Martinez v. State

432 P.3d 493

Miguel Alberto MARTINEZ, a/k/a Michelle Martinez, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-18-0080

Supreme Court of Wyoming.

December 31, 2018

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; James M. Causey, Senior Assistant Appellate Counsel. Argument by Mr. Causey.

Representing Appellee: Peter K. Michael, Attorney General, Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Katherine A. Adams, Assistant Attorney General. Argument by Ms. Adams.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

BOOMGAARDEN, Justice.

[¶1] A jury found Appellant, Miguel Alberto "Michelle" Martinez (Ms. Martinez),¹ guilty of sexual abuse of a minor in the first and second degree. Ms. Martinez seeks reversal of both convictions claiming there is insufficient evidence to sustain them. In addition, Ms. Martinez claims prejudice because the district court precluded her from presenting character evidence pertaining to the victim. We affirm.

ISSUES

[¶2] Ms. Martinez presents two issues, which we rephrase as follows:

I. Did the district court err when it denied Ms. Martinez’s motion for judgment of acquittal on both counts?

II. Did the district court err when it denied the admission of character evidence of the alleged victim?

FACTS

[¶3] On March 23, 2017, CM’s mother, Amber Freudenstein, invited several friends over to her Casper home, including Ms. Martinez, Jamie Brown, and Andrea Pead. While Ms. Freudenstein’s ten-year-old daughter, CM, was at school, the group visited, listened to music, and everyone except Ms. Pead drank alcohol. During this time, Ms. Martinez consumed between one and three pints of rum, and was noticeably "buzzed" and "being goofy."

[¶4] Around 6:30 p.m., Ms. Martinez went to the only bathroom in the residence, which was located upstairs.² Ms. Freudenstein testified Ms. Martinez was upstairs for about 20 minutes. By this time, CM had returned home from school and her mother observed her sitting on the couch in the living room when Ms. Martinez went to use the bathroom. CM testified she went upstairs to get a book from her bedroom and use the bathroom, which was across the hall from her bedroom. CM explained she shut the bathroom door but did not lock it. Ms. Martinez entered the bathroom, without knocking, as CM stood to pull up her pants. Ms. Martinez went over to CM and rubbed CM’s right breast with Ms. Martinez’s hand and put Ms. Martinez’s "dingdong" in CM’s "private part" in "the front part" of CM’s body. CM kicked Ms. Martinez twice and tried to scream, but Ms. Martinez put a hand over CM’s mouth and told her to keep it a secret. Just before Ms. Martinez stopped the assault, CM heard someone stomping up the stairs, whom she thought was her little brother, though she could not see him. After Ms. Martinez left the bathroom, CM pulled up her pants and went downstairs.

[¶5] Around 7:00 p.m., Cetera Moore arrived to pick up Ms. Martinez. Ms. Moore’s eight-year-old son came into the apartment and attempted to use the bathroom, but it was locked; he went back downstairs. Shortly thereafter, Ms. Martinez came downstairs and left with Ms. Moore and her son to go to Walmart.³ Ms. Brown and Ms. Pead testified that before Ms. Martinez left, she told CM something along the lines of she "better leave those boys alone or they could penetrate you" or "don’t let the boys penetrate you" while Ms. Martinez made a gesture using a thumb and forefinger to make a circle and using another finger to go through the circle, which both witnesses found odd.

[¶6] Once Ms. Martinez was gone, CM told her mother about the incident. CM told her mother Ms. Martinez went into CM’s bedroom, cuffed her hand over her mouth, dragged her into the bathroom, grabbed her chest, right breast area, and stuck Ms. Martinez’s penis in her. Ms. Freudenstein testified CM was crying, upset, and hysterical. Ms. Freudenstein also described CM as "scared [be]cause she didn’t want Michelle to find out."

[¶7] Around 7:34 p.m., Ms. Freudenstein called Ms. Moore and asked her to bring Ms. Martinez back so she could speak with her. Ms. Moore and Ms. Martinez returned to the apartment as requested and a heated confrontation ensued. Ms. Martinez eventually left with Ms. Moore and Ms. Freudenstein called the police.

[¶8] Law enforcement responded around 9:15 p.m. Officer Paschke obtained a brief statement from CM, who was still visibly upset. CM told the officer that "her parents’ friend, Michelle, but she’s a boy, requested that she go into the bathroom and then, at that point, had touched her" and CM pointed to her chest. She also said Ms. Martinez "put it inside" as she pointed down. When the officer asked CM whether "it" referred to Ms. Martinez’s penis, CM "nodded yes," "began crying," and stated that "it hurt inside." At that point, Officer Paschke stopped his questioning, requested Ms. Freudenstein take CM to the hospital for a sexual assault examination, and followed them to the hospital.

[¶9] A nurse began the examination shortly after 10:30 p.m. At trial, the nurse testified CM informed her that after dinnertime, "someone did something to her private spot" and pointed to her breast and female genitalia. CM stated she kicked Ms. Martinez. CM also complained of pain in her genital area. When asked why she had pain there, CM said she had a "dingdong" stuck into her. The nurse noted CM urinated before the exam, because urination can wash away evidence, but that CM had not bathed, washed or defecated. CM did not know whether Ms. Martinez ejaculated, and CM did not report any anal penetration.

[¶10] The nurse further testified that she examined CM, took photographs, gathered DNA evidence, and took CM’s clothes for further testing. During the sexual assault examination, the nurse noted redness on the entire perimeter of the labia majora and redness and an abrasion, caused by friction, at the junction of the hymen and the labia minora on both sides. Pictures of the injuries were displayed for the jury. The nurse also noted brown, "fecal-appearing material" from CM’s perineum to "way up the back of her butt," but she did not take any samples of the material. Although the nurse would not speculate on time, she believed the redness and abrasions were relatively recent because the vaginal structure heals fairly quickly from minor injuries. The nurse testified that her physical findings were consistent with CM’s report of the incident.

[¶11] Meanwhile, law enforcement officers located Ms. Martinez at Ms. Moore’s home shortly before 10:00 p.m. Ms. Martinez was fully clothed and passed out on the couch. After waking Ms. Martinez up with a sternum rub, officers permitted her to use the bathroom and put on shoes before they left for the police station. Due to Ms. Martinez’s blood alcohol level of .218, officers allowed her to sleep before conducting an interview. Ms. Martinez slept for a few hours, after which, officers videotaped their interview of Ms. Martinez, gathered DNA evidence, and obtained her clothing. During this process, the officers asked Ms. Martinez to "untuck" her penis so that it could be swabbed. The officers noticed a "yellow, frothy" material that they thought was fecal matter on Ms. Martinez’s penis.

[¶12] The next morning, a forensic interviewer with Children’s Advocacy Project in Casper interviewed CM for approximately an hour. The State played the recorded interview for the jury. During the interview, CM stated that Ms. Martinez touched her "chest up top" and stuck Ms. Martinez’s "dingdong" all the way in her "crotch" and "it hurt really bad." CM stated both she and Ms. Martinez were standing up and the front of Ms. Martinez’s legs were touching the front of CM’s legs. CM further stated Ms. Martinez’s "dingdong" went in her "crotch" more than one time and she made a motion consistent with repeated penetration with one of her hands.

[¶13] The State charged Ms. Martinez with sexual abuse of a minor in the first degree for penetrating CM with Ms. Martinez’s penis and sexual abuse of a minor in the second degree for touching CM’s chest. Ms. Martinez pled not guilty to both charges. The case proceeded to trial, which began on October 16, 2017. During opening statements, defense counsel referenced evidence that CM made "two prior false accusations." The State objected, and the district court heard arguments outside the presence of the jury as to the potential character evidence of the victim. The district court ultimately denied admission of the evidence.

[¶14] After the prosecution rested, the defense moved for judgments of acquittal on both charges contending the State did not meet its burden as to the requisite intention for the elements of sexual intrusion or sexual contact. The defense also argued the State’s evidence was insufficient because no DNA evidence linked Ms. Martinez to the victim, and the nurse who examined CM could not identify the cause of her injuries. The court denied the motion. The defense rested after Ms. Martinez declined to testify. The jury returned guilty verdicts on both charges.

[¶15] Defense counsel moved for a new trial on November 2, 2017, claiming the district court erred when it denied admission of the proffered character evidence of the victim. The district court denied the motion for the same reasons it gave at trial.

[¶16] On January 29, 2018, the district court sentenced Ms. Martinez to 30 to 45 years imprisonment for the first-degree charge, and 15 to 20 years of imprisonment for the second-degree charge. The court ordered the sentences to run concurrently and gave 307 days credit for presentence confinement. Ms. Martinez filed a notice of appeal two days later.

DISCUSSION

I. Did the district court err when it denied Ms. Martinez’s motion for judgment of acquittal on both counts?

[¶17] Ms. Martinez asserts the district court erred when it...