State v. Mireles

Decision Date08 March 2021
Docket NumberNo. 79923-1-I,79923-1-I
Citation482 P.3d 942
CourtWashington Court of Appeals
Parties The STATE of Washington, Respondent, v. Ricardo MIRELES, Jr., Appellant.

Nielsen Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122, Kevin Andrew March, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, Lucie R. Bernheim, Lucie R. Bernheim, Attorney At Law, 512 Bell St., Edmonds, WA, 98020-3147, for Appellant.

James Morrissey Whisman, Prosecuting Atty. King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, for Respondent.

PUBLISHED OPINION

Appelwick, J.

¶1 Mireles appeals his conviction for cyberstalking. He argues that the statute under which he was convicted is unconstitutional because it is facially overbroad. He further argues that the prosecutor committed flagrant and ill-intentioned misconduct at trial. In the alternative, he argues that counsel was deficient for failing to object to the prosecutor's misconduct. In a statement of additional grounds, he challenges sufficiency of the evidence and alleges prosecutorial misconduct in charging decisions. The statute is overbroad but its constitutionality can be preserved with a sufficiently limiting construction. Mireles's arguments are otherwise without merit. We affirm.

FACTS

¶2 Ricardo Mireles, Jr. and the victim in this case dated for about four months after meeting online in October 2017. The victim described Mireles as warm, friendly, and attentive during the first few weeks of their relationship. But, later in the relationship, he was physically intimidating.

¶3 In one instance, Mireles became violent with the victim during an argument arising from her reluctance to engage in a particular sex act. She tried to explain but Mireles did not want to talk about it because it involved her ex-husband. Mireles became angry at the mention of the victim's ex-husband. He screamed at her to leave his apartment. But, he then prevented her from leaving by blocking her path and throwing her belongings all over the apartment. He cornered her against the wall, screamed at her inches away from her face, hit himself in the face and chest, and hit doors in the bathroom and bedroom with a closed fist, leaving multiple holes in them.1

¶4 The victim testified that she felt afraid, helpless, and unsure during the incident. She said that she thought that if she tried to leave, Mireles would become physical with her. Mireles, who had consumed a bottle of wine prior to this incident, later apologized and claimed to have a drinking problem. He told her that he would not drink anymore. They continued to date after the incident. By March 10, 2018, though, they had ended their relationship.

¶5 On March 10, 2018, the victim was out to dinner with a longtime friend. That evening, she began to receive text messages from Mireles. The messages continued for roughly 24 hours. In the messages, Mireles threatens violence, tells her he is waiting at her home, threatens to "ruin her job" by sharing messages with co-workers, makes demeaning comments about having anal sex with her, threatens to kill her, and threatens to kill himself. A corresponding call log shows a four second call from the victim's phone to Mireles's the next day. After the call, the next text message in the text thread received by the victim was Mireles asking, "You called?"

¶6 The victim was afraid to return to her house after receiving the messages. She instead went home with her dinner companion and stayed there for several hours. When she returned to her house, she asked strangers she encountered near her home to wait for her while she checked the home to ensure it was safe.

¶7 The following day, the victim called a domestic violence help line. Later that same day, she went to the Seattle Police Department (SPD) in West Seattle to report Mireles to police. She showed the text messages to the police officer on duty, who included some of them in his report of the incident.

¶8 Detective Rande Christiansen took over the investigation on March 13, 2018. He called the victim that same day. After the call, the victim e-mailed him screenshots of the messages. He twice spoke to Mireles, who denied having sent the messages. Both calls were recorded. Several weeks after sending screenshots of the messages to Christiansen, the victim deleted the messages from her phone.2

¶9 The State charged Mireles with felony harassment-domestic violence. It later amended the information to add a felony cyberstalking charge.

¶10 Prior to trial, Mireles moved to dismiss the cyberstalking charge arguing the statute was unconstitutionally overbroad. The trial court denied the motion.

¶11 During motions in limine, the State sought to introduce the prior violent incident between Mireles and the victim. Mireles objected that the testimony would be overly prejudicial, especially testimony that the argument followed a disagreement about whether to engage in a particular sex act. The trial court allowed testimony that the incident occurred so long as there would be no testimony that the argument occurred as a result of a disagreement about engaging in a sex act. When describing the incident at trial, the victim said the argument occurred because "[Mireles] wanted me to do something I wasn't comfortable doing" and that her reasons for discomfort "involved [her] ex-husband." Mireles did not object to this testimony.

¶12 Also during trial, the State sought to elicit testimony from the victim relating to the personal hardship associated with going to trial. Mireles objected to this testimony, but did not move to strike answers the victim had already given. The trial court ruled this was not relevant. At closing, the State still referenced the hardships the victim endured related to trial.

¶13 At closing, the State analogized the behavior demonstrated by the text messages with Mireles's behavior during the earlier altercation between him and the victim. And, in response to cross-examination questioning the adequacy of the investigation, the prosecutor argued that the SPD had limited resources with which to conduct an investigation, but that this should not prevent the jury from finding Mireles guilty. Mireles did not object to any of these arguments.

The jury found Mireles guilty as charged.

Mireles appeals.

DISCUSSION

¶14 Mireles makes six arguments. First, he argues that the cyberstalking statute under which the State charged him is constitutionally overbroad. Second, he argues that he was denied a fair trial due to flagrant and ill-intentioned prosecutorial misconduct. Third, he argues his counsel was ineffective for failing to object to flagrant and ill-intentioned misconduct by the prosecutor. Fourth, in a statement of additional grounds, he argues that the State presented insufficient evidence to support his conviction. Fifth, also in a statement of additional grounds, he argues various additional instances of prosecutorial misconduct during the investigation and plea negotiations. Last, he argues that cumulative error deprived him of a fair trial.

I. Constitutionality of RCW 9.61.260

¶15 Mireles argues first that the cyberstalking statute under which he was convicted, RCW 9.61.260, is unconstitutional. He argues both that the statute is unconstitutional because it is facially overbroad and facially invalid.

¶16 The right to free speech is protected by both the federal and Washington constitutions. WASH. CONST. art. I, § 5 ; U.S. CONST. amend. I. Overbreadth analysis under article I, section 5 of the Washington Constitution follows that of the First Amendment of the federal constitution. State v. Immelt, 173 Wash.2d 1, 6, 267 P.3d 305 (2011). A statute is overbroad under the Washington and federal constitutions if it prohibits a substantial amount of protected speech. City v. Willis, 186 Wash.2d 210, 220, 375 P.3d 1056 (2016). Where, as here, a litigant brings a facial overbreadth challenge, their standing does not depend on whether their own conduct is constitutionally protected. Id. For the purpose of determining whether RCW 9.61.260 is unconstitutionally overbroad, Mireles's actual conduct is irrelevant. Id. The constitutionality of statutes is an issue of law we review de novo. Immelt, 173 Wash.2d at 6, 267 P.3d 305.

¶17 In determining whether a statute is overbroad, the court's first task is determining whether the statute reaches a substantial amount of constitutionally protected conduct. City of Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989). If so, the court must then determine if the constitution allows the regulation of the protected speech. Id. at 926, 767 P.2d 572. The standard for whether a regulation on protected speech is constitutional depends on the forum being regulated. See id. Speech in public forums is subject to valid time, place, and manner restrictions which are " ‘content-neutral, and narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’ " Id. (quoting Bering v. SHARE, 106 Wash.2d 212, 222, 721 P.2d 918 (1986) ). Regulations on speech in nonpublic forums are reviewed under a less stringent standard. See id. Speech in nonpublic forums may be restricted if the " ‘distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint-neutral.’ " Id. (quoting Seattle v. Eze, 111 Wash.2d 22, 32, 759 P.2d 366 (1988) ). Finally, even if a statute impermissibly regulates a substantial amount of protected speech, it will be overturned only if the court is unable to place a sufficiently limiting construction on the statute. City of Tacoma v. Luvene, 118 Wash.2d 826, 840, 827 P.2d 1374 (1992).

¶18 RCW 9.61.260 provides, in pertinent part,

(1) A person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephonic harassment, makes an electronic communication to such
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5 cases
  • State v. Bell
    • United States
    • Washington Court of Appeals
    • August 7, 2023
    ...972 (W.D. Wash. 2019) (holding that RCW 9.61.260(1)(b) is unconstitutionally overbroad);[6] State v. Mireles, 16 Wn.App. 2d 641, 656, 482 P.3d 942 (2021). The Mireles held that RCW 9.61.260(1)(a) was unconstitutionally overbroad because it included an "intent to embarrass." Id. at 654-55. H......
  • State v. Ross
    • United States
    • Washington Court of Appeals
    • September 27, 2021
    ..."Sufficiency of the evidence is a question of constitutional law we review de novo." State v. Mireles, 16 Wn.App. 2d 641, 662, 482 P.3d 942 (2021). Sufficient evidence supports conviction if "'after viewing the evidence in the light most favorable to the prosecution, any rational trier of f......
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  • State v. Warnock
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    • Washington Court of Appeals
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    ...of speech made with the intent to embarrass others to be unconstitutionally overbroad. State v. Mireles, 16 Wn.App. 2d 641, 654-55, 482 P.3d 942 (2021). Warnock's trial court found Warnock to have harassed, intimidated and tormented Mica Cato. The trial court did not rely on the word "embar......
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