IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85599-9-I Respondent,
v. DIVISION ONE
OMAR DE JESUS FELIX-GAMEZ, UNPUBLISHED OPINION Appellant.
CHUNG, J. — Omar De Jesus Felix Gamez appeals his conviction for two
counts of rape of a child in the second degree. He contends the trial court erred
when it admitted propensity evidence over his objection and lay witness opinion
testimony concerning his guilt. He also argues the trial court erred when it
imposed community custody conditions that prevent him from consuming alcohol
and require him to be available for and submit to urinalysis (UA) and breath
analysis (BA) upon request of a community corrections officer (CCO) or a
chemical dependency treatment provider. Additionally, he argues the trial court
erred when it imposed a $500 victim penalty assessment (VPA). We remand to
strike the VPA and otherwise affirm.
FACTS
Felix Gamez met and began dating Nancy Delgado Garcia in 2013. At the
time, Delgado Garcia was a single parent supporting her 10-year-old daughter,
M.E.D. Since Delgado Garcia worked long hours at a restaurant, Felix Gamez
assisted in watching M.E.D. after school or gymnastics practice. No. 85599-9-I/2
M.E.D. eventually confided with family members that Felix Gamez had
raped her while she was in middle school. The first time, M.E.D. was washing
dishes at the sink when Felix Gamez grabbed her by the waist and wrapped his
arms around her. M.E.D. testified that he eventually “pulled my underwear down,
and he took out his penis, and he bent me over like to the sink, and he put his
penis inside my vagina, and he started going back and forth.” M.E.D. testified
that this occurred during her winter gymnastics season, around sixth grade and
before she turned 14 years old.
At some point after the first rape, Felix Gamez showed M.E.D. a video of
himself having sex with Delgado Garcia from behind while in their bedroom. He
told M.E.D. that he wanted to do the same with her the “next time.” Delgado
Garcia confirmed the video existed and shared that Felix Gamez admitted to
showing the video to M.E.D. accidentally. Delgado Garcia also testified at trial
that Felix Gamez had once told her during sex that he wished she was 14 years
old and a virgin. She also stated that some of Felix Gamez’s behavior was “not
normal,” and she “freak[ed] out” when she witnessed some of M.E.D.’s behavior
around him.
M.E.D. alleged the second rape occurred after she participated in a
gymnastics competition, when she was in the seventh grade. While searching for
clothes in Delgado Garcia’s bedroom, Felix Gamez began touching her and
eventually “threw [her] on the bed.” M.E.D. testified that he then positioned her
“so [she] was facing towards the bed. And then he bent [her] over, and he pulled
[her] pants down again, and. . . . he put his penis into [her] vagina again.” The
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position the two were in was similar to how he was positioned with Delgado
Garcia in the video he had previously shown M.E.D.
After M.E.D. disclosed the rapes, the State charged Felix Gamez in 2020
with two counts of rape of a child in the second degree. A jury convicted Felix
Gamez as charged. The trial court imposed concurrent indeterminate sentences
of 136 months to life. The trial court also imposed, among a variety of community
custody conditions, a set of conditions to prevent Felix Gamez from consuming
alcohol and to submit to urine or breath analysis “upon request of the CCO
and/or chemical dependency treatment provider.”
Felix Gamez timely appeals.
DISCUSSION
Felix Gamez challenges Delgado Garcia’s testimony that he told her he
wished she were 14 years old and a virgin as improper propensity evidence. He
also argues that Delgado Garcia’s commentary that certain conduct of his was
“not normal” and that she “freak[ed] out” when watching him and M.E.D. interact
was improper opinion testimony concerning his guilt. Additionally, he challenges
the community custody conditions that prevent him from consuming alcohol and
that require him to submit to monitoring, as the conditions are not crime-related.
He also requests this court strike the VPA from his sentence because he is
indigent.
I. ER 404(b)
Felix Gamez argues that the trial court erred when it improperly admitted
“other acts” evidence through Delgado Garcia’s testimony against him over his
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objection. The State contends that Felix Gamez did not object to Delgado
Garcia’s testimony based on ER 404(b) at trial and failed to preserve the error,
so waived the issue pursuant to RAP 2.5(a). We agree with the State.
“A party may assign evidentiary error on appeal only on a specific ground
made at trial.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). “This
objection gives a trial court the opportunity to prevent or cure error.” Id.
Generally, appellate courts will not consider issues raised for the first time on
appeal. RAP 2.5(a). “However, a claim of error may be raised for the first time on
appeal if it is a manifest error affecting a constitutional right.” Kirkman, 159
Wn.2d at 926; RAP 2.5(a). Accordingly, “[t]he defendant must identify a
constitutional error and show how the alleged error actually affected the
defendant’s rights at trial. It is this showing of actual prejudice that makes the
error ‘manifest,’ allowing appellate review.” Id. at 926-27 (quoting State v.
McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).
Here, Felix Gamez assigns error on appeal to Delgado Garcia’s testimony
based on ER 404(b). Generally, propensity evidence, i.e., “[e]vidence of a
person’s character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion,” ER 404(a),
although it may be admissible “for other purposes” under ER 404(b).
During Delgado Garcia’s testimony, the State asked her if Felix Gamez
said anything “strange” to her when they were having sex. Felix Gamez initially
objected on “the relevance of this line of questioning at this point.” Upon hearing
Delgado Garcia’s initial answer, he also objected to it being nonresponsive. After
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hearing the initial answer, the court sustained Felix Gamez’s objection that the
testimony was nonresponsive and asked the jury to “disregard the last part of
that answer.”
The State then asked again if Felix Gamez had ever said anything to her,
“while you were having sex with him, that [she] thought was odd?” This time,
Felix Gamez objected to the question as “leading . . . and to the relevance.” The
court overruled the objection, and Delgado Garcia testified that Felix Gamez told
her during sex that he wished she was 14 years old.
The State repeated the statement and attempted to ask a follow-up
question but Felix Gamez again objected as “asked and answered[,] repetitive[,]
and narrative.” The court again overruled the objection, and Delgado Garcia
explained that she asked Felix Gamez why he would say something like that, and
he responded, “[B]ecause I wish you were a virgin so I could be your first man.”
Thus, while Felix Gamez lodged multiple objections to the line of
questioning regarding his comments to Delgado Garcia about wishing she were
14 years old, including relevance,1 none related to ER 404(b). Accordingly, Felix
Gamez’s challenge to the testimony as improper propensity evidence based on
ER 404(b) is raised for the first time on appeal.
Under RAP 2.5(a), a party may raise an error for the first time on appeal if
it is a manifest error impacting a constitutional right. But evidentiary errors such
as that claimed by Felix Gamez here—erroneous admission of propensity
evidence under ER 404(b) evidence—are not of constitutional magnitude. State
1 ER 401 defines “relevant evidence” as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
5 No. 85599-9-I/6
v. Powell, 166 Wn.2d 73, 84, 206 P.3d 321 (2009). Accordingly, we decline to
review the claim that the court improperly admitted Delgado Garcia’s testimony.
II. Testimony on Ultimate Issue of Guilt
Felix Gamez next argues that the trial court violated his right to a fair trial
when it permitted Delgado Garcia to offer her opinion on the ultimate issue of
guilt. He asserts even if he did not object below, he can raise the challenge for
the first time on appeal because admitting the evidence amounted to manifest
constitutional error. The State again counters the issue is waived pursuant to
RAP 2.5(a), and even if the issue was preserved, “the challenged testimony does
not convey an opinion on Felix Gamez’s guilt.” We agree that the challenged
testimony did not amount to manifest constitutional error.
“Generally, no witness, lay or expert, may give an opinion, directly or
inferentially, on the defendant’s innocence or guilt.” State v. Johnson, 152 Wn.
App. 924, 930, 219 P.3d 958 (2009) (citing State v. Black, 109 Wn.2d 336, 348,
745 P.2d 12 (1987)). “Impermissible opinion testimony regarding the defendant’s
guilt may be reversible error because such evidence violates the defendant’s
constitutional right to a jury trial, which includes the independent determination of
the facts by the jury.” Kirkman, 159 Wn.2d at 927. An error of constitutional
magnitude is presumed prejudicial and “the State bears the burden of proving it
was harmless beyond a reasonable doubt.” State v. Lynch, 178 Wn.2d 487, 494,
309 P.3d 482 (2013). “However, if the testimony does not directly comment on
the defendant’s guilt or veracity, helps the jury, and is based on inferences from
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the evidence, it is not improper opinion testimony.” Johnson, 152 Wn. App. at
930-31.
Additionally, the Washington Supreme Court has recognized that
“[a]dmission of witness opinion testimony on an ultimate fact without objection, is
not automatically reviewable as a ‘manifest’ constitutional error.” Kirkman, 159
Wn.2d at 936; see also City of Seattle v. Heatley, 70 Wn. App. 573, 583-86, 854
P.2d 658 (1993). Rather, “ ‘[m]anifest error’ requires a nearly explicit statement
by the witness that the witness believed the accusing victim.” Kirkman, 159
Wn.2d at 936. The court reasoned that “requiring an explicit or almost explicit
witness statement on an ultimate issue of fact is consistent with our precedent
holding the manifest error exception is narrow.” Id. (citing State v. WWJ Corp.,
138 Wn.2d 595, 603, 980 P.2d 1257 (1999)). In this case, a violation would
concern explicit or nearly explicit comments as to whether Felix Gamez raped
M.E.D.
As the basis for his claim of improper opinion testimony, Felix Gamez
highlights instances in which Delgado Garcia described the relationship between
himself and M.E.D. as not being “normal.” The first time Delgado Garcia used
this term, she testified that Felix Gamez shared the video with M.E.D. of him and
Delgado Garcia having sex. She stated that while it was “normal” for couples to
engage in such activities, “what [wa]s not normal” was that he did not erase the
video after she had asked him to do so and that it “was not normal” for him to
show it to her daughter. She then reiterated “[t]hat’s not normal. That’s not what
somebody who is sensible would do.” As Felix Gamez had objected to the
7 No. 85599-9-I/8
answer as nonresponsive, the court sustained the objection and then instructed
the jury to “disregard the last part of that answer.” Thus, the court immediately
addressed Felix Gamez’s stated concern, and the jury is presumed to have
followed that instruction. State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d
267 (2008).
In another exchange, Delgado Garcia discussed confronting Felix Gamez
about showing M.E.D. the video of them having sex. Delgado Garcia testified that
she confronted him after “[she] saw [her] daughter with [her] own eyes standing
on her tippy toes like this for a kiss on [Felix Gamez].” She further stated that was
when she “freak[ed] out” and repeatedly asked M.E.D. and Felix Gamez “what
[wa]s going on.” According to Delgado Garcia, when she tried to speak with
M.E.D., she appeared scared. At this point in the testimony, Felix Gamez
highlighted his standing objection to hearsay, and the court reminded Delgado
Garcia not to repeat anything M.E.D. said.
Subsequently, without giving details as to what M.E.D. said during the
conversation, Delgado Garcia testified that after her discussion with M.E.D., she
then discussed the video with Felix Gamez, and he admitted that he shared it
with M.E.D. When the State asked Delgado Garcia what caused him to share this
information, she stated:
Because I talked to him. I asked him what was going on because it wasn’t normal what—the way that I saw my daughter acting wasn’t normal when she was standing in front of the bedroom to my room. And so I asked him. I went in. I talked to him about the video and asked him how he could have permitted [M.E.D.] to . . . have seen it.
8 No. 85599-9-I/9
In support of his claim, Felix Gamez cites Johnson, in which the defendant
established manifest constitutional error because the improper testimony
included hearsay statements that the wife had expressed an explicit belief that
the defendant was guilty. 152 Wn. App. at 929-34. In Johnson, the State charged
the defendant with two counts of child molestation in the first degree. Id. at 928.
At trial, the defendant’s wife testified on his behalf. Id. at 932. In rebuttal, the
State elicited testimony from the alleged victim and her family members
concerning a confrontation with the defendant’s wife. Id. at 932-33. The wife did
not initially believe the allegations and asked the alleged victim to “describe
something that only someone that had been with [the defendant] would know.” Id.
at 932. When the wife heard corroborating details, one of the family members
testified that “[s]he freaked out. She became hysterical. She said it was true and
the rest of the night became a nightmare.” Id. at 930, 932. Division Two rejected
the State’s argument that the evidence was admissible as impeachment
evidence, because the wife’s opinion was collateral and not a proper subject for
impeachment, as well as highly prejudicial and had little if any evidentiary value.
Id. at 933-34. Instead, the court held that the testimony about the wife’s reaction
constituted impermissible opinion about the defendant’s guilt, as the jury should
not have heard that the wife believed the allegations. Thus, this impermissible
opinion on guilt was a manifest constitutional error that could be raised for the
first time on appeal. Id. at 934.
As the State notes, the testimony was quite different in this case.
Although both involved a witness’s emotional reaction to information
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related to the defendant’s behavior, Delgado Garcia’s testimony that she
“freak[ed] out” was about her own reaction to M.E.D.’s behavior and
perceived mood, not about the defendant’s conduct. Unlike the reaction in
Johnson, Delgado Garcia’s reaction does not express an opinion as to
whether the defendant had engaged in the “ultimate facts” of the crime,
i.e., rape of a child. Additionally, Delgado Garcia merely testified that she
believed it was not “normal” for Felix Gamez to not erase the video at her
request and that it was not “normal” for him to show it to M.E.D. These are
not the type of “explicit” or “nearly explicit statement[s] by the witness that
the witness believed the accusing victim,” as required by Kirkman, 159
Wn.2d at 936.
Felix Gamez fails to show that Delgado Garcia’s testimony
expressed an improper opinion on his guilt. Thus, he does not
demonstrate that the alleged error was a manifest constitutional error that
may be raised for the first time on appeal.
III. Community Custody Conditions
As a condition of community custody, the trial court ordered Felix Gamez
to (1) refrain from consuming alcohol and (2) “[b]e available for and submit to
urinalysis and/or breath[]analysis upon request of the CCO and/or chemical
dependency treatment provider.” Felix Gamez asserts the trial court erred when it
imposed community custody conditions prohibiting and monitoring his alcohol
use because alcohol was not related to his crimes. “We review a trial court’s
imposition of a community custody condition for an abuse of discretion and will
10 No. 85599-9-I/11
reverse only if the condition is manifestly unreasonable.” State v. Houser, 30 Wn.
App. 2d 235, 276-77, 544 P.3d 564 (2024).
The State argues the issue is waived and, alternatively, that RCW
9.94A.703(3)(e) specifically authorizes the trial court to prohibit an offender from
possessing or consuming alcohol regardless of whether alcohol was involved in
the crime. RCW 9.94A.703(3), entitled “Discretionary conditions,” provides that
“[a]s part of any term of community custody, the court may order an offender to”
“(e) Refrain from possessing or consuming alcohol.” Our supreme court has
recently held that a condition prohibiting alcohol use is “statutorily authorized and
do[es] not have to be crime related to be imposed.” State v. Nelson,
No. 102942-0, slip op. at 27 (Wash. Mar. 27, 2025),
https://www.courts.wa.gov/opinions/pdf/1029420.pdf; see also State v. Jones,
118 Wn. App. 199, 206-07, 76 P.3d 258 (2003), cited in Nelson, slip op. at 20.
Accordingly, the trial court did not abuse its discretion when it imposed a
condition that Felix Gamez must refrain from possessing or consuming alcohol,
regardless of whether alcohol contributed to the crime.
Finally, the State argues the community custody condition requiring Felix
Gamez to be available for and submit to UA or BA upon request of the CCO or a
chemical dependency treatment provider is not ripe for review. When considering
the ripeness of a preenforcement challenge to a community custody condition,
this court must analyze whether the “ ‘issues raised are primarily legal, do not
require further factual development, and the challenged action is final.’ ” State v.
Cates, 183 Wn.2d 531, 534, 354 P.3d 832 (2015) (quoting State v. Sanchez
11 No. 85599-9-I/12
Valencia, 169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). We must also consider
the hardship the petitioner would face if we refused to review the challenge on
direct appeal. Id. (citing Sanchez Valencia, 169 Wn.2d at 789).
The court in Nelson recently settled this issue, holding a community
custody condition requiring the defendant to “submit to breathalyzer testing or
any other testing to ensure no alcohol consumption” was not ripe for review.
Nelson, No. 102942-0, slip op. at 6, 13. The issues were primarily legal, the BA
and UA testing conditions were final, and the conditions as written were not
vague. Id. at 14, 16. However, the court reasoned that further factual
development was necessary because the court imposed the conditions to
monitor compliance with other valid conditions prohibiting alcohol and drug use,
but there was no evidence as to whether or how the State would enforce the
conditions by requesting and conducting BA or UA testing. Id. at 16-17. Thus, the
preenforcement challenge was not ripe for review “because it rest[ed] on the
factually unsupported assumption that BA and UA testing will be ‘conducted in an
unreasonable manner’ or ‘used impermissibly as part of “a fishing expedition to
discover evidence of other crimes.” ’ ” Id. at 17 (quoting State v. Olsen, 189
Wn.2d 118, 134, 399 P.3d 1141 (2017) (quoting State v. Combs, 102 Wn. App.
949, 953, 10 P.3d 1101 (2000))). Furthermore, the Nelson court deemed the risk
of hardship to the defendant was low, as the testing conditions did not require
him “to do, or refrain from doing, anything upon his release.” Id. at 18.
Accordingly, under Nelson, we decline to review Felix Gamez’s challenge to the
UA/BA condition, as the issue is not ripe for review.
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IV. VPA
Felix Gamez argues this court should strike the VPA because he is
indigent and recent amendments to the statute bar courts from imposing such
fees on indigent defendants. The State agrees. The 2023 amendments that
prohibit courts from imposing the VPA when the defendant is indigent apply to
matters pending on direct appeal. State v. Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d
1048 (2023); see RCW 7.68.035(4). Thus, we remand to strike the VPA from
Felix Gamez’s judgment and sentence.
CONCLUSION
We remand to strike the VPA and otherwise affirm.
WE CONCUR:
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