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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                             FILED
                                                                        JUNE 14, 2012
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION THREE

STATE OF WASHINGTON,                                      No.  29910-4-III
                                                )
                      Respondent,               )
                                                )
              v.                                )
                                                )
ANDRES BARRAGAN ESTRADA,                        )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Korsmo, C.J.  --  Andres Barragan Estrada argues that his conviction for first 

degree child rape was tainted by the prosecutor's questioning of a witness and her closing 

argument.  The trial court denied two motions for a mistrial.  We conclude the court did 

not abuse its discretion and affirm.

                                            FACTS

       M.B., age 10 at the times relevant to this case, lived with her mother and 

occasionally visited her father.  Mr. Estrada is her father's cousin, although M.B. refers to 
him as her "uncle."1  The incident that resulted in this charge occurred after Halloween 

       1 Report of Proceedings at 157. 

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State v. Estrada

2008, during the first week of November.

       M.B. and her then six-year-old sister visited their father at his automobile repair 

shop.  M.B. went to his adjoining trailer and sat on a bed watching television.  She 

testified that her "uncle" came in, sat on the other bed, and watched television for awhile.  

He then told her to remove her pants.  She refused; he removed her pants and underwear.  

He then engaged in sexual intercourse with M.B. over her objections until her sister 

entered the trailer.  He got up and M.B. ran into the bathroom.  Telling her father that her 

stomach hurt, M.B. and her sister went back to their mother's house.

       M.B. told her mother about the rape several months later when she learned that she 

might have to go live with her father, whom Mr. Estrada frequently visited.  The doctor 

who examined M.B. was unable to complete the examination due to her reticence.  The 

prosecutor agreed in limine that she would not ask the doctor to discuss delayed reporting 

of sexual assaults.

       During trial, defense counsel successfully objected to a series of questions of a 

detective and then moved for a mistrial based on prosecutorial misconduct in attempting 

to elicit hearsay statements concerning M.B.'s identification of her assailant.  The trial

court denied the motion, and then permitted the prosecutor to ask the detective if his 

investigation had ever developed evidence of other suspects.

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State v. Estrada

       In closing argument, the prosecutor reminded jurors that they had discussed during 

voir dire reasons why children might delay reporting incidents of sexual assault.  Defense 

counsel unsuccessfully objected to the statement.  The prosecutor then told jurors that 

adults often delay reporting.  Defense counsel successfully objected to that statement.  

The defense subsequently moved for a mistrial, arguing that the prosecutor had engaged 

in misconduct by violating the motion in limine and discussing facts not in evidence.  The 

court denied the motion; it reasoned in part that the instructions given the jury to 

disregard the lawyer's remarks that are unsupported by evidence would suffice.

       The jury convicted Mr. Estrada as charged.  A midrange sentence was imposed.  

Mr. Estrada then timely appealed to this court.

                                         ANALYSIS

       This appeal challenges the prosecutor's questioning and argument statement on 

two separate bases.  We will address jointly both the claim of misconduct and the claim 

of error in the mistrial rulings.  We conclude there was no prejudicial error and, thus, the 

trial court did not abuse its discretion by denying the motions.

       Well settled law governs this review.  When inadmissible testimony is put before 

the jury, the trial court should declare a mistrial if the irregularity, in light of all of the 

evidence in the trial, so tainted the proceedings that the defendant was deprived of a fair 

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State v. Estrada

trial.  State v. Weber, 99 Wn.2d 158, 164, 659 P.2d 1102 (1983).  A ruling on a motion 

for a mistrial is reviewed for an abuse of discretion.  Id. at 166.  Discretion is abused 

when 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).

       A similar standard of establishing prejudicial error applies when it is alleged that a 

prosecutor erred.  "To prevail on a claim of prosecutorial misconduct, a defendant must 

show," (1) "the prosecutor's comments were improper," and (2) "the comments were

prejudicial."  State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008).  In analyzing 

prejudice, the comments are not examined in isolation; rather, the entire context of the 

trial is considered, including the evidence and instructions to the jury.  Id. at 28.  When 

assessing error in closing argument, courts afford prosecutors "wide latitude" in arguing 

inferences from the evidence presented.  State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 

1239 (1997).

       The appellant has not established prejudicial error in either of the cited incidents.  

He successfully objected on hearsay grounds and prevented the detective from answering 

any of the three challenged questions; the prosecutor subsequently asked a question in a 

proper form and obtained the answer she was seeking.  No inadmissible evidence was 

presented to the jury in the course of the challenged questions that may or may not have 

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State v. Estrada

elicited hearsay answers if they had been answered.  Similarly, defense counsel 

successfully challenged the foundation for one of the detective's answers.  However, the 

question asked by the prosecutor (whether the detective knew where the father was at the 

time of the assault) could have been (and subsequently was) properly answered ("no") 

and was not an improper question.  These examples do not establish prejudicial error by 

the prosecutor.

       The challenged statement from the closing argument similarly does not establish 

prejudicial error.  The defense initially and unsuccessfully challenged the prosecutor's 

comment about what had been discussed during voir dire.  Contrary to the argument at 

the mistrial motion, there was no violation of the order in limine.  The order prohibited 

the prosecutor from inquiring of the doctor about delayed reporting.  It did not rule the 

topic off limits totally.

       The second defense challenge to the statement that adults too delay reporting of 

sexual assaults was sustained on the basis that there was no evidence in the record on the 

topic. Without deciding whether there needs to be evidence to support such a statement, 

we can easily state that the comment was not prejudicial error.  The court sustained the 

objection and the prosecutor went no further with the topic.  Whether adults delayed 

reporting of sexual assaults had no special significance in this case of a child victim and 

                                               5 

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State v. Estrada

this brief statement did not prejudice the defendant at trial.

       Neither of the claimed bases for prosecutorial error establishes prejudicial error.

       The challenges to the trial court's rulings on the two mistrial motions similarly

fail.  First, for the reasons just stated, there was no showing of prejudicial error.  Second, 

the trial court was confident -- as are we -- that the alleged errors were more than 

adequately addressed by the court's instruction to the jury to disregard statements by 

counsel that were not supported by the record.  This was a very tenable reason to deny 

the second mistrial request.  There was no abuse of discretion.

       Neither of the challenged matters justifies the granting of a new trial.  The trial 
court did not err in denying the mistrial motions.2

       The conviction is affirmed.

       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, C.J.

       2 Mr. Estrada also filed a statement of additional grounds.  He contends that trial 
counsel was ineffective, the evidence was insufficient because there was only one witness 
against him, and that the jury was prejudiced against him.  He cites no relevant authority 
in support of his claims and does not allege facts establishing how his counsel erred, so 
we will not further address these claims.  RAP 10.10(c).

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State v. Estrada

WE CONCUR:

______________________________              _________________________________
Brown, J.                                   Kulik, J.

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