State Of Washington, Resp. v. Salvador A. Cruz, App. ( 2013 )

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SALVADOR ALEMAN CRUZ, UNPUBLISHED OPINION
Appellant. FILED: December 23, 2013
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Becker, J. — A jury convicted Salvador Cruz of four counts of first degree child
rape, two counts of third degree child rape, and one count of communication with a
minor for immoral purposes. The trial court dismissed two other counts during trial after
jurors learned that a woman related to Cruz's case had climbed onto the courthouse
roof in an incident that garnered media attention. Cruz moved unsuccessfully for a
mistrial. He argues the trial court erred by denying him a new trial and by admitting
evidence of prior sex offenses. Finding no error, we affirm the convictions.
In 1997 and 1998, several young girls accused Cruz of sexually abusing them in
separate incidents that occurred between November 1993 and March 1998. In 1998,
Cruz left the United States. When he attempted to re-enter the country in November
2008, he was detained and charged. As a result of the delay, the girls were in their
twenties by the time they testified against him at trial in 2010.
Cruz represented himself with the aid of interpreters and standby counsel. The
jury found Cruz guilty of multiple counts of child rape and one count of communication
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with a minor for immoral purposes, and found six aggravating factors. The court
imposed an exceptional sentence of 636 months, or 53 years. This appeal followed.
MOTION FOR A MISTRIAL
Cruz contends the court erred by denying his motion for a mistrial after the
occurrence of a serious trial irregularity—the rooftop incident.
On Thursday, November 4, 2010, after five days of testimony, one of the
victims went through an unlocked door during a lunch recess and climbed onto
the roof of the King County courthouse, where she considered suicide. She had
not yet testified or appeared in court. Police and negotiators responded to the
incident and cordoned off the area. The trial court learned that some jurors had
seen on their media devices that there was an incident occurring at the
courthouse.
The trial court gathered the jurors and had the prosecutor and Cruz's
standby counsel on speaker phone as the court addressed the incident. Cruz
was not present. The court instructed the jurors to "take a news holiday" and
avoid any information about the incident:
I think I understand that some of you have seen on your electronic
media that there's been a story about - - relating to this case in the
courthouse today. I want to remind you that we have to decide this
case based purely on the evidence produced here in court, not on
anything that's going on outside of court anywhere, and so it's
really important that you not get caught up in any news stories that
may be related to this case at the courthouse today.
And so I want you to please take a news holiday this
weekend.
One juror remarked that jurors had not known the incident was related to
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the case:
JUROR: Just a comment. We knew that there was an
incident at the courthouse, but we did not know it was related to this
case.
THE COURT: Okay. Yeah, well, it doesn't really have any
bearing on the merits of the case, but it's certainly something that,
you know, people might in some way relate to the case.
The court urged jurors to avoid speaking with anyone about the case and the
courthouse incident as they went home for the weekend.
On the following Monday, the prosecutor suggested the trial court question
each juror individually to determine what he or she knew about the incident. The
trial court agreed. Outside the presence of the jury, the State then moved to
dismiss the two counts of child molestation involving the young woman who had
gone on the courthouse roof. The court granted the motion. Cruz moved for a
mistrial. He asked how the court could consider continuing with the same jury.
The trial court and the parties questioned each juror separately to
determine what information each juror had about the incident, whether each had
avoided all media reports as the court had ordered, and whether each juror felt
he or she could be fair and decide the case solely on the evidence presented at
trial. At most, some jurors knew that a young woman had climbed on the roof of
the courthouse, and that the person or the incident was somehow related to
Cruz's case.
Cruz asked the trial judge why they were questioning jurors when the
judge himself told them the matter was related to his case. The judge said he
told the jury the matter was related to the case in order to explain why jurors
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needed to take special care to avoid all media.
When questioned, each juror said the incident would have no bearing on
how he or she considered Cruz's case. The trial court denied Cruz's motion for a
mistrial, finding no prejudice to his right to a fair trial.
When trial resumed, the court reminded the jurors to focus only on the
evidence presented at trial:
Just a couple of things I want to remind you of. There may be more
media coverage of things related to this trial. I want to remind you,
please, don't read anything about it, either in the paper or on the
Internet, don't listen to any reports on the radio or the TV or
whatever. I want to remind you the case needs to be decided just
on the evidence that's admitted here in the courtroom.
On November 30, 2010, the trial court followed up by asking if "any of you read
anything or found out anything that would make you unable to be fair and
impartial?" The trial court asked two more times whether jurors had seen any
media coverage that would affect their ability to be fair and impartial. No juror
answered in the affirmative. The court then asked the jurors to contact the bailiff
ifany issue arose in this regard. The jurors did not contact the bailiff, and no
further issue about the rooftop incident arose as the trial proceeded. The young
woman involved did not testify.
Itwas a trial irregularity, not a trial error, for jurors to learn that the incident
involving a young woman on the courthouse roof was somehow related to the
case they were hearing. When a trial irregularity occurs, a new trial is warranted
only when the defendant has been so prejudiced that nothing short of a new trial
can ensure the defendant will be treated fairly. State v. Bourgeois. 133 Wn.2d
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389, 406, 945 P.2d 1120 (1997); State v. Russell. 125 Wash. 2d 24, 85, 882 P.2d
747(1994). cert, denied, 514 U.S. 1129(1995). The granting or denial of a new
trial is a matter primarily within the discretion of the trial court, and the decision
will not be disturbed unless there is a clear abuse of discretion. Bourgeois, 133
Wash. 2d at 406. "An abuse of discretion occurs only 'when no reasonable judge
would have reached the same conclusion.'" Bourgeois, 133 Wash. 2d at 406,
quoting Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 667, 771 P.2d 711, 780 P.2d
260 (1989). In determining the effect of an irregularity, we examine "(1) its
seriousness; (2) whether it involved cumulative evidence; and (3) whether the
trial court properly instructed the jury to disregard it." State v. Hopson, 113
Wash. 2d 273, 284, 778 P.2d 1014 (1989).
There is no doubt that it was a serious irregularity for the jury to learn such
a dramatic event was related to the trial, and the trial court treated it as such by
repeatedly instructing the jury to decide the case solely on the evidence
presented at trial. The primary issue is whether the irregularity prejudiced Cruz
to the extent of making his trial unfair. A defendant must show "'more than a
possibility of prejudice.'" Bourgeois, 133 Wash. 2d at 406, quoting State v. Lemieux,
75 Wash. 2d 89, 91, 448 P.2d 943 (1968).
Before the incident, jurors had already heard from several witnesses,
including a police detective, a counselor, a physician, one of the victims, and the
mother of two of the victims. From this testimony, jurors could glean that the
alleged victims were now in their early twenties. They knew that Cruz himself
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was conducting cross-examination of the witnesses. Two jurors knew that the
person on the courthouse roof was a young woman. Two other jurors speculated
that the person wanted to jump off the roof. In telling jurors to avoid all
information about the incident, the trial court confirmed for them that it was
related to Cruz's case.
Cruz argues jurors could put this information together and infer that the
young woman on the roof was someone scheduled to testify against Cruz, either
an accuser or a family member of one of the accusers. He contends a juror
would likely draw the further inference that the young woman had reached such a
state of desperation at the thought of reliving the abuse that she would seriously
consider suicide rather than face Cruz from the witness stand. According to
Cruz, such an inference would be devastating to his case because of the
likelihood that it would "trigger a passionate, emotional, and even visceral
reaction of outrage against Cruz and compassion for his accusers." App. Br. at
24.
What Cruz refers to as the "logical and foreseeable inferential path" is too
speculative to demonstrate prejudice sufficient to warrant a new trial. Bourgeois
illustrates the heaviness of the defendant's burden. Bourgeois, a teenager, was
charged with a retaliation killing. Bourgeois, 133 Wash. 2d at 393. A major theme
in the State's case was how fearful the witnesses were to testify against
Bourgeois. One of the witnesses, Debra Steward, testified that she had been
threatened. Bourgeois, 133 Wash. 2d at 395. After the trial, the court learned that
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at least two jurors had seen teenage boys in the courtroom glaring at Steward
when she was testifying, and one juror had seen a gesture made toward Steward
as ifthe spectator were firing a gun. Bourgeois. 133 Wash. 2d at 397-98.
Bourgeois moved, unsuccessfully, for a new trial.
Our Supreme Court agreed that the gun-mimicking gesture was a "fairly
serious" irregularity, especially in light of the trial court's erroneous admission of
testimony that witnesses were fearful. Bourgeois, 133 Wash. 2d at 409. "Because
fear and retaliation were such central themes in the State's case, the gesture
arguably reinforced the impression that the defendant and his friends were the
type of people that harm those who testify against them. In that sense it may
have reinforced the State's theory that Bourgeois had a motive to commit the
charged offenses." Bourgeois, 133 Wash. 2d at 409. Even so, the court concluded
the misconduct was not "so significant that the defendant will have been treated
unfairly unless granted a new trial." Bourgeois, 133 Wash. 2d at 409. This was the
case even though the jury had not been specifically instructed to disregard the
spectator misconduct, as it did not come to the court's attention until after the
verdict.
Here, the irregularity had less potential for prejudice than the threatening
gesture in Bourgeois. The incident did not occur inside the courtroom. Unlike in
Bourgeois, what jurors knew about the incident did not have a direct connection
to the evidence against the defendant. Unlike in Bourgeois, the incident did not
serve to reinforce central themes of fear and retaliation or to bolster improperly
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admitted testimony.
Cruz's argument for a mistrial depends not only on a speculative
"inferential path," but also on an erroneous assumption that jurors would be
unable to disregard the incident. As in Bourgeois, the jury was instructed to
consider only the testimony and evidence admitted at trial. "We assume that the
jury followed this instruction and therefore disregarded extraneous matters."
Bourgeois, 133 Wash. 2d at 409, citing State v. Lough, 125 Wash. 2d 847, 864, 889
P.2d 487 (1995). And unlike in Bourgeois, the trial court instructed jurors to
ignore news media reports about the rooftop incident and repeatedly questioned
them to ensure that they had not heard or seen anything that would affect their
ability to render a fair and impartial verdict.
Because the potential prejudice of a courtroom spectator's threatening
gesture was not judged significant enough to warrant a new trial in Bourgeois, we
conclude the jurors' limited knowledge of the rooftop incident was not significant
enough to warrant a new trial for Cruz. Cruz fails to carry his heavy burden to
show that "'no reasonable judge would have reached the same conclusion.'"
Bourgeois, 133 Wash. 2d at 406, quoting Sofie. 112 Wash. 2d at 667.
EVIDENCE OF PRIOR SEX OFFENSES
Next, Cruz contends the trial court improperly admitted evidence of his
prior sexual offenses against two sisters, AB and FP. These two young women
were the first to make disclosures of sexual abuse by Cruz.
In 1997, Cruz was charged with first degree rape of a child and first
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No. 66709-2-1/9
degree child molestation in connection with acts involving AB and FP. He
pleaded guilty to one count of the lesser charge of communicating with a minor
for immoral purposes as part of a plea agreement. The plea agreement was
accepted, and the charges involving these two girls were resolved before Cruz
left the country in 1998.
In the present case, the trial court allowed AB and FP to testify about
Cruz's sexual abuse of them, finding that the evidence of these prior acts was
admissible under RCW 10.58.090 and ER 404(b).
The State correctly concedes that the trial court erred by relying on RCW
10.58.090 for admitting the evidence. That statute was later invalidated as a
violation of the separation of powers doctrine. State v. Gresham, 173 Wash. 2d
405, 269 P.3d 207 (2012). However, this court may affirm the trial court on any
correct ground. Gresham, 173 Wash. 2d at 419. The trial court admitted the
evidence about Cruz's sexual abuse of the two sisters on the alternative basis
that it established a common scheme or plan under ER 404(b). As the court did
with respect to one defendant in Gresham, we affirm the trial court on this basis.
Provided the trial court has interpreted a rule of evidence correctly, this
court reviews the trial court's determination to admit or exclude evidence for
abuse of discretion. Gresham, 173 Wash. 2d at 419.
Evidence Rule 404(b) provides:
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.
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No. 66709-2-1/10
Where "the issue is whether a crime occurred, the existence of a design to
fulfill sexual compulsions evidenced by a pattern of past behavior is probative,"
and prior bad acts may be admitted to show a plan or design ifthey satisfy a
substantial threshold. State v. DeVincentis, 150 Wash. 2d 11, 17-18, 74 P.3d 119
(2003). For a court to admit evidence of prior bad acts to prove a common
scheme or plan, the acts must be: (1) proved by a preponderance of the
evidence, (2) admitted for the purpose of proving a common plan or scheme, (3)
relevant to prove an element of the crime charged or to rebut a defense, and (4)
more probative than prejudicial. DeVincentis, 150 Wash. 2d at 17; State v. Lough,
125 Wash. 2d 847, 852, 889 P.2d 487 (1995).
"Random similarities are not enough," but there is no requirement that the
similarities in the evidence "be atypical or unique to the way the crime is usually
committed." DeVincentis, 150 Wash. 2d at 13, 18, abrogating State v. Dewey, 93
Wash. App. 50, 966 P.2d 414 (1998), review denied, 137 Wash. 2d 1024 (1999), and
State v. Griswold. 98 Wash. App. 817, 991 P.2d 657 (2000). Rather, "the trial court
need only find that the prior bad acts show a pattern or plan with marked
similarities to the facts in the case before it." DeVincentis, 150 Wash. 2d at 13; see
also Lough, 125 Wash. 2d at 856, 889 P.2d 487.
Cruz attempts to distinguish DeVincentis by arguing that the evidence
there showed a shrewd plan to convince girls they were safe and to induce them
to engage in sexual intercourse without the use of threats or force. In contrast,
Cruz argues, his conduct was crude, impulsive, and forceful. But just as the
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No. 66709-2-1/11
similarities in the evidence do not have to show a unique or atypical method of
committing the crime, neither does the evidence have to show a gradual
desensitizing and grooming of young girls. Cruz was not a groomer; rather, he
was an intimidator who convinced young girls he would hurt or kill them and their
families if they disclosed the abuse.
Only one of the alleged victims was 14 when she met Cruz; the others
were ages 4 to 11. Through one pair of sisters, Cruz met their friends, another
pair of sisters. Cruz followed a pattern of ingratiating himself with the mothers of
these young girls, who did not have fathers or other guardian figures available
and able to help keep an eye on them. Initially, he managed to come across to
both the adults and the girls as gentlemanly. Later, once he had gained the
opportunity to be alone with the girl, the threats began.
Through the 14-year-old girl, Cruz met her younger sister and that sister's
friend and classmate, OJ. With the exception of OJ, who disclosed the one and
only time she had contact with Cruz, all the girls believed his threats of physical
harm or death and were very reluctant to reveal the abuse, even after Cruz was
no longer around.
This court has recognized that evidence of prior bad acts is especially
probative in cases of child sexual abuse because of "(1) the secrecy in which the
acts occur, (2) the vulnerability of the victims, (3) the lack of physical proof of the
crime, (4) the degree of public opprobrium associated with the accusation, (5) the
unwillingness of victims to testify, and (6) the jury's general ability to assess the
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No. 66709-2-1/12
credibility of child witnesses." State v. Baker. 89 Wash. App. 726, 736, 950 P.2d
486 (1997), review denied. 135 Wn.2d 1011(1998). In Baker, the evidence was
sufficient to establish a common scheme or plan where the defendant allowed
young girls at a slumber party to sleep with him and then touched them while
they slept. See also State v. Krause. 82 Wash. App. 688, 696, 919 P.2d 123
(1996). review denied. 131 Wash. 2d 1007 (1997). In Krause. the defendant's
scheme was to gain access to young boys through his relationships with his girl
friends and by playing games with the children and taking them on outings; he
molested them once they were isolated. Cruz similarly established a pattern that
was manifest in his conduct with AB and FP as well as with the girls whose
accusations formed the basis of his current convictions.
We conclude the trial court did not abuse its discretion when it admitted
evidence of Cruz's abuse of sisters AB and FP under the common scheme or
plan exception to ER 404(b).
Jury Instruction
The trial court gave a limiting instruction pertaining to the evidence of
Cruz's acts against sisters AB and FP, as proposed by the State:
In a criminal case in which the defendant is accused of an
offense of sexual assault or child molestation, evidence of the
defendant's commission of another offense or offenses of sexual
assault or child molestation is admissible and may be considered
for its bearing on any matter to which it is relevant.
However, evidence of a prior offense on its own is not
sufficient to prove the defendant guilty of the crime charged in the
Information. Bear in mind as you consider this evidence at all
times, the State has the burden of proving that the defendant
committed each of the elements of the offense charged in the
Information. I remind you that the defendant is not on trial for any
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No. 66709-2-1/13
act, conduct, or offense not charged in the Information.
Instruction 7.
Cruz contends the instruction was an unconstitutional comment on the
evidence and misleading. Cruz did not object to the giving of this instruction.
Nevertheless, a claim that a jury instruction constitutes an impermissible
comment on the evidence may be raised for the first time on appeal. State v.
Lew. 156 Wash. 2d 709, 719-20, 132 P.3d 1076 (2006). This court reviews a jury
instruction de novo, within the context of the jury instructions as a whole. Levy.
156Wn.2dat721.
Cruz contends that instruction 7 should have used the word "alleged," as
in the "defendant's alleged commission" of a prior offense. Without that
modifying term, he argues, the instruction conveyed to jurors that the trial court
believed the testimony of sisters AB and FP. For this argument, Cruz relies
primarily on Dewey.
Dewey was a date rape case in which the defendant claimed the
intercourse was consensual. Dewey. 93 Wash. App. at 52. The trial court permitted
the State to present testimony by another woman concerning a previous incident
and gave a limiting instruction both before and after she testified. Before the
woman testified, the court directed the jury to consider the "incident" only for the
limited purposes the court specified. The second time, the court instructed the
jury that evidence had been introduced "'on the subject of the rape of [the other
woman] in June of 1994, for the limited purpose of showing if.. . .'" Dewey. 93
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No. 66709-2-1/14
Wn. App. at 58. The reviewing court concluded that in the jury's mind, the
previous incident could be a "rape" only if the previous victim's testimony were to
be believed, and thus the instruction allowed the jury to infer that the judge
accepted that testimony as true. Dewey. 93 Wash. App. at 59.
The instruction in Dewey characterized the previous act as a rape in no
uncertain terms, whereas instruction 7 in this case merely referred to the
testimony of the two sisters as "evidence" of a prior offense. Instruction 7 did not
need to contain the word "alleged" to avoid being a comment on the evidence. It
did not convey an opinion that the prior offense had been committed. Rather,
instruction 7 conveyed a straightforward message about how the jury was to
consider the evidence: it could be "considered for its bearing on any matter to
which it is relevant," but on its own, the evidence was "not sufficient to prove the
defendant guilty" of the crimes for which he was on trial.
The trial court's first instruction to the jury cautioned jurors against
interpreting anything the judge said as an expression of personal opinion:
It would be improper for me to express, by words or conduct, my
personal opinion about the value of testimony or other evidence. I
have not intentionally done this. If it appeared to you that I have
indicated my personal opinion in any way, either during trial or in
giving these instructions, you must disregard this entirely.
Instruction 1. To the extent that a strained reading of instruction 7 might suggest
an opinion that evidence is equivalent to a finding of guilt, we are confident that
instruction 1 would have dissuaded the jury from adopting such an interpretation.
Cruz also contends instruction 7 was misleading because the instruction
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No. 66709-2-1/15
referred to the offenses of "sexual assault or child molestation," rather than the
lesser offense of communication with a minor for immoral purposes to which
Cruz pleaded guilty. But Cruz did not object to instruction 7 on the basis that it
was misleading. Nonconstitutional claims regarding jury instructions are waived
if a defendant fails to object. RAP 2.5: State v. O'Hara. 167Wn.2d91, 103,217
P.3d 756 (2009).
Moreover, as the State correctly points out, it was not a conviction the
State sought to introduce at trial, but the evidence of the acts involving sisters AB
and FP, for the purpose of showing a common scheme or plan. Here, the
evidence supports the inference that Cruz sexually assaulted and molested the
sisters in a markedly similar manner to his other victims, regardless of what
lesser conviction he was able to negotiate at the time.
CHILD HEARSAY
Cruz contends the trial court erred in finding the earlier statements of
sisters AB and FP and their friend, JC, sufficiently reliable to be admitted under
the child hearsay statute. A statement by a child under age 10 describing sexual
contact is admissible if the court finds "the time, content, and circumstances of
the statement provide sufficient indicia of reliability." RCW 9A.44.120(1). A
court's decision to admit child hearsay statements is reversible when the court
abuses its discretion in weighing the factors articulated in State v. Ryan. 103
Wash. 2d 165, 691 P.2d 197 (1984). State v. Pham. 75 Wash. App. 626, 631, 879
P.2d 321 (1994). review denied. 126Wn.2d 1002 (1995). Cruz argues the court
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No. 66709-2-1/16
failed to consider each Ryan factor, failed to find each factor was substantially
satisfied, and failed to consider several of the factors.
The Ryan factors are nonexclusive and nonessential. State v. Karpenski.
94 Wash. App. 80, 108, 971 P.2d 553 (1999), abrogated on other grounds by State
v. C.J.. 148 Wash. 2d 672, 63 P.3d 765 (2003). "It is clear that not every factor
listed in Ryan needs to be satisfied before a court will find a child's hearsay
statements reliable" under the statute, and that the reliability factors need only be
substantially met. State v. Swan. 114Wn.2d 613, 652, 790 P.2d 610 (1990),
cert, denied. 498 U.S. 1046 (1991). The court here did not enter written findings,
but its oral ruling shows it adequately considered the Ryan factors. Cruz can
point to nothing in the record that shows the statements in question were
unreliable. We conclude the trial court did not abuse its discretion in admitting
the child hearsay testimony.
DNA COLLECTION FEE
Cruz contends the sentencing court lacked authority to impose a $100
DNA (deoxyribonucleic acid) collection fee because he committed the sexual
offenses before the effective date of the statute the trial court relied on, former
RCW 43.43.7541 (2008).
Unlike a previous version of the statute, which made imposition of the fee
dependent on the date of the offense, the statute in effect when Cruz was
sentenced required the court to impose the DNA collection fee for every
sentence. Laws of 2008, ch. 97, § 3. This version of the statute took effect on
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No. 66709-2-1/17
June 12, 2008. Cruz was convicted on December 8, 2010, and sentenced on
January 21, 2011. Because his sentence was imposed after the statute went into
effect, he is subject to the $100 DNA collection fee.
COMMUNITY CUSTODY CONDITION
As a condition of community custody, the sentencing court ordered that
Cruz "be required to submit to random searches of his person, residence or
computer by the Department of Corrections." Cruz argues the court exceeded its
statutory authority because this condition is not crime-related.
As a monitoring tool, the random search is authorized by former RCW
9.94A.120(9)(b)(vi) (1998), in effect at the time Cruz committed some of his sex
crimes. The statute provided that unless specifically waived, the sentencing
court "shall include the following conditions ... The offender shall submit to
affirmative acts necessary to monitor compliance with the orders of the court as
required by the department." Monitoring tools ordered to check compliance with
other conditions are not "crime related prohibitions." See State v. Riles. 135
Wash. 2d 326, 957 P.2d 655 (1998) (holding court had authority to order polygraph
testing for purpose of monitoring compliance with other conditions of community
placement), abrogated on other grounds by State v. Valencia, 169 Wash. 2d 782,
239 P.3d 1059 (2010). The court did not lack authority to impose this condition.
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No. 66709-2-1/18
STATEMENTS OF ADDITIONAL GROUNDS
Cruz filed multiple statements of additional grounds pursuant to RAP
10.10. The rule permits filing of "a" pro se statement of additional grounds. This
court accepted one statement filed in February 2013 that was professionally
translated. In it, Cruz raises a host of issues, including ineffective assistance of
counsel (for the time he was represented by appointed counsel), double jeopardy
violations, prosecutorial misconduct, speedy trial violations, and violations by the
State of its duty to disclose material information. Because Cruz's arguments are
unclear and do not adequately inform the court of the nature and occurrence of
the alleged errors, they do not merit further review. State v. Alvarado, 164 Wash. 2d
556, 569, 192 P.3d 345 (2008).
We also received from Cruz in May 2013 a handwritten statement, which
we have considered as a supplement. In it, Cruz appears to be arguing that the
trial court erred by denying his motion for a mistrial after the rooftop incident. This
issue was adequately covered by appellate counsel and does not warrant further
review.
Affirmed.
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WE CONCUR:
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