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            IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                  No. 69751-0-1
                     Respondent,
                                                  DIVISION ONE
       v.



FELIPE JOSEPH RAMOS,                              UNPUBLISHED OPINION

                     Appellant.                   FILED: June 9. 2014



       Spearman, C.J. — Felipe Ramos challenges his conviction for rape of a child in

the first degree, arguing that the trial court erred in concluding that warrantless entry

into the victim's home was necessary to provide emergency aid and in admitting

statements the victim made to a doctor in the emergency room. Ramos also argues that

the prosecutor's statements during rebuttal closing argument constituted reversible

misconduct. Finding no error, we affirm.

                                           FACTS

       On the evening of August 1, 2009, Joshua Sykes hosted a small bachelor party

at his condominium. Guests on the second floor deck noticed the lights come on in the

garage of a condominium on the other side of a shared drive. The interior of the garage
was visible through windows in the garage door. They saw an adult male wearing a

bathrobe enter the garage with a young girl. A few minutes later, they observed the two

having sexual intercourse. A guest alerted Sykes, who returned to the deck and saw
what was happening in the garage. Sykes was acquainted with the people who lived in
No. 69751-0-1/2


the condominium as neighbors. He recognized the man as Felipe Ramos and the girl as

N.S., who was nine years old at the time. After 10 to 15 minutes of sexual activity, the

man carried the girl upstairs.

       One of the party guests called 911. When police did not arrive in ten minutes, he

called again. Deputy Paul Thiede was dispatched after the second call and arrived at

about 10:43 p.m. After speaking to the person who called 911, Deputy Thiede called for

backup. Additional deputies arrived between 11:00 p.m. and 11:10 pm. Witnesses said

they had not seen anyone leave the condominium. Deputies were posted at the front

and back of the condominium to ensure that no one left. Deputy Scott Fitchett then went

to the front door of the condominium, continuously knocking and announcing "police."

Verbatim Report of Proceedings (VRP) (5/17/12) at 27-28. He received no response. At

11:36 p.m., after more backup arrived, the police decided to enter. They gathered at the

front door, knocked, and announced they were coming in. A teenager opened the door,

and police entered the residence with guns drawn. As they entered the home and

headed upstairs, one officer announced "'police conducting a welfare check.'" Clerk

Papers (CP) at 97. Police encountered Ramos and N.S. inside the home. When Ramos

and N.S. were brought outside, witnesses identified Ramos as the adult male and N.S.

as the young girl they observed having sexual intercourse in the garage.

       Ramos was photographed and penile swabs were collected. A forensic

deoxyribonucleic acid (DNA) examiner from the Washington State crime laboratory

found a DNA profile that was a mixture of two people, with one in 2.7 million individuals

in the United States, including N.S., as a possible contributor.
No. 69751-0-1/3


       Ramos was arrested and charged with two counts of first degree rape of a child

and two counts of first degree child molestation. The State subsequently lost contact

with N.S. and her family; she was therefore unavailable to testify at trial. Because one of

the first degree rape charges and one of the child molestation charges were based

solely on the testimony of N.S., those charges were dismissed without prejudice. A jury

convicted Ramos of one count of first degree rape of a child and one count of first

degree child molestation. The trial court dismissed the first degree child molestation

charge as violative of double jeopardy. Ramos appeals his conviction on the remaining

count of first degree rape of a child.

                                         DISCUSSION

                                 Emergency Aid Exception

       Ramos argues that the trial court erred in concluding that warrantless entry into

the condominium was justified by the emergency aid exception to the warrant

requirement and denying his CrR 3.6 motion to suppress evidence obtained from the

entry and search. "We review a trial court's denial of a suppression motion to determine

whether substantial evidence supports the challenged findings of fact and whether

these findings support the trial court's conclusions of law." State v. Bliss. 153 Wn. App.

197, 203, 222 P.3d 107 (2009). "Substantial evidence is 'evidence sufficient to persuade

a fair-minded, rational person of the truth of the finding.'" State v. Lew, 156 Wn.2d 709,

733, 132 P.3d 1076 (2006) (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d

722 (1999)). Conclusions of law are reviewed de novo, and unchallenged findings of

fact are verities on appeal. State v. Ague-Masters, 138 Wn. App. 86, 97, 156 P.3d 265

(2007).
No. 69751-0-1/4


       Warrantless searches are generally per se unreasonable under the Fourth

Amendment of the United States Constitution. State v. Kinzv. 141 Wn.2d 373, 384, 5

P.3d 668 (2000). "Nonetheless, there are a few 'jealously and carefully drawn'

exceptions" to the warrant requirement which 'provide for those cases where the

societal costs of obtaining a warrant... outweigh the reasons for prior recourse to a

neutral magistrate.'" State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)

(quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235

(1979). "When the State asserts an exception authorizes its intrusion into private affairs,

it bears the heavy burden of establishing that the exception applies." State v. Schultz,

170 Wn.2d 746, 754, 248 P.3d 484 (2011) (citing State v. Johnson, 107 Wn. App. 280,

284n.11,28P.3d775(2011)).

       The emergency aid exception "emerges from the police's 'community caretaking

function' and 'allows for the limited invasion of constitutionally protected privacy rights

when it is necessary for police officers to render aid or assistance.'" Schultz, 170 Wn.2d

at 754, quoting State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004). To

establish the emergency aid exception, the State must show "'(1) the police officer

subjectively believed that someone likely needed assistance for health or safety

concerns; (2) a reasonable person in the same situation would similarly believe that

there was need for assistance; (3) there was a reasonable basis to associate the need

for assistance with the place being searched; ... (4) there is an imminent threat of

substantial injury to persons or property; (5) state agents must believe a specific person

or persons or property are in need of immediate help for health or safety reasons; and

(6) the claimed emergency is not a mere pretext for an evidentiary search." Schultz, 170
No. 69751-0-1/5


Wn.2d at 754. "[TJhe failure to meet any factor is fatal to the lawfulness of the State's

exercise of authority." Id. at 760 n. 5.

        Ramos argues that the time delay between the first 911 call and the decision to

conduct a warrantless entry demonstrates that there was no imminent threat or real

emergency.1 He contends that the initial disbelief that an emergency existed at all, as

evidenced by the need for a second 911 call, and the slow methodical way the deputies

responded once arriving on the scene, demonstrate that there was no need for

immediate action and plenty of time to obtain a search warrant.

        We reject this argument and uphold the trial court's ruling that the emergency aid

exception applies. The initial 911 call is not in the record, but it appears that there was a

misunderstanding regarding what had been reported, as Deputy Thiede initially

understood that the caller was the child's stepfather. Deputy Thiede testified that after

he arrived at the residence, he decided to call for backup to help him interview

witnesses, clarify the situation, and provide officer safety. Less than an hour after he

arrived at the scene, the decision was made to enter. The trial court did not err in

concluding that the delay was prudent under the circumstances.

        The record also shows that multiple witnesses observed a child being raped in

the garage, and that she and the suspect were apparently inside the condominium. In

State v. Sadler, 147 Wn. App. 97, 124-25, 193 P.3d 1108 (2008), rev. denied, 176

Wn.2d 1032, 299 P.3d 19 (2013)), the court held that it was reasonable for police to



         1Although Ramos assigned error to any factual component of the trial court's conclusions of law
as to each of the six factors, his arguments are relevant only to factors four through six. Where a
defendant fails to support an assignment of error with citation to relevant authority or relevant facts in the
record, the court need not consider it. Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992). In any case, the record amply supports the trial court's conclusion that all six factors
were met.
No. 69751-0-1/6


conclude that leaving a minor alone with a man who was suspected of engaging her in

sadomasochistic activities to await a warrant would expose her to additional risks.

Similarly, it was reasonable for police to believe there was an imminent threat to N.S.,

including the possibility that she would be raped again or harmed in an attempt to

prevent her from disclosing what happened. The trial court did not err in concluding that

"[djeputies reasonably believed that N.S. was in immediate need of help based on the

belief that she and the defendant were still inside and based on the nature of the crime

witnessed." CP at 98.

       The trial court also concluded that the entry was not a pretext to conduct an

evidentiary search. The record shows that there was no evidentiary search of the

condominium at the time of the initial entry. Rather, deputies later obtained a warrant

and returned to search for evidence. Ramos contends that the deputies should have

asked to speak with N.S. rather than entering the residence. But an officer acting

pursuant to the community caretaking exception does not need to use the least intrusive

means. State v. Hos, 154 Wn. App. 238, 249, 225 P.3d 389 (2010). Moreover, deputies

knocked and announced to no avail, making it impossible to inquire as to N.S.'s safety

and increasing their concern that N.S. was in need of immediate help.

       Accordingly, we conclude that the findings support entry under the community

caretaking exception to the warrant requirement, and the trial court did not err by

denying Ramos's CrR 3.6 motion based on an unlawful entry.

                                  Right to Confrontation

       After Ramos was arrested, N.S. was brought to an emergency room. There, an

emergency room physician asked N.S. whether someone had hurt her that night, and
No. 69751-0-1/7


N.S. said yes, that someone had touched her privates. When asked who had done that,

N.S. said it was her mother's boyfriend. N.S. also told the doctor "it hurt to pee." VRP

(9/17/12) at 60. Over Ramos's objection, the trial court concluded that these statements

were nontestimonial and therefore admissible without violating Ramos's right of

confrontation. This court reviews confrontation clause challenges de novo. State v.

Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009) (citing State v. Mason, 160 Wn.2d

910, 922, 162 P.3d 396 (2007)).

          The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused

shall enjoy the right...to be confronted with the witnesses against him . . ." U.S. Const.

Amend. VI. The confrontation clause "bars the admission of testimonial hearsay

statements where the declarant does not testify at trial and the defendant had no prior

opportunity to confront the witness under oath." State v. O'Cain, 169 Wn.App. 228, 249,
279 P.3d 926 (2012). However, "[njontestimonial statements do not implicate the

Confrontation Clause." State v. Beadle, 173 Wn.2d 97, 111, 265 P.3d 863 (2011).

"Witness statements to a medical doctor are not testimonial (1) where they are made for

diagnosis or treatment purposes, (2) where there is no indication that the witness
expected the statements to be used at trial, and (3) where the doctor is not employed by
or working with the State."2 State v. Sandoval, 137 Wn. App. 532, 537, 154 P.3d 271
(2007). The State has the burden of proving that a statement is nontestimonial.
Koslowski, 166 Wn.2d at 417 n. 3.




          2In dicta, the U.S. SupremeCourt has also characterized statements made to medical providers
for purposes of diagnosis ortreatment as nontestimonial. Michigan v. Bryant,   U.S.   , 131 S.Ct. 1143,
1157 n 9 179 L.Ed.2d 93 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312 n. 2, 129 S.Ct.
2527, 174 LEd.2d 314 (2009); Giles v. California. 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488
(2008).
No. 69751-0-1/8


      As a preliminary matter, the State urges the court to apply the "primary purpose"

test. In the context of police interrogations, the U.S. Supreme Court has held that

whether statements are testimonial is determined by the primary purpose of the

interrogation. Davis v. Washington. 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224

(2006). "[T]he relevant inquiry is not the subjective or actual purpose of the individuals

involved in a particular encounter, but rather the purpose that reasonable participants

would have had, as ascertained from the individuals' statements and actions and the

circumstances in which the encounter occurred." Michigan v. Bryant,         U.S.    , 131

S.Ct. 1143, 1156, 179 L.Ed.2d 93 (2011). The Court, however, has "explicitly reserved

the question of 'whether and when statements made to someone other than law

enforcement personnel are 'testimonial.'" Bryant, 131 S.Ct. at 1155 n. 3 (quoting Davis,

547 U.S. at 823 n. 2. Because the primary purpose test expressly applies to

interrogation by law enforcement officers, we decline to apply it here. Rather, we apply

the three-part Sandoval test.

       Ramos argues that the second Sandoval factor has not been met because N.S.

had indications that her statements would be used at trial. The test is whether a

"'reasonable person in [N.S.'s] position would think she was making a record of

evidence for a future prosecution      " State v. Hurtado, 173 Wn. App. 592, 602, 294

P.3d 838, rev. denied. 177 Wn.2d 1021, 304 P.2d 115 (2013). Because N.S. had

already been subjected to interviews with deputies at the scene and transported to the

emergency room in a police car, Ramos contends that a reasonable person in N.S.'s

position would believe that her statements would be used at trial.




                                              8
No. 69751-0-1/9


      We reject this argument. A reasonable person in N.S's position would believe

that the statements she had already given to police would be used to prosecute Ramos.

There would be no reason for N.S. to conclude that statements she made to a doctor,

outside of the presence of police officers, would be used at trial. Rather, the reasonable

conclusion is that those statements would be used to obtain appropriate care and

treatment for N.S. Ramos's reliance on Hurtado is misplaced. In Hurtado, we held that

the victim's statements to an emergency room nurse made in the presence of a law

enforcement officer were testimonial, where the officer took a written statement from the

victim at her home and continued to gather evidence at the hospital. Hurtado, 173 Wn.

App. at 604. Here, no police officer was present when N.S. spoke to the emergency

room physician.

                                Prosecutorial Misconduct

       Ramos argues that the prosecutor violated his constitutional rights to due

process and a fair trial by misstating the law regarding presumption of innocence during

rebuttal closing argument. To prevail on a prosecutorial misconduct claim, a defendant

must show both improper conduct and resulting prejudice. State v. Johnson, 158 Wn.

App. 677, 683, 243 P.3d 936 (2010). Prejudice exists only where there is a substantial

likelihood the misconduct affected the jury's verdict. State v. Brown, 132 Wn.2d 529,

561, 940 P.2d 546 (1997). "We review a prosecutor's comments during closing

argument in the context of the total argument, the issues in the case, the evidence
addressed in the argument, and the jury instructions." State v. Boehning, 127 Wn. App.
511, 519, 111 P.3d 899 (2005). "Reviewing courts should focus less on whether the

prosecutor's misconduct was flagrant or ill intentioned and more on whether the
No. 69751-0-1/10


resulting prejudice could be cured." State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653

(2012).

      In closing argument, defense counsel argued as follows:

              If a person who is a close friend of yours were accused of
      something like this, I - the particular kind of charge, you might be
      able to fall back on what you know about them as a person. You
      might be more inclined to say to the State, 'Prove this to me
      because I know this person didn't do it.'
              Well, I submit to you that the presumption of innocence
      should be what you find comfort in as you do the difficult work of
      sifting through the State's evidence and coming to a thoughtful and
      reasoned conclusion about whether the State has proven its [sic]
      case here.
           The presumption of innocence means you have to treat Mr.
      Ramos as if you know he's not the sort of person who would do
      something like this. And you cannot find him guilty unless and until
      you're actually convinced beyond a reasonable doubt that he did,
      based on the evidence that the State has presented. VRP (9/24/12)
      at 66.

                 The prosecutor responded as follows:

                 First, with the presumption of innocence, the basic
          presumption of innocence. The defendant had the presumption of
          innocence until I proved, State proved that beyond a reasonable
      doubt that he committed this crime, which I have done.
              But he does not have the presumption for you to believe
      that, as defense said, that he is the sort of person who would not
          commit a crime like this. That is not true, that is not accurate, that is
          not in your jury instructions.
                 You don't have to presume that he's a nice guy, that he's a
          good guy, he's got great character. Because you didn't hear any of
      that.
                You presume that he's innocent until the charge is proven
          beyond a reasonable doubt, and that's all.
                 Now from the evidence, I'm sure you can conclude he's not
          such a nice guy given what he did to [N.S.]. But you certainly don't
          have some presumption that he's a stellar member of the
          community coming in here.
                 Simply, that he is not guilty until I proved it beyond
          reasonable doubt, which I did. VRP (9/24/12) at 89.




                                                 10
No. 69751-0-1/11


       Ramos did not object to the prosecutor's comments at trial. Therefore, the

argument is waived on appeal "unless the misconduct is so flagrant and ill intentioned

that it evinces an enduring and resulting prejudice incurable by a curative instruction."

State v. Walker. 164 Wn. App. 724, 730, 265 P.3d 191 (2011) rev. denied, 177 Wn.2d

1026, 309 P.3d 504 (2013). "Under this heightened standard, the defendant must show

that (1) 'no curative instruction would have obviated any prejudicial effect on the jury'

and (2) the misconduct resulted in prejudice that 'had a substantial likelihood of

affecting the jury verdict.'" State v. Emery. 174 Wn.2d 741, 761, 278 P.3d 653 (2012).

       Ramos argues that the prosecutor committed incurable misconduct by

suggesting that the presumption of innocence had dissipated prior to jury deliberations.

Prosecutors are permitted to argue that the State met its burden of proving the elements

of the crime beyond a reasonable doubt. However, "[t]he presumption of innocence

continues throughout the entire trial and may only be overcome, if at all, during

deliberations." State v. Evans, 163 Wn. App. 635, 643, 260 P.3d 934 (2011).

To the extent that the prosecutor's choice of verb tense could be construed to imply that

the presumption of innocence had dissipated prior to jury deliberations, it was improper.

But even if it was improper, we conclude that any resulting prejudice could have been

cured by an instruction.

       In State v. Reed, 168 Wn. App. 553, 578, 278 P.3d 203 (2012), the defendant

asserted that the prosecutor engaged in incurable prejudicial misconduct by stating in

rebuttal argument that the presumption of innocence "'does last all the way until you

walk into that [jury] room and start deliberating.'" The court concluded that the statement

was improper, but that a curative instruction would have neutralized any prejudice. ]d. at


                                             11
No. 69751-0-1/12


579. Similarly, if Ramos had objected at trial, the court could have clarified that the

presumption of innocence continues into jury deliberations regardless of the strength of

the State's evidence. "[R]emarks are not per se incurable simply because they touch

upon a defendant's constitutional rights." Emery. 174 Wn.2d at 763. Moreover, Ramos

has not shown a substantial likelihood that the statements affected the jury's verdict,

particularly in light of the evidence against him.

       Ramos relies on two cases in which the court held that the prosecutor committed

flagrant misconduct by expressly informing the jury that the presumption of innocence

does not apply during jury deliberations. Evans. 163 Wn. App. at 643 (prosecutor

argued that presumption of innocence "'kind of stops once you start deliberating"');

State v. Venegas. 155 Wn. App. 507, 524, 228 P.3d 813 (2010) (prosecutor argued that

presumption of innocence erodes as evidence is heard and at the conclusion of

evidence, it no longer exists). But in those cases, the prosecutor's misstatements of the

law were much more direct than they were here, there were multiple errors, and the

evidence against the defendants was not as compelling.

       Affirmed.




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