State v. Martinez-Martinez

1

STATE OF WASHINGTON, Respondent, v. DIEGO MARTINEZ-MARTINEZ, aka DIEGO MARTINEZ MARTINEZ, Appellant.

No. 54512-8-II

Court of Appeals of Washington, Division 2

January 11, 2022

UNPUBLISHED OPINION

MAXA P.J.

Diego Martinez Martinez appeals his convictions for first degree rape and first degree kidnapping and his exceptional sentence based on the victim's particular vulnerability. The convictions arose from an incident in which Martinez Martinez approached a developmentally disabled woman who was waiting for the bus and then kidnapped and raped her in his tent in the woods.

We hold that:

(1) there was sufficient evidence to support the deadly weapon alternative means of the first degree rape conviction based on the victim's testimony, even though the testimony contradicted itself;

(2) the first degree kidnapping conviction merged with the first degree rape conviction in violation of double jeopardy because the kidnapping had no independent purpose from the rape and did not result in a separate injury (3) there was sufficient evidence to show that Martinez Martinez knew or should have known that the victim was particularly vulnerable and that the victim's particular vulnerability was a substantial factor in the commission of the offenses;

(4) the particularly vulnerable aggravating factor is not subject to a due process vagueness challenge;

(5) the use of the victim's initials in the to-convict jury instructions or court documents did not violate Martinez Martinez's constitutional rights;

(6) Martinez Martinez is entitled to have his offender score reduced by one point under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021) because one of his prior convictions was for unlawful possession of a controlled substance, but he is not entitled to resentencing because the record is clear that the trial court would have imposed the same exceptional sentence regardless of his offender score; and

(7) the record is unclear as to whether the trial court intended to impose community custody supervision fees as a legal financial obligation (LFO).

Accordingly we affirm Martinez Martinez's first degree rape conviction, but we remand for the trial court to (1) strike Martinez Martinez's first degree kidnapping conviction (2) amend Martinez Martinez's offender score in the judgment and sentence, and (3) consider the imposition of community custody supervision fees.

FACTS

Background

SM was a 28-year-old female at the time of the incident. She was autistic, developmentally disabled, and had the vocabulary and mental ability of a five- to 10-year-old child. SM generally exhibited little emotion on her face, kept her eyes down during a normal conversation, had a very soft voice, had child-like vocabulary, and did not speak often. SM had never lived alone. Because SM was unable to manage money by herself and was susceptible to outside influences from other people who wanted to financially exploit her, the Support Services for the Developmentally Disabled (SSDD) managed her finances.

Martinez Martinez lived in a tent in a homeless encampment located in the woods in Tacoma.

The Incident

In June 2018, SM was standing at a bus stop when Martinez Martinez began following her. Martinez Martinez had been drinking at the time. Martinez Martinez told SM to go to the nearby smoke shop across the street with him, where he bought beer.

After leaving the smoke shop, Martinez Martinez told SM to go to the woods with him. Martinez Martinez raped SM three times in his tent. At some point, Martinez Martinez displayed a knife and SM grabbed it, cutting her hands during the process. While Martinez Martinez was raping SM, he asked her for money several times. SM told Martinez Martinez that she did not have any money.

SM eventually was able to leave Martinez Martinez's tent and went home. She told her mother that she had been kidnapped and raped. The next day, SM went to the SSDD office, where she told Sandra Bayer, the executive director for SSDD, that she had been kidnapped and raped. Bayer called the police.

Officer Matthew Watters interviewed SM about what had happened the night before. He then took her to the local hospital to have a rape kit completed. At the hospital, nurse Kathi Lewis, a board certified sexual assault nurse examiner, conducted an examination of SM and noted that she had lacerations on both hands. Stacia Adams, a child forensic interviewer, attempted to interview SM.

The State charged Martinez Martinez with first degree rape and sexually motivated first degree kidnapping. Both charges alleged that Martinez Martinez was armed with a deadly weapon and that SM was particularly vulnerable. The first degree rape charge was based on two alternative means: the use or threat of using a deadly weapon and/or kidnapping. The first degree kidnapping charge alleged that the kidnapping was done to facilitate the crimes of rape and/or robbery.

Jury Trial

At trial, SM testified using her full name, and she was referred to by her full name throughout the trial. SM initially testified several times during direct-examination and cross-examination that she saw Martinez Martinez's knife while she was being raped. She testified as follows:

Q: Okay. When did you first see the knife?

A: In his hand.

Q: Okay. And did he -- where did he have it positioned?

A: In his left hand.

Q: Okay. And was -- did you see it?

A: Yeah.

Q: How close did the knife get to you?

A: Right here.

Q: To your chest?

A: Yeah.

5 Report of Proceedings (RP) at 532-33.

Q: Where was the knife when he was raping you?

A: In his hand.

5 RP at 538.

Q: So you said, earlier today, that while he was raping you, he had the knife in his hand. Is that true?

A: Um-hum. Yeah.

Q: Okay. So we're clear, when you say he was raping you, is that the part where his private part was inside your private part?

A: Yeah.

Q: And while that was going on, he at the same time had a knife in his hand?

A: Yeah.

. . . .

Q: And at the same time, he had a knife in his hand while he was raping you; is that true?

A: Yeah.

5 RP at 565-67.

Toward the end of cross-examination, SM testified for the first time that Martinez Martinez pulled out the knife as she was leaving the woods and after he had raped her. From that point forward, SM began to testify for the remainder of cross-examination and redirect that Martinez Martinez did not have the knife his hands while he was raping her.

Bayer and SM's mother both testified that SM functioned either at the level of a seven- or 10-year-old child. Bayer explained that SSDD distributed only small sums of money each week in part because SM was easily susceptible to people who wanted to financially exploit her.

Watters testified that when he interviewed SM, he had to ask her very basic questions, she had very limited vocabulary, and she was almost non-verbal in her responses, providing only one or two word answers. Watters testified that SM exhibited no emotions during their conversation and made limited eye contact with him. Another police officer involved in the investigation likewise testified that SM appeared developmentally delayed to him.

Lewis testified that she had been told before meeting SM that she was developmentally disabled and that her conversation with SM affirmed that fact. Lewis explained that she immediately noticed that SM had trouble understanding the examination procedure and could verbalize her thoughts with only a couple of words at a time. Lewis testified that she had to ask direct questions and simple vocabulary to piece together what had happened to SM.

Adams testified that she had been told before her interview with SM that she functioned around the age level of a seven-year-old child. Adams testified that she noticed SM's mental acuity deficiency as soon as SM started speaking and that she believed that SM functioned closer to a five-year-old. Adams stated that during the entire interview, SM had trouble answering her questions and would give an answer that did not track the question being asked.

Jury Instructions

The to-convict jury instructions used SM's initials, rather than her full name. The trial court instructed the jury that it could find Martinez Martinez guilty of first degree rape if it found that he had either (a) "used or threatened to use a deadly weapon or what appear[ed] to be a deadly weapon" or (b) "kidnapped [SM]," and that the jury did not need to be unanimous as to which alternative means had been proven beyond a reasonable doubt. Clerk's Papers (CP) at 33. The court instructed the jury that it could find Martinez Martinez guilty of first degree kidnapping if it found that he had "abducted [SM] with intent to facilitate the commission of rape and/or robbery." CP at 44. Martinez Martinez did not object to these jury instructions.

The jury convicted Martinez Martinez of first degree rape and first degree kidnapping. The jury found in special verdict forms the deadly weapons enhancement on both counts, and that Martinez Martinez knew or should have known that SM was particularly vulnerable or incapable of resistance on both counts. The jury also found in a special verdict form that Martinez Martinez had committed the crime of first degree kidnapping with sexual motivation.

Sentencing

At sentencing, the State conceded that the first degree rape and first degree kidnapping constituted the same course of conduct and as a result, Martinez Martinez should only be sentenced on the rape conviction and not the kidnapping conviction. The court accepted the State's concession. The State calculated Martinez Martinez's standard range sentence of 138 to 184 months for first degree rape based on an offender score of 5, which included one point for an unlawful possession of a...