State v. Ramirez–estevez
| Decision Date | 12 October 2011 |
| Docket Number | No. 40226–2–II.,40226–2–II. |
| Citation | 164 Wash.App. 284,263 P.3d 1257 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent,v.Roe Cruz RAMIREZ–ESTEVEZ, Appellant. |
OPINION TEXT STARTS HERE
Jesse Cantor, Mazzone and Cantor LLP, Everett, WA, for Appellant.John C. Skinder, Jon Tunheim, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.
PART PUBLISHED OPINION
[164 Wash.App. 285] ¶ 1 Roe Cruz Ramirez–Estevez appeals his jury trial conviction of five counts of first degree child rape. He argues that the trial court erred by (1) admitting as an excited utterance the hearsay testimonies of a school counselor and of the victim's aunt that E.O. told them that Ramirez–Estevez raped her, admitting as a prior consistent statement a digital audio recording of the victim's interview with a detective, and permitting a medical expert to testify that the results of an examination of the victim's genitals were consistent with her medical history; and (2) giving a “to convict” jury instruction violated his constitutional right to be free from multiple punishments from the same act. We affirm.
¶ 2 Ramirez–Estevez and E.O.'s mother began living together in an apartment in 2002 or early 2003. In 2005, they moved into a trailer with E.O.'s mother's three children, including E.O., who was “[a]bout eight or nine” at the time. 3 Report of Proceedings (RP) at 414. While they lived in the trailer, Ramirez–Estevez raped E.O. multiple times. Ramirez–Estevez stopped raping E.O. before he moved out of the trailer in November 2007.
¶ 3 Two or three years after the rapes occurred, during the 2008–09 school year, E.O. was a sixth grader at an elementary school. School “intervention specialist” Elizabeth Wilcox received “a parent phone call” that prompted her to ask a bilingual Spanish-speaking teacher to speak with E.O. 2 RP at 333. The teacher asked E.O. “if there was anything that [E.O.] had to say that [E.O.] had inside [her]”; in response, E.O. told the teacher about the rapes. 3 RP at 447. The teacher then brought E.O. to Wilcox's office, at which point E.O. “was crying” and appeared “[v]ery upset,” “shaky,” and “[v]ery nervous.” 2 RP at 334. When Wilcox asked E.O. “what she was so upset about,” E.O. replied that “her mom's boyfriend who used to stay with them had raped her” “a couple years ago” when she was nine years old. 2 RP at 336–37. Wilcox advised E.O. to “go home and talk to [her] mom, then call [Wilcox] so [Wilcox would] know that [E.O.] had talked to somebody at home.” 2 RP at 341–42. Wilcox also contacted Child Protective Services (CPS).
¶ 4 Sometime after speaking with Wilcox, a “shaking” E.O. approached her aunt, began to cry, said that she was feeling scared, and told her aunt that “when [E.O.] was living with [Ramirez–Estevez] he raped her” “more than once.” 2 RP at 373–75. E.O. and her aunt called Wilcox and explained “[t]hat [E.O. and her aunt] had the conversation.” 2 RP at 342.
¶ 5 After the Thurston County Sheriffs Office received a CPS referral about a possible sexual assault, a “more formal interview” took place in Wilcox's office with Wilcox, E.O., and Thurston County Sheriff's Office Detective Eric Kolb. 2 RP at 345. E.O. again was “shaking” and appeared “upset” and “teary eyed,” similar to her demeanor in her first meeting with Wilcox. 2 RP at 346. In a tape-recorded interview, E.O. told Kolb that Ramirez–Estevez had lived with E.O. and her family in the trailer when she was eight or nine and that “[Ramirez–Estevez] grabbed [E.O.] and raped [her].” Clerk's Papers (CP) at 167. E.O. described incidents in which Ramirez–Estevez took off her clothes, locked the doors to her mother's bedroom, and put his “lower front private part” that “he uses to go to the bathroom with” inside E.O.'s “lower front private part” and her “butt.” CP at 167–68. Sometimes E.O. “push[ed] him off with [her] leg” and “told him to stop,” but “he would get back on.” CP at 170. Estimating that there were about “5 to 15” of these episodes, E.O. was “positive” that these encounters happened more than 5 times, but less than 20. CP at 172. After the interview, Kolb referred E.O. to a sexual assault clinic.
¶ 6 E.O. met with Laurie Davis, a nurse practitioner at the sexual assault clinic of Providence St. Peter Hospital. Davis conducted a tape-recorded interview with E.O. in which E.O. described sexual encounters with Ramirez–Estevez that had occurred while they lived at the trailer when E.O. was about eight years old. E.O. told Davis about episodes where Ramirez–Estevez removed his clothes and E.O.'s clothes and penetrated her vagina and anus. E.O. explained that these incidents had happened on more than five occasions. Davis also conducted a physical examination and discovered “divots or notches in [E.O.'s] hymen,” which were consistent with E.O.'s description of the rapes. 3 RP at 589.
¶ 7 The State charged Ramirez–Estevez with five counts of first degree child rape under RCW 9A.44.073. During trial, E.O. testified that Ramirez–Estevez “[p]ut his private parts onto my private parts” when she was “eight or nine” “[m]ore than five times” but less than “20 or 15” times. 3 RP at 449–50, 503. E.O. explained that, while her mother was not home, Ramirez–Estevez “would start to kiss” E.O. and take off her clothes, usually in E.O.'s mother's bedroom and once in the kitchen while E.O. was taking a nap on the kitchen floor. 3 RP at 450. E.O. never told her mother about the encounters because “[she] was scared [she] was gonna get in trouble” and that “they wouldn't believe [her].” 3 RP at 483–84.
¶ 8 Davis, the sexual assault nurse practitioner who had examined E.O., testified that generally notches on a hymen “do[ ] not always mean sexual abuse” but that E.O.'s notches also were “consistent with [E.O.'s reported] medical history.” 3 RP at 593, 595. Ramirez–Estevez objected to this latter part of Davis's testimony, arguing that it was speculative; the trial court overruled this objection.
¶ 9 Wilcox testified briefly about E.O.'s statements that Ramirez–Estevez had raped her. Ramirez–Estevez objected on hearsay grounds, which objection the trial court overruled. E.O.'s aunt also testified briefly about E.O.'s statements that Ramirez–Estevez raped her. Ramirez–Estevez similarly objected on hearsay grounds, which objection the trial court also overruled.
¶ 10 While Detective Kolb was on the witness stand, the State offered into evidence a digital recording of his interview with E.O. Ramirez–Estevez objected, arguing that E.O.'s statements to Kolb were hearsay.1 Overruling Ramirez–Estevez's objection, the trial court admitted both the transcript and the recording as a prior consistent statement under ER 801(d)(1) because defense counsel's cross-examination of E.O. and other witnesses opened the door to these issues and gave rise “to at least an inference ... of [E.O.'s] recent fabrication.” 4 RP at 648.
¶ 11 After the State rested, Ramirez–Estevez moved to dismiss all five counts, arguing that “[n]o reasonable jury could find beyond a reasonable doubt that [Ramirez–Estevez] committed five counts of rape of a child in the first degree.” 4 RP at 663. The trial court denied Ramirez–Estevez's motion. Ramirez–Estevez, the sole witness for the defense, then took the witness stand and denied having had any sexual contact with E.O. The jury convicted him of all five counts. Ramirez–Estevez appeals.
¶ 12 Ramirez–Estevez argues that three of the trial court's evidentiary rulings constitute reversible error: (1) admission of Wilcox's and E.O.'s aunt's hearsay testimony under the excited utterance exception; (2) admission of the digital audio recording of Kolb's interview with E.O.; (3) and admission of Davis's testimony that E.O.'s hymenal notches were consistent with her reported medical history. These arguments fail.
¶ 13 We review evidentiary rulings for an abuse of discretion. State v. Ish, 170 Wash.2d 189, 195, 241 P.3d 389 (2010). A trial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons; an abuse of discretion also occurs when the trial court relies on unsupported facts, takes a view that no reasonable person would take, applies the wrong legal standard, or bases its ruling on an erroneous view of the law. State v. Lord, 161 Wash.2d 276, 284, 165 P.3d 1251 (2007).
¶ 14 Over Ramirez–Estevez's objections, the trial court admitted as ER 803(a)(2) excited utterances testimonies from Wilcox and E.O.'s aunt that E.O. had told them that Ramirez–Estevez had raped her. Ramirez–Estevez argues that these testimonies were hearsay, not excited utterances, because E.O. made the statements to them two to three years after the rapes occurred, not spontaneously while under the influence of the rapes. We agree with Ramirez–Estevez that Wilcox's and E.O.'s aunt's testimonies recounted E.O.'s inadmissible hearsay, not excited utterances.2 But we also agree with the State that admission of these hearsay statements was harmless error. 3
¶ 15 ER 803(a) provides that “excited utterances” are exceptions to the rule otherwise excluding hearsay statements:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
....
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
The State argues that the trial court properly admitted the challenged testimonies under the excited utterance exception to the hearsay rule because Wilcox's and E.O.'s aunt's questioning of E.O. had triggered the stress of excitement caused by recalling the two-year-old rapes. We disagree.
¶ 16 We acknowledge that (1) “ ‘the startling event or condition ... need not be the ...
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