IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85133-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION RENE MACKPERSON RAMIREZ- LOPEZ,
Appellant.
BIRK, J. — Rene Ramirez-Lopez appeals his jury conviction, arguing the
trial court erred in admitting jail phone calls under the business record statute.
Ramirez-Lopez also asks us to remand for the trial court to strike the $500 crime
victim penalty assessment and $115 domestic violence assessment fee from his
judgment and sentence. We affirm Ramirez-Lopez’s conviction, and remand to
inquire on Ramirez-Lopez’s ability to pay the domestic violence assessment fee
and strike the victim penalty assessment.
I
On November 5, 2022, Snohomish County Sheriff’s Deputies Jose Perez
and Raymond Duran were dispatched to Sierra Vista Apartments in response to a
911 call. As Perez drove through the apartment complex, he was approached by
a man who flagged Perez down and told him that his wife’s nephew was having an
argument with his girlfriend. The man led the deputies to his apartment unit and
told them “they” were in the bathroom. Perez heard what he described as a verbal No. 85133-1-I/2
altercation coming from the bathroom, and a male voice saying, “Be quiet. You
can’t get out. They will hear you.” Perez announced himself as the police and
asked the individuals inside the bathroom to open the door. After receiving no
response, Perez kicked the door open. Perez saw a woman, later identified as
Nayeli Jimenez-Martinez, standing there and look “to her right, as if giving me, like,
some kind of sign to look behind the door. She was clearly terrified about
something that was occurring in there.” Perez observed a male standing behind
the door, later identified as Ramirez-Lopez. Once Ramirez-Lopez exited the
bathroom, Duran placed him in handcuffs. Ramirez-Lopez was arrested and later
charged with unlawful imprisonment-domestic violence.
On November 10, 2022, the Snohomish County District Court issued a
pretrial no-contact order against Ramirez-Lopez, ordering him to have no contact
with Jimenez-Martinez. The order expired on November 23, 2022. The State
presented 11 recorded telephone calls ostensibly indicating that between
November 16 and 22, 2022, Ramirez-Lopez called Jimenez-Martinez from the
Snohomish County Jail. The State charged Ramirez-Lopez with tampering with a
witness-domestic violence and two counts of violating a domestic violence
protection order.
The State filed a pretrial motion to admit Ramirez-Lopez’s jail calls and call
logs. Ramirez-Lopez argued there was no information allowing the conclusion that
Jimenez-Martinez was the female speaker on the phone calls and the phone
number that was called was different than the number Jimenez-Martinez provided
to the State. The State argued that specific incidences were discussed on the
2 No. 85133-1-I/3
phone calls, which supported the conclusion that Jimenez-Martinez was the female
speaker. The trial court admitted the phone calls provisionally, subject to future
redactions. After receiving the defense’s proposed redactions and the State’s
responses, the trial court entered rulings on individual objections throughout the
calls based on relevance, inadmissible other acts, unfair prejudice, and cumulative
evidence.
At trial, the State moved to admit exhibit 41, a compact disc of the 11 jail
calls, into evidence. The State relied on the testimony of Susan Boone, a
Snohomish County Jail public information and records specialist, who testified her
duties included “fulfill[ing] requests for confidential inmate jail records, such as their
booking photos, their arrest records, their phone calls, [and] their video visits.
Whatever is required—requested.” To obtain inmate information, Boone “can log
into our vendor’s software, put in the inmate’s name, or their identity number, their
jacket number, their pin number, and that will bring up the requested information.”
The jail phone calls are recorded and stored by the jail’s vendor and recorded in
real time. Boone testified the recordings are accurate in the information they
reflect, the jail relies on the accuracy of the recordings, and though she had access
to the recordings, she was unable to alter them in any way. The recordings are
attributed to an inmate by their ID (identification) number, pin number, or jacket
number. After being shown exhibit 23, a log of Ramirez-Lopez’s calls, Boone
testified the log consisted of several different names and pin numbers, and only
one call was tied to his pin number. The remaining calls were attributed to
Ramirez-Lopez because the same phone number was contacted, even though it
3 No. 85133-1-I/4
was associated with another inmate’s pin number. Boone testified that it is
possible for inmates to use another inmate’s identification to communicate with
individuals outside the jail. Inmates can “log into a system—into our phone system,
or the station system, enter their ID number, use the voice verification password,
and then hand the phone off or the tablet off to another inmate, who will continue
the call.”
Ramirez-Lopez argued the State did not lay the proper foundation for the
admission of the calls because Boone testified she had no knowledge of how the
records were maintained or kept. Ramirez-Lopez contended that “[j]ust because
[Boone] has access to the report and can pull them doesn’t mean that she has any
other knowledge that is sufficient to establish these are a business record.” The
State argued that the fact the vendor was offsite, or that Boone was not aware of
exactly how the recordings were stored does not negate that they were stored in
the normal course of business at the Snohomish County Jail. The trial court stated,
So, [in] regard to the foundation for these as business records, she did testify that these are records. These call logs and the call recordings are kept in the normal course of business. They are relied upon by the jail for conducting business. They are accurate, she has access to them, and she cannot alter them. I don’t think that the State has to bring the actual vendor to testify as to how the records are ultimately stored in order for them to be admissible as a business record. I kind of liken that to the idea of a doctor’s office having a chart note that’s kept in a massive database, and the record’s custodian is the only one that can access or get that information, and they bring it in. I don’t think that we need to have the maker of the database come in to testify as to how the records are actually maintained or stored.
4 No. 85133-1-I/5
The trial court overruled Ramirez-Lopez’s objection and found that foundation had
been properly laid for admission as a business record under RCW 5.45.020.
On February 2, 2023, a jury convicted Ramirez-Lopez of tampering with a
witness-domestic violence and two counts of violating a domestic violence no
contact order. The jury deadlocked on the unlawful imprisonment charge, and the
charge was dismissed. On March 13, 2023, Ramirez-Lopez was sentenced to 57
months for witness tampering and 364 days for violating the no-contact order.
Additionally, the trial court stated, “I will also find the defendant is indigent, so I will
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85133-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION RENE MACKPERSON RAMIREZ- LOPEZ,
Appellant.
BIRK, J. — Rene Ramirez-Lopez appeals his jury conviction, arguing the
trial court erred in admitting jail phone calls under the business record statute.
Ramirez-Lopez also asks us to remand for the trial court to strike the $500 crime
victim penalty assessment and $115 domestic violence assessment fee from his
judgment and sentence. We affirm Ramirez-Lopez’s conviction, and remand to
inquire on Ramirez-Lopez’s ability to pay the domestic violence assessment fee
and strike the victim penalty assessment.
I
On November 5, 2022, Snohomish County Sheriff’s Deputies Jose Perez
and Raymond Duran were dispatched to Sierra Vista Apartments in response to a
911 call. As Perez drove through the apartment complex, he was approached by
a man who flagged Perez down and told him that his wife’s nephew was having an
argument with his girlfriend. The man led the deputies to his apartment unit and
told them “they” were in the bathroom. Perez heard what he described as a verbal No. 85133-1-I/2
altercation coming from the bathroom, and a male voice saying, “Be quiet. You
can’t get out. They will hear you.” Perez announced himself as the police and
asked the individuals inside the bathroom to open the door. After receiving no
response, Perez kicked the door open. Perez saw a woman, later identified as
Nayeli Jimenez-Martinez, standing there and look “to her right, as if giving me, like,
some kind of sign to look behind the door. She was clearly terrified about
something that was occurring in there.” Perez observed a male standing behind
the door, later identified as Ramirez-Lopez. Once Ramirez-Lopez exited the
bathroom, Duran placed him in handcuffs. Ramirez-Lopez was arrested and later
charged with unlawful imprisonment-domestic violence.
On November 10, 2022, the Snohomish County District Court issued a
pretrial no-contact order against Ramirez-Lopez, ordering him to have no contact
with Jimenez-Martinez. The order expired on November 23, 2022. The State
presented 11 recorded telephone calls ostensibly indicating that between
November 16 and 22, 2022, Ramirez-Lopez called Jimenez-Martinez from the
Snohomish County Jail. The State charged Ramirez-Lopez with tampering with a
witness-domestic violence and two counts of violating a domestic violence
protection order.
The State filed a pretrial motion to admit Ramirez-Lopez’s jail calls and call
logs. Ramirez-Lopez argued there was no information allowing the conclusion that
Jimenez-Martinez was the female speaker on the phone calls and the phone
number that was called was different than the number Jimenez-Martinez provided
to the State. The State argued that specific incidences were discussed on the
2 No. 85133-1-I/3
phone calls, which supported the conclusion that Jimenez-Martinez was the female
speaker. The trial court admitted the phone calls provisionally, subject to future
redactions. After receiving the defense’s proposed redactions and the State’s
responses, the trial court entered rulings on individual objections throughout the
calls based on relevance, inadmissible other acts, unfair prejudice, and cumulative
evidence.
At trial, the State moved to admit exhibit 41, a compact disc of the 11 jail
calls, into evidence. The State relied on the testimony of Susan Boone, a
Snohomish County Jail public information and records specialist, who testified her
duties included “fulfill[ing] requests for confidential inmate jail records, such as their
booking photos, their arrest records, their phone calls, [and] their video visits.
Whatever is required—requested.” To obtain inmate information, Boone “can log
into our vendor’s software, put in the inmate’s name, or their identity number, their
jacket number, their pin number, and that will bring up the requested information.”
The jail phone calls are recorded and stored by the jail’s vendor and recorded in
real time. Boone testified the recordings are accurate in the information they
reflect, the jail relies on the accuracy of the recordings, and though she had access
to the recordings, she was unable to alter them in any way. The recordings are
attributed to an inmate by their ID (identification) number, pin number, or jacket
number. After being shown exhibit 23, a log of Ramirez-Lopez’s calls, Boone
testified the log consisted of several different names and pin numbers, and only
one call was tied to his pin number. The remaining calls were attributed to
Ramirez-Lopez because the same phone number was contacted, even though it
3 No. 85133-1-I/4
was associated with another inmate’s pin number. Boone testified that it is
possible for inmates to use another inmate’s identification to communicate with
individuals outside the jail. Inmates can “log into a system—into our phone system,
or the station system, enter their ID number, use the voice verification password,
and then hand the phone off or the tablet off to another inmate, who will continue
the call.”
Ramirez-Lopez argued the State did not lay the proper foundation for the
admission of the calls because Boone testified she had no knowledge of how the
records were maintained or kept. Ramirez-Lopez contended that “[j]ust because
[Boone] has access to the report and can pull them doesn’t mean that she has any
other knowledge that is sufficient to establish these are a business record.” The
State argued that the fact the vendor was offsite, or that Boone was not aware of
exactly how the recordings were stored does not negate that they were stored in
the normal course of business at the Snohomish County Jail. The trial court stated,
So, [in] regard to the foundation for these as business records, she did testify that these are records. These call logs and the call recordings are kept in the normal course of business. They are relied upon by the jail for conducting business. They are accurate, she has access to them, and she cannot alter them. I don’t think that the State has to bring the actual vendor to testify as to how the records are ultimately stored in order for them to be admissible as a business record. I kind of liken that to the idea of a doctor’s office having a chart note that’s kept in a massive database, and the record’s custodian is the only one that can access or get that information, and they bring it in. I don’t think that we need to have the maker of the database come in to testify as to how the records are actually maintained or stored.
4 No. 85133-1-I/5
The trial court overruled Ramirez-Lopez’s objection and found that foundation had
been properly laid for admission as a business record under RCW 5.45.020.
On February 2, 2023, a jury convicted Ramirez-Lopez of tampering with a
witness-domestic violence and two counts of violating a domestic violence no
contact order. The jury deadlocked on the unlawful imprisonment charge, and the
charge was dismissed. On March 13, 2023, Ramirez-Lopez was sentenced to 57
months for witness tampering and 364 days for violating the no-contact order.
Additionally, the trial court stated, “I will also find the defendant is indigent, so I will
only impose the $500 victim’s penalty assessment, which is mandatory; the $115
domestic violence fee; and then the two $15 violation of a no-contact order fee.
So, $30 total on that. So, if my math is correct, which is always questionable, that
would be $645.” Ramirez-Lopez appeals.
II
Ramirez-Lopez argues the trial court erred in admitting the recording
because the State failed to lay a proper foundation. Ramirez-Lopez contends the
State was required to comport to the requirements of the Uniform Business
Records as Evidence Act, RCW 5.45.020. However, the cases Ramirez-Lopez
cites analyze the introduction of evidence under the Act as whether the evidence
may be admitted as an exception to the rule against hearsay evidence. State v.
Iverson, 126 Wn. App. 329, 337, 108 P.3d 799 (2005); State v. Hines, 87 Wn. App.
98, 101, 941 P.2d 9 (1997). Ramirez-Lopez does not argue that the recording is
hearsay and must meet a hearsay exception to be admissible. Professor Aronson
writes that “[a] recognized method for authentication computer-generated business
5 No. 85133-1-I/6
records is similar to that for the business record exception to the hearsay rule,
codified in RCW 5.45.020.” ROBERT H. ARONSON ET AL., THE LAW OF EVIDENCE IN
WASHINGTON § 3.03[1][f], at 3-11 to 3-12 (5th ed. 2023). However, Ramirez-Lopez
does not cite authority holding that RCW 5.45.020 is the only method for
authenticating an exhibit that may also be a business record.
Generally, authenticity is governed by ER 901. The rule requires that
documents be authenticated or identified through proof sufficient to permit a
reasonable trier of fact to find in favor of authenticity or identification. State v.
Danielson, 37 Wn. App. 469, 471, 681 P.2d 260 (1984). A proponent can meet
these requirements in more than one way. See e.g., ER 901(b). This standard
does not require testimony from a party to a sound recording. “A sound recording,
in particular, need not be authenticated by a witness with personal knowledge of
the events recorded.” State v. Williams, 136 Wn. App. 486, 500, 150 P.3d 111
(2007). “Rather, the trial court may consider any information sufficient to support
the prima facie showing that the evidence is authentic.” Id. at 500-01. Where “the
tape records human voices, the foundational witness . . . usually must identify
those voices.” State v. Jackson, 113 Wn. App. 762, 767, 54 P.3d 739 (2002); ER
901(b)(1).
Here, the State presented evidence that the speakers were Ramirez-Lopez
and Jimenez-Martinez. The first jail call within exhibit 41 was made using Ramirez-
Lopez’s own pin number and name, which established his voice on the remaining
jail calls. Additionally, there was circumstantial evidence from the substance of the
conversations that the female speaker was Jimenez-Martinez, including
6 No. 85133-1-I/7
discussion of facts of the current case, requesting the female speaker put money
on the male’s jail account which was consistent with Jimenez-Lopez depositing
money into Ramirez-Lopez’s account, discussion of the no-contact order,
references to a prior assault that was consistent with an assault on Jimenez-
Martinez, referring to the male speaker as “Mac,” which Jimenez-Lopez was known
to call Ramirez-Lopez, and professions of their feelings for one another.
Additionally, the trial court heard Jimenez-Martinez testify in court and listened to
the recording before it admitted the recording into evidence.
Boone testified that the recordings were made in real time, the recordings
were accurate in the information they reflected, the jail relied on the accuracy of
the recordings, and she was unable to alter them in any way. Boone confirmed
she listened to the recording prior to coming to court and the recording was a fair
and accurate copy of Ramirez-Lopez’s phone calls as reflected in the call log.
Boone testified that although only one out of the 11 phone calls was tied to
Ramirez-Lopez’s pin number, all the phone calls could be attributed to him
because he contacted the same phone number. This foundational testimony,
together with the identification of the voices, was sufficient to authenticate the
recording.
The decision to admit evidence lies within the sound discretion of the trial
court and should not be overturned absent a manifest abuse of discretion. State
v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). No abuse of discretion has
been demonstrated.
7 No. 85133-1-I/8
III
Ramirez-Lopez asks us to remand for the trial court to strike the $500 crime
victim penalty assessment from his judgment and sentence. He argues that a
recent amendment to RCW 7.68.035 provides that the penalty assessment shall
not be imposed against a defendant who is indigent at the time of sentencing and
that the trial court made such a finding here. LAWS OF 2023, ch. 449, § 1(4). The
State does not object to a remand for the purposes of striking the penalty
assessment from Ramirez-Lopez’s judgment and sentence. We accept the State’s
concession and remand accordingly.
Ramirez-Lopez also argues that on remand, the trial court should
reconsider the imposition of the domestic violence assessment fee, claiming the
trial court intended to impose only mandatory assessments. RCW 10.99.080
states that a court may impose a penalty assessment on any adult offender
convicted of a crime involving domestic violence. In addition, RCW 10.99.080(5)
encourages sentencing judges “to solicit input from the victim or representatives
for the victim in assessing the ability of the convicted offender to pay the penalty,
including information regarding current financial obligations, family circumstances,
and ongoing restitution.” Given the trial court’s finding that Ramirez-Lopez is
indigent, and because we remand to strike the victim penalty assessment, the trial
court on remand should also indicate whether it intends to impose the domestic
violence assessment in spite of Ramirez-Lopez’s indigence or intends to impose
only mandatory legal financial obligations.
8 No. 85133-1-I/9
We affirm Ramirez-Lopez’s conviction and remand to strike the victim
penalty assessment and clarify the court’s intention concerning the domestic
violence assessment.
WE CONCUR: