                                                                         FILED
                                                                      MARCH 14, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III



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

STATE OF WASHINGTON,                             )
                                                 )     No. 34901-2-III
                     Respondent,                 )
                                                 )
       v.                                        )
                                                 )
PRUDENCIO JUAN FRAGOS-RAMIREZ,                   )     UNPUBLISHED OPINION
                                                 )
                     Appellant.                  )

       KORSMO, J. — Prudencio Juan Fragos-Ramirez (Juan Fragos)1 appeals from

convictions for two counts of aggravated first degree murder of Maria Cruz and her son,

L.L.C. The trial court did not abuse its discretion in excluding third party perpetrator

evidence. We affirm.

                                          FACTS

       The bodies of Ms. Cruz, 18, and her three-year-old son were discovered in her

burned car about 5:54 p.m. on July 2, 2015, roughly 18-20 minutes after smoke was first

reported. The two victims had last been seen in the company of Mr. Fragos about 5:10-

5:15 p.m. that day. Fragos’s home was about one-half mile from the location where the

car and bodies were discovered.



       Appellant’s counsel advised us that his client uses the name Juan Fragos, but that
       1

the name in the case caption is his correct name. Br. of Appellant at 1 n.1.
No. 34901-2-III
State v. Fragos-Ramirez


       There was conflicting evidence whether Fragos and Cruz were in a dating

relationship or not. It did appear that Cruz had been selling large quantities of cocaine

and methamphetamine for Fragos during the final few months of her brief life. In the

days leading up to her death, she had become concerned about having lost some of the

drugs she was supposed to have been selling.

       The relevant events of July 2 began with Fragos texting Cruz 160 times, starting

around 3:00 a.m., despite Cruz telling him that she was going to sleep. That afternoon,

he texted her to meet him at his house in an Othello area orchard and directed her to use a

dirt road; she was not to tell anyone where she was due to security reasons. Cruz

attempted to call Fernando Lopez Aguirre, the father of L.L.C., at 4:57 p.m. from

Fragos’s home. Mr. Lopez, who was drinking beer with his roommate and his boss, did

not answer the phone call.

       Ms. Cruz’s body was discovered kneeling in the front passenger seat of her car,

while L.L.C. was in the backseat. Both had died from multiple gunshot wounds inflicted

by Perfecta 9 mm Luger ammunition. A clean box of that type of ammunition later

would be recovered from a dusty shed on Fragos’s property. A 9 mm handgun was

recovered from the orchard where the car was discovered. The gun appeared to match

one Fragos was seen holding in a photograph.

       Fragos was observed returning to his home around 7:00 p.m. It was after midnight

before police visited with him. By that time he had deleted all of the July 2 text messages

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State v. Fragos-Ramirez


between his phone and Ms. Cruz’s phone. He denied having seen Cruz that day. He also

denied owning a gun.

       After the discovery of the gun, police again questioned Fragos. He told them that

he once owned a gun, but had sold it to Cruz and used the proceeds to buy food for a

barbecue.2 When told that the police had recovered the murder weapon, Fragos told the

detectives that his prints would be found on the gun and that they had enough evidence to

convict him.

       Two counts of aggravated first degree murder eventually were filed. Prior to trial,

the parties filed competing motions concerning “other suspects” evidence. The State

sought to exclude evidence that Lopez had motive to commit the crimes, while the

defense sought to introduce evidence that Lopez had mistreated Cruz and was angry at

her. The court excluded the evidence, finding both that the defense had no admissible

evidence and did not satisfy the foundation for admitting other suspect evidence.

       The case proceeded to jury trial. Lopez was in Mexico during the trial and was

not called on to provide testimony. The defense argued the case on a theory that the

investigation had focused on Mr. Fragos early on and did not consider other possibilities,

including the circle of people in Ms. Cruz’s life. Nonetheless, the jury rejected his




       2
        Shopping receipts contradicted this statement; his brother later would contradict
other portions of the defendant’s story.

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State v. Fragos-Ramirez


argument and convicted him as charged. The trial court imposed the mandatory sentence

of life in prison without possibility of parole.

       Mr. Fragos then timely appealed to this court. A panel considered his appeal

without hearing oral argument.

                                         ANALYSIS

       This appeal presents a single issue. Mr. Fragos contends that the trial court erred

by excluding his other suspects evidence, thereby preventing him from presenting a

defense to the charges. The trial court did not abuse its discretion.

       Well-settled case authority governs our review. Trial court judges have great

discretion with respect to the admission of evidence and will be overturned only for

manifest abuse of that discretion. State v. Luvene, 127 Wn.2d 690, 706-707, 903 P.2d

960 (1995). Discretion is abused where it is exercised on untenable grounds or for

untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       Under both the Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution, a defendant is entitled to present evidence in

support of his defense. State v. Strizheus, 163 Wn. App. 820, 829-830, 262 P.3d 100

(2011). That right, however, does not include a right to present irrelevant or inadmissible

evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010); State v. Hudlow, 99

Wn.2d 1, 15, 659 P.2d 514 (1983). As the proponent of the evidence, the defendant bears



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State v. Fragos-Ramirez


the burden of establishing relevance and materiality. State v. Pacheco, 107 Wn.2d 59,

67, 726 P.2d 981 (1986).

       The defense is allowed to present evidence that another person committed the

crime when it can establish “a train of facts or circumstances as tend clearly to point out

some one besides the prisoner as the guilty party.” State v. Downs, 168 Wash. 664, 667,

13 P.2d 1 (1932); State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). In

establishing a foundation for admission of other suspects evidence, the defendant must

show a clear nexus between the other person and the crime. State v. Rafay, 168 Wn. App.

734, 800, 285 P.3d 83 (2012), review denied, 176 Wn.2d 1023, cert. denied, 134 S. Ct.

170 (2013). The proposed evidence must also show that the third party took a step

indicating an intention to act on the motive or opportunity. Id. However, evidence that

merely establishes a motive to commit the crime is insufficient to establish the

connection. State v. Kwan, 174 Wash. 528, 533, 25 P.2d 104 (1933); State v. Condon, 72

Wn. App. 638, 647, 865 P.2d 521 (1993).

       Here, the trial court rejected the other suspects evidence because it failed to

connect Lopez to the killing, while noting that much of the proffered evidence also was

inadmissible hearsay or excludable by ER 404(b). Since the evidence failed to meet

foundational requirements, we need not discuss the other evidentiary concerns noted by

the trial judge.



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State v. Fragos-Ramirez


       Although Mr. Fragos argues his case is similar to the decision in State v. Ortuno-

Perez, 196 Wn. App. 771, 385 P.3d 218 (2016), it is not. There the other suspects were

admittedly at the scene of the shooting, were armed, and had opportunity to fire the fatal

shot. Id. at 776-777. Here, no evidence was ever presented linking Lopez to the crime

scene. Instead, the facts of this case are very similar to State v. Wade, 186 Wn. App. 749,

346 P.3d 838 (2015).

       There, as here, the defendant was convicted of murder in the death of a woman

and criticized the police investigation as flawed for failure to investigate other suspects—

primarily the victim’s ex-boyfriend. Id. at 763. The former boyfriend had previously

assaulted the victim several years earlier, was subject to a no-contact order, and left

voicemail “implied threats” three months before the killing. Id. at 765. Extensive testing

did not turn up any of the former boyfriend’s DNA or fingerprints at the crime scene—

the victim’s apartment. He also did not appear on the security camera recordings for the

apartment building. Id. at 765-766.

       On those facts, Division One of this court agreed with the trial court that the other

suspects evidence was not admissible, noting that the trial court “properly focused solely

on the connection of the proffered other suspect evidence to the crime.” Id. at 766. The

fact that the ex-boyfriend was a “bad actor” with a violent history and “a motive to harm

her” was not enough. Id. at 766-767. The court noted that there was “no physical

evidence connecting” the boyfriend to the murder and “no evidence” that he “was

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State v. Fragos-Ramirez


anywhere near" the "apartment when the crime occurred." Id. at 767. Accordingly, there

was no evidence leading to a "nonspeculative" link between the crime and the ex-

boyfriend. Id.

       This case is in the same factual situation. Mr. Fragos failed to present any

evidence that put Lopez at the scene, or even in the general vicinity. The fact that Lopez

may have mistreated Ms. Cruz previously and allegedly may have had a motive to harm

her was irrelevant in light of any evidence establishing that he had the opportunity to

commit the murders during the 5:00 hour on July 2, 2015. Absent that connection, there

was no foundation for admitting the other suspects evidence.

       The trial court correctly excluded the evidence due to the insufficient foundation.

There was no error. The convictions are 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.




WE CONCUR:




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