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     S COUNT.8TWI or WmiOTOM

    DATE MAY 1 6 2019                                                       Pe^Ju
                                                               Susan L. 6ar<s(>n
                                                             Supreme Court Clerk
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    IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,

                               Petitioner,           NO. 95905-6


                                                     EN BANC


LEONEL ROMERO-OCHOA,
                                                     Filed        MAY 1 6 2019
                               Respondent.



       STEPHENS, J.—A jury convicted Leonel Romero-Ochoa of burglary,

unlawful imprisonment, assault, and multiple counts ofrape, arising from an incident

in which he broke into a woman's home, beat her, and raped her twice. At trial,

Romero-Ochoa sought to admit evidence that the victim had applied for a U visa in

connection with these crimes. A U visa grants temporary legal resident status to a

person who is the victim of a qualifying crime and who helps law enforcement

investigate or prosecute that crime. The trial court excluded the U visa evidence.
State V. Romero-Ochoa (Leonel), 95905-6




      Romero-Ochoa appealed his convictions on the ground that exclusion of the

U visa evidence violated his state and federal constitutional rights to present a

defense and to confront witnesses. Wash. Const, art. I, § 22; U.S. Const, amend.

VI. Division Two of the Court of Appeals agreed. It reversed all but the unlawful

imprisonment conviction, holding the constitutional error was harmless beyond a

reasonable doubt as to that conviction but not as to the others, because "[ajlthough

the State's evidence against [Romero-]Ochoa was strong, its strength depended

entirely on the jury finding [the victim]'s testimony credible." State v. Romero-

Ochoa, No. 48454-4-II, slip op. at 1, 8, 15 (Wash. Ct. App. Dec. 28, 2017)

(unpublished), http://www.courts.wa.gov/opinions/pdfD2%2048454-4-II%20Un-

published%20Opinion.PDF.

      We granted the State's petition for review, which raised only the harmless

error issue. State v. Romero-Ochoa, 191 Wn.2d 1005(2018). On that issue, we now

reverse the Court ofAppeals and hold that any error in excluding the U visa evidence

was harmless as to all of Romero-Ochoa's convictions. We therefore reinstate the

convictions for rape, burglary, and assault and remand for the Court of Appeals to

consider the claim of sentencing error it did not reach before.^




      ^ See Romero-Ochoa, No. 48454-4-II, slip op. at 1-2.

                                          -2-
State V. Romero-Ochoa (Leonel), 95905-6




                                      FACTS


      The State charged Romero-Ochoa with burglary, kidnapping, and multiple

counts of rape, arising from an incident in which he climbed through the victim's

bedroom window and repeatedly beat and raped her.

      Before trial, the State moved to exclude any reference to the immigration

status ofthe victim, any witness, or the defendant. The defense sought to introduce

evidence that the victim had twice applied for a U visa, once relating to an assault

by her ex-husband and once relating to the events giving rise to this case. According

to defense counsel, the prior U visa application had not been approved. The second

application was on hold, pending certification from local law enforcement that the

victim "ha[d] been cooperative with authorities." 3 Verbatim Report ofProceedings

(VRP)(Oct. 14, 2015) at 94. According to the deputy prosecutor, this certification

could come either from her office or from the police, but her office maintained a

policy not to consider any application while a case was still pending. It was

undisputed that the victim sought this certification from the prosecutor's office. It

was also undisputed that the prosecutor told her the office would not consider the

merits of U visa certification while a criminal case was still pending, but that the

victim could resubmit her request when the case was closed.




                                          -3-
State V. Romero-Ochoa (Leonel), 95905-6




      The trial court initially excluded only evidence ofthe prior U visa application,

provided such evidence did not become necessary to impeach the victim regarding

when she became aware of the U visa program. It also permitted the defense, over

the State's objection, to question the potential jurors about their attitudes regarding

immigration.    The court specifically noted that it was allowing this line of

questioning because it was appropriate to explore potential jurors' attitudes about

race or national origin at a trial where a Latino defendant would be testifying in

Spanish using an interpreter.^ Several days later and after consulting additional

authority, the trial court excluded any evidence ofthe current U visa application. It

explained:

            I think once you start bringing in the issue ofimmigration status,
      it becomes a very slippery slope. And given the emotional reactions
      one way or another, which we saw during voir dire ....
            I just am concerned about the inflammatory effect ofthat kind of
      evidence, and I'm going to exclude any evidence of the U visa or
      anything else about immigration of either parties, any ofthe witnesses.
      And that's my ruling.

5 VRP (Oct. 19, 2015) at 28. Acknowledging the lack of Washington case law on

point and the existence of out-of-state authority contrary to its ruling, the court




      ^ At trial, Romero-Ochoa took the stand and testified in Spanish, using an
interpreter. There was also some testimony about the use of Spanish-speaking law
enforcement and medical personnel to interview the victim and other bilingual witnesses,
but no other witness testified using an interpreter.

                                          -4-
State V. Romero-Ochoa (Leonel), 95905-6




clarified that it was finding the U visa application relevant but that its "probative

value is overwhelmed by the prejudicial effect." Id. at 32.

      At trial, the State presented testimony from 19 different witnesses; Romero-

Ochoa was the only witness for the defense. The victim described the events at issue

as involving two separate acts of stranger rape in the context of a horrific home

invasion; in contrast, Romero-Ochoa described the events as consensual sex in the

context of a secret affair spanning years. The jury returned guilty verdicts on two

counts of first degree rape, two counts of second degree rape, one count of first

degree burglary, one count of unlawful imprisonment, and one count of second

degree assault. By special verdicts, the jury found that Romero-Ochoa committed

the burglary and assault with a sexual motivation; that he restrained the victim by

physical force, intimidation, or deception; and that he committed second degree

assault by strangulation.

      Romero-Ochoa appealed his conviction on the ground that, by excluding the

U visa evidence, the trial court violated his constitutional rights to confront adverse

witnesses and to present a defense. Division Two agreed that the trial court

committed constitutional error, and it reversed on every count except unlawful

imprisonment. Romero-Ochoa, No. 48454-4-II, slip op. at 1. As to that count, the

Court of Appeals found the trial court's error harmless. Id. The distinction it drew



                                          -5-
State V. Romero-Ochoa (Leonel), 95905-6




was based on the fact that a neighbor saw Romero-Ochoa grab the victim by the hair

and drag her back into her home, supporting the unlawful imprisonment conviction,

but no third party visually witnessed the burglary, assault, or rapes inside the

victim's home. Id. at 15-16. According to the Court of Appeals, this meant that

proof of the burglary, assault, and rapes turned entirely on the victim's credibility.

Id. The Court of Appeals reversed and remanded for a new trial on all but the

unlawful imprisonment charge. Id. at 16. As noted above, the court did not reach

Romero-Ochoa's claim of sentencing error. Id. at 16-17.

      The State filed a motion for reconsideration, which Division Two denied, and

then petitioned this court for review. The State did not challenge the Court of

Appeals' holding on the admissibility ofthe U visa evidence. Instead,it argued only

that this court should overturn the Court of Appeals' holding on harmless error

because it erroneously implied an eyewitness corroboration requirement in conflict

with well-settled precedent. We granted review.

                                     ANALYSIS


      Both the state and federal constitutions guarantee a criminal defendant the

right to present a defense and to confront adverse witnesses at trial, but violations of

those rights are subject to constitutional harmless error review. Delaware v. Van

Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); State v. Lui,


                                          -6-
State V. Romero-Ochoa (Leonel), 95905-6




179 Wn.2d 457,495,315 P.3d 493(2014); State v. Jones, 168 Wn.2d 713,724, 230

P.3d 576 (2010). An error is harmless and not grounds for reversal if the appellate

court is assured beyond a reasonable doubt that the jury would have reached the

same verdict without the error. Lui, 179 Wn.2d at 495; Jones, 168 Wn.2d at 724;

Van Arsdall, 475 U.S. at 684.

       In the context of an erroneous exclusion of impeachment evidence, "[t]he

correct inquiry is whether, assuming that the damaging potential of the cross-

examination were fully realized, [we can] nonetheless say that the error was

harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at 684. Consistent

with our overwhelming untainted evidence test, this inquiry requires us to find the

error harmless if, in light of the entire trial record, we are convinced that the jury

would have reached the same verdict absent the error.^ Relevant considerations

include the properly admitted direct and circumstantial evidence (i.e., the strength

of the State's case and the plausibility of the defense theory) and the overall




       ^ Compare State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985) ("The
'overwhelming untainted evidence' test allows the appellate court to avoid reversal on ...
technical. . . grounds while insuring that a conviction will be reversed where there is any
reasonable possibility that the use ofinadmissible evidence was necessary to reach a guilty
verdict."), -with Van Arsdall,475 U.S. at 681("we have repeatedly reaffirmed the principle
that an otherwise valid conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error was harmless beyond a
reasonable doubt").


                                           -7-
State V. Romero-Ochoa (Leonel), 95905-6




significance of the erroneously admitted or excluded evidence in this context (e.g.,

whether it was cumulative or corroborated, or consistent with the defense theory).

Van Arsdall, 475 U.S. at 684(where trial court erroneously excluded impeachment

evidence in violation of confrontation clause protections, factors relevant to the

harmless error analysis "include the importance of the witness' testimony in the

prosecution's case, whether the testimony was cumulative, the presence or absence

of evidence corroborating or contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution's case"); Lui, 179 Wn.2d at 496-97 (erroneous

admission of autopsy report harmless in light of properly admitted forensic, motive,

and other circumstantial evidence, and the fact that defendant's testimony was

contradicted by other witnesses and DNA (deoxyribonucleic acid) evidence); State

V. Hieb, 107 Wn.2d 97, 110-12, 727 P.2d 239 (1986) (erroneous admission of

hearsay harmless where "overwhelming circumstantial evidence" supported State's

theory and defendant's theory was incompatible with physical evidence); State v.

Guloy, 104 Wn.2d 412,426,705 P.2d 1182(1985)(erroneous admission of hearsay

harmless in light of "the overwhelming amount and credibility of the properly

admitted evidence").




                                          -8-
State V. Romero-Ochoa (Leonel), 95905-6




      Harmless error review requires close scrutiny of all the evidence. As detailed

below, 13 separate witnesses corroborated the victim's account of her attack. These

witnesses included neighbors who heard the attack and witnessed the victim trying

to escape, first responders who saw the victim run out of her house half naked and

crying, detectives and technicians who gathered crime scene and forensic evidence,

and medical personnel who treated the victim and documented her injuries and

physiological indicators of stress. The only witness for the defense was Romero-

Ochoa, who admitted to sexual intercourse with the victim but said it was

consensual,the result ofa chance encounter with a former secret lover. The victim's

sister took the stand to rebut numerous aspects of Romero-Ochoa's story.

      The victim testified at trial and gave the following account ofthe attack:

      By July 3, 2014, the victim and her daughter had lived in unit A at the San

Francisco Avenue trailer home park for three or four years. Before she and her

daughter went to sleep that night, the victim closed all the windows in their home,

including the window, which did not lock, in the room where she and her daughter

slept. The victim woke up at about 3 a.m. to find a strange man(whom she identified

at trial as Romero-Ochoa)standing over her bed; when she asked him who he was,

he said, "Just be quiet. Don't say anything." 6 VRP (Oct. 20, 2015) at 9. At that

point, the victim stood up and ran into her living room, where Romero-Ochoa


                                          -9-
State V. Romero-Ochoa (Leonel), 95905-6




grabbed her by the hair, pulled her over to the couch, and pressed his hands on her

mouth and neck so that she could barely speak. He climbed on top of her, started

taking off his pants, and took off her shorts and rmderwear. She told him to leave

her alone and he told her to be quiet. He kissed her neck and legs for about2 minutes,

telling her,'"I like you'" and '"I'm doing this to you because I like you,"' and then

raped her for about 20 minutes. Id. at 12. During the rape, the victim was crying

and screaming, and Romero-Ochoa repeatedly hit her in the face, covered her mouth,

and told her to be quiet.

      At some point while she was still being raped, the victim told herself to calm

down and think of an escape plan. Because Romero-Ochoa smelled strongly of

alcohol and appeared to her to be drunk, she thought she might be able to distract

him by offering him a beer. She asked him if he would like a beer, he said yes, and

she told him he could get it out ofthe refrigerator. He told her that she would get it

for him and then grabbed her by the hair and pulled her toward the refrigerator. After

the victim took a beer fi*om the refrigerator, Romero-Ochoa grabbed it with both

hands, and she was able to run out ofthe house,taking a small blanket with her. She

ran about 10 meters to the house across from hers and banged on the windows, but

nobody answered. Romero-Ochoa chased her, grabbed her by the hair, and hit her

twice in the face. Romero-Ochoa threw her on the ground and dragged her about


                                          -10-
State V. Romero-Ochoa (Leonel), 95905-6




2 meters back to her house. Back inside the house, Romero-Ochoa threw her back

on the sofa and raped her again for 20 to 25 minutes, covering her mouth. This time,

the victim was crying but not screaming or saying anything because she was scared

he would kill her. Romero-Ochoa stopped raping her when someone knocked on

the door. He began to get dressed, holding the victim by the hand "really, really

hard" until he needed to put on his shoes. Id. at 20. At that point she was able to

get away from him and she ran out the front door.

      Once outside, the victim ran to her neighbor, Elizabeth Guillen, who was

standing across from the victim's house, and told her that her daughter was still

inside. About 5 minutes later, after the police had arrested Romero-Ochoa and

Guillen had retrieved the victim's daughter from inside the house, officers

interviewed the victim and asked her if she knew her attacker. She told them she


did not know his name, but that when he threw her down on the couch and she got a

clear look at his face, she remembered that she had seen him before.

      The victim recalled that she had met Romero-Ochoa once before the attack,

at a birthday party that she and her former partner had thrown for their daughter in

November 2011. Romero-Ochoa and his brother had arrived, uninvited, and stayed

about 20 minutes. Romero-Ochoa had asked the victim what her name was and she


told him, but otherwise they did not interact. Since then she had occasionally seen


                                          -11-
State V. Romero-Ochoa (Leonel), 95905-6




him driving or at the store, but had never again spoken with him. She did not learn

his name until after he attacked her.


      About 10 minutes after she gave her statement to police, an ambulance arrived

and took the victim to the hospital. The doctors and nurses at the hospital examined

the victim at about noon that day, by which time her entire body hurt. Her lips and

mouth had scratches; her neck,hands, and legs were bruised and hurt; and her vagina

was burning. She could not stop crying.

      The following testimony from other witnesses corroborated the victim's

account:


      Officers Ryan Moody and Maxwell Criss ofthe Lakewood Police Department

were dispatched to a disturbance at a trailer home park on San Francisco Avenue at

about 4:30 a.m. on July 4,2014, where they eventually encountered Romero-Ochoa.

After talking with a reporting party and two other residents, the officers began

investigating residence A and found that one ofthe windows was open. The officers

could hear noises from inside but could not tell what they were; they knocked and

received no response. Finally, after talking again with a reporting party, the officers

were preparing to force entry when the fi"ont door suddenly "flew open" and a

woman with a "look of fi-antic fear" on her face ran out, her bottom half naked.

5 VRP (Oct. 19, 2015) at 58-59. Through the now-open door, the officers saw


                                          -12-
State V. Romero-Ochoa (Leonel), 95905-6




Romero-Ochoa standing inside the home,without any pants on,appearing shaky and

unsteady on his feet, with a "glazed-over look in his eyes." Id. at 59. The officers

arrested Romero-Ochoa and cleared the residence, finding no one else inside except

a small child sleeping in a bedroom. Afterward,they spoke briefly with the woman

who fled. She had red marks on her face and neck and was distraught and crying.

She told Officer Criss that she awoke to Romero-Ochoa standing over the bed where

she was sleeping with her daughter,that she yelled at him to get out, and that he then

grabbed her by the hair and forced her into the living room where he slapped her

face, choked her, and raped her. The victim told Officer Criss that the defendant

covered her mouth while he was raping her so she could not scream. She also said

that she had seen her attacker around the trailer park but did not know his name.

      Detective Darin Sale ofthe Lakewood Police Department testified that on the

morning of July 4, 2014, police collected pink shorts, undergarments, and an

unopened beer bottle from the victim's living room, and a sock and a man's

undergarment from her front porch.

      Guillen (the neighbor) woke up at 3 or 4 a.m. that morning to what sounded

like a fight coming from a neighbor's home. She heard two periods of screaming,

about 5 or 10 minutes apart, which lasted only a couple of seconds each. She

characterized the screams as "[k]ind of like a cry for help, or 'don't.'" Id. at 101.


                                          -13-
State V. Romero-Ochoa (Leonel), 95905-6




After hearing the second scream, Guillen looked out her window and saw a

"shadow" running up the stairs of the park manager's office. Id. at 102. She heard

the shadowy figure yell for help in both English and Spanish, and then Guillen called

911. Guillen went outside where she saw more neighbors, told them that the

screaming was coming fi-om the victim's house, and also heard thumping and the

sound of what appeared to be furniture being moved. Guillen was still standing

outside when the victim ran out ofher house with only a shirt or tank top on, yelling

that her daughter was inside. Guillen grabbed the victim and hugged her for about

5 minutes. The victim was shaking and crying and yelling repeatedly,'"He came in

through my window. He raped me.'" Id. at 105. When Romero-Ochoa came out

ofthe victim's home shortly after that, he was calling to the victim in Spanish,saying

something like,"my love, why are you doing this?" Id. at 105. He looked to Guillen

like he was intoxicated or on drugs.

      On the night of the 911 call, Guillen's husband, Rafael Guillen-Gonzalez,

looked out his living room window and saw Romero-Ochoa pulling the victim by

her hair with both hands and dragging her into her home. The victim was wearing

only a tank top and was screaming and crying out for help. The lower half of her

body was on the ground as Romero-Ochoa dragged her 15 feet across gravel, telling




                                          -14-
State V. Romero-Ochoa (Leonel), 95905-6




her to be quiet. Guillen-Gonzalez told his wife to call the police and she did; the

police arrived about 10 minutes later.

      Abel Garcia,the manager at the trailer park where the victim lived, called 911

at about 4:30 a.m. on July 4, 2014, after he heard someone "asking for help and ...

kind of like screaming." 6 VRP (Oct. 20, 2015) at 98. He thought this person's

mouth was being intermittently covered so they could not cry out. Right before he

called 911, Garcia looked out his window and saw somebody on a neighbor's porch;

he could not see who it was, but he told the dispatcher it sounded like '"a girl in

trouble.'" Id. at 100. After he called 911, Garcia went outside and encountered

another neighbor, and the two ofthem went to look for the source ofthe screaming.

They determined the screaming, which sounded breathless, was coming from the

victim's unit; they could also hear a male voice coming from that unit. Police

officers arrived, spoke with two other neighbors (Guillen and Guillen-Gonzalez),

and then approached the house; shortly thereafter, the victim ran out,"embarrassed

because she was out of clothes." Id. at 104.


      Officer Michelle Hector testified that she interviewed the victim at the


hospital on the morning of July 4,2014. Officer Hector recalled that the victim was

crying, had red marks all over her face, and repeatedly stated that no one had come

to help her. The victim recounted the attack for Officer Hector, telling her the same


                                          -15-
State V. Romero-Ochoa (Leonel), 95905-6




details she had given to police. Later that afternoon, Officer Hector photographed

the victim's injuries, including scratches on the victim's face and neck, red marks

on her neck, and red marks and bruising on one or both of her legs.

      Dr. Jaime Delcampo was the emergency physician on duty when the victim

was admitted to the hospital. He examined the victim that morning and noted that

she was crying and extremely anxious, with a very elevated heart rate and bruising

on the right side of her face, mostly along her jaw. He reexamined the victim

regularly throughout his shift, which ended at 2 or 3 p.m., and observed that her

bruising became worse as the day progressed, especially on her neck. Because

visible bruising from strangulation is relatively rare. Dr. Delcampo was concerned

about vascular and arterial injuries and ordered a CT (computed tomography) scan.

He also noted that the victim had bruising on her left inner thigh and shin, had

swelling in her left wrist, was complaining of pain in her neck, and had an elevated

white blood cell count, which Dr. Delcampo attributed to a stress reaction. Dr.

Delcampo tried to find a sexual assault nurse examiner (SANE) to do a genital

examination and evidence collection, but none was available, so he performed that

examination himself, assisted by a resident who spoke Spanish and a member ofthe

hospital's nursing staff. Dr. Delcampo observed bleeding in the victim's vagina but

no lacerations or bruising. The victim reported pain when he examined her vagina


                                          -16-
State V. Romero-Ochoa (Leonel), 95905-6




and uterus. Dr. Delcampo testified that it was common for victims ofsexual assault

to report pain but uncommon for them to have any vaginal lacerations or bruising.

      A forensic scientist from the Tacoma crime laboratory testified that DNA

swabs from Romero-Ochoa's penis matched a DNA reference sample provided by

the victim.


      Mandy Graham, the ER (emergency room) nurse who participated in the

victim's SANE exam, did a head to toe examination ofthe victim and noted bruising

behind her left ear; multiple scratches to her face and neck; blue bruises on her upper

left arm, right hand, and lower leg; a six-inch bruise on her left inner thigh; and

scratches on her knees and knuckles. Graham was present with the victim for several

hours throughout her shift and recalled that the victim remained very upset and

tearful the whole day.

      Finally, Sarah Hanley, the triage nurse on duty when the victim arrived at the

ER on July 4, 2014, described her as "disheveled and ... somewhat frantic[,] . . .

tearful and anxious" and speaking so rapidly that Hanley could not make notes of

what she was saying. 8 VRP (Oct. 22, 2015) at 26. Hanley did a preliminary

assessment and noted red marks on the victim's neck. Hanley recognized the marks

as the kind that would later develop into bruises. The victim told Hanley,'"He

choked me.'" Id. at 28.




                                          -17-
State V. Romero-Ochoa (Leonel), 95905-6




      To undermine the State's case,Romero-Ochoa elicited the following on cross-

examination:


      The apartment manager, Garcia, acknowledged telling police that night that

he had seen a male attempting to leave the victim's house through a window right

before the officers arrived.


      Officer Moody acknowledged that the young child at the victim's home was

asleep when the officers found her and that he did not hear any loud noises between

arriving on the scene and seeing the front door open.

      Officer Hector acknowledged that she did not see any fingerprints or hand

imprints on the victim's neck but also explained that such markings were rare in her

experience with choking victims.       She also acknowledged that she did not

photograph the lower back part of the victim's body and did not recall the victim

reporting any injuries to this area, even though the victim reported being dragged,

unclothed, across the ground.

      Dr. Delcampo acknowledged that the lack of visible injury to a patient's

genitals could be consistent with either a sexual assault or consensual sex, but he

also clarified that in his experience the majority of patients who underwent a SANE

exam did not have visible injuries to their genitals or the surrounding area. He also

acknowledged that the CT scan did not reveal any traumatic injuries to the victim's


                                          -18-
State V. Romero-Ochoa (Leonel), 95905-6


                                                 ■ y


neck but explained that neck pain can also be caused by minor soft tissue injuries,

which do not register on a CT scan.

      Romero-Ochoa was the only witness for the defense. He offered the following

account:


      Romero-Ochoa testified he first met the victim in 2008 and 2009, when he

and his brother, Pascual, renovated a restaurant/butcher shop called El Compadre,

which was managed by the victim's brother Leonel. The victim occasionally came

to El Compadre to pick up meat for a restaurant called El Sabroso, which was

managed by her other brother, Gil. In addition, both Romero-Ochoa and his former

wife were socially connected with the victim's family: Romero-Ochoa was close

friends with Leonel and well acquainted with Gil and had done remodeling work for

both of the victim's sisters, Deici and Maria; Romero-Ochoa's former wife had

sometimes cared for both Deici's and the victim's children, watching the victim's

daughter once or twice a month.

      Romero-Ochoa said that he and the victim began a secret sexual relationship

in 2010, meeting at least twice a month at a hotel around 9, 10, or 11 p.m. Their

affair ended in 2013 after she began to confide in him too much about the problems




                                          -19-
State V. Romero-Ochoa (Leonel), 95905-6




she was having in her marriage"^ and his wife began to suspect something was going

on.^

       On July 3, 2014, Romero-Ochoa was living in Kent but went to visit Pascual

at his home at the San Francisco Avenue trailer park. He left Pascual's house at

around 2 a.m. on July 4 and began walking to a nearby gas station, where a friend

was going to pick him up, when he noticed that the victim was standing at a window

of her home. At this point, it had been about a year and a half since the two ofthem

had ended their relationship and ceased all sexual intimacy, and it was random

chance that the victim happened to be standing at her window as Romero-Ochoa

walked by that early morning.

       According to Romero-Ochoa, she called him over and directed him to come

through her window because she did not want to open the front door. Romero-Ochoa

did as she asked, although he was concerned about waking her daughter. The two

then went into the living room where they started to discuss their past relationship

and the toll it had taken on their families. They decided to have sex, but Romero-



         According to her sister Deici,the victim was never married to her daughter's father
but did refer to him as her "husband" when they were together. 9 VRP (Oct. 26, 2015) at
80.
       ^ Later, on cross-examination, Romero-Ochoa testified that the affair ended in 2012.
Romero-Ochoa struggled with dates at several points; for example, immediately after
testifying that he had been divorced from his wife for three years in July 2014, he told the
prosecutor that he was divorced in 2013.


                                           -20-
State V. Romero-Ochoa (Leonel), 95905-6




Ochoa wanted to take a bath first because he was sweaty. The victim would not let

him. She started taking her clothes off, and then the two ofthem began having sex

on the living room couch at around 2:45 or 3 a.m. At some point, they fell off the

couch. Romero-Ochoa did not know whether the victim hurt herself when they fell,

but she "hit herself on the carpeting." 9 VRP (Oct. 26, 2015) at 20. At that point,

Romero-Ochoa no longer wanted to have sex because he was still dirty, and the

victim became angry, accusing him of indifference toward her. He tried to explain

to her that not ever5dhing is about sex and that relationships have to be done right,

but she would not calm down. She responded by getting "hysterical," mussing up

her hair, and grabbing at her own face. Id. at 21.

      Upset by this, Romero-Ochoa asked the victim to get him a beer to help him

calm down. She complied,"[a]nd she gave it to me. And I asked her did she have

something with which to open it, and she said no. She just threw it at me. And she

was very angry, and at that point she runs out... the door." Id. at 21. Romero-

Ochoa thought she just needed some air, but when he followed her outside she was

screaming that he did not love her anymore. In response, he grabbed her and took

her back inside. He estimated that they were outside for about 2 or 3 minutes. Once

back inside, he asked her whether she was concerned that the neighbors had heard

her screaming and she said she was not. As he started taking his pants off, the police


                                          -21-
State V. Romero-Ochoa (Leonel), 95905-6




knocked on the door. The victim then "started again acting up" and ran out of the

house a second time. Id. at 23.


      On cross-examination, Romero-Ochoa could not remember the name of the

victim's daughter or any hotel the two had ever patronized. Before court broke for

lunch, Romero-Ochoa testified that during their affair he and the victim went to

dances but did not go out visiting very much because the victim did not have time.

After lunch, he testified that they never went out together, that they went dancing at

a music venue in the area called El Cafe, and that he never went to her house. At

first he testified that he never went to her house in 2013 because her husband was


there, but after he was reminded that the victim was already separated from her

daughter's father in 2013, he testified that he never went to her house because

everyone in the area knew him and he might have been seen. Romero-Ochoa

testified that he had not spoken to his brother, Pascual, about the case(and so would

not call him as a corroborating witness) because Pascual believed that a person

should clean up his own messes.

      When asked if there was anything on the window when the victim called to

him through it, Romero-Ochoa at first said no; when pressed to recall whether there

was a blanket on the window, Romero-Ochoa said yes, there was, but both the




                                          -22-
State V. Romero-Ochoa (Leonel), 95905-6




blanket and the blinds were behind the victim, who was leaning her upper body out

ofthe window.


      When asked about the injuries the victim presented with at the ER that

morning, Romero-Ochoa speculated that she might have sustained the bruising to

her knee, which he had seen in a photo, when they fell off the couch during sex.

When asked whether the fall onto her carpeted floor also caused the injuries to the

victim's neck and inner thigh, Romero-Ochoa said he did not know and could not

remember because it was a little dark. Romero-Ochoa clarified for the prosecutor

that the victim was laughing when the two of them fell onto the carpet during sex,

then immediately got dressed when they got up, and then, immediately after getting

dressed, became angry and began clawing at her own face because Romero-Ochoa

did not want to engage in sex again. Contrary to the testimony of all three neighbors,

Romero-Ochoa denied that the victim yelled for help the first time she ran out ofher

house; he admitted that she had banged on a neighbor's trailer but said that she did

this only because she was angry and not because she actually wanted someone to

come out. Contrary to the testimony of Guillen-Gonzalez, Romero-Ochoa said he

did not grab the victim by the hair or force her back inside her house but that he only

persuaded her, with words and a hug, to go back inside.




                                          -23-
State V. Romero-Ochoa (Leonel), 95905-6




      Finally, the victim's sister Deici took the stand to rebut several aspects of

Romero-Ochoa's testimony. She offered the following:

      She had lived at the San Francisco Avenue trailer park since 2007 and

recognized Romero-Ochoa as someone who used to live there, although she did not

know him personally. She worked at Taqueria El Sabroso, a business owned and

operated by her family members. Romero-Ochoa's brother, Pascual, had once

worked on her trailer, but Romero-Ochoa never worked there with him. Deici's

brother Leonel did now live in Mexico, but her other brother, Gil, had lived in

Montana, not Okanagan, for at least 16 years.

      Deici saw the victim every day; the two regularly spent the hours between 10

a.m. and 4 p.m. together, and Deici watched the victim's daughter every day from 4

p.m. to 10:30 p.m. while the victim was at work. The two sisters did everything

together and were very close. They talked about relationships all the time. The

victim did not have a boyfriend because she spent most ofher time with her daughter.

Deici had never seen Romero-Ochoa with the victim and had never watched the


victim's daughter after 10 p.m.

      On cross-examination, defense counsel pressed Deici to say that her brother

Gil had once lived in Okanagan;that her brother Leonel had owned a restaurant/shop

called El Compadre; and that she had sometimes left her child in the care ofRomero-


                                          -24-
State V. Romero-Ochoa (Leonel), 95905-6




Ochoa's wife. She denied all of these things, adding that she had never heard of a

restaurant called El Compadre. Deici said that she had never seen any members of

her family with Romero-Ochoa.

      In light of the entire trial record, we conclude that any error in excluding the

U visa evidence was harmless beyond a reasonable doubt as to all of Romero-

Ochoa's convictions. The Court of Appeals' distinction between the unlawful

imprisonment conviction and the remaining convictions is unsustainable.

      As the prosecutor pointed out in closing, the victim's account was

corroborated by three neighbors' testimony about what they saw and heard while

Romero-Ochoa was at her house; by the testimony ofthe police officers who arrived

on the scene; and by the testimony of several medical professionals who observed

the victim immediately after she arrived at the ER and then throughout the following

day as she cried, gave repeated and consistent accounts of her attack, and developed

bruises on her neck and legs. By contrast, Romero-Ochoa provided no evidence

corroborating his story of a three-year affair with the victim. No witness ever saw

them together, and Romero-Ochoa was unable to recount even basic facts about the

victim or their ostensible affair, such as her daughter's name or any hotel they ever

stayed at. He testified inconsistently that the two went dancing together in public

but also that they never went anywhere together for fear of being discovered. No


                                          -25-
State V. Romero-Ochoa (Leonel), 95905-6




witness corroborated Romero-Ochoa's account of a close, long-standing friendship

with the victim's brother Leonel or an arrangement whereby Romero-Ochoa's ex-

wife regularly babysat for the victim's and her sister's children. Those claims, plus

others implying knowledge of the family and its restaurant business, were directly

refuted by Deici.

      Romero-Ochoa's account of July 4, 2014, was also highly implausible. He

claimed that his sexual encounter with the victim that morning began when, by

random chance, he was passing by her house just as she was leaning out a window

that was covered by blinds and a blanket. On a sudden impulse, and although her

daughter was sleeping near that window,the victim called out to Romero-Ochoa that

he should climb through it. According to Romero-Ochoa, she wanted him to come

through the window so she would not have to open the front door, presumably

because their affair was a secret and she feared observation by the neighbors. But

he also testified that she expressed no concern about the neighbors hearing her when,

less than an hour later, she ran screaming from her front door and banged on a

neighbor's trailer. To explain the victim's sudden change in behavior, Romero-

Ochoa claimed she was a "hysterical" rejected lover. But his U visa conspiracy

theory implies that, at some point after their initial chance encounter at the window,

the victim hatched a plot to frame him.


                                          -26-
State V. Romew-Ochoa (Leonel), 95905-6




        Standing on its own,that story would be very difficult for any jury to credit.

But here it was also contradicted or undermined by an overwhelming amount of

evidence supporting the victim's account. First, there was the physical evidence of

the victim's injuries, including a large bruise on her inner thigh,swelling in her wrist,

red marks and bruising consistent with strangulation, and an elevated white blood

cell count indicative of a stress reaction. Romero-Ochoa's testimony could not

explain any ofthis evidence. There was also testimony by two neighbors who heard

muffled screams and cries for help coming from the victim's home, and by one

neighbor who saw and heard the victim crying for help as she was dragged into her

home by her hair. This conflicts with Romero-Ochoa's testimony that the victim

never called for help and that he did not drag her back into the house.^ Finally, there

was the collective testimony of numerous first responders and medical personnel

that the victim fled her house, naked from the waist down and visibly panicked, and

then remained tearful and anxious for at least 12 hours afterward. For the U visa




       ^ We also note that Romero-Ochoa's testimony on this issue conflicts with his
briefing in this court. In briefing, he argues that the visible injuries to the victim's face and
body could all have occurred outside her home,in the course ofthe unlawful imprisonment
(a conviction he does not challenge). He reasons that, by the victim's own account, she
and Romero-Ochoa "struggled outside ... where [Romero-jOchoa grabbed her hair, threw
her to the ground, hit her twice in the face and dragged her along the ground to the door
while her bottom half was unclothed." Suppl. Br. of Resp't at 16 (citing 6 VRP (Oct. 20,
2014) at 16-18, 55).


                                              -27-
State V. Romero-Ochoa (Leonel), 95905-6




impeachment theory to have undermined any of this testimony, the jurors would

have to have believed that the victim hatched an elaborate immigration fraud scheme

during the hour or so that Romero-Ochoa was in her home—after she fortuitously

spotted him from her window but before the police arrived.

      We recognize that a prosecution witness's U visa application could, given the

right set of facts, support a defense theory milder than outright fraud. As the Court

of Appeals noted in this case, the U visa incentive structure could lead a witness

merely to "embellish" allegations rather than fabricate them out ofthin air. Romero-

Ochoa, No. 48454-4-II, slip op. at 12; see also Romero-Perez v. Commonwealth,

492 S.W.Sd 902, 906-07(Ky. Ct. App. 2016)("Even if the victim did not outright

fabricate the allegations against the defendant,the structure ofthe [U visa] program

could cause a victim to embellish her testimony in the hopes of being as 'helpful' as

possible to the prosecution."). But in this case, the difference between the State's

and the defendant's theories was not plausibly a matter of embellishment. Either

Romero-Ochoa committed first degree rape predicated on burglary or he was invited

into the victim's home and committed at most second degree rape. The jury found

he committed burglary and first degree rape. In light ofthe overwhelming evidence

supporting that conclusion, we can say beyond a reasonable doubt that




                                          -28-
State V. Romero-Ochoa (Leonel), 95905-6




cross-examination on the victim's U visa application would not have resulted in a

different verdict.


      The Court of Appeals reversed Romero-Ochoa's rape and assault convictions

based on the conclusion that "[the victim]'s testimony with regard to [Romero-

]Ochoa's conduct inside her [house] was not cumulative to any other witness

testimony and was not corroborated by any other witness" and because "[a]lthough

the State's evidence against [Romero-]Ochoa was strong, its strength depended

entirely on the jury finding [the victim]'s testimony credible." Romero-Ochoa, No.

48454-4-11, slip op. at 15. This is incorrect. The victim's account of the events

inside her house was corroborated by every witness who testified that they heard her

screams or documented or treated her injuries, and by her sister, who rebutted

Romero-Ochoa's uncorroborated account of a secret three-year affair. The strength

of the State's evidence did not "depend[] entirely" on the victim's credibility. Id.

Instead, the State's theory and the victim's credibility were both bolstered by an

overwhelming amount and variety of evidence.

      The Court of Appeals also erred by distinguishing between the unlawful

imprisonment conviction,corroborated by one neighbor's eyewitness testimony, and

the other convictions, corroborated by numerous other forms of evidence. For

example,just as a neighbor saw Romero-Ochoa pull the victim back inside her house


                                          -29-
State V. Romero-Ochoa (Leonel), 95905-6




by her hair, others also heard loud thumping noises coming from inside and later

saw the victim running out, half naked and visibly frightened. As the State points

out,such'"overwhelming circumstantial evidence'" can render a constitutional error

harmless beyond a reasonable doubt. Suppl. Br. of Pet'r at 5 (emphasis omitted)

(quoting Hieb, 107 Wn.2d at 111-12). There is no eyewitness evidence prerequisite

to a finding of harmless error. Instead, an appellate court makes the harmless error

determination on the basis of the entire record. Hieb, 107 Wn.2d at 110 (quoting

Guloy, 104 Wn.2d at 426). Here,that record compels a finding of harmless error as

to all of Romero-Ochoa's convictions.


                                   CONCLUSION


         We reverse the Court of Appeals' harmless error holding with respect to the

convictions for rape, burglary, and assault.           Any error in prohibiting

cross-examination on the U visa application was harmless as to all of Romero-

Ochoa's convictions. We thus reinstate the rape, burglary, and assault convictions

and remand to the Court ofAppeals to address Romero-Ochoa's claim ofsentencing

error.




                                          -30-
State V. Romero-Ochoa (Leonel), 95905-6




WE CONCUR:




        kMMi. OQ




~~yPLa-cyieM.,




                                          31
