State v. Cruz-Anaya, 091619 WACA, 78006-9-I

• Opinion Judge: DWYER, J.
• Party Name: STATE OF WASHINGTON, Appellant, v. HECTOR MANUEL CRUZ-ANAYA, Respondent.
• Case Date: September 16, 2019
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Appellant,

v.

HECTOR MANUEL CRUZ-ANAYA, Respondent.

No. 78006-9-I

Court of Appeals of Washington, Division 1

September 16, 2019

UNPUBLISHED OPINION

DWYER, J.

Hector Cruz-Anaya challenges his convictions of indecent liberties and domestic violence felony violation of a court order following a jury trial. Because there is nothing in the record to indicate that any juror considered evidence that was not admitted at trial, the trial court properly denied Cruz-Anaya's motion for a mistrial. The prosecutor did not commit misconduct by suggesting, during cross-examination and closing argument, that the defendant tailored his testimony to align with the evidence presented. We affirm.

I

Hector Cruz-Anaya and M.H.P. lived together as a couple for several years and have two children.¹ In April 2017, they were separated and M.H.P. lived with the children in an apartment in Federal Way. Although there was a no-contact order in place prohibiting contact between Cruz-Anaya and M.H.P., they intermittently contacted one another to facilitate visitation between Cruz-Anaya and the children. According to M.H.P., once or twice a month, Cruz-Anaya would call her in the morning and arrange to come to her apartment and walk the children to their school bus stop.

On April 11, 2017, M.H.P. called the police to report that Cruz-Anaya sexually assaulted her earlier that morning. A police officer went to her apartment in response to the report. M.H.P. was distraught and sobbed at several points while she described what happened. She had bruising on both sides of her neck that appeared to be fresh. The police officer took photographs of M.H.P.'s apparent injuries. Based on M.H.P.'s report, the State charged Cruz-Anaya with indecent liberties and felony violation of a court order.

At the October 2017 trial, M.H.P. testified that on the morning she called the police, Cruz-Anaya came to her apartment and accompanied the children to the bus stop. A short time later, Cruz-Anaya returned to the apartment to retrieve his cigarettes. Once inside, Cruz-Anaya told M.H.P. that he needed to talk to her. Cruz-Anaya said he missed her and tried to convince her that they should live together as a family again. Cruz-Anaya then pushed M.H.P. against a wall, grabbed her, and tried to forcibly kiss her. Cruz-Anaya continued to kiss her while rubbing her breasts and pelvic area, ignoring her pleas to stop. M.H.P. lost her balance while trying to fend him off and fell to the floor. Cruz-Anaya got on top of her, took her pants off, and started to remove his clothing. When Cruz-Anaya's cell phone fell out of his pocket and landed within her reach, M.H.P. grabbed it. After she threatened to call the police, Cruz-Anaya stopped and left the apartment. Later that morning, M.H.P. called the police.

Cruz-Anaya testified and denied seeing M.H.P. or the children on April 11, 2017. He said he was working all day at a restaurant in Auburn called Garcia's. Cruz-Anaya explained that he worked at Garcia's every Wednesday and Thursday. He said that every other day, he worked at a different restaurant in Federal Way.

Cruz-Anaya testified that he had not visited M.H.P.'s apartment since December 2016, when he delivered gifts to the children. Cruz-Anaya testified that occasionally, when he was able to borrow a vehicle, he drove the children from the apartment to school. But he insisted that he never walked the children to the school bus stop. Cruz-Anaya said he primarily saw the children on rare occasions when he was not working and could arrange for M.H.P. to bring the children to meet him at a shopping mall.

In light of Cruz-Anaya's testimony that he was working at Garcia's on April 11, 2017, and only worked at that restaurant on Wednesdays and Thursdays, the prosecutor pointed out in cross-examination that the day in question was a Tuesday. Confronted with this discrepancy, Cruz-Anaya admitted that he did not know which day of the week April 11 fell upon, but did not retract his claim that he was working at Garcia's on the day M.H.P. reported the assault.

During M.H.P.'s testimony, the State admitted a recording of her telephone call to 911 and later played the recording for the jury. Before the jury retired to deliberate, the State agreed to provide a "clean" laptop computer that contained no files or documents and did not allow Internet access, so the jury could listen to the audio exhibit.

The next morning, the prosecutor informed the court that she had just learned that the jury might have been provided with the wrong computer. The court halted the jury's deliberations and upon further investigation, the parties determined that the State had inadvertently provided the jury with a "media cart" computer. Although it was password-protected, the password was written on a note affixed to the computer. There were several files saved to the desktop, including files labelled "text messages," "stun gun montage" and power point presentations for closing arguments related to other King County prosecutions. Once logged into the computer, the Internet was accessible and the computer contained other programs, such as Microsoft Outlook, Adobe Acrobat, and a video viewer. There were no files saved on the computer associated with Cruz-Anaya's case.

The court brought out the jury as a group and polled the jurors individually. The court asked each juror whether the computer had been used only to listen to the audio exhibit and whether the computer was used to access any other documents or programs or to access the Internet. Each juror confirmed that he or she used the computer only to listen to the audio exhibit and for no other purpose.

Despite these assurances, the defense moved for a mistrial. Defense counsel acknowledged that there was no reason to disbelieve the jurors' statements. Yet, the defense argued that access to a computer during deliberations that contained information about other criminal cases created an "appearance of impropriety." Counsel also argued that even if none of the jurors opened any documents or files, the files that were visible on the desktop would have created a "subconscious belief" that there was additional damaging evidence against Cruz-Anaya that the jurors were not permitted to consider. The court denied the motion.

The jury continued deliberations and convicted Cruz-Anaya as charged. The court imposed a standard range indeterminate sentence. He appeals.

II

Cruz-Anaya argues that his convictions must be reversed because the jury's "access" to prejudicial extrinsic evidence on the laptop computer amounted to a serious trial irregularity and deprived him of a fair trial.

A...