                                                                          FILED 

                                                                      JANUARY 26, 2016 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31965-2-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
ANAUM DIAZ GUZMAN,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. - Anaum Diaz Guzman appeals his convictions entered after he

was retried on rape charges that had resulted in a hung jury and mistrial when he was first

tried for the crimes. He assigns error to what he contends was a constitutionally flawed

Petrich! instruction and argues that his trial lawyer provided ineffective representation of

counsel. We find no error or ineffective representation and affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       Anaum Diaz Guzman was married at all times relevant to the crimes charged in

this matter to the eldest daughter of a family whom we will refer to pseudonymously as



       1 Statev. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984), overruled in part on
other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated in
part on other grounds by In re Pers. Restraint a/Stockwell, 179 Wn.2d 588, 316 P.3d
1007 (2014).
No. 31965-2-111
State v. Diaz Guzman


the Therouxs. 2 His wife had two younger sisters~ D.~ who was the second oldest girl in

the family~ and R.~ who was the youngest. After D. and R. reported to Mr. and Mrs.

Theroux that they had been the victims of sexual assault by their brother-in-law, Mr. Diaz

Guzman was tried in 2012 on a charge of assault in the fourth degree with sexual

motivation against D., and with rape of a child in the first degree and rape of a child in

the second degree of R. The first degree rape charge was based on rape alleged to have

occurred before R. was 12 years of age~ and the second degree rape charge was based on

a rape alleged to have occurred after R. 's twelfth birthday.

       When the charges were first tried in 2012, the jury found Mr. Diaz Guzman not

guilty of the fourth degree assault charge involving D. It was unable to reach verdicts on

the rape counts involving R. however, and the trial court declared a mistrial. This appeal

is from retrial of the charges of first and second degree rape of R.

       At this second trial~ R. testified she had been sexually abused by Mr. Diaz

Guzman for years, testifying in both generalities and specifics to the type of abuse she

experienced. She testified to multiple acts that could constitute rape during the charging

period for first degree rape (July   26~   2001 through July 25, 2005, when R. was ages 8

through 11), telling the jury that on two separate occasions when Mr. Diaz Guzman had




       2 By standing order, we use initials or pseudonyms to protect the privacy interests
of child witnesses or victims.

                                                  2
      No. 31965-2-III 

      State v. Diaz Guzman 




I     taken her fishing, he had digitally penetrated her. She testified that she was likely 10 or

1     11 years old the first time it happened, and that the second occurrence took place a few

1     months later.
~
!              In support of the charge for rape of a child in the second degree (during the


I     charging period July 26, 2005 to July 25, 2007, when R. was ages 12 and 13), R. testified

      to recurring molestation when she was 12 or 13 years old. Asked by the State to describe
1,    a specific incident, she testified that while staying over at her sister's and Mr. Diaz

1
1.,   Guzman's home one night, Mr. Diaz Guzman came into the bedroom where she was
J

I     sleeping, late at night, and digitally penetrated her. Throughout the abuse, she testified 




I
    that Mr. Diaz Guzman would kiss R. and tell her that he "love[d]" her and later that he 




I

i
      wanted to "make love" to her. Report of Proceedings (RP) (Mar. 13-15,2015) at 168, 


      173. 

i
               The State also presented evidence of "consciousness of guilt" on Mr. Diaz

I
!
      Guzman's part by calling Mr. Theroux to testify to Mr. Diaz Guzman's behavior after


I     learning that D. had posed general and not-yet accusatory questions to her parents about

II    molestation. The State had presented evidence that in December 2010, D. approached

I,
!
      her parents and asked what one should do if they knew someone was being sexually

i     abused.

1
               The State questioned Mr. Theroux about a lunchtime conversation he had had with

      Mr. Diaz Guzman a short time later:

                                                     3
No. 31965-2-111
State v. Diaz Guzman


              [Prosecutor]: What was the mood of the defendant before you went
       for lunch?
              [Mr. Theroux]: Very good. Very happy. Talkative.

               [Prosecutor]: On the way there, did the two of you discuss
       anything?
               [Mr. Theroux]: ... 1 shared with [Mr. Diaz Guzman] this visit that
       [D.] had had with us a couple nights before when she brought up this
       subject of what would one do if one knew someone was being abused.
               [Prosecutor]: When you spoke to the defendant about that, did he
       ask you any questions about it?
               [Mr. Theroux]: No.
               [Prosecutor]: Did he make any remarks?
               [Mr. Theroux]: No.
               [Prosecutor]: What was his demeanor like when you were relaying
       this conversation?
               [Mr. Theroux]: Well, you know, 1 was doing most of the talking, but
       1 at one point noticed he was looking at the floorboards.

               [Prosecutor]: Did~what was the nature of the conversation between
       the two of you during lunch?
               [Mr. Theroux]: You know, it was strained, I think, awkward, or
       silent, mostly we didn't. He seemed very quiet.

              [Prosecutor]: Did he make conversation on your way back to
       Ephrata?
              [Mr. Theroux]: No.
              [Prosecutor]: How did the rest of the afternoon go?
              [Mr. Theroux]: Well, by this time I was tuned in to that we were­
       that something was troubling him, and but toward quitting time, but toward
       quitting time, 1 think we were getting close to our normal chatter back and
       forth.

RP (Mar. 13-15,2013) at 116-18. It was a few days after Mr. Theroux's lunch with Mr.

Diaz Guzman that R. revealed to her parents that Mr. Diaz Guzman had been molesting

her for years ..


                                            4

No. 31965-2-111
State v. Diaz Guzman


       Mr. Diaz Guzman testified on his own behalf, as he had in the first trial, and

denied all allegations of sexual abuse of R.

       During closing arguments, the State reminded the jury of all of the alleged acts of

molestation recounted by R. without identifying a particular act it was relying on for

either charge. The jury found Mr. Diaz Guzman guilty of both counts. He appeals.

                                        ANALYSIS

       Mr. Diaz Guzman assigns error to what he contends was a constitutionally flawed

Petrich instruction and argues that his trial lawyer provided ineffective representation in

several respects. We address the assignments of error in tum.

                               I. Jury Unanimity Instruction

       Because R. testified to several acts during both charging periods, the trial court

gave a "jury unanimity," or Petrich instruction. For the first time on appeal, Mr. Diaz

Guzman assigns error to the instruction given, arguing that jurors could have understood

the instruction to mean that as long as they unanimously agreed that he had committed a

rape in the first charging period based on the same act, they could find him guilty of both

counts; by the same token, if they unanimously agreed that he had committed a rape in

the second charging period based on the same act, they could find him guilty of both

counts. The State responds that read in the context of all of the jury instructions, there

was no possibility of confusion. We agree with the State.




                                               5

No. 31965-2-II1
State v. Diaz Guzman


       "In Washington, a defendant may be convicted only when a unanimous jury

concludes that the criminal act charged in the information has been committed." Petrich,

101 Wn.2d at 569. "When the evidence indicates that several distinct criminal acts have

been committed, but defendant is charged with only one count of criminal conduct, jury

unanimity must be protected." Id. at 572. To adequately protect jury unanimity, either

the State must elect the specific act it is relying on to constitute the crime charged, or

alternatively the court must instruct the jury that all 12 members must unanimously agree

that the same underlying criminal act has been proved beyond a reasonable doubt. Id.;

see also State v. Crane, 116 Wn.2d 315,325,804 P.2d lO (1991). "[F]ailure to follow

one of these options is error, violative of a defendant's state constitutional right to a

unanimous jury verdict and United States constitutional right to a jury trial." Kitchen,

110 Wn.2d at 409.

       Because jury unanimity is a constitutional right, a manifest error may be raised for

the first time on appeal. RAP 2.5(a)(3); Crane, 116 Wn.2d at 325. A conviction

obtained without proper jury unanimity will be reviewed under the constitutional

harmless error analysis. "[T]he error will be deemed harmless only if no rational trier of

fact could have entertained a reasonable doubt that each incident established the crime

beyond a reasonable doubt." Kitchen, 110 Wn.2d at 406.

       Review of a challenged jury instruction is de novo. Gregoire v. City ofOak

Harbor, 170 Wn.2d 628,635,244 PJd 924 (20lO). The instruction will be reviewed

                                               6

No. 3 1965-2-II1
State v. Diaz Guzman


within the context of the jury instructions as a whole. ld.; see also State v. Cordero, 170

Wn. App. 351, 370, 284 P.3d 773, (2012) ("The jury instructions as a whole must

correctly apprise the jury of the law and enable a defendant to argue his defense theory.")

(citing State v. Rice, 102 Wn.2d 120, 123,683 P.2d 199 (1984)).

       The challenged instruction reads:

                                JURY UNANIMITY

               The State alleges that, on more than one occasion, the defendant
       committed acts which could be found by the jury to constitute an element
       of a crime charged.
               To convict the defendant of rape of a child in the first degree, as
       charged in Count 1, at least one particular act of sexual intercourse 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 [sic]
       all the alleged acts have been proved.
               To convict the defendant of rape of a child in the second degree, as
       ,charged in Count 2, at least one particular act of sexual intercourse 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 [sic]
       all the alleged acts have been proved.

Clerk's Papers (CP) at 152 (instruction 7). The instruction would have been clearer had

the instruction stated, "To convict the defendant of rape of a child in the first degree, as

charged in Count 1, at least one particular act of sexual intercourse taking place between

July 26,2001 and July 25,2005, must be proved beyond a reasonable doubt, and you

must unanimously agree as to which act has been proved," and "To convict the defendant

of rape of a child in the second degree, as charged in Count 2, at least one particular act

of sexual intercourse taking place between July 26, 2005 and July 25, 2007, must be

                                              7

No. 31965-2-III
State v. Diaz Guzman


proved beyond a reasonable doubt, and you must unanimously agree as to which act has

been proved."

       While Mr. Diaz Guzman has identified a theoretically possible reading of the jury

unanimity instruction that, read in isolation, could lead to error, it is unlikely that jurors,

exercising their common sense, would have concluded that a unanimous finding of an act

of rape in one charging period would support a guilty verdict on a count involving a

different charging period. The implausibility of Mr. Diaz Guzman's reading of

instruction 7 is even clearer when we consider other instructions given by the court.

       The court's instructions made clear the difference between the two crimes

charged, and the fact that they involved mutually exclusive age ranges for R ..and

mutually exclusive charging periods. Instruction 4 provided:

                                 RAPE OF A CHILD

              A person commits the crime of rape of a child when he or she has
       sexual intercourse with a person deemed at law to be too young to consent,
       and not married to the accused. The age of the younger person and the
       difference in the parties' ages determines different degrees of rape of a
       child. When the younger person is less than 12 years old, and the older
       person is at least twenty-four months older, the crime occurs in the first
       degree. When the younger person is at least twelve and less than 14 years
       old, and the older person is at least 36 months older, the crime occurs in the
       second degree.

CP at 149.




                                               8

No. 31965-2-II1
State v. Diaz Guzman


       The court gave the following instruction addressing the jury's duty in deciding the

separate charges; jurors would have to ignore the highlighted language of this instruction

in order to construe instruction 7 in the manner suggested by Mr. Diaz Guzman:

                         CHARGES AND BURDEN OF PROOF

              The defendant is charged with rape ofa child in the first degree in
       Count 	1, and with rape of a child in the second degree in Count 2. You
       must decide each charge separately, as ifit were a separate trial. Your
       verdict on one count should not control your verdict on the other count.
              Every crime consists of several parts, called "elements." The
       elements of each count will be specified for you later in these instructions.
       The defendant's plea of not guilty puts in issue, to be decided by the jury,
       each element of each crime charged. The State is the plaintiff and has the
       burden of proving each of these elements beyond a reasonable doubt. The
       defendant has no burden of proving that a reasonable doubt exists.

CP at 148 (instruction 3) (emphasis added).

       The key "to convict" instructions also clearly required a finding of sexual

intercourse during the relevant charging period in order to find Mr. Diaz Guzman guilty

of each count. Again, jurors would have to ignore the highlighted language in the

following two instructions given by the court in order to construe instruction 7 in the

manner suggested by Mr. Diaz Guzman:

               COUNT 1: RAPE OF A CHILD IN THE FIRST DEGREE

             To convict the defendant of rape ofa child in the first degree, as
       charged, the State must prove each of the following elements of the crime
       beyond a reasonable doubt:
             1. 	    That on or between July 26, 2001 and July 25, 2005, the
                     defendant had sexual intercourse with [R.];


                                              9

No. 31965~2-III
State v. Diaz Guzman


             2. 	    That [R.} was at the time ofsuch intercourse less than twelve
                    years old and not married to the defendant;
             3. 	    That [R.] is at least twenty-four months younger than the
                     defendant; and
             4. 	    That the act occurred in the State of Washington.
             If you find from the evidence that each of these elements has been
      proved beyond a reasonable doubt, then it will be your duty to return a
      verdict of guilty as to Count 1.
             On the other hand, if you have a reasonable doubt as to anyone of
      these elements, then it will be your duty to return a verdict of not guilty as
      to Count 1.

CP at 150 (instruction 5) (emphasis added).

             COUNT 2: RAPE OF A CHILD IN THE SECOND DEGREE

              To convict the defendant of rape of a child in the second degree as
      charged in Count 2, the State must prove each of the following elements of
      the crime beyond a reasonable doubt:
              1. 	    That on or between July 26, 2005 and July 25, 2007, the
                     defendant had sexual intercourse with [R.};
              2. 	    That [R.} was at least twelve years old but was less than
                     fourteen years old at the time ofthe sexual intercourse and
                     was not married to the defendant;
              3. 	   That [R.] is at least thirty-six months younger than the
                     defendant; and
              4. 	   That this act occurred in the State of Washington.
              If you find from the evidence that each ofthese elements has been
      proved beyond a reasonable doubt, then it will be your duty to return a
      verdict of guilty as to Count 2.
              On the other hand, if, after weighing all the evidence, you have a
      reasonable doubt as to anyone of these elements, then it will be your duty
      to return a verdict of not guilty as to Count 2.

CP at 151 (instruction 6) (emphasis added) .

      .Read as a whole-as they must be-the court's instructions to the jury made clear

that the jury needed to unanimously agree on one particular act of sexual intercourse

                                               10 

No. 31965-2-III
State v. Diaz Guzman


within the charging period for the respective count. In the context of the other jury

instructions, no reasonable juror would have read the Petrich instruction in the manner

suggested by Mr. Diaz Guzman.

                           II. Ineffective Assistance o/Counsel

       Mr. Diaz Guzman next argues that he received ineffective assistance of counsel,

pointing to the following allegedly deficient performance:

      •       A failure to object when the State referred in opening testimony and
      later presented evidence of statements D. had made to Mr. and Ms.
      Theroux, which were inadmissible and prejudicial hearsay;

      •      A failure to object to Ms. Theroux's testimony to a conversation
      with D. and R. in which, in violation of an in limine order, she revealed that
      D. also claimed to be a victim of sexual assault; and

      •     A failure to effectively impeach R. with inconsistent statements she
      had made about Mr. Diaz Guzman's actions.

      "Washington applies the two-part Strickland test in determining whether a

defendant had constitutionally sufficient representation." State v. Tilton, 149 Wn.2d 775,

783,72 PJd 735 (2003) (citingStricklandv. Washington, 466 U.S. 668,687,104 S. Ct.

2052,80 L. Ed. 2d 674 (1984)). A defendant must show both that he received deficient

representation and that he suffered some prejudice as a result. State v. Mierz, 127 Wn.2d

460,471,901 P.2d 286 (1995) (citing Strickland, 466 U.S. at 686-89).

      Deficient performance is determined using an objective standard of

reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). We



                                            11 

No. 31965-2-111
State v. Diaz Guzman


presume that counsel's representation was effective, and the defendant has the burden to

show that, based on the record, there are no '" legitimate strategic or tactical reasons'"

for the challenged conduct. State v. Emery, 174 Wn.2d 741,755,278 P.3d 653 (2012)

(quoting State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995)).

       Prejudice will result if '" counsel's errors were so serious as to deprive the

defendant of a fair trial. ", Mierz, 127 Wn.2d at 471 (quoting Strickland, 466 U.S. at

687). "This showing is made when there is a reasonable probability that, but for

counsel's errors, the result of the trial would have been different." [d.

                        Evidence ofD's query about "what to do"

       During its opening statement, the State explained to the jury that they were "going

to hear" evidence that D. approached her parents and asked what to do if she knew

someone was being molested. RP (Mar. 13-15, 2013) at 62. It went on to explain that a

few days later Mr. Diaz Guzman and Mr. Theroux had lunch together, and that during

that lunch Mr. Theroux told the defendant that "it's really hard being a parent. [D.] came

to us last night, she wanted to talk about, you know, what if you knew somebody was

being molested, what would you do." Id. at 63. It told the jury, "[Mr. Theroux] will tell

you that when he relayed this conversation to the defendant, the defendant got very quiet

... which was out of character for him." [d. In thereafter presenting its witnesses, the

State elicited Mr. Theroux's testimony about his conversation with Mr. Diaz Guzman and

Mr. Diaz Guzman's behavior in apparent response.

                                              12
No. 31965-2-111
State v. Diaz Guzman


       Mr. Diaz Guzman argues that his trial lawyer should have objected to evidence

that D. approached her parents with a question about what to do about molestation and

evidence that Mr. Theroux repeated D.'s concerns to him. He argues that the evidence

was inadmissible hearsay-although when his trial lawyer did object to Ms. Theroux's

testimony about the same conversation with D., his hearsay objection was overruled. The

State points out that D.'s statement to her parents was not being offered for its truth.

       On appeal, Mr. Diaz Guzman focuses his challenge on his trial lawyer's failure to

object to the evidence as irrelevant under ER 401 and unduly prejudicial under ER 403.

He argues that because he had moved in limine to exclude any evidence ofD.'s

allegations that she was sexually assaulted, the jury did not have a complete context for

D.'s statement; they might misconstrue it as suggesting that D. was aware ofR.'s

allegations rather than making an oblique inquiry about her own situation.

       Evidence is relevant if it has "any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than

it would be without the evidence." ER 401. The general rule is "[a]U relevant evidence

is admissible." ER 402. Relevant evidence will not be admissible if "its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury." ER 403. The process of weighing probative value against

prejudicial effect "is necessarily a matter addressed to the discretion of the trial court."

State v. Chase, 59 Wn. App. 501, 507-08, 799 P.2d 272 (1990).

                                              13
No. 31965-2-111
State v. Diaz Guzman


       To establish ineffective assistance of counsel for failing to object, a defendant

must ~~show that the failure to object fell below prevailing professional norms, that the

objection would have been sustained, and that the result of the trial would have been

different if the evidence had not been admitted." State v. Sexsmith, 138 Wn. App. 497,

509, 157 P.3d 901 (2007).

       The problem with Mr. Diaz Guzman's argument is that the principal relevance of

the line of questioning, and the reason the evidence was offered by the State, was to point

to evidence of Mr. Diaz Guzman's reaction to the report that D. had made the inquiry.

The reaction, which the State argued reflected guilty knowledge, was relevant regardless

of the circumstances or state of mind that prompted D. to make the inquiry.

       A witness may testify about a defendant's reaction ifit isprefaced by a proper

foundation, such as personal observations of the defendant's conduct that are factually

recounted to the jury. State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021 (1988). And

evidence of consciousness of guilt is generally admissible if relevant. See, e.g., State v.

Allen, 57 Wn. App. 134, 143, 788 P.2d 1084 (1990) (where the court found that giving an

officer a false name indicated guilty knowledge and was therefore relevant evidence).

The State expected to be able to offer the evidence (it had been admitted in the first trial 3)


       3  At the first trial in February 2012, trial counsel for Mr. Diaz Guzman objected to
this testimony on the grounds that it was "[Mr. Theroux's] determination of [Mr. Diaz
Guzman's] mental state." RP (Feb. 23-28, 2012) at 398. The court overruled the
objection, explaining that the testimony was a description of Mr. Diaz Guzman's

                                              14 

No.31965-2-III
State v. Diaz Guzman


and a statement concerning a "witness's expected testimony" is permissible during

opening remarks. State v. Thorgerson, 172 Wn.2d 438,444,258 P.3d 43 (2011) (citing

State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).

       Mr. Diaz Guzman is unable to demonstrate that an objection under ER 401 or 403

would have been sustained; accordingly, he has not shown that his trial lawyer's failure

to object was deficient performance. If one of the two prongs of the Strickland test is

absent, this court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917

P .2d 563 (1996).

               Ms. Theroux's testimony suggesting that D. also claimed to
                              be a victim ofsexual assault

       Mr. Diaz Guzman next argues he received ineffective assistance of counsel when

his lawyer failed to object or move for a new trial when Ms. Theroux suggested in her

testimony that D. had been a victim of molestation as well. He argues this was in

violation of a "motion" in limine. Br. of Appellant at 4. Our record includes a motion in

limine to exclude testimony about D.' s allegations, although it includes no order.

Nonetheless, the State concedes that prejudicial testimony about D.'s allegations, of

which Mr. Diaz Guzman was acquitted, would be problematic. It argues, however, that

the testimony of Ms. Theroux complained of was fleeting, and not prejudicial.

       At issue is the following testimony by Ms. Theroux:


demeanor as it appeared to Mr. Theroux Id.

                                             15
No. 3 I 965-2-II1
State v. Diaz Guzman



          [Prosecutor]: Before lunch, [Ms. Theroux], we had talked about when
      [R.] had come to talk to you to tell you about these allegations. When she
      came to you, could you relate to us, not what she said, but what you did in
      response to what she said.
          [Ms. Theroux]: This is when [R.] came and said that she had something
      to tell us?
          [Prosecutor]: Yes.
          [Ms. Theroux]: Yes. So later that evening, when we were home, we
      went to [Do's] bedroom, and there the girls were sitting on the floor, and
      they said that­
          [Prosecutor]: Just­
          [Ms. Theroux]: It was apparent that they had something-go ahead.
          [Prosecutor]: Okay. Go ahead.
          [Ms. Theroux]: It was apparent that they had something very important
      to say to us. And so it was revealed that­
          [DEFENSE COUNSEL]: I'll object to the narrative.
          THE COURT: Right. You're not permitted to relate what you were
      told.
          [Ms. Theroux]: Okay.
          THE COURT: That's why [the prosecutor] asked you not what you
          were told, but what you did in response to what you were told.
          [Ms. Theroux]: I asked them questions to determine the extent of the
      molestation, and-
          BY [THE PROSECUTOR]:
          [Prosecutor]: Okay. How long did you talk-how long did this talk go
      on for?
          [Ms. Theroux]: Two or three hours.
          [Prosecutor]: When you were speaking to the girls, what was [R.' s]
      demeanor like?
          [Ms. Theroux]: She was scared and shaky, quiet, determined.
          [Prosecutor]: And as a result of what you learned, what did you do?
          [Ms. Theroux]: I started reassuring them that they-that there was
      hope, that we--that they weren't bad girls, that- that they were worth­
      were worthy.

RP (Mar. 13-15, 2013) at 85-86.




                                          16 

No. 31965-2-111
State v. Diaz Guzman


       The concern is with Ms. Theroux's continuing references to "them" and "they."

Most of those references do not imply that D. was a victim, but only reflect the fact that

Ms. Theroux was speaking with both girls at once. Two statements are problematic: "I

started reassuring them that they-that there was hope, that we-that they weren't bad

girls, that-that they were worth-were worthy," and "I asked them questions to

determine the extent of the molestation." RP (Mar. 13-15,2013) at 85-86 (emphasis

added).

       It is commonplace in trials for some witnesses, at some points, to misspeak or to

speak imprecisely. Lawyers sometimes misspeak or speak imprecisely when in

argument. When isolated misstatements are made in the course of a trial, jurors can

ordinarily be trusted to recognize them as mistakes and ignore them. Here, of course,

Ms. Theroux probably wasn't misspeaking, she was probably just forgetting that D.'s

allegations should not be mentioned. But the jurors would reasonably have assumed-if

they heeded the "thems" and "theys" at all-that she was not implying that D. had been

molested. The problematic testimony consisted of two statements appearing in a 348­

page transcript, taking place during a trial in which all other evidence and argument

concerned Mr. Diaz Guzman's molestation of only R. While the testimony in isolation

admits of the inference that both R. and D. disclosed allegations of sexual abuse, that

would not be a reasonable inference in the context of the entire trial.




                                             17
No. 31965-2-III
State v. Diaz Guzman


       "If it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice ... that course should be followed." Strickland, 466 U.S. at 697.

Mr. Diaz Guzman has failed to show that he was prejudiced by Ms. Theroux's testimony,

nor has he established that the trial court would have granted a motion for a mistrial. "A

mistrial should be granted when the defendant has been so prejudiced that nothing short

of a new trial can [e]nsure that the defendant will be tried fairly." State v. Gamble, 168

Wn.2d 161,177,225 P.3d 973 (2010). Mr. Diaz Guzman has not demonstrated a denial

of effective representation in this second instance.

                                   Ineffective impeachment

       Finally, ·Mr. Diaz Guzman argues he received ineffective assistance of counsel

when his trial lawyer failed to effectively impeach R. There were discrepancies between

her trial testimony and information she had provided to investigating officers. Mr. Diaz

Guzman's lawyer in the first trial had highlighted the discrepancies by calling the

investigating officers to contradict her testimony at trial. In the trial below, Mr. Diaz

Guzman did not prove the discrepancies in the same way, relying instead on transcripts of

police interviews ofR. and confronting her with the discrepancies. Mr. Diaz Guzman

argues that this method of impeachment was inferior, ineffective, and deficient; as

evidence of its deficiency, he points to the fact that his first trial on the charges resulted in

a hungjury.




                                               18
No. 31965-2-111
State v. Diaz Guzman


       The State counters that "directly confronting the complaining witness about the

discrepancies between her interviews with law enforcement and her subsequent trial

testimony is much more powerful [than] turning the contradictions into what would

appear to be a 'she says, he says she said' contest." Br. ofResp't at 14.

       We do not agree with the State that the method of impeachment used below "is

much more powerful;" both approaches are generally accepted methods of impeachment.

But we do not have to engage in an analysis of which method is more effective because a

critical fact undercutting Mr. Diaz Guzman's argument of deficient representation is the

fact that this was a retrial.

       A strategy that plays out brilliantly in a first trial can never be relied on to play out

brilliantly in a retrial. Opposing counsel and witnesses know what to expect.

Prophylactic measures will be taken. Witnesses are likely to be better prepared on weak

points. The State will take measures to neutralize problems. When the State has the

opportunity to inoculate in the second trial against what was devastating contradiction by

law enforcement in the first, the same contradiction by law enforcement might prove

tedious to the jury in the second trial.

       For that reason, a reasonable strategy in a second trial can be to employ a different

strategy, to preserve some element of surprise. Accordingly, even if Mr. Diaz Guzman's

trial lawyer below might favor the approach to impeachment pursued in the first trial, the




                                              19 

No. 3 I 965-2-III
State v. Diaz Guzman


fact that the State and its witnesses had seen that approach before would be reason

enough to try something else.

      The strategy followed below was not ineffective. The following is an example of

the impeachment:

             [Defense Counsel]: [R.], you testified yesterday that the defendant,
      you claim, was able to place his penis in your vagina?
             [R.]: I did.
             [Defense Counsel]: Do you recall Detective Bohnet asking you
      whether or not the defendant ever had intercourse with you back in January
      of2011? 

             [R.]: At the interview? 

             [Defense Counsel]: Yes. 

             [R.]: I don't remember, no. 


             [Defense Counsel]: Ma'am, could I draw your attention to page 13.
      And again, I think that has a copier mark, a stray mark on it about halfway
      through the page, the lines aren't numbered, but do you see an entry by
      Sergeant Bohnet where he says, "Did he ever rape you?" Do you see that
      entry?
             [R.]: I did. 

             [Defense Counsel]: Okay. My question is do you see that entry? 

             [R.]: I do, yes. 


             [Defense Counsel]: Has that exhibit been able to refresh your
      recollection about a question asked to you about intercourse with the
      defendant?
             [R.] : Yes, it does. 

             [Defense Counsel]: And did Sergeant Bohnet ask you: Did you have 

      intercourse with the defendant?
             [It]: He did, yes.
             [Defense Counsel]: And did you answer-what was your answer to
      that question? 

             [R.]: I said no. But the thing is that­ 

             THE COURT: No, that's all right. 

             [DEFENSE COUNSEL]: I appreciate your answer. 


                                           20
No. 3 I 965-2-III
State v. Diaz Guzman


                THE COURT: You've answered the question. Thank you.

RP (Mar. 13-15,2013) at 239-41. The same method was used to cross-examine R. about

other inconsistencies between her trial testimony and her previous interviews with police

officers, including a statement about whether or not Mr. Diaz Guzman threatened her.

         '" Deficient performance is not shown by matters that go to trial strategy or

tactics.'" State v. Lewis, 156 Wn. App. 230, 242, 233 P.3d 891 (2010) (internal

quotation marks omitted) (quoting State v. Cienfuegos, 144 Wn.2d 222,227,25 P.3d

1011 (2001)). The fact that Mr. Diaz Guzman's lawyer elected to handle impeachment in

a different but generally accepted fashion in the second trial can be explained as

reasonable trial strategy. Here again, deficient performance is not shown.

                                    III. Cumulative Error

         Mr. Diaz Guzman asks that if we find no single reversible error, we consider

whether cumulative error deprived him of a fair trial. A court may sometimes determine

that although certain errors standing alone "might not be of sufficient gravity to constitute

grounds for a new trial, the combined effect of the accumulation of errors" does require a

new trial. State v. Cae, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). We have found no

error.

         Affirmed.




                                              21 

No. 31965-2-111
State v. Diaz Guzman


      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.



                                                Siddoway, C.J.

WE CONCUR:




Brown, J.*   10

l '".. . . r"-<.-tJ3 tN..":i ~,
Lawrence-Berrey, J.
                             \\
                              (
                                   j




       * Judge Stephen M. Brown was a member of the Court of Appeals at the time
argument was heard on this matter. He is now serving as a judge pro tempore of the
court pursuant to RCW 2.06.150.

                                           22
