State Of Washington v. Ramon Dejesus Carrillo-alejo ( 2015 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71027-3-1
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
v.
RAMON CARRILLO-ALEJO,
Appellant. ) FILED: September 14.2015
Spearman, C.J. — On August 22, 2013, Ramon Carrillo-Alejo was
convicted of one count of rape of a child and two counts of child molestation. He
appeals, claiming that defense counsel was ineffective for failing to request a
limiting instruction for evidence admitted under ER 404(b). In a statement of
additional grounds, he also asserts claims of prosecutorial misconduct, abuse of
discretion, and a Brady1 violation. We find no error and affirm.
FACTS
Ramon Carrillo-Alejo and F.H.'s mother met when they were
coworkers. When Carrillo-Alejo needed a place to live, he arranged to rent a
room in the apartment shared by F.H. and her parents. He continued to live
with the family when they moved first to one and then to another residence.
1 Bradv v. Maryland. 373 U.S. 83, 83 S. Ct. 1194, 10 LEd.2d 215 (1963).
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F.H. was four or five years old when Carrillo-Alejo moved in with her family,
and she was almost nine when he moved out. F.H.'s parents often worked
two jobs and Carrillo-Alejo sometimes cared for F.H. while her parents were
at work. F.H. and her parents treated Carrillo-Alejo as a member of the family
and F.H. called him "uncle." Verbatim Report of Proceedings (Aug. 8, 2013)
at 44.
F.H. testified that Carrillo-Alejo began to sexually abuse her when she
was about seven years old. She described multiple incidents of Carrillo-Alejo
placing her hand on his penis, masturbating on her, and performing oral sex
on her. F.H. did not tell anyone about the abuse until the fall of 2012 when she
told her school counselor, Amy Cameron. Soon thereafter F.H. disclosed the
abuse to her mother. Her parents had noticed changes in her behavior the
previous summerwhen F.H. began having nightmares, refused to sleep alone in
her room, and refused to greet Carrillo-Alejo.
Ms. Cameron reported F.H.'s disclosures to Child Protective Services.
(CPS). Detective Angela Galetti followed up with the victim's family. Galetti
interviewed Carrillo-Alejo, using Officer Diego Moreno as Spanish interpreter.
Carrillo-Alejo acknowledged that he had lived with F.H.'s family and had taken
care of F.H. while her parents worked, but denied abusing her. Galetti had
Carolyn Webster, a child interview specialist employed by the prosecutor's office,
interview F.H. During the interview F.H. told Ms. Webster that Carrillo-Alejo had
also had sexual contact with two of her female friends.
No. 71027-3-1/3
Evidence of Prior Bad Acts
The State moved to admit evidence that Carrillo-Alejo had warned F.H. to
keep the abuse a secret and had given her gifts and candy. The State also
offered evidence that Carrillo-Alejo had engaged in collateral sexual contact
including kissing and massaging. The State argued the evidence was admissible
under ER 404(b)2 because the threats and gifts explained F.H.'s delay in
reporting the abuse and the collateral sexual contact showed Carrillo-Alejo's
lustful disposition toward F.H. The State also argued the evidence was
admissible as part of the res gestae of the crime. Defense counsel objected only
to the evidence of threats and gifts. The State did not seek admission of
evidence that Carrillo-Alejo had had sexual contact with any other girls.
After conducting an ER 404(b) analysis,3 the trial court admitted the
offered evidence, but limited the evidence of gifts, money, and candy to those
instances directly connected with incidents of abuse. Defense counsel did not
request a limiting instruction.
2 ER 404(b) states:
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.
3 To admit evidence offered under ER 404(b), the trial court must (1) "find by a
preponderance of the evidence that the misconduct occurred, (2) identify the purpose for
which the evidence is sought to be introduced, (3) determine whether the evidence is
relevant to prove an element of the crime charged, and (4) weigh the probative value
against the prejudicial effect." State v. Gresham. 173 Wash. 2d 405, 421, 269 P.3d 207 (2012)
(quoting State v. Vv Thang. 145 Wash. 2d 630, 642, 41 P.3d 1159 (2002)).
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At trial, the State elicited testimony from F.H. that on one occasion
Carrillo-Alejo molested both F.H. and her friend, Anna. Defense counsel did not
object to the testimony and cross-examined F.H. about the incident. Counsel also
questioned F.H. about an incident involving another friend, Kaley, that F.H. had
mentioned in her interview with Carolyn Webster but that F.H. did not testify to on
direct. Defense counsel took no exception to the court's instructions to the jury,
which did not include a limiting instruction regarding the 404(b) evidence or the
evidence concerning the other little girls.
DISCUSSION
Carrillo-Alejo argues that he received ineffective assistance because his
trial counsel did not request a limiting instruction for the ER 404(b) evidence
admitted by the trial court.4 He argues that the jury likely used the evidence of
collateral sexual activity with F.H. as evidence of propensity and the evidence of
threats and gifts to corroborate the veracity of F.H.'s testimony. The State argues
that defense counsel did not request a limiting instruction for tactical reasons and
that foregoing the instruction was not deficient performance. The State further
argues that Carrillo-Alejo has failed to show prejudice from the lack of a limiting
instruction.
We review an ineffective assistance of counsel claim de novo. State v.
White. 80 Wash. App. 406, 410, 907 P.2d 310 (1995). The defendant has the
burden of establishing ineffective assistance of counsel. State v. Humphries, 181
4 We note that on appeal the onlychallenge to F.H.'s testimony that Carrillo-Alejo had
sexual contact with other girls is raised in his Statement of Additional Grounds.
No. 71027-3-1/5
Wn.2d 708, 719-20, 336 P.3d 1121 (2014). To prevail on an ineffective
assistance of counsel claim, a defendant must show that (1) counsel's
performance "fell below an objective standard of reasonableness and (2) there
was prejudice, measured as a reasonable probability that the result of the
proceeding would have been different." Humphries, 181 Wash. 2d at 719-20 (citing
Strickland v. Washington. 466 U.S. 668, 687-88, 108 S. Ct. 2052, 80 LEd.2d 674
(1984)). Judicial review of an attorney's performance is highly deferential.
Strickland, 466 U.S. at 689. The performance of an attorney "is not deficient if it
can be considered a legitimate trial tactic." Humphries. 181 Wash. 2d at 720 (citing
State v. Hendrickson, 129 Wash. 2d 61, 77-78, 917 P.2d 563 (1996)).
Where evidence is admitted under ER 404(b), "the party against whom the
evidence is admitted is entitled, upon request, to a limiting instruction informing
the jury that the evidence is to be used only for the proper purpose and notfor
the purpose of proving the character of a person in order to show that the person
acted in conformity with that character." Gresham, 173 Wash. 2d at 420 (citing
State v. Saltarelli. 98 Wash. 2d 358, 362, 655 P.2d 697 (1982)). Absent a request,
the trial court is not required to give a limiting instruction. State v. Russell, 171
Wash. 2d 118, 123, 249 P.3d 604 (2011). Not requesting a limiting instruction may
be a tactical decision. Humphries. 181 Wash. 2d at 720 (citing cases in which a
limiting instruction was not requested in order to avoid drawing attention to the
404(b) evidence). The failure to request an instruction, by itself, does not
establish that counsel's performance was deficient. Id.
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Carrillo-Alejo fails to establish that his counsel's performance was
deficient because the record shows that her decision to not request a limiting
instruction was tactical. The case against Carrillo-Alejo turned on the credibility of
F.H. and whether the jury believed her testimony. Instead of seeking to limit the
use of the evidence regarding collateral sexual contact with F.H. and the other
girls, during both cross-examination and closing argument, defense counsel
chose to draw attention to it, highlight the inconsistencies in F.H.'s testimony, and
thereby impeach her credibility.
During cross-examination, defense counsel questioned F.H. about
inappropriate conduct with other little girls, and even elicited testimony about one
of F.H.'s friends that was not mentioned during direct examination. In closing
argument, defense counsel referred to this testimony and argued that the State's
failure to call the other little girls as witnesses, or to investigate their alleged
abuse, cast doubt on F.H.'s credibility. Similarly, defense counsel used the
evidence of gifts to tell a counter-narrative, suggesting that instead of evidence of
a crime, the gifts were simply indications that Carrillo-Alejo had been helpful to
the family. Because counsel's choice to not seek a limiting instruction for the ER
404(b) evidence was clearly a legitimate trial tactic, it does not constitute
deficient performance. ]d. at 720.
In his statement of additional grounds, Carrillo-Alejo asserts three further
claims: that prosecutorial misconduct violated his right to a fair trial, that the trial
court abused its discretion in admitting the 404(b) evidence, and that the State
withheld evidence in violation of Brady 373 U.S. 83 (requiring that prosecutors
No. 71027-3-1/7
disclose evidence in their possession or knowledge that is favorable to the
defense). The claims are without merit.
To prevail on a claim of prosecutorial misconduct, the defendant must
establish that the prosecutor's conduct was "'both improper and prejudicial in the
context of the entire record and the circumstances at trial.'" State v. Thorgerson.
172 Wash. 2d 438, 442, 258 P.3d 43 (2011) (quoting State v. Magers. 164 Wash. 2d
174, 191, 189 P.3d 126 (2008)). Ifthe defendant does not object to alleged
misconduct at trial, the issue of prosecutorial misconduct is waived "unless the
misconduct was 'so flagrant and ill-intentioned that it evinces an enduring and
resulting prejudice that could not have been neutralized by an admonition to the
jury.'" State v. Weber. 159 Wash. 2d 252, 270, 149 P.3d 646 (2006) (quoting State
v. Stenson. 132 Wash. 2d 668, 719, 940 P.2d 1239 (1997)).
Carrillo-Alejo alleges cumulative error based on four instances of
prosecutorial misconduct: introducing improper evidence about his conduct
with F.H.'s friend Anna, referring to Carrillo-Alejo's nationality, expressing
an opinion about Carrillo-Alejo's guilt in closing argument, and disparaging
counsel for the defense. Carrillo-Alejo acknowledges, as he must, that
because there was no objection to the alleged misconduct below, the higher
standard of review is applicable to these claims. But, except as to his claim
that the prosecutor referred to his nationality, Carillo-Alejo cites no authority
and makes no argument as to why or how the alleged misconduct was
flagrant and ill intentioned. Nor does he explain how a timely objection
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would have been inadequate to result in either exclusion of the evidence or
an instruction to the jury sufficient to mitigate any prejudice.
With regard to the reference to Carrillo-Alejo's nationality, we
conclude there was no impropriety. A prosecutor may not refer to a
defendant's race or nationality in order to imply that a member of
defendant's race is more likely than a member of a different race to commit
the crime charged. State v. Torres. 16 Wash. App. 254, 257, 554 P.2d 1069
(1976). References to race or nationality that appeal to the jury's prejudices
are likewise improper. State v. Belgarde. 110 Wash. 2d 504, 507, 755 P.2d
174 (1988).
In this case, Carrillo-Alejo's nationality was mentioned only in
passing during F.H.'s testimony when she stated that she did not disclose
the abuse because Carrillo-Alejo had warned her to stay quiet and told her
that he had killed people "in his place ... in Ondoda." VRP (Aug. 20, 2013)
at 59-60. During closing argument, the prosecutor made reference to this
testimony to explain why F.H. had delayed in disclosing the abuse. These
brief mentions of Carrillo-Alejo's nationality did not appeal to the jury's
prejudice or imply that a member of his nationality was more likely to
commit the crime charged than a person of another nationality. The
remarks were not improper.
Accordingly, we reject each of Carrillo-Alejo's claims of prosecutorial
misconduct because either he waived them or failed to establish misconduct.
Consequently, his claim of cumulative error also fails.
8
No. 71027-3-1/9
Carrillo-Alejo next claims that the trial court abused its discretion in
admitting the 404(b) evidence. We review evidentiary decisions for abuse
of discretion. In re Pers. Restraint of Duncan. 167 Wash. 2d 398, 402, 219
P.3d 666 (2009). To admit 404(b) evidence, the trial court must (1) find by
a preponderance of the evidence that the prior misconduct occurred; (2)
identify the purpose for which the evidence is offered; (3) determine
whether the evidence is relevant; and (4) weigh the probative value
against the risk of unfair prejudice. State v. Gresham, 173 Wash. 2d at 421.
The trial court properly performed this analysis. The trial court questioned
the prosecutor for the purpose of the evidence, reviewed the transcript of
F.H.'s interview with the child interview specialist, determined that the
evidence was relevant, weighed its probative value against any prejudicial
effect, and admitted only the evidence directly connected to incidents of
abuse. We find no abuse of discretion.
Lastly, Carrillo-Alejo claims that the State suppressed evidence in
violation of Brady. To establish a Brady violation, a defendant must
demonstrate that (1) the evidence at issue is favorable to the accused; (2)
the evidence was willfully or inadvertently suppressed by the State; and
(3) prejudice resulted. Strickler v. Greene. 527 U.S. 263, 281-82, 119
S. Ct. 1936, 144 LEd.2d 286 (1999); State v. Mullen. 171 Wash. 2d 881, 895,
259 P.3d 158 (2011) (quoting and explaining the Strickler test). Carrillo-
Alejo's claim concerns a report prepared by F.H.'s school counselor, Amy
Cameron. Ms. Cameron testified on direct examination that after speaking
No. 71027-3-1/10
with F.H. she "immediately called Child Protective Services." VRP (Aug.
19, 2013) at 21. On cross-examination, counsel for the defense asked Ms.
Cameron if she kept a written record or made a written report of the
incidents involving CPS. Ms. Cameron replied "[wjell, I - I write up a report
that goes to our district office, and the CPS report goes in ... I write -I
write up what I have reported to CPS." VRP (Aug. 19, 2013) at 24.
Carrillo-Alejo argues that this report was suppressed by the State in
violation of Brady. The record is inadequate for us to consider this issue.
There is no indication whether Ms. Cameron's report is favorable to
Carrillo-Alejo or if the State knew of the report or ever had it in its
possession. Absent such evidence, we are unable to determine whether a
Brady violation occurred.
Affirmed.
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