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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 65976-6-I
                    v.                      )
                                            )       UNPUBLISHED OPINION
GALMESA SHUBE ELEMO,                        )
                                            )
                      Appellant.            )       FILED: June 11, 2012
________________________________)

       Dwyer, J.  --  Galmesa Elemo appeals from his convictions of child 

molestation in the first degree and child molestation in the third degree arising 

from two incidents involving separate victims.  He contends that his 

constitutional rights were violated when the prosecutor argued during closing

that Elemo had tailored his testimony to conform to the evidence adduced at 

trial.  Elemo did not object to this argument.  Given that the prosecutor properly 

confronted Elemo regarding the issue of tailoring during cross-examination, 

Elemo has failed to demonstrate an entitlement to appellate review of this claim.  

Because Elemo's other contentions are also without merit, we affirm. 

No. 65976-6-I/2

                                            I

       In 2005, 15-year-old N.A. arrived in the United States from Ethiopia.  N.A., 

who could neither speak nor read English, was pregnant. Near the end of her 

pregnancy, N.A.'s stepfather, Galmesa Elemo, began to tutor her in English at 

the home they shared with N.A.'s mother, Asha Gobana.  

       After N.A. gave birth, Elemo began to sexually touch her during her

lessons. On several occasions, Elemo touched N.A.'s breasts under her 

clothing.  When Elemo became increasingly more insistent and forceful, N.A. 

spoke to her mother about Elemo's behavior.  Gobana sided with Elemo, and 

N.A. thereafter left the home with her infant son. 

       In 2009, 11-year-old M.G. was living in the home of Gobana's mother,
Nazifo Mohamed.1  On September 19, M.G. and Mahamed spent the night at 

Gobana's house.  M.G. slept downstairs in a bedroom that she shared with 

Gobana's daughter, H.I.  

       During the night, M.G. awoke.  As she began to look for Mahamed, Elemo

stopped her in the hallway.  Elemo pulled M.G. into a downstairs bedroom.  He 

removed M.G.'s nightgown and told her to get onto the bed.  Elemo then lay

down beside M.G., and rubbed his penis against her vagina. M.G. felt wetness 

on her upper thigh.  Elemo told M.G. that he would kill her if she told anyone

about the incident.

       M.G. thereafter returned to her bedroom and told H.I. what had happened. 

       1 M.G.'s biological mother lived in Africa.  Her father was deceased.  

                                          - 2 - 

No. 65976-6-I/3

M.G. also later described the encounter to 12-year-old E.N., a close friend and 

relative. On September 26, M.G. told Mahamed about the incident, and 

Mahamed took M.G. to Seattle Children's Hospital for a physical examination.  

M.G. was treated in the emergency room by a multidisciplinary team.  M.G. told 

social worker Deborah King that Elemo had touched her "private parts" with his 

"hands and his private parts."  

       Elemo was thereafter charged with child molestation in the first, second,

and third degrees (alternative counts) based upon the 2009 incident involving 
M.G.,2 and child molestation in the third degree based upon the 2005 incident 

involving N.A.  At trial, Gobana testified for the defense.  She told the jury that 

Mahamed and M.G. had not stayed overnight at her house on September 19.  

She further testified that Elemo had slept only in her bed, and that she would 

have noticed if he had been gone for more than five minutes.  Gobana also 

denied that her daughter, N.A., had ever told Gobana that Elemo had molested 

her. 

       Gobana's daughter, H.I., also testified for the defense.  H.I. claimed that 

Mahamed had told her of a secret plot to frame Elemo for rape in 2006 or 2007. 

H.I. explained that, as part of this plan, M.G. was supposed to claim that she was

raped.  H.I. admitted that she had told the police that Mahamed and M.G. had 
spent the night at Gobana's house in September 2009,3 but she denied that this 

       2 This count was charged in the alternative because there was dispute as to M.G.'s date 
of birth.  It was left to the jury to resolve this factual issue.  
       3 H.I. gave a statement to police shortly after the molestation of M.G. was reported.  

                                          - 3 - 

No. 65976-6-I/4

had actually occurred.  Gobana's son, J.A., also testified that neither Mahamed

nor M.G. had spent the night at Gobana's house during September 2009.

       Elemo testified on his own behalf.  Elemo denied that he had ever 

inappropriately touched N.A. or M.G.  He further denied that he had threatened

to kill M.G.  However, in contrast to the testimony of other defense witnesses, 

Elemo testified that he had not spent the night at Gobana's home on September 

19.  Instead, he told the jury that he had been praying at a mosque throughout 

the night. The defense rested after Elemo's testimony. 

       Trial did not resume until six days later due to defense counsel's brief 

hospitalization.  Defense counsel then asked to reopen his case to allow 

additional testimony from Elemo. The trial court permitted the defense to do so. 

In contrast to his prior testimony, Elemo now told the jury that he had, in fact,

returned to Gobana's home on the night of September 19.  He testified that he 

returned from the mosque at approximately 11:30 p.m.  Consistent with the 

testimony of the other defense witnesses, Elemo now testified that it was M.G. 

who was not at Gobana's home on the night of the alleged incident.

       The jury convicted Elemo of child molestation in the first degree based 

upon the 2009 incident involving M.G. and child molestation in the third degree 

based upon the 2005 incident involving N.A.  The trial court sentenced Elemo

within the standard range. 

       Elemo appeals.

                                          - 4 - 

No. 65976-6-I/5

                                           II

       Elemo first contends that the prosecutor violated his rights under article I, 

section 22 of the Washington Constitution by arguing during closing that Elemo

tailored his testimony to match that of other defense witnesses. We disagree.

       As an initial matter, Elemo misstates the record in making this claim.  

Elemo asserts that the prosecutor did not confront him regarding the subject of 

tailoring prior to arguing during closing that Elemo had crafted his testimony to 

conform to the evidence at trial. However, contrary to Elemo's assertion, the 

prosecutor specifically confronted Elemo during cross-examination regarding

this subject.  The record demonstrates that, after Elemo reopened his case

following the six-day break in the trial, Elemo retook the witness stand and 

modified his story regarding the September 2009 incident involving M.G.  In 

contrast to his prior claim that he had not been at Gobana's house that night, 

Elemo instead asserted that he had, in fact, returned to the house by 11:30 p.m.  

He then told the jury, in conformance with the testimony of other defense 

witnesses, that it was M.G. who had not been at Gobana's home on the night in 

question. 

       Following this testimony by Elemo, the prosecutor posed the following 

questions on cross-examination:

       So Mr. Elemo, you were here when your wife Asha testified, right?  

       . . .

       And you heard her say, [M.G.] wasn't at the house, so this couldn't 

                                          - 5 - 

No. 65976-6-I/6

       have happened, right?  You heard her testify to that?

       . . .

       And J.A. is living at your home?

       . . . 

       You heard him testify, well, she wasn't there, [M.G.]?

       . . . 

       And then you got up and testified and you got it wrong, didn't you?

       . . .

       You said, I wasn't there?

Having noted the discrepancy between Elemo's original testimony and that of 

the other defense witnesses, the prosecutor then focused on the intervening

time between this testimony and Elemo's subsequent decision to reopen his 

case and modify his story:

       So Mr. Elemo, you've had almost a week to think about this, 
       haven't you?

       . . .

       So you've had almost a week to think about what you were going to 
       say this morning, right, how you were going to answer these 
       questions?

       . . .

       How many days and nights have you had to think about how you 
       are going to answer these questions, answer me that?  How many 
       days?  Count them, count them up.

       . . .

                                          - 6 - 

No. 65976-6-I/7

       We're talking about your first saying that you weren't there, now 
       you're saying you were there at the house.  I'm asking you how 
       many days and nights did you have to think about that?

       Elemo cannot contend that this questioning by the prosecutor during 

cross-examination was improper.  As our Supreme Court has explained, "where 

the credibility of the defendant is key, it is fair to permit the prosecutor to ask 

questions that will assist the finder of fact in determining whether the defendant 

is honestly describing what happened."  State v. Martin, 171 Wn.2d 521, 536, 

252 P.3d 872 (2011). Accordingly, where a defendant's own testimony suggests 

tailoring, "the State [does] not violate article I, section 22 by posing questions 

during cross-examination that [are] designed to elicit answers indicating whether 
[the defendant] tailored his testimony."  Martin, 171 Wn.2d at 536.4 Where a 

defendant has changed his or her testimony in accordance with information that 

is learned at trial, such conduct opens the door to cross-examination regarding 

tailoring.  See State v. Hilton, 164 Wn. App. 81, 96, 261 P.3d 683, 272 P.3d 852

(2011).

       Here, Elemo opened the door to questions regarding tailoring by altering

       4 Article I, section 22 affords a defendant the right to "appear and defend in person," the 
right to "testify in his own behalf," and the right to "meet the witnesses against him face to face."  
Wash. Const. art. I, § 22. Our Supreme Court has determined that these provisions provide a 
defendant with greater protection against arguments of tailoring than do the corresponding 
provisions of the Sixth Amendment.  Martin, 171 Wn.2d at 535-36; cf. Portuondo v. Agard, 529 
U.S. 61, 64, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000) (holding that generic accusations of 
tailoring, lodged for the first time during closing argument, do not violate the Sixth Amendment).  
Nevertheless, the court has determined that "suggestions of tailoring . . . during cross-
examination [are] compatible with the protections provided by article I, section 22."  Martin, 171 
Wn.2d at 535-36. 

                                          - 7 - 

No. 65976-6-I/8

his account of the night of the incident following a six-day break in trial 

proceedings. The modified version of events described by Elemo conformed to 

the testimony of the other witnesses for the defense.  Accordingly, it was proper 

for the prosecutor to cross-examine Elemo regarding these changes in his story 

and his opportunities to prepare those changes.  See Hilton, 164 Wn. App. at 

98.  Elemo cannot contend that such questioning violated his rights under article 

I, section 22.   Martin, 171 Wn.2d at 536.

       Nor is Elemo entitled to appellate review of his contention that his 

constitutional rights were violated by the prosecutor during closing argument.  

Elemo did not object to the prosecutor's remarks at trial.  In general, we will not 

entertain a claim of error that was not raised in the trial court unless the claim 

involves a manifest error that affects a constitutional right. RAP 2.5(a)(3).  The 

appellant must demonstrate both that the purported error is of constitutional 

magnitude and that the error is "manifest."  State v. Gordon, 172 Wn.2d 671, 

676, 260 P.3d 884 (2011). A "manifest" error is one that is "so obvious on the 

record that the error warrants appellate review."  State v. O'Hara, 167 Wn.2d 91, 

100, 217 P.3d 756 (2009). As our Supreme Court has explained, the appellant 

must "'show how the alleged error actually affected the [appellant]'s rights at 

trial.'" O'Hara, 167 Wn.2d at 98 (alternation in original) (quoting State v. 

Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007)).  The appellant must 

make a "plausible showing . . . that the asserted error had practical and 

                                          - 8 - 

No. 65976-6-I/9

identifiable consequences in the trial of the case."  Kirkman, 159 Wn.2d at 935.

       Here, Elemo has made no effort to demonstrate how the alleged error 

during closing argument was manifest.  Given that Elemo changed his testimony

to better conform his story to the testimony of other defense witnesses, we find it

difficult to imagine that the jury would not have inferred tailoring without any

suggestion by the prosecutor.  Moreover, as our courts have long held, a 

prosecutor is entitled to draw reasonable inferences from the evidence admitted 
at trial and to argue those inferences to the jury.5 See, e.g., State v. Hoffman,

116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Here, because the prosecutor 

properly questioned Elemo regarding the changes in his testimony during cross-

examination, the prosecutor's argument during closing was reasonably drawn 

from the evidence admitted at trial. Hoffman, 116 Wn.2d at 95; see also Hilton, 

164 Wn. App. at 98 (determining that no error occurred during closing argument 

where prosecutor directly tied argument of tailoring to defendant's testimony 

during cross-examination).  Accordingly, Elemo cannot meet his burden of 

showing that the alleged error had practical and identifiable consequences in his 

trial.  Elemo has not demonstrated an entitlement to appellate review of this 

claim of error.

                                           III

       Elemo next contends that the trial court erred by declining to instruct the 

       5 Elemo does not assert a claim of prosecutorial misconduct.  Nevertheless, we note that 
where a defendant does not object to the prosecutor's remarks, reversal is unwarranted unless 
the prosecutor's conduct was so "flagrant and ill intentioned that no curative instructions could 
have obviated the prejudice."  State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).  

                                          - 9 - 

No. 65976-6-I/10

jury to ignore an out-of-court statement by M.G. that identified Elemo as the 

perpetrator of the crime. Because the trial court properly instructed the jury 

regarding the permissible use of M.G.'s statement, we disagree. 

       In criminal trials involving sex offenses, the State may present evidence 
that the alleged victim complained to someone after the assault.6  State v. 

Ferguson, 100 Wn.2d 131, 135-36, 667 P.2d 68 (1983); State v.

Alexander, 64 Wn. App. 147, 151, 822 P.2d 1250 (1992). Pursuant to the "fact 

of complaint" doctrine, such evidence is "not hearsay because it is introduced for 

the purpose of bolstering the victim's credibility and is not substantive evidence 

of the crime."  State v. Bray, 23 Wn. App. 117, 121, 594 P.2d 1363 (1979); see 

also State v. Pugh, 167 Wn.2d 825, 842, 225 P.3d 892 (2009) ("The fact that a 

complaint was made was considered to be original evidence, not hearsay.").

However, "[e]vidence of the details of the complaint, including the identity of the 

offender and the specifics of the act, is not admissible." Alexander, 64 Wn. App. 

at 151. Such details are admissible only if allowed by other rules of evidence.

       Here, 12-year-old E.N. testified at trial that M.G. told her that "Galmesa

had raped her."  Elemo contends that M.G.'s statement, which the State had 

moved in limine to admit pursuant to the fact of complaint doctrine, exceeded the 

limitations of the doctrine by including Elemo's identity.

       6 This rule is grounded in the feudal assumption that, in forcible rape cases, the absence 
of evidence of a timely complaint creates an inference that the victim's testimony has been 
fabricated.  See State v. Bray, 23 Wn. App. 117, 121-22, 594 P.2d 1363 (1979). Thus, to 
overcome the inference, "it became essential to the state's case-in-chief to prove affirmatively 
that [the victim] made timely hue and cry."  State v. Murley, 35 Wn.2d 233, 237, 212 P.2d 801 
(1949).

                                         - 10 - 

No. 65976-6-I/11

       Elemo is correct that his identity was not admissible as substantive 

evidence pursuant to the fact of complaint doctrine. Alexander, 64 Wn. App. at 

151.  Nor does the State contend that Elemo's identity -- as conveyed in M.G.'s 

statement -- was admissible pursuant to any other rule of evidence.  Accordingly, 

it would be impermissible for a jury to convict Elemo based upon a determination 

that the matters asserted in M.G.'s statement were true; this evidence could not 

be used to find that it was Elemo who had molested M.G.  Elemo is also correct 

that in the absence of a limiting instruction, the risk existed that the jury might 

use M.G.'s statement for this improper purpose.

       Here, however, following defense counsel's timely objection to E.N.'s 

testimony, the trial court issued the following instruction to the jury:

       Ladies and gentlemen, I want to give you an instruction at this time. 
       Evidence concerning a statement made to this witness by [M.G.] 
       has been admitted to show that a complaint was made.  It is not to 
       be considered by you for the truth of the matter asserted.

Counsel did not request any additional instruction regarding this matter.  

       This instruction was both proper and sufficient.  The instruction obviated

any potential misuse of M.G.'s statement by the jury. ER 105 provides that 

"[w]hen evidence which is admissible . . . for one purpose but not admissible as 

to . . . another purpose is admitted, the court, upon request, shall restrict the 

evidence to its proper scope and instruct the jury accordingly."  Here, the trial 

court's instruction informed the jury that M.G.'s statement could not be 

considered for the improper purpose of establishing Elemo's identity or the 

                                         - 11 - 

No. 65976-6-I/12

details of the offense. Rather, M.G.'s statement could be used only to 

demonstrate the existence of a timely complaint, thus bolstering M.G.'s
credibility and refuting the inference of fabrication.7 The jury is presumed to 

follow the trial court's instructions.   State v. Lough, 125 Wn.2d 847, 864, 889 

P.2d 487 (1995).  Because the trial court properly instructed the jury regarding 

the limited purpose for which M.G.'s statement could be used, there was no 

error.
       Affirmed. 8

       7 Elemo was identified as the perpetrator by other properly admitted evidence at trial.  A 
separate statement by M.G. identifying Elemo was admitted without objection as a statement 
made for the purpose of medical diagnosis or treatment.  ER 803(a)(4).  Statements to medical 
providers that attribute fault to a member of the victim's immediate household may be pertinent 
to treatment because such statements are relevant to preventing further injury to the victim.  
State v. Ackerman, 90 Wn. App. 477, 482, 953 P.2d 816 (1998).  
       Moreover, there was no contention at trial that a different person was responsible for the 
molestation of M.G.  Instead, Elemo argued that M.G. had fabricated her story.  Even where no 
limiting instruction has been given, we have determined that the improper admission of a 
perpetrator's identity is harmless in such circumstances.  Ferguson, 100 Wn.2d at 136.
       8 Elemo asserts a variety of claims in two separate statements of additional grounds.  
Elemo asserts:  (1) a violation of his right to speedy trial; (2) an impermissible ex parte 
communication in which the judge informed the jury of scheduling changes; (3) a violation of the 
right to due process where, Elemo asserts, several witnesses gave false testimony leading to his 
conviction; (4) the improper admission of lay opinion testimony; (5) the improper qualification of 
the State's experts; (6) prosecutorial misconduct; (7) a violation of the Fourth Amendment based 
upon the search of Elemo's bedroom; (8) a discovery violation based upon the admission of 
several photos at trial; (9) ineffective assistance of counsel; and (10) a violation of double 
jeopardy based upon the existence of a concurrent dependency proceeding during Elemo's
criminal trial.  Having reviewed each of Elemo's contentions, we determine that they are without 
merit.

                                         - 12 - 

No. 65976-6-I/13

We concur:

                                         - 13 -