Romero v. Commonwealth, Record No. 0050-13-4

CourtCourt of Appeals of Virginia
Docket NumberRecord No. 0050-13-4
Decision Date25 March 2014


Record No. 0050-13-4


MARCH 25, 2014


Present: Judges Kelsey, Alston and Decker
Argued at Alexandria, Virginia


Craig D. Johnston, Judge

Andrew T. Elders (Sarah C. Bruns; Elders, Zinicola & Blanch, PLLC, on brief), for appellant.

Aaron J. Campbell, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

A jury convicted Rene Martinez Romero of raping his mentally disabled daughter. On appeal, he claims that his conviction should be overturned on various grounds, including factually insufficient proof of guilt, lack of jurisdiction and improper venue, inadequate disclosure by the Commonwealth of exculpatory evidence, and potential juror misconduct. Finding no merit in any of these assertions, we affirm.


On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).

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In addition, "an appellate court's 'examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.'" Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)). Instead, "an appellate court must consider all the evidence admitted at trial that is contained in the record." Id.; see also Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010).


A medical test in November 2010 revealed that appellant's daughter, D.M., was pregnant. She was eighteen years old at the time, severely mentally disabled, and prone to seizures. One expert at trial placed her educational competency level to be "approximately kindergarten level." App. at 605. During an evaluation by a school psychologist, D.M. could not provide her date of birth or "any family information." Id. at 600-01. She could not "recognize letters" of the alphabet or "identify them, in order or out of order." Id. at 601. Given D.M.'s condition, she could not be left alone at home.

Medical testimony established the date of conception to be in August 2010. At that time, D.M. lived at home in Prince William County with appellant (her father), Celina Castillo Martinez (her mother), and her six-year-old sister. D.M. had a separate bedroom. In August 2010, her mother worked two jobs, one from home in the mornings and another away from home three nights a week. On the way to her evening job, usually at about 3:00 p.m., the mother would take D.M. and her younger sister to the home of Roque and Dennis ("Denny") Martinez (appellant's brother and nephew) in Alexandria. While there, Denny Martinez's mother or another female friend of the family would babysit D.M. until appellant arrived at 7:00 p.m. to take the girls home. Appellant would be alone at home with the two girls until his wife returned from work sometime after 10:45 p.m.

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On four occasions in August 2010, appellant took D.M. and her younger sister to visit her mother's cousin in Maryland. Her mother accompanied them on some of these trips. None of the trips involved an overnight stay. No evidence suggested that appellant or any other male relative was ever alone with D.M. during any of these day trips.

After D.M.'s unborn child was aborted, a sexual-assault nurse examiner took samples of fetal tissue for DNA testing. Investigators also asked for and received saliva samples from appellant. The Commonwealth's experts at trial testified that the fetal DNA tests proved there was a 99.9999% probability that appellant was the biological father of D.M.'s child when compared to any unrelated, randomly selected men. Id. at 1371, 1902; see also id. at 1896-97 (testing by a private laboratory showing that appellant's "Probability of Paternity is 99.99% compared to an unrelated, untested man in the Hispanic population").

Officials obtained DNA samples from all other related males who may have spent time with D.M., and DNA tests proved that none of them could have fathered the child. The testing specifically excluded appellant's brothers (Roque and Felix Martinez) and his nephew (Denny Martinez), as well as three other men who were unrelated to appellant, "because they each do not possess an obligate paternal allele at three or more genetic systems." Id. at 1896-97. The DNA certificates of analysis summarizing these conclusions were admitted into evidence without objection.

D.M. testified at trial. Her disability, however, prevented her from communicating intelligently. She was unable to state her full name or her correct birthday and age. She gave a nonsensical answer when asked what the word sex meant. She said she did not know what a man or boy did with a penis and did not recall ever seeing her father's penis.

Appellant took the stand in his own defense. Among other things, he testified that the police detective, during his interview, had told him that his DNA could have entered D.M.'s

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vagina "through contamination, that it could have happened on the toilet or in the sofa." Id. at 1616. Appellant did not respond with disbelief or outrage when the detective asked him how his DNA could have gotten into D.M.'s vagina. Instead, he said, "It was possible from her wearing [his wife's] dirty underwear." Id. at 1544. Appellant also testified that, during the interview, he had told the detective that he had previously seen D.M. "put on [his] wife's panties." Id. at 1616. D.M. "was careless," appellant explained, "because she wears [his] wife's underwear." Id. at 1642. He clarified that he meant his "wife's dirty underwear." Id. at 1643. Appellant said that he did not remember whether he had told police investigators that D.M. "didn't understand what sex was." Id. at 1636.

When asked at trial if he had "any idea at that time how [his] daughter had become pregnant," appellant said she "always spoke about the friends she had . . . ." Id. at 1617. After appellant's counsel cut his answer off midsentence with "No, no," appellant testified that, "without telling [the jury] anything that [his] daughter" had told him, he did not know how his daughter got pregnant. Id. On the ultimate question in the case, appellant testified that he never had sex with his daughter.


After the close of all the evidence, appellant's counsel moved to dismiss the case for lack of jurisdiction and improper venue. The alleged rape, counsel argued, could have occurred in Maryland or Alexandria, Virginia, just as easily as in Prince William County. Because the evidence does not dispositively prove where it occurred, counsel concluded that the trial court — in its capacity as Circuit Court for Prince William County — had no choice but to dismiss the case.

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Questioning this reasoning, the trial court asked appellant's counsel if that meant the crime "can't be prosecuted anywhere because nobody can figure out where it happened?" Id. at 1665. "Exactly," counsel replied. Id. The trial court responded:

I heard no evidence that would lead me to believe there was a reasonable opportunity for [appellant] to have committed these offenses in those particular locations, because I heard no evidence upon which I could conclude he was alone with her for some appreciable period of time wherein this might have occurred.

Id. at 1666. Continuing his argument, appellant's counsel twice conceded: "There's no evidence about anything in Maryland." Id. at 1667; see also id. at 1676. This evidentiary omission, counsel argued, precluded the court from going forward with the case.

Both appellant and the prosecutor argued that the trial court, not the jury, should decide the jurisdiction and venue issues. The trial court heard differing views, however, on the burden of proof. The court did not "need to reach and decide that issue" because, "based on the evidence" before it, the court found "beyond a reasonable doubt" that the rape, if it happened at all, occurred in Prince William County, Virginia. Id. at 1693-95.

This conclusion, the trial court reasoned, followed by process of elimination. The court noted that incestuous rape is "not an offense of casual impulse" and "generally happens over time in situations where time and opportunity and temptation coincide." Id. at 1694. The evidence presented only three options. The rape either occurred during one of the four trips to visit relatives in Maryland, during the time D.M. was with babysitters in Alexandria, or during one of the many evenings appellant was with D.M. in the privacy of their home in Prince William County. Time, opportunity, and temptation — the trial court found — inexorably pointed to the home as the situs of the crime.

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