      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 77719-0-1
                     Respondent,
       V.                                        DIVISION ONE

D'ANGELO JAIME JIMENEZ,                          UNPUBLISHED OPINION

                     Appellant.                  FILED: July 15, 2019


       LEACH, J. — D'Angelo Jaime Jimenez appeals his conviction for rape of a

child in the third degree for raping A.B. At the time of the incident, 19-year-old

Jimenez and 15-year-old A.B. were friends. Jimenez challenges the sufficiency

of the evidence supporting his conviction and asserts two evidentiary errors.

First, A.B.'s testimony, her mother's testimony about the text messages her

mother exchanged with Jimenez, and nurse examiner Kristine Perry's testimony

that A.B. had some vaginal redness after the incident, in addition to the fact that

this court defers to the trier of fact on witness credibility, mean sufficient evidence

supports Jimenez's conviction. Second, Perry's testimony that A.B. identified

Jimenez as the assailant is admissible under the medical diagnosis or treatment

exception to the hearsay rule because A.B. is a child. Last, Perry's testimony
No. 77719-0-1 / 2



about A.B.'s chastity violated the trial court's ruling in limine barring the

admission of evidence about A.B.'s character but was not prejudicial. We affirm.

                                BACKGROUND

      A.B. and Jimenez met during the summer of 2015 when A.B. was 15

years old and Jimenez was 19. A.B. told Jimenez that she was 15. A.B.'s

mother, Sara Brooks, reminded Jimenez regularly that A.B. was 15. Brooks did

not know Jimenez's exact age but knew that he had graduated from high school,

so she assumed that he was at least 18. A.B. did not have her own phone, so

she used Brooks's phone to text Jimenez. When A.B. wanted to text Jimenez,

she asked for Brooks's permission. A.B. testified that she and Jimenez never

discussed being more than friends or having sex "because [she] knew [she]

wasn't ready."

      On July 22, A.B. and Jimenez went to get frozen yogurt in Snohomish.

Jimenez picked up A.B. in his car and parked on the side of Tester Road. A.B.

testified that Jimenez pulled a bag of "Molly"1 from the driver's side door and

asked if she wanted some. A.B. stated that when she asked him what it did, he

said it would make her "happy." He put some Molly on a key and then put it on

her tongue. Then he told her that it would make her "horny." A.B. testified that




      1 Detective Joan Gwordske testified that "Molly," also known as "Ecstasy"
or "MDMA," is methylenedioxymethamphetamine. "Mt's a stimulant and a
hallucinogen and it affects the production of serotonin, dopamine, and
norepinephrine inside the body."

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No. 77719-0-1/ 3



this made her feel "terrified." She could hear him snorting Molly after he put

some on her tongue.

       A.B. testified that Jimenez asked to perform oral sex on her and she said

no. After he asked twice more, she said, "[W[hatever, sure." Jimenez pulled off

her pants and underwear and put them on the passenger side floor. She stated

that he "put my bottom on the middle of the console, and I don't remember what

happened after that." , She said the Molly "made me feel like I wasn't there.

Like—as if I were talking and I didn't know I was talking. . . . [A]nd my vision was

just wavy." She testified that the next thing she remembered was "slouching" in

the back seat "with my legs going to the left of the back seat and my head was

against the window against the right side." She remembered the back driver's

side door was open, Jimenez was standing there, and then he got on top of her.
                       1
She "felt like a pop" and "heard a pop" inside her stomach. When she felt the

"pop," "it hurt" and "felt really weird." She did not see Jimenez's penis go inside

of her, but she did see him holding his penis standing in the open back driver's

side door. She did not know whether he ejaculated or used a condom.

       On cross-examination, Jimenez's trial counsel asked A.B. about her

written statement to police. A.B. testified that her written statement did not

include her testimony that Jimenez asked to perform oral sex on her to which she

said no or that he put I- er on the center console naked from the waist down. She

could not explain why she remembered those details during direct examination

but not when she was writing her statement for police. Jimenez's trial counsel


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No. 77719-0-1/4



asked, "Is it possible that the oral sex didn't actually happen?" A.B. responded,

"It could be possible, but it's just my memory." She also did not know why she

did not include in her statement but remembered during direct examination that

she told Jimenez to stop when she was in the front seat. And she testified she

"could be wrong" about intercourse happening in the backseat.

      A.B. testified that she thinks Jimenez was still on top of her and inside of

her when her mother texted him saying that she had to come home. Right after

the incident, she thought Jimenez had raped her but did not immediately tell

anyone. She remembered being scared to do so when she got home because

she did not know how her family would react to her doing Molly. She also

remembered sitting on the couch when she got home but did not remember

about the two days following the incident, like if she felt any pain or if there was

any blood in her underwear. Three days after the incident, she felt a burning

pain when she urinated. She then told her grandmother what had happened.

Her grandmother told Brooks who contacted the police.

      Although A.B. testified that she did not remember texting Jimenez the

night of the incident, a record of their text messages shows that A.B. texted

Jimenez on July 22 around 7:00 p.m., stating, "It's [A.B.] and don't worry, I am

ha, ha." He asked her what she was doing and to message him on Facebook.

He also asked her if she used the bathroom. In response, she stated, "No, I was

cleaning my room, LOL." Jimenez responded, "Well then, LOL, you better, ha,

ha, ha." After they exchanged a number of messages about Jimenez watching


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No. 77719-0-1/ 5



soccer and A.B. cleaning, Jimenez again asked her, "[D]id you use the bathroom

yet, LOLOL?" A.B.'s last message to Jimenez on July 22 stated, "Yeah, I just

did, LOL."

      Brooks testified that she also texted with Jimenez on July 22. She first

texted Jimenez around 6:00 p.m. when he and A.B. were still together and

stated, "[A.B.] ran off without doing her housework. She needs to get home and

get her stuff done." Jimenez responded, "Okay, right now?" She responded,

"Yeah, right now." And he stated, "Okay. Well we just got to Snohomish, so I

guess we will go back." Brooks responded, "Yep. Why did you guys go to

Snohomish." And he said, "Get ice cream from this yummy froyo place I know."

Brooks stated, "Well, sorry, but she needs to get her stuff done, plus she never

asked to go anywhere. She just told me what she was doing." Jimenez replied,

Oh, okay," and Brooks stated, "She is not an adult yet, only 15." Jimenez said,

"Sorry, I thought you knew we were going." Brooks responded, "Nope." And at

6:40 p.m. Jimenez stated, "On our way." After Jimenez had taken A.B. home, he

texted,"Hope she does her chores."

      Brooks also testified that the day of the incident, she saw some

photographs of A.B. and Jimenez together on Facebook that made her

concerned that they were dating. Because of these photos, on July 25, Brooks

texted Jimenez,"You need to stop dating my daughter. She just turned 15. You

are 19, way too old to even think of my daughter in that way. You do realize that

my daughter is under the age of [consent], so you just touching my daughter is


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child molestation." He responded, "We are not even dating, we are just good

friends.     Everyone thinks we are dating because of what people see on

Facebook. 1 already had told her to stop posting. . . . Sorry that we can't be good

friends and please don't ever use those words again, very unnecessary." Brooks

replied, "[S]he already admitted to it, but she says she broke it off. . . already.

You can't bullshit a bullshitter." He stated,

          Yeah, I had told her that we couldn't date because she is younger
          than me and I am not bullshitting. But, yeah, she liked me, but I
          couldn't really do much about how someone feels about me. Oh,
          can only control my feelings. Do you get me? . . . Guess 1 will just
          have to not talk to her because of this, I'm sorry.

Brooks responded, "It's more like there will be a sit down with [my fiancé] Darrell

and I."

          Brooks next texted Jimenez on August 6, after she had learned of the

incident. She stated, "I know everything you gave and did to my daughter. You

are. . . not the only person who knows. You are not getting away with it, I

promise." Jimenez responded,

      [W]hat are you talking about?. . .[W]e really liked each other. She
      was my best friend I have ever met but now we can't even talk
      because of something stupid. I'm sorry, please understand. We
      can talk about this in a calm manner. No need for this to get angry.

Brooks stated,

          You gave her Molly and then proceeded to have oral sex with her
          and then actual sex. Her clothes have already been taken in to test
          for DNA [deoxyribonucleic acid]. I also took her in for [a] sexual
          assault examine [sic]. Tomorrow is her last pregnancy test since
          you raped her without a condom.




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No. 77719-0-1/7



Jimenez replied, "Oh, my God, please don't say that. You know I am the nicest

soul you have ever met. Please stop and let's talk about this. . . . Please answer

me." Brooks stated, "There isn't anything left to talk about. It is now out of my

hands. Quit driving past her waving. Don't pass by our. . . house anymore."

      After he repeatedly asked Brooks to call him or answer his call, Brooks

texted, "She is 15 and you are almost 20. She is a child and under the age of

consent. Do not contact any of us again." Jimenez replied,

      There is no need for you to talk charg[ing] me with rape for a
      teenage fuck up. I am not some old man in his 30s2 I just
      graduated from high school. Okay, I'm sorry, but I honestly didn't
      rape or even try to rape your daughter. I even assured her that I
      didn't want to because it might not be the right time, and she said it
      was all right. But yes, I understand where you are. ... I understand
      where you are coming from. I'm sorry. Bye.

      On July 26, Kristine Perry, a forensic nurse examiner, performed a sexual

assault exam on A.B. Perry observed some vaginal redness caused by an

inflammatory response to some irritation. Perry testified that the location of the

redness meant that the assault most likely occurred while A.B. was on her back.

      Detective Joan Gwordske searched Jimenez's car using an alternative

light source that illuminates any biohazard material like body fluid inside the

vehicle. She took swabs from three different locations in the back seat that

luminesced under the light. Washington State Patrol lab technician Carol Vo

found that none of the DNA swabbed from Jimenez's car matched his DNA. Vo

also analyzed the vaginal swabs taken from A.B. and did not find any male DNA

in them.


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      On October 27, 2017, a jury found Jimenez guilty of rape of a child in the

third degree. He appeals.

                                   ANALYSIS

                            Sufficiency of the Evidence

       First, Jimenez challenges the sufficiency of the evidence to support his

conviction for rape of a child in the third degree. We disagree.

      Whether the State presented sufficient evidence is an issue of law that this

court reviews de novo.2 In reviewing the sufficiency of the evidence, this court

determines "whether, after viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found guilt beyond a reasonable

doubt."3 "'When the sufficiency of the evidence is challenged in a criminal case,

all reasonable inferences from the evidence must be drawn in favor of the State

and interpreted most strongly against the defendant.'"4        A sufficiency claim

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

drawn from that evidence.5 We view circumstantial evidence equally as reliable

as direct evidence.6    We defer to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and persuasiveness of the evidence.7




       2 Statev. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014).
      3 State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010).
      4 Kintz, 169 Wn.2d at 551 (quoting State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992)).
      5 Kintz, 169 Wn.2d at 551.
      6 Kintz, 169 Wn.2d at 551.
      7 State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).



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No. 77719-0-1 / 9



       As a preliminary issue, the State appears to claim that this court should

not review Jimenez's sufficiency challenge because he did not make this claim in

the trial court. But a defendant may raise a constitutional claim for the first time

on appea1.8 A sufficiency claim is a question of constitutional magnitude because

its purpose is to "ensure that the trial court fact finder rationally appl[ied] the

constitutional standard required by the due process clause of the Fourteenth

Amendment, which allows for conviction of a criminal offense only upon proof

beyond a reasonable doubt.'"9

      Jimenez relies on State v. Alexander,19 in which a jury convicted

Alexander of two counts of first degree rape of a child. On appeal, he asserted

that the evidence on count one was insufficient to prove that more than one act

of sexual intercourse occurred during the charging period or that digital

penetration occurred.11 In reversing his convictions, this court held that without

multiple    witnesses' improper testimony      and   the   prosecutor's improper

statements, the inconsistencies in the victim's testimony were too extreme and

the evidence presented to the jury was too confused to allow the jury to find




      8    RAP 2.5(a)(3); State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646
(1983).
      8 !Berg, 181 Wn.2d at 867 (alterations in original) (internal quotation marks
omitted) (quoting State v. Rattana Keo Phuong, 174 Wn. App. 494, 502, 299
P.3d 37 (2013)).
      10 64 Wn. App. 147, 149, 822 P.2d 1250 (1992).
      11 Alexander, 64 Wn. App. at 157.



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No. 77719-0-1 / 10



Alexander guilty on either count.12 These inconsistencies related to when the

alleged rapes occurred and whether he had touched her inappropriately.13

       Here, the State had to prove each of the following elements beyond a

reasonable doubt to secure a conviction for third degree rape of a child: (1) On

July 22, 2015, Jimenez had sexual intercourse with A.B.; (2) A.B. was at least 14

years old but was less than 16 years old at the time of the sexual intercourse and

was not married to Jimenez; (3) A.B. was at least 48 months younger than

Jimenez; and (4) the rape occurred in Washington state.

       Jimenez claims that the State did not prove the first element beyond a

reasonable doubt. He asserts that similar to Alexander, A.B.'s testimony was

inconsistent and contradictory. Jimenez notes that she did not remember how

she got on the console or anything thereafter until she was slouched in the

backseat. She felt a "pop" and saw Jimenez holding his penis, but she did not

see his penis go inside of her or remember how it felt. She did not include all the

details in her written statement to police that she testified about, and she testified

that it was possible the oral and vaginal sex might not have happened.

       First, unlike the victim's testimony in Alexander, A.B.'s testimony was not

contradictory. Although A.B. does not remember many details surrounding the

incident and testified that she "could be wrong" that Jimenez had sex with her,

her testimony did not contradict what she testified she remembered did happen.



       12 Alexander, 64 Wn. App. at 158.
       13 Alexander, 64 Wn. App. at 149-50.



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No. 77719-0-1/ 11



Second, Jimenez's repeated questioning of A.B. by text message on the night of

the incident about whether she had gone to the bathroom and the text messages

between Brooks and Jimenez provided circumstantial evidence that Jimenez and

A.B. had sex. Last, Perry testified that she observed some redness on A.B.'s

vagina. Because this court defers to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence, and

any alleged inconsistencies in A.B.'s testimony were not bolstered, like the

victim's in Alexander, by improper statements, sufficient evidence supports

Jimenez's conviction.

            Medical Diagnosis or Treatment Exception to the Hearsay Rule

       Next, Jimenez asserts that the trial court improperly admitted Perry's

testimony about A.B.'s identification of Jimenez as the assailant and A.B.'s

chastity. We conclude that although Perry's testimony about A.B.'s chastity was

error, it was not prejudicial.

       "'Hearsay' is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted."14     Hearsay evidence is inadmissible unless an exception

applies.15 We review a trial court's decision on the admissibility of statements

under the hearsay rules for an abuse of discretion.16 We will not disturb the trial




       14 ER 801(c).
       15 ER 802.
       16 State v. Woods, 143 Wn.2d 561, 595, 23 P.3d 1046 (2001).



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No. 77719-0-1/ 12



court's ruling unless we believe that no reasonable judge would have made the

same ruling.17

      At issue here is ER 803(a)(4), the medical diagnosis or treatment

exception to the hearsay rule.         This exception allows the admission of

"[s]tatements made for purposes of medical diagnosis or treatment and

describing medical history, or past or present symptoms, pain, or sensations, or

the inception or general character of the cause or external source thereof insofar

as reasonably pertinent to diagnosis or treatment."18 A party demonstrates that a

statement is "reasonably pertinent to diagnosis or treatment" when "(1) the

declarant's motive in making the statement is to promote treatment and (2) the

medical professional reasonably relied on the statement for purposes of

treatment."18

A. Peny's Testimony about A.B.'s Identification of the Assailant

       First, Jimenez contends that the trial court erred in admitting Perry's

testimony about A.B.'s identification of Jimenez as the assailant. "Because ER

803(a)(4) pertains to statements 'reasonably pertinent to diagnosis or treatment,'

it allows statements regarding causation of injury, but generally not statements

attributing fault."2° Jimenez cites State v. Redmond,21 in which our Supreme

Court held that the trial court abused its discretion by admitting two attributions of


       17 Woods, 143 Wn.2d at 595-96.
       18 ER 803(a)(4).
       19 State v. Williams, 137 Wn. App. 736, 746, 154 P.3d 322 (2007).
       29 State v. Redmond, 150 Wn.2d 489, 496, 78 P.3d 1001 (2003).
       21 150 Wn.2d 489, 497, 78 P.3d 1001 (2003).



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No. 77719-0-1 /13



fault in the victim's medical records, including the statements that "'an ex-student

accosted and dragged Mr. Johnson from his auto" and "[Johnson] was accosted

in the parking lot by another male." When the declarant is a child, however,

statements about the identity of the abuser are reasonably necessary to the

child's medical treatment because a medical provider needs to know who abused

a child to avoid potentially sending her back to the abusive relationship and to

treat any psychological injury.22 For example, in State v. Hopkins,23 Division Two

of this court held that a doctor's testimony about the 13-year-old victim's

identification of her abuser was admissible under ER 803(a)(4) because the

victim was a child.

       Here, the trial court granted the State's motion in limine to allow Perry's

testimony about A.B.'s description of the crime but stated, "[W]ith regard to any

questions about who did it, the State will have to show authority that allows it."

During Perry's direct examination, the prosecutor asked her what A.B. told her

about what had happened to her and why she was there. Perry responded,"She

told me that she was there because she—her boyfriend had forced intercourse

with her." Later, Perry identified A.B.'s boyfriend as Jimenez. Jimenez's trial

counsel objected to Perry's first statement and, outside of the presence of the

jury, asserted that Perry's testimony violated the court's ruling in limine about the

issue. He also asked for a mistrial. The prosecutor responded that Perry's



       22 Statev. Hopkins, 134 Wn. App. 780, 788, 142 P.3d 1104 (2006).
       23 134 Wn. App. 780, 787-88, 142 P.3d 1104 (2006).



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No. 77719-0-1 /14



statement was for purposes of medical diagnosis or treatment because it was

pertinent for Perry to know that she was not sending A.B. home with her abuser.

       The court denied Jimenez's counsel's request for a mistrial and ruled that

Perry's testimony was admissible under ER 803(a)(4) based on our Supreme

Court's reasoning in State v. Woods.24         In Woods, the Court rejected the

argument that ER 803(a)(4)'s application is limited to statements related to the

diagnoses and treatment of physical injuries and established that it also includes

statements related to the diagnoses and treatment of psychological issues.25

       A.B. was 15 years old at the time of the incident and was thus a child.

This means Perry's testimony that A.B. identified Jimenez as the assailant was

admissible under ER 803(a)(4) because this information was reasonably related

to A.B.'s potential physical and psychological treatment. The trial court did not

abuse its discretion by admitting this testimony.

B. Perry's Testimony About A.B.'s Chastity

       Second, Jimenez claims that the trial court erred in admitting Perry's

testimony stating what A.B. told her about her virginity.

       During her direct examination, Perry testified that A.B. told her that she

and Jimenez broke up two days after the incident. Reading from her report,

Perry stated, "'The patient states'—would you like me to say this next part?" The

prosecutor. told Perry to "[g]o ahead." And Perry testified, "The patient states



       24 143 Wn.2d 561,23 P.3d 1046 (2001).
       25 Woods, 143 Wn.2d at 602-03.



                                        -14-
No. 77719-0-1 /15



she would never have given up her virginity at the age of 15, stating that she was

planning on waiting 'a lot longer than this."

       Outside the presence of the jury, Jimenez's trial counsel objected,

claiming this evidence violated the trial court's ruling in limine barring either party

from introducing character evidence about A.B.'s "sexual tendencies or sexual

history or reputation in the community for sexual morality." He stated Perry's

testimony was also a violation of RCW 9A.44.020, the rape shield law, and ER

404(a) and ER 412, concerning the admissibility of character evidence and the

victim's past sexual behavior, respectively. He additionally claimed a violation of

Jimenez's Sixth Amendment right to confront witnesses against him.26               He

asserted that the State was improperly "back dooring credibility evidence about

[A.B.'s] chastity. .. to bolster her credibility." He asked the court to dismiss the

case based on a violation of Jimenez's due process rights. The State responded

that Perry's testimony was admissible under ER 803(a)(4) because in a rape

case, whether a victim has had sex before the incident may relate to her

diagnosis or treatment. The trial court did not rule on the objection but, instead,

reserved it.

       On appeal, Jimenez does not assert a confrontation clause violation and

appears to raise only the evidentiary issues that his trial counsel raised below.

He also appears to claim cumulative error based on both of his assertions of



      26 "In all criminal prosecutions, the accused shall enjoy the right to . .. be
confronted with the witnesses against him." U.S. CONST. amend VI.

                                         -15-
No. 77719-0-1/16



evidentiary error. Perry's testimony that A.B. told her she had been a virgin

before the incident does, in fact, violate the trial court's ruling in limine prohibiting

either party from introducing evidence about A.B.'s sexual history. Testimony

that violates a ruling in limine may require a mistrial if it prejudiced the jury.27 In

determining whether an "irregularity" may have influenced the jury, we evaluate

(1) its seriousness, (2) whether the statement was cumulative of other evidence

properly admitted, and (3) whether an instruction to disregard it cured any

prejudice.28

       Here, Perry's challenged testimony was not cumulative of other admitted

evidence and the trial court did not give a curative instruction because it reserved

its ruling on Jimenez's trial counsel's objection. But it is not a serious irregularity.

Because A.B.'s testimony about the incident, Brooks's testimony about her text

messages with Jimenez, and Perry's testimony about A.B.'s vaginal redness

provide sufficient evidence to support Jimenez's conviction, Perry's improper

testimony is not sufficiently prejudicial to require a mistrial.          Because this

testimony is the only error Jimenez identifies, we do not address any claim of

cumulative error.

                                    CONCLUSION

       We affirm. Sufficient evidence supports Jimenez's conviction for rape of a

child in the third degree. And Perry's testimony about A.B.'s identification of the



       27 Statev. Escalona, 49 Wn. App. 251, 253-55, 742 P.2d 190 (1987).
       28 Escalona, 49 Wn. App. at 254.



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No. 77719-0-1/ 17



assailant as Jimenez was admissible under ER 803(a)(4). Although Perry's

testimony about A.B.'s chastity violated one of the trial court's rulings in limine, it

was not prejudicial.




WE CONCUR:




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                                         -17-
