State of Washington v. Tommy Joel P. Quiroz ( 2022 )

FILED
JANUARY 25, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 37911-6-III
Respondent, )
)
v. )
)
TOMMY JOEL P QUIROZ, ) UNPUBLISHED OPINION
)
Appellant. )
STAAB, J. — A jury found Tommy Quiroz guilty of attempted second degree child
rape and communicating with a minor for immoral purposes. On appeal, Quiroz argues
that the trial court erred by changing the incident date in the to-convict jury instruction
during his attorney’s closing argument. He contends that the alleged date of the incident
became the law of the case once the court accepted the instructions. He also argues that
changing the date allowed the State to introduce a new theory of culpability during
closing arguments. We disagree and affirm Quiroz’s convictions.
No. 37911-6-III
State v. Quiroz
BACKGROUND
In December 2018, the Washington State Patrol conducted what is commonly
referred to as a “Net Nanny” operation in Kittitas County. The operation seeks to
identify and arrest those individuals who respond to offers to engage in sex with children
and take one or more substantial steps to do so. Quiroz was one of the individuals
apprehended in the December 2018 Net Nanny operation in Ellensburg. He was charged
by information with attempted rape of a child in the second degree, and with
communicating with a minor for immoral purposes; both crimes occurring on or about
December 17, 2018.
Quiroz’s three-day trial commenced on September 1, 2020. Throughout the trial,
the jury was informed that each crime had occurred on or about December 7, 2018. In its
opening statement, the State told the jury that Mr. Quiroz was charged with crimes that
occurred in December 2018. In the course of testimony, every witness, including Quiroz,
referenced or acknowledged December 2018 as the timeframe of the events for which
they were there testifying. The jury also heard Quiroz’s post-arrest interview with law
enforcement. At the beginning of the recording, the officer conducting the interview
stated that the interview was occurring on December 17, 2018, beginning at 1833 hours.
Following the taped interview, Quiroz provided an apology letter acknowledging what he
had done. That letter was signed and dated by Quiroz as “12/17/2018.” Report of
Proceedings (RP) at 402.
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No. 37911-6-III
State v. Quiroz
Despite the evidence produced at trial, the State’s to-convict jury instruction for
the attempted rape charge that was read to the jury indicated that the incident date was
December 17, 2020. Clerk’s Papers (CP) at 98; RP at 474. Defense counsel did not
object to any of the State’s proposed instructions, other than noting the “defendant not
compelled to testify” instruction should be withdrawn. RP at 463. The trial court read
the instructions verbatim to the jury. RP at 467-78. During closing arguments, defense
counsel focused on the to-convict jury instruction:
[DEFENSE COUNSEL]: The state has the burden. The judge is
instructing you on—the law. This is what it requires in order for you to
convict him.
Well, right off the bat, on Instruction No. 8, to convict the defendant of
a crime of attempted—rape of a child in the second degree, that on or about
December 17, 2020 —
[PROSECUTOR]: Judge, I’d object. It’s obviously a typo in the
instruction.
[DEFENSE COUNSEL]: Judge, these are the instructions. I get to
argue from them. It is the law of the case.
THE COURT: Are you moving to have that amended, counsel?
[PROSECUTOR]: Yes, sir. I — I think it’s (inaudible)
THE COURT: Which number?
[PROSECUTOR]: Eight.
THE COURT: Yeah. That should read — 2018.
[PROSECUTOR]: Thank you, Judge.
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State v. Quiroz
RP at 491. Following the State’s rebuttal argument, defense counsel objected to
amending Instruction No. 8. RP at 497. The trial court responded, “Sure. And you
didn’t bring it up earlier, which is your right, and—I didn’t notice until your argument.
So, —I should have caught it earlier as well.” Id. Neither party objected to Instruction
No. 8 as proposed by the State before it was read to the jury. CP at 97. Before sending
the instructions back with the jury, the court amended the instruction by changing the
date in the first element to “December 17, 2018.” CP at 26; RP at 491-92.
ANALYSIS
A. JURY INSTRUCTIONS
On appeal, Quiroz argues that when the trial court accepts the jury instructions
without objection by either party, the instructions become the law of the case. The State
must then prove the elements as set forth in the instructions. He contends that the trial
court in this case erred by changing the date of the to-convict instruction at the start of
defense counsel’s closing arguments. He also suggests that changing the alleged date of
the incident during closing arguments allowed the State to introduce a new theory of the
culpability that undermined defense counsel’s “bulletproof” argument.
Under the law of the case doctrine, unchallenged jury instructions become the law
of the case. State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998). “In criminal
cases, the State assumes the burden of proving otherwise unnecessary elements of the
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No. 37911-6-III
State v. Quiroz
offense when such added elements are included without objection in the ‘to-convict’
instruction.” Id. (citing State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995)).
Parallel to the law of the case doctrine is the discretion trial courts are afforded to
correct nonprejudicial mistakes in the to-convict jury instruction. See State v. Garcia,
177 Wn. App. 769, 313 P.3d 422 (2013). In Garcia, the to-convict jury instruction read
“first degree robbery” instead of “serious offense,” as the parties had earlier agreed. Id.
at 772-73. The trial court corrected the instruction after closing arguments and denied
defense counsel’s motion for a mistrial. Id. at 774-75. Division Two affirmed, noting
that “the jury’s temporary exposure to the improper instruction was not such a serious
trial irregularity that it could not be cured by an instruction to disregard.” Id. at 772.
In this case, Quiroz argues that the cutoff point for objecting to an incorrect
instruction is before closing arguments. He does not cite any case law to support this
temporal deadline. In State v. Hobbs, 71 Wn. App. 419, 424, 859 P.2d 73 (1993), the
charging information and the to-convict instruction included an unnecessary element of
venue. Defense counsel recognized the issue during trial and structured her questions
accordingly. In closing, defense counsel pointed out that the State had failed to prove the
crimes were committed in King County. After the jury began deliberating, the court
allowed the State to amend the information and the to-convict jury instruction. Division
One held that amending the to-convict jury instruction after closing arguments and during
deliberations prevented counsel from rethinking her cross-examination strategy. Id. at
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No. 37911-6-III
State v. Quiroz
425. Nonetheless, Division One correctly rejected the defendant’s invitation to find that
the erroneous instruction constituted the law of the case once the jury began deliberating.
Instead, the court reversed the conviction without prejudice and remanded for a new trial.
Id.In this case, the trial court did not abuse its discretion. The erroneous date in the
to-convict instruction was a scrivener’s error, not a misunderstanding of the law. The
corrected instruction conformed to the information and the evidence produced at trial.
The instruction was corrected before the jury began deliberating. The amendment did not
add new law or a new theory to the case.
B. STATEMENT OF ADDITIONAL GROUNDS
In his statement of additional grounds, Quiroz alleges that the court erred in
allowing the State to replace the testimony of retired Detective Sergeant Carlos
Rodrigues with that of Detective Sergeant Dan McDonald. This replacement took place
immediately prior to the start of the trial. Quiroz further alleges that the State committed
a Brady1 violation in denying Quiroz the opportunity to cross-examine Detective
Sergeant Rodrigues. To support his arguments, Quiroz submits information in his
declaration outside the record on appeal. Because this is a direct appeal, we will not
consider evidence outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d
1Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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No. 37911-6-III
State v. Quiroz
1251 (1995). Quiroz can raise these issues in a personal restraint petition, where he can
supplement the record to support his claims. Id. See also RAP 16.4.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Fearing, J.
_________________________________
Lawrence-Berrey, J.
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