State Of Washington, Respondent V. Roberto Sanchez-rodriguez, Appellant

COURT OF APi-ALS C
2013l:;a I! 	,';; 9^9
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
ROBERTO SANCHEZ-RODRIGUEZ,
a/k/a ROBERT CARLOS SANCHEZ,
Appellant.
No. 67844-2-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 11, 2013
Leach, C.J. — Sanchez-Rodriguez appeals his convictions for two counts
of assault. 	He claims that the court abused its discretion in admitting prior threat
evidence, 	a 	witness 	impermissibly 	commented 	on 	his 	guilt, 	and 	the 	court
impermissibly commented on the evidence. 	We disagree and affirm.
FACTS
Based 	on 	allegations that 	Sanchez-Rodriguez threatened 	his 	ex-wife,
Jewell Jefferson, and her boyfriend, Derrick Sampson, with a pickaxe, the State
charged him with two counts of second degree assault.
Before trial, the State moved to admit evidence that Sanchez-Rodriguez
had threatened to kill Jefferson in an earlier incident. 	Over defense objections,
the trial court admitted the evidence under ER 404(b) to show that Jefferson
reasonably feared the charged threat would be carried out.
At trial, the evidence established that Sanchez-Rodriguez and Jefferson
were married ten years, had three children, and divorced in September 2010.

No. 67844-2-1 / 2
In late March 2011, Jefferson decided to spend a week in Vancouver,
B.C., with her boyfriend, 	Derrick Sampson. 	Sanchez-Rodriguez asked 	if he
could stay at Jefferson's home with their children while she was gone. 	Jefferson
said he could, but only if he refrained from drinking around the children. 	While
Jefferson was in Canada, Sanchez-Rodriguez texted and called her repeatedly
and twice texted "no boyfriends."
On April 1, 2011, Sampson and Jefferson were on their way home when
Jefferson's daughter called. Jefferson learned that Sanchez-Rodriguez had been
drinking, was driving her truck, and was headed to a nearby casino. 	Sampson
and Jefferson drove to the casino to look for her truck. 	As they parked in the
casino 	parking lot, 	Sanchez-Rodriguez drove 	up and 	parked 	directly behind
them.
Jefferson got out and told Sanchez-Rodriguez that she wanted her truck
back and accused him of drinking. 	Sanchez-Rodriguez smelled of alcohol and
looked intoxicated. 	When Jefferson told him she was not leaving the truck with
him and would drive him home, Sanchez-Rodriguez became angry and yelled at
her. 	He eventually got in the truck with Jefferson and slammed the door. 	They
then followed Sampson's vehicle to Jefferson's home.
According to Jefferson, Sanchez-Rodriguez argued with her during the
drive and repeatedly told her that she did not need a boyfriend. 	At one point, he
slapped her hard on the back.

No. 67844-2-1 / 3
This 	argument 	escalated 	as 	they 	pulled 	into 	Jefferson's 	driveway.
Sanchez-Rodriguez said he had found a job and asked if he could move in with
her and the children. 	When Jefferson said no, he punched her on the left side of
the face with his fist.
Jefferson said she was calling the police and jumped out of the truck. 	As
she reached for her cell phone, 	Sanchez-Rodriguez told her 	not to call and
grabbed a pickaxe that was sitting nearby. 	He raised it above his shoulders with
both hands and started walking toward her. 	Jefferson testified that she thought
he was going to kill her because he had threatened to kill her before.
Sampson 	arrived 	shortly 	after Jefferson 	and 	heard 	her tell 	Sanchez-
Rodriguez, 	"No, 	don't 	do 	this." 	Sanchez-Rodriguez 	repeated, 	"No, 	no
boyfriends." 	He quickly reached Jefferson. 	She stuck her head inside the truck
for protection. 	Sanchez-Rodriguez then shoved her hard in the back with the
pickaxe.
Sampson said, "That's enough now." 	Sanchez-Rodriguez turned toward
Sampson and, holding the pickaxe up with both hands, said, "This is what you
want." 	Sampson was afraid that Sanchez-Rodriguez was going to swing the
pickaxe at him.
According to Jefferson, Sanchez-Rodriguez walked fast towards Sampson
with the axe raised. 	When Sanchez-Rodriguez made a downward movement
with the axe, Sampson caught it. 	Sampson gained control of the pickaxe and

No. 67844-2-1 / 4
threw it out of the way. 	Sanchez-Rodriguez then hit Sampson with his fist, and
the men fought. 	During the fight, Sanchez-Rodriguez hit Sampson in the mouth,
causing his lip to bleed. 	The men stopped fighting when Jefferson told them she
had called the police.
Whatcom County Sherriff's Deputy Rod Cadman arrived and spoke with
Jefferson and Sampson. 	Jefferson was upset, shaking, and on the verge of
tears. 	Neither 	Jefferson 	nor 	Sampson 	appeared 	to 	have 	been 	drinking.
Sanchez-Rodriguez, 	on 	the 	other 	hand, 	smelled 	strongly 	of 	alcohol, 	had
bloodshot, watery eyes, and swayed back and forth while talking to Cadman.
After waiving his Miranda1 	rights, Sanchez-Rodriguez told Cadman that
Jefferson yelled at him on the drive from the casino and started hitting him when
they arrived at the house. 	When he got out of the truck, Sampson ran over and
started hitting and kicking him. 	He then grabbed the pickaxe and swung it in self-
defense. 	He did not know why Jefferson and Sampson attacked him. 	He said
nothing to Cadman about Jefferson threatening to cut him off from his children.
Deputy Cadman also 	made the following observation 	about Sanchez-
Rodriguez's demeanor:
[PROSECUTOR]: 	Other than the symptoms of alcohol consumption
that 	you 	described 	before, 	how 	would 	you 	characterize 	the
Defendant's demeanor when you went and talked to him?
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).

No. 67844-2-1 / 5
[WITNESS]: 	He was surprisingly calm.
[PROSECUTOR]: Why do you say surprisingly?
[WITNESS]: 	Well, given ... he 	had just described that he had
been . . . attacked, kicked and punched, you know, by two other
people, and he described an attack that was violent enough where
he picked up a pickaxe to defend himself. 	Yet in talking to him, I
would expect him to be upset over something like that, and he was
surprisingly calm.
[PROSECUTOR]: 	Did he remain calm as you took him to jail?
[WITNESS]: 	Yes.
Sanchez-Rodriguez testified that he had memory problems stemming from
a head injury he suffered in a car accident in 2006. 	He denied drinking alcohol
before the 	incident and denied hitting or slapping Jefferson. 	Contrary to his
statements to Deputy Cadman, he testified that Jefferson was not yelling during
the ride to the house and that they did not fight about the truck. 	Instead, he
testified that Jefferson told him she was going to take the children to Canada and
that she was going to call the police. 	When he asked why she would call the
police, she said she did not want him to see the children. 	He claimed that she
said this repeatedly.
After they got out of the truck, Jefferson pushed him. Sampson then came
from behind the truck, and they started fighting. 	Sanchez-Rodriguez could not
say who started the fight. 	He remembered getting struck with something and
trying to get up from the ground. 	He did not remember if he hit Sampson. 	He

No. 67844-2-1 / 6
testified that his memory was not completely clear as to what happened that
night.
A jury convicted Sanchez-Rodriguez as charged. 	He appeals.
DECISION
Sanchez-Rodriguez first 	contends the trial 	court abused 	its 	discretion
under ER 404(b) in admitting his prior threat to kill Jefferson.2 We disagree.
ER 404(b) prohibits the admission of "[e]vidence of other crimes, wrongs,
or 	acts... to 	prove 	the 	character of 	a 	person 	in order to 	show 	action 	in
conformity therewith." 	Such evidence is admissible for other purposes, however,
if it is relevant to a material issue.3 	In this case, the State's assault theory was
that Sanchez-Rodriguez put Jefferson and Sampson in reasonable apprehension
and imminent fear of bodily injury when he raised the pickaxe in a threatening
manner. 	The 	trial 	court 	admitted 	Sanchez-Rodriguez's 	prior 	threat 	"to
demonstrate [Jefferson's] state of mind, her reasonable fear." 	This was a proper
basis to admit the evidence.4
2 We 	review 	a 	trial 	court's 	admission 	of 	evidence 	for 	an 	abuse 	of
discretion. 	State v. Maqers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
3 ER 404(b); State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984).
4 State v. Barraqan, 102 Wn. App. 754, 759, 9 P.3d 942 (2000) (victim's
knowledge of prior violent acts was admissible to show that victim reasonably
feared defendant would carry out threats); State v. Ragin, 94 Wn. App. 407, 411-
12, 	972 	P.2d 	519 	(1999) 	(defendant's 	prior 	violent 	acts 	admissible 	to
demonstrate reasonableness of victim's fear following defendant's threats).

No. 67844-2-1 / 7
Sanchez-Rodriguez contends, 	however, 	that the trial court abused 	its
discretion because it relied on and misinterpreted the pluarlity decision in State v.
Magers.5 	He argues that only four justices approved the use of prior misconduct
evidence to show reasonable fear of bodily injury and that the concurring justices
rejected that holding. 	This argument is flawed in several respects. 	First, the trial
court expressly distinguished Magers and relied instead on "other prior cases."6
Second, 	we 	recently 	rejected 	Sanchez-Rodriguez's 	reading 	of 	the 	Magers
concurrence, 	holding that the 	concurring justices "did 	not 	disagree with the
proposition in the lead opinion that admission of evidence of the victim's state of
mind would be proper under the right circumstances. 	Rather, they disagreed
with that opinion's application of that proposition to the facts of that case."7 	We
ultimately upheld the admission of ER 404(b) evidence "to prove [the victim's]
state of mind, a necessary element for the assault charge."8 	We adhere to our
decision in State v. Johnson.9
Sanchez-Rodriguez next contends Deputy Cadman's testimony that he
was "surprisingly calm" was an impermissible opinion on guilt that denied him a
5 164 Wn.2d 174, 189 P.3d 126 (2008).
6See Barragan. 102 Wn. App. at 759; Ragin. 94 Wn. App. at 411-12.
7State v. Johnson, 	Wn. App. 	, 289 P.3d 662, 667 (2012).
8 Johnson, 289 P.3d at 666.
9 	Wn. App. 	, 289 P. 3d 662 (2012). 	Given our conclusion, we
need not reach the State's alternative arguments that the prior threat evidence
was also admissible to 	rebut Sanchez-Rodriguez's self-defense claim and to
assess Jefferson's credibility.

No. 67844-2-1 / 8
fair trial. 	He concedes this contention is raised for the first time on appeal. 	He
argues, 	however, 	that 	the 	testimony 	was 	manifest 	constitutional 	error 	and
therefore reviewable under RAP 2.5(a). 	Alternatively, he argues that his counsel
was 	ineffective for 	failing 	to 	object to 	the testimony below. 	There was 	no
manifest error or ineffective assistance of counsel.
A witness may not offer an opinion 	regarding the defendant's guilt or
veracity because such testimony invades the province of the jury.10 	Opinion
testimony from a police officer raises additional concerns because "an officer's
testimony often carries a special aura of reliability."11 	But opinion testimony that
is based on 	inferences from the evidence, does not comment directly on the
defendant's guilt 	or 	veracity, 	and 	is otherwise 	helpful to 	the jury, 	does 	not
generally constitute an opinion on guilt.12
Here, Deputy Cadman's statement that he was "surprised" by Sanchez-
Rodriguez's calm demeanor was not a direct comment on his guilt or veracity,
was based on inferences from the evidence, and was arguably helpful to the jury
given the nature of the charges and Sanchez-Rodriguez's claim of self-defense.
10 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007); State v.
Rafav, 168 Wn. App. 734, 805, 285 P.3d 83 (2012), petition for review filed, No.
87802-1 (Wash. Aug. 27, 2012).
11 Kirkman, 159 Wn.2d at 928.
12 Rafav, 168 Wn. App. at 806; City of Seattle v. Heatlev, 70 Wn. App.
573, 578, 854 P.2d 658 (1993). 	In evaluating alleged opinion testimony, courts
may consider the type of witness, the specific nature of the testimony, the nature
of the charges, the type of defense, and the other evidence before the trier of
fact. 	State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008).
-8-

No. 67844-2-1 / 9
Washington 	courts 	have 	repeatedly found comparable comments admissible
when, 	as 	here, 	they were based 	on factual 	observations that supported the
witness's conclusion.13
Sanchez-Rodriguez's reliance on State v. Haga14 is misplaced. 	The Haga
court 	held 	it 	was 	error 	to 	admit 	an 	ambulance 	driver's 	opinion 	that 	the
defendant's calm reaction to his wife's death was "unusual."15 	But in Haga, the
State attempted to qualify the witness, an ambulance driver, as an expert on the
bereavement response. 	Here, the State did not attempt to cast Deputy Cadman
as an expert of any kind. 	Haga is thus inapposite.16
13 See, e.g., State v. Stenson, 132 Wn.2d 668, 724, 940 P.2d 1239 (1997)
(paramedic's testimony that 	he 	was 	"surprised" 	that defendant was 	victim's
husband was not improper); State v. Craven, 69 Wn. App. 581, 585, 849 P.2d
681 (1993) (emergency room worker properly testified that defendant's behavior
was unusual); State v. Allen, 50 Wn. App. 412, 416-19, 749 P.2d 702 (1988)
(police officer properly testified that defendant's sobbing did not look genuine or
sincere); Rafav, 168 Wn. App. at 807-08 (testimony that defendant's grin "kind of
shocked" an officer could not reasonably be construed as direct comment on guilt
or veracity; rather, "the comments were primarily an attempt to describe the
defendants' demeanor").
14 8 Wn. App. 481, 507 P.2d 159 (1973).
15 Haga, 8 Wn. App. at 490-92.
16 See Allen, 	50 Wn. App. at 416-19 (holding that officer's testimony
regarding defendant's reaction to her husband's death was properly admitted and
distinguishing Haga on ground that ambulance driver in that case purported to
testify 	as 	an 	expert 	on 	bereavement); 	Stenson, 	132 	Wn.2d 	at 	722-24
(paramedic's surprise that defendant was victim's husband was admissible and
was 	distinguishable from Haga 	because paramedic was 	not testifying 	as an
expert and was not testifying based on assumptions that were unsupported by
his direct observation).
-9-

No. 67844-2-1/10
In short, admission of Detective Cadman's testimony was not error, let
alone manifest constitutional error, and defense counsel was not ineffective for
failing to object to it.
Sanchez-Rodriguez also contends the court made several impermissible
comments on the evidence. Again, we disagree.
Under article 4, section 16 of the Washington Constitution, judges are
prohibited from conveying to the jury their personal attitudes toward the merits of
the case or instructing the jury that facts have been established as a matter of
law.17 	A judge's comment violates this provision only if the judge's personal
attitudes are "'reasonably inferable from 	the nature or manner of the court's
statements.'"18
Sanchez-Rodriguez contends the court commented on the evidence when
it orally instructed the jury as follows:
[Y]ou may hear testimony from this witness about prior incidents
between her and the Defendant. 	I'm allowing this evidence, but
you may consider it only for the purpose of evaluating her state of
mind, 	the 	victim's 	state 	of 	mind. 	You 	must 	not 	consider the
evidence for any other purpose.
According to Sanchez-Rodriguez, the court's reference to the "victim's" state of
mind revealed its belief that he was guilty. 	This inference cannot reasonably be
17 State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
18 State v. Elmore, 139 Wn.2d 250, 276, 985 P.2d 289 (1999) (quoting
State v. Carothers, 84 Wn.2d 256, 267, 525 P.2d 731 (1974)).
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No. 67844-2-1/11
drawn from the court's single use of the word "victim's."19 	And even if such an
inference could be drawn, the court's single, fleeting 	reference would, 	in the
context of the entire trial and the court's instructions, 	be 	harmless beyond a
reasonable doubt.20
Sanchez-Rodriguez also contends the court commented on the evidence
during the following portion of closing arguments:
[PROSECUTOR]: 	Now, what else do we know? Counsel talked
about concussions 	and 	head 	injury. 	There's 	been 	no 	medical
evidence in the case at all. 	All we have for a story about the fact,
about the Defendant's memory loss is, is him—
[DEFENSE 	COUNSEL]: 	Objection. 	That 	mischaracterizes 	the
testimony.
THE COURT: 	I don't believe so.
[DEFENSE COUNSEL]: 	Jewell Jefferson specifically stated that he
suffered from a memory loss as a result of the accident.
THE COURT: 	The jury has heard the testimony.
(Emphasis added.) 	The emphasized remark did not comment on the evidence.
Trial courts have the right to give reasons for their rulings on objections, and
19 See State v. Alger, 	31 	Wn. App. 244, 248-49, 640 P.2d 44 (1982)
(noting that "use of the term 'victim' has ordinarily been held not to convey to the
jury the court's personal opinion of the case").
20 See Alger. 31 Wn. App. at 249 (single reference to "the victim" by the
trial judge did not prejudice the defendant's right to a fair trial). 	The trial court
instructed 	the 	jury 	orally 	and 	in writing 	that 	they 	were 	the 	sole judges 	of
credibility, that the law prohibited the court from commenting on the evidence in
any way, that the court would not intentionally comment on the evidence, and
that the jury 	must completely disregard 	any 	remark that appeared 	to 	be a
comment on 	the 	evidence. 	We 	presume 	the 	jury 	follows 	the 	trial 	court's
instructions. 	State v. Sivins, 138 Wn. App. 52, 61, 155 P.3d 982 (2007).
-11 -

No. 67844-2-1/12
such reasons will not be treated as comments on the evidence so long as they
do not reveal the trial court's attitude toward the evidence.21 	The trial court in this
case merely conveyed its memory of the testimony and then indicated that the
matterwas for the jury to decide. 	This was proper.22
Sanchez-Rodriguez contends the court also commented on the evidence
by making 	its disagreement with 	the 	defense apparent during the following
exchange:
[DEFENSE 	COUNSEL]: 	[A]nd when 	Jewell 	Jefferson 	testified,
there 	was 	some, 	a 	lot 	of 	emotion 	at 	different 	points 	in 	her
testimony, but the most emotional she got wasn't when she was
recounting the incident, wasn't when she was talking about how
afraid she was that he was going to kill her because he had that
axe. It was when she was confronted with her lies. 	That's when
she broke down.
[PROSECUTOR]: 	Objection. 	That's improper argument to use that
particular word.
THE COURT: 	Inconsistencies would be a better term.
[DEFENSE 	COUNSEL]: 	Your 	Honor, 	I 	would 	submit 	it's
appropriate argument.
21 See State v. Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557 (1999).
22 See State v. Cernv, 78 Wn.2d 845, 855-56, 480 P.2d 199 (1971) (no
comment on the evidence when, in response to objections, court said, '"I think
the chain of evidence has been established'"); State v. Swan. 114 Wn.2d 613,
657-58, 790 P.2d 610 (1990) (ruling that court would '"accept [proposed expert]
as an expert on that subject'" was not comment on the evidence because it
offered no opinion on credibility, sufficiency, etc., of expert's testimony); State v.
Nesteby, 	17 Wn. App. 	18, 22, 	560 P.2d 364 (1977) (ruling that "[s]he hasn't
testified to that. 	I don't want to comment on the evidence; it's up to the jury to
remember" was not comment on the evidence; court merely corrected counsel's
recollection of testimony and added that it was up to jury to remember).
-12-

No. 67844-2-1/13
THE COURT: 	The jury will disregard that.
[DEFENSE COUNSEL]: 	You will decide if it was a lie, whatever, if
she was confronted with 	her glaring omissions, 	when 	she was
confronted with her inconsistencies, that's when she broke down.
(Emphasis added.) 	Read 	in context, 	this 	remark was about appropriate or
inappropriate 	language 	in 	closing 	argument 	and 	would 	not 	reasonably 	be
understood by the jury as a comment on whether Jefferson lied. 	This conclusion
is supported by the fact that defense counsel immediately proceeded to argue,
without objection or comment, that the jury would decide "if it was a lie."
Finally, Sanchez-Rodriguez claims the court commented on the evidence
during the following portion of the prosecutor's rebuttal argument:
[PROSECUTOR]: 	I would also ask you to, yes, please listen to
Deputy Cadman. Trust Deputy Cadman. Deputy Cadman said this
man's 	behavior 	was 	not 	consistent 	with 	what 	he 	said 	had
happened.
Counsel—
[DEFENSE 	COUNSEL]: 	Objection. 	That's—that
mischaracterizations [sic] the testimony.
THE COURT: 	I think it's what the deputy said.
[DEFENSE COUNSEL]: 	Is the Court saying that's what the deputy
said?
THE COURT: 	I said it's an argument that can be made based on
what the deputy said.
[DEFENSE COUNSEL]: 	I maintain my objection.
(Emphasis added.) 	Again, when read in context, the challenged remark was not
a 	comment on 	the evidence. 	The court's initial remark merely indicated the
13

No. 67844-2-1 /14
court's memory of the testimony. 	It did not comment on the merits of the case or
the veracity of a witness. 	To the extent there could be any impropriety in the
initial remark, the court and counsel clarified that the court was only saying that
the challenged argument was the 	prosecutor's 	interpretation of the deputy's
testimony. 	In addition, any comment on the evidence was cured by the court's
instructions.23
Given our conclusion that Sanchez-Rodriguez has not established error,
his claim of cumulative error fails as well.
Affirmed.
<uui^fii 	c. 	y
WE CONCUR:
23 See Alger, 31 Wn. App. at 249; Silvins, 138 Wn. App. at 61; Elmore,
139 Wn.2d at 276 (any comment on the evidence was cured by instruction to
disregard same); Egede-Nissen v. Crystal Mountain. Inc., 93 Wn.2d 127, 141,
606 	P.2d 	1214 	(1980) 	(isolated 	judicial 	comment 	"may 	be 	cured 	by 	an
instruction").
- 14-