State Of Washington v. Juan Garcia-gonzalez


 STATE OF WASHINGTON,                          No. 79269-5-I

                              Respondent,      DIVISION ONE
                                               UNPUBLISHED OPINION


          CHUN, J. — Juan García González appeals his jury conviction for three

counts of child molestation. He claims the trial court erred by (1) admitting

evidence of his prior sexual abuse of a different child in the same household to

prove a common scheme or plan and (2) permitting the prosecutor to cross-

examine the defense expert witness regarding facts she did not rely on in forming

her opinion. He also claims that cumulative error warrants a new trial. We


                                  I. BACKGROUND

          García González lived in a two-story house in Kent with his wife Theresa,

his stepson Chris Carpenter, his two daughters, and his seven grandchildren. In

November 2014, seven-year-old A.V. and her mother moved into the house. At

that time, A.V. was the only child in the house that was not García González’s

biological grandchild. But A.V. referred to García González as “grandpa” and
No. 79269-5-I/2

treated his grandchildren as her cousins. García González invited A.V. with him

on errands and often bought her clothing, gifts, and candy or fast food.

       In the spring of 2016, García González stopped sleeping with his wife in

the master bedroom and started sleeping on a couch in the living room. He

invited the children to have “sleep-overs” with him in the living room where they

would watch television. On at least two occasions, A.V. and García González

were the only ones in the room and spent the night on the same couch together.

García González’s stepson Chris Carpenter saw him and A.V. “cuddling” and

“spooning” on the couch while under a blanket.

       Around that time, A.V. began exhibiting behavioral changes such as

difficulty sleeping and refusing to bathe or change her clothes. In late 2016, A.V.

told an adult family friend that she was “being touched.” At Mary Bridge

Children’s Hospital in Tacoma, A.V. told Dr. Yolanda Duralde, the medical

director of the Child Abuse Intervention Department, that “grandpa” had touched

her more than once. A.V. stated that the most recent incident occurred two

nights prior while she was in the living room watching television with García

González. She said he pulled down his shorts and her underwear and then

rubbed “his private on my private and was moving around.” García González

told A.V. that he would spank her if she told anyone.

       About two weeks later, A.V. told child interview specialist Alyssa Layne

that during the most recent occurrence, García González got on top of her, pulled

down both of their pants, and “put his boy part, trying to hurt me in my girl part.”

No. 79269-5-I/3

Next, he put “his boy part up my back, my back body part,” spit on his fingers,

and wiped his saliva on her “back body part” before he “put it in.” He also

pushed her onto her “tummy,” spit on his fingers, and wiped them on her “girl

part.” A.V. further disclosed that García González had done “inappropriate stuff”

to her on other occasions. She said he licked her “down there” when they were

on the living room couch under a blanket while other people were sleeping in the

same room.

       A.V.’s genital exam was normal. A forensic analysis of evidence collected

during the sexual assault exam revealed the presence of a major DNA profile

matching García González on the crotch area of A.V.’s underwear. There was

also a trace amount of DNA from two other individuals. In the same area of

A.V.’s underwear, the forensic tests detected a very small number of sperm cells,

acid phosphate, and amylase. Acid phosphate is an enzyme found in elevated

levels in semen, and amylase may indicate the presence of saliva. But the tests

were not conclusive for the presence of these substances.

       The State charged García González in an amended information with three

counts of child molestation in the first degree. At trial, A.V. testified that García

González touched her “private parts . . . a lot.” The first time it happened, she

was watching television with García González on the living room couch. He

pulled down her underwear, put his hand on her “vagina,” and moved his fingers

around. A.V. testified that on other occasions, he “licked my private” in the living

room while watching television or in the master bedroom. In another instance,

No. 79269-5-I/4

while A.V. was sleeping on the floor of the master bedroom, García González put

“his boy part” in A.V.’s vagina and tried “to make it go inside.” One time when

they were alone in a downstairs bedroom, he pulled his pants down and told A.V.

to “suck his private” while forcibly moving her head until her mouth touched his

penis. On the night of the final incident, during a “sleep-over” in the living room

after the other children went to sleep, García González pulled down A.V.’s pants

and tried to “stick his private into mine again.”

       The State sought to introduce evidence of García González’s prior sexual

abuse of H.K., an eight-year-old girl who lived in García González’s house in

2011, as part of a “common scheme or plan” under ER 404(b). H.K. moved into

the house because her single mother suffered from substance abuse and could

no longer care for her. H.K. called García González “grandpa.” He took her on

errands and bought her candy, food, clothing, and gifts.

       H.K. testified that García González touched her “about five times.” Some

of the abuse took place in a bedroom where H.K. sometimes slept with García

González’s two-year-old granddaughter. García González laid in bed behind

H.K. and “squeezed” her breasts and “vagina” while the granddaughter slept

nearby. She felt something rubbing against the back of her leg, but she wasn’t

sure if it was his penis or his belt buckle. García González also licked and

“[made] out with” H.K.’s ear. On other occasions, the abuse took place in the

living room while they were watching television. He touched H.K.’s chest under a

blanket while other people were in the room. In one incident, while hidden by a

No. 79269-5-I/5

blanket, García González pushed H.K.’s head down towards his “private parts.”

H.K. eventually disclosed the abuse because she wanted it to end. In 2012,

García González was charged with first degree child molestation of H.K. and

later pleaded guilty to fourth degree assault – domestic violence. He began

abusing A.V. two years later.

       Over García González’s objection, the trial court granted in part and

denied in part the State’s ER 404(b) motion. The court ruled that the State could

present evidence of García González’s abuse of H.K. through her live testimony,

but nothing more, because “any other evidence would be cumulative and risk

unfair prejudice to the defendant.”1 The court concluded, in pertinent part:
        [T] he purpose of this evidence is to show that the defendant
       employed a common plan or scheme in touching both children. The
       defendant used this plan repeatedly to perpetrate separate but very
       similar instances of abuse where he licked both girls’ bodies, fondled
       their genitals as they slept, rubbed his penis against their bodies, and
       solicited oral intercourse. The Court is not persuaded by the defense
       argument that the commonalities that existed between the touching
       of both children would exist in most cases of molestation and that the
       defendant’s touching was merely opportunistic. . . . Those similarities
       include the fact that the children were almost identical ages, identical
       in their personal situation, not biologically related to the defendant
       and viewed him as their grandfather. The defendant showed some
       favoritism and attempts to groom the children for abuse. While all
       the children received some amount of grandfatherly spoiling, there
       was credible evidence that A.V. and H.K. were singled out for some
       privileges. The Court gives considerable weight to the defendant’s
       attempts to normalize gradually escalating physical touching by
       watching television with both girls, often beneath blankets, while their
       bodies were in physical contact. It was in this living room, under the
       guise of watching television, that much of the abuse of both children

          The State also sought to introduce evidence of H.K.’s abuse through García
González’s 2012 conviction, H.K.’s child forensic interview, testimony of the child
forensic interview specialist regarding the interview, a detective’s interview of García
González regarding H.K., and testimony from H.K.’s mother and Chris Carpenter.

No. 79269-5-I/6

       occurred. The frequency of the touching is similar for both children,
       as was the licking of their bodies and the way in which the defendant
       solicited oral intercourse by placing his hands on the back of their
       heads and pushing them towards his genital area.

In determining that the “high probative value of this evidence outweighs the risk

of unfair prejudice,” the court noted that García González’s defense was general

denial, that the forensic evidence was “far from conclusive,” and that “A.V.’s

credibility will be central to the case and evidence of the defendant’s common

scheme or plan is highly probative of this evidence.” Before H.K.’s testimony at

trial and in the jury instructions, the court provided a limiting instruction stating

that the evidence may be considered only to evaluate whether a common

scheme or plan existed and not for any other purpose.

       García González’s expert witness, Dr. Elizabeth Johnson, opined that

forensic testing did not establish that García González sexually assaulted A.V.

She criticized the State’s testing procedures and results. She also opined that

García González’s DNA could have been transferred to A.V.’s underwear in the


       The trial court permitted García González to present “other suspect”

evidence regarding Lucas Amansec, a registered sex offender who lived in the

house during the same time period that A.V. was abused. A.V. testified that

Amansec had never touched her inappropriately. Amansec was not living in the

house when H.K. was abused.

No. 79269-5-I/7

       García González testified at trial. He denied molesting A.V. Defense

counsel argued that A.V. either fabricated the allegations for attention or that she

was mistaken and that Amansec was the true perpetrator.

       The jury convicted García González as charged. He appeals.

                                   II. ANALYSIS

   A. ER 404(b) Evidence of Prior Misconduct

       Common Scheme or Plan

       García González argues that the trial court erred by admitting H.K.’s

testimony under ER 404(b) as part of a common scheme or plan. We review its

decision to admit evidence under ER 404(b) for an abuse of discretion. State v.


161 Wash. 2d 168

, 174, 

163 P.3d 786

(2007). “Discretion is abused if it

is exercised on untenable grounds or for untenable reasons.” State v. Thang,

145 Wash. 2d 630

, 642, 

41 P.3d 1159


       ER 404(b) provides:
       Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity
       therewith. It may, however, be admissible for other purposes, such
       as proof of motive, opportunity, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident.

“ER 404(b) is not designed ‘to deprive the State of relevant evidence necessary

to establish an essential element of its case,’ but rather to prevent the State from

suggesting a defendant is guilty because [they are] a criminal-type person who

would be likely to commit the crime charged.” 

Foxhoven, 161 Wash. 2d at 175

(quoting State v. Lough, 

125 Wash. 2d 847

, 859, 

889 P.2d 487


No. 79269-5-I/8

       “One proper purpose for admission of evidence of prior misconduct is to

show the existence of a common scheme or plan.” State v. Gresham, 

173 Wash. 2d 405

, 421, 

269 P.3d 207

(2012). A common scheme or plan “may be

established by evidence that the Defendant committed markedly similar acts of

misconduct against similar victims under similar circumstances.” 

Lough, 125 Wash. 2d at 852

. Such evidence is admissible if the prior misconduct and the

charged crime show “such occurrence of common features that the various acts

are naturally to be explained as caused by a general plan of which the [two] are

the individual manifestations.” 

Lough, 125 Wash. 2d at 860

. In that event, the

evidence is admissible “because it is not an effort to prove the character of the

defendant” but “to show that the defendant has developed a plan and has again

put that particular plan into action.” 

Gresham, 173 Wash. 2d at 422

. “[S]ubstantial

similarity between the acts does not require uniqueness, and courts generally

admit evidence of prior sexual misconduct in child sexual abuse cases.” State v.


151 Wash. App. 861

, 887, 

214 P.3d 200


       To admit such evidence, the court “must (1) find by a preponderance of

the evidence that the misconduct occurred, (2) identify the purpose for which the

evidence is sought to be introduced, (3) determine whether the evidence is

relevant to prove an element of the crime charged, and (4) weigh the probative

value against the prejudicial effect.” 

Thang, 145 Wash. 2d at 642


       Contrary to García González’s assertions, the incidents involving A.V. and

H.K. are sufficiently similar to support a conclusion that they were manifestations

No. 79269-5-I/9

of a common scheme or plan. Both girls were similar in age and were the only

children in the house who were unrelated to García González. Both came to live

in his home because they have single mothers who struggled with the demands

of parenting. Both girls came to view García González as their grandfather, and

he took them on outings and bought them gifts and treats. He touched both girls’

genitals with his hand, rubbed his crotch against them, licked them, and pushed

the back of their heads towards his crotch. And notably, García González

normalized physical contact with both girls by watching television with them on

the living room couch, often under a blanket while others were nearby. These

common features are supported by the record and are sufficient to demonstrate a

common scheme or plan under ER 404(b). See 

Kennealy, 151 Wash. App. at 885



Gresham, 173 Wash. 2d at 421-23

; State v. Kipp, 

171 Wash. App. 14

, 20-22, 

286 P.3d 68

(2012), reversed on different grounds, 

179 Wash. 2d 718


      García González asserts that the court erred in finding that the girls’

reason for living in the house and the “grandpa” relationship is part of a common

scheme or plan because there is no evidence he lured the girls into the home or

encouraged them to view him as a grandfather as part of a molestation plan. But

the court did not find that García González orchestrated these events, nor was it

required to. “[A]cts which in themselves or alone carry no . . . suggestion [of

design or plan] may, when multiplied, or when compared with other acts or

circumstances, suggest a common plan as the explanation[.]” State v. Burkins,

94 Wash. App. 677

, 689, 

973 P.2d 15

(1999) (alteration in original) (quoting 2 JOHN

No. 79269-5-I/10

H. W IGMORE, Evidence § 240, at 42 (1979)). These similarities, when considered

in tandem with the others, support an inference of common scheme or plan.

       García González next argues that the court erred in finding that he

showed favoritism to A.V. and H.K. as part of a common scheme or plan. He

points to evidence in the record showing that he treated A.V. and H.K. in a similar

manner as he treated his grandchildren. But the court did not disregard this

evidence. It found that “[t]he defendant gave both girls gifts and clothes and took

them on trips, though there is conflicting testimony about to what extent the

defendant’s wife also participated and whether other grandkids received similar

privileges.” But ultimately, it concluded that “there was credible evidence that

A.V. and H.K. were singled out for some privileges.” And the trial court’s

credibility determinations are not reviewable on appeal. State v. Cross, 156 Wn.

App. 568, 581, 

234 P.3d 288


       Next, García González highlights dissimilarities between his abuse of H.K.

and A.V. to challenge the court’s finding that they were substantially similar

enough to constitute a molestation plan. For example, he asserts that the court

erred in finding that he solicited oral intercourse from both girls by placing his

hand on the back of their heads because A.V. testified that he directly asked her

to suck his penis whereas he did not speak to H.K. during the episode. On this

basis, he contends that the trial court relied on an incorrect understanding of

what “substantial similarity” means to reach its erroneous conclusions. García

González is incorrect. A precise match between the prior acts and the charged

No. 79269-5-I/11

crime is not required to admit the evidence as part of a common scheme or plan.


Kennealy, 151 Wash. App. at 889

(evidence of defendant’s prior sexual

misconduct admissible as part of a common scheme or plan even though his

behavior in each case was not identical); 

Kipp, 171 Wash. App. at 21

(no abuse of

discretion where victims were of similar ages, both were the defendant’s nieces,

and both were sexually abused in the same locations but in different ways).

García González touched both girls’ genitals with his hands, rubbed his crotch

against them, licked their bodies, and pushed their heads towards his crotch.

These overarching similarities suffice to support the court’s findings.

       García González also argues that the location, initiation, and timing of the

abuse of H.K. and A.V. were not significantly similar to support a finding of

common scheme or plan. He contends that any commonalities show opportunity

at best. We disagree. García González abused both girls on or near the living

room couch while watching television, sometimes under a blanket and while

others were present. He also abused both girls in bedrooms while other people

were asleep in the same room. All of the abuse occurred in the evening. These

similarities amply support a finding of sufficient similarity. And while García

González asserts that the lapse of time between his abuse of H.K. and A.V.

erodes any finding of similarity, this factor is not determinative. State v.


138 Wash. App. 497

, 505, 

157 P.3d 901

(2007). The trial court did not

abuse its discretion in admitting evidence of H.K.’s abuse as part of a common

scheme or plan.

No. 79269-5-I/12

       Absence of Mistake or Misidentification

       After trial testimony began, the trial court permitted García González to

present evidence that registered sex offender Lucas Amansec could have

committed the sexual assaults A.V. described.2 The prosecutor then argued that

the prior acts evidence previously admitted under ER 404(b) was also admissible

to show absence of mistake and identification. Thus, the court included the

following language in its ruling:
       The Court notes that the defendant has also opted to pursue an
       “other suspect” defense claiming a registered sex offender living in
       the house, Lucas Amansec, may have been the true perpetrator and
       that A.V. misidentified her abuser. In response to this, the State
       offered a second basis for admitting the defendant’s misconduct
       against H.K., namely that it goes to A.V.’s absence of mistake in
       naming the defendant as the true perpetrator.

       García González argues that admitting H.K.’s testimony to rebut a claim of

A.V.’s mistaken identification of García González as the perpetrator was not a

valid application of the “absence of mistake” purpose under ER 404(b). On this

basis, he contends that if the trial court based any aspect of its ER 404(b) ruling

on absence of mistake, it was reversible error. But the State’s argument is more

like the “identity” purpose than the “absence of mistake” purpose. Such evidence

is admissible under ER 404(b) to establish identity through a unique modus


Foxhoven, 161 Wash. 2d at 175

. Moreover, as discussed above, the trial

court properly admitted the prior acts evidence as part of a common scheme or

plan. And there is nothing in the court’s findings and conclusions to indicate that

         The trial court admitted this evidence as a sanction against the State for its late
disclosure of Amansec’s status as a sex offender. See Brady v. Maryland, 

373 U.S. 83


83 S. Ct. 1194


10 L. Ed. 2d 215


No. 79269-5-I/13

its decision to admit evidence of H.K.’s abuse was in any way dependent on the

State’s argument about A.V.’s identification of García González as her abuser.

This argument does not provide a basis for reversal.

       Probative Value

       García González asserts that the court erred in concluding that the

probative value of H.K.’s testimony outweighed its prejudicial effect. He

contends that the court committed legal error by assigning high probative value

to evidence of H.K.’s abuse not because of substantial similarities between H.K.

and A.V.’s accounts, but because A.V.’s credibility was an issue in the case. He

also contends that the highly prejudicial nature of this evidence deprived him of a

fair trial. We disagree.

       Under ER 403, relevant evidence may be excluded if the danger of unfair

prejudice substantially outweighs its probative value. Prior similar acts of sexual

abuse are “strongly probative because of the secrecy surrounding child sex

abuse, victim vulnerability, the frequent absence of physical evidence of sexual

abuse, the public opprobrium connected to such an accusation, a victim’s

unwillingness to testify, and a lack of confidence in a jury’s ability to determine a

child witness’s credibility.” 

Kennealy, 151 Wash. 2d at 890

. Trial courts should give

particular consideration to the probative value of common scheme or plan

evidence when corroborating evidence is unavailable. State v. DeVincentis, 

150 Wash. 2d 11

, 25, 

74 P.3d 119


No. 79269-5-I/14

       Here, the record shows that the court carefully considered the strongly

prejudicial nature of the evidence and concluded that its high probative value

outweighed the risk of prejudicial effect. In reaching this conclusion, the court

noted that the forensic evidence was not conclusive and that the case turned

largely on A.V.’s testimony. This was entirely appropriate. The court also

minimized the risk of unfair prejudice by limiting the evidence to H.K.’s trial

testimony and by giving a limiting instruction before her testimony and in the jury

instructions. The court properly exercised its discretion in finding that the high

probative value of the prior acts was not substantially outweighed by the danger

of unfair prejudice.

   B. ER 703

       For the first time on appeal, García González contends that the

prosecutor’s cross-examination of Dr. Elizabeth Johnson violated ER 703 and

ER 705, thereby prejudicially undermining her expert opinion on the DNA

evidence. As a general rule, appellate courts will not consider an issue raised for

the first time on appeal unless it is a manifest error affecting a constitutional right.

RAP 2.5(a)(3); State v. Fraser, 

170 Wash. App. 13

, 27, 

282 P.3d 152

(2012). “We

adopt a strict approach because trial counsel’s failure to object to the error robs

the court of the opportunity to correct the error and avoid a retrial.” State v.


166 Wash. 2d 73

, 83, 

206 P.3d 321

(2009) (citing State v. Kirkman, 

159 Wash. 2d 918

, 935, 

155 P.3d 125

(2007). For this reason, we “will not reverse the

trial court’s decision to admit evidence where the trial court rejected the specific

No. 79269-5-I/15

ground upon which the defendant objected to the evidence and then, on appeal,

the defendant argues for reversal based on an evidentiary rule not raised at trial.”

Powell, 166 Wash. 2d at 82


       Here, García González objected to the prosecutor’s cross-examination of

Dr. Johnson once based on relevance. That objection was overruled. Another

objection based on the formulation of a question was sustained. Neither

objection could have alerted the trial court to the claimed evidentiary error he

now raises on appeal. Thus, García González failed to preserve it.

   C. Ineffective Assistance of Counsel

       García González asserts that his trial counsel’s failure to object under

ER 703 and ER 705 constituted ineffective assistance of counsel. To show

ineffective assistance of counsel, the defendant must show that counsel’s

representation was deficient and that the deficient representation caused

prejudice. State v. McFarland, 

127 Wash. 2d 322

, 334-35, 

899 P.2d 1251


To establish deficient performance, the defendant must show that counsel’s

performance fell below an objective standard of reasonableness. 

McFarland, 127 Wash. 2d at 335

. Prejudice is shown only if there is a reasonable probability

that the result of the proceeding would have been different absent counsel’s

unprofessional errors. In re Pers. Restraint of Davis, 

152 Wash. 2d 647

, 672-73,

101 P.3d 1


       ER 703 allows an expert to base an opinion on inadmissible facts or data

as long as the evidence is “of a type reasonably relied upon by experts in the

No. 79269-5-I/16

particular field in forming opinions or inferences upon the subject.” ER 705

provides that an “expert may testify in terms of opinion or inference and give

reasons therefor without prior disclosure of the underlying facts or data.” But the

expert may be required to disclose the underlying facts or data on which that

opinion is based during cross-examination. ER 705. Although ER 703 and

ER 705 “permit the disclosure of otherwise hearsay evidence to illustrate the

basis of the expert witnesses’ opinion, they do not permit the unrelied upon

opinions and conclusions of others to be introduced in cross-examination for

impeachment purposes.” Washington Irr. and Dev. Co. v. Sherman, 

106 Wash. 2d 685

, 688, 

724 P.2d 997

(1986) (emphasis omitted) (quoting Ferguson v. Cessna

Aircraft Co., 

132 Ariz. 47

, 49, 

643 P.2d 1017

(Ariz. Ct. App. 1981)). In addition,

“[t]he law allows cross examination of a witness into matters that will affect

credibility by showing bias, ill will, interest, or corruption.” State v. Russell, 

125 Wash. 2d 24

, 92, 

882 P.2d 747


       García González asserts that the prosecutor improperly cross-examined

Dr. Johnson regarding records created by others that she did not rely on in

reaching her conclusions. He asserts that the repeated error undermined

Dr. Johnson’s credibility and prejudicially affected the outcome of the trial. But

Dr. Johnson stated that she reviewed A.V.’s medical records and forensic child

interview in preparing her report. The record shows that the prosecutor

questioned Dr. Johnson regarding facts, not opinions, on which her opinion was

based. This was not improper. Trial counsel was thus not ineffective for failing

No. 79269-5-I/17

to object on this basis. See State v. Thorgerson, 

172 Wash. 2d 438

, 455, 

258 P.3d 43

(2011) (defense counsel not ineffective for failing to object to argument that

was not improper or prejudicial).

   D. Cumulative Error

       García González argues that cumulative error denied him a fair trial. “The

cumulative error doctrine applies where a combination of trial errors denies the

accused a fair trial even where any one of the errors, taken individually, may not

justify reversal.” In re Det. of Coe, 

175 Wash. 2d 482

, 515, 

286 P.3d 29


Because García González’s claims lack merit, no error occurred.

       We affirm.


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