       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                      11...,
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THE STATE OF WASHINGTON,                    )         No. 77328-3-1                     -4--
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            Respondent,                     )         DIVISION ONE            . %.0        -13r•


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EDWARD ALBERTO MOZQUEDA,                    )                          c....) 2.z
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            Appellant.                      )
                                            )         FILED: April 29, 2019

       HAZELRIGG-HERNANDEZ, J. — To     prevail on a claim of ineffective assistance

of counsel, defendant must show deficient performance and a reasonable

probability of a different outcome. Because the decision not to object to out-of-

court statements was a reasonable tactical decision, and because the jury would

have received very similar information even with the objections, Mozqueda's

ineffective assistance of counsel claim fails. We affirm.

                                      FACTS

       On March 6, 2016, G.M.C. disclosed to her mother, A.C., that she had been

sexually assaulted by her brother-in-law, Edward A. Mozqueda. G.M.C. provided

a written statement to the police that day. She alleged that Mozqueda had started

touching her inappropriately when she was seven, and that the most recent assault

was in February, 2016. She was examined by doctors at Seattle Children's

 Hospital, and made statements regarding the assault to the doctors. G.M.C. was
No. 77328-3-1/2



also seen by a nurse practitioner and social worker at the Harborview Center for

Sexual Assault and Traumatic Stress, and made statements regarding the assault

to them. She also participated in a forensic interview with law enforcement.

       Mozqueda was charged with one count of rape of a child in the first degree

and one count of rape of a child in the second degree. At trial, G.M.C. testified

regarding two incidents where Mozqueda forced her to perform oral sex on him.

The State introduced statements from A.C., law enforcement, and several medical

professionals that G.M.C. identified Mozqueda as her assailant.            Mozqueda

objected to the statements during the testimony of A.C., but the trial court permitted

them as statements of identification. The State also elicited testimony from its

witnesses that G.M.C. had not identified anyone else.             Mozqueda elicited

testimony regarding animosity between A.C. and Mozqueda, and testimony that

suggested A.C. had coached G.M.C. after her initial accusation. Mozqueda also

elicited testimony regarding G.M.C.'s inconsistency regarding the timing of the

assaults. The jury returned guilty verdicts on both counts.

       Mozqueda appeals, claiming his counsel was ineffective for failing to object

to the statements of third party witnesses that G.M.C. identified him as her

assailant.

                                   DISCUSSION

I.     Ineffective Assistance of Counsel

       To prevail on an ineffective assistance of counsel claim, Mozqueda must

demonstrate (1) counsel's performance was deficient and (2) resulting prejudice.

State v. Estes, 188 Wn.2d 450, 457-58, 395 P.3d 1045(2017)(citing Strickland v.


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No. 77328-3-1/3



Wash., 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Performance is

deficient if it falls below an objective standard of reasonableness based on all the

circumstances. Id. (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d

1251 (1995)). The defendant"must overcome 'a strong presumption that counsel's

performance was reasonable." State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260

(2011) (quoting State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).

Performance is not deficient when counsel's conduct can be characterized as

reasonable trial strategy. Id. (citing KvIlo, 166 Wn.2d at 863). "The relevant

question is not whether counsel's choices were strategic, but whether they were

reasonable." Roe v. Flores-Oreteqa, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L.

Ed. 2d 985 (2000).

       Given the circumstances of this case, declining to object to the statements

identifying Mozqueda was a reasonable tactical decision. G.M.C. never identified

any other person and her identification of Mozqueda was never disputed by the

parties. Instead, the defense argued that G.M.C. had fabricated her story, either

to cover up activity with a boyfriend or at the behest of A.0 because of A.C.'s

animosity toward Mozqueda. Additionally, when Mozqueda's counsel did object

to similar statements, the court made it clear that it did not consider statements of

identification hearsay. This may have impacted defense trial strategy moving

forward.

       Declining to object to the statements of the treating physician, nurse and

social worker who assessed G.M.C. pursuant to the case was also a reasonable

tactical decision. A hearsay exception clearly permits statements for the purposes


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of medical treatment to be admitted at trial. ER 803(a)(4). G.M.C. was being

treated by medical professionals as a result of the assaults, and Mozqueda

concedes that statements by a child victim identifying a family member fall within

this exception because medical professionals have a duty to protect children from

future abuse. See State v. Butler, 53 Wn. App. 214, 221, 766 P.2d 505 (1989),

(citing United States v. Renville, 779 F.2d 430, 438 (8th Cir. 1985)).

       Mozqueda instead argues that if counsel had objected, those statements

would have been excluded under ER 403 because their unfair prejudice

substantially outweighed the statements' probative value. We are unconvinced

that the trial court would have excluded the statements. While the statements were

cumulative of other evidence and prejudicial to Mozqueda, Mozqueda has not

shown that the resulting prejudice substantially outweighed the significant

probative value of the statements. Because declining to object to those statements

was a reasonable tactical decision, and because Mozqueda has not shown that

those statements would have been excluded if defense counsel had made a proper

objection, we find no ineffective assistance of counsel.

       Furthermore, it appears that even sustained objections to the statements

would have provided little help to Mozqueda. The State regularly followed up the

identification questions by asking its witnesses if G.M.C. ever identified anyone

else as her assailant. The witnesses consistently noted that she had not. While

the corroborative value of this question was not identical to the statements

identifying Mozqueda, it bolsters G.M.C.'s credibility in the same way: as to




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identity, her accusations remained consistent. No valid objection would have

prevented that testimony.

       For the same reason, Mozqueda has not demonstrated the necessary

prejudice for reversal. In order to show prejudice, the defendant must show there

is a reasonable probability the outcome of the proceedings would have been

different. Estes, 188 Wn.2d at 458 (citing KvIlo, 166 Wn.2d at 862). The defendant

"must show more than a 'conceivable effect on the outcome." Id. (quoting State v.

Crawford, 159Wn.2d 86,99, 147 P.3d 1288(2006)). Here, because the jury would

have received similar information corroborating G.M.C.'s allegations even if

Mozqueda's counsel had made objections that were sustained, we cannot find a

reasonable probability the outcome of the proceedings would have been different.

       Affirmed.




WE CONCUR:




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