State Of Washington v. Juan Garcia-gonzalez ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 79269-5-I
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
JUAN GARCÍA GONZÁLEZ,
Appellant.
CHUN, J. — Juan García González appeals his jury conviction for three
counts of child molestation. He claims the trial court erred by (1) admitting
evidence of his prior sexual abuse of a different child in the same household to
prove a common scheme or plan and (2) permitting the prosecutor to cross-
examine the defense expert witness regarding facts she did not rely on in forming
her opinion. He also claims that cumulative error warrants a new trial. We
affirm.
I. BACKGROUND
García González lived in a two-story house in Kent with his wife Theresa,
his stepson Chris Carpenter, his two daughters, and his seven grandchildren. In
November 2014, seven-year-old A.V. and her mother moved into the house. At
that time, A.V. was the only child in the house that was not García González’s
biological grandchild. But A.V. referred to García González as “grandpa” and
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treated his grandchildren as her cousins. García González invited A.V. with him
on errands and often bought her clothing, gifts, and candy or fast food.
In the spring of 2016, García González stopped sleeping with his wife in
the master bedroom and started sleeping on a couch in the living room. He
invited the children to have “sleep-overs” with him in the living room where they
would watch television. On at least two occasions, A.V. and García González
were the only ones in the room and spent the night on the same couch together.
García González’s stepson Chris Carpenter saw him and A.V. “cuddling” and
“spooning” on the couch while under a blanket.
Around that time, A.V. began exhibiting behavioral changes such as
difficulty sleeping and refusing to bathe or change her clothes. In late 2016, A.V.
told an adult family friend that she was “being touched.” At Mary Bridge
Children’s Hospital in Tacoma, A.V. told Dr. Yolanda Duralde, the medical
director of the Child Abuse Intervention Department, that “grandpa” had touched
her more than once. A.V. stated that the most recent incident occurred two
nights prior while she was in the living room watching television with García
González. She said he pulled down his shorts and her underwear and then
rubbed “his private on my private and was moving around.” García González
told A.V. that he would spank her if she told anyone.
About two weeks later, A.V. told child interview specialist Alyssa Layne
that during the most recent occurrence, García González got on top of her, pulled
down both of their pants, and “put his boy part, trying to hurt me in my girl part.”
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Next, he put “his boy part up my back, my back body part,” spit on his fingers,
and wiped his saliva on her “back body part” before he “put it in.” He also
pushed her onto her “tummy,” spit on his fingers, and wiped them on her “girl
part.” A.V. further disclosed that García González had done “inappropriate stuff”
to her on other occasions. She said he licked her “down there” when they were
on the living room couch under a blanket while other people were sleeping in the
same room.
A.V.’s genital exam was normal. A forensic analysis of evidence collected
during the sexual assault exam revealed the presence of a major DNA profile
matching García González on the crotch area of A.V.’s underwear. There was
also a trace amount of DNA from two other individuals. In the same area of
A.V.’s underwear, the forensic tests detected a very small number of sperm cells,
acid phosphate, and amylase. Acid phosphate is an enzyme found in elevated
levels in semen, and amylase may indicate the presence of saliva. But the tests
were not conclusive for the presence of these substances.
The State charged García González in an amended information with three
counts of child molestation in the first degree. At trial, A.V. testified that García
González touched her “private parts . . . a lot.” The first time it happened, she
was watching television with García González on the living room couch. He
pulled down her underwear, put his hand on her “vagina,” and moved his fingers
around. A.V. testified that on other occasions, he “licked my private” in the living
room while watching television or in the master bedroom. In another instance,
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while A.V. was sleeping on the floor of the master bedroom, García González put
“his boy part” in A.V.’s vagina and tried “to make it go inside.” One time when
they were alone in a downstairs bedroom, he pulled his pants down and told A.V.
to “suck his private” while forcibly moving her head until her mouth touched his
penis. On the night of the final incident, during a “sleep-over” in the living room
after the other children went to sleep, García González pulled down A.V.’s pants
and tried to “stick his private into mine again.”
The State sought to introduce evidence of García González’s prior sexual
abuse of H.K., an eight-year-old girl who lived in García González’s house in
2011, as part of a “common scheme or plan” under ER 404(b). H.K. moved into
the house because her single mother suffered from substance abuse and could
no longer care for her. H.K. called García González “grandpa.” He took her on
errands and bought her candy, food, clothing, and gifts.
H.K. testified that García González touched her “about five times.” Some
of the abuse took place in a bedroom where H.K. sometimes slept with García
González’s two-year-old granddaughter. García González laid in bed behind
H.K. and “squeezed” her breasts and “vagina” while the granddaughter slept
nearby. She felt something rubbing against the back of her leg, but she wasn’t
sure if it was his penis or his belt buckle. García González also licked and
“[made] out with” H.K.’s ear. On other occasions, the abuse took place in the
living room while they were watching television. He touched H.K.’s chest under a
blanket while other people were in the room. In one incident, while hidden by a
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blanket, García González pushed H.K.’s head down towards his “private parts.”
H.K. eventually disclosed the abuse because she wanted it to end. In 2012,
García González was charged with first degree child molestation of H.K. and
later pleaded guilty to fourth degree assault – domestic violence. He began
abusing A.V. two years later.
Over García González’s objection, the trial court granted in part and
denied in part the State’s ER 404(b) motion. The court ruled that the State could
present evidence of García González’s abuse of H.K. through her live testimony,
but nothing more, because “any other evidence would be cumulative and risk
unfair prejudice to the defendant.”1 The court concluded, in pertinent part:
[T] he purpose of this evidence is to show that the defendant
employed a common plan or scheme in touching both children. The
defendant used this plan repeatedly to perpetrate separate but very
similar instances of abuse where he licked both girls’ bodies, fondled
their genitals as they slept, rubbed his penis against their bodies, and
solicited oral intercourse. The Court is not persuaded by the defense
argument that the commonalities that existed between the touching
of both children would exist in most cases of molestation and that the
defendant’s touching was merely opportunistic. . . . Those similarities
include the fact that the children were almost identical ages, identical
in their personal situation, not biologically related to the defendant
and viewed him as their grandfather. The defendant showed some
favoritism and attempts to groom the children for abuse. While all
the children received some amount of grandfatherly spoiling, there
was credible evidence that A.V. and H.K. were singled out for some
privileges. The Court gives considerable weight to the defendant’s
attempts to normalize gradually escalating physical touching by
watching television with both girls, often beneath blankets, while their
bodies were in physical contact. It was in this living room, under the
guise of watching television, that much of the abuse of both children
1
The State also sought to introduce evidence of H.K.’s abuse through García
González’s 2012 conviction, H.K.’s child forensic interview, testimony of the child
forensic interview specialist regarding the interview, a detective’s interview of García
González regarding H.K., and testimony from H.K.’s mother and Chris Carpenter.
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occurred. The frequency of the touching is similar for both children,
as was the licking of their bodies and the way in which the defendant
solicited oral intercourse by placing his hands on the back of their
heads and pushing them towards his genital area.
In determining that the “high probative value of this evidence outweighs the risk
of unfair prejudice,” the court noted that García González’s defense was general
denial, that the forensic evidence was “far from conclusive,” and that “A.V.’s
credibility will be central to the case and evidence of the defendant’s common
scheme or plan is highly probative of this evidence.” Before H.K.’s testimony at
trial and in the jury instructions, the court provided a limiting instruction stating
that the evidence may be considered only to evaluate whether a common
scheme or plan existed and not for any other purpose.
García González’s expert witness, Dr. Elizabeth Johnson, opined that
forensic testing did not establish that García González sexually assaulted A.V.
She criticized the State’s testing procedures and results. She also opined that
García González’s DNA could have been transferred to A.V.’s underwear in the
laundry.
The trial court permitted García González to present “other suspect”
evidence regarding Lucas Amansec, a registered sex offender who lived in the
house during the same time period that A.V. was abused. A.V. testified that
Amansec had never touched her inappropriately. Amansec was not living in the
house when H.K. was abused.
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García González testified at trial. He denied molesting A.V. Defense
counsel argued that A.V. either fabricated the allegations for attention or that she
was mistaken and that Amansec was the true perpetrator.
The jury convicted García González as charged. He appeals.
II. ANALYSIS
A. ER 404(b) Evidence of Prior Misconduct
Common Scheme or Plan
García González argues that the trial court erred by admitting H.K.’s
testimony under ER 404(b) as part of a common scheme or plan. We review its
decision to admit evidence under ER 404(b) for an abuse of discretion. State v.
Foxhoven, 161 Wash. 2d 168, 174, 163 P.3d 786 (2007). “Discretion is abused if it
is exercised on untenable grounds or for untenable reasons.” State v. Thang,
145 Wash. 2d 630, 642, 41 P.3d 1159 (2002).
ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
“ER 404(b) is not designed ‘to deprive the State of relevant evidence necessary
to establish an essential element of its case,’ but rather to prevent the State from
suggesting a defendant is guilty because [they are] a criminal-type person who
would be likely to commit the crime charged.” Foxhoven, 161 Wash. 2d at 175
(quoting State v. Lough, 125 Wash. 2d 847, 859, 889 P.2d 487 (1995)).
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“One proper purpose for admission of evidence of prior misconduct is to
show the existence of a common scheme or plan.” State v. Gresham, 173
Wash. 2d 405, 421, 269 P.3d 207 (2012). A common scheme or plan “may be
established by evidence that the Defendant committed markedly similar acts of
misconduct against similar victims under similar circumstances.” Lough, 125
Wash. 2d at 852. Such evidence is admissible if the prior misconduct and the
charged crime show “such occurrence of common features that the various acts
are naturally to be explained as caused by a general plan of which the [two] are
the individual manifestations.” Lough, 125 Wash. 2d at 860. In that event, the
evidence is admissible “because it is not an effort to prove the character of the
defendant” but “to show that the defendant has developed a plan and has again
put that particular plan into action.” Gresham, 173 Wash. 2d at 422. “[S]ubstantial
similarity between the acts does not require uniqueness, and courts generally
admit evidence of prior sexual misconduct in child sexual abuse cases.” State v.
Kennealy, 151 Wash. App. 861, 887, 214 P.3d 200 (2009).
To admit such evidence, the 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.” Thang, 145 Wash. 2d at 642.
Contrary to García González’s assertions, the incidents involving A.V. and
H.K. are sufficiently similar to support a conclusion that they were manifestations
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of a common scheme or plan. Both girls were similar in age and were the only
children in the house who were unrelated to García González. Both came to live
in his home because they have single mothers who struggled with the demands
of parenting. Both girls came to view García González as their grandfather, and
he took them on outings and bought them gifts and treats. He touched both girls’
genitals with his hand, rubbed his crotch against them, licked them, and pushed
the back of their heads towards his crotch. And notably, García González
normalized physical contact with both girls by watching television with them on
the living room couch, often under a blanket while others were nearby. These
common features are supported by the record and are sufficient to demonstrate a
common scheme or plan under ER 404(b). See Kennealy, 151 Wash. App. at 885-
88; Gresham, 173 Wash. 2d at 421-23; State v. Kipp, 171 Wash. App. 14, 20-22, 286
P.3d 68 (2012), reversed on different grounds, 179 Wash. 2d 718 (2014).
García González asserts that the court erred in finding that the girls’
reason for living in the house and the “grandpa” relationship is part of a common
scheme or plan because there is no evidence he lured the girls into the home or
encouraged them to view him as a grandfather as part of a molestation plan. But
the court did not find that García González orchestrated these events, nor was it
required to. “[A]cts which in themselves or alone carry no . . . suggestion [of
design or plan] may, when multiplied, or when compared with other acts or
circumstances, suggest a common plan as the explanation[.]” State v. Burkins,
94 Wash. App. 677, 689, 973 P.2d 15 (1999) (alteration in original) (quoting 2 JOHN
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H. W IGMORE, Evidence § 240, at 42 (1979)). These similarities, when considered
in tandem with the others, support an inference of common scheme or plan.
García González next argues that the court erred in finding that he
showed favoritism to A.V. and H.K. as part of a common scheme or plan. He
points to evidence in the record showing that he treated A.V. and H.K. in a similar
manner as he treated his grandchildren. But the court did not disregard this
evidence. It found that “[t]he defendant gave both girls gifts and clothes and took
them on trips, though there is conflicting testimony about to what extent the
defendant’s wife also participated and whether other grandkids received similar
privileges.” But ultimately, it concluded that “there was credible evidence that
A.V. and H.K. were singled out for some privileges.” And the trial court’s
credibility determinations are not reviewable on appeal. State v. Cross, 156 Wn.
App. 568, 581, 234 P.3d 288 (2010).
Next, García González highlights dissimilarities between his abuse of H.K.
and A.V. to challenge the court’s finding that they were substantially similar
enough to constitute a molestation plan. For example, he asserts that the court
erred in finding that he solicited oral intercourse from both girls by placing his
hand on the back of their heads because A.V. testified that he directly asked her
to suck his penis whereas he did not speak to H.K. during the episode. On this
basis, he contends that the trial court relied on an incorrect understanding of
what “substantial similarity” means to reach its erroneous conclusions. García
González is incorrect. A precise match between the prior acts and the charged
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crime is not required to admit the evidence as part of a common scheme or plan.
See Kennealy, 151 Wash. App. at 889 (evidence of defendant’s prior sexual
misconduct admissible as part of a common scheme or plan even though his
behavior in each case was not identical); Kipp, 171 Wash. App. at 21 (no abuse of
discretion where victims were of similar ages, both were the defendant’s nieces,
and both were sexually abused in the same locations but in different ways).
García González touched both girls’ genitals with his hands, rubbed his crotch
against them, licked their bodies, and pushed their heads towards his crotch.
These overarching similarities suffice to support the court’s findings.
García González also argues that the location, initiation, and timing of the
abuse of H.K. and A.V. were not significantly similar to support a finding of
common scheme or plan. He contends that any commonalities show opportunity
at best. We disagree. García González abused both girls on or near the living
room couch while watching television, sometimes under a blanket and while
others were present. He also abused both girls in bedrooms while other people
were asleep in the same room. All of the abuse occurred in the evening. These
similarities amply support a finding of sufficient similarity. And while García
González asserts that the lapse of time between his abuse of H.K. and A.V.
erodes any finding of similarity, this factor is not determinative. State v.
Sexsmith, 138 Wash. App. 497, 505, 157 P.3d 901 (2007). The trial court did not
abuse its discretion in admitting evidence of H.K.’s abuse as part of a common
scheme or plan.
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Absence of Mistake or Misidentification
After trial testimony began, the trial court permitted García González to
present evidence that registered sex offender Lucas Amansec could have
committed the sexual assaults A.V. described.2 The prosecutor then argued that
the prior acts evidence previously admitted under ER 404(b) was also admissible
to show absence of mistake and identification. Thus, the court included the
following language in its ruling:
The Court notes that the defendant has also opted to pursue an
“other suspect” defense claiming a registered sex offender living in
the house, Lucas Amansec, may have been the true perpetrator and
that A.V. misidentified her abuser. In response to this, the State
offered a second basis for admitting the defendant’s misconduct
against H.K., namely that it goes to A.V.’s absence of mistake in
naming the defendant as the true perpetrator.
García González argues that admitting H.K.’s testimony to rebut a claim of
A.V.’s mistaken identification of García González as the perpetrator was not a
valid application of the “absence of mistake” purpose under ER 404(b). On this
basis, he contends that if the trial court based any aspect of its ER 404(b) ruling
on absence of mistake, it was reversible error. But the State’s argument is more
like the “identity” purpose than the “absence of mistake” purpose. Such evidence
is admissible under ER 404(b) to establish identity through a unique modus
operandi. Foxhoven, 161 Wash. 2d at 175. Moreover, as discussed above, the trial
court properly admitted the prior acts evidence as part of a common scheme or
plan. And there is nothing in the court’s findings and conclusions to indicate that
2
The trial court admitted this evidence as a sanction against the State for its late
disclosure of Amansec’s status as a sex offender. See Brady v. Maryland, 373 U.S. 83,
83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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its decision to admit evidence of H.K.’s abuse was in any way dependent on the
State’s argument about A.V.’s identification of García González as her abuser.
This argument does not provide a basis for reversal.
Probative Value
García González asserts that the court erred in concluding that the
probative value of H.K.’s testimony outweighed its prejudicial effect. He
contends that the court committed legal error by assigning high probative value
to evidence of H.K.’s abuse not because of substantial similarities between H.K.
and A.V.’s accounts, but because A.V.’s credibility was an issue in the case. He
also contends that the highly prejudicial nature of this evidence deprived him of a
fair trial. We disagree.
Under ER 403, relevant evidence may be excluded if the danger of unfair
prejudice substantially outweighs its probative value. Prior similar acts of sexual
abuse are “strongly probative because of the secrecy surrounding child sex
abuse, victim vulnerability, the frequent absence of physical evidence of sexual
abuse, the public opprobrium connected to such an accusation, a victim’s
unwillingness to testify, and a lack of confidence in a jury’s ability to determine a
child witness’s credibility.” Kennealy, 151 Wash. 2d at 890. Trial courts should give
particular consideration to the probative value of common scheme or plan
evidence when corroborating evidence is unavailable. State v. DeVincentis, 150
Wash. 2d 11, 25, 74 P.3d 119 (2003).
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Here, the record shows that the court carefully considered the strongly
prejudicial nature of the evidence and concluded that its high probative value
outweighed the risk of prejudicial effect. In reaching this conclusion, the court
noted that the forensic evidence was not conclusive and that the case turned
largely on A.V.’s testimony. This was entirely appropriate. The court also
minimized the risk of unfair prejudice by limiting the evidence to H.K.’s trial
testimony and by giving a limiting instruction before her testimony and in the jury
instructions. The court properly exercised its discretion in finding that the high
probative value of the prior acts was not substantially outweighed by the danger
of unfair prejudice.
B. ER 703
For the first time on appeal, García González contends that the
prosecutor’s cross-examination of Dr. Elizabeth Johnson violated ER 703 and
ER 705, thereby prejudicially undermining her expert opinion on the DNA
evidence. As a general rule, appellate courts will not consider an issue raised for
the first time on appeal unless it is a manifest error affecting a constitutional right.
RAP 2.5(a)(3); State v. Fraser, 170 Wash. App. 13, 27, 282 P.3d 152 (2012). “We
adopt a strict approach because trial counsel’s failure to object to the error robs
the court of the opportunity to correct the error and avoid a retrial.” State v.
Powell, 166 Wash. 2d 73, 83, 206 P.3d 321 (2009) (citing State v. Kirkman, 159
Wash. 2d 918, 935, 155 P.3d 125 (2007). For this reason, we “will not reverse the
trial court’s decision to admit evidence where the trial court rejected the specific
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ground upon which the defendant objected to the evidence and then, on appeal,
the defendant argues for reversal based on an evidentiary rule not raised at trial.”
Powell, 166 Wash. 2d at 82.
Here, García González objected to the prosecutor’s cross-examination of
Dr. Johnson once based on relevance. That objection was overruled. Another
objection based on the formulation of a question was sustained. Neither
objection could have alerted the trial court to the claimed evidentiary error he
now raises on appeal. Thus, García González failed to preserve it.
C. Ineffective Assistance of Counsel
García González asserts that his trial counsel’s failure to object under
ER 703 and ER 705 constituted ineffective assistance of counsel. To show
ineffective assistance of counsel, the defendant must show that counsel’s
representation was deficient and that the deficient representation caused
prejudice. State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995).
To establish deficient performance, the defendant must show that counsel’s
performance fell below an objective standard of reasonableness. McFarland,
127 Wash. 2d at 335. Prejudice is shown only if there is a reasonable probability
that the result of the proceeding would have been different absent counsel’s
unprofessional errors. In re Pers. Restraint of Davis, 152 Wash. 2d 647, 672-73,
101 P.3d 1 (2004).
ER 703 allows an expert to base an opinion on inadmissible facts or data
as long as the evidence is “of a type reasonably relied upon by experts in the
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particular field in forming opinions or inferences upon the subject.” ER 705
provides that an “expert may testify in terms of opinion or inference and give
reasons therefor without prior disclosure of the underlying facts or data.” But the
expert may be required to disclose the underlying facts or data on which that
opinion is based during cross-examination. ER 705. Although ER 703 and
ER 705 “permit the disclosure of otherwise hearsay evidence to illustrate the
basis of the expert witnesses’ opinion, they do not permit the unrelied upon
opinions and conclusions of others to be introduced in cross-examination for
impeachment purposes.” Washington Irr. and Dev. Co. v. Sherman, 106 Wash. 2d
685, 688, 724 P.2d 997 (1986) (emphasis omitted) (quoting Ferguson v. Cessna
Aircraft Co., 132 Ariz. 47, 49, 643 P.2d 1017 (Ariz. Ct. App. 1981)). In addition,
“[t]he law allows cross examination of a witness into matters that will affect
credibility by showing bias, ill will, interest, or corruption.” State v. Russell, 125
Wash. 2d 24, 92, 882 P.2d 747 (1994).
García González asserts that the prosecutor improperly cross-examined
Dr. Johnson regarding records created by others that she did not rely on in
reaching her conclusions. He asserts that the repeated error undermined
Dr. Johnson’s credibility and prejudicially affected the outcome of the trial. But
Dr. Johnson stated that she reviewed A.V.’s medical records and forensic child
interview in preparing her report. The record shows that the prosecutor
questioned Dr. Johnson regarding facts, not opinions, on which her opinion was
based. This was not improper. Trial counsel was thus not ineffective for failing
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to object on this basis. See State v. Thorgerson, 172 Wash. 2d 438, 455, 258 P.3d
43 (2011) (defense counsel not ineffective for failing to object to argument that
was not improper or prejudicial).
D. Cumulative Error
García González argues that cumulative error denied him a fair trial. “The
cumulative error doctrine applies where a combination of trial errors denies the
accused a fair trial even where any one of the errors, taken individually, may not
justify reversal.” In re Det. of Coe, 175 Wash. 2d 482, 515, 286 P.3d 29 (2012).
Because García González’s claims lack merit, no error occurred.
We affirm.
WE CONCUR:
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