State of Washington v. Gustavo Duarte Mares

FILED
SEPTEMBER 24, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32145-2-111
Respondent, )
)
v. )
)
GUSTAVO DUARTE MARES, ) OPINION PUBLISHED IN PART
)
Appellant. )
SIDDOWAY, C.J. - Under RCW 9A.44.060(l)(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(l)(a) is unconstitutionally vague as to when the 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 ofjuror prejudice.
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In the published portion of this opinion we hold that RCW 9A.44.060 is 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 In the unpublished portion, we hold that the trial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 ofjuror 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.
FACTS AND PROCEDURAL BACKGROUND
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. I
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.
I C.D. testified that Mr. Mares is the son of her father's cousin, while Mr. Mares
told police C.D. is his cousin's niece, which would likely make them first cousins once
removed. In any event, C.D. refers to Mr. Mares as her cousin.
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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 ifhe did not stop, she was going to
take him back to the house.
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 ifhe did not leave, and he eventually left.
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
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"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.
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.
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.
C.D. reported what had happened to the Okanogan Sheriffs Department the
following Monday morning. When Mr. Mares later agreed to speak with sheriffs
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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.
Mr. Mares was charged with one count of third degree rape under RCW
9A.44.060(l)(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."
Jd.
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.
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,
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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.
RP at 82.
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.
ANALYSIS
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(l )(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 tum to the third.
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1. Meaning ofRCW 9A.44.060(J)(a) and sufficiency ofthe evidence
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 oflack 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 Wn.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.
Interpretation of a statute is a question of law that we review de novo. State v.
Bright, 129 Wn.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 PJd 281 (2005). '" [I]fthe statute's meaning is plain on its face, then the court must
give effect to that plain meaning as an expression of legislative intent.'" ld. at 600
(quoting Dep 't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 9-10, 43 P .3d 4
(2002)). The plain meaning of a statute is discerned "from the ordinary meaning of the
language at issue, as well as from the context of the statute in which that provision is
found, related provisions, and the statutory scheme as a whole." Jacobs, 154 Wash. 2d at
600. Additionally, courts must "construe statutes consistent with their underlying
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No. 32 I 45-2-III
State v. Mares
purposes while avoiding constitutional deficiencies." State v. Eaton, 168 Wash. 2d 476,
480,229 P.3d 704 (2010). Nonetheless, courts "cannot add words or clauses to an
unambiguous statute when the legislature has chosen not to include that language," and
must "assume the legislature 'means exactly what it says.'" State v. Delgado, 148 Wash. 2d
723, 727, 63 P.3d 792 (2003) (quoting Davis v. Dep't ofLicensing, 137 Wn.2d 957,964,
977 P.2d 554 (1999)).
If a statutory provision is subject to more than one reasonable interpretation, it is
ambiguous. Jacobs, 154 Wash. 2d at 600-01. In such cases, the rule oflenity requires that
the court "interpret the statute in favor of the defendant absent legislative intent to the
contrary." Id. at 601; State v. McGee, 122 Wash. 2d 783, 787, 864 P.2d 912 (1993).
Mr. Mares contends that RCW 9A.44.060(1)(a) is unconstitutionally vague
because it requires that the victim's lack of consent must be clearly expressed but does
not specify when. "The purpose of the vagueness doctrine is to ensure that citizens
receive fair notice as to what conduct is proscribed, and to prevent the law from being
arbitrarily enforced." Haley v. Med. Disciplinary Bd., 117 Wash. 2d 720, 739-40, 818 P.2d
1062 (1991). Our Supreme Court has held that "a 'statute is void for vagueness if either:
(1) the statute "does not define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is proscribed"; or (2) the statute "does not
provide ascertainable standards of guilt to protect against arbitrary enforcement."'" State
v. Watson, 160 Wn.2d 1,6, 154 P.3d 909 (2007) (quoting State v. Williams, 144 Wash. 2d
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No. 32145-2-III
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197,203,26 P.3d 890 (2001». Because RCW 9A.44.060(I)(a) does not involve the First
Amendment, Mr. Mares's vagueness challenge is not evaluated by examining
"hypothetical situations at the periphery of the [statute's] scope," but by inspecting his
actual conduct and the particular facts of the case. City ofSpokane v. Douglass, 115
Wash. 2d 171, 182-83, 795 P.2d 693 (1990); State v. Coria, 120 Wash. 2d 156, 163,839 P.2d
890, 894 (I 992).
The vagueness doctrine "is limited in two significant ways." City ofSeattle v. Eze,
111 Wash. 2d 22, 26, 759 P.2d 366 (1988). First, "[a] statute is presumed to be
constitutional, and the person challenging a statute on vagueness grounds has the heavy
burden of proving vagueness beyond a reasonable doubt." Coria, 120 Wash. 2d at 163.
Second, because "[s]ome measure of vagueness is inherent in the use oflanguage",
Haley, 117 Wash. 2d at 740, courts do not require "absolute agreement" or "impossible
standards of specificity." Watson, 160 Wash. 2d at 7 (quoting Coria, 120 Wash. 2d at 163).
Thus, "[a] statute is not void for vagueness merely because some terms are not
defined." State v. Harrington, 181 Wash. App. 805, 824,333 P.3d 410 (2014). Likewise, a
statute is not unconstitutionally vague'" merely because a person cannot predict with
complete certainty the exact point at which his actions would be classified as prohibited
conduct.'" Haley, 117 Wash. 2d at 740 (quoting Eze, 111 Wash. 2d at 27). "[I]fmen of
ordinary intelligence can understand a penal statute, notwithstanding some possible areas
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No. 32145-2-III
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of disagreement, it is not wanting in certainty." State v. Maciolek, 101 Wash. 2d 259, 265,
676 P.2d 996 (1984).
The legislature chose in RCW 9A.44.060(1 )(a) to address consent in two ways.
For a person to be guilty of rape in the third degree under the provision requires both that
• the victim did not consent to the sexual intercourse with the
perpetrator, as "consent" is defined in RCW 9A.44.010(7), and
• such lack of consent was clearly expressed by the victim's words or
conduct.
"Consent" is defined by RCW 9A.44.010(7) to mean
that at the time of the act of sexual intercourse or sexual contact there are
actual words or conduct indicating freely given agreement to have sexual
intercourse or sexual contact.
Reading RCW 9A.44.060(1)(a) as a whole, it is clear that the legislature did not
intend to criminalize sexual intercourse involving a perpetrator who reasonably but
mistakenly believed that the victim was a willing participant. Where lack of consent is
clearly expressed by a victim's words or conduct, any asserted "misunderstanding" by a
perpetrator is unreasonable and justifies punishment. State v. Higgins, 168 Wash. App.
845, 854, 278 P.3d 693 (2012) ("Our focus, and certainly the jury's focus, is more
properly on the victim's words and actions rather than [the perpetrator's] subjective
assessment of what is being communicated. ").
Mr. Mares argues that because the definition of "consent" incorporated by the
statute contains a temporal qualifier-namely, that the words or conduct expressing
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agreement to sexual intercourse be made "at the time of the act of sexual intercourse"­
then we should ascribe the same temporal qualifier to the statute's requirement that lack
of consent be clearly expressed. But if the words or conduct of the victim that we look to
in applying the statute are exactly the same for both "not consent[ing]" and expressing
"lack of consent," there would be no reason for including both requirements. The two
requirements are included because they are two different things. As applied to this case,
the jury was required to find (1) that C.D. did not consent, and (2) (in order to protect a
perpetrator against the possibility of a reasonable misunderstanding) that her lack of
consent was clearly expressed. State v. Guzman, 119 Wash. App. 176, 185, 79 P.3d 990
(2003) (State must show both that victim did not freely agree and that lack of consent was
clearly expressed).
Textually, RCW 9A.44.060 ties only "consent," not "lack of consent" to the
temporally-qualified definition in RCW 9A.44.0 10(7). As written, the statute plainly
does not say when the lack of consent must be clearly expressed. Mr. Mares does not
explain how we justify imposing a requirement of contemporaneity that the legislature
chose not to impose. And when we consider that the underlying purpose of the statutory
requirement that lack of consent be clearly expressed is to avoid criminalizing a
reasonable misunderstanding, it is clear that the substance of the expression can be more
important than its timing. Some expressions of lack of consent, if not recanted, are
timeless: "Don't ever touch me again;" "If you lay a hand on me, I'm calling the cops;"
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No. 32145-2-111
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"I wouldn't have sex with you if you were the last person on Earth." And a statement
three weeks ago that "We are cousins; what you are doing is wrong; it is not okay" says
more about a person's attitude than does a statement a few moments ago that "I don't
know; I'm tired."
We therefore reject Mr. Mares's construction ofRCW 9A.44.060(l)(a) as
including an implicit requirement that a victim's clear expression of lack of consent must
take place at the time of the sexual intercourse.
Turning to Mr. Mares's constitutional challenge for vagueness, Mr. Mares merely
argues, conclusorily, that the statute
is vague because it does not indicate when the lack of consent must be
clearly expressed. It does not indicate whether it can be weeks before, at
the time of the act, or even after the act.
Br. of Appellant at 13. In fact, the statute cannot be read to indicate that the lack of
consent could be expressed after the act, because the criminal act is defined in the present
tense ("engages in sexual intercourse") while notice of the objection is couched in the
past tense (and lack of consent "was clearly expressed"). Such a reading would also be
inconsistent with the purpose of the statute and lead to absurd results.
Mr. Mares offers no authority or argument why reading "lack of consent ...
clearly expressed" to include both past and present "clear expression" makes the statute
vague. To merit consideration, parties are required by the rules of appeal to provide
argument in support of an issue together with citations to legal authority. RAP
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No. 32145-2-III
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lOJ(a)(6). By analogy, we point out that RCW 9A.08.01O(1)(b), the provision of the
criminal code that defines "knowledge" as a level of culpability does not include any
timeframe within which a person must acquire knowledge of a pertinent fact or
information suggesting that fact in order to be culpable. Mr. Mares's vagueness
challenge does not merit further consideration.
As to sufficiency, sufficient evidence supports a conviction if, when viewed
in the light most favorable to the State, it allows any rational trier of fact to find
guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,201,829 P.2d
1068 (1992). On appeal, we draw all reasonable inferences from the evidence in
favor of the State and interpret them most strongly against the defendant. State v.
Hosier, 157 Wn.2d 1,8, 133 PJd 936 (2006). We "must defer to the trier of fact
on issues of conflicting testimony, credibility of witnesses, and the persuasiveness
of the evidence." State v. Thomas, 150 Wash. 2d 821, 874-75, 83 PJd 970 (2004).
Mr. Mares argues that while the testimony showed C.D. rebuffed his advances in
the past, her lack of consent to sexual intercourse on the night of March 15 was not
expressed by words or conduct until the act was already in progress, at which point Mr.
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Mares stopped. 2
The pattern to-convict instruction given to the jury did not require a
contemporaneous objection. It provided in relevant part:
To convict the defendant of the crime of rape in the third degree,
each of the following four elements of the crime must be proved beyond a
reasonable doubt:
(1) That on or between March IS-March 16,2013, the defendant
engaged in sexual intercourse with [C.D.];
(2) That [C.D.] was not married to the defendant;
(3)(a) That [C.D.] did not consent to sexual intercourse with the
defendant and such lack of consent was clearly expressed by words or
conduct; and
(4) That any of these acts occurred in the State of Washington.
CP 12 (Instruction 9); II WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL, 42.02, at 766 (3d ed. 2008).
2 Arguing that actions such as his need not evade punishment, Mr. Mares suggests
that a more appropriate charge might have been rape in the second degree, since second
degree rape can be committed by having sexual intercourse with a victim who is
"incapable of consent by reason of being physically helpless or mentally incapacitated."
Br. of Appellant at 10, citing RCW 9A.44.050(1)(b). He points to State v. Al-Hamdani,
109 Wn. App. 599,608-9,36 P.3d 1103 (2001), in which the court held that a victim's
helplessness or incapacitation can be established by debilitating intoxication. In that
case, the victim was "stumbling, vomiting and passing in and out of consciousness" and
had a blood alcohol content of between .1375 and .21. Id. at 609.
Here, the beverage consumed by C.D. had an alcohol content lower than most
wines (6 percent alcohol by volume); there was no evidence she had difficulty finding her
way to bed; she testified that she had worked a long day and sleeps heavily following
long work days; and upon awakening to the rape, she was able to seize and cock a rifle
and order Mr. Mares to leave. RP at 26,77-78,86-87. On these facts, a charge of second
degree rape might not have been a viable alternative.
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The State's evidence was that CD. had responded to Mr. Mares's advances during
their entire acquaintance consistently: deflecting embraces by pushing away his hands,
telling him that what he was doing was wrong, threatening to take him home and to tell
her aunt and uncle about his conduct, telling him to leave her room, and yelling at him.
This was more than enough evidence from which the jury could find that her lack of
consent to sexual intercourse was clearly expressed by words and conduct.
Affirmed.
The remainder of this opinion has no precedential value. Therefore, it will be filed
for public record in accordance with RCW 2.06.040, the rules governing unpublished
opmlons.
II. Inadequate investigation ofright to mistrial
Mr. Mares's remaining assignment of error is that after the State witness
coordinator hugged C.D. in the presence of the jury, the trial court was required to inquire
into the potential for juror prejudice, and its inquiry needed to include an "investigat[ion]
and develop[ment of! the relevant facts as to any prejudice," it could not "merely
summarily conclude no prejudice occurred as the trial court did." Br. of Appellant at 17.
Mr. Mares relies on cases holding that'" [w]hen a nonfrivolous suggestion is made
that a jury may be biased or tainted by some incident, the [court] must undertake an
adequate inquiry to determine whether the alleged incident occurred and if so, whether it
was prejudicial.'" United States v. Gaston-Brito, 64 F.3d 11, 13 (1st Cir. 1995) (quoting
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No. 32145-2-III
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United States v. Ortiz-Arrigoitia, 996 F.2d 436,442 (1st Cir. 1993)). The only
Washington case that he cites, State v. Murphy, 44 Wash. App. 290, 296, 721 P.2d 30
(1986), dealt with the context in which the issue usually arises, which is juror misconduct
in communicating about the case in contravention of the court's instructions. In Gaston-
Brito, the court reasoned that even where jurors are not accused of misconduct, an issue
ofjuror bias may be analyzed "under the broad rubric ofjuror misconduct" because of
the risk that jurors have been prejudiced by facts not in evidence. 64 F.3d at 12.
Analyzing the issue under that broad rubric, a trial judge has broad discretion to
conduct an investigation ofjury problems and may investigate accusations ofjuror
misconduct in the manner most appropriate for a particular case. State v. Elmore, 155
Wash. 2d 758, 773-75, 123 P.3d 72 (2005); State v. Earl, 142 Wash. App. 768, 775, 177 P.3d
132 (2008). The court need not follow any specific format. State v. Jorden, 103 Wn.
App. 221, 229,11 P.3d 866 (2000).
Here, we see no reason for an inquiry beyond that conducted by the trial court.
The judge did not need to conduct a hearing to find out what had happened; he had seen it
himself. He entertained argument on Mr. Mares's motion for a mistrial. During the
argument, the prosecutor pointed out that there was no indication the jurors even knew
who the witness coordinator was and the court agreed, stating that as far as the jury knew,
the coordinator, "could be a relative, she could be a friend, it doesn't really matter, it was
simply a show of support and-by someone, an unknown individual." RP 80-81.
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The trial court also observed that our Supreme Court had (then) recently held that
a trial court enjoys discretion to allow a witness to have a comfort dog at his side during
testimony over the objection of a criminal defendant that it would bolster the victim's
credibility by presupposing his victimhood. See State v. Dye, 178 Wn.2d 541,555,309
P.3d 1192 (2013). Although that case arose in a different context, we agree with the trial
court that the ongoing presence of a comfort dog for a witness presents a greater potential
for juror empathy than the hug that occurred here. In Dye, the Supreme Court deferred to
the trial court's discretion and concluded that by giving a limiting instruction, the trial
court "largely mitigated" any "minor" prejudice arising from the presence of the comfort
dog. Id. at 557. The trial court offered to instruct here, but Mr. Mares's lawyer declined.
Moreover, Mr. Mares's lawyer declined in terms that, if we were we to find error
(and we don't), amounted to invited error. For presumably strategic reasons that the
court anticipated, he told the court "I would prefer to not mention it any further,"
effectively asking the court not to engage in any inquiry of the jurors of the sort Mr.
Mares now suggests was required. RP at 82. The invited error doctrine prohibits a party
from setting up an error at trial and then complaining of it on appeal. Hymas v. UAP
Distrib., Inc., 167 Wash. App. 136, 148,272 P.3d 889 (2012). It applies when a party
'" takes affirmative and voluntary action that induces the trial court to take an action that
party later challenges on appeaL'" ld. (quoting Lavigne v. Chase, Haskell, Hayes and
Kalmon, PS, 112 Wash. App. 677, 681, 50 P.3d 306 (2002)).
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Because the trial court's limited inquiry was reasonable under the circumstances
as well as invited, we find no abuse of discretion.
Affirmed.
WE CONCUR:
Brown, 1.
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