State Of Washington v. Vincent Paul Melendrez ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72210-7-1
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
VINCENT PAUL MELENDREZ,
Appellant. FILED: December 28, 2015
Leach, J. — Vincent Melendrez appeals his convictions for child rape,
incest, and witness tampering. Primarily, he raises constitutional and
foundational challenges to the trial court's evidentiary rulings. The trial court's
decisions about evidence did not violate Melendrez's right to present a defense
or his privilege against self-incrimination. Because Melendrez's numerous other
arguments also lack merit, we affirm.
FACTS
Substantive Facts
After Vincent Melendrez and his wife divorced in 2007, he raised their
seven children in western Washington. R.M. is his oldest child, followed by two
boys, W.M. and D.M. The family changed residences every year or so. For two
long periods, they lived in Bremerton with Melendrez's brother Charlie and
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mother, Guadalupe. Melendrez began working nights at Microsoft in 2008. In
November 2010, the family moved into the Windsor Apartments in Renton.
Melendrez was a strict father. He set three rules for his family: never lie
to or betray him, love each other, and defend the family. He posted a schedule
on the refrigerator that governed his children's days. If they wanted to have
friends over, Melendrez insisted he meet the friends first. When his children
misbehaved by talking back, sneaking out, or having friends over without
permission, Melendrez punished them physically, sometimes hitting them with a
belt.
R.M. testified her father began having sex with her in 2008, when she was
12 or 13 and the family lived at Charlie's house in Bremerton. She described the
first incident, during which she said Melendrez showed her pornography, put his
mouth on her vagina, and had vaginal intercourse with her. She testified that
Melendrez had sex with her regularly between 2008 and 2011. She said that her
brothers, W.M. and D.M., found her naked in bed with Melendrez in January
2009, then told her grandmother, Guadalupe, what they saw. R.M. said
Guadalupe told her, "You need to push him away" and "Don't say anything
because you don't want to get the family in trouble." W.M., D.M., and Guadalupe
contradicted R.M.'s testimony, saying these events never happened.
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R.M. testified that Melendrez became more controlling after he began
having sex with her, rarely letting her leave the house. She said sex became
more frequent after the family moved to Renton and that her father virtually
moved her into his bedroom.
R.M. told D.M. in early 2009 that she and her father "did it." When D.M.
confronted Melendrez about it, he denied it. Afterward, Melendrez forced R.M. to
retract her claim in front of the family. After this incident, R.M. told W.M. two
more times that her father was raping her. She also told a friend. On
Thanksgiving 2010, R.M. left her house and stayed at the friend's house for three
days. She refused to return home. During that time, she told the friend that her
father had been having sex with her. Melendrez persuaded R.M. by phone to
return home to collect her things. When she arrived, he pulled her inside and
slammed the door. As punishment for running away, Melendrez removed R.M.
from public high school and enrolled her in online classes. She remained in
online school until the next school year began in September 2011, when he
allowed her to return.
R.M. continued living at home. That August, Melendrez found pictures of
naked people on her phone. He grounded her and threatened to prevent her
from returning to high school. Then on October 3, 2011, the manager of the
family's apartment complex found R.M. and a 16-year-old boy engaging in oral
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sex in a common restroom. When the manager notified Melendrez, he appeared
to take the news calmly. But R.M. testified that Melendrez then beat her, made
her face bleed, shoved soap in her mouth, and called her a whore. She said
Melendrez imprisoned her in his room for all of October 4, blocking the door with
an ironing board, a mattress, and a shoe. R.M. testified that she had nothing to
eat until her brothers arrived home from school and let her out. Her brothers
again contradicted her testimony. They testified that R.M. was not barricaded in
her father's bedroom that day but that she and D.M. had a fight in which D.M. hit
R.M. in the face repeatedly, breaking her lip. D.M. said the fight began because
R.M. told D.M. she was planning to lie about their father sexually abusing her.
The next day, October 5, R.M. spoke to a counselor at her high school.
During that interview, she told the counselor that her father had been having sex
with her since 2008. The police arrested Melendrez later that day. Susan
Dippery, a sexual assault nurse examiner, examined R.M. the same day.
At trial, the State presented DNA (deoxyribonucleic acid) evidence taken
from the underwear R.M. wore to school on October 5 and from the boxers
Melendrez was wearing when arrested, along with DNA evidence gathered
during the sexual assault examination of R.M. The DNA analysis showed
Melendrez's sperm and semen on the exterior of R.M.'s genitals. It also found
R.M.'s DNA on the fly of Melendrez's boxers.
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Procedural Facts
The trial court let the State amend the information three times during trial.
The second amendment came a month into trial when the State dismissed count
II and enlarged the charging period of count I to include the period charged in
count II.1 Melendrez asked for a bill of particulars, which the court denied.
Nurse Dippery noted in her examination that part of R.M.'s hymen
remained intact. The State asked her if she would be surprised, based on her
experience, to observe with this remnant a 16-year-old girl who had had sex 100
times. Melendrez objected that the question exceeded the scope of Dippery's
expertise. The court overruled the objection, and Dippery answered, "No."
Melendrez's defense focused on R.M.'s motive to lie. He tried to introduce
evidence that R.M. constantly misbehaved by sneaking out of the house,
"sexting," having boys over without permission, and engaging in sexual activity;
that Melendrez disciplined her in response to her behavior; and that, in retaliation
and to break free, R.M. fabricated a story of sex abuse. The State objected to
the introduction of misbehavior evidence as irrelevant, prohibited by the rape
shield statute, RCW 9A.44.020, and improper evidence of past specific acts
under ER 404(b). The trial court ruled Melendrez could introduce this evidence if
he first presented evidence that he knew of the misbehavior and disciplined R.M.
1 Both counts were for rape of a child in the second degree.
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in response to it. Ultimately, Melendrez introduced numerous instances of
misbehavior. Melendrez testified after three other defense witnesses. His
testimony was then interrupted several times by that of several other defense
witnesses to accommodate their schedules.
Late in the trial and in the jury's presence, the judge asked, "Is the jail able
to staff until 4:30 tomorrow afternoon?" Melendrez moved for a mistrial outside
the jury's presence, arguing this comment informed the jury he was in custody.
The court denied his motion.
The trial court instructed the jury that to convict Melendrez of count IV,
incest committed between April 29, 2011, and October 4, 2011, the jury had to
find "one particular act of Incest in the First Degree . .. proved beyond a
reasonable doubt" and that it "must unanimously agree as to which act has been
proved." During deliberations, the jury asked the court, "Do we need to point to a
specific incident or just agree an act occurred during this time frame[?]" The
court reasoned that it would be hard "to explain it any more plainly than it exists
in the jury instruction" and that changing instructions in such situations "can
sometimes create more problems than . . . solutions." Accordingly, it referred the
jury back to the relevant parts of the instructions.
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STANDARD OF REVIEW
We review questions of law de novo, including alleged violations of the
Sixth Amendment right to present a complete defense and Fifth Amendment
privilege against self-incrimination,2 alleged violations of the right to an impartial
jury and the presumption of innocence,3 and the constitutional adequacy of jury
instructions.4 We use common sense to evaluate the effect of an act on the
judgment of jurors.5
We review evidentiary rulings, denials of motions for bills of particulars,
and denials of motions for a new trial for abuse of discretion.6
ANALYSIS
Right To Present a Complete Defense
The trial court ruled that evidence of R.M. sneaking out, "sexting," having
boys over, and having sex was relevant and thus admissible only if Melendrez
presented evidence he knew of that behavior. Melendrez contends that this
ruling violated his Sixth Amendment right to present a complete defense.
2 State v. Jones, 168 Wash. 2d 713, 719, 230 P.3d 576 (2010).
3 State v. Gonzalez, 129 Wash. App. 895, 900, 120 P.3d 645 (2005).
4 State v. Gonzalez-Lopez, 132 Wash. App. 622, 637, 132 P.3d 1128 (2006).
5 Gonzalez, 129 Wash. App. at 900-01.
6 State v. Garcia, 179 Wash. 2d 828, 846, 318 P.3d 266 (2014); State v.
Dictado, 102 Wash. 2d 277, 286, 687 P.2d 172 (1984), abrogated on other grounds
by State v. Harris, 106 Wash. 2d 784, 725 P.2d 975 (1986); State v. Robinson, 79
Wash. App. 386, 396, 902 P.2d 652 (1995).
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The State responds first that we should decline to consider this issue
because Melendrez raised it for the first time on appeal. A failure to object to a
trial court error generally waives a party's right to raise the challenge on appeal
unless a "manifest error affecting a constitutional right" occurred.7 This court
previews the merits of a claimed constitutional error to determine whether the
argument is likely to succeed.8
Under the Sixth Amendment, defendants have a right to "'a meaningful
opportunity to present a complete defense.'"9 This does not give them a right to
present irrelevant evidence, however.10 The trial court has discretion to
determine the relevance of evidence.11
In State v. Jones,12 the Supreme Court ruled that a trial court's refusal to
allow a defendant to testify to the circumstances of an alleged sexual assault
violated the defendant's right to present a defense. The proffered testimony
indicated that the sexual contact occurred consensually during an alcohol-fueled
7 RAP 2.5(a); State v. Kalebauqh, 183 Wash. 2d 578, 583, 355 P.3d 253
(2015).
s State v. Huven Bich Nguyen, 165 Wash. 2d 428, 433-34, 197 P.3d 673
(2008).
a Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L
Ed 2d 503 (2006) (internal quotation marks omitted) (quoting Crane v. Kentucky,
476 U.S. 683, 690, 106 S. Ct. 2142, 90 L Ed. 2d 636 (1986)); see State v.
Lynch, 178 Wash. 2d 487, 491, 309 P.3d 482 (2013).
10 Jones, 168Wn.2dat720.
11 Salas v. Hi-Tech Erectors, 168 Wash. 2d 664, 668, 230 P.3d 583 (2010).
12 168 Wash. 2d 713, 721, 230 P.3d 576 (2010).
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sex party and was not rape as the complaining witness claimed.13 The court
distinguished "between evidence of the general promiscuity of a rape victim and
evidence that, if excluded, would deprive defendants of the ability to testify to
their versions of the incident."14 The court reasoned that the proffered evidence
was not "marginally relevant" but of "extremely high probative value," since it was
the defendant's "entire defense."15
In contrast, the evidence Melendrez sought to introduce was not his
"entire defense." Excluding evidence of R.M.'s perceived misbehavior did not
deprive Melendrez of the ability to testify to his version of any incident, as in
Jones.16 Instead, testimony that R.M. was sexually active, used drugs, and
broke her father's rules resembled general promiscuity evidence, which, as the
trial court correctly ruled, could only be relevant to show bias. Even then, its
probative value was slight. The evidence Melendrez sought to introduce was
thus "marginally relevant," not "high[ly] probative."17
In addition, defendants seeking appellate review of a trial court's decision
to exclude evidence generally must have made an offer of proof at trial.18 An
extended colloquy in the record can substitute for this offer of proof if it makes
13 Jones, 168Wn.2dat721.
14 Jones, 168 Wash. 2d at 720-21.
15 Jones, 168Wn.2dat721.
16 See Jones, 168 Wash. 2d at 720-21.
17 See Jones, 168 Wash. 2d at 721.
18 State v. Vargas, 25 Wash. App. 809, 816-17, 610 P.2d 1 (1980).
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clear the substance of the evidence a party wished to introduce.19 If Melendrez
wanted to preserve error as to the exclusion of an item of evidence, he should
have made an offer of proof at trial. He concedes that he did not do so. And
neither the record nor oral argument makes clear the substance of the evidence
Melendrez wished to introduce. Melendrez thus did not preserve the right to
request review of the exclusion of evidence about R.M.'s perceived misbehavior.
Further, Melendrez did introduce evidence of that behavior and the
discipline he imposed in reaction to it. Before trial, Melendrez's counsel argued
that the trial court should allow Melendrez to present evidence showing why he
took disciplinary steps against R.M. This evidence included R.M.'s brothers'
discovery of "sexts" on her phone and the ensuing conversations between R.M.,
her brothers, and Guadalupe. It also may have included evidence referred to in
Melendrez's trial briefing, including suspected drug use, sexual activity, lying, and
generally hanging out with the wrong crowd. Either the State or Melendrez
eventually introduced evidence of all this behavior. Thus, not only did Melendrez
fail to preserve this issue by making an offer of proof at trial, but he has not
shown that the trial court excluded any highly probative evidence.
Melendrez claimed that he had reason to punish R.M. and this gave R.M.
a motive to lie about Melendrez raping her. The facts introduced at trial to
19 State v. Ray, 116 Wash. 2d 531, 539, 806 P.2d 1220 (1991); ER 103(a)(2).
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support this defense gave the jury ample opportunity not to believe R.M. That it
believed her does not give Melendrez grounds for appeal.
Melendrez further contends that repeated interruptions "fragmented]" his
testimony and violated his "right to a complete and meaningful defense." But
Melendrez cites no case in which a court found constitutional error in an
evidentiary ruling because it interrupted a defendant's testimony. Melendrez's
counsel made no objection to the interruptions at trial. And an objection would
have made no sense, as the schedules of Melendrez's own witnesses made the
interruptions necessary.20
Because our preview of the merits shows that Melendrez likely will not
succeed on his Sixth Amendment claim, Melendrez does not show a manifest
constitutional error on appeal. We therefore decline to review his Sixth
Amendment claim under RAP 2.5(a).
Privilege against Self-incrimination
Melendrez also contends that the trial court's evidentiary rulings violated
his privilege against self-incrimination by compelling him to testify in order to
introduce evidence about R.M.'s behavior.
20 For example, Melendrez's counsel stated at one point, "So I think we
can fill the day tomorrow. ... I can have one witness available at 9, I can have
the Skype [live video chat and long-distance voice calling service] testimony after
that, I can have another witness here at 1:30, and we could have Mr. Melendrez
fill all the points in between."
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A state law requiring a defendant to testify before any other defense
witnesses violates that defendant's Fifth Amendment right against self-
incrimination.21 This rule is not "a general prohibition against a trial judge's
regulation of the order of trial in a way that may affect the timing of a defendant's
testimony."22 An evidentiary ruling can thus affect the order of defense witnesses
without violating the defendant's right to present a defense.23 ER 611(a) gives
the trial court wide discretion over the order and presentation of evidence.24
In Menendez v. Terhune,25 the Ninth Circuit held that the trial court's ruling
that certain evidence was inadmissible without the defendants testifying first did
not violate the defendants' due process rights. The defendants sought to
introduce evidence to explain their alleged fear of their parents to bolster the
defendants' claim of self-defense in killing them.26 The trial court ruled that the
defendants' witnesses could not testify until after the defendants laid a foundation
21 Brooks v. Tennessee, 406 U.S. 605, 607, 92 S. Ct. 1891, 32 L Ed. 2d
358(1972).
22 Harris v. Barklev, 202 F.3d 169, 173 (2d Cir. 2000).
23 See Menendez v. Terhune, 422 F.3d 1012, 1031 (9th Cir. 2005);
Johnson v. Minor, 594 F.3d 608, 613 (8th Cir. 2010).
24 Sanders v. State, 169 Wash. 2d 827, 851, 240 P.3d 120 (2010). "The
court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from harassment or undue
embarrassment." ER 611(a).
25 422 F.3d 1012, 1032 (9th Cir. 2005).
26 Menendez, 422 F.3d at 1030.
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by testifying "about their actual belief of imminent danger."27 The Ninth Circuit
reasoned that the trial court judge "merely regulated the admission of evidence,
and his commentary as to what evidence might constitute a foundation did not
infringe on [the defendants'] right to decide whether to testify."28 The court
distinguished the Supreme Court's decision in Brooks v. Tennessee, which
invalidated a statute that compelled a defendant to testify first if at all,29 noting
that unlike a defendant under the Tennessee statute, the defendants "had the
opportunity, at every stage of the trial, to decide whether or not to take the
stand."30
Here, unlike in Brooks, no statute or rule compelled Melendrez to testify
first or at all. In fact, three of six defense witnesses testified before him.
Melendrez argues that the trial court specified the order of his witnesses and
"forced him to testify in order to admit relevant evidence," but that begs the
question. Like the trial court in Menendez, the trial court here ruled that the
misbehavior evidence Melendrez sought to admit was not relevant unless
Melendrez laid a foundation by presenting evidence that he knew about the
misbehavior. One way, but not the only way, Melendrez could do so was by
testifying himself. In so ruling, the trial court properly used its discretion to
27 Menendez, 422 F.3d at 1030-31.
28 Menendez, 422 F.3d at 1032; see also Johnson, 594 F.3d at 613.
29 406 U.S. 605, 607, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972).
30 Menendez, 422 F.3d at 1031.
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"exercise reasonable control over the mode and order of interrogating witnesses
and presenting evidence."31 We therefore reject Melendrez's Fifth Amendment
argument.
Sufficiency of the Information and Denial of Bill of Particulars
Melendrez next contends that because the information covered long
periods, giving him little information about when the alleged crimes occurred, he
could not effectively defend against the charges with an alibi. Melendrez did
present evidence that he worked the night shift at Microsoft and was dependable
in showing up for work to counter R.M.'s testimony that Melendrez frequently
raped her at night and eventually moved her into his bedroom.
An information that accurately states the elements of the crime charged is
not constitutionally defective.32 The information must also allege facts supporting
those elements.33 This requirement's purpose "'is to give notice to an accused of
the nature of the crime that he or she must be prepared to defend against.'"34
Melendrez makes no claim that the information omits any element of any
crimes charged. Instead he argues that the information was not specific enough
about the time period in count I to provide him with adequate notice. But in child
31 ER 611(a).
32 State v. Bonds, 98 Wash. 2d 1, 17, 653 P.2d 1024 (1982); State v.
Zillvette, 178 Wash. 2d 153, 158, 307 P.3d 712 (2013).
33 State v. Nonog, 169 Wash. 2d 220, 226, 237 P.3d 250 (2010).
34 Zillvette, 178 Wash. 2d at 158-59 (quoting State v. Kiorsvik. 117 Wash. 2d 93,
101, 812 P.2d 86 (1991)).
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sex abuse cases, "whether single or multiple incidents of sexual contact are
charged, a defendant has no due process right to a reasonable opportunity to
raise an alibi defense."35 Alibi is not likely to be a valid defense where, as here,
"'the accused child molester virtually has unchecked access to the victim,'"
because in such cases '"[t]he true issue is credibility.'"36
Melendrez relies on a South Carolina case, State v. Baker,37 where the
court held an indictment to be unconstitutionally overbroad. There, the State
amended the information two weeks before trial to enlarge by over three years
the period when the defendant committed alleged child abuse.38 The defendant's
only available complete defense was alibi. The court ruled that the late
amendment of the charging instrument made that defense impossible.39
Baker is the only authority Melendrez cites for the proposition that a long
charging period can violate a defendant's constitutional rights. But apart from
being nonbinding authority, Baker is distinguishable. Unlike the defendant in
Baker, Melendrez had ample notice of the charges and the period they
encompassed. The amended information did not change the charging period; it
simply combined the periods for counts I and II and eliminated count II.
35 State v. Cozza, 71 Wash. App. 252, 259, 858 P.2d 270 (1993).
36 State v. Haves, 81 Wash. App. 425, 433, 914 P.2d 788 (1996) (quoting
State v. Brown, 55 Wash. App. 738, 748, 780 P.2d 880 (1989)).
37 411 S.C. 583, 769 S.E.2d 860, 865 (2015).
38 Baker, 769 S.E.2d at 864.
39 Baker, 769 S.E.2d at 864.
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Melendrez knew for nearly two years before trial that he had to defend against
charges that he raped his daughter during the 16-month period described in the
amended count I.40 Thus, the information satisfied constitutional notice
requirements.41
Melendrez also contends that even if the information was not deficient, the
trial court abused its discretion in denying Melendrez a bill of particulars because
without it he could not adequately prepare a defense.
An information may be constitutionally sufficient but still so vague as to
make it subject to a motion for a more definite statement.42 A trial court should
grant a bill of particulars if the defendant needs the requested details to prepare
a defense and to avoid "prejudicial surprise."43 If the bill of particulars is not
necessary, then the trial court does not abuse its discretion in denying it.44
In State v. Noltie,45 this court rejected challenges to an information with a
lengthy charging period and the denial of a bill of particulars, holding the
defendant had adequate notice of the charges against him. The charges
40 The first information is dated March 2012; the trial began in January
2014.
41 See Zillvette, 178 Wash. 2d at 158.
42 Bonds, 98 Wash. 2d at 17; Dictado, 102 Wash. 2d at 286.
43 State v. Allen, 116 Wash. App. 454, 460, 66 P.3d 653 (2003) (quoting 1
Charles Alan Wright, Federal Practice and Procedure § 129 (3d ed.1999)).
44 Dictado, 102 Wash. 2d at 286.
45 57 Wash. App. 21, 30, 786 P.2d 332 (1990), affd, 116 Wash. 2d 831, 841-42,
809P.2d 190(1991).
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"spanned a 3-year period and presented a pattern of frequent and escalating
abuse" of the defendant's stepdaughter.46 The defendant claimed he lacked
adequate notice to prepare a defense because the information was too vague for
him to "separate the charged acts from the 'hundreds of innocent contacts' he
had with [the victim] during the charging period."47 This court rejected that
argument, noting the defendant had an opportunity to interview the complaining
witness. The court also noted that the defendant did not point to any "information
that surprised him at trial[ ] that would have provided additional notice of the
charges."48 The court concluded that the trial court did not abuse its discretion.49
Here, as in Noltie, the charges did not surprise the defendant, even
without a bill of particulars.50 Like Noltie, Melendrez's counsel interviewed the
complaining witness, R.M., at length and in advance of trial. And like Noltie,
Melendrez fails to point out any information that would have given him additional
notice of the charges. His only specific contention as to prejudice is that he
lacked the dates he needed to present an alibi defense. But "a defendant has no
due process right to a reasonable opportunity to raise an alibi defense" against a
charge of child sex abuse.51 And as the State points out, the period over which
46 Noltie, 116Wn.2dat845.
47 Noltie, 57 Wash. App. at 30.
48 Noltie, 57 Wash. App. at 31.
49 Noltie, 57 Wash. App. at 31.
50 Noltie, 116Wn.2dat845.
51 Cozza, 71 Wash. App. at 259.
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the alleged crimes took place didn't change with the amendment, which merely
combined counts I and II. Melendrez thus failed to show how a bill of particulars
would have helped his defense. The trial court did not abuse its discretion in
denying a bill of particulars.
Expert Testimony
Next, Melendrez contends that Nurse Dippery's testimony that she would
not be surprised to see part of the hymen intact on a 16-year-old girl who had
had sex over 100 times "was highly speculative and lacked foundation."
ER 702 permits "a witness qualified as an expert by knowledge, skill,
experience, training, or education" to testify where her "specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue."
Melendrez again fails to cite the facts of any case that would support a
reversal. He also fails to explain how Dippery's statement lacked a foundation.
Dippery testified to her extensive qualifications: seven years examining patients
at Harborview Medical Center for signs of sexual assaults and around 900 sexual
assault examinations performed, roughly half of them on teenagers. She testified
without objection that it is "possible for someone to have a relatively intact
hymen, even after sexual activity" and that R.M.'s was partially intact. The trial
court could reasonably conclude Dippery was qualified to make the challenged
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statement and that the statement would "assist the trier of fact to understand the
evidence" gained in R.M.'s sexual assault exam.52 The trial court did not abuse
its discretion in overruling Melendrez's ER 702 objection.
Right to a Fair Trial
Melendrez next asserts that the trial court violated his right to a
presumption of innocence by asking the bailiff in the jury's presence, "Is the jail
able to staff until 4:30 tomorrow afternoon?"
"The right to a fair trial includes the right to the presumption of
innocence."53 This includes "'the physical indicia of innocence,'" i.e., freedom
from shackles or other restraints.54 It also precludes a court from deliberately
drawing the jury's attention to a defendant's custody with a preliminary
instruction.55 Such violations are subject to harmless error analysis.56
In State v. Gonzalez,57 Division Three of this court held that a trial court's
"special announcement" informing the jury the defendant "was indigent,
incarcerated, had been transported in restraints, and was being tried under
guard" violated the defendant's right to a fair trial. In State v. Escalona,58 this
52 See ER 702.
53 Gonzalez, 129 Wash. App. at 900.
54 Gonzalez, 129 Wash. App. at 901 (quoting State v. Finch, 137 Wash. 2d 792,
844, 975 P.2d 967 (1999)).
55 Gonzalez, 129 Wash. App. at 901.
56 Finch, 137Wn.2dat859.
57 129 Wash. App. 895, 901, 129 P.3d 645 (2005).
58 49 Wash. App. 251, 255-56, 742 P.2d 190 (1987).
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court ruled that the defendant's right to a fair trial was violated where the victim
disclosed that the defendant had previously been convicted of an identical crime
to the one he was on trial for. In contrast, in State v. Condon,59 this court held
that a witness twice mentioning that the defendant had been in jail did not violate
the defendant's right to a fair trial. The trial court admonished the witness,
denied the defendant's motion for a mistrial, and gave the jury a curative
instruction.60 This court reasoned that the references to the defendant's custody
were more ambiguous and thus less prejudicial than the statements in
Escalona.61 The Condon court also pointed out that being in jail does not
necessarily mean the defendant has a propensity to commit murder or has been
convicted of a crime.62 It held that the statements were not serious enough to
merit a mistrial and the trial court's instruction cured their "potential for
prejudice."63
Melendrez again fails to cite any case in his favor. He bore no physical
indicia of being in custody. And unlike the trial court in Gonzalez, the trial court
here did not explicitly and intentionally call the jury's attention to Melendrez's
custodial status. Rather, it made a comment that it reasonably concluded was
59 72 Wash. App. 638, 649-50, 865 P.2d 521 (1993).
60 Condon, 72 Wn. App. at 648.
61 Condon, 72 Wn. App. at 648.
62 Condon, 72 Wn. App. at 649.
63 Condon, 72 Wn. App. at 649-50.
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ambiguous in denying Melendrez's motion for a mistrial. As both the trial court
and the State note, the jury could infer from the judge's question that Melendrez
was in custody, but it could just as easily think jail staff was responsible for
courtroom security. And even an implication of custody would not warrant
reversal unless it was particularly prejudicial, like the testimony in Escalona.64
The trial court's fleeting, inadvertent, and ambiguous comment did not abridge
Melendrez's presumption of innocence.
Manifestly Apparent Legal Standard
Melendrez contends that the trial court failed to make the relevant legal
standard "manifestly apparent" in answering the jury's question of whether it
needed to "point to a specific incident or just agree an act occurred during" the
charging period for count IV. This, Melendrez argues, warrants reversal of his
conviction on that count, as the trial court should have told the jury it needed to
agree on a specific incident in order to find Melendrez guilty.
"Jury instructions must make the relevant legal standard manifestly
apparent to the average juror."65 Melendrez cites State v. Cantabrana,66 in which
the court found reversible error in a jury instruction that was wrong about the law.
But he does not cite any case in which a legally accurate jury instruction failed to
64 See Condon, 72 Wash. App. at 648.
65 State v. Cantabrana. 83 Wash. App. 204, 208, 921 P.2d 572 (1996).
66 83 Wash. App. 204, 208-09, 921 P.2d 572 (1996).
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"make the relevant legal standard manifestly apparent." Nor does he contend
that the trial court's original instruction or response to the jury's question were
incorrect.
Moreover, the trial court's instructions did "make the relevant legal
standard manifestly apparent to the average juror." This court held in State v.
Moultrie67 that an almost identical Petrich68 instruction adequately addressed the
legal standard for the average juror. In arguing that "[t]he jury's question
indicated that it did not understand the instruction," Melendrez misunderstands
the "manifestly apparent" test. The subjective understanding of the jurors in
Melendrez's case is irrelevant because the test is objective. The instruction only
has to make the standard "manifestly apparent to the average juror,"69 and in
Moultrie this court found that an almost identical instruction did so.70
67 143 Wash. App. 387, 392, 177 P.3d 776 (2008). The instruction in
Moultrie read in part,
To convict the defendant of rape in the second degree, one
particular act of rape in the second degree must be proved
beyond a reasonable doubt, and you must unanimously agree as
to which act has been proved. You need not unanimously agree
that the defendant committed all the acts of rape in the second
degree.
68 State v. Petrich, 101 Wash. 2d 566, 683 P.2d 173 (1984).
69 Cantabrana, 83 Wash. App. at 208 (emphasis added).
70 See Moultrie, 143 Wash. App. at 394.
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Issues Raised in Statement of Additional Grounds for Review
Melendrez raises several more issues in his statement of additional
grounds for review. Each of these lacks merit. First, Melendrez contends the
trial court failed to properly address evidence discovered during trial, violating his
rights to due process and a fair trial. An error by a trial court resulting in a failure
to disclose relevant evidence does not warrant reversal unless the exculpatory
evidence was constitutionally material.71 Evidence is not constitutionally material
if the defendant was able to obtain the substantial equivalent of the evidence and
use it to cross-examine the witness.72 Here, the State spoke to R.M. during a
trial recess and gave Melendrez a summary of its notes. The interview contained
two items of information the defense thought was relevant.73 The trial court
noted that this information could be used on cross-examination and "elicited, if
relevant, for contradictory testimony." Melendrez does not allege the State failed
to disclose any relevant information. And the asserted "delay" in the State
reporting the interview was reasonable as it was between a Friday afternoon and
the following Monday morning. We reject Melendrez's first pro se argument.
71 State v. Garcia, 45 Wash. App. 132, 139, 724 P.2d 412 (1986).
72 Garcia, 45 Wash. App. at 140.
73 Those items were an acknowledgment that R.M. had oral sex in the
apartment complex restroom and a statement that her father at times rewarded
her with food for sex.
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Second, Melendrez claims that because R.M.'s testimony at trial was
inconsistent with her previous formal statements, the State made "knowing use of
perjured testimony," warranting reversal, quoting State v. Larson.74 Melendrez
has not shown, and the record does not support, that R.M. lied in her trial
testimony or that the State knew any of her testimony to be false.75 Melendrez
was able to thoroughly cross-examine R.M. about her inconsistent statements.
Whether R.M. lied at trial was a question of credibility properly left to the jury.76
We therefore reject Melendrez's second argument.
Third, Melendrez contends that the trial court abused its discretion in
ruling irrelevant the identity of the boy R.M. was caught in a restroom with.
Melendrez argues that the trial court's ruling denied him the ability to question the
boy and that the boy's testimony would have helped establish R.M.'s bias against
her father.
"[A] defendant has a constitutional right to impeach a prosecution witness
with bias evidence" using an independent witness.77 An error in excluding such
evidence is harmless if "no rational jury could have a reasonable doubt that the
defendant would have been convicted even ifthe error had not taken place."78
74 160 Wash. App. 577, 594, 249 P.3d 669 (2011).
75 See Larson, 160 Wash. App. at 594.
76 See Larson, 160 Wash. App. at 594-95.
77 State v. Spencer, 111 Wash. App. 401, 408, 45 P.3d 209 (2002).
78 Spencer, 111 Wash. App. at 408.
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Melendrez offers only one theory about the relevance of the boy's identity,
that the boy could have information about R.M.'s "behavior-based issues." As
noted above, the trial court properly limited evidence of R.M.'s behavior to events
known to Melendrez. Melendrez does not explain how the boy could be
unknown to him, yet know about behavior that Melendrez was aware of. But we
need not decide whether the trial court erred in denying Melendrez the ability to
introduce testimony from the boy because any error in doing so was harmless.
"[N]o rational jury could have a reasonable doubt" that Melendrez would have
been convicted even if the trial court had not excluded evidence of the boy's
identity. Melendrez presented ample evidence of R.M.'s potential bias without
the boy. And R.M.'s testimony, along with the DNA evidence, would have been
unchanged.
Next, Melendrez contends that the trial court erred in allowing the State to
ask D.M. questions that suggested D.M. was being untruthful. D.M. testified that
R.M. told him before their father's arrest that she was planning to lie about their
father abusing her. The trial court allowed the State to ask D.M. whether he had
been formally interviewed about his knowledge of the alleged crimes. D.M.
replied he had not. The State then asked, without objection by Melendrez,
whether D.M. ever told anyone, '"My sister told me she's going to make this up.'"
D.M. again replied he had not.
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"'[A] prosecutor who asks the accused a question that implies the
existence of a prejudicial fact must be prepared to prove that fact.'"79 Melendrez
asserts that the State implied the "prejudicial fact" that D.M. had interacted with
the authorities after his father's arrest. Melendrez claims this prejudiced him
because D.M. may not have had any interaction with those authorities and thus
no opportunity to tell them what his sister had said. This was the subject of a
lengthy colloquy in the trial court, in which the parties and the judge agreed the
problem would be addressed if the State first asked whether any such
conversations happened. This was exactly what the State did, without objection.
Melendrez's argument at this stage is therefore meritless.
Finally, in its closing argument, the State said D.M. "didn't tell anybody"
that R.M. told him she was going to lie "because it didn't happen." Melendrez
contends that the trial court erred in allowing the State to directly state in closing
that D.M. testified untruthfully.
A "defendant's right to a fair trial is denied when the prosecutor makes
improper comments and there is a substantial likelihood that the comments
affected the jury's verdict."80 But "[t]he State is generally afforded wide latitude in
79 State v. Babich, 68 Wash. App. 438, 444, 842 P.2d 1053 (1993) (quoting
United States v. Silverstein, 737 F.2d 864, 868 (10th Cir. 1984)).
80 State v. Jungers, 125 Wash. App. 895, 901, 106 P.3d 827 (2005).
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making arguments to the jury."81 A prosecutor can "draw reasonable inferences
from the evidence and may freely comment on witness credibility based on the
evidence" but cannot opine about a witness's credibility.82 The State's remark
during closing arguments was not an opinion about D.M.'s credibility. Rather, the
prosecutor asserted a reasonable inference based on the evidence in the case
as a whole and on D.M.'s statements on cross-examination in particular.
CONCLUSION
Because Melendrez did not raise his Sixth Amendment challenge below
and he does not show a manifest error, we decline to review it. Because the trial
court did not force Melendrez to testify first and properly exercised its discretion
to exclude irrelevant evidence and control the order of testimony, we reject
Melendrez's Fifth Amendment claim. Because Melendrez had ample notice of
the charges against him and there was no chance of "prejudicial surprise," the
charging information was constitutionally adequate and the trial court did not
abuse its discretion in denying Melendrez a bill of particulars. Because
Melendrez makes no argument about Nurse Dippery's qualifications to present
her expert opinions, he fails to show that the trial court abused its discretion in
allowing her testimony. Because the trial court's question in the jury's custody
81 State v. Gregory, 158 Wash. 2d 759, 860, 147 P.3d 1201 (2006), overruled
in part on other grounds by State v. W.R.. Jr., 181 Wash. 2d 757, 336 P.3d 1134
(2014).
82 State v. Lewis, 156 Wash. App. 230, 240, 233 P.3d 891 (2010).
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was fleeting, inadvertent, and ambiguous, it did not abridge Melendrez's
presumption of innocence. Because this court has already upheld a
substantively identical Petrich instruction, the trial court's instruction made the
legal standard "manifestly apparent to the average juror." And Melendrez's
several pro se arguments are equally meritless. For all these reasons, we affirm.
WE CONCUR:
In -" >V
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