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

STATE OF WASHINGTON, 

DIVISION II

Respondent, 

v. 

JAIME NMI SILVA- ARROYO, 

Appellant. 

No. 45401 -7 -II

UNPUBLISHED OPINION

LEE, J. — Ajury 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 ofthe 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 ofProceedings (RP) ( July 2, 2013) at 393. At the beginning ofhis 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 will3 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 ofthe 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, ifthis 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 ofaffecting the verdict. "' Id. at 761 ( quoting Thorgerson, 172 Wn.2d at 455). 

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No. 45401 -7 -II

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 ofthe 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. ofAppellant 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. ofAppellant 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 ofproofto 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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