                                                                         FILED 

                                                                      SEPT. 25,2014 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                        )         No. 31377-8-111
                                            )
                    Respondent,             )
                                            )
             v.                             )
                                            )
ARMANDO CORTEZ LOPEZ,                       )         UNPUBLISHED OPINION
                                            )
                    Appellant.              )

      BROWN, A.C.J. - Armando Cortez Lopez appeals his attempted indecent liberties

conviction. For the first time on appeal, he contends a lay witness improperly

commented on his guilt and the State committed misconduct in exploiting that comment

and misstating evidence. Additionally, Mr. Lopez contends his trial attorney provided

ineffective assistance by not objecting to the witness comment and to the State's

alleged misconduct. We reject his contentions and affirm.

                                        FACTS

      The State charged Mr. Lopez with attempted second degree rape or, in the

alternative, attempted indecent liberties based on events occurring in March 2012 in

Yakima County.
No. 31377-8-111
State v. Lopez


       While stopped in his car at a Sunnyside intersection on a Sunday morning, Cody

Case saw a man identified as Mr. Lopez approach and pass an alley in which Ms. G

was walking. According to Mr. Case's trial testimony, Mr. Lopez saw Ms. G, backed up

and pulled his sweatshirt's hood tight around his face concealing it, and proceeded

briskly down the alley. Mr. Lopez passed by Ms. G, then backed up and pushed her

against a dumpster. Mr. Lopez grabbed at Ms. G's waist and pulled her pants down

about four inches. Mr. Case then drove through the red light and down the alley,

causing Mr. Lopez to flee on foot. Mr. Case followed Mr. Lopez to his truck. Mr. Case

pulled in behind him. Mr. Lopez got out of his vehicle and was "mess[ing] with his

crotch ... like he was zipping it up." Report of Proceedings (RP) at 53. Mr. Case

elaborated that Mr. Lopez might have been trying to pull up his pants. Mr. Lopez

returned to his vehicle and drove off. Mr. Case followed, following Mr. Lopez to where

he parked his truck and called the police. Police recovered Mr. Lopez's truck leading to

his arrest after witness identifications.

       Ms. G testified using an interpreter. She related Mr. Lopez may have been trying

to pull down her pants when he grabbed at her buttocks. "If my pants went down, it was

just a little bit like this, but, I mean, my pants didn't go down." RP at 78. Ms. G believed

Mr. Lopez pulled at her jacket over her pants. Police witnesses generally related Ms. G

seemed embarrassed by the events and had earlier shown the extent that her pants

had been pulled down.




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State v. Lopez


       During trial, the prosecutor asked Mr. Case, "How close were they when he

grabbed her and pulled down his pants?" RP at 48. There was no objection to use of

the word "his" pants instead of "her" pants. RP at 48.   During cross-examination,

defense counsel asked Mr. Case how long the encounter took and Mr. Case replied,

without objection, "Three minutes, long enough for me to come from a stop sign ....

sat there and waited for a minute, hesitated. It's not often you see someone, you know,

trying to molest someone." RP at 65. On re-direct, the prosecutor asked, "You said it's

not often you see someone molesting someone. Why did you say that?" RP at 69. Mr.

Case replied, "You just don't Sunday morning, any morning, see some guy grabbing an

older lady and pushing up against a dumpster and try to pull her pants down." Id.

       During closing remarks, the prosecutor argued, without objection, "The fact of

him pulling down his pants is significant to distinguish this between attempted rape and

attempted indecent liberties." RP at 165. The prosecutor argued, "It's not often you see

someone molesting someone, which is what we heard Cody Case say yesterday in his

testimony." RP at 156. The prosecutor later repeated, "It's not often you see someone

being molested. That's what Cody saw." RP at 163. During rebuttal the prosecutor

remarked, "Cody, he testified about this yesterday. It's not every day you - it's not often

you see someone molesting someone." RP at 172. Defense counsel did not object.

      The court instructed the jury, "You are the sole judges of the credibility of each

witness. . .. [T]he sole judges of the value or weight to be given to the testimony of

each witness." Clerk's Papers (CP) at 113 (Jury Instruction No.1). Further, the court



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No. 31377-8-111
State v. Lopez


instructed, "You must disregard any remark, statement, or argument that is not

supported by the evidence." Id.

       The jury found Mr. Lopez not guilty of attempted second degree rape, but guilty

of attempted indecent liberties. Mr. Lopez appeals.

                                           ANALYSIS

                                      A. Witness Testimony

       The issue is whether Mr. Case's testimony regarding molestation was an

improper comment on Mr. Lopez' guilt thereby warranting reversal of his conviction.

Since no objection was made below to the challenged statement, we must first address

whether this issue may be raised for the first time on appeal.

       In cross examination, Mr. Lopez's defense attorney asked Mr. Case how long the

encounter he observed took place and was curious about Mr. Case's reaction time. Mr.

Case replied, "Three minutes, long enough for me to come from a stop sign .... I sat

there and waited for a minute, hesitated. It's not often you see someone, you know,

trying to molest someone." RP at 65. The import of the answer was to explain Mr.

Case's reaction time to the observed startling event. Typically, an examiner may object

to the responsiveness of answers to questions asked. Here, Mr. Lopez's trial attorney

chose not to object to Mr. Case's response. Mr. Lopez's appellate counsel raises this

issue for the first time on appeal.

       We may refuse to review any claimed error not raised in the trial court. RAP

2.5(a). Nevertheless, a defendant may challenge a claimed error for the first time on



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No. 31377-8-111
State v. Lopez


appeal if he or she can show it was a manifest constitutional error affecting his or her

constitutional right to a jury trial. RAP 2.5(a)(3); State v. Kirkman, 159 Wn.2d 918, 926,

155 P.3d 125 (2007). But "[a]dmission of witness opinion testimony on an ultimate fact,

without objection, is not automatically reviewable as a 'manifest' constitutional error."

Kirkman, 159 Wn.2d at 936. To merit appellate review in these circumstances, a

defendant must show the alleged error caused "actual prejudice" or "practical and

identifiable consequences" in his trial. Id. at 935. For non-preserved allegedly improper

opinion evidence to qualify under the RAP 2.5(a)(3) exception, '''[m]anifest error'

requires a nearly explicit statement by the witness that [he] believed the accusing

victim'" or disbelieved another key witness. Kirkman, 159 Wn.2d at 936 (emphasis

added).

       Mr. Case's challenged statement was not a direct comment about Mr. Lopez'

individual guilt or credibility; rather, Mr. Case testified to the actions that caused him to

continue to observe Mr. Lopez and his response time. Viewing the questioning in this

context, it appears the term "molest" was used in a broad sense to describe Mr. Lopez'

actions. In general, "molest" is a synonym for the term "annoy" and may mean "to

annoy, disturb, or persecute [especially] with hostile intent or injurious effect." Merriam

Webster's Collegiate Dictionary 749 (10th ed.1997). Thus, Mr. Case's testimony was

not a statement about Mr. Lopez' guilt or credibility or an ultimate fact. No proof of

molestation was required for conviction in this attempt crime. The statement, therefore,




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State v. Lopez


did not constitute improper opinion testimony rising to the level of a constitutional error

that Mr. Lopez can raise for the first time on appeal.

       Because Mr. Lopez fails to show constitutional error, we do not reach the

"manifest" issue, Le., whether it was prejudicial or had "practical and identifiable" results

in the trial below. See RAP 2.5(a)(3); State v. Bertrand, 165 Wn. App. 393,400 n.8,

267 P.3d 511 (2011) (internal quotation marks omitted) (quoting State v. O'Hara, 167

Wn. App. 191,99,217 P.3d 756 (2009». Nevertheless, we again note prejudice would

be difficult to prove since the State did not charge Mr. Lopez with molestation and

molestation is not a specific element of attempted indecent liberties. See RCW

9A.44.100(1)(a) (To convict Mr. Lopez of attempted indecent liberties, the State had to

prove that he knowingly took a substantial step to cause another person to have sexual

contact by forcible compulsion). Thus, it is unlikely that use of the word "molest" led to

Mr. Lopez' attempted indecent liberties conviction.

       Under analogous circumstances, the Washington Supreme Court has concluded

no prejudice existed where, despite allegedly improper opinion testimony on witness

credibility, the trial court had properly instructed the jury that jurors "'are the sole judges

of the credibility of the witnesses and of what weight is to be given to the testimony of

each'" and that jurors "'are not bound'" by expert witness opinions. Kirkman, 159 Wn.2d

at 937 (citations omitted). The trial court here gave similar instructions that we presume

the jury followed. Kirkman, 159 Wn.2d at 937. Thus, even if Mr. Case's statement had

been unconstitutional, and therefore improper opinion about Mr. Lopez' guilt or



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No. 31377-8-111
State v. Lopez


credibility, Mr. Lopez fails to show actual prejudice or practical and identifiable

consequences to the trial results justifying an exception to RAP 2.5(a)'s preservation

requirement that the alleged error be '"manifest.''' Bertrand, 165 Wn. App. at 400.

Given all, we conclude Mr. Lopez fails to show Mr. Case's responsive testimony was a

manifest constitutional error that may be raised for the first time on appeal under RAP

2.5(a)(3).

                               B. Prosecutorial Misconduct

       The issue is whether prosecutorial misconduct deprived Mr. Lopez of a fair trial.

       First, Mr. Lopez contends the prosecutor committed misconduct by suggesting

during interrogation and in argument that Mr. Lopez pulled his pants down when

approaching Ms. G. Mr. Lopez did not raise any objection at the trial court to the form of

the State's question that assumed a fact not in evidence (that Mr. Lopez pulled his

pants down when approaching Ms. G) or the State's argument asserting Mr. Lopez

pulled down his pants.

       To prevail on a prosecutorial misconduct claim, a defendant must show that the

prosecutor's conduct was improper and prejudicial. State v. Thorgerson, 172 Wn.2d

438,442,258 P.3d 43 (2011). To show prejudice, a defendant must show a substantial

likelihood that the misconduct affected the verdict. Id. at 442-43. A defendant who fails

to object to the prosecutor's improper act at trial waives any error, unless the act was so

flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice. Id. at 443. The focus of this inquiry is more on whether the resulting



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No. 31377-8-111
State v. Lopez


prejudice could have been cured, rather than the flagrant or ill-intentioned nature of the

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

       A high burden is imposed when a defendant fails to object to alleged

prosecutorial misconduct. Mr. Lopez does not meet this burden. Mr. Case testified he

observed Mr. Lopez "mess[ing] with his crotch ... like he was zipping it up." RP at 53.

But later, the prosecutor asked Mr. Case, "How close were they when he grabbed her

and pulled down his pants?" RP at 48. There was no objection to use of the word "his"

pants instead of "her" pants. The prosecutor appears to have misstated the question.

During closing remarks, the prosecutor stated, without objection, "The fact of him pulling

down his pants is significant to distinguish this between attempted rape and attempted

indecent liberties." RP at 165.

       This blurring of the factual record, by mixing testimony showing Mr. Lopez pulled

Ms. G's pants down and Mr. Lopez messed with his pants and crotch, was not so

flagrant and ill-intentioned that an instruction could not have cured any resulting

prejudice. The challenged evidence and argument bore on the attempted second

degree rape charge, which requires an attempt to engage "in sexual intercourse with

another ... [b]y forcible compulsion." RCW 9A,44.050(1)(a). Attempted indecent

liberties does not require an attempt at sexual intercourse. The jury acquitted Mr. Lopez

of attempted second degree rape; thus, Mr. Lopez cannot show testimony or argument

that he pulled down his pants prejudiced him. His prosecutorial misconduct claim,

therefore, fails.



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No. 31377-8-111
State v. Lopez


       Second, Mr. Lopez, contends the State committed misconduct by repeating Mr.

Case's molestation comment. Based on our analysis that the testimony was not

improper, Mr. Lopez' claim is without merit. He additionally argues the State had a duty

to prepare its witnesses not to offer improper testimony. See State v. Montgomery, 163

Wn.2d 577, 592, 183 P.3d 267 (2008) (prosecutors have a duty to prepare witnesses for

trial). This improper preparation argument fails for the same reason.

                                C. Assistance of Counsel

       The issue is whether Mr. Lopez was denied effective assistance of counsel. He

contends counsel was deficient for failing to object to Mr. Case's molestation testimony

and to the prosecutor's comments on that testimony during closing argument.

       The Sixth Amendment of the United States Constitution guarantees defendants

the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,

685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To demonstrate ineffective assistance,

an appellant must show the attorney's performance was deficient and that the

deficiency was prejudicial. State v. Thomas, 109 Wn.2d 222,225-26,743 P.2d 816

(1987). Deficient performance falls below an objective standard of reasonableness. In

re Det. of Moore, 167 Wn.2d 113,122,216 P.3d 1015 (2009). Prejudice occurs if, but

for the deficient performance, the outcome of the proceedings would have been

different by a reasonable probability. State v. McFarland, 127 Wn.2d 322, 334-35, 899

P.2d 1251 (1995). We must strongly presume effective assistance. Moore, 167 Wn.2d

at 122. But, we will conclude counsel's representation is ineffective if we can find no
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legitimate strategic or tactical reason for a particular decision. McFarland, 127 Wn.2d at

335.

       As previously analyzed, Mr. Case's response, "It's not often you see someone,

you know, trying to molest someone" was not improper opinion testimony; rather, it was

a description of the events that caught Mr. Case's attention and a response to an inquiry

about Mr. Case's reaction time. RP at 65. Therefore, failure to object to the testimony

or the prosecutor's remarks did not fall below an objective standard of reasonableness.

Moore, 167 Wn.2d at 122. Even assuming counsel's performance was deficient, Mr.

Lopez cannot show prejudice. Eye-witness testimony apparently believed by the jury

showed Mr. Lopez put on and pulled tight his sweatshirt hood to conceal his face,

followed and grabbed Ms. G in an alley, and partly pulled her pants down. Mr. Lopez

then fled when Mr. Case pursued. Soon after, Mr. Lopez was seen adjusting the crotch-

area of his pants and appeared to be zipping up his zipper. It is unlikely an objection to

the "molest" answer would have resulted in a "not guilty" verdict. We note counsel was

effective in getting an acquittal on the more serious offense of attempted second degree

rape. Given all, we conclude Mr. Lopez has not overcome the strong presumption of

effective assistance of counsel.

                                   D. Cumulative Error

       Mr. Lopez contends he is entitled to relief under the cumulative error doctrine

because the combined effect of his claimed errors denied him a fair trial. Cumulative

error may justify reversal, even when each individual error would otherwise be



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State v. Lopez


considered harmless; but the doctrine does not apply where there are few errors or the

errors have little or no effect on the outcome of the trial. State v. Weber, 159 Wn.2d

252,279, 149 P.3d 646 (2006). Mr. Lopez fails to establish a single reversible error, let

alone a combination of errors that denied him a fair trial. Thus, his claim of cumulative

error fails.

        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.




                                                    Brown, A.C.J.
WE CONCUR:




                                                    Lawrence-Berrey, J.




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