FILED MARCH 2, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 37065-8-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CARMELO HERNANDEZ SIERRA, ) ) Appellant. ) LAWRENCE-BERREY, J. — Carmelo Hernandez Sierra appeals his convictions of second degree rape, indecent liberties, and witness tampering. He argues the trial court violated his right to present a defense by limiting his cross-examination of the child- victim, the prosecutor committed misconduct in closing, and his counsel was ineffective for not objecting to the misconduct during closing. We disagree with his arguments and affirm. FACTS On September 21, 2018, 14-year-old N.M.1 told her mother, Corina Carreon, that her stepfather, Carmelo Hernandez Sierra, tried to rape her. They went to the emergency 1 To protect the privacy interests of the child victim, we use his/her initials throughout this opinion. Gen. Order 2012-1 of Division III, In re the Use of Initials or Pseudonyms for Child Victims or Child Witnesses, (Wash. Ct. App. June 18, 2012), https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber =2012_001&div=III. No. 37065-8-III State v. Hernandez Sierra room where Sexual Assault Nurse Examiner (SANE) Susan LaChapelle interviewed N.M. The girl reported she was home from school that day because she had injured her ankle the day before. She said her stepfather came home for lunch, gave her four-year- old sister his cellphone to watch Netflix and then forced N.M. upstairs and into his bedroom. He locked the door, removed her clothes, put his tongue on her vagina, flipped her over, and eventually ejaculated on her legs and lower back. She told the nurse her stepfather warned her “‘don’t tell your mom because she’ll get mad and kill us both.’” Report of Proceedings (RP) (June 3, 2019) at 218. The SANE nurse used a perineal swab to gather evidence. The swab was later tested and was found to contain amylase and DNA2 from two sources, N.M. and Hernandez Sierra. The State charged Hernandez Sierra by amended information with second degree rape, indecent liberties (forcible compulsion), intimidating a witness, and rape of a child in the third degree. The court set the trial to begin May 30, 2019. Defendant’s motion to use immigration status to impeach Corina Carreon and N.M. The day before trial, Hernandez Sierra filed a motion to use his wife’s immigration status to impeach her and N.M. Defense counsel offered the following facts in support of the motion: 2 Deoxyribonucleic acid. 2 No. 37065-8-III State v. Hernandez Sierra In the year prior to [N.M.] making her allegations against Mr. Hernandez-Sierra, her mother, Corina Carreon, who is not legally residing in the United States, sought counsel from a Wenatchee attorney about resolving her residential status. At that time, nothing was available to her unless she qualified for a U-Visa. After that time, Mr. Hernandez-Sierra and [his wife3] joked about one of them assaulting the other to obtain lawful status in the [United …
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