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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           June 12, 2012
                                                                    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.  29724-1-III
                      Respondent,               )
                                                )
       v.                                       )
                                                )
JESUS FABIAN PERALES,                           )
                                                )         UNPUBLISHED OPINION
                      Appellant.                )
                                                )

       Siddoway, J.  --  Jesus Perales appeals his conviction of aggravated first degree 

murder.  Relying on the delayed discovery of the partially decomposed body of his victim

in the Yakima River three months after her throat had been cut at a location well 

upstream, he argues that the evidence that remained and was presented by the State was

insufficient to prove she was killed to conceal a rape or that she was killed with a deadly 

weapon. We conclude that the evidence was clearly sufficient to support the conviction 

and the challenged findings, and affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       On October 20, 2008, 14-year-old Francisca Hernandez accepted an invitation  

No. 29724-1-III
State v. Perales

from Miguel Flores to skip school and join him at a party at the home of his mother and 

stepfather while the parents were away. The party began at about 11 a.m.  Among others

present were Miguel's younger brother, Luis; 21-year-old Jesus Perales; and Jesus'
younger brother, Isaac.1  

       Most of those in attendance were drinking beer, including as a part of card games 

in which a player drawing an ace would have to "chug" his or her beer. 2 Report of 

Proceedings (RP) (Dec. 30, 2010) at 238.  Francisca drank to the point of intoxication.  

At some point in the afternoon, she and Miguel retired to his bedroom and had sex. 

Afterwards, Miguel went outside to smoke a cigarette.  Francisca first rejoined the group

but then went to use the bathroom.  Isaac followed her into the bathroom a few moments 

later.  

       Luis noticed Isaac follow Francisca and then heard noises suggesting that Isaac 

was having sex with her, which he went outside to report to Miguel; Miguel later testified 

that Luis told him Isaac might be raping Francisca, because he thought he heard her 

scream "like, no, stop."  Id. at 243.  Miguel came inside and pounded on the bathroom 

door, swearing at Isaac and demanding to know what he was doing.  Isaac came out, but 

       1 In providing the factual background we refer to those present at the party by their 
first names to avoid confusion, given the common last names of several.  We intend no 
disrespect.  While we recognize that witnesses regularly referred to Jesus as "Jesse," we 
use his legal name.

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not for several minutes.  

       Miguel entered the bathroom and found Francisca sitting on the floor, with her

pants down to her thighs and shirt askew.  He helped her dress, after which she told 

Miguel she wanted to go home.  Miguel and Jesus helped her into the back seat of 

Miguel's stepfather's car and began the drive to her home in Sunnyside, with Miguel 

driving and Jesus sitting in the front passenger seat.

       As they drove, Francisca began speaking about what had happened in the

bathroom and stated several times that Isaac had raped her.  She also said she was going 

to report him to the police.  According to Miguel, Jesus told her to "shut up," remarked 

that "I can't let my brother go down for that," and then told Miguel to turn around and 

drive to a rural area so that he could think about what to do.  Id. at 249.  

       He ultimately told Miguel to stop on a road by the canal system.  By this point 

Francisca had passed out in the back seat, and Jesus said they should leave her 

somewhere to sleep.  Jesus pulled Francisca out of the back seat and told Miguel to drive

slowly, so that the car would not appear to anyone who might be watching to be stopped.  

Very shortly thereafter, Jesus tapped on the back of the car and Miguel stopped again, to 

let him back inside.  Jesus said that Francisca was okay.  Miguel had neither heard nor 

did he see anything suggesting she had been harmed. 

       The next day, however, Jesus admitted to Miguel that he had killed Francisca and 

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No. 29724-1-III
State v. Perales

told him he should sell or burn his stepfather's car.  He threatened Miguel should he 

report what had happened.  Miguel soon became aware that law enforcement was 

investigating the disappearance of Francisca but initially remained silent.  He decided to 

come forward after Luis was questioned and Miguel learned from police flyers that he 

himself had become a person of interest.  Miguel consented to three taped interviews with 

police detectives beginning in late November, providing additional details over time. 

Francisca's body was recovered from the Yakima River three months later, after being 

discovered by a local fisherman.  

       Jesus Perales was charged with aggravated first degree murder.  If convicted, a 

sentence of life without the possibility of release or parole would be mandatory.  RCW 

10.95.030.  To prove aggravated first degree murder, the State must prove first degree 

premeditated murder as defined by RCW 9A.32.030(1)(a) and one or more of the

aggravating circumstances specified by RCW 10.95.020. The amended information 

alleged the following aggravating circumstances:

       [That the] premeditated First Degree Murder was committed
             (1)  for the purpose to conceal the commission of a crime, Second 
                  Degree Rape and/or Indecent Liberties, and/or to conceal the 
                  identity of the persons committing said crime, or
             (2)  in the course of, in furtherance of, or in immediate flight from the 
                  crime of Second Degree Rape and/or First Degree Kidnapping.

Clerk's Papers (CP) at 69. Deadly weapon and victim vulnerability aggravators were also 

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No. 29724-1-III
State v. Perales

charged.  

       At trial, the State called as a witness the forensic pathologist who had conducted 

the autopsy of Francisca.  He testified that the autopsy revealed that Francisca's neck had 

been slashed and she had bled to death.  He expressed the opinion, for reasons he 

explained, that the assailant had to have used a nonserrated blade of at least three inches

in length to make the cut.  He found no evidence of a sexual assault.  

       There was no evidence at trial that Jesus had been seen with a knife on October 20 

and no knife was recovered by law enforcement.  Miguel did testify, however, that he 

knew Jesus at times carried knives and that the biggest knife he had seen Jesus carry had

a six- to eight-inch blade.  

       The jury was instructed on the elements of first degree premeditated murder, first 

degree felony murder, and second degree murder.  It found Mr. Perales guilty of 

aggravated first degree murder, finding, by special verdict, each of the three aggravating 

circumstances submitted for its decision.  It also found by special verdict that Mr. Perales

was armed with a deadly weapon in committing the crime. 

       The court sentenced Mr. Perales to the mandatory life imprisonment without the 

possibility of parole plus an additional 24 months for the deadly weapon enhancement.  

This appeal followed.  

                                         ANALYSIS

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No. 29724-1-III
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       Mr. Perales challenges the sufficiency of the evidence to establish the special 

verdict findings (1) that he committed the murder to conceal the commission of the crime 

of second degree rape or to protect or conceal the identity of a person committing that 

crime and (2) that he was armed with a deadly weapon.  

       When reviewing a defendant's challenge to the sufficiency of the evidence, we 

view the evidence in the light most favorable to the State and determine whether any 

rational trier of fact could have found the elements of the charged crime beyond a 

reasonable doubt.  State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007).  "A claim 

of insufficiency admits the truth of the State's evidence and all inferences that reasonably 

can be drawn therefrom."  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  

       In determining whether the necessary quantum of proof exists, we need not be 

convinced of the defendant's guilt beyond a reasonable doubt but only that substantial 

evidence supports the State's case.  State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 

(1992).  Substantial evidence means evidence in the record of a sufficient quantity to 

persuade a fair-minded, rational person of the truth of the finding.  State v. Hill, 123 

Wn.2d 641, 644, 870 P.2d 313 (1994).  When conducting a substantial evidence review, 

circumstantial evidence is just as reliable as direct evidence.  State v. Delmarter, 94 

Wn.2d 634, 638, 618 P.2d 99 (1980); State v. Epefanio, 156 Wn. App. 378, 384, 234 

P.3d 253, review denied, 170 Wn.2d 1011 (2010).  

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No. 29724-1-III
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                                               I

       Mr. Perales argues that there is insufficient evidence of the aggravating 

circumstance of concealment of second degree rape because there was no evidence that a 

second degree rape was committed.  He concedes that the State was not obliged to 

specifically allege or instruct on the crime to be concealed or the person being protected.  

State v. Gentry, 125 Wn.2d 570, 602-03, 888 P.2d 1105 (1995); State v. Jeffries, 105 

Wn.2d 398, 420, 717 P.2d 722 (1986) (concluding that due process "does not require that 

the specific crime be charged and included in the jury instructions").  But while such 

instruction was not required, the State was required to present sufficient evidence that the 

murder was committed with the intent to conceal a crime or the identity of a person 

committing a crime.  State v. Longworth, 52 Wn. App. 453, 465-66, 761 P.2d 67 (1988).  

And because the State chose in this case to identify second degree rape as a crime that, in 

its view, the murder was intended to conceal -- including in the jury instructions and 

special verdict forms -- Mr. Perales contends that the State assumed the added burden of 

proving that the crime being concealed was second degree rape.  Br. of Appellant at 11-

12; State v. Hickman, 135 Wn.2d 97, 103-04, 954 P.2d 900 (1998) (under law of the case 

doctrine, State assumes the burden of added elements included in the jury's instructions).

       Mr. Perales argues that here, unlike in State v. Boggs, 80 Wn.2d 427, 431, 495 

P.2d 321 (1972), there was no direct or sufficiently substantial circumstantial evidence of 

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No. 29724-1-III
State v. Perales

sexual penetration.  The forensic pathologist testified that he found no tears or other 

mechanical damage in the tissue of the vaginal area.  There was no testimony that semen 

or other DNA (deoxyribonucleic acid) material was present.  Isaac did not testify to 

anything happening in the bathroom.  

       Addressing the evidence that was presented, Mr. Perales argues that Luis's

testimony as to what he heard is as consistent with indecent liberties as it is with rape.  

He characterizes Miguel's testimony as to Francisca's appearance when he entered the 

bathroom as comparable to evidence that was found insufficient to support a charge of 

rape in State v. Maupin, 63 Wn. App. 887, 894, 822 P.2d 355 (1992) (lacking expert 

opinion of sexual intercourse given the condition of the victim's body, the facts that her 

panties were missing, her nightgown was torn, and the lower half of her body was not 

covered by her snowsuit "at most suggests the possibility of some unspecified sex 

offense").

       The State responds first that even if accepted, Mr. Perales's argument does not 

entitle him to relief because it identified two alternative aggravating circumstances, both 

of which the jury found.  Its proof of these other aggravating circumstances is not 

challenged on appeal.  We agree.

       The jury was instructed on the following three aggravating circumstances from 

RCW 10.95.020:

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No. 29724-1-III
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              (9)  The person committed the murder to conceal the commission of 
       a crime or to protect or conceal the identity of any person committing a 
       crime, including, but specifically not limited to, any attempt to avoid 
       prosecution as a persistent offender as defined in RCW 9.94A.030;
              . . . .
              (11)  The murder was committed in the course of, in furtherance of, 
       or in immediate flight from one of the following crimes:
              . . . .
              (d)  Kidnapping in the first degree.

After finding Mr. Perales guilty of first degree premeditated murder, the jury found all 

three circumstances by special verdict.  

       Only one aggravator need be found in order to elevate a first degree premeditated 

murder conviction to aggravated first degree murder.  RCW 10.95.020 (requiring that

"one or more of the following aggravating circumstances exist"); see also In re Pers. 

Restraint of Jeffries, 110 Wn.2d 326, 339-40, 752 P.2d 1338 (1988) (either of two 

alternative aggravating circumstances would be sufficient to constitute aggravated first 

degree murder).  Mr. Perales challenges only the first of the three aggravating factors 

found by the jury, without assigning error or otherwise contesting the other two.  He even 

concedes that the evidence presented would support the jury's determination that the 

crime of indecent liberties occurred.  Br. of Appellant at 13-14.  As a result, even if Mr. 

Perales could persuade us that substantial evidence did not support the finding that he 

committed the murder to conceal the commission of the crime of second degree rape, the

insufficiency would be harmless.

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No. 29724-1-III
State v. Perales

       The State also argues that the evidence was sufficient and we find it 

unquestionably so.  Mr. Perales acknowledges that Francisca "allegedly claimed she had 

been raped." Id. at 12.  But he inexplicably dismisses her "alleged claim" and proceeds 

to discuss the shortcomings in what he refers to as the "actual evidence."  Id.  Francisca's

allegations were actual evidence.  Mr. Perales did not object at trial to Miguel's testimony 

that Francisca repeatedly said that Isaac had raped her, and defense counsel conceded 
before trial that the statements would qualify as excited utterances.2 1 RP (Dec. 14, 

2010) at 38.  Mr. Perales has not attempted to assign error to the admission of that 

evidence.  Excited utterances are admissible under ER 803(a)(2) and, where they would 

be admitted under the historical doctrine of res gestae, they do not violate the 

confrontation clause.  State v. Pugh, 167 Wn.2d 825, 834-37, 225 P.3d 892 (2009).  

       Francisca's repeated statements that Isaac raped her are further supported by the 

testimony of what Luis heard in the bathroom and reported to Miguel, and by Miguel's 

       2 The following exchange occurred during the hearing on motions in limine:
              [Defense counsel]:  . . . I'm assuming that [the prosecutor] intends to 
       present through [Miguel] statements made by [Francisca], or alleged 
       statements made by her, when she was in the car.  And I've looked and 
       looked at that. It appears that it's probably admissible under the excited 
       utterance rule.
              [Prosecutor]:  Yeah, res gestae.
              [Defense counsel]:  Yeah.  So I just wanted to make, for the record, 
       that I wasn't ignoring that aspect.
1 RP (Dec. 14, 2010) at 38.

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No. 29724-1-III
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testimony on Francisca's location and condition when he entered the bathroom.  The 

absence of evidence of vaginal injury or DNA is unpersuasive.  Evidence was presented 

that Isaac's rape followed shortly after Francisca had engaged in consensual sexual 

relations with Miguel and at a time when she was inebriated and may not have resisted, 

making mechanical injury less likely. Although a vaginal swab taken did not produce 

DNA, an officer present when Francisca's body was recovered testified that a great deal 

of water had been within her body cavities for months.  

       Substantial evidence supported the jury's finding of the aggravating circumstance

of concealment of second degree rape.

                                               II

       Mr. Perales also argues that substantial evidence does not support the jury's 

verdict on the deadly weapon aggravating factor.  We review the evidence supporting the 

jury's verdict on an aggravating factor for substantial evidence, just as we do when 

evaluating the sufficiency of the evidence supporting the elements of a crime.  State v. 

Webb, 162 Wn. App. 195, 205-06, 252 P.3d 424 (2011).  

       A knife is a deadly weapon as a matter of law if it has a blade longer than three 

inches.  RCW 9.94A.825; State v. Zumwalt, 79 Wn. App. 124, 129, 901 P.2d 319 (1995). 

To prove that a knife with a shorter blade was a deadly weapon, the State must prove that 

the knife had the capacity to cause the victim's death and was used in a way that was 

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No. 29724-1-III
State v. Perales

likely to produce or could have easily and readily produced death.  Zumwalt, 79 Wn.

App. at 129-30; see also State v. Peterson, 138 Wn. App. 477, 484, 157 P.3d 446 (2007)

(recognizing that a knife with a blade of exactly three inches is not a deadly weapon per 

se).  

       Mr. Perales's challenge to the sufficiency of evidence proceeds in some respects 

from the instructions given to the jury, which defined deadly weapon as 

       an implement or instrument that has the capacity to inflict death and, from 
       the manner in which it is used, is likely to produce or may easily produce 
       death.  
              A knife having a blade longer than three inches is a deadly weapon.  
       Whether a knife having a blade less than three inches long is a deadly 
       weapon is a question of fact that is for you to decide. 

CP at 112 (Instruction 23).  He points out that the second paragraph above leaves an 

instructional vacuum when it comes to a knife having a blade of exactly three inches, 

since it speaks of only knives with longer or shorter blades.  Given the State's inability to 

produce a knife and this gap in instruction 23, he argues the jury "could only 

impermissibly speculate about the length of a blade and whether it fell within the 

definition of a deadly weapon." Br. of Appellant at 16.  

       To the extent that Mr. Perales relies on a shortcoming in instruction 23, error has 

not been preserved.  No objection was made to the instruction at the time of trial.  He has 

not provided argument that would support our considering instructional error for the first 

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No. 29724-1-III
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time on appeal.  RAP 2.5(a); RAP 10.3(a)(6); State v. O'Hara, 167 Wn.2d 91, 99, 217 

P.3d 756 (2009) (setting forth the analytical process for deciding whether an instructional 

error alleged for the first time on appeal constitutes manifest constitutional error).  

       He is entitled to raise a substantial evidence challenge for the first time on appeal, 

Hickman, 135 Wn.2d at 103 n.3, but his argument to that end is unpersuasive.  The 

State's inability to produce the murder weapon is inconsequential, since the abundant 

circumstantial evidence presented is as reliable as direct evidence for purposes of our 

review.  See State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 (1984) (the State 

need not produce the actual weapon to prove that a defendant was armed during the 

commission of an offense).

       While the testimony of the pathologist and Miguel did not provide a basis for 

determining whether the knife had a blade that was exactly three inches long or whether it 

was longer, it did support a finding that the knife had the capacity to cause Francisca's

death and was used in a way that was likely to produce death.  The forensic pathologist 

described the wound to the front of Francisca's throat as being "halfway through the 

neck," explaining that "[w]hen it hits bone, it stops."  4 RP (Jan. 4, 2011) at 512, 513-14.

He expressed his opinion that the assailant had to have used a "lot of force" to have the 

knife track in a straight line through tissue.  Id. at 514.  In further explaining the force 

required, he testified, "[E]ither you're talking about somebody swinging a heavy sword or 

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No. 29724-1-III
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they're from behind[,] because they've had the flesh or muscles to brace and the head 

can't move because it's up against the assailant, or they have a grip on them and they can 

maintain the same degree of force without the body moving."  Id. at 524-25.  The officer 

who photographed the recovery of Francisca's body and the autopsy testified similarly,

that her neck was cut from one side of the neck across to the other.  His photographs of 

her wound were admitted into evidence.  

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No. 29724-1-III
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       Here again, substantial evidence supports the jury's finding. The judgment and 

sentence is affirmed.

       A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040.

                                                ___________________________________
                                                Siddoway, J.

WE CONCUR:

___________________________________
Korsmo, C.J.

___________________________________
Brown, J.

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