IN THE COURT OF APPEALS OF THE STATE OFWASHINGTON

STATE OFWASHINGTON, Respondent,


### v. JUAN PABLO GIRON-CLAROS, Appellant. ) ) ) ) ) ) ) ) ) 

# ______________________) NO. 67779-9-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 18, 2013 

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LAu, J.- Juan Pablo Giron-Ciaros appeals his conviction forthree counts offirst degree child molestation, arguing the trial court erred by allowing thejuryto repeatedly replay a videotape ofthe child's interviewwith a child interview specialist. He also contends that the prosecutor's improper arguments shifted the burden of proof, depriving him ofa fair trial. Because Giron-Ciaros fails to demonstrate error, we affirm. FACTS Late in October 2010, T.M.F. began renting a bedroom to share with herfiveyear-old son O.F. in Giron-Ciaros's apartment. Giron-Ciaros occupied a separate bedroom with a bathroom. T.M.F. and O.F. spent between two and three hours with Giron-Ciaros almost every day. O.F. often played games on the Xbox in Giron-Ciaros's

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bedroom. When T.M.F. worked from 6 p.m. to 1:30 a.m. five days perweek, O.F. would stay with a co-worker's wife. On December 15, 2010, O.F. asked to stay with Giron-Glaros when T.M.F. went to work. T.M.F. agreed. The next day, T.M.F. asked O.F. how he had behaved the night before. O.F. said he behaved well, but he complained, "It'sjustthat Pablo wants
me to touch his penis all the time." Report of Proceedings (RP) (July 12, 2011) at 65. After questioning O.F., T.M.F. reported his statements to the police. A few days later, a child interview specialist interviewed O.F. with the assistance ofa Spanish interpreter. The State charged Giron-Glaros with one count offirst degree rape ofa child and three counts offirst degree child molestation. Priorto trial, the trial court determined that O.F. was competent to testify and that O.F.'s hearsay statements to his mother
were admissible. The trial court also ruled that the State would be permitted to use the videotape ofthe interview ofO.F. in its case in chief. Attrial, T.M.F. testified regarding statements O.F. made to her about his interactions with Giron-Glaros. Child Interview Specialist Carolyn Webstertestified about her interview with O.F. Webster did not testify regarding the substance ofO.F.'s statements to her. Instead, Webster's testimony centered on her general practices during child interviews and O.F.'s responses to her questions directed to his understanding oftruth and her expectations. During Webster's testimony, the State offered the videotape ofthe interview, and Giron-Glaros did not object. The trial court admitted the videotape into evidence and allowed the State to play the tape for the jury. O.F. also testified at trial.

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Giron-Glaros testified in his own defense. He also called his girl friend as a witness. Afterthe close ofevidence, outside the presence ofthe jury, the trial court explained that thejurywould be allowed to take the videotaped interview admitted as an exhibit into thejury room with all the other exhibits and the court would address whether to provide playback equipment ifthe jury so requested. During deliberations, thejury requested equipment on which to view the exhibit. Giron-Glaros objected, arguing that allowing the jurors to replay itwould "focus them too much on justa small part ofthe
case ...." RP (July 20, 2011) at47. After hearing argument, the trial court overruled the objection. Giron-Glaros then requested a single replay in the courtroom. After argument, the trial court ruled that replay equipmentwould be provided in thejury room without restriction. Thejuryfound Giron-Glaros guilty ofthe three counts ofchild molestation but acquitted him ofthe rape charge. The trial court imposed a standard range sentence. Giron-Glaros appeals. DISCUSSION Giron-Glaros first contends thatthe trial court abused its discretion by allowing thejuryto repeatedly view the videotaped interview ofO.F. during deliberations. He claims the trial courtfailed to consider the resulting prejudice ofthejury placing undue emphasis on the interview. Decisions on evidentiary issues are within the sound discretion ofthe trial court and will not be disturbed on appeal absent abuse ofdiscretion. State v. Castellanos, 132Wn.2d 94, 97, 935 P.2d 1353 (1997). Abuse ofdiscretion occurs when no -3-67779-9-1/4

reasonable person would take the view adopted by the trial court. Castellanos, 132 Wn.2d at 97. CrR 6.15(e) provides that thejury "shall take with it the instructions given, all exhibits received in evidence and a verdictform orforms" when it retires to considerthe verdict. "[E)xhibits taken to thejury room generally may be used by the jury as it sees fit." Castellanos, 132 Wn.2d at 97. Thejury maytake audiotape orvideotape recorded exhibits into deliberations and reviewthem "if, in the sound discretion ofthe trial court, the exhibits are found to bear directly on the charge and are not unduly prejudicial." State v. Frazier, 99 Wn.2d 180, 189, 661 P.2d 126 (1983); Statev. Gregorv, 158Wn.2d 759, 847-48, 147 P.3d 1201 (2006) (applying same principles provided for audiotapes to videotapes). "'When evidence is likely to stimulate an emotional response ratherthan a rational decision, a dangerof unfair prejudice exists."' Castellanos, 132 Wn.2d at 100 (quoting State v. Powell, 126Wn.2d 244,264, 893 P.2d 615 (1995)). The trial court may, in its discretion, control ajury's access to recordings to limit their prejudicial effects, ifany. See,**~.** Frazier, 99 Wn.2d at 191(court allowed tape recorded statementto gotojury room without playback equipment and provided additional replays as requested byjury); State v. Clapp, 67 Wn. App. 263, 273-74, 834 P.2d 1101 (1992) (court allowed jury to heartape and review transcript three times in open court but did not allow tape or transcript to be taken tojury room)). However, the trial court also has the discretion to allow unlimited access to recorded exhibits with playback equipment. Castellanos, 132 Wn.2d at 100-02 (rejecting "a blanket prohibition againstjuror access to audio tapes and playback equipment").

-4-67779-9-1/5 Relying primarily on State v. Koontz, 145 Wn.2d 650, 41 P.3d 475 (2002), GironGlaros argues that the trial court failed to apply required protections against undue emphasis by limiting thejury's access to the videotaped interview. In Koontz, videotape, rather than written transcription, was used to record trial proceedings. Koontz, 145Wn.2d at 651. During deliberations, the trial court allowed thejuryto view videotape recordings ofthe complete trial testimony ofthree witnesses, including the defendant. Koontz,145Wn.2d at 652. The videotapes consisted ofvarious camera perspectives focusing on the differenttrial participants and allowing the jurors a different view ofthe trial than each had experienced in the courtroom, effectively allowing "an improper repetition ofthe complete trial testimony ofthree critical witnesses." Koontz, 145 Wn.2d at 659. Acknowledging that the case presented a question offirst impression in Washington, the Supreme Court provided guidancefortrial courts considering replay ofvideotaped trial testimony atthe request ofdeliberatingjuries in orderto prevent undue emphasis on certain portions oftrial testimony. Koontz, 145 Wn.2d at 657. Koontz is inapposite. Here, the trial court admitted a video recording ofan out-of-court interview as evidence and allowed thejuryto take the exhibit to thejury room but did not initially provide thejurywith playback equipment. When thejury requested the equipment, the trial court heard and considered Giron-Glaros's objections and arguments but ultimately decided to provide playback equipment without restriction. Giron-Ciaros did not argue below and does not claim here that the exhibit did not bear directly on the charge. For the first time on appeal, he suggests thatthe exhibit
was '"likely to stimulate an emotional response ratherthan a rational decision"' merely -5-67779-9-1/6

because it involved a five-year-old reporting sexual abuse. Castellanos, 132 Wn.2d at 100 (quoting Powell126 Wn.2d at 264). But as the State points out and our review of the exhibit reveals, the record does not support his claim. Throughoutthe interview, O.F. appears more interested in coloring than answering questions, does not appear sad or afraid, and increasingly expresses annoyance atthe length ofthe interview. Giron-Glaros does not identify any particularact orstatement ofO.F. in the videotape likely to stimulate an emotional response. And the trialjudge, who saw and heard all the witnesses, was familiar with all the exhibits, and was in the best position to determinethe emotional impact on thejury, did notfind thatthe exhibit was unduly prejudicial. Castellanos, 132 Wn.2d at 102. Underthe circumstances, Giron-Glaros fails to establish any abuse ofdiscretion. Next, Giron-Glaros contends that the prosecutor committed misconduct by improperly shifting the burden of proof in her rebuttal argument. In particular, GironGlaros identifies the prosecutor's repeated statementthat Giron-Glaros could have offered testimony ofother witnesses at no cost to himself. Giron-Glaros objected to these statements attrial. Prosecutorial misconduct requires a showing thatthe prosecutor's conduct was both improper and prejudicial in the context ofthe entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668,718,940 P.2d 1239 (1997)). Prejudice is established only if there is a substantial likelihood the misconduct affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). We review a prosecutor's comments during closing argument in the context ofthe total argument, the issues in the case, the -6-67779-9-1/7

evidence addressed in the argument, and thejury instructions. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005). A prosecutor commits misconductwhen he shifts the burden of proofto the defendant in closing argument by suggesting that the defendant had an obligation to produce evidence of his innocence. State v. Cleveland, 58 Wn. App. 634, 648, 794 P.2d 546 (1990). A prosecutor's remarks in rebuttal, even ifthey would otherwise be improper, are not misconduct ifthey are '"invited, provoked, oroccasioned"' by defense counsel's closing argument, so long as the remarks do not go beyond a fair reply and
are not unfairly prejudicial. State v. Davenport, 100Wn.2d 757, 761, 675 P.2d 1213 (1984) (quoting State v. LaPorte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961)). Although it is improperto suggestthat evidence not presented at trial provides additional grounds forfinding a defendant guilty, it is not misconductto argue thatthe evidence does not supportthe defensetheory. State v. Russell, 125Wn.2d 24, 87, 882 P.2d 747 (1994). In closing, defense counsel argued at length that repeated questioning by various adults caused O.F. to remember and report events that did notoccur. He also referred twice to the State'sfailure to call T.M.F.'s boyfriend as a witness and suggested that O.F.'s apparent knowledge ofcertain sexual matters may be attributed T.M.F.'s relationship with her boyfriend. In rebuttal, the prosecutor began by acknowledging the State's burden ofproof. She then argued that when a defendant chooses to present evidence, thejury may examine the defense case with "the same critical eye that we do all ofthe State's evidence.'' RP (July 20, 2011) at 39. She encouraged thejuryto evaluate GironGlaros'stestimony and that ofthe otherwitness he called. She continued: -7-67779-9-1/8

The defendant also can have any witness appear at no costto him. So when Defense Counsel says where is Hiyell, where is the roommate, they had the opportunityto presentthat too. [Defense Counsel]: Objection, Your Honor. That's improper burden shifting. THE COURT: Overruled. Go ahead. [Prosecutor]: Now remember, these are crimes that happened in secret. They happened behind closed door. The defendant's not going to touch [O.F.] sexually in front ofany ofthese people. So are they witnesses? No, they're not. Defense Counsel keeps bringing up the notion ofan implanted memory. There was no evidence during this trial ofan implanted memory, ofa mistaken memory or anything ofthe sort. There is no evidence to support that whatsoever. The defendant could have brought an expertto testify to that issue. [Defense Counsel]: Your Honor, that's clearly improper argument. THE COURT: Overruled. Go ahead. [Prosecutor]: And that expert could have been madeto appear at no cost to him. There is no evidence ofan implanted memory. RP (July 20, 2011) at 39-40. Here, the first statementwas afair response to defense counsel's argument regarding the State'sfailure to call T.M.F.'s boyfriend. The prosecutor did not improperly suggestthatthejuryshould infer Giron-Glaros's guiltfrom the boyfriend's absence. Cf., State v. Cleveland, 58 Wn. App. 634, 648, 794 P.2d 546 (1990) (improperto suggestthere is no favorable evidence because defendantfailed to present favorable evidence). Instead, the prosecutor argued that his testimony was not relevant and his absence did not weaken the State's case. This is not improper. The second statement responded to defense counsel's argument of implanted memory, pointing outthe lack ofevidence and experttestimony to support the theory. The only evidence at trial about implanted memorytheory was offered by the doctor who examined O.F. The doctor admitted that she was familiarwith implanted memory literature and then testified that she had no concerns that O.F.'s account was the result of implanted memory. It was not improperforthe prosecutor to point out the lack of -8-67779-9-1/9 contrary evidence to supportthe defense implanted memorytheory. See,**~.** State v. Bebb, 44 Wn. App. 803, 815-16, 723 P.2d 512 (1986) (not improperto comment on defendant's failure to call handwriting expert or lay witness familiarwith his handwriting to rebut State's experttestimony on handwriting). Moreover, we conclude that the statements could not have prejudiced thejury underthe facts ofthis case. Thejury is presumed to follow the court's instructions, which clearly instructed thejuryon the State's burden of proofand the presumption of innocence. The prosecutor prefaced her statements by stating thatthe defendant had
no burden of proof, and the defense attorney, in making his first objection, reminded the juryofthat fact by stating, "That's improper burden shifting." RP (July 20, 2011) at40. And thejury acquitted Giron-Glaros ofthe rape charge, suggesting that it understood the burden of proof. Underthese circumstances, we conclude thatthere is no substantial likelihood that either comment affected thejury's verdict. Affirmed.

WE CONCUR:

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