The opinion
FILED
DECEMBER 1, 2020
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. 36001-6-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JUAN JOSE LUNA HUEZO, )
)
Appellant. )
FEARING, J. — Juan Luna Huezo appeals from convictions for raping and
molesting two stepdaughters. He challenges the sufficiency of evidence. He also claims
the trial court committed error when permitting the stepdaughters to answer some
questions in writing and when excluding testimony from family members of his sexual
morality and decency. We find no error and affirm.
FACTS
We gather our facts from trial testimony. We expand on some of the facts when
describing the case’s procedure.
Juan Luna Huezo is the stepfather of Tammy, born April 5, 2005, and Bonnie,
born July 31, 2006, both pseudonyms. The girl’s mother began dating Luna Huezo in
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November 2009 and married him in January 2010. Luna Huezo is more than two decades
older than the girls.
At age nine, Tammy became the subject of sexual abuse by Juan Luna Huezo.
Luna Huezo began sexually abusing Bonnie when she was eight years old.
At trial, Tammy testified that Juan Luna Huezo sexually touched her on several
occasions and in multiple locations in Kennewick, including at an apartment her family
rented at the Hawaiian Village Apartments, at her family’s home on Steptoe Street, at her
aunt Niashia Morales Enriquez’s residence, and in a vehicle. The sexual touching
included Luna Huezo placing his hand on Tammy’s private parts, placing his private
parts against her body, and placing his penis inside her mouth.
Tammy further testified that Juan Luna Huezo tied her hands behind her back with
duct tape. Luna Huezo obtained a condom from a blue and gray backpack in the
bathroom and placed it on his penis. Luna Huezo also rubbed oil on his penis. During
trial, Luna Huezo confirmed that he used condoms and oil when engaging in sexual
activity.
According to Tammy, Juan Luna Huezo also sexually abused her sister. Once
Tammy asked Luna Huezo whether he was “doing the same thing [to Bonnie],” and he
responded that he was. Report of Proceedings (RP) at 271.
Bonnie testified that Juan Luna Huezo touched her private area once. Bonnie
further testified that she witnessed Juan Luna Huezo touch Tammy’s private parts while
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Tammy slept at the Steptoe house. Bonnie witnessed Luna Huezo take Tammy into his
bedroom, at which time she heard Tammy crying.
On February 8, 2017, friends of eleven-year-old Tammy saw her crying during
fifth grade music class. After speaking with Tammy, her friends informed their teacher
about their concerns. Tammy’s teacher then contacted Sarah McMullin, the school
counselor, who spoke with Tammy.
Tammy and her ten-year-old sister, Bonnie, disclosed to Sarah McMullin that Juan
Luna Huezo sexually abused them. McMullin contacted the Kennewick Police
Department. On February 8, 2017, Mauri Murstig, a forensic child interviewer at the
Sexual Advocacy Response Center, interviewed both children.
On the night of February 8, 2017, Kennewick Police Department Detective Jose
Santoy obtained warrants to search Tammy and Bonnie’s home and the residence of their
aunt, Niashia Morales Enriquez. Police found condoms, duct tape, zip ties, and a zebra
blanket. Law enforcement neither preserved nor tested the blanket for DNA.
At some unidentified date, Dr. Shannon Phipps, later a trial witness, examined
Tammy. Tammy was fearful and withdrawn while relating her history to Dr. Phipps.
Tammy informed the physician that “she [Tammy] was too small,” such that Juan Luna
Huezo’s penis did not fit inside her. RP at 161. Dr. Phipps’ found no physical
abnormalities in Tammy.
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PROCEDURE
The State of Washington charged Juan Luna Huezo with one count of rape of a
child in the first degree for conduct involving Tammy and three counts of child
molestation in the first degree, with one count involving Tammy and two counts
involving Bonnie. The one count of rape of a child in the first degree and the first count
of child molestation in the first degree alleged aggravating circumstances of an ongoing
pattern of sexual abuse and breach of a position of trust. The second count of child
molestation in the first degree alleged the aggravating circumstance of violation of a
position of trust.
During a pretrial interview with defense counsel, Tammy disclosed that sexual
contact imposed by Juan Luna Huezo occurred fifty-eight times at the Hawaiian Village
apartment and that her mother was home on about thirty of the occasions. Tammy also
disclosed that sexual contact occurred twenty times at Niashia Morales Enriquez’s
residence and thirty times at the Steptoe house.
Before trial, the trial court granted the State’s motion in limine precluding a
witness from assessing the credibility of another witness. Also at the beginning of trial,
the court entertained the State’s motion to exclude character and reputation evidence.
Juan Luna Huezo intended to have four witnesses testify to his sexual morality and
decency: his ex-spouse, Laura Martinez; his daughter, Alexis Huezo; and his two sisters-
in-law, Nancy Morales Enriquez and Niashia Morales Enriquez. The trial court allowed
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Luna Huezo to present offers of proof before ruling on the State’s motion to exclude the
family member’s testimony. During the offer of proof, Luna Huezo did not ask Alexis
Huezo questions regarding his reputation for sexual morality. He conceded that he failed
to establish a sufficient foundation for Nancy Morales Enriquez and Niashia Morales
Enriquez to testify to his reputation in the community. The trial court denied any
testimony from the four witnesses as to Luna Huezo’s morality.
During her testimony, the State asked Tammy to describe Juan Luna Huezo’s
penis. Tammy did not respond. The State then asked Tammy whether she would prefer
to write her answer, to which Tammy nodded affirmatively. Defense counsel objected to
a written answer, but the trial court overruled the objection. Tammy’s written answer
read, “It was long and tiny hair.” RP at 264. Defense counsel cross-examined Tammy,
but did not question her about the one written answer.
During trial, Tammy did not testify to the the number of times of sexual contact
she earlier reported to defense counsel. Rather, she testified that Juan Luna Huezo
touched her privates one time at the Hawaiian Village apartment, put his penis against her
vagina more than once at the Hawaiian Village apartment, and touched her vagina one
time at Niashia Morales Enriquez’s residence.
Bonnie testified with difficulty during trial. Bonnie did not answer some
questions and responded to other questions with “I don’t know” or “I don’t remember.”
RP at 216-44. Bonnie testified that Juan Luna Huezo touched her private part on one
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occasion.
Bonnie did not respond to a State’s question of why she did not tell her mother
about her stepfather’s conduct. When she hesitated to answer, the State asked Bonnie to
write her answer. The trial court overruled defense counsel’s objection to a written
answer. The court commented:
This child is 11 and has been on the stand since a little after 11
o’clock. It’s now 11:28. This witness is clearly having a difficult time
responding and answering to questions. . . .
RP at 228. Bonnie wrote that she did not tell her mother because she thought her mother
would not believe her.
When the State asked Bonnie why she did not inform her mother about Tammy’s
crying while being molested by Juan Luna Huezo, Bonnie replied that she was scared.
When asked by the State why she was scared, Bonnie did not respond. Bonnie wrote her
response over the defense’s objection. The State showed Bonnie’s response to the jury.
Our record does not include the response. Defense counsel chose not to cross-examine
Bonnie.
During trial, the forensic child interviewer, Mauri Murstig, explained the concept
of episodic memory versus script memory:
[A]sking a child who has experienced that [sexual abuse] for a long
period of time, you know, they’re not going to be able to give you an exact
number that happened over months or years. And so, you know, what we
try to do is just one time, more than one time and then try to get them to
provide as many, you know, if there were specific times they could
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remember, specific episodes, we try to focus on that. But, you know, it’s
going to be impossible to have them describe every time something
happened, if it happened, you know, over a long period of time.
RP at 132.
Dr. Shannon Phipps, D.O. testified about the physical examination she conducted
on Tammy. The State’s attorney questioned Phipps: “because you don’t find any kind of
physical manifestations in her body, does that mean that no sexual abuse occurred?” RP
at 154. Dr. Phipps answered:
No, it doesn’t. The body is incredible for healing. And I would
relate this back to the example that I gave between an acute and a non-acute
visit.
If you’re walking down the street and you twist your knee. You
might have some swelling initially. If you go immediately for something,
that might be perceived. Whereas if you wait three or four days, the
swelling may have resolved, there may not be a physical finding yet the
injury still occurred, so the body can heal.
RP at 154. Phipps averred that she would not expect to see tears or lesions in the vaginal
area if a penis rubbed against the area, rather than entered the vagina. Finally, Dr. Phipps
declared that “[i]t’s more typical not to find findings than to find findings” in sexual
assault exams. RP at 161.
Kennewick Police Department Detective Jose Santoy testified during trial. He
explained the reason for not testing or preserving for evidence the zebra blanket.
[T]he blanket, like I said, it was in a general area of the bedroom and
any of the children could have touched it, to include the defendant and the
victims.
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RP at 205. After resting its case at trial, the State dismissed count 4, a child molestation
charge involving Bonnie.
Juan Luna Huezo testified on his behalf. He denied any inappropriate sexual
contact with either Tammy or Bonnie. During cross-examination, the State asked:
Isn’t it true during that interview you told Detective Santoy that
[Tammy] would never lie about anything this serious; isn’t that true?
RP at 401. On defense counsel’s objection and the trial court’s overruling the objection,
the State proceeded to ask the question two more times, once about Tammy and once
about Bonnie. The State also asked Luna Huezo about his comment about Tammy’s
hygiene issues the morning of his arrest:
This is the first we’re hearing about all this; Isn’t that true?
RP at 399.
Trial defense counsel suffered the death of his niece during the trial. In response
to the niece’s death, counsel stated that “a brief continuance would be sufficient” in order
to ensure his effectiveness at trial. RP at 105. The trial court granted a one-day recess
for counsel to rest before continuing with trial. On return from the one-day recess, trial
counsel made no further mention of his need for additional continuances. Trial counsel
had tragically lost three siblings to cancer in the thirteen months preceding his niece’s
death.
During summation, the State’s attorney commented:
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[Juan Luna Huezo] took the stand and he told you, . . . [t]hat there is
also this thing that happened the morning of 2-8 where Tammy witnessed
him pulling Bonnie’s hair. . . . And something about Tammy not wiping
herself.
You know what’s interest? Think about this.
No question was ever asked of Kelly about any of that. Huh. Don’t
you think that’s weird? No question was asked of Bonnie about any of that.
None of that was mentioned in opening statement. Why is that? Because it
only came in through him. Nobody else was asked about any of that.
Think about that. Why? Because it’s not true.
RP at 463-64. The prosecuting attorney added:
He [Juan Luna Huezo] waited an entire year to now tell his side.
Didn’t tell it that day. Maybe he’s had some time to think about it.
RP at 464.
The jury found Juan Luna Huezo guilty on all three counts and further found the
presence of the aggravating circumstances.
LAW AND ANALYSIS
On appeal, Juan Luna Huezo asserts the State presented insufficient evidence to
convict him of any of the three crimes. He also assigns error to the trial court’s
permission to Tammy and Bonnie to write answers to some of the State’s questions and
to the trial court’s exclusion of testimony about his sexual morality and decency.
Right to Confrontation
Juan Luna Huezo asserts that the trial court denied him his right to confront
Tammy and Bonnie as witnesses when it permitted each to testify via writing. He
maintains that written answers limited his scope of cross-examination. He adds that the
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trial court should have found the witnesses unavailable before allowing them to write
their responses.
The State responds that the trial court did not breach Juan Luna Huezo’s
confrontation rights because Luna Huezo still had the opportunity to cross-examine each
witness regarding her written answers. According to the State, the trial court placed no
limits on the cross-examination. We agree with the State.
The United States Constitution states that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .”
U.S. CONST. amend. VI. The Washington State Constitution provides the accused the
right “to meet the witnesses against him face to face.” CONST. art. I, § 22. The
Washington State Supreme Court applies the state constitution clause consistent with the
reading of the federal confrontation clause. State v. Lui, 179 Wn.2d 457, 469, 315 P.3d
493 (2014).
The confrontation clause primarily secured the right of cross-examination. State v.
Foster, 135 Wn.2d 441, 456, 957 P.2d 712 (1998). An impermissible limitation on the
scope of cross-examination violates a defendant’s right to confrontation. State v. Garcia,
179 Wn.2d 828, 844, 318 P.3d 266 (2014). The confrontation clause is generally
satisfied, however, “‘if defense counsel receives wide latitude at trial to question
witnesses.’” State v. Dye, 170 Wn. App. 340, 346, 283 P.3d 1130 (2012) aff’d 178
Wn.2d 541, 309 1109 (2013) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct
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989, 94 L. Ed. 2d 40 (1987)). The trial court placed no limit on Juan Luna Huezo’s
counsel cross-examining Tammy and Bonnie as to their written answers to questions.
Juan Luna Huezo cites no authority to support his contention that written answers
to the State’s questions violate the confrontation clause. We note that the State may
introduce as an exhibit various writings, without breaching the confrontation clause, even
though the content of the writing inculpates the accused. Miller v. Stovall, 742 F.3d 642,
651 (6th Cir. 2014); State v. Price, 154 Wn. App. 480, 491, 228 P.3d 1276 (2009). In
State v. Thomas H., 101 Conn. App. 363, 369-70, 922 A.2d 214 (2007), the reviewing
court found no confrontation clause violation when the trial court permitted a child victim
to provide a written answer to a question asked by the state on direct examination in a
sexual assault trial, which question asked what happened after defendant ordered her to
get in bed with him. The writing of the response occurred in the presence of the
defendant during trial, and defendant was given the opportunity to cross-examine the
victim regarding the response.
ER 611(a) provides:
The court shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
This rule impliedly grants the trial court authority to permit a witness to answer a
question in writing to prevent embarrassment and to effectuate ascertainment of the truth.
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A girl could understandably be embarrassed when asked to describe a man’s penis. The
court also possessed the authority to permit some written answers from Bonnie after she
had sat in the witness stand for twenty-five minutes and encountered difficulty
answering.
Evidence of Sexual Morality and Decency
Juan Luna Huezo next asserts that the trial court erred by excluding evidence of
his sexual morality and decency. He argues that the trial court applied the wrong analysis
when requiring a foundation to establish a community perception of morality.
We review the trial court’s ruling on admissibility of evidence for abuse of
discretion. State v. Woods, 117 Wn. App. 278, 280, 70 P.3d 976 (2003). Generally,
evidence of a person’s character is inadmissible, but a criminal defendant may present
evidence of a “pertinent trait of character.” ER 404(a)(1). In cases involving sexual
offenses, sexual morality is a pertinent character trait. State v. Woods, 117 Wn. App. at
280; State v. Harper, 35 Wn. App. 855, 859-60, 670 P.2d 296 (1983).
ER 405 controls the methods of proving a person’s character. The rule declares:
(a) Reputation. In all cases in which evidence of character or a trait
of character of a person is admissible, proof may be made by testimony as
to reputation. On cross examination, inquiry is allowable into relevant
specific instances of conduct.
(Emphasis added.) Although the rule does not state that inquiry into a person’s character
shall be by testimony to reputation, Washington follows the traditional common law rule
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that proof of character is limited to testimony concerning reputation. Rule 405. Methods
of Proving Character, 5D KARL B. TEGLAND, WASHINGTON PRACTICE: COURTROOM
HANDBOOK ON WASHINGTON EVIDENCE ER 405 author’s cmt. 405:1 (2020 ed.). One
cannot express a personal opinion as to a witness’s veracity. State v. Woodard, 26 Wn.
App. 735, 738, 617 P.2d 1039 (1980).
A party seeking to admit evidence bears the burden of establishing a foundation
for that evidence. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). One
Washington Court of Appeals case stands for the proposition that, in order to offer
reputation testimony, a witness must lay a foundation establishing that he or she bases the
subject’s reputation on perceptions in the community. State v. Thach, 126 Wn. App. 297,
315, 106 P.3d 782 (2005), overruled on other grounds by State v. Case, 13 Wn. App. 2d
657, 466 P.3d 799 (2020). A Washington Supreme Court decision reads that, to establish
a valid community, the party seeking to admit the reputation evidence must show that the
community is both neutral and general. State v. Land, 121 Wn.2d 494, 500 (1993).
ER 405 does not limit the reputation to the person’s residential neighborhood. The
witness can testify to a reputation among business associates or coworkers. State v.
Land, 121 Wn.2d 494, 500-01 (1993); State v. Callahan, 87 Wn. App. 925, 936, 943 P.2d
676 (1997). Nevertheless, as already stated, to be admissible, the reputation must exist
within a “neutral and generalized community.” State v. Gregory, 158 Wn.2d 759, 805,
147 P.3d 1201 (2006), overruled on other grounds by, State v. W.R., Jr, 181 Wn.2d 757,
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336 P.3d 1134 (2014); State v. Callahan, 87 Wn. App. at 934. Reputation among a
limited group of persons may not accurately reflect the witness’s general character for
truthfulness. Rule 405. Methods of Proving Character, 5D TEGLAND, supra, ER 405
author’s cmt. 405:2.
A person’s reputation among members of a family is inadmissible. State v. Thach,
126 Wn. App. 297, 315. A “family is not ‘neutral enough [and] generalized enough to be
classed as a community.’” State v. Thach, 126 Wn. App. at 315 (alteration in original);
State v. Lord, 117 Wn.2d 829, 874, 822 P.2d 177 (1991). In State v. Gregory, 158 Wn.2d
759, 805, 147 P.3d 1201 (2006), the Supreme Court affirmed the trial court’s exclusion of
testimony of the victim’s family members as to the victim’s reputation of honesty among
family. The Washington Supreme Court noted:
First, the inherent nature of familial relationships often precludes
family members from providing an unbiased and reliable evaluation of one
another. In addition, the “community” with which Larson had discussed
R.S.’s reputation included only two people, Larson and R.S.’s sister. Any
community comprised of two individuals is too small to constitute a
community for purposes of ER 608.
State v. Gregory, 158 Wn.2d at 805.
Juan Luna Huezo argues that the trial court erred because the court focused on his
reputation rather than on whether the trait of sexual morality was pertinent to the
underlying crimes. He contends that laying a foundation for community perception is not
required to introduce evidence of sexual decency. He relies on State v. Woods, 117 Wn.
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App. 278 (2003) and State v. Griswold, 98 Wn. App. 817, 991 P.2d 657 (2000),
abrogated on other grounds by State v. DeVincentis, 150 Wn.2d 11, 74 P.3d 119 (2003).
Neither case stands for this proposition. In both decisions, this court affirmed the
exclusion of testimony of the accused’s decency because of the failure to properly proffer
reputation testimony.
Juan Luna Huezo wished for his ex-wife, his daughter, and his two sisters-in-law
to testify to his reputation for sexual morality. With offers of proof, Luna Huezo only
qualified a sister-in-law with any knowledge of any reputation for sexual decency. This
relative, Nancy Morales Enriquez, based Luna Huezo’s reputation solely on family or
holiday gatherings. Thus, the reputation was not formed within a generalized and neutral
community.
Sufficiency of Evidence
Juan Luna Huezo asserts that the State presented insufficient evidence to convict
him of any of the three charges. In so arguing, he emphasizes that Tammy and Bonnie
uttered conflicting statements about the alleged crimes and that Dr. Shannon Phipps
found no physical evidence during Tammy’s exam to support the allegations of sexual
misconduct. When reviewing a challenge to the sufficiency of evidence, we must
determine, whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
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The jury convicted Juan Luna Huezo of one count of rape of a child in the first
degree, for conduct against Tammy, and two counts of child molestation in the first
degree, one count each against Tammy and Bonnie. For the count of rape and child
molestation of Tammy, the jury found the aggravating circumstance of an ongoing
pattern of sexual abuse. For all three counts, the jury found the aggravating circumstance
of breach of a position of trust.
RCW 9A.44.073(1) governs rape of a child in the first degree. The statute
declares:
A person is guilty of rape of a child in the first degree when the
person has sexual intercourse with another who is less than twelve years old
and not married to the perpetrator and the perpetrator is at least twenty-four
months older than the victim.
RCW 9A.44.010(1) defines “sexual intercourse” for purposes of sex offenses:
‘Sexual Intercourse’ (a) has its ordinary meaning and occurs upon
any penetration, however slight. . . .
Tammy, the victim of the rape charge, testified that Juan Luna Huezo placed his
penis next to her vagina in his bedroom and in a vehicle. More importantly, she averred
that Luna Huezo put his penis in her mouth. She was eleven years old when the act
occurred. Tammy has never been married to Luna Huezo. Luna Huezo was more than
twenty-four months older than Tammy. Thus, the State presented evidence to fulfill all
elements of the crime of rape of a child.
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RCW 9A.44.083(1) governs child molestation in the first degree. The statute
reads:
A person is guilty of child molestation in the first degree when the
person has, or knowingly causes another person under the age of eighteen
to have, sexual contact with another who is less than twelve years old and
not married to the perpetrator and the perpetrator is at least thirty-six
months older than the victim.
RCW 9A.44.010(2) defines “Sexual contact” as:
‘Sexual contact’ means any touching of the sexual or other intimate
parts of a person done for the purpose of gratifying sexual desire of either
party or a third party.
Tammy, the victim of one of the counts child molestation, declared, during her
testimony, that Juan Luna Huezo made sexual contact with her on several occasions. As
already indicated, Tammy was under twelve years old and more than thirty-six months
younger than Luna Huezo at the time of the sexual misconduct. Thus, the State presented
sufficient evidence to convict on count 2.
Bonnie, the alleged victim of count 3, testified that, on one occasion, Juan Luna
Huezo touched her private area and moved his fingers around. Bonnie was then ten years
old. She has never married Luna Huezo. Luna Huezo was at least thirty-six months
older than Bonnie. Thus, the State presented sufficient evidence to convict on count 3.
RCW 9.94A.535 lists the relevant aggravating circumstances of an ongoing
pattern of sexual abuse and a position of trust:
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Except for circumstances listed in subsection (2) of this section, the
following circumstances are an exclusive list of factors that can support a
sentence above the standard range.
....
(g) The offense was part of an ongoing pattern of sexual abuse of the
same victim under the age of eighteen years manifested by multiple
incidents over a prolonged period of time.
....
(n) The defendant used his or her position of trust, confidence, or
fiduciary responsibility to facilitate the commission of the current offense.
RCW 9.94A.535(3)(g) and (n).
The State presented sufficient evidence to support the aggravating circumstances
findings. Juan Luna Huezo sexually abused Tammy on multiple occasions over the
course of years. Luna Huezo was the stepfather to Tammy and Bonnie when he engaged
in the criminal behavior. He thus used his position of trust to facilitate the crimes.
Juan Luna Huezo highlights that Tammy told his attorney that her mother was
present in the home at the Hawaiian Village apartment thirty times when he sexually
touched her. Tammy also told defense counsel that Luna Huezo touched her fifty-eight
times at the apartment, twenty times at Niashia Morales Enriquez’s residence, and thirty
times at the Steptoe house. Tammy, during trial testimony, significantly limited the
number of times of molestation. Luna Huezo further highlights that Tammy and Bonnie,
at one point in their respective testimony, each testified that nothing happened or that
they could not remember what happened.
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Despite occasional and understandable difficulty in testifying, both Tammy and
Bonnie identified and described occasions when Juan Luna Huezo sexually touched
them. We have already repeated some of that testimony. Inconsistent testimony of a
witness does not equate to insufficient evidence. State v. West, 2017-Ohio-4055, 91
N.E.3d 365, 376.
Although the State need not have presented evidence beyond the children’s
testimony to convict Juan Luna Huezo, circumstantial evidence bolstered Tammy’s
accusations. According to Tammy, Luna Huezo used a condom he obtained from a
backpack, which police later found in that backpack. She also stated that he used oil on
his penis, which he admitted to using during sexual activities. Tammy described an
occasion when Luna Huezo duct-taped her hands, and police found duct tape and zip ties
in his backpack. Finally, Tammy testified that she confronted Luna Huezo about abusing
Bonnie, to which he admitted.
Juan Luna Huezo next challenges the sufficiency of evidence due to Dr. Shannon
Phipps’ examination of Tammy uncovering no physical evidence in support of sexual
contact. Nevertheless, Dr. Phipps explained that the lack of medical evidence does not
rule out rape or molestation. Luna Huezo cites this court no case law supporting the
proposition that the State must present medical testimony of physical injury in order to
convict an accused of rape. The law is to the contrary. State v. Boyd, 84 N.M. 290, 502
P.2d 315, 317 (Ct. App. 1972).
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STATEMENT OF ADDITIONAL GROUNDS
Juan Luna Huezo raises numerous issues in a statement of additional grounds
(SAG). We discuss and reject each ground.
Opinion Testimony Regarding Victim Credibility
Juan Luna Huezo asserts that the State elicited opinion testimony from him that
created an inference that he vouched for the credibility of Tammy and Bonnie. He argues
that the trial court erred by allowing the State to engage in prosecutorial misconduct by
violating the motion in limine.
Prosecutorial misconduct “requires a new trial only if the misconduct was
prejudicial.” State v. Stith, 71 Wn. App. 14, 19, 856 P.2d 415 (1993). Such misconduct
is prejudicial when “there is a ‘substantial likelihood’ that the misconduct ‘affected the
jury’s verdict.’” State v. Stith, 71 Wn. App. at 1-9. Cross-examination “designed to
compel a witness to express an opinion as to whether other witnesses were lying
constitutes misconduct.” State v. Stith, 71 Wn. App. at 18.
During the cross-examination, the State asked Juan Luna Huezo:
Isn’t it true during that interview you told Detective Santoy that
[Tammy] would never lie about anything this serious; isn’t that true?
RP at 401. The trial court overruled an objection to the question and later permitted the
State’s attorney to ask whether he made a similar statement about Bonnie.
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Juan Luna Huezo presents the court no authority that the State may not question
the accused about statements he uttered to another regarding the truthfulness of the
victim. Regardless, we find no prejudice in the questions and answer because of the
overwhelming evidence, including circumstantial evidence, of the crimes and Luna
Huezo’s concession to Tammy of the abuse of Bonnie.
Right to Remain Silent
Juan Luna Huezo argues that the State extensively commented on his right to
remain silent and thus committed misconduct by using his silence as substantive evidence
of guilt. Luna Huezo did not object to any purported misconduct during trial.
A defendant waives a claim of prosecutorial misconduct when failing to object to
the conduct during trial, unless he or she demonstrates that the “misconduct was so
flagrant and ill intentioned that an instruction would not have cured the prejudice.” In re
the Personal Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). The
State may not use a defendant’s silence as substantive evidence of guilt. State v. Burke,
163 Wn.2d 204, 206, 181 P.3d 1 (2008).
When cross-examining Juan Luna Huezo about his comments about the hygiene of
Tammy, the prosecutor asked or commented: “This is the first we’re hearing about all
this; Isn’t that true?” RP at 399. During summation, the prosecuting attorney remarked:
He waited an entire year to now tell his side. Didn’t tell it that day.
Maybe he’s had some time to think about it.
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State v. Huezo
RP at 464.
We agree that the questioning and closing remarks at least indirectly criticized
Juan Luna Huezo for remaining silent before trial. Nevertheless, we do not find any
misconduct flagrant or prejudicial because of the overwhelming evidence of guilt.
Shift of Burden of Proof
Juan Luna Huezo contends that the State improperly shifted the burden of proof to
him. He references the prosecuting attorney remarks during summation:
[Luna Huezo] took the stand and he told you, . . . [t]hat there is also
this thing that happened the morning of 2-8 where [Tammy] witnessed him
pulling [Bonnie’s] hair. . . . And something about Tammy not wiping
herself.
You know what’s interest? Think about this.
No question was ever asked of Kelly about any of that. Huh. Don’t
you think that’s weird? No question was asked of [Bonnie] about any of
that. None of that was mentioned in opening statement. Why is that?
Because it only came in through him. Nobody else was asked about any of
that. Think about that. Why? Because it’s not true.
RP at 463-64.
During closing argument, the prosecution may not suggest that the burden of
proving innocence rests with the defendant. State v. Thorgerson, 172 Wn.2d 438, 453,
258 P.3d 43 (2011). Nevertheless, a prosecutor holds wide latitude to argue reasonable
inferences from the evidence. State v. Thorgerson, 172 Wn.2d at 453. The prosecutor
may attack the credibility of the accused. State v. Berube, 171 Wn. App. 103, 117, 286
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No. 36001-6-III
State v. Huezo
P.3d 402 (2012). By attacking Juan Luna Huezo’s credibility, the State did not shift the
burden of proof.
Ineffective Assistance of Counsel
Juan Luna Huezo argues that he received ineffective assistance of counsel due to
defense counsel’s failure to (1) withdraw, (2) cross-examine and impeach witnesses, and
(3) move for dismissal for spoliation of evidence. To prevail on a claim of ineffective
assistance of counsel, the accused must show that defense counsel’s representation was
deficient and the deficient representation prejudiced him. State v. Estes, 193 Wn. App.
479, 488, 372 P.3d 163 (2016), aff’d 188 Wn.2d 450, 395 P.3d 1045 (2017). Prejudice
exists if there is a reasonable probability that, except for counsel’s errors, the result of the
proceeding would have differed. State v. Estes, 193 Wn. App. at 488.
Juan Luna Huezo argues that defense counsel should have withdrawn as counsel
after suffering the tragic death of his niece during the trial and because of other family
deaths preceding trial. In response to the niece’s death, the trial court granted a one-day
recess in order to give counsel a chance to rest before proceeding further with trial.
Counsel stated that a brief continuance would be sufficient. Counsel tragically lost three
siblings to cancer in the thirteen months prior to his niece’s death. Nevertheless, the
record does not evidence that any of these tragedies impacted defense counsel’s ability to
represent Luna Huezo during trial.
RPC 1.16 provides:
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No. 36001-6-III
State v. Huezo
(a) Except as stated in paragraph (c), a lawyer shall not represent a
client or, where representation has commenced, shall, notwithstanding
RCW 2.44.040, withdraw from the representation of a client if:
....
(2) the lawyer’s physical or mental condition materially impairs the
lawyer’s ability to represent the client.
No evidence supports the violation of this rule of ethical conduct.
Juan Luna Huezo argues that his trial counsel’s failure to cross-examine Bonnie
and to impeach Tammy with her prior inconsistent statement prejudiced him. Generally,
courts entrust cross-examination techniques to the professional discretion of counsel. In
re Personal Restraint of Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004). In determining a
claim of ineffective cross-examination of a witness, a court need not determine why trial
counsel did not cross examine if that approach falls within the range of reasonable
representation. In re Personal Restraint of Davis, 152 Wn.2d at 720. Luna Huezo’s
counsel may have deemed that the testimony of the victims by itself raised questions of
their credibility, that cross-examining the victims more would have obtained no
additional helpful information, and that a cross-examination of young girls might dismay
the jury.
Finally, Juan Luna Huezo maintains that his trial counsel should have moved for
dismissal in response the State’s failure to preserve the zebra blanket. The zebra blanket
was at most potentially useful, not exculpatory, evidence. Luna Huezo allegedly used
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No. 36001-6-III
State v. Huezo
this blanket to silence Tammy by stuffing it into her mouth. Detective Santoy decided
not to preserve the blanket or test it for DNA because of its access to numerous children.
Due process requires the State to disclose material exculpatory evidence to the
defense and to preserve such evidence for use by the defense. State v. Donahue, 105 Wn.
App. 67, 77, 18 P.3d 608 (2001). Failure to preserve potentially useful evidence does not
constitute a denial of due process unless a criminal defendant can show bad faith on the
part of the State. State v. Donahue, 105 Wn. App. at 78. Juan Luna Huezo does not
show bad faith or that the blanket would have advanced his defense.
Cumulative Error
Juan Luna Huezo argues that the combined effect of the aforementioned errors
denied him a fair trial under the cumulative error doctrine. The cumulative error doctrine
may warrant reversal, even if each error standing alone would otherwise be considered
harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). The doctrine does
not apply when the errors are few and have little or no effect on the outcome of the trial.
State v. Weber, 159 Wn.2d 252, 279 (2006). Assuming any errors in Juan Luna Huezo’s
trial, we deem any errors minimal and harmless.
CONCLUSION
We affirm Juan Luna Huezo’s three convictions.
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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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Korsmo, A.C.J.
______________________________
Lawrence-Berrey, J.
26