State v. Ortiz-Martinez

• Docket Number: #30006
• Decision Date: 23 August 2023
• Citation: 995 N.W.2d 239
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. German Francisco ORTIZ-MARTINEZ, Defendant and Appellant.
• Court: South Dakota Supreme Court

995 N.W.2d 239

STATE of South Dakota, Plaintiff and Appellee, v. German Francisco ORTIZ-MARTINEZ, Defendant and Appellant.

#30006

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS MARCH 21, 2023

OPINION FILED August 23, 2023

RON J. VOLESKY, Huron, South Dakota, Attorney for defendant and appellant.

MARTY J. JACKLEY, Attorney General, ERIN E. HANDKE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

SALTER, Justice

[¶1.] German Francisco Ortiz-Martinez was indicted on two counts of rape in the first degree. The charged offenses were alleged to be two instances of rape among many others which were not charged. Defense counsel cross-examined the victim in an effort to demonstrate what the attorney believed to be inconsistencies between the victim's testimony and a prior statement. Believing the defense counsel's questions had prompted the victim to testify about uncharged events involving Ortiz-Martinez, the prosecutor asked the victim about this other conduct for the stated reason of clarifying her testimony on redirect examination.

[¶2.] Ortiz-Martinez did not object, but he later made a motion for a mistrial, alleging he had not received notice of the State's intent to introduce other acts evidence. The circuit court denied the motion, and Ortiz-Martinez was convicted of both counts. He was sentenced to two consecutive twenty-five-year prison terms. Ortiz-Martinez appeals the court's decision to deny his mistrial motion and a related issue regarding a jury instruction that addressed the uncharged conduct. We affirm.

Factual and Procedural History

[¶3.] Ortiz-Martinez was indicted on two counts of rape in the first degree involving his stepdaughter, L.V. The indictment alleged the offenses were committed in successive years when L.V. was 11 and 12 years old. See SDCL 22-22-1(1) (describing rape in the first degree as an act of sexual penetration involving a victim who "is less than thirteen years of age").

[¶4.] Count I alleged that Ortiz-Martinez raped L.V. between November 3, 2017, and November 2, 2018. The evidence supporting the charge related to conduct alleged to have occurred in L.V.’s bedroom at the Huron home that she shared with Ortiz-Martinez, her mother, and her brother. Because the family later moved to a different house in Huron, Count I became known as the "old house" charge.

[¶5.] Count II was alleged to have taken place between November 3, 2018, and August 27, 2019. The conduct related to an incident alleged to have occurred on a couch at the family's "new house."

[¶6.] The indictment followed L.V.’s disclosure of the abuse to a friend. That friend told another friend, whose mother reported the behavior to law enforcement. L.V.’s father lives near Huron, and his former girlfriend took L.V. to Child's Voice in Sioux Falls for a forensic interview during which she described multiple instances in which Ortiz-Martinez had raped her over a significant period of time.

[¶7.] The case was tried to a jury on December 15 and 16, 2021. The State called L.V. as its first witness. Prior to having her describe the specific incidents of rape, the State initiated the following exchange:

Prosecutor: And just to put this in context, we're going to talk about two specific incidents. But did it happen more than those two times?

L.V.: Yes.

Prosecutor: And it's been three or four years, but there's two specific incidents that we're going to talk about today. Do you know what those two are?

L.V.: Yeah.

[¶8.] Defense counsel did not object to the "more than those two times" question, and the State continued its examination, focusing first on the conduct associated with Count I. L.V. testified that Ortiz-Martinez had touched her private parts while in her bedroom at their old house and had also put his fingers in her vagina.

[¶9.] The State asked L.V. whether she had told her mother that Ortiz-Martinez raped her:

Prosecutor: Other than your friend at the soccer game when this whole thing started, who did you tell?

L.V.: My mom.

Prosecutor: And do you remember about how long it had been going on when you told your mom?

L.V.: No.

Prosecutor: Did it stop when you told your mom?

L.V.: Yes, it stopped for a little bit after I told my mom, but then he kept going.

Ortiz-Martinez did not object to this last answer.

[¶10.] The State moved on and discussed Count II—the incident on the couch at the new house. L.V. testified that one night she had gone downstairs to her bedroom to go to sleep. She explained that Ortiz-Martinez later came downstairs, made her go to the couch, and started touching her and taking her clothes off. Ortiz-Martinez put a blanket over her head, L.V. stated, and then penetrated her vaginally with his penis.

[¶11.] On cross-examination, defense counsel attempted to impeach L.V.’s testimony by questioning her about specific details relating to the incidents. Defense counsel attempted to point out what he believed to be inconsistencies between L.V.’s testimony and what she had told the Child's Voice forensic interviewer:

Defense counsel: Do you recall telling Child's Voice that it happened in the living room? Do you recall that?

L.V.: Yeah.

Defense counsel: If it happened in the living room, then it couldn't have happened in your room, right?

L.V.: I was talking about the living room at my new house.

Defense counsel: We're talking about the first rape which -- the alleged first rape which took place at the old house, right?

L.V.: Yes.

Defense counsel: And you testified to [the prosecutor] not five minutes ago that that rape took place in your room, correct?

L.V.: Yes.

Defense counsel: But yet when you were interviewed at Child's Voice, you said it took place in the living room; isn't that correct?

L.V.: Yes.

Defense counsel: And if it took place in the living room, it took place on a couch; is that right?

L.V.: Yeah.

*******

Defense counsel: And do you recall telling Child's Voice that the reason he stopped was he heard someone coming, right?

L.V.: Yes.

[¶12.] The State believed defense counsel's questions had caused L.V. to recall details of other, uncharged incidents of rape by Ortiz-Martinez. And the State attempted to account for the apparent discrepancies by asking L.V. on redirect examination if she had been recalling other incidents when she was testifying on cross-examination:

Prosecutor: And when your dad -- your stepdad was raping you, did that happen more than one time?

L.V.: Yes.

Prosecutor: Did it happen more than ten times?

L.V.: Yes.

Prosecutor: So it happened a lot too?

L.V.: Yes.

*******

Prosecutor: And it happened a lot. And I know we're focusing on two and I hate to sit here and say that, but this happened to you more than these two times we're talking about?

L.V.: Yes.

Defense counsel, again, did not object to this testimony.

[¶13.] Notably, the taped forensic interview was not, itself, admitted at trial, and it does not appear in the record in a redacted form or otherwise. ¹ Despite this, both the prosecutor and defense counsel repeatedly referred to the contents of the videotaped interview before both the circuit court and the jury.

[¶14.] The forensic interviewer did testify at trial, but much of her testimony simply explained the protocol she uses to interview children, stated in general terms. And though she did not describe L.V.’s interview in detail, the State and defense counsel both referenced the interview, implicitly and expressly, during their examinations of the forensic interviewer.

[¶15.] For instance, the State asked the forensic interviewer if a child could "intermingle" details of multiple instances of sexual abuse. The forensic interviewer answered "Yes" and further explained that the risk a child will confuse the details of multiple incidents of abuse increases when an untrained person asks the questions.

[¶16.] Defense counsel's questions were more overt and produced a response which summarized the breadth of L.V.’s disclosures of abuse by Ortiz-Martinez:

Defense counsel: She didn't disclose multiple rapes though; did she? I watched that video. She didn't mention multiple rapes?

Forensic interviewer: She didn't use the word rape with me, but what she does disclose was that her stepfather put his penis in her vagina, more than one time. Including times at the old house, the new house, as well as the camper ... As well as hand or digital vaginal penetration, more than one time. ²

[¶17.] At the beginning of the second day of trial, before the jury entered the courtroom, defense counsel made a motion for a mistrial, claiming the State had questioned L.V. about uncharged conduct without providing notice of its intent to introduce other acts evidence. The circuit court denied the motion, determining that the defense had opened the door to the other acts evidence when it cross-examined L.V. about the exact location of the rapes she had described.

[¶18.] The defense's case included testimony from Brenda Ortiz, who is L.V.’s mother and Ortiz-Martinez's wife. Brenda described a good relationship with her daughter, but she testified that L.V. had told her that she was going to tell her father that Ortiz-Martinez had touched her because she was mad at Ortiz-Martinez. Brenda did not believe that Ortiz-Martinez had actually touched her daughter inappropriately. Ortiz-Martinez elected to testify in his own defense and denied ever raping L.V.

[¶19.] After the close of the evidence, the State proposed a jury instruction relating to the other acts testimony, which read:

Evidence has been introduced that the defendant may have committed acts other than that which is now charged. You may not consider it as tending to show in any other respect the defendant's guilt of the offense with which the defendant is charged.

[¶20.] Ortiz-Martinez did not object to this instruction, but he did propose an additional instruction:

You are admonished to disregard the testimony elicited by either party regarding alleged

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