swE u;r v/ASHi 

### 2016NOV -7 Anfi:l*5

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. MARIO ALBERTO ONTIVEROS, Appellant. DIVISION ONE No. 72941-1-1 UNPUBLISHED OPINION

FILED: November 7, 2016 

### Dwyer, J. — MarioOntiveros appeals from the judgmententered on a 

### jury's verdictfinding him guilty oftwo counts ofchild molestation in thefirst degree, two counts of assault in thefourth degree, and one count of communicating with a minorfor immoral purposes. He contends that thetrial court violated his constitutional right to present a defense, violated his 

### constitutional rightto be present at all critical stages of the trial, admitted 

### irrelevant andprejudicial testimony, andviolated hisrightto ajurytrial. Finding

no error, we affirm. I 

### In 2004, 16-year-old Ontiveros moved from Texas toWashington tolive with his sister, Autumne, and her husband, BradWest.1 Ontiveros resided in

1Because Autumne and Brad share a surname they are referred to by their firstnames for clarity.No. 72941-1-1/2 

### Washington for approximately two years. During this time, Brad's daughterfrom
a previous marriage, K.W., also stayed with herfather every otherweekend during the school year, some holidays, and various weeks during the summer. One afternoon in 2006, when she was 11 years old, K.W. called her mother and asked to be picked up early from herfather's house. During the drive home, K.W. told her mother that, earlierthat same day, Ontiveros told herthat he
was masturbating, asked her ifshe knew how to masturbate, and suggested that he could show her how. At that time, K.W. stated that Ontiveros had not touched 

### her. When they arrived home, K.W.'s mother called Brad, her ex-husband, and discussed what K.W. had told her. Brad confronted Ontiveros, who, Brad 

### testified, admitted to having the aforementioned conversation with K.W. Brad told Ontiveros to leave the house. Ontiveros returned to Texas soon after. 

### K.W. testified that she struggled withdepression in high school and, as a 

### result, began to cut herself. K.W. revealed her self-harm to her mother, explaining that she had not told her mother abouteverything that Ontiveros did to her when she was younger. K.W. asked her mother for counseling. K.W. began 

### seeing a therapist, LoganRoth, and, during theirfirst session, told Roth that a
man living in herfather's house had touched her breasts and entered her room 

### everynightwhen she was younger. Roth did not report the abuseto the police
orchild protective services. K.W. voluntarily ended hertreatmentwith Roth and later reported to her high school counselor that she had been molested. This counselor reported the allegations to the police.No. 72941-1-1/3 InAugust of2012, police questioned Ontiveros aboutthe incidents over the telephone. Ontiveros first denied having any sexual contact with K.W. but, after repeated questioning, later admitted that K.W. may have seen him masturbating once and that he may have touched her breasts a few times while tickling her. Two years later, Ontiveros was charged with four counts of child molestation inthe first degree and one count ofcommunication with a minorfor immoral purposes. Thejury found Ontiveros guilty of two counts of child molestation inthe first degree, two counts of assault inthe fourth degree, and one count of communication with a minorfor immoral purposes. The trial court imposed a 

### standard-range sentence of 78 months to life in prison on the child molestation convictions. No jail time was imposed on the assault or communication convictions. Ontiveros timely appealed.
II Ontiveros first contends that the trial court violated his constitutional right 

### to present a defense. This is so, he asserts, because the court excluded his expertwitness's testimony regarding false confessions. Ontiveros's argument is unavailing. Trial courts have broad discretion indetermining whether experttestimony should be admitted. We review such rulings for abuse ofdiscretion. State v. 

### Rafav. 168 Wn. App. 734, 783-84, 285 P.3d 83 (2012). "A court's decision is 

### manifestly unreasonable ifit is outside the range ofacceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds iftheNo. 72941-1-1/4 

### factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meetthe requirements ofthe correct standard." In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997). While the right to present defense witnesses is a fundamental element ofdue process, State v. Franklin. 180 Wn.2d 371, 382, 325 P.3d 159 (2014); State v. Ellis. 136 Wn.2d 498, 527, 963 P.2d 843 (1998), the right is not absolute. The proffered evidence must be relevant and helpful to the trier offact. Ellis. 136Wn.2dat533. ER 702 regulates expertwitness testimony and provides, in pertinent part, "[i]fscientific, technical, or other specialized knowledge will assistthe trier offact to understand the evidence or to determine a fact in issue, a witness qualified as 

### an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." 

### Prior to trial, Ontiveros soughtto introduce the trialtestimony of Dr. 

### Deborah Connolly. Connolly was prepared to testify aboutfalse confessions 

### generally. Additionally, Ontiveros contended that Connolly would have testified specifically to: (1)various interrogation techniques used by the detective during his interview with Ontiveros, including the "guiltpresumptive" and "minimization 

### and sequential requests" techniques; (2) her opinion that Ontiveros "appeared to be receptive to minimization and option-posing strategies"; and (3) her opinion 

### that Ontiveros's confession should be "treated withgreat caution."2

2Connolly'swritten reportdiscusses several studies and academic papers, which togetherconstituted the offerofproofbefore thetrial court. Theportions of these studies that related to Ontiveros's confession, and to which Connollywas prepared to testify, were included in her report. At no time prior to preparing the report did Connollyspeak to Ontiveros. -4-No. 72941-1-1/5 

### We have previously examined expert testimony regarding false confessions in State v. Rafav. 168 Wn. App. 734, a case referenced by the trial court in ruling Connolly's testimony inadmissible. In Rafav. we upheld the trial court's order excluding expert testimony on false confessions, in part, because the testimony would not "provide any method for the trier offact to analyze the effect ofthe general concepts on the reliability ofthe defendants' confessions." 168 Wn. App. at 789. Connolly's report describes guilt presumptive, confrontational, and minimization/option-posing interrogation techniques and briefly explains the relevant research relating to such techniques. Connolly opines that Ontiveros
was susceptible to the interrogation techniques used by the detective who questioned him, and offers that "some individuals interpret [minimization and 

### sequential requests] as implicit offers ofleniency. When itbecomes clearto an individual that continued denial is futile, and when the individual is offered a way 

### to minimize culpability, a confession or admission is a reasonable option." 

### Connolly's report also includes a study on academic dishonesty in which various interrogation techniques—or no techniques at all—were used on 

### participants inorderto determine whichtechniques produced higher rates of false confessions. When no tactics were used, 46 percent ofthe guilty 

### participants confessed and 6 percent ofthe innocent participants confessed. 

### When the interrogators used minimization and leniency tactics, 87 percent of theNo. 72941-1-1/6 

### guiltyparticipants confessed and 43 percent ofthe innocent participants confessed.3 Although Connolly opines that Ontiveros "was amenable" to these strategies, the report does not state (1) that Ontiveros was susceptible to falsely confessing, or (2) that any interrogation technique used on Ontiveros was more likely to produce false confessions than legitimate confessions. The minimization and leniency techniques Connolly was prepared to testify to may produce more false confessions than othertechniques, but the report indicates that they also produce more legitimate confessions. There is nothing inthe record to indicate that Connolly would have testified that, in her opinion, Ontiveros's confession was false. At most, the testimony would have been that the criticized techniques result in more 

### confessions (both true and false). Because of this, the testimony would have 

### merely advised the jury to treat the confession with caution.4 Ontiveros has not identified anything in Connolly's report that would have assisted thejurors in analyzing the evidence before them. 

### In reaching a verdict, thejurywas tasked withdeciding whether Ontiveros


### was guilty or not guilty and, thus, whether his confession was true or false. Connolly's testimony would not have assisted thejury in making such a determination. Moreover, although Connolly would have testified that the

3The reportpresumes—but does not explainhow—theresults of a study on academic dishonesty are relevantto police interrogations. 4Although courts may instructjuries to treat certain testimonywith caution, such as accomplicetestimony, State v. Harris, 102Wn.2d 148, 685 P.2d 584 (1984), such an instruction sets forth a legalprinciple. Thisdiffers from thetestimony as to facts expected from a witness.No. 72941-1-1/7 

### interview techniques used on Ontiveros are likelyto increase the frequency of confessions, this testimony would not have provided thejury with a method to distinguish between false confessions and legitimate confessions. Such testimony does not make the existence of a fact at issue more or less likely to be true. ER401. Thus, itwas irrelevant. ER402. The trial court's ruling purported to exclude Connolly's testimony on the basis that Connolly does not know ifOntiveros is innocent: "[s]o the testimony is only relevant ifthe person, in fact, was innocent. And that is, ofcourse, the 

### ultimate question forthejury anyway, and so it is not useful to the trier of fact." 

### Although the trial court relied on Rafav in issuing its ruling, its stated reason for excluding the testimony misstates the scope ofRafav's holding. Underthe trial court's reasoning, experttestimony regarding false 

### confessions might never be admissible. To the contrary, such testimony may be 

### properly admitted in certain circumstances. For instance, such testimony may be helpful to the juryin situations where the defendant has a specific personality or mental disorderthat renders them particularlyvulnerable to coercive interrogation methods. See United States v. Shay. 57 F.3d 126, 133 (1st Cir. 1995) 

### ("[W]hetheror not the jury had the capacity to generallyassess the reliability of these statements in light of the otherevidence in the case, it plainlywas 

### unqualified to determine withoutassistance the particularissue ofwhether [the 

### defendant] may have made false statements against his own interests because he suffered from a mental disorder.").No. 72941-1-1/8 We do not go so far as to say that experttestimony on false confessions may only be admitted in matters inwhich the defendant suffers from a personality
or mental disorder. However, Connolly's proposed testimony would not have presented thejury with any information that would have aided thejurors in 

### determining a fact inissue. Thus, the trial court's rulingwas withinthe range of acceptable choices afforded to it. State v. Sisouvanh. 175 Wn.2d 607, 623, 290 P.3d 942 (2012); Littlefield, 133 Wn.2d at 47. There was no error. Ill Ontiveros next contends that the trial court violated his constitutional right 

### to be present during all criticalstages ofthe trial. This is so, he asserts, because the trial court and the attorneys discussed and formulated answers to questions from the deliberatingjury at a time when Ontiveros was not inthe courtroom. Both the federal and state constitutions provide criminal defendants with a 

### rightto be presentduring critical stages of thetrial. U.S. Const, amend. XIV, § 1;Wash. Const, art. I, § 22. PursuanttoWashington's constitution, this right 

### applies at any stage of the trial when the defendant's substantial rights may be affected. State v. Irbv, 170 Wn.2d 874, 885-86, 246 P.3d 796 (2011). A 

### defendantdoes not have a rightto be present during a conference between the 

### court and counsel on legal matters, unless those matters require the resolution of disputed facts. In re Pers. Restraint ofLord. 123Wn.2d 296, 306, 868 P.2d 835 (1994).

### During itsdeliberations, thejury sent seven written inquiries to thetrial judge. The variousinquiries asked about the prosecutor's charging decisions

-8-No. 72941-1-1/9 and inquired about specific pieces ofevidence. The trial court notified the attorneys, who appeared incourt, and thejudge and counsel formulated answers 

### to thejury's questions. Ontiveros was not present during this discussion. After receiving input from counsel, the court responded to thejury's questions regarding the prosecutor's charging decisions by stating, "[t]he Court cannot comment on charging decisions." Regarding thejury's evidentiary questions, the court answered, "[questions about the facts ofthe case concern evidence. The parties having rested, no further evidence willbe introduced." After the trial court sentthese responses to thejury, Ontiveros's counsel requested that the court provide additional answers to thejury. Specifically, Ontiveros's counsel requested that the court instructthejury that the charges are 

### not evidence, thatthejury can consider both the evidence and lack ofevidence, and that the State has the burden to prove all elements ofeach offense beyond a reasonable doubt.5 The court did not respond to this request because, atthat 

### time, the jurors indicated that they had reached a verdict. Before hearing the verdict, counsel for Ontiveros stated that Ontiveros had not been presentfor the formulation ofthe court's responses to thejury's questions. There was no 

### objection interposed at this time, as counsel for Ontiveros was unsure whether such a discussion constituted a critical stage ofthe trial requiring Ontiveros's 

### presence. After the adverse verdicts, Ontiveros moved for a new trial on the ground that he was notpresentfor the formulation of the answers which, he

5The trial court properly issued these instructions before deliberations began. Ontiveros's counsel thus requested that the court instruct the jury onthese matters a second time.No. 72941-1-1/10 asserted, constituted a critical stage ofthe trial. The motion for a new trial was denied. On appeal, Ontiveros again asserts thatthe trial court's formulation ofthe responses to thejury's inquiries outside of his presence violated his constitutional right to be present for all critical stages ofthe trial. This is so, he contends, for two reasons: (1) because any communication between a judge and thejury during a critical stage ofthe trial is prohibited, and (2) because thejury's questions were factual in nature and formulating a proper answer required a knowledge ofthe facts ofthe case. Ontiveros is wrong on both counts. Ontiveros's first contention is without merit. Ontiveros has not established 

### thatthis was a critical stage ofthe trialthat required his personal presence. The 

### trialcourt's responses to thejuryquestions herein were akin to supplementaljury 

### instructions, which may properly be given during deliberation. CrR 6.15(f); State v. Becklin. 163 Wn.2d 519, 529-30, 182 P.3d 944 (2008). A trial court's decision 

### to give or decline to give supplementaljury instructions iswithin its discretion. State v. Brown. 132 Wn.2d 529, 612, 940 P.2d 546 (1997). Providing thejury 

### with requested information on a point of law is not a criticalstage that required Ontiveros's personal presence in addition to that of his counsel. State v. Brown, 29 Wn. App. 11, 16, 627 P.2d 132 (1981): State v. Jury. 19 Wn. App. 256, 270, 576P.2d 1302 (1978).6

6Ontiveros relies on State v. Caliquri, 99 Wn.2d 501, 664 P.2d 466 (1983), to support his assertion that anycommunication between a judge and the juryoutside of the presence of the defendant is prohibited. The comparison is inapposite. In Caliquri, the trial court replayed tape recordings for thedeliberatingjury—essentially giving thejury an opportunity toperceive the evidence anew out of the presence of the defendant, including statements that had originally been redacted. The trialcourt herein provided the jury with no such opportunity. -10-No. 72941-1-1/11 

### As for Ontiveros's second contention, although thejuryasked questions regarding the facts, the trial court's responses were notfactual in nature. Rather, the court's answers set forth legal principles. Moreover, the trial court's responses were "entirely neutral". State v. Russell. 25 Wn. App. 933, 948, 611 P.2d 1320 (1980). The court's responses to thejury's inquiries were "negative in character and conveyed no affirmative information." State v. Safford. 24 Wn. App. 783, 794, 604 P.2d 980 (1979). Thus, there was no error. Ontiveros asserts that, were he personally presentwhen the trial court formulated its answers to thejury's questions, his attorney may have consulted with him and may have asked for additional instructions before thejury finished deliberating. This is pure speculation. Indeed, the supplementaljury instructions 

### eventually requested by defense counsel were duplicative ofinstructions already 

### given. The trial court could have properly refused to reissue those instructions
even ifthe requestto do so had been timely made. State v. Hiqhtower. 36 Wn. App. 536, 549, 676 P.2d 1016 (1984). Finally, the event itself (issuing 

### supplementaljury instructions) is not a criticalstage. Jury, 19 Wn. App. at 270. The trial court did not err in responding to thejury's inquiries.
IV Ontiveros next asserts that the trial court erred by permitting testimony by K.W. and hertherapist, Roth, regarding K.W.'s self-harm and K.W.'s opinion as 

### to why she engaged inself-harm. This is so, he contends, because permitting the aforementioned testimony was prejudicial, irrelevant, and materially affected the outcome ofthe case.

•11-No. 72941-1-1/12 

### The trial court has broad discretion inbalancing the probative value of evidence against its prejudicial impact and we will not reverse the trial court's decision absent a manifest abuse ofthat discretion. State v. Rivers. 129 Wn.2d 697, 710, 921 P.2d 495 (1996); State v. Greathouse. 113 Wn. App. 889, 918, 56 P.3d 569 (2002). Pursuant to ER 402, only relevant evidence is admissible attrial. ER 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is ofconsequence to the determination ofthe action
more probable or less probable than itwould be without evidence." However,
even relevant evidence must be excluded when its probative value is substantially outweighed by the danger of unfair prejudice. ER 403. "'"[U]nfair prejudice" is that which is more likely to arouse an emotional response than a 

### rational decision by thejury'" and "suggestfs] a decision on an improper basis." State v. Cronin. 142 Wn.2d 568, 584, 14 P.3d 752 (2000) (first alteration in original) (quoting State v. Gould. 58 Wn. App. 175, 183, 791 P.2d 569 (1990)). Priorto trial, Ontiveros moved to exclude evidence that K.W. had engaged in self-harm, as well as K.W.'s opinion that her self-harm was a result ofher sexual abuse. The trial court ruled that K.W. could testify as to her self-harm, and what she believed to be her reasons for harming herself, in orderto explain 

### why she entered therapy. At trial, K.W. testified that she engaged inself-harm to cope with the trauma ofher sexual abuse. Similarly, Roth testified at trial that K.W. disclosed her self-harm during theirfirst therapy session and that K.W.

-12-No. 72941-1-1/13 believed herdepression, self-harm, and inability to sleep were caused by her sexual abuse. On cross-examination, counsel for Ontiveros questioned Roth as to why
some people might engage in self-harm. Roth responded, "[t]hat would have to
come from them directly." On re-direct, Roth stated that she had not reached any conclusions as to why K.W. was harming herself, but believed that a person is able to determine for themselves why they are doing so. Ontiveros asserts thatthe aforementioned testimony was irrelevant and 

### prejudicial. He also takes issue withthe opinion testimony offered by Roth despite the trial court's ruling in limine that Roth could not testify as an expert witness.7 We review the trial court's decisions on this testimony to determine 

### whetherthe decisions were manifestly unreasonable, based on untenable 

### grounds, or made for untenable reasons. Sisouvanh, 175Wn.2d at 623; Gould, 58 Wn. App. at 180. The trialjudge ruled that K.W.'s testimony regarding her 

### self-harm was admissible on the question of whyshe entered therapy.8 Roth's testimony was limited to that which K.W. told her during therapy and was 

### admitted for the same purpose as K.W.'s testimony. The trial court's ruling is at least "fairly debatable" and, thus, does not constitute an abuse of discretion. Walker v. Bangs. 92 Wn.2d 854, 858, 601 P.2d 1279 (1979).

7Although Roth was notpermitted totestify as an expert, the State conceded attrial that Roth'stestimony regarding why peoplemightengage in self-harmwas opinion testimony that required a jury instruction on the use ofexperttestimony. 8This is a case of delayedreporting. That a person delays inreporting a sexual assault cangive rise to an inference that thetraumatic eventlikely did nothappen. K.W.'s testimony on her need fortherapy also served to rebut that inference. -13-No. 72941-1-1/14 With regard to the opinion testimony given by Roth, the only such testimony was first elicited by Ontiveros's own counsel. When defense counsel asked Roth's opinion as to why some people engage in self-harm, the doorwas opened for the State to inquire on the same subject on redirect. See, e.g.. State

v. Jones. 111 Wn.2d 239, 248-49, 759 P.2d 1183 (1988) (holding that questioning by defense counsel opened the doorfor the prosecution to ask about otherwise inadmissible evidence). There was no trial court error. V 

### Finally, Ontiveros contends thatthe trial court denied him his right to a jury trial. This denial, he asserts, arose from the trial court's ruling prohibiting 

### Ontiveros from questioning potential jurors about specific wrongful conviction

cases. 

### Trial courts have broad discretion indetermining the scope and extent of 

### voir dire. CrR 6.4(b); State v. Frederiksen. 40 Wn. App. 749, 752, 700 P.2d 369 

### (1985). "Thetrial court's exercise of discretion is limited only by the need to
assure a fairtrial by an impartialjury." Frederiksen. 40 Wn. App. at 752 (citing United States v. Jones. 722 F.2d 528, 529 (9th Cir. 1983)). We will reverse a 

### trial court's ruling on the scope ofvoir dire onlyfor an abuse of discretion and 

### only ifthe defendant shows that the abuse substantiallyprejudiced him. State v. Brady, 116Wn. App. 143, 147, 64 P.3d 1258 (2003) (citing State v. Davis. 141 Wn.2d 798, 825-26, 10 P.3d 977 (2000)). "The refusal to permit specific 

### questions is not reversible errorabsent an abuse of discretion, which will be

-14-No. 72941-1-1/15 

### found only ifthe questioning is not reasonably sufficient to testthejury for bias or partiality." Frederiksen. 40 Wn. App. at 752. Priorto conducting voir dire, the trial court prohibited Ontiveros's attorneys from questioning potentialjurors about specific cases involving wrongful convictions. The court clarified that general questions about a potentialjuror's concerns, including concerns about a person's guilt or innocence, would be permitted, stating, "I will only preclude lawyers from raising specific questions either by name or by particularfacts". Ontiveros contends that such a prohibition was an abuse ofdiscretion that resulted in substantial prejudice to his cause. In support ofthis proposition, Ontiveros cites to State v. Brady. 116 Wn. App. 143. However, the comparison 

### is inapt. In Brady, the trial court allotted time for all attorneys to use for voir dire, but then ended voir dire before that time expired. We held in Brady that the trial 

### court abused its discretion because it"changed the rules" partway through the 

### voir dire. 116 Wn. App. at 148-49. The trial court in Brady abused its discretion because the parties had initially set aside important questions, only to later discoverthatthey would be unable to pursue those lines ofquestioning. This is not such a case. The trial court here set the rules for voir dire beforehand and did not alterthose rules thereafter. Counsel was permitted to 

### question jurors about concerns they may have had regarding a party's guilt or innocence and respond to anyjurorquestions about specific cases. 

### Ontiveros speculates that, had his counsel been permitted to ask about 

### specific, wrongful conviction cases, a juror may have revealed a bias deserving

-15-No. 72941-1-1/16 of a preemptory challenge. However, Ontiveros has not demonstrated why the line ofpermitted questioning—regarding a juror's concerns about guilt or innocence—was insufficient to explore these biases. Consequently, Ontiveros does not establish that the trial court's prohibition substantially prejudiced him. There was no error. Affirmed. 

# T We concur:

-16-