     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON                              No. 71026-5-1


                    Respondent,                  ORDER GRANTING MOTION
                                                 FOR RECONSIDERATION,
              v.                                 WITHDRAWING OPINION, AND
                                                 SUBSTITUTING OPINION
ROBERTO GONZALEZ-MENDOZA,

                    Appellant.

      The respondent, State of Washington, has filed a motion for reconsideration. The
appellant, Roberto Gonzalez-Mendoza, has filed an answer. The court has taken the
matter under consideration and has determined that the motion for reconsideration should

be granted.

       Now, therefore, it is hereby

       ORDERED that the motion for reconsideration is granted; and, it is further
       ORDERED that the opinion in the above-referenced case filed on August 10, 2015,
is withdrawn and a substitute opinion be filed in its place.

       Done this / ^dayofUCtP h& ) .2015.
                                                                                c    •
                     FOR THE COURT:                                             O
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                                                               UAA-
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON
                                                    No. 71026-5-1
                     Respondent,
                                                    DIVISION ONE
              v.
                                                    UNPUBLISHED OPINION
ROBERTO GONZALEZ-MENDOZA,

                     Appellant.                     FILED: October 19, 2015


       Trickey, J. — Roberto Gonzalez-Mendoza challenges his judgment and

sentence for his conviction of rape in the first degree. He assigns error to various

evidentiary rulings and to the jury instructions.

       We previously concluded that instructional error warranted reversal of a
deadly weapon enhancement. We granted reconsideration to again consider
whether the trial court properly instructed the jury. We now affirm.

                                       FACTS

       The complainant was working as a prostitute in downtown Seattle.
According to her testimony, she had run out of condoms and was leaving to go
home when Gonzalez-Mendoza rolled down the window of his pickup truck trying

to get her attention. Once a price of $80.00 was established, the complainant went
with Gonzalez-Mendoza.        On arriving at the secluded area she designated,

Gonzalez-Mendoza did not have sufficient funds. When he put his wallet back,

she testified that she was expecting him to either take her back or go to an ATM

(automated teller machine) to get the money.

       Instead, Gonzalez-Mendoza pulled out a large kitchen knife, approximately

13 inches in length. He placed it near the complainant's throat. Gonzalez-
No. 71026-5-1/2


Mendoza forced her to perform oral sex twice. He then partially put a condom on,

forcing her to have vaginal intercourse.

       Afterward, Gonzalez-Mendoza drove her back to a parking lot, cursing at

her to get out of the truck. The complainant testified that she was worried because
he had driven past the parking lot where he had picked her up. Terrified that
Gonzalez-Mendoza was going to run her down, the complainant turned the truck
off and grabbed the truck's keys. Gonzalez-Mendoza followed herout and tackled
her to the ground. Gonzalez-Mendoza punched her and took both his keys and
her keys. She immediately called 911 and reported the license plate number of
the truck.

       The police took the complainant to Harborview Medical Center where a rape
kit was taken. The complainant identified Gonzalez-Mendoza's photograph from
a photomontage Detective Robert Kurosu gave her.
       Gonzalez-Mendoza admitted to having sexual relations with the

complainant, but contended it was consensual. He testified that he was married
and had three children. Gonzalez-Mendoza said he decided to visit a prostitute

because he was having trouble with his wife and that "[he] wasn't satisfied."1 He
admitted that he had both oral and vaginal sex with the complainant, but that it was

consensual. He claimed that the complainant asked for more money after they

had finished having sexual relations. He testified that she grabbed his keys, but
the key that was in the ignition stayed there. Gonzalez-Mendoza stated that he




 1Report of Proceedings (RP) (Aug. 13, 2007) at 10.
No. 71026-5-1/3


tackled her to recover his keys, which she had grabbed. While this was ongoing,

the truck moved forward, banging into the wall. He denied having a knife.

      The police arrested Gonzalez-Mendoza. The knife was not recovered.
      A jury convicted Gonzalez-Mendoza of first degree rape with a deadly
weapon enhancement. He contends the court made errors in its evidentiary rulings
and gave an erroneous instruction on the deadly weapon enhancement.

                                     ANALYSIS


I.     Evidentiary Rulings

       Gonzalez-Mendoza makes several evidentiary challenges. He contends

the trial court erred in excluding trace biological material and evidence of the
complainant's prior contact with police in which she gave a false name. He also
asserts the trial court erred in admitting his prior assault conviction.

       We review evidentiary rulings for abuse ofdiscretion. State v. Garcia. 179
Wn.2d 828, 846, 318 P.3d 266 (2014). An appellate court will overturn the trial
court's rulings on the admissibility of evidence only if its decision was manifestly
unreasonable, exercised on untenable grounds, or based on untenable reasons.

State, ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       Trace Evidence

       Evidence is relevant if it has "any tendency to make the existence of any

fact that is ofconsequence to the determination ofthe action more probable or less
 probable than it would be without the evidence." ER 401. Evidence that is not
 relevant is not admissible. ER 402.
No. 71026-5-1/4


     The State moved in limine to preclude trace biological material found on the

anal swabs under both rape shield and relevance. The trial court reserved its ruling

stating:

       All right. Then I will -- at this point I really don't see that it's relevant
       given the DNA [(deoxyribonucleic acid)] technician or lab technician
       can say anything more than trace evidence. But possibly on this
       issue of condom use it may go to credibility of the alleged victim. So
       once her cross-examination and/or her examination is completed,
       then I think I can determine whether or not there's any relevance to
       that information. As I say, I still don't see that it's of any particular
       prejudice to the State, but I also don't at this point see any real
       relevance to it, and so we will have to wait and see how the alleged
       victim's testimony plays out. So Iwill reserve on that one.[2]
       After the complainant testified about her interaction with Gonzalez-
Mendoza, the court considered the State's motion to exclude evidence from Amy
Jagmin, the forensic scientist who analyzed the DNA. Jagmin found trace material
of limited genetic information. She opined that the trace material "speaks to
something less recent than the current evidence that is pertaining to this case. But
with regard to actual time frames, [she] can't give specific[s]."3
           The defense sought to impeach the victim with this evidence as proof that
she had multiple partners that evening, contradicting her statement to the detective
that she had only had one previously. But the complainant had already testified
that she had at least two partners prior to the sexual contact with Gonzalez-
Mendoza. She also testified that she had had sexual relations with her boyfriend

approximately two days earlier. Because the witness could not place the trace




2 RP (Aug. 6, 2007) at 95.
3 RP (Aug. 9, 2007) at 16.
No. 71026-5-1/5


material in any time frame, it would be mere conjecture that it came from that

evening.

      Gonzalez-Mendoza argued that the evidence was admissible to show that

the complainant was less than truthful because she testified that she used
condoms with several of her "Johns" for various reasons.              Although the

complainant testified thatshe used condoms when working as a prostitute, she did
not state that she only did so. Nor did she state that she used condoms when she
had relations with her boyfriend a couple of days prior to the incident.

      Although evidence offered to impeach a person is relevant if it tends to cast
doubt on a person's credibility and that credibility is a fact of consequence to the
action, a witness may not be impeached on a collateral matter. State v. Aquirre.
168 Wn.2d 350, 362, 229 P.3d 669 (2010). Here, the evidence of unknown trace

material found on the complainant's body, although not attributable to either the
defendant orthe complainant, is not relevant towhether there wasa rape. It does
not make the existence of any fact of consequence to thatdetermination. The trial
court did not abuse its discretion in excluding this evidence.

       Complainant's Prior Bad Act

       The State sought to preclude the defense from soliciting information
regarding the complainant's proffering a false name in her prior contact with the
police. The defense argued that the evidence was admissible to impeach the
complainant's credibility because she had used a false name in several instances
where she had been arrested for various types of crimes. The defense agreed

that the crimes which she might have been arrested for were not admissible. The
No. 71026-5-1/6


defense argued, however, that her giving a false identify to the police was relevant

as to her credibility.

        The State argued that there was only one verifiable instance where the
complainant had given a false name in an unrelated incident. The information
regarding the giving of a false name was obtained from an interview with a
detective and a deputy prosecuting attorney where the complainant admitted that
she once had given the police a false name, but was never charged with a crime
relating to the incident. The State further argued that there was no evidence in the
record that the complainant's giving a false name was close in time to the rape or
trial, such that it would be probative ofthe complainant's credibility in this case.
         The court ruled that it was disingenuous that the defense was prohibited

from bringing up past crimes, but could somehow bring up the fact that the
complainant gave a false name when confronted regarding one of those crimes.
The court found the false name was not probative of the complainant's credibility

as to her testimony regarding the rape.

         ER 608 permits a party to cross-examine a witness about specific instances
of past conduct in order to cast doubt on the witness's credibility.4 Credibility
impeachment questions must be relevant to the truthfulness of the witness's


4
    ER 608(b) provides:
      Specific Instances of Conduct. Specific instances of the conduct of a witness,
      for the purpose of attacking or supporting the witness' credibility, other than
      conviction of crime as provided in rule 609, may not be proved by extrinsic
      evidence. They may, however, in the discretion of the court, if probative of
      truthfulness or untruthfulness, be inquired into on cross examination of the
      witness (1) concerning the witness' character for truthfulness or untruthfulness,
      or (2) concerning the character for truthfulness or untruthfulness of another
      witness as to which character the witness being cross-examined has testified.
No. 71026-5-1/7


present testimony. State v. Benn. 120 Wn.2d 631, 651-52, 845 P.2d 289 (1993).

Such evidence is relevant if it casts doubt on the witness's credibility, or the

witness's credibility is a "factof consequence" to the trial. State v. Allen S., 98 Wn.

App. 452, 459-60, 989 P.2d 1222 (1999). Adefendant's proffered evidence "'must
be of at least minimal relevance'" and he or she cannot avoid this requirement

simply because that evidence is about a past crime in which the witness gave a

false name. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting

State v. Darden. 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)). But a trial court may

exclude evidence of specific instances of conduct for impeachment if it is remote

in time. State v. Wilson. 60 Wn. App. 887, 893, 808 P.2d 754 (1991).

       This evidence was essentially improper propensity evidence, which is

generally inadmissible under ER 404(b) and improper impeachment under ER
608(b). The trial court did not abuse its discretion in excluding the evidence.
       Defendant's Prior Assault Conviction

       Gonzalez-Mendoza testified on direct examination that he visited a

prostitute because he was having marital problems and was not satisfied in his
marriage. On cross-examination, in response to the State's question regarding his
frustration (the reason he proffered for seeking a prostitute), Gonzalez-Mendoza
stated: "I'm not a person who gets irritated or I'm not an aggressive [person]."5
        The trial court ruled that the State could cross-examine Gonzalez-Mendoza

about his misdemeanor assault conviction from May 2006, but limited it to the

conviction and not the fact that it was for domestic violence of his wife.



 5 RP (August 13, 2007) at 38.
No. 71026-5-1/8


      When a party introduces evidence that would be inadmissible if offered by

the opposing party, that party opens the door to the explanation or contradiction of

that evidence. State v. Ortega. 134 Wn. App. 617, 626, 142 P.3d 175 (2006). "[A]

trial court has discretion to admit evidence that might otherwise be inadmissible if

the defendant opens the door to [that] evidence." State v. Warren, 134 Wn. App.

44, 65, 138 P.3d 1081 (2006). This court reviews a trial court's determination that

a party has opened the door for abuse ofdiscretion. Ortega. 134 Wn. App. at 626.
       Here, Gonzalez-Mendoza put his character at issue by his own testimony,

opening the door to the admission ofevidence of his prior conviction. There was
no abuse of discretion.

II.    Deadly Weapon Enhancement

       Gonzalez-Mendoza argues that his due process right was violated because

the jury was not properly instructed on the definition of "deadly weapon" for
purposes of the special verdict.

       "Jury instructions are generally sufficient if they are supported by the
evidence, allow each party to argue its theory of the case, and when read as a
whole, properly inform the trier of fact of the applicable law." Feroen v. Sestero.
182Wn.2d. 794, 803, 346 P.3d 708 (2015). We review de novo alleged errors of
law in jury instructions. State v. Brett. 126Wn.2d 136, 171, 892 P.2d 29 (1995).
       Here, the trial court instructed the jury with two different definitions of
"deadly weapon." Instruction 8 defined "deadly weapon" for purposes of the
 underlying offense. Instruction 14 defined "deadly weapon" for purposes of the
special verdict.
No. 71026-5-1/9


      Instruction 8 was one of several instructions related to the underlying

offense of rape in the first degree. The jury was instructed that one element of
rape in the first degree was that "the defendant used or threatened to use a deadly
weapon or what appeared to be a deadly weapon."6 Consistent with the statutory

definition set forth in RCW 9A.04.110(6), and the standard Washington Pattern

Jury Instructions: Criminal (WPIC) 2.06.01 ("Deadly Weapon—Definition as
Element—Weapons Other Than Firearms and Explosives"), Instruction 8 defined

"deadly weapon" as follows:

             Deadly weapon also means any weapon, device, instrument,
       substance, or article, which under the circumstances in which it is
       used, attempted to be used, or threatened to be used, is readily
       capable of causing death or substantial bodily harm.[7]
       This instruction properly set forth the applicable definition of "deadly
weapon" for purposes of the substantive criminal charge. As Gonzalez-Mendoza
correctly points out, however, the definition of "deadly weapon" for purposes of the
substantive criminal charge differs from the definition of "deadly weapon" for
purposes of the special verdict. Compare RCW 9A.04.110(6) with former RCW
9.94A.602 (1983) (recodified as RCW 9.94A.825 by Laws OF 2009, ch. 28, § 41).
       For purposes of the special verdict, the relevant statutory definition is found
in former RCW 9.94A.602, the statute in effect when Gonzalez-Mendoza

committed the offense. This statute defines "deadly weapon" as follows:

       [A] deadly weapon is an implement or instrument which has the
       capacity to inflict death and from the manner in which it is used, is
       likely to produce or may easily and readily produce death. The
       following instruments are included in the term deadly weapon: . . .
       any knife having a blade longer than three inches, any razor with an

6 Clerk's Papers (CP) at 30.
7 CP at 33.
No. 71026-5-1/10


      unguarded blade, any metal pipe or bar used or intended to be used
      as a club, any explosive, and any weapon containing poisonous or
      injurious gas.

Former RCW 9.94A.602.

      Under this statute, certain instruments, including a knife with a blade over

three inches in length are deadly weapons as a matter of law. These instruments

"require nothing more than their existence for proof of their nature." State v.
Samaniego. 76 Wn. App. 76, 81, 882 P.2d 195 (1994). In such cases, the trier of
fact need not inquire into whether the instrument is a deadly weapon because of
the manner of its use. State v. Sullivan. 47 Wn. App. 81, 83-84, 733 P.2d 598

(1987). Rather, the jury should be instructed that the implement is a deadly
weapon as a matter oflaw. State v. Rahier, 37 Wn. App. 571, 576, 681 P.2d 1299
(1984).

       Instruction 14 defined "deadly weapon" for purposes of the special verdict.

The trial court issued a slightly modified version of WPIC 2.07.01 ("Deadly
Weapon—Definition for Sentence Enhancement—Special Verdict—Knife").
Instruction 14 provided:

                For purposes ofa special verdict the State must prove beyond
          a reasonable doubt that the defendant was armed with a deadly
          weapon at the time of the commission of the crime.

                A person is armed with a deadly weapon if, at the time of the
          commission of the crime, the weapon is easily accessible and readily
          available for offensive or defensive use.   The State must prove
          beyond a reasonable doubt that there was a connection between the
          weapon and the defendant. The State must also prove beyond a
          reasonable doubt that there was a connection between the weapon
          and the crime.




                                           10
No. 71026-5-1/11


            A knife having a blade longer than three inches is a deadly
      weapon.[8]

      This instruction properly informed the jury of the definition of "deadly

weapon" for purposes of the special verdict in this case. The weapon alleged by
the complainant was a knife with a five inch handle and a total length of about 13
inches. Consistent with the authorities just discussed, a knife with a blade over

three inches in length is a deadly weapon as a matter of law.

       Gonzalez-Mendoza claims that the jury instructions, as a whole, were

confusing. We reject this argument.         Instruction 14 expressly applied "[f]or
purposes of a special verdict."9 We presume that the jury followed all instructions
given. State v. Stein. 144 Wn.2d 236, 247, 27 P.3d 184 (2001). In light of this
language, there was no risk that the jury was confused by the deadly weapon
definition contained in Instruction 8.

       Gonzalez-Mendoza argues that Instruction 14 should have included
language relating to the manner of the knife's use because there was a dispute at
trial as to the nature of the device wielded. Assuming he can raise this argument

for the first time on appeal, it has no merit. It was proper to omit language relating
to the manner of use from the instruction. This language is properly included when

the knife in question has a blade less than three inches in length. Here, there was
no evidence that the knife had a blade of less than three inches. Rather, the

testimony showed either that the knife had a blade of about eight inches or that
there was no knife at all.10


8 CP at 40.
9CPat40.
10 RP (Aug. 8, 2007) at 49-50; RP (Aug. 13, 2007) at 17, 31.

                                           11
No. 71026-5-1/12


     We affirm the judgment and sentence.




                                             \f s kMs> V I c r



WE CONCUR:




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