       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 FRANCISCO JAVIER VALDIVIA-                   UNPUBLISHED OPINION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.        FILED: August 5, 2019


       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.

                                   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

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
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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.

                                    DISCUSSION
   A. Evidentiary Issues

       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. The State asserts the trial court

properly excluded the evidence because Valdivia-Enriquez failed to show the




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relationship between the witness’s juvenile record and his testimony. We agree

with the State.

       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. Statev. Hudlow, 99Wn.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. Statev. Darden, 145 Wn.2d 612,621,41 P.3d

1189 (2002).

       We review for abuse of discretion a trial court’s decision to exclude

evidence. State v. Perez-Valdez, 172 Wn.2d 808, 814, 265, P.3d 853 (2011). “A

trial court’s evidentiary ruling is an abuse of discretion only if it is ‘manifestly

unreasonable or based upon untenable grounds or reasons.” Perez-Valdez, 172

Wn.2d at 815 (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615

(1995)). When a defendant alleges that a constitutional error arises from an

adverse evidentiary ruling, we first review for abuse of discretion. State v. Blair,

3 Wn. App. 2d 343, 353, 415 P.3d 1232 (2018); State v. Clark, 187 Wn.2d 641,

648-49, 389 P.3d 462 (2017). If we determine the court has not abused its


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discretion, the inquiry ends because there is no error. Blair, 3 Wn. App. 2d at

352. If the trial court abused its discretion, we turn to a de novo review of the

constitutional claim. Blair, 3 Wn. App. 2d at 353.

       1. 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.

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.




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       2. 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
       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


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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

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.

          Because the trial court’s decision on the juvenile adjudications did not

amount to an abuse of discretion, we do not reach Valdivia-Enriquez’s claimed

violation of his constitutional right to present a defense. See Blair, 3 Wn. App. 2d

at 352.

   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.




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       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

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). 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


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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

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 (quoting State v. Armstrong, 37 Wn. 51, 54—55, 79 P. 490

(1905) (emphasis omitted)).

      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”


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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

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.j 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 itto 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



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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

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




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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

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:




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