          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                  No. 72210-7-1


                         Respondent,                  DIVISION ONE


          v.

                                                      UNPUBLISHED OPINION
VINCENT PAUL MELENDREZ,

                         Appellant.                   FILED: December 28, 2015


          Leach, J. — Vincent Melendrez appeals his convictions for child rape,

incest,        and witness tampering.    Primarily,     he raises constitutional and

foundational challenges to the trial court's evidentiary rulings.     The trial court's

decisions about evidence did not violate Melendrez's right to present a defense

or his privilege against self-incrimination. Because Melendrez's numerous other

arguments also lack merit, we affirm.

                                        FACTS


Substantive Facts


          After Vincent Melendrez and his wife divorced in 2007, he raised their

seven children in western Washington. R.M. is his oldest child, followed by two

boys, W.M. and D.M. The family changed residences every year or so. For two

long periods, they lived in Bremerton with Melendrez's brother Charlie and
NO. 72210-7-1/2




mother, Guadalupe. Melendrez began working nights at Microsoft in 2008. In

November 2010, the family moved into the Windsor Apartments in Renton.

        Melendrez was a strict father. He set three rules for his family: never lie

to or betray him, love each other, and defend the family. He posted a schedule

on the refrigerator that governed his children's days.    If they wanted to have

friends over, Melendrez insisted he meet the friends first.    When his children

misbehaved by talking back, sneaking out, or having friends over without

permission, Melendrez punished them physically, sometimes hitting them with a

belt.


        R.M. testified her father began having sex with her in 2008, when she was

12 or 13 and the family lived at Charlie's house in Bremerton. She described the

first incident, during which she said Melendrez showed her pornography, put his

mouth on her vagina, and had vaginal intercourse with her.       She testified that

Melendrez had sex with her regularly between 2008 and 2011. She said that her

brothers, W.M. and D.M., found her naked in bed with Melendrez in January

2009, then told her grandmother, Guadalupe, what they saw.              R.M. said

Guadalupe told her, "You need to push him away" and "Don't say anything

because you don't want to get the family in trouble." W.M., D.M., and Guadalupe

contradicted R.M.'s testimony, saying these events never happened.



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NO. 72210-7-1/3




       R.M. testified that Melendrez became more controlling after he began

having sex with her, rarely letting her leave the house. She said sex became

more frequent after the family moved to Renton and that her father virtually

moved her into his bedroom.


       R.M. told D.M. in early 2009 that she and her father "did it." When D.M.

confronted Melendrez about it, he denied it. Afterward, Melendrez forced R.M. to

retract her claim in front of the family. After this incident, R.M. told W.M. two

more times that her father was raping her.        She also told a friend.     On

Thanksgiving 2010, R.M. left her house and stayed at the friend's house for three

days. She refused to return home. During that time, she told the friend that her

father had been having sex with her. Melendrez persuaded R.M. by phone to

return home to collect her things. When she arrived, he pulled her inside and

slammed the door. As punishment for running away, Melendrez removed R.M.

from public high school and enrolled her in online classes.    She remained in

online school until the next school year began in September 2011, when he

allowed her to return.


       R.M. continued living at home. That August, Melendrez found pictures of

naked people on her phone.     He grounded her and threatened to prevent her

from returning to high school. Then on October 3, 2011, the manager of the

family's apartment complex found R.M. and a 16-year-old boy engaging in oral
NO. 72210-7-1/4




sex in a common restroom. When the manager notified Melendrez, he appeared

to take the news calmly. But R.M. testified that Melendrez then beat her, made

her face bleed, shoved soap in her mouth, and called her a whore. She said

Melendrez imprisoned her in his room for all of October 4, blocking the door with

an ironing board, a mattress, and a shoe. R.M. testified that she had nothing to

eat until her brothers arrived home from school and let her out.      Her brothers


again contradicted her testimony. They testified that R.M. was not barricaded in

her father's bedroom that day but that she and D.M. had a fight in which D.M. hit

R.M. in the face repeatedly, breaking her lip. D.M. said the fight began because

R.M. told D.M. she was planning to lie about their father sexually abusing her.

      The next day, October 5, R.M. spoke to a counselor at her high school.

During that interview, she told the counselor that her father had been having sex

with her since 2008.    The police arrested Melendrez later that day.       Susan

Dippery, a sexual assault nurse examiner, examined R.M. the same day.

      At trial, the State presented DNA (deoxyribonucleic acid) evidence taken

from the underwear R.M. wore to school on October 5 and from the boxers


Melendrez was wearing when arrested, along with DNA evidence gathered

during the sexual assault examination of R.M.        The DNA analysis showed

Melendrez's sperm and semen on the exterior of R.M.'s genitals. It also found

R.M.'s DNA on the fly of Melendrez's boxers.

                                        -4-
NO. 72210-7-1/5




Procedural Facts


      The trial court let the State amend the information three times during trial.

The second amendment came a month into trial when the State dismissed count


II and enlarged the charging period of count I to include the period charged in

count II.1 Melendrez asked for a bill of particulars, which the court denied.

       Nurse Dippery noted in her examination that part of R.M.'s hymen

remained intact. The State asked her if she would be surprised, based on her

experience, to observe with this remnant a 16-year-old girl who had had sex 100

times. Melendrez objected that the question exceeded the scope of Dippery's

expertise. The court overruled the objection, and Dippery answered, "No."

       Melendrez's defense focused on R.M.'s motive to lie. He tried to introduce

evidence that R.M. constantly misbehaved by sneaking out of the house,

"sexting," having boys over without permission, and engaging in sexual activity;

that Melendrez disciplined her in response to her behavior; and that, in retaliation

and to break free, R.M. fabricated a story of sex abuse. The State objected to

the introduction of misbehavior evidence as irrelevant, prohibited by the rape

shield statute, RCW 9A.44.020, and improper evidence of past specific acts

under ER 404(b). The trial court ruled Melendrez could introduce this evidence if

he first presented evidence that he knew of the misbehavior and disciplined R.M.


       1 Both counts were for rape of a child in the second degree.
                                         -5-
NO. 72210-7-1/6




in response to it.    Ultimately, Melendrez introduced numerous instances of

misbehavior.   Melendrez testified after three other defense witnesses.           His

testimony was then interrupted several times by that of several other defense

witnesses to accommodate their schedules.

      Late in the trial and in the jury's presence, the judge asked, "Is the jail able

to staff until 4:30 tomorrow afternoon?" Melendrez moved for a mistrial outside

the jury's presence, arguing this comment informed the jury he was in custody.

The court denied his motion.

      The trial court instructed the jury that to convict Melendrez of count IV,

incest committed between April 29, 2011, and October 4, 2011, the jury had to

find "one particular act of Incest in the First Degree . .. proved beyond a

reasonable doubt" and that it "must unanimously agree as to which act has been

proved." During deliberations, the jury asked the court, "Do we need to point to a
specific incident or just agree an act occurred during this time frame[?]" The
court reasoned that it would be hard "to explain it any more plainly than it exists

in the jury instruction" and that changing instructions in such situations "can
sometimes create more problems than . . . solutions." Accordingly, it referred the

jury back to the relevant parts of the instructions.




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NO. 72210-7-1/7




                             STANDARD OF REVIEW

       We review questions of law de novo, including alleged violations of the

Sixth Amendment right to present a complete defense and Fifth Amendment

privilege against self-incrimination,2 alleged violations of the right to an impartial

jury and the presumption of innocence,3 and the constitutional adequacy of jury

instructions.4 We use common sense to evaluate the effect of an act on the

judgment of jurors.5

       We review evidentiary rulings, denials of motions for bills of particulars,

and denials of motions for a new trial for abuse of discretion.6

                                     ANALYSIS


Right To Present a Complete Defense

       The trial court ruled that evidence of R.M. sneaking out, "sexting," having

boys over, and having sex was relevant and thus admissible only if Melendrez

presented evidence he knew of that behavior. Melendrez contends that this

ruling violated his Sixth Amendment right to present a complete defense.



       2 State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010).
      3 State v. Gonzalez, 129 Wn. App. 895, 900, 120 P.3d 645 (2005).
      4 State v. Gonzalez-Lopez, 132 Wn. App. 622, 637, 132 P.3d 1128 (2006).
      5 Gonzalez, 129 Wn. App. at 900-01.
      6 State v. Garcia, 179 Wn.2d 828, 846, 318 P.3d 266 (2014); State v.
Dictado, 102 Wn.2d 277, 286, 687 P.2d 172 (1984), abrogated on other grounds
by State v. Harris, 106 Wn.2d 784, 725 P.2d 975 (1986); State v. Robinson, 79
Wn. App. 386, 396, 902 P.2d 652 (1995).
                                          -7-
NO. 72210-7-1/8




      The State responds first that we should decline to consider this issue

because Melendrez raised it for the first time on appeal. A failure to object to a

trial court error generally waives a party's right to raise the challenge on appeal

unless a "manifest error affecting a constitutional right" occurred.7 This court

previews the merits of a claimed constitutional error to determine whether the

argument is likely to succeed.8

       Under the Sixth Amendment, defendants have a right to "'a meaningful

opportunity to present a complete defense.'"9 This does not give them a right to
present irrelevant evidence, however.10        The trial court has discretion to

determine the relevance of evidence.11

       In State v. Jones,12 the Supreme Court ruled that a trial court's refusal to

allow a defendant to testify to the circumstances of an alleged sexual assault

violated the defendant's right to present a defense. The proffered testimony

indicated that the sexual contact occurred consensually during an alcohol-fueled



       7 RAP 2.5(a); State v. Kalebauqh, 183 Wn.2d 578, 583, 355 P.3d 253
(2015).
       s State v. Huven Bich Nguyen, 165 Wn.2d 428, 433-34, 197 P.3d 673
(2008).
       a Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L
Ed 2d 503 (2006) (internal quotation marks omitted) (quoting Crane v. Kentucky,
476 U.S. 683, 690, 106 S. Ct. 2142, 90 L Ed. 2d 636 (1986)); see State v.
Lynch, 178 Wn.2d 487, 491, 309 P.3d 482 (2013).
          10 Jones, 168Wn.2dat720.
          11 Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 668, 230 P.3d 583 (2010).
          12 168 Wn.2d 713, 721, 230 P.3d 576 (2010).
                                         -8-
NO. 72210-7-1/9




sex party and was not rape as the complaining witness claimed.13 The court
distinguished "between evidence of the general promiscuity of a rape victim and

evidence that, if excluded, would deprive defendants of the ability to testify to

their versions of the incident."14 The court reasoned that the proffered evidence

was not "marginally relevant" but of "extremely high probative value," since it was

the defendant's "entire defense."15

       In contrast, the evidence Melendrez sought to introduce was not his

"entire defense." Excluding evidence of R.M.'s perceived misbehavior did not

deprive Melendrez of the ability to testify to his version of any incident, as in
Jones.16   Instead, testimony that R.M. was sexually active, used drugs, and

broke her father's rules resembled general promiscuity evidence, which, as the

trial court correctly ruled, could only be relevant to show bias. Even then, its

probative value was slight. The evidence Melendrez sought to introduce was

thus "marginally relevant," not "high[ly] probative."17
       In addition, defendants seeking appellate review of a trial court's decision

to exclude evidence generally must have made an offer of proof at trial.18 An
extended colloquy in the record can substitute for this offer of proof if it makes

       13 Jones, 168Wn.2dat721.
       14 Jones, 168 Wn.2d at 720-21.
       15 Jones, 168Wn.2dat721.
       16 See Jones, 168 Wn.2d at 720-21.
       17 See Jones, 168 Wn.2d at 721.
       18 State v. Vargas, 25 Wn. App. 809, 816-17, 610 P.2d 1 (1980).
                                          -9-
NO. 72210-7-1/10




clear the substance of the evidence a party wished to introduce.19 If Melendrez

wanted to preserve error as to the exclusion of an item of evidence, he should

have made an offer of proof at trial. He concedes that he did not do so. And

neither the record nor oral argument makes clear the substance of the evidence

Melendrez wished to introduce.      Melendrez thus did not preserve the right to

request review of the exclusion of evidence about R.M.'s perceived misbehavior.

      Further, Melendrez did introduce evidence of that behavior and the

discipline he imposed in reaction to it. Before trial, Melendrez's counsel argued

that the trial court should allow Melendrez to present evidence showing why he

took disciplinary steps against R.M. This evidence included R.M.'s brothers'

discovery of "sexts" on her phone and the ensuing conversations between R.M.,

her brothers, and Guadalupe. It also may have included evidence referred to in

Melendrez's trial briefing, including suspected drug use, sexual activity, lying, and

generally hanging out with the wrong crowd.         Either the State or Melendrez

eventually introduced evidence of all this behavior. Thus, not only did Melendrez

fail to preserve this issue by making an offer of proof at trial, but he has not

shown that the trial court excluded any highly probative evidence.

       Melendrez claimed that he had reason to punish R.M. and this gave R.M.

a motive to lie about Melendrez raping her.        The facts introduced at trial to


       19 State v. Ray, 116 Wn.2d 531, 539, 806 P.2d 1220 (1991); ER 103(a)(2).
                                        -10-
NO. 72210-7-1/11




support this defense gave the jury ample opportunity not to believe R.M. That it

believed her does not give Melendrez grounds for appeal.

       Melendrez further contends that repeated interruptions "fragmented]" his

testimony and violated his "right to a complete and meaningful defense."       But

Melendrez cites no case in which a         court found constitutional error in an


evidentiary ruling because it interrupted a defendant's testimony.    Melendrez's

counsel made no objection to the interruptions at trial. And an objection would

have made no sense, as the schedules of Melendrez's own witnesses made the

interruptions necessary.20

       Because our preview of the merits shows that Melendrez likely will not

succeed on his Sixth Amendment claim, Melendrez does not show a manifest

constitutional error on appeal.        We therefore decline to review his Sixth

Amendment claim under RAP 2.5(a).

Privilege against Self-incrimination

       Melendrez also contends that the trial court's evidentiary rulings violated

his privilege against self-incrimination by compelling him to testify in order to

introduce evidence about R.M.'s behavior.



        20 For example, Melendrez's counsel stated at one point, "So I think we
can fill the day tomorrow. ... I can have one witness available at 9, I can have
the Skype [live video chat and long-distance voice calling service] testimony after
that, I can have another witness here at 1:30, and we could have Mr. Melendrez
fill all the points in between."
                                         -11-
NO. 72210-7-1/12




       A state law requiring a defendant to testify before any other defense

witnesses violates that defendant's Fifth Amendment right against self-

incrimination.21   This rule is not "a general prohibition against a trial judge's

regulation of the order of trial in a way that may affect the timing of a defendant's

testimony."22 An evidentiary ruling can thus affect the order of defense witnesses

without violating the defendant's right to present a defense.23 ER 611(a) gives

the trial court wide discretion over the order and presentation of evidence.24

       In Menendez v. Terhune,25 the Ninth Circuit held that the trial court's ruling

that certain evidence was inadmissible without the defendants testifying first did

not violate the defendants' due process rights.        The defendants sought to

introduce evidence to explain their alleged fear of their parents to bolster the

defendants' claim of self-defense in killing them.26 The trial court ruled that the

defendants' witnesses could not testify until after the defendants laid a foundation



       21 Brooks v. Tennessee, 406 U.S. 605, 607, 92 S. Ct. 1891, 32 L Ed. 2d
358(1972).
       22 Harris v. Barklev, 202 F.3d 169, 173 (2d Cir. 2000).
       23 See Menendez v. Terhune, 422 F.3d 1012, 1031 (9th Cir. 2005);
Johnson v. Minor, 594 F.3d 608, 613 (8th Cir. 2010).
       24 Sanders v. State, 169 Wn.2d 827, 851, 240 P.3d 120 (2010). "The
court shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from harassment or undue
embarrassment." ER 611(a).
      25 422 F.3d 1012, 1032 (9th Cir. 2005).
       26 Menendez, 422 F.3d at 1030.
                                        -12-
NO. 72210-7-1/13




by testifying "about their actual belief of imminent danger."27 The Ninth Circuit

reasoned that the trial court judge "merely regulated the admission of evidence,

and his commentary as to what evidence might constitute a foundation did not

infringe on [the defendants'] right to decide whether to testify."28      The court

distinguished the Supreme Court's decision in Brooks v. Tennessee, which

invalidated a statute that compelled a defendant to testify first if at all,29 noting

that unlike a defendant under the Tennessee statute, the defendants "had the

opportunity, at every stage of the trial, to decide whether or not to take the

stand."30

       Here, unlike in Brooks, no statute or rule compelled Melendrez to testify

first or at all.     In fact, three of six defense witnesses testified before him.

Melendrez argues that the trial court specified the order of his witnesses and

"forced him to testify in order to admit relevant evidence," but that begs the

question.   Like the trial court in Menendez, the trial court here ruled that the

misbehavior evidence Melendrez sought to admit was not relevant unless

Melendrez laid a foundation by presenting evidence that he knew about the

misbehavior.       One way, but not the only way, Melendrez could do so was by

testifying himself.     In so ruling, the trial court properly used its discretion to

       27 Menendez, 422 F.3d at 1030-31.
       28 Menendez, 422 F.3d at 1032; see also Johnson, 594 F.3d at 613.
       29 406 U.S. 605, 607, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972).
       30 Menendez, 422 F.3d at 1031.
                                          -13-
NO. 72210-7-1/14




"exercise reasonable control over the mode and order of interrogating witnesses

and presenting evidence."31 We therefore reject Melendrez's Fifth Amendment

argument.

Sufficiency of the Information and Denial of Bill of Particulars

       Melendrez next contends that because the information covered long

periods, giving him little information about when the alleged crimes occurred, he

could not effectively defend against the charges with an alibi.     Melendrez did

present evidence that he worked the night shift at Microsoft and was dependable

in showing up for work to counter R.M.'s testimony that Melendrez frequently

raped her at night and eventually moved her into his bedroom.

       An information that accurately states the elements of the crime charged is

not constitutionally defective.32 The information must also allege facts supporting

those elements.33 This requirement's purpose "'is to give notice to an accused of

the nature of the crime that he or she must be prepared to defend against.'"34

       Melendrez makes no claim that the information omits any element of any

crimes charged. Instead he argues that the information was not specific enough

about the time period in count I to provide him with adequate notice. But in child

       31 ER 611(a).
       32 State v. Bonds, 98 Wn.2d 1, 17, 653 P.2d 1024 (1982); State v.
Zillvette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013).
        33 State v. Nonog, 169 Wn.2d 220, 226, 237 P.3d 250 (2010).
       34 Zillvette, 178 Wn.2d at 158-59 (quoting State v. Kiorsvik. 117 Wn.2d 93,
101, 812 P.2d 86 (1991)).
                                        -14-
NO. 72210-7-1/15




sex abuse cases, "whether single or multiple incidents of sexual contact are

charged, a defendant has no due process right to a reasonable opportunity to

raise an alibi defense."35 Alibi is not likely to be a valid defense where, as here,

"'the accused child molester virtually has unchecked access to the victim,'"

because in such cases '"[t]he true issue is credibility.'"36

       Melendrez relies on a South Carolina case, State v. Baker,37 where the

court held an indictment to be unconstitutionally overbroad.         There, the State

amended the information two weeks before trial to enlarge by over three years

the period when the defendant committed alleged child abuse.38 The defendant's

only available complete defense was alibi.           The court ruled that the late

amendment of the charging instrument made that defense impossible.39

       Baker is the only authority Melendrez cites for the proposition that a long

charging period can violate a defendant's constitutional rights.       But apart from

being nonbinding authority, Baker is distinguishable.          Unlike the defendant in

Baker, Melendrez had ample notice of the charges and the period they

encompassed. The amended information did not change the charging period; it

simply combined the periods for counts I and II and eliminated count II.

       35 State v. Cozza, 71 Wn. App. 252, 259, 858 P.2d 270 (1993).
       36 State v. Haves, 81 Wn. App. 425, 433, 914 P.2d 788 (1996) (quoting
State v. Brown, 55 Wn. App. 738, 748, 780 P.2d 880 (1989)).
       37 411 S.C. 583, 769 S.E.2d 860, 865 (2015).
       38 Baker, 769 S.E.2d at 864.
       39 Baker, 769 S.E.2d at 864.
                                         -15-
NO. 72210-7-1/16




Melendrez knew for nearly two years before trial that he had to defend against

charges that he raped his daughter during the 16-month period described in the

amended count I.40        Thus, the information satisfied constitutional notice

requirements.41

        Melendrez also contends that even if the information was not deficient, the

trial court abused its discretion in denying Melendrez a bill of particulars because

without it he could not adequately prepare a defense.

        An information may be constitutionally sufficient but still so vague as to

make it subject to a motion for a more definite statement.42 A trial court should

grant a bill of particulars if the defendant needs the requested details to prepare

a defense and to avoid "prejudicial surprise."43 If the bill of particulars is not

necessary, then the trial court does not abuse its discretion in denying it.44
        In State v. Noltie,45 this court rejected challenges to an information with a

lengthy charging period and the denial of a bill of particulars, holding the

defendant had adequate notice of the charges against him.              The charges


        40 The first information is dated March 2012; the trial began in January
2014.
        41 See Zillvette, 178 Wn.2d at 158.
        42 Bonds, 98 Wn.2d at 17; Dictado, 102 Wn.2d at 286.
     43 State v. Allen, 116 Wn. App. 454, 460, 66 P.3d 653 (2003) (quoting 1
Charles Alan Wright, Federal Practice and Procedure § 129 (3d ed.1999)).
        44 Dictado, 102 Wn.2d at 286.
        45 57 Wn. App. 21, 30, 786 P.2d 332 (1990), affd, 116 Wn.2d 831, 841-42,
809P.2d 190(1991).
                                         -16-
NO. 72210-7-1/17




"spanned a 3-year period and presented a pattern of frequent and escalating

abuse" of the defendant's stepdaughter.46 The defendant claimed he lacked

adequate notice to prepare a defense because the information was too vague for

him to "separate the charged acts from the 'hundreds of innocent contacts' he

had with [the victim] during the charging period."47      This court rejected that

argument, noting the defendant had an opportunity to interview the complaining

witness. The court also noted that the defendant did not point to any "information

that surprised him at trial[ ] that would have provided additional notice of the

charges."48 The court concluded that the trial court did not abuse its discretion.49

       Here, as in Noltie, the charges did not surprise the defendant, even

without a bill of particulars.50 Like Noltie, Melendrez's counsel interviewed the

complaining witness, R.M., at length and in advance of trial. And like Noltie,

Melendrez fails to point out any information that would have given him additional

notice of the charges.    His only specific contention as to prejudice is that he

lacked the dates he needed to present an alibi defense. But "a defendant has no

due process right to a reasonable opportunity to raise an alibi defense" against a

charge of child sex abuse.51 And as the State points out, the period over which

       46 Noltie, 116Wn.2dat845.
       47 Noltie, 57 Wn. App. at 30.
       48 Noltie, 57 Wn. App. at 31.
       49 Noltie, 57 Wn. App. at 31.
       50 Noltie, 116Wn.2dat845.
       51 Cozza, 71 Wn. App. at 259.
                                        -17-
NO. 72210-7-1/18




the alleged crimes took place didn't change with the amendment, which merely

combined counts I and II. Melendrez thus failed to show how a bill of particulars

would have helped his defense. The trial court did not abuse its discretion in

denying a bill of particulars.

Expert Testimony

          Next, Melendrez contends that Nurse Dippery's testimony that she would

not be surprised to see part of the hymen intact on a 16-year-old girl who had

had sex over 100 times "was highly speculative and lacked foundation."

          ER 702 permits "a witness qualified as an expert by knowledge, skill,

experience, training, or education" to testify where her "specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in

issue."


          Melendrez again fails to cite the facts of any case that would support a

reversal. He also fails to explain how Dippery's statement lacked a foundation.

Dippery testified to her extensive qualifications: seven years examining patients

at Harborview Medical Center for signs of sexual assaults and around 900 sexual

assault examinations performed, roughly half of them on teenagers. She testified

without objection that it is "possible for someone to have a relatively intact

hymen, even after sexual activity" and that R.M.'s was partially intact. The trial

court could reasonably conclude Dippery was qualified to make the challenged

                                        -18-
NO. 72210-7-1/19




statement and that the statement would "assist the trier of fact to understand the


evidence" gained in R.M.'s sexual assault exam.52 The trial court did not abuse

its discretion in overruling Melendrez's ER 702 objection.

Right to a Fair Trial

       Melendrez next asserts that the trial court violated his right to a

presumption of innocence by asking the bailiff in the jury's presence, "Is the jail

able to staff until 4:30 tomorrow afternoon?"


       "The right to a fair trial includes the right to the presumption of

innocence."53 This includes "'the physical indicia of innocence,'" i.e., freedom

from shackles or other restraints.54 It also precludes a court from deliberately

drawing the jury's attention to a defendant's custody with a preliminary

instruction.55 Such violations are subject to harmless error analysis.56

       In State v. Gonzalez,57 Division Three of this court held that a trial court's

"special announcement" informing the jury the defendant "was indigent,

incarcerated, had been transported in restraints, and was being tried under

guard" violated the defendant's right to a fair trial. In State v. Escalona,58 this

       52 See ER 702.
      53 Gonzalez, 129 Wn. App. at 900.
      54 Gonzalez, 129 Wn. App. at 901 (quoting State v. Finch, 137 Wn.2d 792,
844, 975 P.2d 967 (1999)).
      55 Gonzalez, 129 Wn. App. at 901.
       56 Finch, 137Wn.2dat859.
       57 129 Wn. App. 895, 901, 129 P.3d 645 (2005).
       58 49 Wn. App. 251, 255-56, 742 P.2d 190 (1987).
                                        -19-
NO. 72210-7-1/20




court ruled that the defendant's right to a fair trial was violated where the victim

disclosed that the defendant had previously been convicted of an identical crime

to the one he was on trial for. In contrast, in State v. Condon,59 this court held

that a witness twice mentioning that the defendant had been in jail did not violate

the defendant's right to a fair trial.       The trial court admonished the witness,

denied the defendant's motion for a mistrial, and gave the jury a curative

instruction.60 This court reasoned that the references to the defendant's custody

were more ambiguous and thus less prejudicial than the statements in

Escalona.61     The Condon court also pointed out that being in jail does not

necessarily mean the defendant has a propensity to commit murder or has been

convicted of a crime.62 It held that the statements were not serious enough to

merit a mistrial and the trial court's instruction cured their "potential for

prejudice."63

       Melendrez again fails to cite any case in his favor. He bore no physical

indicia of being in custody. And unlike the trial court in Gonzalez, the trial court

here did not explicitly and intentionally call the jury's attention to Melendrez's

custodial status. Rather, it made a comment that it reasonably concluded was


       59 72 Wn. App. 638, 649-50, 865 P.2d 521 (1993).
       60   Condon,   72 Wn.   App.   at 648.
       61   Condon,   72 Wn.   App.   at 648.
       62   Condon,   72 Wn.   App.   at 649.
       63   Condon,   72 Wn.   App.   at 649-50.
                                             -20-
NO. 72210-7-1/21




ambiguous in denying Melendrez's motion for a mistrial. As both the trial court

and the State note, the jury could infer from the judge's question that Melendrez

was in custody, but it could just as easily think jail staff was responsible for

courtroom security.    And even an implication of custody would not warrant

reversal unless it was particularly prejudicial, like the testimony in Escalona.64

The trial court's fleeting, inadvertent, and ambiguous comment did not abridge

Melendrez's presumption of innocence.

Manifestly Apparent Legal Standard

       Melendrez contends that the trial court failed to make the relevant legal

standard "manifestly apparent" in answering the jury's question of whether it

needed to "point to a specific incident or just agree an act occurred during" the

charging period for count IV. This, Melendrez argues, warrants reversal of his

conviction on that count, as the trial court should have told the jury it needed to

agree on a specific incident in order to find Melendrez guilty.

       "Jury instructions must make the relevant legal standard manifestly

apparent to the average juror."65 Melendrez cites State v. Cantabrana,66 in which
the court found reversible error in a jury instruction that was wrong about the law.

But he does not cite any case in which a legally accurate jury instruction failed to


       64 See Condon, 72 Wn. App. at 648.
       65 State v. Cantabrana. 83 Wn. App. 204, 208, 921 P.2d 572 (1996).
       66 83 Wn. App. 204, 208-09, 921 P.2d 572 (1996).
                                        -21-
NO. 72210-7-1/22




"make the relevant legal standard manifestly apparent." Nor does he contend

that the trial court's original instruction or response to the jury's question were

incorrect.


       Moreover, the trial court's instructions did "make the relevant legal

standard manifestly apparent to the average juror." This court held in State v.

Moultrie67 that an almost identical Petrich68 instruction adequately addressed the

legal standard for the average juror.       In arguing that "[t]he jury's question

indicated that it did not understand the instruction," Melendrez misunderstands

the "manifestly apparent" test. The subjective understanding of the jurors in

Melendrez's case is irrelevant because the test is objective. The instruction only

has to make the standard "manifestly apparent to the average juror,"69 and in

Moultrie this court found that an almost identical instruction did so.70




       67 143 Wn. App. 387, 392, 177 P.3d 776 (2008).             The instruction in
Moultrie read in part,
             To convict the defendant of rape in the second degree, one
             particular act of rape in the second degree must be proved
             beyond a reasonable doubt, and you must unanimously agree as
             to which act has been proved. You need not unanimously agree
             that the defendant committed all the acts of rape in the second
           degree.
        68 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
        69 Cantabrana, 83 Wn. App. at 208 (emphasis added).
        70 See Moultrie, 143 Wn. App. at 394.
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NO. 72210-7-1/23




Issues Raised in Statement of Additional Grounds for Review


       Melendrez raises several more issues in his statement of additional


grounds for review.      Each of these lacks merit.    First, Melendrez contends the

trial court failed to properly address evidence discovered during trial, violating his

rights to due process and a fair trial. An error by a trial court resulting in a failure

to disclose relevant evidence does not warrant reversal unless the exculpatory

evidence was constitutionally material.71 Evidence is not constitutionally material

if the defendant was able to obtain the substantial equivalent of the evidence and

use it to cross-examine the witness.72 Here, the State spoke to R.M. during a

trial recess and gave Melendrez a summary of its notes. The interview contained

two items of information the defense thought was relevant.73 The trial court

noted that this information could be used on cross-examination and "elicited, if

relevant, for contradictory testimony." Melendrez does not allege the State failed

to disclose any relevant information.       And the asserted "delay" in the State

reporting the interview was reasonable as it was between a Friday afternoon and

the following Monday morning. We reject Melendrez's first pro se argument.




      71 State v. Garcia, 45 Wn. App. 132, 139, 724 P.2d 412 (1986).
      72 Garcia, 45 Wn. App. at 140.
      73 Those items were an acknowledgment that R.M. had oral sex in the
apartment complex restroom and a statement that her father at times rewarded
her with food for sex.
                                         -23-
NO. 72210-7-1/24




       Second, Melendrez claims that because R.M.'s testimony at trial was

inconsistent with her previous formal statements, the State made "knowing use of

perjured testimony," warranting reversal, quoting State v. Larson.74 Melendrez

has not shown, and the record does not support, that R.M. lied in her trial

testimony or that the State knew any of her testimony to be false.75 Melendrez

was able to thoroughly cross-examine R.M. about her inconsistent statements.

Whether R.M. lied at trial was a question of credibility properly left to the jury.76

We therefore reject Melendrez's second argument.

       Third, Melendrez contends that the trial court abused its discretion in

ruling irrelevant the identity of the boy R.M. was caught in a restroom with.

Melendrez argues that the trial court's ruling denied him the ability to question the

boy and that the boy's testimony would have helped establish R.M.'s bias against

her father.


       "[A] defendant has a constitutional right to impeach a prosecution witness

with bias evidence" using an independent witness.77 An error in excluding such

evidence is harmless if "no rational jury could have a reasonable doubt that the

defendant would have been convicted even ifthe error had not taken place."78


       74 160 Wn. App. 577, 594, 249 P.3d 669 (2011).
       75 See Larson, 160 Wn. App. at 594.
       76 See Larson, 160 Wn. App. at 594-95.
       77 State v. Spencer, 111 Wn. App. 401, 408, 45 P.3d 209 (2002).
       78 Spencer, 111 Wn. App. at 408.
                                        -24-
NO. 72210-7-1/25




      Melendrez offers only one theory about the relevance of the boy's identity,

that the boy could have information about R.M.'s "behavior-based issues." As

noted above, the trial court properly limited evidence of R.M.'s behavior to events

known to Melendrez.      Melendrez does not explain how the boy could be

unknown to him, yet know about behavior that Melendrez was aware of. But we

need not decide whether the trial court erred in denying Melendrez the ability to

introduce testimony from the boy because any error in doing so was harmless.

"[N]o rational jury could have a reasonable doubt" that Melendrez would have

been convicted even if the trial court had not excluded evidence of the boy's

identity. Melendrez presented ample evidence of R.M.'s potential bias without

the boy. And R.M.'s testimony, along with the DNA evidence, would have been

unchanged.

       Next, Melendrez contends that the trial court erred in allowing the State to

ask D.M. questions that suggested D.M. was being untruthful. D.M. testified that

R.M. told him before their father's arrest that she was planning to lie about their

father abusing her. The trial court allowed the State to ask D.M. whether he had

been formally interviewed about his knowledge of the alleged crimes.          D.M.

replied he had not.    The State then asked, without objection by Melendrez,

whether D.M. ever told anyone, '"My sister told me she's going to make this up.'"

D.M. again replied he had not.

                                       -25-
NO. 72210-7-1/26




       "'[A] prosecutor who asks the accused a question that implies the

existence of a prejudicial fact must be prepared to prove that fact.'"79 Melendrez

asserts that the State implied the "prejudicial fact" that D.M. had interacted with

the authorities after his father's arrest.   Melendrez claims this prejudiced him

because D.M. may not have had any interaction with those authorities and thus

no opportunity to tell them what his sister had said. This was the subject of a

lengthy colloquy in the trial court, in which the parties and the judge agreed the

problem would be addressed if the State first asked whether any such

conversations happened. This was exactly what the State did, without objection.

Melendrez's argument at this stage is therefore meritless.

       Finally, in its closing argument, the State said D.M. "didn't tell anybody"

that R.M. told him she was going to lie "because it didn't happen." Melendrez

contends that the trial court erred in allowing the State to directly state in closing

that D.M. testified untruthfully.

       A "defendant's right to a fair trial is denied when the prosecutor makes

improper comments and there is a substantial likelihood that the comments

affected the jury's verdict."80 But "[t]he State is generally afforded wide latitude in




      79 State v. Babich, 68 Wn. App. 438, 444, 842 P.2d 1053 (1993) (quoting
United States v. Silverstein, 737 F.2d 864, 868 (10th Cir. 1984)).
       80 State v. Jungers, 125 Wn. App. 895, 901, 106 P.3d 827 (2005).
                                         -26-
NO. 72210-7-1/27




making arguments to the jury."81 A prosecutor can "draw reasonable inferences

from the evidence and may freely comment on witness credibility based on the

evidence" but cannot opine about a witness's credibility.82 The State's remark

during closing arguments was not an opinion about D.M.'s credibility. Rather, the

prosecutor asserted a reasonable inference based on the evidence in the case

as a whole and on D.M.'s statements on cross-examination in particular.

                                  CONCLUSION


       Because Melendrez did not raise his Sixth Amendment challenge below

and he does not show a manifest error, we decline to review it. Because the trial

court did not force Melendrez to testify first and properly exercised its discretion

to exclude irrelevant evidence and control the order of testimony, we reject

Melendrez's Fifth Amendment claim.      Because Melendrez had ample notice of

the charges against him and there was no chance of "prejudicial surprise," the

charging information was constitutionally adequate and the trial court did not

abuse its discretion in denying Melendrez a bill of particulars.           Because

Melendrez makes no argument about Nurse Dippery's qualifications to present

her expert opinions, he fails to show that the trial court abused its discretion in

allowing her testimony. Because the trial court's question in the jury's custody

       81 State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006), overruled
in part on other grounds by State v. W.R.. Jr., 181 Wn.2d 757, 336 P.3d 1134
(2014).
       82 State v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 (2010).
                                        -27-
NO. 72210-7-1/28




was fleeting, inadvertent, and ambiguous, it did not abridge Melendrez's

presumption of innocence.        Because this court has already upheld a

substantively identical Petrich instruction, the trial court's instruction made the

legal standard "manifestly apparent to the average juror."       And Melendrez's

several pro se arguments are equally meritless. For all these reasons, we affirm.




WE CONCUR:




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