IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

### ) No. 78858-2-I 

### ) Respondent 

### ) DIVISION ONE v. 

### )

) UNPUBLISHED OPINION JOSE POMPILIO IRIAS SANCHEZ, 

### )

Appellant.

_________________________________ 

### ) FILED: March 9, 2020 HAZELRIGG, J.

— Jose P. Irias Sanchez (Irias)1 was convicted of assault in the second degree-domestic violence and felony harassment-domestic violence afterajurytrial. In pretrial motions, the defense soughtto exclude priorallegations ofdomesticviolence. The trial courtspecifically excluded some actswhile allowing testimony as to others. Attrial, the keywitness twice violated these pretrial rulings. In the first instance the court provided a curative instruction. In the second instance, the testimony was not interpreted from Spanish to English for the jury. Irias argues the admission ofthe prior bad act evidence was improper and that he
was deprived ofafairtrial duetotheviolations ofthe pretrial rulings bythewitness.

1 The defendant’s last name is listed both with and without a hyphen in various documents contained in the record. In the majorityofthe letters ofsupportsubmitted for his sentencing, friends and business associates refer to the defendant as Jose Irias. Further, he appears to sign documents in the record with only Irias. As this is a common naming convention in Latinx and Spanish-language dominant communities, and it appears to be how the defendant self-identifies, we will utilize that practice herein.No. 78858-2-1/2

When viewed in lightofthe evidence as awhole, Iriasfails to demonstrate thatthe statements were so prejudicial as to deprive him ofa fairtrial. We affirm.
FACTS Jose lrias Sanchez was charged with assault in the second degreedomestic violence and felony harassment-domesticviolence. The charges arose out ofan incident in October2017 when police responded to a 911 call by Liliana Salazar Hernandez (Salazar). When police arrived, they found Salazar with her two young daughters in a van a short distance away from the home they shared with Irias. Salazar reported that her children’s father, Irias, had attacked herwith
a machete. Salazar does not speak English and could not communicate directly with responding officers, so her children and a neighbor assisted as interpreters with the police. Salazar reported that she put her children to bed earlier that evening and then she went to bed at approximately 9:30pm. Irias had been outside drinking and came upstairs at approximately 1:00am. Salazar observed Irias go into their daughters’ room and then come in to their bedroom. Irias began to argue with Salazarand then leftto bathe. Salazartestified that Irias came outofthe bathroom with a machete, pushed Salazar’s face against a pillow and held the machete to her neck, stating he wanted to “finish everything.” Salazarwas ultimately able to get away, gather her daughters and drive a few blocks awayto call the police. Irias was taken into custody and charged with assault in the second degree and felony harassment both with special allegations ofdomesticviolence. Priorto trial, the State sought to admit alleged prior bad acts involving domestic violence

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within Irias and Salazar’s relationship. None ofthe prior acts had been reported to law enforcement previously and the evidence solely consisted of Salazar’s statements. The defense moved to exclude such testimony, arguing thatthe State could not prove them by a preponderance of the evidence. Defense counsel furtherargued thatallowing uncorroborated claims ofpastdomesticviolencewould be highly prejudicial and would be used for improper inferences as to Irias’ propensitytoward violence. The trial court excluded allegations of past sexual violence and violence against the children. However, the court did permit other broader allegations of ongoing domesticviolence to showthe “reasonablefearaspects ofboth charges.” The court reminded the prosecutor in the case to discuss these limitations with Salazar. Attrial, however, Salazar did testify to past violence by Irias against the children and sexual violence against her. The court issued a curative instruction after the testimony about conduct toward the children. The judge was able to intervene during thetestimony regarding sexual violence, preventing thetestimony from being interpreted from Spanish to English forthejury. The jury convicted Irias as charged and the court vacated the felony harassment charge based on merger. Irias now appeals, arguing the court improperlyadmitted evidence ofprior bad acts and thatthe impropertestimony by Salazardeprived him of his rightto a fairtrial.

-3-No. 78858-2-1/4 ANALYSIS

I. Admission of404(b) Evidence of Prior Bad Acts We review atrial court’s decision to admit orexclude evidence forabuse of discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). However, “[wje review the trial court’s interpretation of ER 404(b) de novo.” State
v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). “Discretion is abused if it is exercised on untenable grounds or for untenable reasons.” State v. Thanci, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). “Failure to adhere to the requirements of
an evidentiary rule can be considered an abuse of discretion.” Foxhaven, 161 Wn.2d at 174. The appellant bears the burden of proving an abuse of discretion occurred. State v. Ashley, 186 Wn.2d 32, 39, 375 P.3d 673 (2016). “Generally, evidence of a defendant’s prior misconduct is inadmissible to demonstrate the accused’s propensity to commit the crime charged.” Fisher, 165 Wn.2d at 744. However, ER 404(b) allows prior misconduct to be admitted for other purposes, such as proofofa victim’s state of mind. ki. To admitevidence ofothercrimes orwrongs underWashington law, the trial court must (1) identifythe purpose forwhich the evidence is sought to be introduced, (2) determine whether the evidence is relevantto prove an element ofthe crime charged and (3) weigh the probative value of the evidence against its prejudicial effect. Additionally, the party offering the evidence of prior misconduct has the burden of proving by a preponderance ofthe evidence that the misconduct actually occurred. State v. Loucih, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) (internal citations omitted). The party seeking to introduce the evidence has the burden of establishing thethree stepsand thatthe misconductactuallyoccurred. Ashley, 186

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Wn.2d at 39. The court must conduct this inquiry on the record and provide a limiting instruction ifthe court admits the evidence. ki. Here, the State brought a pretrial motion to admit certain ER 404(b) evidence and Irias opposed. The court heard argument on this and other matters while addressing motions in limine ofthe parties priorto seating a

### jury. Irias argues thatthetrial courterred in admitting the priorbad actevidence ofprevious domestic violence because the statefailed to provethatthe prior incidents had occurred, the evidence was not relevantto an element ofassault, and the risk of prejudice from the evidence substantially outweighed its potential probative value. Irias argues that the courtwas only provided with statements by the victim without any corroborating evidence and that this was insufficient to support the court’sfinding thatthe prioractsdid occur. However, thedefense cites no authority to support their claim that the court’s finding in this regard was improper absent such corroboration. We review the court’s determination as to whether the prior misconduct was proven by a preponderance of the evidence for abuse of discretion. ki. at40. Both parties cite to Ashley, in which a court admitted evidence of the defendant’s prior domestic violence against the victim under ER 404(b). kI. at40. The court was provided with the victim’s testimony describing instances of domestic violence by Ashley between 2000 and 2008, along with a police report from 2004. j.çj~ at 40-41. Ashley did not present any evidence to refute the allegations and the court ultimately determined the state had proven the prior abuse had occurred by a preponderance ofthe evidence.

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Here, the trial courtwas provided with Salazar’s statements to police in the
course ofthe investigation ofthe present case in which she mentioned the prior incidents, her petition for a protection orderwhich discussed previous abuse, the audio ofthe protection order hearing that included testimony from Salazar about priorviolence, and the audio ofthe prosecutor’s interviewwith herfor purposes of preparing the instant case. Additionally, the record contains a pretrial exhibit wherein Irias verbally acknowledges thatviolence existed in the relationship. On review, we must determine whether the trial court’s findings are supported by evidence thatwas submitted in the record; specificallythatthe State demonstrated by a preponderance of the evidence that prior acts of domestic violence occurred. Here, that standard is metwith the evidence described above. This is further bolstered bythe fact that Irias provided statements indicating some abuse had occurred and provided no evidence refuting the victim’s claims of prior abuse.Next, we address Irias’s argument that the prior misconduct was not relevantto the charged crimes. “Evidence is relevant if it has a tendencyto make the existence of a fact that is of consequence to the determination of the action
more or less probable than itwould bewithoutthe evidence.” State v. Maciers, 164 Wn.2d 174, 184, 189 P.3d 126 (2008). The two charges in this case were assault in the second degree and felony harassment. The relevant subsection under which lrias was charged with assault states “[a] person commits the crime of assault in the second degree when he or she assaults another with a deadly weapon.” Thejury instruction defining assault in this case stated:

-6-No. 78858-2-1/7 [a]n assault is an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury. Thejury instruction forthe felony harassment charge was as follows: [a] person commits the crime of harassmentwhen he orshe, without lawful authority, knowingly threatens to cause bodily injury immediately or in the future to another person and when he or she bywords orconduct placesthe person threatened in reasonablefear thatthe threatwill be carried out and the threatto cause bodily harm consists ofathreatto kill the threatened person oranother person. Here, the trial court allowed testimony regarding prior domestic violence by Irias against Salazar “to showthe reasonable fear aspect of both charges.” Prior acts of domestic violence would have some relevance to both counts submitted to the jury. The defense citesto Maqersforthe proposition that it is improperfora court to admit alleged priorviolence to supportthe reasonable fear ofan alleged victim, butthatopinion is a pluralityand thefacts aredistinguishable. See 164Wn.2d 174. Maqers involved a recanting victim along with an admission ofa separate priorbad act which did not involve the victim. Id. at 178-79. Here, Salazar did not recant and all ofthe prior bad acts at issue directly involved her. The trial court did not abuse its discretion in determining that the prior acts of domestic violence were relevant to both charges as theytend to increase the probabilitythat Salazarwas reasonablyfearful as to both counts. Irias also asserts that the trial court abused its discretion in reaching its determination as to which prior acts were substantially more prejudicial than probative. The trial court in this case was very specific as to what it determined

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would be admissible and inadmissible on this prong of the ER 404(b) analysis. The trial court weighed the evidence and determined that any references to abusing the children would not be allowed in, nor would anything about sexual violence or coercion. The court determined that it would allow testimony as to domestic violence by Irias against Salazar generally, an assault incident by Irias that caused Salazarto miscarry, and Salazar’s claim that Irias would assault her if she did not do what he wanted. Irias argues that the evidence was not particularly probative since anyone would be fearful if a machete was brandished at them. However, when this argumentwas considered during the ER404(b) argument, the court noted thatthe evidence of the history of physical violence and physical threats “is sufficiently probative ofreasonablefear” and was allowed in. Thiswas despitethe reasonable conclusion that the specific act with the machete underlying the assault in the second degree charge would result in fearfor most people. The trial court did not abuse its discretion in the analysis and ruling to admitthe specific prior bad acts. Irias argues that Ashley is instructive here, but it does not advance his position. 186 Wn.2d 32. In Ashley, the court admitted the victim’s testimony regarding priordomesticviolence. j~ at38. The courtadmitted itfortwo purposes; to assess the victim’s credibility and to determinethe element ofconsent as to the unlawful imprisonment charge. j4. The Supreme Court rejected the claim thatthe evidence was properly allowed in for credibility purposes, but did find it properto prove the element regarding consent. ki. at 43-44. The court held that, “[i]t is unquestionably reasonable forthe trial courtto conclude that a domestic violence

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victim would continue to fear her tormentor, even years after the last incident of abuse.” ki. at45. The court in Ashleyexpresslyfound thatthe priorabuse was relevantto an elementofthe criminal allegation beforethe court. j~çj~ The courtwenton to explain thatdespite the defense’s general theorythatthe victim had “made up herstoryto avoid getting in trouble, there was no evidence in the record to suggest that [the victim’s] testimonywas untruthful.” k1. at 47. This led to the court’s determination that there was no need to introduce the domestic violence evidence to defend or bolster the victim’s credibility. j~ Since the evidence was properly admitted to prove an element ofthe crime, its admission for credibility purposes as well was determined to be harmless error. Ashley is not helpful for Irias. In his case, Salazar’s credibilitywas the main focusforthe defense. Their main defense theorywas that Salazar had fabricated the incident in orderto obtain immigration benefits. Though the court here did not admit the prior bad acts expressly for purposes of credibility analysis, given the theory of the case and the need for the State to prove the reasonable fear by Salazar, the court’s determination that past violence, excluding the more inflammatory allegations such as sexual violence and abuse ofchildren, does not constitute an abuse ofdiscretion. Though the defense claims that anyone would befearful ofa machete and the bad act evidencewas therefore unnecessary, this argument is not persuasive. In Maqers, our Supreme Court explained that when a defendant enters a not guilty plea, it puts the burden on the State to prove every element ofthe crime

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beyond a reasonable doubt. 164 Wn.2d at 183. The courtthere concluded itwas properto admitthe defendant’s priorbad actsto provethe victim’s reasonablefear of bodily injury. j~ The same is true here. The trial court engaged in the proper analysis on the record and considered arguments of counsel before admitting certain priorbad actevidence and excluding others. Wefind noabuse ofdiscretion
as to the ruling on admissibility of ER 404(b) evidence.
II. Statements byWitness in Violation of Pre-Trial Evidence Rulings Irias argues he was deprived of a fair trial due to a violation ofthe court’s pretrial rulings excluding certain priorbad actevidence. Though the briefing frames the argument as prosecutorial or witness misconduct, lrias appears to actually focus his argument on the violation ofthe pretrial ruling regarding limitation ofthe ER 404(b). The standard of review forthe trial court’s cure of irregularities, such
as impropertestimony, is abuse ofdiscretion. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172 (1992). Irias arguesthat intwo instances Salazarprovided testimony that violated the court’s order as to the ER 404(b) evidence that was addressed during motions in limine. The first piece oftestimony was when Salazar testified that Irias struck their children at times. Defense counsel objected and moved to strike and the court instructed thejuryto disregard the impropertestimony. The second instance was when Salazartestified about instances ofsexual coercion. However, since Salazar’s testimony was conveyed to the jury via a Spanish-to-English interpreter, the court actually realized she used the term “sexual relations” during her Spanish-language testimony and stopped the interpreter before that information could be presented to the jury in English.

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Outside of the presence ofthe jury, the court had the interpreter provide the full statement in English and then instructed the prosecutorto havefurtherdiscussion with Salazaraboutthe pretrial rulings. When thejury returned, theywere asked if anyone understood Spanish. One juror said they knew a little Spanish and the court instructed thejury that that there is an “art of interpretation and translation”
so the jurors should “tune out” the Spanish to the extent they understood any words. lrias did not move for a mistrial, but now argues that the two instances of testimony in violation ofthe pretrial rulings deprived him ofa fairtrial. “To determine the prejudicial effect of an irregular occurrence during trial,
we examine the occurrence’s seriousness, whether it involved cumulative evidence, and whether the trial court properly instructed the jury to disregard it.” State v. Thomison, 90 Wn. App. 41, 46, 950 P.2d 977 (1998). Here, the seriousness of the occurrence is significant since the court made very specific findings as to which prior bad acts were substantially more probative than prejudicial and the impropertestimonywas directly in violation ofthe court’s order excluding it. j~ at 46. However, we would note the first instance of improper testimony was much more serious than that ofthe untranslated testimony due to the abilityforthejury to comprehend the content ofthe improper statement. The testimony was not cumulative since no otherevidence of abuse ofthe children or sexual coercion was offered. However, atrial court is providedwith widediscretion to cure trial irregularitiesfor improperwitness statements. Post, 118Wn.2d at620. Here, the error as to the Spanish-language portion of testimony about sexual misconduct was sufficiently cured since the jury was never provided with

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the English interpretation ofthe statement and nojuror indicated they were fluent in Spanish when asked by the court. The comment regarding abuse toward the children was stricken by the court and the court then again provided a curative instruction. We presume the jury followed the court’s instruction. Thompson, 90 Wn. App. at 47. Irias has not provided evidence that the instructions ofthe court to disregard thetestimonywere notfollowed. Ultimately, we mustaskwhetherthetwo improperstatements, when viewed against the background of all the evidence, were so prejudicial that Irias was denied a fairtrial. j.çj. This is not the case. One statement was not conveyed to the jury in a language they could easily understand and the other comment regarding violence toward the children, though clearly improper and interpreted into English, wasfollowed bya curative instruction. Further, given thatthe defense
was focused on challenging credibility of Salazar’s testimony regarding the allegation as whole, and the theory that the possibility of obtaining immigration benefits incentivized herto fabricate this event, the problematic testimony did not prejudice Irias such that he was denied a fairtrial. We affirm.


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~ WE CONCUR: d 

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