     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON




STATE OF WASHINGTON,                          No. 71027-3-1

                                              DIVISION ONE
              Respondent,
                                              UNPUBLISHED OPINION
      v.



RAMON CARRILLO-ALEJO,

              Appellant.              )       FILED: September 14.2015

      Spearman, C.J. — On August 22, 2013, Ramon Carrillo-Alejo was

convicted of one count of rape of a child and two counts of child molestation. He

appeals, claiming that defense counsel was ineffective for failing to request a

limiting instruction for evidence admitted under ER 404(b). In a statement of

additional grounds, he also asserts claims of prosecutorial misconduct, abuse of

discretion, and a Brady1 violation. We find no error and affirm.

                                          FACTS

       Ramon Carrillo-Alejo and F.H.'s mother met when they were

coworkers. When Carrillo-Alejo needed a place to live, he arranged to rent a

room in the apartment shared by F.H. and her parents. He continued to live

with the family when they moved first to one and then to another residence.


       1 Bradv v. Maryland. 373 U.S. 83, 83 S.Ct. 1194, 10 LEd.2d 215 (1963).
No. 71027-3-1/2


F.H. was four or five years old when Carrillo-Alejo moved in with her family,

and she was almost nine when he moved out. F.H.'s parents often worked

two jobs and Carrillo-Alejo sometimes cared for F.H. while her parents were

at work. F.H. and her parents treated Carrillo-Alejo as a member of the family

and F.H. called him "uncle." Verbatim Report of Proceedings (Aug. 8, 2013)

at 44.

         F.H. testified that Carrillo-Alejo began to sexually abuse her when she

was about seven years old. She described multiple incidents of Carrillo-Alejo

placing her hand on his penis, masturbating on her, and performing oral sex

on her. F.H. did not tell anyone about the abuse until the fall of 2012 when she

told her school counselor, Amy Cameron. Soon thereafter F.H. disclosed the

abuse to her mother. Her parents had noticed changes in her behavior the

previous summerwhen F.H. began having nightmares, refused to sleep alone in

her room, and refused to greet Carrillo-Alejo.

         Ms. Cameron reported F.H.'s disclosures to Child Protective Services.

(CPS). Detective Angela Galetti followed up with the victim's family. Galetti
interviewed Carrillo-Alejo, using Officer Diego Moreno as Spanish interpreter.

Carrillo-Alejo acknowledged that he had lived with F.H.'s family and had taken

care of F.H. while her parents worked, but denied abusing her. Galetti had

Carolyn Webster, a child interview specialist employed by the prosecutor's office,
interview F.H. During the interview F.H. told Ms. Webster that Carrillo-Alejo had

also had sexual contact with two of her female friends.
No. 71027-3-1/3


                                     Evidence of Prior Bad Acts

       The State moved to admit evidence that Carrillo-Alejo had warned F.H. to

keep the abuse a secret and had given her gifts and candy. The State also

offered evidence that Carrillo-Alejo had engaged in collateral sexual contact

including kissing and massaging. The State argued the evidence was admissible

under ER 404(b)2 because the threats and gifts explained F.H.'s delay in

reporting the abuse and the collateral sexual contact showed Carrillo-Alejo's

lustful disposition toward F.H. The State also argued the evidence was

admissible as part of the res gestae of the crime. Defense counsel objected only

to the evidence of threats and gifts. The State did not seek admission of

evidence that Carrillo-Alejo had had sexual contact with any other girls.

       After conducting an ER 404(b) analysis,3 the trial court admitted the

offered evidence, but limited the evidence of gifts, money, and candy to those

instances directly connected with incidents of abuse. Defense counsel did not

request a limiting instruction.




        2 ER 404(b) states:
            Evidence of other crimes, wrongs, or acts is not admissible to prove
        the character of a person in order to show action in conformity therewith.
        It may, however, be admissible for other purposes, such as proof of
        motive, opportunity, intent, preparation, plan, knowledge, identity, or
        absence of mistake or accident.

       3 To admit evidence offered under ER 404(b), the trial court must (1) "find by a
preponderance of the evidence that the misconduct occurred, (2) identify the purpose for
which the evidence is sought to be introduced, (3) determine whether the evidence is
relevant to prove an element of the crime charged, and (4) weigh the probative value
against the prejudicial effect." State v. Gresham. 173 Wn.2d 405, 421, 269 P.3d 207 (2012)
(quoting State v. Vv Thang. 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)).
No. 71027-3-1/4


       At trial, the State elicited testimony from F.H. that on one occasion

Carrillo-Alejo molested both F.H. and her friend, Anna. Defense counsel did not

object to the testimony and cross-examined F.H. about the incident. Counsel also

questioned F.H. about an incident involving another friend, Kaley, that F.H. had

mentioned in her interview with Carolyn Webster but that F.H. did not testify to on

direct. Defense counsel took no exception to the court's instructions to the jury,

which did not include a limiting instruction regarding the 404(b) evidence or the

evidence concerning the other little girls.

                                         DISCUSSION


        Carrillo-Alejo argues that he received ineffective assistance because his

trial counsel did not request a limiting instruction for the ER 404(b) evidence

admitted by the trial court.4 He argues that the jury likely used the evidence of

collateral sexual activity with F.H. as evidence of propensity and the evidence of

threats and gifts to corroborate the veracity of F.H.'s testimony. The State argues

that defense counsel did not request a limiting instruction for tactical reasons and

that foregoing the instruction was not deficient performance. The State further

argues that Carrillo-Alejo has failed to show prejudice from the lack of a limiting

instruction.

        We review an ineffective assistance of counsel claim de novo. State v.

White. 80 Wn. App. 406, 410, 907 P.2d 310 (1995). The defendant has the

burden of establishing ineffective assistance of counsel. State v. Humphries, 181


        4 We note that on appeal the onlychallenge to F.H.'s testimony that Carrillo-Alejo had
sexual contact with other girls is raised in his Statement of Additional Grounds.
No. 71027-3-1/5


Wn.2d 708, 719-20, 336 P.3d 1121 (2014). To prevail on an ineffective

assistance of counsel claim, a defendant must show that (1) counsel's

performance "fell below an objective standard of reasonableness and (2) there

was prejudice, measured as a reasonable probability that the result of the

proceeding would have been different." Humphries, 181 Wn.2d at 719-20 (citing

Strickland v. Washington. 466 U.S. 668, 687-88, 108 S.Ct. 2052, 80 LEd.2d 674

(1984)). Judicial review of an attorney's performance is highly deferential.

Strickland, 466 U.S. at 689. The performance of an attorney "is not deficient if it

can be considered a legitimate trial tactic." Humphries. 181 Wn.2d at 720 (citing

State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)).

       Where evidence is admitted under ER 404(b), "the party against whom the

evidence is admitted is entitled, upon request, to a limiting instruction informing

the jury that the evidence is to be used only for the proper purpose and notfor

the purpose of proving the character of a person in order to show that the person

acted in conformity with that character." Gresham, 173 Wn. 2d at 420 (citing

State v. Saltarelli. 98 Wn.2d 358, 362, 655 P.2d 697 (1982)). Absent a request,

the trial court is not required to give a limiting instruction. State v. Russell, 171

Wn.2d 118, 123, 249 P.3d 604 (2011). Not requesting a limiting instruction may

be a tactical decision. Humphries. 181 Wn.2d at 720 (citing cases in which a

limiting instruction was not requested in order to avoid drawing attention to the

404(b) evidence). The failure to request an instruction, by itself, does not

establish that counsel's performance was deficient. Id.
No. 71027-3-1/6


       Carrillo-Alejo fails to establish that his counsel's performance was

deficient because the record shows that her decision to not request a limiting

instruction was tactical. The case against Carrillo-Alejo turned on the credibility of

F.H. and whether the jury believed her testimony. Instead of seeking to limit the

use of the evidence regarding collateral sexual contact with F.H. and the other

girls, during both cross-examination and closing argument, defense counsel

chose to draw attention to it, highlight the inconsistencies in F.H.'s testimony, and

thereby impeach her credibility.

       During cross-examination, defense counsel questioned F.H. about

inappropriate conduct with other little girls, and even elicited testimony about one

of F.H.'s friends that was not mentioned during direct examination. In closing

argument, defense counsel referred to this testimony and argued that the State's

failure to call the other little girls as witnesses, or to investigate their alleged

abuse, cast doubt on F.H.'s credibility. Similarly, defense counsel used the

evidence of gifts to tell a counter-narrative, suggesting that instead of evidence of

a crime, the gifts were simply indications that Carrillo-Alejo had been helpful to

the family. Because counsel's choice to not seek a limiting instruction for the ER

404(b) evidence was clearly a legitimate trial tactic, it does not constitute

deficient performance. ]d. at 720.

       In his statement of additional grounds, Carrillo-Alejo asserts three further

claims: that prosecutorial misconduct violated his right to a fair trial, that the trial

court abused its discretion in admitting the 404(b) evidence, and that the State

withheld evidence in violation of Brady 373 U.S. 83 (requiring that prosecutors
No. 71027-3-1/7


disclose evidence in their possession or knowledge that is favorable to the

defense). The claims are without merit.

       To prevail on a claim of prosecutorial misconduct, the defendant must

establish that the prosecutor's conduct was "'both improper and prejudicial in the

context of the entire record and the circumstances at trial.'" State v. Thorgerson.

172 Wn.2d 438, 442, 258 P.3d 43 (2011) (quoting State v. Magers. 164 Wn.2d

174, 191, 189 P.3d 126 (2008)). Ifthe defendant does not object to alleged

misconduct at trial, the issue of prosecutorial misconduct is waived "unless the

misconduct was 'so flagrant and ill-intentioned that it evinces an enduring and

resulting prejudice that could not have been neutralized by an admonition to the

jury.'" State v. Weber. 159 Wn. 2d 252, 270, 149 P.3d 646 (2006) (quoting State

v. Stenson. 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)).

       Carrillo-Alejo alleges cumulative error based on four instances of

prosecutorial misconduct: introducing improper evidence about his conduct

with F.H.'s friend Anna, referring to Carrillo-Alejo's nationality, expressing

an opinion about Carrillo-Alejo's guilt in closing argument, and disparaging

counsel for the defense. Carrillo-Alejo acknowledges, as he must, that

because there was no objection to the alleged misconduct below, the higher

standard of review is applicable to these claims. But, except as to his claim

that the prosecutor referred to his nationality, Carillo-Alejo cites no authority

and makes no argument as to why or how the alleged misconduct was

flagrant and ill intentioned. Nor does he explain how a timely objection
No. 71027-3-1/8


would have been inadequate to result in either exclusion of the evidence or

an instruction to the jury sufficient to mitigate any prejudice.

       With regard to the reference to Carrillo-Alejo's nationality, we

conclude there was no impropriety. A prosecutor may not refer to a

defendant's race or nationality in order to imply that a member of

defendant's race is more likely than a member of a different race to commit

the crime charged. State v. Torres. 16 Wn. App. 254, 257, 554 P.2d 1069

(1976). References to race or nationality that appeal to the jury's prejudices

are likewise improper. State v. Belgarde. 110 Wn.2d 504, 507, 755 P.2d

174 (1988).

       In this case, Carrillo-Alejo's nationality was mentioned only in

passing during F.H.'s testimony when she stated that she did not disclose

the abuse because Carrillo-Alejo had warned her to stay quiet and told her

that he had killed people "in his place ... in Ondoda." VRP (Aug. 20, 2013)

at 59-60. During closing argument, the prosecutor made reference to this

testimony to explain why F.H. had delayed in disclosing the abuse. These

brief mentions of Carrillo-Alejo's nationality did not appeal to the jury's

prejudice or imply that a member of his nationality was more likely to

commit the crime charged than a person of another nationality. The

remarks were not improper.

       Accordingly, we reject each of Carrillo-Alejo's claims of prosecutorial

misconduct because either he waived them or failed to establish misconduct.

Consequently, his claim of cumulative error also fails.

                                           8
No. 71027-3-1/9


      Carrillo-Alejo next claims that the trial court abused its discretion in

admitting the 404(b) evidence. We review evidentiary decisions for abuse

of discretion. In re Pers. Restraint of Duncan. 167 Wn.2d 398, 402, 219

P.3d 666 (2009). To admit 404(b) evidence, the trial court must (1) find by

a preponderance of the evidence that the prior misconduct occurred; (2)

identify the purpose for which the evidence is offered; (3) determine

whether the evidence is relevant; and (4) weigh the probative value

against the risk of unfair prejudice. State v. Gresham, 173 Wn.2d at 421.

The trial court properly performed this analysis. The trial court questioned

the prosecutor for the purpose of the evidence, reviewed the transcript of

F.H.'s interview with the child interview specialist, determined that the

evidence was relevant, weighed its probative value against any prejudicial

effect, and admitted only the evidence directly connected to incidents of

abuse. We find no abuse of discretion.

       Lastly, Carrillo-Alejo claims that the State suppressed evidence in

violation of Brady. To establish a Brady violation, a defendant must

demonstrate that (1) the evidence at issue is favorable to the accused; (2)

the evidence was willfully or inadvertently suppressed by the State; and

(3) prejudice resulted. Strickler v. Greene. 527 U.S. 263, 281-82, 119

S.Ct. 1936, 144 LEd.2d 286 (1999); State v. Mullen. 171 Wn.2d 881, 895,

259 P.3d 158 (2011) (quoting and explaining the Strickler test). Carrillo-

Alejo's claim concerns a report prepared by F.H.'s school counselor, Amy

Cameron. Ms. Cameron testified on direct examination that after speaking
 No. 71027-3-1/10


 with F.H. she "immediately called Child Protective Services." VRP (Aug.

 19, 2013) at 21. On cross-examination, counsel for the defense asked Ms.

 Cameron if she kept a written record or made a written report of the

 incidents involving CPS. Ms. Cameron replied "[wjell, I - I write up a report

 that goes to our district office, and the CPS report goes in ... I write -I

 write up what I have reported to CPS." VRP (Aug. 19, 2013) at 24.

 Carrillo-Alejo argues that this report was suppressed by the State in

 violation of Brady. The record is inadequate for us to consider this issue.

 There is no indication whether Ms. Cameron's report is favorable to

 Carrillo-Alejo or if the State knew of the report or ever had it in its

 possession. Absent such evidence, we are unable to determine whether a

 Brady violation occurred.

        Affirmed.




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