State v. Cardenas-Flores

• Decision Date: 14 June 2016
• Docket Number: No. 46605–8–II,46605–8–II
• Citation: 194 Wash.App. 496,374 P.3d 1217
• Parties: State of Washington, Respondent, v. Zaida Yesenia Cardenas–Flores, Appellant.
• Court: Washington Court of Appeals

194 Wash.App. 496

374 P.3d 1217

State of Washington, Respondent

v.Zaida Yesenia Cardenas–Flores, Appellant.

No. 46605–8–II

Court of Appeals of Washington, Division 2.

June 14, 2016

Jodi R. Backlund, Backlund & Mistry, P.O. Box 6490, Olympia, WA, 98507–6490, Counsel for Appellant.

Aaron Bartlett, Attorney at Law, P.O. Box 5000, 1013 Franklin St., Vancouver, WA, 98666–5000, Counsel for Respondent.

Worswick, J. ¶ 1 A jury returned a verdict finding Zaida Cardenas–Flores guilty of second degree assault of a child. Cardenas–Flores appeals her conviction, asserting that (1) the State failed to establish the corpus delicti of second degree assault of a child with evidence independent of her statements to police, (2) the State failed to present sufficient evidence that she intentionally assaulted the victim, (3) the State failed to prove jurisdiction was proper with sufficient evidence that the crime had occurred in Washington, (4) the trial court's jury instruction defining “assault” relieved the State of its burden to prove second degree assault of a child, and (5) the prosecutor committed misconduct in closing argument by arguing that Cardenas–Flores failed to give a plausible explanation for the victim's injuries. Cardenas–Flores also asserts that (6) her defense counsel was ineffective for (a) failing to object to the admission of her statements on corpus delicti grounds and (b) failing to object to the prosecutor's alleged misconduct in closing argument. Finally, Cardenas–Flores appeals her sentence, asserting that the sentencing court erred by imposing legal financial obligations (LFOs) without first inquiring about her ability to pay the LFOs. We affirm Cardenas–Flores's conviction but remand for resentencing solely on the LFO issue, for the sentencing court to make an individualized inquiry into Cardenas–Flores's current or likely future ability to pay.

FACTS

¶ 2 Cardenas–Flores gave birth to CA in late November, 2013. CA's father, Carlos Austin, lived with Cardenas–Flores in Vancouver. On December 3, Cardenas–Flores brought CA to the doctor for his first regular medical exam, which exam showed that CA's health was normal. At the December 3 visit, Cardenas–Flores stated she was having “some difficulty at home with the baby because ... there wasn't a lot of support in the Vancouver area.” Report of Proceedings (RP) at 57.

¶ 3 On December 18, Austin accidently rolled over onto CA's leg while the two were sleeping in bed. After the accident, Cardenas–Flores and Austin brought CA to the emergency room to have his leg examined. Dr. Jonathan Stein examined CA at the emergency room and had X-rays taken of CA's left leg. After reviewing the X-rays, Stein determined that CA's leg was normal and did not have any fractures or other abnormalities.

¶ 4 On December 20, Cardenas–Flores brought CA to the doctor for a regular wellness check and to follow up on CA's leg injury. CA's doctor examined CA's leg and reviewed the emergency room X-rays. CA's doctor noted some mild swelling on CA's left foot and confirmed that his December 18 X-rays did not show any fractures on his left leg.

¶ 5 On December 23, when CA was approximately 3 weeks old, Cardenas–Flores and Austin again brought CA to the emergency room, stating as their chief complaint that CA's left thigh had swollen. New X-rays were taken of CA's leg. Dr. Cathleen Lang examined CA and saw that his left thigh was swollen and that he was in obvious pain whenever his leg was moved. Lang reviewed CA's new X-rays and found that CA had a displaced fracture on his left femur, meaning that “the two pieces of bones [were] apart.” RP at 64. Lang also noted that CA's femur fracture occurred recently because it did not show any signs of healing, which would typically develop within seven to ten days. Lang stated that, during the period of time when the fracture showed no signs of healing, CA would be in “excruciating pain” any time his diaper was changed or his leg moved. RP at 69. Lang believed that CA's injury could have been caused by someone yanking and turning CA's leg while he was stabilized.

¶ 6 Lang spoke with Cardenas–Flores and Austin to determine what could have caused CA's injury. The only explanation for CA's injury that Cardenas–Flores and Austin offered was the December 18 rollover accident. Although Cardenas–Flores and Austin stated that the only explanation for CA's injury was the rollover accident, Austin told Lang that Cardenas–Flores had heard “a cracking or popping sound in [CA's] leg” before taking him to the hospital. RP at 134.

¶ 7 Lang did not find Cardenas–Flores's and Austin's explanation for CA's injury plausible in light of the December 18 X-rays that did not show CA had a displaced femur fracture after the rollover accident. Lang also did not believe that CA could have suffered a displaced femur fracture from a rollover accident because the displaced femur fracture was likely caused by a combination of compression plus torsion or a twist. Additionally, Lang stated that the femur bone is one of the largest and strongest bones in the body and that a displaced femur fracture would require “more force than what's going to be going on in normal everyday life.” RP at 80. Based on the nature of CA's injury and on her discussions with Cardenas–Flores and Austin, Lang became “highly concern[ed]” that CA's injury was non-accidental, and she contacted the police and Child Protective Services. RP at 81.

¶ 8 That same day or early the next morning, Cardenas–Flores agreed to speak with Vancouver Police Detective Deanna Watkins in a hospital conference room. Sergeant Barb Kipp and Detective Brendan McCarthy were also present in the room. Cardenas–Flores told the officers about the events that transpired between the December 18 rollover incident and the December 23 emergency room visit. When Cardenas–Flores told the officers about the rollover incident, the officers responded that the rollover could not have caused CA's injury based on the nature of the injury and on the earlier X-rays that did not show a fracture.

¶ 9 At some point during the interview, Cardenas–Flores stated that she may have “tugged at [CA's leg] too hard while [he was] in the car seat.” RP at 186. Cardenas–Flores further explained that CA may have been injured when she tried to get him out of the car seat too quickly while the car seat strap was not yet unfastened. Cardenas–Flores then told the officers that she “didn't want to lie” and that “she wanted to believe the car seat caused [CA's] injury, but ... that wasn't what caused it.” RP at 200. Cardenas–Flores explained to the officers that she had pushed CA's left leg out and down to try to straighten it so the leg would fit under CA's car seat strap. Cardenas–Flores stated that after pushing CA's leg out and down, she “knew [she] did something” because CA started crying in a manner different from his normal cry. RP at 202. Cardenas–Flores further stated that after being told about the broken femur, “she knew that it was from that incident, when she pushed his leg down.” RP at 202.

¶ 10 The State charged Cardenas–Flores by amended information with second degree assault of a child, alleging that the crime took place between December 20, 2013 and December 23, 2013. At trial the State called Lang, Stein, Watkins,¹ and McCarthy, who all testified consistently with the facts as stated above.

¶ 11 Cardenas–Flores and Austin testified for the defense. Cardenas–Flores testified that, after CA's December 20 doctor visit, she drove Austin and CA to Quincy, Washington to pick up Austin's three other children. Cardenas–Flores stated it was a ten hour round trip drive to Quincy and back to Vancouver and that CA did not seem particularly fussy during the trip. She said that the family arrived back at the home at around 4:30 PM on December 21. Cardenas–Flores stated that, although CA was fussy about his leg, she did not see any progression in CA's leg injury that evening or the following morning, December 22. Cardenas–Flores also stated that CA spent most of this time in his car seat because he appeared uncomfortable when moving around but that she had to take him out of the car seat to breastfeed and change his diaper every few hours.

¶ 12 Cardenas–Flores testified that the family drove to Salem, Oregon on the morning of December 22 to attend their church and that CA slept in his car seat during the church service. Cardenas–Flores stated that the family went to Austin's mother's home in Salem after the service and returned to Vancouver that evening. Cardenas–Flores further stated that CA remained in his car seat except when she was feeding or changing him. Cardenas–Flores said that the family slept in late on Monday, December 23 and left the home with CA in the late afternoon to run some errands. Cardenas–Flores also said that she heard a cracking in CA's leg sometime on December 23.

¶ 13 Regarding her statements to police, Cardenas–Flores testified that she continually told the officers throughout two hours of questioning that CA sustained his leg fracture during the December 18 rollover accident but that the officers suggested the accident could not have caused CA's fracture. Cardenas–Flores denied taking CA out of his car seat too quickly or tugging at his leg, but she admitted that she had told this to the officers.² Cardenas–Flores stated that she lied to the police officers about these events because she felt pressured to provide an explanation for CA's injuries that the officers would accept as true. Cardenas–Flores maintained that the December 18 rollover accident was the cause of CA's femur fracture.

¶ 14 Austin testified that between December 18 and December 23, he never saw Cardenas–Flores get stressed or hurt CA in any way. Austin further testified that after the rollover accident, he became worried about injuring CA again and, therefore, did not provide for CA's care without Cardenas–Flores's assistance. On cross-examination, Austin testified that he was...