                                                             FILED
                                                         DECEMBER 21, 2017
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                            )         No. 33958-1-111
                                                )
                         Respondent,            )
                                                )
       V.                                       )         UNPUBLISHED OPINION
                                                )
FRANCISCO J. RESENDEZ MIRANDA,                  )
                                                )
                         Appellant.             )

       PENNELL,   J. -    Francisco Miranda appeals his convictions for three counts of

aggravated first degree murder. We affirm.

                                            FACTS

       The facts of this case are lengthy and well known to the parties. We discuss only

those portions necessary to resolve the parties' contentions.
      No. 33958-1-111
      State v. Miranda


             In the early hours of an August 2014 morning, three dead bodies were located in a

      remote area of a Benton County farm. The victims were identified as David Perez

      Saucedo Jr., Abigail Renteria Torres, and Victoria Torres. Forensic examiners opined

      that Mr. Saucedo and Abigail Torres had been shot at close range and died quickly. Mr.

      Saucedo had two gunshot wounds to his head. Abigail Torres had a single gunshot

      wound to her head and was discovered to have been pregnant with a full-term child. The

      condition of Victoria Torres's body was different. It appeared to examiners that Victoria

      Torres had been shot while trying to run away. Victoria Torres also had marks on her

      neck consistent with strangulation and a physical struggle.

             Law enforcement's investigation came to focus on Francisco Miranda, his father,

      and his two brothers. Only Mr. Miranda was ultimately arrested. Mr. Miranda's family

      members all left for Mexico prior to coming to the attention of the authorities.

             Mr. Miranda made a number of statements that were used against him at trial.

      While Mr. Miranda's statements to law enforcement were merely inconsistent, as opposed

      to directly incriminating, the same was not true of his statements to lay witnesses.

      Several witnesses testified that Mr. Miranda had admitted to being involved with the

      shootings along with his family members. One of the lay witnesses (a jail inmate)




                                                   2
1

Ij'

I
No. 33958-1-III
State v. Miranda


reported Mr. Miranda stating that one of the female victims had not died right away, so

his family members took a belt and stepped on her throat.

       Apart from recounting Mr. Miranda's various confessions, several witnesses

placed Mr. Miranda together with the victims the night before the murders. One of the

witnesses also said Mr. Miranda had borrowed his loaded .38-caliber revolver the night of

the murders. When the firearm was later returned, the ammunition was gone and blood

spatter was located around the barrel. 1

       The State's theory was that Mr. Miranda sought revenge against Mr. Saucedo for

burglarizing his apartment. Mr. Miranda and his family members abducted Mr. Saucedo

and his two female companions, took them out to a remote farm, and then shot them

execution style. Consistent with Mr. Miranda's confession, the State theorized that Mr.

Miranda's family members had strangled Victoria Torres after she escaped from the

initial shooting.

       The forensic evidence implicating Mr. Miranda was limited. The suspect firearm

had been thrown in a river. Shoe prints and trace evidence from the scene did not connect

back to Mr. Miranda. However, law enforcement were able to uncover a relevant item of




       1
       The witness threw the firearm into a river before it could be analyzed by law
enforcement.

                                            3
No. 33958-1-III
State v. Miranda


clothing during a search of Mr. Miranda's apartment. The article was a tank top marked

with a blood stain that was traced to Victoria Torres.

       Mr. Miranda was charged with three counts of first degree murder with

aggravating factors for there being more than one victim as to all three counts,

RCW 10.95.020(10), and an additional aggravating factor based on the fact that one

of the victims was pregnant at the time of her death, RCW 9.94A.535(3)(c).

       At trial, the State introduced through its medical examiner an autopsy photograph

depicting the fetus taken from Abigail Torres's womb. The medical examiner explained

he had selected the photograph as a jury exhibit because it was helpful in explaining that

the baby was full term and that the victim's pregnancy would not have appeared subtle to

the outside observer. The trial court admitted the autopsy photo over Mr. Miranda's

objection, reasoning its probative value outweighed any prejudice.

       At the conclusion of trial, Mr. Miranda objected to the court's inclusion of an

accomplice liability instruction. Relevant to this appeal, Mr. Miranda argued there was

insufficient evidence 'to prove he was a major participant in the killings and, therefore, it

was unfair to allow the State to prove he acted as an accomplice to uncharged individuals.

The trial court disagreed with Mr. Miranda's arguments and permitted the instruction.




                                              4
No. 33958-1-111
State v. Miranda


       In addition to his objection to the State's instructions, Mr. Miranda also requested

lesser included instructions on second degree murder. The court determined this

instruction was factually unwarranted. The judge explained that, without resorting to

speculation, he was "unable to postulate or to put together any line of reasoning that's

supported by the evidence that would justify instructions on the lesser included,"

14 Verbatim Report of Proceedings (Nov. 19, 2015) at 2147, and there were no "facts that

would support anything other than premeditated and first degree murder with respect to

all three victims," Id. at 2149.

       The jury found Mr. Miranda guilty of all three charges. It further found the

common scheme aggravator applied to all three counts. However, the jury did not find

Mr. Miranda knew Abigail Torres was pregnant at the time she was killed. Thus, an

aggravator was not imposed under RCW 9.94A.535(3)(c). Mr. Miranda was sentenced to

life in prison without the possibility of parole. He appeals.

                                        ANALYSIS

Autopsy photo

       A trial court's admission of autopsy photographs is reviewed for abuse of

discretion. State v. Yates, 161 Wn.2d 714, 768, 168 P.3d 359 (2007). Such photos, even




                                              5
No. 33958-1-III
State v. Miranda


if gruesome, are admissible when the probative value outweighs the prejudicial effect.

Id.; ER 403.

       Autopsy photos can be relevant to help the jury understand a medical examiner's

testimony. State v. Whitaker, 133 Wn. App. 199, 229, 135 P.3d 923 (2006); State v.

Gentry, 125 Wn.2d 570, 608, 888 P.2d 1005 (1995). Such photos may also help show the

extent of a victim's injuries, or tend to establish elements of the offense such as intent,

premeditation, or knowledge. Yates, 161 Wn.2d at 768-69; State v. Crenshaw, 98 Wn.2d

789, 806-07, 659 P.2d 488 (1983).

       While autopsy photos are often relevant, they can also be prejudicial and

unnecessarily cumulative. Trial courts should be wary of admitting autopsy photographs

that are cumulative of other evidence. See Crenshaw, 98 Wn.2d at 807. But while the

law requires restraint, it does not demand "preclusion simply because other less

inflammatory testimonial evidence is available." State v. Stackhouse, 90 Wn. App. 344,

358,957 P.2d 218 (1998).

       Here, the trial court appropriately weighed the probative value of the autopsy

photo against its potential for prejudice. The judge stated he admitted the photo because

it would aid the jury's understanding of the medical examiner's testimony and help the

State show a reasonable person would have known the victim was pregnant at the time of


                                              6
No. 33958-1-111
State v. Miranda


her death. There is no indication the State sought to use the autopsy photograph for

emotive purposes. Given these circumstances, the trial court had a reasonable basis for

admitting the photo. See Whitaker, 133 Wn. App at 227 ("Unless it is clear from the

record that the primary reason to admit gruesome photographs is to inflame the jury's

passion, appellate courts will uphold the decision of the trial court.").

       While the autopsy photo was somewhat cumulative of other evidence, Mr.

Miranda cannot establish any prejudice from its admission. If the jury had been

improperly inflamed by the photo, one would expect the prejudice would have manifested

itself through an adverse finding on the pregnancy aggravator, RCW 9.94A.535(3)(c).

But the jury did not make this finding. When asked if the State had proved Mr. Miranda

knew Abigail Torres was pregnant, the jury answered, "No." Clerk's Papers (CP) at 76.

Given the jury's disposition, it is apparent the photograph had no improper impact on the

verdict.

Accomplice liability jury instruction

       The theory of accomplice liability set forth at RCW 9A.08.020 permits the State to

hold individuals accountable for the conduct of others. A person may be found guilty as

an accomplice when, "[w ]ith knowledge that it will promote or facilitate the commission

of the crime," the person "[s]olicits, commands, encourages, or requests such other person



                                              7
No. 33958-1-111
State v. Miranda


to commit it," or "[a]ids or agrees to aid such other person in planning or committing it."

RCW 9A.08.020(3)(a)(i)-(ii). Essentially, the State "must prove the substantive crime

was committed and the accused acted with knowledge that he or she was aiding in the

commission of the offense." State v. Lazcano, 188 Wn. App. 338, 363, 354 P.3d 233

(2015).

       Mr. Miranda argues the court should not have provided the jury with an

accomplice liability instruction because it lacked evidentiary support. We apply a

sufficiency analysis to this argument. State v. Munden, 81 Wn. App. 192, 195, 913 P.2d

421 (1996).

      The State presented sufficient evidence to justify an accomplice liability

instruction. According to the trial testimony, Mr. Miranda and his brothers confronted

Mr. Saucedo about burglarizing Mr. Miranda's apartment. Mr. Miranda and his family

members then abducted Mr. Saucedo and his female companions and took them out to the

farm. While it is unclear exactly who did what at the murder scene, the State's evidence

shows Mr. Miranda played a significant role. Mr. Miranda procured a firearm before

going out to the farm and he confessed to firing shots at the victims. Although Mr.

Miranda's family members may have also facilitated the victims' deaths, the State's

evidence showed Mr. Miranda was closely involved. The totality of the evidence



                                             8
     No. 33958-1-111
     State v. Miranda


     provided a strong basis for the jury to find Mr. Miranda liable as either a principal or an

     accomplice to all three murders.

     Lesser included jury instruction

            At trial and on appeal, Mr. Miranda has argued that the trial court should have

     instructed the jury on the lesser included offense of second degree murder. While second

     degree (intentional) murder legally qualifies as a lesser included offense to aggravated

     first degree (premediated) murder, the trial court denied Mr. Miranda's request because it

     was factually inapplicable. We review the trial court's assessment for abuse of discretion.

     State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015).

            A lesser included instruction is only factually appropriate when the affirmative

     evidence at trial supports an inference that the lesser crime was committed. In assessing

     the factual basis for a lesser included instruction, courts view the evidence in the light

     most favorable to the requesting party. State v. Fernandez-Medina, 141 Wn.2d 448, 455-

     56, 6 P.3d 1150 (2000). A lesser included instruction is appropriate if the trial evidence

     affirmatively tends to show the lesser included offense was committed to the exclusion of

     the greater offense. Id. at 455. A lesser included instruction is not warranted simply

     because the jury might disbelieve the State's evidence. Id. at 456.


\
lI
l                                                  9
!
No. 33958-1-111
State v. Miranda


       To qualify for an instruction on the lesser included offense of second degree

murder, Mr. Miranda was obliged to point to facts suggesting the victims were murdered

in a manner that did not involve premeditation. See RCW 9A.32.050(1)(a). As

recognized by the trial court, no affirmative facts support this scenario.

       To the extent one believes (as the jury did) that Mr. Miranda was responsible for

killing the three victims, the evidence supported only premeditation. Even if one could

interpret the evidence to suggest Mr. Miranda originally abducted the victims with the

intent to scare them, not kill them, the evidence from the murder scene shows that once

everyone was out at the farm, the murders were committed with deliberate intent. Unlike

Condon, there is no evidence of a startling event or provocation that might have led

Mr. Miranda and his companions to kill the victims. To the contrary, the forensic

evidence indicates the murders were dispassionate and methodical. Two of the victims

were shot at close range without any signs of resistance. Although the injuries to the third

victim suggest she did not immediately die after being shot, the victim's struggle

appeared purely defensive. There is no indication the victim engaged in some sort of

affirmative or surprising conduct that could have prompted Mr. Miranda and his family

members to fire shots. While one could speculate as to some sort of scenario whereby the

victims provoked an attack, there is no affirmative evidence supporting such a hypothesis.



                                             10
    No. 33958-1-111
    State v. Miranda


l
j
    Speculation is not sufficient to justify a lesser included instruction.
I
f          Because the affirmative evidence was only suggestive of one crime-premediated

    first degree murder-the court's instructional decision was appropriate.

                                          CONCLUSION

           The judgment and sentence of the trial court is affirmed.

           A majority of the panel has determined this opinion will not be printed in the

    Washington Appellate Reports, but it will be filed for public record pursuant to

    RCW 2.06.040.


                                               Pennell, J.
    WE CONCUR:




                                                Siddoway, J.




                                                  11
