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.  41177-6-II

                             Respondent,                   UNPUBLISHED OPINION

       v.

MARCOS R. LOZANO,

                             Appellant.

       Armstrong, J.  --  Marcos Lozano appeals his conviction for second degree rape, arguing 

that (1) the trial court violated his Sixth Amendment right to present a defense when it excluded 

sexually suggestive photographs of one victim and (2) his defense counsel ineffectively 

represented him by failing to move to sever the two second degree rape counts at the close of the 

State's evidence.  Lozano also asserts numerous claims in his statement of additional grounds,

including that insufficient evidence supports his second degree rape conviction. We hold that the

trial court erred in joining the two rape charges because the trial judge relied on RCW 10.58.090, 

which the Supreme Court has since declared unconstitutional in State v. Gresham, ___ Wn.2d 

___, 269 P.3d 207 (2012).  Because we cannot conclude the joinder was harmless error, we 

reverse and remand for a new trial.  

No.  41177-6-II

                                            FACTS

       The State charged Lozano with two counts of second degree rape following two separate 

incidents in February 2009.  

A.     Count I

       Lozano met Brittany Smith online through MySpace, a social networking web site.  On 

February 16, 2009, Smith met Lozano at the Log Cabin Bar and Grill in Lacey.  Smith recently 

turned 21.  She remembered having about two drinks that night but felt more incoherent than she 

had ever felt.  She felt like she could not stay awake or stand up straight, and she was numb and 

dizzy.

       Later that night, Lozano took Smith to his house.  He had to help her to the car because 

she could not walk straight.  Before getting into the car, Smith asked if she could sleep on his 

couch until she sobered up enough to drive home in the morning; Lozano said she could.  Smith 

remembers little of the drive to Lozano's house.

       When they arrived, Lozano had to drag Smith up the stairs because she still could not 

walk straight.  He took her cell phone from her and she became scared.  Lozano told her to sit on 

the bed.  Smith asked if she could sleep on the couch, but Lozano said she should sleep on the 

bed.

       When Lozano started to take Smith's clothes off, she protested and said she did not want 

to have sexual intercourse.  Smith had no strength and was slipping in and out of consciousness.  

She tried to roll over to protect her body.  

       Lozano digitally penetrated Smith's vagina.  She again said no and continued to slip in and 

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No.  41177-6-II

out of consciousness.  An hour later, Smith woke up naked.  She went to the bathroom and saw 

semen between her legs and around her vagina. 

       Later, in a recorded phone conversation, Lozano denied having sexual intercourse with 

Smith and said he did not remember that night.   During trial, the State presented evidence that 

Lozano's sperm was on Smith's underwear.

       Lozano testified that he put his hands inside Smith's underwear and Smith said, "[N]o, 

no." Report of Proceedings (RP) at 531-32.  He denied having vaginal intercourse with Smith.  

B.     Count II

       Lozano also met Candice Greco online through MySpace.  He was able to view the 

photographs that Greco had posted on her MySpace page. 

       On February 7, 2009, Lozano and Greco arranged to meet.  At 2:30 a.m., Lozano finished 

his shift at work and walked through the parking lot to his car.  Greco pulled her car up to 

Lozano and introduced him to her close friend, Ashley Beecher.  Beecher and Greco decided to 

follow Lozano to his house to drink.

       During the car ride to Lozano's house, Greco observed that Beecher was intoxicated but 

able to carry on a conversation.  Beecher had consumed multiple drinks before Greco picked her 

up, and fell asleep in the car.  The only thing Beecher remembers about the car ride was pulling up 

to Lozano's residence.

       When they arrived at Lozano's house, the three went upstairs to his bedroom.      Lozano 

brought an 18-pack of beer and gave one to each of the women and opened one for himself.  

About five minutes later, Beecher fell asleep on the small couch next to Lozano's bed.

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No.  41177-6-II

       Lozano and Greco talked to each other, drank several beers, listened to music, started to 

watch a movie, and had consensual intercourse.  Greco fell asleep.  Later, she woke up and saw 

Lozano having sexual intercourse with Beecher while Beecher was just lying there.  Greco yelled 

at Lozano to get off Beecher and he did.  

       Beecher testified that she remembered walking into Lozano's apartment, seeing a couch 

with a bed right in front of it, and falling asleep right away.  She was fully clothed.  She woke up, 

disoriented and concerned because Greco was yelling.  Greco told her to get her clothes on, but 

she thought she was clothed.  Beecher had a shirt on and nothing else.  Beecher testified that a 

blanket was thrown on her while Greco yelled at her to get her clothes on so that they could 

leave.  Beecher grabbed her clothes and then saw Lozano move as though he was taking off a 

condom and putting it in the trash.  She testified that she was not sober at the time.

       Beecher and Mohamed Young, whom Beecher called "McKay," had an online friendship.  

McKay heard that Beecher met Lozano and sent her an online message about it.  Beecher then 

called McKay and told him what had happened that night with Lozano.  When McKay asked what 

she was going to do about it, Beecher responded, "I'm just going to stay the hell away from him."  

RP at 80.

       Later, McKay called Beecher to ask whether she had reported the incident because 

Lozano had been arrested for rape.  Beecher reported the incident after her conversation with 

McKay. McKay testified about his conversations with Beecher.

       Lozano testified that he and Beecher had sexual intercourse on the couch.  When Greco 

woke up, she got mad and the two women dressed and left.

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No.  41177-6-II

       Before trial, the State moved to join count I, involving Smith, with count II, involving 

Beecher.  The trial court initially denied the motion but granted it on reconsideration.  In granting 

the State's motion for reconsideration, the trial judge stated, "I'm going to reconsider and join 

them.  After reconsideration, and I -- I am not persuaded, except I have reread 10.58,1 and I 

believe that [they] would come in."  RP (Nov. 5, 2009) at 10.  The court's written order stated 

that it would grant the State's motion to reconsider and join the two cause numbers for trial, after 

balancing the York factors.2   The trial court provided no other reasoning for joinder or for 

permitting evidence of two separate charges to be cross-admissible.

       Lozano sought to introduce 20 photographs of Greco and Beecher at trial.  The pictures 

show two women at dancing bars; it is unclear whether Beecher appears in the photographs.  At 

the time Greco and Lozano were communicating online, these photos were displayed on Greco's 

MySpace page.  The trial court excluded the photographs as irrelevant.

       The jury found Lozano not guilty of count I (Smith), but guilty of count II (Beecher). 

                                          ANALYSIS

                                           I.  Joinder

       Lozano contends that his defense counsel was ineffective for failing to move for severance 

of the two second degree rape counts at the close of evidence.  The argument is premised on 

Lozano's mistaken application of CrR 4.4(a)(2), which requires a defendant whose pretrial 

1 RCW 10.58.090 provided that "[i]n a criminal action in which the defendant is accused of a sex 
offense, evidence of the defendant's commission of another sex offense or sex offenses is 
admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to 
Evidence Rule 403."  The Washington Supreme Court struck down this statute in Gresham, 269 
P.3d 207.

2 State v. York, 50 Wn. App. 446, 749 P.2d 683 (1987).
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No.  41177-6-II

severance motion is denied to renew it at the "close of all the evidence." If he does not, severance 

is waived.  CrR 4.4(a)(2).  Lozano made no pretrial motion:  the State moved to join the two 

counts that it originally charged separately. Because there was no pretrial motion to sever, CrR 

4.4(a)(2) does not apply.  And because Lozano objected to both the State's original motion to 

join and its renewed motion, he has preserved the issue for appeal. We review this issue for trial 

court error.

       CrR 4.3(a) permits two or more offenses to be joined when the offenses are of the same or 

similar character. The trial court should sever the counts if it will "promote a fair determination 

of the defendant's guilt or innocence of each offense." CrR 4.4(b).  A defendant who opposes 

joinder must demonstrate that it is so manifestly prejudicial that it outweighs the interest in 

judicial economy.  State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).  In determining 

whether two counts should be tried together, a court must consider (1) the strength of the State's 

evidence on each count; (2) the clarity of the separate defenses; (3) the  court's instructions 

directing the jury to consider each count separately; and (4) the admissibility of the evidence of

one charge in a separate trial of the other charge.  State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 

747 (1994).   The trial court initially denied the State's motion to join, finding that it would 

confuse the jury, allow it to accumulate evidence between the two counts, and that the evidence 

would not be cross-admissible.   But on reconsideration, the court said only that it had "reread 

10.58, and I believe that [they] would come in." RP (Nov. 5, 2009) at 10. 

       The jury found Lozano not guilty of count I.     Thus, on remand, the issue will  not be 

joinder but, rather, whether the evidence is admissible under ER 404(b), which provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

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No.  41177-6-II

       of a person in order to show action in conformity therewith.  It may, however, be 
       admissible for other purposes, such as proof of motive, opportunity, intent, 
       preparation, plan, knowledge, identity, or absence of mistake or accident.

Before allowing such evidence, 

       the trial court must (1) find by a preponderance of the evidence         that the 
       misconduct occurred, (2) identify the purpose for which the evidence is sought to 
       be introduced, (3) determine whether the evidence is relevant to prove an element 
       of the crime charged, and (4) weigh the probative value against the prejudicial 
       effect.

Gresham, 269 P.3d at 213 (citations omitted).  

       The proponent of the evidence has the burden of establishing the first, second, and third 

elements.  State v. Devincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).  Because the trial court 

considered joinder, not the admissibility of ER 404(b) evidence, it did not engage in this analysis.

And we are unwilling to attempt an ER 404(b) analysis on the record before us. 

       The trial court originally believed the evidence would confuse the jury and allow it to

accumulate evidence between the two charges; comments that suggest the court believed trying 

the two incidents together would prejudice the defendant.  The trial court initially denied the 

State's joinder motion: 

       I'm going to deny the motion.  I do not think the clarity of the defenses can be 
       made, and so they will be separate. . . .  But, again, even with the new law, what I 
       do point out is the necessity of evidence beyond the testimony, but one of the 
       things is whether or not the prior act was a criminal conviction.  It's not. . . . I do 
       believe these are very separate instances."  

RP (Oct. 8, 2009) at 9.

       Because of these comments and the trial court's failure to address any of the ER 404(b) 

factors on the record, we reverse.3

3 In addition, the issue of how Lozano's acquittal of count I will affect the ER 404(b) analysis is 
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No.  41177-6-II

                                        II.  Photographs

       Lozano argues that the trial court violated his Sixth Amendment right to present a defense 

when it excluded the photographs of Beecher and Greco found on Greco's online web site.4  

       A defendant has a right to present evidence in defense of the crimes charged.  U.S. Const. 

amend. VI; Wash. Const. art. 1, § 22.  We review a potential denial of a Sixth Amendment right 

de novo.5  State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576 (2010).     But a criminal defendant 

has no constitutional right to admit irrelevant evidence.  See State v. Aguirre, 168 Wn.2d 350, 

362-63, 229 P.3d 669 (2010).  "Relevant evidence" is "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."   ER 401.   Under ER 402, "[a]ll relevant 

evidence is admissible, except as limited by constitutional requirements or as otherwise provided 

by statute, by these rules, or by other rules or regulations applicable in the courts of this state.

Evidence which is not relevant is not admissible."

       If  the defense offers evidence that has some relevance, the State must show that the 

evidence is so prejudicial as to interfere with the jury's fact finding process.  Jones, 168 Wn.2d at 

720.  The trial court must balance the State's interest in  excluding the evidence against the 

defendant's need for the information sought. Jones, 168 Wn.2d at 720.  If the evidence is highly 

probative, "no state interest can be compelling enough to preclude its introduction consistent with 

not before us; the parties will have the opportunity to brief that on remand.  
4 In his statement of additional grounds, Lozano repeats this argument.

5 Generally, the admission or refusal of evidence lies within the sound discretion of the trial court, 
which we review for an abuse of discretion.  State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 
(1992).  Lozano does not argue that the trial court abused its discretion; rather, he argues that 
excluding the photos violated his constitutional rights. 
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No.  41177-6-II

the Sixth Amendment and Const. art. 1, § 22." Jones, 168 Wn.2d at 720 (citing State v. Hudlow, 

99 Wn.2d 1, 16, 659 P.2d 514 (1983)).  But if the evidence of the complaining witness's prior 

sexual conduct is not relevant, neither the Sixth Amendment nor article 1, section 22 of the 

Washington Constitution require the trial court to admit it.  See State v. Weaville, 162 Wn. App. 

801, 818, 256 P.3d 426, review denied, 173 Wn.2d 1004 (2011).

       The State charged Lozano with second degree rape under RCW 9A.44.050(1)(b), which 

requires the State to  prove that Lozano had sexual intercourse with Beecher while she was 

incapable of consent because she was physically helpless or mentally incapacitated.  Lozano's 

defense at trial was that he reasonably believed that Beecher was capable of consenting and that 

she was not physically helpless or mentally incapacitated at the time. RCW 9A.44.030.6  

       Lozano argued to the trial court     that the photographs, available at Greco's online 

MySpace page, "go towards his belief about what he thought might occur with these particular 

individuals based on things that he knew about them." RP at 437-38.  On appeal, Lozano argues 

that the photographs were highly relevant to (1) whether Beecher initiated the sexual activity with 

him and (2) whether it was reasonable to believe that Beecher was not mentally incapacitated at 

the time.  Lozano points out that he "had to prove that he reasonably believed Beecher 

understood the nature and consequences of having sexual intercourse with him soon after he had 

6 RCW 9A.44.030 provides:
       In any prosecution under this chapter in which lack of consent is based solely upon 
       the victim's mental incapacity or upon the victim's being physically helpless, it is a 
       defense which the defendant must prove by a preponderance of the evidence that 
       at the time of the offense the defendant reasonably believed that the victim was not 
       mentally incapacitated and/or physically helpless.
The trial court instructed the jury on this statutory defense.

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No.  41177-6-II

sexual intercourse with her close friend, who was sleeping [nearby]." Br. of Appellant at 21.   

       Lozano relies on Jones, 168 Wn.2d 713, to support his assertion that excluding the 

photographs in this case violated his constitutional right to present his defense.  In Jones, the 

defendant proffered evidence that the sexual intercourse underlying the second degree rape charge 

occurred at a drug-fueled sex party at which the victim danced for money and engaged in 

consensual intercourse with three men.  Jones, 168 Wn.2d at 717.    The trial court excluded any 

reference to the sex party, reasoning that such evidence was offered to attack the victim's 

credibility barred by the rape shield statute. Jones, 168 Wn.2d at 717-18.  The Supreme Court 

reversed, concluding that the party evidence was highly probative because it supported Jones's 

testimony that the victim consented to sex.  Jones, 168 Wn.2d at 721.    Further, the Court held 

that the rape shield statute did not apply because Jones's evidence referred to conduct on the 

night of the alleged rape and not to the victim's past sexual conduct. Jones, 168 Wn.2d at 722-

23. 

       The facts here are distinguishable from Jones. Lozano's defense is not that he and the two 

women were engaging in a sex party where he had witnessed Beecher actively engaging in sex at 

the time of the alleged rape.  In fact, he does not claim that Beecher engaged in any sexual 

conduct immediately before he had intercourse with her. Further, Lozano testified that he did not 

know Greco was bringing Beecher with her to their arranged encounter that night; specifically, he 

testified that he was surprised Greco brought a friend.  In addition, there are no factual similarities 

between the incident forming the basis of the present charge and the conduct shown in the 

photographs.  See Hudlow, 99 Wn.2d at 10-11 (woman's consent to sexual activity in the past, 

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No.  41177-6-II

without more, such as particularized factual similarities to the present occasion, does not even 

meet the bare relevancy test). 

       More importantly, the photographs do not shed light on whether Beecher was physically 

and mentally capable of consenting to sexual intercourse with Lozano.  Nor did the photographic 

evidence make it more or less likely that Lozano reasonably believed that Beecher's mental and 

physical conditions allowed her to consent to sexual intercourse. Finally, Lozano was fully able to 

present his defense theory through his own testimony.  We conclude that the trial court did not 

violate Lozano's Sixth Amendment right to present a defense by excluding the photographic 

evidence. 

                          III. Statement of Additional Grounds (SAG)

A.     Insufficient Evidence

       Lozano appears to argue that insufficient evidence supports his second degree rape 

conviction.  He asserts that:  (1) Beecher was not sleeping during the incident; (2) there was a 

lack of physical evidence; (3) Beecher was not credible at trial because she could not remember 

seeing defense counsel seven months earlier; and (4) because he was intoxicated that night "it 

would be hard for me to determine [Beecher] was not . . . saying no or stop." SAG at 1-3, 5.

       In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the 

light most favorable to the State to determine whether any rational trier of fact could have found 

the elements of the crime beyond a reasonable doubt.  State v. Bencivenga, 137 Wn.2d 703, 706, 

974 P.2d 832 (1999).    A defendant who claims insufficient evidence admits the truth of the 

State's evidence and all inferences that can reasonably be drawn from it.  State v. Salinas, 119 

                                               11 

No.  41177-6-II

Wn.2d 192, 201, 829 P.2d 1068 (1992).  We consider circumstantial and direct evidence to be 

equally reliable.  And we defer to the jury on all issues of witness credibility and the persuasive 

force of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       To convict Lozano of second degree rape, the jury had to find beyond a reasonable doubt 

that he engaged in sexual intercourse with Beecher when she was incapable of consent by reason 

of being physically helpless or mentally incapacitated.

       Both Beecher and Greco testified in detail about the events leading up to and surrounding 

the rape. Both women testified that Beecher was intoxicated and fell asleep immediately upon 

arriving at Lozano's house.  Greco testified that she saw Lozano having sexual intercourse with 

Beecher, while Beecher was just lying there.  When Greco yelled at Lozano, Beecher woke up 

feeling disoriented and concerned.  Considered in the light most favorable to the State, this 

evidence was sufficient to convict Lozano of second degree rape. 

B.     Consistent Verdicts

       Lozano contends that the jury must have found him credible to find him not guilty of

count I and, therefore, his conviction on count II is inconsistent.

       The verdicts here are not inconsistent. That the jury convicted Lozano of count II and not 

count I simply means that they believed the State proved count II beyond a reasonable doubt and 

did not meet that standard for count I.  The counts concerned different victims and different 

circumstances, and nothing about the verdicts is inconsistent or contradictory.  See, i.e., State v. 

Ng, 110 Wn.2d 32, 48, 750 P.2d 632 (1988) (jury's conviction for first degree robbery upheld, 

notwithstanding jury's acquittal of felony murder charge).  Thus Lozano's contention is not a 

                                               12 

No.  41177-6-II

basis for relief.  

                                               13 

No.  41177-6-II

C.     Overcharging by Prosecutor

       Lozano next argues that the prosecutor overcharged him because Beecher did not have 

any injuries.  He asserts that the State offered to amend the charge in Smith's case to third degree 

rape.  

       Prosecutors have discretion in their charging decisions.  State v. Lewis, 115 Wn.2d 294, 

299, 797 P.2d 1141 (1990).  We may not substitute our judgment for the prosecutor's.  Lewis, 

115 Wn.2d at 299.  Lozano's claim of abuse of prosecutorial discretion is without merit.

       Here, the State charged Lozano with second degree rape.  RCW 9A.44.050(1)(b) states:

       (1) A person is guilty of rape in the second degree when, under circumstances not 
       constituting rape in the first degree, the person engages in sexual intercourse with 
       another person:
       . . . .
       (b) When the victim is incapable of consent by reason of being physically helpless 
       or mentally incapacitated.

       Second degree rape does not require proof of a physical injury.  And because there is 

sufficient evidence to support the jury's finding that Lozano engaged in sexual intercourse with 

Beecher when she was incapable of consent by reason of being physically helpless or mentally 

incapacitated, Lozano's argument fails.

       Lozano's remaining issues are unlikely to occur on retrial, and we decline to address them.

       We reverse and remand for a new trial.

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No.  41177-6-II

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                 Armstrong, J.
We concur:

Quinn-Brintnall, J.

Penoyar, C.J.

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