                                                                FILED
                                                           SEPTEMBER 19, 2019
                                                         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.     35567-5-III
                      Respondent,               )
                                                )
       v.                                       )          ORDER WITHDRAWING
                                                )          OPINION
JEREMY JOSEPH ALVAREZ,                          )
                                                )
                      Appellant.                )


       THE COURT on its own motion finds that the opinion filed September 17, 2019, should

be withdrawn.

       THEREFORE, IT IS ORDERED, the opinion filed September 17, 2019, is hereby

withdrawn and a new opinion shall be filed hereafter.

       FOR THE COURT:


                                                _______________________________________
                                                Lawrence-Berrey, C.J.
                                                Chief Judge
                                                               FILED
                                                           OCTOBER 29, 2019
                                                       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. 35567-5-III
                                              )
                       Respondent,            )
                                              )
              v.                              )        UNPUBLISHED OPINION
                                              )
JEREMY JOSEPH ALVAREZ,                        )
                                              )
                       Appellant.             )

       LAWRENCE-BERREY, C.J. — A jury found Jeremy Alvarez guilty of one count of

second degree rape of a child and acquitted him of another. He appeals and asserts three

arguments for reversal of his conviction. In a statement of additional grounds for review,

he asserts over 20 grounds for reversal. We reject his arguments.

       Alvarez also requests that we order the trial court to strike several community

custody conditions and to strike the $200 criminal filing fee. We partly agree and direct

the trial court to strike some of the contested community custody conditions and the

criminal filing fee.
No. 35567-5-III
State v. Alvarez


                                          FACTS

       Alvarez, unable to find a place to live, moved in with his father (Mr. Alvarez), his

father’s fiancé (Ms. Porter), and her daughter (J.P.). Alvarez was 26, and J.P. was 13.

       Several days after he moved in, Alvarez came to J.P.’s room around midnight and

asked if she wanted to watch a movie. J.P. agreed because she was not sleeping well.

They sat on the couch in the living room. Alvarez asked to sit closer to J.P., but she

refused. Alvarez scooted over anyway. J.P. later claimed that Alvarez touched her breast

and vaginal areas.

       After a while, J.P. went upstairs to her bedroom. Fifteen minutes later, Alvarez

came upstairs and entered her bedroom. Alvarez began rubbing lotion on J.P.’s feet and

then her legs. Alvarez kept moving further up J.P.’s legs until he touched her vagina.

Alvarez then inserted his fingers and used his tongue on J.P.’s vagina. Eventually, J.P.

asked him to stop and leave, which he did. The entire event lasted about an hour and one-

half. J.P. went to school the next day and reported the incident to her counselor, Lisa

Ulrich.

       Officer Jory Parish, a resource officer at Hanford High School, received a call

from Lisa Ulrich. While interviewing J.P., Officer Parish learned the incident occurred in

Pasco, so she contacted Pasco police.


                                             2
No. 35567-5-III
State v. Alvarez


       City of Pasco Police Officer Michael Nelson responded. After speaking with

Officer Parish, Officer Nelson spoke with J.P. J.P. generally reported that she had

engaged in a sexual act with an individual named Jeremy. After that, Officer Nelson

drove to Ms. Porter’s employment to inform her what J.P. reported. While there, Officer

Nelson also spoke with Mr. Alvarez on the telephone, who was out of town. Mr. Alvarez

asked Officer Nelson to make sure that his son was out of the home when he returned

later that day. Officer Nelson drove to the home, told Alvarez about J.P.’s accusation,

and told Alvarez that his father had directed him to leave the home. Alvarez left.

       Later that evening, J.P. and Ms. Porter returned home. Ms. Porter collected the

pants, underwear, and bra J.P. wore the night before. The underwear was in the laundry

basket. One item in the basket, a towel, had been previously used by Alvarez. Detective

Jesus Romero collected J.P.’s clothing from Ms. Porter. Later, Mari Murstig, a child

forensic interviewer, met with and interviewed J.P.

       The State charged Alvarez with one count of rape of a child in the second degree.

After unsuccessful plea negotiations, the State added a second charge of rape of a child in

the second degree.

       At trial, the State’s first witness was Officer Nelson. He testified that when he met

with Alvarez at the house, Alvarez appeared to have just awakened. The State asked


                                             3
No. 35567-5-III
State v. Alvarez


Officer Nelson whether he told Alvarez about J.P.’s allegation, and how Alvarez reacted.

Alvarez objected, and requested a sidebar. Alvarez argued that the question called for

improper testimony because the testimony would comment on Alvarez’s right to remain

silent. The State clarified that it was only eliciting testimony about Alvarez’s facial

expression, not about his silence or his right to remain silent. The trial court agreed, and

allowed the testimony. Officer Nelson testified that when he told Alvarez of J.P.’s

allegation, Alvarez “had no expression whatsoever on his face . . . . No shock or anything

like that.” 2 Report of Proceedings (RP) at 345.1

       The State next called Ms. Murstig. She testified that she reviewed Officer

Nelson’s report before she interviewed J.P. When the State asked Ms. Murstig whether

J.P.’s disclosures to her were consistent with Officer Nelson’s report, Alvarez objected on

the basis of hearsay, that it called for improper opinion testimony, and that it would not be

helpful to the trier of fact. He did not argue that the opinion would violate his right to a

jury trial. The trial court overruled Alvarez’s objections and allowed the testimony. Ms.

Murstig testified that J.P.’s disclosures in the interview with her were consistent with

J.P.’s disclosures to Officer Nelson.



       1
          During closing arguments, the State did not repeat this testimony nor did it refer
to this testimony in any way.

                                              4
No. 35567-5-III
State v. Alvarez


       The State also called J.P. She testified about the downstairs and the upstairs

incidents. Her testimony about the downstairs incident was inconsistent. She originally

testified that Alvarez touched her breasts and her vagina over her clothing as they

watched a movie. The State later showed her a videotape of a prior interview she had

given. After this, J.P. testified that during the movie, Alvarez had touched her

underneath her clothes and had inserted a finger inside her vagina.

       Kaylene Folks, a forensic scientist with the Washington State Patrol Crime

Laboratory, tested J.P.’s underwear recovered from the laundry basket. She testified that

the inside crotch area tested positive both for human saliva and human male DNA.2 She

explained that the saliva found on the inside crotch of the underwear was deposited wet.

This made it highly improbable that the saliva could have been transferred from Alvarez’s

discarded towel in the laundry basket.

       She also testified that the body fluid found on the inside crotch of J.P.’s underwear

could only have been saliva. She explained she used the Phadebas test, which shows a

positive result only if the substance tested has a high concentration of the enzyme

amylase. Saliva has an amylase concentration about 1,000 times higher than other bodily




       2
           Deoxyribonucleic acid.

                                             5
No. 35567-5-III
State v. Alvarez


fluids. And although body fluids other than saliva contain amylase, “they are in . . .

concentrations much lower than those having saliva [and] wouldn’t be detected by this

Phadebas test.” 3 RP at 524.

       The jury found Alvarez not guilty of the downstairs charge, but guilty of the

upstairs charge. At sentencing, the trial court imposed a sentence of 110 months and

entered multiple community custody conditions.

       Alvarez timely appealed.

                                         ANALYSIS

       A.     TESTIMONY ABOUT ALVAREZ’S REACTION

       Alvarez contends the State improperly elicited testimony on his prearrest silence,

violating his constitutional right.

       The State first argues that demeanor—lack of surprise or shock—is not silence.

The State fails to cite authority to support its argument. Demeanor is not always silence.

Anger or embarrassment do not denote silence. But a lack of emotion is sufficiently

similar to silence that any difference is without a distinction. We reject the State’s first

argument.

       The State next argues that the United States Supreme Court has recently clarified

that the right to remain silent does not arise, prearrest, until one invokes it. And because


                                              6
No. 35567-5-III
State v. Alvarez


state and federal constitutional provisions against self-incrimination are coextensive, to

the extent prior Washington decisions are inconsistent, those decisions no longer are good

law.

       In response to this, Alvarez urges this court to perform a Gunwall3 analysis; that is,

to analyze the issue under independent Washington State constitutional principles. We

decline to do so. Prior authority from our high court constrains our conclusion that the

state and federal constitutional provisions on this issue are coextensive.

       When a claim is asserted under both the Washington Constitution and the United

States Constitution, the first inquiry is whether the asserted right is more broadly

protected under the state constitution rather than its federal counterpart. State v. Earls,

116 Wn.2d 364, 374, 805 P.2d 211 (1991). Washington courts have long held that the

protections of article I, section 9, are “coextensive with, not broader than, the protection

of the Fifth Amendment [to the United States Constitution].” Id. at 374-75 (citing State v.

Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971). Because the Washington Constitution

does not provide broader protections, a Gunwall analysis is unnecessary, and we begin

our analysis with federal law. Id.




       3
           State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).

                                              7
No. 35567-5-III
State v. Alvarez


       The Fifth Amendment to the United States Constitution, made applicable to the

States through the Fourteenth Amendment, generally prohibits the State from

commenting about the defendant’s failure to speak. State v. Easter, 130 Wn.2d 228, 238-

39, 922 P.2d 1285 (1996). However, the United States Supreme Court has recently

addressed the difference between prearrest and postarrest silence in Salinas v. Texas, 570

U.S. 178, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013).

       In Salinas, the defendant agreed to speak with officers about a murder

investigation, but when the officers questioned the defendant on whether the shell casings

from the crime scene would match the defendant’s firearm, the defendant “‘[l]ooked

down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap,

[and] began to tighten up.’” Id. at 182. Eventually, more evidence led to the defendant’s

arrest. Id. At trial, the defendant did not testify. Id. However, the State used the

defendant’s reaction to the officer’s interview question about the shell casings as

evidence of the defendant’s guilt. Id.

       In a plurality decision, the Court found that, unless a defendant expressly invokes

the privilege, the State can use a defendant’s prearrest silence as evidence of guilt and it

would not violate the Fifth Amendment. Id. at 186; see also State v. Terry, 181 Wn. App.

880, 888, 328 P.3d 932 (2014); State v. Magana, 197 Wn. App. 189, 195, 389 P.3d 654


                                               8
No. 35567-5-III
State v. Alvarez


(2016), abrogated on other grounds by State v. Johnson, 4 Wn. App. 2d 352, 421 P.3d

969, review denied, 192 Wn.2d 1003, 340 P.3d 260 (2018). Therefore, because the

defendant did not invoke the privilege and there was no evidence that the defendant was

deprived of the ability to voluntarily invoke the privilege under the circumstances, “the

prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.”

Salinas, 570 U.S. at 186. A two-justice concurrence would have concluded that the Fifth

Amendment right to remain silent does not arise prior to an arrest. Id. at 191-93 (Thomas,

J., Scalia, J. concurring).

       Here, we are concerned with prearrest silence. The testimony was short: after

Officer Nelson informed Alvarez of J.P.’s allegations, Alvarez had no shock or other

expression on his face. Alvarez was not under arrest, he was not prevented from invoking

his right to remain silent, and he did not invoke this right. Under Salinas, five justices

would conclude that the State was entitled to present testimony about Alvarez’s prearrest

silence. See Magana, 197 Wn. App. at 195 (following the Salinas plurality).

       Alvarez argues that Salinas was a plurality decision and is, thus, not controlling

precedent. We have difficulty with this argument, given that the result we reach here is

consistent with how five United States Supreme Court justices would rule.




                                              9
No. 35567-5-III
State v. Alvarez


       Were we to conclude that such testimony was improper, this author, but not a

majority, would conclude that the error was harmless beyond a reasonable doubt. As

noted previously, the substance found on the inside crotch of J.P.’s underwear was

definitely saliva, and because the saliva was deposited wet on the underwear, it was

highly improbable that it could have been transferred from Alvarez’s discarded towel.

The only plausible explanation is that Alvarez performed oral sex on J.P.4 Had the trial

court excluded Officer Nelson’s comment that Alvarez showed no reaction to J.P.’s

accusation, scientific evidence of Alvarez’s guilt was insurmountable.

       B.     EXPERT TESTIMONY ABOUT THE VICTIM’S CONSISTENT STATEMENTS

       Alvarez contends the trial court erred by overruling his objection to Ms. Murstig’s

opinion that J.P.’s statements to her were consistent with J.P.’s earlier statements to an

officer. He argues this error is both evidentiary and constitutional.




       4
         Both concurring judges believe a jury could reasonably find that the saliva was
deposited on the inside crotch of J.P.’s underwear by someone spitting, perhaps
accidentally while talking. This author disagrees. First, Alvarez argued this, and the jury
rejected his argument. Second, a trained officer or technician would not have spit on the
underwear. Even while testifying, the technician was careful enough not to hold the
underwear near her mouth while she spoke. Third, the location of the saliva—inside
crotch—strongly corroborates J.P.’s testimony and strongly contradicts accidental
spitting. Finally, if Alvarez believed that someone intentionally spit on J.P.’s underwear,
he would have so argued. He did not.

                                             10
No. 35567-5-III
State v. Alvarez


              1.      Evidentiary error

       Alvarez argues that Ms. Murstig’s opinion was inadmissible under ER 702 because

it was not helpful to the trier of fact and because a lay person could determine whether

two statements are consistent. We agree, but conclude that the error was harmless.

       A trial court’s decision to admit expert testimony is reviewed for an abuse of

discretion. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). “An abuse of

discretion occurs only when the decision of the court is ‘manifestly unreasonable, or

exercised on untenable grounds, or for untenable reasons.’” State v. McCormick, 166

Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d

12, 26, 482 P.2d 775 (1971)).

       Generally, testimony about the veracity of witnesses is inappropriate opinion

testimony. See State v. Quaale, 182 Wn.2d 191, 200, 340 P.3d 213 (2014). A lay opinion

is admissible if it is rationally based on the witness’s perception, helpful to the

determination of a fact in issue, and not based on specialized knowledge. ER 701. Ms.

Murstig’s opinion that J.P.’s statements to Officer Nelson were consistent with J.P.’s

statements to her was an opinion not based on Ms. Murstig’s specialized knowledge. It,

therefore, was an improper expert opinion.




                                              11
No. 35567-5-III
State v. Alvarez


       But the improper admission of her opinion was harmless error. The jury did not

believe Ms. Murstig that J.P.’s stories were consistent. It acquitted Alvarez on the

downstairs charge, the charge that depended on J.P.’s credibility. The jury found Alvarez

guilty only on the charge that did not depend on J.P.’s credibility, the upstairs charge.

That charge was supported by forensic evidence, evidence that Alvarez could not credibly

dispute.

               2.      Constitutional error not reviewable

       Alvarez argues that Ms. Murstig’s opinion was inadmissible under the Washington

Constitution article I, sections 21 and 22, and the United States Constitution amendment

VI because it violated his constitutional right to a jury trial. But Alvarez did not raise this

issue at the trial court.

       The general rule is that appellate courts will not consider an issue raised for the

first time on review. Kirkman, 159 Wn.2d at 926. However, a claim of error may be

raised for the first time on appeal if it is a manifest error affecting a constitutional right.

RAP 2.5(a)(3); In re Dependency of M.S.R., 174 Wn.2d 1, 11, 271 P.3d 234 (2012). To

meet RAP 2.5(a)(3)’s requirements, an appellant must demonstrate (1) the error is truly of

constitutional magnitude, and (2) the error is manifest. Kirkman, 159 Wn.2d at 926.




                                               12
No. 35567-5-III
State v. Alvarez


       In analyzing the asserted constitutional interest, we do not assume the alleged error

is of constitutional magnitude. State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988).

The claim must be one of truly constitutional magnitude. We look to the asserted claim

and assess whether, if correct, it implicates a constitutional interest as compared to

another form of trial error. Id. at 689-91.

       After determining the error is of constitutional magnitude, we determine whether

the error was manifest. To determine whether manifest error was committed, there must

be a plausible showing by the appellant that the asserted error had practical and

identifiable consequences in the trial of the case. State v. O’Hara, 167 Wn.2d 91, 99, 217

P.3d 756 (2009).

       RAP 2.5(a)(3) serves as a “gatekeeping function.” State v. Lamar, 180 Wn.2d

576, 583, 327 P.3d 46 (2014). The “gatekeeping function” of the rule is different from

the analysis of reviewing the claimed error. Id. “The requirements under RAP 2.5(a)(3)

should not be confused with the requirements for establishing an actual violation of a

constitutional right or for establishing lack of prejudice under a harmless error analysis if

a violation of a constitutional right has occurred.” Id.

       With these standards in mind we first determine whether Alvarez’s claim is truly

of constitutional magnitude. Generally, no witness in a criminal trial may offer testimony


                                              13
No. 35567-5-III
State v. Alvarez


in the form of an opinion regarding the veracity of the defendant. Kirkman, 159 Wn.2d at

927. Similarly, no witness in a criminal trial may offer an opinion on the veracity of a

witness. Quaale, 182 Wn.2d at 200. Such opinions violate the defendant’s constitutional

right to a jury trial, which includes the independent determination of the facts by the jury.

Kirkman, 159 Wn.2d at 927. Here, Alvarez claims the trial court erred in allowing Ms.

Murstig to offer an opinion on the veracity of J.P., who testified at trial. We conclude

that Alvarez’s claim is truly of constitutional magnitude.

       But not all opinions touching on a witness’s veracity qualify as manifest error.

“‘Manifest error’ requires a nearly explicit statement by the witness that the witness

believed the accusing victim.” Kirkman, 159 Wn.2d at 936. This heightened standard is

consistent with precedent holding that the manifest error exception is narrow. Id.

       Here, Ms. Murstig did not testify that she believed J.P. Instead, she testified that

J.P.’s statements to her were consistent with J.P.’s statements to an officer. This is

insufficient to constitute manifest error.

       C.     JUDICIAL COMMENTS ON THE EVIDENCE

       Alvarez contends the trial court commented on the evidence three separate times.

Alvarez did not object to any of the court’s purported comments; however, a judicial

comment on the evidence is an error of constitutional magnitude that can be raised for the


                                             14
No. 35567-5-III
State v. Alvarez


first time on appeal. State v. Sivins, 138 Wn. App. 52, 59, 155 P.3d 982 (2007);

RAP 2.5(a)(3).

       Article IV, section 16 of the Washington Constitution states that “[j]udges shall

not charge juries with respect to matters of fact, nor comment thereon, but shall declare

the law.” In other words, judges are prohibited from commenting on the evidence.

WASH. CONST. art. IV, § 16; State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006).

“[A]ny remark that has the potential effect of suggesting that the jury need not consider

an element of an offense could qualify as judicial comment.” Levy, 156 Wn.2d at 721.

“It is sufficient if a judge’s personal feelings about a case are merely implied.” Sivins,

138 Wn. App. at 58. This important constitutional principle serves to protect the jury

from being unduly influenced by the court’s opinion on the evidence or credibility. Id.

       Washington courts use a two-step analysis to determine whether reversal is

required due to a judicial comment on the evidence. Levy, 156 Wn.2d at 723. To

ascertain whether a court’s conduct or remarks rise to a comment on the evidence, courts

examine the facts and circumstances of the case. Sivins, 138 Wn. App. at 58. If there

was a judicial comment, it is “presumed to be prejudicial, and the burden is on the State to

show that the defendant was not prejudiced, unless the record affirmatively shows that no

prejudice could have resulted.” Levy, 156 Wn.2d at 723.


                                             15
No. 35567-5-III
State v. Alvarez


       Court told a juror during voir dire the victim was 12 or 13

       Alvarez’s first contention is that the court told a person, who ultimately became 1

of the 12 jurors, that it believed the victim was 12 or 13 years old. During jury selection,

the juror advised the court her sister had been sexually assaulted as a teenager. The court

inquired whether the juror could be fair and impartial, and noted its belief that the

purported victim was 12 or 13.

       The trial court should not have expressed its personal belief of the victim’s age,

but should have told the juror that the State contends the victim was 12 or 13. The trial

court’s comment was technically improper. We are nevertheless satisfied that the

comment could not have resulted in prejudice. Here, both J.P. and her mother testified

that J.P. was 13 at the time of the purported offenses. Alvarez did not rebut this

testimony in any way.

       Alvarez cites State v. Jackman, 156 Wn.2d 736, 132 P.3d 136 (2006) for the

proposition that a trial court’s instruction as to the age of the victim is a comment on the

evidence that requires reversal and retrial. Jackman is distinguishable.

       In Jackman, the State charged the defendant with three counts of sexual

exploitation of a minor, three counts of communication with a minor for immoral

purposes, four counts of furnishing alcohol to a minor, and one count of patronizing a


                                             16
No. 35567-5-III
State v. Alvarez


juvenile prostitute. Id. at 740. The victims testified at trial and gave their dates of birth to

support the State’s contention that they were all minors at the time of the purported

crimes. Id. at 740, 742-43. The trial court instructed the jury, and 11 of the 12 to-convict

instructions contained the victims’ dates of birth consistent with their trial testimonies.

Id. at 742. The defendant did not object to these instructions, and he was convicted on all

counts. Id. at 741. On appeal, the defendant argued that the 11 instructions were

improper judicial comments on the evidence. The Supreme Court agreed. Id. at 744.

The Supreme Court then concluded that the State could not prove that the improper

comments resulted in no prejudice. Id. at 745. In so concluding, the court noted that two

of the victims admitted at trial they had lied to the defendant about their ages, and the jury

could have found that these and the other victims lied at trial about their ages. Id. at 744

n.7, 745.

       In contrast here, the jury could not have found J.P.’s age to be anything other than

13. The trial court’s isolated comment during voir dire that it thought the victim was 12

or 13 was de minimis, compared to Jackman, where the trial court reiterated dates of birth

on 11 of the 12 to-convict instructions.

       Court read charging document with J.P.’s date of birth




                                              17
No. 35567-5-III
State v. Alvarez


       Alvarez’s second contention asserts the court commented on the evidence by

reading the charging document to the jury, which contained J.P.’s date of birth. The trial

court read the charging document, and thereafter added:

       The first amended information in this case is only an accusation against the
       defendant . . . . You are not to consider the filing of the . . . information or
       its contents as proof of the matters charged.
               It is your duty to determine the facts in this case from the evidence
       produced in court.

2 RP at 207. An accurate summary of the accusations, together with an appropriate

explanation that the summary is not evidence, does not constitute a judicial comment on

the evidence. Sivins, 138 Wn. App. at 61.

       Jury instruction contained Alvarez’s date of birth

       Alvarez’s final contention argues the court commented on the evidence because

the jury instructions contained his date of birth. The cover page of the court’s amended

instructions contained Alvarez’s date of birth. The cover page was not read to the jury,

and Alvarez’s date of birth under his name is hardly noticeable. Even had the jury

noticed it, the court’s instructions contained an admonition for the jury to consider only

evidence that was admitted through testimony or exhibits and to disregard any possible

comments on the evidence by the court. We presume the jury followed these instructions.




                                              18
No. 35567-5-III
State v. Alvarez


       Here, Mr. Alvarez testified to his son’s age. His testimony was not contested. To

obtain a conviction, the State was not required to prove Alvarez’s age. It was only

required to prove that Alvarez was more than 36 months older than 13-year-old J.P. The

jury could see that Alvarez—physically very large—was an adult. For these reasons, we

conclude that the State has established that no prejudice could have resulted from the

appearance of Alvarez’s date of birth on the cover page to the court’s instructions.

       CUMULATIVE ERROR

       Alvarez contends the trial court erred multiple times and if these errors, alone, do

not warrant reversal, the errors cumulatively warrant reversal. Cumulative error claims

are constitutional issues, which an appellate court reviews de novo. State v. Clark, 187

Wn.2d 641, 649, 389 P.3d 462 (2017). To receive relief based on the cumulative error

doctrine a “defendant must show that while multiple trial errors, ‘standing alone, might

not be of sufficient gravity to constitute grounds for a new trial, the combined effect of

the accumulation of errors most certainly requires a new trial.’” Id. (quoting State v. Coe,

101 Wn.2d 772, 789, 684 P.2d 668 (1984)). When there are no errors or the errors have

little to no effect on the trial’s outcome, the cumulative error doctrine does not apply.

State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).




                                             19
No. 35567-5-III
State v. Alvarez


       Here, the trial court erred when it allowed Ms. Murstig to testify that J.P.’s

statements to Officer Nelson were consistent with J.P.’s statements to her. But this

clearly was not prejudicial because the jury’s verdicts showed the jury did not believe Ms.

Murstig. The trial court also erred by twice commenting on the evidence. But both of

these comments were very minor. We are persuaded that these minor errors had no effect

on the outcome of the trial. The jury convicted Alvarez based on solid forensic evidence,

evidence for which Alvarez had no credible alternative explanation.

       COMMUNITY CUSTODY CONDITIONS

       Alvarez challenges seven of his community custody conditions. The State first

responds that Alvarez cannot challenge the community custody conditions because he had

an opportunity to collaboratively draft them but did not participate, and he did not object

to them at the trial court. We disagree with the State’s initial argument.

       An unlawful sentence may be challenged for the first time on appeal. State v.

Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). Defendants may generally challenge

community custody conditions that are contrary to statutory authority for the first time on

appeal. State v. Bahl, 164 Wn.2d 739, 745, 193 P.3d 678 (2008). We review community

custody conditions for an abuse of discretion. State v. Irwin, 191 Wn. App. 644, 652, 364

P.3d 830 (2015). “An abuse of discretion occurs only when the decision of the court is


                                             20
No. 35567-5-III
State v. Alvarez


‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’”

McCormick, 166 Wn.2d at 706 (quoting Carroll, 79 Wn.2d at 26). The abuse of

discretion standard applies when this court is reviewing a crime-related condition. Irwin,

191 Wn. App. at 656.

       Generally, courts may impose crime-related conditions on a defendant during their

time in community custody. RCW 9.94A.505(9), .703(3)(f). A “‘[c]rime-related

prohibition’ . . . prohibit[s] conduct that directly relates to the circumstances of the crime

for which the offender has been convicted . . . . ” RCW 9.94A.030(10). “‘Directly

related’ includes conditions that are ‘reasonably related’ to the crime.” Irwin, 191 Wn.

App. at 656 (quoting State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (2014)).

       Conditions 4 & 5: Consuming or unlawfully possessing controlled substances

       Alvarez argues conditions 4 and 5 are not crime related and are unconstitutionally

vague. We agree in part.

       Condition 4 reads: “not consume controlled substances except pursuant to lawfully

issued prescriptions.” Clerk’s Papers (CP) at 121. Alvarez’s contention that this

condition is not related to his crime of conviction is unpersuasive. This condition is a

waivable condition under RCW 9.94A.703(2)(c). A waivable condition does not have to




                                              21
No. 35567-5-III
State v. Alvarez


be crime related in order to be imposed. In re Pers. Restraint of Brettell, 6 Wn. App. 2d

161, 173, 430 P.3d 677 (2018).

       Alvarez argues in the alterative that condition 4 is unconstitutionally vague

because it is unclear whether it includes marijuana and, if it does, how it interacts with

Washington’s legalization of marijuana coupled with the differing jurisdictions in which

marijuana remains illegal. We also find this argument unpersuasive. The abuse of

discretion standard applies when this court is reviewing a community custody condition

for vagueness. Irwin, 191 Wn. App. at 652.

       The due process clause contained in the Fourteenth Amendment to the United

States Constitution and article I, section 3 of the Washington Constitution require that

laws not be vague. Magana, 197 Wn. App. at 200. The protections against vagueness

extend to community custody conditions because they can subject a person to

incarceration. State v. Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010).

A condition is not vague if it (1) provides ordinary people with fair warning of the

proscribed conduct, and (2) has standards that are definite enough to “‘protect against

arbitrary enforcement.’” Magana, 197 Wn. App. at 200-01 (internal quotation marks

omitted) (quoting Bahl, 164 Wn.2d at 753).




                                             22
No. 35567-5-III
State v. Alvarez


      Condition 4 is not unconstitutionally vague. Under federal law, marijuana is a

schedule I controlled substance. 21 U.S.C. § 812(c)(10), (17). Washington law defines

“controlled substance” as a substance included in schedule I under federal law. Former

RCW 69.50.101(d) (2015). Therefore, it is clear, marijuana remains a “controlled

substance” under Washington law. As Alvarez notes, a health care professional cannot

write a prescription for marijuana, but only issue valid documentation authorizing the

medical use of marijuana. RCW 69.51A.030(2)(b); see generally RCW 69.50.308.

Because a person cannot obtain a prescription for marijuana, the sentencing condition

allowing the use of controlled substances with a lawfully issued prescription does not

apply to marijuana. The condition provides fair warning to Alvarez and its terms are

adequately defined to prevent arbitrary enforcement. Magana, 197 Wn. App. at 200-01.

      Alvarez also contends condition 5 is not crime related and is unconstitutionally

vague. Condition 5 reads: “not unlawfully possess controlled substances while in

community custody.” CP at 121. This condition is not a mandatory or waivable

condition under RCW 9.94A.703(1)-(2). Thus, it is a discretionary condition under

RCW 9.94A.703(3)(f) and it must be crime related in order to be imposed.

      The State presented no evidence that consuming or possessing controlled

substances was in any way related to the crime for which Alvarez was convicted. The


                                            23
No. 35567-5-III
State v. Alvarez


State argues that Alvarez has a history of drug abuse, drug addiction, and drug related

convictions. While this may be true, community custody conditions must be “relate[d] to

the circumstances of the crime for which the offender has been convicted.” RCW

9.94A.030(10) (emphasis added). “‘Directly related’ includes conditions that are

‘reasonably related’ to the crime.” Irwin, 191 Wn. App. at 656 (quoting Kinzle, 181 Wn.

App. at 785). The State’s argument revolves around Alvarez’s history, not the specific

facts related to this conviction. Because there is no evidence that any type of controlled

substance was related to the conviction at hand, community custody condition 5 is not

crime related. 5

       Conditions 12 & 13: Advise [Department of Corrections (DOC)] of sexual
       partners and disclose sexual history to sexual partners

       Alvarez argues conditions 12 and 13, which require Alvarez to advise the DOC of

current sexual partners and to disclose his sexual criminal history to sexual partners are

not crime related and violate the First Amendment. We disagree with both contentions.

Because Alvarez was convicted of rape of a child, conditions requiring him to disclose

sexual relationships to DOC and inform sexual partners of his status are crime related.

See In re Pers. Restraint of Tillman, No. 51181-9-II, slip op. at 1 (Wash. Ct. App. June 5,



       5
           Alvarez’s argument that condition 5 is also unconstitutionally vague is moot.

                                              24
No. 35567-5-III
State v. Alvarez


2018) (unpublished) http://www.courts.wa.gov/opinions/pdf/D2%2051181-9-

II%20Unpublished%20Opinion.pdf.6

       Alvarez’s First Amendment contentions also fail. An offender’s freedom may be

limited when the restriction is “‘reasonably necessary to accomplish the essential needs

of the state and public order.’” State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365

(1993) (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974)). Alvarez’s

conditions do not limit his freedom of association; it merely affects his privacy. See In re

Pers. Restraint of Waggy, 111 Wn. App. 511, 518, 45 P.3d 1103 (2002). The Washington

Supreme Court has recognized the State has a legitimate interest in informing the public

about “potentially dangerous individuals.” In re Pers. Restraint of Meyer, 142 Wn.2d

608, 620-21, 16 P.3d 563 (2001). The conditions requiring Alvarez to disclose sexual

partners to DOC and to disclose his history to sexual partners are conditions reasonably

necessary to accomplish the essential needs of the state and public order. Riley, 121

Wn.2d at 37-38.




       6
         Under GR 14.1, unpublished opinions have no precedential value, but may be
cited as nonbinding authorities and accorded such persuasive value as the court deems
appropriate.

                                             25
No. 35567-5-III
State v. Alvarez


       Additional condition 4: Contact with minor children under 18 including biological
       children

       Alvarez argues additional condition 4 should contain an exception for his own

biological children. Alvarez presently has no biological children. But because we are

remanding to strike some conditions, it is proper to direct the trial court to amend this

condition to permit an exception for Alvarez’s own children, should he later have any.

       Alvarez also argues the restriction to all minors over 16 and under 18 is not crime

related because his crime was against a child under 16. We disagree.

       Prevention of harm to children is a compelling state interest. See, e.g., In re

Dependency of C.B., 79 Wn. App. 686, 690, 904 P.2d 1171 (1995). Restricting access to

minors under 18 is reasonably related to the crime. Alvarez preyed on, and took

advantage of, a minor under 18. The trial court concluded that minors under the age of 18

should be protected from Alvarez, and the condition is reasonably related to Alvarez’s

conviction.

       Additional condition 5: Polygraph testing

       Alvarez argues additional condition 5 should be struck or modified to limit

polygraphs to compliance with his other community custody conditions. We agree.

       Polygraphs may be utilized to monitor compliance with community custody

conditions. State v. Combs, 102 Wn. App. 949, 952, 10 P.3d 1101 (2000). The testing

                                             26
No. 35567-5-III
State v. Alvarez


should be limited, however, to monitor compliance with other community custody

conditions, and not used “as a fishing expedition to discover evidence of other crimes,

past or present.” Id. at 953. Because the condition is not limited in this fashion, we

remand for the court to add language limiting the scope of the polygraph testing.

       Additional condition 6: Search of electronic devices by DOC

       Alvarez argues additional condition 6 allows unfettered access to any electronic

device Alvarez possesses and is in violation of Alvarez’s article I, section 7 right against

searches and seizures. We agree and remand to strike this condition.

       To determine whether a preenforcement challenge to a community custody

condition is ripe for review, the court examines “‘if the issues raised are primarily legal,

do not require further factual development, and the challenged action is final.’” Sanchez

Valencia, 169 Wn.2d at 786 (internal quotation marks omitted) (quoting Bahl, 164 Wn.2d

at 751). Then, the court also considers the hardship imposed on the petitioner if the

challenged condition is not reviewed on appeal. Id. Here, the community custody

condition is a final action, Alvarez’s challenge raises a legal issue and no further factual

development is required. See State v. Cates, 183 Wn.2d 531, 354 P.3d 832 (2015).

       In Cates, the defendant was convicted of two counts of first degree rape of a child

and two counts of first degree child molestation. Id. at 532. Among other community


                                             27
No. 35567-5-III
State v. Alvarez


custody conditions, the court entered a provision that read: “‘You must consent to

[Department of Corrections] home visits to monitor your compliance with supervision.

Home visits include access for the purposes of visual inspection of all areas of the

residence in which you live or have exclusive/joint control/access, to also include

computers which you have access to.’” 7 Id. at 533 (alteration in original). The defendant

challenged this condition on appeal, arguing it violated the Washington Constitution

because it authorized searches not based on probable cause. Id. The Supreme Court

upheld the condition, finding it was not ripe for review.

       The court recognized that, as written, the condition did not authorize any searches,

and the inspections were limited to monitor the defendant’s compliance with supervision.

Id. at 535. It further reasoned that “[s]ome future misapplication of the community

custody condition might violate article I, section 7, but that ‘depends on the particular

circumstances of the attempted enforcement.’” Id. (quoting Sanchez Valencia, 169

Wn.2d at 789). The court held that the State must attempt to enforce the provision before

review would be appropriate. Id.

       Alvarez’s condition is different from the condition in Cates. Here, the condition

requires Alvarez to “[a]llow a full search of [his] cell phone/computer or other electronic


       7
           This condition is similar to Alvarez’s condition 8.

                                               28
No. 35567-5-III
State v. Alvarez


device as directed by DOC staff.” CP at 174. Unlike Cates, this condition does in fact

allow searches. This condition is not limited to monitor compliance with supervision; it is

unlimited. Finally, the condition is not required to be based on probable cause—the DOC

may search, and Alvarez must consent, at any time for any reason. Therefore, the

condition violates article I, section 7 on its face and should be struck.8

       In sum, condition 5 must be struck because it is not crime related and, thus, the

court exceeded its authority. Additional condition 6 must also be struck because it is in

violation of the Washington Constitution, article I, section 7. Finally, additional

condition 5 is remanded for the court to limit polygraph testing to monitor Alvarez’s

compliance with other community custody conditions.

       CRIMINAL FILING FEE

       Alvarez asks this court to strike his $200 criminal filing fee pursuant to the holding

in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).

       House Bill 1783, which became effective June 7, 2018, prohibits trial courts from

imposing discretionary legal financial obligations (LFOs) on defendants who are indigent

at the time of sentencing. LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wn.2d at 738,


       8
        Alvarez also challenges this condition as not being crime related. We agree and
would require the condition to be struck for this reason also. Alvarez’s crime did not
involve any use of electronics, and the condition is not limited to ensure compliance with

                                              29
No. 35567-5-III
State v. Alvarez


747. This change to the criminal filing fee statute is now codified in RCW

36.18.020(2)(h). As held in Ramirez, these changes to the criminal filing fee statute apply

prospectively to cases pending direct appeal prior to June 7, 2018. Ramirez, 191 Wn.2d

at 747. Accordingly, the change in law applies to Alvarez’s case. Because Alvarez is

indigent, the criminal filing fee must be struck pursuant to Ramirez.

       STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

       Alvarez filed an original and a supplemental SAG, which contain at least 20

arguments why his conviction should be reversed. We organize his arguments by subject

matter and consolidate them for brevity.

       SAG Ground 1: JURY SELECTION

       1A. Jury selection: Jurors 8 and 14

       Alvarez contends that jurors 8 and 14 had the same name, which likely caused a

conflict. Jurors 8 and 14 had different names.

       1B. Jury selection: Juror 10

       Alvarez contends that juror 10 was improperly left on the panel. He argues that

juror 10 had an appointment on the afternoon of deliberations that likely caused the jury

to rush deliberations. This is a bare assertion. Juror 10 had an appointment—but juror 10


his other conditions.

                                             30
No. 35567-5-III
State v. Alvarez


stated it could be changed. There is no evidence that juror 10 did not change the

appointment and rushed deliberations.

       1C. Jury selection: Jurors 25 and 26

       Alvarez contends jurors 25 and 26 participated in voir dire after they were struck.

Also, juror 25 learned J.P.’s age during voir dire. He asserts that this tainted the jury.

       There is no record of juror 25 participating in voir dire after being struck.

Although juror 25 learned the age of J.P. during individual voir dire, juror 25 was struck

for cause. Thus, that knowledge had no impact on the case.

       Juror 26 was struck for cause during individual voir dire. For some reason, juror

26 returned for general voir dire. Juror 26 answered a question about prior jury service

and how prior service on a hung jury was frustrating. Counsel recognized the mistake

and excused juror 26. We reject Alvarez’s contentions that one comment about being on

a hung jury tainted the rest of the jury pool.

      1D. Jury selection: Not screened for conflicts with Ashley Lucas or Jeffrey
Porteous

       Alvarez contends the potential jurors were not screened for conflicts with two

witnesses. He asserts this could have created a conflict in the jury and denied him a fair

trial by an impartial jury. Alvarez has not included admissible facts to show that this

failure to screen actually resulted in conflicts. Because his argument relies on facts

                                                 31
No. 35567-5-III
State v. Alvarez


outside the record, the appropriate course of relief is through a personal restraint petition.

State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

       SAG Ground 2: JURY INSTRUCTIONS

       2A. Jury instructions: Instruction 6

       Alvarez contends the court erred and read jury instruction 6 that was previously

removed. Instruction 6 was the definition of “sexual contact” under RCW 9A.44.010(2).

The parties had previously agreed to remove the instruction before the court read the

instructions to the jury, but the instruction accidentally remained in the jury packet. The

court read it to the jury. At a sidebar, the parties agreed it should have been removed and

agreed for the court to re-read the instruction to the jury to notify them which instruction

would be removed. The second time through the instruction, the court said “sexual act”

instead of “sexual contact.” Alvarez claims this misstep requires reversal. The court, per

agreement of the parties, removed instruction 6. The court’s mistake in reading it to the

jury, then re-reading and saying “sexual act” instead of “sexual contact” was harmless.

The instruction was removed.




                                              32
No. 35567-5-III
State v. Alvarez


       2B. Jury instructions: Erroneous Petrich9 instruction

       Alvarez contends jury instruction 10 did not contain the required elements. Jury

instruction 10 was not the element instruction. The elements were included in instruction

8.

       SAG Ground 3: DETECTIVE ROMERO’S TESTIMONY

       3A. Detective Romero’s testimony: Statements about flight risk

       Alvarez contends Detective Romero’s statements about arresting Alvarez because

he was unemployed and a flight risk were prejudicial and robbed Alvarez of a fair trial.

Alvarez’s counsel objected at trial, and the court sustained the objection and instructed

the jury to disregard the testimony. The law presumes this remedy was effective. State v.

Swan, 114 Wn.2d 613, 661-64, 790 P.2d 610 (1990).

       Essentially, Alvarez argues the trial court should have declared a mistrial sua

sponte. An appellant who does not request a remedy forfeits that claim. “‘Counsel may

not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use

the claimed misconduct as a life preserver on a motion for a new trial or on appeal.’”



       9
         State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on
other grounds by State v. Kitchen, 110 Wn.2d 403, 406 n.1, 756 P.2d 105 (1988),
abrogated in part on other grounds by In re Pers. Restraint of Stockwell, 179 Wn.2d 588,
316 P.3d 1007 (2014).

                                             33
No. 35567-5-III
State v. Alvarez


State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994) (quoting Jones v. Hogan, 56

Wn.2d 23, 27, 351 P.2d 153 (1960)).

       3B. Detective Romero’s testimony: Scope of testimony

       Alvarez argues the State was able to question Detective Romero outside the scope

of his impeachment testimony of Alvarez’s two witnesses. We review the trial court’s

decision to admit testimony for an abuse of discretion. State v. Demery, 144 Wn.2d 753,

758, 30 P.3d 1278 (2001). The State’s redirect of Detective Romero was proper

responsive testimony to Alvarez’s witnesses who testified to impeach the credibility of

J.P. Detective Romero’s testimony was limited to rehabilitating the witness, and the trial

court did not abuse its discretion by allowing it.

       SAG Ground 4: CHARGING DOCUMENT

       Alvarez argues the charging document did not contain the essential elements

needed for a conviction—they were constitutionally deficient. The charging document

merely stated “sexual intercourse,” which can be found and accomplished in many

different ways. Alvarez argues this ambiguity did not put him on notice of the “means”

by which sexual intercourse was accomplished thus making the charging document

deficient.




                                              34
No. 35567-5-III
State v. Alvarez


       A defendant may challenge the sufficiency of the charging document for the first

time on appeal, but the court liberally construes the document in favor of validity.

State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991). The court will look at

(1) whether the necessary facts appear in any form or can be found by fair construction,

and if so (2) whether the defendant suffered actual prejudice as a result of the vague or

ambiguous language. Id.

       The basis of Alvarez’s contention is that the information did not define “sexual

intercourse.” The definition of sexual intercourse is not a statutory element and not

necessary to include in the charging document. Therefore, the charging document was

sufficient. Similar language has been upheld. See State v. Botello-Garcia, No. 46355-5-

II, slip op. at 5-6 (Wash. Ct. App. Apr. 26, 2016) (unpublished),

http://www.courts.wa.gov/opinions/pdf/46355-5.16.pdf;10 CP at 161. We conclude that

the charging document alleged and defined the offense with sufficient certainty to give

Alvarez notice of the crime.




       10
          Under GR 14.1, unpublished opinions have no precedential value, but may be
cited as nonbinding authorities and accorded such persuasive value as the court deems
appropriate.

                                             35
No. 35567-5-III
State v. Alvarez


       SAG Ground 5: MOTION IN LIMINE

       Alvarez argues the court erred by granting a motion in limine to exclude character

evidence of J.P. J.P.’s actions of sneaking a dress into school, changing into it, taking

pictures in it, then changing back out of it, should have been admitted to show J.P.’s

untruthfulness and deceitfulness. Alvarez also argues the trial court erroneously excluded

character evidence about J.P.’s prior discipline problems at school and home.

       The trial court reserved ruling on the motion in limine about J.P.’s actions with the

dress, but otherwise excluded other character evidence. A trial court’s ruling on a motion

in limine is reviewed for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258,

893 P.2d 615 (1995); State v. Munguia, 107 Wn. App. 328, 335, 26 P.3d 1017 (2001).

Generally, character evidence is not admissible “for the purpose of proving action in

conformity therewith on a particular occasion.” ER 404(a). Other wrongs or acts are also

inadmissible for that purpose. ER 404(b). Alvarez does not argue that an exception

applies to J.P.’s discipline history; therefore, we reject his contention. The trial court did

not abuse its discretion in excluding that evidence.

       The court revisited the reserved motion in limine during trial. Alvarez’s counsel

was able to question J.P. about the dress she showed Alvarez after the rape. Counsel




                                              36
No. 35567-5-III
State v. Alvarez


conceded not to elicit other testimony about prior incidents with the dress. Because the

court did not rule on this, the court could not have abused its discretion.

       SAG Ground 6: MR. PORTEOUS’S TESTIMONY

       Alvarez argues the trial court erred by allowing the State to examine Mr. Porteous

outside the scope of redirect during recross. Whether a line of questioning on cross-

examination is properly within the scope of direct examination is within the trial court’s

discretion. State v. McDaniel, 83 Wn. App. 179, 184, 920 P.2d 1218 (1996). The trial

court properly exercised its discretion to allow the State to examine Mr. Porteous on

recross.

       Initially, Alvarez called Mr. Porteous as a witness and questioned him about the

interview with J.P. Mr. Porteous testified to statements J.P. did not make in her interview

that seemed to contradict her trial testimony. The State cross-examined Mr. Porteous

about that interview. Specifically, the State elicited testimony that Mr. Porteous was not

asking the questions to J.P., and Alvarez’s counsel may have done a poor job posing the

right questions to J.P. On redirect, Alvarez asked more questions about the interview to

explain some of Mr. Porteous’s responses to the State’s cross-examination. The State

recrossed and asked for a description of the room where the interview took place.

Alvarez objected, arguing the question was outside the scope of redirect. The trial court


                                             37
No. 35567-5-III
State v. Alvarez


overruled, and the State was able to briefly question Mr. Porteous about the interview

room, the hallway to the room, and who was in the room during the interview. This

recross was within the scope of redirect. Alvarez questioned Mr. Porteous about the

interview, and the State’s questions were directly related to the interview.

       SAG Ground 7: DNA EVIDENCE

       Alvarez argues the DNA evidence was unreliable and insufficient because it did

not come from an untainted source. He argues the underwear was gathered by J.P.’s

mother and was initially located in a hamper with other clothes, including a towel that

could have contained his DNA.

       At trial, Alvarez did not seek to exclude the evidence as unreliable. We conclude

he has waived his right to review on this issue. State v. Guloy, 104 Wn.2d 412, 422, 705

P.2d 1182 (1985); see also State v. Blake, 172 Wn. App. 515, 530, 298 P.3d 769 (2012).

       Because Alvarez also challenges the sufficiency of the evidence, he admits the

truth of all the State’s evidence. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d

19 (2017). “Evidence is sufficient to support a guilty verdict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find the elements of

the charged crime beyond a reasonable doubt.” Id. “[A]ll reasonable inferences from the




                                              38
No. 35567-5-III
State v. Alvarez


evidence must be drawn in favor of the State and interpreted most strongly against”

Alvarez. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       To find Alvarez guilty of rape of a child in the second degree, the jury had to find

that Alvarez had “sexual intercourse with another who is at least twelve years old but less

than fourteen years old and not married to the perpetrator and the perpetrator is at least

thirty-six months older than the victim.” RCW 9A.44.076(1). “Sexual intercourse”

means “any act of sexual contact between persons involving the sex organs of one person

and the mouth or anus of another.” RCW 9A.44.010(1)(c). “‘Sexual contact’ means any

touching of the sexual or other intimate parts of a person done for the purpose of

gratifying sexual desire of either party or a third party.” RCW 9A.44.010(2).

       Here, viewing all of the State’s evidence as true, there was sufficient evidence to

convict Alvarez of rape of a child in the second degree. J.P. was 13 at the time of the

rape. Alvarez was 26. J.P. was not married to Alvarez. J.P. testified that while upstairs,

Alvarez put one to three fingers inside of her vagina. Then, Alvarez used his tongue on

J.P.’s vagina. While this occurred, Alvarez was “pulling on himself.” 3 RP at 452. It is

clear the elements were met, and a rational jury could have found Alvarez guilty.

       The State’s forensic expert testified she found saliva and male DNA on the inside

crotch of the underwear worn by J.P. during the purported offenses. J.P. testified that


                                             39
No. 35567-5-III
State v. Alvarez


Alvarez performed oral sex on her. Alvarez offered no credible alternative explanation

for the presence of saliva and male DNA on the inside crotch of J.P.’s underwear. There

was sufficient evidence to sustain his conviction.

       SAG Ground 8: J.P.’S TESTIMONY

       Alvarez argues J.P.’s testimony was insufficient for conviction. J.P.’s story and

allegations changed multiple times. He argues the court erred by allowing this testimony.

He further argues, even after the court learned J.P. recanted, it still sentenced him despite

the perjured testimony.

       As stated earlier, to find Alvarez guilty of rape of a child in the second degree, the

jury had to find that Alvarez had “sexual intercourse with another who is at least twelve

years old but less than fourteen years old and not married to the perpetrator and the

perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.076(1).

       Here, there was sufficient evidence to convict Alvarez of rape of a child in the

second degree. J.P. was 13 at the time of the rape. Alvarez was 26. J.P. was not married

to Alvarez. J.P. testified that while upstairs, Alvarez put one to three fingers inside her

vagina. Then, Alvarez used his tongue on J.P.’s vagina. While this occurred, Alvarez

was “pulling on himself.” 3 RP at 452. It is clear the elements were met, and a rational

jury could have found Alvarez guilty.


                                             40
No. 35567-5-III
State v. Alvarez


          Alvarez did not object to the admission of J.P.’s testimony. Therefore, he waived

his right to review on this issue. Guloy, 104 Wn.2d at 422; see also Blake, 172 Wn. App.

at 530.

          Alvarez argues that because he is seeking a recantation, and J.P.’s mother met with

Alvarez’s counsel after trial, this means J.P. recanted her allegations. There is no

evidence of an actual recantation beyond Alvarez’s accusations. When claims depend on

evidence outside the record, those claims are properly raised through a personal restraint

petition. McFarland, 127 Wn.2d at 335.

          SAG Ground 9: INEFFECTIVE ASSISTANCE OF COUNSEL

          Each defendant has the right to receive effective assistance of counsel. Strickland

v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Effective

assistance of counsel is a mixed question of law and fact that we review de novo. Id. at

698. We apply a two-pronged test to determine whether counsel provided effective

assistance: (1) whether counsel’s performance was deficient, and (2) whether that

deficient performance prejudiced the defendant to an extent that changed the result of the

trial. Id. at 687. We can address the second prong initially “[i]f it is easier to dispose of

an ineffectiveness claim on the ground of lack of sufficient prejudice.” Id. at 697.




                                               41
No. 35567-5-III
State v. Alvarez


       9A. Ineffective assistance of counsel: Not filing motions

       Alvarez argues he received ineffective assistance of counsel because his attorney

did not file a motion to suppress the DNA evidence, a motion to exclude J.P.’s testimony,

a motion to dismiss due to insufficient evidence, a motion to dismiss for an insufficient

charging document, and a motion for retrial after J.P.’s recantation. To show prejudice

for counsel’s failure to make a motion, a defendant must show the motion likely would

have been granted. In re Pers. Restraint of Davis, 152 Wn.2d 647, 711, 101 P.3d 1

(2004).

       Alvarez’s motion to exclude J.P.’s testimony or the DNA evidence would likely

not have been granted. Alvarez merely asserts J.P.’s testimony is inconsistent and

unreliable. However, evidence is relevant and, therefore, admissible when it has any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence. ER 401,

402. This threshold is very low. State v. Briejer, 172 Wn. App. 209, 225-26, 289 P.3d

698 (2012). Alvarez’s arguments go more to the weight of this evidence, which is

properly explored on cross-examination and determined by the jury.

       Alvarez’s motion to dismiss due to insufficient evidence would likely not have

been granted. There was evidence presented that Alvarez touched J.P.’s sexual parts for


                                            42
No. 35567-5-III
State v. Alvarez


the purpose of gratifying sexual desire and that J.P. was between 12 and 14 years old, not

married to Alvarez, and Alvarez was more than 36 months older than J.P. See

RCW 9A.44.076(1).

       Alvarez’s motion to dismiss due to an insufficient charging document would likely

not have been granted. As stated earlier, the charging document contained the necessary

elements.

       Alvarez does not show his motion for retrial would have been granted. There is no

evidence of an actual recantation beyond Alvarez’s accusations.

       Because Alvarez cannot show any of his proposed motions would likely have been

granted, his claims of ineffective assistance of counsel fail. See Davis, 152 Wn.2d at 711.

       9B. Ineffective assistance of counsel: Not objecting to amended information

       Alvarez argues he received ineffective assistance of counsel because his attorney

did not object to the State’s amended information. The mere filing of additional charges

after a defendant refuses a guilty plea is not sufficient for a finding of prosecutorial

vindictiveness. State v. Korum, 157 Wn.2d 614, 629, 141 P.3d 13 (2006).

       9C. Ineffective assistance of counsel: Not objecting to community custody
conditions

       Alvarez argues he received ineffective assistance of counsel because his attorney

did not object to community custody conditions. Alvarez does not show how this alleged

                                              43
No. 35567-5-III
State v. Alvarez


error would have changed the result of the trial. Strickland, 466 U.S. at 687. Moreover,

his community custody conditions have been addressed on appeal.

       9D. Ineffective assistance of counsel: Not presenting evidence

       Alvarez argues he received ineffective assistance of counsel because his attorney

failed to present the audio recording and video recording of J.P.’s interviews. Alvarez

contends the video and recordings would have shown J.P.’s inconsistent statements.

Alvarez’s counsel accomplished this by examining Mr. Porteous, Detective Romero, and

J.P. at length about the interviews. Playing the lengthy interview video and recording

would have been time consuming, and it was a legitimate strategic tactic not to present

those to the jury.

      9E. Ineffective assistance of counsel: Not objecting to the exclusion of J.P.’s
character evidence

       Alvarez argues he received ineffective assistance of counsel because his attorney

failed to object to the court excluding evidence of J.P.’s character of past school and

familial discipline. Even if Alvarez’s counsel objected to the court excluding certain

evidence about J.P.’s character, the objection would likely have been overruled. Alvarez

asserts the information should have been admitted to show J.P.’s deceitfulness,

flirtatiousness, and that she lied about the rape. Generally, character evidence is not

admissible “for the purpose of proving action in conformity therewith on a particular

                                             44
No. 35567-5-III
State v. Alvarez


occasion.” ER 404(a). Other wrongs or acts are also inadmissible for that purpose.

ER 404(b). Therefore, his argument fails.

       9F. Ineffective assistance of counsel: Jury

       Alvarez argues he received ineffective assistance of counsel because his attorney

did not screen potential jurors for a conflict with Ms. Lucas or Mr. Porteous, he failed to

remove juror 11 instead of juror 10, and he failed to remove juror 13. Alvarez does not

show how these alleged errors would have changed the result of the trial. Strickland, 466

U.S. at 687. Alvarez does not show the jury panel had an actual conflict with Ms. Lucas

or Mr. Porteous.

       As noted before, Alvarez asserts that because juror 10 had an appointment on the

afternoon of deliberations, it likely caused the jury to rush deliberations. This is a bare

assertion. Juror 10 had an appointment—but juror 10 stated it could be changed. There is

no evidence that juror 10 did not change the appointment and rushed deliberations. Juror

11 had an actual conflict to leave town during deliberations. It was a legitimate strategy

to remove juror 11 instead of 10.

       Alvarez does not show how not removing juror 13 would have changed the result

of the trial just because juror 13 learned J.P.’s age during voir dire. Strickland, 466 U.S.

at 687. J.P.’s age was uncontested at trial.


                                               45
No. 35567-5-III
State v. Alvarez


       9G. Ineffective assistance of counsel: Trial objections

       Alvarez argues he received ineffective assistance of counsel because his attorney

failed to object to J.P. being referred to as “victim,” Officer Nelson’s hearsay testimony,

and Officer Nelson’s Miranda11 testimony.

       Alvarez generally alleges that his counsel and multiple witnesses referred to J.P. as

“victim.” This does not show how an objection and sustained ruling on that

characterization of J.P. would have changed his conviction. Strickland, 466 U.S. at 687.

       Officer Nelson’s testimony about what Mr. Alvarez instructed him to tell Alvarez

may have been hearsay, but Alvarez fails to show how the outcome of the trial would

have been different if Officer Nelson’s testimony was objected to and sustained.

Strickland, 466 U.S. at 687.

       Alvarez does not show how an objection and sustained ruling on Officer Nelson’s

Miranda testimony would have changed his conviction. Strickland, 466 U.S. at 687.

       9H. Ineffective assistance of counsel: Right to testify

       Alvarez argues he received ineffective assistance of counsel because his attorney

intimidated him and advised him not to testify. There is no evidence that Alvarez’s

counsel intimidated him not to testify. Alvarez went on record to confirm he did not want


       11
            Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                             46
No. 35567-5-III
State v. Alvarez


to testify. If Alvarez’s claim depends on evidence outside the record, that claim is

properly raised through a personal restraint petition. McFarland, 127 Wn.2d at 335.

       9I. Ineffective assistance of counsel: Jury instructions

       Alvarez argues he received ineffective assistance of counsel because his attorney

failed to object or correct jury instructions 10 and 13.

       Alvarez argues the court erred by striking a certain part of jury instruction 13.

However, Alvarez goes on to say this prevented the jury from considering the State’s

questions to Mr. Porteous as part of the record. Striking the State’s leading questions

from the record was a legitimate trial tactic.

       As noted earlier, jury instruction 10 was not the required element instruction. The

elements were included in instruction 8.

       9J. Ineffective assistance of counsel: Witness list

       Alvarez argues he received ineffective assistance of counsel because his attorney

failed to file a witness list. Alvarez does not show how this would have changed his

conviction. Strickland, 466 U.S. at 687.

       9K. Ineffective assistance of counsel: Mental health capacity

       Alvarez argues he received ineffective assistance of counsel because his attorney

did not object to his mental health capacity. Alvarez does not explain why counsel should


                                                 47
No. 35567-5-III
State v. Alvarez


have objected to Alvarez being found competent. Because we are unable to determine the

nature of the claimed error, we will not review it. If Alvarez’s claim depends on evidence

outside the record, that claim is properly raised through a personal restraint petition.

McFarland, 127 Wn.2d at 335.

       9L. Ineffective assistance of counsel: Sentencing

       Alvarez argues he received ineffective assistance of counsel because his attorney

failed to object to the State’s comment at sentencing, failed to correct the State’s

characterization of the crime, failed to object or correct the State’s sentencing

memorandum, and failed to argue for an exceptional mitigated sentence.

       Counsel’s failure to object to the State’s comment at sentencing that “[Alvarez]

continue[s] to molest” is harmless. RP (Aug. 25, 2017) at 9. Likewise, counsel’s failure

to object to the State’s comment that Alvarez’s history of sexual abuse occurs usually

while watching movies with the victim was harmless. Finally, the State characterized

Alvarez’s crime as taking place over a couple hours in multiple rooms. Alvarez argues

this is incorrect as he was only convicted of conduct that took place in the upstairs

bedroom, and J.P.’s testimony was that it lasted an hour and one-half, not a couple hours.

Alvarez cannot show with likelihood that any of these comments changed the sentence he

received.


                                              48
No. 35567-5-III
State v. Alvarez


       Counsel was not ineffective for failing to argue for an exceptional mitigated

sentence. Alvarez’s counsel argued for the low end of the sentencing range. The court

was very mindful of the victim in this case and how this rape will affect her for the rest of

her life. The court reasoned that the low end of the range was inappropriate considering

the crime and the victim. On the other hand, the court believed the high end of the range

was also not necessary. Therefore, the court imposed 110 months. Alvarez cannot show

with substantial likelihood that if his counsel would have argued for an exceptional

mitigated sentence that he would have received it—considering his counsel argued for the

low end range and Alvarez did not receive a low end range sentence.

       9M. Ineffective assistance of counsel: Limiting instructions

       Alvarez argues he received ineffective assistance of counsel because his attorney

failed to propose a limiting instruction for officers’ reports, Detective Romero’s

testimony and J.P.’s testimony.

       The “officers’ reports” were not admitted into evidence. There were only six

exhibits admitted into evidence—J.P.’s underwear and five photographs of the house,

stairway, loft, and J.P.’s bedroom. Therefore, Alvarez’s counsel could not limit their

admissibility because they were not admitted to the jury. His argument that the officers’




                                             49
No. 35567-5-III
State v. Alvarez


reference to their reports was improper also fails. An officer may reference their report to

refresh their recollection. ER 612.

       Detective Romero’s testimony was not limited to impeachment testimony.

Detective Romero was called as a witness in the State’s case-in-chief. He gave more than

impeachment testimony. A limiting instruction was unsuitable with his testimony.

       J.P.’s testimony was also not limited to impeachment testimony. She testified to

the details of the rape. A limiting instruction was simply inconsistent with the testimony

she gave.

       SAG Ground 10: PROSECUTORIAL MISCONDUCT

       To prevail on a claim of prosecutorial misconduct, Alvarez must establish “‘that

the prosecutor’s conduct was both improper and prejudicial in the context of the entire

record and the circumstances at trial.’” State v. Thorgerson, 172 Wn.2d 438, 442, 258

P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d

174, 191, 189 P.3d 126 (2008)). Prejudice requires a showing of substantial likelihood

that the prosecutor’s misconduct affected the jury’s verdict. Id. at 443. A failure to

object to an improper remark waives review of the error unless it “‘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.’” Id. (quoting Russell, 125 Wn.2d at 86).


                                             50
No. 35567-5-III
State v. Alvarez


       10A. Prosecutorial misconduct: Insufficient evidence

       Alvarez contends the State charged without sufficient evidence and should have

waited until the DNA results were done. “Prosecutors are given broad discretion in

determining what charges to bring and when to file them.” City of Kennewick v.

Fountain, 116 Wn.2d 189, 194, 802 P.2d 1371 (1991). Alvarez has not shown any abuse

of that discretion.

      10 B. Prosecutorial misconduct: Amended information was vindictive and against
double jeopardy

       Alvarez contends the State’s amended information was prosecutorial misconduct

because it was vindictive and it violated double jeopardy principles. In his amended

SAG,12 Alvarez also argues the State’s actions to stack an additional count after he

refused a plea deal is inconsistent with the legislature’s directives in RCW 9.94A.411.

       Prosecutorial vindictiveness is the filing of additional or more serious charges in

response to a defendant’s exercise of a constitutional or procedural right. Korum, 157

Wn.2d at 627. An action is only vindictive if it is designed to punish or penalize the

defendant. Id. The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides

guidelines to prosecutors—they do not constitute an enforceable right. See


       12
        This amended SAG was filed on May 28, 2019, and Alvarez only asserted a new
argument under this issue.

                                             51
No. 35567-5-III
State v. Alvarez


RCW 9.94A.401. A prosecutor should not overcharge a defendant in order to obtain a

guilty plea, RCW 9.94A.411(2)(a)(i), (ii), but on the other hand, a prosecutor may charge

other offenses if it significantly enhances its case. RCW 9.94A.411(2)(a)(i)(A).

       Alvarez argues that the State was vindictive when it filed an additional count after

he refused a plea deal. “[T]he mere filing of additional charges and the consequent

increase in sentence . . . cannot support a presumption of vindictiveness . . . .” Korum,

157 Wn.2d at 634. Alvarez has not alleged facts beyond the mere filing of an additional

count; therefore, his vindictiveness claim fails. This holding is consistent with precedent.

See Korum, 157 Wn.2d 614 (finding no vindictiveness where State filed 16 additional

felony charges after defendant withdrew guilty plea); United States v. Goodwin, 457 U.S.

368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (finding no prosecutorial vindictiveness

where the United States Attorney obtained a felony indictment and conviction after

defendant refused misdemeanor plea deal); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.

Ct. 663, 54 L. Ed. 2d 604 (1978) (finding no prosecutorial vindictiveness where

prosecutor sought a habitual criminal indictment and defendant received life in prison

after defendant rejected five-year sentence in exchange for his guilty plea). Here, the

prosecutor was free to file an additional count after Alvarez rejected the plea deal. The

initial charge did not set a ceiling on Alvarez’s potential criminal liability.


                                              52
No. 35567-5-III
State v. Alvarez


       Double jeopardy means a defendant cannot be prosecuted for the same offense

after being acquitted, be prosecuted for the same offense after being convicted, or receive

multiple punishments for the same offense. State v. Villanueva-Gonzalez, 180 Wn.2d

975, 980, 329 P.3d 78 (2014). Alvarez did not “receive multiple punishments for the

same offense.” He was only convicted of one count.

       10C. Prosecutorial misconduct: J.P.’s false testimony

       Alvarez contends the State coached J.P. into giving false testimony. There is no

evidence of this in the record. If this claim depends on evidence outside the record, that

claim is properly raised through a personal restraint petition. McFarland, 127 Wn.2d at

335.

       10D. Prosecutorial misconduct: Alvarez’s right not to testify

       Alvarez contends the State improperly commented on his failure to testify. We

find this comment was not improper. This comment was during jury voir dire, and the

prosecutor asked a potential juror if the juror would hold it against a defendant if the

defendant did not testify. The prosecutor also added it was a defendant’s right not to

testify. This is a proper question to uncover possible jury bias.




                                             53
No. 35567-5-III
State v. Alvarez


       10E. Prosecutorial misconduct: Speedy trial

       Alvarez contends the State used his right to a speedy trial against him by making

comments about DNA evidence and testing during voir dire. However, most of the

statements occurred at a sidebar with Alvarez’s counsel and the court. The only questions

posed by the State to the jury pool were whether the jury needed DNA evidence to

convict, whether the jury would hold it against the State if DNA evidence was not tested,

and whether the jury believed forensic testing occurs at the same speed in real life as it

does on television. Alvarez objected to these questions, and the court instructed the State

to go to a different line of questioning. Alvarez does not show prosecutorial misconduct,

if any, about his right to a speedy trial. These were not flagrant or ill-intentioned

statements.

       10F. Prosecutorial misconduct: Sentencing

       Alvarez contends the State proceeded with sentencing after knowledge of J.P.’s

recantation. There is no evidence of an actual recantation beyond Alvarez’s accusations.

When claims depend on evidence outside the record, those claims are properly raised

through a personal restraint petition. McFarland, 127 Wn.2d at 335.




                                              54
No. 35567-5-III
State v. Alvarez


       SAG Ground 11: OFFENDER SCORE

       Alvarez argues his offender score was miscalculated because it included a prior

juvenile conviction. Alvarez has a conviction for child molestation in the first degree in

2005. Child molestation in the first degree is a class A felony. RCW 9A.44.083. Under

RCW 9.94A.525(2)(a), prior class A and felony sex convictions are always included in

the offender score. Consistent with RCW 9.94A.525(17), because Alvarez’s current

conviction was for a sex offense, any prior adult or juvenile sex convictions counted as

three points toward his offender score. Therefore, his offender score was correct.

       SAG Ground 12: CUMULATIVE ERROR

       Alvarez argues the aforementioned errors, cumulatively, deprived him of a fair

trial and warrant reversal. Under RAP 10.10, the court will only review issues raised in

an SAG that are not duplicative of the briefing. Alvarez’s counsel already raised

cumulative error in briefing. Because there are no errors with any of the additional issues

raised in Alvarez’s SAG, his argument fails.




                                            55
No. 35567-5-III
State v. Alvarez


       Affirmed, but remand to strike some community custody conditions and the

criminal filing fee.

       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.




                                          L,.,,_. .   '\..r, <.. l. -   \ ) 'vv-\-J   I (, • ~.
                                          Lawrence-Berrey, C.J.                   r




                                            56
                                      No. 35567-5-III

       SIDDOWAY, J. (concurring)-! part ways with the lead opinion on the harmless

error analysis. I believe that Officer Michael Nelson's testimony that Alvarez showed no

surprise upon being told of J.P. 's allegation would have been significant to jurors. And

the DNA 1 evidence was subject to credible challenge, given the concession of the State's

expert that she could not eliminate the possibility that what tested positive as saliva could

have been another bodily fluid, she could not say that it was from a male, she found both

female and male DNA, and that if not carefully handled and stored, evidence can easily

be contaminated with third party DNA. When asked during her testimony to remove the

underwear from its evidence bag to show the jury where she had taken a sample, she

explained that she would try not to speak over it "because I don't want to contaminate it

with my own saliva or any other DNA," and "people spit when they talk." 3 Report of

Proceedings at 522, 527. If it was error to admit Officer Nelson's testimony about

Alvarez's reaction, it was not harmless.

       As for Mari Murstig's testimony about the consistency of J.P.'s statements, I agree

that the error in admitting it was harmless-not because the DNA evidence could not

credibly be challenged, but because jurors were likely to rely on their own assessment of

the consistency of J.P.'s statements rather than on Ms. Murstig's assessment.




                                                  Z)dAtV%)~
                                              Siddoway, J.


       1
           Deoxyribonucleic acid.
                                       No. 35567-5-111

       FEARING J.   (concurring) - I concur in the court's affirmation of the conviction of

Jeremy Alvarez for one count of second degree rape of a child. I agree with all of the

lead opinion's rulings except the ruling that would hold harmless the introduction of

evidence of Jeremy Alvarez's expression when confronted by a law enforcement officer,

assuming the evidence to be inadmissible.

       Sound reason exists to apply the state and federal constitutions' privilege against

self-incrimination to an accused's silence in response to a law enforcement officer's

accusation of a crime before an arrest of the accused. An accused holds no obligation to

respond to questions asked by a law enforcement officer. The law enforcement officer

could delay an arrest in order to question the accused in order to employ for a conviction

any silence in face of an accusation. Allowing the introduction of evidence of such

silence conflicts with the principle that the State may not comment on the accused's

silence or failure to testify at trial. Griffin v. California, 380 U.S. 609, 610 n.2, 6~3, 85 S.

Ct. 1229, 14 L. Ed. 2d 106 (1965). Still, because of Washington Supreme Court and

United States Supreme Court precedent, a higher court would need to modify the law in
No. 35567-5-111
State v. Alvarez


order to apply the constitutional right against self-incrimination to prearrest silence.

Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013) (plurality

opinion); State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211 (1991); State v. Moore, 79

Wn.2d 51, 57,483 P.2d 630 (1971).

       The State sought to introduce evidence of Jeremy Alvarez's reaction, when faced

with an accusation, to show consciousness of guilt. Aside from the constitutional

question, I question the relevance of silence as tending to prove guilt and further question

the probative value of evidence of silence when compared to its prejudicial impact. This

questioning increases under circumstances when the State does not introduce evidence of

the accused's failure to verbally respond to an accusation, but introduces testimony of

facial expressions. One's facial expressions remain subject to subjective interpretations

of the viewer. No matter the response of an accused to an accusation, law enforcement

may interpret the response as evidence of guilt. If the accused, instead of remaining

silent or staring blankly, denies the accusation with a look of surprise, law enforcement

may interpret the response as protesting too much.

      In United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), the

nation's high Court held that ~n accused's silence during a police interrogation lacked a

significant probative value so that any questioning during trial in an attempt to impeach

                                              2
No. 35567-5-III
State v. Alvarez


his alibi carried with it an intolerably prejudicial impact. The Supreme Court thereby

affirmed the Court of Appeals' reversal of William Hale's conviction for robbery and

grant of a new trial.

       In United States v. Hale, the United States Supreme Court addressed the situation

of silence after an arrest and the delivery of Miranda warnings. Nevertheless, the

reasoning applies to employment of silence or facial expressions as evidence under other

circumstances. The Court observed that, in most circumstances, silence is so ambiguous

that it is of little probative force. A variety of reasons may influence the accused's

decision to remain mute. Under emotional and confusing circumstances, a suspect may

not hear or fully understand the question or may have felt no need to reply. The accused

may simply react with silence in response to the hostile and perhaps unfamiliar

atmosphere when confronted by an accusatory law enforcement officer. Moreover,

evidence of silence holds a significant potential for prejudice. The jury may assign much

more weight to the accused's previous silence than warranted. Permitting the defendant

to explain the reasons for his silence will unlikely overcome the strong negative inference

that the jury draws from the fact that the suspect remained silent when accused.

       During trial, Jeremy Alvarez sought exclusion of the law enforcement's testimony

to Alvarez's reaction following the accusation on relevance and undue prejudice grounds.

                                              3
No. 35567-5-III
State v. Alvarez


Nevertheless, Alvarez does not assign error on appeal to the introduction of evidence of

his facial expressions or silence on such grounds.

      I agree with my concurring sister that, if we held the silence or facial expressions

of Jeremy Alvarez to be inadmissible evidence, the testimony would not be harmless.




                                                 j;_
                                          Fearing, J . ~ '
                                                                .~




                                             4
