Fi!..;70 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STATE OF WASHINGTON, ) ) No. 73452-1-1 Respondent, ) ) DIVISION ONE v. ) ) UNPUBLISHED OPINION DOMINGO MONTAR-MORALES, ) ) Appellant.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 Lopez-
Flores 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). No. 73452-1-1/2
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.
2 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 Montar-
Morales. 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. Montar-
Morales 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 Montar-
Morales left the treatment table, a nurse noticed that a wallet had dropped
containing the identification of Lopez-Ramirez. When Montar-Morales was booked
4 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 Montar-
Morales 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
6 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
7 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. Monter-
Morales 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.
8 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). 9 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.
10 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). 11 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). 12 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.
13 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
The trial court did not manifestly abuse its discretion in denying Montar-
Morales'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 Montar-
Morales 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
14 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). 15 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.
Acz— WE CONCUR: