                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 6, 2015


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

    STATE OF WASHINGTON,                                            No. 46311-3-II

                                Respondent,

         v.

    BERNARDO MARCO MONCADA,                                   UNPUBLISHED OPINION

                                Appellant.

        MAXA, J. — Bernardo Moncada appeals his conviction for third degree child assault. He

argues that the trial court erred in admitting child hearsay statements because the child declarant

did not suffer “ substantial bodily harm” as required under RCW 9A.44.120, and the prosecutor

engaged in misconduct by violating an in limine order and making improper comments during

closing argument.1 We hold that (1) even assuming that the trial court erred in admitting child

hearsay evidence, any error was harmless because that evidence was relatively insignificant and

duplicative; and (2) even assuming that the prosecutor engaged in misconduct, Moncada waived

this argument by failing to object to the prosecutor’ s comments. Accordingly, we affirm

Moncada’ s conviction.




1
 Moncada also argues that the trial court erred by imposing a term of community custody that
exceeded the statutory maximum sentence. However, the State conceded the sentencing error,
and the trial court has since corrected the sentence with our approval under RAP 7.2(e).
Therefore, we need not address this issue.
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                                              FACTS

       Moncada and Jessica Baughman have a son, RB, who lives with Baughman in Oregon.

On February 16, 2013 eight-year-old RB came to Moncada’ s home in Vancouver for a visit.

       That evening Moncada made dinner for RB and Moncada’ s three other children. RB

refused to eat and began shouting. After spending 20 minutes trying to convince RB to eat

without success, Moncada took RB into the bathroom and spanked him three times on his bare

buttocks using the soft side of his belt. When RB still refused to eat, Moncada took him back to

the bathroom several more times for spankings with the belt against his bare buttocks until RB

eventually ate some food.

       On February 18, Baughman picked up RB and took him home. While bathing RB that

evening, Baughman noticed that he had redness and bruising on his right buttock. There was no

broken skin. RB said that Moncada had hit him with a belt.

       RB’ s redness and bruising lasted for seven days, but required no treatment. The bruising

on RB’ s right buttock covered an area approximately three inches by one inch in size. The

bruising on RB’ s left buttock was smaller and lighter, covering about two inches.

       Baughman reported the incident to the authorities. As part of the subsequent

investigation, child forensic interviewer Amanda Kauffman interviewed RB. Kauffman’ s

interview was recorded. As a result of the investigation, the State charged Moncada with second

degree assault of a child, and the information subsequently was amended to include a charge of

third degree assault of a child.

       The trial court held a chapter 9A.44 RCW hearing prior to trial regarding the

admissibility of RB’ s statements to Baughman and RB’ s interview with Kauffman. The trial

court ruled, provisionally, that RB’ s hearsay statements passed the reliability indicia and would




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be admissible if the State produced sufficient evidence that RB’s injuries constituted substantial

bodily harm.

        At trial, RB testified regarding the spankings. Baughman then testified regarding RB’ s

hearsay statements without objection from defense. She stated that RB had said that Moncada

had hit him with a belt. After Baughman testified, the trial court ruled that photographs of RB’ s

buttocks and Baughman’ s testimony had supplied sufficient evidence of bruising that amounted

to substantial bodily harm, allowing the Kauffman interview to be admitted under RCW

9A.44.120.

        The jury found Moncada not guilty of second degree child assault but found him guilty of

third degree child assault. Moncada appeals his conviction.

                                           ANALYSIS

A.      ADMISSION OF CHILD HEARSAY STATEMENTS

        Moncada argues that the trial court erred in admitting RB’ s hearsay statements because

there was insufficient evidence to find that RB’ s red and bruised buttocks amounted to

 substantial bodily harm.” We do not decide whether the trial court abused its discretion in

admitting RB’ s hearsay. Instead, we hold that even assuming that the trial court erred in

admitting the child hearsay statements, any error was harmless because that evidence was

relatively insignificant.

        Under RCW 9A.44.120, hearsay statements of a child under the age of 10 are admissible

in a criminal case when the statements (1) describe “ any act of physical abuse of the child by

another that results in substantial bodily harm as defined by RCW 9A.04.110”; ( 2) the court

finds that the time, content, and circumstances of the statements provide sufficient indicia of

reliability; and (3) the child testifies at the proceedings. Moncada challenges the substantial




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bodily harm requirement. But the State argues that even if the trial court erred in admitting RB’ s

hearsay statements, the error was harmless. We agree.

       Improper admission of evidence constitutes harmless error if the evidence is of only

minor significance in reference to the evidence as a whole. State v. Rodriguez, 163 Wn. App.

215, 233, 259 P.3d 1145 (2011). An erroneous admission of evidence does not amount to

reversible error unless the court determines within reasonable probability that the outcome of the

trial would have been materially affected had the error not occurred. State v. Goggin, 185 Wn.

App. 59, 69, 339 P.3d 983 (2014), review denied, 182 Wn.2d 1027 (2015).

       Here, the child hearsay evidence was not significant in relation to the evidence as a

whole. The hearsay evidence admitted included the statements from RB to Baughman that

Moncada hit him and that a belt was used, and Kauffman’ s recorded interview with RB about the

spankings. But at trial Moncada did not dispute that he spanked RB with a belt – he admitted to

the spankings in his own testimony. Therefore, RB’ s hearsay statements to Baughman were

duplicative of Moncada’ s own admissions. Similarly, Kauffman’ s interview with RB may have

provided slightly different details regarding the spankings, but was very similar to Moncada’ s

own testimony. And RB also testified in person regarding the spankings. As a result, the child

hearsay evidence admitted was insignificant in light of the other evidence presented at trial.

       Further, Moncada’ s argument at trial was not that the spankings did not occur, but that

the spankings were reasonable discipline. Baughman’ s testimony about RB’ s statements and the

Kauffman interview did not really relate to whether the discipline was reasonable. As a result,

the outcome of the trial would not have been materially affected if that evidence had been

excluded.




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        We hold that even if the trial court erred in admitting RB’ s hearsay statements, the error

was harmless.

B.      PROSECUTORIAL MISCONDUCT

        Moncada asserts that the prosecutor engaged in misconduct by (1) violating the trial

court’ s ruling in limine excluding Moncada’ s other acts of discipline, (2) misstating the State’ s

burden in his closing argument, and (3) arguing facts not in evidence and playing on the jury’s

emotions by asking what would have happened if RB had never given in to Moncada. Moncada

also asserts that cumulative effect of the misconduct requires reversal, even if no single instance

of misconduct alone would require such a result. We hold that even assuming that the

prosecutor’ s conduct was improper, Moncada waived his claims by not objecting at trial.

        1.    Legal Principles

        To prevail on a claim of prosecutorial misconduct, a defendant must show that in the

context of the record and all of the circumstances of the trial, the prosecutor’ s conduct was both

improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011).

        However, a defendant waives any claim by failing to object to the prosecutor’ s improper

conduct, unless that conduct was so flagrant and ill-intentioned that an instruction could not have

cured the resulting prejudice. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).

Therefore, to avoid waiver the defendant must show that no curative instruction would have

eliminated the prejudicial effect of the prosecutor’ s conduct. Id. at 760-61. This is the case only

where the misconduct engendered such feeling of prejudice in the mind of the jury as to prevent

a fair trial. Id. at 762.




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           2.   Violation of Trial Court’ s Ruling in Limine

           The trial court ruled in limine to exclude evidence of other occasions when Moncada

disciplined RB or any of his other children. RP 17-18. The trial court stated, “[ Y]ou should tell

your witnesses that we’ re not going to get into other discipline. . . . In general, I would focus the

testimony—or order that the testimony be focused on this one particular issue.” 1 RP at 17.

Moncada argues that the prosecutor violated the trial court’ s ruling in limine during the direct

examination of RB by asking RB about an incident in which Moncada spanked him with a

slipper.

           However, we need not decide whether this questioning was improper because Moncada

failed to object to the prosecutor’ s questioning at trial. If Moncada had objected, the trial court

could have instructed the jury to disregard RB’ s statement about the slipper and focus only on

the spankings with the belt. Because any prejudice could have been cured, we hold that

Moncada waived this claim.

           3.   Misstatement of State’ s Burden

           During closing, the prosecutor argued that Moncada’ s discipline of RB was unreasonable.

The prosecutor read from jury instruction 22, which stated the defense of physical discipline.

The prosecutor then offered these remarks:

           I would argue that the defense cannot assert this defense in this case. It was unreasonable
           to do this to the child as discipline because he caused these substantial marks on the
           child.
              I would also argue they can’ t use the defense because the discipline used here was not
           reasonable and it was not moderate. It’s not moderate to hit a kid with a belt 15 times. I
           would argue that based on this case, based on the evidence you heard, the defense cannot
           assert that.




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2 Report of Proceedings (RP) at 271. Moncada argues that the prosecutor improperly shifted the

burden of proof by implying that Moncada needed to prove his physical discipline was

reasonable, when in fact the State must show that the discipline was unreasonable.

       However, we need not decide whether this conduct was improper because Moncada

failed to object to the prosecutor’ s argument at trial. If Moncada had objected, the trial court

could have instructed the jury regarding the burden of proof and eliminated any confusion.

Because any prejudice could have been cured, we hold that Moncada waived this claim.

       4.     Improper Speculation and Appeal to Jury’s Emotions

       The prosecutor argued in closing:

       The defendant said, I wasn’ t going to back down. What happens if [RB] never
       eats that food? What happens if defendant is not going to back down? Is it the
       kid that has to back down? The kid that has to give in?

2 RP at 274-75. The prosecutor apparently was referencing Moncada’ s earlier testimony that he

had told an investigating officer, “I have never had to go that many rounds” and “ I don’ t give in,

either.” 2 RP at 236-37. Moncada claims that the prosecutor (1) encouraged the jury to convict

based on facts not in evidence when he asked the jury to speculate about what Moncada would

have done if RB had not eaten his macaroni and (2) improperly appealed to the jury’s emotions.

       However, we need not decide whether this conduct was improper because Moncada

failed to object to the prosecutor’ s argument at trial. Moncada argues that the prosecutor’ s

question was so inflammatory that it could not have been cured by objection. We disagree. The

question the prosecutor posed was not beyond cure; the court could have instructed the jury to

disregard the comment and focus on the facts as testified to at trial. Because the alleged

misconduct could have been cured had Moncada objected at trial, we hold that Moncada waived

this claim.



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        5.    Cumulative Misconduct

        Moncada argues that even if individual instances of prosecutorial misconduct do not

warrant reversal, the cumulative effect of the improper conduct deprived him of a fair trial. We

disagree.

        The cumulative effect of repeated prosecutorial conduct may require reversal under

certain circumstances. See In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 707, 286 P.3d

673 (2012). However, here any prejudicial effect of the alleged misconduct could have been

cured. There is no indication that the cumulative effect of the alleged misconduct would have

resulted in prejudice even if curative instructions had been given. Therefore, we reject

Moncada’ s claim of cumulative misconduct.

        We affirm Moncada’ s conviction.

        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.




                                                      MAXA, J.

We concur:




 BJORGEN, A.C.J.




 LEE, J.




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