Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         February 17, 2016




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                              No. 46688-1-II

                                 Respondent,                   UNPUBLISHED OPINION

           v.

    JUAN CARLOS MADRAZO-MUNOZ,

                                 Appellant.

          BJORGEN, A.C.J. — A jury returned verdicts finding Juan Carlos Madrazo-Munoz1 guilty

of two counts of first degree child molestation. The jury also returned special verdicts finding

that Juan Carlos used his position of trust to facilitate the commission of the crime on both

counts. Juan Carlos appeals his convictions, asserting that his due process right to present a

defense was violated by the trial court’s ruling excluding certain evidence from trial. In his

statement of additional grounds for review (SAG), Juan Carlos appears to argue that his defense

counsel was ineffective for failing to call certain witnesses and that the prosecutor committed

misconduct by charging him with crimes that he did not commit. We affirm.

                                               FACTS

          Jenny Thomas was a close friend of Juan Carlos and his wife, Katrina Madrazo.

Thomas’s children spent a lot of time with the Madrazos’ children and would often spend the



1
    We refer to the Madrazos by their first names for the sake of clarity. We intend no disrespect.
No. 46688-1-II


night at the Madrazos’ home. In the winter of 2010, Thomas asked her 10-year-old daughter,

JNS,2 if anyone had touched her inappropriately. JNS told Thomas that Juan Carlos had done so.

       After JNS’s disclosure, Thomas went to the Madrazos’ home late at night and told

Katrina about the accusation. After telling Katrina about JNS’s accusation, Thomas called the

police. Vancouver Patrol Sergeant Jay Alie met Thomas at her home to discuss the allegations.

JNS was also present and appeared composed when describing how she came to know the

Madrazos, but when JNS began describing the allegations of inappropriate touching by Juan

Carlos, “her demeanor changed quite suddenly. She put her head down. She started crying. She

was unable to continue talking.” Report of Proceedings (RP) at 175. Eventually, JNS was able

to tell Alie “in generalized terms what had occurred to her.” RP at 175. JNS appeared relieved

after telling Alie about her accusations against Juan Carlos.

       JNS also told her grandmother, Shelly Thomas, about the accusations and that Juan

Carlos had put his hands down her pants and fondled her private parts. Additionally, JNS

described the incidents with Vancouver Police Sergeant Barbara Kipp. JNS told Kipp that Juan

Carlos inappropriately touched her on two separate occasions, and she showed Kipp the manner

in which Juan Carlos touched her by demonstrating on her fingers. Based on these accusations,

the State charged Juan Carlos by second amended information with two counts of first degree

child molestation.

       Before trial, the State sought to exclude any testimony that Katrina had found explicit

photographs of Thomas performing sexual acts that were contained on a cell phone in JNS’s

backpack while staying at the Madrazos’ home. Defense counsel argued that testimony about



2This opinion refers to the juvenile victim by her initials to protect her privacy interests.
General Order 2011-1 of Division II, In Re The Use Of Initials Or Pseudonyms For Child
Witnesses in Sex Crimes Cases.
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No. 46688-1-II


the alleged photographs was relevant to show (1) why JNS’s visits with the Madrazos had

stopped and (2) to explain JNS’s precocious knowledge of sexual matters apart from the

allegations against Juan Carlos. The trial court asked defense counsel whether there was any

evidence that JNS had viewed these photographs. Defense counsel admitted that there was no

evidence that JNS had viewed the photographs apart from her possession of the cell phone. The

trial court ruled that it would provisionally grant the State’s motion to exclude evidence of the

alleged photographs under ER 401 and ER 403, noting that “if the evidence comes in, and if the

situation warrants it, then the Court will reconsider that ruling.” RP at 76.

       At trial, defense counsel asked Thomas on cross-examination whether she remembered a

conversation with the Madrazos about photographs found on her cell phone, and the State

objected. The trial court sustained the State’s objection, noting that defense counsel’s question

was outside the scope of direct examination and that its provisional pretrial ruling remained in

place unless and until defense counsel properly presented evidence warranting admission of the

cell phone photograph evidence. Defense counsel again attempted to present evidence of the

alleged photographs during Katrina’s cross-examination through an offer of proof outside the

jury’s presence.

       During the offer of proof, it was established that (1) Katrina found Thomas’s cell phone

in JNS’s backpack during JNS’s visit at his home, (2) the cell phone contained photographs of

Thomas engaged in sexual acts, (3) the Madrazos did not discuss the photographs with Thomas

or JNS, (4) the Madrazos decided to place the cell phone in a cupboard inaccessible to JNS, (5)

the Madrazos never returned the cell phone to Thomas, (5) the Madrazos had no knowledge of

whether JNS had viewed or knew how to access the photographs, and (6) as a result of finding

the photographs, JNS’s visits became less frequent for a period of time but did not end entirely.



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No. 46688-1-II


After the offer of proof, the trial court asked defense counsel to explain the materiality of the

proffered evidence. Defense counsel responded:

       Well, Your Honor, the issue is precocious knowledge of the child. The materiality
       is, you know, the argument you get frequently in these kind of cases is where would
       the child learn about that kind of behavior, and the answer is—is by seeing it or
       viewing it. It can be seen on commercials on TV. It can be seen in television and
       motion picture shows. In this case, it could have been seen on the cell phone.
       ....
       It’s for precocious knowledge, Your Honor. I mean, that’s what—that’s what the
       argument is all about is precocious knowledge. If the State is going to waive the
       precocious knowledge argument and say but for Mr. Madrazo molesting the child,
       fine. Then I don’t need it.
       ....
       But if [the State] is going to make that argument, then I think I’m entitled to
       introduce this event.

RP at 231-33. The trial court ruled that it would adhere to its pretrial ruling, noting that the

evidence was not relevant under ER 401 and, in the alternative, that any relevance was

substantially outweighed by the prejudicial nature of the evidence under ER 403.

       JNS testified at trial that she had twice awakened at the Madrazos’ home to Juan Carlos

laying behind her with his hands down her pajamas and on her vagina. JNS stated that on one of

the occasions, she had told Juan Carlos to stop and that he complied. JNS also testified that on

the morning following one of the incidents, Juan Carlos stated that she “was really nice last

night. She had manners.” RP at 257. Several witnesses testified at trial that JNS’s behavior

changed dramatically after her disclosure, stating that JNS began wetting her bed more

frequently, gained weight, became withdrawn and angry, and would “freak out” in public if she

saw someone resembling Juan Carlos. RP at 285.

       The jury returned verdicts finding Juan Carlos guilty of two counts of first degree child

molestation, and it returned special verdicts finding that he used his position of trust to facilitate

the commission of both offenses. Juan Carlos appeals his convictions.



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No. 46688-1-II


                                            ANALYSIS

                                 I. RIGHT TO PRESENT A DEFENSE

       Juan Carlos contends that his due process right to present a defense was violated by the

trial court’s ruling excluding evidence that Katrina had found explicit photographs of Thomas on

a cell phone contained in JNS’s backpack. We disagree.

       A defendant in a criminal trial has a constitutional right to present a defense. State v.

Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). “The right of an accused in a criminal trial

to due process is, in essence, the right to a fair opportunity to defend against the State’s

accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

              The right to offer the testimony of witnesses, and to compel their
       attendance, if necessary, is in plain terms the right to present a defense, the right to
       present the defendant’s version of the facts as well as the prosecution’s to the jury
       so it may decide where the truth lies. Just as an accused has the right to confront
       the prosecution’s witnesses for the purpose of challenging their testimony, he has
       the right to present his own witnesses to establish a defense. This right is a
       fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). However, a

criminal defendant’s right to present a defense is subject to an important limitation: a defendant

seeking to present evidence must show that the evidence is at least minimally relevant to a fact at

issue in the case. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). Evidence is relevant

if it has “any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the

evidence.” ER 401.

       If the defendant establishes the minimal relevance of the evidence sought to be presented,

the burden shifts to the State “to show the evidence is so prejudicial as to disrupt the fairness of

the fact-finding process at trial.” State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002). A



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No. 46688-1-II


trial court must then balance “the State’s interest to exclude prejudicial evidence . . . against the

defendant’s need for the information sought,” and may exclude such evidence only where “the

State’s interest outweighs the defendant’s need.” Darden, 145 Wn.2d at 622.

       Juan Carlos argues that evidence of the photographs he found on a cell phone in JNS’s

backpack was relevant to provide a reason for her precocious knowledge of sexual activity and,

thus, was crucial for the jury’s determination of JNS’s credibility. Juan Carlos also argues that

evidence regarding the photographs was relevant to show an alternative reason for JNS’s reduced

visits with the Madrazos apart from the fact of molestation. On both points, we disagree.

       Evidence providing a reason for a child-victim’s precocious knowledge of sexual activity

may be admissible “‘to rebut the inference [the child] would not know about such sexual acts

unless [he or she] had experienced them with defendant.’” State v. Kilgore¸ 107 Wn. App. 160,

179-80, 26 P.3d 308 (2001), aff’d, 147 jWn.2d 288 (2002) (alteration in original) (quoting State

v. Carver, 37 Wn. App. 122, 124, 678 P.2d 842 (1984)). However, here the State neither

presented evidence nor argued at closing that JNS gained precocious knowledge of sexual

activity through Juan Carlos’s illicit conduct. Absent this evidence or argument, evidence of the

alleged photographs contained on a cell phone found in JNS’s backpack was not relevant to rebut

the inference that she gained such precocious knowledge through Juan Carlos’s illicit conduct.

Accordingly, the trial court did not violate Juan Carlos’s right to present a defense by denying

admission of the evidence on this basis.

       Regarding the relevance of the proffered evidence to show an alternative reason for

JNS’s reduced visits with the Madrazos, defense counsel clearly abandoned this argument at trial

when he argued that the evidence was relevant solely to show JNS’s precocious knowledge.

Moreover, JNS’s reduced visits with the Madrazos was not a fact of consequence at trial as there



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No. 46688-1-II


was no evidence presented that her visitations had declined after the molestation incidents and

prior to her disclosures. Thus, even if defense counsel did not abandon his argument that the

evidence was relevant for this purpose, he did not lay the proper foundation for admission of the

evidence on this basis. For these reasons, the trial court did not err by excluding the photographs

on the cell phone.

                                               II. SAG

       Juan Carlos appears to argue in his SAG that his defense counsel was ineffective for

failing to call his witnesses to testify at trial and for failing to call the nurse who examined JNS

to testify at trial. On both points, we disagree.

       To demonstrate ineffective assistance of counsel, Juan Carlos must show (1) that his

defense counsel’s conduct was deficient and (2) that the deficient performance resulted in

prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). To show prejudice,

Juan Carlos must show a reasonable probability that, but for counsel’s purportedly deficient

performance, the outcome of the trial would have differed. Reichenbach, 153 Wn.2d at 130.

“When counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance

is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).

       With regard to his claim that defense counsel was ineffective for failing to call requested

witnesses, there is nothing in the record showing that Juan Carlos had identified potential

defense witnesses to defense counsel. Accordingly, this issue concerns a matter outside the

record that we do not consider on direct review. See State v. McFarland, 127 Wn.2d 322, 335,

899 P.2d 1251 (1995) (Where ineffective assistance of trial counsel is raised on direct review,

reviewing court will not consider matters outside the trial record; a personal restraint petition is

the appropriate means of having the reviewing court consider matters outside the record.).



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No. 46688-1-II


        With regard to defense counsel’s decision to not call JNS’s treating nurse, we note that

the decision to call witnesses is generally a matter of trial strategy that cannot form the basis for

an ineffective assistance of counsel claim. State v. Jones, 33 Wn. App. 865, 872, 658 P.2d 1262

(1983) (citing State v. Thomas, 71 Wn.2d 470, 472, 429 P.2d 231 (1967); State v. Floyd, 11 Wn.

App. 1, 2, 521 P.2d 1187 (1974)). Further, Juan Carlos cannot demonstrate prejudice on this

record, because the record does not reveal how the treating nurse would have testified had he or

she been called to do so. Accordingly, we do not further address this claim.

        Juan Carlos also appears to argue in his SAG that the prosecutor committed misconduct

by charging him with crimes that he did not commit. This argument, however, is not sufficiently

developed to merit judicial review. See RAP 10.10(c) (“[A]ppellate court will not consider a

defendant’s [SAG] if it does not inform the court of the nature and occurrence of alleged

errors.”). Accordingly, we do not further address it. We affirm Juan Carlos’s convictions.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, A.C.J.
 We concur:



 MELNICK, J.




 SUTTON, J.




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