        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             No. 77072-1-I

                      Respondent,                DIVISION ONE

              v.                                 UNPUBLISHED OPINION

BLADIMIRO PEREZ,

                     Appellant.                  FILED: March 11,2019


       ANDRUS, J.    —   A jury found Bladimiro Perez guilty of assault in the fourth

degree and interfering with domestic violence reporting. He challenges the trial

court’s denial of motions to dismiss the charges against him under CrR 4.7 and

8.3(b). We affirm.

                                        FACTS

       On December 5, 2016, the State charged Perez with one count of assault

in the fourth degree, domestic violence, in King County District Court, arising out

of an alleged incidentwith his ex-wife, Sammy-Lee Thaxton, on December 3, 2016.

David Bray was assigned to represent Perez in the district court proceeding. Bray

served a discovery request on the State on December 8, 2016, asking for, among

other things, ‘the substance of any and all oral statements” from witnesses the

State intended to call at trial.
No. 77072-1 -1/2

       The deputy prosecuting attorney assigned to the case, Sam Lee, contacted

Thaxton by phone on April26, 2017.1 In this call, Thaxton informed Lee that Perez

had grabbed her neck, affecting her ability to breathe. Lee had no recollection of

Thaxton using the word “choke” to describe Perez’s actions. Lee did not disclose

the content of this phone conversation to Perez or Bray.

        On May 2, 2017, Lee notified Bray he intended to amend the information to

add a second count of assault in the fourth degree and a new charge of interfering

with domestic violence reporting. On May 3, 2017, the State provided Perez with

a Bill of Particulars in which it alleged that on December 12, 2016,2 Perez punched

Thaxton in the face, and after she said she was calling the police, grabbed her by

the neck and pinned her against the wall while trying to grab her phone. The State

alleged Perez let go only after their 13-year-old son intervened.                The Bill of

Particulars did not indicate Perez had choked Thaxton or had affected her ability

to breathe.

       Bray sought clarification from Lee regarding the basis for the additional

charges. On May 10, 2017, Lee informed Bray that one count of assault related to

“the punch,” and the second count of assault related to “the choke.” This was the

first time Bray had information of any alleged choking or strangulation.

       On May 17, 2017, Bray interviewed Thaxton, with Lee present. Thaxton

told Bray she had been choked and almost lost consciousness during the alleged


       1 Lee’s declaration identified the date as March 26, 2017, but both Perez and the State

acknowledge the date of first contact was actually a month later, April 26, 2017.
       2 The date of the incident was December 3, 2016. The reference to December 12, 2016,

appears to be a typographical error.



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No. 77072-1-1/3

assault. Lee informed Bray after the interview that he needed to discuss the case

with his supervisor to determine if they should refile the charges in superior court.

Bray was left with the impression that Lee had not heard about the alleged

strangulation before that witness interview. Indeed, the May 17, 2017, interview

was the first time Lee had received any in-detail description from Thaxton about

the effects of Perez grabbing her neck.

        On May 22, 2017, Lee made a plea offer to Perez and informed Bray that if

Perez did not accept the State’s plea deal, Lee would refile the case in superior

court. Perez rejected the plea offer.

        That same day, the State dismissed the district court case and charged

Perez in King County Superior Court with one count of assault in the second

degree by strangulation.3 The certification of probable cause, dated May 18, 2017,

alleged that on the afternoon of December 3, 2016, Perez punched Thaxton,

grazing her chin or jaw, then grabbed her by the throat with his right hand, pushing

or slamming her into a wall. It alleged Perez took Thaxton’s cell phone to prevent

her from calling the police, and while Perez held Thaxton by the neck, she began

to “faint a little” from being strangled by Perez and began to lose consciousness.

The State subsequently amended the information on June 14, 2017, to add one

count of interfering with domestic violence reporting.

        Scott Schmidt was appointed to represent Perez in superior court. On June

1, 2017, he served the State with a request for discovery, including a demand



       ~ The State also charged Perez with one count of assault in the fourth degree against his
teenage son. When the State amended the information, it dropped any charge relating to the son.



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No. 77072-1 -114

similar to Bray’s for a summary of any oral statements made by trial witnesses. At

the June 7, 2017 omnibUs hearing, the State indicated it had provided all discovery

to defense counsel as required by CrR 4.7(a). The State never provided Bray or

Schmidt with a summary of Thaxton’s oral statement to Lee during the April 26,

2017 phone call.

       At trial, Thaxton testified she and Perez married in 1997, separated in 2006,

and divorced in 2008. Thaxton and Perez have two children, one daughter and

one son, who was 14 at the time of trial. Perez, who worked construction during

the week, generally spent time with the children on weekends.

       On the date of the incident, Saturday, December 3, 2016, Thaxton texted

Perez to arrange for him to pick up their son for the weekend so she could attend

a Christmas party in Gig Harbor. Thaxton left for work expecting Perez and their

son to stop by her hair salon later that day to say goodbye before heading to

Perez’s home in Yakima, as they usually did. Her son, however, sent her a text

that afternoon letting her know he and Perez intended to just hang out in her house.

She texted Perez asking him if they planned to go to Yakima or stay in town.

Generally, Perez stayed at a local motel if he stayed overnight, but he sent a text

to Thaxton indicating he would stay at her house if acceptable to her. When she

asked why, Perez indicated their son did not want to go to Yakima, and if she would

not let him stay in her home, he intended to leave the son alone and drive back to

Ya kim a.

       Thaxton left work at 5 p.m. and returned home. When she arrived, Perez

was still there. She saw groceries on the counter and a Mexican football game on



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No. 77072-1-1/5

the television, leading her to suspect Perez planned to stay awhile. She asked

Perez what was going on, and he responded, “Ask your son.” Thaxton found their

son asleep in her bedroom.

       She woke her son and told him he needed to pack for the overnight stay

with his father. The son was “grumpy” but went to his room to pack an overnight

bag. Perez gathered his belongings and waited at the front door.

       When the three were together in the living room, Thaxton told their son she

would see him the next day and to have fun with his cousins. At that point, the son

accused Thaxton of wanting to go to a Christmas party more than wanting to be

home with him and used the “F-word.” Thaxton, shocked at her son’s swearing,

put her hand on his shoulder and told him it was unacceptable to swear at her.

       Thaxton then saw Perez’s right fist coming at her face. She described it as

“throw[ing] a right hook at [her] face.” She ducked, and his fist “barely tapped” her

jaw or “grazed [her] chin.” She stepped back in shock, and their son asked Perez,

“Why would you hit my mom?” Perez denied hitting her. Thaxton, who held her

phone in her hand, told Perez she intended to call the police.

      Thaxton testified that when she looked down to call 911, Perez took her by

the throat with his right hand. She described it as “grabb[ing]” her throat. He

pushed her back, and she struggled to stay on her feet. Thaxton testified she was

trying to breathe and felt like she was going to faint. She stated she was having a

hard time breathing “because he was constricting my airway.” She testified she

was not able to scream because of the constriction.




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No. 77072-1-116

       At that point, their son grabbed Perez by his left shoulder and pulled him off

of Thaxton. She grabbed her phone from Perez, ordered him out of her house,

and tried to catch her breath. She overheard Perez tell their son, in response to

his question, “we have to stop her, she is going to call the cops.” Thaxton dialed

911, and Perez walked out the front door.

       The State asked Thaxton about a photograph of her neck. She testified that

two hours later, a friend noticed bruising on her neck and recommended she

photograph the bruise. This photograph showed redness on her neck where she

testified Perez squeezed her.

       Thaxton later took photos of the interior of her house and, at trial, walked

through the photos with the jury, describing her interactions with Perez and their

son. At one point, she stated the photos depicted tape marks on the floor that she

placed “in the middle of April when I had first spoken with Mr. Lee.” She testified

that Lee requested she take a few pictures so he could get an idea of what

happened where. She was not sure she could explain where she and Perez were

standing and felt it would be easier to understand with photographs.

       Thaxton testified she spoke with a police officer for about 20 minutes when

they arrived. On cross-examination, Thaxton stated she told the officer about

being choked. According to her, the officer looked at her neck and saw the red

mark where she had been choked, and she demonstrated how Perez had choked

her.   But she admitted she did not tell the officer her breathing had been

constricted. The officer wrote out an incident report based on her recitation of




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No. 77072-1 -117

events, which Thaxton signed. Thaxton admitted her written statement did not

mention Perez choking her or squeezing her throat, or her feeling faint.

       The following Monday, Thaxton went to an Issaquah court to obtain a

protection order. A victim’s advocate assisted her in completing the application.

She did not recall telling the advocate that Perez had choked her. Her application

also did not refer to being choked, having her throat squeezed, or having her

breathing constricted. She did not mention feeling faint. Instead, she wrote that

Perez grabbed her neck and slammed her against a wall so hard it knocked a

candle off a shelf. To her, the words “grabbed me around the neck” meant he was

choking her.

       During cross, Perez’s attorney asked Thaxton when she had provided

photographs to the prosecutor. She testified that in April she had spoken with Lee

on the telephone and sent him photographs via email. Thaxton initially stated she

did not recall telling Lee that Perez choked her. When asked specifically when she

mentioned being choked to police or the prosecutor for the first time, she testified

she had “seen Mr. Lee prior to [the May 17, 2017 defense interview].” The

pertinent exchange was as follows:

      Q: So you talked to [Lee] about being choked prior to May 17?

      A: He asked me what had happened, and I explained to him yes.

      Q: Was that an in-person conversation, telephone, or by email?

      A: Telephone.




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No. 77072-1-118

       After a short recess, Perez’s attorney moved for the disclosure of any

“Brady” material,4 specifically as it might relate to any conversation Lee had with

Thaxton during April. Lee informed the trial court “there has been no inconsistent

statements made [in] my conversation with Ms. Thaxton and what she is

representing.” Lee stated the State had no exculpatory evidence to disclose.

       King County Deputy Sheriff Timothy McDonald testified he was dispatched

to Thaxton’s house on December 3, arriving shortly after 5:30 p.m. When he spoke

with Thaxton, she told him she had been “grabbed by the throat.” He asked if she

was in pain; she said she was and showed him her neck. McDonald testified that,

per department protocol, once Thaxton reported being grabbed by the neck, he

would have asked if she lost consciousness or if it affected her breathing.

McDonald testified Thaxton denied losing consciousness or having her breathing

affected. She did not tell him Perez squeezed her throat.

       McDonald’s report indicated, under a heading called “strangulation

involved,” that there was a red mark on her neck.                       But next to the word

“strangulation,” McDonald noted “no.” McDonald indicated that by checking a box

that says “red marks,” it means he saw red marks, even though he had no

independent recollection of it.          He saw no bruising, or any other signs of

strangulation, such as petechiae, and noted Thaxton reported no difficulty

swallowing or ringing in her ears.

      After the close of evidence, Perez moved to dismiss the charges against

him based on the State’s “late provision of discovery related to the testimony that


      ~ Brady v. Maryland, 373   u.s. 83, 83 S. Ct.   1194, 10 L. Ed. 2d 215 (1963).



                                              -8-
No. 77072-1 -119

Ms. Thaxton gave that she had a conversation with Mr. Lee in April.” Perez argued

it was both a discovery violation and a basis for dismissal under CrR 8.3(b). He

contended that in his opening statement to the jury, he indicated there would be

no evidence presented at trial showing Thaxton had alleged being choked between

the date of the incident on December 3, 2016 and her May 17, 2017 interview by

defense counsel.     Perez contended the disclosure by Thaxton that she had

reported being choked to Lee in April 2017 undermined Perez’s theory of the case

and counsel’s credibility in the eyes of the jury.

       During argument on the motion, the court reviewed a recording of Thaxton’s

testimony and did not hear any testimony that Thaxton disclosed the choking to

Lee in the April call. Defense counsel challenged this summary of her testimony,

leading the court and counsel to review a portion of Thaxton’s testimony together.

Defense counsel asked for additional time to review more of her cross examination

testimony. The trial court denied this request and denied the motion to dismiss,

finding no evidence Thaxton discussed having been choked by Perez with Lee in

April. The trial court also denied an oral motion for mistrial.

       The following morning, the trial court indicated to counsel it wanted to revisit

its ruling on the defense motion to dismiss. The court stated:

       I did go back and listen to the record again in its entirety last night
       and again this morning, and Mr. Schmidt was correct. When we got
       to the far end of Ms. Thaxton’s [testimony,] she did he did ask at
                                                              —               —


       I think it said 10:38    — what other contacts she had had with
       individuals about eventually being choked, he asked did you talk to
       the prosecutor about being choked? She said that she had he had—


       asked her what had happened and she explained what happened
       right after she sent the photographs to him. He said did you talk to
       him about being choked prior to May 17, 2017? She said, he asked



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No. 77072-1-1/10

          me what happened and I explained that she didn’t say choked, but
          she explained what happened.
But based on the entirety of Thaxton’s testimony, the court concluded there was

an insufficient showing of prejudice to support a motion to dismiss.

          The jury acquitted Perez of assault in the second degree (the strangulation

charge) and found him guilty of the lesser included charge of assault in the fourth

degree. It also found him guilty of interfering with domestic violence reporting.

Additionally, the jury found Perez and Thaxton were members of the same family

or household.

          Perez was sentenced to 364 days in jail, with all but 30 days suspended, to

be served on work release, and 12 months of probation supervised by the

Department of Corrections.

                                      ANALYSIS

          Perez asks this court to reverse his convictions based on a discovery

violation under CrR 4.7 and government mismanagement under CrR 8.3(b). We

will not disturb a trial court’s discovery decision in a criminal case absent a manifest

abuse of discretion. State v. Blackwell, 120 Wn.2d 822, 826, 845 P.2d 1017

(1993).     Similarly, we review a trial court’s denial of a motion to dismiss for

governmental mismanagement under the same abuse of discretion standard.

State v. Brooks, 149 Wn. App. 373, 384, 203 P.3d 397 (2009).

       CrR 4.7(a)(1)(i) requires the prosecution to disclose the names of any

persons the prosecutor intends to call as witnesses at trial, “together with      .   .   the

substance of any oral statements of such witnesses.” The purpose of this rule is

to prevent a defendant from being prejudiced by surprise, misconduct, or arbitrary



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No. 77072-I-I/Il

action by the government. State v. Cannon, 130 Wn.2d 313, 328, 922 P.2d 1293

(1996). Under CrR 4.7(h)(7)(i), if a trial court learns of a discovery violation, it may

order disclosure of information not previously disclosed, grant a continuance,

dismiss the action, or enter an order “as it deems just under the circumstances.”

       Under CrR 8.3(b), the trial court may dismiss any criminal prosecution “due

to arbitrary action or governmental misconduct when there has been prejudice to

the rights of the accused which materially affect the accused’s right to a fair trial.”

Two things must be shown before a court can dismiss charges under this rule.

First, there must be arbitrary action or governmental misconduct. State v. Michielli,

132 Wn.2d 229, 239, 937 P.2d 587 (1997). Second, a defendant must show

prejudice affecting his right to a fair trial. j4. at 240.

       Dismissal as a sanction for a discovery violation or for government

mismanagement is an extraordinary remedy.                Cannon, 130 Wn.2d at 328;

Blackwell, 120 Wn.2d at 830-31. To justify dismissal, a defendant must show

actual prejudice from a discovery violation or governmental mismanagement.

State v. Krenik, 156 Wn. App. 314, 320, 231 P.3d 252 (2010). The mere possibility

of prejudice is insufficient. hi The level of misconduct needed to prove a violation

of due process “must shock the conscience of the court and the universal sense

of fairness.” Statev. Martinez, 121 Wn.App. 21,35,86 P.3d 1210 (2004).

       We, like the trial court, conclude there was an insufficient showing of actual

prejudice to warrant reversing Perez’s convictions. First, Perez was acquitted of

committing assault by strangulation.         The jury was instructed that a person

commits the crime of assault in the second degree when he assaults another by



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No. 77072-1-1/12

strangulation.   “Strangulation” was defined as “to compress a person’s neck,

thereby obstructing the person’s blood flow or ability to breathe, or to compress a

person’s neck with the intent to obstruct the person’s blood flow or ability to

breathe.”    The jury obviously concluded the State had not proven Perez

compressed Thaxton’s neck such that it affected her ability to breathe, despite

Thaxton’s testimony to the contrary. Thus, the State’s failure to disclose to defense

counsel that Thaxton told Lee on April 26, 2017, that Perez choked her or grabbed

her neck in such a way as to affect her breathing did not lead to a conviction on

this felony charge.

       Second, the possibility that counsel’s credibility was damaged by his

misstating the date on which Thaxton first reported being choked is not sufficient

prejudice to warrant a dismissal. A similar argument was rejected in State v. Greiff,

141 Wn.2d 910, 921, 10 P.3d 390 (2000). In that case, a key law enforcement

officer testified at the defendant’s first trial that when he asked the victim if she had

been sexually assaulted, she told him she had not. k1. at 916. The court declared

a mistrial when the jury could not reach a unanimous verdict. j~ In the second

trial, defense counsel, relying on the officer’s earlier testimony, stated in his

opening that the police officer would testify he asked the victim if she had been

assaulted and she told him she had not. ki. When the police officer took the stand

in the second trial, he testified that he never asked the victim if she had been

sexually assaulted. ki. at 917.

       Greiff argued the failure to notify him of this change in testimony caused

actual prejudice because the testimony “sabotaged” his opening statement and



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No. 77072-1 -1/13

“undoubtedly damaged” his attorney’s credibility in the eyes of the jury. Id. at 918,

921. But the Supreme Court stated “‘the trial judge is best suited to judge the

prejudice of a statement.” ki. (quoting State v. Weber, 99 Wn.2d 158, 166, 659

P.2d 1102 (1983)). It concluded the record supported the trial judge’s conclusion

that the inconsistency between the opening statement and the officer’s testimony

was not significantly prejudicial to the credibility of Greiff’s counsel. j4~ at 922.

       Greiff is analogous. The trial court reviewed Thaxton’s testimony, heard

from Lee regarding the content of any conversations he had with Thaxton, and

considered defense counsel’s opening statement.            It concluded the failure to

disclose the oral statements by Thaxton before trial did not prejudice Perez’s right

to a fair trial. The record supports this finding. Perez’s main theory was Thaxton

fabricated the choking allegation, circumstantially established by the fact she did

not raise this allegation for months after the December 3 incident. As the trial court

noted, the theory remained valid even after learning she divulged to prosecutors

she had been choked 21 days earlier than defense counsel previously knew.

Perez was still able to argue the delay in her reporting undermined her credibility.

       Third, State v. Martinez, the case on which Perez relies, is not analogous

to his case. In Martinez, the trial court dismissed charges under CrR 8.3(b) after

the State revealed exculpatory evidence in the course of the trial. 121 Wn. App.

at 24. Martinez was charged with armed robbery after two co-defendants informed

police he was the “mastermind” of the robbery scheme. [ç[. at 24-25. The co

defendants were found with guns, and they claimed Martinez had furnished the

weapons for their use in the robbery. Id. at 24. But almost immediately, police



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No. 77072-1-1/14

discovered one of the guns had been reported stolen by a third party five months

earlier. kJ. at 25. Yet, a co-worker of Martinez told police that Martinez had shown

her that gun almost a year before it had been reported stolen, evidence the State

knew to be exculpatory. ki. at 25-26. In the State’s opening, the prosecutor told

the jury that the co-worker would testify Martinez showed her the gun found in the

possession of the two co-defendants. ki at 26.

       During trial, the prosecutor informed defense counsel he did not intend to

question the co-worker about her identification of the gun.     at 26-27. Just before

the State rested, the prosecutor informed defense counsel that the gun had been

reported stolen after the date on which the co-worker claimed Martinez had

showed it to her. ki. at 27. Even after revealing this evidence, the prosecutor still

sought to connect the gun to Martinez. Id. at 28. Defense counsel had no record

of ever receiving the robbery report relating to the gun allegedly connected to

Martinez. ki. at 25, 30. And the State had no record of ever notifying Martinez or

his attorney of the discrepancy between the date on which the co-worker claimed

Martinez showed her the gun and the date on which it was reported stolen by its

owner. Id. at 30-31.

       The court of appeals upheld the trial court’s finding that failing to disclose

this crucial exculpatory evidence constituted governmental mismanagement. j4~

at 33. It also upheld the trial court’s finding that the withheld evidence prejudiced

Martinez’s right to a fair trial such that only a dismissal of the charge could remedy

the due process violation. ki. at 34.




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No. 77072-1 -1/15

       Here, the evidence the State failed to disclose to Perez was not exculpatory

or so material to his guilt or innocence as to taint the fairness of his trial. Lee

notified Bray of a “choke” by email on May 10, 2017. The substance of Thaxton’s

allegations had been disclosed to defense counsel in the May 17, 2017 defense

interview, and in the information and probable cause certification filed in superior

court on May 22, 2017. We certainly do not condone the prosecutor’s failure to

summarize the content of his conversation with Thaxton. But we conclude the

failure to notify Perez of this conversation does not constitute reversible error.

       Affirmed.




WE CONCUR:
                                                            ,
                                                                p.
                                            4~~T




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