FILED JULY 23, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 38795-0-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MARCOS A. GUTIERREZ, ) also known as MARCOS ACOSTA, ) ) Appellant. )
PENNELL, J. — Marcos Gutierrez appeals his conviction for second degree rape.
We affirm.
FACTS 1
The victim and her best friend were having a girls’ night together at the victim’s
residence. Over the course of the evening, the victim drank considerable amounts of
alcohol, to the point where she was “very intoxicated.” Rep. of Proc. (RP) (Jan. 11, 2022)
at 46. The victim estimated her level of intoxication was at “a ten.” Id. at 76. In contrast,
her best friend did not drink that much because alcohol makes her sick.
1 Because Mr. Gutierrez raises an evidentiary sufficiency challenge, we construe the facts in the light most favorable to the State. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). No. 38795-0-III State v. Gutierrez
At some point in the evening, the friends invited an acquaintance named Tristian
Hewankorn over to the residence. Mr. Hewankorn joined in the drinking and also became
extremely intoxicated. He intermittently passed out and got sick. Mr. Gutierrez, a friend
of Mr. Hewankorn, was eventually summoned to come pick up Mr. Hewankorn and take
him home.
When Mr. Gutierrez arrived at the residence he went inside. Shortly thereafter, the
victim’s best friend started looking around for the victim and saw the bathroom door was
shut. She went to the door and called out the victim’s name. Hearing no response, she
opened the door and saw Mr. Gutierrez and the victim inside. Mr. Gutierrez’s pants were
halfway down and he was holding the victim by the shoulders while forcibly engaging her
in sexual intercourse. The best friend noticed the victim seemed nearly unconscious, and
was unable to support her head or upper body, as Mr. Gutierrez was propping her torso up
as he raped her.
The best friend screamed and pushed Mr. Gutierrez out of the bathroom. The best
friend summoned police while the victim cried and asked what was happening. The
victim later testified that she had partially blacked out. She remembered going to the
bathroom and sitting on the toilet when Mr. Gutierrez walked in and made remarks about
2 No. 38795-0-III State v. Gutierrez
a tattoo on her leg. The next thing she knew, her best friend barged into the bathroom and
started screaming.
Police were dispatched to the vicinity and detained Mr. Gutierrez. Mr. Gutierrez
denied having sex with the victim and agreed to provide a DNA sample.
Meanwhile, the victim and her best friend went to the hospital where the victim
was treated by emergency room personnel. The victim received an examination and
evidence was also collected for a rape kit. The emergency room nurse prepared a report
noting an abnormal laceration to the victim’s vulva. DNA collected from the victim was
eventually linked to Mr. Gutierrez.
The State charged Mr. Gutierrez under RCW 9A.44.050(1)(b) with second degree
rape, which requires proof that the victim was “incapable of consent by reason of being
physically helpless or mentally incapacitated.” Mr. Gutierrez exercised his right to a jury
trial.
At trial, Mr. Gutierrez no longer denied having sexual intercourse with the victim.
Instead, he raised a defense of consent and his strategy was to impeach the witnesses
regarding the victim’s level of intoxication. While cross-examining the emergency room
nurse, defense counsel asked if there had been a toxicology screen. The nurse responded,
“Most likely there would have been. I don’t have results of labs for her. It would be
3 No. 38795-0-III State v. Gutierrez
typical to collect that, but I don’t have in these notes here medical records showing lab
results.” RP (Jan. 11, 2022) at 111.
Mr. Gutierrez presented testimony from several witnesses, including Tristian
Hewankorn, who testified that the victim was not particularly intoxicated and that she had
seemed romantically interested in Mr. Gutierrez. Mr. Gutierrez testified and claimed the
victim was not intoxicated and that their encounter was consensual. In explaining the
victim’s interest in him, Mr. Gutierrez claimed the victim had called him several times
that night.
During deliberations, the jury submitted two inquiries to the court. First, the jury
asked, “Can we see the urine toxicology report that was sent to [the Sacred Heart Medical
Center] lab?” Clerk’s Papers (CP) at 248. Second, the jury asked, “[Are] there phone
records from [Mr. Gutierrez’s] phone indicating that calls were received from [the
victim’s] phone the date of the incident?” Id. at 249. With the agreement of the
prosecutor and defense counsel, the trial court answered both inquiries by directing the
jury to review the evidence that had been submitted during trial.
The jury returned a guilty verdict. The trial court imposed a standard range
sentence. Mr. Gutierrez timely appealed his conviction.
4 No. 38795-0-III State v. Gutierrez
ANALYSIS
Sufficiency of the evidence
In a criminal case, the State must prove every element of a charged offense beyond
a reasonable doubt. See State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018).
When faced with a sufficiency challenge, we view the evidence and all reasonable
inferences flowing therefrom in the light most favorable to the State, and then ask
whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict Mr. Gutierrez of second degree rape, the State was required to prove
that (1) he engaged in sexual intercourse with the victim and (2) the intercourse “occurred
when [the victim] was incapable of consent by reason of being mentally incapacitated.”
CP at 241. Only the second of these elements was disputed at trial.
Contrary to Mr. Gutierrez’s argument on appeal, the State’s evidence was more
than sufficient to prove incapacitation. The victim’s best friend testified that the victim
was “very intoxicated” on the night of the rape. RP (Jan. 11, 2022) at 46; see also id.
at 54 (Best friend’s testimony: “[The victim] was really drunk. She kept asking what’s
going on.”). The best friend also testified that the victim was so inebriated that she was
incapable of supporting her upper body, so Mr. Gutierrez was propping her up by her
5 No. 38795-0-III State v. Gutierrez
shoulders as he raped her. The victim herself testified that her memory of the rape was
a blur and she had no idea what was going on due to her level of intoxication.
The testimony amply supports a conclusion the victim was mentally incapacitated
at the time of the rape. Mr. Gutierrez claims the victim and her best friend were not
credible, but it is not the province of this court to assess the persuasiveness of trial
testimony. See State v.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED JULY 23, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 38795-0-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MARCOS A. GUTIERREZ, ) also known as MARCOS ACOSTA, ) ) Appellant. )
PENNELL, J. — Marcos Gutierrez appeals his conviction for second degree rape.
We affirm.
FACTS 1
The victim and her best friend were having a girls’ night together at the victim’s
residence. Over the course of the evening, the victim drank considerable amounts of
alcohol, to the point where she was “very intoxicated.” Rep. of Proc. (RP) (Jan. 11, 2022)
at 46. The victim estimated her level of intoxication was at “a ten.” Id. at 76. In contrast,
her best friend did not drink that much because alcohol makes her sick.
1 Because Mr. Gutierrez raises an evidentiary sufficiency challenge, we construe the facts in the light most favorable to the State. See State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). No. 38795-0-III State v. Gutierrez
At some point in the evening, the friends invited an acquaintance named Tristian
Hewankorn over to the residence. Mr. Hewankorn joined in the drinking and also became
extremely intoxicated. He intermittently passed out and got sick. Mr. Gutierrez, a friend
of Mr. Hewankorn, was eventually summoned to come pick up Mr. Hewankorn and take
him home.
When Mr. Gutierrez arrived at the residence he went inside. Shortly thereafter, the
victim’s best friend started looking around for the victim and saw the bathroom door was
shut. She went to the door and called out the victim’s name. Hearing no response, she
opened the door and saw Mr. Gutierrez and the victim inside. Mr. Gutierrez’s pants were
halfway down and he was holding the victim by the shoulders while forcibly engaging her
in sexual intercourse. The best friend noticed the victim seemed nearly unconscious, and
was unable to support her head or upper body, as Mr. Gutierrez was propping her torso up
as he raped her.
The best friend screamed and pushed Mr. Gutierrez out of the bathroom. The best
friend summoned police while the victim cried and asked what was happening. The
victim later testified that she had partially blacked out. She remembered going to the
bathroom and sitting on the toilet when Mr. Gutierrez walked in and made remarks about
2 No. 38795-0-III State v. Gutierrez
a tattoo on her leg. The next thing she knew, her best friend barged into the bathroom and
started screaming.
Police were dispatched to the vicinity and detained Mr. Gutierrez. Mr. Gutierrez
denied having sex with the victim and agreed to provide a DNA sample.
Meanwhile, the victim and her best friend went to the hospital where the victim
was treated by emergency room personnel. The victim received an examination and
evidence was also collected for a rape kit. The emergency room nurse prepared a report
noting an abnormal laceration to the victim’s vulva. DNA collected from the victim was
eventually linked to Mr. Gutierrez.
The State charged Mr. Gutierrez under RCW 9A.44.050(1)(b) with second degree
rape, which requires proof that the victim was “incapable of consent by reason of being
physically helpless or mentally incapacitated.” Mr. Gutierrez exercised his right to a jury
trial.
At trial, Mr. Gutierrez no longer denied having sexual intercourse with the victim.
Instead, he raised a defense of consent and his strategy was to impeach the witnesses
regarding the victim’s level of intoxication. While cross-examining the emergency room
nurse, defense counsel asked if there had been a toxicology screen. The nurse responded,
“Most likely there would have been. I don’t have results of labs for her. It would be
3 No. 38795-0-III State v. Gutierrez
typical to collect that, but I don’t have in these notes here medical records showing lab
results.” RP (Jan. 11, 2022) at 111.
Mr. Gutierrez presented testimony from several witnesses, including Tristian
Hewankorn, who testified that the victim was not particularly intoxicated and that she had
seemed romantically interested in Mr. Gutierrez. Mr. Gutierrez testified and claimed the
victim was not intoxicated and that their encounter was consensual. In explaining the
victim’s interest in him, Mr. Gutierrez claimed the victim had called him several times
that night.
During deliberations, the jury submitted two inquiries to the court. First, the jury
asked, “Can we see the urine toxicology report that was sent to [the Sacred Heart Medical
Center] lab?” Clerk’s Papers (CP) at 248. Second, the jury asked, “[Are] there phone
records from [Mr. Gutierrez’s] phone indicating that calls were received from [the
victim’s] phone the date of the incident?” Id. at 249. With the agreement of the
prosecutor and defense counsel, the trial court answered both inquiries by directing the
jury to review the evidence that had been submitted during trial.
The jury returned a guilty verdict. The trial court imposed a standard range
sentence. Mr. Gutierrez timely appealed his conviction.
4 No. 38795-0-III State v. Gutierrez
ANALYSIS
Sufficiency of the evidence
In a criminal case, the State must prove every element of a charged offense beyond
a reasonable doubt. See State v. Chacon, 192 Wn.2d 545, 549, 431 P.3d 477 (2018).
When faced with a sufficiency challenge, we view the evidence and all reasonable
inferences flowing therefrom in the light most favorable to the State, and then ask
whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict Mr. Gutierrez of second degree rape, the State was required to prove
that (1) he engaged in sexual intercourse with the victim and (2) the intercourse “occurred
when [the victim] was incapable of consent by reason of being mentally incapacitated.”
CP at 241. Only the second of these elements was disputed at trial.
Contrary to Mr. Gutierrez’s argument on appeal, the State’s evidence was more
than sufficient to prove incapacitation. The victim’s best friend testified that the victim
was “very intoxicated” on the night of the rape. RP (Jan. 11, 2022) at 46; see also id.
at 54 (Best friend’s testimony: “[The victim] was really drunk. She kept asking what’s
going on.”). The best friend also testified that the victim was so inebriated that she was
incapable of supporting her upper body, so Mr. Gutierrez was propping her up by her
5 No. 38795-0-III State v. Gutierrez
shoulders as he raped her. The victim herself testified that her memory of the rape was
a blur and she had no idea what was going on due to her level of intoxication.
The testimony amply supports a conclusion the victim was mentally incapacitated
at the time of the rape. Mr. Gutierrez claims the victim and her best friend were not
credible, but it is not the province of this court to assess the persuasiveness of trial
testimony. See State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (“Credibility
determinations are for the trier of fact and are not subject to review.”). Mr. Gutierrez’s
challenge to the sufficiency of the evidence is without merit.
Withholding of exculpatory evidence
Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
the State has an “affirmative duty to disclose evidence favorable to a defendant.” Kyles v.
Whitley, 514 U.S. 419, 432, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). We review Brady
challenges de novo. State v. Davila, 184 Wn.2d 55, 74-75, 357 P.3d 636 (2015). To
establish a Brady violation, a defendant must establish the evidence (1) is favorable to the
accused because it is exculpatory or impeaching, (2) was willfully or inadvertently
suppressed by the State, and (3) is material. Id. at 69. Where a defendant fails to establish
any one of those three components, the Brady claim necessarily fails. State v. Sublett,
6 No. 38795-0-III State v. Gutierrez
156 Wn. App. 160, 200-01, 231 P.3d 231 (2010), aff’d, 176 Wn.2d 58, 292 P.3d 715
(2012) (plurality opinion).
Mr. Gutierrez claims the State violated its obligations under Brady because it did
not produce the victim’s toxicology report. This claim was not raised during trial. The
record is therefore silent as to whether a toxicology report actually exists, whether the
report was suppressed by the State, and whether the report contained information that
might have been exculpatory or impeaching. Given these circumstances, Mr. Gutierrez
cannot satisfy the elements of a Brady claim. See State v. Lazcano, 188 Wn. App. 338,
357, 354 P.3d 233 (2015) (holding a purported constitutional error is not “manifest,” and
thus reviewable for the first time on direct appeal, if “the facts necessary to adjudicate the
claimed error” are not “in the record on appeal”) (citing RAP 2.5(a)(3)). If Mr. Gutierrez
has evidence outside the current record that could support a Brady claim, his remedy is to
raise a challenge in a personal restraint petition. See State v. McFarland, 127 Wn.2d 322,
338, 899 P.2d 1251 (1995).
Assistance of counsel
Criminal defendants are guaranteed effective assistance of counsel by the state and
federal constitutions. See U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. To succeed
on an ineffective assistance claim, a defendant must show (1) trial counsel’s performance
7 No. 38795-0-III State v. Gutierrez
was objectively deficient and (2) prejudice. McFarland, 127 Wn.2d at 334-35. Failure to
meet either prong is dispositive. State v. Berg, 147 Wn. App. 923, 937, 198 P.3d 529
(2008).
Mr. Gutierrez argues his trial counsel performed deficiently by failing to subpoena
cell phone records. This claim fails because Mr. Gutierrez cannot show prejudice on the
current record, which does not include any cell phone records. Thus, we cannot say
whether the records would have been helpful to Mr. Gutierrez. Again, if Mr. Gutierrez
obtains evidence regarding the cell phone records outside the record on review that reveal
them to be exculpatory, his remedy is to raise a challenge in a personal restraint petition.
See McFarland, 127 Wn.2d at 338.
CONCLUSION
The judgment of conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Pennell, J. WE CONCUR:
______________________________ Lawrence-Berrey, C.J. Fearing, J.