IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JEREMY JOSEPH ALVAREZ,

Appellant.

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No. 35567-5-III

ORDER WITHDRAWING

OPINION

THE COURT on its own motion finds that the opinion filed September 17, 2019, should 

be withdrawn.

THEREFORE, IT IS ORDERED, the opinion filed September 17, 2019, is hereby 

withdrawn and a new opinion shall be filed hereafter. 

FOR THE COURT:

_______________________________________

Lawrence-Berrey, C.J.

Chief Judge

FILED

SEPTEMBER 19, 2019

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,

Respondent,

v.

JEREMY JOSEPH ALVAREZ,

Appellant.

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No. 35567-5-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, C.J. — A jury found Jeremy Alvarez guilty of one count of 

second degree rape of a child and acquitted him of another. He appeals and asserts three 

arguments for reversal of his conviction. In a statement of additional grounds for review, 

he asserts over 20 grounds for reversal. We reject his arguments.

Alvarez also requests that we order the trial court to strike several community 

custody conditions and to strike the $200 criminal filing fee. We partly agree and direct 

the trial court to strike some of the contested community custody conditions and the 

criminal filing fee. 

FILED

OCTOBER 29, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35567-5-III

State v. Alvarez

2

FACTS

Alvarez, unable to find a place to live, moved in with his father (Mr. Alvarez), his 

father’s fiancé (Ms. Porter), and her daughter (J.P.). Alvarez was 26, and J.P. was 13.

Several days after he moved in, Alvarez came to J.P.’s room around midnight and 

asked if she wanted to watch a movie. J.P. agreed because she was not sleeping well. 

They sat on the couch in the living room. Alvarez asked to sit closer to J.P., but she 

refused. Alvarez scooted over anyway. J.P. later claimed that Alvarez touched her breast 

and vaginal areas. 

After a while, J.P. went upstairs to her bedroom. Fifteen minutes later, Alvarez 

came upstairs and entered her bedroom. Alvarez began rubbing lotion on J.P.’s feet and 

then her legs. Alvarez kept moving further up J.P.’s legs until he touched her vagina. 

Alvarez then inserted his fingers and used his tongue on J.P.’s vagina. Eventually, J.P. 

asked him to stop and leave, which he did. The entire event lasted about an hour and onehalf. J.P. went to school the next day and reported the incident to her counselor, Lisa 

Ulrich.

Officer Jory Parish, a resource officer at Hanford High School, received a call 

from Lisa Ulrich. While interviewing J.P., Officer Parish learned the incident occurred in 

Pasco, so she contacted Pasco police. 
No. 35567-5-III

State v. Alvarez

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City of Pasco Police Officer Michael Nelson responded. After speaking with 

Officer Parish, Officer Nelson spoke with J.P. J.P. generally reported that she had 

engaged in a sexual act with an individual named Jeremy. After that, Officer Nelson 

drove to Ms. Porter’s employment to inform her what J.P. reported. While there, Officer 

Nelson also spoke with Mr. Alvarez on the telephone, who was out of town. Mr. Alvarez

asked Officer Nelson to make sure that his son was out of the home when he returned

later that day. Officer Nelson drove to the home, told Alvarez about J.P.’s accusation, 

and told Alvarez that his father had directed him to leave the home. Alvarez left. 

Later that evening, J.P. and Ms. Porter returned home. Ms. Porter collected the 

pants, underwear, and bra J.P. wore the night before. The underwear was in the laundry 

basket. One item in the basket, a towel, had been previously used by Alvarez. Detective 

Jesus Romero collected J.P.’s clothing from Ms. Porter. Later, Mari Murstig, a child 

forensic interviewer, met with and interviewed J.P. 

The State charged Alvarez with one count of rape of a child in the second degree. 

After unsuccessful plea negotiations, the State added a second charge of rape of a child in 

the second degree.

At trial, the State’s first witness was Officer Nelson. He testified that when he met 

with Alvarez at the house, Alvarez appeared to have just awakened. The State asked 
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Officer Nelson whether he told Alvarez about J.P.’s allegation, and how Alvarez reacted. 

Alvarez objected, and requested a sidebar. Alvarez argued that the question called for 

improper testimony because the testimony would comment on Alvarez’s right to remain 

silent. The State clarified that it was only eliciting testimony about Alvarez’s facial 

expression, not about his silence or his right to remain silent. The trial court agreed, and 

allowed the testimony. Officer Nelson testified that when he told Alvarez of J.P.’s

allegation, Alvarez “had no expression whatsoever on his face . . . . No shock or anything 

like that.” 2 Report of Proceedings (RP) at 345.1 

The State next called Ms. Murstig. She testified that she reviewed Officer 

Nelson’s report before she interviewed J.P. When the State asked Ms. Murstig whether 

J.P.’s disclosures to her were consistent with Officer Nelson’s report, Alvarez objected on 

the basis of hearsay, that it called for improper opinion testimony, and that it would not be 

helpful to the trier of fact. He did not argue that the opinion would violate his right to a 

jury trial. The trial court overruled Alvarez’s objections and allowed the testimony. Ms. 

Murstig testified that J.P.’s disclosures in the interview with her were consistent with 

J.P.’s disclosures to Officer Nelson. 

 

1 During closing arguments, the State did not repeat this testimony nor did it refer 

to this testimony in any way.
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State v. Alvarez

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The State also called J.P. She testified about the downstairs and the upstairs 

incidents. Her testimony about the downstairs incident was inconsistent. She originally 

testified that Alvarez touched her breasts and her vagina over her clothing as they 

watched a movie. The State later showed her a videotape of a prior interview she had 

given. After this, J.P. testified that during the movie, Alvarez had touched her 

underneath her clothes and had inserted a finger inside her vagina. 

Kaylene Folks, a forensic scientist with the Washington State Patrol Crime 

Laboratory, tested J.P.’s underwear recovered from the laundry basket. She testified that

the inside crotch area tested positive both for human saliva and human male DNA.2 She 

explained that the saliva found on the inside crotch of the underwear was deposited wet. 

This made it highly improbable that the saliva could have been transferred from Alvarez’s 

discarded towel in the laundry basket. 

She also testified that the body fluid found on the inside crotch of J.P.’s underwear 

could only have been saliva. She explained she used the Phadebas test, which shows a 

positive result only if the substance tested has a high concentration of the enzyme 

amylase. Saliva has an amylase concentration about 1,000 times higher than other bodily 

 

2 Deoxyribonucleic acid.
No. 35567-5-III

State v. Alvarez

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fluids. And although body fluids other than saliva contain amylase, “they are in . . .

concentrations much lower than those having saliva [and] wouldn’t be detected by this 

Phadebas test.” 3 RP at 524. 

The jury found Alvarez not guilty of the downstairs charge, but guilty of the 

upstairs charge. At sentencing, the trial court imposed a sentence of 110 months and 

entered multiple community custody conditions. 

Alvarez timely appealed. 

ANALYSIS

A. TESTIMONY ABOUT ALVAREZ’S REACTION

Alvarez contends the State improperly elicited testimony on his prearrest silence, 

violating his constitutional right. 

The State first argues that demeanor—lack of surprise or shock—is not silence. 

The State fails to cite authority to support its argument. Demeanor is not always silence. 

Anger or embarrassment do not denote silence. But a lack of emotion is sufficiently 

similar to silence that any difference is without a distinction. We reject the State’s first 

argument. 

The State next argues that the United States Supreme Court has recently clarified 

that the right to remain silent does not arise, prearrest, until one invokes it. And because 
No. 35567-5-III

State v. Alvarez

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state and federal constitutional provisions against self-incrimination are coextensive, to 

the extent prior Washington decisions are inconsistent, those decisions no longer are good 

law. 

In response to this, Alvarez urges this court to perform a Gunwall3analysis; that is, 

to analyze the issue under independent Washington State constitutional principles. We 

decline to do so. Prior authority from our high court constrains our conclusion that the 

state and federal constitutional provisions on this issue are coextensive. 

When a claim is asserted under both the Washington Constitution and the United 

States Constitution, the first inquiry is whether the asserted right is more broadly 

protected under the state constitution rather than its federal counterpart. State v. Earls, 

116 Wn.2d 364, 374, 805 P.2d 211 (1991). Washington courts have long held that the 

protections of article I, section 9, are “coextensive with, not broader than, the protection 

of the Fifth Amendment [to the United States Constitution].” Id. at 374-75 (citing State v. 

Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971). Because the Washington Constitution 

does not provide broader protections, a Gunwall analysis is unnecessary, and we begin 

our analysis with federal law. Id.

 

3 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). 
No. 35567-5-III

State v. Alvarez

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The Fifth Amendment to the United States Constitution, made applicable to the 

States through the Fourteenth Amendment, generally prohibits the State from 

commenting about the defendant’s failure to speak. State v. Easter, 130 Wn.2d 228, 238-

39, 922 P.2d 1285 (1996). However, the United States Supreme Court has recently 

addressed the difference between prearrest and postarrest silence in Salinas v. Texas, 570 

U.S. 178, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013). 

In Salinas, the defendant agreed to speak with officers about a murder 

investigation, but when the officers questioned the defendant on whether the shell casings 

from the crime scene would match the defendant’s firearm, the defendant “‘[l]ooked 

down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, 

[and] began to tighten up.’” Id. at 182. Eventually, more evidence led to the defendant’s 

arrest. Id. At trial, the defendant did not testify. Id. However, the State used the 

defendant’s reaction to the officer’s interview question about the shell casings as 

evidence of the defendant’s guilt. Id. 

In a plurality decision, the Court found that, unless a defendant expressly invokes 

the privilege, the State can use a defendant’s prearrest silence as evidence of guilt and it 

would not violate the Fifth Amendment. Id. at 186; see also State v. Terry, 181 Wn. App. 

880, 888, 328 P.3d 932 (2014); State v. Magana, 197 Wn. App. 189, 195, 389 P.3d 654 
No. 35567-5-III

State v. Alvarez

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(2016), abrogated on other grounds by State v. Johnson, 4 Wn. App. 2d 352, 421 P.3d 

969, review denied, 192 Wn.2d 1003, 340 P.3d 260 (2018). Therefore, because the 

defendant did not invoke the privilege and there was no evidence that the defendant was 

deprived of the ability to voluntarily invoke the privilege under the circumstances, “the 

prosecution’s use of his noncustodial silence did not violate the Fifth Amendment.” 

Salinas, 570 U.S. at 186. A two-justice concurrence would have concluded that the Fifth 

Amendment right to remain silent does not arise prior to an arrest. Id. at 191-93 (Thomas,

J., Scalia, J. concurring). 

Here, we are concerned with prearrest silence. The testimony was short: after 

Officer Nelson informed Alvarez of J.P.’s allegations, Alvarez had no shock or other 

expression on his face. Alvarez was not under arrest, he was not prevented from invoking 

his right to remain silent, and he did not invoke this right. Under Salinas, five justices 

would conclude that the State was entitled to present testimony about Alvarez’s prearrest 

silence. See Magana, 197 Wn. App. at 195 (following the Salinas plurality). 

Alvarez argues that Salinas was a plurality decision and is, thus, not controlling 

precedent. We have difficulty with this argument, given that the result we reach here is 

consistent with how five United States Supreme Court justices would rule.
No. 35567-5-III

State v. Alvarez

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Were we to conclude that such testimony was improper, this author, but not a 

majority, would conclude that the error was harmless beyond a reasonable doubt. As 

noted previously, the substance found on the inside crotch of J.P.’s underwear was 

definitely saliva, and because the saliva was deposited wet on the underwear, it was 

highly improbable that it could have been transferred from Alvarez’s discarded towel. 

The only plausible explanation is that Alvarez performed oral sex on J.P.4 Had the trial 

court excluded Officer Nelson’s comment that Alvarez showed no reaction to J.P.’s 

accusation, scientific evidence of Alvarez’s guilt was insurmountable. 

B. EXPERT TESTIMONY ABOUT THE VICTIM’S CONSISTENT STATEMENTS

Alvarez contends the trial court erred by overruling his objection to Ms. Murstig’s 

opinion that J.P.’s statements to her were consistent with J.P.’s earlier statements to an 

officer. He argues this error is both evidentiary and constitutional. 

 

4 Both concurring judges believe a jury could reasonably find that the saliva was 

deposited on the inside crotch of J.P.’s underwear by someone spitting, perhaps 

accidentally while talking. This author disagrees. First, Alvarez argued this, and the jury 

rejected his argument. Second, a trained officer or technician would not have spit on the 

underwear. Even while testifying, the technician was careful enough not to hold the 

underwear near her mouth while she spoke. Third, the location of the saliva—inside 

crotch—strongly corroborates J.P.’s testimony and strongly contradicts accidental 

spitting. Finally, if Alvarez believed that someone intentionally spit on J.P.’s underwear, 

he would have so argued. He did not. 
No. 35567-5-III

State v. Alvarez

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1. Evidentiary error

Alvarez argues that Ms. Murstig’s opinion was inadmissible under ER 702 because 

it was not helpful to the trier of fact and because a lay person could determine whether 

two statements are consistent. We agree, but conclude that the error was harmless.

A trial court’s decision to admit expert testimony is reviewed for an abuse of 

discretion. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). “An abuse of 

discretion occurs only when the decision of the court is ‘manifestly unreasonable, or 

exercised on untenable grounds, or for untenable reasons.’” State v. McCormick, 166 

Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 

12, 26, 482 P.2d 775 (1971)). 

Generally, testimony about the veracity of witnesses is inappropriate opinion 

testimony. See State v. Quaale, 182 Wn.2d 191, 200, 340 P.3d 213 (2014). A lay opinion 

is admissible if it is rationally based on the witness’s perception, helpful to the 

determination of a fact in issue, and not based on specialized knowledge. ER 701. Ms. 

Murstig’s opinion that J.P.’s statements to Officer Nelson were consistent with J.P.’s 

statements to her was an opinion not based on Ms. Murstig’s specialized knowledge. It,

therefore, was an improper expert opinion. 
No. 35567-5-III

State v. Alvarez

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But the improper admission of her opinion was harmless error. The jury did not 

believe Ms. Murstig that J.P.’s stories were consistent. It acquitted Alvarez on the 

downstairs charge, the charge that depended on J.P.’s credibility. The jury found Alvarez 

guilty only on the charge that did not depend on J.P.’s credibility, the upstairs charge. 

That charge was supported by forensic evidence, evidence that Alvarez could not credibly 

dispute. 

2. Constitutional error not reviewable

Alvarez argues that Ms. Murstig’s opinion was inadmissible under the Washington 

Constitution article I, sections 21 and 22, and the United States Constitution amendment

VI because it violated his constitutional right to a jury trial. But Alvarez did not raise this 

issue at the trial court.

The general rule is that appellate courts will not consider an issue raised for the 

first time on review. Kirkman, 159 Wn.2d at 926. However, a claim of error may be 

raised for the first time on appeal if it is a manifest error affecting a constitutional right. 

RAP 2.5(a)(3); In re Dependency of M.S.R., 174 Wn.2d 1, 11, 271 P.3d 234 (2012). To 

meet RAP 2.5(a)(3)’s requirements, an appellant must demonstrate (1) the error is truly of 

constitutional magnitude, and (2) the error is manifest. Kirkman, 159 Wn.2d at 926.
No. 35567-5-III

State v. Alvarez

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In analyzing the asserted constitutional interest, we do not assume the alleged error 

is of constitutional magnitude. State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988). 

The claim must be one of truly constitutional magnitude. We look to the asserted claim 

and assess whether, if correct, it implicates a constitutional interest as compared to 

another form of trial error. Id. at 689-91. 

After determining the error is of constitutional magnitude, we determine whether 

the error was manifest. To determine whether manifest error was committed, there must 

be a plausible showing by the appellant that the asserted error had practical and 

identifiable consequences in the trial of the case. State v. O’Hara, 167 Wn.2d 91, 99, 217 

P.3d 756 (2009). 

RAP 2.5(a)(3) serves as a “gatekeeping function.” State v. Lamar, 180 Wn.2d 

576, 583, 327 P.3d 46 (2014). The “gatekeeping function” of the rule is different from 

the analysis of reviewing the claimed error. Id. “The requirements under RAP 2.5(a)(3) 

should not be confused with the requirements for establishing an actual violation of a 

constitutional right or for establishing lack of prejudice under a harmless error analysis if 

a violation of a constitutional right has occurred.” Id.

With these standards in mind we first determine whether Alvarez’s claim is truly 

of constitutional magnitude. Generally, no witness in a criminal trial may offer testimony 
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State v. Alvarez

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in the form of an opinion regarding the veracity of the defendant. Kirkman, 159 Wn.2d at

927. Similarly, no witness in a criminal trial may offer an opinion on the veracity of a 

witness. Quaale, 182 Wn.2d at 200. Such opinions violate the defendant’s constitutional 

right to a jury trial, which includes the independent determination of the facts by the jury. 

Kirkman, 159 Wn.2d at 927. Here, Alvarez claims the trial court erred in allowing Ms. 

Murstig to offer an opinion on the veracity of J.P., who testified at trial. We conclude 

that Alvarez’s claim is truly of constitutional magnitude. 

But not all opinions touching on a witness’s veracity qualify as manifest error. 

“‘Manifest error’ requires a nearly explicit statement by the witness that the witness 

believed the accusing victim.” Kirkman, 159 Wn.2d at 936. This heightened standard is 

consistent with precedent holding that the manifest error exception is narrow. Id.

Here, Ms. Murstig did not testify that she believed J.P. Instead, she testified that 

J.P.’s statements to her were consistent with J.P.’s statements to an officer. This is 

insufficient to constitute manifest error.

C. JUDICIAL COMMENTS ON THE EVIDENCE

Alvarez contends the trial court commented on the evidence three separate times. 

Alvarez did not object to any of the court’s purported comments; however, a judicial 

comment on the evidence is an error of constitutional magnitude that can be raised for the 
No. 35567-5-III

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first time on appeal. State v. Sivins, 138 Wn. App. 52, 59, 155 P.3d 982 (2007); 

RAP 2.5(a)(3). 

Article IV, section 16 of the Washington Constitution states that “[j]udges shall 

not charge juries with respect to matters of fact, nor comment thereon, but shall declare 

the law.” In other words, judges are prohibited from commenting on the evidence. 

WASH. CONST. art. IV, § 16; State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). 

“[A]ny remark that has the potential effect of suggesting that the jury need not consider 

an element of an offense could qualify as judicial comment.” Levy, 156 Wn.2d at 721. 

“It is sufficient if a judge’s personal feelings about a case are merely implied.” Sivins, 

138 Wn. App. at 58. This important constitutional principle serves to protect the jury 

from being unduly influenced by the court’s opinion on the evidence or credibility. Id. 

Washington courts use a two-step analysis to determine whether reversal is 

required due to a judicial comment on the evidence. Levy, 156 Wn.2d at 723. To 

ascertain whether a court’s conduct or remarks rise to a comment on the evidence, courts 

examine the facts and circumstances of the case. Sivins, 138 Wn. App. at 58. If there 

was a judicial comment, it is “presumed to be prejudicial, and the burden is on the State to

show that the defendant was not prejudiced, unless the record affirmatively shows that no 

prejudice could have resulted.” Levy, 156 Wn.2d at 723.
No. 35567-5-III

State v. Alvarez

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Court told a juror during voir dire the victim was 12 or 13

Alvarez’s first contention is that the court told a person, who ultimately became 1

of the 12 jurors, that it believed the victim was 12 or 13 years old. During jury selection, 

the juror advised the court her sister had been sexually assaulted as a teenager. The court 

inquired whether the juror could be fair and impartial, and noted its belief that the 

purported victim was 12 or 13. 

The trial court should not have expressed its personal belief of the victim’s age, 

but should have told the juror that the State contends the victim was 12 or 13. The trial 

court’s comment was technically improper. We are nevertheless satisfied that the 

comment could not have resulted in prejudice. Here, both J.P. and her mother testified 

that J.P. was 13 at the time of the purported offenses. Alvarez did not rebut this 

testimony in any way. 

Alvarez cites State v. Jackman, 156 Wn.2d 736, 132 P.3d 136 (2006) for the 

proposition that a trial court’s instruction as to the age of the victim is a comment on the 

evidence that requires reversal and retrial. Jackman is distinguishable. 

In Jackman, the State charged the defendant with three counts of sexual 

exploitation of a minor, three counts of communication with a minor for immoral 

purposes, four counts of furnishing alcohol to a minor, and one count of patronizing a 
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juvenile prostitute. Id. at 740. The victims testified at trial and gave their dates of birth to 

support the State’s contention that they were all minors at the time of the purported 

crimes. Id. at 740, 742-43. The trial court instructed the jury, and 11 of the 12 to-convict 

instructions contained the victims’ dates of birth consistent with their trial testimonies. 

Id. at 742. The defendant did not object to these instructions, and he was convicted on all 

counts. Id. at 741. On appeal, the defendant argued that the 11 instructions were 

improper judicial comments on the evidence. The Supreme Court agreed. Id. at 744. 

The Supreme Court then concluded that the State could not prove that the improper 

comments resulted in no prejudice. Id. at 745. In so concluding, the court noted that two 

of the victims admitted at trial they had lied to the defendant about their ages, and the jury 

could have found that these and the other victims lied at trial about their ages. Id. at 744 

n.7, 745. 

In contrast here, the jury could not have found J.P.’s age to be anything other than 

13. The trial court’s isolated comment during voir dire that it thought the victim was 12 

or 13 was de minimis, compared to Jackman, where the trial court reiterated dates of birth 

on 11 of the 12 to-convict instructions. 

Court read charging document with J.P.’s date of birth
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Alvarez’s second contention asserts the court commented on the evidence by 

reading the charging document to the jury, which contained J.P.’s date of birth. The trial 

court read the charging document, and thereafter added:

The first amended information in this case is only an accusation against the 

defendant . . . . You are not to consider the filing of the . . . information or 

its contents as proof of the matters charged. 

It is your duty to determine the facts in this case from the evidence 

produced in court.

2 RP at 207. An accurate summary of the accusations, together with an appropriate 

explanation that the summary is not evidence, does not constitute a judicial comment on 

the evidence. Sivins, 138 Wn. App. at 61. 

Jury instruction contained Alvarez’s date of birth

Alvarez’s final contention argues the court commented on the evidence because 

the jury instructions contained his date of birth. The cover page of the court’s amended 

instructions contained Alvarez’s date of birth. The cover page was not read to the jury, 

and Alvarez’s date of birth under his name is hardly noticeable. Even had the jury

noticed it, the court’s instructions contained an admonition for the jury to consider only

evidence that was admitted through testimony or exhibits and to disregard any possible 

comments on the evidence by the court. We presume the jury followed these instructions. 
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Here, Mr. Alvarez testified to his son’s age. His testimony was not contested. To 

obtain a conviction, the State was not required to prove Alvarez’s age. It was only 

required to prove that Alvarez was more than 36 months older than 13-year-old J.P. The 

jury could see that Alvarez—physically very large—was an adult. For these reasons, we 

conclude that the State has established that no prejudice could have resulted from the 

appearance of Alvarez’s date of birth on the cover page to the court’s instructions. 

CUMULATIVE ERROR

Alvarez contends the trial court erred multiple times and if these errors, alone, do 

not warrant reversal, the errors cumulatively warrant reversal. Cumulative error claims 

are constitutional issues, which an appellate court reviews de novo. State v. Clark, 187 

Wn.2d 641, 649, 389 P.3d 462 (2017). To receive relief based on the cumulative error 

doctrine a “defendant must show that while multiple trial errors, ‘standing alone, might 

not be of sufficient gravity to constitute grounds for a new trial, the combined effect of 

the accumulation of errors most certainly requires a new trial.’” Id. (quoting State v. Coe, 

101 Wn.2d 772, 789, 684 P.2d 668 (1984)). When there are no errors or the errors have 

little to no effect on the trial’s outcome, the cumulative error doctrine does not apply. 

State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). 
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Here, the trial court erred when it allowed Ms. Murstig to testify that J.P.’s 

statements to Officer Nelson were consistent with J.P.’s statements to her. But this 

clearly was not prejudicial because the jury’s verdicts showed the jury did not believe Ms. 

Murstig. The trial court also erred by twice commenting on the evidence. But both of 

these comments were very minor. We are persuaded that these minor errors had no effect 

on the outcome of the trial. The jury convicted Alvarez based on solid forensic evidence, 

evidence for which Alvarez had no credible alternative explanation. 

COMMUNITY CUSTODY CONDITIONS

Alvarez challenges seven of his community custody conditions. The State first 

responds that Alvarez cannot challenge the community custody conditions because he had 

an opportunity to collaboratively draft them but did not participate, and he did not object 

to them at the trial court. We disagree with the State’s initial argument. 

An unlawful sentence may be challenged for the first time on appeal. State v. 

Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999). Defendants may generally challenge 

community custody conditions that are contrary to statutory authority for the first time on 

appeal. State v. Bahl, 164 Wn.2d 739, 745, 193 P.3d 678 (2008). We review community 

custody conditions for an abuse of discretion. State v. Irwin, 191 Wn. App. 644, 652, 364 

P.3d 830 (2015). “An abuse of discretion occurs only when the decision of the court is 
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‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’” 

McCormick, 166 Wn.2d at 706 (quoting Carroll, 79 Wn.2d at 26). The abuse of 

discretion standard applies when this court is reviewing a crime-related condition. Irwin, 

191 Wn. App. at 656. 

Generally, courts may impose crime-related conditions on a defendant during their 

time in community custody. RCW 9.94A.505(9), .703(3)(f). A “‘[c]rime-related 

prohibition’ . . . prohibit[s] conduct that directly relates to the circumstances of the crime 

for which the offender has been convicted . . . . ” RCW 9.94A.030(10). “‘Directly 

related’ includes conditions that are ‘reasonably related’ to the crime.” Irwin, 191 Wn. 

App. at 656 (quoting State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (2014)). 

Conditions 4 & 5: Consuming or unlawfully possessing controlled substances

Alvarez argues conditions 4 and 5 are not crime related and are unconstitutionally 

vague. We agree in part. 

Condition 4 reads: “not consume controlled substances except pursuant to lawfully 

issued prescriptions.” Clerk’s Papers (CP) at 121. Alvarez’s contention that this 

condition is not related to his crime of conviction is unpersuasive. This condition is a 

waivable condition under RCW 9.94A.703(2)(c). A waivable condition does not have to 
No. 35567-5-III

State v. Alvarez

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be crime related in order to be imposed. In re Pers. Restraint of Brettell, 6 Wn. App. 2d 

161, 173, 430 P.3d 677 (2018). 

Alvarez argues in the alterative that condition 4 is unconstitutionally vague 

because it is unclear whether it includes marijuana and, if it does, how it interacts with 

Washington’s legalization of marijuana coupled with the differing jurisdictions in which 

marijuana remains illegal. We also find this argument unpersuasive. The abuse of 

discretion standard applies when this court is reviewing a community custody condition 

for vagueness. Irwin, 191 Wn. App. at 652. 

The due process clause contained in the Fourteenth Amendment to the United 

States Constitution and article I, section 3 of the Washington Constitution require that 

laws not be vague. Magana, 197 Wn. App. at 200. The protections against vagueness 

extend to community custody conditions because they can subject a person to 

incarceration. State v. Sanchez Valencia, 169 Wn.2d 782, 791-92, 239 P.3d 1059 (2010). 

A condition is not vague if it (1) provides ordinary people with fair warning of the 

proscribed conduct, and (2) has standards that are definite enough to “‘protect against 

arbitrary enforcement.’” Magana, 197 Wn. App. at 200-01 (internal quotation marks 

omitted) (quoting Bahl, 164 Wn.2d at 753). 
No. 35567-5-III

State v. Alvarez

23

Condition 4 is not unconstitutionally vague. Under federal law, marijuana is a 

schedule I controlled substance. 21 U.S.C. § 812(c)(10), (17). Washington law defines 

“controlled substance” as a substance included in schedule I under federal law. Former 

RCW 69.50.101(d) (2015). Therefore, it is clear, marijuana remains a “controlled 

substance” under Washington law. As Alvarez notes, a health care professional cannot 

write a prescription for marijuana, but only issue valid documentation authorizing the 

medical use of marijuana. RCW 69.51A.030(2)(b); see generally RCW 69.50.308. 

Because a person cannot obtain a prescription for marijuana, the sentencing condition 

allowing the use of controlled substances with a lawfully issued prescription does not 

apply to marijuana. The condition provides fair warning to Alvarez and its terms are 

adequately defined to prevent arbitrary enforcement. Magana, 197 Wn. App. at 200-01. 

Alvarez also contends condition 5 is not crime related and is unconstitutionally 

vague. Condition 5 reads: “not unlawfully possess controlled substances while in 

community custody.” CP at 121. This condition is not a mandatory or waivable 

condition under RCW 9.94A.703(1)-(2). Thus, it is a discretionary condition under 

RCW 9.94A.703(3)(f) and it must be crime related in order to be imposed. 

The State presented no evidence that consuming or possessing controlled 

substances was in any way related to the crime for which Alvarez was convicted. The 
No. 35567-5-III

State v. Alvarez

24

State argues that Alvarez has a history of drug abuse, drug addiction, and drug related 

convictions. While this may be true, community custody conditions must be “relate[d] to 

the circumstances of the crime for which the offender has been convicted.” RCW 

9.94A.030(10) (emphasis added). “‘Directly related’ includes conditions that are 

‘reasonably related’ to the crime.” Irwin, 191 Wn. App. at 656 (quoting Kinzle, 181 Wn. 

App. at 785). The State’s argument revolves around Alvarez’s history, not the specific 

facts related to this conviction. Because there is no evidence that any type of controlled 

substance was related to the conviction at hand, community custody condition 5 is not 

crime related. 5

Conditions 12 & 13: Advise [Department of Corrections (DOC)] of sexual 

partners and disclose sexual history to sexual partners

Alvarez argues conditions 12 and 13, which require Alvarez to advise the DOC of 

current sexual partners and to disclose his sexual criminal history to sexual partners are 

not crime related and violate the First Amendment. We disagree with both contentions. 

Because Alvarez was convicted of rape of a child, conditions requiring him to disclose 

sexual relationships to DOC and inform sexual partners of his status are crime related. 

See In re Pers. Restraint of Tillman, No. 51181-9-II, slip op. at 1 (Wash. Ct. App. June 5, 

 

5 Alvarez’s argument that condition 5 is also unconstitutionally vague is moot. 
No. 35567-5-III

State v. Alvarez

25

2018) (unpublished) http://www.courts.wa.gov/opinions/pdf/D2%2051181-9-

II%20Unpublished%20Opinion.pdf.

6

 

Alvarez’s First Amendment contentions also fail. An offender’s freedom may be 

limited when the restriction is “‘reasonably necessary to accomplish the essential needs 

of the state and public order.’” State v. Riley, 121 Wn.2d 22, 37-38, 846 P.2d 1365 

(1993) (quoting Malone v. United States, 502 F.2d 554, 556 (9th Cir. 1974)). Alvarez’s 

conditions do not limit his freedom of association; it merely affects his privacy. See In re 

Pers. Restraint of Waggy, 111 Wn. App. 511, 518, 45 P.3d 1103 (2002). The Washington 

Supreme Court has recognized the State has a legitimate interest in informing the public 

about “potentially dangerous individuals.” In re Pers. Restraint of Meyer, 142 Wn.2d 

608, 620-21, 16 P.3d 563 (2001). The conditions requiring Alvarez to disclose sexual 

partners to DOC and to disclose his history to sexual partners are conditions reasonably 

necessary to accomplish the essential needs of the state and public order. Riley, 121 

Wn.2d at 37-38. 

 

6 Under GR 14.1, unpublished opinions have no precedential value, but may be 

cited as nonbinding authorities and accorded such persuasive value as the court deems 

appropriate. 
No. 35567-5-III

State v. Alvarez

26

Additional condition 4: Contact with minor children under 18 including biological 

children

Alvarez argues additional condition 4 should contain an exception for his own 

biological children. Alvarez presently has no biological children. But because we are 

remanding to strike some conditions, it is proper to direct the trial court to amend this 

condition to permit an exception for Alvarez’s own children, should he later have any. 

Alvarez also argues the restriction to all minors over 16 and under 18 is not crime 

related because his crime was against a child under 16. We disagree. 

Prevention of harm to children is a compelling state interest. See, e.g., In re 

Dependency of C.B., 79 Wn. App. 686, 690, 904 P.2d 1171 (1995). Restricting access to 

minors under 18 is reasonably related to the crime. Alvarez preyed on, and took 

advantage of, a minor under 18. The trial court concluded that minors under the age of 18 

should be protected from Alvarez, and the condition is reasonably related to Alvarez’s 

conviction.

Additional condition 5: Polygraph testing

Alvarez argues additional condition 5 should be struck or modified to limit 

polygraphs to compliance with his other community custody conditions. We agree. 

Polygraphs may be utilized to monitor compliance with community custody 

conditions. State v. Combs, 102 Wn. App. 949, 952, 10 P.3d 1101 (2000). The testing 
No. 35567-5-III

State v. Alvarez

27

should be limited, however, to monitor compliance with other community custody 

conditions, and not used “as a fishing expedition to discover evidence of other crimes, 

past or present.” Id. at 953. Because the condition is not limited in this fashion, we 

remand for the court to add language limiting the scope of the polygraph testing. 

Additional condition 6: Search of electronic devices by DOC

Alvarez argues additional condition 6 allows unfettered access to any electronic 

device Alvarez possesses and is in violation of Alvarez’s article I, section 7 right against 

searches and seizures. We agree and remand to strike this condition. 

To determine whether a preenforcement challenge to a community custody 

condition is ripe for review, the court examines “‘if the issues raised are primarily legal, 

do not require further factual development, and the challenged action is final.’” Sanchez 

Valencia, 169 Wn.2d at 786 (internal quotation marks omitted) (quoting Bahl, 164 Wn.2d 

at 751). Then, the court also considers the hardship imposed on the petitioner if the 

challenged condition is not reviewed on appeal. Id. Here, the community custody 

condition is a final action, Alvarez’s challenge raises a legal issue and no further factual 

development is required. See State v. Cates, 183 Wn.2d 531, 354 P.3d 832 (2015). 

In Cates, the defendant was convicted of two counts of first degree rape of a child 

and two counts of first degree child molestation. Id. at 532. Among other community 
No. 35567-5-III

State v. Alvarez

28

custody conditions, the court entered a provision that read: “‘You must consent to 

[Department of Corrections] home visits to monitor your compliance with supervision. 

Home visits include access for the purposes of visual inspection of all areas of the 

residence in which you live or have exclusive/joint control/access, to also include 

computers which you have access to.’”

7

 Id. at 533 (alteration in original). The defendant

challenged this condition on appeal, arguing it violated the Washington Constitution 

because it authorized searches not based on probable cause. Id. The Supreme Court 

upheld the condition, finding it was not ripe for review. 

The court recognized that, as written, the condition did not authorize any searches, 

and the inspections were limited to monitor the defendant’s compliance with supervision. 

Id. at 535. It further reasoned that “[s]ome future misapplication of the community 

custody condition might violate article I, section 7, but that ‘depends on the particular 

circumstances of the attempted enforcement.’” Id. (quoting Sanchez Valencia, 169 

Wn.2d at 789). The court held that the State must attempt to enforce the provision before 

review would be appropriate. Id. 

Alvarez’s condition is different from the condition in Cates. Here, the condition 

requires Alvarez to “[a]llow a full search of [his] cell phone/computer or other electronic 

 

7 This condition is similar to Alvarez’s condition 8. 
No. 35567-5-III

State v. Alvarez

29

device as directed by DOC staff.” CP at 174. Unlike Cates, this condition does in fact 

allow searches. This condition is not limited to monitor compliance with supervision; it is

unlimited. Finally, the condition is not required to be based on probable cause—the DOC 

may search, and Alvarez must consent, at any time for any reason. Therefore, the 

condition violates article I, section 7 on its face and should be struck.8 

In sum, condition 5 must be struck because it is not crime related and, thus, the 

court exceeded its authority. Additional condition 6 must also be struck because it is in 

violation of the Washington Constitution, article I, section 7. Finally, additional 

condition 5 is remanded for the court to limit polygraph testing to monitor Alvarez’s 

compliance with other community custody conditions. 

CRIMINAL FILING FEE

Alvarez asks this court to strike his $200 criminal filing fee pursuant to the holding 

in State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).

House Bill 1783, which became effective June 7, 2018, prohibits trial courts from 

imposing discretionary legal financial obligations (LFOs) on defendants who are indigent 

at the time of sentencing. LAWS OF 2018, ch. 269, § 6(3); Ramirez, 191 Wn.2d at 738, 

 

8 Alvarez also challenges this condition as not being crime related. We agree and 

would require the condition to be struck for this reason also. Alvarez’s crime did not 

involve any use of electronics, and the condition is not limited to ensure compliance with 
No. 35567-5-III

State v. Alvarez

30

747. This change to the criminal filing fee statute is now codified in RCW 

36.18.020(2)(h). As held in Ramirez, these changes to the criminal filing fee statute apply 

prospectively to cases pending direct appeal prior to June 7, 2018. Ramirez, 191 Wn.2d 

at 747. Accordingly, the change in law applies to Alvarez’s case. Because Alvarez is 

indigent, the criminal filing fee must be struck pursuant to Ramirez. 

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

Alvarez filed an original and a supplemental SAG, which contain at least 20

arguments why his conviction should be reversed. We organize his arguments by subject 

matter and consolidate them for brevity.

SAG Ground 1: JURY SELECTION

1A. Jury selection: Jurors 8 and 14 

Alvarez contends that jurors 8 and 14 had the same name, which likely caused a 

conflict. Jurors 8 and 14 had different names. 

1B. Jury selection: Juror 10

Alvarez contends that juror 10 was improperly left on the panel. He argues that 

juror 10 had an appointment on the afternoon of deliberations that likely caused the jury 

to rush deliberations. This is a bare assertion. Juror 10 had an appointment—but juror 10 

 

his other conditions. 
No. 35567-5-III

State v. Alvarez

31

stated it could be changed. There is no evidence that juror 10 did not change the 

appointment and rushed deliberations. 

1C. Jury selection: Jurors 25 and 26

Alvarez contends jurors 25 and 26 participated in voir dire after they were struck. 

Also, juror 25 learned J.P.’s age during voir dire. He asserts that this tainted the jury. 

There is no record of juror 25 participating in voir dire after being struck. 

Although juror 25 learned the age of J.P. during individual voir dire, juror 25 was struck 

for cause. Thus, that knowledge had no impact on the case. 

Juror 26 was struck for cause during individual voir dire. For some reason, juror 

26 returned for general voir dire. Juror 26 answered a question about prior jury service 

and how prior service on a hung jury was frustrating. Counsel recognized the mistake 

and excused juror 26. We reject Alvarez’s contentions that one comment about being on 

a hung jury tainted the rest of the jury pool. 

1D. Jury selection: Not screened for conflicts with Ashley Lucas or Jeffrey

Porteous

Alvarez contends the potential jurors were not screened for conflicts with two 

witnesses. He asserts this could have created a conflict in the jury and denied him a fair 

trial by an impartial jury. Alvarez has not included admissible facts to show that this 

failure to screen actually resulted in conflicts. Because his argument relies on facts 
No. 35567-5-III

State v. Alvarez

32

outside the record, the appropriate course of relief is through a personal restraint petition. 

State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). 

SAG Ground 2: JURY INSTRUCTIONS

2A. Jury instructions: Instruction 6

Alvarez contends the court erred and read jury instruction 6 that was previously 

removed. Instruction 6 was the definition of “sexual contact” under RCW 9A.44.010(2). 

The parties had previously agreed to remove the instruction before the court read the 

instructions to the jury, but the instruction accidentally remained in the jury packet. The 

court read it to the jury. At a sidebar, the parties agreed it should have been removed and 

agreed for the court to re-read the instruction to the jury to notify them which instruction 

would be removed. The second time through the instruction, the court said “sexual act” 

instead of “sexual contact.” Alvarez claims this misstep requires reversal. The court, per 

agreement of the parties, removed instruction 6. The court’s mistake in reading it to the 

jury, then re-reading and saying “sexual act” instead of “sexual contact” was harmless. 

The instruction was removed. 
No. 35567-5-III

State v. Alvarez

33

2B. Jury instructions: Erroneous Petrich9instruction

Alvarez contends jury instruction 10 did not contain the required elements. Jury 

instruction 10 was not the element instruction. The elements were included in instruction 

8. 

SAG Ground 3: DETECTIVE ROMERO’S TESTIMONY

3A. Detective Romero’s testimony: Statements about flight risk

Alvarez contends Detective Romero’s statements about arresting Alvarez because 

he was unemployed and a flight risk were prejudicial and robbed Alvarez of a fair trial. 

Alvarez’s counsel objected at trial, and the court sustained the objection and instructed 

the jury to disregard the testimony. The law presumes this remedy was effective. State v. 

Swan, 114 Wn.2d 613, 661-64, 790 P.2d 610 (1990). 

Essentially, Alvarez argues the trial court should have declared a mistrial sua 

sponte. An appellant who does not request a remedy forfeits that claim. “‘Counsel may 

not remain silent, speculating upon a favorable verdict, and then, when it is adverse, use 

the claimed misconduct as a life preserver on a motion for a new trial or on appeal.’” 

 

9 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on 

other grounds by State v. Kitchen, 110 Wn.2d 403, 406 n.1, 756 P.2d 105 (1988), 

abrogated in part on other grounds by In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 

316 P.3d 1007 (2014).
No. 35567-5-III

State v. Alvarez

34

State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994) (quoting Jones v. Hogan, 56 

Wn.2d 23, 27, 351 P.2d 153 (1960)). 

3B. Detective Romero’s testimony: Scope of testimony

Alvarez argues the State was able to question Detective Romero outside the scope 

of his impeachment testimony of Alvarez’s two witnesses. We review the trial court’s 

decision to admit testimony for an abuse of discretion. State v. Demery, 144 Wn.2d 753, 

758, 30 P.3d 1278 (2001). The State’s redirect of Detective Romero was proper 

responsive testimony to Alvarez’s witnesses who testified to impeach the credibility of 

J.P. Detective Romero’s testimony was limited to rehabilitating the witness, and the trial 

court did not abuse its discretion by allowing it. 

SAG Ground 4: CHARGING DOCUMENT

Alvarez argues the charging document did not contain the essential elements 

needed for a conviction—they were constitutionally deficient. The charging document 

merely stated “sexual intercourse,” which can be found and accomplished in many 

different ways. Alvarez argues this ambiguity did not put him on notice of the “means” 

by which sexual intercourse was accomplished thus making the charging document 

deficient. 
No. 35567-5-III

State v. Alvarez

35

A defendant may challenge the sufficiency of the charging document for the first 

time on appeal, but the court liberally construes the document in favor of validity. 

State v. Kjorsvik, 117 Wn.2d 93, 105-06, 812 P.2d 86 (1991). The court will look at 

(1) whether the necessary facts appear in any form or can be found by fair construction, 

and if so (2) whether the defendant suffered actual prejudice as a result of the vague or 

ambiguous language. Id. 

The basis of Alvarez’s contention is that the information did not define “sexual 

intercourse.” The definition of sexual intercourse is not a statutory element and not 

necessary to include in the charging document. Therefore, the charging document was 

sufficient. Similar language has been upheld. See State v. Botello-Garcia, No. 46355-5-

II, slip op. at 5-6 (Wash. Ct. App. Apr. 26, 2016) (unpublished), 

http://www.courts.wa.gov/opinions/pdf/46355-5.16.pdf;10 CP at 161. We conclude that 

the charging document alleged and defined the offense with sufficient certainty to give 

Alvarez notice of the crime. 

 

10 Under GR 14.1, unpublished opinions have no precedential value, but may be 

cited as nonbinding authorities and accorded such persuasive value as the court deems 

appropriate. 
No. 35567-5-III

State v. Alvarez

36

SAG Ground 5: MOTION IN LIMINE

Alvarez argues the court erred by granting a motion in limine to exclude character 

evidence of J.P. J.P.’s actions of sneaking a dress into school, changing into it, taking 

pictures in it, then changing back out of it, should have been admitted to show J.P.’s 

untruthfulness and deceitfulness. Alvarez also argues the trial court erroneously excluded 

character evidence about J.P.’s prior discipline problems at school and home. 

The trial court reserved ruling on the motion in limine about J.P.’s actions with the 

dress, but otherwise excluded other character evidence. A trial court’s ruling on a motion 

in limine is reviewed for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 

893 P.2d 615 (1995); State v. Munguia, 107 Wn. App. 328, 335, 26 P.3d 1017 (2001). 

Generally, character evidence is not admissible “for the purpose of proving action in 

conformity therewith on a particular occasion.” ER 404(a). Other wrongs or acts are also 

inadmissible for that purpose. ER 404(b). Alvarez does not argue that an exception 

applies to J.P.’s discipline history; therefore, we reject his contention. The trial court did 

not abuse its discretion in excluding that evidence. 

The court revisited the reserved motion in limine during trial. Alvarez’s counsel 

was able to question J.P. about the dress she showed Alvarez after the rape. Counsel 
No. 35567-5-III

State v. Alvarez

37

conceded not to elicit other testimony about prior incidents with the dress. Because the 

court did not rule on this, the court could not have abused its discretion. 

SAG Ground 6: MR. PORTEOUS’S TESTIMONY

Alvarez argues the trial court erred by allowing the State to examine Mr. Porteous 

outside the scope of redirect during recross. Whether a line of questioning on crossexamination is properly within the scope of direct examination is within the trial court’s 

discretion. State v. McDaniel, 83 Wn. App. 179, 184, 920 P.2d 1218 (1996). The trial 

court properly exercised its discretion to allow the State to examine Mr. Porteous on 

recross. 

Initially, Alvarez called Mr. Porteous as a witness and questioned him about the 

interview with J.P. Mr. Porteous testified to statements J.P. did not make in her interview 

that seemed to contradict her trial testimony. The State cross-examined Mr. Porteous 

about that interview. Specifically, the State elicited testimony that Mr. Porteous was not 

asking the questions to J.P., and Alvarez’s counsel may have done a poor job posing the 

right questions to J.P. On redirect, Alvarez asked more questions about the interview to 

explain some of Mr. Porteous’s responses to the State’s cross-examination. The State 

recrossed and asked for a description of the room where the interview took place. 

Alvarez objected, arguing the question was outside the scope of redirect. The trial court 
No. 35567-5-III

State v. Alvarez

38

overruled, and the State was able to briefly question Mr. Porteous about the interview 

room, the hallway to the room, and who was in the room during the interview. This 

recross was within the scope of redirect. Alvarez questioned Mr. Porteous about the 

interview, and the State’s questions were directly related to the interview. 

SAG Ground 7: DNA EVIDENCE

Alvarez argues the DNA evidence was unreliable and insufficient because it did 

not come from an untainted source. He argues the underwear was gathered by J.P.’s 

mother and was initially located in a hamper with other clothes, including a towel that

could have contained his DNA. 

At trial, Alvarez did not seek to exclude the evidence as unreliable. We conclude 

he has waived his right to review on this issue. State v. Guloy, 104 Wn.2d 412, 422, 705 

P.2d 1182 (1985); see also State v. Blake, 172 Wn. App. 515, 530, 298 P.3d 769 (2012).

Because Alvarez also challenges the sufficiency of the evidence, he admits the 

truth of all the State’s evidence. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401 P.3d 

19 (2017). “Evidence is sufficient to support a guilty verdict if any rational trier of fact, 

viewing the evidence in the light most favorable to the State, could find the elements of 

the charged crime beyond a reasonable doubt.” Id. “[A]ll reasonable inferences from the 
No. 35567-5-III

State v. Alvarez

39

evidence must be drawn in favor of the State and interpreted most strongly against” 

Alvarez. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 

To find Alvarez guilty of rape of a child in the second degree, the jury had to find 

that Alvarez had “sexual intercourse with another who is at least twelve years old but less 

than fourteen years old and not married to the perpetrator and the perpetrator is at least 

thirty-six months older than the victim.” RCW 9A.44.076(1). “Sexual intercourse” 

means “any act of sexual contact between persons involving the sex organs of one person 

and the mouth or anus of another.” RCW 9A.44.010(1)(c). “‘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.” RCW 9A.44.010(2). 

Here, viewing all of the State’s evidence as true, there was sufficient evidence to 

convict Alvarez of rape of a child in the second degree. J.P. was 13 at the time of the 

rape. Alvarez was 26. J.P. was not married to Alvarez. J.P. testified that while upstairs,

Alvarez put one to three fingers inside of her vagina. Then, Alvarez used his tongue on 

J.P.’s vagina. While this occurred, Alvarez was “pulling on himself.” 3 RP at 452. It is 

clear the elements were met, and a rational jury could have found Alvarez guilty. 

The State’s forensic expert testified she found saliva and male DNA on the inside 

crotch of the underwear worn by J.P. during the purported offenses. J.P. testified that 
No. 35567-5-III

State v. Alvarez

40

Alvarez performed oral sex on her. Alvarez offered no credible alternative explanation 

for the presence of saliva and male DNA on the inside crotch of J.P.’s underwear. There 

was sufficient evidence to sustain his conviction.

SAG Ground 8: J.P.’S TESTIMONY

Alvarez argues J.P.’s testimony was insufficient for conviction. J.P.’s story and 

allegations changed multiple times. He argues the court erred by allowing this testimony. 

He further argues, even after the court learned J.P. recanted, it still sentenced him despite 

the perjured testimony.

As stated earlier, to find Alvarez guilty of rape of a child in the second degree, the 

jury had to find that Alvarez had “sexual intercourse with another who is at least twelve 

years old but less than fourteen years old and not married to the perpetrator and the 

perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.076(1). 

Here, there was sufficient evidence to convict Alvarez of rape of a child in the 

second degree. J.P. was 13 at the time of the rape. Alvarez was 26. J.P. was not married 

to Alvarez. J.P. testified that while upstairs, Alvarez put one to three fingers inside her 

vagina. Then, Alvarez used his tongue on J.P.’s vagina. While this occurred, Alvarez 

was “pulling on himself.” 3 RP at 452. It is clear the elements were met, and a rational 

jury could have found Alvarez guilty. 
No. 35567-5-III

State v. Alvarez

41

Alvarez did not object to the admission of J.P.’s testimony. Therefore, he waived 

his right to review on this issue. Guloy, 104 Wn.2d at 422; see also Blake, 172 Wn. App. 

at 530.

Alvarez argues that because he is seeking a recantation, and J.P.’s mother met with 

Alvarez’s counsel after trial, this means J.P. recanted her allegations. There is no 

evidence of an actual recantation beyond Alvarez’s accusations. When claims depend on 

evidence outside the record, those claims are properly raised through a personal restraint 

petition. McFarland, 127 Wn.2d at 335. 

SAG Ground 9: INEFFECTIVE ASSISTANCE OF COUNSEL 

Each defendant has the right to receive effective assistance of counsel. Strickland 

v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Effective 

assistance of counsel is a mixed question of law and fact that we review de novo. Id. at 

698. We apply a two-pronged test to determine whether counsel provided effective 

assistance: (1) whether counsel’s performance was deficient, and (2) whether that 

deficient performance prejudiced the defendant to an extent that changed the result of the 

trial. Id. at 687. We can address the second prong initially “[i]f it is easier to dispose of 

an ineffectiveness claim on the ground of lack of sufficient prejudice.” Id. at 697. 
No. 35567-5-III

State v. Alvarez

42

9A. Ineffective assistance of counsel: Not filing motions

Alvarez argues he received ineffective assistance of counsel because his attorney 

did not file a motion to suppress the DNA evidence, a motion to exclude J.P.’s testimony, 

a motion to dismiss due to insufficient evidence, a motion to dismiss for an insufficient 

charging document, and a motion for retrial after J.P.’s recantation. To show prejudice 

for counsel’s failure to make a motion, a defendant must show the motion likely would 

have been granted. In re Pers. Restraint of Davis, 152 Wn.2d 647, 711, 101 P.3d 1 

(2004). 

Alvarez’s motion to exclude J.P.’s testimony or the DNA evidence would likely 

not have been granted. Alvarez merely asserts J.P.’s testimony is inconsistent and 

unreliable. However, evidence is relevant and, therefore, admissible when it has any 

tendency to make the existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without the evidence. ER 401, 

402. This threshold is very low. State v. Briejer, 172 Wn. App. 209, 225-26, 289 P.3d 

698 (2012). Alvarez’s arguments go more to the weight of this evidence, which is 

properly explored on cross-examination and determined by the jury. 

Alvarez’s motion to dismiss due to insufficient evidence would likely not have 

been granted. There was evidence presented that Alvarez touched J.P.’s sexual parts for 
No. 35567-5-III

State v. Alvarez

43

the purpose of gratifying sexual desire and that J.P. was between 12 and 14 years old, not 

married to Alvarez, and Alvarez was more than 36 months older than J.P. See 

RCW 9A.44.076(1).

Alvarez’s motion to dismiss due to an insufficient charging document would likely 

not have been granted. As stated earlier, the charging document contained the necessary 

elements. 

Alvarez does not show his motion for retrial would have been granted. There is no 

evidence of an actual recantation beyond Alvarez’s accusations. 

Because Alvarez cannot show any of his proposed motions would likely have been 

granted, his claims of ineffective assistance of counsel fail. See Davis, 152 Wn.2d at 711.

9B. Ineffective assistance of counsel: Not objecting to amended information

Alvarez argues he received ineffective assistance of counsel because his attorney 

did not object to the State’s amended information. The mere filing of additional charges 

after a defendant refuses a guilty plea is not sufficient for a finding of prosecutorial 

vindictiveness. State v. Korum, 157 Wn.2d 614, 629, 141 P.3d 13 (2006). 

9C. Ineffective assistance of counsel: Not objecting to community custody 

conditions

Alvarez argues he received ineffective assistance of counsel because his attorney 

did not object to community custody conditions. Alvarez does not show how this alleged 
No. 35567-5-III

State v. Alvarez

44

error would have changed the result of the trial. Strickland, 466 U.S. at 687. Moreover, 

his community custody conditions have been addressed on appeal. 

9D. Ineffective assistance of counsel: Not presenting evidence

Alvarez argues he received ineffective assistance of counsel because his attorney 

failed to present the audio recording and video recording of J.P.’s interviews. Alvarez 

contends the video and recordings would have shown J.P.’s inconsistent statements. 

Alvarez’s counsel accomplished this by examining Mr. Porteous, Detective Romero, and 

J.P. at length about the interviews. Playing the lengthy interview video and recording 

would have been time consuming, and it was a legitimate strategic tactic not to present 

those to the jury. 

9E. Ineffective assistance of counsel: Not objecting to the exclusion of J.P.’s 

character evidence

Alvarez argues he received ineffective assistance of counsel because his attorney 

failed to object to the court excluding evidence of J.P.’s character of past school and 

familial discipline. Even if Alvarez’s counsel objected to the court excluding certain 

evidence about J.P.’s character, the objection would likely have been overruled. Alvarez 

asserts the information should have been admitted to show J.P.’s deceitfulness, 

flirtatiousness, and that she lied about the rape. Generally, character evidence is not 

admissible “for the purpose of proving action in conformity therewith on a particular 
No. 35567-5-III

State v. Alvarez

45

occasion.” ER 404(a). Other wrongs or acts are also inadmissible for that purpose. 

ER 404(b). Therefore, his argument fails. 

9F. Ineffective assistance of counsel: Jury 

Alvarez argues he received ineffective assistance of counsel because his attorney 

did not screen potential jurors for a conflict with Ms. Lucas or Mr. Porteous, he failed to 

remove juror 11 instead of juror 10, and he failed to remove juror 13. Alvarez does not 

show how these alleged errors would have changed the result of the trial. Strickland, 466 

U.S. at 687. Alvarez does not show the jury panel had an actual conflict with Ms. Lucas 

or Mr. Porteous. 

As noted before, Alvarez asserts that because juror 10 had an appointment on the 

afternoon of deliberations, it likely caused the jury to rush deliberations. This is a bare 

assertion. Juror 10 had an appointment—but juror 10 stated it could be changed. There is 

no evidence that juror 10 did not change the appointment and rushed deliberations. Juror 

11 had an actual conflict to leave town during deliberations. It was a legitimate strategy 

to remove juror 11 instead of 10. 

Alvarez does not show how not removing juror 13 would have changed the result 

of the trial just because juror 13 learned J.P.’s age during voir dire. Strickland, 466 U.S. 

at 687. J.P.’s age was uncontested at trial. 
No. 35567-5-III

State v. Alvarez

46

9G. Ineffective assistance of counsel: Trial objections

Alvarez argues he received ineffective assistance of counsel because his attorney 

failed to object to J.P. being referred to as “victim,” Officer Nelson’s hearsay testimony, 

and Officer Nelson’s Miranda11 testimony. 

Alvarez generally alleges that his counsel and multiple witnesses referred to J.P. as 

“victim.” This does not show how an objection and sustained ruling on that 

characterization of J.P. would have changed his conviction. Strickland, 466 U.S. at 687. 

Officer Nelson’s testimony about what Mr. Alvarez instructed him to tell Alvarez 

may have been hearsay, but Alvarez fails to show how the outcome of the trial would 

have been different if Officer Nelson’s testimony was objected to and sustained. 

Strickland, 466 U.S. at 687.

Alvarez does not show how an objection and sustained ruling on Officer Nelson’s 

Miranda testimony would have changed his conviction. Strickland, 466 U.S. at 687. 

9H. Ineffective assistance of counsel: Right to testify

Alvarez argues he received ineffective assistance of counsel because his attorney 

intimidated him and advised him not to testify. There is no evidence that Alvarez’s 

counsel intimidated him not to testify. Alvarez went on record to confirm he did not want 

 

11 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 35567-5-III

State v. Alvarez

47

to testify. If Alvarez’s claim depends on evidence outside the record, that claim is 

properly raised through a personal restraint petition. McFarland, 127 Wn.2d at 335.

9I. Ineffective assistance of counsel: Jury instructions

Alvarez argues he received ineffective assistance of counsel because his attorney 

failed to object or correct jury instructions 10 and 13. 

Alvarez argues the court erred by striking a certain part of jury instruction 13. 

However, Alvarez goes on to say this prevented the jury from considering the State’s 

questions to Mr. Porteous as part of the record. Striking the State’s leading questions 

from the record was a legitimate trial tactic. 

As noted earlier, jury instruction 10 was not the required element instruction. The 

elements were included in instruction 8. 

9J. Ineffective assistance of counsel: Witness list

Alvarez argues he received ineffective assistance of counsel because his attorney 

failed to file a witness list. Alvarez does not show how this would have changed his 

conviction. Strickland, 466 U.S. at 687. 

9K. Ineffective assistance of counsel: Mental health capacity

Alvarez argues he received ineffective assistance of counsel because his attorney 

did not object to his mental health capacity. Alvarez does not explain why counsel should 
No. 35567-5-III

State v. Alvarez

48

have objected to Alvarez being found competent. Because we are unable to determine the 

nature of the claimed error, we will not review it. If Alvarez’s claim depends on evidence 

outside the record, that claim is properly raised through a personal restraint petition. 

McFarland, 127 Wn.2d at 335.

9L. Ineffective assistance of counsel: Sentencing 

Alvarez argues he received ineffective assistance of counsel because his attorney 

failed to object to the State’s comment at sentencing, failed to correct the State’s 

characterization of the crime, failed to object or correct the State’s sentencing 

memorandum, and failed to argue for an exceptional mitigated sentence. 

Counsel’s failure to object to the State’s comment at sentencing that “[Alvarez]

continue[s] to molest” is harmless. RP (Aug. 25, 2017) at 9. Likewise, counsel’s failure 

to object to the State’s comment that Alvarez’s history of sexual abuse occurs usually 

while watching movies with the victim was harmless. Finally, the State characterized 

Alvarez’s crime as taking place over a couple hours in multiple rooms. Alvarez argues 

this is incorrect as he was only convicted of conduct that took place in the upstairs 

bedroom, and J.P.’s testimony was that it lasted an hour and one-half, not a couple hours. 

Alvarez cannot show with likelihood that any of these comments changed the sentence he 

received. 
No. 35567-5-III

State v. Alvarez

49

Counsel was not ineffective for failing to argue for an exceptional mitigated 

sentence. Alvarez’s counsel argued for the low end of the sentencing range. The court 

was very mindful of the victim in this case and how this rape will affect her for the rest of 

her life. The court reasoned that the low end of the range was inappropriate considering 

the crime and the victim. On the other hand, the court believed the high end of the range 

was also not necessary. Therefore, the court imposed 110 months. Alvarez cannot show 

with substantial likelihood that if his counsel would have argued for an exceptional 

mitigated sentence that he would have received it—considering his counsel argued for the 

low end range and Alvarez did not receive a low end range sentence. 

9M. Ineffective assistance of counsel: Limiting instructions

Alvarez argues he received ineffective assistance of counsel because his attorney 

failed to propose a limiting instruction for officers’ reports, Detective Romero’s 

testimony and J.P.’s testimony. 

The “officers’ reports” were not admitted into evidence. There were only six 

exhibits admitted into evidence—J.P.’s underwear and five photographs of the house, 

stairway, loft, and J.P.’s bedroom. Therefore, Alvarez’s counsel could not limit their 

admissibility because they were not admitted to the jury. His argument that the officers’
No. 35567-5-III

State v. Alvarez

50

reference to their reports was improper also fails. An officer may reference their report to 

refresh their recollection. ER 612. 

Detective Romero’s testimony was not limited to impeachment testimony. 

Detective Romero was called as a witness in the State’s case-in-chief. He gave more than 

impeachment testimony. A limiting instruction was unsuitable with his testimony. 

J.P.’s testimony was also not limited to impeachment testimony. She testified to 

the details of the rape. A limiting instruction was simply inconsistent with the testimony 

she gave. 

SAG Ground 10: PROSECUTORIAL MISCONDUCT

To prevail on a claim of prosecutorial misconduct, Alvarez must establish “‘that 

the prosecutor’s conduct was both improper and prejudicial in the context of the entire 

record and the circumstances at trial.’” State v. Thorgerson, 172 Wn.2d 438, 442, 258 

P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 

174, 191, 189 P.3d 126 (2008)). Prejudice requires a showing of substantial likelihood 

that the prosecutor’s misconduct affected the jury’s verdict. Id. at 443. A failure to 

object to an improper remark waives review of the error unless it “‘is so flagrant and ill 

intentioned that it causes an enduring and resulting prejudice that could not have been 

neutralized by an admonition to the jury.’” Id. (quoting Russell, 125 Wn.2d at 86). 
No. 35567-5-III

State v. Alvarez

51

10A. Prosecutorial misconduct: Insufficient evidence

Alvarez contends the State charged without sufficient evidence and should have 

waited until the DNA results were done. “Prosecutors are given broad discretion in 

determining what charges to bring and when to file them.” City of Kennewick v. 

Fountain, 116 Wn.2d 189, 194, 802 P.2d 1371 (1991). Alvarez has not shown any abuse 

of that discretion. 

10 B. Prosecutorial misconduct: Amended information was vindictive and against 

double jeopardy

Alvarez contends the State’s amended information was prosecutorial misconduct 

because it was vindictive and it violated double jeopardy principles. In his amended 

SAG,12 Alvarez also argues the State’s actions to stack an additional count after he 

refused a plea deal is inconsistent with the legislature’s directives in RCW 9.94A.411. 

Prosecutorial vindictiveness is the filing of additional or more serious charges in 

response to a defendant’s exercise of a constitutional or procedural right. Korum, 157 

Wn.2d at 627. An action is only vindictive if it is designed to punish or penalize the 

defendant. Id. The Sentencing Reform Act of 1981, chapter 9.94A RCW, provides 

guidelines to prosecutors—they do not constitute an enforceable right. See 

 

12 This amended SAG was filed on May 28, 2019, and Alvarez only asserted a new 

argument under this issue. 
No. 35567-5-III

State v. Alvarez

52

RCW 9.94A.401. A prosecutor should not overcharge a defendant in order to obtain a 

guilty plea, RCW 9.94A.411(2)(a)(i), (ii), but on the other hand, a prosecutor may charge 

other offenses if it significantly enhances its case. RCW 9.94A.411(2)(a)(i)(A). 

Alvarez argues that the State was vindictive when it filed an additional count after 

he refused a plea deal. “[T]he mere filing of additional charges and the consequent 

increase in sentence . . . cannot support a presumption of vindictiveness . . . .” Korum, 

157 Wn.2d at 634. Alvarez has not alleged facts beyond the mere filing of an additional 

count; therefore, his vindictiveness claim fails. This holding is consistent with precedent. 

See Korum, 157 Wn.2d 614 (finding no vindictiveness where State filed 16 additional 

felony charges after defendant withdrew guilty plea); United States v. Goodwin, 457 U.S. 

368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (finding no prosecutorial vindictiveness 

where the United States Attorney obtained a felony indictment and conviction after 

defendant refused misdemeanor plea deal); Bordenkircher v. Hayes, 434 U.S. 357, 98 S. 

Ct. 663, 54 L. Ed. 2d 604 (1978) (finding no prosecutorial vindictiveness where 

prosecutor sought a habitual criminal indictment and defendant received life in prison 

after defendant rejected five-year sentence in exchange for his guilty plea). Here, the 

prosecutor was free to file an additional count after Alvarez rejected the plea deal. The 

initial charge did not set a ceiling on Alvarez’s potential criminal liability. 
No. 35567-5-III

State v. Alvarez

53

Double jeopardy means a defendant cannot be prosecuted for the same offense 

after being acquitted, be prosecuted for the same offense after being convicted, or receive 

multiple punishments for the same offense. State v. Villanueva-Gonzalez, 180 Wn.2d 

975, 980, 329 P.3d 78 (2014). Alvarez did not “receive multiple punishments for the 

same offense.” He was only convicted of one count. 

10C. Prosecutorial misconduct: J.P.’s false testimony

Alvarez contends the State coached J.P. into giving false testimony. There is no 

evidence of this in the record. If this claim depends on evidence outside the record, that 

claim is properly raised through a personal restraint petition. McFarland, 127 Wn.2d at 

335. 

10D. Prosecutorial misconduct: Alvarez’s right not to testify

Alvarez contends the State improperly commented on his failure to testify. We 

find this comment was not improper. This comment was during jury voir dire, and the 

prosecutor asked a potential juror if the juror would hold it against a defendant if the 

defendant did not testify. The prosecutor also added it was a defendant’s right not to 

testify. This is a proper question to uncover possible jury bias. 
No. 35567-5-III

State v. Alvarez

54

10E. Prosecutorial misconduct: Speedy trial

Alvarez contends the State used his right to a speedy trial against him by making 

comments about DNA evidence and testing during voir dire. However, most of the 

statements occurred at a sidebar with Alvarez’s counsel and the court. The only questions 

posed by the State to the jury pool were whether the jury needed DNA evidence to 

convict, whether the jury would hold it against the State if DNA evidence was not tested, 

and whether the jury believed forensic testing occurs at the same speed in real life as it 

does on television. Alvarez objected to these questions, and the court instructed the State 

to go to a different line of questioning. Alvarez does not show prosecutorial misconduct, 

if any, about his right to a speedy trial. These were not flagrant or ill-intentioned 

statements. 

10F. Prosecutorial misconduct: Sentencing

Alvarez contends the State proceeded with sentencing after knowledge of J.P.’s 

recantation. There is no evidence of an actual recantation beyond Alvarez’s accusations. 

When claims depend on evidence outside the record, those claims are properly raised 

through a personal restraint petition. McFarland, 127 Wn.2d at 335.
No. 35567-5-III

State v. Alvarez

55

SAG Ground 11: OFFENDER SCORE

Alvarez argues his offender score was miscalculated because it included a prior 

juvenile conviction. Alvarez has a conviction for child molestation in the first degree in 

2005. Child molestation in the first degree is a class A felony. RCW 9A.44.083. Under 

RCW 9.94A.525(2)(a), prior class A and felony sex convictions are always included in 

the offender score. Consistent with RCW 9.94A.525(17), because Alvarez’s current 

conviction was for a sex offense, any prior adult or juvenile sex convictions counted as 

three points toward his offender score. Therefore, his offender score was correct. 

SAG Ground 12: CUMULATIVE ERROR

Alvarez argues the aforementioned errors, cumulatively, deprived him of a fair 

trial and warrant reversal. Under RAP 10.10, the court will only review issues raised in 

an SAG that are not duplicative of the briefing. Alvarez’s counsel already raised 

cumulative error in briefing. Because there are no errors with any of the additional issues 

raised in Alvarez’s SAG, his argument fails. 
No. 35567-5-III 

State v. Alvarez 

Affirmed, but remand to strike some community custody conditions and the 

criminal filing fee. 

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. 

L,.,,_ ... '\..r, <.. l. - \) 'vv-\-J I (, • ~. 

Lawrence-Berrey, C.J. r 

56 
No. 35567-5-III 

SIDDOWAY, J. (concurring)-! part ways with the lead opinion on the harmless 

error analysis. I believe that Officer Michael Nelson's testimony that Alvarez showed no 

surprise upon being told of J.P. 's allegation would have been significant to jurors. And 

the DNA 1 evidence was subject to credible challenge, given the concession of the State's 

expert that she could not eliminate the possibility that what tested positive as saliva could 

have been another bodily fluid, she could not say that it was from a male, she found both 

female and male DNA, and that if not carefully handled and stored, evidence can easily 

be contaminated with third party DNA. When asked during her testimony to remove the 

underwear from its evidence bag to show the jury where she had taken a sample, she 

explained that she would try not to speak over it "because I don't want to contaminate it 

with my own saliva or any other DNA," and "people spit when they talk." 3 Report of 

Proceedings at 522, 527. If it was error to admit Officer Nelson's testimony about 

Alvarez's reaction, it was not harmless. 

As for Mari Murstig's testimony about the consistency of J.P.'s statements, I agree 

that the error in admitting it was harmless-not because the DNA evidence could not 

credibly be challenged, but because jurors were likely to rely on their own assessment of 

the consistency of J.P.'s statements rather than on Ms. Murstig's assessment. 

Z)dAtV%)~ Siddoway, J. 

1 Deoxyribonucleic acid. 
No. 35567-5-111 

FEARING J. ( concurring) - I concur in the court's affirmation of the conviction of 

Jeremy Alvarez for one count of second degree rape of a child. I agree with all of the 

lead opinion's rulings except the ruling that would hold harmless the introduction of 

evidence of Jeremy Alvarez's expression when confronted by a law enforcement officer, 

assuming the evidence to be inadmissible. 

Sound reason exists to apply the state and federal constitutions' privilege against 

self-incrimination to an accused's silence in response to a law enforcement officer's 

accusation of a crime before an arrest of the accused. An accused holds no obligation to 

respond to questions asked by a law enforcement officer. The law enforcement officer 

could delay an arrest in order to question the accused in order to employ for a conviction 

any silence in face of an accusation. Allowing the introduction of evidence of such 

silence conflicts with the principle that the State may not comment on the accused's 

silence or failure to testify at trial. Griffin v. California, 380 U.S. 609, 610 n.2, 6~3, 85 S. 

Ct. 1229, 14 L. Ed. 2d 106 (1965). Still, because of Washington Supreme Court and 

United States Supreme Court precedent, a higher court would need to modify the law in 
No. 35567-5-111 

State v. Alvarez 

order to apply the constitutional right against self-incrimination to prearrest silence. 

Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013) (plurality 

opinion); State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211 (1991); State v. Moore, 79 

Wn.2d 51, 57,483 P.2d 630 (1971). 

The State sought to introduce evidence of Jeremy Alvarez's reaction, when faced 

with an accusation, to show consciousness of guilt. Aside from the constitutional 

question, I question the relevance of silence as tending to prove guilt and further question 

the probative value of evidence of silence when compared to its prejudicial impact. This 

questioning increases under circumstances when the State does not introduce evidence of 

the accused's failure to verbally respond to an accusation, but introduces testimony of 

facial expressions. One's facial expressions remain subject to subjective interpretations 

of the viewer. No matter the response of an accused to an accusation, law enforcement 

may interpret the response as evidence of guilt. If the accused, instead of remaining 

silent or staring blankly, denies the accusation with a look of surprise, law enforcement 

may interpret the response as protesting too much. 

In United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), the 

nation's high Court held that ~n accused's silence during a police interrogation lacked a 

significant probative value so that any questioning during trial in an attempt to impeach 

2 
No. 35567-5-III 

State v. Alvarez 

his alibi carried with it an intolerably prejudicial impact. The Supreme Court thereby 

affirmed the Court of Appeals' reversal of William Hale's conviction for robbery and 

grant of a new trial. 

In United States v. Hale, the United States Supreme Court addressed the situation 

of silence after an arrest and the delivery of Miranda warnings. Nevertheless, the 

reasoning applies to employment of silence or facial expressions as evidence under other 

circumstances. The Court observed that, in most circumstances, silence is so ambiguous 

that it is of little probative force. A variety of reasons may influence the accused's 

decision to remain mute. Under emotional and confusing circumstances, a suspect may 

not hear or fully understand the question or may have felt no need to reply. The accused 

may simply react with silence in response to the hostile and perhaps unfamiliar 

atmosphere when confronted by an accusatory law enforcement officer. Moreover, 

evidence of silence holds a significant potential for prejudice. The jury may assign much 

more weight to the accused's previous silence than warranted. Permitting the defendant 

to explain the reasons for his silence will unlikely overcome the strong negative inference 

that the jury draws from the fact that the suspect remained silent when accused. 

During trial, Jeremy Alvarez sought exclusion of the law enforcement's testimony 

to Alvarez's reaction following the accusation on relevance and undue prejudice grounds. 

3 
No. 35567-5-III 

State v. Alvarez 

Nevertheless, Alvarez does not assign error on appeal to the introduction of evidence of 

his facial expressions or silence on such grounds. 

I agree with my concurring sister that, if we held the silence or facial expressions 

of Jeremy Alvarez to be inadmissible evidence, the testimony would not be harmless. 

j;_ .~ 

Fearing, J.~ ' 

4