                                                               FILED
                                                            MARCH 12, 2019
                                                      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. 35261-7-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )          UNPUBLISHED OPINION
                                              )
MARCO A. ESPINOZA,                            )
                                              )
                     Appellant.               )

       PENNELL, J. — Marco Espinoza appeals his convictions for three counts of

first degree child molestation, arguing he received ineffective assistance of counsel.

We affirm.

                                          FACTS

       In June 2014, an adult family member overheard sisters D.O. (7-years-old) and

S.O. (8-years-old) and their female cousin L.M. (8-years-old) discussing inappropriate

sexual touching by the children’s uncle, Marco Espinoza. 1 The discussion took place

in Enumclaw, Washington, on the day of a family graduation. After the graduation

ceremony, the children’s disclosures were shared with additional family members and

the police. The Enumclaw authorities transferred the case to Yakima County, where

the acts of molestation were alleged to have occurred.


       1
        A younger female relative was also part of the discussion, but the State did not
bring charges related to her statements.
No. 35261-7-III
State v. Espinoza

       The State charged Mr. Espinoza with three counts of first degree child molestation.

As part of the investigation, the three children were interviewed by a child forensic

interview specialist.

       Prior to trial, the State moved to admit the children’s statements to various adults,

including their parents, the forensic interview specialist, and the police officers, pursuant

to the child hearsay exception. Mr. Espinoza’s counsel did not submit a responsive

memorandum because he agreed that the State’s memorandum accurately set out the law

on child hearsay.

       A child hearsay hearing was held over the course of two days. The State called

the forensic specialist, one of the investigating officers, and four adult family members.

The State also presented testimony from D.O., S.O., and L.M.

       During the hearing, the child witnesses made some inconsistent statements as

to where various events had taken place and who had been present. They also had

inconsistent recollections about who they had made disclosures to and what had been

discussed during the disclosures.

       At the conclusion of the hearing, counsel for the State conceded that there were

some inconsistencies in the children’s testimony. Nevertheless, the State noted the

children did not have a motive to lie and nothing in the record showed they had

any character or reputation for untruthfulness. The State also argued there was nothing

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No. 35261-7-III
State v. Espinoza

to show that the children had any precocious sexual knowledge. Mr. Espinoza’s counsel

requested the court exclude the children’s various statements to family members and

police officers that were made in a group setting, as such circumstances undermine

reliability.

        The trial court ultimately admitted the children’s out-of-court statements as

sufficiently reliable, pursuant to the factors set forth in State v. Ryan, 103 Wn.2d 165,

691 P.2d 197 (1984).

        The three child witnesses testified at trial. Their testimony included some new

information regarding inappropriate touching by Mr. Espinoza. Mr. Espinoza’s attorney

impeached the child witnesses with their inconsistent statements.

        During the defense’s case in chief, Mr. Espinoza’s attorney presented

impeachment testimony from the children’s aunt. The aunt contradicted some of the

child witnesses’ statements regarding dates and family events. The defense did not

call any additional witnesses.

        The jury found Mr. Espinoza guilty of all three counts of first degree child

molestation. Mr. Espinoza was sentenced to 98 months’ incarceration for each count,

to be served concurrently.

        Mr. Espinoza timely appeals.




                                              3
No. 35261-7-III
State v. Espinoza

                                        ANALYSIS

       Mr. Espinoza contends his trial counsel was ineffective for failing to: (1) challenge

the competency of the child witnesses, (2) present a meaningful defense, and (3) argue

against admission of child hearsay statements. We reject each of these claims as lacking

factual support. 2

       To demonstrate ineffective assistance of counsel, Mr. Espinoza must show both

deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-

35, 899 P.2d 1251 (1995); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). If a defendant fails to satisfy either prong, this court need not

inquire further. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).

Defense counsel does not perform deficiently simply by declining to pursue arguments

or theories that lack legal or factual support. See State v. Johnston, 143 Wn. App. 1, 18,

177 P.3d 1127 (2007).

       Going to the first issue, nothing in the record indicates the child witnesses failed to

meet the low threshold for competence. All three children testified coherently and were

able to differentiate the truth from a lie. Although the children made some inconsistent

statements and expressed some lapses in memory, these common circumstances are


       2
         Because we reject each of Mr. Espinoza’s claims of error, we need not address
his claim that his convictions should be reversed under a theory of cumulative error.

                                              4
No. 35261-7-III
State v. Espinoza

insufficient to overcome the strong presumption of competence. See State v. Carlson,

61 Wn. App. 865, 874, 812 P.2d 536 (1991).

       With respect to the allegation that trial counsel failed to present a defense, the

substance of the evidence contemplated by Mr. Espinoza is not part of the trial court

record. As such, we have no basis for reviewing whether the evidence would have been

helpful to Mr. Espinoza’s case. If Mr. Espinoza wishes to expand the record in order to

make a claim of ineffective assistance of counsel, the method for doing so is a personal

restraint petition. McFarland, 127 Wn.2d at 335.

       Finally, we disagree with Mr. Espinoza’s claim that trial counsel failed to

challenge the State’s request to admit child hearsay statements. Although trial counsel

did not submit briefing on the subject, counsel cross-examined the child witnesses and

argued against admission of some of the child hearsay evidence. Mr. Espinoza fails to

point out any additional arguments that would have been viable under the existing record.

If facts outside the record indicate trial counsel had a stronger basis for challenging the

child hearsay statements than what was presented in court, Mr. Espinoza may pursue

relief through a personal restraint petition. Id. However, we have no basis to find

deficient performance on the current record.

           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       Mr. Espinoza has filed a statement of additional grounds for review, raising

                                               5
No. 35261-7-III
State v. Espinoza

arguments premised on facts and evidence outside the record on appeal. As previously

noted, the proper avenue for such arguments is a personal restraint petition, not a direct

appeal. Id. We therefore decline review of these arguments.

                          MOTION TO STRIKE FILING FEE

       Citing State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018), Mr. Espinoza has

filed a motion requesting that we strike his $200 criminal filing fee. Ramirez was decided

after the close of briefing in this case. The decision held that the 2018 amendments 3 to

Washington’s legal financial obligation scheme apply prospectively to cases on direct

review at the time of enactment. Of interest to Mr. Espinoza, the 2018 amendments

prohibit imposition of a $200 criminal filing fee on defendants who are indigent at the

time of sentencing as defined by RCW 10.101.010(3)(a)-(c). RCW 36.18.020(2)(h).

       The record before the court indicates Mr. Espinoza’s request for relief is controlled

by Ramirez. 4 Specifically, Mr. Espinoza had no income at the time of sentencing and

was therefore indigent as defined by RCW 10.101.010(3)(c) (receiving income of one

hundred twenty-five percent or less of the current federally established poverty level).

Accordingly, we grant Mr. Espinoza his requested relief and direct the trial court to strike

the $200 criminal filing fee from the judgment and sentence.


       3
           LAWS OF 2018, ch. 269.
       4
           The State has not responded to Mr. Espinoza’s motion.

                                             6
No. 35261-7-III
State v. Espinoza

                                    CONCLUSION

      The judgment of conviction is affirmed. The matter is remanded to the trial court

with instructions to strike the $200 criminal filing fee from Mr. Espinoza's judgment and

sentence. Mr. Espinoza has filed a motion requesting that we deny costs on appeal in the

event the State substantially prevails on review. Any award of costs will be determined

by our clerk or commissioner in accordance with Title 14 RAP.

      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.



                                         Pennell, J.

WE CONCUR:




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