Il II FILED JUNE 21, 2016 Il In the Office of the Clerk of Court
!i WA State Court of Appeals, Division Ill
! I I ' IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON I DIVISION THREE
STATE OF WASHINGTON, ) ) No. 33109-1-111 Respondent, ) ) V. ) ) MARIAH. HERNANDEZ MARTINEZ, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, C.J. - Maria Hernandez Martinez appeals her convictions of arson in
the first degree, making a misleading statement to a public servant, and filing a false
insurance claim. The State cross appeals the trial court's dismissal of a perjury charge.
We affirm.
FACTS
Maria Hernandez Martinez purchased a Foremost Insurance Company policy, with
an effective date of August 9, 2012, insuring her Moses Lake mobile home. Farmers
Insurance Company owns Foremost Insurance and the latter company specializes in
coverage for mobile homes. I j I !
II No. 33109-1-III State v. Hernandez Martinez
'l I On the morning of August 29, 2012, Maria Martinez's mobile home caught fire.
The fire likely began in or near a window air conditioning unit in the home's family
room. The fire was a low heat burn. We do not know when or who first noticed the fire
or when or who notified firefighters of the fire. Firefighters extinguished the fire by 9:15
a.m., on August 29. Martinez and her children left their residence at 6:30 a.m., on
August 29, to travel to Spokane for a 9:30 a.m. doctor's appointment.
At 8:15 a.m., on August 29, Grant County Chief Deputy Fire Marshal Bruce
Gribble learned of the Hernandez Martinez mobile home fire. Gribble arrived at the
mobile home at 9: 15 a.m. Gribble entered the home. He found no residue from burned
cash on the home's living room couch. He saw no television in the master bedroom.
In early September 2012, Jonathan Hull, a Farmers Insurance Company adjuster,
met with Maria Martinez at the latter's Moses Lake mobile home. Hull directed Martinez
to complete an inventory of property damaged or destroyed by the August 29 fire. Hull
assisted by writing the list of property on a four-page undated and unsigned claim form.
Martinez claimed that two televisions were lost or damaged in the fire and the claim form
listed the televisions on the first page. Martinez claimed one television sat in the family
room and one in her bedroom at the time of the fire.
During her first meeting with Jonathan Hull, Maria Hernandez Martinez did not
mention the loss of any cash. A day or two later, Martinez notified Hull that the fire
2 No. 33109-1-111 State v. Hernandez Martinez
destroyed $3,800 in cash that lay on or near the living room couch at the time of the fire.
On September 7, 2012, adjuster Jonathan Hull prepared an eighteen-page contents
valuation report. The report listed a loss of two televisions and $3,800 in cash. The
valuation report totaled the cash value of the loss as $22,343.66. No one signed the
contents valuation report.
Barry Kerth, a fire investigator hired by Foremost Insurance Company, examined
Maria Martinez's mobile home on September 3, 2012 and September 8, 2012. On
September 3, he saw no televisions in the home; on September 8, he noticed two sets
inside the mobile home. Kerth observed no damage to the televisions. When
investigating the fire on September 3, Barry Kerth identified an irregular bum pattern on
a table outside the mobile home, but near a window where some of the fire escaped the
home. The window had held the air conditioner that likely was the source of the fire. We
do not know if the table was inside at the time of the fire.
When Barry Kerth examined the table on September 3, the air conditioner rested
thereon. The bum pattern signaled the earlier presence of an ignitable liquid. Kerth
observed an electrical outlet inside the home and near the air conditioner's window. The
outlet contained no evidence of a melted electrical plug such that Kerth concluded no
appliance was plugged into the outlet at the time of the fire.
f i No. 33109-1-111 State v. Hernandez Martinez
During his second inspection of the mobile home on September 8, 2012, Barry
Kerth moved a severely burned couch, resting in the family room near the origin of the
fire, to search for cash residue. He found no residue. On relocating the couch, Kerth did
not smell any accelerants, but, after sifting through debris on the floor, he smelled a
strong odor of accelerants. Based on the smell, he recommended to Foremost Insurance
Company that it bring an accelerant detection dog to the mobile home.
Dog handler Eileen Porter, at the request of Foremost Insurance Company,
investigated the fire with an accelerant dog. The dog detected accelerants at four
locations on Maria Martinez's property, one inside the home and three outside the
residence. Porter collected samples from each location. While investigating, Porter took
photographs, including a picture of a gas can in front of another trailer located on the
Martinez property. Scientist Dale Mann analyzed the samples collected by Porter and
found the presence of automotive gasoline in all samples.
On September 25, 2012, Grant County Sheriff Deputy Jon Melvin and Fire
Marshal Bruce Gribble interviewed Maria Martinez at the county sheriff station for many
hours. During the interview, Martinez, through an interpreter, claimed that two
televisions and $3,800 burned in the fire. Deputy Melvin wrote notes from Martinez's
answers to questions and placed the notes on a six-page document entitled "Written
Statement." Ex. 48. On the completion of the interview, the translator translated the
4 No. 33109-1-111 State v. Hernandez Martinez
statement for Martinez, and Martinez signed the document. The statement contained
language, above Martinez's signature, stating that she signed under penalty of perjury.
On September 25, 2012, Bruce Gribble found, in the unburned trailer on Maria
Martinez's property, boxes of jewelry. During trial, Leovigildo Mendoza Flores, the
father of Maria Martinez's children, identified the jewelry as belonging to Martinez.
According to Flores, Martinez usually stored her jewelry in the mobile home in which
she resided.
In 2012, Maria Martinez supported three children on an income of $660 a month.
She monthly paid $500 on the mortgage. She possessed a working cell phone.
Martinez's mobile home previously suffered a fire on May 1, 2009.
PROCEDURE
The State of Washington charged Maria Hernandez Martinez with arson in the
first degree, perjury in the second degree, and filing a false insurance claim for property
exceeding $1,500. The State alleged alternate theories for the first degree arson charge:
(1) a damaged dwelling, and (2) insurance fraud in an amount exceeding $10,000.
During trial, the State sought to admit as exhibit 46, the photo of the gas can taken
by Eileen Porter. The trial court admitted the exhibit over the objection of Maria
Martinez.
Maria Martinez moved to dismiss both the arson and perjury charges at the close
5 I \ I! No. 33109-1-111 State v. Hernandez Martinez
of the State's case and at the end of trial. The trial court denied the motion to dismiss at I II the close of the State's case. The court, at the conclusion of trial, denied the motion to ' dismiss the arson charge, but granted the motion to dismiss the perjury charge. The trial
court reasoned that the oath found above Maria Martinez's signature on the written
statement given to law enforcement was not authorized or required by law. Thus, the
State could not sustain perjury charges. The trial court instead instructed the jury on a
lesser included crime of making a false or misleading statement to a public servant.
The jury found Maria Martinez guilty of arson in the first degree, making a false
or misleading statement to a public servant, and filing a false insurance claim. Special
verdict form 1 directed the jury to place a checkmark next to the ground or grounds on
which it found Martinez guilty of first degree arson. The verdict form read:
We, the jury, having found the defendant guilty of the crime of arson in the first degree, unanimously find the defendant committed the arson knowingly and maliciously to: (check any or all that apply) [ ] 2(a) cause a fire or explosion which damages a dwelling; [ ] 2(b) cause a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds. [ ] None of the arson first degree elements 2(a) or 2(b) were found unanimously.
Clerk's Papers at 108. The jury did not enter any checkmark on special verdict form 1,
although the jury foreperson signed the form. The trial court imposed a $500 victim
assessment fee, a $200 criminal filing fee, and a $100 deoxyribonucleic acid (DNA)
collection fee. 6 No. 33109-1-III State v. Hernandez Martinez
LAW AND ANALYSIS
On appeal, Maria Hernandez Martinez contends the trial court erred in admitting,
as an exhibit, the photograph of the gas can in front of her other trailer. Martinez also
challenges the sufficiency of the evidence to convict her of arson and the failure of the
trial court to require jury unanimity with regard to the alternative means of committing
first degree arson. Finally, she contests the imposition oflegal financial obligations. The
State cross appeals the trial court's dismissal, at the close of the trial, of the perjury
charge. We affirm the trial court's evidentiary ruling, the convictions of Maria Martinez,
and the imposition of financial obligations. We decline entertainment of the State's cross
appeal.
Gas Can Photograph
Maria Martinez argues that the trial court erred by admitting a picture that showed
a gas can on her property and in front of the second trailer. In the alternative, she
contends that, if relevant, the evidence was more prejudicial than probative. This court
reviews evidentiary rulings for manifest abuse of discretion. State v. Russell, 125 Wn.2d
24, 78, 882 P.2d 747 (1994). The trial court abuses its discretion only when no
reasonable person would have decided the issue as the trial court did. State v. Rice, 110
Wn.2d 577, 600, 757 P.2d 889 (1988).
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the
7 No. 33109-1-111 State v. Hernandez Martinez
action more probable or less probable than it would be without the evidence.
ER 401. Relevance is a very low bar. Mut. of Enumclaw Ins. Co. v. Gregg
Roofing, Inc., 178 Wn. App. 702,729,315 P.3d 1143 (2013). Even minimally
relevant evidence is admissible. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d
1189 (2002). Relevancy means a logical relation between evidence and the fact to
be established. State v. Whalan, 1 Wn. App. 785, 791, 464 P.2d 730 (1970).
In an arson case, the presence of a gas can near the scene possesses relevance.
The relevance increases when an expert opines at trial that someone used gasoline to
accelerate the fire. Maria Martinez emphasizes that Eileen Porter took the photograph
after the fire, no evidence tied Martinez to the can other than its presence on her property,
the State presented no testimony that the can contained gasoline, and the State never
investigated the role the gas can might have played in the fire. Martinez's criticisms of
the importance of the gas can is well taken, but goes to the weight, not admissibility, of
the photograph.
Maria Hernandez Martinez also contends that the picture was substantially more
prejudicial than it was probative.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
8 No. 33109-1-111 State v. Hernandez Martinez
ER 403. A danger of unfair prejudice exists when evidence is likely to stimulate an
emotional response rather than a rational decision. State v. Beadle, 173 Wn.2d 97, 120,
265 P.3d 863 (2011); State v. Barry, 184 Wn. App. 790, 801, 339 P.3d 200 (2014). The
burden of demonstrating unfair prejudice is on the party seeking to exclude the evidence.
State v. Burkins, 94 Wn. App. 677, 692, 973 P.2d 15 (1999).
When administering ER 403, we recognize that nearly all evidence worth offering
in a contested case will prejudice one side or the other. Carson v. Fine, 123 Wn.2d 206,
224, 867 P.2d 610 (1994). Evidence is not rendered inadmissible under ER 403 just
because it may be prejudicial. Carson v. Fine, 123 Wn.2d at 224. Under ER 403, the
court is not concerned with this ordinary prejudice. Carson v. Fine, 123 Wn.2d at 224.
Because of the trial court's considerable discretion in administering ER 403, reversible
error is found only in the exceptional circumstance of a manifest abuse of discretion.
State v. Gould, 58 Wn. App. 175, 180, 791 P.2d 569 (1990).
Maria Hernandez Martinez argues that the gas can picture improperly allowed the
jury to speculate. Nevertheless, as reasoned by the trial court, a picture of a gas can is not
likely to elicit an emotional response. The picture may posit little probative value, but it
also creates little prejudicial effect. The trial court did not abuse its discretion in
admitting the photograph as an exhibit.
9 No. 33109-1-III State v. Hernandez Martinez
Sufficiency of Evidence
Maria Hernandez Martinez challenges the sufficiency of the evidence to convict
her of arson. She underscores that the State presented no evidence that she set or assisted
in setting the fire.
Evidence is sufficient if a rational trier of fact could find each element of the crime
beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).
Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.
App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor
of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). Only the trier
of fact weighs the evidence and judges the credibility of witnesses. State v. Carver, 113
Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
The jury convicted Maria Hernandez Martinez of first degree arson under RCW
9A.48.020. The statute declares, in part:
( 1) A person is guilty of arson in the first degree if he or she knowingly and maliciously: ... (b) Causes a fire or explosion which damages a dwelling; or . . . (d) Causes a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds.
The absence of direct evidence is no bar to conviction in an arson case. State v.
Evans, 32 Wn.2d 278,280,201 P.2d 513 (1949); State v. McLain, 43 Wash. 267,269, 86
P. 390 (1906); State v. Deaver, 6 Wn. App. 216,218,491 P.2d 1363 (1971). The verdict
10 II No. 33109-1-111 State v. Hernandez Martinez
i must stand if substantial evidence supports it, even though that evidence might not be the
I I most convincing kind. State v. Despain, 152 Wash. 488, 491, 278 P. 173 (1929); State v.
Deaver, 6 Wn. App. at 218. Arson is a crime most often proved by circumstantial I evidence. State v. Plewak, 46 Wn. App. 757, 764-65, 732 P.2d 999 (1987).
I I The Washington Supreme Court places a high premium on "convincing proof of I i
motive" in arson cases including interest in the collection of insurance. State v. Pfeuller,
167 Wash. 485, 490, 9 P.2d 785 (1932). In Pfeuller, the Supreme Court reversed Fred
Pfeuller's conviction for arson in the second degree. Evidence established that Pfeuller's
shoes were wet and muddy and another pair of shoes, which appeared to belong to the
arsonist, echoed Pfeuller's shoe size. No evidence showed a feud or monetary motive for
Pfeuller to set the fire. The state high court stated that, when evidence of motive is
lacking and the remainder of the evidence is circumstantial, the court is less likely to find
the evidence sufficient.
The State relies on two cases to argue that the evidence is sufficient: State v.
Clark, 78 Wn. App. 471, 898 P.2d 854 (1995) and State v. Wood, 44 Wn. App. 139, 721
P .2d 541 (1986). In Clark, the State charged Garith Clark with first degree arson for a
fire at his office. This court reversed the trial court because of the exclusion of relevant
evidence exculpatory to Clark, but remanded for a new trial because of sufficient
evidence to convict. At trial, the State presented evidence of arson and testimony that
11 No. 33109-1-111 State v. Hernandez Martinez
II I Clark filed an insurance claim for the fire loss. Clark conceded that he had reached the
maximum amount on his credit cards and his business was slow. Clark entered his office
I during the night of the fire and removed a fish tank.
In State v. Wood, the jury found Clara Wood guilty of first degree arson. The
I State presented evidence that fire destroyed a vacant home owned by Wood. Wood
rested in Reno at the time of the fire. An investigation showed arson. Witness Charles I Blinkenderfer saw a suspicious silver Toyota parked on the street near the home and later I a man running from the vacant home. Blinkenderfer chased the man. Fire Marshal
Richard Carman researched the Toyota license plate submitted by Blinkenderfer and
found that David Curtindale owned the vehicle. Blinkenderfer picked Curtindale out of a
line up as the man he chased. Curtindale was Wood's brother. Wood submitted a claim
for loss to her insurance. The State discovered that Wood telephoned Curtindale multiple
times before the fire. This court held that sufficient evidence supported Wood's arson
conviction.
We hold that the State provided sufficient evidence to support Maria Martinez's
conviction. The State presented evidence of Martinez's financial need. The State
presented evidence that Martinez had a motive to collect insurance proceeds. The
evidence about motive is arguably stronger than in State v. Clark because the State
showed that Martinez purchased insurance on her mobile home weeks before the fire and
12 No. 33109-1-111 State v. Hernandez Martinez
she forwarded a claim for fire loss on the policy. Martinez sustained loss in a fire in 2009
and received insurance proceeds to cover those losses. Martinez removed jewelry and
may have removed television sets from the home before the fire.
Jury Unanimity
Maria Hernandez Martinez also argues that the trial court improperly instructed
the jury regarding a unanimous verdict. The State argues that there was adequate
evidence to support either of the alternative circumstances charged. Therefore, no error
occurred. We agree with the State.
While jury unanimity as to the underlying crime is required, there is no such
unanimity requirement for alternative circumstances. State v. Flowers, 30 Wn. App. 718,
722-23, 637 P.2d 1009 (1981). A conviction of a crime with alternate means of
committing may be affirmed if the alternative ways are not repugnant to each other and
substantial evidence supports a conviction on each of the alternative means. State v.
Richardson, 24 Wn. App. 302, 304, 600 P.2d 696 (1979). The first prong is satisfied so
long as proof of one does not disprove the other. Richardson, 24 Wn. App. at 305. The
second prong is satisfied if there is sufficient evidence from which the trier of fact can
reasonably infer the existence of a fact. Richardson, 24 Wn. App. at 305.
Maria Martinez's jury convicted her of first degree arson. The State charged two
alternate circumstances: fire that damaged a dwelling or fire set for insurance proceeds.
RCW 9A.48.020(l)(b), (l)(d). The alternate means are not antagonistic to one another.
An arson may both bum a dwelling and bum property worth more than $10,000 in order
to receive insurance proceeds.
Testimony and exhibits showed that Maria Martinez and at least three of her
children lived in the mobile home that burned. The insurance documents admitted in
evidence established that the mobile home and its contents exceeded $10,000 in value.
Martinez filed an insurance claim. A reasonable trier of fact could find the mobile home
was a dwelling and that property worth more than $10,000 was set on fire in order to
receive insurance proceeds.
Legal Financial Obligations
Maria Hernandez Martinez contends that the trial court erroneously imposed a
$200 criminal filing fee as a financial obligation without considering, under RCW
10.01.160(3), her financial resources. Martinez, who did not object to the imposition of
these costs at sentencing, argues that she may raise this issue for the first time on appeal,
citing State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).
The record does not show that the trial court inquired into Maria Martinez's ability
to pay legal financial obligations. Nevertheless, the criminal filing fee is a mandatory,
not discretionary, obligation. State v. Lundy, 176 Wn. App. 96, 110, 308 P.3d 755
14 No. 33109-1-III State v. Hernandez Martinez
(2013); State v. Clark, 191 Wn. App. 369, 374, 362 P.2d 309 (2015). Despite the lack of
inquiry into Martinez's financial capability, we affirm the imposition of the obligation.
Cross Appeal
The State of Washington challenges the trial court's dismissal of the perjury
charge at the close of the case. The State mentions that dismissal as a matter of law after
jeopardy attaches unfairly precludes the State from challenging a legal ruling of the trial
court.
The Rules of Appellate Procedure curtail the State's ability to appeal decisions in
criminal prosecutions. RAP 2.2 declares:
(b) Appeal by State or a Local Government in Criminal Case. Except as provided in section (c), the State or a local government may appeal in a criminal case only from the following superior court decisions and only if the appeal will not place the defendant in double jeopardy: (1) Final Decision, Except Not Guilty. A decision that in effect abates, discontinues, or determines the case other than by a judgment or verdict of not guilty, including but not limited to a decision setting aside, quashing, or dismissing an indictment or information, or a decision granting a motion to dismiss under CrR 8.3(c). (2) Pretrial Order Suppressing Evidence. A pretrial order suppressing evidence, if the trial court expressly finds that the practical effect of the order is to terminate the case.
(6) Sentence in Criminal Case. A sentence in a criminal case that (A) is outside the standard range for the offense, (B) the state or local government believes involves a miscalculation of the standard range, (C) includes provisions that are unauthorized by law, or (D) omits a provision that is required by law.
RAP 2.2 (emphasis added) (boldface and italics omitted).
15 No. 33109-1-111 State v. Hernandez Martinez
RAP 2.2(b) articulates that the State may only appeal if the appeal will not subject
the defendant to double jeopardy. As a general rule, if the trial court weighed the
evidence in entering an order terminating the prosecution, the prohibition against double
jeopardy precludes a retrial. 12 ROYCE A. FERGUSON, JR., WASHINGTON: PRACTICE,
CRIMINAL PRACTICE & PROCEDURE§ 2110, at 474 (3d ed. 2004). "It makes no
difference that the ruling of the court may have resulted from an erroneous interpretation
of governing legal principles. Such an error affects the accuracy of a determination, but
it does not alter its essential character as a judgment of acquittal." State v. Bundy, 21 Wn.
App. 697, 702-03, 587 P.2d 562 (1978).
The State concedes that jeopardy attached to Maria Martinez's prosecution, and
thus it cannot appeal the judgment dismissing the perjury charge. The State astutely
claims it is appealing the process used to dismiss the charge, not the dismissal itself.
Nevertheless, RAP 2.2 offers a comprehensive list of rulings or orders the State can
appeal. Use of a procedure is not listed. We discern no practical difference between
appealing the dismissal procedure and the end result of the procedure. Therefore, we
refuse to entertain the cross appeal.
16 No. 33109-1-111 State v. Hernandez Martinez
CONCLUSION
We affirm Maria Hernandez Martinez's convictions for arson, a misleading
statement, and filing a false insurance claim. We also affirm the imposition of legal
financial obligations on Martinez. We deny review of the State's cross appeal.
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.
Fearii~ ,-::f- WE CONCUR:
~~- ' Siddoway, J. . Pennell, J.