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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                             No. 72347-2-1


                     Respondent,
                                                 DIVISION ONE
                     v.

                                                 UNPUBLISHED OPINION
GREGORIO OLIVAREZ-AGUILAR,

                     Appellant.                  FILED: January 25, 2016



       Lau, J. — Gregorio Olivarez-Aguilar appeals his jury trial convictions for second

degree kidnapping with sexual motivation and third degree child rape. He argues that

the trial judge commented on the evidence when she thanked the child witness for

testifying and said "I know it was hard for you." Viewed in context, the court's remark

did not violate the rule prohibiting judicial comment on the evidence and error, if any,

was harmless. We affirm the judgment and sentence.

                                          FACTS

       Gregorio Olivarez-Aguilar1 dated Adela Moreno Garcia from 2012 until February

2014. In 2013, Olivarez-Aguilar developed a romantic relationship with Garcia's 13-

year-old daughter, K.M.D.M. They discussed marriage and in January 2014 had sex.



       1 Olivarez-Aguilar explains in his appellate brief that he does not hyphenate his
name. Br. of Appellant at 1, n.1. We use his name as it appears in our record.
No. 72347-2-1/2


        On February 28, 2014, Olivarez-Aguilar picked K.M.D.M. up from school without

permission and they took a bus to California. K.M.D.M. left a note for her mother asking

her not to search for them. She provided no contact information and did not disclose

where they were going. On the same day, Garcia reported to the police that K.M.D.M.

was missing.

        At 12:30 am on March 7, 2014, United States Marshal David Dominguez and

local police arrived at the house of Olivarez-Aguilar's cousin where Olivarez-Aguilar and

K.M.D.M. were staying. When they entered the home, Olivarez-Aguilar and K.M.D.M.

were lying together in bed. After Dominguez announced himself, Olivarez-Aguilar

emerged from a room without a shirt and immediately shut the door. The officers forced

the door open and arrested Olivarez-Aguilar. While handcuffing him, K.M.D.M.

emerged from the bedroom and pleaded with the officers not to hurt him.

        The State's amended information charged Olivarez-Aguilar with second degree

kidnapping with sexual motivation, second degree child rape, and third degree child

rape.

        At trial, K.M.D.M., now 14, testified about her relationship with Olivarez-Aguilar.

K.M.D.M. claimed equal responsibility for the relationship, stating that it began after both

"started to treat each other [differently]." Report of Proceedings (RP) (July 10, 2014) at

10.

        During her testimony, K.M.D.M. expressed discomfort. For instance, K.M.D.M.

stated that she and Olivarez-Aguilar had "sex," but that she did not "know how to

explain it." RP (July 10, 2014) at 25. When asked whether she knew the meaning of

the words "penis" and "vagina," she stated that Olivarez-Aguilar "put his penis in my



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No. 72347-2-1/3


vagina." RP (July 10, 2014) at 25-26. She testified that they had sex about four times

while in California. When asked what she meant by comments such as "he treated me

well" and "he talked to me nicely," K.M.D.M. said she did not know how to explain what

she meant. RP (July 10, 2014) at 29-30.

       After K.M.D.M. testified, the trial court thanked and excused K.M.D.M., stating,

"[tjhank you very much for you to be here. I know it was hard for you. Okay. Thank

you. You are free to leave." RP (July 10, 2014) at 63.

       The jury convicted Olivarez-Aguilar of second degree kidnapping with sexual

motivation and third degree rape of a child. It found him not guilty of second degree

rape of a child.

       Olivarez-Aguilar appeals.

                                        ANALYSIS

       Olivarez-Aguilar argues that the trial court's remark to K.M.D.M. at the close of

her testimony constituted a judicial comment on the evidence. We disagree.

       Under article IV, section 16 of the Washington Constitution, a judge is prohibited

from conveying to the jury his or her personal opinion about the merits of the case or

from instructing the jury that a fact at issue has been established. State v. Hartzell. 156

Wn. App. 918, 938, 237 P.3d 928 (2010).

       A comment on the evidence occurs only if the court's attitude toward the merits

of the case or the court's evaluation relative to a disputed issue is inferable from the

statement. State v. Hansen. 46 Wn. App. 292, 300, 730 P.2d 706 (1986). "A judge

need not expressly convey his or her personal feelings on an element of the offense; it

is sufficient if they are merely implied." State v. Jackman. 156 Wn.2d 736, 744, 132


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P.3d 136 (2006). Generally, "the touchstone of error in a trial court's comment on the

evidence is whether the feeling of the trial court as to the truth value of the testimony of

a witness has been communicated to the jury." State v. Brush. 183 Wn.2d 550, 565-66,

353 P.3d 213 (2015). Because the constitution prohibits judicial comments on the

evidence, a claimed error based upon such a comment involves a manifest

constitutional error Olivarez-Aguilar may raise for the first time on appeal. State v. Lew.

156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006).

       Olivarez-Aguilar claims the trial court's comment:

       [Ijimplied that everything K.M.D.M. had described in her testimony, and
       which incriminated Olivarez, had been accurate. The trial court confirmed
       for jurors that K.M.D.M. had to overcome difficulty to testify against
       Olivarez, which in turn expressed to jurors that the court felt K.M.D.M. was
       telling the truth about what had happened between her and Olivarez.

Br. of Appellant at 7. Olivarez-Aguilar further claims the comment "aligned the trial court

on the side of victims and against defendants" and that "[i]n hearing the judge's

expression of sympathy for K.M.D.M., the jurors surely would have felt compelled to join

it." Br. of Appellant at 8. We are unpersuaded.

       The record, viewed in context, demonstrates K.M.D.M.'s youth and discomfort

while testifying prompted the court's remark acknowledging the witness's discomfort.

The jury listened and observed this child witness testify about intimate adult sexual

activities. The record demonstrates her reluctance and awkwardness in describing her

sexual relationship to the jury in frank anatomical terms. The court's remark neither

implied or expressed an opinion on the evidence or K.M.D.M.'s credibility.

       Even assuming a judicial comment on the evidence, the record demonstrates it

was harmless. The court twice instructed the jury—both at the beginning and end of



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No. 72347-2-1/5


trial—to disregard any statement by the court appearing to indicate a personal opinion

on the evidence. The court instructed:

       Our state constitution prohibits a trial judge from making a comment on
       the evidence. It would be improper for me to express, by words or
       conduct, my personal opinion about the value of testimony or other
       evidence. I have not intentionally done this. If it appeared to you that I
       have indicated my personal opinion in any way, either during trial or in
       giving these instructions, you must disregard this entirely.

Clerk's Papers (CP) at 46.

       We presume the jury followed these instructions. State v. Emerv. 174 Wn.2d

741, 754, 278 P.3d 653 (2012).

       Olivarez-Aguilar did not substantially challenge K.M.D.M.'s credibility at trial. On

cross-examination, he focused on eliciting details about K.M.D.M.'s rocky relationship

with her family, the note she left for her mother, leaving voluntarily to go with Olivarez-

Aguilar, and her sister's departure from home at a young age to live with an older man.

In closing argument, Olivarez-Aguilar argued that K.M.D.M.'s departure was voluntary

and that merely sharing a bed did not establish the two had sex. Olivarez-Aguilar also

emphasized the lack of medical and scientific corroboration, the State's heavy burden of

proving the crimes beyond a reasonable doubt, and the absence of evidence to support

the "restrain" element for the kidnapping charge.

       The lack of serious dispute surrounding K.M.D.M.'s credibility and the court's

instructions to disregard any unintended judicial comments on the evidence were

sufficient to render any error harmless. See State v. Elmore. 139 Wn.2d 250, 276, 985

P.2d 289 (1999) (any comment on the evidence was cured by the court's instructions to

disregard); State v. Lew. 156 Wn.2d 709, 726-27, 132 P.3d 1076 (2006) (the State has




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burden of showing defendant was not prejudiced unless the record affirmatively shows

no prejudice could have resulted). The error, if any, was harmless.

                                    CONCLUSION

      For the reasons discussed, the trial court's remarks do not constitute a judicial

comment on the evidence. Even assuming trial court error, the error was harmless.




WE CONCUR:




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