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.

No. 32 145-2-III

State v. Mares

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 In the unpublished portion, we hold that the trial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 Wn. 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 Wn.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 Wn.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 Wn.2d at

600. Additionally, courts must "construe statutes consistent with their underlying

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purposes while avoiding constitutional deficiencies." State v. Eaton, 168 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d

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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

Wn.2d 171, 182-83, 795 P.2d 693 (1990); State v. Coria, 120 Wn.2d 156, 163,839 P.2d

890, 894 (I 992).

The vagueness doctrine "is limited in two significant ways." City ofSeattle v. Eze,

111 Wn.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 Wn.2d at 163.

Second, because "[s]ome measure of vagueness is inherent in the use oflanguage",

Haley, 117 Wn.2d at 740, courts do not require "absolute agreement" or "impossible

standards of specificity." Watson, 160 Wn.2d at 7 (quoting Coria, 120 Wn.2d at 163).

Thus, "[a] statute is not void for vagueness merely because some terms are not

defined." State v. Harrington, 181 Wn. 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 Wn.2d at 740 (quoting Eze, 111 Wn.2d at 27). "[I]fmen of

ordinary intelligence can understand a penal statute, notwithstanding some possible areas

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of disagreement, it is not wanting in certainty." State v. Maciolek, 101 Wn.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 Wn. 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 Wn. 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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"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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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 Wn.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 Wn. 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

Wn.2d 758, 773-75, 123 P.3d 72 (2005); State v. Earl, 142 Wn. 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 Wn. 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 Wn. 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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