           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION ONE
THE STATE OF WASHINGTON,                            No. 77566-9-I

                              Respondent,

                 v.                                 UNPUBLISHED OPINION

ANTONIO AVILA-TAMAYO,

                             Appellant.             FILED: August 5, 2019

       SCHINDLER, J.   —   A jury convicted Antonio Avila-Tamayo of rape of a child in the

first degree, count 1; and child molestation in the first degree, count 2. Avila-Tamayo

contends the court erred in admitting his custodial statements. Avila-Tamayo also

claims the prosecutor withheld evidence in violation of Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and for the first time on appeal, challenges the

admission of evidence. We affirm.

                                            FACTS

      In June 2015, 28-year-old Antonio Avila-Tamayo lived in an apartment in Burien

with C. and her two daughters, 8-year-old N. and 7-year-old K. On June 15, N. told a

school counselor that her mother’s boyfriend was sexually abusing her. King County

Sherriff Detective Larry Zydek, Detective Chris Knudsen, and patrol officer Robell

Ghrmai went to the school. A few minutes after they arrived, Avila-Tamayo came to
 No. 77566-9-112

pick up N. and her sister K. from school. The police informed Avila-Tamayo that he was

under arrest because of a disclosure made by one of the girls. Avila-Tamayo asked

whether it was about “the videos.” Officer Ghrmai arrested Avila-Tamayo and drove to

the Burien precinct.

       The detectives remained at the school to interview N. and K. Detective Knudsen

interviewed N. and Detective Zydek conducted a ‘safety interview” with K. The

detectives audio recorded the interviews.

       N. told Detective Knudsen that Avila-Tamayo was her mother’s boyfriend and

that he lived with them. During the interview, N. described multiple incidents of sexual

abuse. Specifically, that Avila-Tamayo repeatedly forced her to engage in anal and

vaginal intercourse and perform oral sex. N. said the anal penetration ‘hurted so bad”

and during oral sex, Avila-Tamayo pushed his penis “all the way” down her throat and it

made her “throw up.” N. described specific incidents in the bathtub. N. said Avila

Tamayo made her “copy” the “nasty things” he showed her on his computer tablet, cell

phone, and the television. N. told Detective Knudsen that Avila-Tamayo also sexually

abused her younger sister K.

      After interviewing N. and K., Detective Knudsen and Detective Zydek went to the

Burien precinct to interview Avila-Tamayo. Detective Knudsen video recorded and

conducted the interview primarily in Spanish.

      Avila-Tamayo initially denied having sexual contact with N. or K. or exposing

them to pornography. But later, Avila-Tamayo admitted he had “sexual contact” with N.

approximately six months before and put N.’s mouth on his penis. Avila-Tamayo




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 No. 77566-9-1/3

 admitted he inappropriately touched both girls’ vaginas two or three times. Avila

 Tamayo said the last time it happened was approximately a month before.

          Avila-Tamayo gave the police permission to search his tablet. The detectives

 drove to the apartment with Avila-Tamayo to seize the tablet. Avila-Tamayo briefly

spoke with the children’s mother. Avila-Tamayo told her the police “came looking for

me” and, “I’m guilty.”

          The State charged Avila-Tamayo with rape of a child in the first degree of N. and

child molestation in the first degree of K.

          Avila-Tamayo filed a motion to suppress the statements he made to Detective

Knudsen during the recorded interview. Avila-Tamayo conceded Detective Knudsen

advised him of his Miranda1 rights in his native language Spanish and provided him with

a Miranda form in Spanish. But Avila-Tamayo argued Detective Knudsen did not

accurately convey the meaning of those rights because he mispronounced the Spanish

word for “exercise.” Following the CrR 3.5 hearing on the admissibility of the

statements Avila-Tamayo made to Detective Knudsen, the court denied the motion to

suppress. The court entered extensive findings of fact and conclusions of law.

       The State called several witnesses to testify at trial, including N., K., the

detectives, N’s friend to whom she initially disclosed the abuse, and the children’s

mother C. The court admitted the recorded interview of N. and Avila-Tamayo into

evidence and the State played the recordings for the jury.

      N. was extremely reluctant to testify about the incidents she previously disclosed.

However, N. testified that Avila-Tamayo penetrated her vaginally and anally with his



      1   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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 No. 77566-9-114

 finger. She recalled that it happened in her bedroom at night when she woke up to

Avila-Tamayo touching her. N. said the same touching happened in the living room. N.

said Avila-Tamayo touched her “using his finger on the inside of where you go pee-pee

    [m]ore than ten times.”

       K. testified that when she was seven years old, Avila-Tamayo “started doing the

things he started with [N.]   .   .   .   that was inappropriate.” Specifically, K. said Avila

Tamayo put his “private part” inside her “private part” where she goes “pee” and moved

back and forth. K. said she felt “burning inside.” K. testified this happened

approximately 10 times. K. also testified Avila-Tamayo had anal intercourse with her

more than 5 times and it felt like “being bitten by a crocodile.” K. described another time

when she was on the couch and Avila-Tamayo touched her “private part” with his hand.

K. said Avila-Tamayo instructed her not to tell her mother and never touched her when

her mother was home.

       The defense presented expert witness testimony about the suggestibility of

children and a child’s memory. Another defense witness testified that while babysitting,

she caught N. watching a movie with sexual content on a tablet.

       Avila-Tamayo testified, Avila-Tamayo denied any sexual contact with N. or K.

Avila-Tamayo testified that he lied during the recorded police interview because he

thought the police “believed the girls” and had already decided the allegations were

true. Avila-Tamayo testified he believed he “had no other option” and thought the police

would treat him leniently if he confessed.

      The jury convicted Avila-Tamayo as charged.




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 No. 77566-9-1/5

                                        ANALYSIS
Adequacy of Miranda Warnings

        Avila-Tamayo argues the court erred in finding Detective Knudsen adequately

informed him of his Miranda rights. Avila-Tamayo asserts that because Detective

Knudsen did not correctly translate “exercise,” he did not knowingly, intelligently, and

voluntarily waive his rights.

       Before interrogating a suspect in custody, law enforcement must inform the

suspect that he has the “right to remain silent, that anything he says can be used

against him in a court of law, that he has the right to the presence of an attorney, and

that if he cannot afford an attorney one will be appointed for him prior to any

questioning.” Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966). Any waiver of these rights must be knowing, voluntary, and intelligent. State v.

Radcliffe, 164 Wn.2d 900, 905-06, 194 P.3d 250 (2008). The State has the burden of

showing a waiver of Miranda rights by a preponderance of the evidence. State v.

Athan, 160 Wn.2d 354, 380, 158 P.3d 27 (2007).

       In determining whether a defendant voluntarily waived his Miranda rights, the

court must consider the totality of the circumstances. State v. Allen, 63 Wn. App. 623,

626, 821 P.2d 533 (1991). An express oral or written waiver is not necessary to

establish a voluntary and valid waiver. State v. Rupe, 101 Wn.2d 664, 678, 683 P.2d

571 (1984). Where the defendant is informed of his Miranda rights, understands those

rights, and chooses to volunteer information in the absence of duress, promises, or

threats; the court can infer waiver. State v. Terrovona, 105 Wn.2d 632, 646-67, 716

P.2d 295 (1986).



                                                5
 No. 77566-9-116

       Language barriers do not prevent a valid waiver:

       Although a suspect’s ability to make a knowing and intelligent waiver of his
       Miranda rights may be inhibited by language barriers, a valid waiver may
       be effected when a defendant is advised of his Miranda rights in his native
       tongue and claims to understand such rights. Further, the translation of
       Miranda from English to Spanish need not be perfect     —it is sufficient that
       the defendant understands that he does not need to speak to police and
       that any statement he makes may be used against him.”

State v. Teran, 71 Wn. App. 668, 672-73, 862 P.2d 137 (1993) (quoting United States v.

Hernandez, 913 F.2d 1506, 1510 (10th Cir. 1990)), abrogated on other grounds by

State v. Neeley, 113 Wn. App. 100, 52 P.3d 539 (2002).

       In support of the motion to suppress, Avila-Tamayo submitted an English

transcript of the interview conducted by Detective Knudsen in Spanish. The court also

admitted the video-recorded interview at the CrR 3.5 hearing.

       Officer Ghrmai and Detective Knudsen testified at the CrR 3.5 hearing. Officer

Ghrmai testified that he communicated with Avila-Tamayo in English. Officer Ghrmai

said he advised Avila-Tamayo of his Miranda rights in English two times using a

preprinted card. Both times, Avila-Tamayo indicated that he did not understand. But

when Officer Ghrmai specifically asked if he “understood that he had the right to remain

silent,” Avila-Tamayo confirmed that he did understand. And when Officer Ghrmai

asked if he “understood that he had the right to an attorney,” Avila-Tamayo said he

understood. Officer Ghrmai did not ask Avila-Tamayo any other questions and

transported him to the Burien precinct.

       Detective Knudsen testified that he uses Spanish in the course of his work, “often

daily,” and described himself as a “proficient” Spanish speaker but not “fluent.”

Detective Knudsen testified, “I’m able to have conversations with people, generally



                                                6
 No. 77566-9-1/7

 understand what they’re saying and make myself understood.” Detective Knudsen said

he initially spoke to Avila-Tamayo in English and then quickly transitioned to Spanish

because Avila-Tamayo did not seem to understand some of his questions and

confirmed his preference for Spanish.

       Q.    And why did you start speaking Spanish?
       A.     He didn’t seem to be understanding some of the questions in
              English.
       Q.     How did you know he did not understand the questions in English?
       A.     I believe there was one question that he told me he didn’t
              understand, and then again a few minutes later when he seemed
             confused I switched to Spanish.
       Q.    Okay. And so that we’re clear, Mr. Avila{-Tamayo] actually stated
             to you when he didn’t understand something that he didn’t
             understand?
       A.    I believe he did.

Detective Knudsen said he decided not to use the “Language Line” interpreter because

he could communicate in Spanish.

       Detective Knudsen said that before interviewing Avila-Tamayo, he advised Avila

Tamayo of his due process rights under the Fifth Amendment to the United States

Constitution using a preprinted, office-issued Spanish advisement form. Before reading

the form, Detective Knudsen asked whether Avila-Tamayo could “read okay.” Avila

Tamayo laughed and answered, “[NJo.” Nevertheless, Detective Knudsen “turned the

form towards him so he could follow along” as Detective Knudsen read the form in

Spanish.

       Detective Knudsen advised Avila-Tamayo of each of the seven enumerated

rights on the form. After each advisement, Avila-Tamayo affirmatively indicated he

understood and expressed no confusion. In the last advisement, Detective Knudsen

used the correct Spanish word “ejercer” to inform Avila-Tamayo that he could exercise



                                              7
No. 77566-9-1/8

his right to remain silent and his right to consult with an attorney at any time. Avila

Tamayo indicated that he understood his rights. In the waiver and acknowledgement

portion of the form that states the suspect decided not to exercise his rights at this time,

Detective Knudsen used the word “ercer,” a nonexistent Spanish word, instead of

‘ejercer,” the Spanish word for exercise.” Avila-Tamayo did not ask any questions,

indicated he understood his rights, and signed the form.

       The trial court reviewed the translated transcript and video recording of the

interview. The court denied the motion to suppress. The court entered written findings

of fact and conclusions of law on the CrR 3.5 motion to admit the statements Avila

Tamayo made to Detective Knudsen during the recorded interview. The written findings

state that after considering the testimony of Detective Knudsen, Detective Zydek, and

Officer Ghrmai and reviewing the “admitted pre-trial exhibits and briefing submitted by

the State and the Defense,” the court concluded:

              The defendant was advised of his constitutional rights in the Burien
      station shortly after questioning began. The State has demonstrated by a
      preponderance of evidence that the defendant was properly advised in
      Spanish of his [Miranda] warnings and that he knowingly, intelligently and
      voluntarily waived his rights in providing a recorded statement to Detective
      Knudsen. Moreover, the defendant was not threatened or promised
      anything by Detectives Knudsen and Zydek, and he provided a statement
      with a full understanding of what he was doing.

      The unchallenged findings state, in pertinent part:

      bb. Detective Knudsen then went through the [Miranda] rights from the
          King County Sheriff’s Office-issued form in Spanish. He read them
          out and had the form for the defendant to review as he went through
          them.

      cc. Detective Knudsen asked the defendant if he “could read okay.” The
          defendant laughed and said no. However, the defendant did not
          indicate that he could not read.



                                                8
 No. 77566-9-1/9

       dd. Detective Knudsen went through each of the [Miranda] Rights on the
           form with the defendant and the defendant acknowledged
           understanding all the rights on the form.

       ee. Per the provided interview transcript and the video of the interview,
           there were no apparent errors in the translations and there were no
           questions asked from the defendant about the rights as they were
           read to him. Detective Knudsen read the rights in Spanish in the
           pretrial hearing to demonstrate how he went through them with the
           defendant.

       if. At line 108 in the transcript of the defendant’s interview, the portion
           pertaining to the waiver section of the advisement of rights form,
            Detective Knudsen mispronounced the word exercise, and, per the
           transcript, there appears to be no such word in Spanish for the word
           he pronounced. At line 106 of the transcript, Detective Knudsen
           properly pronounced the Spanish word for exercise when he
           explained to the defendant that he could exercise his rights at any
           time. In the video and according to Detective Knudsen, the defendant
           appeared to understand that he could exercise his rights at any time
           and he acknowledged this.

       gg. The defendant signed the form waiving his rights. This form was
           admitted into evidence as pretrial exhibit 10. The signing of the waiver
           of rights form was also shown on the video of the interview, admitted
           as pretrial exhibit 11,

       The court concluded, in pertinent part:

              Per consideration of the totality of the circumstances after reviewing
      the transcript and the video/audio recording of the defendant’s interview,
      after hearing argument and after considering all briefing and admitted
      exhibits, the Court finds that the defendant’s contention that he did not
      understand his rights is not credible. The Court also finds that the
      defendant understood all provisions of the Miranda warnings and the
      waiver of rights form as signed. The Court finds the testimony of
      Detective Knudsen and now-Detective Ghrmai to be credible.

      We will not disturb a trial court’s conclusion of a voluntary waiver if the trial court

finds by a preponderance of the evidence that the statements were voluntary and

substantial evidence in the record supports the finding. Athan, 160 Wn.2d at 380.

Substantial evidence exists where there is a sufficient quantity of evidence in the record



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No. 77566-9-1/10

to persuade a fair-minded, rational person of the truth of the finding. State v. Hill, 123

Wn.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings are verities on appeal.

State v. O’Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).

          Because Avila-Tamayo does not assign error to any of the findings of fact, we

treat those findings as verities.

          The findings, particularly the findings that there were no translation errors as to

the substantive rights afforded under Miranda and that Avila-Tamayo acknowledged he

understood each of those rights, support the court’s conclusion that Avila-Tamayo

validly waived his rights.

       Avila-Tamayo relies on United States v. Botello-Rosales, 728 F.3d 865 (9th Cir.

2013), to argue the mispronunciation of the word “exercise” rendered the advisement of

rights ineffective. Botello-Rosales is distinguishable. In Botello-Rosales, the detective

told the defendant in Spanish, “‘If you don’t have the money to pay for a lawyer, you

have the right. One, who is free, could be given to you.’     “   Botello-Rosales, 728 F.3d at
867.2 The detective used the Spanish word “libre” to mean “free.” Botello-Rosales, 728

F.3d at 867. But because “libre” translates to “being available” or “at liberty to do

something,” it suggested that the defendant’s right to appointed counsel was “contingent

on the approval of a request or on the lawyer’s availability” and failed to accurately

convey the “government’s absolute obligation” to appoint an attorney for an indigent

suspect upon request. Botello-Rosales, 728 F.3d at 867. By contrast, Detective

Knudsen did not affirmatively mislead Avila-Tamayo. The error did not negate the core




      2   Footnote omitted.


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 No. 77566-9-111 1

 requirements of Miranda.3 The uncontroverted record shows Detective Knudsen

 correctly advised Avila-Tamayo that he could exercise his rights at any time. The error

 in this case affected only the explanation of the acknowledgment and waiver portion of

 the form. Even if the error created some ambiguity as to whether Avila-Tamayo

 expressly waived his rights, the unchallenged findings establish the totality of the

 circumstances supports waiver. The trial court did not err in concluding Avila-Tamayo

voluntarily, knowingly, and intelligently waived his rights and his custodial statements

were admissible at trial.

Brady Violation

           Avila-Tamayo also claims that because the State violated Brady v. Maryland, 373

U.S. 83,83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the court erred in denying his motion

to suppress his recorded statements. Avila-Tamayo relies on the defense pretrial

interview with Detective Knudsen. When asked whether anyone had previously

challenged his Spanish proficiency, Detective Knudsen stated that in another case, he

mispronounced the Spanish word for ‘decided” while advising a suspect of his Miranda

rights.4

           Under Brady, the State is required to disclose all potentially exculpatory

evidence, including impeachment evidence. Statev. Mullen, 171 Wn.2d 881, 894, 259

P.3d 158 (2011). To establish a Brady violation, the defendant must demonstrate (1)

the evidence is favorable, either as exculpatory or impeachment evidence; (2) the State
         ~ We also reject Avila-Tamayo’s argument that he was not adequately informed of his right to
counsel. In Spanish, Detective Knudsen read, “[l]f I do not have the means to hire an attorney, one can
be appointed for me at no cost if I so decide.” Notwithstanding the fact that it did not include the
mechanics of the process of appointment, this language accurately informed Avila-Tamayo of his right to
appointed counsel.
         ~ Detective Knudsen testified that at the time of the interview, he believed “part of the statement
had been excluded simply based on a word that I mispronounced” in Spanish. But Detective Knudsen
later learned there was a separate issue regarding the court certified translation of the statement.


                                                         11
 No. 77566-9-1112

 withheld the evidence; and (3) the evidence was material to the defense. State v.

 Davila, 184 Wn.2d 55, 69, 357 P.3d 636 (2015). Evidence is material if there is a

 reasonable probability that disclosure would have changed the outcome of the

 proceeding. Mullen, 171 Wn.2d at 897. A reasonable probability exists if the

 suppression of evidence undermines confidence in the outcome of the trial. Mullen, 171

Wn.2d at 897.

        The court addressed Detective Knudsen’s testimony and the prior case. The

court concluded the State did not violate Brady. The findings and conclusions state, in

pertinent part:

        Detective Knudsen described a previous custodial interview statement that
        he believed was partially suppressed in a prior, unrelated case because
        he garbled or mispronounced words but later understood that this partial
        suppression was based on interpreter error rather than on his error.



                The court does not find that the partial suppression of a statement
        taken by Detective Knudsen on the unrelated case referenced is
        impeachment evidence         and thus does not find that there was a Brady
                                     .   .   .


        violation as alleged. Moreover and significantly, the court finds that
        information regarding the partially suppressed statement in the prior case
        was disclosed to the defense in a defense interview back on December 2,
        2016, some seven months prior to this hearing, and that the defense has
        had a chance to not only investigate the partial suppression, but. also       .   .


        that the defense was able to address it during the course of these pretrial
        hearings.

        The unchallenged findings support the conclusion that the State did not

unlawfully withhold material or impeachment evidence from the defense. The trial court

also noted there was no withheld evidence because the defense learned of the incident

many months before trial.5


        ~ We also note Avila-Tamayo does not explain how the pronunciation error in the other case is
exculpatory.


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 No. 77566-9-1/13


Admission of Evidence

            For the first time on appeal, Avila-Tamayo asserts the trial court abused its

discretion by admitting testimony about multiple sexual acts involving N. and K. Avila

Tamayo claims the evidence was inadmissible under ER 403 because the prejudice

outweighed the probative value.

            In general, a party may not raise an evidentiary challenge on appeal unless that

challenge was preserved below by a proper objection. RAP 2.5(a). One exception is a

manifest error affecting a constitutional right. RAP 2.5(a)(3). A claim of evidentiary

error is not of constitutional magnitude. State v. Everybodytalksabout, 145 Wn.2d 456,

468-69, 39 P.3d 294 (2002), rev’d on other grounds, 161 Wn.2d 702, 166 P.3d 693

(2007). Therefore, a party is limited on appeal to arguments related to the specific

objections raised to the trial court. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182

(1985).

          Contrary to Avila-Tamayo’s argument on appeal, he did not object to the victims’

testimony on the basis of ER 403 or on any other ground. Before N. and K. testified, the

State indicated N. and K. would testify about multiple incidents that took place within the

two-year charging period. The defense did not object to the anticipated testimony. The

defense attorney stated, “[ljt’s up to the State to decide” how to support the charges and

meet its burden of proof. The defense took the position that the victims could “testify to

whatever they want” and a Petrich6 instruction would resolve any issue raised by

evidence of multiple incidents to support a single charge. The defense strenuously


        6 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruled on other grounds by State v.
Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). The court provided Petrich instructions to the jury on each
charge that required the jurors to “unanimously agree” as to one single act the State proved beyond a
reasonable doubt.


                                                      13
No. 77566-9-1/14

objected to giving a limiting instruction. The defense argued a limiting instruction would

improperly ‘bolster” the State’s case. The court ruled it was not necessary to address

admissibility of prior misconduct under ER 404(b) because it appeared there was no

evidence of conduct outside the charging period. The defense did not object to the trial

testimony of N. or K. describing multiple acts of abuse. The court did not give a limiting

instruction.

       Because Avila-Tamayo did not object to the testimony of N. and K under ER

403, he waived his claim of error and we decline to address his argument raised for the

first time on appeal.

       We affirm the convictions of rape of a child in the first degree and child

molestation in the first degree.




                                                   41
WE CONCUR:




                                                   ~
