State v. Martinez

• Decision Date: 04 February 2021
• Docket Number: No. 20180153-CA,20180153-CA
• Citation: 480 P.3d 1103
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Appellee, v. Cesar R. MARTINEZ, Appellant.

480 P.3d 1103

STATE of Utah, Appellee,

v.Cesar R. MARTINEZ, Appellant.

No. 20180153-CA

Court of Appeals of Utah.

Filed February 4, 2021

Rehearing Denied February 26, 2021

Opinion

POHLMAN, Judge:

¶1 Cesar R. Martinez appeals his convictions for one count of rape of a child and three counts of sodomy on a child. He asserts that he is entitled to a new trial on three grounds. First, he contends that because he is unable to reconstruct the record surrounding a deadlock instruction given to the jury, he has been denied due process and his constitutional right to an appeal.¹ Second, he contends that the district court committed reversible error in failing to comply with rule 15.5 of the Utah Rules of Criminal Procedure when it admitted the prior recorded statement of the child victim (Victim). Third, he contends that his trial counsel was constitutionally ineffective in failing to object to the admission of evidence that he had shown pornography to Victim. We reject these contentions and affirm.

BACKGROUND²

¶2 After allegations surfaced in early 2016 that Martinez sexually abused Victim, his then five-year-old daughter, the State brought criminal charges against him. Martinez faced a jury trial in 2017 on one count of rape of a child and three counts of sodomy on a child.

The Trial

¶3 Six witnesses testified during the State's case-in-chief: Victim, her mother (Mother), her teenage brother (Brother), her daycare provider, a doctor who examined her, and a Children's Justice Center supervisor. Martinez was the sole witness for the defense.

¶4 Mother testified that in 1999 she and Martinez moved from El Salvador to Utah. The couple had three sons and a daughter, and they established businesses in the food industry. Although they "los[t] everything" in 2010, they rebuilt and ran another business. But the family suffered a tragic loss when their eldest son died in 2014. According to Mother, "everything changed after that," including her relationship with Martinez. For example, during the six months before January 2016, the couple had no sexual relations.

¶5 Mother testified that Victim's behavior changed around the same time. For instance, Mother saw Victim touching and rubbing "her private part." She also noticed that Victim refused to give Martinez hugs and kisses. Additionally, Mother and Brother observed that Victim made "a big deal" of not wanting to go to bed at night. Both witnesses testified that Martinez usually put Victim to bed and would stay in her room with the door closed for "long periods of time," perhaps "one to two hours." Of Victim's behavior, Mother said, "Now I understand why."

¶6 Mother described one night in January 2016 when she was at home with her children and Martinez was at work. While sitting on the couch with Victim, Mother noticed that Victim was acting "anxious and angry." When Mother asked Victim what was wrong, Victim told her, "I want to tell you something, but [my brothers] are here." Once her brothers left the room, Victim told Mother, "It's ... something inappropriate about daddy." Victim then nervously said, "[H]e put away his clothes and put his bee-bee in my butt." Knowing that Victim used the term "bee-bee" to refer to a penis or vagina, this news shocked Mother. She asked Victim when this would happen. Victim responded, "A lot of times. ... [S]ometimes you was asleep, and then other time[s] you wasn't at home." Victim indicated that she did not tell Mother before because Martinez had told her to be quiet and not to say anything. Mother asked her whether she was hurt, and Victim responded, "When he did this, no, but when he did this, put his tongue in my bee-bee and do this hard, that is hard."

¶7 Mother and Brother both testified as to what happened next. That same night, Mother told Brother and her other teenage son (Older Brother) what Victim had just disclosed. After Victim went to sleep, Martinez arrived home, and Mother and her sons confronted him. Standing next to the door and with a baseball bat in hand, Older Brother warned Martinez, "We already know what you did to [Victim]." Martinez "started to laugh" and "didn't take it seriously at all." Mother told Martinez that Victim said that he "did something to her," to which Martinez responded, "I didn't do anything. Someone is telling her to say this. ... [T]ake [Victim] to a doctor and you will see nothing happened." Martinez also said that he wanted to talk to Victim and "find out what happened," but the others told him that he "wasn't going to be alone with her."

¶8 When Mother announced her intention to call child protective services, Martinez told her that she would "ruin everything," and he threatened to disown everyone in the family but Victim. Martinez went on to accuse others of doing something to Victim, including their daycare provider's son and Martinez's nephew. He also said that "it could have been" Brother and Older Brother. Older Brother replied that Victim "didn't say any names," she said "daddy." Still laughing, Martinez denied doing anything to Victim. Eventually, the family went to sleep, with Martinez in his bedroom and Mother in Victim's bedroom.

¶9 The next day, Mother called child protective services, and Martinez went to Las Vegas for work. Victim also approached Mother again, telling her that Martinez showed her "pictures in his tablet." When Mother asked what kind of pictures, Victim explained, "People that you aren't supposed to see, people naked, people doing things, and I—and he tried to make me pick one. I have to pick one of the pictures." Martinez had a tablet for work, which he took with him to Las Vegas. Generally, only Martinez and Victim had access to the tablet, and Brother observed that when he asked to use the tablet, Martinez would stay nearby and "wouldn't let [the sons be] alone with it." When asked whether she had ever seen Martinez look at naked pictures on the tablet, Mother responded that she had not seen him do so but that she had seen him watch pornography on television in their bedroom.

¶10 During Victim's trial testimony, Victim said that Martinez did "bad things" to her in her bedroom, Mother's bedroom, and the living room when Mother and her brothers were at work, gone during the day, or watching television in another room. Victim testified that Martinez would put her to bed at night with the door closed and that he would take off all his clothes and ask her to do the same. Victim then explained, "[H]e had his bee-bee and put it in my bum, and he had his bee—tongue and touched it on mine ...." Victim clarified that "bee-bee" means "private part," and she indicated that Martinez's "bee-bee" touched her "front" private part. She said that "private parts in the front" of a boy are a "bee-bee" and that the private parts on the back are a "[b]um," but when asked what she calls "the private parts on a girl on the front," she said she did not know. Victim also said that one time in Mother's bedroom, Martinez "put chocolate on his bee-bee" and told her "to suck it, but [she] said no." And when asked to describe Martinez's "bee-bee," Victim answered, "A long straight line like—and then at the top there's holes—there's a big hole."

¶11 A few days after Victim disclosed the abuse, Mother took Victim to the Children's Justice Center to be interviewed (the CJC interview). During the CJC interview, Victim said that when she was four and five years old, Martinez "took his pants off and he was putting it in [her] bee-bee." He also "put it in [her] butt." She said "he wanted [her] to put his bee-bee in [her] mouth, and [she] did not like that." She explained that she "said yes one time" but another time she said no. Victim further indicated that "[m]ore than one time" Martinez touched his tongue to her "bee-bee." Additionally, when the interviewer asked Victim whether she had "ever seen any pictures of any of the things that [they] talked about," Victim answered, "Well, I saw pictures [on Martinez's] tablet," and explained that Martinez showed her pictures of a "bee-bee." When asked whether the pictures were of "a boy bee-bee or a girl bee-bee," Victim responded, "Just like all kinds of them."

¶12 A video of the CJC interview was played for the jury. When the State asked the district court for permission to do so, Martinez's trial counsel told the court, "[W]e've stipulated to foundation, but not to admissibility." Trial counsel then complained, "It's hearsay. She's testified. It shouldn't come in." The court ruled that although it would not allow the video to go back with the jury during deliberations, it would "allow the playing of the tape," reasoning that "there were certain gaps in [Victim's] testimony where she said she couldn't remember certain items." Neither trial counsel nor the court addressed the requirements of rule 15.5 of the Utah Rules of Criminal Procedure before playing the video for the jury, but trial counsel stated that he "still object[ed] to it," and the court told him, "You've got your objection."

¶13 The State introduced testimony from a supervisor of the Children's Justice Center. The supervisor provided additional foundation for the CJC interview and testified that the interviewer who conducted the interview with Victim "just had a baby" and "couldn't be" at trial.

¶14 The doctor who examined Victim a few days after the CJC interview also testified. Over the defense's hearsay objection,³ the doctor testified that Victim told her, "My dad put his bee-bee on my bee-bee." Victim said this happened skin-to-skin. According to the doctor, Victim identified the location of her "bee-bee" using a picture of a boy and girl; Victim "pointed to the girl in the genital area." When the doctor asked if she was hurt, Victim said, "It didn't hurt, but it did hurt when he put his tongue on my bee-bee. It hurt a lot." Victim also told the doctor, "He made me put my mouth on his bee-bee," and that, more than once, Martinez "put his bee-bee in her butt." In addition, the doctor testified that...