7 • C M <-.'! r • • 1.-, rIN THE COURTOFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. ELMERANDREWS VILLAFUERTE, Appellant. No. 71756-1-1 DIVISION ONE UNPUBLISHED OPINION
FILED: July 27, 2015 Appelwick, J. — Villafuerte appeals from his conviction for assault in the second degree (domestic violence). He contends that an improper comment on his constitutional right to silence and prosecutorial misconduct violated his right to a fair trial. We affirm Villafuerte's conviction and remand only to permit the trial court to strike or clarify two sentencing conditions. FACTS At about 7:00 p.m. on July 24, 2013, Teresa Coalman was driving with her husband near the Space Needle when she saw a young woman, later identified as Christelle Villafuerte, trying to flag her down. Coalman asked her husband to stop the van and then rolled down the window. Christelle was visibly upset and asked to
use Coalman's cell phone. Christelle repeatedly said that "hechoked me." After Coalman got out of the van, Christelle said that her husband, Elmer Villafuerte, had choked her. When Coalman asked where her husband was,No. 71756-1-1/2



### Christelle pointed down the sidewalk to a man wearing jeans and a tee shirt. The
man then ran away. Coalman called 911. While Coalman was speaking with the 911 operator, Christelle told Coalman thatVillafuerte had choked and hitherafter she grabbed his shirt. Christelle pointed 

### tothe leftside ofherface, but Coalman did not see any physical injuries. Seattle Police OfficerDaljit Gillresponded to the 911 call. Christelle, who was hysterical and crying, blurted out, "he choked me, he choked me." Gill called for a medic.Christelle identified Villafuerte as the assailant, and GillbroadcastVillafuerte's
name and description. Christelle also gave Gill her husband's cell phone number. Gill dialedthe number, andVillafuerte answered, acknowledging thathe was nearby. Gill then used a ruse inan effort to persuadeVillafuerteto return to the scene and provide more information. Gill told Villafuerte that she would have to arrest Christelle ifshe did notfind out anything more aboutthe incident. Villafuerte told Gill notto arrest Christelle and that Christelle had not done anything wrong. Gillhad no further contact with Villafuerte. Other officers looked for Villafuerte, but did not find him. Shane Kidwell, an emergency medical technician with the Seattle Fire Department, contacted Christelle at about 8:00 p.m. Christelle was distraught, but had no life threatening injuries. Christelle told Kidwell that Villafuerte had "grabbed her neck" and demonstrated by grabbing her neck with one hand. Kidwell noticed
some minor abrasions to her neck, but the skin was not broken and there was noNo. 71756-1-1/3


### blood. Christelle indicated she was not experiencing any pain and declined any further treatment. Christelle gave a recorded statement shortly after the police arrived. She stated thatVillafuerte had choked and slapped herbefore running off. She indicated 

### that she had difficulty breathing when Villafuerte choked her and that the choking lasted for at least 10 seconds. At trial, Christelle testified that at the time of the incident, she and Villafuerte had been together for several years and had two young children. Christelle attempted to minimize the severity ofVillafuerte's conduct and had difficultyrecalling what she had said immediatelyafterthe assault. Christelle acknowledged that herrelationship withVillafuerte had its "[u]ps and downs" and that both she and Villafuerte had issues with "anger." In2012, Christelle
was arrested for slapping Villafuerte, but the charge was later dropped. Christelle reluctantly admitted thatVillafuerte might have assaulted herduring earlier incidents. Christelle repeatedly expressed concern about the difficulty of raising the couple's children by herself. She hoped that "this would alljustgo away." She acknowledged that shewanted "to protecthim." On the nightofthe incident, Christelle and Villafuerte attended a party nearthe Seattle Center that her employer hosted. Christelle believed that both she and Villafuerte had drunk too much. At some point, Villafuerte left the party in anger, believing thatChristellewas flirting with a coworker. Christelle followed Villafuerte outside and tried to explain that she had not been flirting. The two began arguing. Christelle recalled that when VillafuerteNo. 71756-1-1/4

refused to go home, she began "pulling on" his side and shirt. Villafuerte then "kind of likepushed me away . . . liketowards my chestarea, by my neck, too." Christelle
was "shocked," and Villafuerte ran away. Christelle started crying and flagged down Coalman's van. She maintained that she did not really want the police to become involved at that point, "but in the backof my mind Ikind ofknewthatwas going to happen especiallywith me flagging down that lady." 

### Christelle also suggested that the police had manipulated her into accusing Villafuerte: Itold them that Ihad gotten in an argument with my husband and that 

### things got physical and that he ran offand Iwas chasing afterhim. And Itold them that Ifelt like he grabbed me over here, Idon't know. And 

### then Irememberthe cops saying that, oh, did he choke you because if 

### he choked you that's a felony. And that shocked me right there. I wasn't expecting that. And hejust asked if he had grabbed my neck. And Iwas like,yeah, Ithink he did, Ithink he grabbed [m]y neck.
But at the same time Ifelt like that's not really what happened, 

### like Idon't even know what happened because Iwas still in shock. I was stillemotional, Iwas stillangry and sad, so Idon't know. Ifelt like 

### the cops were just trying to get me to say that he choked me, like choked me choked me, strangled me. Iremember him asking me how 

### long his hands were around my neck or around that area. I don't remember what I said afterthat. 

### During cross examination, Christelleconcededthat her memory of the incident
was "imperfect." She agreedwith defense counselthatVillafuertehad notslapped or choked her. 

### The State charged Villafuerte with assault in the second degree by 

### strangulation - domestic violence. See RCW 9A.36.021(1)(g). The jury foundNo. 71756-1-1/5

Villafuerte guilty as charged and returned a special verdictofdomestic violence. The court imposed a standard range term of six months, with three months to be served in jail and three months inwork release. DISCUSSION I. Comment on Rightto Silence Prior to trial, Villafuerte moved to exclude portions of Officer Gill's testimony about her telephone conversation with Villafuerte shortly after the alleged assault. Defense counsel conceded thatevidence indicating Villafuerte was inthe vicinityand said that Christelle had done nothing wrong was relevant and admissible. But, counsel argued that any testimony that Villafuerte failed to return to the scene and give his account of the alleged assault would violate his constitutional right to prearrest silence. The court excluded any testimony that Gill told Villafuerte she would arrestChristelle ifhe did not return to the scene and that he repeatedly said he would return, but neverdid. At trial, Officer Gilltestified that she called Villafuerte shortly after the alleged assault. Gill told Villafuerte that she might have to arrest Christelle for assaulting him. Villafuerte responded that Christelle "didn't do anything, don't do that." Gill wanted Villafuerte to come back so that she could "get more information about what had happened." She explained that the additional information was important because "[tjhere's two sides to every story, and Iwanted to get his side as well." Gill added that officers had unsuccessfully looked for Villafuerte after the telephone call and that she had no further contactwith him.No. 71756-1-1/6



### Villafuerte argues thatthe evidence of Gill'sdesireto gethis "side ofthe story" and the lack of any further contact constitutes a comment on his silence because it clearly implies that innocent suspects "will tell their side of the story to the police." Wedisagree. Under both the state and federal constitutions, the State may not comment on 

### a defendant's Fifth Amendment exercise of the right to remain silent, including a defendant's prearrest silence. See State v. Easter. 130 Wn.2d 228, 235, 922 P.2d 1285 (1996); State v. Gregory. 158 Wn.2d 759, 839, 147 P.3d 1201 (2006); State v. Lewis. 130 Wn.2d 700, 705, 927 P.2d 235 (1996). An impermissible comment on silence occurs when the State uses the defendant's silence "as substantive evidence of guilt or to suggest to thejury that the silence was an admission of guilt." Lewis, 130 Wn.2d at 707. The primary concern is "whether the prosecutor manifestly intended the remarks to be a comment on that right." State v. Crane. 116 Wn.2d 315, 331, 804 P.2d 10 (1991). So long as the focus ofthe questioning or argument" 'is not upon the exercise of the constitutional right itself,' " the inquiry or argument does not infringe upon a constitutional right. Gregory, 158 Wn.2d at 807 (quoting Statev. Miller, 110Wn. App. 283, 284, 40 P.3d 692 (2002)). 

### Here, contraryto Villafuerte's assertions, Gill'stestimony did not implythat his failure to contact her—or the officers' failure to find him later that evening—was an admission of guilt. Gill did not confront Villafuerte with an accusation of guilt or suggest that he needed to return to refute a suspicion of guilt. See, e.g., State v. Keene, 86 Wn. App. 589, 594, 938 P.2d 839 (1997) (police detective told defendantNo. 71756-1-1/7



### that she would turn matter over to prosecuting attorney ifshe did not hearfrom the defendantaboutabuse allegations). Nor did Gill suggestthatVillafuerte refused to talk to her, refusedto respondto
an invitation, or failed to appearafterhaving agreed to talk to the police. See Statev. Lewis, 130Wn.2d at706. Finally, Villafuerte concedesthatthe deputy prosecutordid not refer to Gill's contact with Villafuerte during closing argument or suggest during other questioning that Villafuerte's failure to contact Gillwas evidence of guilt. See State v. Thomas, 142 Wn. App. 589, 596, 174 P.3d 1264 (2008) (during closing argument, prosecutor repeatedly emphasized that the defendant did not wantto talk to the investigating officers or return to the crime scene). Viewed incontext, Gill's brieftestimony describing her call withVillafuerte and the officers' failure to find him that evening did not imply that Villafuerte was guilty because he did not contactthe police. See Statev. Burke, 163Wn.2d 204, 216, 181 

### P.3d 1 (2008) (statement will not be considered a comment on the right to remain silent, if" 'standing alone, [it] was so subtle and so briefthat [it] did not naturally and necessarily emphasize defendant's testimonial silence.' " (internal quotation marks omitted) (alterations inoriginal) (quoting Crane, 116Wn.2d at 331).

II. Prosecutorial Misconduct 

### Villafuerte contends that prosecutorial misconduct during rebuttal closing argument violated his right to a fair trial. He argues that the deputy prosecutor misstated the State's burden ofproofby telling thatjury that its job was "to figure out what happened here."No. 71756-1-1/8

A defendant claiming prosecutorial misconduct bears the burden of establishing thatthe challenged conductwas both improper and prejudicial. State v. Cheatam, 150Wn.2d 626, 652, 81 P.3d 830 (2003). Prejudice occurs only if"there is
a substantial likelihood the instances ofmisconduct affected thejury's verdict." State
v. Pirtle, 127Wn.2d 628, 672, 904 P.2d 245 (1995). We review misconductclaims in the context of the total argument, the evidence addressed, the issues in the case, and thejury instructions. State v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).During rebuttal, the deputy prosecutor responded to defense counsel's arguments thatChristelle'strial testimonywas more credible: That was a pretty amazing story. Unfortunately, none of itwas true. We heard no evidence to believe the story you just heard. The whole argument was that Christelle, after this incident took place, wanted to 

### get Elmer into trouble so she decided to make up a story about him choking herandthen reportit to the police so he would getinto trouble. There was no evidence of that. Christelle didn't say anything 

### aboutwanting to get him into trouble, about making the story up. She told you the opposite.
.. .
You heard today from Teresa Coalman the first thing Christelle said was, he choked me, he choked me, he choked me. You heard the 911 call or a portion of the 911 call when Christelle says in her own 

### words, Igrabbed his shirt, he choked me and hitme inthe face before police arrived. You heard from Officer Gill who said Iasked her what happened. Christelletold me he choked me, he choked me. What she said here wasn't all the truth. You know that. What else she said here is she just wants this to go away, she wants to 

### protect him, she loves him, she wants him to be there for her and for the children. That's pretty noblethat she's willing to forgive himafterall of this. She's willing to stick in this relationship. Butherdecision is not

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your decision. Your decision, your job is to figure out what happened here. (Emphasis added.) Defense counsel objected on the basis of"[i]mproperargument." The trial court overruled the objection, but directed the jury "to follow the Court's instruction on the law." Villafuerte argues that telling the jury that its job "is to figure out what 

### happened" impermissibly mischaracterized the State's burden of proof. "Telling the jurythat its job is to 'speakthetruth,' or some variation thereof, misstates the burden 

### of proof and is improper." State v. Lindsay, 180 Wn.2d 2d 423, 437, 326 P.3d 125 (2014). Rather, "a jury's job is to determine whether the State has proved the 

### charged offensesbeyond a reasonabledoubt." Statev.Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). 

### During their closing arguments, both the deputy prosecutor and defense counsel focused primarily on factors that the jury should consider inassessing the 

### relative credibility of Christelle's trial testimony and her statements shortly after the alleged assault. Viewed in context, the deputy prosecutor's reference to the jury's "job" appears to have been a proper, if inartful, attempt to persuade the jury that Christelle's immediate postassault statements were more credible than her trial testimony. The prosecutorhas broad discretion during closing argumentto comment 

### on the credibility ofwitnesses based on the evidence. See State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997) 

### But, to the extent that the comment might have mischaracterized the jury's 

### properrole, any error was harmless. The deputy prosecutor's argumentsrepeatedlyNo. 71756-1-1/10

focused on the evidence and factors that the jury could properly consider when assessing credibility. He properly identified the State's burden of proof and 

### immediately afterthe challenged comment, the trial court reminded thejury to follow the law as setforth inthe court's instructions. Finally, in reaching its verdict, thejury 

### considered not only Christelle's trial testimony, but also the testimony of the witnesses who spokewith Christelle immediately afterthe assault, the 911 recording, and Christelle's recorded statement. Under the circumstances, there is no reasonable likelihood that the deputy prosecutor's brief and isolated reference 

### affected thejury's assessmentof credibility orthe outcome ofthetrial.

III. Cumulative Error 

### Villafuertecontends thateven if no single errormerits reversal, the cumulative 

### effect of the comments on his right to silence and prosecutorial misconduct violated 

### hisrightto a fairtrial. BecauseVillafuerte has not demonstrated an accumulation of errors, the cumulative error doctrine does not apply. See In re Pers. Restraint of Lord. 123 Wn.2d 296, 332, 868 P.2d 835, 870 P.2d 964 (1994). IV. Consumption ofNon-Prescribed Drugs Villafuerte contends thatthe trial courtexceeded its authority inordering, as a 

### condition of communitycustody, that he notconsume "any . . . non-prescribed drugs." Thetrial court may only impose crime-related conditions ifthere is evidence that the prohibited conduct was involved in the crime ofconviction. RCW9.94A.030(10); Statev.Warnock, 174 Wn. App. 608, 612, 299 P.3d 1173 (2013). We reviewthetrial 

### court's authority to impose a communitycustodycondition de novo. Id. at611.

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The State concedes that legal, non-prescribed drugs were not involved in Villafuerte's offense, but contends that the trial court used the term merely as a "synonym for controlled substances." But, that would render the prohibition superfluous, as another provision of Villafuerte's judgment and sentence expressly prohibited his possession or consumption of controlled substances "except pursuant to lawfully issued prescriptions." The State also contends thatVillafuerte's preenforcement challenge is not yet ripe for review. We disagree. The community custody condition is a final action, the issues raised are primarily legal, and no further factual development is necessary. Moreover, the condition purports to restrict Villafuerte's conduct immediately upon release. See State v. Cates. No. 89965-7, slip. op. at 3-5 (Wash. July 2, 2015). Villafuerte's challenge is ripe for review. We remand with direction to the trial courtto strike or clarifythe condition. V. Chemical Dependency Evaluation and Treatment The trial court checked a box on the judgment and sentence finding that 

### Villafuerte "has a chemical dependency" (alcohol) and ordered him to participate in "substance abuse treatment." See RCW 9.94A.607(1) (when the courtfinds thatthe 

### defendant has a "chemical dependency" that contributed to the offense, the court 

### may orderparticipation in rehabilitative programs). Villafuerte contends that there is
no evidence to supportthe finding of a chemical dependency and that, inany event, treatment must be limited to alcohol treatment. Villafuerte also argues that the trial 

### court erred in ordering chemical dependency treatment without first requiring the

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Department of Corrections to complete a chemical dependency screening report or "specificallywaiv[ing]" the requirement. See RCW9.94A.500. Christelle testified that before the assault, "I guess we both drank too much." She explained that this was "about two ... or three" glasses of champagne. The 

### State suggests that because alcohol consumption and chemical dependency are 

### essentiallythe sameforpurposes of RCW9.94A.607, the evidence was sufficient to 

### support a finding that a chemical dependency contributed to Villafuerte's offense. We have rejected an analogous argument. See State v. Warnock, 174 Wn. App. 608, 613, 299 P.3d 1173 (2013) (rejecting State's argument that "trial court's oral 

### finding that alcohol contributed to Warnock's offense was equivalent to a finding underRCW 9.93A.607(1) that a chemicaldependencycontributedto his offense"). The State concedes, however, that "therewas no evidence that anything other than alcohol contributed to Villafuerte's offense." Accordingly, we remand with 

### directions to amend the judgment and sentence to impose alcohol evaluation and recommendedtreatmentconsistentwiththe evidence and statutory requirements. 

### We affirmVillafuerte's conviction. We remand only to permitthe trial courtto strike oramend the challenged sentencing conditions.

WE CONCUR: 

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### \Vv\J
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