State Of Washington v. Mario A. Ontiverios ( 2016 )

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2016NOV -7 Anfi:l*5
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 72941-1-1
Respondent, UNPUBLISHED OPINION
v.
MARIO ALBERTO ONTIVEROS,
Appellant. FILED: November 7, 2016
Dwyer, J. — Mario Ontiveros appeals from the judgment entered on a
jury's verdict finding him guilty of two counts of child molestation in the first
degree, two counts of assault in the fourth degree, and one count of
communicating with a minor for immoral purposes. He contends that the trial
court violated his constitutional right to present a defense, violated his
constitutional right to be present at all critical stages of the trial, admitted
irrelevant and prejudicial testimony, and violated his right to a jury trial. Finding
no error, we affirm.
I
In 2004, 16-year-old Ontiveros moved from Texas to Washington to live
with his sister, Autumne, and her husband, Brad West.1 Ontiveros resided in
1 Because Autumne and Brad share a surname they are referred to by their first names
for clarity.
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Washington for approximately two years. During this time, Brad's daughter from
a previous marriage, K.W., also stayed with her father every other weekend
during the school year, some holidays, and various weeks during the summer.
One afternoon in 2006, when she was 11 years old, K.W. called her
mother and asked to be picked up early from her father's house. During the drive
home, K.W. told her mother that, earlier that same day, Ontiveros told her that he
was masturbating, asked her if she knew how to masturbate, and suggested that
he could show her how. At that time, K.W. stated that Ontiveros had not touched
her. When they arrived home, K.W.'s mother called Brad, her ex-husband, and
discussed what K.W. had told her. Brad confronted Ontiveros, who, Brad
testified, admitted to having the aforementioned conversation with K.W. Brad
told Ontiveros to leave the house. Ontiveros returned to Texas soon after.
K.W. testified that she struggled with depression in high school and, as a
result, began to cut herself. K.W. revealed her self-harm to her mother,
explaining that she had not told her mother about everything that Ontiveros did to
her when she was younger. K.W. asked her mother for counseling. K.W. began
seeing a therapist, Logan Roth, and, during their first session, told Roth that a
man living in her father's house had touched her breasts and entered her room
every night when she was younger. Roth did not report the abuse to the police
or child protective services. K.W. voluntarily ended her treatment with Roth and
later reported to her high school counselor that she had been molested. This
counselor reported the allegations to the police.
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In August of 2012, police questioned Ontiveros about the incidents over
the telephone. Ontiveros first denied having any sexual contact with K.W. but,
after repeated questioning, later admitted that K.W. may have seen him
masturbating once and that he may have touched her breasts a few times while
tickling her. Two years later, Ontiveros was charged with four counts of child
molestation in the first degree and one count of communication with a minor for
immoral purposes.
The jury found Ontiveros guilty of two counts of child molestation in the
first degree, two counts of assault in the fourth degree, and one count of
communication with a minor for immoral purposes. The trial court imposed a
standard-range sentence of 78 months to life in prison on the child molestation
convictions. No jail time was imposed on the assault or communication
convictions. Ontiveros timely appealed.
II
Ontiveros first contends that the trial court violated his constitutional right
to present a defense. This is so, he asserts, because the court excluded his
expert witness's testimony regarding false confessions. Ontiveros's argument is
unavailing.
Trial courts have broad discretion in determining whether expert testimony
should be admitted. We review such rulings for abuse of discretion. State v.
Rafav. 168 Wash. App. 734, 783-84, 285 P.3d 83 (2012). "A court's decision is
manifestly unreasonable if it is outside the range of acceptable choices, given the
facts and the applicable legal standard; it is based on untenable grounds if the
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factual findings are unsupported by the record; it is based on untenable reasons
if it is based on an incorrect standard or the facts do not meet the requirements
of the correct standard." In re Marriage of Littlefield. 133 Wash. 2d 39, 47, 940 P.2d
1362 (1997). While the right to present defense witnesses is a fundamental
element of due process, State v. Franklin. 180 Wash. 2d 371, 382, 325 P.3d 159
(2014); State v. Ellis. 136 Wash. 2d 498, 527, 963 P.2d 843 (1998), the right is not
absolute. The proffered evidence must be relevant and helpful to the trier of fact.
Ellis. 136Wn.2dat533.
ER 702 regulates expert witness testimony and provides, in pertinent part,
"[i]f scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise."
Prior to trial, Ontiveros sought to introduce the trial testimony of Dr.
Deborah Connolly. Connolly was prepared to testify about false confessions
generally. Additionally, Ontiveros contended that Connolly would have testified
specifically to: (1) various interrogation techniques used by the detective during
his interview with Ontiveros, including the "guilt presumptive" and "minimization
and sequential requests" techniques; (2) her opinion that Ontiveros "appeared to
be receptive to minimization and option-posing strategies"; and (3) her opinion
that Ontiveros's confession should be "treated with great caution."2
2Connolly's written report discusses several studies and academic papers, which
together constituted the offer of proof before the trial court. The portions of these studies that
related to Ontiveros's confession, and to which Connolly was prepared to testify, were included in
her report. At no time prior to preparing the report did Connolly speak to Ontiveros.
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We have previously examined expert testimony regarding false
confessions in State v. Rafav. 168 Wash. App. 734, a case referenced by the trial
court in ruling Connolly's testimony inadmissible. In Rafav. we upheld the trial
court's order excluding expert testimony on false confessions, in part, because
the testimony would not "provide any method for the trier of fact to analyze the
effect of the general concepts on the reliability of the defendants' confessions."
168 Wash. App. at 789.
Connolly's report describes guilt presumptive, confrontational, and
minimization/option-posing interrogation techniques and briefly explains the
relevant research relating to such techniques. Connolly opines that Ontiveros
was susceptible to the interrogation techniques used by the detective who
questioned him, and offers that "some individuals interpret [minimization and
sequential requests] as implicit offers of leniency. When it becomes clear to an
individual that continued denial is futile, and when the individual is offered a way
to minimize culpability, a confession or admission is a reasonable option."
Connolly's report also includes a study on academic dishonesty in which
various interrogation techniques—or no techniques at all—were used on
participants in order to determine which techniques produced higher rates of
false confessions. When no tactics were used, 46 percent of the guilty
participants confessed and 6 percent of the innocent participants confessed.
When the interrogators used minimization and leniency tactics, 87 percent of the
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guilty participants confessed and 43 percent of the innocent participants
confessed.3
Although Connolly opines that Ontiveros "was amenable" to these
strategies, the report does not state (1) that Ontiveros was susceptible to falsely
confessing, or (2) that any interrogation technique used on Ontiveros was more
likely to produce false confessions than legitimate confessions. The minimization
and leniency techniques Connolly was prepared to testify to may produce more
false confessions than other techniques, but the report indicates that they also
produce more legitimate confessions.
There is nothing in the record to indicate that Connolly would have
testified that, in her opinion, Ontiveros's confession was false. At most, the
testimony would have been that the criticized techniques result in more
confessions (both true and false). Because of this, the testimony would have
merely advised the jury to treat the confession with caution.4 Ontiveros has not
identified anything in Connolly's report that would have assisted the jurors in
analyzing the evidence before them.
In reaching a verdict, the jury was tasked with deciding whether Ontiveros
was guilty or not guilty and, thus, whether his confession was true or false.
Connolly's testimony would not have assisted the jury in making such a
determination. Moreover, although Connolly would have testified that the
3The report presumes—but does not explain how—the results of a study on academic
dishonesty are relevant to police interrogations.
4Although courts may instruct juries to treat certain testimony with caution, such as
accomplice testimony, State v. Harris, 102 Wash. 2d 148, 685 P.2d 584 (1984), such an instruction
sets forth a legal principle. This differs from the testimony as to facts expected from a witness.
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interview techniques used on Ontiveros are likely to increase the frequency of
confessions, this testimony would not have provided the jury with a method to
distinguish between false confessions and legitimate confessions. Such
testimony does not make the existence of a fact at issue more or less likely to be
true. ER401. Thus, it was irrelevant. ER402.
The trial court's ruling purported to exclude Connolly's testimony on the
basis that Connolly does not know if Ontiveros is innocent: "[s]o the testimony is
only relevant if the person, in fact, was innocent. And that is, of course, the
ultimate question for the jury anyway, and so it is not useful to the trier of fact."
Although the trial court relied on Rafav in issuing its ruling, its stated reason for
excluding the testimony misstates the scope of Rafav's holding.
Under the trial court's reasoning, expert testimony regarding false
confessions might never be admissible. To the contrary, such testimony may be
properly admitted in certain circumstances. For instance, such testimony may be
helpful to the jury in situations where the defendant has a specific personality or
mental disorder that renders them particularly vulnerable to coercive interrogation
methods. See United States v. Shay. 57 F.3d 126, 133 (1st Cir. 1995)
("[W]hether or not the jury had the capacity to generally assess the reliability of
these statements in light of the other evidence in the case, it plainly was
unqualified to determine without assistance the particular issue of whether [the
defendant] may have made false statements against his own interests because
he suffered from a mental disorder.").
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We do not go so far as to say that expert testimony on false confessions
may only be admitted in matters in which the defendant suffers from a personality
or mental disorder. However, Connolly's proposed testimony would not have
presented the jury with any information that would have aided the jurors in
determining a fact in issue. Thus, the trial court's ruling was within the range of
acceptable choices afforded to it. State v. Sisouvanh. 175 Wash. 2d 607, 623, 290
P.3d 942 (2012); Littlefield, 133 Wash. 2d at 47. There was no error.
Ill
Ontiveros next contends that the trial court violated his constitutional right
to be present during all critical stages of the trial. This is so, he asserts, because
the trial court and the attorneys discussed and formulated answers to questions
from the deliberating jury at a time when Ontiveros was not in the courtroom.
Both the federal and state constitutions provide criminal defendants with a
right to be present during critical stages of the trial. U.S. Const, amend. XIV, §
1; Wash. Const, art. I, § 22. Pursuant to Washington's constitution, this right
applies at any stage of the trial when the defendant's substantial rights may be
affected. State v. Irbv, 170 Wash. 2d 874, 885-86, 246 P.3d 796 (2011). A
defendant does not have a right to be present during a conference between the
court and counsel on legal matters, unless those matters require the resolution of
disputed facts. In re Pers. Restraint of Lord. 123 Wash. 2d 296, 306, 868 P.2d 835
(1994).
During its deliberations, the jury sent seven written inquiries to the trial
judge. The various inquiries asked about the prosecutor's charging decisions
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No. 72941-1-1/9
and inquired about specific pieces of evidence. The trial court notified the
attorneys, who appeared in court, and the judge and counsel formulated answers
to the jury's questions. Ontiveros was not present during this discussion. After
receiving input from counsel, the court responded to the jury's questions
regarding the prosecutor's charging decisions by stating, "[t]he Court cannot
comment on charging decisions." Regarding the jury's evidentiary questions, the
court answered, "[questions about the facts of the case concern evidence. The
parties having rested, no further evidence will be introduced."
After the trial court sent these responses to the jury, Ontiveros's counsel
requested that the court provide additional answers to the jury. Specifically,
Ontiveros's counsel requested that the court instruct the jury that the charges are
not evidence, that the jury can consider both the evidence and lack of evidence,
and that the State has the burden to prove all elements of each offense beyond a
reasonable doubt.5 The court did not respond to this request because, at that
time, the jurors indicated that they had reached a verdict. Before hearing the
verdict, counsel for Ontiveros stated that Ontiveros had not been present for the
formulation of the court's responses to the jury's questions. There was no
objection interposed at this time, as counsel for Ontiveros was unsure whether
such a discussion constituted a critical stage of the trial requiring Ontiveros's
presence. After the adverse verdicts, Ontiveros moved for a new trial on the
ground that he was not present for the formulation of the answers which, he
5 The trial court properly issued these instructions before deliberations began.
Ontiveros's counsel thus requested that the court instruct the jury on these matters a second
time.
No. 72941-1-1/10
asserted, constituted a critical stage of the trial. The motion for a new trial was
denied.
On appeal, Ontiveros again asserts that the trial court's formulation of the
responses to the jury's inquiries outside of his presence violated his constitutional
right to be present for all critical stages of the trial. This is so, he contends, for
two reasons: (1) because any communication between a judge and the jury
during a critical stage of the trial is prohibited, and (2) because the jury's
questions were factual in nature and formulating a proper answer required a
knowledge of the facts of the case. Ontiveros is wrong on both counts.
Ontiveros's first contention is without merit. Ontiveros has not established
that this was a critical stage of the trial that required his personal presence. The
trial court's responses to the jury questions herein were akin to supplemental jury
instructions, which may properly be given during deliberation. CrR 6.15(f); State
v. Becklin. 163 Wash. 2d 519, 529-30, 182 P.3d 944 (2008). A trial court's decision
to give or decline to give supplemental jury instructions is within its discretion.
State v. Brown. 132 Wash. 2d 529, 612, 940 P.2d 546 (1997). Providing the jury
with requested information on a point of law is not a critical stage that required
Ontiveros's personal presence in addition to that of his counsel. State v. Brown,
29 Wash. App. 11, 16, 627 P.2d 132 (1981): State v. Jury. 19 Wash. App. 256, 270,
576P.2d 1302 (1978).6
6 Ontiveros relies on State v. Caliquri, 99 Wash. 2d 501, 664 P.2d 466 (1983), to support his
assertion that any communication between a judge and the juryoutside of the presence of the
defendant is prohibited. The comparison is inapposite. In Caliquri, the trial court replayed tape
recordings for the deliberating jury—essentially giving the jury an opportunity to perceive the
evidence anew out of the presence of the defendant, including statements that had originally
been redacted. The trial court herein provided the jury with no such opportunity.
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As for Ontiveros's second contention, although the jury asked questions
regarding the facts, the trial court's responses were not factual in nature. Rather,
the court's answers set forth legal principles. Moreover, the trial court's
responses were "entirely neutral". State v. Russell. 25 Wash. App. 933, 948, 611
P.2d 1320 (1980). The court's responses to the jury's inquiries were "negative in
character and conveyed no affirmative information." State v. Safford. 24 Wn.
App. 783, 794, 604 P.2d 980 (1979). Thus, there was no error.
Ontiveros asserts that, were he personally present when the trial court
formulated its answers to the jury's questions, his attorney may have consulted
with him and may have asked for additional instructions before the jury finished
deliberating. This is pure speculation. Indeed, the supplemental jury instructions
eventually requested by defense counsel were duplicative of instructions already
given. The trial court could have properly refused to reissue those instructions
even if the request to do so had been timely made. State v. Hiqhtower. 36 Wn.
App. 536, 549, 676 P.2d 1016 (1984). Finally, the event itself (issuing
supplemental jury instructions) is not a critical stage. Jury, 19 Wash. App. at 270.
The trial court did not err in responding to the jury's inquiries.
IV
Ontiveros next asserts that the trial court erred by permitting testimony by
K.W. and her therapist, Roth, regarding K.W.'s self-harm and K.W.'s opinion as
to why she engaged in self-harm. This is so, he contends, because permitting
the aforementioned testimony was prejudicial, irrelevant, and materially affected
the outcome of the case.
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No. 72941-1-1/12
The trial court has broad discretion in balancing the probative value of
evidence against its prejudicial impact and we will not reverse the trial court's
decision absent a manifest abuse of that discretion. State v. Rivers. 129 Wash. 2d
697, 710, 921 P.2d 495 (1996); State v. Greathouse. 113 Wash. App. 889, 918, 56
P.3d 569 (2002).
Pursuant to ER 402, only relevant evidence is admissible at trial. ER 401
defines "relevant evidence" as "evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without evidence." However,
even relevant evidence must be excluded when its probative value is
substantially outweighed by the danger of unfair prejudice. ER 403. "'"[U]nfair
prejudice" is that which is more likely to arouse an emotional response than a
rational decision by the jury'" and "suggestfs] a decision on an improper basis."
State v. Cronin. 142 Wash. 2d 568, 584, 14 P.3d 752 (2000) (first alteration in
original) (quoting State v. Gould. 58 Wash. App. 175, 183, 791 P.2d 569 (1990)).
Prior to trial, Ontiveros moved to exclude evidence that K.W. had engaged
in self-harm, as well as K.W.'s opinion that her self-harm was a result of her
sexual abuse. The trial court ruled that K.W. could testify as to her self-harm,
and what she believed to be her reasons for harming herself, in order to explain
why she entered therapy. At trial, K.W. testified that she engaged in self-harm to
cope with the trauma of her sexual abuse. Similarly, Roth testified at trial that
K.W. disclosed her self-harm during their first therapy session and that K.W.
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No. 72941-1-1/13
believed her depression, self-harm, and inability to sleep were caused by her
sexual abuse.
On cross-examination, counsel for Ontiveros questioned Roth as to why
some people might engage in self-harm. Roth responded, "[t]hat would have to
come from them directly." On re-direct, Roth stated that she had not reached
any conclusions as to why K.W. was harming herself, but believed that a person
is able to determine for themselves why they are doing so.
Ontiveros asserts that the aforementioned testimony was irrelevant and
prejudicial. He also takes issue with the opinion testimony offered by Roth
despite the trial court's ruling in limine that Roth could not testify as an expert
witness.7
We review the trial court's decisions on this testimony to determine
whether the decisions were manifestly unreasonable, based on untenable
grounds, or made for untenable reasons. Sisouvanh, 175 Wash. 2d at 623; Gould,
58 Wash. App. at 180. The trial judge ruled that K.W.'s testimony regarding her
self-harm was admissible on the question of why she entered therapy.8 Roth's
testimony was limited to that which K.W. told her during therapy and was
admitted for the same purpose as K.W.'s testimony. The trial court's ruling is at
least "fairly debatable" and, thus, does not constitute an abuse of discretion.
Walker v. Bangs. 92 Wash. 2d 854, 858, 601 P.2d 1279 (1979).
7Although Roth was not permitted to testify as an expert, the State conceded at trial that
Roth's testimony regarding why people might engage in self-harm was opinion testimony that
required a jury instruction on the use of expert testimony.
8This is a case of delayed reporting. That a person delays in reporting a sexual assault
can give rise to an inference that the traumatic event likely did not happen. K.W.'s testimony on
her need for therapy also served to rebut that inference.
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No. 72941-1-1/14
With regard to the opinion testimony given by Roth, the only such
testimony was first elicited by Ontiveros's own counsel. When defense counsel
asked Roth's opinion as to why some people engage in self-harm, the door was
opened for the State to inquire on the same subject on redirect. See, e.g.. State
v. Jones. 111 Wash. 2d 239, 248-49, 759 P.2d 1183 (1988) (holding that
questioning by defense counsel opened the door for the prosecution to ask about
otherwise inadmissible evidence).
There was no trial court error.
V
Finally, Ontiveros contends that the trial court denied him his right to a jury
trial. This denial, he asserts, arose from the trial court's ruling prohibiting
Ontiveros from questioning potential jurors about specific wrongful conviction
cases.
Trial courts have broad discretion in determining the scope and extent of
voir dire. CrR 6.4(b); State v. Frederiksen. 40 Wash. App. 749, 752, 700 P.2d 369
(1985). "The trial court's exercise of discretion is limited only by the need to
assure a fair trial by an impartial jury." Frederiksen. 40 Wash. App. at 752 (citing
United States v. Jones. 722 F.2d 528, 529 (9th Cir. 1983)). We will reverse a
trial court's ruling on the scope of voir dire only for an abuse of discretion and
only if the defendant shows that the abuse substantially prejudiced him. State v.
Brady, 116 Wash. App. 143, 147, 64 P.3d 1258 (2003) (citing State v. Davis. 141
Wash. 2d 798, 825-26, 10 P.3d 977 (2000)). "The refusal to permit specific
questions is not reversible error absent an abuse of discretion, which will be
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No. 72941-1-1/15
found only if the questioning is not reasonably sufficient to test the jury for bias or
partiality." Frederiksen. 40 Wash. App. at 752.
Prior to conducting voir dire, the trial court prohibited Ontiveros's attorneys
from questioning potential jurors about specific cases involving wrongful
convictions. The court clarified that general questions about a potential juror's
concerns, including concerns about a person's guilt or innocence, would be
permitted, stating, "I will only preclude lawyers from raising specific questions
either by name or by particular facts".
Ontiveros contends that such a prohibition was an abuse of discretion that
resulted in substantial prejudice to his cause. In support of this proposition,
Ontiveros cites to State v. Brady. 116 Wash. App. 143. However, the comparison
is inapt. In Brady, the trial court allotted time for all attorneys to use for voir dire,
but then ended voir dire before that time expired. We held in Brady that the trial
court abused its discretion because it "changed the rules" part way through the
voir dire. 116 Wash. App. at 148-49. The trial court in Brady abused its discretion
because the parties had initially set aside important questions, only to later
discover that they would be unable to pursue those lines of questioning.
This is not such a case. The trial court here set the rules for voir dire
beforehand and did not alter those rules thereafter. Counsel was permitted to
question jurors about concerns they may have had regarding a party's guilt or
innocence and respond to any juror questions about specific cases.
Ontiveros speculates that, had his counsel been permitted to ask about
specific, wrongful conviction cases, a juror may have revealed a bias deserving
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of a preemptory challenge. However, Ontiveros has not demonstrated why the
line of permitted questioning—regarding a juror's concerns about guilt or
innocence—was insufficient to explore these biases. Consequently, Ontiveros
does not establish that the trial court's prohibition substantially prejudiced him.
There was no error.
Affirmed.
T
We concur:
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