                                                               FILED
                                                            MARCH 17, 2020
                                                      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. 36436-4-III
                                              )
                       Respondent,            )
                                              )
                v.                            )         UNPUBLISHED OPINION
                                              )
JOSE MARIO LOPEZ,                             )
                                              )
                       Appellant.             )

          LAWRENCE-BERREY, C.J. — Jose Lopez appeals his convictions for first degree

child molestation, second degree child molestation, and third degree child rape. He

argues the trial court committed reversible error by permitting the State’s expert witness

to testify why sexual abuse victims sometimes delay reporting abuse. In his statement of

additional grounds for review (SAG), he argues the trial court denied him due process and

he was denied effective assistance of counsel. We disagree with his arguments and

affirm.

                                          FACTS

          Jose Lopez and his family moved next door to A.L. and her family when A.L. was

six years old. Lopez lived with his wife, his daughter and her husband, and his
No. 36436-4-III
State v. Lopez


granddaughter, Josie. Josie and A.L. became close friends. A.L. frequently went to

Lopez’s house and sometimes spent the night there. A.L. would usually sleep in a

bedroom in the back of the house or on a pullout bed in the living room. A.L. and Josie

would accompany Lopez to the store, and Lopez would buy them candy and ice cream.

Lopez also bought A.L. gifts, such as rings and necklaces.

       In 2014, when A.L. was around 12 years old, Lopez divorced his wife and moved

into an upstairs apartment in A.L.’s home. A.L. often spent weekend nights in the

upstairs apartment with Lopez.

       Not long after Lopez moved in, A.L. told her mother that Lopez had sex with her,

and she feared she was pregnant. A.L. then confided this to a friend. The friend told her

mother and eventually Child Protective Services and the police became involved.

       The State charged Lopez with one count of child molestation in the first degree,

one count of child molestation in the second degree, and one count of rape of a child in

the third degree. The State alleged various enhancements on each of the three charges.

       Before trial, Lopez filed a motion to terminate his first counsel’s representation

because of a breakdown in communication. The State objected, arguing that the case had

already been substantially delayed and counsel had already interviewed A.L. The trial




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No. 36436-4-III
State v. Lopez


court granted the motion, but warned Lopez that his replacement counsel might not be

granted an opportunity to reinterview A.L.

      Later, Lopez’s replacement counsel made a motion to interview A.L. Counsel

argued a second interview was necessary because there was no recording or transcript

produced from the first interview. He admitted he spoke with Lopez’s original counsel

and investigator, and he reviewed their interview notes. He nevertheless believed his duty

to effectively represent Lopez required him to separately interview A.L. The trial court

denied Lopez’s motion.

      At trial, the State called A.L. to testify. A.L. testified her relationship changed

with Lopez when she was 9 or 10 years old. Around that time, Lopez pulled up A.L.’s

shirt, kissed and touched her breasts, and kissed her ear. This continued most weekends

that A.L. stayed at Lopez’s home. At 12 years of age, the touching progressed to Lopez

putting his hands down A.L.’s pants and touching her vagina.

      It was at this point when Lopez divorced his wife and moved into the upstairs

apartment of A.L.’s family. A.L. testified she was happy when Lopez moved in because

she looked up to him like a grandfather.

      She testified about the weekend nights she spent in Lopez’s apartment. Lopez had

a big television and cable channels—amenities that A.L. did not have. Each weekend,


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No. 36436-4-III
State v. Lopez


Lopez continued to put his hands down her pants and insert a finger into her vagina. If

A.L. spent all three weekend nights there, Lopez would digitally penetrate her about one

or two out of the three weekend nights.

       One evening, after A.L. turned 14, A.L. was sleeping upstairs in Lopez’s

apartment when Lopez pulled her pants down, pulled his own pants down, and put his

penis into her vagina. It lasted about 10 minutes. A.L. testified that this occurred at least

four separate times. On one occasion, Lopez attempted to put his penis in A.L.’s mouth.

Between the third and the fourth time, A.L. asked Lopez to stop.

       Before A.L. told her mother, she confronted Lopez. Lopez attempted to persuade

A.L. to tell her mother a lie. Lopez told A.L., “‘My life is in your hands.’” Report of

Proceedings (RP) at 97.

       A.L. testified she did not know the touching was wrong at first because nobody

told her. Once the sex started, A.L. did not want to tell her dad because she thought her

dad would be mad at her. She also worried something bad would happen to Lopez.

       The State then called Jessica Johnson to testify. Ms. Johnson is the executive

director of SAGE (Safety, Advocacy, Growth, and Empowerment), a local domestic

violence, sexual assault, and crime victims’ assistance center. The State had previously




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No. 36436-4-III
State v. Lopez


notified Lopez that Ms. Johnson would testify about child grooming. Lopez objected to

Ms. Johnson’s testimony. The trial court excused the jury and heard arguments.

       Lopez argued that expert testimony of child grooming was not necessary and, in at

least one appellate case, had caused reversible error. Lopez argued that jurors might

place too much weight on expert testimony, and might improperly find a defendant guilty

simply because the defendant had fostered a close relationship with the alleged victim.

       The State clarified that Ms. Johnson would testify about child grooming, delayed

reporting, and emotional trauma. The State explained it needed the jury to understand

A.L.’s odd closeness to Lopez and why A.L. delayed so long to report Lopez’s conduct.

Lopez responded that he had not explicitly raised the issue of A.L.’s credibility and

delayed reporting, and the testimony should not be permitted in the State’s case-in-chief.

       The trial court partially agreed with Lopez and ruled Ms. Johnson could not testify

about child grooming. The court then determined that delayed reporting was a potential

argument that Lopez would make to undermine A.L.’s credibility. When asked by the

court, Lopez admitted, “I might argue that, in my closing argument, yes.” RP at 194. The

court ruled that Ms. Johnson could testify about delayed reporting.

       Ms. Johnson then testified that delayed reporting is the process where victims do

not report what happened to them right away. Victims could wait as long as years before


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No. 36436-4-III
State v. Lopez


telling someone. It occurs for various reasons: shame, fear, nobody will believe them, or

not knowing the actions were wrong. Children can be more apt to delay reporting.

       Lopez took the stand and denied the allegations. He testified that he contracted

Legionnaires’ disease in October 2015. Lopez testified that the disease has prohibited

him from functioning sexually.

       To support his testimony, Lopez called his primary care physician, Dr. Bethany

Lynn. She testified that the effects of one of Lopez’s surgeries due to his Legionnaires’

disease could cause erectile dysfunction.

       During closing arguments, both sides argued extensively about A.L.’s credibility.

The State argued there were several reasons why A.L. would not want to report Lopez’s

conduct, so that her reporting of it added credibility. The State also emphasized the

number of factors present that lined up with Ms. Johnson’s testimony about delayed

reporting. The State described A.L. as “a perfect example” of why sexual assault victims

did not want to come forward. RP at 417.

       The jury returned guilty verdicts on all three counts. The trial court convicted

Lopez and sentenced him. Lopez timely appealed to this court.




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No. 36436-4-III
State v. Lopez


                                        ANALYSIS

       Lopez contends the trial court erred under ER 702 and ER 403 when it admitted

Ms. Johnson’s expert testimony.

       We review a trial court’s decision to admit expert testimony for an abuse of

discretion. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). Similarly, we

review a trial court’s decision on relevance and prejudicial effect under ER 403 for an

abuse of discretion. State v. Barry, 184 Wn. App. 790, 801-02, 339 P.3d 200 (2014).

“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)).

       ER 702

       Expert testimony is admissible if “‘(1) the witness qualifies as an expert, (2) the

opinion is based upon an explanatory theory generally accepted in the scientific

community, and (3) the expert testimony would be helpful to the trier of fact.’” In re

Pers. Restraint of Morris, 176 Wn.2d 157, 168-69, 288 P.3d 1140 (2012) (quoting State

v. Allery, 101 Wn.2d 591, 596, 682 P.2d 312 (1984)). Lopez contests only the third

element—that Ms. Johnson’s testimony was not helpful to the trier of fact.


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No. 36436-4-III
State v. Lopez


       We find the trial court did not abuse its discretion under ER 702 by allowing Ms.

Johnson to testify regarding delayed reporting. This case dealt with an alleged pattern of

abuse that occurred over a span of years and a significant amount of time passed between

A.L.’s report and the last alleged sexual incident. Ms. Johnson’s testimony dealt with

circumstances under which a child, or other victim, might delay reporting. That type of

information directly applied to this case. Moreover, Lopez did not foreclose the

possibility of arguing a defense theory that A.L. lied about the allegations because of her

delayed reporting. We conclude the expert testimony was helpful to the trier of fact and

appropriate expert testimony under ER 702.

       ER 403

       Under ER 403, the court can exclude relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice.” “A danger of unfair

prejudice exists ‘[w]hen evidence is likely to stimulate an emotional response rather than

a rational decision.’” Barry, 184 Wn. App. at 801 (internal quotation marks omitted)

(quoting State v. Beadle, 173 Wn.2d 97, 120, 265 P.3d 863 (2011)).

       Lopez argues the relevance of delayed reporting was minimal, but it allowed the

jury to improperly conclude he raped A.L. because she matched the profile of a rape

victim. We disagree the testimony allowed such an argument or such an argument was


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No. 36436-4-III
State v. Lopez


made.

        Here, Ms. Johnson offered no opinion whether A.L. was a rape victim. She

testified in generalities why victims, especially children, often delay reporting sexual

abuse. She did not testify that persons who delay reporting sexual abuse were raped. The

State did not argue that A.L. was raped because she delayed reporting sexual abuse.

Instead, the State utilized Ms. Johnson’s testimony to explain A.L.’s odd behavior of

maintaining an emotionally and physically close relationship with Lopez for years and her

substantial delay in reporting sexual abuse. In essence, the testimony rehabilitated A.L.’s

credibility.

        Lopez also argues that profile evidence was inadmissible in the State’s “case in

chief to prove that abuse did in fact occur.” Appellant’s Br. at 12. As explained above,

we disagree that the State used Ms. Johnson’s testimony as profile evidence, i.e., A.L. fit

the profile of a sexual abuse victim.

        Lopez implies that the delayed reporting evidence was not admissible until he

challenged the victim’s credibility. We have two responses.

        First, before Ms. Johnson testified, Lopez told the trial court he might argue in

closing that A.L. should not be believed because of delayed reporting. The State could

not call Ms. Johnson to testify about delayed reporting after Lopez’s closing argument.


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No. 36436-4-III
State v. Lopez


For this reason, it made sense for the State to call Ms. Johnson in its case-in-chief.

       Second, Lopez placed A.L.’s credibility at issue before the trial even began. In

State v. Petrich,1 our high court wrote the following about children, delayed reporting,

and character evidence:

              [Petrich] also correctly assumes that corroborating testimony to
       rehabilitate a witness is not admissible unless the witness’s credibility has
       been attacked by the opposing party. An attack on credibility is not found
       merely by evaluating cross examination tactics; several factors taken in
       conjunction may show a challenge to credibility. In particular cases, the
       credibility of a witness many be an inevitable, central issue. Cases
       involving crimes against children generally put in issue the credibility of the
       complaining witness, especially if defendant denies the acts charged and the
       child asserts their commission. An attack on the credibility of these
       witnesses, however slight, may justify corroborating evidence.

(Citations omitted.)

       In conjunction with replacement counsel’s pretrial request to interview A.L., he

advised the court: “It does not appear there is corroborating physical evidence in this case

in reference to the alleged allegations of Rape. As a result, the credibility of A.L. will be

the central issue at trial.” Clerk’s Papers at 19. This statement, together with the Petrich

court’s comments, suggest that A.L.’s credibility was at issue before the trial even began.


       1
        101 Wn.2d 566, 574-75, 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).

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No. 36436-4-III
State v. Lopez


The trial court did not err by allowing Ms. Johnson to testify in the State’s case-in-chief

about delayed reporting.

       SAG—INEFFECTIVE ASSISTANCE OF COUNSEL—DUE PROCESS

       Lopez contends the trial court violated his right to due process and he received

ineffective assistance of counsel when the trial court denied replacement counsel’s

motion to reinterview the victim. We disagree.

       Due Process

       Our Supreme Court has recognized that the United States Supreme Court’s

traditional due process analysis provides the most suitable framework for analyzing

discovery issues. State v. Knutson, 121 Wn.2d 766, 771, 854 P.2d 617 (1993). The due

process clause affords criminal defendants a right of access to evidence that is favorable

and material. Id. at 772.

       Evidence is material “‘if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been different.’”

Id. (internal quotation marks omitted) (quoting In re Pers. Restraint of Rice, 118 Wn.2d

876, 887, 828 P.2d 1086 (1992)). “A ‘reasonable probability’ has been defined as ‘a

probability sufficient to undermine confidence in the outcome.’” Id. at 773 (quoting




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No. 36436-4-III
State v. Lopez


Rice, 118 Wn.2d at 887). It must be more than a possibility that the evidence might have

affected the outcome. Id.

       Here, Lopez sought to reinterview A.L. with replacement counsel to observe

A.L.’s demeanor so as to effectively defend Lopez and because the first interview was not

recorded or transcribed. Counsel admitted he was able to talk with Lopez’s first counsel

and a private investigator to obtain notes from the first interview. Lopez speculated, but

failed to convince the trial court, how a second interview would have uncovered

favorable evidence. Even after trial, he cannot point to any favorable evidence that would

have been uncovered in a second interview. Our confidence in the outcome of Lopez’s

trial is not undermined.

       Effective Assistance of Counsel

       To protect a defendant’s right to counsel, a 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). An allegation of ineffective assistance of counsel is a

mixed question of law and fact that we review de novo. Id. at 698. To determine whether

counsel provided effective assistance, we apply a two-pronged test: (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.


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No. 36436-4-III
State v. Lopez


       We dismiss Lopez's claim of ineffective assistance of counsel on the first prong.

Replacement counsel requested a second interview with A.L. Lopez complains that the

trial court did not grant the motion. But this does not explain how his counsel performed

deficiently.

       We deny both claims made by Lopez in his SAG. The trial court did not violate

his due process right to evidence because Lopez could not point to any specific evidence

discoverable in a second interview that would have been favorable and material to his

case. Moreover, he received effective assistance of counsel because his counsel

attempted to obtain a second interview with the victim, but the trial court denied the

motion.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




                                          Fearing, J.

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