                                                                                                        FILED
                                                                                                  COURT OF APPEALS
                                                                                                        VISION 11
                                                                                              2014 AUG 12     P1112: 1414




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

STATE OF WASHINGTON,                                                           No. 43432 -6 -II
                                                                      Consolidated with No. 43519 -5 -II)
                                    Respondent,


          v.




JUAN CARLOS PARRA -
                  INTERIAN,                                             UNPUBLISHED OPINION


                                    Appellant.


          LEE, J. —   A jury found Juan Carlos Parra- Interian guilty of second degree rape, first

degree    burglary    with    sexual   motivation,     solicitation    to   commit   first degree   murder,   and




conspiracy to   commit       first degree   murder.   Parra -Interian appeals all of his convictions, arguing

that the trial court erred by denying his motion to sever the charges. He also challenges his rape

conviction, arguing that insufficient evidence supports the jury' s verdict. Because Parra-Interian

failed to meet his burden to demonstrate that a joint trial on all the charges was manifestly

prejudicial, the trial court did not abuse its discretion by refusing to sever the charges.

Furthermore, sufficient evidence supports the jury' s verdict on the rape charge. Accordingly, we

affirm.
Consol. Nos. 43432 -6 -II / 43519 -5 -II



                                                              FACTS

                             SA1

          In June 2010,             and    her fiance, Christopher McGowan, had                   a small   party.   After the


party, SA      and McGowan          went   to bed, had        sexual     intercourse,   and went    to sleep.   Later in the


night,    SA partially    woke    up because      she    felt   someone     touching her inner      thighs   and vagina.   At


first, SA    was   not alarmed       because      she    believed that McGowan              was   touching her.      However,


when the man attempted penile penetration and tore off her birth control patch, she knew it was

not McGowan and she became alarmed.


          SA   attempted    to    wake    McGowan        as   the   man   left the   room.   Originally, SA believed that

McGowan' s brother had assaulted her because she thought McGowan' s brother was the only

other adult male        in the house      at   the time. ' When McGowan left the room, he was surprised to


discover that Parra -
                    Interian             was   also   in the house.         SA suggested that McGowan smell their


hands to determine which man assaulted her. McGowan smelled his brother' s hands and did not

smell     anything     unusual.     While this        was   happening,      Parra -
                                                                                  Interian left the house.           McGowan


confronted him in the driveway, but Parra -Interian would not let McGowan smell his hands.

Parra -
      Interian got in his car and left.


          After police located Parra -
                                     Interian, he was brought to Kelso Police Department and place


in   an   interview    room.      After Parra -
                                              Interian left the interview room, detectives found a birth


control patch on        the floor   of   the interview      room.       Forensic testing confirmed that both SA' s and

Parra- Interian'   s   deoxyribonucleic         acid (   DNA)       was    on   the birth    control   patch.   Testing also

showed that McGowan' s DNA profile from a " sperm fraction" was on Parra -
                                                                         Interian' s fingers.

3B Report of Proceedings ( RP) at 578.




1 We refer to the victim by her initials to protect her privacy.
                                                                    2
Consol. Nos. 43432 -6 -II / 43519 -5 -II



          The State charged Parra- Interian with second degree rape and first degree burglary with

sexual motivation.         Parra- Interian       was   incarcerated in Cowlitz             County     Jail pending trial. While


in jail, Parra- Interian approached another inmate, Ronald White, and asked him to kill SA.

White     reported   his    conversations with         Parra- Interian to the jail           staff.    White agreed to wear a


wire, and    did   so on    two different        occasions.        White first wore a wire in jail during a discussion

with   Parra- Interian     about    planning SA' s      murder.          White next wore a wire during a meeting with

Parra- Interian'   s wife where        they   confirmed      the     plan and    White      was given pictures of         SA. Both


conversations were recorded.



          The State then charged Parra- Interian with solicitation to commit first degree murder and


conspiracy to      commit        first degree    murder.     The State        moved      to join    all charges   for trial. Parra-


Interian   objected    to    a   joint trial.     The trial court joined the charges for trial, finding that the

charges were a series of acts that were connected together and that evidence would be cross


admissible, although the evidence introduced in separate trials may be more limited.

          At trial, SA testified regarding the facts                     as related above.          When asked to describe her


consciousness level at the time of the assault, SA testified that on a scale of one to ten, with one


being "   completely asleep"          and   ten   being "    all   the way      awake,"     she was "     a four" when she first


felt someone running fingers up her legs and touching inside her vagina. 2A RP at 240.

          White also testified at trial. White testified about the conversations that took place during

the undercover operations, as well as conversations he had with Parra- Interian that were not


recorded. During his testimony, White made the following two statements:

           WHITE]: I        said, "   What if [SA'     s]   child'   s   there ?" "   Do it."


           WHITE]: Again, I            said, "   What if there --        what   if her   child' s   there ?" " That   too."


4B RP at 850 -51.


                                                                     3
Consol. Nos. 43432 -6 -II / 43519 -5 -II



         After White' s testimony, Parra -Interian renewed his motion to sever the charges and

requested a mistrial on the rape and burglary charges. His attorney stated that after watching the

jury during     White'      s    testimony, " you         could see smoke          coming        out of [the   jurors'] ears" and that


the jurors   were "      visibly       angered and        visibly    upset."       4B RP       at   878.   He argued that the jury is

 quite   clearly   prepared         to   convict       him   of   everything      they   can   possibly     convict   him   on."   4B RP


at 878. The trial court denied Parra- Interian' s motion, ruling that

         there     was      no    objection       at   the   particular        time.     Jurors are presumed to follow
         instructions, and I' ve seen more than once when jurors have expressed significant
         emotion during parts of trials, and that have come back and have followed
         instructions,      actually have -- that returned verdicts that seemed contrary to
                                 and

         their -- to their emotions. So, I -- I think jurors are scrupulous. That' s been my
         experience,         they' re very        scrupulous        in their duties.        They take seriously the fact
         that    they' re        to --     to    look     at      each    charge       individually, and each element
         individually, and each element has to be proved beyond a reasonable doubt. The
         fact that there may be a strong emotion in hearing testimony on one day, we are
         planning on going until Monday with testimony, and then closing arguments
         would      be      at   that time.         So, I think any --             I think emotions fade over time.
         Certainly they' re              going to      remember          testimony.      So --      so I think, all that being
         said,   I' ll --   I' ll deny the motion for severance and deny the motion for mistrial.

4B RP at 887 -88.


         The jury found Parra -
                              Interian guilty of all charges. Parra- Interian appeals.

                                                                  ANALYSIS


         Parra- Interian challenges his convictions, arguing that the trial court abused its discretion

by denying       his   motion       to   sever    the   charges.         He argues that the trial court abused its discretion

because the      charges were             improperly      joined      as a matter of       law.      He also argues that joining the

charges    for trial     was prejudicial.              However, joining the charges was legally permissible under

CrR 4. 3 and CrR 4. 3. 1, and Parra -Interian has not shown that a joint trial was so manifestly

prejudicial      that he did             not    receive      a   fair trial.      Parra- Interian also argues that there was


insufficient evidence to support the jury' s verdict on the second degree rape charge because the

                                                                           4
Consol. Nos. 43432 -6 -II / 43519 -5 -II



State failed to               prove    that SA    was    physically helpless        at   the time   of   the   sexual   intercourse. But


the State presented evidence that would allow a reasonable jury to find that SA was asleep for at

least part of the sexual intercourse; therefore, sufficient evidence supports the jury' s verdict

finding        Parra -Interian guilty             of second        degree   rape.    Accordingly, we affirm Parra -
                                                                                                                  Interian' s

convictions.




A.            JOINDER/ SEVERANCE


              We review a trial court' s decision denying a CrR 4.4( b) motion to sever charges for a

manifest abuse of discretion. State v. Eastabrook, 58 Wn. App. 805, 811, 795 P.2d 151, review

denied, 115 Wn.2d 1031 ( 1990).                          Charges may be joined if they are " based on the same conduct

or on a series of acts connected                        together   or   constituting     parts of a single scheme or plan."           CrR


4. 3(   a)(   2).   However, even offenses properly joined under CrR 4.3 may be severed under CrR 4.4

whenever            the trial court "          determines that severance will promote a fair determination of the


defendant'          s guilt or        innocence    of each offense."            CrR 4.4( b); State v. Bythrow, 114 Wn.2d 713,


717, 790 P. 2d 154 ( 1990).                      A defendant seeking severance of properly joined charges bears the

burden of demonstrating that " a trial involving [ all] counts would be so manifestly prejudicial as

to   outweigh            the    concern      for judicial economy." Bythrow, 114 Wn.2d at 718.


               A defendant is prejudiced by joined offenses if (1) the defendant has to present possibly

conflicting defenses for the                     offenses; (   2) the jury may infer guilt on one charge from evidence

presented on another charge; or ( 3) the cumulative evidence may lead to a guilty verdict on all

charges when,                  if   considered   separately, the        evidence would not support             every    charge.   Bythrow,


114 Wn.2d                at   718.    In determining whether the potential for prejudice requires severance, a trial

court must consider (                   1)   the strength of the State' s           evidence   on each         count, ( 2) the clarity of


defenses            as    to    each    count, (   3)    the court' s instructions to the jury to consider each count

                                                                            5
Consol. Nos. 43432 -6 -II / 43519 -5 -II



separately, and ( 4) the cross admissibility of evidence for the other charges even if they were

tried separately. State        v.   Russell, 125 Wn:2d 24, 63, 882 P. 2d 747 ( 1994), cent. denied, 514 U. S.


1129 ( 1995). "[       A]ny residual prejudice must be weighed against the need for judicial economy."

Russell, 125 Wn.2d at 63.


            Here, the trial    court    properly joined the      charges   for trial.   Parra -
                                                                                              Interian' s acts were


clearly connected because solicitation and conspiracy to commit murder were meant to prevent

SA, the      victim of   his   rape charges,   from testifying. ' Therefore, the trial court did not abuse its


discretion by joining these charges with the rape and burglary charges for trial. Accordingly, the

relevant question is whether Parra- Interian has met his burden to show that the trial court


manifestly abused its discretion by not severing the charges because the joint trial was so

manifestly prejudicial it outweighed the benefits of a joint trial.

            Parra- Interian fails to meet his burden to show manifest prejudice according to the

Russell factors.        First, although Parra- Interian alleges that the State' s evidence was significantly

stronger on     the    solicitation and    conspiracy    charges,   he is incorrect. Second, even in a joint trial,


Parra- Interian'   s   defenses to     each count were clear.       Third, the trial court correctly instructed the

jury   to   consider each count         separately.     Fourth, the evidence on each count would have been


cross admissible.        Given these factors, any potential prejudice arising from a joint trial does not

outweigh the need for judicial economy in this case. Russell, 125 Wn.2d at 63.

            Regarding the strength of the State' s evidence on each count, Parra- Interian' s argument

that the State' s evidence was weaker on the rape case relies on the mistaken assumption that a


case based on circumstantial evidence is weaker than a case based on direct evidence. It is well -


established     that   circumstantial and      direct   evidence are considered equal.      State v. Delmarter, 94


Wn.2d 634, 638, 618 P. 2d 99 ( 1980).                    Here, the State had strong circumstantial evidence

                                                             6
Consol. Nos. 43432 -6 -II / 43519 -5 -II



supporting the        rape    and   burglary   charges:    Parra- Interian had no reason to be in the house


because the party was over and everyone was asleep at the time he entered the house; he was the

only person awake at the time of the rape; he refused to allow McGowan to smell his hands;

SA' s birth control patch with his and SA' s DNA was found in the interrogation room he had

been in;     and    he had McGowan' s          sperm on   his fingers.     Similarly, the State had strong direct

evidence against              Interian for the conspiracy
                        Parra -                                     and solicitation charges:   White' s testimony

and     the wiretap    recordings.      Under the law, the strength of the State' s strong circumstantial

evidence on the rape charge is equivalent to the strength of the State' s direct evidence on the


solicitation and conspiracy charges. Accordingly, there was not a disparity in the strength of the

State' s evidence that demonstrates a joint trial resulted in manifest prejudice.


          Regarding the clarity of defenses on each count, Parra- Interian' s defenses were clear.

Parra -
      Interian essentially          presented general     denials   on all counts.   2 Thus, there was little to no

risk that the jury would have been confused by his general denial defense on all counts.

          Regarding the jury instructions, there is no dispute that the trial court properly instructed

the   jury   to   consider   the   evidence on each count        separately.   We presume that juries follow the


trial   court' s   instructions.     Russell, 125 Wn.2d      at   84.   Therefore, because we presume that the


jurors considered the evidence on each count separately, the court' s instruction to the jury

reduced any potential prejudice from a joint trial.

          Finally,    the    evidence on   the   charges was cross admissible.         Parra -Interian concedes that


some evidence of each charge would have been admissible in a trial on the other charge;


however, he argues that because the full extent of the evidence may not have been admissible in


2 Parra- Interian argues that he denied the rape, admitted to witness tampering, and denied having
the intent to       commit murder.         His argument might have some merit if the State had charged
lesser- included offenses on the solicitation and conspiracy charges, but the State did not.
                                                             7
Consol. Nos. 43432 -6 -II / 43519 -5 -1I



the   other   trial,   a   joint trial    was   manifestly   prejudicial.      Parra -Interian specifically argues that the

trial court erred by refusing to sever the charges because the jury' s reaction to White' s testimony,

in and of itself, resulted in a manifest prejudice that required the trial court to grant his motion

for a mistrial and sever the charges. We disagree.

          As   we noted above,             the State   had   a   very strong   circumstantial case on   the rape.   Further,


the State did not even mention White' s testimony regarding killing the child during its closing

argument. Outside of Parra- Interian' s assertions during his argument on the motion for a mistrial

and to sever, there is nothing in the record to support Parra- Interian' s contention that the sole

reason the jury convicted Parra -Interian for the rape and burglary was because of White' s

testimony regarding killing the child.

          And Parra -Interian did not object to the testimony at the time that it was given, nor did he

request   that the trial           court    instruct the     jury   to disregard the     testimony.    We recognize that


declining an instruction to disregard prejudicial testimony is a legitimate trial tactic meant to

avoid   drawing        additional attention         to   prejudicial evidence.       In re Pers. Restraint of Davis, 152

Wn.2d 647, 714, 101 P. 3d 1 ( 2004). Because Parra -
                                                   Interian declined to draw additional attention


to the prejudicial testimony, and the testimony was not mentioned again, the prejudicial nature of

the   testimony        was mitigated.           Moreover, the jury was specifically instructed to decide the case

based on the facts and that they " must not let [ their] emotions overcome [ their] rational thought

process."       7B RP        at   1309.    Again, we must presume that the jury followed this instruction and

did not decide the case based on their initial emotional reaction to White' s testimony.

Accordingly, Parra -Interian has failed to demonstrate manifest prejudice resulting from White' s

testimony regarding Parra- Interian' s instructions to kill SA' s child.



                                                                     8
Consol. Nos. 43432 -6 -II / 43519 -5 -II



         Overall, while Parra -Interian may have suffered some prejudice from a joint trial, the

rules   do   not prohibit a    joint trial simply because the defendant               suffers some prejudice.           The law


requires that the defendant demonstrate a manifest prejudice that denied him a fair trial. Here, in

light of the Russell factors, Parra -Interian has failed to meet his burden to prove that a joint trial

was so prejudicial        that it   outweighed     the benefits      of judicial   economy in this     case.     Accordingly,

Parra- Interian has failed to show that the trial court abused its discretion by refusing to sever the

properly joined charges.

B.       SUFFICIENCY OF THE EVIDENCE


         Parra- Interian also argues that there was insufficient evidence to support the jury' s

verdict on the rape charge because the State failed to prove that SA was physically helpless.

 The test for determining the sufficiency of the evidence is whether, after viewing the evidence

in the light most favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable     doubt."      State    v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "                    A claim of


insufficiency admits the truth of the State' s evidence and all inferences that reasonably can be

drawn therefrom."           Salinas, 119 Wn.2d         at   201.     All " reasonable inferences from the evidence


must be drawn in favor of the State and interpreted most strongly against the defendant."

Salinas, 119 Wn.2d           at    201.      Circumstantial and direct evidence are deemed equally reliable.

Delmarter, 94 Wn.2d           at    638. "    Credibility determinations are for the trier of fact and cannot be

reviewed on appeal."          State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).


         To    convict     Parra -
                                 Interian       of second   degree       rape,   the State   had to   prove     that ( 1)   Parra-


Interian engaged in sexual intercourse and ( 2) the victim was " incapable of consent by reason of

being   physically helpless         or    mentally incapacitated."        RCW 9A.44. 050( 1)( b). Sexual intercourse

occurs       upon   any   penetration,       however   slight,     and   includes    penetration      by   an   object.     RCW


                                                                 9
Consol. Nos. 43432 -6 -II / 43519 -5 -II



9A.44. 010( 1)(   a) -(b).    Physically helpless means " a person who is unconscious or for any other

reason   is physically       unable   to   communicate unwillingness      to   an act."   RCW 9A. 44. 010( 5).   It is


established    that   a person who         is asleep is physically helpless.     State v. Puapuaga, 54 Wn. App.

857, 861, 776 P. 2d 170 ( 1989).


         Here,    SA' s testimony on direct examination supports the reasonable inference that

because she was partially woken up by Parra -Interian digitally penetrating her, Parra -
                                                                                       Interian had

digitally    penetrated    her   while she was     sleeping.    Taking the evidence in the light most favorable

to the State,     sufficient evidence supports         the   rape conviction.     Parra- Interian argues that SA' s


testimony on cross -examination implied that Parra- Interian did not penetrate her until after she
was   partially   awake.       However, it is the jury' s responsibility to resolve conflicting testimony.

State   v.   Thomas, 150 Wn.2d 821, 874 -75, 83                P. 3d 970 ( 2004).    Accordingly, Parra- Interian' s

sufficiency of the evidence claim fails.

         We affirm.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




HUNT, J.




             N. A.' . J.


                                                               10
