State Of Washington, V Nicholas S. Robles ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) DIVISION ONE
Respondent, ) No. 73934-4-1
v. ) UNPUBLISHED OPINION
t
NICHOLAS SIMUKAS ROBLES,
Appellant. ) FILED: November 9, 2015
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Dwyer, J. — Nicholas Robles was convicted of rape of a child in the third"
degree. On appeal, Robles contends that the trial court improperly denied his
motion for a mistrial and that the prosecutor engaged in misconduct by
expressing his personal opinion regarding the victim's truthfulness and Robles'
guilt. Robles also raises additional issues in a statement of additional grounds.
Finding no error, we affirm.
I
Robles and S.K. first met in the summer of 2010. Robles was 28 years
old at the time. When S.K. told Robles that she was 14 years old, he responded
by joking that he would have to stay away from her because she was so young.
Robles and S.K. saw one another several times that summer. On one
occasion, they encountered each other at the gym. Robles told S.K. that she had
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a nice body and a "nice ass" and, later, asked for her telephone number, which
she gave him.
S.K. and Robles began exchanging e-mails in August of 2010. In one e-
mail, Robles asked S.K. to "send [him] some pictures." She responded by texting
him a picture of her bare breasts. S.K. explained, "I felt like if I did he would be
more interested in me and wanting to be with me in general." When S.K.
subsequently told him that she was "done with pictures like that," he replied, "You
don't do pics. That is not good." She then told him that if he wanted to see her
nude, he could come look at her in person.
S.K. and Robles ultimately agreed to meet in January of 2011. They
decided that S.K. would skip school, Robles would pick her up, and they would
go to his house and use the hot tub. When they arrived at Robles' house, S.K.
went into the bathroom and changed into her swimsuit. She felt "weird" at this
time, wondering why she had come there and wishing that she had not. Her
physical interaction with boys up to that point was limited to kissing a boy in the
seventh grade. When she made the plan to meet Robles, S.K. thought they
would go to the hot tub and hang out and then she would go home. Shethought
perhaps they would kiss and cuddle.
In the hot tub, S.K. sat on the opposite side of Robles, but he instructed
her to come closer to him. Robles placed S.K. on his lap and held her there,
preventing her from moving away. They eventually left the hot tub and went into
Robles' bedroom.
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In the bedroom, Robles asked for a massage. When S.K. was massaging
his chest, Robles "tore" off her bikini bottoms. That was when S.K. realized "that
[they] were going to do something. [They] were going to have sex." S.K. "didn't
want to, but [she] didn't show that [She] just kept quiet." "[T]hen [Robles]
pushed [S.K.] onto the side of the bed and he started to try and put his penis into
[her] vagina." S.K. told him, "No, don't put it in - not in there, Iwould rather do it
in the ass." S.K. later explained that she said this because "[she] figured that if
[her] vagina wasn't penetrated, [she] would still be a virgin. Because at that
point, [she] was a virgin." Robles stepped away to apply lubricant to his penis.
As he approached S.K. again, "[she] felt numb. [She] [did] not know[ ] how to
speak, how to say anything. [She] just lay still." As Robles was inserting his
penis into her anus, S.K. told him "No, don't," but he persisted. "[S.K.] was just
quiet for the rest of the time. [She] didn't say anything else." S.K. later described
that, when Robles forced his penis into her anus, she felt "bum[ing] orsting[ing]"
pain.
After he ejaculated inside of her, Robles instructed S.K. to shower. When
she used the toilet before showering, S.K. saw blood. She cried when she was
in the bathroom, wanting to wash everything off and "get out of there." S.K. was
in too much pain to put on her jeans again so, after her shower, she asked for a
pair of sweatpants. Robles turned on the television and S.K. sat next to him,
believing that they would cuddle. She thought that cuddling was the type of thing
that happens "after something like that."
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The day following the rape, S.K. told her parents what had happened.
Though her father wanted to call the police, S.K. asked him not to, and he did
not. In April of 2012, S.K. told her boyfriend about what Robles had done, and
her boyfriend told her that, under Washington law, she had been raped.
Following that conversation, S.K. contacted a sexual assault hotline and was
referred to the Clark County Children's Justice Center. A criminal investigation
ensued.
Robles was subsequently contacted by Officer Joshua Phelps of the Battle
Ground Police Department. Robles told Phelps that he believed that S.K. was 13
years old when he met her. He also admitted that S.K. had sent him pictures of
herself naked and in lingerie. He denied, however, having had any sexual
contact with her.
Robles was ultimately charged with, and convicted of, rape of a child in
the third degree. He now appeals.
II
Robles first contends that the trial court erred by denying his request for a
mistrial after the prosecutor asked a question that, he claims, deprived him of a
fair trial. We disagree.
In determining whether a trial court abused its discretion in
denying a motion for mistrial, [appellate] court[s] will find abuse
"only when no reasonable judge would have reached the same
conclusion." fState v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014(1989) (internal quotation marks omitted).] "The trial court should
grant a mistrial only when the defendant has been so prejudiced
that nothing short of a new trial can insure that the defendant will be
tried fairly. Only errors affecting the outcome ofthe trial will be
deemed prejudicial." fHopson, 113Wn.2d at 284: accord State v.
Weber, 99 Wn.2d 158, 165, 659 P.2d 1102 (1983) ("[T]he correct
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question [is] [d]id the remark prejudice the jury, thereby denying the
defendant his right to a fair trial?").] In determining the effect of an
irregular occurrence during trial, we examine "(1) its seriousness;
(2) whether it involved cumulative evidence; and (3) whether the
trial court properly instructed the jury to disregard it." [Hopson, 113
Wn.2d at 284.]
State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994).
Juries are presumed to follow the trial court's instructions. State v.
Williams. 159 Wn. App. 298, 321, 244 P.3d 1018 (2011): accord State v. Hanna.
123Wn.2d 704, 711,871 P.2d 135(1994).
The following exchange, which occurred during the prosecutor's direct
examination of S.K., is at issue:
Q. Okay. Now, when did you find out that this case was definitely
going to trial?
A. On Thursday.
Q. And that was last - so today is the 19th. Was that the 15th?
A. Yes. Igot a phone call from Sherry, and she said that I had to
be here on Monday.
Q. And was anyone - since Thursday, has anyone been
contacting your friends or family about this case?
A. Yes.
[Defense counsel]: Objection; relevance.
THE COURT: Relevance, Counsel?
[Defense counsel]: We have --1 think we need a conference
outside the presence of the jury.
[Prosecutor]: Iwould agree with that, Your Honor.
THE COURT: Okay. Ladies and gentlemen, let's have you
retire to the jury room for a few moments. We will call you
back shortly.
Outside the presence ofthe jury, the prosecutor informed the court and,
for the first time, Robles' counsel that he believed that members of Robles'
family, and several of Robles' friends, had been contacting S.K.'s family since the
case had been called ready for trial. The prosecutor believed that "it would go to
show consciousness of guilt [or] possible intimidation ofthe State's witness."
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The trial court ruled that, "without an implication of [Robles], I think we're on a[n
ER] 403 problem here[,] where we've got somewhat limited relevance at best but
very highly inflammatory and prejudicial possible effect." The court sustained
Robles' objection.1
Robles nevertheless moved for a mistrial based on the prosecutor's
question.2 Robles argued that the question necessarily led to the conclusion that
it was him who had been contacting her friends and family and that the jury could
not disregard the question even if instructed to do so. The State responded that
the question was of minor moment in the context of the trial to that point and, in
particular, S.K.'s testimony, which had lasted approximately 1.5 hours by then
and focused on Robles' rape of S.K. and events proximate thereto. The
prosecutor also argued that the question was innocuous in that no mention was
made of either Robles or threats.
The trial court denied the motion, stating:
The motion before the Court is for a mistrial based on the
question that immediately preceded the break. The Court will note
that the remedy of mistrial is one ofthe most drastic remedies that
are -- that is available under circumstances. The Court's - the
Court concludes that under the circumstances, the fact that the
question came up in somewhat an innocuous fashion, that it was
not answered, and that it is relatively small in the grand scheme of
things is insufficient to rise to the level to grant a mistrial under the
circumstances.
1The trial judge's concerns were warranted. While the prosecution may offer evidence
that a defendant threatened a witness as an implication ofguilt, State v. Kosanke, 23 Wn.2d 211,
215, 160 P.2d 541 (1945), where the threat does not come from the defendant, the State must
show that it was made by someone acting with his knowledge and consent. State v. Bourgeois,
133 Wn.2d 389, 400, 945 P.2d 1120 (1997). No such evidence was presented here. Moreover,
even if the evidence had been otherwise admissible, the trial courtwould not have abused its
discretion by concluding that, despite its relevance, the evidence was unfairly prejudicial. See ER
403. u J u
2"[Sjince [the day you found out that this case was going totrial], has anybody been
contacting yourfriends and family about this case?"
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When the jury returned, before the prosecutor's questioning resumed, the
trial court instructed the jury as follows:
All right. So ladies and gentlemen, we - right before the
break, there was a question that was pending. I'm instructing you
to disregard that question. It wasn't answered, but it's been
deemed by the Court to be inadmissible. So that's an orderfor you
to disregard and - that last question before we took the break.
Go ahead, Mr. Robinson.[3]
The record herein supports the trial court's conclusion that Robles was not
prejudiced by the prosecutor's improper question, as remedied by the trial court's
curative instruction. Although Robles repeatedly asserts that the prosecutor's
question "carried with it the implication that Robles was threatening the State's
key witness because he knows he is guilty," in actuality, the prosecutor's
question mentioned neither Robles nor any threats, much less any threats to S.K.
Rather, it referred to "anyone" "contacting" S.K.'s family or friends. Moreover, the
question arose in the context of S.K. being asked when and how she had been
made aware that the case was proceeding to trial and S.K. responding that she
had been contacted by someone named "Sherry," presumably a representative
of the prosecutor's office. The questioning to that point was unrelated to any
communications, much less nefarious communications, from Robles, or people
acting on his behalf, to S.K. or her family. The question, in the form and context
in which the jury heard it, was innocuous. Although the subject matter could
have become prejudicial, the questioning was stopped before it reached that
3The prosecutor then resumed his questioning on a different topic, asking: "[Y]ou
described this occurring atthe defendant's home. Where is that - what's the location of that
home?"
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point.4 The trial court, which was in the best position to evaluate the effects of
the question, did not abuse its discretion by finding that the irregularity of the
prosecutor's question did not rise to a level that would warrant a mistrial and that,
instead, a curative instruction was sufficient.
Ill
Robles next contends that the prosecutor engaged in flagrant and ill-
intentioned misconduct. This is so, he asserts, because the prosecutor
expressed his personal belief regarding S.K.'s truthfulness and Robles' guilt. We
disagree.
To show that a prosecutor's comment denied a defendant a fair trial, the
defendant must showthat a prosecutor's conduct was both improper and
prejudicial. State v. Thoraerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011).
Where a prosecutor's comments are improper and defense counsel objected at
trial, the defendant must show a substantial likelihood that the comments
prejudiced the jury's verdict. State v. Emerv, 174 Wn.2d 741, 760, 278 P.3d 653(2012). "[0]nly those errors [that] may have affected the outcome of the trial are
prejudicial." State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984).
However, if a defendant fails to object and to request a curative
instruction, the defendant waives a prosecutorial misconduct claim unless the
4The fact that no prejudicial information had yet been admitted when Robles objected
distinguishes this case from SJaiejLBabcock, 145 Wn. App. 157, 185 P.3d 1213 (2008), upon
which Robles relies. Therein, the defendant moved for a mistrial after the State decided, mid-
trial to drop the child molestation charge against him. Evidence related to the child molestation
charge had already been admitted and, the defendant asserted, the prejudice resulting from this
evidence could not be cured by a jury instruction to disregard it. The trial court denied the
defendant's request for a mistrial. The Court of Appeals reversed, agreeing with the defendant
that the circumstances therein were such that "no instruction [could] 'remove the prejudicial
impression'" created by the evidence of child molestation. Babcock, 145 Wn. App. at 164
(quoting State v. Escalona, 49 Wn. App. 251, 255, 742 P.2d 190 (1987)).
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No. 73934-4-1/9
comment "was so flagrant [and] ill-intentioned that an instruction could not have
cured the prejudice." State v. Corbett, 158 Wn. App. 576, 594, 242 P.3d 52(2010). "'An objection is unnecessary in cases of incurable prejudice only
because there is, in effect, a mistrial and a new trial is the only and the
mandatory remedy.'" State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015)
(internal quotation marks omitted) (quoting Emerv, 174 Wn.2d at 762). "The
absence of an objection by defense counsel strongly suggests to a court that the
argument or event in question did not appear critically prejudicial to an appellant
in the context of the trial." State v. Edvalds, 157 Wn. App. 517, 525-26, 237 P.3d
368 (2010) (citing State v. Swan, 114 Wn.2d 613, 661, 790 P. 2d 610 (1990)).
Because it is entirely for the jury to determine whether a witness has
testified truthfully, it is misconduct for a prosecutor to vouch for a witness by
"'stat[ing] a personal belief as to the credibility of [that] witness.'" State v. Ish,
170 Wn.2d 189, 196, 241 P.3d 389 (2010) (quoting State v. Warren, 165 Wn.2d
17, 30, 195 P.3d 940 (2008)). Improper vouching generally occurs (1) if the
prosecutor expresses his or her personal belief as to the veracity of the witness
or (2) if the prosecutor indicates that evidence not presented at trial supports the
witness's testimony, ish, 170 Wn.2d at 196 (citing United States v. Brooks, 508
F.3d 1205, 1209 (9th Cir. 2007)). However, because prosecutors have wide
latitude to argue reasonable inferences from the facts concerning witness
credibility, a reviewing court will not find prejudicial error "unless it is clear and
unmistakable that counsel is expressing a personal opinion." State v. Allen, 176
Wn.2d 611, 631, 294 P.3d 679 (2013).
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Herein, Robles asserts broadly that the prosecutor engaged in misconduct
by stating his personal opinion regarding both S.K.'s credibility and Robles' guilt.
However, Robles specifically identifies only one allegedly problematic statement,
which is as follows:
What's the one thing they don't agree with? What happened
inside that house. Why would we agree and believe her on all
these other details before and after, but not believe her on the one
part of the entire case, the one reason we're here, the sexual
abuse? Why would we not believe her when we believe all these
other facts?
Robles argues that the prosecutor's use of the pronoun "we" constitutes
vouching.
While it is true, as the State acknowledges on appeal, that prosecutors
should generally avoid using the pronoun "we" in closing argument, its use is not
always improper. In United States v. Younger, 398 F.3d 1179 (9th Cir. 2005), for
example, the Ninth Circuit concluded that the prosecutor had not engaged in
misconduct by repeatedly saying "we know" in reference to what he argued was
shown by the evidence.5 While ultimately concluding that the prosecutor's
statements were not improper, the court also acknowledged the ambiguity
caused by a prosecutor using the phrase "we know," reasoning thusly:
We do not condone the prosecutors' use of "we know"
statements in closing argument, because the use of "we know"
readily blurs the line between improper vouching and legitimate
summary. The question for the jury is not what a prosecutor
believes to be true or what "we know," rather, the jury must decide
5Therein, the prosecutor said, for example: "'[W]e know [defendant] possessed the
backpack. We know that. We know inside the backpack were the 81 rocks wrapped for retail sale
and the 18 packets of cocaine powder also wrapped for sale' and '[w]e know that in the
neighboring compartment, the bigger compartment, they had two loaded firearms.'" Younger,
398F.3dat1191.
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No. 73934-4-1/11
what may be inferred from the evidence. We emphasize that
prosecutors should not use "we know" statements in closing
argument.
Nonetheless, the record in this case confirms that the
prosecutors used the phrase "we know" to marshal evidence
actually admitted at trial and reasonable inferences from that
evidence, not to vouch for witness veracity or suggest that evidence
not produced would support a witness's statements. [United States
v. ILeon-Reves, 177 F.3d [816,] at 822 [(9th Cir. 1999)]. The
prosecutors' statements thus were not improper, fUnited States
v. ICabrera, 201 F.3d [1243,] at 1250 [(9th Cir. 2000)]; fUnited
States v. lToomev, 764 F.2d [678,] at 681 [(9th Cir.1985)].
Moreover, in the context of the entire trial, we conclude that the
prosecutors' use of "we know" did not materially affect the verdict.
See Toomev, 764 F.2d at 681.
Younger, 398 F.3d at 1191.
Because a prosecutor's use ofthe pronoun "we" in closing argument is
ambiguous, and because the determination of whether it constitutes misconduct
depends on the context in which it is used, courts are particularly reliant on
defense counsel to object and make a record when its use appears "critically
prejudicial." Edvalds, 157 Wn. App. at 525-26. Herein, Robles did not object.
Due to the absence ofan objection, we are not informed ofthe trial court's view
on the matter of either the intent or the effect of the prosecutor's statement.
Without this, Robles has not provided us a basis to conclude that the
prosecutor's comments were "clear[ly] and unmistakably]" improper. Allen, 176
Wn.2d at 631. Moreover, even if we were to conclude that the prosecutor's
comments were improper, they certainly did not rise to the level ofbeing flagrant
and ill-intentioned. Furthermore, had Robles objected, any potential prejudice
could have been cured by a proper instruction. See Younger, 398 F.3d at 1190(prosecutor's statement that "'the government believes that [defendant] did
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No. 73934-4-1/12
possess cocaine and cocaine base for sales purposes'" was not prejudicial
where defense counsel immediately objected and the prosecutor immediately
rephrased his statement).6
The prosecutor's remarks were not improper, and certainly were not
flagrant and ill-intentioned. Moreover, if they were objectionable, they could have
been remedied by a curative instruction. Therefore, Robles has not carried his
burden of showing that these remarks entitle him to a new trial.
IV
Robles submits a pro se statement of additional grounds pursuant to RAP
10.10. He does not establish an entitlement to relief on any of the grounds
presented.
"[T]he appellate court will not consider a defendant's statement of
additional grounds for review if it does not inform the court of the nature and
occurrence of alleged errors." RAP 10.10(c). Generally, "the appellate court is
not obligated to search the record in support of claims made in a defendant's
statement of additional grounds for review." RAP 10.10(c): accord State v.
6In addition to his contention regarding the prosecutor's use of"we," Robles asserts that
the prosecutor vouched for S.K. by arguing that, based on the level of detail that S.K. was able to
provide about Robles raping her and about her surroundings that day, it was not believable that
S.K. had fabricated her story. However, prosecutors are permitted wide latitude to argue
reasonable inferences from the evidence concerning witness credibility, Allen, 176 Wn.2d at 631,
and the prosecutor's argument herein—that the level of detail that S.K. testified to indicated that
she was credible—was a permissible inference from the evidence.
It was also not improper for the prosecutor to describe Robles' story as "ridiculous."
"[W]ords like 'ridiculous' or 'preposterous' in relation to testimony are not, alone, an improper
expression of personal opinion as long as the prosecutor is arguably drawing an inference from
the evidence." State v. Lindsay. 180 Wn.2d 423, 438, 326 P.3d 125 (2014). Robles claimed that
S.K's detailed memory ofthe house in which the crime occurred came from pictures she saw on a
camera phone. However, the evidence was that the pictures on the phone were taken before the
house was remodeled, but the details S.K. gave were consistent with the house as it looked after
the remodel. In calling Robles' story "ridiculous," the prosecutor was arguing that his account
was not credible, which was permissible argument.
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No. 73934-4-1/13
Meneses, 149 Wn. App. 707, 715-16, 205 P.3d 916 (2009) (It is not our role "to
search the record to find support for the defendant's claim.").
While Robles lists several issues that could potentially be reviewable, he
has not sufficiently identified the nature of the alleged errors. Because none of
Robles' claims of error are sufficiently developed for review, we decline to reach
them.
Affirmed.
We concur:
I /; cAo^ /J Cet.'J
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