Opinion
No. 27360-1-III
10-27-2011
STATE OF WASHINGTON, Respondent, v. ELIAS SALGADO, Appellant.
UNPUBLISHED OPINION
Korsmo, J. — A jury convicted Elias Salgado of two counts of second degree child rape and one count of first degree child molestation. His appeal raises several issues. We reject his trial-related challenges, but remand for a new hearing on whether probable cause existed for the court's pretrial order for Mr. Salgado to provide a DNA (deoxyribonucleic acid) sample. The court should also clarify a sentencing condition.
FACTS
In 1995, Mr. Salgado entered into an oft-times turbulent relationship with Eulalia Lopez, a woman who already had two children, C and G. The couple produced three more children over a ten-year period in which Mr. Salgado intermittently lived with Ms. Lopez. There were frequent incidents of domestic violence between the couple, as well as between Mr. Salgado and the children. When he resided with the family, Mr. Salgado often disciplined the children.
When she was six years old, C reported to her mother that she was uncomfortable with the way Mr. Salgado hugged her. Ms. Lopez confronted him, but he denied any inappropriate behavior. Thereafter, Ms. Lopez regularly asked C if Mr. Salgado was touching her inappropriately. C consistently denied any such touching occurred.
Violence between the adults often led to separation; Ms. Lopez would let Mr. Salgado return after he promised to behave better. After violence over the Thanksgiving weekend in 2005, Mr. Salgado left and Ms. Lopez promised her children she would not let him return. Nonetheless, a few weeks later she again permitted him to stay at the house. This action upset C. She skipped school that Friday; the school reported to Ms. Lopez that C had been truant.
Ms. Lopez visited the school Monday and confirmed that C had been truant the previous Friday. She took C from school and told officials that she was unsure when C might return. Ms. Lopez had previously threatened to send C to live with family in Walla Walla if she skipped school. When the two left the school, C told her mother that Mr. Salgado had been sexually abusing her. Ms. Lopez then confronted Mr. Salgado and called the police.
Several charges of child rape and child molestation were filed. At a pretrial hearing, the State moved for an order to obtain a DNA sample from Mr. Lopez. Defense counsel told the court that the State's representation about the evidence was "accurate," but did not agree to the sample. Supplemental Report of Proceedings (March 29, 2006) at 4. The court entered the order and a sample was provided and tested. The defense did not challenge the use of DNA evidence at trial.
An initial trial was halted when two jurors were approached by people desiring to give them information about the case. At the second trial, C testified that Mr. Salgado had begun abusing her when she was five years old. She described molestation incidents; as she got older there were also different incidents of intercourse. Among the various incidents, she described Mr. Salgado using two sex toys on her. On another occasion, she testified that the two had intercourse on a mattress placed on the floor; he ejaculated on the mattress.
Testing confirmed that both C's DNA and Mr. Salgado's DNA were present on the two sex toys. DNA testing of the mattress found too little female DNA to draw a conclusion. The testing identified Mr. Salgado as a possible contributor.
The defense argued the case on the theory that C had lied about the abuse in order to avoid going to Walla Walla and have the violent Mr. Salgado permanently removed from the home. The jury disagreed and convicted Mr. Salgado on three charges. The trial court imposed high-end standard range minimum sentences.
Mr. Salgado then timely appealed to this court. This court initially considered the case without oral argument. Prior to a decision being issued, counsel sought permission to obtain and file another transcript. That motion was granted. Counsel then obtained permission to file a supplemental brief raising a challenge to the DNA sample order. We directed both parties to brief the topic and again considered the case without oral argument.
ANALYSIS
The original briefing addressed challenges to evidentiary rulings, the prosecutor's closing argument, and a condition of the judgment and sentence. We will initially address the trial rulings and then address the supplemental DNA issue.
Evidentiary Rulings. Mr. Salgado challenges two different evidentiary rulings. First, he contends the trial court erred by granting the State's motion in limine to prohibit questioning of Ms. Lopez about sexual abuse in her own past. Second, he argues the trial court erred in sustaining hearsay objections to his own testimony.
A trial court's decisions to admit or exclude evidence are entitled to great deference and will be overturned only for manifest abuse of discretion. State v. Luvene, 127 Wn.2d 690, 706-707, 903 P.2d 960 (1995). Discretion is abused where it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The first argument presents questions of relevance and unfair prejudice. Evidence is relevant if it makes "the existence of any fact that is of consequence to the determination of the action more probable or less probable." ER 401. Relevant evidence is generally admissible at trial, but can be excluded when its value is outweighed by other considerations such as misleading the jury or wasting time. ER 402, ER 403. ER 403 authorizes trial courts to exclude otherwise relevant evidence if the probative value of the evidence is significantly outweighed by the danger of unfair prejudice or other interference with the fact-finding function of the jury. Carson v. Fine, 123 Wn.2d 206, 222-223, 867 P.2d 610 (1994).
Mr. Salgado argues evidence that Ms. Lopez had been sexually abused in the past was relevant to establish why she kept asking C if she was being abused. Thus, the initial question is whether evidence concerning Ms. Lopez's motivation for questioning C was relevant. Defense counsel argued that he wanted to ask the question because it made Ms. Lopez's repeated questioning of C more likely true. Report of Proceedings (RP) at 119-121. Noting that the repeated questioning of C by her mother was not a contested issue because everyone agreed that it had occurred, the trial court concluded that the issue of Ms. Lopez's victimization as a child was not probative evidence. RP at 121.
Both Ms. Lopez and C testified that it occurred.
The basis for this ruling was tenable. The defense wanted to offer the evidence to try to support an uncontested fact. It also was of dubious utility to prove that fact. The trial court noted that the question of why Ms. Lopez was asking regularly would be permissible, but it opened up the door to the possibility that Ms. Lopez would testify she did not trust Mr. Salgado, an answer he would be bound by. RP at 121. Counsel understandably did not pursue that topic in questioning Ms. Lopez.
Impeachment on a collateral matter is improper. State v. Aguirre, 168 Wn.2d 350, 362, 229 P.3d 669 (2010); State v. Oswalt, 62 Wn.2d 118, 120-121, 381 P.2d 617 (1963). A matter is collateral if it does not itself relate to the subject matter of the trial. Aguirre, 168 Wn.2d at 362.
Mr. Salgado has not established that the ruling was erroneous. The trial court did not abuse its discretion.
The second issue presents the question of whether some stricken testimony constituted hearsay. "Hearsay" is an out-of-court statement presented "to prove the truth of the matter asserted." ER 801(c). Mr. Salgado argues that the statements he offered were not made to prove the truth of the statements and were improperly classified as hearsay.
The primary problem with this argument is that in nearly every instance he cites, the hearsay statement was not put before the judge, nor was there any explanation for why the statement would be relevant and nonhearsay, and thus admissible. In several of the cited instances defense counsel did not take issue with the objection and even instructed the witness not to repeat what had been stated by someone else. E.g., RP at 564. Our rules of evidence require a party to object to evidence in order to preserve a challenge for appeal. ER 103(a)(1). Appellate courts generally will not review claims of error that were not presented to the trial court. RAP 2.5(a). With respect to alleged evidentiary errors at trial, the rule is even more specific. Appellate courts will only consider the specific challenges that were raised at trial. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). As explained in Guloy:
As to statement (d), counsel objected but on the basis that it was not proper impeachment nor was it within the scope of redirect. A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review.Id. (citation omitted).
Here, most of the prosecutor's hearsay objections were not contested. The defense did not present argument that the statements, which generally were not disclosed, amounted to nonhearsay. Mr. Salgado cannot now claim otherwise when he did not present a sufficient record to allow the argument to be considered. Additionally, the noted instances all involved alleged out-of-court statements by persons who testified at trial. If the defense truly wanted the statements in evidence, the simple method was simply to ask the witnesses about the statements.
About the only instance where the issue was actually preserved involved testimony from Mr. Salgado that Ms. Lopez had lied to her brother about being too busy to see him. RP at 1587-1588. Even assuming this testimony had some relevance, it does not constitute reversible error. Appellant even admits that none of these rulings individually was prejudicial, but the only prejudice was in the totality of the rulings. Given that most of these objections were not preserved, and Mr. Salgado had alternative means of admitting the evidence, we find no prejudicial error.
Appellant has not shown that the court erred in striking the testimony. He also has not shown that he was prejudiced by the rulings. There was no error.
Closing Argument. Mr. Salgado next contends that the prosecutor erred by asking the jury to hold him "accountable" during her closing argument. The defense had moved pretrial to prohibit use of that word in argument, but the trial court determined that use of the word "accountable" did not amount to misconduct.
The general rule is that a prosecutor can properly draw reasonable inferences from the evidence admitted at trial and argue those inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Moreover, a prosecutor has "wide latitude" in arguing inferences from the evidence presented. State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A prosecutor is not allowed to make improper remarks that appeal to the jury's passions. State v. Reed, 102 Wn.2d 140, 684 P.2d 699 (1984).
Mr. Salgado argues that because the defense offered significant "other bad acts" evidence (domestic violence and harsh discipline) by the defendant in order to establish C's motive for lying about sexual abuse, use of the word "accountable" diverted the jury's attention from the charged crimes to the defendant's uncharged other acts. We disagree.
First, there is nothing inherently prejudicial about the word "accountable." Mr. Salgado appears to read the word as if it means the jury should convict if the evidence shows he has done anything wrong in his life. The word simply does not carry that connotation. Second, the prosecutor's argument here was expressly tied to the charged crimes. She recited the evidence that supported the verdicts she was seeking and asked the jury to hold the defendant accountable by returning guilty verdicts. The argument was tied to the charged crimes, not the uncharged bad behavior that the defense introduced.
The jury's job was to determine whether or not Mr. Salgado committed the child rapes and molestation he was accused of committing. Nothing in the closing arguments suggested that the prosecutor asked the jury to convict because Mr. Salgado was a bad person who was violent and abusive toward his family. The argument is without merit.
The prosecutor's closing argument was not improper.
DNA Swab. Subsequent to the original briefing in this appeal, the Washington Supreme Court issued its ruling in State v. Garcia-Salgado, 170 Wn.2d 176, 240 P.3d 153 (2010). There the court determined that a cheek swab for DNA must satisfy constitutional requirements for a warrant. Id. at 186. Specifically, a neutral magistrate must find probable cause to require the sample based on oath or affirmation, the place to be searched must be described with particularity, there must be a clear indication that the desired information will be found, the methodology must be reasonable, and the sample must be obtained in a reasonable manner. Id. Ideally, the trial court will reference the evidence it considered. Id. at 188. Because the record did not reflect what evidence the trial court had considered, the State did not establish that probable cause existed. The case was remanded for further proceedings. Id. at 188-189.
Both Garcia-Salgado and its immediate predecessor, State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006) (involving blood draw for DNA testing ordered under CrR 4.7), issued after trial in this case. As in Garcia-Salgado, the record here does not reflect whether the trial court found probable cause existed to obtain the cheek swab. It also does not clearly reflect what evidence the court considered, leaving this court, as in Garcia-Salgado, unclear whether probable cause existed at the time the order entered.As in Garcia-Salgado, a remand is in order.
The trial record amply demonstrates probable cause existed based on C's testimony about the sexual abuse and the location where it occurred, but the timing of the police investigation's confirmation that samples existed that could be tested is unclear.
Garcia-Salgado did not discuss the scope of its remand order, but discussion is appropriate under the facts here. At the time of the DNA swab in this case, CrR 4.7 had not been interpreted as requiring courts to make findings consistent with a search warrant before ordering defendants to give bodily samples. Arguably, defense counsel agreed that an evidentiary basis existed for issuing the order when he confirmed the prosecutor's assessment of the evidence. Whether the trial court was satisfied with the evidentiary basis for the order in light of that comment is unclear. Also, unlike Garcia-Salgado, defense counsel did not object to the sample here. Rather, counsel merely stated he was not agreeing to the order. While that disagreement was sufficient to preserve this issue for appeal, it did not provide the trial court any basis for assessing the correctness of the State's motion.
We conclude that the trial court on remand should again consider the State's request for a DNA swab. The evidence is limited to that existing at the time of the request, but the parties should present it in the proper form required by Garcia-Salgado. In the event that the court concludes that probable cause existed, the convictions are affirmed. If the court concludes that probable cause did not exist, it will determine whether or not the error in admitting the defendant's DNA results was harmless. If not harmless, a new trial should be ordered. Any party aggrieved by the trial court's ruling may appeal to this court.
The defense characterized the evidence as "highly ambiguous" in light of the fact that Mr. Salgado had used the mattress for many years. We agree that C's DNA evidence was the most probative—and that evidence is not challenged here. In light of the fact that none of the defendant's DNA was found mixed with hers, any error may well be harmless. We leave that determination to the trial court in the first instance since the parties have not yet briefed the topic.
We find support for this approach in State v. Robinson, 171 Wn.2d 292, 253 P.3d 84 (2011). There the court faced the situation of how to treat vehicle search cases that arose, but were on appeal, prior to the decision in Arizona v. Gant, 556 U.S. 332, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009). Robinson ruled that there was no need to preserve a search challenge when (1) a material change in constitutional law relevant to the case (2) overrules an existing interpretation (3) applies retroactively, and (4) the defendant's trial was completed prior to the new decision. 171 Wn.2d at 305. In such circumstances, the court determined that it was appropriate to allow the defendants to present a suppression motion to the trial court. Id. at 306. The court remanded the matters to the trial court to conduct suppression hearings, with the result of the cases dependent upon the outcome of the hearings. Id. at 307.
While Robinson does not present a perfect analogy because there was no overruling of existing precedent, we still believe the approach is useful here. There were no standards set forth for trial judges prior to Garcia-Salgado and it is questionable whether the issue presented by that case was actually raised below. In light of those concerns, we will allow the court to apply the Garcia-Salgado standards to the evidence that existed at the time of the motion.
It would be the height of formalism to reverse merely because the trial court and the parties did not anticipate the eventual standards required by Garcia-Salgado. At a new trial the State could again present its motion, this time in proper form, and the trial court may well grant its request for another swab. In that circumstance, nothing would be gained by retrying the case with the same admissible evidence presented in the first trial. Accordingly, we deem it appropriate for the trial court to first determine probable cause before deciding if a new trial is necessary.
The case is remanded for further proceedings consistent with this opinion. The trial court shall affirm or reverse the convictions in accord with its eventual ruling.
Sentencing Conditions. The last issue presented by this appeal is a challenge to the no-contact provisions of the judgment and sentence. Mr. Salgado contends that the conditions unconstitutionally limit his contact with his biological children.
Mr. Salgado also filed a Statement of Additional Grounds. We have reviewed his arguments and find them without merit. They will not be further addressed here.
The condition in question states: "No contact with his own children w/out their consent after age 18 & agreement of community custody officer." Clerk's Papers at 20. Mr. Salgado argues that he has not been determined to be a pedophile and that it therefore violates his right to parent his own children to prohibit him from contacting them. State v. Ancira, 107 Wn. App. 650, 27 P.3d 1246 (2001).
The provision is clearly ambiguous. On its face, the challenged sentence does not address contact with his children prior to their 18th birthdays. We can discern no reason why Mr. Salgado could contact the children while they are minors, but not when they are adults. The court's oral remarks clarify that the defendant was not to have any contact with the children while they are minors, but the written order does not say that.
Another provision precludes Mr. Salgado from being alone with any children younger than 16.
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Because we are already remanding the case for a new hearing, we also direct that the court clarify its meaning concerning contact with the defendant's biological children. The trial court should consider intervening case law that addresses restrictions on a parent's contact with his children who are not victims of a crime. See State v. Warren, 165 Wn.2d 17, 195 P.3d 940 (2008), cert. denied, 129 S. Ct. 2007 (2009). Such conditions must be "sensitively imposed" and are subject to stricter review. Id. at 32; accord In re Pers. Restraint of Rainey, 168 Wn.2d 367, 377, 229 P.3d 686 (2010). If there is need to cut off all contact with Mr. Salgado's children during their minority (as opposed to limiting physical visitation), the court should clarify its intent and explain its reasoning sufficiently to permit "stricter review." If there is an evidentiary basis for limiting defendant's contact with his children after they are of legal age, the court should identify that basis and explain the necessity for the order.
The matter is remanded for clarification and, if necessary, modification of the challenged sentencing condition.
Remanded.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Korsmo, J.
WE CONCUR:
Kulik, C.J.
Siddoway, J.