State Of Washington v. Rene Ramirez-vasquez ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 77693-2-I
Respondent,
DIVISION ONE
V.
RENE RAMIREZ-VASQUEZ, UNPUBLISHED OPINION
Appellant. FILED: July 29, 2019
SMITH, J. — Rene Ramirez-Vasquez appeals his convictions of second
degree child rape. He argues the court (1) erred by ruling statements he made to
a police detective were admissible in violation of Miranda v. Arizona1 and (2)
abused its discretion by admitting into evidence his Facebook communications
with the victim. Finding no error or abuse of discretion, we affirm.
FACTS
K.L.2 grew up being raised by her maternal grandmother in El Salvador.3
Her immediate family—including her father, Rene Ramirez-Vasquez, mother, and
two brothers—whom she did not know “very well,” lived in the United States.
1384 U.S. 436, 86 5. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 We use initials for the victim to protect her privacy.
~ K.L. lived with her grandmother from age 1 to 11.
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In August 2015, at age 11, K.L. reluctantly joined her family in Seattle.4
Shortly thereafter, Ramirez-Vasquez began touching K.L.’s hair and telling her
how he was attracted to her. His expressions of attraction to K.L. continued for
“a long time” and escalated in June 2016 to the point that Ramirez-Vasquez told
K.L. “that he wanted to make love to [her].” About a month after stating his
sexual desires, Ramirez-Vasquez began having intercourse with K.L.5
In September 2016, some of K.L.’s relatives in El Salvador saw a
Facebook Messenger6 conversation on K.L.’s Facebook account in which
Ramirez-.Vasquez expressed his romantic attraction to her. Those relatives then
relayed the information to some of K.L.’s Seattle-area relatives, who intervened
and took K.L. to a Seattle police station to report the sexual abuse.
On September 19, 2016, Detective Juan Tovar, of the Seattle Police
Department’s Sexual Assault and Child Abuse Unit, was assigned to investigate
the possible sexual assault of K.L. He called and invited K.L.’s parents to come
to the Seattle Police Department headquarters for an interview, and they both
voluntarily accepted.
~ K.L. decided to come to the United States after her parents threatened to
send “the police from here” to “go down there to” get her.
~ K.L. was age 12 at the time.
6 “Facebook Messenger is a mobile app that enables chat, voice and
video communications between Facebook web-based messaging and
smartphones.” Facebook Messenger, Whatls.com,
https ://whatis .techtarciet.com/defi n ition/Facebook-Messenger
[https://perma.cc/3Q4S-RC48].
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No. 77693-2-1/3
On September21 2016, Detective Tovar separately interviewed K.L.’s
mother and Ramirez-Vasquez in a nonlocking interview room on the sixth floor.7
Without providing any Miranda warnings, Detective Tovar interviewed Ramirez
Vasquez in Spanish for 45 minutes to an hour.8 Detective Tovar arrested
Ramirez-Vasquez at the conclusion of the interview.
On September 23, 2016, Detective Tovar visited Ramirez-Vasquez at the
King County Correctional Facility and, after providing Miranda warnings,
conducted a second interview. At this interview, Ramirez-Vasquez confirmed
that he had a Facebook account and occasionally sent messages to K.L. on
Facebook.
On September 26, 2016, the State charged Ramirez-Vasquez with two
counts of rape of a child in the second degree.
Before trial, Ramirez-Vasquez moved to suppress statements he made to
Detective Tovar during the first interview conducted at the police station and to
exclude the Facebook messages between Ramirez-Vasquez and K.L. Initially
the court ruled that the State had laid sufficient foundation for admission of the
Facebook communications. The court then held a CrR 3.5 hearing and ruled that
Ramirez-Vasquez’s interview statements would be admissible at trial.9
At trial, the court admitted the Facebook messages over Ram irez
Vasquez’s authentication objections. The State did not offer any statements from
~ Prior to the interview, Detective Tovar did not handcuff Ramirez-Vasquez
or place him under arrest.
8 Detective Tovar is fluent in Spanish.
~ Ramirez-Vasquez did not testify at the CrR 3.5 hearing.
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No. 77693-2-1/4
Ramirez-Vasquez’s first interview into evidence. K.L. testified that Ramirez
Vasquez had sex with her six or seven times. Ramirez-Vasquez did not testify.
The jury found Ramirez-Vasquez guilty as charged. He appeals.
ANALYSIS
Statements to Detective at the Police Station
Ramirez-Vasquez contends the trial court erred by ruling pretrial that his
statements to Detective Tovar were admissible in violation of Miranda.
Standard of Review
Under Miranda, the State may not use statements arising from the
custodial interrogation of an accused unless that person is informed of his or her
constitutional rights. Miranda, 384 U.S. at 444. Constitutional harmless error
analysis applies to erroneously admitted statements obtained in violation of
Miranda. State v. Nysta, 168 Wash. App. 30, 43, 275 P.3d 1162 (2012). “A
constitutional error is harmless if the appellate court is convinced beyond a
reasonable doubt that any reasonable jury would have reached the same result
in the absence of the error.” State v. Guloy, 104 Wash. 2d 412, 425, 705 P.2d 1182
(1985).
Discussion
Here, the State never offered any statements from Ramirez-Vasquez’s
September 21, 2016, interview at trial and the court never admitted any such
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statements into evidence.10 Therefore, even assuming the court’s pretrial ruling
to admit these statements was error, we conclude that any error was harmless.
In his briefing, Ramirez-Vasquez claims “[b]ecause [his] statement and
admissions during this interview were used extensively, and repeatedly, at trial
and in closing argument, this error by the court was not harmless error and
deprived [him] of his constitutional right to a fair trial.” This claim is unpersuasive.
First, he fails to cite to the record to support his claim.11 Second, he did not file a
reply brief to contest the State’s assertion that the statements were never offered
or admitted. Finally, our independent review of the record shows that the
statements were not admitted at trial.
Lastly, Ramirez-Vasquez argues that “all statements made at the second
interview should be suppressed as being related to, and the fruit of, the earlier
interview where no Miranda warnings were provided.” This argument, too, fails.
First, at the CrR 3.5 hearing, Ramirez-Vasquez did not argue “that the
second interview is inadmissible on Miranda grounds . . . [b]ecause clearly [the
detective] did read him his Miranda rights.” Second, he failed to assign error to
the court’s admission of statements from the second interview and likewise failed
to support his argument with legal authority or meaningful analysis. ~ RAP
10 The State did not seek to admit the DVD (digital video disk) recording or
the translated transcript of the September21, 2016, interview as exhibits at trial.
Nor did the State elicit testimony from Detective Tovar regarding the substance
of the first interview.
11 Though Ramirez-Vasquez points to Detective Tovar’s testimony noting
that he admitted communicating with his daughter using Facebook, the Facebook
statement came from the second (September 23, 2016) interview in which he
waived his Miranda rights. He did not make any statements concerning
Facebook in his first interview.
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No. 77693-2-1/6
1 0.3(a)(6) (requires parties to provide “argument in support of the issues
presented for review, together with citations to legal authority and references to
relevant parts of the record”); Saunders v. Lloyd’s of London, 113 Wash. 2d 330,
345, 779 P.2d 249 (1989) (declining to consider party’s argument that lacked
“adequate, cogent argument and briefing”).
Accordingly, we conclude that the court did not err in admitting statements
from Ramirez-Vasquez’s second interview.
Admission of Facebook Evidence
Ramirez-Vasquez contends the trial court abused its discretion by
admitting a Facebook conversation he had with K.L., “Exhibit 3~”12 He argues the
State did not lay an adequate foundation for or properly authenticate exhibit 3.
Standard of Review
We review a trial court’s decision to admit evidence for an abuse of
discretion.13 State v. Garcia, 179 Wash. 2d 828, 846, 318 P.3d 266 (2014). “The
requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” ER 901 (a).
The requirement under ER 901 (a) is met “if the proponent shows enough
proof for a reasonable fact finder to find in favor of authenticity.” State v. Payne,
117 Wash. App. 99, 108, 69 P.3d 889 (2003) (citing State v. Danielson, 37 Wash.
12Exhibit 3 contains screenshots of the Facebook communications
between Ramirez-Vasquez and K.L. from September 11 to September 16, 2016.
13 An abuse of discretion occurs when a trial court’s decision is manifestly
unreasonable or based on untenable grounds or reasons. Garcia, 179 Wash. 2d at
846.
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No. 77693-2-1/7
App. 469, 471, 681 P.2d 260 (1984)). The proponent “need not rule out all
possibilities inconsistent with authenticity or conclusively prove that evidence is
what it purports to be.” State v. Andrews, 172 Wash. App. 703, 708, 293 P.3d
1203 (2013) (quoting State v. Thompson, 2010 ND 10, 777 N.W.2d 617, 624).
“Because under ER 104 authenticity is a preliminary determination, the
court may consider evidence that might otherwise be objectionable under other
rules.” Rice v. Offshore Sys., Inc., 167 Wash. App. 77, 86, 272 P.3d 865 (2012).
“A trial court may, therefore, rely upon such information as lay opinions, hearsay,
or the proffered evidence itself in making its determination.” State v. Williams,
136 Wash. App. 486, 500, 150 P.3d 111(2007). “Such information must be reliable
but need not be admissible.” Williams, 136 Wash. App. at 500.
The Rules of Evidence (ER) provide a number of illustrative examples that
demonstrate methods that meet the requirements of authentication, including:
(1) Testimony of Witness with Knowledge. Testimony that a
matter is what it is claimed to be.
(4) Distinctive Characteristics and the Like. Appearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
(10) Electronic Mail (E-mail). Testimony by a person with
knowledge that (i) the e-mail purports to be authored or created by
the particular sender or the sender’s agent; (ii) the e-mail purports
to be sent from an e-mail address associated with the particular
sender or the sender’s agent; and (iii) the appearance, contents,
substance, internal patterns, or other distinctive characteristics of
the e-mail, taken in conjunction with the circumstances, are
sufficient to support a finding that the e-mail in question is what the
proponent claims.
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No. 77693-2-1/8
ER 901(b).14
In making its preliminary determination, the trial court “considers only the
evidence offered by the proponent and disregards any contrary evidence offered
by the opponent.” Rice, 167 Wash. App. at 86. “Once a prima facie showing has
been made, the evidence is admissible under ER 901,” Rice, 167 Wash. App. at 86,
but “[t]he opponent is then free to object on the basis of any other rules that may
bar the evidence or offer contradictory evidence challenging authenticity. If such
contradictory evidence is offered, the authenticity of the proponent’s evidence is
ultimately judged by the trier of fact.” In re Det. of H.N., 188 Wash. App. 744, 752,
355 P.3d 294 (2015) (footnote omitted).
Discussion
Pointing to K.L.’s denial of participating in the Facebook conversation
depicted in exhibit 3 and to his objections to the authenticity of exhibit 3,
Ramirez-Vasquez contends that there was no foundation laid to support
admitting the Facebook messages into evidence. We disagree.
During the pretrial hearing on Ramirez-Vasquez’s motion to exclude the
Facebook communications, the State presented uncontroverted evidence that
the screenshots in exhibit 3 had been taken from K.L.’s Facebook account and
that they depicted communications from Ramirez-Vasquez’s Facebook
account.15 The “contents, substance, internal patterns, or other distinctive
14While the current version of ER 901(b) does not specifically address
Facebook messages or other forms of social media communication, it provides
adequate ground for the trial court’s determination in this case.
15 Ramirez-Vasquez’s counsel acknowledged that the screenshots
“appear[ed] to be” taken from K.L.’s Facebook account.
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No. 77693-2-1/9
characteristics of” exhibit 3 contained Ramirez-Vasquez’s name and picture
associated with the messages purportedly authored by him. The evidence
established that Ramirez-Vasquez historically used Facebook as a mechanism to
communicate with K.L. There was no evidence suggesting that the
communications contained in exhibit 3 came from some other person or that
Ramirez-Vasquez’s Facebook account had been hacked.16
The distinctive characteristics of the Facebook communications in exhibit
3, combined with the absence of any evidence fabrication of Ramirez-Vasquez’s
Facebook account, support the conclusion that the State adequately established
authentication. The trial court did not abuse its discretion by ruling pretrial that
exhibit 3 was admissible.
At trial, Ramirez-Vasquez again objected to the court’s admission of
exhibit 3 on authenticity grounds. He argued that the witness through whom the
State was attempting to admit exhibit 3 could not authenticate the Facebook
communications. The State countered that the witness would testify about
accessing and observing K.L.’s Facebook account. The court overruled the
objection and ruled that there were enough indicia of reliability to admit the
Facebook communications into evidence. The witness then testified without any
additional objections on foundation. Detective Tovar next testified, without
16 Regarding K.L.’s denial that she sent Ramirez-Vasquez the messages
contained in exhibit 3, the State argued that that fact does not necessarily mean
Ramirez-Vasquez’s statements are any less authentic or attributable to him. The
State explained that it anticipated the testimony would establish that Ramirez
Vasquez repeatedly “mess[ed] around” with K.L.’s phone and that “it was him
creating these [Facebook] conversations back and forth . almost [as] a guise to
. .
say that she was enjoying what was happening or something to that effect.”
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No. 77693-2-1/10
objection, about seeing the Facebook communications in exhibit 3. Lastly, when
presented with exhibit 3, K.L. recognized it has her and Ramirez-Vasquez’s
Facebook accounts.17
The court did not abuse its discretion in admitting the Facebook
conversation in exhibit 3.
We affirm.
WE CONCUR:
A~.. IA a
17 The court overruled Ramirez-Vasquez’s foundation objection to K.L.’s
recognition of exhibit 3. K.L. later testified, however, that she did not recognize
the messages contained within exhibit 3.
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