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COURT OF APPEALS flV I

STATE OF WASHINGTO:i

2017 MAY -8 IUI 8[5

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )

) No. 73452-1-1

Respondent, )

) DIVISION ONE

v. )

) UNPUBLISHED OPINION

DOMINGO MONTAR-MORALES, )

)

Appellant. ) FILED: May 8, 2017

)

TRICKEY, A.C.J. — Domingo Montar-Morales appeals his jury convictions of

rape of a child in the second degree, residential burglary, theft in the second

degree, and theft in the third degree. Montar-Morales contends that the trial court

erred in concluding that police officers did not exceed the scope of Terry v. Ohiol

when they transported him to a hospital against his will while he was being

detained as a suspect, that he was denied a fair trial when the trial court denied

his motion to sever his nonviolent property offenses from his sex offenses, and

that the State did not carry its burden of proving beyond a reasonable doubt the

penetration element of rape of a child. Finding no error, we affirm.

FACTS

On July 18, 2014, Montar-Morales was spending time with Noel LopezFlores around Lopez-Flores's apartment, located at 1916 Harrison Street in Mount

Vernon. Lopez-Flores's aunt Maria Flores-Garcia and her two children, including

1 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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12-year-old Y.J., were staying in the apartment that night. Montar-Morales and

Lopez-Flores entered the apartment around 11:00 p.m. When Lopez-Flores went

to sleep, Montar-Morales was watching television in Lopez-Flores's room.

Y.J. and her relatives were sleeping in the living room of the apartment.

Around 1:00 a.m., Y.J. was awoken by a hand touching her. The hand touched

her "stomach, between the front and the back, just from the back."2 At trial, Y.J.

indicated on a diagram that she had been touched on the left buttock. Y.J. stated

that the hand touching her there went "halfway the knuckle."3 In response to the

prosecution's question, "And did that go inside of you or stay outside?" Y.J.

responded, "Inside."4 During cross-examination, Y.J. acknowledged that she had

previously told investigators and counsel that nothing had entered her anus or

vagina.

Y.J. could not see the face of the person touching her. Y.J. unsuccessfully

attempted to wake up her mother while she was being touched. Y.J. then got up

and locked herself in the bathroom, where she remained for 20 minutes until her

mother asked her to come out. There was nobody else in the living room when

Y.J. exited the bathroom. Montar-Morales came out of a separate room and was

confronted by Y.J.'s mother and cousin, who did not recognize Montar-Morales,

and told him to leave or they would call the police.

Around 1:00 a.m., Lucia Perez-Ventura and Margarito Lopez-Ramirez were

2 Report of Proceedings (RP) (January 29, 2015) at 74.

3 RP (January 29, 2015) at 105-106. Y.J. answered affirmatively to the prosecution's

follow-up question of "Halfway up to the knuckle of a finger?" RP (January 29, 2015) at

106.

4 RP (January 29, 2015) at 106.

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No. 73452-1-1/3

asleep in their apartment unit in 1912 Harrison Street, which is very close to 1916

Harrison Street. Perez-Ventura was awoken by a noise in the apartment caused

by an intruder. She woke Lopez-Ramirez, who pursued the intruder. Although the

intruder managed to escape, Lopez-Ramirez was able to identify him as MontarMorales. Lopez-Ramirez returned to the apartment, and he and Perez-Ventura

found that his wallet and various other items of property were missing.

Montar-Morales attempted to reenter 1916 Harrison Street through a

window, but ran away when Elizabeth Ramirez-Flores turned on a light. René

Jiminez-Flores and Nicodemo Lopez pursued Montar-Morales. Jiminez-Flores

and Lopez caught Montar-Morales, and the three briefly fought in the street.

The police received a call at 1:06 a.m. about three males fighting in the

street, and were also told of a possible sexual assault. Officers Chester Curry and

Joel McCloud responded to the call, and Sergeant Mike Moore arrived shortly

thereafter as supervisor. When they arrived, Jiminez-Flores and Lopez had

restrained Montar-Morales, and Montar-Morales was bleeding from a head injury.

The officers called for medical assistance. The officers interviewed Jiminez-Flores

and Lopez, who told them that Montar-Morales had been involved with the reported

sexual assault.

The officers instructed Montar-Morales to remain on the ground, but he did

not comply. The officers eventually placed Montar-Morales in handcuffs and

informed him that he was being detained for an investigation of an assault, based

on the reports of the sexual assault and Montar-Morales's failure to comply. Officer

McCloud performed a pat down of Montar-Morales for weapons and did not find
No. 73452-1-1/4

any.

Paramedics arrived and evaluated Montar-Morales. The paramedics

examined him and felt that a physician needed to attend to Montar-Morales's head

injury and conduct further checks. Over Montar-Morales's objections, Officer

Moore decided that Montar-Morales was in need of medical assistance based on

the paramedics' statements, and transported him to Skagit Valley Hospital's

emergency department, where they arrived around 1:30 a.m.

While Montar-Morales was being treated, officers interviewed Y.J., the

occupants of 1916 Harrison Street, and the occupants of 1912 Harrison Street who

had reported a burglary. The officers called in Detective Jerrad Ely, who

interviewed Y.J. and her mother; Y.J. refused to agree to a sexual assault

examination. Detective Ely later determined that a photomontage was not

necessary to identify Montar-Morales because Lopez-Ramirez knew him, and

Lopez and Jiminez-Flores had been with him at the time the police arrived. MontarMorales had washed his hands at the hospital as part of his treatment, so DNA

evidence was unavailable.

At 1:36 a.m., Sergeant Moore notified Officer McCloud, who was with

Montar-Morales at the hospital, that the investigation had produced probable

cause to arrest. Officer McCloud advised Montar-Morales of his constitutional

rights and requested that the hospital evaluate his fitness for jail. The hospital

declared Montar-Morales fit and released him to Officer McCloud. As MontarMorales left the treatment table, a nurse noticed that a wallet had dropped

containing the identification of Lopez-Ramirez. When Montar-Morales was booked

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No. 73452-1-1/5

into jail, additional property belonging to Lopez-Ramirez and his family was

recovered.

The State charged Montar-Morales by third amended information with rape

of a child in the second degree, child molestation in the second degree, residential

burglary, theft in the second degree, theft in the third degree, and attempted

residential burglary.

Montar-Morales moved to suppress evidence and statements from his

arrest. Montar-Morales also moved to sever his child sex offense charges from

those for property crimes before trial and following jury selection. The trial court

denied Montar-Morales's motions.

At trial, Montar-Morales moved to dismiss the rape of a child charge for

insufficient evidence. The court denied the motion.

The jury convicted Montar-Morales on all charges except attempted

residential burglary. The trial court vacated the child molestation conviction on

double jeopardy grounds based on the child rape conviction. The trial court denied

Montar-Morales's posttrial motion to arrest judgment.

Montar-Morales appeals.

ANALYSIS

Pretrial Motion to Suppress 

Montar-Morales argues that the trial court erred when it denied his motion

to suppress evidence obtained when he was arrested without probable cause.

Montar-Morales contends that the police exceeded the scope of Terry when they

transported him to the hospital because his detention was not limited in duration
No. 73452-1-1/6

or location and did not remain investigatory in purpose. Because the officers acted

reasonably under the totality of the circumstances when they transported MontarMorales to the hospital, we affirm.

Generally, warrantless searches and seizures are per se unreasonable.

State v. Houser,95 Wn.2d 143, 149, 622 P.2d 1218 (1980). One exception to the

warrant requirement is "a brief investigatory detention of a person, known as a

Terry stop." State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015) (referring

to Terry, 392 U.S. 1). A Terry stop requires a well-founded suspicion that the

defendant is engaged in criminal conduct. State v. Doughty, 170 Wn.2d 57, 62,

239 P.3d 573 (2010). The police officer must be able to point to "'specific and

articulable facts which, taken together with rational inferences from those facts,

reasonably warrant [the] intrusion." State v. Williams, 102 Wn.2d 733, 739, 689

P.2d 1065 (1984) (quoting Terry, 392 U.S. at 21)). If the stop goes beyond

investigatory purposes, it becomes an arrest and requires a valid arrest warrant or

probable cause. State v. Flores, 186 Wn.2d 506, 520-21, 379 P.3d 104 (2016).

The investigative methods employed must be the least intrusive means

reasonably available to verify or dispel the officer's suspicion in a short period of

time. Williams, 102 Wn.2d at 738 (citing Florida v. Royer,460 U.S. 491, 500, 103

S. Ct. 1319,75 L. Ed. 2d 229 (1983)). Drawn guns and the use of handcuffs during

an investigatory stop are permissible only when police have a legitimate fear of

danger. Williams, 102 Wn.2d at 740 n.2.

"An investigative detention must last no longer than is necessary to satisfy

the purpose of the stop." State v. Bray, 143 Wn. App. 148, 154, 177 P.3d 154

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No. 73452-1-1/7

(2008) (citing Williams, 102 Wn.2d at 738). The scope and duration of the stop

may be extended if the officers' suspicions are confirmed by the investigation.

State v. Acrev, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). For example, an

investigatory detention lasting 30 minutes may be reasonable under the

circumstances. See Bray, 143 Wn. App. at 154. In Bray, officers were justified in

detaining the defendant for an extended period of time because his explanation of

what he was doing did not dispel the officers' suspicion, and they were reasonable

in checking his criminal history and determining whether other areas had been

broken into. 143 Wn. App. at 154.

Police do not exceed the scope of an investigative stop when they move a

suspect for reasons of safety and security, or so that a crime witness can make an

identification, if the distance is short and the police have both knowledge of the

crime committed and articulable suspicion that the suspect committed it. State v. 

Lund, 70 Wn. App. 437, 447-48, 853 P.2d 1379 (1993); see also United States v. 

Richards, 500 F.2d 1025 (9th Cir. 1974); State v. Wheeler, 108 Wn.2d 230, 236-

37, 737 P.2d 1005 (1987). For example, an investigative stop involving frisking,

handcuffing, and transporting the defendant two blocks to the scene of the burglary

so a witness could identify the defendant did not rise to the level of an arrest.

Wheeler, 108 Wn.2d at 235-36.

In evaluating the reasonableness of an investigative stop, courts consider

the totality of the circumstances, including the officer's training and experience, the

location of the stop, the conduct of the person detained, the purpose of the stop,

the amount of physical intrusion upon the suspect's liberty, and the length of time

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No. 73452-1-1/8

the suspect is detained. State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760

(1991). The burden is on the prosecution to show that a warrantless search and

seizure falls within an exception. Houser,95 Wn.2d at 149.

Here, the officers' initial detention of Montar-Morales was a valid Terry stop

supported by reasonable articulable suspicion. The officers were responding to

calls reporting three males fighting in the street and a possible sexual assault.

When the officers arrived on the scene of the fighting, Jiminez-Flores and Lopez

told them that Montar-Morales was the one involved in the reported sexual assault.

The officers had reasonable articulable suspicion to detain Montar-Morales based

on the calls reporting fighting in the street and the allegation that he was involved

in the sexual assault. Therefore, the initial detention of Montar-Morales was

justified.

The officers' decision to handcuff Montar-Morales at the scene did not

elevate the detention into an arrest requiring probable cause. The officers were

responding to a report of a fight and a sexual assault, and were informed at the

scene that Montar-Morales was responsible for the sexual assault. MonterMorales did not comply with officer requests to remain seated. The officers' use

of handcuffs to detain Montar-Morales was justified by the nature of the reported

incidents and Montar-Morales's failure to cooperate.

The duration of Montar-Morales's detention did not exceed the scope of a

valid Terry stop. Officer McCloud placed Montar-Morales in handcuffs around 1:10

a.m., and Officer McCloud advised Montar-Morales of his rights at 1:37 a.m.

Twenty-seven minutes was a reasonable length of time to detain Montar-Morales.

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No. 73452-1-1/9

The officers were initially responding to a report of fighting and an allegation of

sexual assault. While investigating the alleged sexual assault, they learned of a

burglary that had happened nearby, and were informed that Montar-Morales was

the likely perpetrator. The serious nature of the crimes and the need to investigate

both crime scenes justified an investigatory stop of a fairly long duration.

The officers did not exceed the scope of Terry when they transported

Montar-Morales to the hospital. Under the totality of the circumstances, the officers

acted reasonably in obtaining treatment for Montar-Morales's head laceration

during his investigatory detention. The officers called for medical assistance soon

after arriving at the scene in order to examine Montar-Morales's injury. The

paramedics who evaluated Montar-Morales at the scene recommended that he

receive further treatment at the hospital. The officers were acting on this

recommendation when they moved Montar-Morales from the scene of his initial

detention to the hospital. Police officers cannot reasonably be expected to ignore

the recommendation of paramedics that an injured party receive additional medical

treatment at a hospital rather than simply being treated at the scene of the injury.5

The continued use of handcuffs while Montar-Morales was transported and

received medical treatment at the hospital was justified in light of his noncompliant

5 Montar-Morales argues for the first time on appeal that his constitutional right to privacy

was violated when he was given medical treatment without his consent. The constitutional

right to privacy includes autonomy over one's medical care, and includes the right to refuse

treatment. See, e.g., In re Welfare of Colyer,99 Wn.2d 114, 119-22, 660 P.2d 738 (1983)

(discussing common law and constitutional bases for patients' right to refuse treatment);

see also RCW 7.70.050 (statutory requirement to obtain informed consent by health care

provider). Montar-Morales's refusal to consent to medical treatment is not relevant to a

Fourth Amendment search and seizure analysis under Terry. Moreover, Montar-Morales

raises this argument for the first time on appeal, and we need not reach the merits of his

claim. RAP 2.5(a).

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No. 73452-1-1/10

behavior. Further, the record suggests that, if the officers had not transported

Montar-Morales to the hospital, they would have detained him at the scene for the

same amount of time. Therefore, under the totality of the circumstances, the

officers acted reasonably in transporting Montar-Morales to the hospital for

treatment within the time frame during which they could have permissibly detained

him at the scene.

Sufficiency of the Evidence — Rape of a Child 

Montar-Morales contends that the State did not offer sufficient evidence to

prove that he raped Y.J. beyond a reasonable doubt. Specifically, he argues that

the State did not prove that he penetrated Y.J.'s anus. Because Y.J.'s testimony

was sufficient to sustain the jury's verdict, we conclude there was no error.

Due process requires that the State prove every element of an offense

beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.

Ct. 2348, 147 L. Ed. 2d 435 (2000). Evidence is sufficient to sustain a conviction

if, after viewing the evidence in the light most favorable to the State, any rational

trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. State v. Green,94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

"A claim of insufficiency admits the truth of the State's evidence and all inferences

that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201,

829 P.2d 1068 (1992). "[A]ll reasonable inferences from the evidence must be

drawn in favor of the State and interpreted most strongly against the defendant."

Salinas, 119 Wn.2d at 201.

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No. 73452-1-1/11

The jury's role includes resolving conflicting testimony and evaluating the

persuasiveness of the evidence. State v. Rooth,129 Wn. App. 761, 773, 121 P.3d

755 (2005); State v. Walton,64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). Jury

determinations of credibility are not subject to review. State v. Camarillo, 115

Wn.2d 60, 71, 794 P.2d 850 (1990).

"A person is guilty of rape of a child in the second degree when the person

has sexual intercourse with another who is at least twelve years old but less than

fourteen years old and not married to the perpetrator and the perpetrator is at least

thirty-six months older than the victim." RCW 9A.44.076(1). Sexual intercourse

"has its ordinary meaning and occurs upon any penetration . . . of the vagina or

anus however slight, by an object." 6 RCW 9A.44.010(1)(a), (b). Penetration of

the buttocks, but not the anus, is insufficient to sustain a rape conviction." State v. 

A.M., 163 Wn. App. 414, 421, 260 P.3d 229 (2011).

Here, a rational trier of fact could have found that Montar-Morales

committed child rape. Y.J. indicated that the hand had touched her around the

buttocks by drawing on a diagram. Y.J. then testified that the hand touching her

went halfway up to the knuckle of a finger "inside" of her. Montar-Morales argues

that Y.J.'s testimony is insufficient to prove sexual intercourse beyond a

reasonable doubt because Y.J. initially stated that her vagina and anus were not

penetrated. Similarly, Montar-Morales suggests that Y.J.'s testimony and diagram

are ambiguous, and are less supportive of anal rape than penetration of the

buttocks alone based on her other testimony. This court does not review the jury's

6 Clerk's Papers (CP) at 42 (Instruction 8).

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No. 73452-1-1/12

determination of credibility or its resolution of conflicting testimony. The jury was

free to credit Y.J.'s statement that the hand touching her had gone "inside" of her

over her conflicting statements.

Penetration of the anus is a reasonable inference from Y.J.'s diagram and

her statement that the hand had gone "inside" of her. This court takes the State's

evidence as true and draws all reasonable inferences in favor of the State in a

sufficiency challenge. Y.J.'s testimony and diagram are sufficient to establish the

element of sexual intercourse.

Motion to Sever

Montar-Morales argues that the trial court abused its discretion when it

denied his motion to sever his nonviolent property offenses from his sex offenses.7

Montar-Morales contends that the denial of his motion to sever deprived him of his

right to a fair trial. We disagree because the trial court's denial of Montar-Morales's

motion did not cause undue prejudice.

A trial court shall grant a motion to sever if it determines "that severance will

promote a fair determination of the defendant's guilt or innocence of each offense."

CrR 4.4(b). A defendant seeking severance has the burden of demonstrating that

trying the counts together would be manifestly prejudicial, and outweigh any

7 The State filed a motion to strike ineffective assistance of counsel arguments raised for

the first time in Montar-Morales's reply brief, based on counsel's alleged waiver of his

severance claim. A defendant's motion for severance must be made before trial, and the

defendant must renew his motion to sever on the same ground before or at the close of

all evidence. CrR 4.4(a)(1), (2). A failure to renew the motion constitutes a waiver of

severance. CrR 4.4(a)(2). Montar-Morales's counsel moved for severance prior to trial.

Montar-Morales's counsel renewed the motion at trial, both in briefing and orally after jury

selection. Because defense counsel properly renewed the motion to sever, the State's

motion to strike is denied. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,

809, 828 P.2d 549 (2005).

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No. 73452-1-1/13

concern for judicial economy. State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d

154 (1990). Joinder of offenses may prejudice a defendant in that

"(1) he may become embarrassed or confounded in presenting

separate defenses; (2) the jury may use the evidence of one of the

crimes charged to infer a criminal disposition on the part of the

defendant from which is found his guilt of the other crime or crimes

charged; or (3) the jury may cumulate the evidence of the various

crimes charged and find guilt when, if considered separately, it would

not so find."

State v. Smith,74 Wn.2d 744, 755, 446 P.2d 571 (1968) (quoting Drew v. United

States, 331 F.2d 85, 88 (D.C. Cir. 1964)), vacated in part, 408 U.S. 934, 92 S. Ct.

2852, 33 L. Ed. 2d 747 (1972), overruled on other grounds, State v. Gosby, 85

Wn.2d 758, 539 P.2d 680 (1975). The "prejudice potential of prior acts is at its

highest" in cases involving sexual offenses. State v. Ramirez,46 Wn. App. 223,

227, 730 P.2d 98 (1986) (citing State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d

697 (1982)); see also State v. Harris, 36 Wn. App. 746, 752, 677 P.2d 202 (1984).

A reviewing court uses several factors to determine whether a trial court's

denial of a severance motion was unduly prejudicial to the defendant:

(1) the strength of the State's evidence on each of the counts; (2) the

clarity of the defenses on each count; (3) the propriety of the trial

court's instruction to the jury regarding the consideration of evidence

of each count separately; and (4) the admissibility of the evidence of

the other crime.

State v. Cotten,75 Wn. App. 669, 687, 879 P.2d 971 (1994); State v. Eastabrook,

58 Wn. App. 805, 811-12, 795 P.2d 151 (1990).

A trial court's refusal to sever offenses under CrR 4.4(b) is reviewed for

manifest abuse of discretion, and the defendant has the burden of demonstrating

that abuse on appeal. Cotten,75 Wn. App. at 686-87.

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No. 73452-1-1/14

A trial court's refusal to sever offenses under CrR 4.4(b) is reviewed for

manifest abuse of discretion, and the defendant has the burden of demonstrating

that abuse on appeal. Cotten,75 Wn. App. at 686-87.

The trial court did not manifestly abuse its discretion in denying MontarMorales's motion to sever. The court found that Montar-Morales's charges were

intertwined. The court considered the proximity of the two addresses, the short

time frame of the chase and apprehension, and the potential sexual motivation

linking the offenses. The court determined that, collectively, there was a similarity

of criminal activity, location, and time involving the potential thefts and sexual

misconduct at each location that weighed against severance of the charges.

Even assuming that Montar-Morales was prejudiced by the trial court's

refusal to sever his sexual offenses from his nonviolent property offenses, he was

not unduly prejudiced. First, the State had a strong case for all charged offenses.

The State offered circumstantial evidence, the in-court testimony of Y.J. regarding

where the hand touched her, that it went "inside," and the diagram showing where

the touching occurred. This was not outweighed by the physical and testimonial

evidence offered on the property crime charges.

Second, Montar-Morales was not prejudiced in his ability to defend against

his property crime charges due to the joinder of the claims. Montar-Morales

elected to not submit Lopez-Ramirez's statement that he initially thought MontarMorales was in jail and could not be the perpetrator, because Montar-Morales

feared that the jury would decide that he was predisposed to criminal activity. The

statement of belief that Montar-Morales was in jail would be equally prejudicial to

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No. 73452-1-1/15

both sex offenses and property offenses by suggesting a criminal disposition.

Montar-Morales was not more prejudiced from offering the statement in defense

of the property crimes than he was from offering it regarding the child sex offenses.

Third, the trial court's limiting instruction was sufficient to address any

prejudice resulting from joining the counts. The trial court instructed the jury that:

"A separate crime is charged in each count. You must decide each count

separately. Your verdict on one count should not control your verdict on any other

count."8 The jury is presumed to follow the trial court's instructions. State v. 

Bourgeois,133 Wn.2d 389, 409-10, 945 P.2d 1120 (1997). The court's instruction

told the jury that a finding of guilt on any one count should not weigh in their

decision on any other. We presume that the jury followed the court's limiting

instruction, and did not consider Montar-Morales's property crimes when deciding

his sexual offenses.

Montar-Morales argues that he was prejudiced because evidence for the

child rape charge should not have been admissible against him in a trial on the

property offenses.

Cross-admissibility considerations involve evaluating whether the evidence

of various offenses would be admissible to prove other charges if each offense

was tried separately. Ramirez,46 Wn. App. at 226. Res gestae allows otherwise

inadmissible evidence to come in to show the immediate context of the occurrence.

State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995); ER 404(b).

8 CP at 40 (Instruction 6).

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No. 73452-1-1/16

The trial court ruled that the evidence supporting the property crimes was

sufficiently close in time and place to fall within res gestae. The trial court

considered the time, geographic proximity, and link of possible sexual motivation

in its ruling. Montar-Morales's actions formed a common series of events that were

close enough in time and space to justify the trial court's finding of res gestae. We

cannot say that the trial court manifestly abused its discretion in finding that

Montar-Morales's actions fell within res gestae.

In sum, Montar-Morales has failed to produce sufficient evidence of

prejudice to outweigh concerns for judicial economy in trying his nonviolent

property charges and sexual misconduct charges separately. We cannot say that

the trial court manifestly abused its discretion in denying his motion to sever.

Affirmed.

WE CONCUR:

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