    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE
STATE OF WASHINGTON,
                                              No. 77414-0-I
                            Respondent,
                                              ORDER GRANTING MOTION
                    v.                        FOR RECONSIDERATION,
                                              WITHDRAWING OPINION,
FRANCISCO JAVIER VALDIVIA-                    AND SUBSTITUTING OPINION
ENRIQUEZ,

                           Appellant.


      Respondent State of Washington moved for reconsideration of the opinion filed in

the above matter. Appellant Francisco Valdivia-Enriquez filed a response. The court

has determined that respondent’s motion for reconsideration should be granted, the

opinion should be withdrawn, and a substitute opinion be filed.

      Now, therefore, it is hereby

      ORDERED that respondent’s motion for reconsideration is granted. It is further

      ORDERED that the opinion filed on May 4, 2020, is withdrawn and a substitute

unpublished opinion be filed.
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                         No. 77414-0-I

                           Respondent,        DIVISION ONE
               v.

 FRANCISCO JAVIER VALDIVIA-                   UNPUBLISHED OPINION
 ENRIQUEZ,

                           Appellant.


       CHUN, J. — A jury convicted Francisco Javier Valdivia-Enriquez of one

count of rape of a child in the first degree and one count of rape of a child in the

second degree. The charges stemmed from incidents occurring years earlier

when the victim, J.M.A.H., was a child. By the time of the charges, J.M.A.H. was

20 years old. On appeal, Valdivia-Enriquez claims (1) the trial court erred in

denying his motion to admit evidence of J.M.A.H.’s juvenile criminal record, and

(2) the State engaged in prosecutorial misconduct by vouching for the credibility

of J.M.A.H. We affirm. However, we remand the case for the trial court to strike

the DNA collection fee from the Judgment and Sentence.1

                                 I. BACKGROUND

       When he was 20 years old, J.M.A.H. had a sexual encounter with his

girlfriend that caused bad memories to resurface. J.M.A.H then revealed to his



       1
           This matter comes to us on remand from our Supreme Court for reconsideration
in light of State v. Arndt, 194 Wn.2d 784, 453 P.3d 696 (2019).
No. 77414-0-I/2


girlfriend that his former soccer coach and friend, Valdivia-Enriquez, molested

and raped him as a child. His girlfriend convinced J.M.A.H. to report the abuse to

the police. The State charged Valdivia-Enriquez with one count of rape of a child

in the first degree and one count of rape of a child in the second degree.

       Prior to trial, Valdivia-Enriquez moved to admit evidence of J.M.A.H.’s

lengthy juvenile criminal record, including multiple adjudications for theft-related

residential burglary, as well as an adjudication for possession of stolen property

and theft of a firearm. Valdivia-Enriquez requested admission of this evidence

under ER 609(d) and ER 404(b) and sought to admit this evidence to

demonstrate that J.M.A.H. made the accusations of sexual assault to repair the

family relationships strained by his prior juvenile criminal behavior. Valdivia-

Enriquez also hoped to admit the juvenile convictions for the jury to evaluate and

assess J.M.A.H.’s credibility. The trial court denied admission of this evidence.

       A jury convicted Valdivia-Enriquez as charged. The trial court sentenced

Valdivia-Enriquez to a standard range sentence and imposed legal financial

obligations, including a $100 DNA collection fee.

       Valdivia-Enriquez appeals.

                                 II. DISCUSSION

   A. Right to Present a Defense

       Valdivia-Enriquez argues the trial court deprived him of the right to present

a defense by prohibiting him from impeaching J.M.A.H. with evidence of prior

juvenile convictions for crimes of dishonesty. We disagree.




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No. 77414-0-I/3


       The Sixth Amendment to the United States Constitution and article 1,

section 22 of the Washington Constitution grant criminal defendants the right to

present a defense and the right to confront and cross-examine adverse

witnesses. State v. Hudlow, 99 Wn.2d 1, 14-15, 659 P.2d 514 (1983). However,

the right to present a defense is not absolute. State v. Jones, 168 Wn.2d 713,

720, 230 P.3d 576 (2010). It is subject to the established rules of evidence.

State v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015). “Defendants

have a right to present only relevant evidence, with no constitutional right to

present irrelevant evidence.” Jones, 168 Wn.2d at 720 (emphasis omitted).

Additionally, courts may deny cross-examination if the evidence sought is vague,

argumentative, or speculative. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d

1189 (2002).

       For claims alleging a violation of the right to present a defense, “we apply

[a] two-step review process to review the trial court’s individual evidentiary rulings

for an abuse of discretion and to consider de novo the constitutional question of

whether these rulings deprived [the defendant] of [their] Sixth Amendment right to

present a defense.” State v. Arndt, 194 Wn.2d 784, 797-98, 453 P.3d 696

(2019).

       1. Review of Evidentiary Rulings for Abuse of Discretion

          a. Credibility

       Valdivia-Enriquez requested admission of J.M.A.H.’s prior juvenile

adjudications to impeach credibility. ER 609 governs the admissibility of prior

convictions for crimes of dishonesty for purposes of attacking credibility.


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No. 77414-0-I/4


ER 609(d) generally bars admission of evidence of juvenile adjudications to

impeach credibility. But the court may allow evidence of juvenile convictions “if

conviction of the offense would be admissible to attack the credibility of an adult

and the court is satisfied that admission in evidence is necessary for a fair

determination of the issue of guilt or innocence.” ER 609(d). This requires an

“indication of special reasons favoring admissibility” amounting to “a positive

showing that the prior juvenile record is necessary to determine guilt.” State v.

Gerard, 36 Wn. App. 7, 12, 671 P.2d 286 (1983). The trial court has broad

discretion on admissibility of juvenile adjudications sought solely for general

impeachment purposes. Gerard, 36 Wn. App. at 11.

       Valdivia-Enriquez fails to establish any special reason favoring admission

of evidence otherwise inadmissible. Therefore, the trial court did not err in

finding the prior adjudications unnecessary for a fair determination of guilt or

innocence and properly exercised its broad discretion to deny admission of the

evidence.

            b. Motive

       Valdivia-Enriquez also sought admission of the juvenile convictions to

support his defense that J.M.A.H. made the allegations of molestation in order to

improve J.M.A.H.’s strained relationship with his family. Valdivia-Enriquez argued

the convictions showed motive:
       As far as for motive, it’s on the basis of why he and his family might
       be on bad footing and why, as a way to get back on better footing
       with his family, it would explain, “All my behavior was kind of based
       on the fact that Mr. Valdivia had done this horrible things [sic] to me,
       and that’s why I had all these indiscretions and everything,” and now



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No. 77414-0-I/5


       that he has revealed it, his life -- his relationship with his family is
       much better and they moved along and things like that.

The trial court determined the evidence lacked a sufficient nexus with the alleged

motive, and that the prejudicial impact outweighed the very low probative value of

the evidence.

       ER 404(b) allows admission of evidence of other crimes to show motive.

Prior juvenile adjudications are also admissible to show bias or motive. Gerard,

36 Wn. App. at 11. Even when relevant to prove motive, the trial court must

evaluate the evidence under ER 403 and “exercise its discretion in excluding

relevant evidence if its undue prejudice substantially outweighs its probative

value.” State v. Fuller, 169 Wn. App. 797, 829-30, 282 P.3d 126 (2012).

       Valdivia-Enriquez requested admission of J.M.A.H.’s prior juvenile

adjudications to show motive. Upon inquiry from the trial court, Valdivia-Enriquez

acknowledged he lacked any proof that the prior convictions led to the strained

relationship between J.M.A.H. and his family. The evidence of motive was

“inference with a few steps” from anticipated testimony of an “icy” family

relationship prior to J.M.A.H.’s disclosure of the abuse. Valdivia-Enriquez also

admitted that he could raise this defense without the juvenile adjudications: “I

could do that without convictions. I believe that that provides a little bit of a

further story.”

       Based on these statements, J.M.A.H.’s prior juvenile adjudications were

not essential to Valdivia-Enriquez’s defense. The trial court properly found very

low or “non-existent” probative value of the juvenile adjudications. Moreover, the

link between J.M.A.H.’s juvenile record and the alleged motive was merely


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No. 77414-0-I/6


speculation. Denial of this speculative evidence falls within the court’s discretion.

See Darden, 145 Wn.2d at 621. The trial court did not abuse its discretion by

denying admission of the juvenile adjudications as evidence of motive.

       2. De Novo Review of Right to Present a Defense

       Having determined that the trial court did not abuse its discretion by

excluding the evidence of J.M.A.H.’s prior juvenile adjudications, we turn to the

constitutional question of whether these rulings deprived Valdivia-Enriquez of his

Sixth Amendment right to present a defense.

       As stated above, a defendant’s right to present a defense is not absolute.

Courts must balance “the State’s interest in excluding evidence . . . against the

defendant’s need for the information sought to be admitted.” Arndt, 194 Wn.2d

at 812. In certain instances, where evidence has high probative value, no state

interest is compelling enough to prevent admission of the evidence consistent

with the right to present a defense. Arndt, 194 Wn.2d at 812. And our Supreme

Court determined that an evidentiary exclusion violated the Sixth Amendment

where it prevented the defendant from arguing their entire defense. Jones, 168

Wn.2d at 721, 723-24.

       Here, unlike in Jones, the court excluding evidence of J.M.A.H.’s prior

juvenile adjudications did not preclude Valdivia-Enriquez from presenting his

entire defense. Similar to Arndt, which involved limitations on expert testimony,

Valdivia-Enriquez was able to advance his defense theory despite the trial court’s

exclusion of evidence of J.M.A.H.’s prior juvenile adjudications. See Arndt, 194

Wn.2d at 814; see also State v. Clark, 187 Wn.2d 641, 653, 389 P.3d 462 (2017)


                                          6
No. 77414-0-I/7


(defendant remained able to offer evidence to support his theories

notwithstanding limitations on expert witness testimony). Valdivia-Enriquez’s

theory at trial was that J.M.A.H. lied about the sexual abuse to explain an

awkward sexual encounter with his girlfriend and continued to lie to improve his

relationship with his parents. To support this theory, Valdivia-Enriquez sought to

admit the evidence of J.M.A.H.’s prior juvenile adjudications to impeach his

credibility and to show a motive for him to continue to lie about the abuse. But

Valdivia-Enriquez was able to make these arguments even without evidence of

J.M.A.H.’s prior juvenile adjudications. For instance, in his opening argument,

Valdivia-Enriquez asked the jury to “[t]hink about the way in which a story starts

small and then balloons up” and to “tell the difference between someone who has

committed, like seriously committed to maintaining the story that they’ve been

telling . . . and someone who’s telling the actual facts as they occur.”

       Valdivia-Enriquez also asserted that J.M.A.H. lied about the abuse in his

closing argument:
       People tell big lies that they maintain for years and years that they
       will take to their grave. People tell big lies that are so convincing that
       they convince their friends and their family, that they can convince
       crowds of strangers, that they can convince the entire nation that this
       thing happened.

Valdivia-Enriquez then asserted that J.M.A.H. “need[ed] a very good reason for

why [he] reacted” the way he did after the sexual encounter with his girlfriend and

that the lie “start[ed] on a night of crisis in a young relationship.” Valdivia-

Enriquez contended that J.M.A.H. continued the lie because his “stern,




                                           7
No. 77414-0-I/8


authoritative father” had “finally loosened up a little bit” and his mother had “came

to him in tears, begging for forgiveness.”

          Thus, Valdivia-Enriquez presented his defense that J.M.A.H. had lied

about the sexual abuse and provided a motive for his reason to lie. Indeed,

Valdivia-Enriquez acknowledged below that he could make his argument

regarding motive without evidence of J.M.A.H.’s prior juvenile adjudications.

Although the trial court limited the evidence with which Valdivia-Enriquez could

use to argue his defense theory, the court did not violate his Sixth Amendment

rights.

   B. Prosecutorial Misconduct

          Valdivia-Enriquez asserts the prosecutor engaged in misconduct that

deprived him of his right to a fair trial by vouching for the credibility of the sole

witness against him. The State contends the prosecutor did not express a

personal belief regarding the witness’s credibility. Instead, the State argues the

prosecutor drew reasonable inferences from the evidence. We agree with the

State.

          The prosecutor referred to J.M.A.H. as credible on multiple occasions

during her closing argument. The record shows the prosecutor making

statements such as “Ladies and gentlemen, [J.M.A.H.] is credible, and the

reason why we know that the State proved this case beyond a reasonable doubt

really comes down to that,” and “It comes down to the fact that the credibility of

[J.M.A.H.] is without question. Without question.” Valdivia-Enriquez argues that




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No. 77414-0-I/9


these instances, as well as other examples discussed below, indicate

prosecutorial misconduct.

       A defendant that claims prosecutorial misconduct must prove that the

prosecutor’s comments were both improper and prejudicial. In re Pers. Restraint

of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). A prosecutor’s

comments are prejudicial only if there is a “‘substantial likelihood the misconduct

affected the jury’s verdict.’” State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359

(2007) (emphasis omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134

P.3d 221 (2006)). Where, as here, the defendant failed to object to an improper

remark below, such failure “‘constitutes a waiver of error unless the remark is so

flagrant and ill intentioned that it causes an enduring and resulting prejudice that

could not have been neutralized by an admonition to the jury.’” State v.

Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011) (quoting State v. Russell,

125 Wn.2d 24, 86, 882 P.2d 747 (1994)). “Jurors are presumed to follow the

court’s instruction.” In re Pers. Restraint of Phelps, 190 Wn.2d 155, 172, 410

P.3d 1142 (2018).

       Prosecutors have “wide latitude to draw and express reasonable

inferences from the evidence” in their closing arguments. State v. Robinson, 189

Wn. App. 877, 893, 359 P.3d 874 (2015). “The prejudicial effect of a

prosecutor’s improper comments is not determined by looking at the comments

in isolation but by placing the remarks ‘in the context of the total argument, the

issues in the case, the evidence addressed in the argument, and the instructions




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No. 77414-0-I/10


given to the jury.’” State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)

(quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).

       Prosecutorial misconduct by vouching occurs when the prosecutor either

(1) places the prestige of the government behind the witness, or (2) indicates that

information that was not presented to the jury supports the witness’s testimony.

Robinson, 189 Wn. App. at 892–93. Further, there is a difference between the

prosecuting attorney’s individual opinion presented as an independent fact, and

“‘an opinion based upon or deduced from the testimony in the case.’” McKenzie,

157 Wn.2d at 53 (emphasis omitted) (quoting State v. Armstrong, 37 Wash. 51,

54–55, 79 P. 490 (1905)).

       Valdivia-Enriquez cites an instance in which the prosecutor, as part of a

PowerPoint presentation, presented a slide entitled “[J.M.A.H.] is credible.” In

isolation, such a title may suggest prosecutorial vouching, but the content and

context of the slide shows otherwise. Following the title, the prosecutor listed

four bullet points as a means to guide the jury during her discussion of the

witness’s credibility. The bullet points, “NO MOTIVE,” “Disclosure,”

“Corroboration,” and “Demeanor,” mirrored the prosecutor’s talking points as she

asserted why the evidence supported the witness’s credibility. The prosecutor

cited examples from the record that demonstrated the lack of “bad blood”

between Valdivia-Enriquez and the witness’s family to emphasize the lack of

motive, as well as the dubious likelihood that the witness could provide “the

performance of a lifetime” and continuously feign distraught emotions, such as

crying, as he recounted the events. This allowed the jury to consider the


                                        10
No. 77414-0-I/11


evidence and make inferences about credibility and in turn did not demonstrate

prosecutorial vouching for J.M.A.H.’s credibility.

       Valdivia-Enriquez also asserts the prosecutor vouched for the witness

through statements such as “we know [J.M.A.H.] is credible” and that the

witness’s credibility was “without question.” Again, the court cannot view such

comments in isolation. When viewed in context, the comments express

reasonable inferences from the evidence. For example, the prosecutor followed

“we know [J.M.A.H.] is credible” with a reminder of the situation in which the

witness first disclosed the incident to emphasize the witness’s motivation:
       . . . [J.M.A.H.] was in the middle of an act with his girlfriend that was
       supposed to be interesting and fun and new, but it went horribly south
       when he hurt her and all of these memories flooded back into his
       back [sic]. He described a physical, visceral response to seeing pain
       and fear in his girlfriend’s eyes because he was placing himself in
       the shoes of the person who had done it to him.

The prosecutor used this example along with the surrounding evidence following

the incident to corroborate the credibility of the witness.

       Further examples, such as the witness’s desire to quit soccer, his

emotional withdrawal from family, and his motivation for disclosing the crime,

provided the jury with evidence to consider as it evaluated the witness’s

credibility. The prosecutor addressed credibility by examining the witness’s

retelling of the incident and resulting emotional behavior after the incident, and

thereby did not inappropriately vouch for the witness’s credibility.

       In light of the foregoing, we conclude that the prosecutor did not place the

prestige of the government behind the witness or cite information not provided as




                                          11
No. 77414-0-I/12


evidence to the jury in order to support the witness’s testimony. As a result,

Valdivia-Enriquez fails to prove prosecutorial misconduct through vouching.

       Even if Valdivia-Enriquez were able to successfully argue the comments

were improper, he fails to prove his additional burden that the prejudice resulting

from the prosecutor’s flagrant and ill-intentioned comments was not curable by a

jury instruction. Valdivia-Enriquez argues that the comments would unduly

influence the jurors. However, the prosecution reminded the jury during its

closing argument that it was up to the jury to “go back into that room to determine

who was credible, what testimony was credible.” Furthermore, the jury

instructions in this case ordered jurors to disregard remarks and comments of

any lawyer if they are inconsistent with the law or evidence, while also reminding

jurors that the lawyers’ statements are not evidence. In addition, the jury

instructions informed jurors that they are “the sole judges of the credibility of each

witness.”

       Had Valdivia-Enriquez objected to the prosecutor’s statements during

closing arguments, the trial court could have reiterated these jury instructions.

Because jurors are presumed to follow the court’s instructions, and because the

instructions told the jurors to consider themselves the only determiners of

credibility, Valdivia-Enriquez cannot demonstrate that the comments resulted in

prejudice.

   C. DNA Fee

       Valdivia-Enriquez and the State both request remand for the trial court to

strike the $100 DNA collection fee because the State previously collected


                                         12
No. 77414-0-I/13


Valdivia-Enriquez’s DNA due to prior convictions. A legislative amendment

effective June 7, 2018, eliminated the mandatory $100 DNA collection fee where

“the state has previously collected the offender’s DNA as a result of a prior

conviction.” RCW 43.43.7541. This amendment applies prospectively to

Valdivia-Enriquez due to his pending direct appeal at the time of the

amendment’s enactment. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714

(2018). As a result, we remand for the trial court to strike the DNA fee from the

Judgment and Sentence.

       Affirmed. Remanded to strike the DNA collection fee.




WE CONCUR:




                                        13
