State v. Monroy

STATE OF WASHINGTON, Respondent, v. SERGIO STUARDO MONROY, Appellant.

No. 78597-4-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

January 21, 2020

UNPUBLISHED OPINION

SMITH, J. — Sergio Monroy appeals his conviction for rape in the second degree of 34-year-old H.B., a resident at the apartment complex where Monroy worked as a maintenance man. He contends the State failed to prove H.B. was incapable of consent because of mental incapacity. Given overwhelming evidence of H.B.'s intoxication, sufficient evidence supports the conviction. We also reject Monroy's claims that the trial court erred by preventing him from cross-examining H.B. about her alcohol history, by admitting statements he made prior to receiving Miranda¹ warnings, and by failing to give a unanimity instruction. And we reject Monroy's argument in his statement of additional grounds that the court erred in imposing an indeterminate sentence with a maximum term of life. However, we agree that the sentencing court exceeded itsauthority by ordering Monroy to submit to urinalysis and breath analysis monitoring as a condition of community custody. Accordingly, we affirm Monroy's conviction but remand to the trial court with instructions to strike the challenged condition.

FACTS

On the evening of January 22, 2016, H.B. invited her friend Serenity Larson to go out for a drink at the Seven Star, a bar located in the downtown area of Mercer Island. H.B. and Larson were neighbors at an apartment complex on Mercer Island, and they often went out drinking together. They arrived at the Seven Star around 6:30 or 7:00 p.m. There, a man named Terrence Stephens invited H.B. and Larson to attend a "hat party" at a nearby apartment complex. After having one drink each, H.B. and Larson went home to pick up hats, then H.B. drove them to the party.

The hat party featured a buffet table with bottles of alcohol and mixers so guests could make their own drinks. Over a period of a couple hours, H.B. poured herself "quite a few" drinks consisting of approximately 75 percent whiskey and 25 percent ginger ale. She recalled "drinking the whole time we were there." When the party started winding down, a group of people including H.B. and Larson returned to the Seven Star. H.B. testified that she was "definitely" feeling "pretty buzzed" by then but decided she was able to drive.

H.B. and Larson arrived at the Seven Star around 10:00 or 11:00 p.m. Larson testified that H.B. started drinking beer when they arrived. Larson soon noticed that H.B. was becoming "loud," "obnoxious," "a little clumsy," and "towards me kind of not nice," behaviors that to her indicated H.B. was "getting drunk." Shortly before leaving,Larson ordered shots for herself and H.B. The bartender agreed to pour a shot for Larson and a watered down shot for H.B. Larson "knew [H.B.] couldn't drive," so she called an Uber and asked H.B. to leave with her. H.B. refused to leave, so Larson left alone around 12:30 a.m.

Stephens socialized with H.B. at the hat party and at the bar. Stephens testified that H.B. began to display signs of intoxication at the bar, such as "erratic communication," having "glossy eyes," and being "a little wobbly." He also recalled that H.B. continued drinking at the bar. Stephens said H.B. became flirtatious and asked him for a kiss. Eventually, H.B. became "very loud" and "confrontational with the bartender." The bartender encouraged H.B. to call a cab, but H.B. refused. Stephens asked H.B. if she needed someone to call her a cab, but H.B. got in her car and asked Stephens to come with her. Stephens declined, and H.B. got angry and drove away.

H.B. recalled drinking beer at the bar but could not say how many "[be]cause that's pretty much where I started to not really remember the night." She did not recall asking Stephens for a kiss or Larson leaving the bar. She did recall getting into her car and driving away despite Stephens telling her not to.

The next thing H.B. remembered was hearing a male voice tell her to "get out of my car and go somewhere else." She testified that she "wasn't seeing anything. It was like I was blacked out, but I could still hear things a little bit." Next, she found herself lying on her side on hard ground with her legs pushed up and a man on top of her, penetrating her. H.B. did not know the man's name but recognized him as a maintenance man at her apartment complex. She testified that she was unable tospeak or move while the attack was happening. She did not know where she was, but she could see a bright amber-colored fluorescent light shining through a window behind the man. Detectives later discovered such a light outside the apartment complex maintenance room a few hundred yards from where H.B. left her car.

H.B. next remembered waking up in the bedroom of her apartment, wearing pajama bottoms and the shirt she had on the night before. Her vagina and anus were sore. H.B. felt "shameful" and did not know what to do. She spent the day watching movies with Larson but did not reveal what had happened. The next day, H.B. went to the street where she usually parked her car and discovered that the front end was smashed and a tire was deflated. She then made the decision to go to Harborview Medical Center for a rape exam. There, H.B. told the medical social worker and the sexual assault nurse that she went out drinking and had only "spotty" memories or "vague recollections" of what happened when she got back to her apartment complex, including being on the ground while the maintenance man vaginally and anally penetrated her.

Mercer Island Police Detectives Joe Morris and David Canter went to H.B.'s apartment complex seeking to interview the individual H.B. identified as the maintenance man who had repaired her microwave a few days prior. The manager at the leasing office told them the person who repaired H.B.'s microwave was Monroy. The detectives asked the manager to have Monroy come to the leasing office so they could speak with him. When asked his whereabouts during the relevant time period, Monroy claimed that he got off work at 8:30 or 9:00 p.m., drove straight home, andreturned to work the next morning. He confirmed that he knew who H.B. was but denied ever having sex with her. The detectives asked Monroy for permission to collect a DNA (deoxyribonucleic acid) sample to rule him out as a suspect, and Monroy agreed to provide one.

The rape exam results showed the presence of spermatozoa on the vaginal and perineal swabs. DNA testing of these swabs showed a mixed sample, with the female profile matching H.B. and the male profile matching Monroy. The anal swabs tested positive for a protein called P30, a substance present in elevated levels in semen.

The State charged Monroy with rape in the second degree, pursuant to RCW 9A.44.050(1)(b). The first trial ended with the jury unable to reach a verdict. Upon retrial, the jury convicted Monroy as charged. The trial court imposed a midrange indeterminate standard sentence of 90 months to life. Monroy appealed.

ANALYSIS

Sufficiency of the Evidence

Monroy asserts that the State failed to present sufficient evidence that H.B. was incapable of consenting to sexual intercourse due to mental incapacity. We disagree.

A challenge to the sufficiency of the evidence admits the truth of the State's evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted moststrongly against the defendant." Salinas, 119 Wn.2d at 201. "Circumstantial evidence is as reliable as direct evidence." State v. Jackson, 145 Wn. App. 814, 818, 187 P.3d 321 (2008).

The State charged Monroy with violating RCW 9A.44.050(1)(b), which provides that 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 [w]hen the victim is incapable of consent by reason of being . . . mentally incapacitated." "Mental incapacity" refers to a "condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause." RCW 9A.44.010(4).

Monroy asserts the evidence did not show H.B. was mentally incapacitated like the victim in State v. Al-Hamdani, 109 Wn. App. 599, 608, 36 P.3d 1103 (2001). There, the victim testified she consumed at least 10 drinks, and two experts respectively testified she had an estimated blood alcohol level of .1375 and .21 at the time of the sexual assault. Al-Hamdani, 109 Wn. App. at 609. In addition, the victim and a witness testified that she was "stumbling, vomiting, and passing in and out of consciousness" prior to the incident. Al-Hamdani, 109 Wn. App. at 609.

Here, although H.B.'s blood alcohol level at the time of the sexual assault is not known, the evidence is sufficient to support a finding that H.B. was mentally incapacitated due to intoxication. Larson and Stephens testified that H.B. exhibited visible signs of intoxication at the bar and was in no condition to drive. H.B. testifiedthat she began losing her memories of the evening while at the bar. She described being in a near blackout state while Monroy penetrated her, unable to move or speak. Moreover, she had no memory of crashing her car while driving home.

Monroy contends the evidence showed H.B. was sobering up by the time she left the Seven Star. He relies substantially on the bartender's testimony that H.B. only consumed part of a beer before it was replaced with water and that H.B. seemed less intoxicated when the bartender...