      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         )       No. 74662-6-I
              Respondent,                )
                                         )       DIVISION ONE
       v.                                )
                                         )
CARLOS ALBERTO MARTINEZ,                 )       PUBLISHED OPINION
                                         )
              Appellant.                 )       FILED: January 16, 2018
                                         )
       LEACH, J. — Carlos Martinez appeals his conviction for possession of

depictions of a minor engaged in sexually explicit conduct.           Primarily, he

challenges the Washington State Patrol's (WSP) warrantless search of a mirror

image hard drive. But Texas police lawfully seized the hard drive and were not

acting as agents of WSP at the time. The silver platter doctrine allowed the WSP

to later examine the hard drive without a warrant.

       Martinez also challenges the trial court's admission of his former spouse's

testimony about confidential marital communications. Because Martinez acted

as a guardian to the victim, the spousal privilege does not apply here. Martinez

raises additional arguments related to a warrant and the prosecutor's conduct at

trial, but those challenges also fail. We affirm Martinez's conviction.
No. 74662-6-1/ 2



                                      FACTS

       Carlos Martinez began working at the Monroe Police Department in 1989.

He worked in several capacities, including as a Drug Abuse Resistance

Education (D.A.R.E.) program instructor.1         While working as a D.A.R.E.

instructor, Martinez met A.K., who was in fifth grade at the time.

       Beginning in 2001 or 2002, when A.K. was 13 or 14 years old, she began

baby-sitting Martinez's two young children.2 A.K. also came to the Martinezes'

house when she was not baby-sitting.           She would sometimes show up

unannounced. She would help Martinez with chores and do her schoolwork at

the house.

       A.K. testified that Martinez began touching her in a sexual manner when

she was 14. He would come up behind A.K., grab her hips, and push his hips

against hers. Once, when she stayed overnight after baby-sitting, Martinez lay

down next to her in the bed and touch her breasts and buttocks.

      Sometime in late 2003 or early 2004, A.K. told Martinez and Martinez's

then-wife, Julie West,3 that she had accidentally cut herself by running into a

knife on the kitchen counter while baby-sitting for another family. West asked


       1 D.A.R.E. is a program in which police officers instruct elementary school
children about the dangers of drugs and violence.
       2 A.K. and Martinez gave conflicting testimony about whether A.K. or
Martinez asked if A.K. could baby-sit.
       3 Julie West,formerly Julie Martinez, divorced Martinez in 2011.
                                        -2-
No. 74662-6-1 / 3



A.K. to show her the wound. A.K. refused.

       Around April 2004, Martinez set up a video camera in a bathroom. A.K.

testified that while West was gone, after she helped Martinez with chores, he

would tell her to take a shower. Over about a month, Martinez made several

recordings of A.K. getting in and out of the shower. Martinez testified that he did

this out of concern for A.K.'s mental health and that he hoped to find out if she

was cutting herself.

       In May 2004, West went on vacation. While West was gone, A.K. spent

time at Martinez's house, helping with chores, doing homework, and watching

movies. During this time, Martinez told A.K. to take a shower a number of times

after she finished chores. A.K. described one occasion when she and Martinez

watched a movie, sitting together in a big chair. A.K. testified that Martinez

touched her hair and licked her fingers. A.K. testified that Martinez lay on top of

her on the floor, "dry hump[ed]" her, and put her hand on his erection.

       When West returned from vacation, she discovered a love note from A.K.

to Martinez. She also discovered a video recording that Martinez had made of

A.K. getting out of the shower and stored on the family computer.            West

confronted Martinez about the recording. He said he wanted to see if A.K. had

cut herself on the kitchen knife as she had claimed. West claimed that when she

asked Martinez why he still had the recording on the computer, he responded

                                       -3-
No. 74662-6-1/4



that it was "nice to look at."

       Not long after this, A.K. and her family moved from Monroe to Eastern

Washington. Martinez and A.K. kept in touch. Martinez claims that in February

2007 they began a consensual sexual relationship when A.K. was 18 years old.

In fall 2009, the Army recalled Martinez to active duty and stationed him in San

Antonio, Texas. A.K. moved to Texas to be with him. They lived together for a

short time.

       After their relationship deteriorated in October or November 2011,

Martinez gave A.K. the video recordings that he made of her in his bathroom in

2004. A.K. testified that Martinez told her he wanted to watch the tapes one last

time and masturbate to them. She claimed he asked her to touch him as well.

       A short time later, A.K. contacted the Texas police to turn over the tapes.

She also told the Texas police that she began an intimate relationship with

Martinez some time before she was 16. She later contacted WSP.

       The Texas police obtained a warrant to search Martinez's home and seize

his laptop computer and digital media storage devices. Then, a grand jury was

convened in Texas to consider a possession of child pornography charge. But

the grand jury refused to indict, returning a "no bill." The case was dismissed.

       Texas police made a mirror image of Martinez's computer hard drive and,

at WSP's request, sent it to WSP. Without obtaining a separate warrant, WSP

                                        -4-
No. 74662-6-1 / 5



searched this mirror image hard drive. Texas police also sent WSP two actual

laptop computers and hard drives seized from Martinez.          After obtaining a

warrant, WSP searched those items.

      The State initially charged Martinez with two counts of voyeurism, two

counts of child molestation, one count of rape of a child in the third degree, and

one count of possession of depictions of a minor engaged in sexually explicit

conduct. Later, the State dismissed the molestation and rape charges. It tried

Martinez on only one count of voyeurism and one count of possession of

depictions of a minor engaged in sexually explicit conduct.

      The jury found Martinez guilty on both counts. Because the voyeurism

charge occurred outside the statute of limitations, the trial court dismissed that

count and convicted him on only the possession count.

                                   ANALYSIS

                               Warrantless Search

       Martinez contends that the trial court should have suppressed evidence

found on the mirror image hard drive because WSP searched it without a

warrant.   When an appellate court reviews the trial court's decision on a

suppression motion, it determines whether substantial evidence supports any

challenged findings of fact and whether the findings of fact support the trial



                                       -5-
No. 74662-6-1/6



court's conclusions of law.4      An appellate court treats the trial court's

unchallenged findings of fact as true.5 Martinez challenges only the trial court's

conclusions of law, which this court reviews de novo.6

      The Fourth Amendment guarantees "[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches

and seizures." If a government action intrudes upon an individual's "reasonable

expectation of privacy," a search occurs under the Fourth Amendment.7 The

Washington Constitution provides greater protection of a person's privacy rights

than does the Fourth Amendment.8        Article 1, section 7 of the Washington

Constitution states, "No person shall be disturbed in his private affairs, or his

home invaded, without authority of law." Article 1, section 7 "focuses on those

privacy interests which citizens of this state have held, and should be entitled to

hold, safe from governmental trespass absent a warrant."6

       Under the silver platter doctrine, however, evidence lawfully obtained

under the laws of another jurisdiction is admissible in Washington courts even if

the manner the evidence was obtained would violate Washington law.16

      4 Statev. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009).
      5 Statev. O'Neill, 148 Wn.2d 564, 571,62 P.3d 489 (2003).
     6 Garvin, 166 Wn.2d at 249.
     7 Katz v. United States, 389 U.S. 347, 360-61, 88 S. Ct. 507, 19 L. Ed. 2d
576(1967)(Harlan, J., concurring).
     8 State v. Cheatam, 150 Wn.2d 626, 642, 81 P.3d 830(2003).
     9 State v. Myrick, 102 Wn.2d 506, 510-11, 688 P.2d 151 (1984).
     10 State v. Mezquia, 129 Wn. App. 118, 132, 118 P.3d 378 (2005).
                                      -6-
No. 74662-6-1/ 7



"Evidence is admissible under this doctrine when (1) the foreign jurisdiction

lawfully obtained evidence and (2)the forum state's officers did not act as agents

or cooperate or assist the foreign jurisdiction." Martinez does not dispute that

Texas lawfully obtained the hard drive. And he does not challenge the trial

court's findings that "WSP had no involvement in obtaining or serving the Texas

warrant" and "Texas police did not act as agents of WSP when they obtained or

served the warrant." Thus, under the silver platter doctrine, the evidence is

admissible.

       Martinez contends that the silver platter doctrine does not apply here

because the Texas officers did not conduct any search that would be unlawful in

Washington.12 But Martinez mistakenly asserts that this doctrine requires that

the search be unlawful in Washington. The doctrine requires that the State show

only two things: (1) the search was lawful in Texas and (2) the Washington

officers did not act as agents for Texas or cooperate or assist Texas in any way.

Because the State proved this, the doctrine applies.




       11 Mezquia, 129 Wn. App. at 132.
       12 Martinez provides a lengthy discussion of the history of the silver platter
doctrine and disapproves of Washington's decision to apply the doctrine. But he
does not provide any argument for why Washington should abandon the rule.
                                       -7-
No. 74662-6-1/ 8



                                  Particularity

      Next, Martinez contends that the warrant issued in Washington allowing

the WSP to search his laptop computers and hard drives was overbroad.13 The

Fourth Amendment provides that "no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized." The search warrant

particularity requirement helps prevent general searches, the seizure of objects

on the mistaken assumption that they fall within the issuing magistrate's

authorization, and the issuance of warrants on loose, vague, or doubtful bases of

fact.14 When a search warrant authorizes a search for materials protected by the

First Amendment, a greater degree of particularity is required, and we employ a

more stringent test.15    While the First Amendment presumptively protects

obscene books and films,16 it does not protect child pornography involving actual

minors.17 We review whether a warrant meets the particularity requirement de

novo.15




      13 The State contends that Martinez failed to preserve this challenge but
because the warrant was not overbroad, we do not consider whether Martinez
preserved this claim of error.
      14 State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992).
      15 Perrone, 119 Wn.2d at 550.
      16 Perrone, 119 Wn.2d at 547-48.
      17 State v. Luther, 157 Wn.2d 63, 70-71, 134 P.3d 205 (2006).
      15 State v. Reep, 161 Wn.2d 808, 813, 167 P.3d 1156 (2007).
                                      -8-
No. 74662-6-1 / 9



       Martinez claims the warrant is overbroad because its language gives too

much discretion to the officer executing the warrant. The warrant authorizes

seizure of

      [a]ny photographs, pictures, albums of photographs, books,
      newspapers, magazines, and other writings on the subject of
      sexual activities involving children, pictures and/or drawings
      depicting children under the age of eighteen years who may be
      victims of the aforementioned offenses, and photographs and/or
      pictures depicting minors under the age of eighteen years engaged
      in sexually explicit conduct as defined in RCW 9.68A.011(3).

Martinez relies on State v. Perronel° where the Supreme Court held that the term

"child pornography" is insufficiently particular because, like the term "obscenity,"

it leaves too much discretion to the officer in deciding what to seize under the

warrant. The court noted that using the language of RCW 9.68A.011 could have

easily made the warrant more particular.2° The warrant here does not use the

overbroad term "child pornography." Instead, as suggested by the Perrone court,

it uses the language of the statute: "sexually explicit conduct." Martinez points

out that in State v. Besola21 our Supreme Court rejected an argument that a

citation to the child pornography statute cured overbreadth. But the warrant here

does more than simply cite to the statute, it uses the language "sexually explicit




       19   119 Wn.2d 538, 553, 834 P.2d 611 (1992).
       29 Perrone, 119 Wn.2d   at 553-54.
       21   184 Wn.2d 605, 614, 359 P.3d 799 (2015).
                                        -9-
No. 74662-6-1 / 10



conduct as defined in RCW 9.68A.011(3)."22         This language provides law

enforcement with an objective standard to determine what should be seized.

       Martinez also contends that the warrant was overbroad because it allowed

seizure of lawful items. Specifically, the warrant authorized seizure of materials

"on the subject of sexual activity involving children." The question of whether

material is inherently illegal can be relevant to the degree of particularity

required.23 But lawful materials also can be relevant to a crime. The fact that the

warrant authorizes seizure of lawful materials does not automatically make the

warrant overbroad.    Here, possession of materials about sexuality involving

children is relevant to the charged offense. The warrant is not overbroad for

authorizing seizure of these relevant materials.

       Last, Martinez asserts that the warrant is overbroad because it does not

clearly identify the victim of the charged offenses. But, as the State points out,

the affidavit, which was attached to the warrant and incorporated by reference,

indicated that A.K. was the victim. Thus, the warrant documents contained

enough information for law enforcement to decide what to seize.

      The warrant was sufficiently particular.




       22 Cf. Besola, 184 Wn.2d at 614 (noting that if the warrant had used the
statutory language, it would likely have been sufficiently particular).
       23 State v. Chambers, 88 Wn. App. 640,644, 945 P.2d 1172 (1997).
                                        -10-
No. 74662-6-1 / 11



                                  Warrant Validity

       Next, Martinez contends that the trial court erred when it denied his motion

to suppress evidence after a Franks24 hearing. Specifically, he asserts that the

warrant is invalid because Sergeant Detective Rodriguez left out material facts in

his supporting affidavit.

      "A search warrant may be issued only upon a determination of probable

cause."25 A court may invalidate a warrant and suppressed the fruits of the

search if the person making the supporting affidavit recklessly or intentionally

omits material information.26 An omission does not invalidate a search warrant

simply because it tends to negate probable cause.27            Instead, the omitted

information must be such that an affidavit including it could not have supported

probable cause.28 A defendant can show recklessness with evidence that "the

affiant 'in fact entertained serious doubts as to the truth' of facts or statements in

the affidavit."29 "[S]erious doubts can be shown by (1) actual deliberation on the



       24   Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667
(1978).
       25 State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217(2003).
       26 State v. Chenoweth, 160 Wn.2d 454, 477, 479, 158 P.3d 595 (2007)
(holding that "under article 1, section 7, only material falsehoods or omissions
made recklessly or intentionally will invalidate a search warrant").
       27 State v. Garrison, 118 Wn.2d 870, 874, 827 P.2d 1388 (1992).
       28 Garrison, 118 Wn.2d at 874-75.
       29 State v. O'Connor, 39 Wn. App. 113, 117, 692 P.2d 208 (1984)(internal
quotation marks omitted) (quoting United States v. Davis, 617 F.2d 677, 694
(D.C. Cir. 1979)).
                                         -11-
No. 74662-6-1/ 12



part of the affiant, or (2)the existence of obvious reasons to doubt the veracity of

the informant or the accuracy of his reports."3° Although an appellate court

generally reviews the issuance of a warrant for abuse of discretion and defers to

the magistrate's determination, the appellate court reviews a trial court's

assessment of probable cause, which is a legal conclusion, de novo.31 The

appellate court treats all unchallenged findings of fact made by a trial court at a

suppression hearing as true on appea1.32

       Martinez asserts that the warrant is invalid because the supporting

affidavit failed to state (1)that a Texas grand jury refused to indict him on

charges of possession of child pornography,(2) that A.K. at one time stated that

her first alleged sexual contact with Martinez occurred after she had reached the

age of consent, and (3) certain statements made to A.K.'s school counselor.

       First, information about the Texas "no bill" is not material. The trial court

found,"There are a number of reasons a grand jury could return a `no bill.' Such

proceedings are secret and the Court does not know the underlying reasons for

the decision." That a grand jury in Texas, for an unknown reason, chose not to

indict Martinez for a Texas crime in Texas is not material to whether probable

cause existed to investigate a Washington crime in Washington.

       30 O'Connor, 39 Wn. App. at 117.
       31 State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658 (2008)("Normally we
give great deference to the issuing judge or magistrate.").
       32 State v. Gentry, 125 Wn.2d 570, 605, 888 P.2d 1105 (1995).
                                       -12-
No. 74662-6-1/13



         Second, Martinez does not show that the officer deliberately or recklessly

omitted A.K.'s statement that she first had sex with Martinez when she was 17.

Sergeant Detective Rodriguez testified that although A.K. initially told a WSP

investigator that she did not have intercourse with Martinez until she was 17, she

ultimately said that she had sex with him when she was 15. Sergeant Detective

Rodriguez did not think her initial statement was important and believed she first

had sex with Martinez when she was 15. He explained that victims commonly do

not tell the truth immediately, but he believed that her story progressed to the

truth.    Because Martinez does not show that Sergeant Detective Rodriguez

entertained serious doubts as to the truth of the facts included in the affidavit, this

omission does not invalidate the warrant.

         Third, Martinez does not show that Sergeant Detective Rodriguez

deliberately or recklessly omitted A.K.'s statement to her school counselor. After

West found the love note from A.K., she told A.K.'s school counselor. The

counselor asked A.K. whether she was having an affair with Martinez. A.K.

denied any sexual contact between her and Martinez and said she was disgusted

by the thought. The counselor told a detective about this conversation. Sergeant

Detective Rodriguez did not review this material before he prepared his affidavit,

but he stated that he knew of several reasons why a child might deny sexual

abuse. He said that in his experience, it was not unusual for children to deny the

                                         -13-
No. 74662-6-1 / 14



occurrence of sexual abuse. Detective Sergeant Rodriguez's explanation shows

that he did not intentionally omit this information and that he did not believe it to

be important. Thus, he did not deliberately or recklessly omit it.

        Martinez fails to show that any of these omissions were material and

deliberately or recklessly made. The warrant is not invalid because Sergeant

Detective Rodriguez failed to include them.

        Martinez makes another argument about Sergeant Detective Rodriguez's

affidavit.   He contends that the affidavit did not show a required connection

between the criminal activity and the place to be searched.33 "'[P]robable cause

requires a nexus between criminal activity and the item to be seized, and also a

nexus between the item to be seized and the place to be searched.'"34 The facts

in the warrant adequately establish a connection to possession.35 The boilerplate

in the search warrant about what collectors of child pornography do generally is

not the only evidence in the affidavit to connect the crime to Martinez's computer.

The affidavit describes A.K.'s statements that Martinez stored sexually explicit

images on his computer and that Martinez had several bank accounts to conceal

       33   The State does not respond to this argument. Martinez raised this
argument below.
        34 State v. Them, 138 Wn.2d 133, 140, 977 P.2d 582(1999)(quoting State
v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263(1997)).
        35 Martinez also contends that the boilerplate language in the affidavit
does not contain facts to show that Martinez engaged in trading or trafficking
child pornography. But the State charged Martinez with possession, not
trafficking child pornography.
                                      -14-
No. 74662-6-1 / 15



things from West. In addition, the affidavit stated that Martinez sent sexually

explicit messages over e-mail while posing as A.K. Thus, the affidavit included

facts to show that relevant evidence could be found by searching Martinez's hard

drives and online accounts.

                                  Harmless Error

       Even if the court improperly admitted evidence obtained from the search

of Martinez's hard drives, the error was harmless.         "Constitutional error is

presumed to be prejudicial and the State bears the burden of proving that the

error was harmless."36 "A constitutional error is harmless if the appellate court is

convinced beyond a reasonable doubt that any reasonable jury would have

reached the same result in the absence of the error."37 If the evidence untainted
                                             •
by the error is so overwhelming that it necessarily leads to a finding of guilt, the

appellate court should uphold the conviction.38

       The State introduced two pieces of evidence obtained from Martinez's

hard drives: (1) screenshots that showed a Facebook message that Martinez

sent to A.K.'s sister and (2) Internet searches for laws in Washington about

voyeurism, Washington's statute of limitations for criminal prosecutions, and the

ability of one state to extradite a person to another state. This evidence, while


       36 State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182(1985).
       37 Guloy, 104 Wn.2d at 425.
       38 Guloy, 104 Wn.2d at 426.
                                      -15-
No. 74662-6-1 / 16



relevant to the charged offenses, was not essential to Martinez's conviction or

necessary for law enforcement to have probable cause to arrest him.

      To convict Martinez of possession of depictions of minors engaged in

sexually explicit conduct, the State needed to prove that he knowingly possessed

material showing depictions of the genitals or unclothed pubic or rectal areas of a

minor or the unclothed breast of a female minor for the purpose of sexual

stimulation of the viewer.39 Significantly here, the police received the video

recordings containing this material directly from A.K. Martinez himself testified

that he recorded A.K. when she was a minor and kept the tapes until he gave

them to A.K. years later. A.K.'s testimony about the times Martinez touched her

in a sexual manner around the time Martinez made the recordings indicates he

made the tapes for the purpose of sexual stimulation. And her testimony that he

masturbated to the tapes shows that he watched the tapes for the purpose of

sexual stimulation. In addition, West testified that Martinez had told her that he

kept the tapes because they were "nice to look at."                This evidence

overwhelmingly supports Martinez's conviction.

                                Spousal Privilege

       Martinez also challenges the trial court's admission of West's testimony

about confidential marital communications.


      39   RCW 9.68A.011(4)(f), .070.
                                        -16-
No. 74662-6-1 / 17



       Generally, a current or former spouse cannot be examined about

confidential communications made during the marriage without the consent of the

other spouse.4° This rule tries to "encourage between husband and wife that free

interchange of confidences that is necessary for mutual understanding and

trust."41 But "in some situations the policies that underlie the right to invoke a

testimonial privilege are outweighed by the suppression of truth that may

result."42 Thus, this spousal privilege does not apply in a criminal proceeding for

a crime committed against a child for whom the spouse is a parent or guardian.43

In light of the legislative intent to punish child abusers and protect children from

further mistreatment, Washington courts have liberally interpreted "guardian" to

include a spouse acting in loco parentis, meaning functionally as a parent or




       40 RCW 5.60.060(1)("A spouse or domestic partner shall not be examined
for or against his or her spouse or domestic partner, without the consent of the
spouse or domestic partner; nor can either during marriage or during the
domestic partnership or afterward, be without the consent of the other, examined
as to any communication made by one to the other during the marriage or the
domestic partnership.").
       41 State v. Thorne, 43 Wn.2d 47, 55, 260 P.2d 331 (1953).
       42 State v. Wood, 52 Wn. App. 159, 164, 758 P.2d 530 (1988); see also
State v. Waleczek, 90 Wn.2d 746, 751, 585 P.2d 797 (1978) (opining that "the
husband-wife privileges contained in RCW 5.60.060(1) are also subordinated to
the overriding and paramount legislative intent to protect children from physical
and sexual abuse"); State v. Sanders, 66 Wn. App. 878, 884, 833 P.2d 452
(1992) (noting the strong public policy of ensuring effective prosecutions for
crimes of sexual abuse against children).
       43 RCW 5.60.060(1).
                                      -17-
No. 74662-6-1/18



guardian, even briefly." Whether a person is a parent or guardian depends on

the particular facts and circumstances of the case.45 We review the trial court's

decision that a spouse acted as a guardian for substantial evidence.46 "Evidence

is 'substantial' if it is sufficient to persuade a fair-minded, rational person that the

finding is true."47

       Here, the trial court initially excluded West's testimony about confidential

communications between Martinez and West during their marriage because

insufficient evidence showed Martinez acted as A.K.'s guardian. The next day,

the court reconsidered and concluded that based on West's testimony about the

household and A.K.'s role in the household, Martinez at times acted as A.K.'s

guardian.      The court then permitted West to testify about confidential

communications that took place during her marriage to Martinez.

        Martinez contends that he was not a guardian of A.K. He claims she was

merely a baby-sitter for his children.       But West's testimony shows that the

relationship went beyond this. West testified that they hired A.K. as a baby-sitter,

but that she came over when she was not baby-sitting. A.K. would ask to visit,

and West or Martinez would pick her up. At times, A.K. would show up at the

      44 State v. Chenoweth, 188 Wn. App. 521, 529, 354 P.3d 13, review
denied, 184 Wn.2d 1023 (2015); State v. Modest, 88 Wn. App. 239, 247-48, 944
P.2d 417(1997).
      45 Waleczek, 90 Wn.2d at 753.
      46 See Waleczek, 90 Wn.2d at 753.
      47 State v. Jones, 186 Wn. App. 786, 789, 347 P.3d 483(2015).
                                     -18-
No. 74662-6-1 / 19



house, uninvited. On one occasion, she stayed at their house overnight and

West explained that "[Ole wasn't really babysitting." West testified that they

were responsible for A.K.'s care during the time she stayed with them. West

testified that A.K. would help Martinez with house chores and he would help her

with her homework. Martinez also helped A.K. learn to drive a car. A.K. ate

meals with the family and "was invited to go on outings when a babysitter was

not needed." This evidence is sufficient to support a finding that Martinez acted

as A.K.'s guardian. This finding supports the trial court's decision to admit

West's testimony about confidential marital communications.

       Martinez attempts to distinguish this case, claiming that in cases where a

court found a nonrelative to be acting in loco parentis, the child was very young.45

But courts liberally construe the meaning of "guardian" under the marital

communications statute." Thus, courts have applied the guardian exception to

cases with older children5° and cases where the defendant acted as a guardian

for the child for only a brief period of time.51 Although the age of the child and the

extent of the care are factors that courts consider, the exception to spousal




       48 Waleczek, 90 Wn.2dat 748; Wood,52 Wn. App. at 165.
      49 Waleczek, 90 Wn.2d at 751; Sanders, 66 Wn. App. at 884; Wood, 52
Wn. App. at 164-65.
      80 Modest, 88 Wn. App. at 248.
      81 Waleczek, 90 Wn.2d at 748.
                                     -19-
No. 74662-6-1/ 20



privilege has not been reserved for cases where the defendant has assumed all

parental duties of a young child.

        Even if the trial court incorrectly admitted West's testimony about

confidential communications, the error was harmless.52 "Error that is not of

constitutional magnitude is harmless unless there is a reasonable probability, in

light of the entire record, that the error materially affected the outcome of the

trial."53

        The statement at issue—that Martinez kept the recording because it was

"nice to look at"—relates to whether the recordings served "the purpose of sexual

stimulation of the viewer."54 The State asserts that any error is not prejudicial in

light of the other evidence that showed that Martinez kept the recordings of A.K.

for the purpose of sexual stimulation. In particular, the State points out that

Martinez kept the video for years after he recorded it before he finally gave it to

A.K. And when he gave her the tapes, he told her he wanted to masturbate to

the recordings "one last time" and then have A.K. touch him. Martinez asserts

        52 Martinez asserts that the court should not consider whether the
testimony prejudiced his trial because accused persons are entitled to rely on the
spousal privilege in preparing their defense and trial strategy. State v. White, 50
Wn. App. 858, 862, 751 P.2d 1202 (1988). But courts properly consider prejudice
in examining whether there was a violation of the marital communications
privilege. State v. Webb,64 Wn. App. 480, 488, 824 P.2d 1257(1992)(deciding
that any error in admitting a statement protected by the marital communications
privilege was harmless).
       53 Webb,64 Wn. App. at 488.
       54 RCW 9.68A.011(4)(f), .070.
                                        -20-
No. 74662-6-1/21



that the testimony is particularly prejudicial because it came from the defendant's

wife. That a spouse believes an accusation can be highly prejudicia1.55 But here,

West merely repeated statements by Martinez and did not comment about her

belief in Martinez's guilt. We agree that these facts are sufficient for the jury to

conclude that Martinez kept the recording for the purpose of sexual stimulation

and that West's testimony that Martinez said the recording was "nice to look at"

could not have materially affected the outcome of the trial.

                             Prosecutorial Misconduct

       Next, Martinez claims prosecutorial misconduct denied him a fair trial. A

defendant claiming prosecutorial misconduct bears the burden of establishing

that the prosecutor's conduct was both improper and prejudicia1.56 Because

Martinez failed to object to the prosecutor's conduct at trial, he waived this error

unless the misconduct was so flagrant and ill intentioned that a trial court

instruction could not have cured the prejudice.

       Martinez contends that the prosecutor committed misconduct when she

presented evidence and argument to show that Martinez was psychologically

controlling A.K. Martinez claims the prosecutor made improper statements both

in eliciting witness testimony and in comments in closing argument. First, the

prosecutor asked A.K. about her reasons for moving to Texas, to which she

      55 State   v. Johnson, 152 Wn. App. 924, 933-34, 219 P.3d 958(2009).
      56 State   v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653(2012).
                                       -21-
No. 74662-6-1 /22



responded that she felt "forced and persuaded" by Martinez. The prosecutor

later asked A.K. to explain if Martinez was sad at their last meeting. She

responded that she was "breaking away and he was losing control." In closing

argument, the prosecutor referred to Martinez as A.K.'s "Svengali" and explained

"that's a literary figure whose name is synonymous with the manipulation of a

young girl for the sexual desires of her master." The prosecutor then said that

Martinez "chained [A.K]to him. Not literally, but emotionally and psychologically,

and it took her many years to break free."

      First, Martinez fails to show misconduct because, contrary to Martinez's

contention, the prosecutor did not directly violate a court order. A prosecutor's

violation of a trial court's evidentiary ruling can constitute misconduct.57 But

Martinez misrepresents the court's rulings. The court initially ruled that specific

evidence related to psychological control during their adult relationship was

admissible because it was relevant to the molestation and rape charges. But

when the State dropped those charges, the court reconsidered its prior ruling and

excluded the evidence of prior bad acts under ER 404(b). The court's ruling

excluded evidence that was intended to show psychological control during their

adult relationship but did not exclude other evidence of psychological control.




       57 State   v. Fisher, 165 Wn.2d 727, 748-49, 202 P.3d 937(2009).
                                         -22-
No. 74662-6-1/ 23



The prosecutor's general references to psychological control did not violate this

ruling.

          Even assuming Martinez has shown that the prosecutor's statements were

improper, he still fails to show prejudice. Because Martinez failed to object to the

claimed misconduct, he must show that the alleged misconduct was so flagrant

and ill intentioned that an instruction would not have cured it.58 Martinez must

show that "(1)'no curative instruction would have obviated any prejudicial effect

on the jury' and (2) the misconduct resulted in prejudice that 'had a substantial

likelihood of affecting the jury verdict.'"58 "Jurors are presumed to follow the

court's instructions."80 Here, the claimed misconduct did not involve evidence of

specific bad acts that might prejudice the minds of the jurors despite a curative

instruction. The jury could have followed an instruction to disregard the general

evidence about psychological control. Further, evidence of psychological control

is not particularly relevant to the charge on which the jury found Martinez guilty.

Thus, general references were unlikely to have affected the jury's verdict in light

of the other incriminating evidence. Martinez's prosecutorial misconduct claim

fails.



         Emery, 174 Wn.2d at 760-61.
          58
         Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,
          59
455, 258 P.3d 43(2011)).
      89 State v. Kalebauqh, 183 Wn.2d 578, 586, 355 P.3d 253(2015).
                                     -23-
No. 74662-6-1/ 24



                              Ineffective Assistance

      Finally, Martinez contends that if this court rejects his prosecutorial

misconduct claim, then he received ineffective assistance of counsel.             To

succeed in an ineffective assistance claim, Martinez must show his attorney's

performance fell below an objective standard of reasonableness and that

deficient performance prejudiced him.61         Courts give defense counsel's

performance a great deal of deference and the defendant must overcome a

strong presumption of reasonableness.62

      First, Martinez does not show that his counsel's failure to object was

unreasonable. The reasonableness inquiry requires the defendant to show the

absence of legitimate strategic or tactical reasons for the challenged conduct.63

"Counsel's decisions regarding whether and when to object fall firmly within the

category of strategic or tactical decisions."64 Martinez does not show that his

counsel's decision not to object to the prosecutor's conduct was not strategic.

       Even   if the conduct did fall        below an objective standard          of

reasonableness, Martinez does not show prejudice.66 As explained above, he

      61 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
      62 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).
      63 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
      64 State v. Johnston, 143 Wn. App. 1, 19, 177 P.3d 1127(2007).
      65 The State claims that Martinez's argument that the prosecutor's
misconduct prejudiced him (that no instruction could have cured it) conflicts with
his argument that his counsel's ineffective assistance prejudiced him (that his
                                      -24-
No. 74662-6-1/ 25



does not show that the prosecutor's conduct was improper. Thus, he does not

show that his counsel's failure to object prejudiced him.

                                  CONCLUSION

       We affirm Martinez's conviction.




WE CONCUR:




counsel's timely objection and instruction could have cured the prejudice). These
arguments are inconsistent. But defendants are generally permitted to argue
inconsistent defenses. State v. Frost, 160 Wn.2d 765, 772, 161 P.3d 361 (2007).
                                       -25-
