State v. Barreto
| Decision Date | 14 April 2016 |
| Docket Number | No. 32220-3-III,32220-3-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. LUIS ALBERTO DUENAS BARRETO, Appellant. |
FEARING, J. — In 2014, the Washington Supreme Court overturned twenty-five years of precedent in prosecuting rape charges. The Supreme Court held that due process precludes requiring a defendant, accused of second degree rape, to prove the defense of consent by a preponderance of the evidence since the second degree rape statute imposes the burden of proving forcible compulsion on the State. State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014). The court reasoned that the concepts of nonconsent and forcible compulsion intertwine such that the State must also show the absence of consent in order to prove forcible compulsion. Thus, a jury in a second degree rape case must be instructed that the State carries the burden to show beyond a reasonable doubt that the alleged victim did not consent. Before the Supreme Court's watershed decision, superior courts routinely instructed juries that the defendant carried the burden to prove consent. Appellant Luis Alberto Duenas Barreto's trial court delivered this standard instruction.
Alberto Barreto appeals his conviction for second degree rape. He contends the teachings of W.R. require a new trial. The State concedes instructional error, but argues the error was harmless. We take serious our duty to insure that constitutional error does not impact the outcome of a trial. Nevertheless, after reviewing the entire trial record, we hold the error to be harmless and affirm the conviction because of the lack of evidence of any consent by the victim.
Alberto Barreto also appeals a conviction for attempted second degree rape. He argues insufficient evidence supports the conviction. We disagree and also affirm this second conviction.
The jury convicted Alberto Barreto of raping and attempting to rape Netta Arturo. Netta Arturo is a fictitious name. The two convictions arise from discrete facts on distinct days. Our statement of facts derives solely from trial testimony.
Netta Arturo and her close friend Veronica Zelaya met Alberto Barreto, in September 2012, at Broetje Orchards in Walla Walla County, where all three worked. Barreto volunteered to the two ladies that he repaired cars. Each woman's car needed mending. Barreto began repairing Arturo's vehicle first.
Alberto Barreto worked on Netta Arturo's car outside her Pasco apartment. Barreto performed the work in afternoons for about two months. Barreto loaned Arturo another car while he completed the work. He never fixed Arturo's car. Arturo occasionally drove her car, during the two month period, only to discern no difference in the operation of the car. When she questioned Barreto about the repairs, Barreto responded that the car encountered no difficulties while he drove it.
Netta Arturo intended to remunerate Alberto Barreto for the repair work. She never paid because Barreto never repaired the car.
During the time of the car repairs, Alberto Barreto occasionally asked Netta Arturo for a date. She declined. She had a boyfriend. Arturo and Barreto remained on friendly terms, and once Arturo, who had already prepared dinner for herself, invited Barreto to remain for dinner after he finished working on her car that evening.
On November 4, 2012, Alberto Barreto went to Netta Arturo's apartment to work on her car. According to Arturo, Barreto entered the apartment, grabbed her, and started snogging her. Arturo slapped Barreto in the face and asked him to leave the home. Barreto opened the front door, and Arturo believed Barreto intended to leave. Arturo walked toward her bedroom when Barreto grabbed her from behind. He threw her down on the bed where her two-year-old daughter lay sleeping, restrained her on the bed, removed her clothing, forcefully opened her legs, and penetrated her vagina with his penis. Arturo unsuccessfully attempted to kick Barreto.
According to Netta Arturo, the attack lasted less than five minutes. Arturo suffered bruises on one leg. As he left the apartment, Barreto threatened to hang Arturo if she called the police. On appeal, Barreto claims the two engaged in a consensual sexual encounter.
Upon Alberto Barreto's exit from the apartment, Netta Arturo showered. From fear, she did not call the police. She sought no medical attention.
Within three days of November 4, Veronica Zelaya visited Netta Arturo. Arturo told her friend of the rape. Zelaya encouraged Arturo to notify the police. Zelaya also urged Arturo to photograph a bruise on her left leg caused by Barreto. Arturo rejected the advice to contact the police, but she photographed her leg. The photograph was shown the jury during trial.
After November 4, 2012, Alberto Barreto sent frequent text messages to Netta Arturo. All messages were in Spanish, but translated into English for trial purposes. On November 9, 2012, Barreto texted Arturo and apologized:
1 Verbatim Report of Proceedings (VRP) (Dec. 6, 2013) at 122-23. In another text, Barreto expressed his joy that his wish of going to bed with Arturo came true.
In late November on an unidentified day, Alberto Barreto appeared at Netta Arturo's apartment again, ostensibly to discuss the repairs to her car. Arturo did not invite Barreto inside. Barreto, nonetheless, entered the apartment, grabbed Arturo, and threw her on the living room floor. Arturo screamed, and Barreto left.
On November 25, 2012, Netta Arturo became pregnant with twins. Alberto Barreto later learned of the pregnancy and, believing to have fathered the children, threatened Arturo with hiring an attorney to gain custody of the twins when they were born.
On December 1, 2012, Alberto Barreto texted Netta Arturo and asked if she continued to date her boyfriend. Arturo replied affirmatively and directed Barreto to cease contacting and bothering her. The textative Barreto responded by directing Arturo to tell the boyfriend that Barreto had sex with her. He threatened to inform the boyfriend of the encounter if she refused. Barreto texted that he would "make it hurt as much as it hurt with him." 1 VRP (Dec. 6, 2013) at 124-25. In the text, Barreto labeled Arturo a "slut." 1 VRP (Dec. 6, 2013) at 125.
On December 2, Alberto Barreto texted Netta Arturo:
I left you all fucked, didn't I, little bitch? They are waiting for you when you come out. The whole town is going to find out that I fucked you.
1 VRP (Dec. 6, 2013) at 132. Barreto also texted that he was sad and humiliated.
Arturo's boyfriend sent Barreto several text messages asking him to leave Arturo alone, to no avail. On December 19, Barreto sent another text, asking if he could give Arturo's daughter a gift. Arturo replied: no.
1 VRP (Dec. 6, 2013) at 131-32. On July 27, 2013, Barreto texted and threatened to take the unborn children:
I feel that I want to go and take them away, get them out, out of your belly, to bring what's mine. They belong to me, not to you. I made them.
Netta Arturo's close friend, Veronica Zelaya, disliked Alberto Barreto. Barreto texted Zelaya in the middle of the night and solicited Zelaya's assistance in convincing Arturo to date him. Barreto once asked Zelaya for a date, but she fibbed and said she had a boyfriend.
On August 6, 2013, Netta Arturo, with the help of Veronica Zelaya, reported the November 2012 rape to the police. Pasco Police Detective Jesus Romero spoke with Arturo at her home, and Romero devised a plan to lure Barreto to the home. Although nervous, Arturo agreed to text Barreto and invite him to her apartment. Barreto had earlier texted Arturo while Romero interviewed Arturo.
Alberto Barreto arrived at Netta Arturo's apartment fifteen minutes after Arturo's texted invitation. Detective Jesus Romero greeted Barreto and identified himself as a police officer. In response, Barreto protested that he did not harass anyone and that he needed to talk to Arturo. Detective Romero placed Barreto under arrest and transported him to the Franklin County jail.
During questioning at the jail, Alberto Barreto first denied any sexual relationship with Netta Arturo. He admitted loving and pursuing, but not harassing, her. When Detective Jesus Romero later asked Barreto if he fathered Netta Arturo's twins, Barreto conceded a sexual relationship. He denied, however, being the father of the two. He cried upon admitting a sexual relationship. RP at 67. He confirmed that Arturo hit him in the face when he kissed her.
In key passages for this appeal, Detective Jesus Romero testified at trial:
1 VRP (Dec. 6, 2013) at 70-71. During cross-examination, Romero repetitively added:
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