UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE DOMINGON MONTAR-MORALES, CASE NO. C19-1811 MJP Petitioner, ORDER ADOPTING REPORT AND RECOMMENDATION v. Respondent. THIS MATTER comes before the Court on Petitioner Domingon Montar-Morales’s Objections (Dkt. No. 23) to the Report and Recommendation of the Honorable Michelle L. Peterson, United States Magistrate Judge (Dkt. No. 18). Having reviewed the Report and Recommendation, the Objections, and all related papers, the Court ADOPTS the Report and Recommendation and DISMISSES this matter with prejudice. Background Petitioner is in custody under a state court judgment and sentence entered by the Skagit County Superior Court for his convictions for rape of a child in the second degree, residential burglary in the second degree, theft in the second degree, and theft in the third degree. (Dkt. No. 8, Ex. 1 at 2-14.) The factual and procedural backgrounds underlying Petitioner’s conviction are set forth in detail in the Report and Recommendation, but relevant here is the Report and Recommendation’s citation to the Washington Supreme Court’s holding on the sufficiency of the
identity evidence linking petitioner to the child rape: Mr. Montar-Morales also challenges the sufficiency of the evidence that he was the one who committed the child rape. But the acting chief judge applied the proper standard, viewing the evidence in the light most favorable to the State and determining whether in that light any rational trier of fact could have found beyond a reasonable doubt that Mr. Montar-Morales committed the crime. In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 93, 66 P.3d 606 (2003). Although the victim was assaulted from behind and did not see the offender’s face, Mr. Montar- Morales was present in the apartment on the night in question, he was the only one in the apartment who was up and awake when the crime occurred, and he subsequently approached the victim and tried to tell her something she could not hear before she told anyone what had happened.
(Dkt. No. 18 at 17 (citing Dkt. No. 8 (“Rec.”), Ex. 15, at 549-50).) Magistrate Judge Peterson found that the Washington Supreme Court reasonably determined that the identity evidence admitted at trial was sufficient to prove beyond a reasonable doubt that Petitioner was the one who committed the child rape. (Dkt. No. 18 at 18.) Although Petitioner’s amended habeas petition challenged his conviction on a number of grounds, his Objections focus solely on his contention that there was insufficient evidence to prove his identity beyond a reasonable doubt for the crime of child rape. (Dkt. No. 13 at 18; Dkt. No. 23.) Discussion I. Legal Standards Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the Magistrate Judge’s Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). As noted in the Report and Recommendation, the Constitution forbids the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship,
397 U.S. 358, 364 (1970). When evaluating a claim of insufficiency of the evidence to support a conviction, the reviewing court must decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990). Review of the record is sharply limited, and the Court owes great deference to the trier of fact. Wright v. West, 505 U.S. 277, 296-97 (1992). On habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge merely because the federal court disagrees—the federal court may do so only if the state court decision was “objectively unreasonable.” Coleman v.
Johnson, 566 U.S. 650, 651 (2012) (per curiam) (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)). The Court gives the finder of fact “broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.’” Id. at 655 (quoting Jackson, 443 U.S. at 319). Furthermore, an additional layer of deference is added to this standard of review by 28 U.S.C. § 2254(d), which requires petitioner to demonstrate the state court’s adjudication entailed an unreasonable application of the Jackson standard. Emery v. Clark, 604 F.3d 1102, 1111 n.7 (9th Cir. 2010) (citing Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005)). //
II. Sufficiency of the Evidence In Washington, “It is axiomatic in criminal trials that the prosecution bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense.” State v. Hill, 83 Wash. 2d 558, 560 (1974). “Identity involves a question of fact
for the jury and any relevant fact, either direct or circumstantial, which would convince or tend to convince a person of ordinary judgment, in carrying on his everyday affairs, of the identity of a person should be received and evaluated.” Id. Here, Magistrate Judge Peterson concluded that the following evidence elicited at trial was sufficient to support Petitioner’s conviction: (1) Petitioner was in the apartment; (2) Petitioner was the only one awake when the rape occurred; and (3) Petitioner approached the victim and tried to say something to her that she could not hear before she told anyone what happened. (Dkt. No. 18 at 17 (citing Rec., Ex. 15, at 549-50; Rec., Ex. 18 at 194-98).) Moreover, the other males in the apartment at the time all testified to, or were identified by the victim and others, as being asleep before and after the rape occurred. (Dkt. No. 18 (citing Rec., Ex. 18 at 162-63, 197, 228, 233-34; Rec., Ex. 19 at 341-42, 361.).)
Petitioner now objects that this evidence is insufficient under State v. Tilton, 149 Wash. 2d 775 (2003), a case Petitioner describes as “factually identical” to the one at bar. In Tilton, the molestation victim, J.L, and perpetrator, Tilton, both asserted at trial that Tilton was asleep during the molestation. Id. at 786. But a second witness who came upon Tilton immediately after the molestation described him as “kind of relaxed” but not necessarily asleep, and a detective reported that J.L. said Tilton had spoken to him during the molestation, telling him not to tell another child who was also in the house. Id. at 786. The Court finds that Tilton does not support Petitioner’s argument. First, the element of the crime at issue in Tilton was whether there was sexual contact for the purpose of sexual
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE DOMINGON MONTAR-MORALES, CASE NO. C19-1811 MJP Petitioner, ORDER ADOPTING REPORT AND RECOMMENDATION v. Respondent. THIS MATTER comes before the Court on Petitioner Domingon Montar-Morales’s Objections (Dkt. No. 23) to the Report and Recommendation of the Honorable Michelle L. Peterson, United States Magistrate Judge (Dkt. No. 18). Having reviewed the Report and Recommendation, the Objections, and all related papers, the Court ADOPTS the Report and Recommendation and DISMISSES this matter with prejudice. Background Petitioner is in custody under a state court judgment and sentence entered by the Skagit County Superior Court for his convictions for rape of a child in the second degree, residential burglary in the second degree, theft in the second degree, and theft in the third degree. (Dkt. No. 8, Ex. 1 at 2-14.) The factual and procedural backgrounds underlying Petitioner’s conviction are set forth in detail in the Report and Recommendation, but relevant here is the Report and Recommendation’s citation to the Washington Supreme Court’s holding on the sufficiency of the
identity evidence linking petitioner to the child rape: Mr. Montar-Morales also challenges the sufficiency of the evidence that he was the one who committed the child rape. But the acting chief judge applied the proper standard, viewing the evidence in the light most favorable to the State and determining whether in that light any rational trier of fact could have found beyond a reasonable doubt that Mr. Montar-Morales committed the crime. In re Pers. Restraint of Tortorelli, 149 Wn.2d 82, 93, 66 P.3d 606 (2003). Although the victim was assaulted from behind and did not see the offender’s face, Mr. Montar- Morales was present in the apartment on the night in question, he was the only one in the apartment who was up and awake when the crime occurred, and he subsequently approached the victim and tried to tell her something she could not hear before she told anyone what had happened.
(Dkt. No. 18 at 17 (citing Dkt. No. 8 (“Rec.”), Ex. 15, at 549-50).) Magistrate Judge Peterson found that the Washington Supreme Court reasonably determined that the identity evidence admitted at trial was sufficient to prove beyond a reasonable doubt that Petitioner was the one who committed the child rape. (Dkt. No. 18 at 18.) Although Petitioner’s amended habeas petition challenged his conviction on a number of grounds, his Objections focus solely on his contention that there was insufficient evidence to prove his identity beyond a reasonable doubt for the crime of child rape. (Dkt. No. 13 at 18; Dkt. No. 23.) Discussion I. Legal Standards Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the Magistrate Judge’s Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). As noted in the Report and Recommendation, the Constitution forbids the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship,
397 U.S. 358, 364 (1970). When evaluating a claim of insufficiency of the evidence to support a conviction, the reviewing court must decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990). Review of the record is sharply limited, and the Court owes great deference to the trier of fact. Wright v. West, 505 U.S. 277, 296-97 (1992). On habeas review, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge merely because the federal court disagrees—the federal court may do so only if the state court decision was “objectively unreasonable.” Coleman v.
Johnson, 566 U.S. 650, 651 (2012) (per curiam) (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011)). The Court gives the finder of fact “broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts.’” Id. at 655 (quoting Jackson, 443 U.S. at 319). Furthermore, an additional layer of deference is added to this standard of review by 28 U.S.C. § 2254(d), which requires petitioner to demonstrate the state court’s adjudication entailed an unreasonable application of the Jackson standard. Emery v. Clark, 604 F.3d 1102, 1111 n.7 (9th Cir. 2010) (citing Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005)). //
II. Sufficiency of the Evidence In Washington, “It is axiomatic in criminal trials that the prosecution bears the burden of establishing beyond a reasonable doubt the identity of the accused as the person who committed the offense.” State v. Hill, 83 Wash. 2d 558, 560 (1974). “Identity involves a question of fact
for the jury and any relevant fact, either direct or circumstantial, which would convince or tend to convince a person of ordinary judgment, in carrying on his everyday affairs, of the identity of a person should be received and evaluated.” Id. Here, Magistrate Judge Peterson concluded that the following evidence elicited at trial was sufficient to support Petitioner’s conviction: (1) Petitioner was in the apartment; (2) Petitioner was the only one awake when the rape occurred; and (3) Petitioner approached the victim and tried to say something to her that she could not hear before she told anyone what happened. (Dkt. No. 18 at 17 (citing Rec., Ex. 15, at 549-50; Rec., Ex. 18 at 194-98).) Moreover, the other males in the apartment at the time all testified to, or were identified by the victim and others, as being asleep before and after the rape occurred. (Dkt. No. 18 (citing Rec., Ex. 18 at 162-63, 197, 228, 233-34; Rec., Ex. 19 at 341-42, 361.).)
Petitioner now objects that this evidence is insufficient under State v. Tilton, 149 Wash. 2d 775 (2003), a case Petitioner describes as “factually identical” to the one at bar. In Tilton, the molestation victim, J.L, and perpetrator, Tilton, both asserted at trial that Tilton was asleep during the molestation. Id. at 786. But a second witness who came upon Tilton immediately after the molestation described him as “kind of relaxed” but not necessarily asleep, and a detective reported that J.L. said Tilton had spoken to him during the molestation, telling him not to tell another child who was also in the house. Id. at 786. The Court finds that Tilton does not support Petitioner’s argument. First, the element of the crime at issue in Tilton was whether there was sexual contact for the purpose of sexual
gratification, not the identity of the perpetrator, as here. Id. Second, the Washington Supreme Court, articulating the same legal standard applicable here—“[t]aking as true the State’s evidence and drawing all reasonable inferences in the State’s favor”—found that there was sufficient evidence to support the trial judge’s conclusion that Tilton was guilty. Id.
The State’s evidence in this case demonstrated that the rape occurred when Petitioner was the only one awake in the apartment, there was no evidence anyone else entered the apartment, and Petitioner approached the victim after the rape and tried to tell her something before she told anyone what had happened, and therefore a rational finder of fact viewing this evidence in the light most favorable to the prosecution could reasonably conclude Petitioner committed the offense. The Court therefore ADOPTS the Report and Recommendation and DENIES Petitioner’s amended habeas petition. And because Petitioner failed to make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(3), the Court concludes that a certificate of appealability is DENIED as to all claims. Conclusion
In sum, the Court finds and ORDERS: (1) The Report and Recommendation is adopted; (2) Petitioner’s amended habeas petition is DENIED and this action is DISMISSED with prejudice; and (3) A certificate of appealability is DENIED as to all claims. // // // //
The clerk is ordered to provide copies of this order to Petitioner and all counsel. Dated October 28, 2020.
A Marsha J. Pechman United States Senior District Judge