FILED APRIL 8, 2021 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STATE OF WASHINGTON, ) No. 37150-6-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MICHAEL NACHO MARTINEZ, ) ) Appellant. )
LAWRENCE-BERREY, J. — Michael Martinez appeals after a jury found him guilty
of four counts of child molestation—one count involving one accuser and the other three
involving a second accuser. One of his most convincing arguments is that he received
ineffective assistance of counsel when defense counsel failed to renew his denied pretrial
motion to sever charges. Had the motion been granted, there would have been two trials,
one for each accuser.
CrR 4.4(a)(2) requires counsel to renew a denied pretrial motion to sever before or
at the close of all the evidence. Failure to renew a denied pretrial motion to sever results
in waiver of any claimed error with respect to that motion. No. 37150-6-III State v. Martinez
Based on the record, we are unable to determine whether defense counsel’s failure
to renew the denied motion was a reasonable strategic decision. Martinez must seek
relief through a personal restraint petition.
But we agree the prosecutor committed misconduct by mischaracterizing one of
the accuser’s testimony and there is a substantial likelihood that this misconduct resulted
in the jury finding the presence of the “ongoing pattern of sexual abuse” aggravator with
respect to counts 3 and 4. We remand for the trial court to vacate those two findings and
for resentencing. We otherwise affirm his convictions.
FACTS
Michael Martinez was born in 1991. He and his family lived in a small 600 square
foot, two-bedroom house. His family consisted of his mother, Dana, his father, Mario,
and his sister, Lilyanna.1 Martinez slept in the living room until around 2006, when he
moved into a trailer in the backyard.
The Martinez family sometimes hosted gatherings where cousins and friends spent
the night in their home. Those overnight guests included H.C. and P.R., Martinez’s
accusers.
1 Because multiple witnesses share the surname Martinez, we refer to those witnesses by their first names. We mean no disrespect.
2 No. 37150-6-III State v. Martinez
H.C. is Martinez’s cousin and was born in 2000. P.R. is the daughter of Dana’s
best friend, Wonvisa Ramirez, and was born in 2004.
In December 2017, H.C. told her mother, Cristina, that Martinez touched her when
she was younger. She said it happened when she spent the night at the Martinez house.
Cristina then told Ms. Ramirez, P.R.’s mother, about H.C.’s allegations. When Ms.
Ramirez asked P.R. if anything happened to her, P.R. started crying. At that point, law
enforcement began its investigation.
Based on H.C.’s accusations of abuse from February 2008 to December 2011, the
State charged Martinez with one count of first degree rape of a child (count 1) and one
count of first degree child molestation (count 2). Based on P.R.’s accusations of abuse
from June 2010 to December 2015, and also on January 1, 2017, the State charged
Martinez with two counts of first degree child molestation (counts 3 and 4) and one count
of second degree child molestation (count 5). The State also alleged the “ongoing pattern
of sexual abuse” aggravator with respect to each count except count 5.
Martinez pleaded not guilty to all counts. Three months prior to trial, he moved to
sever the charges involving H.C. from the charges involving P.R.
3 No. 37150-6-III State v. Martinez
Motion to Sever
At the severance motion hearing, Martinez argued that a trial on five counts
involving two alleged victims would cause the jury to cumulate evidence and infer guilt
in one case based on evidence from the other. The State disagreed, arguing any prejudice
could be mitigated by a limiting instruction.
The court analyzed the four severance factors and denied the motion. For the first
factor—the strength of the State’s evidence on each count—the court stated:
I also note that in the SIR[2] that . . . [Cristina] reported that she had learned that Michael had admitted to abusing H.C. and another female cousin. So there’s some strength there as well if that actually comes into evidence. . . . [I]f in fact that admission does come into evidence—state’s case would be fairly strong at least as to [H.C.]. And then [H.C.] bolsters the other case in her testimony [because she told an officer she saw Martinez abuse P.R. once]. So I think the state’s evidence is fairly strong on these cases.
Report of Proceedings (RP) (May 15, 2019) at 12.
For the second factor—the clarity of the defenses—the court found little likelihood
of confusion because Martinez denied everything.
2 The first document filed by the State in a criminal prosecution is an abbreviated narrative prepared by law enforcement and signed under oath. The narrative supports probable cause, which must be determined at the initial preliminary hearing. The narrative, known as a “Suspect Identification Report,” is colloquially shortened to SIR.
4 No. 37150-6-III State v. Martinez
For the third factor—court instructions to the jury to consider each count
separately—the court noted: “[J]uries—are willing to and capable of following that
instruction and in fact by law are presumed to follow the court’s instructions.”
RP (May 15, 2019) at 13.
For the fourth factor—cross-admissibility of evidence—the court stated: “[T]his is
the one that gives me the most pause, given the—the time frame of these occurrences.”
RP (May 15, 2019) at 13. But it concluded the overlap in time between both victims’
allegations make it mostly “an ongoing thing.” RP (May 15, 2019) at 14. The court
rejected Martinez’s argument that the evidence would be inadmissible under ER 404(b):
[T]he court could allow in these cases evidence of prior molestations or rapes of children under a common scheme or pattern or plan with designing to molest young children due to the marked similarities of the events. Part of the marked similarity of these events are the location, the relationship of the children to—to either—by—blood or by friendship, these are children of either a friend of the mother’s of the defendant or either a relative of the mother’s, I believe, and that’s how they ended up in that household at the time of the events. So, the cross-admissibility is the most bothersome to me, because it does lead the court to consider that there may be an inference of guilt. But when I weigh the inherent prejudice of that to the defendant against the important consideration of judicial economy—And I note that the cross-admissibility of evidence is not . . . an entirely exclusionary factor under the case law, but just one of the factors to consider—I believe that the consideration of judicial economy . . . overrides the inherent prejudice that occurs, that can be overcome by proper instructions to the jury. . . .
RP (May 15, 2019) at 14-15.
5 No. 37150-6-III State v. Martinez
The court concluded: “I don’t believe that the defense has raised the manifest
prejudice that’s necessary under the circumstances sufficient to outweigh the concern for
judicial economy and I’ll deny the motion at this time.” RP (May 15, 2019) at 16. The
court said it expected defense counsel to renew the motion at trial.
Trial
State’s Witnesses
H.C.’s Testimony
H.C. testified that her extended family was “always together” for dinners, holidays,
and birthdays. RP at 291.3 H.C. slept over at Martinez’s house “[a]ll the time” because
she was close to Lilyanna, Martinez’s sister. RP at 293. She always slept with Lilyanna,
usually in her bedroom. Three children often slept in one bed.
H.C. said the first time Martinez touched her, she was around eight years old. She
was sleeping with her sister and Lilyanna, who is about three years older than she is.
Martinez came into Lilyanna’s bedroom and put his fingers inside of H.C.’s vagina.
When H.C.’s sister woke up and asked what was happening, H.C. made up a lie.
Martinez left after H.C.’s sister went back to sleep.
3 “RP” references are to the verbatim report of proceedings of the trial unless otherwise indicated.
6 No. 37150-6-III State v. Martinez
H.C. said the next time it happened was in the Martinez living room. They set up
blankets and pillows on the floor to sleep on. Martinez laid next to H.C. and put his
hands on her vagina. She could not remember how old she was or how much time had
elapsed between the first incident and the second.
H.C. testified that it happened again on Lilyanna’s 15th birthday. This time,
Martinez placed H.C. on top of him while he was sitting on the couch. She said they were
both facing the ceiling but she could feel his body behind her and remembered feeling
“something wet” below her waist. RP at 300. She later testified that she remembered
“seeing white stuff.” RP at 331.
When the prosecutor asked H.C. to talk about another time Martinez touched her,
she said: “He just touched me in the living room. It’s like what I’m telling you he did
every single time. He always touched me when I was sleeping, when it was nighttime,
like it’s all the same.” RP at 302. She continued: “When he moved to the trailer, he still
found himself a way inside the house touching me.” RP at 303. When the State asked
how many times Martinez touched her, H.C. responded, “Probably like 10 or more,” and
“mostly every time I spent the night.” RP at 303, 298. She kept thinking it would stop,
but “[h]e kept doing it every time I went back,” either in Lilyanna’s room or the living
room. RP at 298. She said it stopped when she was 12 or 13 years old.
7 No. 37150-6-III State v. Martinez
H.C. testified that one year or two after Martinez stopped touching her, she saw
him come into the living room where the children were sleeping and touch P.R. H.C. said
P.R. did not open her eyes but was “moving as if having a bad dream or something.”
RP at 305. Martinez laid next to P.R. in the same way he laid next to H.C. H.C. thought
Martinez’s hands were in P.R.’s pants under the blanket.
The prosecutor asked again if H.C. could remember any more specific instances of
touching. H.C. responded: “No. Honestly, it’s all the same. He touched me the same
every single time . . . besides the couch thing . . . it was always at night when everyone
was sleeping.” RP at 310.
On cross-examination, H.C. testified that she stayed at the Martinez home between
20 and 50 times from when she was 8 to 12 years old. She said Martinez abused her each
of those 20 to 50 times.
P.R.’s Testimony
P.R. testified that Martinez started touching her when she was five or six years old.
She could “remember a few times that it happened,” but did not know exactly when it
happened first, other than it was the summer after first grade. RP at 356. She was in
Lilyanna’s room at night, while her mother and brothers were awake in the living room.
8 No. 37150-6-III State v. Martinez
Martinez leaned over her and put his hand on her vagina. P.R. felt the left side of his
body on her right shoulder.
P.R. remembered a time Martinez touched her during the day. She was sitting on
the couch while everyone else was in the kitchen. Martinez put his hand on her vagina
over her clothes. P.R. tried moving off of the couch. She thought this happened after the
incident at night. The following exchange took place:
[THE STATE:] Do you recall any other times Mr. Martinez touched you between those two incidents? [P.R.:] No. [THE STATE:] Do you recall about how many times Mr. Martinez— [P.R.:] All I can remember is three times. [THE STATE:] Did Mr. Martinez only touch you three times or did— [P.R.:] I can only recall— [THE STATE:] Did he touch you more than three times? [THE DEFENSE]: Objection. It’s been answered. THE COURT: The objection is it’s been asked and answered? [THE DEFENSE]: Yes, your Honor. THE COURT: Overruled.
RP at 360.
The State then asked about the third incident P.R. could recall. P.R. said it
happened on New Year’s Eve in 2015 or 2016. Several people were drinking at the house
Martinez and his girlfriend, Gloria Campos, shared. Martinez set up an air mattress in his
9 No. 37150-6-III State v. Martinez
living room for P.R. and her brothers to sleep on. Lilyanna and her boyfriend slept on the
couch in the living room. P.R. said she woke up to Martinez grabbing her breast over her
shirt.
The State again asked if P.R. could “estimate how many times he touched you?”
RP at 364. The court sustained Martinez’s asked-and-answered objection.
Defense
Gloria Campos’s Testimony
Ms. Campos testified that Martinez has been her boyfriend since 2012 and is the
father of their three children. She testified that P.R. had spent the night twice in the house
she shares with Martinez, once on New Year’s Eve.
On that night, everyone went to bed around 1:00 a.m. P.R. and her brothers shared
an air mattress in the living room. Ms. Campos and Martinez slept in their bedroom with
their two young children. Ms. Campos said Martinez did not molest P.R. that night; she
would have woken up if he had gotten out of bed because she is a light sleeper.
Martinez’s Testimony
Martinez testified that Gloria Campos has been his girlfriend since the summer of
2012. They spent every night together—either in the trailer or at Ms. Campos’s house. In
10 No. 37150-6-III State v. Martinez
2013, he permanently moved into Ms. Campos’s house. He denied he did any of the
things H.C. or P.R. described.
Lilyanna’s Testimony
Martinez’s sister, Lilyanna, testified that H.C. attended birthday parties and
barbeques at the Martinez’s home. She said H.C. spent the night “[p]robably once or
twice” and would always sleep with her in her bed or in the living room. RP at 590.
Lilyanna said H.C. was never alone in their house. She said if Martinez entered the house
from where he slept in the trailer, he would have to go through the heavy back door,
which closed loudly. The hinges squeaked and the doorknob would have to be jiggled.
Lilyanna’s bedroom door also squeaked, and she kept her door mostly shut at
night. The living room floor squeaked when stepped on in certain places. Their small
house had thin walls, and Lilyanna is a light sleeper so she could hear everything.
Lilyanna would have woken up if Martinez had entered her bedroom during the night.
Lilyanna testified that P.R. “basically lived” at the Martinez house at one point.
RP at 605. P.R. and her younger brother slept with her in her bedroom. P.R. always slept
by the wall because she would fall off the bed. Lilyanna said P.R. was never alone
because there were always so many people around the house. Lilyanna never saw
Martinez molest P.R.
11 No. 37150-6-III State v. Martinez
When Lilyanna learned of the allegations against her brother, she spoke with him
and their mother. Martinez told Lilyanna about the allegations but said nothing else.
Lilyanna talked to H.C.’s mother, Cristina, but did not discuss her conversation with
Martinez. She said she never told Cristina that Martinez admitted anything.
Dana’s Testimony
Martinez’s mother, Dana, testified that H.C. visited her home under 10 times when
H.C. was between 8 and 12 years old. H.C. spent the night two times and slept with
Lilyanna in her bedroom.
Dana testified that P.R. frequently spent the night at her house and was like a
daughter to her. P.R. was never alone in the house because there were so many people
around.
Lilyanna is older than H.C. and P.R. When either girl spent the night, Lilyanna
always slept on the outside of the bed so the younger girl would not fall off.
Dana is a light sleeper and would check on the children throughout the night. She
slept with her bedroom door open. The family’s dogs barked at everyone, including Dana
and Martinez. She would have woken up if anyone, including Martinez, entered the
house at night. Dana reiterated that neither P.R. nor H.C. was ever alone in her house.
12 No. 37150-6-III State v. Martinez
Dana learned of the allegations against Martinez from Cristina, H.C.’s mother.
Dana told Martinez what Cristina told her the next morning. A few days later, Dana and
Lilyanna went to Cristina’s house. They did not discuss Martinez, but instead discussed
Cristina’s son. Dana said neither she nor Lilyanna said anything about Martinez
admitting the allegations.
After this testimony, the defense rested. Over the defense’s objection, the State
recalled Cristina to the stand for rebuttal.
State’s Rebuttal
Cristina Martinez’s Rebuttal Testimony
Cristina testified that she, Lilyanna, and Dana discussed the allegations against
Martinez in December 2017. Lilyanna came to Cristina’s house to talk, and Dana arrived
shortly thereafter. They had a conversation outside, where Lilyanna said she had spoken
with Martinez. The prosecutor asked, “Did you come to an understanding whether or not
Michael admitted the allegations?” RP at 710. The defense objected based on hearsay,
which the court sustained. The court sent the jury out so the issue could be discussed
further.
The State argued the question went to impeachment because Lilyanna denied
talking about the allegations. The court asked whether ER 613(b), prior inconsistent
13 No. 37150-6-III State v. Martinez
statement of a witness, applied. The State said yes. The defense agreed this was proper
impeachment testimony and requested a limiting instruction:
[T]hat it is not substantive evidence and that the jury may consider it only for the purpose of deciding whether Lilyanna Martinez and Dana Martinez were credible on the matter asserted, namely . . . whether they made statements that my client, Mr. Martinez, ever made any admissions of guilt with respect to these charges.
RP at 712. The court asked whether the limiting instruction would be written or oral, and
the defense said, “[I]t’s an oral instruction for the court to give now in respect to the
testimony.” RP at 713.
The trial court then brought the jury back in and instructed: “You may not consider
the evidence in the form of testimony for any other purpose other than for the purpose of
impeachment of Ms. Lilyanna Martinez and Dana Martinez. It is not to be considered by
you as substantive evidence.” RP at 714.
The State asked what understanding Dana, Lilyanna, and Cristina had come to
after the conversation at Cristina’s house. Cristina answered:
She told me just what—that he admitted to it. Then they said that he was hurt, too, as a young boy by a woman. I asked, who was it? . . . She said, it doesn’t matter. Even though it was a woman, it’s the same effect that the girls felt.
RP at 715.
14 No. 37150-6-III State v. Martinez
The State then asked if Cristina talked to Martinez about the allegations. Cristina
answered: “No, but he texted me. He wanted to speak.” RP at 716. The State’s exhibit
55—the text message from Martinez—was then marked. The message read:
Hey auntie do you think i could talk to you. I’ve be giving you guys space because i wasent sure if you guys wanted to talk yet, but i would really like to talk to you if u would let me and it doesn’t have to be alone if u don’t want. Its just going to be me no-one knows im texting you right now except for gloria. Ive wanted to talk from the beginning but it sound like nobody wanted to or was ready. I love you guys ive always have and i would really like to talk to someone.
Ex. 55. The defense objected five times to the exhibit’s admission for lack of foundation.
Cristina said she had received it after talking with Lilyanna and Dana, it came from
Martinez’s phone, she e-mailed a copy of it to the police, and she did not respond to
Martinez.
The State rested. The defense renewed its motion to dismiss, which the court
denied. The defense recalled Martinez to ask him about exhibit 55. He testified: “It’s a
text message. I was trying to reach out to my aunt so I could talk about this incident and
clear it up.” RP at 739.
15 No. 37150-6-III State v. Martinez
State’s Closing Argument
The prosecutor argued H.C. “talked about [the touching] happening almost every
time she spent the night at her cousin’s . . . about 20 to 50 times.” RP at 758. “It was
constantly the same type of abuse that she was subjected to by the defendant.” RP at 760.
The prosecutor then argued, “[P.R.] knew it started before this first time that she
could remember.” RP at 760-61. And “she talked about how this was going on all the
time. We heard testimony she was spending [the] night at this residence quite frequently.
She was there all the time.” RP at 762. Defense counsel did not object to these
statements.
The prosecutor then discussed the charged aggravator:
[THE STATE]: We also heard evidence that this happened not just once, not just twice, not just three times, but this happened all the time, 20 to 50 times for [H.C.], just as many for [P.R.]. [THE DEFENSE]: Objection, assumes facts not in evidence. THE COURT: Overruled. The jury will rely on their recollection of the testimony.
RP at 766.
Jury Deliberations, Verdict, and Sentencing
During deliberations, the jury sent out a written note: “Jury requests further
explanation of the impeachment of Dana Martinez and Lilyanna Martinez including the
ruling regarding submission of State’s Evidence #55.” Clerk’s Papers (CP) at 25. The
16 No. 37150-6-III State v. Martinez
defense told the court this seemed like two separate issues and the jury was confused, but
stated, “I don’t know that we can give much of an answer other than reread your
instructions or reread Instruction No. 1.” RP at 792. The State agreed. The court
suggested writing an answer to that effect, and the defense said, “Yeah. I’m afraid it
won’t be satisfactory to them. I don’t know what else we can do.” RP at 793. The
court responded: “Please refer to your jury instructions and in particular reread
Instruction No. 1.” CP at 25. Instruction 1 was the lengthy standard instruction to jurors
informing them of their general duties.
The jury acquitted Martinez of rape of a child in the first degree, but found him
guilty of all four counts of child molestation. In addition, it found that the State had
proved the “ongoing pattern of sexual abuse” aggravator with respect to each of the four
molestation counts. Because the State had not charged the aggravator in conjunction with
the second degree molestation count, the court later vacated that aggravator finding. The
court imposed a sentence of 209 months to life. Martinez appealed.
ANALYSIS
Martinez raises four general arguments on appeal: error in not severing the
charges, ineffective assistance of counsel, prosecutorial misconduct, and cumulative
error. We address each in the order raised.
17 No. 37150-6-III State v. Martinez
1. SEVERANCE OF CHARGES
Martinez contends the trial court abused its discretion in denying his motion to
sever the charges involving H.C. from the charges involving P.R. The State argues
Martinez failed to preserve this issue for appeal. We agree with the State.
Although Washington courts often consider severance and joinder together, their
distinctions are relevant here. Joinder permits two or more offenses to be charged
together, with each offense as a separate count, when they are “of the same or similar
character, even if not part of a single scheme or plan.” CrR 4.3(a)(1). Properly joined
offenses “shall be consolidated for trial unless the court orders severance . . . .”
CrR 4.3.1(a).
“‘Severance’ refers to dividing joined offenses into separate charging documents.”
State v. Bluford, 188 Wn.2d 298, 306, 393 P.3d 1219 (2017). A court grants severance
when doing so “will promote a fair determination of the defendant’s guilt or innocence of
each offense.” CrR 4.4(b). In general, a defendant must move for severance pretrial.
CrR 4.4(a)(1). If the pretrial motion is denied, the defendant must renew the motion
before or at the close of evidence to preserve the issue for appeal. CrR 4.4(a)(2). “If the
party does not timely make or renew a severance motion, ‘[s]everance is waived.’”
Bluford, 188 Wn.2d at 306 (alteration in original) (quoting CrR 4.4(a)(1), (2)). The
18 No. 37150-6-III State v. Martinez
purpose behind the rule is to permit the trial court to exercise its discretion when it has a
comprehensive understanding of the facts so it can best weigh the potential prejudice of
having similar counts joined together in one trial.
Waiver
As a preliminary matter, we must determine whether Martinez preserved this claim
of error. Martinez moved to sever the charges before trial. The court denied the motion
but expected him to renew it at the close of evidence, which he did not. The State points
to the plain language of the rule: “Severance is waived by failure to renew the motion.”
CrR 4.4(a)(2).
Martinez responds that his pretrial motion to sever was also an objection to
joinder, which need not be renewed for appeal. See State v. Bryant, 89 Wn. App. 857,
865-66, 950 P.2d 1004 (1998). We disagree. The State filed a single charging document
for all counts and therefore did not move for joinder. The severance rules control here.
See Bluford, 188 Wn.2d at 310 (“[W]here multiple charges are originally brought in a
single charging document, the State has no need to bring a joinder motion to the court. In
that situation, the severance rules . . . are the only means by which a defendant can secure
separate trials on the charged offenses.”). By the clear language of CrR 4.4(a)(2),
Martinez waived this claim of error.
19 No. 37150-6-III State v. Martinez
Martinez argues his counsel was ineffective for failing to renew his severance
motion. We now analyze his severance argument through the lens of an ineffective
assistance of counsel standard.
Ineffective Assistance of Counsel
Martinez contends his counsel’s failure to renew the severance motion at the close
of evidence constitutes ineffective assistance. For purposes of direct review, we disagree.
A defendant claiming ineffective assistance of counsel must show: (1) counsel’s
performance fell below an objective standard of reasonableness, and (2) the deficient
performance prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899
P.2d 1251 (1995) (applying the two pronged test from Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Where a defendant fails to establish
the first prong of ineffective assistance of counsel, we need not address the second prong.
In re Pers. Restraint of Crace, 174 Wn.2d 835, 847, 280 P.3d 1102 (2012); State v.
Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996) (“If either part of the test is not
satisfied, the inquiry need go no further.”).
Defense Counsel’s Reasonableness
We presume counsel’s performance was effective, and Martinez bears the burden
to prove otherwise. State v. Crow, 8 Wn. App. 2d 480, 507, 438 P.3d 541, review denied,
20 No. 37150-6-III State v. Martinez
193 Wn.2d 1038, 449 P.3d 664 (2019). In doing so, he “must show there was no
legitimate strategic or tactical reason for counsel’s action.” State v. Sutherby, 165 Wn.2d
870, 883, 204 P.3d 916 (2009).
Martinez argues his trial counsel had no strategic reason not to “perform what
amounted to the ministerial task of renewing the motion.” Appellant’s Am. Br. at 36. He
argues that the evidence pertaining to each victim was weak, and the State likely could
not have obtained convictions without having both victims bolster each other’s claims in
a single trial.
His argument is fairly strong. With one possible exception, neither accuser
produced a witness to any of the 20 to 50 instances of alleged abuse that occurred in a
very small house with several people around. Also, there was no physical evidence, and
H.C. did not accuse Martinez until years after the alleged events. The accusations made
by P.R. had similar infirmities. Although she testified she was abused on just three
occasions, it is difficult to understand how Martinez could have molested her even three
times without detection. Perhaps the only way a jury could have found Martinez guilty of
any of the counts was for each accuser’s accusations to bolster the other’s accusations.
But there may have been a legitimate strategic reason not to renew the severance
motion. For instance, H.C. testified that Martinez molested her basically every night she
21 No. 37150-6-III State v. Martinez
stayed at the Martinez home. Yet, defense counsel did an excellent job establishing how
unlikely this was, given the extremely small house, the sleeping arrangements with the
young accusers closest to the bedroom wall, and the unlikeliness that Martinez could
molest the two accusers so many times without others knowing. Defense counsel may
have reasonably concluded that winning one trial was easier than winning two trials.
From this record, we cannot decide whether defense counsel’s failure to renew the
motion to sever was a reasonable strategic decision. Martinez’s ineffective assistance of
counsel claim cannot be decided on direct appeal because his argument depends on
evidence outside of this record. He must seek relief through a personal restraint petition.
McFarland, 127 Wn.2d at 335. Because Martinez has failed to establish the first prong of
his ineffective assistance claim, we need not analyze the second prong, prejudice.
2. OTHER INEFFECTIVE ASSISTANCE
Martinez contends his trial counsel was ineffective for failing to properly object to
exhibit 55 and failing to request a written limiting instruction. We address each issue in
turn.
As stated above, to prevail on his ineffective assistance of counsel claim, Martinez
must show both that his counsel’s performance was deficient and that deficiency
22 No. 37150-6-III State v. Martinez
prejudiced his case. Id. at 334-35. We presume counsel’s performance was effective, and
Martinez bears the burden to prove otherwise. Crow, 8 Wn. App. 2d at 507.
Exhibit 55
Martinez first argues his counsel was deficient for failing to properly object to
exhibit 55, the text message he sent to his aunt Cristina, on the grounds that a proper
foundation had not been laid. He contends the court would have excluded the message if
counsel had objected on grounds of relevancy. We disagree.
“To prove that failure to object rendered counsel ineffective, [defendant] must
show that not objecting fell below prevailing professional norms, that the proposed
objection would likely have been sustained, and that the result of the trial would have
been different if the evidence had not been admitted.” In re Pers. Restraint of Davis, 152
Wn.2d 647, 714, 101 P.3d 1 (2004) (footnotes omitted).
The exhibit was admitted after Cristina testified that Lilyanna and Dana told her
Martinez admitted to the abuse. When asked whether she had spoken with Martinez
about the allegations, Cristina said: “No, but he texted me.” RP at 716. Defense counsel
objected to the admission many times for lack of foundation, and the court required
proper authentication before allowing the message into evidence.
23 No. 37150-6-III State v. Martinez
The text message arguably was relevant to show that Martinez knew that his sister
and mother had recently met with his aunt to discuss the molestation accusations.
Although the record is unclear, the message may have been sent soon after the three
women met. If so, Martinez fails to convince us that a “relevancy” objection would have
been sustained.
On the other hand, if the State failed to establish that the text message was sent
soon after the three women met, a relevancy objection may have been sustained. The
message itself was innocuous, it merely showed that Martinez wished to clear himself of
the accusations. In fact, that is what Martinez testified to after his aunt testified. If the
State failed to establish a nexus between the text message and the meeting of the three
women, no prejudice could have resulted from defense counsel’s failure to object on
grounds of relevancy.
Limiting Instruction
Martinez next argues his trial counsel was ineffective for not requesting a written
limiting instruction to help the jury understand the limited purpose for which the court
admitted Cristina’s ER 613(b) testimony. Martinez argues a written limiting instruction
should have been requested either before jury deliberations or after the jury expressed
24 No. 37150-6-III State v. Martinez
confusion during its deliberations about the court’s oral instruction and also about
exhibit 55.4
Recall, Martinez’s mother and sister testified that they met with Cristina but did
not discuss Martinez or any admission. The State recalled Cristina and asked whether she
understood that Martinez had admitted the allegations. Martinez objected, the court sent
the jury out, and the parties agreed Cristina’s answer was admissible under ER 613(b) for
impeachment only. Defense counsel requested the court to issue an oral instruction to
that effect, rather than a written instruction. Later, during deliberations, the jury
expressed confusion about the oral instruction and tied the instruction to the impeachment
testimony and exhibit 55. The court and counsel agreed the jury was confused and likely
misunderstood the oral instruction. With this backdrop, we discuss Martinez’s argument
on appeal that his trial counsel should have proposed a written limiting instruction to
clarify the law for the jury.
Whether to request a limiting instruction is a matter of trial tactics. State v.
Yarbrough, 151 Wn. App. 66, 90, 210 P.3d 1029 (2009). Sometimes a confused jury is a
4 Martinez additionally argues that defense counsel might have drafted a customized instruction weaving the standard limiting instruction language into the facts of the case. Weaving a standard instruction into the facts of a specific case risks commenting on the evidence. We question whether a customized instruction would have been appropriate.
25 No. 37150-6-III State v. Martinez
good thing for a defendant who hopes the State has not proved its case beyond a
reasonable doubt. This is especially true here, where exhibit 55 seems not to bolster the
State’s case, but instead neutralize it. Martinez’s text message to his aunt admitted
nothing. He just wanted to talk with her. If anything, the text message seems to bolster
what Martinez’s mother and sister said—that Martinez had admitted nothing.
We cannot say that defense counsel’s decision not to ask for a written limiting
instruction was an unreasonable tactical decision, given the jury’s confusion. Confusion
could have led to an acquittal or at least a mistrial.
3. PROSECUTORIAL MISCONDUCT DURING CLOSING
Martinez contends the prosecutor committed misconduct during closing argument
by misrepresenting P.R.’s testimony that the abuse happened “all the time,” just as often
as it happened to H.C. and that it started before she could remember. RP at 762. He
argues this conduct warrants reversal of the “pattern of sexual abuse” findings with
respect to P.R. and his convictions. We agree in part.
In closing arguments, prosecutors have wide latitude in presenting their
characterization of the evidence and the inferences the facts suggest. In re Pers. Restraint
of Phelps, 190 Wn.2d 155, 169, 410 P.3d 1142 (2018); State v. Thorgerson, 172 Wn.2d
438, 454, 258 P.3d 43 (2011). To establish prosecutorial misconduct, Martinez must
26 No. 37150-6-III State v. Martinez
demonstrate that the prosecutor’s remarks in closing argument were both improper and
prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). To show
prejudice, a defendant must establish “‘a substantial likelihood [that] the instances of
misconduct affected the jury’s verdict.’” Thorgerson, 172 Wn.2d at 442-43 (alteration in
original) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174,
191, 189 P.3d 126 (2008)). In considering whether prosecutorial misconduct warrants
reversal, we do not view the improper comments in isolation but rather examine them in
the context of the entire case. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551
(2011). We address Martinez’s contentions by dividing the instances into objected-to
comments and unobjected-to comments.
Objected-to Comments
The defense objected to the prosecutor’s comment that the abuse “happened all the
time, 20 to 50 times for [H.C.], just as many for [P.R.].” RP at 766. This statement was
improper; it was not a reasonable inference from the evidence. In fact, P.R. repeatedly
stated she could only remember the three times she described.
It is evident that the jury believed the two accusers. H.C. testified Martinez
molested her 20 to 50 times from when she was 8 until she was 12 or 13. On the other
hand, P.R. could recall only three times Martinez molested her, twice in the Martinez
27 No. 37150-6-III State v. Martinez
house when she was 5 or 6, and once in the house that Martinez shared with his girlfriend
in 2017, when she would have been 13.
With respect to each of the two first degree molestation counts involving P.R., the
State had to prove beyond a reasonable doubt that the charged offense was part of “an
ongoing pattern of sexual abuse of the same victim . . . manifested by multiple incidents
over a prolonged period of time.” RCW 9.94A.535(3)(g). But P.R. testified to only two
instances of molestation when she was under 125—one was charged in count 3 and the
other was charged in count 4. Had the jury relied on P.R.’s testimony rather than the
prosecutor’s mischaracterization of evidence, it could not have found the presence of the
aggravators with respect to count 3 and count 4. We conclude there is a substantial
likelihood that the prosecutor’s mischaracterization of the evidence prejudiced Martinez.
We remand for the trial court to vacate the jury’s special verdict findings with respect to
count 3 and count 4 and to resentence Martinez.
Martinez additionally argues that the prosecutor’s mischaracterization of the
evidence “invited the jury to cumulate evidence—exactly what the jury is not supposed to
do when evaluating charges joined for trial.” Appellant’s Am. Br. at 49. Again, it is
5 Child molestation in the first degree occurs when the victim is less than 12 years old. RCW 9A.44.083.
28 No. 37150-6-III State v. Martinez
evident the jury believed both accusers. We cannot say whether this is because of the
jury’s proper evaluation of the evidence or because of the prosecutor’s
mischaracterization of P.R.’s testimony. For this reason, we cannot say there is a
substantial likelihood that the prosecutor’s misconduct resulted in Martinez’s four
convictions.
Unobjected-to Comments
When a defendant fails to object to an improper comment, the error is waived
unless the remark was so flagrant and ill intentioned as to cause enduring and resulting
prejudice that a curative instruction could not have remedied. State v. Russell, 125 Wn.2d
24, 86, 882 P.2d 747 (1994). Misconduct meets this standard in a narrow set of cases,
where a jury could draw improper inferences from comments on a defendant’s race or
membership of a group or when a prosecutor’s remarks are particularly inflammatory.
Phelps, 190 Wn.2d at 170. We focus less on whether the conduct was flagrant and ill
intentioned and more on whether the prejudice could have been cured with an instruction.
State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012). The test is whether the
misconduct crosses a line that threatens the fundamental fairness of the trial. Phelps, 190
Wn.2d at 171.
29 No. 37150-6-III State v. Martinez
Here, Martinez did not object when the prosecutor said P.R. “knew it started
before this first time that she could remember,” and said “this was going on all the time.”
RP at 760-61, 762. To the extent these unobjected-to remarks are not supported by P.R.’s
testimony, they are not the type of remarks that qualify for review. They do not relate to
race nor are they particularly inflammatory. For this reason, we will not review this claim
of error.
4. CUMULATIVE ERROR
Martinez contends the cumulative effect of the errors outlined above deprived him
of a fair trial. We disagree.
“The cumulative error doctrine applies where a combination of trial errors denies
the accused a fair trial even where any one of the errors, taken individually, may not
justify reversal.” In re Det. of Coe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012). Here, we
have not found any nonprejudicial trial errors. The doctrine of cumulative error does not
apply.
30 No. 37150-6-111 State v. Martinez
Affirm the convictions but remand to vacate two aggravator findings and for
resentencing.
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.
Lawrence-Berrey, J., j WE CONCUR:
Pennell, C.J. JI ~ ' '--. ""'· ~ .....