### FILED JULY 14, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 32113-4-111 Respondent, ) ) V. ) ) LUIS A. AVILA, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, J.

- Luis Avilawas convicted ofsecond degree rape. Attrial, Detective Jackie Nichols testified about statements Mr. Avilamadeto her during an interview. No CrR 3.5 hearinghad been conductedpriortotrial to determine whetherher statements were admissible. Mr. Avila appealed, and the case was remanded for a CrR 3.5 hearing, atwhichthe trial court concluded the statements were voluntary and were properly admitted at trial. Mr. Avila again appeals, arguing that (1) nine ofthe findings offact in the court's orderlack substantial evidence in the CrR3.5 hearing record, and (2) the trial court erred when it found the interviewwas not a custodial interrogation. Findingno error, we affirm. FACTS AND PROCEDURAL BACKGROUND OnJune 13, 2011, DetectiveJackie Nichols received areport that BonnieLarson,
an elderly womanresiding at Sycamore GlenFamilyHome-an adult care facility-hadNo. 32113-4-III State v. Avila
been raped at the facility by an employee later identified as Luis Avila. Uponreceivingthis report, DetectiveNichols calledMr. Avila and "asked ifhe wouldbe willing to come in for an interview." Clerk's Papers (CP) at 99. Mr. Avila agreed, andtogetherthey "arranged a time whichwould be mutually convenient." Id. Sharee Kromrei, the owner ofSycamore Glen, and a friend ofMr. Avila's, then contacted Detective Nichols and askedto bepresent atthe interview. DetectiveNichols agreed. OnJune 16, 2011, Ms. Kromrei drove Mr. Avilato the sheriffs office. Detective Nichols escorted themto the interview room, which is where we conduct all our interviews, victim interviews, child/victim interviews, adult interviews. So it's, the setting is conduciveto being comfortable it's gotupholstered chairs, pictures onthe walls kind ofa neutral tone to the paint, carpet, youknow, it's like a throwrug type carpet on the floor. Report ofProceedings (RP) (Jan. 15, 2015) at 9. Once in the interviewroom, Ms. Kromrei and Mr. Avila sat nextto each other onthe side ofthe table nearestto the door. NothingblockedMr. Avila's path to the door. Detective Nichols, in full uniform, toldMr. Avilahe was free to leave at any time. Atno time wasMr. Avilahandcuffed orphysicallyrestrained. NeitherMs. Kromrei nor Mr. Avilawere searched. Detective Nichols did not informMr. Avila ofhis Miranda 1 rights before interviewing him.

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2No. 32113-4-111 State v. Avila During the interview, which lasted no more than 20 minutes, Mr. Avila appeared to understand the questions he was asked and the allegations at issue, never declinedto
answer any questions, never requested an interpreter or a lawyer, and never asked to leave. When the interview was over, Mr. Avila and Ms. Kromrei walked out ofthe sheriffs office together. Nearly a year later, onMay 15, 2012, the State chargedLuis Avilawiththe second degree rape ofBonnie Larson. In preparation for trial, defense counsel did notrequest a CrR 3.5 hearing to determine whetherMr. Avila's statements to Detective Nichols had been made voluntarily. Attrial, Detective Nichols testified about the statements Mr. Avila made during the interview. Mr. Avila also testified at trial in his own defense. The statements Detective Nichols attributed to Mr. Avilawere inconsistentwithMr. Avila's trial testimony. Atthe conclusion ofthe trial, thejury found Mr. Avila guilty, andthe court sentencedhim to 90 months to life. Mr. Avila appealed, challenging for the first time the voluntariness ofthe interview statements to which Detective Nichols testified. In response, the State requested the matter be remanded to the trial court for a CrR 3.5 hearing. A commissioner ofthis court granted the State's motion and issued an orderremanding the
case for a CrR 3.5 hearing.

3No. 32113-4-III State v. Avila
The CrR 3.5 hearing occurred onJanuary 15, 2015. The court entered an order concluding the interviewwas not a custodial interrogation and therefore Mr. Avila's statements were voluntary and admissible. The order contains the following findings of fact: 1. OnJune 12, 2011, BonnieJ. Larson, an elderly resident ofthe Sycamore Glen Family Home, a facility licensedbythe state for long-term care, told various people at her churchthat she hadbeen forcibly raped by an employee ofthe hometheprevious night. 2. On June 13, 2011 while at a local hospital for a routine appointment, Ms. Larsonreported again that she hadbeenraped at Sycamore Glen onJune 11, 2011 by a caregiver named "Luis." She was given a rape examinationbutthere were no overt signs ofassault. The medical personnel collected "swabs" as part ofa standardrape kit, whichwere sent to the Washington State Patrol Crime Lab for analysis. 3. The medical personnel contacted law enforcement and Detective Jackie Nichols ofthe Asotin County Sheriffs Office was assigned the case and responded to the hospital to investigate. 4. Detective Nichols interviewedMs. Larson at the hospital and spoke with otherpotential witnesses. 5. The Detective contacted [Sharee] Kromrei, the Administrator of Sycamore Glen. Ms. Kromrei told DetectiveNichols thatthe employee identified as "Luis"was LUIS A. AVILA. She indicated that shewas a friend ofMr. AVILA's andthat she hadheard about the reportbut did notbelieve it. Shetold the Detective that she had already spoken withMr. AVILA andthat hehadtold herthatthe accusations were "completely false." Throughoutthe entire investigation Ms. Kromrei advocated for, and assisted Mr. AVILA. 8. OnJune 16, 2011, during regular working hours, LUIS A. AVILA and Sharee Kromrei arrived atthe Asotin County Sheriffs Office for the interview, having driven to that location in a private vehicle. 4No. 32113-4-111 State v. AvilaThey were metby Detective Nichols in the lobby and escorted to the interviewroom inside ofthe Sheriffs Office. 

### 9. The interview room is regularly used for non-custodial interviews of witnesses, victims (including childvictims), andpersons ofinterest. The room is decorated in a nonthreatening manner with "homey" decor which includes muted lighting, upholstered chairs, pictures on the walls, and small throw rug on the floor. 13. Priorto asking any questions, Detective Nichols told Mr. AVILA that he was not under arrest and that he was free to leave at any time. At no time during the interview was Mr. AVILAhandcuffed or physically restrained in any manner. Neitherhe nor Ms. Kromrei was searched nor were they even asked whetherthey were carrying any weapons. 16. The Detective began the interview by telling Mr. AVILA about the accusations and asked him for his account ofthe evening in question. CP at 98-100. ANALYSIS Mr. Avila appeals, arguing that (1) insufficient evidence supports nine ofthe trial court's findings offact, and (2) the trial court erred when it concluded the interview with Detective Nichols was not a custodial interrogation. Each argument is addressed in tum. 1. Because we may takejudicialnotice of the record in the casepresently before us, substantial evidence supports the trial court's findings Mr. Avila argues the court included numerous findings offact in its order on the CrR 3.5 hearingthatwere not supported by any evidence in thathearing record.



### 5No. 32113-4-111 State v. Avila
This argument lacks merit. Judicial notice is allowed at any stage ofthe proceeding. ER201(f). "Wemay takejudicial notice ofthe record in the case presently before us or 'inproceedings engrafted, ancillary, or supplementary to it.'" In re Adoption of E.T., 150 Wn.2d 409,415, 78 P.3d 634 (2003) (quoting Swakv. Dep'tof Labor &Indus., 40 Wn.2d 51, 53,240 P.2d 560 (1952)). The CrR3.5 hearing was conducted to determine whether certain evidence was admissible at trial and was part of the same case. Accordingly, we, like the trial court, may takejudicial notice ofthe trial record. 

### It contains substantial evidence for each ofthe challenged findings offact. "Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person ofthe truth ofthe declared premise." Hollandv. Boeing Co., 90 Wn.2d 384, 390-91, 583 P.2d 621 (1978). The record shows Ms. Larson was a resident at Sycamore Glen Family Home, which is a licensed adult care facility. Ms. Larson testified that she told "severalpeople" at church that she had been raped. RP (Oct. 8, 2013) at 96. This report was made "the morning after" the rape, on June 12, 2011. Id. at 72. Substantial evidence supports finding offact 1. There was testimony that on June 13, 2011, Ms. Larson had aroutine appointment with her counselor at a facility affiliated with St. Joseph's Hospital. The record shows that when Ms. Larson told her counselor she had been raped by a caregivernamed "Luis"
6No. 32113-4-III State v. Avila

at Sycamore Glen on June 11, 2011, he sent herto the emergency room for a sexual assault exam. Detective Nichols testified that the exam found no overt signs ofsexual assault. The record reflects that the nurse at the hospital collected swabs as part ofa sexual assault exam, and sentthem to the Washington State Patrol Crime Lab for analysis. Substantial evidence supports finding offact 2. Detective Nichols testified that the medical personnel at "St. Joseph's Hospital or
a medical facility affiliated with St. Joseph's" called the Asotin County Sherifrs Office to report the sexual assault. RP (Oct. 8, 2013) at 38. Detective Nichols stated she responded to the report and went to St. Joseph's to interview Ms. Larson. Detective Nichols also said she spoke with otherpotential witnesses. Substantial evidence supports findings offact 3 and 4. Detective Nichols testified she contacted Ms. Kromrei to ask her aboutMs. Larson's report. The record does not reflect thatMs. Kromrei is the "administrator" of Sycamore Glen, butratherthat she is the "owner" and "operator" ofthat facility. RP (Oct. 9, 2013) at 232. This difference is inconsequential. Detective Nichols testified that Ms. Kromrei identified herselfas Mr. Avila's friend. The record reflects that upon receiving the report ofthe rape from one ofher caregivers, Ms. Kromrei responded that "that couldn'thave happened" because Mr. Avila was from her church and hadjust gotten married and had a baby. RP (Oct. 8, 2013) at 82. Testimony shows Ms. Kromrei
7No. 32113-4-III State v. Avila
asked to attend Mr. Avila's interview with DetectiveNichols, told Mr. Avilanot to worry because she would be present and ifhe were arrested she would be able to help him, and then drove him to the interview. The evidence also shows that atthe interview Mr. Avila consulted Ms. Kromrei about whetherto allow DetectiveNichols to recordthe interview. This is sufficient evidence to support a finding thatMs. Kromrei advocated for Mr. Avila throughout the investigation. Sufficient evidence supports finding offact 5. The record demonstrates that on June 16, 2011, Ms. Kromrei drove Mr. Avila to the Asotin County Sheriffs Office for an interview with Detective Nichols. Mr. Avila testified they were met by Detective Nichols, who led them to the interview room. There is no direct evidence that the interview occurred during "regularworking hours," butthe record shows that Detective Nichols and Ms. Kromrei arranged a time for the interview that was "mutually convenient," RP (Jan. 15, 2015) at 11, and that between 5to 10 officers were present at the sheriffs office at the time ofthe interview, whichprovides substantial evidence for that finding. Substantial evidence supports finding offact 8. DetectiveNichols testifiedthatthe interview room at the sheriffs office is used for all interviews, including victim, child victim, and adult interviews. She statedthe
room has upholstered chairs, pictures on the wall, and "athrow rug type carpet on the floor." RP (Jan. 15, 2015) at 12. She said the room was more like a home than ajail. The record does not reflectthatthe lighting is muted, but ratherthatthe paint on the walls 8No. 32113-4-111 

### State v. Avila
is neutral in tone. Neither does the record reflect thatthe throwrug is "small." However, the remainder ofthe evidence supports the finding thatthe room is nonthreatening and comfortable. Substantial evidence supports finding offact 9. Before asking any questions in the interview, DetectiveNichols testified she told Mr. Avila he was free to leave at any time. The record does notreflectthat Detective Nichols told Mr. Avilathat he was not under arrest. Butthe record shows Mr. Avila was not handcuffed orrestrained in any manner, and neitherhe norMs. Kromrei were searched. The record contains no evidence whatsoever about whether they were asked if they had weapons. Though substantial evidence supports onlypart offinding offact 13, the unsupported portions do not affect ourultimate conclusion and need not be stricken. DetectiveNichols testified she began the interview by telling Mr. Avila she knew he was aware ofthe allegations, and then asked him to tell her whathappened on the night ofJune 11, 2011. The record does not reflectthat Detective Nichols told Mr. Avila about the allegations, but it does reflect that Mr. Avilaknew ofthe allegations. Again, though substantial evidence supports only part offinding offact 16, this does not affect
our ultimate conclusion and the unsupportedportion need notbe stricken. 

### 2. The interview was notcustodial Mr. Avila argues the court should not have allowedDetectiveNichols to testify at trial about the statements he made to her during the interview on June 16, 2011, because
9No. 32113-4-III State v. Avila
the interview was a custodial interrogation and he was not informed ofhisMiranda rights. The Fifth Amendment to the United States Constitutionprovides: "Noperson ... shall be compelled in any criminal case to be a witness againsthimself." U.S. CONST. amend. V. To protectthis right and to ensure a defendant's statements are voluntary, Miranda warnings are required whenever a defendant is subjected to a custodial interrogation by a state agent. Miranda, 384 U.S. at 439; State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004). The failure to administerMiranda warnings when the defendant is in custodial interrogation renders the defendant's statements involuntary and inadmissible at trial. State v. Lozano, 76 Wn. App. 116, 118-19, 882 P.2d 1191 (1994) (citing Oregon v. Elstad, 470 U.S. 298, 307, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985)). A trial court's custodial determination is reviewed de novo. Lorenz, 152 Wn.2d at 36. "[T]heterm 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions
...that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Islandv. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) (footnote omitted); State v. Sargent, 111 Wn.2d 641, 649, 762 P.2d 1127 (1988). The State concedes Detective Nichols's interview ofMr. Avilawas an "interrogation." We, therefore, need only considerwhether it was "custodial." 10No. 32113-4-III State v. Avila
An interrogation is "custodial" ifthe defendant's freedom ofmovement is curtailed. Sargent, 111 Wn.2d at 649-50. "An objective test is used to determine whether a defendant was in custody-whether a reasonable person in the individual's position would believe he or she was in police custody to a degree associated with formal arrest." Lorenz, 152 Wn.2d at 36-37 (citingBerkemer v. McCarty, 468 U.S. 420,440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)). The "freedom ofmovement, not the atmosphere or the psychological state ofthe defendant, is the determining factor in deciding whether an interview is 'custodial."' Sargent, 111 Wn.2d at 649-50 (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)). Mr. Avila makes a number ofarguments as to why aperson in his position would not believe he had a right to leave the interview with Detective Nichols. First, he argues he has limited English comprehension and nothing is known about his education. However, though Mr. Avila is Guatemalan, Detective Nichols testified he appeared to understand her questions and that his answers to the questions were appropriate. Moreover, Mr. Avilaprepared a written statementthat he read to the court at the CrR 3.5 hearing that demonstrated his high level ofEnglish proficiency. His ability to understand sophisticated legal concepts is also demonstrated by his first statement ofadditional grounds for review (SAG). There is strong evidence that Mr. Avila had a sufficient grasp ofEnglishto understand that his participation in the interview was not compulsory.
11No. 32113-4-III State v. Avila
Moreover, his experience with the legal system is some evidence that he was
aware ofwhat a custodial law enforcement environment looks like. He was arrested twice in 2006, twice in 2007, and once in both 2008 and 2010. Thetrial court could reasonably considerwhether, after six arrests, Mr. Avila had enough experience to understand thatthe interviewwith Detective Nichols was not a custodial interrogation. Second, Mr. Avila argues he understood DetectiveNichols's "asking" himto
come to the sheriffs office as an order and not a request. The trial court's unchallenged findings weaken this argument. The court found thatDetective Nichols "asked" Mr. Avila ifhewould be "willing"to come down for an interview, and thatthey agreed to a time that was "mutually convenient." CP at 99. Additionally, the court found thatMs. Kromrei drove Mr. Avilato the interview-hewas not transported there by law enforcement. These facts are indicative ofa request, ratherthan an order, to come to the interview. Third, Mr. Avila argues he did notunderstand he could leave because the interview room was behind locked doors atthe stationhouse, and Detective Nichols was in uniform when she questioned him. However, the court found that before beginningthe interview, Detective Nichols told Mr. Avila he was free to leave at any time. The court also found thatMr. Avilawas not searched, handcuffed, orrestrained in any way, that he sat on the side ofthe table nearest the door, and that no obstacle blockedhis pathto the 12 

# l 

# !No. 32113-4-111 State v. Avila
door. Moreover, the interview only lasted 20 minutes and when it was overMr. Avila simply walked out. A reasonableperson in Mr. Avila'sposition would have known he
was free to leave. Fourth, Mr. Avila argues the court improperly placed great weight on the fact that Ms. Kromrei was present during the interview. Mr. Avila states he was never asked ifhe would allow Ms. Kromrei to bepresent, and that no information suggests she would be qualified to help him. Mr. Avila's own testimony at the hearing undercuts these arguments: When I agreed about the interviewthat was after talking to [Sharee] and I explain her what I was afraid ofand she is the one that told me not to be afraid because she was going to talk to Det. Nichols and she asked ifshe could be with me during the interview and she saidthat ifI would have been arrested then she would have been able to help me. That's the reason why [Sharee] was present during the interview. RP (Jan. 15, 2015) at 27. This shows Mr. Avila knew Ms. Kromrei was going to be at the interview, and that he wantedherthere. In addition, he conferred with her about whether to allow the interviewto be recorded, which not only shows that she helped him, butthat he knew he had the right to refuse. The simple fact ofMs. Kromrei's presence shows Mr. Avila was not isolated and indicates a noncustodial environment. See Miranda, 384 U.S. at 461 (noting that isolation may be used in a custodial interrogation to compel the witness to speak).

13No. 32113-4-111 State v. Avila Fifth, Mr. Avila argues that his choice to attend the interview was constrained because he thought the interview might concern working for Ms. Kromrei "underthe table," and because he knew he was suspected ofraping Ms. Larson. Appellant's Supp. Br. at 14. This argument is notpersuasive because Detective Nichols told him he was free to leave at any time. Mr. Avila'spsychological state ofmind does not show the interview was custodial in the absence ofany indication that his freedom ofmovement
was restricted. Finally, Mr. Avila argues the trial court improperly tookjudicial notice ofthe setup ofthe interviewroom. As discussed above, sufficient evidence supports the court's finding about the environment ofthe interview room. Nothing aboutthe interview suggested a custodial interrogation. The record supports the trial court's finding that the interview was not a custodial interrogation. The court did not err in concluding Mr. Avila's statements in the interview were voluntary and admissible at trial. STATEMENT OF ADDITIONAL GROUNDS FORREVIEW In aprose statement ofadditional grounds for review (SAG), as well as a supplemental SAG, Mr. Avila raises four grounds for review.

14No. 32113-4-111 State v. Avila

1. Expert Testimony on DNA2 Mr. Avila argues thatthe DNA expert's testimony abouthis genotype being unique in the population, and the testimony that under the "productrule" there was a 1in 400 quadrillion chance that the DNA would match anotherperson, was inadmissible. Mr. Avila cites State v. Cauthron, 120 Wn.2d 879, 846 P.2d 502 (1993) and State
v. Buckner, 125 Wn.2d 915,890 P.2d 460 (1995) for support. However, the Supreme Court overruled Cauthron, and reversedBuckner in State v. Buckner, 133 Wn.2d 63, 941 P.2d 667 (1997). There the court stated thatthe "productrule" is a generally accepted method ofcalculating statistical probabilities and that experts may give their opinion that
a DNAprofile is unique withinthe population. Buckner, 133 Wn.2d at 67. "Briefly restated, the productrule (or 'multiplicationrule')
...means that the probability ofa genetic profile occurring in the population is the product ofthe probabilities ofeach individual allele's occurrence in the population." State v. Copeland, 130 Wn.2d 244, 264-65, 922 P.2d 1304 (1996). The DNA expert described his application ofthe productrule, by which he concludedthere was a 1in 400 quadrillion chance that the DNA could have come from
someone otherthan Mr. Avila:

2 Deoxyribonucleic acid. 15No. 32113-4-III State v. Avila So, each number has what's called aprobability or a chance that it is supposedto occur withinthe U.S. population. Thatprogram then takes each ofthose numbers I obtain and multiplies them together. And so since you have a lot ofnumbers, you get a very low probability because I:400 quadrillion is actually a very small chance that it will happen again. RP at 184. The expert's testimony was therefore proper. Mr. Avila also objects to the DNA evidence in general, arguing it is susceptible to laboratory error, mishandling, mislabeling, and contamination. [O]nce DNA evidence is determined to be generally admissible, then both proponents and opponents ofaparticulartest should be able to garnerthe necessary information to present both sides ofthe issue to the factfinder when there is a challenge to the validity ofa given laboratory procedure. State v. Kalakosky, 121 Wn.2d 525, 541, 852 P.2d 1064 (1993). Only where laboratory
error is so serious that the results will not be helpful to thejurycan the trial court, in its discretion, rule the evidence inadmissible. Id. In Mr. Avila's case, defense counsel had
an opportunity to cross-examine the expert, and the only issue about the validity ofthe tests was whetherthe results were compromisedby the length oftime (six months) that the sample sat in the laboratory before testing. The delay was due to backlogging and does not appearto have compromised the evidence. Accordingly, where Mr. Avilahas failed to identify any evidence to suggest laboratory error in this specific case, the trial court did not abuse its discretion when it admitted the evidence. To the extentMr. Avila

16No. 32113-4-111 

### State v. Avila challenges the credibility ofthe evidence, it is the province ofthejuryto determine what weight to assign that evidence. 

### Copeland, 130 Wn.2d at 270. 

### 2. Improper ClosingArgument Mr. Avila claims the State improperly vouched for its witness's credibility when the prosecutor said during closing arguments: "Shetold the truth." SAG at 4. This is a slight misquote ofthe prosecutor's actual words, which were: "Old lady, told the truth every time." RP (Oct. 10, 2013) at 349. "Itis improper for a prosecutorpersonally to vouch for the credibility ofa witness." 

### State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). "Prosecutors may, however, argue an inference from the evidence, and prejudicial error will notbe found unless it is 'clear and unmistakable' that counsel is expressing a personal opinion." Id. (quoting

### State v. Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985)). Where, as here, defense counsel did not objectto the prosecutor's statements, reversal is required only if the "'misconduct is so flagrant that no instruction can cure it.'" 

### State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988), 

### ajf'd, 119 Wn.2d 711, 837 P.2d 599 (1992) (quoting 

### State v. Case, 49 Wn.2d 66, 74, 298 P.2d 500 (1956)). In this case, it is clear from the contextthat the prosecutor did not offer a personal opinion, but instead summarized all ofthe evidence and made an inference from that evidence that Ms. Larson-who he also described as having "somebad mental problems" 17No. 32113-4-III State v. Avila
and "get[ting] confused sometimes"-toldthe truth. RP (Oct. 10, 2013) at 348. Accordingly, the prosecutor's commentwas not improper. See State v. Jackson, 150 Wn. App. 877, 884-85, 209 P.3d 553 (2009) (finding that the prosecutor did not vouch for a witness's credibility where he reminded thejurythat it was the solejudge ofcredibility, outlined the evidence and the reasonable inferences from it, and concluded that thejury could find the witness credible). Furthermore, the trial court instructed thejurythat counsel's statements were not evidence and should be disregarded ifnot supported by the evidence. This instruction
was sufficientto limit any prejudice. See State v. Castro, 32 Wn. App. 559, 567, 648 P.2d 485 (1982) (finding prosecutor's statementthat a witness told the truth was not prejudicial errorbecause the courttold thejuryto disregard any statements not supported by the evidence). 3. IneffectiveAssistance o(Counsel Mr. Avila argues defense counsel provided ineffective assistance when he moved to dismiss charges rather than for a mistrial. Here, though, the record shows the court considered a motion for mistrial. The court first stated: "Yourmotion for mistrial is respectfully denied." RP (Oct. 9, 2013) at 228. The courtthen said: "And so for the record the motion to dismiss and/or mistrial are both denied." Id. Mr. Avila cannot complainthat defense counsel did not move to dismiss when the court clearly understood 18No. 32113-4-111 State v. Avila
the motion was for dismissal or mistrial. Mr. Avila did not receive ineffective assistance ofcounsel. 4. Due Process Mr. Avila argues the State violated his due process right to gather evidence in his
own defense, alleging the State withheld evidence. Specifically, he alleges the State did not disclose that some ofthe DNA sample remained and could have been tested. 

### Id. at 216. This claim fails. The record shows it was not the raw DNA sample thatremained, butthe DNA extractthat was left over after the DNAhad been tested. In addition, the defense was notified that this extract existed in the crime lab report ofJune 27, 2012. Where the prosecution did not withhold any evidence, there was no violation ofthe discovery rules and no violation ofdue process. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# dzd,LoW615 t ,. Siddoway, J. WE CONCUR:
Pennell, J. 19