State v. Ortega-Martinez

• Decision Date: 29 September 1994
• Docket Number: No. 60412-6,P,ORTEGA-MARTINE,60412-6
• Citation: 124 Wn.2d 702,881 P.2d 231
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Alejandroetitioner.

Page 702

124 Wn.2d 702

881 P.2d 231

The STATE of Washington, Respondent, v. Alejandro ORTEGA-MARTINEZ, Petitioner.

No. 60412-6.

Supreme Court of Washington En Banc.

Sept. 29, 1994.

Appellate Defender Ass'n, Andrew P. Zinner, Seattle, for petitioner.

Dave Needy, Skagit County Prosecutor, Mount Vernon, for respondent.

Lewis M. Schrawyer, Spokane, amicus curiae, for petitioner on behalf of ass'n of criminal defense lawyers.

Donald C. Brockett, Spokane County Prosecutor, Kevin M. Korsmo, Deputy, Spokane, C. Danny Clem, Kitsap County Prosecutor, Pamela B. Loginsky, Deputy, Port Orchard, amici curiae, for respondent.

UTTER, Justice.

Petitioner Alejandro Ortega-Martinez seeks reversal of an unpublished Court of Appeals decision affirming his conviction for second degree rape. A jury unanimously convicted Ortega-Martinez of second degree rape, but did not specify by which of two alternative means he committed the rape. Ortega-Martinez appealed, arguing he was entitled to a showing the jury unanimously agreed on the means by which he committed the rape. The Court of Appeals affirmed his conviction, reasoning under the authority of a recent United States Supreme Court decision that a defendant is not entitled to a showing of unanimity on the underlying means of committing the crime, notwithstanding Washington case law which has recognized such a right in some situations. Ortega-Martinez seeks review of whether a defendant has the right to a unanimous determination regarding the underlying means. Our law does recognize such a right when insufficient evidence supports a finding that a defendant committed a crime by any of the alternative means submitted to the jury; however, because sufficient evidence supported both alternative means submitted to the jury in this case, jury unanimity as to the means by which Ortega-Martinez committed the rape is not required. We therefore affirm Ortega-Martinez's conviction.

The victim of the rape was S.G., a 30-year-old woman with an IQ in the 40s. S.G. and her husband live in an "intensive tenant support program" which houses mentally retarded individuals and has staff available 24 hours a day. Verbatim Report of Proceedings, at 80. S.G. has a significant eating disorder which prevents her from knowing when to stop eating, Verbatim Report of Proceedings, at 81; cannot live independently, Verbatim Report of Proceedings, at 81; and suffers from an inability to resist the instructions of others, Verbatim Report of Proceedings, at 82. A case worker works with S.G. and her husband 60 hours a week to ensure they receive support and education. Verbatim Report of Proceedings, at 84. S.G. also has an advocate who works closely with her and a case manager who monitors her development and general well-being.

On the evening of December 7, 1990, S.G. took a bus to Mount Vernon where her advocate was supposed to pick her up. Because of a mix-up, the advocate did not meet her at the bus stop as planned, and S.G. waited "a long time". Verbatim Report of Proceedings, at 105. At some point while she was waiting, she was approached by the defendant Alejandro Ortega-Martinez. According to S.G., Ortega-Martinez told her to leave with him and she complied. She testified that after they walked together a long time and got into his pickup truck, Ortega-Martinez threatened to kill her if she did not remove her clothing. She described subsequent events which indicate sexual intercourse occurred between the two.

It is undisputed S.G. and Ortega-Martinez remained in the truck the rest of the night and that the next morning Ortega-Martinez walked her back to the bus station where he had found her. With the assistance of the Greyhound terminal manager, S.G. then called her advocate. After being returned home by the advocate, S.G. called her cousin. The cousin came to her house and, upon hearing what had happened, notified the police and took S.G. to the hospital. The doctor who examined S.G. found several small bruises on her neck, a bruise on her leg, and trauma to her vaginal area. Verbatim Report of Proceedings, at 152-55. The doctor testified the trauma to her vaginal area was consistent with injuries from penetration. Verbatim Report of Proceedings, at 157.

Ortega-Martinez was subsequently charged with violating RCW 9A.44.050 which defines second degree rape, Clerk's Papers, at 1, and tried by jury. The jury was instructed: "A person commits the crime of rape in the second degree when that person engages in sexual intercourse with another person by forcible compulsion or when the victim is incapable of consent by reason of being mentally incapacitated." Clerk's Papers, at 32. The jury returned a general verdict of guilt, Clerk's Papers, at 34, which the Court of Appeals affirmed in an unpublished opinion, State v. Ortega-Martinez, 68 Wash.App. 1078 (1993). We accepted Ortega-Martinez's petition for review.

Although the jurors unanimously agreed Ortega-Martinez was guilty of second degree rape, they did not specify by which of the two alternative means--either by forcible compulsion or with someone incapable of consent by reason of mental incapacity--he committed second degree rape. Ortega-Martinez claims the absence of a special verdict form, requiring the jury to specify by which of the two alternative means it found him guilty, is reversible error.

Criminal defendants in Washington have a right to a unanimous jury verdict. Const. art. 1, § 21. This right includes the right to an expressly unanimous verdict. Const. art. 1, § 21 states: "The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases ..." Allowing juries of less than 12 in courts not of record, creates a right to 12-member juries in courts of record. Seattle v. Filson, 98 Wash.2d 66, 70, 653 P.2d 608 (1982), overruled on other grounds in, In the Matter of Eng, 113 Wash.2d 178, 776 P.2d 1336 (1989). Additionally, by allowing verdicts of nine or more only in civil cases, the final clause implicitly recognizes unanimous verdicts are required in criminal cases. State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980); see also State v. Kitchen, 110 Wash.2d 403, 409, 756 P.2d 105 (1988); State v. Workman, 66 Wash. 292, 295, 119 P. 751 (1911).

In certain situations, the right to a unanimous jury trial also includes the right to express jury unanimity on the means by which the defendant is found to have committed the crime. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980); accord State v. Whitney, 108 Wash.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); State v. Simon, 64 Wash.App. 948, 831 P.2d 139 (1991).

The threshold test governing whether unanimity is required on an underlying means of committing a crime is whether sufficient evidence exists to support each of the alternative means presented to the jury. If the evidence is sufficient to support each of the alternative means submitted to the jury, a particularized expression of unanimity as to the means by which the defendant committed the crime is unnecessary to affirm a conviction because we infer that the jury rested its decision on a unanimous finding as to the means. State v. Whitney, 108 Wash.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976). On the other hand, if the evidence is insufficient to present a jury question as to whether the defendant committed the crime by any one of the means submitted to the jury, the conviction will not be affirmed. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980); accord State v. Whitney, 108 Wash.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); State v. Simon, 64 Wash.App. 948, 831 P.2d 139 (1991).

The Court of Appeals erroneously concluded Griffin v. United States supersedes Green and is dispositive of Ortega-Martinez's state claims. 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). The Griffin Court held that a general guilty verdict satisfies the due process clause of the Fifth Amendment of the federal constitution, notwithstanding an absence of unanimity on an underlying means supported by sufficient evidence. Since Griffin addressed the requirements imposed by the federal constitution, it does not erode the protections afforded by our state constitution and under State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980).

Therefore, the first question we must answer in this case is whether sufficient evidence supported each of the two alternative means of committing second degree rape which were considered by the jury. Sufficient evidence is evidence adequate to justify a rational trier of fact to find guilt beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 220, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The evidence is sufficient if "after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt". State v. Rempel, 114 Wash.2d 77, 82, 785 P.2d 1134 (1990).

As noted, the jury was informed of two alternative means by which second degree rape occurs. It was instructed to convict Ortega-Martinez if it found he had intercourse with S.G. by forcible compulsion or if it found he had intercourse with her and she was incapable of consent by reason of being mentally incapacitated. Ortega-Martinez does not dispute sufficient evidence existed to support a finding he committed second degree rape by forcible compulsion. He argued to the Court of Appeals, however, there was insufficient evidence to support a finding he had intercourse with someone incapable of consent by reason of being mentally incapacitated.

The Court of Appeals agreed with...