State Of Washington, Res. v. Francisco Javier Valdivia-enriquez, App. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
No. 77414-0-I
Respondent,
ORDER GRANTING MOTION
v. FOR RECONSIDERATION,
WITHDRAWING OPINION,
FRANCISCO JAVIER VALDIVIA- AND SUBSTITUTING OPINION
ENRIQUEZ,
Appellant.
Respondent State of Washington moved for reconsideration of the opinion filed in
the above matter. Appellant Francisco Valdivia-Enriquez filed a response. The court
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opinion should be withdrawn, and a substitute opinion be filed.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 respondent’s motion for reconsideration is granted. It is further
ORDERED that the opinion filed on May 4, 2020, is withdrawn and a substitute
unpublished opinion be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 77414-0-I
Respondent, DIVISION ONE
v.
FRANCISCO JAVIER VALDIVIA- UNPUBLISHED OPINION
ENRIQUEZ,
Appellant.
CHUN, J. — A jury convicted Francisco Javier Valdivia-Enriquez of one
count of rape of a child in the first degree and one count of rape of a child in the
second degree. The charges stemmed from incidents occurring years earlier
when the victim, J.M.A.H., was a child. By the time of the charges, J.M.A.H. was
20 years old. On appeal, Valdivia-Enriquez claims (1) the trial court erred in
denying his motion to admit evidence of J.M.A.H.’s juvenile criminal record, and
(2) the State engaged in prosecutorial misconduct by vouching for the credibility
of J.M.A.H. We affirm. However, we remand the case for the trial court to strike
the DNA collection fee from the Judgment and Sentence.1
I. BACKGROUND
When he was 20 years old, J.M.A.H. had a sexual encounter with his
girlfriend that caused bad memories to resurface. J.M.A.H then revealed to his
1
This matter comes to us on remand from our Supreme Court for reconsideration
in light of State v. Arndt, 194 Wash. 2d 784, 453 P.3d 696 (2019).
No. 77414-0-I/2
girlfriend that his former soccer coach and friend, Valdivia-Enriquez, molested
and raped him as a child. His girlfriend convinced J.M.A.H. to report the abuse to
the police. The State charged Valdivia-Enriquez with one count of rape of a child
in the first degree and one count of rape of a child in the second degree.
Prior to trial, Valdivia-Enriquez moved to admit evidence of J.M.A.H.’s
lengthy juvenile criminal record, including multiple adjudications for theft-related
residential burglary, as well as an adjudication for possession of stolen property
and theft of a firearm. Valdivia-Enriquez requested admission of this evidence
under ER 609(d) and ER 404(b) and sought to admit this evidence to
demonstrate that J.M.A.H. made the accusations of sexual assault to repair the
family relationships strained by his prior juvenile criminal behavior. Valdivia-
Enriquez also hoped to admit the juvenile convictions for the jury to evaluate and
assess J.M.A.H.’s credibility. The trial court denied admission of this evidence.
A jury convicted Valdivia-Enriquez as charged. The trial court sentenced
Valdivia-Enriquez to a standard range sentence and imposed legal financial
obligations, including a $100 DNA collection fee.
Valdivia-Enriquez appeals.
II. DISCUSSION
A. Right to Present a Defense
Valdivia-Enriquez argues the trial court deprived him of the right to present
a defense by prohibiting him from impeaching J.M.A.H. with evidence of prior
juvenile convictions for crimes of dishonesty. We disagree.
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The Sixth Amendment to the United States Constitution and article 1,
section 22 of the Washington Constitution grant criminal defendants the right to
present a defense and the right to confront and cross-examine adverse
witnesses. State v. Hudlow, 99 Wash. 2d 1, 14-15, 659 P.2d 514 (1983). However,
the right to present a defense is not absolute. State v. Jones, 168 Wash. 2d 713,
720, 230 P.3d 576 (2010). It is subject to the established rules of evidence.
State v. Lizarraga, 191 Wash. App. 530, 553, 364 P.3d 810 (2015). “Defendants
have a right to present only relevant evidence, with no constitutional right to
present irrelevant evidence.” Jones, 168 Wash. 2d at 720 (emphasis omitted).
Additionally, courts may deny cross-examination if the evidence sought is vague,
argumentative, or speculative. State v. Darden, 145 Wash. 2d 612, 621, 41 P.3d
1189 (2002).
For claims alleging a violation of the right to present a defense, “we apply
[a] two-step review process to review the trial court’s individual evidentiary rulings
for an abuse of discretion and to consider de novo the constitutional question of
whether these rulings deprived [the defendant] of [their] Sixth Amendment right to
present a defense.” State v. Arndt, 194 Wash. 2d 784, 797-98, 453 P.3d 696
(2019).
1. Review of Evidentiary Rulings for Abuse of Discretion
a. Credibility
Valdivia-Enriquez requested admission of J.M.A.H.’s prior juvenile
adjudications to impeach credibility. ER 609 governs the admissibility of prior
convictions for crimes of dishonesty for purposes of attacking credibility.
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ER 609(d) generally bars admission of evidence of juvenile adjudications to
impeach credibility. But the court may allow evidence of juvenile convictions “if
conviction of the offense would be admissible to attack the credibility of an adult
and the court is satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence.” ER 609(d). This requires an
“indication of special reasons favoring admissibility” amounting to “a positive
showing that the prior juvenile record is necessary to determine guilt.” State v.
Gerard, 36 Wash. App. 7, 12, 671 P.2d 286 (1983). The trial court has broad
discretion on admissibility of juvenile adjudications sought solely for general
impeachment purposes. Gerard, 36 Wash. App. at 11.
Valdivia-Enriquez fails to establish any special reason favoring admission
of evidence otherwise inadmissible. Therefore, the trial court did not err in
finding the prior adjudications unnecessary for a fair determination of guilt or
innocence and properly exercised its broad discretion to deny admission of the
evidence.
b. Motive
Valdivia-Enriquez also sought admission of the juvenile convictions to
support his defense that J.M.A.H. made the allegations of molestation in order to
improve J.M.A.H.’s strained relationship with his family. Valdivia-Enriquez argued
the convictions showed motive:
As far as for motive, it’s on the basis of why he and his family might
be on bad footing and why, as a way to get back on better footing
with his family, it would explain, “All my behavior was kind of based
on the fact that Mr. Valdivia had done this horrible things [sic] to me,
and that’s why I had all these indiscretions and everything,” and now
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No. 77414-0-I/5
that he has revealed it, his life -- his relationship with his family is
much better and they moved along and things like that.
The trial court determined the evidence lacked a sufficient nexus with the alleged
motive, and that the prejudicial impact outweighed the very low probative value of
the evidence.
ER 404(b) allows admission of evidence of other crimes to show motive.
Prior juvenile adjudications are also admissible to show bias or motive. Gerard,
36 Wash. App. at 11. Even when relevant to prove motive, the trial court must
evaluate the evidence under ER 403 and “exercise its discretion in excluding
relevant evidence if its undue prejudice substantially outweighs its probative
value.” State v. Fuller, 169 Wash. App. 797, 829-30, 282 P.3d 126 (2012).
Valdivia-Enriquez requested admission of J.M.A.H.’s prior juvenile
adjudications to show motive. Upon inquiry from the trial court, Valdivia-Enriquez
acknowledged he lacked any proof that the prior convictions led to the strained
relationship between J.M.A.H. and his family. The evidence of motive was
“inference with a few steps” from anticipated testimony of an “icy” family
relationship prior to J.M.A.H.’s disclosure of the abuse. Valdivia-Enriquez also
admitted that he could raise this defense without the juvenile adjudications: “I
could do that without convictions. I believe that that provides a little bit of a
further story.”
Based on these statements, J.M.A.H.’s prior juvenile adjudications were
not essential to Valdivia-Enriquez’s defense. The trial court properly found very
low or “non-existent” probative value of the juvenile adjudications. Moreover, the
link between J.M.A.H.’s juvenile record and the alleged motive was merely
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No. 77414-0-I/6
speculation. Denial of this speculative evidence falls within the court’s discretion.
See Darden, 145 Wash. 2d at 621. The trial court did not abuse its discretion by
denying admission of the juvenile adjudications as evidence of motive.
2. De Novo Review of Right to Present a Defense
Having determined that the trial court did not abuse its discretion by
excluding the evidence of J.M.A.H.’s prior juvenile adjudications, we turn to the
constitutional question of whether these rulings deprived Valdivia-Enriquez of his
Sixth Amendment right to present a defense.
As stated above, a defendant’s right to present a defense is not absolute.
Courts must balance “the State’s interest in excluding evidence . . . against the
defendant’s need for the information sought to be admitted.” Arndt, 194 Wash. 2d
at 812. In certain instances, where evidence has high probative value, no state
interest is compelling enough to prevent admission of the evidence consistent
with the right to present a defense. Arndt, 194 Wash. 2d at 812. And our Supreme
Court determined that an evidentiary exclusion violated the Sixth Amendment
where it prevented the defendant from arguing their entire defense. Jones, 168
Wash. 2d at 721, 723-24.
Here, unlike in Jones, the court excluding evidence of J.M.A.H.’s prior
juvenile adjudications did not preclude Valdivia-Enriquez from presenting his
entire defense. Similar to Arndt, which involved limitations on expert testimony,
Valdivia-Enriquez was able to advance his defense theory despite the trial court’s
exclusion of evidence of J.M.A.H.’s prior juvenile adjudications. See Arndt, 194
Wash. 2d at 814; see also State v. Clark, 187 Wash. 2d 641, 653, 389 P.3d 462 (2017)
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No. 77414-0-I/7
(defendant remained able to offer evidence to support his theories
notwithstanding limitations on expert witness testimony). Valdivia-Enriquez’s
theory at trial was that J.M.A.H. lied about the sexual abuse to explain an
awkward sexual encounter with his girlfriend and continued to lie to improve his
relationship with his parents. To support this theory, Valdivia-Enriquez sought to
admit the evidence of J.M.A.H.’s prior juvenile adjudications to impeach his
credibility and to show a motive for him to continue to lie about the abuse. But
Valdivia-Enriquez was able to make these arguments even without evidence of
J.M.A.H.’s prior juvenile adjudications. For instance, in his opening argument,
Valdivia-Enriquez asked the jury to “[t]hink about the way in which a story starts
small and then balloons up” and to “tell the difference between someone who has
committed, like seriously committed to maintaining the story that they’ve been
telling . . . and someone who’s telling the actual facts as they occur.”
Valdivia-Enriquez also asserted that J.M.A.H. lied about the abuse in his
closing argument:
People tell big lies that they maintain for years and years that they
will take to their grave. People tell big lies that are so convincing that
they convince their friends and their family, that they can convince
crowds of strangers, that they can convince the entire nation that this
thing happened.
Valdivia-Enriquez then asserted that J.M.A.H. “need[ed] a very good reason for
why [he] reacted” the way he did after the sexual encounter with his girlfriend and
that the lie “start[ed] on a night of crisis in a young relationship.” Valdivia-
Enriquez contended that J.M.A.H. continued the lie because his “stern,
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No. 77414-0-I/8
authoritative father” had “finally loosened up a little bit” and his mother had “came
to him in tears, begging for forgiveness.”
Thus, Valdivia-Enriquez presented his defense that J.M.A.H. had lied
about the sexual abuse and provided a motive for his reason to lie. Indeed,
Valdivia-Enriquez acknowledged below that he could make his argument
regarding motive without evidence of J.M.A.H.’s prior juvenile adjudications.
Although the trial court limited the evidence with which Valdivia-Enriquez could
use to argue his defense theory, the court did not violate his Sixth Amendment
rights.
B. Prosecutorial Misconduct
Valdivia-Enriquez asserts the prosecutor engaged in misconduct that
deprived him of his right to a fair trial by vouching for the credibility of the sole
witness against him. The State contends the prosecutor did not express a
personal belief regarding the witness’s credibility. Instead, the State argues the
prosecutor drew reasonable inferences from the evidence. We agree with the
State.
The prosecutor referred to J.M.A.H. as credible on multiple occasions
during her closing argument. The record shows the prosecutor making
statements such as “Ladies and gentlemen, [J.M.A.H.] is credible, and the
reason why we know that the State proved this case beyond a reasonable doubt
really comes down to that,” and “It comes down to the fact that the credibility of
[J.M.A.H.] is without question. Without question.” Valdivia-Enriquez argues that
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No. 77414-0-I/9
these instances, as well as other examples discussed below, indicate
prosecutorial misconduct.
A defendant that claims prosecutorial misconduct must prove that the
prosecutor’s comments were both improper and prejudicial. In re Pers. Restraint
of Glasmann, 175 Wash. 2d 696, 704, 286 P.3d 673 (2012). A prosecutor’s
comments are prejudicial only if there is a “‘substantial likelihood the misconduct
affected the jury’s verdict.’” State v. Yates, 161 Wash. 2d 714, 774, 168 P.3d 359
(2007) (emphasis omitted) (quoting State v. McKenzie, 157 Wash. 2d 44, 52, 134
P.3d 221 (2006)). Where, as here, the defendant failed to object to an improper
remark below, such failure “‘constitutes a waiver of error unless the remark is so
flagrant and ill intentioned that it causes an enduring and resulting prejudice that
could not have been neutralized by an admonition to the jury.’” State v.
Thorgerson, 172 Wash. 2d 438, 443, 258 P.3d 43 (2011) (quoting State v. Russell,
125 Wash. 2d 24, 86, 882 P.2d 747 (1994)). “Jurors are presumed to follow the
court’s instruction.” In re Pers. Restraint of Phelps, 190 Wash. 2d 155, 172, 410
P.3d 1142 (2018).
Prosecutors have “wide latitude to draw and express reasonable
inferences from the evidence” in their closing arguments. State v. Robinson, 189
Wash. App. 877, 893, 359 P.3d 874 (2015). “The prejudicial effect of a
prosecutor’s improper comments is not determined by looking at the comments
in isolation but by placing the remarks ‘in the context of the total argument, the
issues in the case, the evidence addressed in the argument, and the instructions
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No. 77414-0-I/10
given to the jury.’” State v. McKenzie, 157 Wash. 2d 44, 52, 134 P.3d 221 (2006)
(quoting State v. Brown, 132 Wash. 2d 529, 561, 940 P.2d 546 (1997)).
Prosecutorial misconduct by vouching occurs when the prosecutor either
(1) places the prestige of the government behind the witness, or (2) indicates that
information that was not presented to the jury supports the witness’s testimony.
Robinson, 189 Wash. App. at 892–93. Further, there is a difference between the
prosecuting attorney’s individual opinion presented as an independent fact, and
“‘an opinion based upon or deduced from the testimony in the case.’” McKenzie,
157 Wash. 2d at 53 (emphasis omitted) (quoting State v. Armstrong, 37 Wash. 51,
54–55, 79 P. 490 (1905)).
Valdivia-Enriquez cites an instance in which the prosecutor, as part of a
PowerPoint presentation, presented a slide entitled “[J.M.A.H.] is credible.” In
isolation, such a title may suggest prosecutorial vouching, but the content and
context of the slide shows otherwise. Following the title, the prosecutor listed
four bullet points as a means to guide the jury during her discussion of the
witness’s credibility. The bullet points, “NO MOTIVE,” “Disclosure,”
“Corroboration,” and “Demeanor,” mirrored the prosecutor’s talking points as she
asserted why the evidence supported the witness’s credibility. The prosecutor
cited examples from the record that demonstrated the lack of “bad blood”
between Valdivia-Enriquez and the witness’s family to emphasize the lack of
motive, as well as the dubious likelihood that the witness could provide “the
performance of a lifetime” and continuously feign distraught emotions, such as
crying, as he recounted the events. This allowed the jury to consider the
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evidence and make inferences about credibility and in turn did not demonstrate
prosecutorial vouching for J.M.A.H.’s credibility.
Valdivia-Enriquez also asserts the prosecutor vouched for the witness
through statements such as “we know [J.M.A.H.] is credible” and that the
witness’s credibility was “without question.” Again, the court cannot view such
comments in isolation. When viewed in context, the comments express
reasonable inferences from the evidence. For example, the prosecutor followed
“we know [J.M.A.H.] is credible” with a reminder of the situation in which the
witness first disclosed the incident to emphasize the witness’s motivation:
. . . [J.M.A.H.] was in the middle of an act with his girlfriend that was
supposed to be interesting and fun and new, but it went horribly south
when he hurt her and all of these memories flooded back into his
back [sic]. He described a physical, visceral response to seeing pain
and fear in his girlfriend’s eyes because he was placing himself in
the shoes of the person who had done it to him.
The prosecutor used this example along with the surrounding evidence following
the incident to corroborate the credibility of the witness.
Further examples, such as the witness’s desire to quit soccer, his
emotional withdrawal from family, and his motivation for disclosing the crime,
provided the jury with evidence to consider as it evaluated the witness’s
credibility. The prosecutor addressed credibility by examining the witness’s
retelling of the incident and resulting emotional behavior after the incident, and
thereby did not inappropriately vouch for the witness’s credibility.
In light of the foregoing, we conclude that the prosecutor did not place the
prestige of the government behind the witness or cite information not provided as
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evidence to the jury in order to support the witness’s testimony. As a result,
Valdivia-Enriquez fails to prove prosecutorial misconduct through vouching.
Even if Valdivia-Enriquez were able to successfully argue the comments
were improper, he fails to prove his additional burden that the prejudice resulting
from the prosecutor’s flagrant and ill-intentioned comments was not curable by a
jury instruction. Valdivia-Enriquez argues that the comments would unduly
influence the jurors. However, the prosecution reminded the jury during its
closing argument that it was up to the jury to “go back into that room to determine
who was credible, what testimony was credible.” Furthermore, the jury
instructions in this case ordered jurors to disregard remarks and comments of
any lawyer if they are inconsistent with the law or evidence, while also reminding
jurors that the lawyers’ statements are not evidence. In addition, the jury
instructions informed jurors that they are “the sole judges of the credibility of each
witness.”
Had Valdivia-Enriquez objected to the prosecutor’s statements during
closing arguments, the trial court could have reiterated these jury instructions.
Because jurors are presumed to follow the court’s instructions, and because the
instructions told the jurors to consider themselves the only determiners of
credibility, Valdivia-Enriquez cannot demonstrate that the comments resulted in
prejudice.
C. DNA Fee
Valdivia-Enriquez and the State both request remand for the trial court to
strike the $100 DNA collection fee because the State previously collected
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Valdivia-Enriquez’s DNA due to prior convictions. A legislative amendment
effective June 7, 2018, eliminated the mandatory $100 DNA collection fee where
“the state has previously collected the offender’s DNA as a result of a prior
conviction.” RCW 43.43.7541. This amendment applies prospectively to
Valdivia-Enriquez due to his pending direct appeal at the time of the
amendment’s enactment. State v. Ramirez, 191 Wash. 2d 732, 747, 426 P.3d 714
(2018). As a result, we remand for the trial court to strike the DNA fee from the
Judgment and Sentence.
Affirmed. Remanded to strike the DNA collection fee.
WE CONCUR:
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