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DEC. 26, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30732-8-111
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Respondent, )
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v. )
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ROBERT MARTINEZ, Jr., ) UNPUBLISHED OPINION
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Appellant. )
BROWN, J. - Robert Maltinez appeals his second degree rape, fourth degree
assault, and unlawful imprisonment convictions and sentence. Mr. Martinez contends
the trial court erred in admitting hearsay evidence and counting his prior second degree
robbery conviction in California Linder Washington's Persistent Offender Accountability
Act (POM), chapter 9.94A RCW. Finding no error, we affirm.
FACTS
Mr. Martinez and P.H. started a relationship in 2003 and have three children. Mr.
Martinez was incarcerated from the fall of 2008 until May 12, 2010. On May 14, P.H.
hosted a barbeque for Mr. Martinez's birthday at her house. Mr. Martinez was
intoxicated and upset with P.H. for not keeping in better contact with him while he was
in jail. He left but returned to P.H.'s home later in the evening. Mr. Martinez wanted to
have sex; P.H. did not. According to P.H., Mr. Martinez was angry and took her by the
No. 30732-8-111
State v. Martinez
hair and dragged her into the bedroom. She struggled as he ripped her clothes off. Mr.
Martinez placed both hands around her neck in attempt to choke P.H. and then raped
her anally.
P.H.'s friend, Amber Grimm, knocked on the door. P.H. wrapped herself in a
blanket and answered the door. Ms. Grimm observed a bruise on P.H.'s forehead and
red marks around her neck. P.H. appeared "very, very frantic." Report of Proceedings
(RP) at 313. Ms. Grimm asked P.H. to step out on the porch with her to have a
Cigarette. After a few minutes, the women went inside and sat on the couch. P.H. then
whispered to Ms. Grimm that Mr. Martinez just raped her. Mr. Martinez then
approached the women and stated he "fucked up." RP at 260. He went into the kitchen
and grabbed a knife and threatened to kill himself. Mr. Martinez finally left and P.H.
went to the hospital.
P.H. told hospital personnel she had been raped. Clarkston Police Officer
Jeremy Foss was dispatched to the hospital to investigate. When he walked into the
hospital room, Officer Foss observed P.H. had multiple red marks and small scratches
around her upper chest and on her throat area, a bruise with a bleeding scratch on her
forehead, and some bruising on her arms. He also observed her sitting on a chair and
"rocking back and forth. She was, you could definitely tell that she was excited or upset
about something ...." RP at 220.. P.H. reported Mr. Martinez had raped her anally
approximately one and one-half to two hours prior.
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The State charged Mr. Martinez with second degree rape, second degree
assault, and unlawful imprisonment. The State filed a persistent offender notification,
notifying Mr. Martinez that if convicted he would face a sentence of life without the
possibility of parole.
Pretrial, after considering RCW 9A.44.020, the rape shield statute, the court
barred "the admission of, or allusions to any prior consensual sexual activities involving
the alleged victim ... and any other person." Clerk's Papers at 209.
During trial, and over a defense objection, Ms. Grimm testified P.H. whispered to
her that Mr. Martinez had raped her. The court allowed the hearsay testimony under
the excited utterance exception.
Over a defense objection, Officer Foss was permitted to testify to P.H.'s
statement at the hospital that Mr. Martinez raped her. In allowing the testimony, the I
court found, "[C]ertainly the first few minutes of the officer's colloquy with [P.H.], clearly
her comments clearly fall under the excited utterance exception to the hearsay rule.
Beyond the first few minutes of that conversation, though, I believe that it became as
usual a routine, not routine, but [standard operating procedure] SOP type investigation
in progress, so I will sustain the objection in part but overrule it in part." RP at 228.
Hospital personnel testified, without objection, that P.H. reported she had been raped.
Dr. Michael Lin, a deoxyribonucleic acid (DNA) analyst testified that Mr.
Martinez's DNA was found on P.H.'s anal swab extracts. And, Dr. Lin found DNA
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matching Joe Villarreal but his evidence was excluded from the jury under the rape
shield law.
Mr. Martinez testified the sex was consensual. The jury found Mr. Martinez guilty
of second degree rape, fourth degree assault, and unlawful imprisonment. Because Mr.
Martinez had a 1993 second degree robbery conviction from California and a 1999 first
degree robbery conviction from Washington which was part of his criminal history, the
court sentenced Mr. Martinez to life in prison without the possibility of early release
under the POAA. Mr. Martinez appealed.
ANALYSIS
A. Evidence Rulings
The issue is whether the trial court erred in evidence rulings, first, admitting
evidence under the excited utterance exception to the rule excluding hearsay and,
second, excluding evidence under the rape shield statute. Mr. Martinez argues the
testimony from Ms. Grimm and Officer Foss should have been disallowed and the DNA
evidence concerning Mr. Villarreal's contact with P.H. should have been allowed in
evidence.
We review evidentiary rulings for abuse of discretion. State v. Vy Thang, 145
Wn.2d 630, 642, 41 P.3d 1159 (2002). Substantial deference is given to the trial court's
rulings. State v. Wade, 138 Wn.2d 460, 463-64,979 P.2d 850 (1999). Mr. Martinez
argues for a higher standard of review for evidence admitted under the excited
utterance exception, but State v. Briscoeray, 95 Wn. App. 167, 171,974 P.2d 912
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(1999) makes clear the abuse of discretion standard is the correct standard for
analyzing excited utterances. Discretion is abused if it is exercised without tenable
grounds or reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775
(1971).
First, although hearsay is generally inadmissible, ER 803{a)(2) provides that
certain excited utterances may be admissible. State v. Magers, 164 Wn.2d 174, 187,
189 P.3d 126 (2008). A statement qualifies as an excited utterance if "(1) a startling
event occurred, (2) the declarant made the statement while under the stress or
excitement of the event, and (3) the statement relates to the event." Id. at 187-88.
The declarant must make the statement while still "under the influence of external
physical shock" and without "time to calm down enough to make a calculated statement
based on self-interest." State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997).
The declarant must make the statement while so "'under the influence of the event ...
that [the] statement could not be the result of fabrication, intervening actions, or the
exercise of choice or judgment.'" State v. Strauss, 119 Wn.2d 401, 416, 832 P .2d 78
(1992) (second alteration in original) (quoting Johnston v. Oh/s, 76 Wn.2d 398, 406, 457
P.2d 194 (1969», abrogated in part on other grounds, Crawford v. WaShington, 541
U.S. 36, 124 S. Ct. 1354, 158 LEd. 2d 177 (2004). Courts generally consider (1) the
amount of time between the event and when the declarant makes the statement and (2)
the declarant's observable level of emotional stress when making the statement. See,
e.g., Strauss, 119 Wn.2d 416-17.
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Here, P.H. opened the door directly after the alleged rape occurred. She was
wrapped in just a blanket. She appeared "very, very frantic" and with a bruise on her
forehead and red marks around her neck. RP at 313. Within minutes of Ms. Grimm's
arrival, P.H. whispered to her that Mr. Martinez just raped her. Because a starting event
had just occurred and P.H. was still under the stress of the event, her statement
regarding the event to Ms. Grimm was permissible hearsay under the excited utterance
exception. The trial court had tenable grounds in admitting it.
Turning to P.H.'s statement to Officer Foss, Mr. Martinez argues the passage of
time gave P.H. time to calm down and make a calculated statement to the officer. "The
passage of time alone, however, is not dispositive." Strauss, 119 Wn.2d at 417. In
Strauss, our Supreme Court held a rape victim was still under the influence of the
incident when she made the statement even though more than three hours may have
passed. Id. at 416-17. There, the victim appeared to be in a state of shock; the officer
described the victim as "very distraught, very red in the face and crying." Id. at 416.
Similarly, a statement made in a record that indicated a range of six to seven hours after
an event can still be an excited utterance where the declarant is still under the stress of
that event. State v. Thomas, 46 Wn. App. 280, 282, 284-85, 730 P.2d 117 (1986), aff'd,
110 Wn.2d 859, 757 P.2d 512 (1988); State v. Flett, 40 Wn. App. 277, 278-79, 287, 699
P.2d 774 (1985).
Officer Foss interviewed P.H. approximately one and one-half to two hours after
the alleged rape. When he first approached her, she was sitting in a chair in a hospital
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room. Officer Foss observed P.H. had multiple red marks and small scratches around
her upper chest and on her throat area, a bruise with a bleeding scratch on her
forehead, and some bruising on her arms. He observed her sitting on a chair and
"rocking back and forth. She was, you could definitely tell that she was excited or upset
about something ...." RP at 220. P.H. then reported that Mr. Martinez had raped her
anally. Based on P.H.'s condition, P.H. was still under the influence of the incident
when she made the statement even though one and one·half to two hours had passed.
Since P.H. was still under the stress of the event, the court had tenable grounds to allow
her hearsay statement to Officer Foss. P.H.'s rape allegations were made about the
same time to hospital personnel, which were admitted without objection at trial. Even if
P.H.'s statements to Officer Foss were partly testimonial the other admissible hearsay
from Ms. Grimm and the hospital personnel hearsay was before the jury, lessening any
prejudicial effect.
Given all, we conclude the trial court did not abuse its discretion in allowing the
hearsay evidence under the excited utterance exception.
Second, the rape shield statute limits the ability of either party to introduce at trial
evidence of the past sexual behavior of the complaining witness. RCW 9A.44.020(2).
The exclusion "of evidence under the rape shield statute ... 'is within the sound
discretion of the trial court.''' State v. Aquirre, 168 Wn.2d 350, 363, 229 P .3d 669 (2010)
(quoting State v. Hudlow, 99 Wn.2d 1, 17,659 P.2d 514 (1983».
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Criminal defendants are guaranteed the right to confront and cross-examine
adverse witnesses. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. The cross
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the witness or, more specifically, to reveal biases, prejudices, or ulterior motives of the
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witness. Davis v. Alaska, 415 U.S. 308,316,94 S. Ct. 1105, L. Ed. 2d 347 (1974). But
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a criminal defendant has no constitutional right to the admission of irrelevant evidence.
Hudlow, 99 Wn.2d at 15.
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Evidence is relevant if it tends to make the existence of any fact that is of
I consequence to the determination of the action more or less probable than it would be
I without the evidence. ER 401. Relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. ER 403. The trial court has wide discretion in balancing
probative value versus prejudice. State v. Stein, 140 Wn. App. 43, 66, 165 P.3d 16
(2007).
Washington's rape shield statute provides, in relevant part, "Evidence of the
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victim's past sexual behavior ... is inadmissible on the issue of credibility and is
inadmissible to prove the victim's consent." RCW 9A.44.020(2). "The purpose of the
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statute is to encourage rape victims to prosecute, and to eliminate prejudicial evidence
of prior sexual conduct of a victim which often has little, if any, relevance on the issues
for which it is usually offered, namely, credibility or consent." State v. Carver, 37 Wn.
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App. 122, 124,678 P.2d 842 (1984) .. f
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The rape shield law applies here. P.H.'s prior sexual conduct (including evidence
of Mr. Villarreal's DNA) was sought to show she consented to anal intercourse with Mr.
Martinez on May 14, 2010. This is exactly the irrelevant evidence our legislature
excluded in RCW 9A.44.020(2). The trial court's ruling excluding past sexual behavior
came under RCW 9A.44.020(2). Moreover, Mr. Martinez cannot show prejudice. The
trial court excluded all evidence relating to P.H.'s past sexual behavior. Nevertheless,
during cross-examination, defense counsel asked P.H. if she had consensual
intercourse with Mr. Martinez the night before the rape, in which she answered yes.
Thus, evidence that P.H. consented previously was before the jury. Ultimately,
credibility determinations were left for the jury to decide. State v. Salinas, 119 Wn.2d
192,201,829 P.2d 1068 (1992).
Based on the above, we conclude Mr. Martinez was not denied a fair trial based
on evidentiary error.
B. POM SentenCing
The issue is whether the sentencing court erred in sentencing Mr. Martinez under
the POM. Mr. Martinez contends the POM was enacted after his first strike
conviction; therefore, it does not apply to him. He separately argues California's second
degree robbery conviction is not comparable to Washington's second degree robbery
conviction. Mr. Martinez, however, acknowledges this issue was recently decided
against him in Sublett, 176 Wn.2d 58. There, the court held that the convictions in both
states were comparable. Id. at 89. Mr. Martinez is correct, Sublett controls. We treat
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Mr. Martinez argues the POM violates the ex post facto clause of the United
States and Washington Constitutions. Mr. Martinez reasons the POM retroactively
increases the punishment associated with his 1993-committed first strike crime.
The ex post facto clauses of the United States Constitution, article I, section 10,
and the Washington Constitution, article I, section 23, prohibit the State from exacting
any law that: (1) punishes an act that was not punishable at the time the act was
committed, (2) aggravates a crime or makes the crime greater than it was when
committed, {3} increases the punishment for an act after the act was committed, and (4)
changes the rules of evidence to receive less or different testimony than required at the
time the act was committed in order to convict the offender. State v. Angehm, 90 Wn.
App. 339,343,952 P.2d 195 (1998) (citing Collins v. Youngblood, 497 U.S. 37,42,110
S. Ct. 2715, 111 L. Ed. 2d 30 (1990)).
Washington courts have consistently rejected similar ex post facto arguments
regarding the use of prior convictions in applying the POM. State v. Nordlund, 113
Wn. App. 171, 192,53 P.3d 520 (2002). The court rejected Mr. Martinez's argument in
Angehm, which addressed whether the POM aggravates a crime or increases the
punishment for a prior committed act. Angehm, 90 Wn. App. at 343. The Angehm
court determined that the POM's increased punishment is triggered only upon the third
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conviction of a "most serious offense." Id. Consequently, the POAA "does not
retroactively increase the penalty for prior offenses." Id. The court went on to conclude:
In this case, POAA was passed in November 1993, well
before [the defendant] committed the robberies that
constituted his third most serious offense. As previously
stated, POAA's increased punishment is triggered only upon
the third conviction of a most serious offense. . . . As a
result, [the defendant] had fair notice that he would be
sentenced to life without the possibility of parole if convicted
of a third most serious offense.
Id. at 344. The court held that the POAA's mandatory life sentence does not constitute
ex post facto punishment when applied to cases, as here, where the act constituting the
third strike occurs after the POAA's enactment. Id.
Here, using Mr. Martinez's prior convictions to determine the POAA's application
did not increase the punishment for his prior strikes; rather, the prior strikes were used
only to calculate his current sentence for his post-POAA convictions. Because Mr.
Martinez committed the third strike well after the 1993 passage of the POAA, he had fair
notice of the life sentence before he committed that third offense. Therefore, no ex post
facto violation is established by Mr. Martinez.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
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Siddoway, A.C.J. . Fearing, .
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