                                                                                                    FILED
                                                                                              COURT OF APPEALS
                                                                                                  DIVISION 11

                                                                                           2015 APR - 7    AM 9: 23
                                                                                              STATE OF WASHINGTON

                                                                                               Y




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

    STATE OF WASHINGTON,                                                               No. 45401 -7 -II


                                          Respondent,


           v.



    JAIME NMI SILVA- ARROYO,                                                      UNPUBLISHED OPINION


                                          Appellant.




          LEE, J. —     A jury found Jaime Silva- Arroyo guilty of attempted second degree rape. Silva -

Arroyo     appeals,     arguing that ( 1)        his conviction should be reversed because the prosecutor


committed misconduct during closing argument and ( 2) certain community custody provisions

should be stricken from his judgment and sentence because they are not crime related. The State

concedes       that the community custody            provisions should       be   stricken.    We find the prosecutor' s


comments        were not     improper    and affirm       Silva- Arroyo'   s conviction.      And, we accept the State' s


concession and remand for the trial court to strike the improper community custody provisions.

                                                             FACTS


          On July 22, 2012, S. M.1 was shopping at a local grocery store when she noticed a man,

later identified as Silva-Arroyo, who appeared to be following her through the store. Leaving the



1
    We   use   initials to   preserve   the   victim' s   privacy.
No. 45401 -7 -II



grocery store, S. M. went to another store in the same shopping center. After she left the second

store, Silva-Arroyo walked up to her, said something in Spanish, and started rifling through his

wallet. S. M. did not speak Spanish, so she motioned for him to leave her alone and walked away.

S. M. began walking toward her house and turned down an alleyway.

         While in the alleyway, Silva-Arroyo came up behind her and pushed her to the ground.

Silva-Arroyo sat on top of her and held her down. Silva-Arroyo started hitting S. M., grabbed her

throat, and tried pulling   down S. M.' s   pants.   S. M. began screaming. Silva-Arroyo lifted his hand


off of   S. M.' s   mouth and   S. M. bit him. Silva- Arroyo   got   up   and walked   away.   S. M. called her


boyfriend and they went to her boyfriend' s parents' house and called the police.

         Bainbridge Island Police Officer Dale Johnson was the responding officer. When Johnson

contacted S. M., he noticed that her lip was swollen, she had bruises on the side of her head, and

she had scratches on her neck. Johnson went with S. M. to the scene of the attack and found a hat


on the ground. S. M. identified the hat as the one Silva-Arroyo had been wearing during the attack.

Officers   were also able   to   obtain a surveillance video   from the grocery    store.   The video showed


Silva-Arroyo in the store.


          Bainbridge Island Police Detective Michael Tovar was assigned to S. M.' s case. The day

after he was assigned, Tovar saw Silva- Arroyo in the area of the grocery store, recognized Silva -

Arroyo from the grocery          store surveillance video,   and stopped     to talk to Silva- Arroyo.   Later,


Tovar showed S. M. a photo montage that included Silva- Arroyo' s picture. S. M. identified Silva -


Arroyo.     When Tovar contacted Silva-Arroyo again, Tovar noticed an injury to Silva- Arroyo' s

hand which he believed to be a bite mark.




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No. 45401 -7 -II



         The State     charged          Silva- Arroyo   with attempted second     degree   rape.      At Silva- Arroyo' s


jury trial, S. M., Johnson, and Tovar testified to the facts above.

         Silva-Arroyo presented a defense of general denial and argued that S. M. misidentified him


as the perpetrator. Silva- Arroyo testified that he was at the shopping center the day of the assault.

He testified that he went into the grocery store but realized that he had left his wallet at his brother' s

house. He left the grocery store and walked down the alleyway. He testified that he regularly used

the alleyway to get to his brother' s house. When he got halfway to his brother' s house, he realized

that he was going to be late for work, so he turned around and walked back toward the shopping

center. He testified that he put his hat in his hip pocket when he left the grocery store, but he did

not   have it   when   he    arrived at work.        He also testified that he cut his hand while working as a

dishwasher.


         During    closing       argument,     the   prosecutor    described S. M.' s   attack as     a woman' s "   worst



nightmare."     3 Report     of   Proceedings (RP) ( July      2, 2013) at 393. At the beginning of his argument,

the prosecutor stated:


                   This     case represents      every    woman' s worst nightmare. [        S. M.]   was alone.

         The defendant took             advantage of     it. The defendant assaulted her, and he tried to
         pull down her pants. It is every woman' s worst nightmare.

3 RP ( July 2, 2013)        at   393.    Later, the prosecutor referred to the attack as " every woman' s worst

nightmare"      because it       was an attack    by    a stranger.   3 RP ( July 2, 2013)    at   406. The prosecutor


then went on to argue that because S. M. did not know Silva- Arroyo, she did not have a bias against


him and contrasted that to Silva- Arroyo' s witnesses, who were Silva -Arroyo' s brother and sister.

Silva- Arroyo did not object to the State' s characterization of the attack.




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No. 45401 -7 -II



          Silva -Arroyo argued, in closing, that he provided innocent explanations for all of the

State' s evidence, and therefore, there was a reasonable doubt. In rebuttal argument, the prosecutor

stated:



                     The defense is giving you a lot of reasons. He is giving you a lot of
          explanations.    And, you know, that is all to the good, but what he hasn' t provided
          is reasonable doubt. You will-

3 RP ( July 2, 2013)       at   433 -34.    Silva-Arroyo objected immediately and the trial court excused the

jury. Silva- Arroyo moved for a mistrial and argued that the prosecutor had improperly shifted the

burden    of proof     to the defense:       The trial court disagreed, ruling that the prosecutor' s argument

was a proper response to Silva-Arroyo' s argument that Silva- Arroyo' s explanations created a


reasonable doubt. The trial court denied Silva-Arroyo' s motion for a mistrial.

          The   jury   found Silva- Arroyo guilty           of attempted      second     degree   rape.    The trial court


imposed    a   low   end   term of   confinement        within   the   standard range.    The trial court also imposed


several community custody provisions including prohibiting Silva -Arroyo from (1) contacting any

children under       the age of 18, (    2) loitering or frequenting places where children congregate, and ( 3)

entering into romantic relationships without prior permission from his community corrections

officer. Silva- Arroyo appeals.


                                                          ANALYSIS


A.        PROSECUTORIAL MISCONDUCT


          Silva -Arroyo         argues     that   the   prosecutor     committed   misconduct       by (   1)   improperly

appealing to the passions and prejudices of the jury and (2) improperly shifting the burden of proof

to the defendant. We disagree.




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No. 45401 -7 -II



          Silva- Arroyo failed to object to the prosecutor' s comments that, allegedly, appealed to the

passions and prejudices of the jury; but, Silva- Arroyo did object to the prosecutor' s comments that

allegedly shifted the burden of proof. Therefore, we apply two different standards for analyzing

prosecutorial misconduct.



         Regardless of whether the defendant objected to the alleged prosecutorial misconduct, the


defendant       must show          that the   prosecutor' s conduct was             both improper   and prejudicial.    State v.


Emery,     174 Wn.2d 741, 756, 278 P. 3d 653 ( 2012) (                       citing State v. Thorgerson, 172 Wn.2d 438, .

442, 258 P. 3d 43 ( 2011)).              First, this court determines if the prosecutor' s conduct was improper.


Id. at 759. Second, if this court determines that the prosecutor' s conduct was improper, this court


determines whether the prosecutor' s improper conduct was prejudicial. Id. at 760 -61.


          1.              Appeal to Jury' s Passions and Prejudices

         First, Silva -Arroyo argues that the prosecutor improperly appealed to the jury' s passions

and prejudices            by   referring to S. M.' s    attack as a " woman' s worst nightmare."          See e.g. 3 RP ( July

2, 2013)       at   393. Silva-Arroyo did not object to the prosecutor' s comments.


         If the defendant did             not object at       trial, this   court considers   any   error waived, "   unless the


prosecutor' s misconduct was so flagrant and ill intentioned that an instruction could not have


cured"   any resulting           prejudice.    Emery,       174 Wn.2d       at   760 -61. " Under this heightened standard of


review,    the defendant             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   verdict. "'    Id. at 761 ( quoting Thorgerson, 172 Wn.2d at 455).




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           Here, the           prosecutor' s          comments            regarding    S. M.' s   attack   being   a "   woman' s   worst



nightmare"      were not              improper.          In closing argument, prosecutors are " afforded wide latitude to

draw   and express reasonable                      inferences from the            evidence."      State v. Reed, 168 Wn. App. 553,

577, 278 P. 3d 203,               review          denied, 176 Wn.2d 1009 ( 2012).                  This court does not look at the


comments in isolation, but " in the context of the total argument, the issues in the case, the evidence

addressed      in the    argument, and               the instructions        given   to the   jury."   State v. Yates, 161 Wn.2d 714,


774, 168 P. 3d 359 ( 2007),                      cert.   denied, 554 U. S. 922 ( 2008) (            quoting State v. McKenzie, 157

Wn.2d 44, 52, 134 P. 3d 221 ( 2006)). "'                                The prosecutor should not use arguments calculated to


inflame the         passions          and prejudices of             the    jury. '    In re the Matter of the Pers. Restraint of

Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012) ( quoting                                     ABA, STANDARDS FOR CRIMINAL

JUSTICE      std.   3- 5. 8(   c) (   2d    ed.    1980)).    Instead, prosecutors " must ` seek convictions based only on

probative evidence and sound reason. '                             Id. (quoting State v. Casteneda -Perez, 61 Wn. App. 354,

363, 810 P. 2d 74 ( 1991)).


            Silva -Arroyo argues that the prosecutor' s comment " was designed to scare the jurors into


considering the possibility of rapists running free" and " served no other purpose than to scare the

jurors into deciding the case based on their own personal fears rather than on the facts of the case."

Br.   of   Appellant      at    11.     Silva -Arroyo specifically relies on State v. Belgarde, 110 Wn.2d 504, 755

P. 2d 174 ( 1988)        and     State      v.    Powell, 62 Wn. App. 914, 816 P. 2d 86 ( 1991), to support his assertion


that the prosecutor committed reversible misconduct by referring to S. M.' s attack as a " woman' s

worst nightmare."              Br.     of   Appellant        at   11.    Silva-Arroyo' s reliance on these cases is misplaced.




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No. 45401 -7 -II



           In Powell, the prosecutor committed reversible misconduct by arguing that, if the jury

acquitted the defendant, it would be sending a message that child victims would not be believed

and, as a result, the jury would be declaring " open season" on children. 62 Wn. App. at 918 -19.

The prosecutor' s argument was improper because the prosecutor was asking the jury to find the

defendant guilty based            on   considering the    effect of   the   verdict on child sex abuse victims.        Id.


And, the prosecutor was asking the jury to return a guilty verdict, not because the evidence

established the defendant was guilty, but rather, because the jury needed to protect children. Id.

           In Belgarde, the prosecutor told the jury that the defendant was a member of a group which

the prosecutor described as " a deadly group of madmen" and " butchers that kill indiscriminately."

110. Wn.2d        at   508.    The prosecutor' s comments were improper because they were calculated to

revolt     the   jury.   Id.    And, the prosecutor was attempting to secure a conviction based on the

defendant' s association with a group rather than the evidence presented at trial. Id.

           Here, the prosecutor did not argue that the jury should find the defendant guilty because

S. M.' s   attack was a " woman'         s   worst nightmare."    And, the prosecutor did not ask the jury to find

the defendant guilty in          order   to   prevent other women      from suffering the     same "   nightmare." The


prosecutor' s comment was primarily related to arguing that S. M. was a credible witness because

she   had    no    investment in       testifying   that Silva- Arroyo      was   the   person who   attacked   her.   The


prosecutor' s comment that S. M.' s attack was a " woman' s worst nightmare" was not an argument


calculated       to inflame the     passions and prejudices. of       the   jury.   Rather, it was a minor comment


within an argument during which the prosecutor continuously encouraged the jury to find Silva -

Arroyo guilty based on the evidence presented at trial. Therefore, we hold that the prosecutor did

not make an improper comment.




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No. 45401 -7 -II



        2.         Burden Shifting

        Silva-Arroyo also argues that the prosecutor committed misconduct by improperly shifting

the burden of proof to the defense. Silva- Arroyo objected to the prosecutor' s argument; therefore,

he   must show    improper     conduct and prejudice   resulting from the improper   conduct.     Emery, 174

Wn.2d   at   760 -61.   Here, we need not determine whether the prosecutor' s comment was improper


because Silva-Arroyo fails to show a substantial likelihood that the prosecutor' s conduct affected


the jury' s verdict. Id. at 760.

        There    was substantial    testimonial   and physical evidence presented at   trial.   S. M. testified


about what occurred, and Silva -Arroyo' s testimony placed him in the vicinity of the incident.

There was physical evidence corroborating S. M.' s testimony as to what happened, including a

surveillance video placing Silva-Arroyo at the scene, Silva -Arroyo' s hat found at the scene, S. M.' s

injuries, and Silva- Arroyo' s injuries. In light of the evidence presented, we hold the prosecutor' s


fleeting comment did not prejudice Silva-Arroyo, and Silva-Arroyo' s prosecutorial misconduct

claim fails.


B.      COMMUNITY CUSTODY PROVISIONS


        Silva-Arroyo also argues that the trial court erred by imposing three specific community

custody   provisions: (   1)   a provision prohibiting Silva- Arroyo from having unsupervised contact

with minors, (2) a provision prohibiting Silva- Arroyo from frequenting or loitering in places where

children are known to congregate, and ( 3) a provision prohibiting Silva-Arroyo from entering into

a consensual relationship without prior permission from his community custody officer.




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No. 45401 -7 -II



Specifically, Silva -Arroyo argues that the provisions are improper because they are not crime

related. The State concedes that the community custody provisions are improper. We accept the

State' s concession and remand to the trial court to strike the improper community custody

conditions.




         Under RCW 9. 94A.703( 3)( f),the trial court may require the defendant to " comply with

any   crime -related prohibitions."     A crime -related prohibition is " an order of a court prohibiting

conduct that directly relates to the circumstances of the crime for which the offender has been

convicted."     RCW 9. 94A. 030( 10). This court reviews the trial court' s imposition of crime -related


prohibitions for an abuse of discretion. State v. Warren, 165 Wn.2d 17, 32, 195 P. 3d 940 ( 2008).

         Here, there is no evidence that Silva- Arroyo' s crime involved minors in any way.

Therefore, prohibitions involving contact with minors are not crime -related. The trial court abused

its discretion by imposing community custody provisions prohibiting contact with minors and

prohibiting Silva -Arroyo from frequenting or loitering in places where minors are known to

congregate.



         And, there is no         evidence that Silva-Arroyo' s crime was related to a consensual


relationship.     S. M.   was   a stranger   to Silva-Arroyo.   Therefore, prohibiting Silva- Arroyo from

entering into a consensual relationship without prior permission from his community custody

officer was not crime -related.        The trial court abused its discretion by imposing a community

custody provision prohibiting Silva-Arroyo from entering into a consensual relationship without

prior permission from his community custody officer.




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No. 45401 -7 -II



        The State'   s concession   is   proper.   Accordingly, we affirm Silva- Arroyo' s conviction, but

remand to the trial court to strike the improper community custody provisions.

        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.




 We concur:




                      Mdnick, J.




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