Filed Washington State Court of Appeals Division Two July 9, 2019 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 50826-5-II Respondent, v. JOSE R. MORENO-HERNANDEZ, UNPUBLISHED OPINION Appellant. MELNICK, J. — Jose Moreno-Hernandez appeals his conviction for attempted rape in the second degree. He first argues that the State committed prosecutorial misconduct on numerous instances, which violated his right to a fair trial. Second, Moreno-Hernandez argues that the trial court erroneously admitted hearsay statements. Finally, he argues that his judgment and sentence contains an unconstitutionally vague community custody condition ordering him to have “no contact” with minors and that it contains unauthorized legal financial obligations (LFOs). We affirm the conviction but remand for the trial court to reconsider the imposition of LFOs. FACTS Nelbis Moreno gave birth to RY in El Salvador. When RY was five years old, Moreno left her in El Salvador and went to the United States. Moreno then married Moreno-Hernandez. At 13 years of age, RY followed her mother to the United States and moved into an apartment with her and Moreno-Hernandez. At the time, RY was pregnant. She gave birth three months later. 50826-5-II One evening, RY called the police alleging that Moreno-Hernandez attempted to rape her. The police arrived and talked with RY. RY’s uncle, Ruben Arevalo, and cousin also arrived and helped interpret RY’s statement for the police. Arevalo then transported RY to the care of Child Protective Services. Yanilda Dafe became RY’s foster parent. The State charged Moreno-Hernandez with attempted rape in the second degree and child molestation in the third degree. I. TRIAL AND SENTENCING The case proceeded to trial where the State argued Moreno-Hernandez committed attempted rape and RY’s testimony had credibility. In support of its theory, the State argued that RY’s allegation had turned her whole family against her, but they would have returned to her side if she recanted her story. Nonetheless, RY did not recant. Moreno-Hernandez argued that RY had a motive to lie because she felt her mother abandoned her in El Salvador and, as a result, she resented Moreno-Hernandez. Numerous witnesses at trial, including RY and Moreno, required Spanish interpreters. A. RY’s Testimony After RY described the attempted rape and how she had spoken with the police following the incident, the prosecutor asked her: “When you told the police officers what happened, did you tell them—you probably did not tell them exactly the same words that you used here today; is that right?” 4 Report of Proceedings (RP) at 774. Moreno-Hernandez objected to the question as leading. The court overruled the objection. RY responded that different interviewers asked her different questions, which explained some of the inconsistencies in her description of the incident. RY testified that she did not see Moreno until the day after the incident. RY said that at that time, Moreno told her to “tell the truth.” 5 RP at 838. The prosecutor then asked RY: “What, 2 50826-5-II if any, bad consequences did ...
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