                                                                FILED 

                                                            OCTOBER 15, 2015 

                                                         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. 32606-3-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
RAUL LOPEZ SOTO,                             )        UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      FEARING, 1.     Appellant Raul Lopez Soto claims the prosecution engaged in

misconduct when the State, in summation, referenced a detective's belief in the validity

ofthe criminal charges and characterized Lopez Soto's theory of the case as "desperate"

and "ludicrous. " We decline reversal of the convictions because Lopez Soto invited

testimony from the detective that the detective believed the charges and because Lopez

Soto forwarded no objections during closing arguments.

                                         FACTS

      In October 2012, ten-year-old Maria lived in Grandview with her mother Alma

Torres, brother Carlos, and sister Evalinne Torres. Maria and Carlos are fictitious names

since the two are minors. Evalinne' s boyfriend, appellant Raul Lopez Soto (Lopez), also
No. 32606-3-111
State v. Lopez Soto


lived with the family.

       According to an earlier report by Maria, around Halloween 2012, Raul Lopez

played what he called "the candy game" with her. Lopez covered Maria's eyes with a t-

shirt and told her to identify the "candy" he inserted in her mouth. Lopez then placed his

penis in Maria's mouth. Days later Lopez played his "game" again in the backyard of the

family's Grandview home. He put his penis in Maria's mouth again. Later Lopez played

his game a third time in the basement of the home, but Maria summarily loosened the

blindfold from her eyes and spied Lopez removing his penis from his trousers. Maria

told Lopez to stop and not to play the candy game anymore. Lopez ended the attempt at

a third game and did not try to play the game with Maria again.

       On July 23,2013, Raul Lopez and Carlos bickered after Carlos called his sister,

Evalinne, a bitch. Lopez and Alma Torres also argued. To end the conflict, Alma ferried

Carlos and Maria to their uncle's house in Prosser on her way to work. On the short

journey to Prosser, Maria disclosed to her mother the candy game Lopez played with her.

Alma immediately returned to the Grandview home and confronted Lopez. Lopez

admitted playing a candy game with Maria, but maintained he inserted actual candy in

Maria's mouth. Lopez vehemently denied sexually assaulting Maria.

      During the evening of July 23,2013, mother Alma Torres called the Grandview

Police Department and reported Raul Lopez's assaults on Maria. On August 8, 2013,

Darla Jensen, a child interviewer, conducted an interview of Maria, who described the

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No. 32606-3-II1
State v. Lopez Soto


candy game incidents, including a physical description of Lopez's penis. On August 9,

2013, police interviewed Lopez, who admitted to placing candy in Maria's mouth during

the time period she identified, but denied sexually assaulting her. Lopez stated that Maria

could describe his penis because she walked into the bathroom while he urinated.

                                      PROCEDURE

       The State of Washington charged Raul Lopez with two counts of first degree rape

of a child and one count of attempted first degree rape of a child. Thereafter Lopez and

the State discussed a time for the defense to interview Maria and Alma Torres. Alma

Torres stopped communicating with the State prosecutor's office and stated she would

not allow Maria to testify at trial. Torres maintained that Maria desired to forget the

incidents.

       The State and Raul Lopez scheduled interviews of Maria and Alma Torres, despite

the women's reluctance to cooperate, for March 4, 2014, but Lopez cancelled at the last

minute. Alma and Maria Torres traveled to the interview site when the State called to tell

them it was cancelled. During this phone call, Alma told the prosecutor's office that

Maria told her she did not see Lopez's penis on the third attempted candy game. The

State maintains it told Lopez's attorney about this comment from Alma Torres between

March 4,2014 and March 20,2014. Lopez insists the State never forwarded the

information.




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No. 32606-3-III
State v. Lopez Soto


       On March 20,2014, the defense interviewed Maria and Alma Torres. During the

interview, Maria stated she may have imagined or dreamed the candy games.

       During trial, Maria testified, but did not remember anythi,ng she said in her August

8, 2013 interview with Darla Jensen. Maria recalled even less about the candy game

incidents. The court allowed the State to play for the jury the video recording of the

Jensen interview of Maria.

       During trial, Grandview Police Department Detective Jose Martin testified.

Detective Martin responded to Alma Torres' report that Raul Lopez sexually assaulted

Maria. On cross-examination, Lopez's attorney questioned Martin's impartiality in

investigating the crime:

              Q. You said that you drove mom and the victim to the courthouse?
              A. I did.
              Q. Who's the victim?
              A. [Maria].
              Q. You had already made up your mind about that?
              A. It was reported that way. I'm just identifying her.
              Q. There wasn't anything in the interview that convinced you that
       she wasn't the victim? 

              [Prosecutor]: Objection. 

              THE COURT: I'm going to overrule it. 

              [Prosecutor]: Okay. 

              A. Can you ask the question again.
              Q. (By Mr. Dold [Defense counsel]) There wasn't anything in the
       interview that convinced you she wasn't the victim?
              A. Well, based on my training and experience, and I can honestly
       say that I believe she was a victim.
              Q. Yes. So if I understood your comments correctly, when you
       spoke to Officer Arraj, your first concern was the safety of [Maria]?
              A. Correct.

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No. 32606-3-111
State v. Lopez Soto



Verbatim Report of Proceedings (VRP) at 277-78.

      Later, outside the presence of the jury, the trial court clarified the purpose and

effect of the colloquy between defense counsel and Detective Jose Martin:

             THE COURT: Now, I've got that part nailed down. Let me go back
      for one moment here. There was a couple objections I wanted to make a
      quick reference to. It was during Detective Martin's testimony, actually
      cross-examination. I just want it to be clear.
             Mr. Dold, and it's my words, essentially invited Officer Martin to
      comment on guilt or innocence as far as I was concerned, whether he
      believed [Maria] or felt her to be a victim.
             MR. DOLD: Correct.
             THE COURT: I would not have allowed that under any other
      circumstances. I want the record to be clear that that testimony was
      brought forth by you, and he was responding to questions that you
      specifically directed him to respond to.
             MR. DOLD: I asked the same question of Ms. Wahl.
             THE COURT: Exactly. Thank you for clearing that up. I wanted to
      make sure that the record stood solid in that regard.

VRP at 327-28.

      At closing, the State commented on the defense's cross-examination of Detective

Jose Martin and on Maria's testimony:

             Now, we heard testimony elicited by the defense that Detective
      Martin -- it was an impact on him and he saw it. This experienced detective
      looked at that interview, and at that point where he had had an open mind
      he saw it, and he believed. He knew that this was true. A girl of that age
      and sophistication would not be able to describe things the way she did,
      how she did it in those kind of sensory details in the way she did and keep
      everything straight and see it the way she did.

             The defendant desperately tried to throw out explanations that were,
      frankly, the evidence will show and common sense, were not true. It'sjust

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No. 32606-3-111
State v. Lopez Soto


      born out of desperation. Of course, she would know what a male penis
      would look like. 1 never lock the door. Everybody has walked in on me. It
      doesn't matter. It's my house. 1 can do what 1 want. It doesn't matter if
      there's little kids running around or my mother-in-law. It's my house, my
      house. Does that ring true? What does that say when you throw something
      so ludicrous and desperate out there?

             Nobody else saw this candy game. He wanted some little kernel that
      he could -- oh, this must have stemmed out of that. It must stem out
      because 1 am getting -- well, they're leaving. Clearly make them more mad
      at me and then they'll come back. Again, excuses born out of desperation
      that does not hold true.
             This young girl, was she telling the truth in that interview? This girl,
      you saw in a much different situation in front of the stand, looking upon us
      and shutting down, almost going catatonic.

              I'll leave you with this: The way she described it to Darla Jensen and
      all that detail, all that struggling to describe something that has different
      aspects, do you have a reasonable doubt that that occurred the way she said
      it, the way she described it, the way she motioned, how much in torment
      meant that made her? You are the sole judges of the credibility. Do you
      understand what's happened, what this issue of delayed disclosure caused
      and the same factors that came to bear as 1 started this case? 1 ask that you
      all take that into consideration.

VRP 352-54, 358-59.

      Raul Lopez argued at closing:

              [Maria] never said he put his penis in my mouth. When 1 asked her
      sitting here in the courtroom, you realize that 1 was the only one that asked
      that question. Nobody else asked that question. Nobody else wanted to
      know the answer to that question because they assume -- the victim
      advocate assumes the children are telling the truth. That's her job, to be
      supportive, not to question.
              It's the same exact training that Darla Jensen has, exactly the same
      training. So instead of doing child advocacy, which that she does most of
      the time, she's now doing one of the 15 interviews she's ever done. She's
      still doing advocacy.

                                                6

No. 32606-3-III
State v. Lopez Soto


              The officer, the same training. He knows that he's not going to get
      an admission from her because he's a guy. So they're setting up the best
      possible way of getting [Maria] to tell this story.
              When he goes and talks to my client, with all of his training and
      interrogation, etcetera, etcetera, etcetera, he told you about that training.
      He is absolutely convinced that my client is guilty not because she said he
      put the penis in my mouth but because of this great big, dark secret that the
      state started their opening with and began their closing with, this secret, this
      delayed disclosure, which means absolutely nothing, absolutely nothing.

            Everybody started with the proposition that my client was guilty.
      They worked from that proposition to try and prove it. The results of that is
      what got played out during the trial.

            The state's case is on trial. It's not [Maria] that's on trial. It's her
      statements that are on trial. What they prove beyond a reasonable doubt.
            God love her. She's a lovely little girl, had a great interview with
      her. She was polite. She was friendly. She was cheerful.
            [Prosecution]: Objection, facts not in evidence.
            THE COURT: Sustained.
            [Defense]: You had a chance to meet her. In none of the interviews
      did [Maria] say­
            [Prosecution]: Objection. 

            THE COURT: Sustained. 


VRP at 360, 365, 367.

      In rebuttal, the State argued:

               If this is some utopia where everything is just perfect and this is the
      first big argument that they ever had, an argument that didn't result on
      blows being thrown, just upset at someone using the "B" word, well, that
      never happens in any household. That's suddenly going to result in them
      never coming back to a house that they've been at most in about a year, and
      a girl is going to expose this? That's what she's going come up with, not
      the scissors incident or pushing or hitting or pinching, that suddenly I had
      some guy's penis in my mouth? Ludicrous. Does that make any sense
      whatsoever when you actually lay it out like that? No, it doesn't. That's
      why it wasn't explained logically because it's ludicrous.

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No. 32606-3-III
State v. Lopez Soto


               Is the girl that got up on the stand, that unsophisticated, meek little
       girl capable of saying what she said to Darla and all that detail if it did not
       happen? Is there any wonder that-it's blame. Is there any wonder that
       after the detective, who kept an open mind, didn't really know a lot of the
       details, then sees that interview, who wouldn't go into talking to the
       defendant after witnessing that and knowing the truth of what the girl said,
       with all those details? That is not something you see, is it? Do you expect
       that of ten-year old girls? Of course not.
               This ludicrous story that the defendant puts forward that it must be
       to somehow to get a home back that they're never going to lose.

VRP at 370-71. Raul Lopez made no objections during the State's closing and rebuttal

arguments.

       The trial court instructed the jury, in part, as follows:

               You are the sole judges of the credibility of each witness. You are
       also the sole judges of the value or weight to be given to the testimony of
       each witness. In considering a witness's testimony, you may consider these
       things: the opportunity of the witness to observe or know the things he or
       she testifies about; the ability of the witness to observe accurately; the
       quality of a witness's memory while testifying; the manner of the witness
       while testifying; any personal interest that the witness might have in the
       outcome or the issues; any bias or prejudice that the witness may have
       shown; the reasonableness of the witness's statements in the context of all
       of the other evidence; and any other factors that affect your evaluation or
       belief of a witness or your evaluation of his or her testimony.
              The lawyers' remarks, statements, and arguments are intended to
       help you understand the evidence and apply the law. It is important,
       however, for you to remember that the lawyers' statements are not
       evidence. The evidence is the testimony and the exhibits. The law is
       contained in my instructions to you. You must disregard any remark,
       statement, or argument that is not supported by the evidence or the law in
       my instructions.

Clerk's Papers at 23.




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No. 32606-3-II1
State v. Lopez Soto


       The jury found Raul Lopez guilty of all three charges, two counts of first degree

rape of a child and one count of attempted first degree rape of a child. The trial court

sentenced Lopez to 162 months to life confinement on each count of rape and 121.5

months to life confinement on attempted rape, with all sentences to run concurrently.

                                 LA W AND ANALYSIS

       Raul Lopez contends that the State committed prosecutorial misconduct during its

closing and rebuttal arguments by referencing Detective Jose Martin's disbelief in

Lopez's innocence and commenting on Maria's credibility as a witness. Lopez also

contends that it was misconduct for the State to call his defense theory "ludicrous." He

asks this court to reverse his convictions, and remand for a new trial.

       The State contends that Lopez waived this assignment of error because he did not

object during the State's closing argument or rebuttal. The State also argues that its

conduct during closing argument did not rise to the level of misconduct. Finally, the

State argues that Lopez can show no prejudice. We hold that Lopez waived any error and

affirm his convictions.

       Raul Lopez acknowledges that he did not object to any of the prosecution's

comments during closing argument. Lopez argues that he did not waive his claim of

prosecutorial misconduct because the conduct irrevocably prejudiced his case.

       A prosecutor enjoys wide latitude in drawing and expressing reasonable inferences

from the evidence during summations. State v. Gentry, 125 Wn.2d 570,641,888 P.2d

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No. 32606-3-III
State v. Lopez Soto


1105 (1995). Nevertheless, a prosecutor's remark is improper ifhe or she misstates the

applicable law, shifts the burden to the defense, mischaracterizes the role of the jury, or

invites the jury to determine guilt on improper grounds. State v. Emery, 174 Wn.2d 741,

759-60,278 P.3d 653 (2012); State v. Boehning, 127 Wn. App. 511, 522,111 P.3d 899

(2005). This court reviews a prosecutor's comments during closing argument in the

context of the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions. State v. Boehning, 127 Wn. App. at 519. A

defendant claiming prosecutorial misconduct must show that the prosecutor's conduct

was both improper and prejudicial in the context of the entire record and circumstances at

trial. State v. Emery, 174 Wn.2d at 756. Even if the defendant shows the comments were

improper, the error does not require reversal unless the appellate court determines there is

a substantial likelihood the misconduct affected the jury's verdict. Gentry, 125 Wn.2d at

641.

       If a defendant did not object to a prosecutor's alleged misconduct at trial, the

defendant waives any error unless the misconduct was so flagrant and ill intentioned that

ajury instruction could not have cured the resulting prejudice. Gentry, 125 Wn.2d at

596. Reviewing courts should focus less on whether the prosecutor's misconduct was

flagrant or ill intentioned and more on whether the resulting prejudice could have been

cured. Emery, 174 Wn.2d at 762. Under this heightened standard, the defendant must

show that (1) no curative instruction would have obviated any prejudicial effect on the

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No. 32606-3-III
State v. Lopez Soto


jury and (2) the misconduct resulted in prejudice that had a substantial likelihood of

affecting the jury verdict. Emery, 174 Wn.2d at 761. Because Raul Lopez did not object

during closing argument, he bears the burden on appeal to demonstrate that the State's

comments were so prejudicial that no curative instruction could have remedied their

effect and that the comments had a substantial likelihood of affecting the jury verdict.

       This court first decides whether a curative instruction could have obviated the

effect of the prosecutor's statements. Raul Lopez cannot surmount this first hurdle.

Lopez tersely contends that referencing Detective Jose Martin's testimony, commenting

on Maria's credibility as a witness, and calling the defense's theory "ludicrous" were

irrevocably prejudicial. Nevertheless, Lopez does not explain why the prosecutor's

comments were prejudicial in the context of the trial's entirety. As explained below, all

of the alleged transgressing remarks could have been, and in some cases were,

neutralized by curative instructions from the trial court.

       The prosecutor's references to the testimony elicited from Detective Jose Martin

during Raul Lopez's cross-examination were proper. As the State posits, Lopez opened

the door to such commentary when he placed Martin's belief about Lopez's guilt at issue

during his cross-examination. The State commits no reversible error by informing the

jury of testimony the defense elicited. State v. Thorgerson, 172 Wn.2d 438, 449, 258

P.3d 43 (2011). The trial court clarified with Lopez, outside the presence of the jury, that

Lopez raised the issue of Martin's belief about his guilt. Confronting a law enforcement

                                                 11 

No. 32606-3-II1
State v. Lopez Soto


officer with his early belief in the guilt of the defendant and veracity of the victim is often

a wise defense tactic in that the strategy portrays the officer as slanting his investigation

to only one conclusion, the culpability of the defendant. As shown by Lopez's closing

argument, Detective Martin's allegedly predisposed belief in his guilt was a key part of

Lopez's theory of the case. Nevertheless, this tactic frees the State to comment on the

defense strategy.

       Any potential prejudice created by the prosecutor's passing reference to Maria's

credibility as a witness was neutralized by the prosecutor's own statements during closing

argument and the trial court's instructions to the jury. The prosecutor never personally

vouched for the credibility of Maria, and the prosecutor told the jury that it was the sole

judge of the credibility of the witnesses. The trial court instructed the jury that it was the

sole judge of the credibility of Maria and others. Juries are presumed to follow the trial

court's instructions, absent evidence proving the contrary. State v. Kirkman, 159 Wn.2d

918,928, 155 P.3d 125 (2007).

       The prosecutor's comments that Raul Lopez's theory of the case was "ludicrous"

and "desperate" were also capable of cure by a jury instruction and likely do not even

constitute improper statements. The trial court instructed the jury to disregard both

attorneys' statements insofar as summations might be misconstrued as evidence.

Moreover, our Supreme Court has expressly found use of the words "desperate" and

"ludicrous" insufficient to create prejudice and warrant a new trial.

                                                  12
No. 32606-3-III
State v. Lopez Soto


       In State v. Thorgerson, 172 Wn.2d 438 (2011), our high court wrote that

describing a defense theory as "desperate" and "bogus" was likely improper, but did not

prejudice Thorgerson such that no curative instruction could cure the damage. In State v.

Brown, 132 Wn.2d 529,566,940 P.2d 546 (1997), our Supreme Court found the

prosecutor's description ofa defense theory as "ludicrous" was reasonable in light of the

evidence. In Brown, a capital case, the defense argued that Cal Coburn Brown did not

have a motive to kill the woman he kidnapped, raped, and tortured for several days,

because she was asleep while Brown telephoned an airline to make his getaway. The

Court held: "The use of the word 'ludicrous' was simply editorial comment by the

prosecuting attorney which was a strong, but fair, response to the argument made by the

defense." Brown, 132 Wn.2d at 566.

       The prosecutor's characterization of Raul Lopez's theory of the case as

"desperate" and "ludicrous" was, as in Brown, uttered in response to a strong closing

argument by the defense. In light of the defense's theory that Maria manufactured the

story in order to prevent her family from moving out of their house they shared with

Lopez, the prosecutor's response was fair.

                                     CONCLUSION

       Raul Lopez waived any contention that purported prosecutorial misconduct

requires a new trial. We affirm his three convictions.




                                                13
No. 32606-3-III
State v. Lopez Soto


      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.




WE CONCUR:




  ~!1:w.ae·7 

    ~)~
      Brown, J.




                                               14 

