State Of Washington, V Jose Flores-rodriguez
47347-0
| Wash. Ct. App. | Oct 18, 2016Background
- Defendant Jose Flores-Rodriguez, married to Markee Bouback, engaged in online and in-person sexual contact with Markee’s then-14-year-old niece L.C.; incidents spanned over a year and included intercourse, video chats, and requests for nude photos.
- State charged three counts for conduct between July 1 and August 3, 2014: communicating with a minor for immoral purposes (felony), third-degree rape of a child with an aggravator (ongoing pattern), and sexual exploitation of a minor.
- Trial was continued twice at the State’s request due to prosecutor scheduling conflicts; defendant, held in custody, objected but acknowledged no prejudice and was tried within applicable CrR 3.3 time limits.
- At trial prosecution elicited testimony from the wife and family, was allowed to present evidence of conduct outside the charged period to prove the aggravator, and the court excluded direct questioning implying L.C. had herpes; jury was instructed that "prolonged period of time" means more than a few weeks.
- Jury convicted on all counts and found the ongoing-pattern aggravator proved; defendant appealed raising prosecutorial misconduct, ineffective assistance, time-for-trial violations, charging-document sufficiency, double jeopardy, and judicial comment on the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct (improper facts, passion, burden shift) | Prosecutor’s closing suggested use of PS3 and dissemination of photos; appealed to passion; undermined presumption of innocence | Remarks were improper and prejudicial, some factual assertions unsupported | No misconduct shown: remarks were reasonable inferences or responsive rebuttal; defendant waived many objections and failed to show incurable prejudice |
| Ineffective assistance of counsel | N/A (State defends adequacy) | Counsel failed to exclude herpes evidence, request limiting instruction for prior acts, and object to prosecutor | Claim fails: strategic choices, lack of prejudice, and many objections would not likely have succeeded |
| CrR 3.3 time-for-trial / continuances | N/A | Continuances were granted on untenable grounds and violated 60-day rule | No violation: continuances for prosecutor scheduling/training were permissible; excluded time kept trial within 60 days |
| Sufficiency of charging document | N/A | Information omitted that "immoral purposes" requires sexual misconduct; citation typo | Dismissal not required: sexual misconduct defines scope of "immoral purposes," definitions need not appear in the information |
| Double jeopardy (multiple convictions) | N/A | Convictions for communicating with a minor and sexual exploitation punish same conduct | No double jeopardy: statutes require different elements; legally and factually distinct offenses |
| Judicial comment on evidence (instruction defining "prolonged period") | N/A | Instruction defining "prolonged period of time" as "more than a few weeks" was an improper comment on evidence | Court concedes error per Brush but finds no prejudice here because record showed abuse spanned over a year |
Key Cases Cited
- Emery v. State, 174 Wn.2d 741 (2012) (standard for prosecutorial misconduct review)
- Thorgerson v. State, 172 Wn.2d 438 (2011) (curative-instruction standard for flagrant misconduct)
- Warren v. State, 165 Wn.2d 17 (2008) (contextual review of prejudicial argument; jury instruction presumption)
- Lindsay v. State, 180 Wn.2d 423 (2014) (prosecutorial burden-shifting and arguments)
- Russell v. State, 125 Wn.2d 24 (1994) (prosecution may fairly respond to defense arguments in rebuttal)
- Brush v. State, 183 Wn.2d 550 (2015) (jury instruction defining "prolonged period" can be an improper judicial comment)
- Flinn v. State, 154 Wn.2d 193 (2005) (continuances: court congestion vs. trial preparation/scheduling)
- Hosier v. State, 157 Wn.2d 1 (2006) ("immoral purposes" limited to sexual misconduct in statutory scheme)
- McNallie v. State, 120 Wn.2d 925 (1993) (instructional framing of immoral purposes)
- Jackman v. State, 156 Wn.2d 736 (2006) (discussion of potential double jeopardy concerns when overlapping sexual offenses)