### FILED JUNE 15, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,


### v. JULIO G. RAMIREZ, Appellant. 

### ) ) ) 

### ) ) ) ) ) 

### ) No. 34223-9-111

UNPUBLISHED OPINION

LAWRENCE-BERREY,A.CJ.

- Julio Ramirez appeals his conviction for second degree rape. He argues the sentencing court abused its discretionby not consideringthe mitigating factors he presented andby categorically denying his request for an exceptional sentence downward. He also argues thetrial court abused its discretionwhen itprohibitedhim from cross-examiningthe victim aboutwhether shehad everkissed her roommate. Finally, he ~rgues insufficient evidence supports thejury's finding that the victim was asleep whenhe hadintercourse withher. We disagree withMr. Ramirez's arguments and affirm his conviction and sentence.

### No. 34223-9-III State v. Ramirez


### FACTS H.S. 1 

### and Mr. Ramirez became friends in high school. On one occasion, H.S. attended one ofMr. Ramirez's parties. Mr. Ramirez was intoxicated, pushed H.S. onto his bed, took offher shirt, and tried to kiss her. H.S. was notromantically interested in Mr. Ramirez and did not want to be intimate with him. She pushed himto the side, put her shirt back on, and left. On another occasion, after they had graduated from high school, Mr. Ramirez stopped by H.S.'s apartment and the two sat and talked on the couch. 

### Mr. Ramirez then grabbed H.S.'s hands and said he was romantically interested in her. H.S. did not feel the same, but told 

### Mr. Ramirez she would let him know ifthat changed. On January 31, 2015, H.S., H.S.'s female roommate, and Mr. Ramirez went to a house party together. They stayed at the party for a few hours and left around 2:00 a.m. H.S.'s roommate wanted to pickup herboyfriend, so H.S. and Mr. Ramirez drove back together to H.S.'s apartment. 

### Mr. Ramirez told H.S. he did not want to go home, because he lived with his parents and did not want them to know he had been drinking. Mr. Ramirez was 18 years

1

### We use the victim's initials to protect her privacy. 

### 2No. 34223-9-III State v. Ramirez
old at the time. H.S. toldMr. Ramirez thathe could stay ather apartment. She toldhim he could sleep on herbed. Mr. Ramirezput on a movie, andH.S. fell asleep. Sometime later, H.S. awoke to Mr. Ramireztrying to remove her clothing. When H.S. told Mr. Ramirez to stop, he complied. H.S. wentback to sleep. The next time H.S. woke up, she discovered she hadbeen digitally penetratedby Mr. Ramirez. H.S. then started crying during what she described as additional acts of unwanted sexual contact. Mr. Ramirez eventually stopped and H.S. askedhim to leave, which he did. Several days later, H.S. wentto the emergency room to get tested for sexually transmitted diseases. While there, she reported she hadbeen sexually assaulted. Hospital staffcalled the police. The State charged Mr. Ramirez with one count ofsecond degree rape and one count ofthird degree rape. Attrial, the State calledH.S., who testified to the events described above. During direct examination, H.S. testifiedthat when she woke up, Mr. Ramirez's fingers were inhervagina. The State then asked, "Didyou feel his finger initially go into you?" Report ofProceedings (RP) (Dec. 15, 2015) at 47. H.S. responded, "I don'tthink so." RP (Dec. 15, 2015) at 47. The State then asked, "When

3

### No. 34223-9-III State v. Ramirez


### you first realized you were awake, was his finger inside or outside your body?" RP (Dec. 15, 2015) at 48. H.S. responded, "Inside." RP (Dec. 15, 2015) at 48. Toward the end ofH.S.'s testimony, the State asked H.S.: Did you have any [reason] to hide a consensual sexual relationship with Mr. Ramirez from, maybe a man who was interested in you or some other reason for hiding a consensual relationship? 1RP at 79. H.S. said she did not. Defense counsel began to cross-examine H.S. The following exchange then occurred: [Defense counsel]: What was the nature ofyour relationship with [K.W.]? [H.S.]: We were friends and roommates. [Defense counsel]: It wasn'tromantic at all? [H.S.]: No. [Defense counsel]: You had never kissed her? [Prosecutor]: Your Honor, I'm going to object. THE COURT: I'm going to sustain it. [Defense counsel]: More limited: Did you-Fromthe time that the prosecutor asked whether or notyou were in any sort ofrelationship with anybody, at the time ofthis incident did you have a relationship at all that was romantic at all or sexual at all, or involvedkissing at all, during thison the date ofFebruary 1st? [H.S.]: No. 1RP at 79-80. Defense counsel then moved to a different subject. Thejury found Mr. Ramirez guilty ofsecond degree rape and not guilty ofthird degree rape. Followingtrial, Mr. Ramirez filed a motion requesting an exceptional

4

### No. 34223-9-111 

### State v. Ramirez

sentence downward. He argued two mitigating factors supportedhis request. First, relying chiefly on 

### State v. O'Dell, 183 Wn.2d 680,358 P.3d 359 (2015), he argued his young age and immature intellectual capacity rendered him less culpable. Second, he asserted that because ofhis traditional and religious upbringing, he received "no instruction or education on the nuances ofmodem sexual mores." Clerk's Papers (CP) at 39. He argued this lack ofunderstanding led him to believe that H.S. gave him implicit consent when she shared a bed with him and changed in front ofhim. At the sentencing hearing, Mr. Ramirez argued at length thatthese two factors supported an exceptional sentence downward. The State responded by arguing that Mr. Ramirez's age was not a mitigating factor because it only requires a low level ofmaturity for aperson to understand he or she cannothave intercourse with someone who is asleep. The State also argued that although Mr. Ramirez was young, he was as capable as other 18-year-olds: he volunteered, worked, was a college student, had mature plans for his profession, and was not developmentally delayed. The courtbegan its ruling by explaining the difficult nature ofthe case. The court acknowledged Mr. Ramirez's young age, and statedthis factor made its decision more difficult, given how the conviction and sentence would significantly affectMr. Ramirez's life. The court stated Mr. Ramirez made a good argument for an exceptional sentence


### 5No. 34223-9-III State v. Ramirez downward, noting that modembrain science reflects thatyoungpeople's brains are still developing and learning appropriatejudgment. However, the court also noted Mr. Ramirez was raisedin a household with appropriate social mores, boundaries, and parenting. It notedMr. Ramirez attended school and interacted socially. The court further notedMr. Ramirezhad interactedwith H.S. socially before, andhadunderstood andhonored herrefusals ofconsent inthe past. The court agreed thatmodem sexual mores may put more strain on a youngperson's ability to be appropriate, exercisethe rightjudgment, and not cross the line. However, the courtthen stated that "regardless ofsocial mores and regardless ofyouth, regardless of impulsivity or lack ofbrain development, there is consent. Thatis the ultimate line." 2 RP at 304. The court found Mr. Ramirezhadnormal emotional and mental abilities. The court further found thatMr. Ramirez had demonstrated reasonedjudgmentinthe past, knew whatthe right decision was inthis case, butultimately failed to demonstrate appropriatejudgment. The court concludedthere was no reason to deviate from the standard range and denied Mr. Ramirez's request for an exceptional sentence downward. The court then imposed a low-end standard range sentence of78 months' incarceration. Mr. Ramirez appeals.
6No. 34223-9-111 

### State 

### v. Ramirez
ANALYSIS A. REQUEST FOR EXCEPTIONAL SENTENCE DOWNWARD Mr. Ramirez argues the sentencing court abused its discretion by not considering the mitigating factors he presented andby categorically denying his request for an exceptional sentence downward. Generally, a defendant cannot appeal a standard range sentence. 

### See RCW 9.94A.585(1); 

### State v. 

### Osman, 157 Wn.2d 474,481, 139 P.3d 334 (2006). However, a defendant may challenge the procedure by which a sentence within the standardrange is imposed. 

### State v. 

### Garcia-Martinez, 88 Wn. App. 322, 329, 944 P.2d 1104 (1997). When a defendant requested an exceptional sentence downward, review is limited to instances where the sentencing court either (1) categorically refuses to impose
an exceptional sentence downward under any circumstances, i.e., states it will never impose a sentence below the standard range; (2) relies on an impermissible basis for refusing to impose an exceptional sentence belowthe standard range, such as the defendant's race, sex, religion, or some other characteristic, e.g., statingthatno drug dealer should get an exceptional sentence downward; or (3) fails to recognize it has discretion to impose an exceptional sentence downward. 

### Id. at 330;

### In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 332-33, 166 P.3d 677 (2007). In these situations, a
7No. 34223-9-111 

### State v. 

### Ramirez sentencing court abuses its discretion, and a reviewing courtwill reverse. 

### State v. 

### Grayson, 154 Wn.2d 333,342, 111 P.3d 1183 (2005). As long as the sentencing court consideredthe facts and concludedthat an exceptional sentence downward was factually or legally unsupportable, the defendant may not appeal its ruling. 

### Garcia-Martinez, 88 Wn. App. at 330. Forexample, in 

### Cole, the defendant unsuccessfully requested a below range sentence and then challenged the court's refusal to impose an exceptional sentence on appeal. 

### State v. 

### Cole, 117 Wn. App. 870, 880-81, 73 P.3d 411 (2003). The 

### Cole court heldthe defendant could not appeal from a standard range sentence where the sentencing court consideredthe claimed mitigating factors, heard extensive argument onthe subject, and then exercised its discretion by denying the request. 

### Id. at 881. Similarly, in 

### Garcia-Martinez, the court held a sentencing courtthat has consideredthe facts and concludedno basis exists for an exceptional sentence has exercised its discretion and the defendant may not appeal that ruling. 

### Garcia-Martinez, 88 Wn. App. at 330. RCW 9.94A.535 governs exceptional sentences. Itprovides that "[t]he courtmay impose an exceptional sentence belowthe standard range ifit finds thatmitigating circumstances are established by a preponderance ofthe evidence." RCW 9.94A.535(1).

8No. 34223-9-III State v. Ramirez
The statute then lists 11 nonexhaustive examples ofcircumstancesjustifying exceptional sentences downward. RCW 9.94A.535(l)(a)-(k). Here, Mr. Ramirez requested an exceptional sentence downwardbased on the mitigating circumstances ofhis young age and a lack ofunderstanding ofmodem sexual
mores. He argues the sentencing court did not consider either ofthese factors when it denied his request for an exceptional sentence. The record demonstrates otherwise. The sentencing court considered Mr. Ramirez's age extensively. Itrepeatedly acknowledged Mr. Ramirez's young age, statedthis factor made its decision more difficult, and notedthat, based onbrain science, youngpeople are still developing and less able to make appropriatejudgments. The sentencing court also considered Mr. Ramirez's argumentthathe did not understand modem social mores relating to sexuality. The court notedthese mores did not exist in prior generations, and statedthey may putmore strain on a youngperson's ability to be appropriate, exercise the rightjudgment, and not cross the line. However, the sentencing court concludedthese two factors were unpersuasive, given that Mr. Ramirez was raised in a householdwith appropriate social mores, boundaries, andparenting, had normal emotional and mental abilities, had attended school, had interacted socially, had interacted with H.S. socially before, and had
9

### No. 34223-9-111 State 

### v. Ramirez


### understood and honored H.S.'s refusals ofconsent in the past.2 

### In light ofthis reasoning, it is clear the court considered the two mitigating factors Mr. Ramirezpresented-the court simply did not find them persuasive. Mr. Ramirez also contends the sentencing court categorically denied his request for an exceptional sentence downward. He relies on the court's remark statingthat "regardless ofsocial mores and regardless ofyouth, regardless ofimpulsivity or lack of brain development, there is consent. That is the ultimate line." 2 RP at 304. Mr. Ramirez contends this remark indicates that the court categorically refused to give an exceptional sentence downward to any defendant convicted ofrape, "regardless" ofwhat mitigating factors may be present. However, in context, this remark simply indicatedthat the court did notbelieve these two particular factors-young adult age and claimed lack ofappreciation for modem sexual mores-sufficiently diminish a person's culpability for having sexual intercourse without the other person's consent. This was not a categorical refusal to

2

### Mr. Ramirez argues the court erred when it reasoned his age was inherently considered as part ofhis standard sentencing range. AlthoughMr. Ramirez is correctthe guidelines do not account for the defendant's age, see 

### RCW9.94A.510, the record makes clear the sentencing court did not deny Mr. Ramirez's request for an exceptional sentence based on a beliefthat his age was inherent in the standardrange. Rather, the court denied his request for the above reasons. 10No. 34223-9-III State v. Ramirez
consider an exceptional sentence for any individual convicted ofrape, regardless ofthe circumstances. The record demonstrates that the sentencing court consideredMr. Ramirez's request, heard extensive argument on the subject, and then provided a reasoned explanation for why an exceptional sentence downward was factually and legally unsupportable. The sentencing court acted within its discretion, and accordingly, 

### Mr. Ramirez may not appeal his standard range sentence. B. DEFENSE'S QUESTION ASKING VICTIM WHETHER SHE HAD KISSED HER ROOMMATE Mr. Ramirez argues, for the first time on appeal, thatthe trial court abused its discretion when it prohibited him from cross-examiningH.S. about whether she had ever kissed herroommate. 

### Mr. Ramirez acknowledges Washington's rape shield statute generally bars evidence ofthe victim'spast sexual behavior. However, he contends the questioning was proper because the State presented evidence about H.S.'spast sexual behavior in its case in chief. Washington's rape shield statute provides that evidence ofthe victim's past sexual behavior is inadmissible onthe issue ofcredibility and is generally inadmissible to prove the victim's consent. RCW9A.44.020(2). Evidence ofthe victim's past sexual behavior

11No. 34223-9-III State 

### v. Ramirez
may be admissible to prove consent ifspecific procedural requirements are met. RCW 9A.44.020(3). However, when the State opens the door in its case in chiefby presenting evidence tending to prove the nature ofthe victim's past sexual behavior, the defense may crossexamine the victim on the subject. RCW 9A.44.020(4). The trial courtnevertheless may require a hearing to determine ifthe cross-examinationwill elicit evidence that is relevant, not unduly prejudicial, andhelpful in achieving substantialjustice for the defendant. RCW 9A.44.020(3)(d), (4). Decisions onthe admissibility ofprior sexual behavior evidence underthe statute are reviewed for an abuse ofdiscretion. State v. Hudlow, 99 Wn.2d 1, 22,659 P.2d 514 (1983). Here, on direct examination, the State asked H.S. ifshe had any reasonto hide a consensual sexual relationship with Mr. Ramirez from anyone else whowas interested in her. H.S. testified she did not. On cross-examination, defense counsel asked H.S. ifshe had a romantic relationship withherroommate or ifshe had ever kissed herroommate. The State objected and the trial court sustainedthe State's objection. Defense counsel did not contestthe court's ruling, and then asked H.S. whether she was in a romantic or sexual relationship with anyone around February 1. H.S. said she was not. Defense counsel then movedto another subject.
12

### No. 34223-9-III State

## v. Ramirez


### When atrial court excludes evidence, the proponent ofthat evidence must make an offer ofproofto preserve the issue for appellate review. See 

### ER 103(a)(2); Seattle-First Nat'!Bankv. W. CoastRubber, Inc., 

### 41 Wn. App. 604, 609, 705 P.2d 800 (1985). The purpose ofthis rule is to inform the court ofthe legal theory under which the offered evidence is admissible, inform the court ofthe specific nature ofthe offered evidence so the court can assess its admissibility, and create an adequate record for review. State v. Ray, 

### 116 Wn.2d 531, 538, 806 P.2d 1220 (1991). Here, because Mr. Ramirez did not make an offer ofproofas required by ER 103(a)(2), it is unclear whether the trial court excludedthe evidence under the rape shield statute or on some other evidentiary basis, such as relevancy or undue prejudice. Mr. Ramirez argues the evidence was admissible under RCW9A.44.020(4) because the State presented evidence in its case in chiefabout the nature ofH.S.'spast sexual behavior. He further argues the evidence was relevantto prove whether another romantic interest prompted H.S. "tobe dishonest about a consensual relationship with Mr. Ramirez." Br. ofAppellant at 19. However, because he never made an offer ofproof, the trial courtwas unable to consider whether the State openedthe door in its case in chiefor whether the question was relevant to the issue ofconsent. This also deprived the trial court ofan opportunity to determine whetherthe issue required a hearing under RCW9A.44.020(4).
13No. 34223-9-III State v. Ramirez
Mr. Ramirez attempts to excuse his failure to make an offer ofproofby claiming the trial court "did not give the defense an opportunity to make an offer ofproof." Br. of Appellant at 20. However, the record indicates the defense neverattemptedto make an offer ofproof. Had the defense attemptedto make an offer ofproofand hadthe trial court refused to consider it, Mr. Ramirez mighthave a valid excuse. Mr. Ramirez also vaguely asserts the trial court's evidentiary ruling denied himhis right under the Sixth Amendmentto the United States Constitutionto cross-examine adverse witnesses. Mr. Ramirez did notraise this issue attrial. UnderRAP 2.5(a)(3), a defendant may raise an issue for the first time on appeal ifit is a "manifest error affecting
a constitutional right." However, because Mr. Ramirez never made an offer ofproof, "the facts necessary to adjudicate the claimed error are not in the record on appeal" and, therefore, he cannot showthe alleged error was manifest or obvious underRAP 2.5(a)(3). State 

### v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). C. SUFFICIENCY OF THE EVIDENCE Mr. Ramirez argues that insufficient evidence supports his conviction for second degree rape. He contends the State failed to prove H.S. was mentally incapacitated or physically helpless because hertestimony did not establish she was asleep beyond a reasonable doubt.
14No. 34223-9-III 

### State v. Ramirez
In a criminal case, evidence is sufficientto convict ifitpermits a rational trier of fact to find the essential elements ofthe crime provedbeyond a reasonable doubt. 

### State v. Munoz-Rivera, 190 Wn. App. 870, 882, 361 P.3d 182 (2015). When a defendant challenges the sufficiency ofthe evidence, the proper inquiry is ''whether, after viewing the evidence in the light most favorable to the State, any rational trier offact couldhave found guilt beyond a reasonable doubt." 

### State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A ]llreasonable inferences from the evidence mustbe drawn in favor of the State and interpreted most strongly against the defendant." Id. Furthermore, "[a] claim ofinsufficiency admits the truth ofthe State's evidence and all inferences that reasonably can be drawn therefrom." Id. It is notthis court's role to reweighthe evidence and substitute itsjudgment for that ofthejury. 

### State v. McCreven, 170 Wn. App. 444,477, 284 P.3d 793 (2012). Instead, because thejurors observedthe witnesses testify firsthand, this court defers to the jury'sresolution ofconflictingtestimony, its evaluation ofwitness credibility, and its decision regarding the persuasiveness and the appropriate weightto be giventhe evidence. 

### State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). A person commits the crime ofsecond degree rape when he or she engages in sexual intercourse with anotherperson when the otherperson is incapable ofconsentby
15

### No. 34223-9-111 State v. Ramirez



### reason ofbeing physically helpless or mentally incapacitated. RCW 9A.44.050(1), (b). "Sexual intercourse" includes digital penetration. State 

### v. Tili, 

### 139 Wn.2d 107, 111 n.3, 985 P.2d 365 (1999). '"Physically helpless' means a person who is unconscious or for any otherreason is physically unable to communicate unwillingness to an act." RCW 9A.44.010(5). '" [T]he state ofsleep appears to be universally understood as unconsciousness or physical inability to communicate unwillingness.'" State v. Mohamed, 

### 175 Wn. App. 45, 58-59, 301 P.3d 504 (2013) (quoting State 

### v. Puapuaga, 

### 54 Wn. App. 857, 861, 776 P.2d 170 (1989)). Thus, a person who is asleep is "physically helpless" within the meaning ofRCW 9A.44.010(5). Id. 

### at 60. Here, sufficient evidence supports thejury's finding that H.S. was asleep when Mr. Ramirez committed sexual assault. H.S. testified that when she woke up, she hadbeen digitally penetrated. She testified that she did not think she felt the initial act of penetration. She then testified thatwhen she first realized she was awake, penetration had already occurred. Mr. Ramirez emphasizes the portion ofH.S.'s testimony where she stated she did not "think" she felt Mr. Ramirez initiate digital penetration. RP (Dec. 15, 2015) at 47. Mr. Ramirez argues this statement contradictedher othertestimony that she was asleep, thus creating reasonable doubt. ButH.S.'s statements are not inconsistent with one
16No. 34223-9-III State v. Ramirez
another. Even ifthey were, H.S. unequivocally testified she woke up to Mr. Ramirez's digital penetration. This court defers to thejury'sresolution ofconflicting testimony. 3 See Thomas, 150 Wn.2d at 874-75. This evidence was sufficientto permit a rationaljuryto find, beyond a reasonable doubt, that H.S. was asleep when Mr. Ramirez digitally penetratedher and, therefore, find that she was physically helpless. We conclude sufficient evidence supports Mr. Ramirez's conviction for second degree rape. Affirmed. A majority ofthe panel has determinedthis opinionwill notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Lawrence-Berrey, A.CJ. WE CONCUR: 

# ?z~w~,~- siddoway, J. 

# ~. Pennell, 

### J. 

# 9"

3 Mr. Ramirez also argues thathe had a priorrelationship withH.S., thathe had romantic feelings for her, thatH.S. knew about his feelings, and that H.S. "apparently was confused about [her] own feelings." Br. ofAppellant at 26. None ofthese arguments cast doubt on the evidence supporting any ofthe elements ofsecond degree rape. 17