.’s testimony was vague as
to penetration. We disagree.
20 No. 84771-6-I/21
In reviewing a challenge to the sufficiency of evidence, the inquiry is
whether by “viewing the evidence ‘in a light most favorable to the State, any
rational trier of fact could have found the essential elements of a crime beyond a
reasonable doubt.’ ” State v. Sweany, 174 Wn. 2d 909, 914, 281 P.3d 305
(2012) (internal quotation marks omitted) (quoting State v. Randhawa, 133
Wn.2d 67, 73, 941 P.2d 661 (1997)).
RCW 9A.44.050(d) defines rape in the second degree as sexual
intercourse “[w]hen the perpetrator is a health care provider, the victim is a client
or patient, and the sexual intercourse occurs during a treatment session,
consultation, interview, or examination.” Sexual intercourse includes its “ordinary
meaning,” as well as “any penetration of the vagina or anus however slight, by an
object [including a body part] . . . except when such penetration is accomplished
for medically recognized treatment or diagnostic purposes.” RCW
9A.44.010(14)(b).
Ibarra asserts that there was insufficient evidence to establish that he
penetrated I.W.’s vagina, and that as there were no threats, coercion, or
violence, that he did not rape her. Because threats, coercion, or violence are not
required to establish rape in the second degree, that is irrelevant. And I.W.
consistently recounted that Ibarra had put his fingers inside of her body. She first
informed Detective Atkinson that Ibarra put his fingers inside her vagina. On
direct examination, I.W. reiterated multiple times that Ibarra put his fingers “right
inside of [her].” The fact that I.W. did not explicitly state that she was penetrated
21 No. 84771-6-I/22
does not mean there was insufficient evidence to determine that there was
penetration.
Given I.W.’s testimony, the jury had sufficient evidence to convict Ibarra of
rape in the second degree.
We affirm the convictions and remand for the court to strike the VPA, DNA
collection fee, and community custody condition requiring urinalysis and/or
breathanalysis upon request.
WE CONCUR: