### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. GERMAN LOPEZ CASTRO, Appellant. No. 74220-5-1

UNPUBLISHED OPINION FILED: February 6, 2017 

### Verellen, C.J. — Ajury convicted GermanLopez Castro of assaultinghis 

### estranged wife while armed with adeadlyweapon and found hecommitted the offense within the sightandsound oftheir minorchildren. Lopez Castro seeks 

### reversal, arguing thetrial courterred in denying his motion for amistrial relatedto an ex-girlfriend's testimonythat Lopez Castro had assaulted herin the past. Given the strength ofthe State'scase,the repeated limiting instructions, the phrasing ofa 

## juror's question during closing argument, the inconsistencies inthe ex-girlfriend's testimony, and her impeachmenton cross-examination, the limiting instruction cured theprejudicial effectoftheex-girlfriend's testimony. Therefore, we affirm.
FACTS 

### The State initially chargedLopez Castrowith one count of second degree assaultwhile armed with a deadly weapon, alleging that on July 26, 2015, he threatened to "end itall" and pulled a knife on hisestranged wife Stephanie LopezNo. 74220-5-1/2
Castro.1 Police arrested Lopez Castro when he left Stephanie's apartment and went out to the parking lot. 

### Following Lopez Castro's arrest, Stephanie spoke with Lopez Castro's then

### girlfriend Tara Larue. Larue told Stephanie that six days earlier, on July 20, 2015, Lopez Castro forced Larue to go with him to Stephanie's apartment because he 

### planned to kill Stephanie. Larue said they waited outside forStephanie to leave for work, but Stephanie was not at home. Before trial, the State amended the information to include one count of felony 

### harassmentwhile armed with a deadly weapon, occurring on or about July 20 

### through 26, 2015, and an additional aggravator for both counts because they were committed within the sight and sound ofStephanie and LopezCastro's minor children. The State's theory was that the harassment charge could be based on 

### either the "end itall" threat on July 26, or the threat to kill heard by Larue on July 20, which she later relayed to Stephanie. 

### At a pretrial hearing, the State sought to admit allegations by Stephanie and Larue that Lopez Castro previously abused both women. The State argued 

### Stephanie's allegations wererelevantto show the reasonableness of Stephanie's fear, an element ofharassment. As to Larue's allegations, the State argued they 

### were relevant to show why Larue did not contact the police after the July 20 incident. The defense moved to exclude the allegations of prior abuse. Itsurmised the 

### State could not prove any of the allegations. Nonetheless, the defense agreed Larue 

### was expected "to testify that, on July 20th, she believedMr. Lopez Castro was going
Forclarity, we will refer to Stephanie Lopez Castro by her first name.No. 74220-5-1/3
to his wife's house and waiting
... to kill her, that [Larue] then went to work and did 

### nothing for the next six days."2 The defense expected "to elicittestimony that [Larue] 

### had Stephanie LopezCastro's phone number" but "never contacted her."3 In a preliminary hearing, the trial court asked whether both sides wanted "to 

### get intoit?"4 Defense counsel responded, "I think it's going to come out, just to be perfectly frank with the Court."5 The court clarified: Very well. As to what Stephanie will be able to say, Stephanie's 

### allegations, ifIfindthatthey have been proved by a preponderance, are relevant and admissible on Count 2 [the harassment charge]. Ms. Larue's allegations—again, ifIfindthat by a preponderance 

### that the allegations are correct—are likewiserelevant and admissible in orderto explain a subjectthat both sides want to get into, which is that Ms. Larue did not tell Stephanie nor the police nor take any action 

### whatsoever, apparently, for aboutfivedays after an alleged incident in which the defendant said that he was going to kill Stephanie in front of the children.^ 

### Both Stephanie and Laruetestified at the ER 404(b)hearing.7 Laruetestified that around 5:00 a.m. on July 20, 2015, Lopez Castro told her "to get out of bed" and that she "needed to go with him rightthen."8 Lopez Castro said, "We're going to go 

### to Stephy's house. Nobody calls the cops on me. I'm going tokill thatbitch."9 Larue

2Report of Proceedings (RP) (Oct. 12, 2015) at 18-19. 3Id, at 19. 414 5lo\ 6id, at 19-20. 

### 7Lopez Castro does notchallenge the admission ofStephanie's allegations. 8RP(Oct. 13, 2015) at 120. 9 Id. at 120.No. 74220-5-1/4
and Lopez Castro then went to Stephanie's home. Lopez Castro wanted to wait for Stephanie to come outside so that he could kill or hurt her or their children "and see how that made her feel."10 Lopez Castro brought Larue with him so she "could tell 

### the cops when they came after he hurt [Stephanie] that he didn't do anything."11 Larue did not report the incident to police because she did not have a phone and was concerned about having "to deal with the repercussions of not doing what [Lopez Castro] said."12 Larue explained that she did not have a phone because Lopez 

### Castro "made sure Ididn't have a means ofcommunication withanybody."13 Lopez Castro had been physical with Larue several times inthe past. He had cracked her ribs, choked her, spit in her face, poured beer on her, and damaged her property. Lopez Castro also held a knife to Larue's throat on one occasion and kidnapped herfrom a public place by forcing her into his car. Larue never reported 

### any ofthese incidents because "[tjhings could have probably gotten worse than what 

### they already were."14 Larue said Lopez Castro scared her. When asked to elaborate, Larue testified to Lopez Castro telling her "I wonder ifyour kids will come 

### to your funeral after Ikill you."15

10 Id, at 121. 11 id, at 126. 12 Id, at 121. 13 id, at 128. 14 id, at 123. 15 Id. at 125.No. 74220-5-1/5
The courtfound Larue's testimony aboutthe July 20 incident relevant to show 

### that Lopez Castro had a plan to threaten Stephanie "and an actual intentto do so."16 Itfurtherfound hertestimony tended to explain why "Larue failed to notifythe police" about the incident.17 The court ruled that since both sides indicated they wanted to 

### "get into" Larue's failure to report the incident, her fear of Lopez Castro and her


### reasons forfearing him were"all relevant" toexplain why she did notcall the police.18 When Larue testified at trial, the prosecutor began by asking questions about 

### her relationship with Lopez Castro. Larue said that at first itwas great, but that it 

### changed. The prosecutor asked her how itchanged, and Larue said they "started 

### arguing a lot," and thatLopez Castro "would getphysical" with her.19 Defense counsel immediately objected: "I'm going to object at this point as the relevance of 

### this testimony has not yet been established."20 The court overruled the objection and
allowed Larue to continue. Larue testified that Lopez Castro pushed her in a room, strangled her, spit on her, and belittled her. Larue did not report any ofthese incidents because she "was 

### worried about what wouldhappen as a repercussion."21 She explained that Lopez Castro had threatened her numerous times, asking ifher children would come to her 

### funeral and showing her videos of how she would die. The prosecutorthen asked

16 id, at 147. 17 id, at 147. 18 Id, at 147-48. 19 kL at 175. 20 id, 21 Id. at 176.No. 74220-5-1/6 

### Larue why she did not refuse to go with Lopez Castro to Stephanie's on July 20, and she explained, "I wasn't going to refuse to go with him. . . . [F]irst of all, itwasn't an option to say no to German ever. . . . [b]ecause he'd—repercussions. He wouldn't 

### accept no. Ijustdid what he said to keep myselfsafe."22 When asked whether there
was a reason she did not reportthe July 20 incident to police, Larue responded, "No. 

### I, Ijust did what [Lopez Castro] told me. He took me back home. Iwent to work. I 

### haven't had a phone [in] forever. He made sure Ihad noconnection toanybody."23 Although Larue testified that she did not have a means of communication, she later testified that she texted Stephanie on July 19, 2015 from her roommate's phone. On cross-examination, Larue revealed that based on that text exchange she knew 

### Stephanie was not at home on July 20, and that was the reason she did not call911
to alert the police. 

### Later in her testimony, Larue stated Lopez Castro had threatened her in the 

### past with a knife. She described the incident as "Hejust ran after me into a stairwell 

### ofmy friend's apartment and put the knife on methere."24 The prosecutordid not elicit any further details aboutthe incident. On cross-examination, defense counsel 

### brought out that Lopez Castro had held the knife to Larue's throat and then dropped it and began crying. Defense counsel also brought out that Larue did not call the police because she had warrants for her arrest.

22 id, at 185. 23 id, at 178. 24 Id. at 184.No. 74220-5-1/7


### The following morning, the court held a hearing outside the presence of the jury to discuss the defense's proposed limiting instruction as to the ER 404(b) testimony. The court noted that it did not recall Larue testifying thatthe reason she 

### did not report the July 20 incident to policewas because of her fear of Lopez Castro,
as she had testified inthe ER 404(b) hearing. The court stated ittherefore regretted 

### overruling the defense's objection to the relevance ofLarue's testimony about the prior abuse. 

### Although Larue testified about her fear of reporting any of the acts ofabuse to 

### policebecause of LopezCastro's threats to kill her, Larue did notspecifically state that her reason for not reporting the July 20 incident was because of fear. The defense moved for a mistrial. The prosecutor opposed the mistrial and 

### proposed instead that thetrial courtstrike all of Larue'stestimony about the prior abuse and instruct the jury to disregard it. The court acknowledged that in some 

### cases striking the testimonywould be pointlessbecause "the testimony is so powerful that it would be too much to ask" that a jury "set aside what they know the testimony was."25 Itnonetheless determined that thejury could follow an instruction to 

### disregardall of Larue's testimony aboutpriorabuse, such that Lopez Castro "would be able to get a fairtrial."26 The court noted, 

### [A] different situation would present itselfifthis evidence came out of nowhere
. . . But we know that she has said this. She has said "Ifear the defendant because ofthese things." It's not as though the evidence 

### was unfairly obtained in any way. It's just that, havingfairly obtained

25RP(Oct. 14, 2015) at 251. 26 Id.No. 74220-5-1/8
the evidence, the State was unable to see it recreated when the State needed it.[27] The courtthen read, and repeated at defense counsel's request, the following instruction to thejury: You have heard evidence of unreported and uncorroborated allegations of prior physical contact between the defendant German Lopez Castro and both Stephanie Lopez Castro and Tara Larue. You are to disregard all the evidence presentedby Ms. Larue concerning allegations ofpriorphysical contact between herand the defendant. Irepeat, you are to disregard utterly all the evidence presented by Ms. Larue concerning allegations ofpriorphysical contactbetween herand the defendant.TM The court continued with the remainder ofthe instruction regarding Stephanie's testimony, which is not at issue here. A.L.C, Stephanie and Lopez Castro's eldestdaughter, testified about the July 26 incident. A.L.C, her two brothers and her cousin were at Stephanie's apartment when Stephanie and Lopez Castro began arguing. A.L.C. testified that Lopez Castro 

### said he was going to "end it" and grabbed a bigknife.29 He held the knife up to a television in the kitchen. He then locked the front door, pushed Stephanie against the wall, and held the knife near her neck. A.L.C. testified that everyone in the apartment started screaming and itwas then that Lopez Castro dropped the knife. A.L.C. picked up the knife to get itaway from Lopez Castro because she thought he
was going to hurt her mother. Lopez Castro grabbed the knife from A.L.C. and left

27 id, at 252. 28 id, at 260 (emphasis added). 29 Id. at 303.

8No. 74220-5-1/9


### the apartment. A.L.C. identifiedthe State's trial exhibit 8 as the knife Lopez Castro had grabbed. Stephanie testified consistently withA.L.C.'s description of key aspects ofthe July 26 incident. Stephanie added that she told A.L.C. to call the police once Lopez Castro grabbed the knife. Stephanie testified that Lopez Castro "came towards me, 

### [and] said, 'Yeah, call the cops so Ican end itall.'"30 Stephanie understood Lopez Castro's statement to mean "that he wanted to kill us and himself."31 She believed his threat because he had told her on "previous occasions" that he wanted to "end it 

### all, meaning kill me, my kids, and himself."32 Stephanie described two incidents within the pastyearwhen Lopez Castro had choked her and threatened to jump off a balcony with her. 

### During closing argument, the prosecutor began by referencing all of the witnesses' testimony: "[Y]ou had an opportunity to hearfrom witnesses. You heard 

### fromStephanie Lopez Castro; you heard from Tara Larue; and you also heard from 

### [A.L.C]."33 One of the jurors immediately interrupted, asking, "Wasn't Tara Larue's testimony wiped from the records?"34 At the request of both the prosecutor and defense counsel, the court then reread the limiting instruction to thejury.

30RP(Oct. 13, 2015) at 218. 31 id, 32 Jd, at 218-19. 33RP(Oct. 15, 2015) at 390. 34 Id.No. 74220-5-1/10 

### The jury found Lopez Castro guilty ofsecond degree assaultwhile armed with a deadly weapon and found that he committed the crime in front of the victim and his minor children. Thejury acquitted him ofthe harassment charge. Lopez Castro appeals. ANALYSIS Motion For Mistrial 

### Lopez Castro argues the trial court erred in denying his motion for a mistrial. We review a trialcourt's decision to deny a motion for mistrial for abuse of discretion.35 A trial court abuses its discretion in denying a motion for a mistrial only 

### ifits decision ismanifestly unreasonable or based onuntenable grounds.36 A trial court has broad discretion to rule on irregularities during the course of a 

### trial.37 Determining whether an irregularity duringtrial is so prejudicial as to warrant a 

### mistrial depends on (1) the seriousness of the irregularity, (2) whether the statement
was cumulative of otherproperly admitted evidence, and (3) whether the irregularity 

### could becured by an instruction todisregard theremark.38 The trial court is in the best position to determine ifa trial irregularity caused 

### prejudice.39 Amistrial should be granted "onlywhen the defendant has been so 

### prejudiced thatnothing short ofa newtrial caninsure that thedefendantwill betried

35 State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003). 36 State v. Allen, 159Wn.2d 1, 10, 147 P.3d 581 (2006) (quoting Statev, Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)). 37 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996). 38 State v. Perez-Valdez, 172 Wn.2d 808, 818, 265 P.3d 853 (2011). 39 Id. at 819.

10No. 74220-5-1/11 

### fairly."40 We will reverse the trial court only ifthere is a substantial likelihood the trial irregularityaffected the jury's verdict.41 Larue's testimony about Lopez Castro's prior acts of abuse towards her amounts to a significanttrial irregularity. ER 404(b) embodies an express policy against the admission ofevidence of prior crimes, wrongs, or acts except in very limited circumstances and for limited purposes. Although the purpose of Larue's testimony at trial was to explain why she did not report the July 20 incident to police, she never made the direct linkthat she did not report the incident because she was afraid of Lopez Castro, as she had inthe ER 404(b) hearing. Moreover, although defense counsel elicited the testimony on cross-examination, Larue described an incident of prior abuse in which Lopez Castro held a knife to herthroat, an allegation similar to Lopez Castro's assault charge here. Larue's testimony was not cumulative
or repetitive ofother evidence here because no otherwitness testified to the abuse
Larue suffered. The key question, however, is whetherthe trial court's limiting instruction to 

### thejury to disregard Larue's testimony about her priorabuse could cure the error. To neutralize any possible prejudice, the trial court instructed thejury, and repeated at defense counsel's request, "Youare to disregard allthe evidence presented by Ms. Larue concerning allegations of prior physical contact between her and the defendant. /repeat, you are to disregard utterly allthe evidence presented by Ms. Larue concerning allegations of prior physical contact between her and the

40 State v. Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986). 41 State v. Rodriguez. 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002).

11No. 74220-5-1/12 

### defendant."42 "A jury is presumed tofollowjury instructions and that presumption will 

### prevail until it is overcome by a showing otherwise.'"43 Lopez Castro argues that State v. Escalona44 illustrates why the limiting instruction could not neutralize the prejudicial effect ofLarue's priorabuse testimony. 

### During Escalona's trial on a charge ofassault in the second degree with a deadly weapon, Escalona's roommate, the victim, explained that he was nervous that he would be stabbed in a confrontation with Escalona because Escalona "already has a record and had stabbed someone."45 The trial court ordered the comment stricken, denied a motion for a mistrial, and instructed thejury to disregard the remark. 

### This court reversed, viewing the unsolicited statement as "extremely serious" because itwas inadmissible evidence of a prior crime, there was a paucity ofcredible 

### evidence against Escalona, and the State's case consisted primarily of the victim's 

### testimony, which contained manyinconsistencies.46 This court also found that the evidence was not cumulative as any such evidence was excluded by the ruling in 

### limine. And finally, this court found that "itwould be extremelydifficult, ifnot 

### impossible, in this close case forthejurytoignore this seemingly relevantfact."47

42 RP (Oct. 14, 2015) at 260-61 (emphasis added). 43 Carnation Co., Inc. v. Hill, 54 Wn. App. 806, 811, 776 P.2d 158 (1989) 

### (quoting Tennant v. Rovs. 44Wn. App. 305, 315, 722 P.2d 848 (1986)); see also State v. Stenson, 132 Wn.2d 668, 730, 940 P.2d 1239 (1997). 44 49 Wn. App. 251, 742 P.2d 190 (1987). 45 id, at 255. 46 id, 47 Id. at 256.

12No. 74220-5-1/13
We conclude this situation is distinguishable from Escalona. Escalona was a "close case" because the only evidence of guiltwas internally inconsistenttestimony 

### of the victim who made the improper statement.48 Unlike Escalona, the State's case here was strong. The State offered the eyewitness testimony of A.L.C, who testified that she loves herfather. Stephanie testified consistently with A.L.C's description of 

### keyaspects of the incident. The State also offered the testimony of the policeofficer who responded to the 911 call. The officertestified that when he found Lopez Castro 

### in the parking lot ofStephanie's apartment, the officerasked, "Where is the knife?" and Lopez Castro responded that "itwas inside of hiscar."49 Stephanie and A.L.C's accounts were corroborated by physical evidence, including Lopez Castro's weapon, seized at the scene, and identified by A.L.C. as the State's trial exhibit 8. 

### Further, Juror 6 interrupted the prosecutor's closing argument here, asking, 

### "Wasn'tTara Larue's testimonywiped from the records?"50 The phrasing of Juror 6's 

### question reveals that thejurorclearly understood the court's limiting instruction. And after a thirdreading ofthe instruction, it is appropriate to conclude that the rest ofthe 

### jury understood the instruction. Larue also had several inconsistencies in her testimony and was impeached oncross-examination. Forexample, she testified she did not report the July 20 incidentbecause she did not have access to a phone, but she texted Stephanie on July 19from her roommate's phone. On cross-examination, Larue revealed that she knew Stephanie was not at home on July 20 and that was

48 id, 49RP(Oct. 13, 2015) at 168. 50RP(Oct. 15, 2015) at 390.

13No. 74220-5-1/14
the reason she did not report the incident. She further revealed that she did not report the incident because she had warrants out for her arrest. These inconsistencies were explored in closing argument. 

### Indetermining whether a mistrial should have been granted, "'[e]ach case 

### must rest upon its own facts.'"51 Here, Larue testified that she went with Lopez Castro to Stephanie's apartment on July 20 because she was afraid ofhim: "[l]t wasn't an option to say no to German ever. ... He wouldn't accept no. Ijust did what he said to keep myselfsafe."52 Hertestimony clearly reveals Lopez Castro's domination and control. Consistent with this background, Larue's testimony was not 

### the irregularity in Escalona of a witness unexpectedlyblurting out that the defendant had a record and previously stabbed someone. We conclude the trial court did not abuse its discretion in denying the motion for a mistrial. Itwas within the court's discretion to determine the impact inthis 

### setting and whether thejury could understand the limiting instruction. Thetrial court repeated the instructionthree times. And the jury acquitted on the harassment 

### charge. Given the strength of the State's case, the court's repeated limiting instructions, the phrasing of Juror 6's question during closing argument, the inconsistencies inLarue's testimony, and her impeachment on cross-examination, 

### the limiting instruction cured the prejudicial effect of Larue'stestimony about herprior
abuse.



### 51 State v. Morsette, 7 Wn. App. 783, 789, 502 P.2d 1234 (1972) (quoting State v. Albutt, 99 Wash. 253, 259, 169 P. 584 (1917)). 52RP(Oct. 13, 2015) at 185.

14No. 74220-5-1/15 

### Lopez Castro argues the prosecutor committed misconduct by preemptively 

### introducing Larue's allegations of priorabuse, thereby depriving Lopez Castro of his right to a fair trial. We disagree. 

### Adefendant claiming prosecutorial misconduct bears the burden of 

### establishing that the challenged conductwas bothimproperand prejudicial.53 When the defendant objects to alleged misconduct or moves for a mistrial, an appellate court accords the trial court deference because it is in the best position to assess 

### potentialprejudice.54 Consequently, we review the trial court's ruling on alleged misconductfor an abuse ofdiscretion and will overturn the court's decision only ifthe defendant demonstrates a substantial likelihood thatthe alleged misconduct affected the verdict.55 

### Citing State v. Fisher,56 Lopez Castro contends his prior acts ofabuse towards Larue were admissible to explain Larue's delayed reporting only ifthe defense first made an issue ofthe delay. He misreads Fisher

### Fisher upheld a trial court ruling that prior physical abuse "was admissible 

### conditioned upon the defense's making an issue of[the victim's] delayed reporting."57 Fisher did nothold that delayed reporting must be made an issue before ER 404(b) evidence is admissible to explain a delay. Moreover, here, during the pretrial hearing
on the motions in limine, the trial court expressly asked the parties whetherthey

53 State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830 (2003). 54 Stenson, 132 Wn.2d at 719. 55 State v. Lindsay, 180 Wn.2d 423, 430-31, 326 P.3d 125(2014). 56 165 Wn.2d 727, 745-46, 202 P.3d 937 (2009). 57 Id. at 746.

15No. 74220-5-1/16
wanted "to get into" the issue of Larue's failure to report the July 20 incident, and both parties responded affirmatively. And, as the State points out, when the State reasonably anticipates an attack on its witness's credibility, itmay address the issue 

### on direct examination.58 Therefore, Lopez Castro fails to establish thatthe prosecutor's preemptive introduction of Larue's allegations of prior abuse was improper. Appellate Costs Lopez Castro argues that ifthe State is the substantially prevailing party on appeal, we should not impose costs against him because he is indigent. Appellate courts may require an adult offender convicted ofan offense to pay appellate costs.59 The commissioner or clerk will award costs ifthe State is the substantially prevailing party on appeal, "unless the appellate courtdirects otherwise 

### in its decision terminating review."60 A determination of a criminal defendant's indigency is entrusted to the trial judge, whose finding ofindigency we respect unless we are shown good cause not to do so.61 Under RAP 15.2(f), where a party has been granted an order of indigency, 

### the party and the party's counsel must bring to the attention ofthe trial court any

58 See State v. Bourgeois, 133 Wn.2d 389, 402, 945 P.2d 1120 (1997) (explaining itwas not error forthe State to question a witness about his reluctance to testify "because his credibilitywas attacked. Although the attack occurred after [the 

### witness] was directly examined bythe State, itwas reasonable forthe State to 

### anticipate the attack and 'pull the sting' of the defense's cross-examination"). 59 RCW 10.73.160(1). 60 RAP 14.2. 61 State v. Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034, 377 P.3d 733 (2016).

16No. 74220-5-1/17 

### significant improvement during review in the party'sfinancial condition. We give "a partythe benefits of an order ofindigency throughout the review unless the trial court finds the party's financial conditionhas improved to the extentthat the party is no longer indigent."62 The trial court issued an orderfinding Lopez Castro indigent and authorizing 

### him to appeal in forma pauperis. Thetrial court has notfound that hisfinancial condition has improved or is likely to improve. The State offers no newfinancial information. We therefore presume that Lopez Castro remains indigent. Underthese circumstances, we conclude that an award ofappellate costs to the State is not appropriate.
We affirm.

WE CONCUR:



# J

rn 1

62 id, (quoting RAP 15.2(f)). CO

17