Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  41663-8-II

                             Respondent,

       v.

EDUARDO LOPEZ RAMOS,                                       UNPUBLISHED OPINION

                             Appellant.

       Penoyar, C.J.  --  Eduardo Lopez Ramos appeals his convictions for attempted first degree 

rape (count I) and second degree robbery (count III), contending that the State's evidence was 

insufficient to sustain these convictions.  He also challenges his offender score calculation as to 

counts III and IV (another second degree robbery conviction).      Finally,  he contends that the 

judgment and sentence contains a scrivener's error regarding a monetary recoupment amount.  

The State concedes the sentencing errors.  We affirm Lopez Ramos's convictions and remand for 

resentencing as the parties agree.  

                                             Facts

       EA and her husband Edgar lived in Lakewood in 2009.  Lopez Ramos is EA's husband's 

uncle.  Lopez Ramos arrived at EA's house, unexpectedly on January 30, 2009 at 6:30 A.M.

asking for Edgar.  EA called her husband at work, and he told her to tell Lopez Ramos to go lay 

on the couch.  EA then went into her bedroom and locked herself and her one-year-old daughter 

into the room.  

       Lopez Ramos told EA to get up and make food for him.  When she refused, Lopez Ramos

barged into the room breaking the lock on the door.  EA told him to leave and he got mad, pulled  

41663-8-II

her by her shirt and dragged her into the living room.  EA tried to call 911 but she dropped her 

cell phone as Lopez Ramos dragged her into the living room.  

       Lopez Ramos proceeded to attack EA for thirty to forty-five minutes, saying that he was 

going to teach her to respect him.  During the attack, Lopez Ramos forced his penis into EA's 

mouth, repeatedly hit her, and choked her.  He took EA's cell phone and car keys when he left her 

home.  EA's description of the attack is described in more detail in the analysis sections that 

follow. 

       The State charged Lopez Ramos with one count of first degree rape (count I), one count 

of second degree assault (count II), and one count of first degree robbery (count III), regarding 

the incident with EA.1  The jury found Lopez Ramos guilty of the lesser charge of attempted first 

degree rape (count I), second degree assault (count II), and the lesser charge of second degree 

robbery (count III) regarding the incident with EA.2  

       The trial court sentenced Lopez Ramos on January 7, 2011, and ruled that the attempted 

rape charge (count I) and the second degree assault charge (count II) constituted the same 

criminal conduct.  The trial court reduced Lopez Ramos's offender score from a 10 to an 8 on the 

attempted rape and assault charge, but left the offender score for the robbery counts (counts III 

and IV) at 10.  The trial court sentenced Lopez Ramos to a standard range sentence of 170 

months to life on the attempted rape count (count I) with all of the other counts to run 

1 The State also charged Lopez Ramos with one count of second degree robbery (count IV), one 
count of attempted theft of a motor vehicle (count V), one count of unlawful possession of 
methamphetamine (count VI), and one count of possession of a legend drug: Viagra (count VII) 
regarding other incidents that are not part of this appeal.  Count V, which concerned a different 
vehicle than EA's, was dismissed at trial.  Facts regarding these other charges are not discussed.  

2 The jury also convicted Ramos on the remaining counts IV, VI, and VII.  
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concurrently.  The court also imposed financial obligations including a "$400 DAC recoupment."  

Report of Proceedings (RP) (Jan. 7, 2011) at 25.  Lopez Ramos's judgment and sentence lists the 

recoupment amount as $1,500.  Lopez Ramos appeals. 

                                            analysis

I.     Sufficiency: Count I

       Lopez Ramos contends that the evidence was insufficient to convict him of attempted first 

degree rape.  We disagree.  

       Sufficient evidence supports a conviction if, when viewed in the light most favorable to the 

State, any rational trier of fact could have found the essential elements of the charged crime 

proved beyond a reasonable doubt.  State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).  On 

appeal, we draw all reasonable inferences from the evidence in the State's favor and interpret 

them most strongly against the defendant.  Hosier, 157 Wn.2d at 8.  In the sufficiency context, we 

consider circumstantial evidence as probative as direct evidence.  State v. Goodman, 150 Wn.2d

774, 781, 83 P.3d 410 (2004).  We may infer specific criminal intent of the accused from conduct 

that plainly indicates such intent as a matter of logical probability. Goodman, 150 Wn.2d at 781

(quoting State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)).  We defer to the fact 

finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. 

State v. Raleigh, 157 Wn. App. 728, 736, 238 P.3d 1211 (2010), review denied, 170 Wn.2d 1029

(2011).  

       "A person is guilty of an attempt to commit a crime if, with intent to commit a specific 

crime, he or she does any act which is a substantial step toward the commission of that crime."  

RCW 9A.28.020(1).  In other words, all crimes of attempt contain two elements: intent to commit 

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a specific crime and the taking of a substantial step toward the commission of that crime.  State v. 

DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003).        The trier of fact may infer the intent to 

commit a crime from all the facts and circumstances presented in the evidence.  State v. White, 

150 Wn. App. 337, 343, 207 P.3d 1278 (2009).  To constitute a substantial step, the conduct in 

question must be "strongly corroborative" of the actor's criminal purpose.  White, 150 Wn. App.

at 343 (quoting In re Pers. Restraint of Borrero, 161 Wn.2d 532, 539, 167 P.3d 1106 (2007) 

(quoting State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002)).  While an attempt must 

be more than mere preparation to commit a crime, "[a]ny slight act done in furtherance of a crime 

constitutes an attempt if it clearly shows the design of the individual to commit the crime."  White, 

150 Wn. App. at 343 (quoting State v. Price, 103 Wn. App. 845, 852, 14 P.3d 841 (2000)).  An 

attempt conviction does not depend on the ultimate harm that results or on whether the crime was 

actually completed.  White, 150 Wn. App. at 343 (quotation marks and citation omitted).  

       Under the unchallenged instructions, to convict Lopez Ramos of attempted first degree 

rape as charged in count I, the State had to prove "(1) That on or about [the] 30th day of January, 

2009, the defendant did an act that was a substantial step toward the commission of Rape in the 

First Degree[;] (2) That the act was done with the intent to commit Rape in the First Degree[;]

and (3) That the act occurred in the State of Washington."  Clerk's Papers (CP) at 34; Instr. 15.  

Instruction 8 explained that first degree rape occurs when the  defendant:  "engages in sexual 

intercourse with another person by forcible compulsion and inflicts serious physical injury." CP at 

27.  Instruction 16 defined "substantial step" as  "conduct, that strongly indicates a criminal 

purpose and which is more than mere preparation." CP at 35.  Instruction 12 defined "[p]hysical 

injury" as "physical pain or injury, illness, or an impairment of physical condition." CP at 31.  

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       Lopez Ramos does not challenge that forcible sexual intercourse occurred, instead he 

contends that the State failed to prove that he "intended" to inflict serious physical injury.  

Appellant's Br. at 13.  Serious physical injury, includes but is not limited to physical injury which 

renders the victim unconscious.  RCW 9A.44.040(c); State v. Frawley, 140 Wn. App. 713, 723, 

167 P.3d 593 (2007).  

       The State presented ample evidence that Lopez Ramos took a substantial step toward 

committing first degree rape, including evidence that he took a substantial step toward inflicting 

serious bodily injury.  Lopez Ramos broke through a locked bedroom door and dragged EA from 

her bedroom into the living room by her shirt.  Lopez Ramos then repeatedly struck her face using 

both an open and closed hand.  Facial trauma, bruises, and abrasions corroborated that EA had 

been pulled, dragged, and hit.  Lopez Ramos lay on top of EA as she struggled, put his forearm 

against her neck, and used his full weight to choke her.  EA testified that it was painful, that she 

had difficulty breathing and that she "went blank" for about 20 seconds.  4 RP at 456.  

       Considering this evidence in the light most favorable to the State, a reasonable jury could 

logically conclude that Lopez Ramos attempted to inflict a serious physical injury on EA.  We 

hold that Lopez Ramos's actions, including choking EA with his full body weight such that she 

experienced pain,  difficulty breathing, and a temporary blackout, show more than mere 

preparation, they demonstrate a substantial step toward first degree rape.  Lopez Ramos's 

assertion of insufficient evidence regarding count I fails.  

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II.    Sufficiency: Count III

       Lopez Ramos contends that the evidence was insufficient to convict him of second degree 

robbery (count III).  Specifically, he contends that the State's evidence does not show that he 

used force to obtain EA's property or that he had the intent to steal.  We disagree.  

       In order to find Lopez Ramos guilty of second degree robbery, the jury was instructed as 

follows:

              To convict the defendant of the crime of robbery in the second degree, 
       each of the following elements of the crime must be proved beyond a reasonable 
       doubt[:]  
              (1) That on or about the 30th day of January, 2009, the defendant 
       unlawfully took personal property from the person or in the presence of another[;]
              (2) That the defendant intended to commit theft of the property[;]
              (3) That the taking was against that person's will by the defendant's use or 
       threatened use of immediate force, violence, or fear of injury to that person or to 
       the person of another;
              (4) That force or fear was used by the defendant to obtain or retain 
       possession of the property or to prevent or overcome resistance to the taking; and
       (5) That any of these acts occurred in the State of Washington.  

CP at 56; Instr. 37.  

       Lopez Ramos does not dispute that he used force regarding the attempted rape and 

assault.  He denies that he used force to obtain  EA's cell phone and car because it was her 

suggestion that he take them.  Lopez Ramos's argument ignores the context of EA's comment. 

       As described above, Lopez Ramos committed a brutal attack on EA to "teach [her] how 

to respect him."  4 RP at 446.  The evidence in the light most favorable to the State indicated that 

Lopez Ramos forced himself on EA and repeatedly hit her and choked her in an attack that lasted 

thirtyto forty-five minutes.  

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       EA testified that she tried to use her cell phone and car as bargaining chips to get Lopez 

Ramos to stop his attack and leave her apartment.  As the attack wore on, EA's infant continued 

to cry and scream from the bedroom, making Lopez Ramos angry.  A jury could reasonably infer 

that EA was desperate to try anything to get Lopez Ramos out of her home for her and her child's 

safety.  EA testified that each time she screamed as Lopez Ramos attacked her, her daughter 

would scream more, and he became angrier.  So she pleaded with him, saying:

              What do you want?  Do you want money?  Take my phone.  Take 
       anything.  I won't tell anybody; just leave me alone.  
              And I know he's got three kids, so I brought them up.  I said: I won't say 
       anything to anybody.  You have kids too.  Can't you hear my daughter?
              So he grabbed me from my hair and asked me for my car keys, and he took 
       my phone and he left.  

4 RP at 457.  

       This evidence does not show that EA voluntarily offered Lopez Ramos her car and phone 

and gave him permission to use them as he suggests.  The coercive circumstance here negates any 

voluntariness in EA's offer of her car and phone.  EA testified that she did not want to give Lopez 

Ramos her cell phone and car, but she offered them in an attempt to get him to leave her 

apartment.  "[A]t the end he asked for [my phone] and my keys."  4 RP at 468.  "[H]e grabbed 

me by my hair and I told him where they were at so I could give it to him."  4 RP at 469.   

       Lopez Ramos grabbed EA by her hair in order to collect the car keys and also took her 

phone and fled the apartment.  A reasonable jury could logically conclude that Lopez Ramos

intended to take EA's property and used force to get it.  Goodman, 150 Wn.2d at 781 (we may 

infer specific criminal intent of the accused from conduct that plainly indicates such intent as a 

matter of logical probability). Lopez Ramos's assertion of insufficient evidence regarding count 

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III fails.  

III.   Sentencing Errors

       Finally, Lopez Ramos asks us to remand his case for resentencing, contending that the 

judgment and sentence reflects an incorrect offender score for the two robbery counts (counts III 

and IV) and for correction of a scrivener's error regarding the amount of the DAC recoupment 

listed in the judgment and sentence.  The State concedes these errors and asks us to remand for 

correction of the offender score as Lopez Ramos requested, resentencing accordingly, and for 

correction of the scrivener's error in the judgment and sentence regarding the DAC recoupment 

amount.  Given the State's concession, we remand for resentencing as both parties request, and 

affirm Lopez Ramos's convictions.  

       A majorityofthe panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so 

ordered.

                                                           Penoyar, C.J.

We concur:

       Armstrong, J.

       Johanson, J.

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