State v. Archaga-Reyes

• Decision Date: 06 January 2020
• Docket Number: 78544-3-I
• Parties: STATE OF WASHINGTON, Respondent, v. CHRISTIAN J. ARCHAGA-REYES, Appellant.
• Court: Court of Appeals of Washington

STATE OF WASHINGTON, Respondent,
v.
CHRISTIAN J. ARCHAGA-REYES, Appellant.

No. 78544-3-I

Court of Appeals of Washington, Division 1

January 6, 2020

UNPUBLISHED OPINION

ANDRUS, J.

Christian Archaga-Reyes appeals his domestic violence convictions for second degree rape and for felony and misdemeanor violations of a no-contact order. At trial, he contended his victim, M.M., an undocumented immigrant, fabricated the charges against him to gain protected status so she could stay in the United States with her children. He argues the trial court denied him a fair trial by limiting the questions he could ask M.M. about her children's citizenship status and by refusing to recognize a defense witness as an "expert" in front of the jury. He also contends the prosecutor committed reversible error by referring to current immigration policies during the State's closing argument. Finally, Archaga-Reyes argues the trial court failed to give a Petrich^[1] unanimity instruction on the rape charge and his felony convictions violate double jeopardy.

We conclude the trial court did not err in deciding the appropriate scope of cross-examination or in refusing to affirmatively inform the jury that a defense witness was an "expert." We also conclude that while the prosecutor's closing comments about Trump administration anti-immigration policies were inappropriate, they were neither flagrant nor ill-intentioned and did not prejudice Archaga-Reyes. Furthermore, because the State made a clear and explicit election to rely solely on the first of four successive rapes, all occurring during the same night, the court was not required to give a Petrich instruction. Finally, the felony violation of a no-contact order and rape convictions do not violate double jeopardy. We therefore affirm Archaga-Reyes' convictions.

FACTS

Archaga-Reyes, a Honduran immigrant, met M.M., a Mexican immigrant and mother of two children, at a birthday party in 2015. Shortly thereafter, Archaga-Reyes and M.M. began dating and ultimately had a consensual sexual relationship. In the fall of 2015, M.M. broke off the relationship with Archaga-Reyes, who did not want the relationship to end.

In January 2016, Archaga-Reyes assaulted M.M., leading him to plead guilty to two counts of domestic violence assault in the third degree and one count of domestic violence assault in the fourth degree. As a result of these convictions, the court entered a five-year no-contact order for M.M.'s protection.

Less than eight months later, on August 7, 2016, Archaga-Reyes appeared at M.M.'s first-floor apartment in Tukwila. M.M., who was alone at the time, let him into the apartment because he asked for help and told her that he loved her. Once inside, he asked for food; when she did not prepare any for him, he started insulting her. M.M. told Archaga-Reyes to leave. He then hit her and called her a "bitch," a "prostitute," "garbage," and "an old lady." When M.M. told Archaga-Reyes she intended to call the police, he took away her phone, pushed her, threw her down to the floor, and pulled out some of her hair. He told her he intended to hit her but that he would not hit her in the face because he did not want there to be visible evidence of the abuse. She tried to fight back, but he was stronger than she was. Archaga-Reyes blocked the front door for about one hour to keep M.M. from leaving.

When M.M. realized he would not let her leave the apartment, she was so exhausted from fighting that she retreated to her bedroom. Archaga-Reyes then blocked her bedroom door. When M.M. tried to escape the bedroom, they wrestled again; Archaga-Reyes forced her onto the bed and raped her four times within a matter of three hours.

M.M. did not sleep that night. Once Archaga-Reyes fell asleep, M.M. went to her kitchen to find a knife with which to kill her rapist. But the thought of her children made her put the knife down. She found her phone but she did not call the police. She assumed they would not believe she had been assaulted and raped because she had let Archaga-Reyes into her apartment despite the existence of the no-contact order. She left the apartment at 5:00 a.m. to go to work.

When she returned that afternoon, August 8, she saw him standing outside her apartment. M.M. stayed inside her car with the windows closed. Archaga-Reyes demanded money from her so he could travel to Canada. She refused his demand, grabbed her phone, and told him she was calling the police. Archaga-Reyes left at that point. M.M. ran into her apartment and locked herself in. Shortly thereafter, she fled to a girlfriend's house to spend the night.

The following night, August 9, 2016, M.M. was at home when Archaga-Reyes knocked on her window. M.M. fled to the bathroom and locked herself inside. Archaga-Reyes called and sent her text messages, apologizing, asking her to forgive him, and telling her that he had repented. Again, when she did not answer his calls and messages, he called her a whore and told her all of his problems were her fault. After an hour and a half, he left.

The following day, August 10, 2016, M.M. met with her therapist, David Jeraiseh, to tell him about the incidents. Jeraiseh described M.M. as "in an emotional crisis" when she arrived. He could see spots on M.M.'s scalp where her hair was missing. M.M. told him that Archaga-Reyes had pulled her hair out and had sexually assaulted her. With Jeraiseh's encouragement and that of his supervisor, she agreed to go to the police station with Jeraiseh to report the crimes committed against her. She testified she made this decision after Jeraiseh's supervisor talked to her about how "some insects get on animals, and they just go to town on them until there's nothing left, and that would be the situation if I didn't report it."

At trial, there was disputed testimony as to what M.M. told the police during the interview on August 10. Initially, M.M. only wanted to report that Archaga-Reyes had violated the no-contact order; she did not want to tell the police she had been raped. But M.M. testified she told the police Archaga-Reyes raped her. Jeraiseh testified she did not tell the police about the rape and told the police only that she had been physically assaulted. Officer Schlotterbeck similarly testified that M.M. did not tell him she had been raped. M.M. thought the miscommunication occurred because of her poor English, and she thought telling the police she had been assaulted meant she had reported being raped.

The State originally charged Archaga-Reyes in December 2016 with one count of felony domestic violence violation of a court order for the assault on August 7, 2016, and two counts of misdemeanor violations of a court order for the alleged contact Archaga-Reyes had with M.M. in the days thereafter.^[2] The State amended the information in February 2018 to add the charge of rape in the second degree, domestic violence, after M.M. ultimately reported the sexual assault.

Before trial began, the trial court and counsel discussed the relevance of Archaga-Reyes' and M.M.'s immigration status. Defense counsel indicated these topics would come up, stating, "I don't believe it's going to be - It's certainly not the crux of my case, but - and I'm not bringing in an expert to get into the particulars. But it is going to come up, I suspect, during [M.M.'s] testimony." Defense counsel acknowledged the topic's sensitivity, stating he did not intend to "turn this into the centerpiece of my trial." But counsel explained that during a defense interview, M.M. admitted she was aware of the U Visa;^[3] she was aware of its availability for people "like her;" she had recently spoken to her counselor, Crystal, about it; and she and Crystal were working on an immigration application because of this case. The trial court accepted this offer of proof and allowed the parties to inquire into this topic.

In his opening, Archaga-Reyes stated that the State's case rested entirely on the testimony of M.M., an undocumented immigrant from Mexico, who had two children, both born in the United States and U.S. citizens. He contended that M.M. failed to tell the police she had been raped until sometime before an interview with defense counsel, and by that time, M.M. was taking steps to change her immigration status with the assistance of her counselor.

After testifying at trial about the details of the assault and rape by Archaga-Reyes, M.M. confirmed that her two children-ages 17 and 12-were both born in the United States after she moved here from Mexico. When defense counsel asked M.M. if she was undocumented, the State objected to the question. The trial court overruled the objection but, for some reason, defense counsel abandoned that line of questioning and, thus, there is no evidence in the record as to M.M.'s actual immigration status.

M.M. testified that her counselor, Crystal, who had assisted her with a divorce, told M.M. that there were visas for people "that may be in a similar situation" as she was in. But M.M. denied knowing what a U Visa is or applying for any type of protected status based on the court case.

In the defense case, Archaga-Reyes called Lynne Berthiaume, a registered nurse experienced in caring for victims of sexual assault. Berthiaume described the standard procedure for conducting a sexual assault examination, including the interview process and the gathering and preserving of physical evidence for law enforcement. She testified that in the case of an alleged forcible rape, an exam would look for evidence of injuries-such as contusions, bruising, abrasions, redness, or fractures-and secretions, in particular evidence of ejaculation. According to Berthiaume, in this case, "there was no corroborating evidence of penetration or sexual assault." She admitted she could not say affirmatively whether M.M. was sexually assaulted or raped.

The jury convicted Archaga-Reyes as charged. The court denied...