L-0U ri I U i"J-- VI"''C.'••'. i

_

C) ; J: STATE Gr vVAoiuilu k;. 

### 20IUUN-9 AH 9=1*2

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. FELIPE JOSEPH RAMOS, Appellant. No. 69751-0-1 DIVISION ONE

UNPUBLISHED OPINION FILED: June 9. 2014 

### Spearman, C.J. — Felipe Ramos challenges his conviction forrape of a child in the firstdegree, arguing that the trial court erred in concluding thatwarrantless 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 constitutedreversible 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. Theinteriorofthe garage
was visible through windowsin the garage door. They saw an adult male wearing a 

### bathrobe enter the garage with a younggirl. A few minutes later, they observed the two 

### having sexualintercourse. Aguest alerted Sykes,who returned to the deck and saw what was happening in the garage. Sykes was acquaintedwith the peoplewho lived inNo. 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 ofthe party guests called 911. When police did not arrive inten 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 ofthe condominium to ensure that no one left. Deputy Scott Fitchettthen went 

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

### Verbatim Report ofProceedings (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. Ateenager opened the door, 

### and policeentered the residence with guns drawn. As they entered the home and 

### headed upstairs, one officer announced "'police conducting a welfarecheck.'" 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) examinerfrom the Washington State crime laboratory 

### found a DNA profile that was a mixture oftwo people, with one in 2.7 million individuals inthe 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 herfamily; she was therefore unavailable to testify attrial. Because one of the first degree rape charges and one ofthe child molestation charges were based solely on the testimony of N.S., those charges were dismissed without prejudice. A jury convicted Ramos ofone 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 ofdoublejeopardy. Ramos appeals his conviction on the remaining count of first degree rape of a child. DISCUSSION Emergency Aid Exception 

### Ramos argues thatthe trial court erred in concluding thatwarrantless entry into the condominium wasjustified 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 supportthe trial court's conclusions oflaw." 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) (quotingState v. Mendez, 137Wn.2d 208, 214, 970 P.2d 

### 722 (1999)). Conclusions oflaw are reviewed de novo, and unchallenged findings of fact are verities on appeal. State v. Ague-Masters, 138Wn. App. 86, 97, 156 P.3d 265 (2007).No. 69751-0-1/4 

### Warrantless searches are generally per se unreasonable underthe 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 ofobtaining 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, itbears the heavy burden ofestablishing that the exception applies." State v. Schultz, 170Wn.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 ofconstitutionally 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 inthe same situation would similarlybelieve that there was need for assistance; (3) there was a reasonable basis to associate the need 

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

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

### orpersons or property are in need of immediate help for health or safety reasons; and (6) the claimedemergency is not a mere pretext for an evidentiary search." Schultz, 170No. 69751-0-1/5 Wn.2d at 754. "[TJhefailure to meet any factor is fatal to the lawfulness ofthe 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 imminentthreat or real 

### emergency.1 Hecontends 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 oftime 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 inthe record, but itappears thatthere was a misunderstanding regarding what had been reported, as Deputy Thiede initially understood that the callerwas 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, clarifythe situation, and provide officersafety. Less than an hour after he arrived at the scene, the decision was made to enter. The trial court did not err in 

### concluding thatthe delay was prudent underthe 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 itwas 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 defendantfails to support an assignment of errorwith citation to relevantauthority or relevant facts in the record, the court need notconsiderit. Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). In any case, the recordamply supports thetrial court'sconclusion that allsix factors
were met.No. 69751-0-1/6 conclude that leaving a minor alone with a man who was suspected ofengaging her in sadomasochistic activities to await a warrant would expose herto additional risks. Similarly, itwas reasonable for police to believe there was an imminentthreat to N.S., including the possibility that she would be raped again or harmed in an attempt to prevent herfrom 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 beliefthat she and the defendant were still inside and based on the nature ofthe 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 thatthere was no evidentiary search of the condominium at the time ofthe initialentry. Rather, deputies later obtained a warrant and returned to search for evidence. Ramos contends that the deputies should have 

### asked to speakwith N.S. ratherthan 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 itimpossible to inquire as to N.S.'s safety and increasing their concern that N.S. was inneed ofimmediate help. 

### Accordingly, we conclude that the findings support entry under the community caretaking exception to the warrantrequirement, 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 broughtto an emergency room. There, an 

### emergencyroom physician asked N.S. whether someone had hurt her that night, andNo. 69751-0-1/7 

### N.S. said yes, that someone had touched her privates. When asked who had done that, N.S. said itwas 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 SixthAmendment provides that "[i]n all criminalprosecutions, 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 trialand the defendant had no prior 

### opportunitytoconfrontthewitness underoath." Statev. O'Cain, 169Wn.App. 228, 249, 279 P.3d926 (2012). However, "[njontestimonial statements do notimplicate 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 ortreatmentpurposes, (2) where there is noindicationthat thewitness 

### expected thestatements to beused attrial, and (3) wherethedoctorisnotemployed by orworking with theState."2 Statev. Sandoval, 137Wn. App. 532, 537, 154 P.3d 271 (2007). The State has theburden ofproving that a statementisnontestimonial. Koslowski, 166 Wn.2d at 417 n. 3.

2In dicta, theU.S. SupremeCourthas alsocharacterized statements madetomedical providers 

### forpurposes ofdiagnosis ortreatmentas nontestimonial. Michigan v. Bryant, U.S. , 131 S.Ct. 1143, 1157 n 9 179 L.Ed.2d 93(2011); Melendez-Diazv. 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.2d488 (2008).No. 69751-0-1/8 

### As a preliminary matter, the State urges the court to apply the "primary purpose" test. Inthe context of police interrogations, the U.S. Supreme Court has held that whether statements are testimonial is determined by the primary purpose ofthe 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 ofthe individuals involved in a particularencounter, but ratherthe 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 "explicitlyreserved 

### the question of 'whether and when statements made to someone otherthan 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 lawenforcementofficers, we decline to apply it here. Rather, we apply the three-part Sandoval test. 

### Ramos argues that the second Sandoval factor has not been metbecause 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 thinkshe 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 roomin a police car, Ramos contends that a reasonable person in N.S.'s position would believe that her statements would be used at trial.

8No. 69751-0-1/9 

### We reject this argument. Areasonable person in N.S's position would believe thatthe 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 ofthe presence ofpolice 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 inthe presence of a law enforcement officerwere testimonial, where the officer took a written statementfrom the 

### victim at her home and continued to gatherevidence at the hospital. Hurtado, 173 Wn. App. at 604. Here, no police officerwas presentwhen N.S. spoke to the emergency

room physician. Prosecutorial Misconduct 

### Ramos argues that the prosecutor violated his constitutional rights to due 

### process and afairtrial bymisstating the law regarding presumption of innocenceduring rebuttal closing argument. Toprevail on a prosecutorial misconductclaim, a defendant must show both improper conduct and resulting prejudice. State v.Johnson, 158Wn. 

### App. 677, 683, 243 P.3d 936 (2010). Prejudice exists onlywhere there is a substantial likelihood the misconduct affected the jury's verdict. State v. Brown, 132Wn.2d 529, 

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

### argument in thecontextofthetotal argument, the issues in the case, theevidence addressed in the argument, and thejury instructions." State v. Boehning, 127Wn. App. 511, 519, 111 P.3d 899 (2005). "Reviewing courts should focus less on whether the 

### prosecutor's misconductwasflagrant orill intentioned andmore onwhethertheNo. 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 Iknow this person didn't do it.' Well, Isubmitto you that the presumption ofinnocence 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 whetherthe State has proven its [sic] case here. The presumption ofinnocence means you have to treat Mr. 

### Ramos as ifyou know he's not the sort ofperson who would do 

### something like this. And you cannotfind him guiltyunless 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, withthe presumption ofinnocence, the basic 

### presumption of innocence. The defendant had the presumption of innocence until Iproved, 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 ofperson who would not commit a crime like this. That is nottrue, that is not accurate, that is not inyourjury 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 memberof the community coming in here. 

### Simply, that he is not guiltyuntil Iproved it beyond reasonable doubt, which Idid. VRP (9/24/12) at 89.

10No. 69751-0-1/11 Ramos did not objectto the prosecutor's comments attrial. Therefore, the argument is waived on appeal "unless the misconduct is so flagrant and ill intentioned 

### that itevinces 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). "Underthis heightened standard, the defendant must show that (1) 'no curative instruction would have obviated any prejudicial effect on thejury' 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 thatthe presumption ofinnocence had dissipated prior to jury deliberations. Prosecutors are permitted to argue thatthe State met its burden of proving the elements 

### ofthe crime beyond a reasonable doubt. However, "[t]hepresumption ofinnocence continues throughoutthe entire trial and may only be overcome, ifat all, during deliberations." State v. Evans, 163 Wn. App. 635, 643, 260 P.3d 934 (2011). 

### To the extentthatthe prosecutor's choice of verb tense could be construed to implythat the presumption ofinnocence had dissipated prior to jurydeliberations, itwas improper. Buteven ifitwas improper, we conclude that any resulting prejudice could have been cured by an instruction. 

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

### asserted that the prosecutorengaged in incurable prejudicial misconduct by stating in rebuttal argumentthatthe presumption ofinnocence "'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

11No. 69751-0-1/12 

### 579. Similarly, ifRamos had objected at trial,the court could have clarifiedthatthe 

### presumption of innocence continues intojurydeliberations regardless of the strength of the State's evidence. "[R]emarks are notper 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 likelihoodthatthe statements affected the jury's verdict, particularly in light ofthe evidence against him. Ramos relies on two cases in which the court held that the prosecutor committed flagrant misconduct by expressly informing thejury that the presumption of innocence does not apply during jury deliberations. Evans. 163 Wn. App. at 643 (prosecutor argued that presumption ofinnocence "'kind of stops once you start deliberating"'); State v. Venegas. 155 Wn. App. 507, 524, 228 P.3d 813 (2010) (prosecutor argued that 

### presumption ofinnocence erodes as evidence is heard and at the conclusion of evidence, it no longerexists). But inthose cases, the prosecutor's misstatements ofthe law were much more directthan they were here, there were multiple errors, and the evidence againstthe defendants was not as compelling. Affirmed. 

### fyr/W^- WE CONCUR: M ~*

# or 

# bct*^, iy, fej&P

12