Opinion
No. 64569-2-I.
January 18, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-03601-9, Cheryl B. Carey, J., entered December 7, 2009.
Affirmed in part and remanded by unpublished opinion per Dwyer, C.J., concurred in by Grosse and Spearman, JJ.
Juan Mesina appeals his conviction for felony violation of a no-contact order, arguing that prosecutorial misconduct deprived him of a fair trial. We disagree and affirm, but remand for correction of a scrivener's error on the judgment and sentence.
I
On June 28, 2009, Alejandra Ocon called police to the Don Juan Mobile Home Park in Auburn at the request of her sister-in-law, Josefina Castro-Rios. Ocon reported that she and Castro-Rios had seen Juan Mesina entering Casotro-Rios's home despite the fact that court orders prohibited Mesina from coming within 500 feet of her residence. Police responded and found Mesina in Castro-Rios's bedroom.
The State charged Mesina with felony violation of a court order, alleging that he had at least two prior convictions for violating protection orders. See RCW 26.50.110(1), (5).
At trial, Auburn Police Officer Derick Anderson testified that he and Officer Boyd Arneson arrived at Castro-Rios's address in response to the emergency call and knocked on the door repeatedly. Ocon and Castro-Rios then arrived and confirmed that they had seen Mesina enter the home. Castro-Rios agreed to unlock the door to allow the officers to search the home. Officer Anderson found Mesina standing alone in a bedroom. The officers arrested Mesina.
Detective Randy Clark testified that he interviewed Mesina the next day with the assistance of a Spanish interpreter. Mesina admitted to Detective Clark that he knew about the no-contact orders but went to Castro-Rios's house to see their children and check on some work that had been done by a repairman he had hired. He told Detective Clark that he knew Castro-Rios was not home at the time based on the repairman's report. Detective Clark identified a December 2008 King County Superior Court order entitled "Order Prohibiting Contact Conditions of Sentence (Domestic Violence)," and forbidding Mesina from contacting Castro-Rios and providing that he "shall not knowingly enter, remain or come within 500 ft (distance) of" her residence until December 12, 2013. Detective Clark also identified a December 2007 "Domestic Violence No-Contact Order" of the Auburn Municipal Court with similar provisions, and stating that "the court finds that the defendant has been charged with, arrested for, or convicted of a domestic violence offense, and further finds that to prevent possible recurrence of violence, this Domestic Violence No-Contact Order shall be entered." The trial court admitted both orders as evidence.
The parties stipulated that "on the date of June 28, 2009, Mr. Mesina had at least two prior convictions for violation of a no contact order issued under the provisions of RCW chapter 10.99."
Mesina testified that he was feeling very ill that day because he had not taken his blood pressure medicine and asked a friend to drive him to the shop where he had been staying. He fell asleep in the friend's car and got out when the car stopped. He claimed that he was so tired and confused when he got out that he did not realize that he was walking into Castro-Rios's house. Mesina testified that he lay down on the bed to sleep and was later awakened by the police knocking on the door. By the time he stood up and put on his shoes, the police were in the bedroom. Mesina also testified that he still felt ill when he spoke to Detective Clark the next day and that he just wanted to end the interview so he could go back to sleep.
During closing, the prosecutor argued that the State had proven every element of the crime and continued as follows:
Some of you may be sitting here thinking okay, fine, sure, we'll check off all those. Yeah, okay, fine, he did it. He knew about the order. But why should I really care? Maybe he — maybe this wasn't that bad of a deal. So what if he did it? He was over there. He was at her house. And it seems innocuous enough, it seems harmless enough. As far as we know, she wasn't even there. What's the big deal why he's there? Even if he did do it, why should we hold him accountable and why should we convict him of a crime for it?
That's a good question. Keep in mind, folks, that this is a domestic violence offense. The dynamics of domestic violence are such that they warrant no contact orders. This is a man who has been convicted on multiple occasions of domestic violence offenses.
[Defense Counsel]: Objection.
COURT: Overruled.
[Prosecutor]: He has prior domestic violence convictions and a judge, multiple judges just like this, made decisions that he was not allowed to have further contact with his wife. Domestic violence no contact orders are put in place for a reason. Do not be so foolish to think that this was innocuous or harmless. This is a man with history here. And there's reasons why those orders are in place. And we need to keep that in mind.
Domestic violence no contact orders are not optional. They are not discretionary. The defendant does not get to choose. He does not get to choose whether or not he feels like following a no contact order that day. He lost that right when he was convicted.
You folks get a chance to hold him accountable. You folks get a chance to say you know what, those orders are in place for a reason; you don't get to just ignore them.
There is no reasonable doubt that the State proved this case beyond a reasonable doubt. In opening, I asked you to listen. Upon listening, the State asks you to find the defendant guilty as charged.
After trial, the jury found Mesina guilty as charged. Mesina appeals.
II
Mesina contends that the prosecutor referred to prior bad acts outside of the evidence in the record and in violation of ER 404(b) and unfairly appealed to the passion or prejudice of the jury. Prosecutorial misconduct arises when the State refers to evidence outside of the record or makes bald appeals to passion or prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). However, in closing argument, the prosecutor has wide latitude to draw reasonable inferences from the evidence admitted and to express such inferences to the jury.State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). We review allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given.State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
"Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request. The failure to object to a prosecuting attorney's improper remark constitutes a waiver of such error unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."
State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995) (quoting Hoffman, 116 Wn.2d at 93). Reversal is required "only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict."State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991).
Mesina fails to establish trial court error warranting reversal. First, contrary to Mesina's claim, there was evidence before the jury that Mesina had been convicted of domestic violence offenses. Each order admitted into evidence referred to a domestic violence charge or conviction as the basis for prohibiting Mesina from contacting Castro-Rios. And Mesina admitted in the stipulation that he had two prior convictions for violating no-contact orders. Second, by referring generally to "domestic violence convictions" and the "dynamics of domestic violence" the prosecutor did not suggest or imply, in violation of ER 404(b), that the jury should convict Mesina of the crime charged because he had committed some particular prior act of violence against Castro-Rios. Third, Mesina failed to request a curative instruction. Fourth, the trial court instructed the jury that the attorneys' arguments were not evidence and that its consideration of the evidence regarding Mesina's prior convictions was to be limited to its determination of the element of the charged crime requiring at least two prior convictions for violating court orders. Finally, the prosecutor's comments here, even if improper, do not rise to the level of flagrant misconduct. Cf. State v. Perez-Mejia, 134 Wn. App. 907, 915, 143 P.3d 838 (2006) (reversing conviction where the prosecutor urged the jury to convict "on a goal of sending a message to gangs or taking part in a mission to end violence, rather than returning a verdict based upon a consideration of the evidence properly admitted in the case").
ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Mesina also seeks remand to correct the date of the crime listed on the judgment and sentence. The undisputed evidence at trial established that the crime occurred on June 28, 2009, rather than December 12, 2009, as listed on the judgment and sentence. The State concedes that the scrivener's error should be corrected. We accept the State's concession and remand for correction of the date of the crime on the judgment and sentence.
Affirmed and remanded.
We concur: