                                                                           FILED 

                                                                         NOV. 13,2014 

                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31892-3-III
                      Respondent,             )
                                              )
       v.                                     )
                                              )
ALFONSO CERDA SALAZAR,                        )         UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       KORSMO, J. -    Alfonso Cerda Salazar challenges his convictions for third degree

assault and resisting arrest, contending that various alleged errors deprived him of a fair

trial. Finding no error, we affirm the convictions.

                                          FACTS

       The incident giving rise to the charges at issue in this case occurred when Quincy

Police Department Officer Joseph Westby attempted to arrest Mr. Cerda Salazar on an

outstanding warrant. Mr. Cerda Salazar refused to leave his car. A struggle ensued

between the two men; much of it was recorded. The officer struck Mr. Cerda Salazar

several times in the head and stomach, while Mr. Cerda Salazar bit the officer on the arm.

Charges of resisting arrest and third degree assault were filed from the incident.
No. 31892-3-III
State v. Salazar


       Prior to trial, the defense moved in limine to prohibit the officer from testifying

that the defendant displayed "a thousand-yard stare" at the officer. The court ruled that

the phrase was not helpful because it was unclear what was meant and directed the officer

to describe the behavior with more detail. At trial, the officer described the defendant's

behavior and again characterized it as "a thousand-yard stare."

       The defense moved for a mistrial, arguing that the testimony violated the order in

limine. The trial court disagreed, concluding that the officer described what he saw. The

motion for a mistrial was denied.

       The defense called an expert, forensic pathologist Dr. Carl Wigren, to testify

concerning bite marks. He opined that the mark captured in a photo of Officer Westby's

arm was not a bite mark and drew an illustration of a typical bite mark. The defense then

offered four photographs of human bite marks from forensic atlases. The trial court

excluded the photographs as substantive evidence on the basis that they constituted hearsay.

When the defense offered them as illustrative exhibits, the court excluded them on the basis

that they were prejudicial and cumulative.

      The court instructed the jury on the reasonable doubt standard using the pattern

instruction form that describes the concept in terms ofjurors having an "abiding belief in

the truth of the charge." Clerk's Papers at 16. The jury ultimately convicted Mr. Cerda

Salazar as charged. He then timely appealed to this court.




                                             2

No. 31892-3-III
State v. Salazar


                                        ANALYSIS

       This appeal presents challenges to the trial court's exclusion of the four defense

photographs, the denial of the mistrial motion, the method of exercising peremptory

challenges, and the pattern jury instruction. I We will address the claims in the order noted.

       Exclusion ofPhotographs

       Mr. Cerda Salazar first argues that the court erred by excluding defense exhibits 1-4,

the photographs of bite marks from a forensic atlas, thereby denying him the right to present

his defense. He was allowed to present his defense and the trial court did not abuse the

discretion it is accorded on evidentiary rulings.

       Although the trial court cited multiple reasons for excluding the evidence, it appears

that ER 403 was the primary basis. ER 403 authorizes trial courts to exclude otherwise

relevant evidence if the probative value of the evidence is significantly outweighed by the

danger of unfair prejudice or other interference with the fact-finding function of the jury.

Carson v. Fine, 123 Wn.2d 206,222-23,867 P.2d 610 (1994). A trial judge's decision to

admit or exclude evidence under these provisions is reviewed for abuse of discretion.

Diaz v. State, 175 Wn.2d 457, 462,285 P.3d 873 (2012). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker,

79 Wn.2d 12,26,482 P.2d 775 (1971).



      1 Appellant also presents a cumulative error argument that we need not address in
view of our determination that there was no error.


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No. 31892-3-III
State v. Salazar


       In some circumstances the constitution requires that state evidentiary rules give way

to the constitutional right to present a defense. E.g., State v. Jones, 168 Wn.2d 713, 719-21,

230 P.3d 576 (2010). There is, however, no constitutional right to present irrelevant evidence.

ld. at 720. If a court excludes relevant evidence to the point where it effectively prevents

presentation of the defense, the constitutional right is violated. ld. at 721. Mr. Cerda Salazar

contends that is the case here. We disagree.

       The defense was able to present its theory that the mark on the officer's arm was not

a bite mark. An expert testified to that effect. The expert also prepared an illustration for

the jury depicting a typical human bite mark. Ex. 18. It was only when the defense offered

"gruesome" photographs that the court limited the evidence. Equating the effort to a movie2

scene, the court noted the effect of the exhibits would be to diminish the officer's injury,

which was not at issue in the case, by comparing it to much more significant injuries

illustrated by the atlas photographs. The gruesome nature of the photographs and the

cumulative nature of the evidence, following as it did upon the expert testimony and the

exhibit depicting a "typical" bite mark, were tenable bases for excluding the additional

exhibits under ER 403.




       2 The trial court likened the exhibits to a scene in the film "Crocodile Dundee"
where, in response to someone else's small knife, Mick Dundee pulls out a giant knife
and says, "That's not a knife, THAT's a knife." Report of Proceedings (RP) at 181.




                                               4

NO.3] 892-3-III
State v. Salazar


       The trial court did not abuse its significant discretion in its management of the trial

evidence. The defense was permitted to put forth evidence in support of its theory ofthe

case. There was no impingement on the constitutional right to present a defense.

       Mistrial

       Mr. Cerda Salazar also argues that the court erred in denying his mistrial motion

over the alleged violation of the pretrial ruling. Again we conclude that there was no abuse

of discretion.

       Well settled law also governs review of this issue. When inadmissible testimony

is put before the jury, the trial court should declare a mistrial if the irregularity, in light of

all of the evidence in the trial, so tainted the proceedings that the defendant was deprived

ofa fair trial. State v. Weber, 99 Wn.2d 158, 164,659 P.2d 1102 (1983). A ruling on a

motion for a mistrial is reviewed for abuse of discretion. ld. at 166.

       As noted previously, the trial court found no violation of its pretrial order since the

officer described the defendant's behavior, thus curing the ambiguity of the statement.

Testimony found not to violate an order in limine cannot be an "irregularity" or constitute

the basis for a mistrial.

       But, even if the trial judge erred in interpreting his own pretrial ruling, the error did not

justify a mistrial. The concern at the pretrial hearing with the phrase "thousand-yard stare"




                                                5

No. 31892-3-III
State v. Salazar


was that the officer's meaning 3 was unclear, not that it was somehow a significantly

prejudicial comment. Here, the officer described the behavior that led to his characterization.

Any error from the admission of the statement to characterize that behavior was slight, and

certainly did not justifY a mistrial.

       The court did not abuse its discretion in denying the mistrial.

       Jury Selection

       Mr. Cerda Salazar also argues that the court erred in "closing" the courtroom when

it allowed the attorneys to exercise peremptory challenges in writing. In view of recent

authority against this position, we only briefly discuss this contention.

       Here, counsel exercised peremptory challenges by marking them on a sheet of

paper and passing it back and forth. This court faced a factually similar practice, although

conducted at sidebar, in State v. Love, 176 Wn. App. 911, 914 n.l, 309 P.3d 1209 (2013).

Applying the experience and logic test, we determined that the practice of conducting

peremptory challenges at sidebar did not constitute a closure of the courtroom. Id. at 920.

Accord, State v. Dunn, 180 Wn. App. 570,321 P.3d 1283 (2014). Subsequently, this court

held that conducting peremptory challenges "on paper" did not constitute a closure of the

courtroom. State v. Webb, --- Wn. App. ---, 333 P.3d 470 (2014).



       3 The trial judge explained that the phrase came from World War II and was used
to describe shell-shocked soldiers. RP at 87. The judge believed the officer's use of the
phrase was inaccurate in this context which was why the court required a description of
the behavior the officer was relating to the jury.


                                              6

No. 31892-3-111
State v. Salazar


       In light of these authorities, we can conclude that the exercise of peremptory

challenges in writing does not close a courtroom. There was no error in the peremptory .

challenge process.

       Abiding BeliefInstruction

       Mr. Cerda Salazar also argues that the pattern instruction wrongly refers to "an

abiding belief in the truth of the charge," contending that use of the word "truth" is

Improper. Our precedent rejects his argument, which is lifted from an entirely different

context.

       "Jury instructions, taken in their entirety, must inform the jury that the State bears

the burden of proving every essential element of a criminal offense beyond a reasonable

doubt." State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). An instruction that

relieved the State of its burden would constitute reversible error. Id. This type of

challenge is reviewed de novo "in the context of the instructions as a whole." Id.

       The challenged sentence has been upheld against numerous claims that the

"abiding belief' portion either dilutes the State's burden of proof or shifts the burden of

proof to the defendant. Pirtle, 127 Wn.2d at 656-58; State v. Lane, 56 Wn. App. 286,

299-301,786 P.2d 277 (1989); State v. Mabry, 51 Wn. App. 24, 25, 751 P.2d 882 (1988);

State v. Price, 33 Wn. App. 472, 475-76,655 P.2d 1191 (1982). Based on a case raising

the issue in a different context, Mr. Cerda Salazar now challenges the "belief in the truth"

portion ofthe sentence as confusing or misleading to the jury.



                                              7

No. 31892-3-111
State v. Salazar


       In State v. Emery, the prosecutor during closing argument told the jury that the

Latin root from which we get the word "verdict" means to "speak the truth" and that

"[y]our verdict should speak the truth." State v. Emery, 174 Wn.2d 741, 751,278 P.3d

653 (2012). The Supreme Court held that it is misconduct for a prosecutor to tell the jury

that its job is to "speak the truth":

       We hold that the prosecutor's truth statements are improper. The jury's job is
       not to determine the truth of what happened; a jury therefore does not "speak
       the truth" or "declare the truth." Rather, a jury's job is to determine whether
       the State has proved the charged offenses beyond a reasonable doubt.

Jd. at 760 (citations omitted). The court explained that such statements could have

"confused the jury about its role and the burden of proof." Jd. at 763.

       Seizing on this language, Mr. Cerda Salazar argues that the "abiding belief in the

truth" language is the equivalent ofteUing the jury that its job is to "determine the truth

of what happened." We disagree.

       Problems with "search for the truth" instructions arise only when the instructions

misdirect or redirect the jury's focus. Victor v. Nebraska, 511 U.S. 1,6,114 S. Ct. 1239,

1271. Ed. 2d 583 (1994). Our Supreme Court has expressly approved the use of this

instruction. State v. Bennett, 161 Wn.2d 303, 165 P.3d 1241 (2007). On that basis, this

court has recently rejected the same challenge Mr. Cerda Salazar brings here. State Kinzie,

181 Wn. App. 774,784,326 P.3d 870 (2014); State v. Fedorov, 181 Wn. App. 187,200,

324 P.3d 784 (2014).




                                              8
No. 31892-3-111
State v. Salazar


       These cases convince us that the "belief in the truth" language in Washington

Pattern Jury Instruction 4.01 is sufficient under the constitution because it properly

directs the jury's attention to its constitutional task by anchoring its search for the truth to

the truth of the charges. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed. 2008) (WPIC). WPIC 4.01 directs the jury

to determine the truth of the charges (i.e. every element of the crimes charged) and to do

so after "such consideration," which means "after fully, fairly, and carefully considering

all of the evidence or lack of evidence." In context, the language does not misdirect the

jury or otherwise changes its focus from its constitutional obligation to determine

whether the elements of the crime have been proven beyond a reasonable doubt. The

instruction is not constitutionally deficient.

       This final challenge also is without merit.

       The convictions are affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                                                    orsmo, J.
WE CONCUR:




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