            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                               )           No. 78858-2-I
                                                    )
                            Respondent              )           DIVISION ONE
                   v.                               )
                                                    )           UNPUBLISHED OPINION
 JOSE POMPILIO IRIAS SANCHEZ,                       )
                           Appellant.

_________________________________                   )           FILED: March 9, 2020

         HAZELRIGG, J.     —   Jose P. Irias Sanchez (Irias)1 was convicted of assault in

the second degree-domestic violence and felony harassment-domestic violence

after a jury trial. In pretrial motions, the defense sought to exclude prior allegations

of domestic violence. The trial court specifically excluded some acts while allowing

testimony as to others. At trial, the key witness twice violated these pretrial rulings.

In the first instance the court provided a curative instruction.                     In the second

instance, the testimony was not interpreted from Spanish to English for the jury.

Irias argues the admission of the prior bad act evidence was improper and that he

was deprived of a fair trial due to the violations of the pretrial rulings by the witness.




        1   The defendant’s last name is listed both with and without a hyphen in various documents
contained in the record. In the majority of the letters of support submitted for his sentencing, friends
and business associates refer to the defendant as Jose Irias. Further, he appears to sign
documents in the record with only Irias. As this is a common naming convention in Latinx and
Spanish-language dominant communities, and it appears to be how the defendant self-identifies,
we will utilize that practice herein.
No. 78858-2-1/2

When viewed in light of the evidence as a whole, Irias fails to demonstrate that the

statements were so prejudicial as to deprive him of a fair trial. We affirm.


                                       FACTS

       Jose lrias Sanchez was charged with assault in the second degree-

domestic violence and felony harassment-domestic violence. The charges arose

out of an incident in October 2017 when police responded to a 911 call by Liliana

Salazar Hernandez (Salazar). When police arrived, they found Salazar with her

two young daughters in a van a short distance away from the home they shared

with Irias. Salazar reported that her children’s father, Irias, had attacked her with

a machete. Salazar does not speak English and could not communicate directly

with responding officers, so her children and a neighbor assisted as interpreters

with the police.

       Salazar reported that she put her children to bed earlier that evening and

then she went to bed at approximately 9:30pm. Irias had been outside drinking

and came upstairs at approximately 1:00am. Salazar observed Irias go into their

daughters’ room and then come in to their bedroom. Irias began to argue with

Salazar and then left to bathe. Salazar testified that Irias came out of the bathroom

with a machete, pushed Salazar’s face against a pillow and held the machete to

her neck, stating he wanted to “finish everything.” Salazar was ultimately able to

get away, gather her daughters and drive a few blocks away to call the police.

       Irias was taken into custody and charged with assault in the second degree

and felony harassment both with special allegations of domestic violence. Prior to

trial, the State sought to admit alleged prior bad acts involving domestic violence


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within Irias and Salazar’s relationship. None of the prior acts had been reported

to law enforcement previously and the evidence solely consisted of Salazar’s

statements. The defense moved to exclude such testimony, arguing that the State

could not prove them by a preponderance of the evidence.            Defense counsel

further argued that allowing uncorroborated claims of past domestic violence would

be highly prejudicial and would be used for improper inferences as to Irias’

propensity toward violence.

       The trial court excluded allegations of past sexual violence and violence

against the children. However, the court did permit other broader allegations of

ongoing domestic violence to show the “reasonable fear aspects of both charges.”

The court reminded the prosecutor in the case to discuss these limitations with

Salazar. At trial, however, Salazar did testify to past violence by Irias against the

children and sexual violence against her. The court issued a curative instruction

after the testimony about conduct toward the children. The judge was able to

intervene during the testimony regarding sexual violence, preventing the testimony

from being interpreted from Spanish to English for the jury.

       The jury convicted Irias as charged and the court vacated the felony

harassment charge based on merger.              Irias now appeals, arguing the court

improperly admitted evidence of prior bad acts and that the improper testimony by

Salazar deprived him of his right to a fair trial.




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                                     ANALYSIS

I.     Admission of 404(b) Evidence of Prior Bad Acts

       We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007).

However, “[wje review the trial court’s interpretation of ER 404(b) de novo.” State

v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). “Discretion is abused if it is

exercised on untenable grounds or for untenable reasons.” State v. Thanci, 145

Wn.2d 630, 642, 41 P.3d 1159 (2002). “Failure to adhere to the requirements of

an evidentiary rule can be considered an abuse of discretion.” Foxhaven, 161

Wn.2d at 174. The appellant bears the burden of proving an abuse of discretion

occurred. State v. Ashley, 186 Wn.2d 32, 39, 375 P.3d 673 (2016).

       “Generally, evidence of a defendant’s prior misconduct is inadmissible to

demonstrate the accused’s propensity to commit the crime charged.” Fisher, 165

Wn.2d at 744. However, ER 404(b) allows prior misconduct to be admitted for

other purposes, such as proof of a victim’s state of mind. ki.

       To admit evidence of other crimes or wrongs under Washington law,
       the trial court must (1) identify the purpose for which the evidence is
       sought to be introduced, (2) determine whether the evidence is
       relevant to prove an element of the crime charged and (3) weigh the
       probative value of the evidence against its prejudicial effect.
       Additionally, the party offering the evidence of prior misconduct has
       the burden of proving by a preponderance of the evidence that the
       misconduct actually occurred.

State v. Loucih, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) (internal citations

omitted).   The party seeking to introduce the evidence has the burden of

establishing the three steps and that the misconduct actually occurred. Ashley, 186




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Wn.2d at 39. The court must conduct this inquiry on the record and provide a

limiting instruction if the court admits the evidence. ki.

        Here, the State brought a pretrial motion to admit certain ER 404(b)

evidence and Irias opposed. The court heard argument on this and other matters

while addressing motions in limine of the parties prior to seating a jury. Irias argues

that the trial court erred in admitting the prior bad act evidence of previous domestic

violence because the state failed to prove that the prior incidents had occurred, the

evidence was not relevant to an element of assault, and the risk of prejudice from

the evidence substantially outweighed its potential probative value.

        Irias argues that the court was only provided with statements by the victim

without any corroborating evidence and that this was insufficient to support the

court’s finding that the prior acts did occur. However, the defense cites no authority

to support their claim that the court’s finding in this regard was improper absent

such corroboration. We review the court’s determination as to whether the prior

misconduct was proven by a preponderance of the evidence for abuse of

discretion. ki. at 40.

       Both parties cite to Ashley, in which a court admitted evidence of the

defendant’s prior domestic violence against the victim under ER 404(b). kI. at 40.

The court was provided with the victim’s testimony describing instances of

domestic violence by Ashley between 2000 and 2008, along with a police report

from 2004. j.çj~ at 40-41.   Ashley did not present any evidence to refute the

allegations and the court ultimately determined the state had proven the prior

abuse had occurred by a preponderance of the evidence.



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         Here, the trial court was provided with Salazar’s statements to police in the

course of the investigation of the present case in which she mentioned the prior

incidents, her petition for a protection order which discussed previous abuse, the

audio of the protection order hearing that included testimony from Salazar about

prior violence, and the audio of the prosecutor’s interview with her for purposes of

preparing the instant case. Additionally, the record contains a pretrial exhibit

wherein Irias verbally acknowledges that violence existed in the relationship.

         On review, we must determine whether the trial court’s findings are

supported by evidence that was submitted in the record; specifically that the State

demonstrated by a preponderance of the evidence that prior acts of domestic

violence occurred. Here, that standard is met with the evidence described above.

This is further bolstered by the fact that Irias provided statements indicating some

abuse had occurred and provided no evidence refuting the victim’s claims of prior

abuse.

         Next, we address Irias’s argument that the prior misconduct was not

relevant to the charged crimes. “Evidence is relevant if it has a tendency to make

the existence of a fact that is of consequence to the determination of the action

more or less probable than it would be without the evidence.” State v. Maciers, 164

Wn.2d 174, 184, 189 P.3d 126 (2008). The two charges in this case were assault

in the second degree and felony harassment. The relevant subsection under

which lrias was charged with assault states “[a] person commits the crime of

assault in the second degree when he or she assaults another with a deadly

weapon.” The jury instruction defining assault in this case stated:



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        [a]n assault is an act   done with the intent to create in another
        apprehension and fear    of bodily injury, and which in fact creates in
        another a reasonable     apprehension and imminent fear of bodily
        injury even though the   actor did not actually intend to inflict bodily
        injury.

The jury instruction for the felony harassment charge was as follows:

        [a] person commits the crime of harassment when he or she, without
        lawful authority, knowingly threatens to cause bodily injury
        immediately or in the future to another person and when he or she
        by words or conduct places the person threatened in reasonable fear
        that the threat will be carried out and the threat to cause bodily harm
        consists of a threat to kill the threatened person or another person.

Here, the trial court allowed testimony regarding prior domestic violence by Irias

against Salazar “to show the reasonable fear aspect of both charges.” Prior acts

of domestic violence would have some relevance to both counts submitted to the

jury.

        The defense cites to Maqers for the proposition that it is improper for a court

to admit alleged prior violence to support the reasonable fear of an alleged victim,

but that opinion is a plurality and the facts are distinguishable. See 164 Wn.2d 174.

Maqers involved a recanting victim along with an admission of a separate prior bad

act which did not involve the victim. Id. at 178-79. Here, Salazar did not recant

and all of the prior bad acts at issue directly involved her. The trial court did not

abuse its discretion in determining that the prior acts of domestic violence were

relevant to both charges as they tend to increase the probability that Salazar was

reasonably fearful as to both counts.

        Irias also asserts that the trial court abused its discretion in reaching its

determination as to which prior acts were substantially more prejudicial than

probative. The trial court in this case was very specific as to what it determined


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would be admissible and inadmissible on this prong of the ER 404(b) analysis.

The trial court weighed the evidence and determined that any references to

abusing the children would not be allowed in, nor would anything about sexual

violence or coercion. The court determined that it would allow testimony as to

domestic violence by Irias against Salazar generally, an assault incident by Irias

that caused Salazar to miscarry, and Salazar’s claim that Irias would assault her if

she did not do what he wanted.

       Irias argues that the evidence was not particularly probative since anyone

would be fearful if a machete was brandished at them.           However, when this

argument was considered during the ER 404(b) argument, the court noted that the

evidence of the history of physical violence and physical threats “is sufficiently

probative of reasonable fear” and was allowed in. This was despite the reasonable

conclusion that the specific act with the machete underlying the assault in the

second degree charge would result in fear for most people. The trial court did not

abuse its discretion in the analysis and ruling to admit the specific prior bad acts.

       Irias argues that Ashley is instructive here, but it does not advance his

position. 186 Wn.2d 32.      In Ashley, the court admitted the victim’s testimony

regarding prior domestic violence. j~ at 38. The court admitted it for two purposes;

to assess the victim’s credibility and to determine the element of consent as to the

unlawful imprisonment charge. j4. The Supreme Court rejected the claim that the

evidence was properly allowed in for credibility purposes, but did find it proper to

prove the element regarding consent. ki. at 43-44. The court held that, “[i]t is

unquestionably reasonable for the trial court to conclude that a domestic violence



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victim would continue to fear her tormentor, even years after the last incident of

abuse.” ki. at 45.

       The court in Ashley expressly found that the prior abuse was relevant to an

element of the criminal allegation before the court. j~çj~ The court went on to explain

that despite the defense’s general theory that the victim had “made up her story to

avoid getting in trouble, there was no evidence in the record to suggest that [the

victim’s] testimony was untruthful.” k1. at 47. This led to the court’s determination

that there was no need to introduce the domestic violence evidence to defend or

bolster the victim’s credibility. j~ Since the evidence was properly admitted to

prove an element of the crime, its admission for credibility purposes as well was

determined to be harmless error.

      Ashley is not helpful for Irias. In his case, Salazar’s credibility was the main

focus for the defense. Their main defense theory was that Salazar had fabricated

the incident in order to obtain immigration benefits. Though the court here did not

admit the prior bad acts expressly for purposes of credibility analysis, given the

theory of the case and the need for the State to prove the reasonable fear by

Salazar, the court’s determination that past violence, excluding the more

inflammatory allegations such as sexual violence and abuse of children, does not

constitute an abuse of discretion. Though the defense claims that anyone would

be fearful of a machete and the bad act evidence was therefore unnecessary, this

argument is not persuasive.

       In Maqers, our Supreme Court explained that when a defendant enters a

not guilty plea, it puts the burden on the State to prove every element of the crime



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beyond a reasonable doubt. 164 Wn.2d at 183. The court there concluded it was

proper to admit the defendant’s prior bad acts to prove the victim’s reasonable fear

of bodily injury. j~ The same is true here. The trial court engaged in the proper

analysis on the record and considered arguments of counsel before admitting

certain prior bad act evidence and excluding others. We find no abuse of discretion

as to the ruling on admissibility of ER 404(b) evidence.


II.    Statements by Witness in Violation of Pre-Trial Evidence Rulings

       Irias argues he was deprived of a fair trial due to a violation of the court’s

pretrial rulings excluding certain prior bad act evidence. Though the briefing frames

the argument as prosecutorial or witness misconduct, lrias appears to actually

focus his argument on the violation of the pretrial ruling regarding limitation of the

ER 404(b). The standard of review for the trial court’s cure of irregularities, such

as improper testimony, is abuse of discretion. State v. Post, 118 Wn.2d 596, 620,

826 P.2d 172 (1992). Irias argues that in two instances Salazar provided testimony

that violated the court’s order as to the ER 404(b) evidence that was addressed

during motions in limine. The first piece of testimony was when Salazar testified

that Irias struck their children at times. Defense counsel objected and moved to

strike and the court instructed the jury to disregard the improper testimony.

      The second instance was when Salazar testified about instances of sexual

coercion. However, since Salazar’s testimony was conveyed to the jury via a

Spanish-to-English interpreter, the court actually realized she used the term

“sexual relations” during her Spanish-language testimony and stopped the

interpreter before that information could be presented to the jury in English.


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No. 78858-2-I/I I

Outside of the presence of the jury, the court had the interpreter provide the full

statement in English and then instructed the prosecutor to have further discussion

with Salazar about the pretrial rulings. When the jury returned, they were asked if

anyone understood Spanish. One juror said they knew a little Spanish and the

court instructed the jury that that there is an “art of interpretation and translation”

so the jurors should “tune out” the Spanish to the extent they understood any

words. lrias did not move for a mistrial, but now argues that the two instances of

testimony in violation of the pretrial rulings deprived him of a fair trial.

       “To determine the prejudicial effect of an irregular occurrence during trial,

we examine the occurrence’s seriousness, whether it involved cumulative

evidence, and whether the trial court properly instructed the jury to disregard it.”

State v. Thomison, 90 Wn. App. 41, 46, 950 P.2d 977 (1998).                    Here, the

seriousness of the occurrence is significant since the court made very specific

findings as to which prior bad acts were substantially more probative than

prejudicial and the improper testimony was directly in violation of the court’s order

excluding it. j~ at 46. However, we would note the first instance of improper

testimony was much more serious than that of the untranslated testimony due to

the ability for the jury to comprehend the content of the improper statement. The

testimony was not cumulative since no other evidence of abuse of the children or

sexual coercion was offered. However, a trial court is provided with wide discretion

to cure trial irregularities for improper witness statements. Post, 118 Wn.2d at 620.

       Here, the error as to the Spanish-language portion of testimony about

sexual misconduct was sufficiently cured since the jury was never provided with



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the English interpretation of the statement and no juror indicated they were fluent

in Spanish when asked by the court. The comment regarding abuse toward the

children was stricken by the court and the court then again provided a curative

instruction. We presume the jury followed the court’s instruction. Thompson, 90

Wn. App. at 47. Irias has not provided evidence that the instructions of the court

to disregard the testimony were not followed.

       Ultimately, we must ask whether the two improper statements, when viewed

against the background of all the evidence, were so prejudicial that Irias was

denied a fair trial. j.çj. This is not the case. One statement was not conveyed to

the jury in a language they could easily understand and the other comment

regarding violence toward the children, though clearly improper and interpreted

into English, was followed by a curative instruction. Further, given that the defense

was focused on challenging credibility of Salazar’s testimony regarding the

allegation as whole, and the theory that the possibility of obtaining immigration

benefits incentivized her to fabricate this event, the problematic testimony did not

prejudice Irias such that he was denied a fair trial.

       We affirm.



                                                             ‘P
                                                        ~
WE CONCUR:                                                   d




          “1
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