State v. Mares
| Decision Date | 24 September 2015 |
| Docket Number | No. 32145–2–III.,32145–2–III. |
| Citation | 190 Wash.App. 343,361 P.3d 158 |
| Parties | STATE of Washington, Respondent, v. Gustavo Duarte MARES, Appellant. |
| Court | Washington Court of Appeals |
Ronald Alan Hammett, Law Office of Ronald A. Hammett, Omak, WA, for Appellant.
Karl F. Sloan, Okanogan County Prosecuting Attorney, Okanogan, WA, for Respondent.
¶ 1 Under RCW 9A.44.060(1)(a), a person is guilty of rape in the third degree when (under circumstances not constituting rape in the first or second degree) the person engages in sexual intercourse with a victim who did not consent to sexual intercourse, and “such lack of consent was clearly expressed by the victim's words or conduct.” Gustavo Duarte Mares, whose victim awoke to find him raping her, appeals his conviction of third degree rape on the ground that none of his victim's objections to his sexual advances was contemporaneous. Alternatively, he argues that RCW 9A.44.060 (1)(a)is unconstitutionally vague as to whenthe victim's lack of consent must be clearly expressed. His third assignment of error contends that after a State witness coordinator exhibited support for the victim in the presence of the jury and he moved for a mistrial, the trial court was required, but failed, to investigate the risk of juror prejudice.
¶ 2 In the published portion of this opinion we hold that RCW 9A.44.060is not unconstitutionally vague as applied to the facts of this case and that substantial evidence supports Mr. Mares's conviction. In the unpublished portion, we hold that the trial court's consideration of the risk of juror prejudice from the witness coordinator's act was sufficient and we find, alternatively, that any error was invited by Mr. Mares's lawyer's statement that he did not want anything further said about the incident. We affirm.
¶ 3 In January 2013, C.D. moved to Omak, where she lived in her aunt and uncle's home. The defendant, Gustavo Duarte Mares, was already living there; he, too, referred to the patriarch of the home as his uncle. C.D. testified that she and Mr. Mares are cousins, although the precise nature of their relationship is unclear.1
¶ 4 Although C.D. and Mr. Mares were both working long hours they would occasionally socialize with their mutual family, and on a few occasions did things with one another. C.D. did not consider any of the time she spent with Mr. Mares as a “date.” Report of Proceedings (RP) at 57. Mr. Mares knew that C.D. had a boyfriend who lived on the east coast.
¶ 5 C.D. testified that in the couple of months that she lived in her aunt and uncle's home before being raped by Mr. Mares, there were several occasions when he made romantic advances that she consistently rebuffed. The first was when he put his arm around her shoulder after he had been drinking one night; she nudged his hand away. On another, which occurred about a month before the rape, Mr. Mares was driving with her to Walmart and kept trying to put his arm around her shoulder or his hand on her thigh. C.D. “kept telling him to stop.” RP at 60. When he asked, “Why?” she replied, “[B]ecause we [are] cousins.” Id.She told him that if he did not stop, she was going to take him back to the house.
¶ 6 About two weeks later, C.D. awoke in her bed to find Mr. Mares hovering over her bed, his face right next to hers. C.D.'s bedroom was upstairs and Mr. Mares was supposed to sleep in the basement. When C.D. asked him what he was doing, Mr. Mares replied that he missed her and wanted to sleep with her in her room. C.D. told him that he needed to get out, but Mr. Mares would not leave and kept trying to come onto her bed. C.D. threatened to tell her aunt and uncle if he did not leave, and he eventually left.
¶ 7 Later that month, C.D. invited Mr. Mares to go with her to a casino, where she wanted to pick up an employment application. They both had drinks while there. Because C.D. felt too intoxicated to drive, Mr. Mares drove them home. C.D. fell asleep in the car, but remembers Mr. Mares waking her up when they got back to the house and walking up to her bedroom, where she went to sleep. The next morning, C.D. discovered “hickies” on her neck and had no recollection of how they got there. When she confronted Mr. Mares, he eventually admitted that he had given her the hickies, but told her not to worry about what happened and to just forget about it. C.D. yelled at Mr. Mares, telling him “what he did was wrong and that it wasn't okay.” RP at 71–72.
¶ 8 On a Friday night, March 15, 2013, C.D. and Mr. Mares were watching television together. C.D. was tired, having worked twelve hours that day. At her request, Mr. Mares went out to buy some alcohol and returned with bottles of a wine-like beverage. C.D. drank most of two bottles by herself and then went up to her room to go to bed, leaving Mr. Mares behind in the living room.
¶ 9 C.D. next remembers waking up and finding Mr. Mares on top of her, engaged in sexual intercourse. He was naked, and her pants and underwear had been removed. As soon as she realized what was happening, C.D. grabbed a rifle that was next to her on the bed, pulled back the bolt to cock the hammer, and pointed it at Mr. Mares. He told C.D. she didn't know what she was doing and to put the rifle down, but she refused and ordered him to leave her room.
After she told him a second time, he grabbed his clothes from the floor and left. C.D. would later admit that she thought about shooting him but knew that rounds tended to go through walls and didn't want to risk hurting her aunt and uncle.
¶ 10 C.D. reported what had happened to the Okanogan Sheriff's Department the following Monday morning. When Mr. Mares later agreed to speak with sheriff's deputies, he initially denied ever having sexual intercourse with C.D. He changed his story when deputies told him that they had C.D.'s clothing and were sending it to the crime lab for testing. Mr. Mares then told the deputies that he and C.D. had consensual sex on the night she claimed to have been raped and that they had engaged in consensual sex twice before. When asked why he initially denied having ever had sex with C.D., Mr. Mares responded that he must have forgotten.
¶ 11 Mr. Mares was charged with one count of third degree rape under RCW 9A.44.060(1)(a), which is based on lack of consent by the victim. Consistent with the terms of the statute, the information alleged that C.D. “did not consent to the sexual intercourse and such lack of consent was clearly expressed by [her] words or conduct.” Id.
¶ 12 C.D. testified at trial to her ongoing objections to Mr. Mares's advances and to the events of the night she was raped. While testifying to what had happened on the night of the rape, she became emotional and was temporarily unable to continue. The trial court asked her if she “need[ed] a couple of minutes,” and then announced, “Members of the jury, we're going to take a short recess.” RP at 79. The jurors were excused, but before they left the courtroom the State's witness coordinator approached C.D. on the witness stand and hugged her.
¶ 13 Before the jury's return, the defense moved for a mistrial, arguing that the witness coordinator's conduct might have prejudiced the jury. After hearing from both counsel, the trial judge commented that he saw what had happened, “and sort of cringed myself.” RP at 81. But he continued, “I don't think that it was prejudicial to the Defendant, and certainly not to the extent that it will require a mistrial.” RP at 81–82. He instructed the witness coordinator to refrain from such conduct in the future and told defense counsel he would consider giving a curative instruction but that doing so might draw more attention to the issue. Defense counsel responded:
Your Honor, I will take exception to the Court's ruling on that on the mistrial, but that also means that I would prefer to not mention it any further.
¶ 14 Mr. Mares testified on his own behalf, denying that C.D. ever asked him to leave her alone and claiming that while he and C.D. did not have sex on the night of the alleged rape, they had engaged in consensual sex on two other occasions. The jury did not believe him and returned a guilty verdict. Mr. Mares appeals.
¶ 15 Mr. Mares makes three assignments of error. He contends, first, that insufficient evidence supports the finding of guilt of third degree rape; second, that RCW 9A.44.060(1)(a)is unconstitutionally vague in violation of due process; and third, that the trial court conducted an inadequate investigation into whether Mr. Mares was prejudiced by the witness coordinator's show of support for C.D. We address the first and second assignments of error together and then turn to the third.
¶ 16 Mr. Mares's sufficiency challenge is to the sufficiency of the evidence to support a finding that C.D. clearly expressed her lack of consent. He construes RCW 9A.44.060(1)(a)to require that the expression of lack of consent be contemporaneous. To determine whether the State produced sufficient evidence to prove this element of the offense, the court “must begin by interpreting the underlying criminal statute.” State v. Budik,173 Wash.2d 727, 733, 272 P.3d 816 (2012); State v. Werneth,147 Wash.App. 549, 552, 197 P.3d 1195 (2008). It therefore makes sense for us to address the meaning of the statute and the related issue of its constitutionality at the same time we address the sufficiency of the evidence.
¶ 17 Interpretation of a statute is a question of law that we review de novo. State v. Bright,129 Wash.2d 257, 265, 916 P.2d 922 (1996). “In construing a statute, the court's objective is to determine the legislature's intent.” State v. Jacobs,154 Wash.2d 596, 600, 115 P.3d 281 (2005). “ ‘[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.’ ” Id,at 600, 115 P.3d 281(quoting Dep't of Ecology...
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