State v. Chino, No. 21186-0-III.

• Court: Court of Appeals of Washington
• Writing for the Court: BROWN, C.J.
• Citation: 72 P.3d 256,117 Wash.App. 531
• Parties: STATE of Washington, Respondent, v. Alfredo CHINO, Appellant.
• Docket Number: No. 21186-0-III.
• Decision Date: 08 July 2003

72 P.3d 256
117 Wash.App. 531

STATE of Washington, Respondent,
v.
Alfredo CHINO, Appellant

No. 21186-0-III.

Court of Appeals of Washington, Division 3, Panel Eight.

July 8, 2003.

72 P.3d 257

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Appellant

Lauri M. Boyd, Deputy Prosecuting Attorney, Yakima, WA, for Respondent.

72 P.3d 258

OPINION PUBLISHED IN PART

BROWN, C.J.

A jury convicted Alfredo Chino of single counts of intimidating a witness and assault in violation of a protection order. Because the intimidation elements instruction does not align with the charging document, we reverse the intimidation conviction. Otherwise, we reject Mr. Chino's remaining instructional, evidence, and improper comment contentions pertaining to the assault conviction in the unpublished portion of this opinion. Accordingly, we reverse in part and affirm in part.

FACTS

The State charged Mr. Chino by information with one count of intimidating a witness, RCW 9A.72.110(1)(d):

On or about November 22, 2001, in the State of Washington, by use of a threat directed at Candace A. Salinas, a current witness or a person you had reason to believe may have had information relevant to a criminal investigation, not to prosecute the crime, you attempted to induce that person to not report the information relevant to a criminal investigation or to not give truthful or complete information relevant to a criminal investigation.

Clerk's Papers (CP) at 47.

The State also charged Mr. Chino with one count of assault in violation of a protection order, domestic violence, RCW 26.50.110(1) and (4):

On or about November 22, 2001, in the State of Washington, knowing that a protection order, restraining order, or no contact order had previously been entered, you violated that order by knowingly violating a restraint provision, and/or by knowingly violating a provision excluding you from a residence, a workplace, a school, or a daycare, and/or by knowingly coming within, or knowingly remaining within, a specified distance of a location, and you intentionally assaulted Candace Salinas in a manner that does not amount to assault in the first or second degree.

Furthermore, you committed this crime against a family or household member.

CP at 47.

At trial, Ms. Salinas testified Mr. Chino hit her in the left eye. Asked by the State why Mr. Chino hit her at that time, Ms. Salinas responded, "Well, the only thing I could think of is that he was on drugs." Report of Proceedings (RP) at 112. The trial court overruled Mr. Chino's immediate relevancy objection. Ms. Salinas then testified Mr. Chino choked her and scratched her face. According to Ms. Salinas, Mr. Chino pinned her down and poked her other eye.

Asked if Mr. Chino had threatened her, Ms. Salinas testified:

Yeah. He told me that like if I were to go the cops and stuff that he would—that, you know, when he got out that he would, you know, beat me up and, you know, do everything again, you know, that, you know, because that he didn't care who I was with or where was I at, you know, that he would do it again.

RP at 119.

Ms. Salinas testified Mr. Chino prevented her from leaving the house. She fled the house when Mr. Chino took a shower, went to her brother's house and called the police.

The incident left Ms. Salinas with injuries to her face and neck. Color photographs of Ms. Salinas's injuries were taken at the police station and admitted into evidence.

At the start of the next day's hearing, Mr. Chino renewed his objection to Ms. Salinas's drug comment, partly arguing the testimony should have been excluded as unduly prejudicial under ER 403. He moved for a mistrial as well. The trial court overruled the objection and denied the mistrial motion, reasoning "the comment was of very short duration" and that the comment went to intoxication in general and "not the issue that Mr. Chino uses drugs." RP at 140-41.

And as I have said, the comment was such a momentary nature that it does not suggest that Mr. Chino was a bad person, quote, unquote, because he uses drugs. But, again, the emphasis was on the fact that she believed him to be intoxicated from drugs, which is the problem, and the

72 P.3d 259

question and the answer in response. So I don't believe that it had any impact at all on the jury in terms of painting Mr. Chino as a drug user or not. Again, emphasizing the issue of possible intoxication as against being a bad person.

RP at 141.

Ms. Salinas admitted previously spending about a week in jail in connection with an unrelated theft conviction. In cross-examination, Ms. Salinas testified Mr. Chino's mother bailed her out of jail. When asked by defense counsel whether Mr. Chino wanted her bailed out, Ms. Salinas responded, "Yeah, because he was in jail." RP at 174. Defense counsel objected without stating a basis. The trial court overruled the objection and also denied defense counsel's request for a sidebar, apparently preferring to take the matter up at recess.

At the start of the next recess, the trial court invited defense counsel "to put something on the record or make a motion." RP at 180. Relying on ER 403, defense counsel renewed his earlier objection to Ms. Salinas's statement about Mr. Chino being in jail. The trial court responded: "Actually, the correct motion is that the answer was not responsive to the question. And if you had made that motion at that time I would have sustained it and told the jury to disregard it. I can tell them that if you wish when we reassemble." RP at 180-81. Defense counsel said he would first consult Mr. Chino and expressed concern regarding "undue emphasis." RP at 181. The trial court responded:

Yeah. You're actually right. It may be it just was a nonresponsive question. I don't think it was particularly prejudicial. It just was completely out of context to the question and maybe it would be better just to let sleeping dogs lie. But I'll do whatever you reasonably suggest.

RP at 181.

The trial court at times interjected its own objections to testimony from both sides. The following example occurred during Mr. Chino's cross-examination of Officer Jacob Church, the officer who interviewed Ms. Salinas:

Q. You would agree with me that when somebody is telling a story and not looking you in the eye sometimes it is because they are lying to you?

A. On occasion.

THE COURT: Bad question. You are not capable of nor is the witness in making—you can ask the question but nobody can make that call.

Q. Have there been times when you've talked to people and they have not looked you in the eye?

A. Yes.

Q. And did you have suspicions at that time that they might be lying to you?

THE COURT: Same problem, [counsel].

[COUNSEL]: Judge, he can talk about his suspicions, can't he?

THE COURT: No. He cannot comment on apparent signs of whether a person is capable of telling the truth or not.

A. And Candace sometimes wouldn't look you in the eye, would she?

Q. There were times.

RP at 190-91.

Mr. Chino's uncle, mother, and younger sister testified on his behalf. Mr. Chino did not testify.

The defense did not object to the jury instructions. Instruction No. 6 partly states:

To convict the defendant of the crime of Intimidating a Witness, each of the following elements of the

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