     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON                             No. 72627-7-1


                     Respondent,                DIVISION ONE


             v.                                 UNPUBLISHED OPINION


LUIS ALBERTO VELA,

                    Appellant.                  FILED: April 18, 2016


      Appelwick, J. — A jury convicted Vela of assaulting and unlawfully

imprisoning his girlfriend. He challenges the trial court's admission of prior acts

of domestic violence and his counsel's failure to request a limiting instruction for

that evidence. We affirm.

                                      FACTS


       Based on allegations that Vela threatened Veronica Lopez-Nunez with a

knife, physically assaulted her, and held her against her will, the State charged

him with three crimes of domestic violence: second degree assault while armed

with a deadly weapon, third degree assault, and unlawful imprisonment.

       Prior to trial, the State moved to admit evidence of Vela's prior domestic

abuse of Veronica under ER 404(b).           That evidence included controlling

behavior, threats of deportation, threats to kill, and sexual mutilation of a prior

girlfriend. Because Veronica's "reasonable apprehension and imminent fear of
No. 72627-7-112

bodily injury" were at issue in the second degree assault count, the State argued

that the "reasonableness of her fear could only be evaluated in light of the

domestic abuse she had suffered at [Vela's] hands." The State also maintained

the prior abuse was relevant to whether Vela unlawfully restrained Veronica by

force, intimidation, or deception on the unlawful imprisonment count.       Last, the

State claimed the evidence was relevant to Veronica's credibility because it

explained why she stayed with Vela, delayed reporting the abuse, and made

excuses for her bruises.


       The defense opposed the motion, arguing that "[t]he assaults are

predicated upon completed unlawful touching" and therefore the prior abuse was

not relevant since no showing of reasonable apprehension or fear was required.

The defense claimed Veronica's credibility was not at issue because she never

recanted her story. It further claimed that the evidence was inadmissible in any

event absent an expert to explain the dynamics of domestic violence for the jury.

In his trial brief, defense counsel stated that if the court admitted the evidence it

should give a limiting instruction "that the evidence is admitted only for the limited

purpose of explaining the relationship between Ms. Nunez and Mr. Vela."

       The court granted the State's motion in part, stating:
              . . . the deportation allegations, the following her within the
       apartment and without, refusing to permit her to have a cell phone,
       keeping her in the bedroom ... are pretty clearly, I think, 404(b),
       and they address the elements the State has to prove, which is
       whether or not she felt intimidated, whether she would report the
       assault, the deportation threat being the overarching one, together
       with any further violence.
No. 72627-7-1 /3
              I'm not persuaded that assault of another girlfriend
        overcomes the prejudicial factors. But assaults which may have
        occurred [in] February and March, I am amenable to permitting.

The court ruled that expert testimony was not necessary to admit the domestic

violence evidence, stating, "I don't think there's case law . . . that requires that

... the evidence be rejected just because there's no expert to testify about the

dynamics of domestic violence."

        At trial, Veronica testified that she met Vela on a dating website in early

2013.    As their relationship became romantic, Vela began spending time at

Veronica's apartment with her and her teen-age daughters, J.C. and W.C.1 He

also exerted increasing control over her activities. On several occasions, Vela

slept in his car in the apartment parking lot "[b]ecause he thought I would go . . .

out somewhere and that I was lying to him when I told him that I had to be with

my daughters." He also convinced Veronica to quit her weekend house-cleaning

job so she could spend more time with him. She eventually quit her primary job

at Overlake Hospital because Vela did not like her interacting with men during

the workday.

        One month into the relationship, Vela borrowed Veronica's cell phone.

When she asked him to give it back, he refused, saying she did not need it.

When she used her daughters' phones, he struck her.

        By April 2013, Vela had partially moved into Veronica's apartment and

was becoming more abusive. She could not use a telephone without telling Vela

who she was calling and asking for permission. She also needed permission to


1 Veronica's daughters were 15 and 13 years old when trial commenced in
August 2014.
No. 72627-7-1 /4

bathe, leave her bedroom, or leave the apartment. If she violated Vela's rules,

he hit her, sometimes leaving bruises on her stomach and arms. At one point, he

threatened to kill her and dump her body in Lake Washington.               He also

threatened to have someone beat up her family. Veronica testified that she did

not call the police because she "was very afraid of what he could do to [her]."

She added that Vela was careful not to display his anger around her daughters.

      Veronica testified that on April 30, 2013, J.C. stated in Vela's presence

that Veronica's brother had called her about a message Veronica had left him.

That night, Vela ordered Veronica to strip and stand naked in front of the

bedroom window until he said otherwise. He told her that if she sat or laid down,

things would "go badly" for her. Veronica stood naked at the window the entire

night. This incident resulted in the unlawful imprisonment charge.

      The next morning, Vela beat Veronica, telling her it was her fault for not

listening to him. He retrieved a steak knife from the kitchen and put it slightly

inside Veronica's vagina. He threatened to fully insert it, saying that it would not

hurt him at all. This incident was the basis for the second degree assault charge.

      The next time Vela visited Veronica, he put a gun to her head and inside

her mouth. He was upset that she wanted to end their relationship and said he

could kill her and her daughters and no one would ever know. He later instructed

Veronica to put the gun away in her apartment.

      On May 5, 2013, Veronica told Vela in front of her daughters that she had

used J.C.'s cell phone to check the balance on a food stamp card. Fearing what

Vela might do to her behind closed doors, Veronica gathered all the scissors and

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No. 72627-7-1 /5

knives in the kitchen and hid them in a laundry hamper. She also moved his gun

from her bedroom to a hallway closet.

       Vela subsequently ordered Veronica to go to her bedroom. He joined her

there and demanded his gun. Veronica said it was in the hallway and offered to

get it. When she left the bedroom, she told J.C. to call the police. She then gave

Vela the gun in a plastic bag. He proceeded to pour his beer on her head and

beat her with the bottle.


       Police arrived a short time later and told Veronica to open the bedroom

door. As she walked toward the door, she heard the rustling of a plastic bag.

Officers entered the room and arrested Vela but did not see a gun. They later

found it, along with some ammunition, in a plastic bag on the lawn below

Veronica's bedroom window.


       The arresting officers testified that Veronica was "obviously distressed and

upset." They saw redness and swelling on her face and neck, bruises on her

upper left arm, and a scratch or scar on her lower left arm. Her hair was wet and

appeared to be missing from a portion of her scalp. The officers found scissors

and kitchen knives in a hamper in the girls' bedroom.

       L.C. and W.C. corroborated Veronica's testimony about Vela's controlling

behavior.    They testified that Vela usually kept her in the bedroom and

accompanied her whenever she came out. When the girls asked about bruises

or scratches on their mother's arms, Veronica told them they were injuries from

work. L.C. testified that on May 5, 2013, her mother asked her to call 911 shortly
No. 72627-7-1 /6

after Vela entered the apartment. L.C. said her mother seemed scared. Neither

L.C. nor W.C. saw or heard Vela hitting or threatening their mother.

       Vela testified in his own defense and denied assaulting, threatening, or

controlling Veronica. He claimed that their relationship was purely sexual, that

they mutually decided to spend most of their time in her bedroom, and that he

kept her cell phone because they agreed to keep each other's phones.              He

admitted sleeping in his car in the apartment parking lot several times, but

claimed he did so out of respect for Veronica's daughters.

       Vela testified that he tried to end the relationship multiple times, but ended

up staying because Veronica threatened to hurt herself. On one occasion, she

intentionally cut her arm with some glass when he said he was leaving her.

Another time, she reacted by cutting herself with a knife.

       Vela claimed Veronica's injuries on the day of his arrest were self-inflicted

or accidental.   He testified that he told Veronica the relationship was over and

she began drinking a beer while he packed his clothes.         He told her, "Please

understand me, don't drink for that" and tried to take the beer from her.      In the

struggle over the beer, Veronica spilled it on her head and struck herself in the

face with her own hand. Veronica then said if she could not have Vela, no one

could. At that point, Vela threw his gun out the window to prevent Veronica from

grabbing it.

       Vela testified that the scratch officers observed on Veronica's arm was a

self-inflicted response to his attempt to end the relationship.        Similarly, he

claimed that the bruises on her arm were inflicted when he tried to stop her from

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No. 72627-7-1 /7

cutting herself.   He denied pulling Veronica's hair and claimed she pulled it

herself out of anger.      He also claimed that Veronica hid the kitchen knives

because he conditioned the continuation of their relationship on her putting all the

knives away.

       On cross-examination, Vela conceded that despite his concerns that

Veronica would harm herself, he left his gun with her. He also conceded that he

did not throw the gun out the window until the police knocked on the door and

announced their presence. On redirect, however, he said he threw the gun out

before the police arrived.

       The jury found Vela guilty as charged. He appeals.

                                     DISCUSSION


       Vela contends the trial court abused its discretion in admitting his prior

acts of domestic violence under ER 404(b).         We review a court's decision to

admit or exclude such evidence for abuse of discretion.       State v. Maqers, 164

Wn.2d 174, 181, 189 P.3d 126 (2008).            A court abuses its discretion if its

decision is manifestly unreasonable or based on untenable grounds. jd. The

trial court did not abuse its discretion.


       ER 404(b) limits the admission of prior bad acts:
       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.

This rule bars the use of prior bad acts for the purpose of proving a person's

character and action in conformity with that character. State v. Gresham, 173


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No. 72627-7-1 /8

Wn.2d 405, 420, 269 P.3d 207 (2012). However, the rule permits the admission

of such acts for purposes listed in the rule or approved by the courts. State v.

Cook, 131 Wn. App. 845, 847, 129 P.3d 834 (2006) ("The permitted purposes

listed in the rule are not exclusive), overruled on other grounds by Maqers. 164

Wn.2d 185.


      Our courts have admitted prior acts of domestic violence under ER 404(b)

for a number of purposes.     They include assisting the jury in assessing the

credibility of a victim who recants or makes inconsistent statements, showing the

reasonableness of a victim's fear where fear is an element of the charged

offense, and explaining the victim's delayed reporting of an offense. Maqers, 164

Wn.2d at 186 (acts of domestic violence admissible to show victim's reasonable

fear and to judge credibility of a recanting victim); State v. Gunderson, 181

Wn.2d 916, 925, 337 P.3d 1090 (2014) (prior acts admissible when "the State

has established their overriding probative value, such as to explain a witness's

otherwise inexplicable recantation or conflicting account of events."); State v.

Baker, 162 Wn. App. 468, 474-75, 259 P.3d 270 (2011) (prior acts of domestic

violence admissible to assist jury in assessing credibility of victim who delays

reporting or changes her story).   Vela claims that, contrary to the trial court's

conclusions, none of these purposes apply in this case. We disagree.

      Vela's prior acts of domestic violence were properly admitted to explain

Veronica's inconsistent statements regarding her bruises. Veronica told at least

one of her daughters that her bruises were from work injuries, but then testified

that they were actually a result of Vela's physical abuse. Citing Gunderson, Vela

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No. 72627-7-1 /9

contends prior domestic violence is only admissible to explain conflicts between

a victim's testimony and other formal statements, such as prior statements to

police or a prosecutor. Because this case involved a conflict between Veronica's

testimony and her daughter's testimony about Veronica's out-of-court statement,

Vela claims his prior acts were not admissible under Gunderson.          Nothing in

Gunderson supports this claim.

       Gunderson held that prior acts of domestic violence were not admissible

to explain a conflict between a victim's statement and "other evidence from a

different source."   Gunderson, 181 Wn.2d at 924 (emphasis added).           Where,

however, a victim gives inconsistent accounts on or off the witness stand, then

prior acts of domestic violence are admissible. Id. at 924 n.2, 925. Gunderson

does not require that the inconsistent accounts be given in formal statements or

testimony. Because Veronica gave inconsistent accounts of her bruises, Vela's

prior acts of domestic violence were admissible to explain the inconsistency.

      Vela's prior domestic violence was also admissible to explain Veronica's

delay in reporting and her continuation of the relationship after the events of April

30, 2012.   Baker, 162 Wn. App. at 475 (delay in reporting); Gunderson, 181

Wn.2d at 924 n.2 (continuation of the relationship after domestic violence).

Citing State v. Fisher, 165 Wn.2d 727, 745-46, 202 P.3d 937 (2009), Vela

contends his prior acts were admissible to explain Veronica's delayed reporting

only if the defense first made an issue of the delay. He misreads Fisher-

       Fisher upheld a trial court's ruling that prior physical abuse "was

admissible conditioned upon the defense's making an issue of [the victim's]

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No. 72627-7-1/10

delayed reporting." Fisher, 165 Wn.2d at 746. Fisher did not hold that delayed

reporting must be made an issue before ER 404(b) evidence is admissible to

explain a delay. And, as the State points out, "such a rule would allow defense

[counsel] to lie in wait and make an issue of the delay only in closing argument,

when it is too late for the State to present evidence of the prior abuse to explain

the delay."      Moreover, we have recognized that the seemingly irrational or

inconsistent conduct of a domestic violence victim implicitly raises the issue of

the victim's credibility. See State v. Grant, 83 Wn. App. 98, 106-09, 920 P.2d

609 (1996).      This is true regardless of whether the defense makes delayed

reporting an issue. The court did not abuse its discretion in admitting Vela's prior

acts to explain Veronica's delayed reporting and/or continuation of the

relationship.2


       Vela also contends his prior acts of domestic violence were inadmissible

absent expert testimony explaining the dynamics of domestic violence to the jury.

He contends such testimony is required because the dynamics of domestic

violence are beyond the common knowledge of a lay person. Not only has no

Washington court reached that conclusion, but Division Two of this court and a

majority of the State Supreme Court have either expressly or implicitly rejected it.

Cook, 131 Wn. App. at 852-53 ("While expert testimony may assist a jury in

understanding the intricacies of relationships marked by violence, we do not


       2 Because we conclude Vela's prior acts were admissible on other
grounds, we need not decide whether they were also admissible to prove the
reasonable fear element of second degree assault.

                                         10
No. 72627-7-1 /11

believe such testimony is necessary in order to assess the state of mind of an

individual whose acts are inconsistent with a report of abuse. The jury may draw

from its own common knowledge and the evidence . . .            to determine if the

victim's inconsistent behavior is the result of a fear of retaliation, misguided

affection, internalized shame or blame, or a continuing dependence on the

defendant."); see Maqers, 164 Wn.2d at 197-98 (dissent concluding that "[i]t is

not self-evident why a victim involved in an abusive relationship may often

change their testimony; expert testimony is necessary to establish why, in the

context of the victim's relationship with the defendant, these inconsistencies may

exist."). While dicta in Gunderson, 181 Wn.2d at 924-25 n.2, n.4, indicates that

expert testimony would be helpful in some instances, it does not suggest the

requirement proposed by Vela here. We decline to adopt such a requirement.


      Finally, Vela contends his trial counsel was ineffective for failing to request

a limiting instruction for the evidence admitted under ER 404(b). To establish

ineffective assistance of counsel, a      defendant must show both deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is shown if counsel's

conduct fell below an objective standard of reasonableness. State v. McFarland,

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).           We strongly presume that

counsel provided effective assistance, and we will not find deficient performance

if counsel's conduct can fairly be characterized as legitimate trial strategy or

tactics. McFarland, 127 Wn.2d at 335-36; State v. Grier, 171 Wn.2d 17, 33, 246



                                        11
No. 72627-7-1/12

P.3d 1260 (2011).    Prejudice is established if there is a reasonable probability

that, but for counsel's omissions, the result of the proceeding would have been

different. State v. McFarland. 127 Wn.2d at 334-35.



      Vela claims "there was no legitimate reason not to insist on the limiting

instruction given the prejudicial nature of the uncharged domestic violence

evidence."   He concedes that foregoing a limiting instruction can be a tactical

decision to avoid reemphasizing evidence, but contends such a tactic is

reasonable only when the damaging evidence was briefly mentioned. Because

the prior domestic violence evidence "formed a central piece of [Veronica's]

testimony and the State's case," he contends a limiting instruction would not

have raised "the specter of 'reminding' the jury of briefly referenced evidence."

We are not persuaded.


      Where counsel does not request a limiting instruction regarding prior bad

acts, courts presume the omission was a tactical decision to avoid reemphasizing

prejudicial information. State v. Yarbrough, 151 Wn. App. 66, 90, 210 P.3d 1029

(2009) (failure to propose a limiting instruction as to gang-related evidence

presumed to be a legitimate trial tactic not to reemphasize damaging evidence);

State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000) (failure to propose

limiting instruction for evidence of prior fights in prison dorms was a tactical

decision not to reemphasize damaging evidence). Vela has not overcome this

presumption.




                                       12
No. 72627-7-1/13

         Given the nature of the prior domestic violence evidence in this case,

defense counsel could have reasonably concluded that drawing attention to that

evidence would hurt more than help the defense.           Unlike prior convictions or

other indisputable proof of bad character, Vela's prior acts were disputable. In

fact, the defense theory of the case was that Veronica had fabricated all the

allegations, including the allegations of prior abuse.       In these circumstances,

counsel could have reasonably concluded that the value of a limiting instruction

was outweighed by the concern that mentioning the prior acts in the court's

verbal and written instructions would lend them undue credence.               Because

counsel's alleged omission can fairly be characterized as tactical, there was no

deficient performance.

         In addition, there is no reasonable probability that the absence of a limiting

instruction affected the outcome of this case.       Important aspects of Veronica's

testimony were corroborated by her daughters' testimony and other evidence.

Vela's testimony, on the other hand, at times verged on implausible and was

severely undermined on cross-examination. Moreover, Vela's prior acts were not

the focus of closing argument, and the prosecutor never urged the jury to

consider those acts for propensity purposes. Vela's ineffective assistance claim

fails.

         Vela raises several additional claims in a statement of additional grounds

for review.    He contends the superior court violated double jeopardy principles

when it proceeded with his case while charges involving the same incident were

pending in Bothell Municipal Court. But, jeopardy does not attach in a bench trial

                                           13
No. 72627-7-1 /14

until the court hears evidence. State v. Pruitt, 145 Wn. App. 784, 795, 187 P.3d

326 (2008). Trial in the Bothell matter never commenced for double jeopardy

purposes because the case was dismissed on the city's motion before the Bothell

municipal court heard any evidence.

      Vela also contends the court erred in allowing the jury to have "a piece of

struck evidence"—i.e. his gun—during deliberations. He contends the gun "was

struck as [an] element or evidence, because it was determined to not be

operable" and "was taken out [of] jury instructions as an element of Assault 2."

We note initially that this argument was apparently never raised below, and Vela

offers no basis to review it for the first time on appeal. Accordingly, we need not

consider it. RAP 2.5(a); State v. Grimes. 165 Wn. App. 172, 185-86, 267 P.3d

454 (2011). In any event, the argument is meritless.


      Vela notes, correctly, that the prosecutor elected at the close of the

evidence "not to proceed on the firearm . . . prongs of the assault in the second

degree, just to keep this case . . . focused on the deadly weapon of the knife as

the basis for the assault in the second degree." Vela is incorrect, however, when

he says the gun was "struck evidence" and "had no business in [the] 'courtroom,'

let alone in with [the] jury." The court did not strike the gun evidence. On the

contrary, it was admitted as an exhibit and was relevant to Veronica's fear as well

as Vela's credibility. As the prosecutor noted in closing argument:

            His explanations are inconsistent with both his own accounts
      and the evidence in this case. And that is the key in assessing the
      Defendant's credibility. He tries to explain the physical evidence in
      this case. . . .


                                        14
No. 72627-7-1/15



              And trying to explain away the fact that the knives had been
       put away in the house by saying, well, that was his idea and it was
       his requirement for him to stay in this relationship, despite the fact
       he testified that he didn't want to be in the relationship, so that she
       wouldn't harm herself, this at the same time that he's testifying that
       he left a firearm . . .   in the home that he had no idea whether it
       worked or not.

               And finally, the explanation for the gun being thrown out the
       window is, again, not only not credible, but what he's trying to --
       what he's trying to convince you of demonstrates exactly what he's
       afraid that you -- the appropriate conclusions you'll draw.

              And that is when he took that gun and threw it out the
       window, there was only one reason he did it, and that's because he
       didn't want the police, who were knocking on the door, to find it. He
       didn't want the police to find that gun because he knew what he'd
       been doing with that gun, been threatening Veronica with it and
       intimidating and assaulting her with it.

              It wasn't out of some concern that Veronica might harm
       herself or harm him, because the reality is if what happened was,
       according to his testimony, was that he grabbed it to throw it out the
       window to keep it from her, once he's got it, there's no danger to
       him or her. He can take the gun and he can leave.

              When you look at the Vela's testimony in every one of these
       attempts to explain away the evidence that you heard, it becomes
       more and more unreasonable with every attempt to explain that
       away, and it reflects on his credibility. And what it tells you is that,
       unlike Veronica, who you can clearly rely upon as an accurate and
       reliable witness, Vela is not credible.

The court did not err in allowing the gun into the jury room with the other exhibits.

       Vela also claims his offender score erroneously included the dismissed

Bothell matter. Nothing in the record supports this claim. No criminal history is

referenced in, or attached to, the judgment and sentence or other sentencing

documents.    Defense counsel told the sentencing court that Vela had no prior




                                          15
No. 72627-7-1 /16

felonies and his offender score was four "because of the way that the sentencing

guidelines are structured to affect domestic violence cases."      Counsel was

referring to the fact that each of Vela's three current offenses had to be scored

using the other two current offenses.    RCW 9.94A.589(1)(a).     By statute, the

other current offenses, both of which were crimes of domestic violence, counted

as two points each. RCW 9.94A.525 (21). This accounts for his offender score

of 4.


        Affirmed.




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