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                                                                      FILED
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                                                            In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division III




lI            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION THREE

     In the Matter of the Personal Restraint of   )         No. 33998-0-111
                                                  )
     ALLEN ROBERT TREVINO,                        )
                                                  )         UNPUBLISHED OPINION
                           Petitioner.            )
                                                  )

           PENNELL, J. -    Allen Trevino was convicted of first degree rape of a child and

     communicating with a minor for immoral purposes. His conviction was upheld on appeal

     to this court in an unpublished decision. State v. Trevino, No. 30721-2-111 (Wash. Ct. App.

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     Jul. 1, 2014) (unpublished), http://www.courts.wa.gov/opinions/pdf/307212.unp.pdf.

lI   Mr. Trevino now has filed a timely personal restraint petition (PRP), alleging additional

t    infirmities in his conviction. We reject Mr. Trevino's challenges and dismiss his PRP.

I                                           ANALYSIS 1

           A petitioner mounting a collateral challenge to a settled judgment faces a high

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     hurdle. Typically, relief requires showing "either that he or she was actually and

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I           1 The facts of Mr. Trevino's case were set forth in our prior opinion and need not

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     be repeated. The circumstances giving rise to each of Mr. Trevino's legal claims are
     addressed as part of our analysis for each claim.


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In re Pers. Restraint of Trevino


substantially prejudiced by constitutional error or that his or her trial suffered from a

fundamental defect of a nonconstitutional nature that inherently resulted in a complete

miscarriage of justice." In re Pers. Restraint of Finstad, 177 Wn.2d 501, 506, 301 P.3d

450 (2013). The burden falls on the petitioner to make these showings by a

preponderance of the evidence. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d

872 (2013).

Jury instructions

       At trial, the State was permitted to introduce evidence under ER 404(b) of two

uncharged incidents between Mr. Trevino and the victim. The jury was provided the

following limiting instruction:

       Evidence of defendant's uncharged offenses has been admitted for the sole
       purpose of showing the defendant's alleged sexual desire for [the victim],
       and should not be considered by you for any other purpose. The defendant
       is not on trial for any act, conduct, or offense not charged in the
       Information.

Clerk's Papers (CP) at 176 (emphasis added).

       Although defense counsel explicitly approved of this instruction at trial, Mr.

Trevino now argues it was error for the limiting instruction to characterize his prior bad

acts as "uncharged offenses." Id. He asserts that the reference to uncharged and

unproven conduct as an "offense" violated his constitutional right to a fair trial.



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 i   In re Pers. Restraint of Trevino
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l           Regardless of whether the wording of the court's instruction was ideal,2 PRP relief
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     is unwarranted. Because the term "offenses" was modified by the word "uncharged,"

!    there was no risk the jury might have mistakenly believed that Mr. Trevino had been
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     previously convicted of an offense similar to the one on trial. In addition, because the

     uncharged acts were not labeled "sex offenses," there was no implication that Mr.
l    Trevino had been labeled a sex offender. As worded, the instruction did not create a
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I    significant risk that the jury would misunderstand the relevance of the prior act evidence
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I    and convict Mr. Trevino on the basis of bad character.


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     Undisclosed evidence


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            Mr. Trevino asserts the State committed a Brady3 violation by not turning over an

1    Accurint residential history report to the defense. He argues the report was impeachment

II   material, was willfully withheld by the State, and the nondisclosure of the report


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              While it may have been preferable for the trial court to refer to the 404(b)
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     evidence as "uncharged acts," the word choice was not unheard of. California's model
     instruction permits using the word "offense" in its prior bad act instruction. Judicial
     Council of Cal., Criminal Jury Instructions 375, at 144 (2016),
t    http://www.courts.ca.gov/partners/documents/calcrim_2016_edition.pdf. The Ninth
l    Circuit permits using the arguably more offensive word "crimes." Ninth Circuit Jury
     Instructions Comm., Manual of Model Criminal Jury Instructions for the District Courts of
     the Ninth Circuit 4.3, at 60 (2010 ed., rev. Mar. 2017), http://www3.ce9.uscourts.gov/jury-

I    instructions/sites/default/files/WPD/Criminal_Instructions_2017_ 03 .pdf.
            3 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).


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    In re Pers. Restraint of Trevino


    prejudiced the outcome of trial.

           Mr. Trevino's claim fails because he cannot show that the Accurint report would

    not have been attainable to him through due diligence. In re Pers. Restraint of Benn,

    134 Wn.2d 868, 916-17, 952 P.2d 116 (1998). The record confirms the existence of the

    Accurint report was disclosed to the defense through Detective Damon Jansen's written

    report. At trial, the defense was aware that the victim's residential history was uncertain

    and had sufficient information to locate the Accurint report. Accordingly, there was no

    Brady violation. 4

    Pre-arrest interview

           Mr. Trevino asserts it was a violation of his right against self-incrimination for

    Detective Jansen and the prosecutor to comment about his refusal to come to Richland for

    an interview. Because Mr. Trevino had not yet been arrested and never expressly invoked

    his right to silence, his arguments are foreclosed by Salinas v. Texas,_ U.S._, 133

    S. Ct. 2174, 186 L. Ed. 2d 376 (2013). See State v. Magana, 197 Wn. App. 189, 194-95,

    389 P.3d 654 (2016).




           4
             As explained below, in our discussion of Mr. Trevino's claim that defense
    counsel was ineffective for not eliciting witness testimony regarding the victim's
    residential history, the absence of information contained in the Accurint report was not
    prejudicial.
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Ineffective assistance of counsel

       Mr. Trevino argues defense counsel was ineffective for: (1) not calling an expert

memory witness, (2) failing to interview potential witnesses, (3) eliciting or not objecting

to impermissible testimony from the victim and the victim's grandmother, (4) admitting

Mr. Trevino's guilt in closing, and (5) not objecting to Detective Jansen's testimony about

the police interview. None of his claims warrant relief.

       Memory expert witness

       Mr. Trevino first argues defense counsel was ineffective for not calling an expert

witness on memory issues. This argument fails, as defense counsel's conduct can be

characterized as strategic. State v. Ky/lo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). The

defense theory was not that the victim had sincerely but inaccurately misremembered

incidents of abuse. It was that the victim was intentionally lying and retaliating against

Mr. Trevino. While Mr. Trevino has not proffered what a memory expert would have

said, it appears that expert testimony would have detracted from the defense and

contributed very little to the defense theory. Mr. Trevino has not shown any ineffective

assistance on this basis.

       Other potential witnesses

       Mr. Trevino has compiled declarations from several individuals who could have


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I      No. 33998-0-111
       In re Pers. Restraint of Trevino
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 '1I   contradicted the victim's summary of her residential history. Mr. Trevino alleges that


II     counsel was ineffective for failing to interview individuals and call them as witnesses at

       trial. Again, Mr. Trevino has not shown that defense counsel's decision was not
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       reasonably strategic.
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I             The impeachment value of Mr. Trevino's proffered witnesses was limited. The
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       witnesses had no information regarding whether Mr. Trevino had assaulted the victim and

       the discrepancies created by their testimony would not have changed the victim's age at

       the time of the offense conduct.

              At the same time, the testimony proffered by Mr. Trevino in his PRP could have

       damaged the defense case. The witnesses would have contradicted Mr. Trevino's own

       memory of dates and places, and thus undermined his credibility. 5 They also would have

       undercut defense counsel's ability to argue that the victim had pieced together her
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II     residential history in order to ensure she was living in Washington while still young

       enough to fall under the auspices of first degree rape of a child and first degree child




              5
                The witnesses placed the victim and her family at various locations in the Tri-
       Cities through at least June 2004. Yet Mr. Trevino testified that he attended trucking
       school in Pasco for two weeks and received his certificate on his birthday in February
       2003. He further testified that the victim and her family moved to Portland with him
       shortly thereafter.

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No. 33998-0-III
In re Pers. Restraint of Trevino


molestation. 6

       It is the prerogative of defense counsel to determine whether impeachment

testimony would have been helpful, or merely cumulative and distracting. This is not

something we will now revisit.

       Impermissible testimony

       Mr. Trevino argues defense counsel elicited impermissible opinion testimony from

the victim's mother and grandmother when he asked on cross-examination if they were

"sold" by the victim's allegations. Verbatim Report of Proceedings (VRP) (Dec. 13,

2011) at 33-34, 76. He also claims defense counsel should have objected to the victim's

testimony describing Mr. Trevino as a heavy drinker and using a crowbar in a bar fight.

       The majority of Mr. Trevino's allegations fail because defense counsel's conduct

was reasonably strategic. As to the testimony from the victim's mother and grandmother,

defense counsel was trying to highlight how neither woman inquired into any particulars

nor really questioned the victim's allegations. With respect to the testimony about Mr.

Trevino being in a bar fight and using a crowbar, this was elicited in response to the




       6
         Because the victim turned 12 years of age in December 2003, Mr. Trevino's
proffered witnesses would have placed the victim within Washington during her entire
sixth grade year and for a substantial period of time prior to her 12th birthday. Yet under
Mr. Trevino's testimony, the victim would have lived in Oregon prior to the age of 12.

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No. 33998-0-111
In re Pers. Restraint of Trevino


victim's explanation that she came forward with her allegations because one of her

younger sisters started stating she felt uncomfortable with Mr. Trevino around. Defense

counsel sought to show the jury that the younger sister was not uncomfortable with Mr.

Trevino because of sexual advances or abuse, but because she saw him with a crowbar.

       While it may not have been strategic for defense counsel to permit the victim's

comment that Mr. Trevino "drank a lot," this small piece of testimony was not prejudicial.

VRP (Dec. 13, 2011) at 54. The remark was made in the context of why the relationship

between Mr. Trevino and the victim's mother was strained. It had little to do with the

allegations of sexual assault. Had defense counsel objected, the trial court would have, at

most, issued an instruction directing the jury to disregard the testimony. The outcome of

the trial would not have been compromised.

       Admission of guilt

      Contrary to Mr. Trevino's argument, defense counsel did not admit to Mr.

Trevino's guilt during closing. Defense counsel was simply addressing any possible

confusion the jury might have over the court's ER 404(b) instruction. When defense

counsel said "something happened in Oregon," he was not saying Mr. Trevino had

committed a crime. VRP (Dec. 15, 2011) at 96. Defense counsel was merely pointing

out that Mr. Trevino could not be convicted based on allegations arising in Oregon. This


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     No. 33998-0-III
     In re Pers. Restraint of Trevino


     explanation did not constitute ineffective assistance.

            Police detective's testimony

            Mr. Trevino last argues defense counsel should have objected to testimony by

     Detective Jansen. The detective speculated that Mr. Trevino agreed to travel no further

     than Umatilla, Oregon for a meeting with law enforcement because Mr. Trevino thought

     it would be harder to extradite him. We agree the detective's testimony as to Mr.

     Trevino's state of mind was objectionable. However, as explained above, the State was

     permitted to introduce evidence of Mr. Trevino's pre-arrest silence and the fact that Mr.

     Trevino appeared to be avoiding police contact. Even assuming the jurors were familiar

     with the concept of extradition, little was added to the State's case by the detective's

     speculation that Mr. Trevino was specifically motivated to avoid extradition. Mr. Trevino

     has not shown prejudice.

     Prosecutorial misconduct

            Mr. Trevino asserts the prosecutor committed misconduct when she: (1) argued

     how men like Mr. Trevino groom their victims, (2) argued that children remember things

     based on what grade they were in, (3) commented on the lack of defense evidence and

     impugned the integrity of defense counsel, (4) misstated facts in evidence, (5) vouched

     for the victim's credibility, and (6) misstated the burden of proof. To the limited extent
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In re Pers. Restraint of Trevino


that any misconduct occurred, it does not warrant relief.

       Argument regarding grooming

       Mr. Trevino claims the prosecutor committed misconduct when she argued that

men like Mr. Trevino groom their victims, and then further argued that is what happened

in this case. In essence, Mr. Trevino's argument is that the prosecutor argued facts

outside the record. 7 We agree with Mr. Trevino's characterization of the prosecutor's

statements and also agree they were improper.

       While a prosecutor has wide latitude in closing argument, he or she may not act as

a witness or draw inferences based on expertise outside the realm of common knowledge.

The behavior patterns of sexual predators is not something that falls within common

knowledge. For that reason, "expert testimony is required if the State intends to rely on

the grooming process to prove and argue its case." In re Pers. Restraint of Phelps,

197 Wn. App. 653, 676, 389 P.3d 758 (2017). Because no expert testified in Mr.

Trevino's case, it was inappropriate for the prosecutor to argue that Mr. Trevino engaged




       7 While the prosecutor did not use the term "grooming," the substance of her
statement amounted to an explanation of the grooming process. The prosecutor stated:
"This is the progression of these types of crimes. This is what men like Mr. Trevino do.
You start out slowly. You get them comfortable talking about sex. You get them
comfortable thinking about sex. You want them to be comfortable around you sexually."
VRP (Dec. 15, 2011) at 74.

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No. 33998-0-III
In re Pers. Restraint of Trevino


in acts of grooming.

       Although the prosecutor should not have referenced grooming in closing

argument, reversal is unwarranted. This case is unlike Phelps. The concept of grooming

did not pervade Mr. Trevino's case. The prosecutor only mentioned the issue once during

summation. Mr. Trevino has not met his burden of establishing that the prosecutor's error

substantially prejudiced his case.

       Argument on how children remember things

       Similar to his argument regarding grooming, Mr. Trevino contends the prosecutor

erred by arguing that children remember things based on their grade in school. Mr.

Trevino claims this type of argument can only be supported by expert testimony. Here,

we disagree. The prosecutor's argument did not fall outside the realm of common

experience. The claim that a child's chronology of events is anchored to his or her grade

in school is something a reasonable juror can assess according to his or her common

sense. Furthermore, during her testimony, the victim specifically agreed that she was the

kind of person who remembered things according to where she was in school. The

prosecutor's line of argument was not inappropriate.

       Comment on defense theory of the case

       During closing argument, the prosecutor used the words "silly," "ridiculous," and


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     In re Pers. Restraint of Trevino


     "ludicrous" to describe the defense theory of the case. VRP (Dec. 15, 2011) at 83-84, 98.

     While these descriptors may have been colorful, they were limited to the substance of the

     defense case; they were not directed at Mr. Trevino or defense counsel. Accordingly, no

     misconduct occurred. State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997) ("The

     prosecutor's characterization of the defense theory as 'ludicrous' was reasonable in light

     ofthe evidence."); State v. Anderson, 153 Wn. App. 417, 430, 220 P.3d 1273 (2009)

     (characterization of defendant's testimony as"' made up on the fly,' 'ridiculous,' and

     'utterly and completely preposterous'" not improper).

            Misstating facts in evidence

            Mr. Trevino also argues the prosecutor argued facts not in evidence by stating Mr.

     Trevino had told the jury he read the incest story to the victim at her residence on Snow

     Avenue. We disagree. The jury was aware of Mr. Trevino's testimony. This was not an

     extrajudicial fact. The prosecutor appears to have simply misspoken when she said "he"

     (i.e. Mr. Trevino), read the story instead of "she" (i.e. the victim). VRP (Dec. 15, 2011)

     at 74. The jury would have been aware of this misstatement since they had sat through all

     the testimony. Nothing improper occurred.

           Mr. Trevino also claims the prosecutor misrepresented facts in evidence when she
l    argued Mr. Trevino took off running after his confrontation with the victim's mother and
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     appeared to have his belongings ready to go. This argument was based on the testimony
I    by the victim's mother. There was no misrepresentation.
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            Vouching for the victim

            Mr. Trevino claims the prosecutor vouched for the victim when she stated "there is

     no reason why [the victim] would not be honest," and that the evidence shows the victim

     "is not making [her allegation] up basically." VRP (Dec. 15, 2011) at 83-84. While it is

     misconduct for a prosecutor to state a personal belief on the credibility of a witness, that

     is not what happened here. The prosecutor merely argued that, based on the other

     evidence, the jury should believe the victim's testimony. There was no misconduct. State

     v. Copeland, 130 Wn.2d 244,290, 922 P.2d 1304 (1996) ("prosecutors may argue

     inferences from the evidence, including inferences as to why the jury would want to

     believe one witness over another").

            Misstating the burden of proof

            Mr. Trevino's final argument is that the prosecutor misstated the burden of proof

     when she told the jury this case comes down to whether the jurors believe the victim's

     testimony. Mr. Trevino's complaints are unfounded. As Mr. Trevino himself

     acknowledges, this case was largely a credibility contest between Mr. Trevino and the

     victim. The prosecutor simply argued that the case came down to whether the jury found


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     In re Pers. Restraint of Trevino


     the victim credible. This was proper argument. State v. Thorgerson, 172 Wn.2d 438,

     454, 258 P.3d 43 (2011) (prosecutor may argue that the jurors should believe the victim's
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 i   testimony and, if they did, they should find defendant guilty).
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                                          CONCLUSION

            We affirm the judgment and sentence of the trial court. Mr. °Trevino's personal

l    restraint petition is dismissed.


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


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

     RCW 2.06.040.


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                                               Pennell, J.
I    WE CONCUR:

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