IN THE COURT OFAPPEALS 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Respondent, DIVISION ONE V. RENE RAMIREZ-VASQUEZ, UNPUBLISHED OPINION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 ofsecond 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 erroror abuse ofdiscretion, we affirm. FACTS K.L.2 grew up being raised by her maternal grandmother in El Salvador.3 Her immediate family—including herfather, Rene Ramirez-Vasquez, mother, and two brothers—whom she did not know “verywell,” lived in the United States.

1 384 U.S. 436, 86 5. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2We use initials forthe victim to protect her privacy.

~ K.L. lived with her grandmotherfrom age 1 to 11.No. 77693-2-1/2 In August 2015, at age 11, K.L. reluctantlyjoined herfamily in Seattle.4 Shortlythereafter, Ramirez-Vasquez began touching K.L.’s hair and telling her how he was attracted to her. His expressions ofattraction to K.L. continued for “a long time” and escalated in June 2016 to the pointthat Ramirez-Vasqueztold 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 September2016, some of K.L.’s relatives in El Salvadorsaw 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 reportthe sexual abuse. On September 19, 2016, Detective Juan Tovar, ofthe 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 parentsto come to the Seattle Police Department headquarters foran 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 atthe time. 6 “Facebook Messenger is a mobile app that enables chat, voice and video communications between Facebookweb-based messaging and smartphones.” Facebook Messenger, Whatls.com, https://whatis.techtarciet.com/definition/Facebook-Messenger [https://perma.cc/3Q4S-RC48].

-2-No. 77693-2-1/3 On September21 2016, Detective Tovarseparately interviewed K.L.’s motherand Ramirez-Vasquez in a nonlocking interview room on the sixth floor.7 Without providing any Miranda warnings, Detective Tovar interviewed Ramirez Vasquez in Spanish for45 minutes to an hour.8 Detective Tovararrested Ramirez-Vasquez atthe conclusion ofthe interview. On September23, 2016, Detective Tovarvisited Ramirez-Vasquez atthe King County Correctional Facility and, after providing Miranda warnings, conducted a second interview. Atthis interview, Ramirez-Vasquez confirmed that he had a Facebook account and occasionally sent messages to K.L. on Facebook. On September26, 2016, the State charged Ramirez-Vasquez with two counts of rape ofa child in the second degree. Before trial, Ramirez-Vasquez moved to suppress statements he made to Detective Tovarduring the first interview conducted atthe police station and to exclude the Facebook messages between Ramirez-Vasquez and K.L. Initially the court ruled thatthe State had laid sufficientfoundation foradmission ofthe Facebook communications. The courtthen held a CrR 3.5 hearing and ruled that Ramirez-Vasquez’s interviewstatements would be admissible attrial.9 Attrial, the court admitted the Facebook messages over Ramirez Vasquez’s authentication objections. The State did not offer any statements from

~ Priorto the interview, Detective Tovardid not handcuff Ramirez-Vasquez or place him underarrest. 8 Detective Tovar is fluent in Spanish.

~ Ramirez-Vasquez did nottestify atthe CrR 3.5 hearing.
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Ramirez-Vasquez’s first interview into evidence. K.L. testified that Ramirez Vasquez had sexwith hersix orseven times. Ramirez-Vasquez did nottestify. Thejuryfound Ramirez-Vasquez guilty as charged. He appeals. ANALYSIS Statements to Detective atthe Police Station Ramirez-Vasquez contends the trial court erred by ruling pretrial that his statements to Detective Tovarwere admissible in violation of Miranda. Standard ofReview Under Miranda, the State may not use statements arising from the custodial interrogation ofan accused unless that person is informed of his or her constitutional rights. Miranda, 384 U.S. at444. Constitutional harmless error analysis applies to erroneously admitted statements obtained in violation of Miranda. State v. Nysta, 168 Wn. App. 30, 43, 275 P.3d 1162 (2012). “A constitutional error is harmless ifthe appellate court is convinced beyond a reasonable doubtthat any reasonablejurywould have reached the same result in the absence ofthe error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). Discussion Here, the State neveroffered any statements from Ramirez-Vasquez’s September21, 2016, interview attrial and the court neveradmitted any such

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statements into evidence.10 Therefore, even assuming the court’s pretrial ruling to admitthese statements was error, we conclude that any errorwas harmless. In his briefing, Ramirez-Vasquez claims “[b]ecause [his] statement and admissions during this interviewwere used extensively, and repeatedly, attrial and in closing argument, this error bythe courtwas not harmless errorand deprived [him] of his constitutional right to afairtrial.” This claim is unpersuasive. First, he fails to cite to the record to support his claim.11 Second, he did notfile a reply briefto contestthe State’s assertion thatthe statements were never offered
or admitted. Finally, our independent review ofthe record shows thatthe statements were not admitted attrial. Lastly, Ramirez-Vasquez argues that “all statements made atthe second interview should be suppressed as being related to, and the fruit of, the earlier interviewwhere no Miranda warnings were provided.” This argument, too, fails. First, atthe CrR 3.5 hearing, Ramirez-Vasquez did not argue “thatthe second interview is inadmissible on Miranda grounds

. . . [b]ecause clearly [the detective] did read him his Miranda rights.” Second, he failed to assign errorto the court’s admission ofstatements from the second interview and likewise failed to support his argumentwith legal authority or meaningful analysis. ~ RAP

10 The State did not seekto admitthe DVD (digital video disk) recording or the translated transcript ofthe September21, 2016, interview as exhibits attrial. Nordid the State elicittestimonyfrom Detective Tovar regarding the substance ofthe 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 (September23, 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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1 0.3(a)(6) (requires parties to provide “argument in support ofthe issues presented for review, togetherwith citations to legal authority and references to relevant parts ofthe record”); Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (declining to consider party’s argumentthat lacked “adequate, cogent argument and briefing”). Accordingly, we conclude thatthe 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 foror properly authenticate exhibit 3. Standard ofReview We review a trial court’s decision to admit evidence foran abuse of discretion.13 State v. Garcia, 179 Wn.2d 828, 846, 318 P.3d 266 (2014). “The requirementofauthentication or identification as a condition precedentto admissibility is satisfied by evidence sufficientto support afinding thatthe matter in question is what its proponent claims.” ER 901 (a). The requirement under ER 901 (a) is met “ifthe proponent shows enough prooffora reasonable factfinderto find in favor ofauthenticity.” State v. Payne, 117Wn. App. 99, 108, 69 P.3d 889 (2003) (citing State v. Danielson, 37 Wn.

12 Exhibit 3 contains screenshots ofthe Facebook communications between Ramirez-Vasquez and K.L. from September 11 to September 16, 2016. 13An abuse ofdiscretion occurs when atrial court’s decision is manifestly unreasonable or based on untenable grounds or reasons. Garcia, 179 Wn.2d at 846.
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App. 469, 471, 681 P.2d 260 (1984)). The proponent “need not rule out all possibilities inconsistentwith authenticity or conclusively prove that evidence is what it purports to be.” State v. Andrews, 172 Wn. 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 considerevidence that might otherwise be objectionable underother rules.” Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 86, 272 P.3d 865 (2012). “Atrial court may, therefore, rely upon such information as lay opinions, hearsay,
orthe proffered evidence itself in making its determination.” State v. Williams, 136 Wn. App. 486, 500, 150 P.3d 111(2007). “Such information must be reliable but need not be admissible.” Williams, 136 Wn. App. at 500. The Rules of Evidence (ER) provide a numberof illustrative examples that demonstrate methods that meetthe requirements ofauthentication, including:

(1) Testimony ofWitness with Knowledge. Testimonythat a matter is what it is claimed to be. (4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, orotherdistinctive 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 particularsender orthe sender’s agent; (ii) the e-mail purports to be sentfrom an e-mail address associated with the particular senderorthe sender’s agent; and (iii) the appearance, contents, substance, internal patterns, orotherdistinctive characteristics of the e-mail, taken in conjunction with the circumstances, are sufficientto support afinding thatthe e-mail in question is whatthe proponent claims.

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ER 901(b).14 In making its preliminary determination, the trial court “considers onlythe evidence offered bythe proponent and disregards any contrary evidence offered bythe opponent.” Rice, 167Wn. App. at 86. “Once a primafacie showing has been made, the evidence is admissible under ER 901,” Rice, 167 Wn. App. at 86, but “[t]he opponent is then free to object on the basis ofany other rules that may barthe evidence oroffer contradictory evidence challenging authenticity. Ifsuch contradictory evidence is offered, the authenticity ofthe proponent’s evidence is ultimatelyjudged bythe trieroffact.” In re Det. of H.N., 188 Wn. 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 ofexhibit 3, Ramirez-Vasquez contends thatthere was no foundation laid to support admitting the Facebook messages into evidence. We disagree. During the pretrial hearing on Ramirez-Vasquez’s motion to excludethe Facebook communications, the State presented uncontroverted evidence that the screenshots in exhibit 3 had been taken from K.L.’s Facebook account and thatthey depicted communications from Ramirez-Vasquez’s Facebook account.15 The “contents, substance, internal patterns, orotherdistinctive

14While the currentversion of ER 901(b) does not specifically address Facebook messages orotherforms ofsocial media communication, it provides adequate ground forthe trial court’s determination in this case.

15 Ramirez-Vasquez’s counsel acknowledged thatthe screenshots “appear[ed] to be” taken from K.L.’s Facebook account. -8-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 thatthe communications contained in exhibit 3 came from some other person orthat Ramirez-Vasquez’s Facebook account had been hacked.16 The distinctive characteristics ofthe Facebook communications in exhibit 3, combined with the absence ofany evidence fabrication of Ramirez-Vasquez’s Facebook account, supportthe conclusion thatthe State adequately established authentication. The trial court did not abuse its discretion by ruling pretrial that exhibit 3 was admissible. Attrial, Ramirez-Vasquez again objected to the court’s admission of exhibit 3 on authenticity grounds. He argued thatthe witness through whom the State was attempting to admit exhibit 3 could not authenticate the Facebook communications. The State countered thatthe witness would testify about accessing and observing K.L.’s Facebook account. The court overruled the objection and ruled thatthere were enough indicia of reliabilityto admitthe Facebook communications into evidence. The witness then testified without any additional objections on foundation. Detective Tovar nexttestified, without

16 Regarding K.L.’s denial that she sent Ramirez-Vasquez the messages contained in exhibit 3, the State argued thatthatfact does not necessarily mean Ramirez-Vasquez’s statements are any less authentic or attributable to him. The State explained that it anticipated the testimonywould establish that Ramirez Vasquez repeatedly “mess[ed] around” with K.L.’s phone and that “itwas him creating these [Facebook] conversations back and forth

. . . almost [as] a guise to saythat she was enjoying whatwas happening orsomething to that effect.”
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objection, about seeing the Facebook communications in exhibit 3. Lastly, when presented with exhibit 3, K.L. recognized it has herand Ramirez-Vasquez’s Facebook accounts.17 The court did not abuse its discretion in admitting the Facebook conversation in exhibit 3. We affirm. 

# A~.. IA 

# a

WE CONCUR:

17The court overruled Ramirez-Vasquez’s foundation objection to K.L.’s recognition ofexhibit 3. K.L. latertestified, however, that she did not recognize the messages contained within exhibit 3.

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