State Of Washington v. Jason Castillo Romero ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ]1 No. 72669-2-1-1
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Respondent, ]
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JASON CASTILLO ROMERO, | UNPUBLISHED OPINION en <•
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Appellant. t) FILED: February 29, 2016
Verellen, A.C.J. — Jason Romero appeals his convictions for assault in the
second degree, felony harassment, promoting prostitution in the first degree, and
assault in the fourth degree, all domestic violence offenses. He contends that the trial
court violated his constitutional rights to present a defense and confront the witnesses
against him by excluding certain impeachment evidence. Because the trial court did not
abuse its discretion by excluding this evidence, we affirm Romero's convictions.
He also asserts, and the State concedes, that the trial court exceeded its
sentencing authority in imposing terms of community custody on some convictions. We
accept the State's concession and remand for amendment of the community custody
terms of Romero's judgment and sentence.
No. 72669-2-1/2
BACKGROUND
In spring 2012, 20-year-old N.G. was living in Yakima County. Jason Romero
introduced himself to her, and they began to spend time together. Within a few days,
N.G. agreed to move with Romero to the Seattle area.
Early in their relationship, Romero told N.G. that he was "the boss."1 N.G.
believed she needed to ask his permission to do almost anything, even use the
bathroom. Over the next several months, Romero pushed, choked, and punched N.G.
He threatened to "bury [her] in the backyard."2 He used an electrical cord to whip her,
burned her with a hair straightening iron, and stabbed her in the buttocks with a knife.
He recorded other humiliating abuse with a cell phone camera. On several occasions,
he forced her to have sex with acquaintances for money. N.G. left Romero at one point,
living for a time with relatives in Yakima and Kentucky, but by January 2013, she had
returned to Romero.
At Romero's behest, N.G. began working as a dancer at a strip club. Club
manager Leta Whitney and fellow dancer Tara Makepeace noticed bruises, burns,
scars, and bite marks on N.G.'s body. N.G. denied that these injuries were the result of
violence. In March 2013, after N.G. arrived at work with a black eye, Whitney contacted
Tukwila patrol officer Michael Baisch. With Whitney present, Baisch told N.G. that
Whitney had expressed concerns about domestic abuse and asked N.G. "if everything
1Report of Proceedings (RP) (July 28, 2014) at 497, 499-500, 505.
2 Id. at 506.
No. 72669-2-1/3
was okay."3 N.G. did not share any information about her situation with Baisch and
declined his offer of help. Baisch did not observe any injuries. Baisch gave N.G. a
pamphlet about domestic violence and encouraged her to contact the police or domestic
violence advocates if she needed help.
On April 16, 2013, a distraught N.G. told Whitney she was ready to go to the
police. N.G. made a statement to Baisch the next day. Baisch took photographs of
N.G.'s bruises and burns. N.G. gave Baisch her cell phone, from which police retrieved
photos and text messages. Baisch took a second statement from N.G. several days
later.
After Baisch submitted his report, his sergeant assigned the case to Detective
Dale Rock. After reviewing N.G.'s statements and taking statements from Whitney and
Makepeace, Rock arrested Romero.
The State charged Romero with two counts of assault in the second degree
(counts 1 and 4), two counts of promoting prostitution in the first degree (counts 3 and
5), two counts of assault in the fourth degree (counts 7 and 9), and one count each of
felony harassment (count 2), assault in the third degree (count 6), and unlawful display
of a weapon (count 8), all domestic violence offenses.
Before trial, the State moved to prohibit Romero from impeaching Baisch with
evidence that Baisch left the Tukwila Police Department after lying to investigators
about his sexual relationship with Whitney. The prosecutor argued that the relationship
3 RP (July 23, 2014) at 281.
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began after N.G. had made her statements to Baisch and was "not relevant to the facts
in this particular case."4 Defense counsel countered that Baisch's lack of truthfulness
about the relationship was relevant to his credibility and that because "[t]he jury's going
to be asked to look at whether or not his view of the so-called victim's demeanor is
accurate," Baisch's credibility was "critical."5
The trial court granted the State's motion:
So, the State intends to call [Baisch] specifically about the contact
that he had, that she had given a statement, and ask questions about
[N.Gj's demeanor at the time of that statement. So, within the context, the
fact of an incident that occurred after the interview regarding Officer
Baisch and another individual or manager at this business, the Court does
not find that that's relevant at all and that will not be allowed in terms of
any questioning.161
Following the court's ruling, Romero waived his right to a jury trial.
The State introduced testimony from a Washington State Patrol computer
forensics detective, who testified about the contents of N.G.'s and Romero's phones.
The State also called Baisch, Rock, Whitney, Makepeace, a police officer who testified
about a phone call Romero made from the King County jail, a different officer who
helped arrest Romero, the physician's assistant who treated N.G.'s knife wound, and
N.G. herself.
Following the bench trial, the court found Romero guilty of all charges except
assault in the third degree and unlawful display of a weapon. The court found the
4 RP (July 21, 2014) at 183.
5 jd at 184-85.
6 Id. at 187.
No. 72669-2-1/5
aggravating factor of an ongoing pattern of abuse as to counts 1,2,3, and 5. The court
found that the State did not prove the aggravating factor of deliberate cruelty as to count
1. The court imposed exceptional sentences upward on counts 1 and 5 and ruled that
counts 1, 5, and 7 run consecutively, for a total term of confinement of 252 months.
Romero appeals.
ANALYSIS
Impeachment Evidence
Romero contends that by prohibiting him from impeaching Baisch about his
relationship with Whitney and his untruthful statements about it, the trial court deprived
him of his constitutional right to present a defense and confront adverse witnesses. He
argues that no compelling interest justified the court's exclusion of this evidence, which
he was entitled to elicit as probative of Baisch's credibility and bias.
We review constitutional claims de novo, as questions of law.7 We review a trial
court's decision to admit or exclude evidence or limit the scope of cross-examination for
abuse of discretion.8 A court abuses its discretion when it makes a manifestly
unreasonable decision or bases its decision on untenable grounds or reasons.9 A court
7 State v. Jones. 168 Wash. 2d 713, 719, 230 P.3d 576 (2010); State v. Jackman,
156 Wash. 2d 736, 746, 132 P.3d 136 (2006).
8 State v. McDonald. 138 Wash. 2d 680, 693, 981 P.2d 443 (1999); Darden, 145
Wn.2dat619.
9 In re Pet, of Duncan. 167 Wash. 2d 398, 402, 219 P.3d 666 (2009).
No. 72669-2-1/6
bases its decision on untenable grounds or reasons when it applies the wrong legal
standard or relies on unsupported facts.10
A criminal defendant has a constitutional right to confront his or her accuser.11
The primary and most important component is the right to conduct a meaningful cross-
examination of adverse witnesses.12 In State v. Hudlow. our Supreme Court articulated
a two-part test to determine if the exclusion of impeachment evidence against a State's
witness violates the defendant's right to confrontation.13 First, the evidence must be
relevant; a criminal defendant has no constitutional right to the admission of irrelevant
evidence.14 Second, if the evidence is relevant, the court considers whether the State
has demonstrated a compelling interest that outweighs the defendant's interest in
admitting the evidence. Ifthe evidence is not relevant, the court need not reach the
"compelling interest" question.15
Under ER 608(b), the court may in its discretion allow cross-examination about
specific instances of a witness's conduct in order to show a witness's character for
truthfulness or untruthfulness. The right to cross-examine an adverse witness is not
absolute, however.16 "Courts may, within their sound discretion, deny cross-
10 id at 403.
11 U.S. Const, amends. VI, XIV; Wash. Const, art. 1, § 22; State v. Darden. 145
Wash. 2d 612, 620, 41 P.3d 1189 (2002).
12 State v. Foster. 135 Wash. 2d 441, 456, 957 P.2d 712 (1998).
1399Wn.2d 1, 15, 659 P.2d 514 (1983).
14 Id; see also ER 402 ("Evidence which is not relevant is not admissible.").
15 State v. Jones. 117 Wash. App. 221, 234 n.2, 70 P.3d 171 (2003).
16 Darden. 145 Wash. 2d at 620.
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examination ifthe evidence sought is vague, argumentative, or speculative."17 Relevant
considerations include whether the evidence is collateral to the question presented in
the litigation and whether there are alternative avenues available for impeachment.18
Reviewing courts have found abuse of discretion where the witness was crucial
to the State's case.19 But "[t]he need for cross-examination on misconduct diminishes
with the significance of the witness in the state's case."20
Here, contrary to Romero's contentions and unlike the cases he cites,21 Baisch's
testimony was not crucial or central to the State's case. Itwas largely consistent with
and cumulative of other witnesses' testimony. Whitney and Makepeace testified in
greater detail about N.G.'s demeanor and injuries. A computer forensics detective
testified about the contents of N.G.'s and Romero's cell phones, and a medical provider
testified about her knife injury. And the court heard three days of testimony from N.G.
herself. Baisch's misconduct, while arguably pertinent to the issue of his character for
truthfulness or untruthfulness, was unrelated to his testimony in the case. It was not "of
17 Id at 620-621.
18 State v. O'Connor. 155 Wash. 2d 335, 351-53, 119 P.3d 806 (2005).
19 State v. Clark. 143 Wash. 2d 731, 766, 24 P.3d 1006(2001). See also Darden.
145 Wash. 2d at 617-18 (officer was the only State's witness who had seen alleged drug
transactions and could identify defendant); State v. Smith. 130 Wash. 2d 215, 226-27, 922
P.2d 811 (1996) (officer was the only witness to testify about defendant's apparent
intoxication before his arrest); State v. York. 28 Wash. App. 33, 35-36, 621 P.2d 784
(1980) (undercover officer was the only witness to alleged drug sale and "his credibility
was crucial to the State and to the defense").
20 Clark. 143Wn.2dat766.
21 Br. of Appellant at 16-18 (citing Darden. 145 Wash. 2d at 620-22, and York, 28
Wash. App. at 35-36).
No. 72669-2-1/8
high probative value" for Romero, such that no State interest would be compelling
enough to justify its exclusion.22 Romero does not dispute that Baisch's relationship
with Whitney and the false statements occurred after Baisch's contact with N.G. had
ended.
The trial court acted within its discretion in excluding evidence of Baisch's
misconduct as irrelevant.23 Romero establishes neither a constitutional violation nor an
abuse of discretion.
Community Custody
Next, Romero asserts, and the State concedes, that the trial court erred by
imposing terms of confinement and community custody exceeding the statutory
maximum. A sentencing court must impose community custody for violent offenses as
defined by RCW 9.94A.030(55) and for crimes against persons as defined by
RCW 9.94A.411(2). The term for violent offenses is 18 months; crimes against persons
warrant a term of 12 months.24 However, RCW 9.94A.701(9) directs that a term of
community custody "shall be reduced by the court whenever an offender's standard
range term of confinement in combination with the term of community custody exceeds
the statutory maximum for the crime as provided in RCW 9A.20.021." While
RCW 9.94A.701 applies expressly to standard range sentences, an exceptional
22 See Hudlow. 99 Wash. 2d at 16.
23 Because we agree that the evidence was not relevant, we do not reach
Romero's argument that the State had no compelling reason to exclude it. See Jones.
117Wn.App. at234n.2.
24RCW9.94A.701(2), (3)(a).
8
No. 72669-2-1/9
sentence may still violate RCW 9.94A.505(5), which prohibits a court from imposing a
combined term of confinement and community custody that exceeds the statutory
maximum.25 And in State v. Bovd. our Supreme Court held that it is the trial court's
responsibility to reduce the defendant's term of community custody to avoid such a
result.26
For Romero's felony convictions, the sentencing court imposed the following
terms of confinement:
• Count 1, assault in the second degree:27120 months (statutory
maximum).
• Count 2, felony harassment:28 60 months (statutory maximum).
• Count 3, promoting prostitution in the first degree:29120 months (statutory
maximum).
• Count 4, assault in the second degree: 84 months (36 months below the
statutory maximum).
• Count 5, promoting prostitution in the first degree: 120 months (statutory
maximum).
25 In re Pers. Restraint of McWilliams. 182 Wash. 2d 213, 217-18, 340 P.3d 223
(2014).
26 174 Wash. 2d 470, 473, 275 P.3d 321 (2012).
27RCW9A.36.021(1)(g).
28RCW9A.46.020(1), (2)(b).
29RCW9A.88.070(1).
No. 72669-2-1/10
In its oral ruling, the court stated that counts 1 through 5 "are all matters that call
for community custody" and imposed an 18-month term for each count.30 On the
section of Romero's judgment and sentence pertaining to community custody, the trial
court's only notation was to check the box for an 18-month term for "Violent Offense[s],"
as defined by RCW 9.94A030.31
We accept the State's concession that the trial court exceeded its sentencing
authority. While assault in the second degree is a violent offense,32 promoting
prostitution in the first degree is a crime against persons,33 and felony harassment is not
a community custody offense.34 Thus, the sentencing court erred by assigning 18
months to Romero's promoting prostitution convictions and by assigning any term of
community custody to his felony harassment conviction. The court also erred by
attaching community custody terms to Romero's convictions with statutory maximum
sentences. Accordingly, we remand to the trial court to amend Romero's judgment and
sentence consistent with RCW 9.94A.701(9) and RCW 9.94A.505(5).35
30RP(Oct. 24, 2014) at 947.
31 CP at 57-58.
32 RCW 9.94A.030(55)(a)(viii).
33 RCW 9.94A.411(2)(a) (listing crimes against persons).
34RCW9.94A.701,.030, .411(2).
35 See Bovd. 174 Wash. 2d at 473.
10
No. 72669-2-1/11
CONCLUSION
Because the trial court did not abuse its discretion by excluding irrelevant
impeachment evidence, we affirm Romero's convictions. We remand for resentencing
consistent with this opinion.
WE CONCUR:
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