Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                       DIVISION ONE

STATE OF WASHINGTON,                        )       No. 65557-4-I
                                            )
                      Respondent,           )
          v.                                )       UNPUBLISHED OPINION
                                            )
MARCUS A. ZAMUDIO-OROZCO,                   )
                                            )
                      Appellant.            )       FILED:  March 12, 2012

       Schindler, J.  --   Marcus A. Zamudio-Orozco appeals his convictions for two 

counts of rape of a child in the third degree and one count of violation of a no-contact

order.  Zamudio-Orozco asserts that the lead detective improperly commented on his 

constitutional right to remain silent.  Because the record establishes that Zamudio-

Orozco did not invoke his right to remain silent, and an ambiguous reference to an

attempt to contact and interview Zamudio-Orozco at the jail was not an improper 

comment, we affirm.

                                            FACTS

       Zamudio-Orozco and Lucero Epitacio are the parents of four daughters:  J.E.Z., 

born April 4, 1995; J.O.Z, born January 27, 1996; J.A.Z., born February 8, 1998; and 

P.Z., born September 26, 2009. In the fall of 2008, the family moved from California to 

a two-bedroom apartment in Kent, Washington. 

No. 65557-4-I/2

       On November 22, 2009, J.E.Z. told her mother that Zamudio-Orozco had 

repeatedly forced her to have sexual intercourse with him.  On the way to the hospital

with J.E.Z., Epitacio called 911. Epitacio told the 911 operator that Zamudio-Orozco

had raped one of their daughters.  Epitacio told the operator that she was not at home 

but would meet the police at the apartment.

       City of Kent Police Officer Travis Wilson and two other officers arrived at the 

apartment before Epitacio and J.E.Z. returned.  Officer Wilson asked Zamudio-Orozco 

why Epitacio had taken J.E.Z. to the hospital.  Zamudio-Orozco told Officer Wilson that 

he and Epitacio wanted to find out if J.E.Z. and a boy at school had engaged in sexual

contact.

       After Epitacio and J.E.Z. arrived, Officer Wilson spoke to J.E.Z. J.E.Z. told 

Officer Wilson that Zamudio-Orozco began forcing her to have sexual intercourse with 

him when she was 10 years old.  J.E.Z. said Zamudio-Orozco raped her the day before, 

and gave Officer Wilson the jeans she wore.
       Officer Wilson arrested Zamudio-Orozco and read him his Miranda1 rights.  

Zamudio-Orozco waived his rights, told Officer Wilson that he had never touched J.E.Z. 

inappropriately, and that J.E.Z. was upset with him because he was strict.  Later, 

Officer Wilson went to the jail to obtain Zamudio-Orozco's underwear.  While Officer 

Wilson was at the jail, Zamudio-Orozco told Officer Wilson that J.E.Z. was making 

things up because she was "just mad at him" for being strict.  

       The State charged Zamudio-Orozco with rape of a child in the second degree  -- 

domestic violence, Count 1; and two counts of rape of a child in the third degree  -- 

       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 65557-4-I/3

domestic violence, Count 2 and Count 3.

       At arraignment, Zamudio-Orozco pleaded not guilty, and the court entered a no-

contact order.  The no-contact order prohibited Zamudio-Orozco from having any 

contact with J.E.Z. "directly, or indirectly in person, in writing, or by phone, personally

or through another person."  Zamudio-Orozco signed and received a copy of the no-

contact order.  However, Zamudio-Orozco called Epitacio a number of times from the

jail and spoke to J.E.Z. during some of the calls.  

       Before trial, the court held a CrR 3.5 hearing.  Officer Wilson was the only 

witness to testify.  The court found that after Officer Wilson read Zamudio-Orozco his 

Miranda rights, Zamudio-Orozco "acknowledged his rights, waived and agreed to speak 

to Officer Wilson."  

       On the first day of trial, the State filed a motion to amend the information to 

charge Zamudio-Orozco with two additional counts of rape of a child in the third degree

 --  domestic violence, Count 4 and Count 5; tampering with a witness, Count 6; and two 

counts of misdemeanor violation of a no-contact order, Count 7 and Count 8.  

       The State called a number of witnesses to testify at trial, including J.E.Z., J.O.Z.,

J.A.Z., Officer Wilson, a forensic scientist, Epitacio, and City of Kent Detective Lily 

Melton.  The defense theory at trial was that J.E.Z. was not credible.

       After initially testifying that her father had not sexually abused her, J.E.Z. 

admitted that she had denied the abuse because she did not want her father to go to 

jail.  J.E.Z. testified that beginning when she was 10 years old until his arrest in 

November 2009, Zamudio-Orozco forced her to have sexual intercourse with him.  

J.E.Z. testified that Zamudio-Orozco would call her into the bedroom, make her close 

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No. 65557-4-I/4

the door and get on the bed, and then have intercourse with her.  J.E.Z. said that if she 

refused, Zamudio-Orozco would hit her.  J.E.Z. said that sometime around October 

2009, J.O.Z. opened the bedroom door and saw Zamudio-Orozco on top of J.E.Z.

J.E.Z testified that in November 2009, she told her mother.

       J.O.Z. testified that for about four years, Zamudio-Orozco took J.E.Z. into the 

bedroom.  J.O.Z. said this occurred every other day.  J.O.Z. testified that when J.E.Z. 

came out from the bedroom, she would be crying.  J.O.Z. testified that J.E.Z. would not 

say why she was upset or what was happening in the bedroom.  But in 2007 or 2008, 

J.E.Z. told her and J.A.Z. that Zamudio-Orozco was raping her.  J.O.Z. said that they 

did not tell anyone else.  J.O.Z. testified that she would try to stop her father by 

knocking on the bedroom door and trying to open it after her father called J.E.Z. into 

the bedroom. J.O.Z. testified that about two months before Zamudio-Orozco was 

arrested, she walked into the bedroom and saw Zamudio-Orozco on top of J.E.Z. with 

his pants and boxers down to his knees.

       J.A.Z. also testified that Zamudio-Orozco would call J.E.Z. into the bedroom 

during the daytime and J.E.Z. would leave crying.  J.A.Z. said that she sometimes slept 

in the same bed as Zamudio-Orozco and J.E.Z. and would feel the bed moving while 

J.E.Z. cried. J.A.Z. said she did not turn around to look because she did not know what 

to do.  J.A.Z. testified that sometime before 2008, J.E.Z. told her and J.O.Z. that 

Zamudio-Orozco was raping her.

       Officer Wilson testified that after he read Zamudio-Orozco his Miranda rights,

Zamudio-Orozco "said he understood his rights and he said he would agree to keep 

talking to me."  Officer Wilson said that when he asked Zamudio-Orozco why J.E.Z. 

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No. 65557-4-I/5

would say that Zamudio-Orozco was having sex with her, Zamudio-Orozco said "his 

daughter was upset with him for being too strict and not letting her go out with her 

friends." Officer Wilson also testified that Zamudio-Orozco "made a comment saying 

that he plays with his children all the time and makes sure that his wife is present when 

he is playing with them."
       The forensic scientist testified that the DNA2 from Zamudio-Orozco's underwear 

matched the DNA profile of J.E.Z.  The forensic scientist said that the level of DNA was 

consistent with "a body fluid such as vaginal fluid."

       Epitacio testified that during one of the phone calls from jail, Zamudio-Orozco 

talked to her about DNA evidence.  The prosecutor played the recording of the

telephone call for the jury.  During the conversation, Zamudio-Orozco said, "[M]ake 

sure that all my clothes have a lot of soap, and put a lot of the soap because then 

everything gets burned off."

       Detective Melton testified about the police investigation of the case, and 

arranging interviews with J.E.Z., J.O.Z., and Epitacio.  The prosecutor then asked, "And 

what else did you do on this case?" In response, Detective Melton mentioned that she 

attempted to interview Zamudio-Orozco at the jail.  The court sustained the defense 

objection.

       A:     I then attempted to make contacts with Mr. Zamudio at the jail, 
              attempted to interview him there.
       Q.     Let me stop you there for a second.  Did you --
                      [DEFENSE COUNSEL]:   I'm going to object and move to 
                      strike.
                      [PROSECUTOR]:   I'm going to move on.
                      THE COURT:       Well, I understand the State was prepared to 
                      move on for the record.  The court sustains the objection for 

       2 (Deoxyribonucleic acid.)
                                               5 

No. 65557-4-I/6

                      the record.

       At the conclusion of the State's case, the defense moved for a mistrial or 

dismissal on the grounds that Detective Melton's testimony was an improper "comment 

upon what [Zamudio-Orozco] says or doesn't say."  In response, the prosecutor argued 

that Detective Melton's statement was not a comment on Zamudio-Orozco's right to 

remain silent. The trial court denied the motion for a mistrial.

       Zamudio-Orozco testified on behalf of the defense.  Zamudio-Orozco said that 

he never had any sexual contact with J.E.Z. Zamudio-Orozco said that because he 

would not allow J.E.Z. and J.O.Z. to have boyfriends, "[t]hey started hating me because 

of that." Zamudio-Orozco testified that he "just [knew] how much of a liar [J.E.Z.] is."

Zamudio-Orozco testified that he did not sign the no-contact order.  But Zamudio-

Orozco admitted that he knew he was prohibited from contact with J.E.Z. and that he
talked to her during phone calls from the jail.3

       The jury convicted Zamudio-Orozco of two counts of rape of a child in the third 

degree and one count of misdemeanor violation of a no-contact order.  The jury 

       3 In Zamudio-Orozco's trial testimony, he states in pertinent part:
       Q.     And now someone with your name signed [the no-contact order] without your 
              knowledge, is that your testimony?
       A.     Yes.  The name here doesn't match the signature.  Here it says Marcus Zamudio 
              and the signature said Marco.
       . . . .
       Q.     And you knew that you were not to have any contact with [J.E.Z.] since 
              January -- December 7th, 2009 up until now, right?
       A.     Uh-huh.
                      THE COURT:   And that's a yes, correct?
                      MR. ZAMUDIO:   Yes.
                      THE COURT:   Thank you.
       Q.     ([Prosecutor]:)  Yet you had a ton of contact with [J.E.Z.]; is that correct?
       A.     At Christmas.
       Q.     And then again in January, correct?
       A.     The thing is, when I call, my wife puts the phone on speaker and so they're all 
              there.
                                               6 

No. 65557-4-I/7

acquitted Zamudio-Orozco on the other counts. The court imposed a standard-range 

sentence.  

                                               7 

No. 65557-4-I/8

                                          ANALYSIS

       Zamudio-Orozco argues that Detective Melton improperly commented on his

exercise of his constitutional right to remain silent.  

       The Fifth Amendment provides that "[n]o person . . . shall be compelled in any 

criminal case to be a witness against himself." U.S. Const. amend. V.  The Fifth 

Amendment applies to the states through the Fourteenth Amendment.  Griffin v. 

California, 380 U.S. 609, 619, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).  

       A comment on a defendant's post-arrest silence violates due process.  State v. 

Burke, 163 Wn.2d 204, 217, 181 P.3d 1 (2008); State v. Easter, 130 Wn.2d 228, 236, 

922 P.2d 1285 (1996).  "A police witness may not comment on the silence of the 

defendant so as to infer guilt from a refusal to answer questions."  State v. Lewis, 130 

Wn.2d 700, 705, 927 P.2d 235 (1996).  

       An improper comment on the defendant's silence occurs if a police witness 

testifies that a witness refused to speak with him or her, if the State purposefully elicits

testimony as to the defendant's silence, or if the State comments on the defendant's 

silence in its closing argument.  State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 

(2002).  "A remark that does not amount to a comment is considered a 'mere reference'

to silence and is not reversible error absent a showing of prejudice."  Burke, 163 Wn.2d 

at 216 (quoting Lewis, 130 Wn.2d at 706-07).

       Here, we conclude that Detective Melton's ambiguous reference to an attempt to 

interview Zamudio-Orozco at the jail did not violate his constitutional rights.  The 

testimony at trial established that Zamudio-Orozco never exercised his right to remain 

silent.  Officer Wilson testified that Zamudio-Orozco waived his Miranda rights when he 

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No. 65557-4-I/9

was arrested and agreed to talk to the police. As the prosecutor pointed out, Detective 

Melton's statement about attempting to contact Zamudio-Orozco at the jail to interview 

him did not imply that Zamudio-Orozco invoked his right to remain silent.  

       [I]t didn't rise to that level of commenting on the defendant's right to 
       remain silent.  And I stopped her before she went on to say what she did 
       when she got to the jail.  I don't think -- I mean, even in the worst light, I 
       don't think that the jurors are going to infer necessarily that she went over 
       there and the defendant didn't want to talk, because from previous 
       testimony it sounds like if the defendant spoke to the officer, the arresting 
       officer more than once, and had a fairly lengthy conversation, so I don't 
       think anyone is assuming that she went over there and he invoked 
       necessarily.  And she definitely, definitely did not comment on his right to 
       invoke, if in fact he did, but we didn't even get that far.

       The court denied the motion for a mistrial on the grounds that the detective's 

testimony was not a comment on the defendant's right to remain silent.  In its oral 

ruling, the court states, in pertinent part:

       For the record, the court will deny the motion for a mistrial or dismissal.  
       There was a proper objection, which the court sustained, and at the same 
       time the prosecutor indicated that prosecutor had been interrupted and 
       was going to other subjects.  The jury did not hear anything at all that 
       would constitute a comment on the defendant's right to remain silent, so 
       the motion is denied.

We also conclude that Zamudio-Orozco cannot establish prejudice. At most, the 

testimony was a reference to the right to remain silent and the prosecutor did not refer 

to the testimony during the trial.

Statement of Additional Grounds

       Zamudio-Orozco argues his speedy trial rights were violated when the court 

granted the motions to continue the trial date.  The motions for continuance of trial 

made on March 12, 2010, April 16, 2010, and May 3, 2010 complied with the 
requirements of CrR 3.3(f)(2).4  

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No. 65557-4-I/10

       Next, Zamudio-Orozco contends that the trial court erred in denying his motion 

to suppress the underwear the police took into evidence the evening of his arrest.  We 

review a trial court's decision on a motion to suppress to determine whether the 

findings are supported by substantial evidence and whether those findings, in turn, 

support the conclusions of law.  State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 

(2003); State v. Broadaway, 133 Wn.2d 118, 130, 942 P.2d 363 (1997).  Substantial 

evidence supports the trial court's decision to deny the motion to suppress.

       Zamudio-Orozco also contends that the trial court erred in permitting the State to 

amend the information on the first day of trial.  Zamudio-Orozco argues the amendment 

forced him to choose between unprepared counsel and waiver of his speedy trial rights.

We review the decision to grant a motion to amend an information for abuse of 

discretion.  State v. Schaffer, 120 Wn.2d 616, 621-22, 845 P.2d 281 (1993).  A trial 

court abuses its discretion if its decision is manifestly unreasonable or exercised on 

untenable grounds, or for untenable reasons.  State ex rel. Carroll v. Junker, 79 Wn.2d 

12, 26, 482 P.2d 775 (1971).  "The court may permit any information . . . to be amended 

at any time before verdict or finding if substantial rights of the defendant are not 

prejudiced."  CrR 2.1(d); see also Schaffer, 120 Wn.2d at 621.  The defendant has the 

burden of showing prejudice.  State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 

(1982).  If a defendant is prejudiced by an amendment, then he or she should be able 

to demonstrate this fact.  Shaffer, 120 Wn.2d at 623.  "The fact a defendant does not 

request a continuance is persuasive of lack of surprise and prejudice."  Gosser, 33 Wn. 

       4 CrR 3.3(f)(2) provides that "the court may continue the trial date to a specified date when such 
continuance is required in the administration of justice and the defendant will not be prejudiced in the 
presentation of his or her defense."
                                              10 

No. 65557-4-I/11

App. at 435.

       Here, Zamudio-Orozco cannot show prejudice.  The amended information added 

two charges of rape of a child in the third degree for the same charging period alleged 

in the original information, one charge of tampering with a witness, and two counts of 

misdemeanor violation of a no-contact order.  Although Zamudio-Orozco's counsel 

objected to the addition of the charges of witness tampering and violation of a no-

contact order on the grounds that discovery as to those charges was incomplete, 

counsel conceded that the State notified the defense of the intent to amend the 

information before an omnibus hearing in April 2010, and defense counsel did not 

move for a continuance.

       Last, Zamudio-Orozco claims his attorney provided ineffective assistance of 

counsel by failing to move for a mistrial because the court granted the State's motion to 

withdraw an illustrative exhibit.  Because the illustrative exhibit was marked but not 

admitted into evidence, Zamudio-Orozco can establish neither deficient performance 

nor prejudice.  See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).  

       Affirmed.

WE CONCUR:

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No. 65557-4-I/12

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