State v. Leiva

1

STATE OF WASHINGTON, Respondent, v. GUADALUPE RAMOS LEIVA, Appellant.

No. 54439-3-II

Court of Appeals of Washington, Division 2

February 8, 2022

UNPUBLISHED OPINION

Veljacic, J.

Guadalupe R. Leiva appeals his conviction for three counts of rape of a child in the second degree, one count of attempted rape of a child in the second degree, one count of assault in the second degree, and one count of felony harassment. Leiva also appeals his sentence for assault in the second degree and felony harassment. Leiva argues that the trial court erred by denying his motion for a mistrial based on a law enforcement officer's improper opinion testimony. Leiva also argues that the State presented insufficient evidence of a firearm to support his conviction for assault in the second degree and the firearm enhancements for assault in the second degree and felony harassment.

We hold that the trial court did not abuse its discretion by denying Leiva's motion for a mistrial. We also hold that the State presented sufficient evidence of a firearm to support his conviction for assault in the second degree and the two firearm enhancements. Accordingly, we affirm Leiva's convictions and sentence.

FACTS

I. Factual Background

Leiva and Eugenia Ramos met as teenagers in Guatemala. They eventually married. In 2001, Leiva moved to the United States. Ramos gave birth to A.S. 2001, after Leiva had left for the United States. Ramos moved to the United States in 2003.

Ramos reunited with Leiva in 2005 and they eventually had three more children together. In 2013, the family moved to a trailer just outside of Eatonville, Washington. A.S. was 11 years old at the time.

Ramos worked as a nurse, frequently worked long hours, and was typically assigned the night shift. Leiva remained at home with the children while Ramos worked.

Leiva sexually abused A.S. the first time at the Eatonville trailer. Ramos had left for work and A.S. was in her room. A.S. could not sleep, so she joined Leiva in the living room to talk to him. Leiva asked A.S. if she had ever seen a penis. When she said no, Leiva pulled his pants down and made her touch his genitals. A.S. did not understand what was happening, but knew that it was not good. Shortly thereafter A.S. recalled going in a room with Leiva. She could not recall whether Leiva "touch[ed her] private parts or if he was doing something with his mouth." 5 Report of Proceedings (RP) at 669.

The family eventually moved to a larger Eatonville residence. A.S. was 12 years old at the time. A.S. recalled another incident of sexual abuse. Ramos was working the night shift. A.S. was in her room sleeping when Leiva entered. Leiva took A.S. to the room that he shared with Ramos. He commented "about how [A.S.'s] body had changed and how he couldn't help himself anymore." 5 RP at 673. Leiva "pulled down [A.S.'s] pants, and he put his penis into [her] vagina." 5 RP at 673. A.S. cried and asked Leiva to stop, but he did not.

Leiva told A.S. not to tell anybody what had happened. To secure that demand, Leiva threatened to kill A.S., her family, and then himself. A.S. believed this threat "[b]ecause [they] had weapons for him to do that, and [because] he has been aggressive and abusive in the past." 5 RP 678.

A.S stated that her family owned several guns. They had two revolvers: one was Ramos's and the other was Leiva's. A.S. knew that the revolvers worked because Leiva taught her how to use them and because she fired Leiva's before. A.S. said that the family also owned a small black gun that could be held with one hand-the same size as a pistol. A.S further described the small black gun as the kind "where you insert the bullets from the bottom instead of into the revolver." 5 RP at 679. She was not sure if the small black gun was operational. A.S. also said that the family owned a longer gun, but was not sure if it was a shotgun or a rifle.

A.S recalled another incident of sexual abuse in a red van that the family used to own. A.S. was either 12 or 13 years old during this incident. Leiva and A.S. were driving home one day when Leiva stopped along the side of a road. A.S recalled crawling to the back of the van so that Leiva could have intercourse with her. By this point, A.S. became compliant with Leiva's demands:

[The State:] You indicated at this point you were already compliant with his requests?

[A.S.:] Yes.

[The State:] Was there a time when you weren't compliant with his requests?

[A.S.:] At the beginning I would cry a lot, and I would ask him to stop. I don't know when, but at one point I realized no matter what I did, he would still continue.

[The State:] So what would happen if you yelled "Stop" or said "No" or tried to run away or anything like that?

[A.S.:] He would remind me about his threat.

5 RP at 693. A.S. recalled another specific incident that occurred on December 24, 2013. The family was celebrating Christmas at A.S.'s grandma's house, but Leiva and A.S. returned to their Eatonville residence to grab overnight supplies. As they were about to head back to A.S.'s grandma's house, Leiva told A.S. to go into his room. A.S. stated that, "whenever [Leiva] asked [her] to go into that room, [she] knew what he wanted," which was sexual intercourse. 5 RP at 696. A.S. recalled going back to her grandma's house and pretending like nothing happened.

A.S. said that she did not know how many times the sex abuse occurred, but she knew it was "a lot of times." 6 RP at 751. A.S. estimated that Leiva had sexually abused her over 50 different times.

Ramos discovered the ongoing sexual abuse on the night of October 12, 2014. A.S. stated that she and the family went out shopping that day. When they got back home, Leiva asked A.S. to go outside to check on the water tank. Ramos was inside the house watching TV. After they checked on the water tank, Leiva took A.S. to their greenhouse. A.S. "was really confused about what was happening because he had never done any sort of sexual act when [Ramos] was home." 5 RP at 708. When they entered the greenhouse, Leiva pulled A.S.'s pants down. That was when Ramos came outside.

Ramos's daughters normally say goodnight to her before bed. Ramos went to A.S.'s room, wondering why she had not said goodnight. Ramos felt something was wrong and started calling out A.S.'s name. Ramos saw Leiva walk out of the greenhouse, fixing his pants. A.S. walked out after Leiva. Ramos noticed that A.S. was "shaky and crying." 6 RP at 779.

Ramos demanded to know what has happening, but both A.S. and Leiva denied that anything had happened. Ramos then went into A.S.'s room and locked the door. A.S. told Ramos that night that Leiva had been sexually abusing her.

Leiva broke down the bedroom door and pulled Ramos by her hair into the living room. Ramos asked Leiva what he had done to her daughter and threatened to call the police. Leiva responded by "grab[bing] one of the pistols" and "[telling her] that if [she] called the police, he was going to kill [her], he was going to kill [her] kids, and he was going to shoot at the police, and then he would kill himself." 6 RP at 782-83. Ramos also testified to owning several guns. She stated that there was one rifle, a pistol, and another handgun in the house, which was Leiva's. Ramos's father gave her the rifle and the pistol. Ramos stated that the pistol worked. Leiva pointed the pistol at Ramos when he made the threat.

Ramos believed that Leiva would carry out his threat based on his abusive and aggressive past. Ramos then told Leiva to "calm down" and that she "wasn't going to say anything." 6 RP at 793. After Leiva left, she locked herself into a bedroom with the rest of her children and waited until dawn "because [she] was so scared that [Leiva] would come back to the house." 6 RP at 793. Ramos never called the police "[b]ecause [she] was very scared that [Leiva] would start shooting at them." 6 RP at 794. The next morning, Ramos took A.S. to be evaluated at the hospital.

Leiva testified that the guns in the household were actually cap guns, or BB guns, and not actual firearms. Leiva said that the guns "weren't capable of killing anybody." 8 RP at 1018.

Leiva left for Colorado after the greenhouse incident. Leiva withdrew $880 in cash, then travelled to Guatemala. He stayed there until he was extradited back to the United States on October 25, 2018.

By amended information, the State charged Leiva with three counts of rape of a child in the second degree, one count of attempted rape of a child in the second degree, one count of assault in the second degree, and two counts of felony harassment. The State also alleged several aggravators, including that the offenses were domestic violence incidents, that he abused his position of trust, that the rapes were part of a continuing course of conduct, and that he was armed with a firearm when he committed the assault and felony harassment offenses. Leiva pleaded not guilty and the case proceeded to a jury trial. II. Motion For A Mistrial

At trial, Leiva moved to prohibit the State and any witness from offering their personal opinion on the veracity of another witness, or on his veracity or guilt. The trial court granted Leiva's motion.

Gary Sanders, a detective sergeant for the Pierce County Sheriff's Department, testified at trial. Sanders was assigned to work on A.S.'s case. He testified that he observed A.S.'s forensic interview, but from a different room. Sanders testified as to A.S.'s demeanor during the interview, which Leiva objected to:

[The State:] And did you observe anything about her demeanor during the interview?

[Sanders:] Yeah. I hate to say typical victim, unfortunately but, you know, very upset, very emotionally distraught. But also in the things that she described, the

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