Opinion
No. 62564-1-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for King County, No. 05-1-08131-3, Joan E. DuBuque, J., entered October 17, 2008.
Affirmed by unpublished opinion per Dwyer, A.C.J., concurred in by Becker and Leach, JJ.
Jorge Holgin appeals on various grounds from his conviction and sentence for rape of a child in the first degree. Finding no merit in his contentions, we affirm.
I
In late August 2001, Holgin lived in an apartment in the city of Burien, Washington, with Mr. and Mrs. D. and their son, K. Holgin was 14 years of age at the time and had recently moved to the United States from Mexico. K. was then four years old. According to Mrs. D.'s testimony at trial, on the afternoon of August 24, when she was giving K. a bath, K. complained of soreness in his bottom. Mrs. D. testified that K.'s rectum appeared red and that she noticed blood in his stool after his bath but that K. had not been constipated at the time. Mrs. D. further testified that, when she questioned K. about the cause of his pain, K. told her that Holgin had raped him. Specifically, Mrs. D. testified that K. told her that "Jorge" had "brought [K.] into the bathroom, . . . covered [K.'s] mouth, and . . . put his tail in [K.'s] butt." According to Mrs. D's testimony, K. used the word "tail" at that time to refer to his penis. Mr. D. testified at trial that he, too, questioned his son that same afternoon and that his son also told him that Holgin had raped him.
Consistent with the parties' briefing, we use initials of the victim and his family to conceal the victim's identity.
Later that day, one of Mrs. D's friends, Melba Estrada, came to the apartment. Estrada testified at trial that Holgin was present at the apartment when she arrived and that he listened to her conversation with Mrs. D. regarding K.'s earlier statements. According to Estrada's testimony, Holgin told Mrs. D. that he was "sorry" and that he had "did it" but that he "didn't know why he did it." Estrada further testified that Holgin fled the apartment when she told him that she and Mrs. D. had called the police and reported K.'s allegations. Estrada testified that she chased after Holgin but lost contact with him. Police officers later arrived at the apartment and took statements from both Mrs. D. and Estrada.
After speaking to the police, Mr. and Mrs. D. and Estrada took K. to a hospital. There, K. spoke to a social worker alone and was also examined by a physician. According to the social worker's interview notes and the examining physician's report, both of which were read into the record at trial as part of these individuals' testimony, K. stated that Holgin had raped him, consistent with what he had earlier told his parents. The physician also concluded that K. was suffering from a moderate tear to his anus.
The State filed charges against Holgin in 2001. In both 2001 and early 2002, the juvenile department of the King County Superior Court issued multiple summonses to Holgin and his legal guardian at various addresses. A warrant for Holgin's arrest was issued in February 2002. However, Holgin did not appear in court because on the afternoon of August 24, 2001, he fled the United States with the help of a family friend in Mexico who made travel arrangements for him. Holgin reentered the United States in late 2002 and returned to the state of Washington, where he enrolled in high school, obtained a driver's license, and was even cited for traffic violations but, he claims, was never made aware of any pending criminal charge or warrant for his arrest.
This information charging Holgin is not included in the record, but a subsequent request for bail indicates that charges were filed in 2001.
The summonses were returned as undeliverable.
On December 27, 2004 — four days after Holgin's 18th birthday — the juvenile department of the superior court quashed the warrant for Holgin's arrest and dismissed the original charging information without prejudice to enable the State to charge Holgin as an adult. By information, the State subsequently charged Holgin as an adult with one count of rape of a child in the first degree, in violation of RCW 9A.44.073. A new warrant for his arrest was also issued.
On September 1, 2007, Holgin was arrested and taken into custody. At first, he claimed not to know the D. family and that he had been in Mexico at the time of the rape of K. To support this assertion, Holgin enlisted the help of the friend who aided his flight from the United States to procure fraudulent educational records purporting to show that he had been enrolled in school in Mexico in August 2001. However, in subsequent conversations with the prosecuting attorney and the detective coordinating the investigation, Holgin recanted this false alibi. The State subsequently amended the information, adding the alternative charge of one count of child molestation in the first degree, in violation of RCW 9A.44.083.
At trial, Mr. and Mrs. D., the hospital social worker, and the examining physician all testified as to K.'s 2001 allegations that Holgin had raped him. The trial court admitted their testimony pursuant to RCW 9A.44.120, which provides a hearsay exception for statements "made by a child under the age of ten describing any act of sexual contact performed with or on the child by another." Prior to trial, the trial court had held a hearing to assess whether "the time, content, and circumstances of" K.'s 2001 statements "provide[d] sufficient indicia of reliability." RCW 9A.44.120(1). After receiving testimony from Mr. and Mrs. D. and K., who was by then 11 years old, the trial court concluded that K.'s statements were reliable and therefore admissible, so long as K. testified at trial as expected.
RCW 9A.44.120 provides, in full:
A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.
At trial, K. testified that he understood the difference between telling the truth and telling a lie and that he would tell the truth. Neither the prosecutor nor defense counsel specifically asked K. if he recalled being sexually assaulted, but the prosecutor did ask K. whether he remembered specific events from 2001 giving rise to the court proceedings. K. testified that he was "not really sure" about events in 2001 "because I don't even know what happened — what really happened." In response to questions about whether he recalled living with anyone other than his immediate family in 2001, K. testified that he remembered "other people" living in his home, but he could not recall their identities. K. did not recognize Holgin in court. K. further testified that he remembered police officers visiting his home one day when he was four years old, but he could not remember why the police had come to his home. He testified that he remembered his mother talking to police officers on the day in question but that he did not remember whether he visited the hospital that day or whether he spoke to his mother or father about the police officers' visit. He did testify, however, that he recalled his mother's friend "Melba" as being present at his home on this day and that she "was chasing someone."
As part of his defense, Holgin's counsel elicited testimony from the examining physician that K.'s injury was consistent with passing a large, hard stool while being constipated. Holgin's counsel further argued that K.'s out-of-court statements were not credible because K.'s parents' questioning of their son was highly suggestive. Finally, Holgin also testified at trial. Although he admitted to living with the D.s., fleeing the United States after being confronted in 2001, and then producing a false alibi, he maintained his innocence.
One of Holgin's contentions on appeal concerns statements made by the prosecutor in closing argument. In the first statement at issue, the prosecutor summarized Holgin's defenses as being first an admittedly false alibi, second a suggestion that police officers, by failing to investigate other possible suspects, failed to apprehend the true assailant, and finally that K.'s injury was the result of his being constipated. The prosecutor characterized the defense's strategy as an attempt to "throw [a number of theories] . . . in front of this jury . . . and see what sticks." In the second statement at issue, the prosecutor asserted that the defense's theory was that K. had lied in 2001.
The prosecutor's comments at issue read, in full:
Well, let me talk to you a little bit about the various defenses that the defendant has put forward in this case. The first was I have an alibi. You heard him testify to that this morning. I have an alibi. I was in Mexico. It couldn't have been me. It had to have been someone else. Well, that defense doesn't fly. Okay. He admits that a lie is a lie but some other guy did it. And how do we know that that's the defense? It wasn't expressly stated by [defense counsel] in her opening, but you saw it in her cross-examination of [the lead investigating detective], why didn't we look at anyone else? Why didn't we look at the father? Why didn't we look at other suspects? It's a very subtle way of producing to you the notion, or creating in your mind the notion maybe someone else raped [K.] All right [ sic]. So that's defense number two.
Defense number three. All right [ sic]. Well, if you don't believe some other guy did it, maybe we can believe that [K.] is just constipated. He made everything else up.
Those are the three logical defenses that the defense — or not logical, but those are the three defenses that the defense has put forward and you will see that they are internally inconsistent because you can't have one without the other. So what's occurring here is, well, let's just throw it all up in front of this jury and so see what sticks.
We know he didn't have an alibi. We know that no one else did it, and we know, finally, that [K.] was not constipated. You know that for a couple of reasons, because his mom's testimony was that he wasn't constipated, but more importantly because of what [K.] told his doctor.
And so all of those defenses the defense is going to ask you to consider but you should discard because they don't face up, they don't match the evidence that was produced in this case.
Reportof Proceedings (RP) (Sept. 8, 2008) at 78-79.
The prosecutor's statement at issue reads:
And there's one person who uses [the seven-year gap in time between 2001 and the date of trial] to his advantage, and that's the defendant. Let's be very clear about what [defense counsel] was telling you. Number one, she is saying that [K.] lied. There's no other way to cut it, that [K.] lied about the defendant raping him. She's saying that he lied to his mother, he lied to his father, he lied to the social worker, and lied to the doctor. Because when you look at the other evidence that is the only explanation. [K.] did not have the knowledge of a 10 year old or a 14 year old or a 24 year old about things of a sexual nature. He didn't know what anal sex was. He didn't know. He wouldn't have the vocabulary to describe an act that occurred out of thin air. It's not knowledge that was within the realm of a four year old.
RP (Sept. 8, 2008) at 129.
The jury subsequently found Holgin guilty.
At sentencing, Holgin requested an exceptional sentence of 12 months imprisonment, far below the standard range of 93 to 123 months. He argued that an exceptional sentence was justified because of his age at the time of the offense, the much shorter standard sentencing range applicable to a defendant of that age, his lack of criminal history both before and after the offense, and the general inability of juveniles to appreciate the wrongfulness of their actions. The trial court rejected Holgin's request and sentenced him to 93 months' imprisonment. In so doing, the trial court concluded that Holgin had failed to provide a legal basis for his request and that Holgin's behavior after he reentered the United States was more pertinent to the sentencing determination than Holgin's flight in 2001. Holgin appeals.
Defense counsel represented that, had Holgin been tried in 2001 when he was 14 years of age, he would have faced a standard range sentence of only three to nine months' imprisonment.
At the close of both defense counsel's and the prosecutor's recommendations and after hearing from both Holgin and his mother, the trial court explained its decision to reject Holgin's request as follows:
Okay. And I have read both of the briefs that have been provided to the Court in support of and in opposition to the exceptional sentence, and I read the article that was also attached to defense counsel's brief. And I have to state that I do not believe the Court has been given a legal basis to impose an exceptional sentence, because, as you know, for the Court to impose an exceptional sentence, it has to be based upon the criminal offense that was committed, the defendant's culpability, and also can take into account the defendant's prior criminal history. The factors that I'm being asked to consider do not relate to any of those bases.
And I'm also not considering, you know, as a means to increase his sentence, the fact that he left the country. I think his behavior since he came back into the country, which was not that long after he had left, is more pertinent in terms of the Court's consideration at the time of sentencing.
RP(Oct. 10, 2008) at 21-22.
II
First, in a statement of additional grounds, Holgin contends that he was denied his constitutional right to due process of law, specifically the loss of juvenile jurisdiction, because of prosecutorial delay. He is incorrect.
We review de novo whether Holgin's due process rights were violated based on prosecutorial delay. Although the loss of juvenile jurisdiction due to prosecutorial delay is recognized as causing actual prejudice, State v. Salavea, 151 Wn.2d 133, 139, 86 P.3d 125 (2004), Holgin cannot show that he suffered any prejudice and was therefore denied due process because there was no delay in charging him while he was still a juvenile. The record indicates that he was charged at some point in 2001. It was Holgin's flight from the United States that inhibited the State from apprehending him soon after the offense took place. Holgin cites to no authority for the proposition that the State's failure to apprehend him while he was a minor violates his right to due process. Holgin's flight and the subsequent passage of time, not prosecutorial delay, accounted for the time lag between the offense and the loss of juvenile jurisdiction.
Although Holgin does not appear to have raised this issue below, we consider it because Holgin contends it constitutes a manifest error affecting a constitutional right. See RAP 2.5(a).
III
Holgin's second contention in his statement of additional grounds is that the admission of the testimony of Mr. and Mrs. D. and hospital personnel concerning the out-of-court statements made by K. in 2001 violated his constitutional rights to confront adverse witnesses. We disagree.
The Sixth Amendment to the United States Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. U.S. Const., amend. VI. Article I, section 22 of the Washington Constitution similarly provides, "[i]n criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face."
Our Supreme Court's decision in State v. Price, 158 Wn.2d 630, 146 P.3d 1183 (2006), is controlling. Price was charged with molesting a four-year-old child who attended the day care center where Price worked and who had told her mother and a police detective that Price had molested her while also presenting with physical symptoms of molestation. Price, 158 Wn.2d at 633-34. The trial court concluded that the child's statements were admissible after conducting a child hearsay hearing pursuant to RCW 9A.44.120. After being asked at trial whether she remembered the events giving rise to the trial or whether she remembered making earlier statements about those events, the complaining child witness responded that she did not remember. Price, 158 Wn.2d at 636. Despite the child witness's inability to recall the earlier events and her statements, our Supreme Court concluded that the admission of the complaining witness's out-of-court statements did not violate Price's rights of confrontation. Price, 158 Wn.2d at 650. The court held that "when a witness is asked questions about the events at issue and about his or her prior statements, but answers that he or she is unable to remember the charged events or the prior statements, this provides the defendant sufficient opportunity for cross-examination to satisfy the confrontation clause." Price, 158 Wn.2d at 650.
There is no meaningful distinction between the situation herein at trial and that presented in Price. K. was asked at trial whether he remembered the events in 2001 giving rise to the trial and whether he remembered discussing these events with his parents and testifying hospital personnel. He responded that he did not recall any specific events from 2001 other than police officers visiting his home and that he did not recall discussing anything specific with anyone at that time. Thus, Holgin had a "full and fair opportunity to expose the memory lapse through cross-examination, thereby calling attention to the reasons for giving scant weight to the witness's testimony," in satisfaction of the purpose of the right of confrontation. Price, 158 Wn.2d at 649. The trial court did not err.
IV
Holgin next contends that the prosecutor engaged in two instances of prejudicial misconduct during closing argument. We disagree.
"Prosecutors have a duty to seek verdicts free from appeals to passion or prejudice." State v. Perez-Mejia, 134 Wn. App. 907, 915, 143 P.3d 838 (2006) (citing State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988)). In the interest of justice and as a quasi-judicial officer, the prosecutor must act impartially. State v. Charlton, 90 Wn.2d 657, 664, 585 P.2d 142 (1978). "Prosecutorial misconduct may deprive the defendant of a fair trial. And only a fair trial is a constitutional trial." Charlton, 90 Wn.2d at 664-65.
"A defendant alleging improper argument on the part of the prosecutor must establish both the impropriety and the prejudicial effect of the argument." Perez-Mejia, 134 Wn. App. at 916 (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)). The defendant "must demonstrate a substantial likelihood that the misconduct affected the jury's verdict." Perez-Mejia, 134 Wn. App. at 916 (citing State v. Reed, 102 Wn.2d 140, 145, 684, P.2d 699 (1984)). We review any allegedly improper argument "in the context of (1) the total argument; (2) the issues in the case; (3) the instructions, if any, given by the trial court; and (4) the evidence addressed in the argument." Perez-Mejia, 134 Wn. App. at 916-17 (citing Russell, 125 Wn.2d at 85-86).
Holgin contends that the prosecutor impermissibly disparaged the role of defense counsel when he argued in closing argument that defense counsel was advancing multiple, inconsistent arguments in the hope that one would "stick" with the jury. It is improper for a prosecutor to disparage the role of defense counsel. See State v. Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008); State v. Gonzales, 111 Wn. App. 276, 283-84, 45 P.3d 205 (2002). However, considering the context of the prosecutor's argument and the issues at trial herein, we do not find improper the prosecutor's comments about defense counsel's efforts. Read in context, the prosecutor's argument neither concerned defense counsel's role nor sought to portray defense counsel generally in a negative light, as was the case in Warren. See 165 Wn.2d at 29. Moreover, the prosecutor did not attempt to draw a cloak of righteousness around himself, while implying that defense counsel had no obligation to seek justice, as was the case in Gonzales. See 111 Wn. App. at 283 (quoting United States v. Frascone, 747 F.2d 953, 957-58 (5th Cir. 1984)). Rather, as the transcript from closing argument indicates, the prosecutor sought to undermine defense counsel's argument as being unsupported by the evidence.
Furthermore, even had the prosecutor's comment disparaged defense counsel's role, Holgin has failed to establish that the comment had any prejudicial effect. The trial court instructed the jury "to decide the facts in this case based upon the evidence presented . . . during the trial." It explained that the lawyers' comments were intended only to help the jury "understand the evidence and apply the law" and were "not evidence." The court further instructed the jury that it had a duty to reach a "decision based on the facts proved . . . and on the law given . . . not on sympathy, prejudice, or personal preference." Holgin does not explain in what way the prosecutor's comments were prejudicial. Instead, he merely asserts that they were. "We presume the jury was able to follow the court's instruction." Warren, 165 Wn.2d at 28 (citing State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245, 39 P.3d 294 (2001)). Nothing indicates that the jury herein was unable to do so.
Relying on State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996), Holgin also contends that the prosecutor impermissibly shifted the burden of proof by stating that defense counsel's theory was that K. lied in 2001 about being raped. A prosecutor engages in misconduct by arguing that the jury, in order to acquit, must conclude that the State's witnesses are either lying or mistaken. Fleming, 83 Wn. App. at 213 (citing State v. Casteneda-Perez, 61 Wn. App. 354, 362-63, 810 P.2d 74 (1991)). Such a statement misstates the jury's role and the prosecution's burden. The jury need not find that a witness was mistaken or lying in order to acquit; instead, it is required to acquit unless it has an abiding conviction in the truth of the testimony. Fleming, 83 Wn. App. at 213.
Again, we do not find any impropriety in the prosecutor's comment. Although the prosecutor used the term "lied," he did not argue that the jury would necessarily have to conclude that K. or any of the State's other witnesses were either lying or mistaken in order to acquit. Further, the trial court instructed the jury that the State "has the burden of proving each element of the crime beyond a reasonable doubt" and that "[t]he defendant has no burden of proving that a reasonable doubt exists as to these elements." Again, the jury is presumed to be able to follow the trial court's instructions. Warren, 165 Wn.2d at 28 (citing Smith, 144 Wn.2d at 679). Holgin does not explain why the prosecutor's single, isolated comment prevented the jury herein from doing so. The prosecutor's comments did not constitute prejudicial misconduct.
IV
Finally, Holgin contends that the trial court abused its discretion in rejecting his request for an exceptional sentence below the standard range. Again, we disagree.
Generally, a sentence within the standard range under the Sentencing Reform Act of 1981, chapter 9.94A RCW, is not appealable. RCW 9.94A.585(1). However, we may review a refusal to impose an exceptional sentence where the trial court refused to exercise discretion at all or relied on an impermissible basis in its decision. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). For example, a trial court's refusal to grant an exceptional sentence downward is reviewable if the court refused to exercise its discretion to depart from the standard range "because it erroneously believed it lacked the authority to do so." State v. McGill, 112 Wn. App. 95, 100, 47 P.3d 173 (2002). Under those circumstances, reversal and remand is appropriate to allow the trial court to correctly exercise its discretion. McGill, 112 Wn. App. at 100.
However, a trial court has exercised its discretion, and its decision is thus not reviewable, if it has "considered the facts and concluded there is no legal or factual basis for an exceptional sentence." McGill, 112 Wn. App. at 100. Further, remand is not appropriate "when the reviewing court is confident that the trial court would impose the same sentence" once the error is corrected. McGill, 112 Wn. App. at 100. In McGill, remand was appropriate because the trial court erroneously believed that it lacked the authority to depart from the standard range, although it expressed a willingness to impose an exceptional sentence downward. 112 Wn. App. at 100.
Holgin argues that the trial court failed to exercise its discretion, thus making his standard range sentence reviewable, because the court indicated that the factors Holgin urged it to consider were not among those enumerated in the law governing deviation from a standard range sentence. RCW 9.94A.535(1) sets forth an "illustrative" list of circumstances that a trial court should consider in ruling on a request for an exceptional sentence below the standard range. The statute specifies that the list is "not intend[ed] to be exclusive." RCW 9.94A.535(1).
The trial court stated that it had reviewed the parties' briefing and supporting documentation and concluded that there had been established no legal basis on which to impose an exceptional sentence below the standard range. Therefore, the trial court did not refuse to consider Holgin's arguments altogether. Rather, after considering them, it concluded that they provided no basis for a departure. The trial court did not fail to exercise its discretion as Holgin contends. Therefore, Holgin's standard range sentence is not reviewable.
We also note that, unlike the trial court in McGill, the trial court herein never expressed a willingness to impose a sentence below the standard range. The record does not indicate any basis from which we could conclude that the court was inclined to grant such a request.
Affirmed.
We concur.