State Of Washington, Respondent, V. Jose Guzman-ambrocio, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JOSE GUZMAN-AMBROCIO,
Appellant.
No. 86104-2-I
DIVISION ONE
UNPUBLISHED OPINION
MANN , J. — Jose Guzman-Ambrocio appeals his convictions for rape of a child in
the first degree and two counts of child molestation in the first degree. He argues that
the State committed prosecutorial misconduct by inviting the jury to draw adverse
inferences from the exercise of his rights to appear, testify at trial, and be assisted by
counsel. We affirm.
I
In summer 2013, Guzman-Ambrocio met Jessica Gomez. At that time, Gomez
had one child, I.V., who was six years old. Guzman-Ambrocio and Gomez began a
romantic relationship and eventually had two children together.
In late 2015, the family moved into the home of Gomez’s father in Mount Vernon,
Washington. I.V. and her grandfather each had their own bedroom, and Guzman-
Ambrocio and Gomez shared the master bedroom with the other children.

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Guzman-Ambrocio and Gomez were briefly married, but the marriage was
dissolved in early 2017. Around the same time, Guzman-Ambrocio moved back to
Mexico.
In conversations with her mother and a forensic interviewer, I.V. disclosed that
when she was eight years old and her family lived in Mount Vernon, Guzman-Ambrocio
repeatedly touched her vulva under her underwear and penetrated her vagina with his
fingers.1
The State charged Guzman-Ambrocio with one count of rape of a child in the first
degree and two counts of child molestation in the first degree.
At trial, the State presented testimony from I.V., Gomez, a nurse practitioner, two
law enforcement officers, and a child forensic interviewer. Guzman-Ambrocio testified
on his own behalf, denying the allegations against him.
The jury found Guzman-Ambrocio guilty as charged, and the court imposed a
standard-range sentence. Guzman-Ambrocio timely appealed.
II
Under both the United States and Washington Constitutions, criminal defendants
have the right “to appear and defend in person,” “to testify in [their] own behalf,” to
confront witnesses against them, and to have the assistance of counsel in their defense.
U.S. CONST. amend. VI; W ASH. CONST. art. I, § 22.
During cross-examination, the following exchange took place between the
prosecutor and Guzman-Ambrocio:
1 Other instances of sexual abuse reportedly took place in Mexico, conduct for which Guzman-
Ambrocio was never charged because it was extraterritorial.

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[Prosecutor:] You were able to prepare for your testimony today, correct?
[Guzman-Ambrocio:] We all—well, yes, I do have to say the truth.
[Prosecutor:] You were able to prepare the best way to answer your
questions for today?
[Guzman-Ambrocio:] All I say is the truth and nothing but the truth.
[Prosecutor:] What I asked you was you were able to prepare for
testimony today?
[Guzman-Ambrocio:] No, because I didn’t know what the different
questions were going to be that I would be asked. All I’m doing is
answering the questions that you, ma’am, are asking.
[Prosecutor:] For [defense counsel] you were able to know those
questions ahead of time?
[Defense Counsel:] Your Honor, I’m going to object at this time. [The
prosecutor] is getting into communication between the attorney and client.
That is our privilege. She’s asked the same question over and over again.
She doesn’t appear to like the answer.
[Prosecutor:] I object to the comments from [defense counsel].
The Court: Respond to his objection, please.
[Prosecutor:] I’m not asking about the substance of the comments. I’m
asking about the defendant’s preparation.
The Court: Sustained, the objection is sustained.
Based on this exchange, Guzman-Ambrocio argues that the prosecutor
committed reversible misconduct by inviting the jury to draw adverse inferences from
the exercise of his Sixth Amendment and article I, section 22, rights to appear, testify at
trial, and be assisted by counsel.
To prevail on a claim of prosecutorial misconduct, the defendant must establish
that the prosecutor’s conduct was both improper and prejudicial in the context of the

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entire record and the circumstances at trial. State v. Thorgerson, 172 Wn.2d 438, 442,
258 P.3d 43 (2011).
A
Guzman-Ambrocio first argues that the prosecutor’s line of questioning was
improper because it amounted to a classic generic tailoring argument. We disagree.
“A claim of ‘tailoring’ alleges that the defendant conformed their testimony to the
evidence they observed while attending trial.” State v. Carte, 27 Wn. App. 2d 861, 871,
534 P.3d 378 (2023). Tailoring arguments are considered “generic” and improper if
they are based solely on the defendant’s presence at trial rather than on the defendant’s
direct examination or cross-examination. Carte, 27 Wn. App. 2d at 871. On the other
hand, tailoring arguments are considered “specific” and proper if they are “based on the
defendant’s testimony, [given that] the argument is a logical attack on the defendant’s
credibility and does not burden the right to attend or testify.” State v. Berube, 171 Wn.
App. 103, 117, 286 P.3d 402 (2012).
Contrary to Guzman-Ambrocio’s argument, the prosecutor’s questions were not
based on Guzman-Ambrocio’s presence at trial. Nor did the prosecutor accuse or imply
that Guzman-Ambrocio changed his testimony based on evidence presented at trial.
Indeed, the sustained objection from Guzman-Ambrocio’s defense counsel was based
on attorney-client privilege, not anything resembling a generic tailoring argument.
Paradoxically, Guzman-Ambrocio himself concedes that the prosecutor did not
ask him whether he had heard the testimony of other witnesses, but nevertheless
asserts that the prosecutor’s line of questioning amounted to a classic generic tailoring

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argument because it suggested that Guzman-Ambrocio had crafted a narrative for the
jury. But that is not the case.
In Carte, for example, we held that the prosecutor suggested generic “tailoring”
by stating during closing argument, “[The defense gave] you the defendant’s side of the
story, the side of the story that he gave you after he had the benefit of having heard all
of the evidence in this case and hearing how everyone else testified in conforming his
testimony to fit for certain facts, but not others.” 27 Wn. App. 2d at 873. Here, the
prosecutor did not make a generic tailoring argument.
B
Guzman-Ambrocio next contends that the prosecutor’s cross-examination was
improper because it invited the jury to draw adverse inferences from Guzman-
Ambrocio’s right to be assisted by counsel. The State disagrees, arguing that the
prosecutor only tried to ascertain whether and to what extent Guzman-Ambrocio’s
testimony had been rehearsed, a proper topic of cross-examination for any witness.
Based on the facts here, we agree with the State.
Guzman-Ambrocio relies on State v. Espey, 184 Wn. App. 360, 336 P.3d 1178
(2014), to support his argument that the prosecutor’s line of questioning penalized his
exercise of the right to counsel. In Espey, the prosecutor argued during closing
argument that the jury should consider Espey’s statement to the police in light of the
time he spent fleeing and consulting attorneys. 184 Wn. App. at 364. The prosecutor
stated that Espey had “lots of time to figure out what story he was going to tell the
police[,]” and added that Espey exhibited the pattern of “a good liar.” Espey, 184 Wn.
App. at 364-65. Based on those comments, the court held that the prosecutor

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improperly commented on Espey’s right to counsel and that the resulting error was not
harmless. 184 Wn. App at 366. The court explained:
No prosecutor may employ language that denigrates the right of a criminal
defendant to retain counsel of his choice, or otherwise limits the
fundamental due process right of an accused to present a vigorous
defense.
Espey, 184 Wn. App. at 367 (citing Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir.
1990)).
But based on these facts, Guzman-Ambrocio’s reliance on Espey is misplaced.
“[E]ffective cross-examination is integral to due process.” Farah v. Hertz Transporting,
Inc., 196 Wn. App 171, 187, 383 P.3d 552 (2016). When a defendant “voluntarily
asserts his right to testify” he puts his credibility at issue and thus “may be cross-
examined in the same manner as any other witness.” State v. Robideau, 70 Wn.2d
994, 998, 425 P.2d 880 (1967); see also State v. Graham, 59 Wn. App. 418, 427, 798
P.2d 314 (1990) (“A defendant may be vigorously cross-examined in the same manner
as any other witness if he voluntarily asserts his right to testify.”). Guzman-Ambrocio’s
credibility was at issue during trial. And the prosecutor’s short inquiry was for the
exclusive purpose of ascertaining Guzman-Ambrocio’s credibility. While the
prosecutor’s statement appeared to at least imply Guzman-Ambrocio might have been
coached, unlike in Espey, the language used by the prosecutor was not inflammatory;
the prosecutor never stated or implied that Guzman-Ambrocio was a liar or that he
exhibited the pattern of a liar. Nor did the prosecutor’s questions create an “inference of
guilt” out of Guzman-Ambrocio’s decision to meet with counsel. Espey, 184 Wn. App. at
367.

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Guzman-Ambrocio also relies on State v. Meza, 26 Wn. App. 2d 604, 529 P.3d
398 (2023), to support his argument. In Meza, the defendant, after arrest, made several
statements after he was given Miranda warnings, both at the scene and later at the
police station in a recorded interview.2 26 Wn. App. 2d at 608. After invoking his rights
to remain silent and to counsel, he terminated the recorded interview and the officers
ceased their questioning. Meza, 26 Wn. App. 2d at 608.
At trial, the prosecutor made the following remarks in his cross-examination of
Meza, “I want to talk to you about some of the new information that previously [hadn’t]
been disclosed until Friday,” referring to the day when Meza first testified during trial.
26 Wn. App. 2d at 608. Meza’s defense counsel successfully objected, arguing that this
was an improper comment on Meza’s right to remain silent and to counsel. Meza, 26
Wn. App. 2d at 608. In sustaining the objection, the trial court and the prosecutor had
the following exchange:
[The Court:] Well, you can point out the differences. That—I have no—I
don’t think that’s objectionable. It’s the form of what you asked. [Using
the phrase “new information”] is highly prejudicial. And that’s the problem.
It’s not that you can’t compare the statements he made on the stand or the
statements he made to the officers. It’s the way you’re phrasing it that
makes it prejudicial and makes it look like suddenly he’s holding back.
When he has the right to answer the questions when he’s in front of the
officers any way he wants to, and he can remain silent.
You know this.
[Prosecutor:] I do.
[The Court:] So that’s the problem.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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Meza, 26 Wn. App. 2d at 608-09.
Despite being admonished by the trial court and unequivocally stating that he
understood the prejudicial nature of his phrasing, the prosecutor continued making
improper arguments during closing. “These statements implied, again and again
throughout the State’s closing, that Meza had a duty to supplement or correct his earlier
statement to officers.” Meza, 26 Wn. App. 2d at 617. Based on that, we held that the
prosecutor’s repeated remarks constituted an improper comment on Meza’s exercise of
his rights to remain silent and to counsel. Meza, 26 Wn. App. 2d at 617. Meza is
distinguishable.
Here, after Guzman-Ambrocio’s defense counsel’s objection based on attorney-
client privilege was sustained, the trial court did not admonish the prosecutor for the
prejudicial nature of her remarks, and the prosecutor stopped her inquiry very shortly
after. Further, the prosecutor did not bring up her exchange with Guzman-Ambrocio
during closing argument, and thus there was no repeated pattern of problematic
conduct like there was in Meza.
For those reasons, while nearing the troubled area of a comment on the right to
counsel, we conclude that the prosecutor’s inquiry on this record did not constitute an
improper comment on Guzman-Ambrocio’s right to be assisted by counsel. Guzman-
Ambrocio’s prosecutorial misconduct claim fails at the first hurdle. See Thorgerson,
172 Wn.2d at 442.3
3 Guzman-Ambrocio also argues that his defense counsel was ineffective for failing to request a
curative instruction from the trial court about the prosecutor’s line of questioning on cross-examination.
But because we conclude that the inquiry was not improper, his defense counsel’s conduct cannot be
considered deficient.

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We affirm.4
WE CONCUR:
4 In a statement of additional grounds, Guzman-Ambrocio argues that “the State of Washington
lacked jurisdiction to hear the charges against him because the alleged crimes occurred in Mexico.” But
each of the crimes Guzman-Ambrocio was charged with was alleged to have occurred in Skagit County,
Washington. Guzman-Ambrocio himself admits in his brief that he was not being prosecuted for alleged
conduct that occurred in Mexico. Lastly, at trial, the prosecutor was unequivocal in stating that Guzman-
Ambrocio was not charged with any crimes that occurred in Mexico, and that she did not have any
jurisdiction over conduct that occurred in Mexico. The trial court had proper jurisdiction over the case.