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

STATE OF WASHINGTON,                              No. 74220-5-1


                     Respondent,

          v.



GERMAN LOPEZ CASTRO,                              UNPUBLISHED OPINION

                     Appellant.                   FILED: February 6, 2017


      Verellen, C.J. — Ajury convicted German Lopez Castro of assaulting his

estranged wife while armed with a deadly weapon and found he committed the
offense within the sight and sound oftheir minor children. Lopez Castro seeks
reversal, arguing the trial court erred in denying his motion for a mistrial related to an
ex-girlfriend's testimony that Lopez Castro had assaulted her in the past. Given the
strength of the State's case, the repeated limiting instructions, the phrasing of a
juror's question during closing argument, the inconsistencies in the ex-girlfriend's
testimony, and her impeachment on cross-examination, the limiting instruction cured
the prejudicial effect ofthe ex-girlfriend's testimony. Therefore, we affirm.
                                         FACTS


       The State initially charged Lopez Castro with one count of second degree
assault while armed with a deadly weapon, alleging that on July 26, 2015, he

threatened to "end it all" and pulled a knife on his estranged wife Stephanie Lopez
No. 74220-5-1/2



Castro.1 Police arrested Lopez Castro when he left Stephanie's apartment and went

out to the parking lot.

       Following Lopez Castro's arrest, Stephanie spoke with Lopez Castro's then-

girlfriend Tara Larue. Larue told Stephanie that six days earlier, on July 20, 2015,

Lopez Castro forced Larue to go with him to Stephanie's apartment because he

planned to kill Stephanie. Larue said they waited outside for Stephanie to leave for

work, but Stephanie was not at home.

       Before trial, the State amended the information to include one count of felony

harassment while armed with a deadly weapon, occurring on or about July 20

through 26, 2015, and an additional aggravator for both counts because they were

committed within the sight and sound of Stephanie and Lopez Castro's minor

children. The State's theory was that the harassment charge could be based on

either the "end it all" threat on July 26, or the threat to kill heard by Larue on July 20,

which she later relayed to Stephanie.

       At a pretrial hearing, the State sought to admit allegations by Stephanie and

Larue that Lopez Castro previously abused both women. The State argued

Stephanie's allegations were relevant to show the reasonableness of Stephanie's
fear, an element of harassment. As to Larue's allegations, the State argued they

were relevant to show why Larue did not contact the police after the July 20 incident.

       The defense moved to exclude the allegations of prior abuse. It surmised the

State could not prove any of the allegations. Nonetheless, the defense agreed Larue

was expected "to testify that, on July 20th, she believed Mr. Lopez Castro was going


         For clarity, we will refer to Stephanie Lopez Castro by her first name.
No. 74220-5-1/3



to his wife's house and waiting ... to kill her, that [Larue] then went to work and did

nothing for the next six days."2 The defense expected "to elicit testimony that [Larue]

had Stephanie Lopez Castro's phone number" but "never contacted her."3

       In a preliminary hearing, the trial court asked whether both sides wanted "to

get into it?"4 Defense counsel responded, "I think it's going to come out, just to be

perfectly frank with the Court."5 The court clarified:

              Very well. As to what Stephanie will be able to say, Stephanie's
       allegations, if I find that they have been proved by a preponderance,
       are relevant and admissible on Count 2 [the harassment charge].

               Ms. Larue's allegations—again, if I find that by a preponderance
       that the allegations are correct—are likewise relevant and admissible in
       order to explain a subject that both sides want to get into, which is that
       Ms. Larue did not tell Stephanie nor the police nor take any action
       whatsoever, apparently, for about five days after an alleged incident in
       which the defendant said that he was going to kill Stephanie in front of
       the children.^

       Both Stephanie and Larue testified at the ER 404(b) hearing.7 Larue testified

that around 5:00 a.m. on July 20, 2015, Lopez Castro told her "to get out of bed" and

that she "needed to go with him right then."8 Lopez Castro said, "We're going to go

to Stephy's house. Nobody calls the cops on me. I'm going to kill that bitch."9 Larue




       2 Report of Proceedings (RP) (Oct. 12, 2015) at 18-19.
       3Id, at 19.
       414
       5lo\
       6 id, at 19-20.
       7 Lopez Castro does not challenge the admission of Stephanie's allegations.
       8RP(Oct. 13, 2015) at 120.
       9 Id. at 120.
No. 74220-5-1/4



and Lopez Castro then went to Stephanie's home. Lopez Castro wanted to wait for

Stephanie to come outside so that he could kill or hurt her or their children "and see

how that made her feel."10 Lopez Castro brought Larue with him so she "could tell

the cops when they came after he hurt [Stephanie] that he didn't do anything."11

Larue did not report the incident to police because she did not have a phone and was

concerned about having "to deal with the repercussions of not doing what [Lopez

Castro] said."12 Larue explained that she did not have a phone because Lopez

Castro "made sure I didn't have a means of communication with anybody."13

       Lopez Castro had been physical with Larue several times in the past. He had

cracked her ribs, choked her, spit in her face, poured beer on her, and damaged her

property. Lopez Castro also held a knife to Larue's throat on one occasion and

kidnapped her from a public place by forcing her into his car. Larue never reported

any of these incidents because "[tjhings could have probably gotten worse than what

they already were."14 Larue said Lopez Castro scared her. When asked to

elaborate, Larue testified to Lopez Castro telling her "I wonder if your kids will come

to your funeral after I kill you."15




       10 Id, at 121.
       11 id, at 126.
       12 Id, at 121.
       13 id, at 128.
       14 id, at 123.
       15 Id. at 125.
No. 74220-5-1/5



       The court found Larue's testimony about the July 20 incident relevant to show

that Lopez Castro had a plan to threaten Stephanie "and an actual intent to do so."16

It further found her testimony tended to explain why "Larue failed to notify the police"

about the incident.17 The court ruled that since both sides indicated they wanted to

"get into" Larue's failure to report the incident, her fear of Lopez Castro and her

reasons for fearing him were "all relevant" to explain why she did not call the police.18

       When Larue testified at trial, the prosecutor began by asking questions about

her relationship with Lopez Castro. Larue said that at first it was great, but that it

changed. The prosecutor asked her how it changed, and Larue said they "started

arguing a lot," and that Lopez Castro "would get physical" with her.19 Defense

counsel immediately objected: "I'm going to object at this point as the relevance of

this testimony has not yet been established."20 The court overruled the objection and

allowed Larue to continue.

       Larue testified that Lopez Castro pushed her in a room, strangled her, spit on

her, and belittled her. Larue did not report any of these incidents because she "was

worried about what would happen as a repercussion."21 She explained that Lopez

Castro had threatened her numerous times, asking if her children would come to her

funeral and showing her videos of how she would die. The prosecutor then asked



       16 id, at 147.
       17 id, at 147.
       18 Id, at 147-48.
       19 kL at 175.
       20 id,
       21 Id. at 176.
No. 74220-5-1/6



Larue why she did not refuse to go with Lopez Castro to Stephanie's on July 20, and

she explained, "I wasn't going to refuse to go with him. . . . [F]irst of all, it wasn't an

option to say no to German ever. . . . [b]ecause he'd—repercussions. He wouldn't

accept no. I just did what he said to keep myself safe."22 When asked whether there

was a reason she did not report the July 20 incident to police, Larue responded, "No.

I, I just did what [Lopez Castro] told me. He took me back home. I went to work. I

haven't had a phone [in] forever. He made sure I had no connection to anybody."23

       Although Larue testified that she did not have a means of communication, she

later testified that she texted Stephanie on July 19, 2015 from her roommate's phone.

On cross-examination, Larue revealed that based on that text exchange she knew

Stephanie was not at home on July 20, and that was the reason she did not call 911

to alert the police.

       Later in her testimony, Larue stated Lopez Castro had threatened her in the

past with a knife. She described the incident as "He just ran after me into a stairwell

of my friend's apartment and put the knife on me there."24 The prosecutor did not

elicit any further details about the incident. On cross-examination, defense counsel

brought out that Lopez Castro had held the knife to Larue's throat and then dropped

it and began crying. Defense counsel also brought out that Larue did not call the

police because she had warrants for her arrest.




       22 id, at 185.
       23 id, at 178.
       24 Id. at 184.
No. 74220-5-1/7



      The following morning, the court held a hearing outside the presence of the

jury to discuss the defense's proposed limiting instruction as to the ER 404(b)

testimony. The court noted that it did not recall Larue testifying that the reason she

did not report the July 20 incident to police was because of her fear of Lopez Castro,

as she had testified in the ER 404(b) hearing. The court stated it therefore regretted

overruling the defense's objection to the relevance of Larue's testimony about the

prior abuse.

       Although Larue testified about her fear of reporting any of the acts of abuse to

police because of Lopez Castro's threats to kill her, Larue did not specifically state

that her reason for not reporting the July 20 incident was because of fear.

       The defense moved for a mistrial. The prosecutor opposed the mistrial and

proposed instead that the trial court strike all of Larue's testimony about the prior

abuse and instruct the jury to disregard it. The court acknowledged that in some

cases striking the testimony would be pointless because "the testimony is so powerful

that it would be too much to ask" that a jury "set aside what they know the testimony

was."25 It nonetheless determined that the jury could follow an instruction to

disregard all of Larue's testimony about prior abuse, such that Lopez Castro "would

be able to get a fair trial."26 The court noted,

       [A] different situation would present itself if this evidence came out of
       nowhere . . . But we know that she has said this. She has said "I fear
       the defendant because of these things." It's not as though the evidence
       was unfairly obtained in any way. It's just that, having fairly obtained



       25RP(Oct. 14, 2015) at 251.
       26 Id.
No. 74220-5-1/8



       the evidence, the State was unable to see it recreated when the State
       needed it.[27]

       The court then read, and repeated at defense counsel's request, the following

instruction to the jury:

              You have heard evidence of unreported and uncorroborated
       allegations of prior physical contact between the defendant German
       Lopez Castro and both Stephanie Lopez Castro and Tara Larue. You
       are to disregard all the evidence presented by Ms. Larue concerning
       allegations of prior physical contact between her and the defendant.

             I repeat, you are to disregard utterly all the evidence presented
       by Ms. Larue concerning allegations of prior physical contact between
       her and the defendant.™

The court continued with the remainder of the instruction regarding Stephanie's

testimony, which is not at issue here.

       A.L.C, Stephanie and Lopez Castro's eldest daughter, testified about the July

26 incident. A.L.C, her two brothers and her cousin were at Stephanie's apartment

when Stephanie and Lopez Castro began arguing. A.L.C. testified that Lopez Castro

said he was going to "end it" and grabbed a big knife.29 He held the knife up to a

television in the kitchen. He then locked the front door, pushed Stephanie against

the wall, and held the knife near her neck. A.L.C. testified that everyone in the

apartment started screaming and it was then that Lopez Castro dropped the knife.

A.L.C. picked up the knife to get it away from Lopez Castro because she thought he

was going to hurt her mother. Lopez Castro grabbed the knife from A.L.C. and left




       27 id, at 252.
       28 id, at 260 (emphasis added).
       29 Id. at 303.



                                           8
No. 74220-5-1/9



the apartment. A.L.C. identified the State's trial exhibit 8 as the knife Lopez Castro

had grabbed.

       Stephanie testified consistently with A.L.C.'s description of key aspects of the

July 26 incident. Stephanie added that she told A.L.C. to call the police once Lopez

Castro grabbed the knife. Stephanie testified that Lopez Castro "came towards me,

[and] said, 'Yeah, call the cops so I can end it all.'"30 Stephanie understood Lopez

Castro's statement to mean "that he wanted to kill us and himself."31 She believed

his threat because he had told her on "previous occasions" that he wanted to "end it

all, meaning kill me, my kids, and himself."32 Stephanie described two incidents

within the past year when Lopez Castro had choked her and threatened to jump off a

balcony with her.

       During closing argument, the prosecutor began by referencing all of the

witnesses' testimony: "[Y]ou had an opportunity to hear from witnesses. You heard

from Stephanie Lopez Castro; you heard from Tara Larue; and you also heard from

[A.L.C]."33 One of the jurors immediately interrupted, asking, "Wasn't Tara Larue's

testimony wiped from the records?"34 At the request of both the prosecutor and

defense counsel, the court then reread the limiting instruction to the jury.




       30RP(Oct. 13, 2015) at 218.
       31 id,
       32 Jd, at 218-19.
       33RP(Oct. 15, 2015) at 390.
       34 Id.
No. 74220-5-1/10



      The jury found Lopez Castro guilty of second degree assault while armed with

a deadly weapon and found that he committed the crime in front of the victim and his

minor children. The jury acquitted him of the harassment charge.

       Lopez Castro appeals.

                                        ANALYSIS

                                    Motion For Mistrial

       Lopez Castro argues the trial court erred in denying his motion for a mistrial.

We review a trial court's decision to deny a motion for mistrial for abuse of

discretion.35 A trial court abuses its discretion in denying a motion for a mistrial only

if its decision is manifestly unreasonable or based on untenable grounds.36
       A trial court has broad discretion to rule on irregularities during the course of a

trial.37 Determining whether an irregularity during trial is so prejudicial as to warrant a

mistrial depends on (1) the seriousness of the irregularity, (2) whether the statement

was cumulative of other properly admitted evidence, and (3) whether the irregularity

could be cured by an instruction to disregard the remark.38
       The trial court is in the best position to determine if a trial irregularity caused

prejudice.39 A mistrial should be granted "only when the defendant has been so

prejudiced that nothing short of a new trial can insure that the defendant will be tried



       35 State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003).
      36 State v. Allen, 159Wn.2d 1, 10, 147 P.3d 581 (2006) (quoting Statev,
Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)).
       37 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).
       38 State v. Perez-Valdez, 172 Wn.2d 808, 818, 265 P.3d 853 (2011).
       39 Id. at 819.



                                             10
No. 74220-5-1/11



fairly."40 We will reverse the trial court only ifthere is a substantial likelihood the trial

irregularity affected the jury's verdict.41

       Larue's testimony about Lopez Castro's prior acts of abuse towards her

amounts to a significant trial irregularity. ER 404(b) embodies an express policy

against the admission of evidence of prior crimes, wrongs, or acts except in very

limited circumstances and for limited purposes. Although the purpose of Larue's

testimony at trial was to explain why she did not report the July 20 incident to police,

she never made the direct link that she did not report the incident because she was

afraid of Lopez Castro, as she had in the ER 404(b) hearing. Moreover, although

defense counsel elicited the testimony on cross-examination, Larue described an

incident of prior abuse in which Lopez Castro held a knife to her throat, an allegation

similar to Lopez Castro's assault charge here. Larue's testimony was not cumulative

or repetitive of other evidence here because no other witness testified to the abuse

Larue suffered.


       The key question, however, is whether the trial court's limiting instruction to

the jury to disregard Larue's testimony about her prior abuse could cure the error. To

neutralize any possible prejudice, the trial court instructed the jury, and repeated at

defense counsel's request, "You are to disregard all the evidence presented by Ms.

Larue concerning allegations of prior physical contact between her and the

defendant. / repeat, you are to disregard utterly all the evidence presented by Ms.

Larue concerning allegations of prior physical contact between her and the



       40 State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986).
       41 State v. Rodriguez. 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002).


                                              11
No. 74220-5-1/12



defendant."42 "A jury is presumed to follow jury instructions and that presumption will

prevail until it is overcome by a showing otherwise.'"43

       Lopez Castro argues that State v. Escalona44 illustrates why the limiting

instruction could not neutralize the prejudicial effect of Larue's prior abuse testimony.

During Escalona's trial on a charge of assault in the second degree with a deadly

weapon, Escalona's roommate, the victim, explained that he was nervous that he

would be stabbed in a confrontation with Escalona because Escalona "already has a

record and had stabbed someone."45 The trial court ordered the comment stricken,

denied a motion for a mistrial, and instructed the jury to disregard the remark.

       This court reversed, viewing the unsolicited statement as "extremely serious"

because it was inadmissible evidence of a prior crime, there was a paucity of credible

evidence against Escalona, and the State's case consisted primarily of the victim's

testimony, which contained many inconsistencies.46 This court also found that the

evidence was not cumulative as any such evidence was excluded by the ruling in

limine. And finally, this court found that "it would be extremely difficult, if not

impossible, in this close case for the jury to ignore this seemingly relevant fact."47




       42 RP (Oct. 14, 2015) at 260-61 (emphasis added).
       43 Carnation Co., Inc. v. Hill, 54 Wn. App. 806, 811, 776 P.2d 158 (1989)
(quoting Tennant v. Rovs. 44 Wn. App. 305, 315, 722 P.2d 848 (1986)); see also
State v. Stenson, 132 Wn.2d 668, 730, 940 P.2d 1239 (1997).
       44 49 Wn. App. 251, 742 P.2d 190 (1987).
       45 id, at 255.
       46 id,
       47 Id. at 256.



                                             12
No. 74220-5-1/13



      We conclude this situation is distinguishable from Escalona. Escalona was a

"close case" because the only evidence of guilt was internally inconsistent testimony

of the victim who made the improper statement.48 Unlike Escalona, the State's case

here was strong. The State offered the eyewitness testimony of A.L.C, who testified

that she loves her father. Stephanie testified consistently with A.L.C's description of

key aspects of the incident. The State also offered the testimony of the police officer

who responded to the 911 call. The officer testified that when he found Lopez Castro

in the parking lot of Stephanie's apartment, the officer asked, "Where is the knife?"

and Lopez Castro responded that "it was inside of his car."49 Stephanie and A.L.C's

accounts were corroborated by physical evidence, including Lopez Castro's weapon,

seized at the scene, and identified by A.L.C. as the State's trial exhibit 8.

       Further, Juror 6 interrupted the prosecutor's closing argument here, asking,

"Wasn't Tara Larue's testimony wiped from the records?"50 The phrasing of Juror 6's

question reveals that the juror clearly understood the court's limiting instruction. And

after a third reading of the instruction, it is appropriate to conclude that the rest of the

jury understood the instruction. Larue also had several inconsistencies in her

testimony and was impeached on cross-examination. For example, she testified she

did not report the July 20 incident because she did not have access to a phone, but

she texted Stephanie on July 19 from her roommate's phone. On cross-examination,

Larue revealed that she knew Stephanie was not at home on July 20 and that was



       48 id,
       49RP(Oct. 13, 2015) at 168.
       50RP(Oct. 15, 2015) at 390.


                                             13
No. 74220-5-1/14



the reason she did not report the incident. She further revealed that she did not

report the incident because she had warrants out for her arrest. These

inconsistencies were explored in closing argument.

       In determining whether a mistrial should have been granted, "'[e]ach case

must rest upon its own facts.'"51 Here, Larue testified that she went with Lopez

Castro to Stephanie's apartment on July 20 because she was afraid of him: "[l]t

wasn't an option to say no to German ever. ... He wouldn't accept no. I just did what

he said to keep myself safe."52 Her testimony clearly reveals Lopez Castro's

domination and control. Consistent with this background, Larue's testimony was not

the irregularity in Escalona of a witness unexpectedly blurting out that the defendant

had a record and previously stabbed someone.

         We conclude the trial court did not abuse its discretion in denying the motion

for a mistrial. It was within the court's discretion to determine the impact in this

setting and whether the jury could understand the limiting instruction. The trial court

repeated the instruction three times. And the jury acquitted on the harassment

charge. Given the strength of the State's case, the court's repeated limiting

instructions, the phrasing of Juror 6's question during closing argument, the

inconsistencies in Larue's testimony, and her impeachment on cross-examination,

the limiting instruction cured the prejudicial effect of Larue's testimony about her prior

abuse.




         51 State v. Morsette, 7 Wn. App. 783, 789, 502 P.2d 1234 (1972) (quoting
State v. Albutt, 99 Wash. 253, 259, 169 P. 584 (1917)).
         52RP(Oct. 13, 2015) at 185.


                                             14
No. 74220-5-1/15



       Lopez Castro argues the prosecutor committed misconduct by preemptively

introducing Larue's allegations of prior abuse, thereby depriving Lopez Castro of his

right to a fair trial. We disagree.

       A defendant claiming prosecutorial misconduct bears the burden of

establishing that the challenged conduct was both improper and prejudicial.53 When

the defendant objects to alleged misconduct or moves for a mistrial, an appellate

court accords the trial court deference because it is in the best position to assess

potential prejudice.54 Consequently, we review the trial court's ruling on alleged

misconduct for an abuse of discretion and will overturn the court's decision only if the

defendant demonstrates a substantial likelihood that the alleged misconduct affected

the verdict.55

       Citing State v. Fisher,56 Lopez Castro contends his prior acts of abuse towards

Larue were admissible to explain Larue's delayed reporting only ifthe defense first

made an issue of the delay. He misreads Fisher-

       Fisher upheld a trial court ruling that prior physical abuse "was admissible

conditioned upon the defense's making an issue of [the victim's] delayed reporting."57
Fisher did not hold that delayed reporting must be made an issue before ER 404(b)

evidence is admissible to explain a delay. Moreover, here, during the pretrial hearing

on the motions in limine, the trial court expressly asked the parties whether they


       53 State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003).
       54 Stenson, 132 Wn.2d at 719.
       55 State v. Lindsay, 180 Wn.2d 423, 430-31, 326 P.3d 125(2014).
       56 165 Wn.2d 727, 745-46, 202 P.3d 937 (2009).
       57 Id. at 746.



                                           15
No. 74220-5-1/16



wanted "to get into" the issue of Larue's failure to report the July 20 incident, and

both parties responded affirmatively. And, as the State points out, when the State

reasonably anticipates an attack on its witness's credibility, it may address the issue

on direct examination.58 Therefore, Lopez Castro fails to establish that the

prosecutor's preemptive introduction of Larue's allegations of prior abuse was

improper.

                                     Appellate Costs

       Lopez Castro argues that if the State is the substantially prevailing party on

appeal, we should not impose costs against him because he is indigent.

       Appellate courts may require an adult offender convicted of an offense to pay

appellate costs.59 The commissioner or clerk will award costs if the State is the

substantially prevailing party on appeal, "unless the appellate court directs otherwise

in its decision terminating review."60

       A determination of a criminal defendant's indigency is entrusted to the trial

judge, whose finding of indigency we respect unless we are shown good cause not to

do so.61 Under RAP 15.2(f), where a party has been granted an order of indigency,

the party and the party's counsel must bring to the attention of the trial court any



       58 See State v. Bourgeois, 133 Wn.2d 389, 402, 945 P.2d 1120 (1997)
(explaining it was not error for the State to question a witness about his reluctance to
testify "because his credibility was attacked. Although the attack occurred after [the
witness] was directly examined by the State, it was reasonable for the State to
anticipate the attack and 'pull the sting' of the defense's cross-examination").
       59 RCW 10.73.160(1).
       60 RAP 14.2.
       61 State v. Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185
Wn.2d 1034, 377 P.3d 733 (2016).


                                            16
No. 74220-5-1/17



significant improvement during review in the party's financial condition. We give "a

party the benefits of an order of indigency throughout the review unless the trial court

finds the party's financial condition has improved to the extent that the party is no

longer indigent."62

       The trial court issued an order finding Lopez Castro indigent and authorizing

him to appeal in forma pauperis. The trial court has not found that his financial

condition has improved or is likely to improve. The State offers no new financial

information. We therefore presume that Lopez Castro remains indigent. Under these

circumstances, we conclude that an award of appellate costs to the State is not

appropriate.

       We affirm.




WE CONCUR:




                       J


                                                                                    rn


                                                                                     1




                                                                                    CO
       62 id, (quoting RAP 15.2(f)).


                                            17
