State v. Barragan

STATE OF WASHINGTON, Respondent, v. BARRAGAN, ALFREDO MARTINEZ, DOB: 04/09/1963, Appellant.

No. 80365-4-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 30, 2020

UNPUBLISHED OPINION

BOWMAN, J. — A jury convicted Alfredo Martinez Barragan of 14 separate sex offenses involving his biological daughter that occurred over a span of more than 15 years. Barragan claims the trial court erred by admitting evidence of his Internet searches related to "father plus daughter" pornography as evidence of lustful disposition toward his daughter. He also claims the prosecutor's mischaracterization of the evidence in closing remarks and his counsel's failure to object to the argument deprived him of a fair trial, and he challenges a condition of community custody. Because the evidence related to Barragan's Internet browsing history was directed toward "daughters" or minors in general but not toward the specific victim in the case, the trial court abused its discretion by admitting the evidence to show his lustful disposition toward the victim. But given the strength of the State's evidence, the error was harmless, and Barragan otherwise fails to establish reversible error.¹ We affirm.

FACTS

After Barragan's adult daughter disclosed longstanding sexual abuse, Barragan faced a jury trial on multiple charges. Witnesses at Barragan's trial testified about the following events.

Georgina Rocha Herrera (Rocha) and Barragan married in 1993 in Mexico. The couple's only child in common, G., was born the year after. When G. was less than a year old, the family moved to Everett, where Barragan had temporary work in the lumber industry. The move was difficult for Rocha because of the language barrier.

When G. was around seven years old, the family moved to Arlington. The couple worked opposite schedules and took turns caring for G. Rocha worked nightshifts while Barragan was home with G. in the evening.

After they moved to Arlington, the couple started a bakery business out of their home. When G. was around 10 years old, they opened a freestanding bakery in downtown Everett. At first, Rocha continued to work another job in the mornings. Barragan took G. home in the afternoon while Rocha stayed at the bakery or worked late in a makeshift home office, often until 1:00 or 2:00 a.m.

Around the time that G. was in the third grade, Barragan began a "nighttime routine" that consisted of gradually escalating sexual abuse. At first, Barragan would read a story to G. and then appear to fall asleep next to herwhile exposing his penis to G. Barragan cut "large hole[s]" in the front of all his underwear "exactly where [his] penis" is, explaining that it made his underwear more comfortable. Barragan allowed G. to touch his penis and started encouraging her to "play with it." Soon after, Barragan placed G.'s fingers on her vagina and showed her how to move them to stimulate herself. After a short period of either stimulating G. or watching her stimulate herself, Barragan began to penetrate her with his finger or perform oral sex on her.

The sexual abuse usually occurred in Barragan and Rocha's bedroom in their bed. If Barragan heard Rocha approach, he told G. to run to her room and pretend to be asleep, saying, "This is our game. This is our secret." Barragan made it "very clear" to G. that she could not tell her mother.

Barragan sometimes bathed with G. and touched her genitals in the bath. Other times, Barragan put G. in the bath by herself and directed her to stimulate herself while he watched. Barragan sometimes placed his computer on the outside of the tub and played animated pornography for G. to watch. One video portrayed two children raping and torturing their babysitter. Barragan did not allow G. to watch any other "normal" cartoons or television.

When G. was young, Barragan called his penis "rubber ducky" and often told her that the rubber ducky "wanted some playing time" or was "missing" her. The sexual abuse started occurring when G. accompanied Barragan during bakery deliveries as well. He would ask her to "pet the rubber ducky," and sometimes G. would either perform oral sex on Barragan or masturbate him while he drove. The types of sexual acts Barragan engaged in with G. expandedover time, and at some point, he began to have anal and vaginal intercourse with her. Barragan had regular sexual contact with G. about four or five times a week for several years.

At first, G. felt "very special" to have a secret with her father, and she was unaware that what they were doing was anything but "fun and games." But over time, the relationship became "more complicated." G. had limited exposure to television and friends as a child. But by the time she was in sixth grade, she saw more television and sometimes visited friends' houses when her parents were busy with the bakery business. G. began "questioning what was going on" and became more "uncomfortable" and unwilling to engage in sexual contact voluntarily.

In response to G.'s increasing unwillingness, Barragan began to use a system of bribery that he called "paying time." "Time would be sexual performances." For instance, to spend time with friends or have new basketball shoes or clothing, G. would have to agree to engage in sexual activity with Barragan for a certain number of minutes. "Chores didn't count for it. . . . Time was its own thing." They used the timer on Barragan's cell phone and he kept a running tally of G.'s debt in the "notes" section of his phone. Barragan required G. to "pay time" throughout middle and high school. He provided G. with "Plan B" birth control every time he ejaculated inside her. G. testified that "ejaculating inside of me . . . always came with Plan B afterwards, always."

G. could not avoid sexual contact with her father by asking her mother for things like money for the movies because Rocha would consult with Barragan asto any request. Rocha testified that she tried to make unified parenting decisions but Barragan would overrule her. Rocha described Barragan as "very strict."

G. changed schools often, including five times during high school. Barragan generally advocated for these changes, claiming that a different school had a better sports team or explaining to Rocha that G. needed to be steered away from "friends who [were] a bad influence." And although Rocha believed that friendship was important, especially because G. was an only child, Barragan did not generally allow G.'s friends to come to the house when she was a child and never allowed boys in the house. Barragan told G. that boys her own age were "losers" and forbade her from having outside sexual relationships because she had to "protect him" from contracting a sexually transmitted disease.

Over time, Barragan ceased to respect the "boundaries" of the "pay time" arrangement. Barragan was unaffected by G.'s complaints or whether she cried throughout the sexual acts. G. physically resisted by positioning her body in a manner that made sexual intercourse uncomfortable for Barragan or intentionally tried to hurt him. But Barragan would "call [her] out for doing it" and "restart the time."

Drugs began to play a major role in securing G.'s submission during her high-school years. When G. was around 15 years old, Barragan discovered her smoking marijuana with two friends. After that, Barragan began to take G. to marijuana stores to purchase hallucinogenic and potent strains of marijuana for her. By using drugs, G. could "numb" and "distract[ ]" herself "from the abusethat was going on at home." And Barragan preferred G. to be intoxicated because it prevented her from being "emotional, crying," or resisting.

G. and Barragan continued to have sexual contact outside the home. They would tell Rocha they were going to the gym and would instead drive to a secluded location, smoke marijuana, and G. would "pay him time" by performing sexual acts in the vehicle. On occasion, G. would also agree to sexual acts in exchange for having a few female friends over. Barragan supplied G. and her friends with alcohol and drugs, including marijuana, ecstasy, acid, or cocaine.

For about six months when G. was still in high school, Rocha went to Mexico to take culinary courses to help the struggling bakery business. Barragan "was supportive" of her leaving. During the time Rocha was in Mexico, Barragan and G. settled into a routine after work, school, and sports of consuming drugs. When she was "numb enough," she would perform the sex acts she "owed" Barragan "because there was no one to stop us."

Rocha and Barragan separated when G. was around 17 years old. Barragan moved into an apartment. G. lived with Barragan following the separation because Barragan told her that she was "a disgraceful daughter," and she felt ashamed and believed that she "did not deserve" to live with her mother.

After graduating from high school, G. often avoided going home. She also ignored Barragan's text messages and phone calls "to come home." When she did go home, she would be in "a lot of trouble" and would "always have to pay time." When they discussed their sexual relationship during this period, Barragan told G. that "it was [her] fault," that she "was like his heroin," and that she "madehim sick" and "addicted" because she "approached" him sexually when she was a child.

In late 2015, Barragan and Rocha travelled to Mexico together to obtain medical treatment and to explore repairing their marriage. However, Rocha suspected Barragan was involved in another romantic relationship and the couple fought. As a result, when they returned to Washington, Rocha demanded that Barragan return an Apple iPhone he was using that belonged to the bakery business. When he did so, Rocha examined the phone, looking for evidence of Barragan's relationship. Instead, Rocha found several videos in a deleted items folder, taken on different days, showing close-up images of G.'s genitalia while she was alone in the bathroom in Barragan's apartment.

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