       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )
                                           ) No. 77518-9-1
                      Respondent,          )
                                           ) DIVISION ONE
          v.                               )
                                           )
JOSE ARCIDES FLORES-GOMEZ,                 ) UNPUBLISHED OPINION
                                           )
                     Appellant.            ) FILED: April 22, 2019
                                           )

       SMITH, J. — Jose Arcides Flores-Gomez appeals his conviction for first

degree rape of a child based on sexual contact with his daughter, J.F.L., when

she was 11 years old. The trial court did not abuse its discretion by denying

Flores-Gomez's motion for a mistrial, admitting evidence about the

circumstances under which J.F.L. reported the rape to her mother, Elba

Hernandez, or admitting testimony about that report from J.F.L., Hernandez, and

the responding police officer. Furthermore, Flores-Gomez's defense counsel

was not ineffective for failing to move for a mistrial or object to J.F.L.'s testimony

implying that Flores-Gomez committed a subsequent act of sexual misconduct.

Finally, cumulative error does not warrant reversal. Therefore, we affirm.

                                       FACTS

       In 2016, the State charged Flores-Gomez with first degree rape of a child.

The State alleged that sometime between February 2006 and February 2007, he

had sexual intercourse with J.F.L.
No. 77518-9-1/2

       During the jury trial, J.F.L. testified that when she was 11 years old, she

was lying on a mattress in her younger sister's bedroom when Flores-Gomez

came in to say goodnight. He laid down with J.F.L.'s sister until she fell asleep

and then laid down with J.F.L. Flores-Gomez then put his hand in J.F.L.'s pants

and underwear and "put his fingers inside" her.

       Although J.F.L. did not report the rape to anyone when it happened,

Hernandez and J.F.L.'s sister and brother testified that around the time of the

rape, J.F.L.'s relationship with Flores-Gomez changed and she became more

distant and rebellious toward him. J.F.L. testified that she confronted Flores-

Gomez about the rape when she was 18 years old and told him that she would

forgive him, but that she had "better never hear that[he did] this to anyone ever

again." After that, J.F.L. received a call from Hernandez in which Hernandez

stated someone had accused Flores Gomez of sexual misconduct. Although

J.F.L. did not disclose the content of the call with Hernandez, at trial J.F.L.

testified that the call upset her and made her decide to confront her father again.

J.F.L. then disclosed the rape to Hernandez, who contacted the police.

Hernandez testified that Flores-Gomez admitted to her that he raped J.F.L.

       The jury found Flores-Gomez guilty as charged. Flores-Gomez appeals.

                     DENIAL OF MOTION FOR A MISTRIAL

       Flores-Gomez argues that the trial court erred by denying his motion for a

mistrial after Hernandez violated a ruling in limine by referring to a recording of

Flores-Gomez. We disagree.




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No. 77518-9-1/3

       We review a trial court's denial of a mistrial for abuse of discretion. State

v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653(2012). "There is an abuse of

discretion when the trial court's decision is manifestly unreasonable or based

upon untenable grounds or reasons." State v. Brown, 132 Wn.2d 529, 572, 940

P.2d 546 (1997). A mistrial is required when a defendant has been so prejudiced

by a trial irregularity that only a new trial can ensure that the defendant will be

tried fairly. State V. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). On

appeal, we determine whether a mistrial should have been granted by

considering (1) the seriousness of the trial irregularity,(2) whether the trial

irregularity involved cumulative evidence, and (3) whether a proper instruction to

disregard the irregularities cured the prejudice against the defendant. Johnson,

124 Wn.2d at 76.

       Here, Flores-Gomez successfully moved in limine to exclude a recording

made by J.F.L. without Flores-Gomez's permission. In that recording, Flores-

Gomez stated, "I know what I did and I know I'm going to pay for it somehow."

Hernandez improperly referred to this recording during her testimony when asked

what Flores-Gomez said to her when she confronted him about J.F.L.'s

allegations:

       At the beginning, he refused to admit it, but I told him that it was
       better for him to tell me the truth, because I was going to be calling
       the police. Then he said,"Okay, I'm going to let you know, but I
       don't want you to call the police." And that's when he told me, but
       he didn't tell me everything that he did to my daughter until I heard
       the recording that —

Defense counsel immediately objected, and the trial court sustained the

objection. The prosecutor asked two additional questions, neither of which

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No. 77518-9-1/4

referenced the recording. During a break outside the presence of the jury,

defense counsel moved for a mistrial, arguing that the disclosure was prejudicial

to Flores-Gomez. The trial court agreed that Hernandez's reference to the

recording violated the ruling in limine. But it denied the motion for a mistrial

because Hernandez's testimony did not inform the jury about the content of the

recording and the trial was not so tainted that Flores-Gomez could not receive a

fair trial.

         The trial court did not abuse its discretion in denying the motion for a

mistrial. While Hernandez's violation of the ruling in limine was a trial irregularity,

it was not a serious irregularity because she did not provide any details as to

what was in the recording. No one testified that a recording was made of Flores-

Gomez. The only recording that jurors knew about was a defense interview of

J.F.L., which the jury could have assumed was the recording Hernandez

referenced. Because there was no other evidence of the recording presented,

the limited reference to the recording did not prejudice Flores-Gomez.

         Flores-Gomez argues that the violation of the ruling in limine was a

serious trial irregularity because "the introduction of the existence of a recording

that corroborate[d] J.F.L.'s allegations was extremely serious." But Hernandez

did not describe the content of the recording, so the jury was not aware that it

was a recording that corroborated J.F.L.'s allegations. Without this crucial piece

of information, there was no prejudice to Flores-Gomez by the mere mention of a

recording.




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No. 77518-9-1/5

             ADMISSION OF EVIDENCE ON TIMING OF REPORT

       Flores-Gomez argues that the trial court erred by admitting evidence

explaining why J.F.L. confronted Flores-Gomez and disclosed the rape to

Hernandez many years after it occurred. We disagree.

      "We review a trial court's decisions as to the admissibility of evidence

under an abuse of discretion standard." State v. Pirtle, 127 Wn.2d 628, 648, 904

P.2d 245 (1995). "There is an abuse of discretion when the trial court's decision

is manifestly unreasonable or based upon untenable grounds or reasons."

Brown, 132 Wn.2d at 572.

       Although "[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity therewith," it

may be admissible for some other proper purpose. ER 404(b). For evidence of

other bad acts to be admissible, the trial court must find by a preponderance of

the evidence that the misconduct occurred, identify the purpose for which the

evidence is to be introduced, determine whether the evidence is relevant to an

element of the crime charged, and weigh the probative value against the

prejudicial effect. State v. Gunderson, 181 Wn.2d 916, 923, 337 P.3d 1090

(2014). Where ER 404(b) evidence is admitted against a defendant for a limited

purpose, the trial court is not required to issue a limiting instruction, unless such

instruction is requested by the defendant. State v. Russell, 171 Wn.2d 118, 122-

23, 249 P.3d 604 (2011).

       Here, Flores-Gomez moved in limine to exclude evidence of his alleged

improper conduct against his daughter-in-law, which was communicated to J.F.L.


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No. 77518-9-1/6

by Hernandez. The State opposed the motion, arguing that Flores-Gomez's

misconduct against his daughter-in-law should be admitted to explain why J.F.L.

disclosed her own rape to her mother years after it occurred. The trial court

granted the motion in part, explaining that while the underlying facts of the

allegation were irrelevant, highly prejudicial, and inadmissible, evidence that

J.F.L. was told something by Hernandez could be offered for the limited purpose

of explaining what led to J.F.L.'s disclosure of the rape.

       At trial, J.F.L. testified that when she was 18, she confronted Flores-

Gomez about the rape and told him that she remembered what he did to her

when she was 11. She later told him, "'I will forgive you, but I better never hear

that you do this to anyone ever again." The State then asked:

       Q    Okay. Do you remember getting a call from your mother?
       A    Yes.
       Q    And did that call make you angry?
       A    Yes. It made me angry and sad.
       Q    Okay.
       A    And it, it just made, like, yeah, it just made me really angry and
            sad and it made me feel really bad.
       Q    Okay. And did you decide that you needed to confront your
            dad again?
      A     Yes.
      ...
      Q Okay. And when you confronted him, did you discuss what he
          had done to you when you were 11?
      A When 1 confronted him again?
      Q Um-hmm.
      A Sort of, not the same way that I did the first time. I didn't ask
          him, oh, why did you do those things to me? The only reason
          it was brought back up was because the phone call had to do
          with —
      Q Well, hold on.
      A — something, yeah.
      Q So the phone call kind of triggers your —
      A Yeah.
      Q — wanting to confront him again?

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No. 77518-9-1/7

       A    Yeah.
       Q    Okay. And when you're confronting him again —
       A    Um-hmm.
       Q    — what's his response as far as all that?
       A    Well, when I confronted him again, I just asked him,"Do you
            remember what we talked about?" And he said yes. And I
            was like, "What did I say? What did we talk about?"

At that point, defense counsel asked to make a motion outside of the presence of

the jury. Once the jury was excused, defense counsel argued that although the

line of questioning did not expressly violate the court's ruling in limine because it

did not elicit the details of J.F.L.'s conversation with Hernandez, it did violate the

spirit of the order. The trial court confirmed with the prosecutor that there would

be no further questions about J.F.L.'s confrontation with Flores-Gomez and

agreed with defense counsel that the ruling in limine was not explicitly violated.

Defense counsel did not request an instruction clarifying that J.F.L.'s testimony

about her conversation with Hernandez could only be considered for the limited

purpose of explaining the reason for her disclosure of the rape.

       J.F.L.'s testimony did not violate the ruling in limine because she did not

disclose the underlying facts of the daughter-in-law's allegations. But her

testimony did raise a reasonable inference that Flores-Gomez committed sexual

misconduct against some other person because it strongly implies that she

believed Flores-Gomez broke his promise not to do "this" to anyone else again.

But even assuming that the testimony was improper evidence of Flores-Gomez's

propensity to commit sexual misconduct, he waived any alleged error by failing to

ask for an instruction limiting the purpose of this evidence. "A party's failure to

request a limiting instruction constitutes a waiver of that party's right to such an


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No. 77518-9-1/8

instruction and fails to preserve the claimed error for appeal." State v. Wilcoxon,

185 Wn. App. 534, 542, 341 P.3d 1019(2015)(quoting State v. Newbern, 95

Wn. App, 277, 295-96, 975 P.2d 1041 (1999)), aff'd, 185 Wn.2d 324, 373 P.3d

224 (2016). Therefore, reversal is not warranted.

                  INEFFECTIVE ASSISTANCE OF COUNSEL

       Flores-Gomez argues that defense counsel was ineffective for failing to

object to or request a mistrial after J.F.L.'s testimony that implied Flores-Gomez

committed sexual misconduct against another individual. Because the testimony

was admitted for a proper purpose and it is unlikely the court would have granted

an objection or request for a mistrial, we disagree.

       To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel's performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced him. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State

v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). To establish

prejudice, a defendant must show that there is a reasonable probability that the

result of the trial would have been different absent the challenged conduct.

Strickland, 466 U.S. at 694. "[There is no ineffectiveness if a challenge to

admissibility of evidence would have failed." State v. Nichols, 161 Wn.2d 1, 14-

15, 162 P.3d 1122(2007).

       State v. Wilson, 60 Wn. App. 887, 808 P.2d 754 (1991), is instructive here.

In that case, the defendant appealed his convictions for statutory rape and

indecent liberties against a 13-year-old victim. Division Hof this court held that



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No. 77518-9-1/9

the trial court did not abuse its discretion in admitting evidence of the defendant's

physical assaults against the victim. Wilson, 60 Wn. App. at 891. The court

explained that evidence of the assaults was not offered to show that the

defendant "had a violent character or to show that he acted in conformity with

that character" but instead to "explain the delay in reporting the sexual abuse and

to rebut the implication that the molestation did not occur." Wilson, 60 Wn. App.

at 891.

       Here, as in Wilson, evidence that J.F.L. believed Flores-Gomez broke his

promise to her never to do "this" to anyone else was not offered to prove that

Flores-Gomez had a propensity for sexual abuse and acted in conformity with

that propensity. Rather, it was offered to explain why J.F.L. disclosed the rape to

Hernandez when she did. Because the evidence was properly admitted for this

purpose, it is unlikely that the trial court would have granted a motion for a

mistrial or an objection had defense counsel made one. This conclusion is

supported by the fact that the trial court expressly stated J.F.L.'s testimony did

not violate the ruling in limine. For these reasons, Flores-Gomez cannot show

that defense counsel's performance was deficient and we need not address

whether he suffered prejudice. His ineffective assistance of counsel claim fails.

                              HEARSAY EVIDENCE

       Flores-Gomez argues that the trial court abused its discretion in admitting

both J.F.L.'s disclosure of the rape to Hernandez and Hernandez's disclosure of

the rape to law enforcement because the testimony was inadmissible hearsay.

We disagree.



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No. 77518-9-1/10

      "We review a trial court's decisions as to the admissibility of evidence

under an abuse of discretion standard." Pirtle, 127 Wn.2d at 648. "There is an

abuse of discretion when the trial court's decision is manifestly unreasonable or

based upon untenable grounds or reasons." Brown, 132 Wn.2d at 572.

       Hearsay is an out-of-court statement offered in evidence to prove the truth

of the matter asserted. ER 801(c). Hearsay is inadmissible unless it falls within

an exception to the rule. ER 802.

       Flores-Gomez cites three pieces of testimony that he argues were

improperly admitted hearsay. The first is from the police officer who responded

to Hernandez's police call. The officer testified, "Well, when I arrived on-scene,

[Hernandez] said that she had just recently received —" and defense counsel

immediately objected. The trial court ruled that what Hernandez told the officer

was hearsay and that the officer could only "say what the general nature is but

not what she said specifically." The prosecutor then asked him what the general

nature of the information Hernandez gave him was and he responded,"The

general information was that her husband had assaulted their daughter."

      "When a statement is not offered for the truth of the matter asserted but is

offered to show why an officer conducted an investigation, it is not hearsay and is

admissible." State v. Chenoweth, 188 Wn. App. 521, 533, 354 P.3d 13(2015)

(quoting State v. Iverson, 126 Wn. App. 329, 337, 108 P.3d 799 (2005)). Here,

the prosecutor stated the officer's testimony was not offered to prove that Flores-

Gomez assaulted J.F.L., but rather to explain how the officer conducted his

investigation. For this reason, it was not hearsay and was properly admitted.



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No. 77518-9-1/11

       Flores-Gomez argues that this testimony was improperly admitted under

the fact-of-complaint doctrine, an exception to the hearsay rule. That exception

"allows the prosecution in sex offense cases to present evidence that the victim

complained to someone after the assault. But '[t]he rule admits only such

evidence as will establish that the complaint was timely made." Chenoweth, 188

Wn. App. at 532 (alteration in original)(footnote omitted)(quoting State v.

Ferguson, 100 Wn.2d 131, 135-36,667 P.2d 68 (1983)). The rule excludes

"evidence of the details of the complaint, including the identity of the offender and

the nature of the act." Ferguson, 100 Wn.2d at 136. Flores-Gomez argues that

the officer's testimony exceeded the scope of the fact-of-complaint doctrine

because the officer identified Flores-Gomez as the offender and identified the

nature of the act complained of. But the prosecutor specified that the officer's

testimony was offered to explain the officer's investigation. It was not offered to

corroborate J.F.L.'s account by demonstrating that she made a complaint.

Therefore, the fact-of-complaint doctrine is not applicable here and was not

violated.

       Flores-Gomez also argues that the police officer's testimony was

improperly admitted because it contained hearsay within hearsay. Hearsay

within hearsay is inadmissible unless both forms of hearsay are subject to one of

the hearsay exceptions. ER 805. We agree that the admission of the officer's

testimony was error on this basis. But Flores-Gomez cannot show that he was

prejudiced by its admission because J.F.L. testified that Flores-Gomez raped her




                                         11
No. 77518-9-1/12

and Hernandez testified that Flores-Gomez admitted to the rape. Therefore,

reversal is not warranted.

       The remaining statements identified by Flores-Gomez as inadmissible

hearsay are not hearsay statements. During J.F.L.'s testimony, the prosecutor

asked her if, after confronting her father the second time and asking him to leave

the home, she told Hernandez about the rape. J.F.L. responded,"Yeah. That's

why I asked him to leave, because I felt like I needed to tell my mom." Then,

during Hernandez's testimony, the prosecutor asked Hernandez if J.F.L.

"disclosed to you what she came to talk about here today?" Hernandez

responded, "Yes." These statements were not hearsay because neither J.F.L.

nor Hernandez relayed any out-of-court statement in their testimony. Therefore,

both were properly admitted.

                               CUMULATIVE ERROR

       Flores-Gomez argues that cumulative error deprived him of a fair trial. We

disagree.

       The cumulative error doctrine applies when several trial errors occur that

"standing alone may not be sufficient to justify reversal but when combined may

deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390

(2000). It does not apply where the errors are few and have little or no effect on

the outcome of the trial. Greiff, 141 Wn.2d at 929.

       As described above, Hernandez did improperly testify that there was a

recording and the police officer's statement regarding the reason for his

investigation did contain hearsay within hearsay. But it is unlikely that this



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No. 77518-9-1/13

testimony, even combined, denied Flores-Gomez a fair trial. J.F.L. testified in

detail that Flores-Gomez raped her when she was 11 years old. She also

explained why she did not immediately report the rape. Other members of

J.F.L.'s family testified that J.F.L.'s relationship with her father changed around

the time of the rape, and Hernandez testified that Flores-Gomez admitted to her

that he raped J.F.L. Given this evidence of Flores-Gomez's guilt, it is unlikely

that the errors described above had any effect on the outcome of the trial.

Therefore, reversal is not appropriate.

       We affirm.




WE CONCUR:




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