                                                                                                  1.- ILED
                                                                                            UOURT OF APPEALS
                                                                                                          OH 11
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON "'
                                                                                          2015 JUL 23 AM R. 2.1
                                          DIVISION II
                                                                                          S;;
 STATE OF WASHINGTON,                                                 No. 45242 -1 - II
                                                                                          DY

                                Respondent,


        V.



 MARCOS ROBERTO LOZANO,                                      PUBLISHED IN PART OPINION




       MELNICK, J. —      Marcos Lozano appeals his conviction for rape in the second degree,


arguing that the trial court erred by instructing the jury that he had the burden of proving the

 reasonable belief' defense and that his counsel was ineffective for not proposing instructions on

the defense of consent. In the published portion of this opinion, we hold that the challenged jury

instruction on the " reasonable belief' defense did not violate due.process because this defense does

not negate an element of rape in the second degree where the State solely alleged the sexual

intercourse occurred with a person incapable of consent by reason of being physically helpless or

mentally incapacitated.   And, we further hold that Lozano' s counsel did not provide ineffective


assistance for failing to propose instructions on consent because consent is not an affirmative

defense to a charge of rape in the second degree where the State solely alleged the sexual

intercourse occurred with a person incapable of consent by reason of being physically helpless or

mentally incapacitated.

       In the unpublished portion of this opinion, we hold that the trial court did not err by

excluding as hearsay a witness' s transcribed statement after the State used a small portion of the

statement only to refresh the witness' s recollection. We also hold that the issues raised in Lozano' s

statement of additional grounds (   SAG) have   no merit.   Accordingly,   we affirm.
45242 -1 - II




                                                              FACTS


         Lozano        met a woman,        C. C.,   online   through      social media.     They arranged to meet on the

evening      of   February   7, 2009. C. C. went to Lozano' s place of employment and waited for him to


finish his    shift.   While waiting for Lozano, C. C. received a call from her good friend A.B. who

asked for a ride home from a bar. C. C. picked up A.B. and then drove back to Lozano' s place of

employment, where            he    was   just getting   off work.          C. C. and A.B. then followed Lozano to his


house.


         When they arrived at Lozano' s house, the three went upstairs to his bedroom. Lozano gave

them each a beer and opened one for himself. Shortly thereafter, A.B. fell asleep on a small couch

near Lozano' s bed. Lozano and C. C. talked to each other, drank several beers, listened to music,.

started to watch a movie, and had consensual intercourse. C. C. then fell asleep.

         Later, C. C.      woke      up   and   saw   Lozano having           sexual    intercourse   with   A.B.   A.B. was


unclothed and appeared to still be asleep. C. C. yelled at Lozano to get off A.B. and he did. C. C.

shook    A.B.      awake     and     helped her      gather       her   clothes.   C. C.   and   A.B. left Lozano' s house


immediately.

         According       to A.B.,     she remembered walking up the stairs to Lozano' s bedroom, sitting on

the couch next to his bed, drinking a sip of beer, and then falling asleep right away. She confirmed

that   she   fell asleep     fully   clothed.       She explained that she woke up disoriented and concerned

because C. C. was yelling and because she was not wearing pants or underwear. A.B. remembered

 feeling [ Lozano]       come out of [her]."          RP     at   209. She saw him walk across the room, remove a


condom, and place it in a trash can.


         The State charged Lozano with rape in the second degree and alleged that A.B. was

incapable       of consent    by   reason of    being   physically helpless        or   mentally incapacitated.     Lozano' s




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45242 -1 - II




first jury trial ended in a conviction, but we reversed the conviction and remanded for a new trial.

See State   v.   Lozano,   noted at   167 Wn.    App.   1021, 2012 WL 1047418.   Lozano' s second jury trial

occurred -in July 2013

         At the second trial, Lozano' s defense theory was that A.B. initiated and consented to sexual

intercourse with him and that even if A.B. was incapable of consent, he reasonably believed that

she could consent.         He testified that when C. C. woke up and saw him having sexual intercourse

with   A. B.,   C. C. got mad. The two women then dressed quickly and left.

         Lozano presented expert testimony to explain alcohol' s effect on memory and the concept

of confabulation. The trial court instructed the jury on the " reasonable belief' defense contained

in RCW 9A.44. 030( 1).        Lozano did not propose a consent defense instruction.


         The jury found Lozano guilty of rape in the second degree. Lozano appeals his conviction.

                                                     ANALYSIS


I. "       REASONABLE BELIEF" DEFENSE JURY INSTRUCTION


          Lozano argues for the first time on appeal that the trial court violated his due process right


under the federal and state constitutions by instructing jurors on the " reasonable belief' defense'

because the instruction allocated to him the burden of proving that he reasonably believed the




1 RCW 9A.44. 030( 1) provides:


          In any prosecution under this chapter in which lack of consent is based solely upon
          the victim' s mental incapacity or upon the victim' s being physically helpless, it is
          a defense which the defendant must prove by a preponderance of the evidence that
          at the time of the offense the defendant reasonably believed that the victim was not
          mentally incapacitated       and/ or   physically helpless.
45242 -1 - II




victim was capable of consent.2 We hold that the " reasonable belief' instruction did not violate

due process because the instruction did not impose a burden on Lozano to prove any element of

the charged crime.


          The State charged Lozano with rape in the second degree under RCW 9A.44. 050( 1)( b),

which required the State to prove beyond a reasonable doubt that Lozano engaged in sexual


intercourse with A.B. when she was incapable of consent by reason of being physically helpless

or   mentally incapacitated.       The trial court instructed the jury that it was a defense to the charge of

rape in the second degree that at the time of the offense the defendant reasonably believed. that .

A.B. was not mentally incapacitated or physically helpless.3 The instruction further provided that
Lozano had the burden to          prove   this   defense   by   a preponderance of        the   evidence.         Although the


record does not reflect which party proposed this instruction, Lozano did not object to it.4




z A claim of instructional error is waived when not presented to the trial court unless the claimed
error   constitutes   a   manifest    error affecting      a    constitutional   right.    RAP 2. 5(        a)(   3).   Because

Lozano' s allegation that the instruction impermissibly shifted the burden of proof implicates his
federal and state constitutional due process rights, we consider his claim of instructional error for
the first time on appeal.


  See RCW 9A.44. 030( 1).


4 On appeal, Lozano denies that he presented a reasonable belief defense, arguing that he relied
instead   on a consent         at trial. But the record undermines Lozano' s contention that he did
                          defense
not assert a " reasonable belief' defense. He testified that he did not know how much alcohol A.B.
drank. He also presented expert testimony about alcohol induced blackouts, which are amnesiac
events in which a person is awake and functioning but his or her brain is not able to imprint a
memory of the events. The expert testified that a person in a blackout state could act and then not
remember, including travel to other cities. Based on this testimony, Lozano argued in closing that
he did not see anything that would have led a reasonable person to believe A.B. was highly
intoxicated. He   asked     the   jury how could he be      expected    to   know if A.B.   was    in   a   blackout? There

is nothing in the record to suggest that Lozano was forced to present the reasonable belief defense
or that the instruction was given over his objection.


                                                               rd
45242 -1 - II



            The due process clause of the Fourteenth Amendment requires the State to prove beyond a


reasonable doubt every fact necessary to convict the defendant of the charged crime. 5 State v.
W.R., 181 Wn.2d 757, 761- 62, 336 P. 3d 1134 ( 2014). "                   A corollary rule is that the State cannot

require     the defendant to disprove any fact that           constitutes    the    crime charged."   W.R.,   i81 Wn.2d

at   762.    Whether due process prevents the legislature from allocating the burden of proof of a

defense to the defendant depends on the relationship between the elements of the charged crime

and   the   elements of      the defense.   W.R.,   181 Wn.2d at 762. A defense that merely excuses conduct

that would otherwise be punishable is a true affirmative defense, and the burden of proving it may

be   allocated      to the defendant.   W.R.,    181 Wn.2d at 762; State v. Fry, 168 Wn.2d 1, 7, 228 P. 3d 1

 2010).      But where a defense necessarily negates an element of the crime, the legislature may not

allocate     to the defendant the burden        of proving    the   defense.   W.R., 181 Wn.2d at 762.


             The key to whether a defense necessarily negates an element is whether the completed

crime and       the defense     can coexist."    W.R., 181 Wn.2d        at   765.    For example in State v. Box, 109


Wn.2d 320, 330, 745 P. 2d 23 ( 1987),               our Supreme Court held that insanity does not negate the

premeditation element of            first degree    murder.    More recently in W.R., 181 Wn.2d at -768, our


Supreme Court held that consent necessarily negates forcible compulsion; therefore, due process

prohibits shifting the burden to the defendant to prove consent by a preponderance of the evidence

as a defense to a charge of rape by forcible compulsion.

            Relying     on   W.R., 181 Wn.2d at 765- 66, Lozano argues that the affirmative defense


instruction impermissibly shifted the burden of proof to him. Lozano appears to argue that because



5
     Our    state   constitution   similarly   guarantees, "   No person shall be deprived of life, liberty, or
property,      without   due   process of   law." WASH. CONST.          art.   I, § 3. Lozano has not argued that the

trial court' s " reasonable belief' jury instruction violated our state constitution.



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45242 -1 - II




he presented evidence at trial that A.B. consented to sexual intercourse, the allocation of any

burden of proof to him violated his due process rights: We disagree.


          W.R. does      not support      Lozano'   s position.    The instruction in W.R. violated due process


because it allocated to the defendant the burden to prove consent, which negated the forcible

compulsion element of         the   charged crime.      181 Wn.2d        at   768.   Unlike in W.R., Lozano' s burden


to    prove   his "   reasonable belief' that the victim was not mentally incapacitated and physically

helpless did      not negate an element of          the charged crime.         Here, the State retained its burden to


prove beyond a reasonable doubt that Lozano had sexual intercourse with A.B. when she could

not consent      by    reason of    being   physically helpless     or   mentally incapacitated.        The challenged


instruction did not negate this element; i.e., the instruction did not require Lozano to prove that the


victim could actually consent. It merely placed the burden on Lozano to prove that he reasonably

believed A.B. could consent, which is a statutory defense to the crime.

          The " reasonable belief' defense may coexist with the charged crime because the elements

of the crime are based on the inability of the person to consent, whereas the defense is concerned

with    the   reasonableness       of   the defendant' s belief that the         person   was   able   to   consent.   The


 reasonable belief' defense is merely an excuse for conduct that would otherwise be punishable.

Therefore, the trial court' s instruction did not violate due process.


II.       INEFFECTIVE ASSISTANCE OF COUNSEL


          Lozano next argues that his counsel was ineffective for failing to propose jury instructions

outlining his affirmative defense of consent. We disagree. Consent is not an affirmative defense

to the charge of rape in the second degree where, as here, the State solely charges the defendant of

having sexual intercourse with a person incapable of consent by reason of being physically helpless

or mentally incapacitated. Therefore, defense counsel' s performance was not deficient.



                                                             C'!
45242 -1 - II




         Ineffective assistance of counsel is a mixed question of law and fact that we review de

novo.    In   re   Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P. 3d 610 ( 2001).                    A defendant


claiming      ineffective    assistance        of   counsel   has the    burden to     establish   that ( 1)      counsel' s



performance        was   deficient     and (   2) the   performance     prejudiced   the defendant'   s   case.    State v.


Thomas, 109 Wn.2d 222, 225- 26, 743 P. 2d 816 ( 1987).                   Failure to establish either prong is fatal to

an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700. An attorney' s performance

is deficient if it falls " below an objective standard of reasonableness based on consideration of all

the   circumstances."     State   v.   McFarland, 127 Wn.2d 322, 334- 35, 899 P. 2d 1251 ( 1995). Deficient


performance prejudices a defendant if there is a " reasonable probability that, but for counsel' s

deficient     performance,   the   outcome of the proceedings would           have been different." State v. Kyllo,


166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


              Consent' means that at the time of the act of sexual intercourse or sexual contact there


are.actual words or conduct indicating freely given agreement to have sexual intercourse or sexual

contact."      RCW 9A. 44. 010( 7).        In State v. Lough, 70 Wn. App. 302, 329, 853 P. 2d 920 ( 1993),

aff'd, 125 Wn.2d 847, 889 P. 2d 487 ( 1995), the court noted that a defendant' s consent defense to


second degree rape was " legally and logically superfluous" when the State' s sole theory was that

the victim was legally incapable of giving consent because the defendant had drugged the victim

into unconsciousness. The court further stated that if the State proved its case beyond a reasonable

doubt, consent is no defense at all. Lough, 70 Wn. App. at 329.

         As discussed in Lough, if the State proves beyond a reasonable doubt that a person cannot

consent to sexual intercourse, the victim' s words or conduct indicating freely given agreement to




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45242 -1 - II




have sexual intercourse will not excuse the defendant' s conduct.6 70 Wn. App. at 329. Therefore,

a victim' s words or conduct indicating freely given agreement are not an affirmative defense to a

rape in the second degree charge where the State' s information solely charges the defendant with

rape in the second degree where the victim could not consent because of physical helplessness or

mental   incapacity.     See    Fry,   168 Wn.2d   at   7 ( explaining that "[ a] n affirmative defense admits the


defendant committed a criminal act but pleads an excuse for doing so")

         Because consent is not an affirmative defense to rape in the second degree as charged here,

Lozano' s counsel' s decision not to seek an instruction on consent was not deficient. Lozano has

neither shown that his counsel' s performance was deficient nor that it prejudiced Lozano' s case.


Therefore, Lozano' s ineffective assistance claim fails. We affirm the conviction.

         A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

in accordance with RCW 2. 06. 040; it is so ordered.


I.       ADDITIONAL FACTS


         Lozano told his friend, Mohamed Young, about meeting A.B. Young also knew A.B., and

he   contacted   her   after   speaking   with   Lozano.    A.B. told Young what had happened with Lozano

the night   of   February       7.   When Young asked A.B. if she was going to report Lozano to law

enforcement, she told Young that she was not planning on it and that she just wanted Lozano to

stay away from her.            A few weeks later, Young found out that Lozano had been. arrested so he




6 We are not saying that evidence of a victim' s words or conduct that may indicate freely given
agreement are not relevant at trial. Such evidence may support a defendant' s theory that the victim
could consent or that the defendant reasonably believed that the victim was not mentally
incapacitated    or    physically helpless.
45242 -1 - II




contacted A.B. to ask whether she had reported the incident. A.B. had not reported the incident to


law enforcement, but she promptly did so after her conversation with Young.

         Young made an oral statement to law enforcement in which he discussed his conversation

with   Lozano. Law      enforcement recorded and            transcribed    Young' s      statement.     Lozano attempted


to admit a portion of Young' s transcribed statement at trial after the State used a selection of the

statement    to   refresh   Young' s   memory       while   he testified.       The trial court sustained the State' s


objection that the statement constituted inadmissible hearsay. -

         Lozano also sought to introduce photographs depicting C. C. and A.B. engaging in sexually

suggestive      poses   and   acts    that   were   displayed      on   C.C.'   s   MySpace     page'    at the   time   she


communicated with Lozano. The trial court excluded the photographs as irrelevant; the trial court


further held that even if the photographs had slight probative value, it was substantially outweighed

by the danger of unfair prejudice.

         As part of the jury instructions at the close of evidence, the trial court instructed the jury

that evidence of Lozano' s prior arrest may be considered only for the purpose of what effect, if

any, it had on A.B.

II.      EVIDENTIARY RULING - YOUNG' S STATEMENT


         Lozano argues that the trial court erred by not allowing him to admit the entirety of Young' s

statement after the State introduced an allegedly misleading fragment of the statement during

Young' s testimony. Lozano asserts that the trial court' s ruling violated ER 106, the common law

rule   of completeness,       and    his   constitutional right    to   present     a   defense (   including his right to

confront adverse witnesses).           We disagree.




7 MySpace is a social networking website.

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45242 -1 - II



              We review a trial court' s decision to admit or exclude evidence for an abuse of discretion.

State    v.   Griffin, 173 Wn.2d 467, 473, 268 P. 3d 924 ( 2012). " An abuse of discretion occurs if the


court' s      decision is manifestly      unreasonable or rests on untenable grounds."               Griffin, 173 Wn.2d at


473. "        However, a court ` necessarily abuses its discretion by denying a criminal defendant' s

constitutional rights."'          State   v.   Iniguez, 167 Wn.2d 273, 280, 217 P. 3d 768 ( 2009) (             quoting State

v.   Perez, 137 Wn.         App. 97,      105, 151 P. 3d 249 ( 2007)). " And we review de novo a claim of a


denial     of constitutional rights."           Iniguez, 167 Wn.2d at 280.


              The federal and state constitutions guarantee defendants the right to present a defense,


including the right to introduce relevant. evidence and to confront adverse witnesses through

meaningful cross- examination.                  U. S. CONST.   amend   VI; WASH. CONST.       art.   1, §   22; State v. Jones,


168 Wn.2d 713, 720, 230 P. 3d 576 ( 2010).                  But this right does not extend to presenting irrelevant

or otherwise inadmissible evidence. Jones, 168 Wn.2d at 720; State v. Maupin, 128 Wn.2d 918,

924- 25, 927, 913 P. 2d 808 ( 1996);                State v. Rafay, 168 Wn. App. 734, 800, 285 P. 3d 83 ( 2012);

State v. Classen, 143 Wn. App. 45, 60, 176 P. 3d 582 ( 2008).

              An out- of-court statement admitted for the truth of the matter asserted is hearsay, which is

inadmissible           unless   an exception applies.          ER 801(   c);   ER 802.   The rules of evidence do not


specifically       prohibit     the   admission of self-serving statements;         but, "   self-serving" is a shorthand

way of saying that the statement is hearsay and does not fit recognized exceptions to the hearsay

rule.    State    v.   King, 71   Wn.2d 573, 577, 429 P. 2d 914 ( 1967);           State v. Pavlik, 165 Wn. App. 645,

653- 54, 268 P. 3d 986 ( 2011).                Therefore, a statement' s admissibility must be addressed under the

recognized exceptions to the hearsay rule. Pavlik, 165 Wn. App. at 654. An admission by a party -

opponent is expressly excluded from the hearsay rule, but to qualify, the statement must be offered

against a party and be the party's own statement. ER 801( d)( 2).



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45242 -1 - II




         ER 106 allows a party to supplement portions of a writing or recorded statement offered

by an adverse party with other relevant portions as fairness requires. It provides:

         When a writing or recorded statement or part thereof is introduced by a party, an
         adverse party may require the party at that time to introduce any other,part, or any
         other writing or recorded statement, which ought in fairness to be considered
         contemporaneously with it. .

ER 106.


         Here, it is important to clarify what evidence the trial court actually excluded. At trial, the

State used Young' s transcribed statement to refresh Young' s recollection about whether Lozano

told him that A.B. and C.C. were mad at him. After silently reviewing his own statement, Young

testified from memory, affirming that Lozano told him that one of the girls said " Oh, my god. Get

the hell off of me."   I Report of Proceedings ( RP) at 179. In response, Lozano' s counsel attempted


to have Young read into the record a portion of his own transcribed statement, including the

sentence   that the State   had   used   to   refresh    his   recollection.     The State objected that Young' s

transcribed statement was self-serving hearsay because the offered portion of the statement was

Young' s   recounting   of what   Lozano told him happened             with    A.B., i.e., Lozano' s version of the


facts.   Lozano' s counsel argued that the statement was admissible under ER 106 and should be

allowed out of    fairness to   complete      the   portion admitted earlier.        The trial court sustained the


State' s objection.


         Lozano' s reliance on ER 106 to admit the remaining portion of Young' s transcribed

statement is not well taken because the State did not i'ntroduce any portion of the statement. It was

not admitted into evidence, and Young did not read any part of it into the record.' Further, there is

nothing about the content of Young' s transcribed statement that ought to in fairness be considered

contemporaneously       with    his testimony       on   the    same   topic..    For these   reasons,   ER 106 is


inapplicable to Young' s transcribed statement.


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45242 -1 - II




          Moreover,   Young' s      statement     is   hearsay. It does not qualify as an admission of a party -

opponent    because Young is        not a   party to this      case.   Lozano did not identify a hearsay exception

for the   proffered   hearsay     evidence.      Because Lozano has not shown that the excluded evidence


was admissible, we         hold that the trial   court   did   not err   by   excluding it. ER 802.   Lozano also fails


to show that exclusion of the evidence violated his constitutional right to a defense, which does

not include the' right to present inadmissible evidence. See Jones, 168 Wn.2d at 720.


III.      STATEMENT OF ADDITIONAL GROUNDS


          In his SAG, Lozano makes two assertions that we have already addressed, that the trial

court denied him the right to confront and cross- examine Young by not admitting Young' s

statement, and that the trial court erred by instructing the jury on the " reasonable belief' defense.

We, therefore,   are not required      to address these        matters    further. See RAP 10. 10( a) ( providing that


the purpose of a SAG is to identify and discuss those matters which the defendant/appellant

believes have not been adequately addressed by the brief filed by defendant/appellant' s counsel).

The remaining issues involve allegations of evidentiary error, ineffective assistance of counsel,

and abuse of prosecutorial discretion.


          A.     Evidence of Lozano' s Prior Arrest


          Lozano argues that the trial court erred by allowing the State to introduce evidence of his

prior arrest and that his counsel was ineffective for failing to request a mistrial when the State

violated the trial court' s order limiting evidence of the arrest to the conversation between Young

and A.B. We disagree.


                 1.           ER -404( b) Ruling

          We review the decision to admit evidence of a defendant' s prior bad acts for an abuse of .,

discretion. State     v.   Brown, 132 Wn.2d 529, 571- 72, 940 P. 2d 546 ( 1997).                  The purpose of ER




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45242 -1 - II




404( b) is to exclude evidence that the defendant is a " criminal type" who is acting in accordance

with that propensity. Lough, 125 Wn.2d at 853. ER 404(b) provides that evidence of other crimes,

wrongs, or acts may be admissible for a purpose other than to prove propensity. Lozano is correct

that   evidence of       his   prior arrest raises   ER 404( b)   concerns.   See State v. Acosta, 123 Wn. App.

424, 433, 98 P. 3d 503 ( 2004).              The question is whether the trial court properly balanced the

probative value of the evidence against its prejudicial impact.


         Here, the State sought to introduce the content of a telephone conversation between Young

and A.B., specifically the part of the conversation when Young advised A.B. that Lozano had been

arrested   for   rape.    The prior allegation of rape against Lozano was important to the State' s case


because it was the impetus for A.B. reporting the February 7 incident after a three- week delay.

The trial court denied the State' s motion to use the prior allegation of rape in its case in chief,


ruling that the prejudicial effect of the prior rape allegation outweighed the probative value.

However, the trial court allowed the State to introduce evidence that Lozano had been arrested as


long as the State did not elicit that the arrest was for suspicion of rape. In addition, the trial court

instructed the jury that Young' s statement to A.B. that Lozano had been arrested may only be

considered for the limited purpose of what effect, if any, this evidence had on A.B

         Given the significance of the evidence, the trial court had a tenable basis for concluding

that the probative value of that information outweighed any prejudicial impact the prior arrest

might have had. Accordingly, the trial court properly exercised its discretion.

                    2.           Counsel' s Failure to Request a Mistrial


         Next, Lozano asserts that his counsel was ineffective for failing to request a mistrial when

the State' s law enforcement witness testified that she was assigned to Lozano' s case because she


previously investigated him.              This testimony violated the trial court' s ruling that evidence of




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45242 -1 - II




Lozano' s prior arrest was admissible only in the context of Young and A.B.' s conversation and

only for the      purpose of    its    effect on   A.B.   Lozano' s counsel successfully objected and the trial

court instructed the jury to disregard it. Lozano now contends that these actions were insufficient

and that his counsel was constitutionally ineffective for not demanding a mistrial. We disagree.

             As discussed above, a defendant claiming ineffective assistance of counsel has the burden

to establish deficiency and prejudice. Thomas, 169 Wn.2d at 225- 26. To prevail on his claim that

he received ineffective assistance of counsel because defense counsel failed to request a mistrial,

Lozano must show that had defense counsel requested a mistrial, the outcome would have been

different, i.e., that the trial court would have granted the motion for a mistrial. Thomas, 109 Wn.2d

at 226.


              A trial court should grant a mistrial only when the defendant has been so prejudiced that

nothing       short of a new   trial   can ensure    that the defendant   receives a   fair trial." State v. Jungers,


125 Wn.       App.   895, 901- 02, 106 P. 3d 827 ( 2005). Declaration of a mistrial is a " drastic measure,"


and there are other options a trial court may choose to exercise based on the individual situation.

State   v.   Falk, 17 Wn. App. 905, 908, 567 P. 2d 235 ( 1977). For example, a continuance or curative


instruction may be preferred to mistrial. See State v. Linden, 89 Wn. App. 184, 195, 947 P.2d 1284

 1997); State      v.   Johnson, 124 Wn.2d 57, 76- 77, 873 P. 2d 514 ( 1994).           In deciding whether a trial

irregularity     should result   in    a mistrial, courts examine (   1) its   seriousness, (   2) whether it involved


cumulative evidence, and ( 3) whether an instruction could cure the irregularity. State v. Bourgeois,

133 Wn.2d 389, 409, 945 P. 2d 1120 ( 1997).

             We are not convinced that the trial court would have granted a mistrial had Lozano' s

counsel moved for one. Because the fact of Lozano' s prior arrest was admissible and Young and

A.B. both referenced the prior arrest in their testimony, the law enforcement officer' s brief



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45242 -1 - II




reference to having conducted a previous investigation involving Lozano was. cumulative

information.      Given the context, the irregular testimony was not so serious that it could not be

cured by the court' s instruction to disregard the testimony. In addition, the trial court emphasized

to the jury the limited purpose of the prior arrest evidence by giving a limiting instruction at the

close of the case. Because Lozano does not establish that the outcome of his trial would have been

different if his counsel had requested a mistrial, we hold that Lozano failed to show prejudice


resulting from his counsel' s failure to move for a mistrial. This is fatal to his ineffective assistance

of counsel claim. Strickland, 466 U. S. at 700.

         B.        Exclusion of MySpace Photographs


         Lozano next asserts that the trial court erred in excluding sexually suggestive photographs

which he viewed on MySpace depicting C. C. and A.B. partying on occasions unrelated to the

February 7 crime for which he was convicted. We disagree.

         We review a trial court' s evidentiary decision under the rules of evidence for an abuse of

discretion. Griffin, 173 Wn. 2d          at   473. "   An abuse of discretion occurs if the court' s decision is


manifestly      unreasonable or rests      on untenable grounds."       Griffin, 173 Wn.2d    at   473.. The trial


court conducted an exhaustive and comprehensive analysis on the admissibility of the photographs.

The trial court concluded that the photographs were irrelevant to the issues at trial because there


are no factual similarities between the incident on February 7 and the situations depicted in the

photographs; the photographs did not shed light on whether A.B. was. physically and mentally

capable of consenting to sexual intercourse on the night in question; and, the photographs did not

make   it   more or   less   likely   that Lozano reasonably believed that A.B.       could consent.    Next, the


trial court ruled that even if the photographs were minimally relevant, the photographs should be

excluded under ER 403 because the danger of unfair prejudice substantially outweighed its




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probative value.              Specifically, the trial court was concerned that the jury would focus on the

depictions of A.B. apparently engaging in questionable activities and would put her on trial rather

than Lozano.           Finally, the trial court concluded that admitting the photographs would violate the

rape shield statute, RCW 9A.44. 020.


             On appeal Lozano argues that the photographs show that C. C. lied about only having seen

A.B. drunk         a   few times.       He also argues that excluding the photographs was unfair because it

deprived him           of   the ability to   show " who   these   women     really   are."    SAG at 3.


             Lozano' s first      argument—     that the photographs were relevant to show that C. C. lied about


A.B.'   s    drinking habits— was not brought to the trial court' s attention, and therefore it cannot be

used to undermine the trial court' s ruling on appeal. See State v. Greiff, 141 Wn.2d 910, 924, 10

P. 3d 390 ( 2000). Lozano'            s second argument—          that excluding the photographs was unfair because

it deprived him             of an   opportunity to   show " who         these women really        are"—   is not persuasive.


A.B.' s and C. C.' s character ( other than for truthfulness as witnesses) were not issues at trial. See

State   v.   Hudlow, 99 Wn.2d 1, 10- 11, 659 P. 2d 514 ( 1983) (                a person' s consent to sexual activity in

the past, without more, such as particularized factual similarities to the present occasion, does not

meet    the bare relevancy test).             The scenes depicted in photographs are not similar to the facts of


this   case.      Because the trial court had a tenable basis for concluding that photographs were not

relevant to any issues at trial and that the danger of unfair prejudice to the State' s case substantially

outweighed any minimal relevance of the photographs, the trial court did not abuse its discretion

in excluding the photographs.

             C.         Exclusion of Expert Testimony

             Next, Lozano argues that the trial court erred by excluding his expert' s testimony on

confabulation.              Lozano is   mistaken about      the trial    court' s   ruling.    The prosecutor and defense




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45242 -1 - II




counsel initially disagreed on the admissibility of the expert' s planned testimony, but much of the

disagreement       was resolved without           the trial   court' s   involvement.     The only issue the trial court

was asked to rule on was whether the expert could testify generally about confabulation. The trial

court ruled     in favor   of   Lozano, allowing the           expert' s   testimony    on confabulation.       Contrary to

Lozano' s claim, the trial court did not exclude any portion of his expert' s testimony. Accordingly,

Lozano' s claim fails.


         D. .       Overcharging

         Next, Lozano          argues   that the prosecutor       abused    its discretion     by   overcharging him.      We


disagree.


         Prosecutors have discretion in their charging decisions. State v. Korum, 157 Wn.2d 614,


625, 141 P. 3d 13 ( 2006).         We may not substitute our judgment for the prosecutor's. Korum, 157

Wn.2d at 625- 26.


         Specifically, Lozano argues that he should have been charged with indecent liberties rather

than rape in the second degree because the crimes are similarly worded. Lozano is likely referring

to   a charge of   indecent liberties      under    RCW 9A.44. 100( 1)( b). Although the indecent liberties and


rape   in the   second     degree      statutes   are   similarly     worded,   there   are   important differences.        For


example,    a person       charged under          the indecent liberties        statute must     have   engaged   in "   sexual




contact,"   whereas a person charged under the rape in the second degree statute must have engaged

in " sexual intercourse."        RCW 9A.44. 100( 1);          RCW 9A. 44. 050( 1). "          Sexual contact" is defined as


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

sexual   desire    of either   party    or a   third party." RCW 9A. 44. 010( 2). "           Sexual intercourse ...     has its


ordinary meaning        and occurs upon           any   penetration,     however   slight."    RCW 9A.44. 010( 1)( a).




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         The    evidence     showed   that Lozano had   sexual   intercourse.   with   A.B.       Therefore, the


prosecutor was able to charge Lozano with the more serious crime of rape in the second degree.


The State' s offer to accept a guilty plea for indecent liberties does not change the fact that rape in

the second degree was an appropriate charge. Lozano' s claim of abuse of prosecutorial discretion

is without merit.


         We affirm.




                                                                          t,



                                                                                              f


                                                                   Melnick, J.


We concur:




  0Worswick,           J.




a&         h`
         Jo-         C. J.
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