                                                                FILED
                                                               MAY 1, 2018
                                                      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. 35051-7-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )          UNPUBLISHED OPINION
                                              )
ELIODORO SALSEDA-CASTANEDA                    )
aka ELIODORO SALCEDO,                         )
                                              )
                     Appellant.               )

       PENNELL, A.C.J. — Eliodoro Salseda-Castaneda appeals his conviction for felony

violation of a no-contact order. We affirm.

                                          FACTS 1

       On March 7, 2016, Mr. Salseda-Castaneda was arrested on an outstanding warrant

by a community custody officer (CCO) for the Department of Corrections. At the time of

his arrest, Mr. Salseda-Castaneda was at an abandoned home, located approximately

98 feet from the apartment of his estranged girlfriend. Under the terms of a no-contact

order, Mr. Salseda-Castaneda was prohibited from coming within 1,000 feet of his

girlfriend’s residence or person.


       1
        Because Mr. Salseda-Castaneda challenges the sufficiency of the State’s trial
evidence, we construe the facts in the light most favorable to the State. State v. Kintz,
169 Wn.2d 537, 551, 238 P.3d 470 (2010).
No. 35051-7-III
State v. Salseda-Castaneda


       After his arrest, Mr. Salseda-Castaneda waived his right to silence and made a

statement. He admitted he knew about the no-contact order prohibiting him from

contacting his estranged girlfriend. However, Mr. Salseda-Castaneda claimed to be

unaware that his girlfriend resided at the nearby apartment.

       At Mr. Salseda-Castaneda’s trial for felony violation of a no-contact order, the

State presented testimony from the owner of the apartment occupied by Mr. Salseda-

Castaneda’s estranged girlfriend. The owner testified that he had originally rented the

apartment to both Mr. Salseda-Castaneda and his girlfriend about three years prior to trial.

The owner further testified that Mr. Salseda-Castaneda lived in the apartment for most of

the past three years and that he had most recently seen Mr. Salseda-Castaneda at the

apartment approximately one week prior to Mr. Salseda-Castaneda’s arrest.

       Mr. Salseda-Castaneda also testified at trial. He claimed he had been in the area of

his old apartment to meet with some friends. Once he saw the CCO, he hid in a building

he knew was abandoned. Mr. Salseda-Castaneda claimed he did not know whether his

estranged girlfriend (who was also the mother of his children) still lived in his old

apartment. He said he was no longer talking to his girlfriend and thought she had moved.

Although Mr. Salseda-Castaneda claimed he was trying to abide by the terms of his no-

contact order, he acknowledged that he had violated the terms of the order on prior


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State v. Salseda-Castaneda


occasions to see his children.

       A jury convicted Mr. Salseda-Castaneda of felony violation of a no-contact order.

He now appeals.

                                        ANALYSIS

Sufficiency of the evidence

       Mr. Salseda-Castaneda claims the State presented insufficient evidence to prove he

knowingly violated the terms of his no-contact order. Specifically, Mr. Salseda-

Castaneda argues the evidence failed to show he knew he was within 1,000 feet of his

estranged girlfriend’s residence.

       We are unswayed by Mr. Salseda-Castaneda’s sufficiency argument. The State

presented overwhelming evidence showing that Mr. Salseda-Castaneda knew his

girlfriend had previously lived in the apartment at issue in this case. Indeed, Mr. Salseda-

Castaneda was an original party to the rental agreement. The State also presented

sufficient circumstantial evidence that Mr. Salseda-Castaneda continued to know his

estranged girlfriend lived at the same apartment up until the offense conduct date. Most

notable was the apartment owner’s testimony that Mr. Salseda-Castaneda was regularly at

the apartment, including the week prior to his arrest. While Mr. Salseda-Castaneda

testified that he did not know whether his estranged girlfriend continued to live at his old


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No. 35051-7-III
State v. Salseda-Castaneda


apartment, the jury was entitled to discredit this statement. The State satisfied its burden

of proof.

Prosecutorial misconduct

       Mr. Salseda-Castaneda argues the italicized comments below, made by the

prosecutor in his closing and rebuttal argument, constituted misconduct:

       What does make a lot of sense is that [Mr. Salseda-Castaneda] knew good
       and well that his girlfriend that he had a child in common with was living in
       the apartment that he himself had moved into with her just about three years
       ago and lived there all the time. . . . I’m going to argue the defendant’s
       testimony on this point was not credible in this case. . . . [The apartment
       owner] testified and the defendant admitted that they had both signed the
       [rental agreement] when they moved in three years ago. They lived there
       together in the past.
       ....
               Now he’s saying, oh, I didn’t know she was there that day. I was just
       down the street. I just happened to be passing by. It’s pure coincidence. I
       just happened to be passing by and I seen the DOC officers. So I ran in
       there to hide.
               How much sense does that make? We know [the apartment owner]
       told us that she was there that day. She was there the day that happened.
       The defendant testified he’s always trying to see his kids despite the no
       contact order.
               The only thing that makes sense is that he knows good and well that
       she [was] still living there. As a matter of fact, I don’t even have to show
       that she was there that day. All I have to show is that she was living there,
       that it was her residence and he was aware of that fact.
               Did he tell you about something that happened where he all of the
       sudden had some reason to believe that she’d moved after living there for
       three years? No. He never testified that she’d told him that she had moved.
       ....


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State v. Salseda-Castaneda


              I would argue to you, ladies and gentlemen, that a reasonable person
       would conclude, after looking at all the evidence and talking to the eleven
       other reasonable people on the jury, of course, he knew. Of course, he
       knew she was living there. He moved in with her to this apartment. He
       never said that she told him that she had moved out or anything like that.
       I would ask you to return a verdict of guilty. Thank you.

2 Report of Proceedings (Dec. 20, 2016) at 84, 86-88, 97 (emphasis added). No objection

was made during trial to the prosecutor’s statements.

       Mr. Salseda-Castaneda first argues the prosecutor improperly commented on his

right to silence. We disagree. Mr. Salseda-Castaneda testified at trial. The State was

therefore entitled to point out the holes in Mr. Salseda-Castaneda’s testimony, including

his lack of any explanation for why he thought his estranged girlfriend no longer lived at

her long-term apartment. See State v. McKenzie, 157 Wn.2d 44, 59-60, 134 P.3d 221

(2006).

       Next, Mr. Salseda-Castaneda claims the prosecutor’s arguments improperly shifted

the burden of proof. Burden shifting can happen when the prosecutor argues that the jury

can only acquit if it believes the defendant’s testimony. In re Pers. Restraint of

Glasmann, 175 Wn.2d 696, 713-14, 286 P.3d 673 (2012). But that is not what happened

here. The prosecutor never suggested that the verdict rested on the jury’s assessment of

Mr. Salseda-Castaneda’s credibility. Instead, the prosecutor simply argued that the

evidence showed Mr. Salseda-Castaneda was not credible and that, in light of the other

                                             5
No. 35051-7-111
State v. Salseda-Castaneda


evidence, a verdict of guilty was proper. This line of reasoning was not improper.

       Mr. Salseda-Castaneda has not demonstrated any misconduct during the

prosecutor's closing argument, let alone misconduct sufficiently severe to warrant

mistrial. See State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012) (Reversal

unwarranted unless misconduct was so flagrant or ill-intentioned that it could not be

remedied by a curative instruction.). Reversal for prosecutorial misconduct is not

warranted here.

                                    CONCLUSION

      The judgment of conviction 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, A.C.J.
WE CONCUR:




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