Opinion
65950-2-I
08-13-2012
STATE OF WASHINGTON, Respondent, v. EDUARDO MARTINEZ, Appellant.
UNPUBLISHED OPINION
Ellington, J.
Edward Martinez appeals his conviction and sentence for several offenses involving domestic violence. He argues the court erred by admitting recorded telephone calls he made from jail, by failing to instruct the jury it must be unanimous as to which act supported his conviction for witness tampering, and by including in his offender score his Florida convictions for robbery in the first degree. We reject his arguments and affirm.
BACKGROUND
Martinez and Kelly R. married in 1995 and lived in Florida with their four children. They divorced in 2006, but rekindled their relationship after Martinez moved to Washington. Kelly and the children moved here to join him in 2010.
We use the victim's first name to protect her privacy. No disrespect is intended.
Martinez and Kelly soon began to experience difficulties. Among these was the revelation that Martinez and "Heather, " his other Florida girlfriend, were expecting a baby and Martinez wanted Heather to move to Washington. Heather and Martinez already had a one-year-old son, Joshua, who was living with Martinez.
In February 2010, the conflict between Martinez and Kelly escalated. When the couple's teenage daughter urged them to stop fighting, Martinez gestured as if he would hit her. Kelly warned Martinez not to hit their daughter, to which Martinez replied by grabbing Kelly by the throat and pushing her backwards over a sink.
Martinez left for a while. When he returned, the couple resumed their argument. Again, their daughter yelled at them to stop. Martinez hit the girl in the nose. When Kelly tried to intervene, Martinez grabbed her by the throat, pushing her against the wall. Martinez squeezed so hard Kelly could not breathe and thought she would be choked to death.
Martinez left again, and returned with the rest of the children. The entire family then started out for Martinez's sister's house in Martinez's truck. Martinez, Kelly, Joshua and another of the children were in the truck cab; the rest of the children rode unsecured in the truck bed. Martinez accelerated and slowed so that the children were tossed about. As Martinez and Kelly continued to argue, the teenage daughter banged on the window and told them to stop. In response, Martinez slammed on the brakes, causing the children to hurtle towards the front of the truck. Martinez then ordered everyone but Joshua out of the truck and abandoned them on the side of the road.
The State charged Martinez with one count of second degree assault, one count of fourth degree assault, and one count of reckless endangerment. The State further alleged that all counts involved domestic violence and that the second degree assault occurred within sight or sound of a minor child.
The court issued a no-contact order prohibiting Martinez from contacting Kelly and the children while the case was pending. Martinez nonetheless called Kelly from the jail to convince her not to cooperate with the prosecutor. He also called Heather and asked her to persuade Kelly not to testify. The State amended the information to add one count of tampering with a witness and one count of violation of a court order.
The jury acquitted Martinez of reckless endangerment, but found him guilty of all other charges.
DISCUSSION
In support of the witness tampering charge, the State introduced evidence of three calls Martinez made from jail. Two of the calls were to his girlfriend Heather. In the first, Martinez gave Heather his lawyer's phone number and urged her to tell Kelly to tell him "that she's not gonna cooperate with that stuff[, ] . . . that . . . prosecutor." He indicated that if Kelly withheld her cooperation, "[T]hey'll drop the damn charges and I'll walk the fuck up outta here." In the second call, Martinez told Heather he "came up with a plan." He said Heather should tell Kelly that she was "done with" Martinez.Heather said she had already done that, and thought Kelly would "drop it." Martinez then said, "Well if she is[, ] she needs to go back to Florida if she will." Later, Martinez warned, "[S]he can't . . . cooperate with that stupid . . . prosecutor though at all. No more interviews or nothing like that." When Heather said Kelly did not know what to say to the lawyer, Martinez explained, "[A]ll she has to do is call him and be like she's not gonna go to court, she's not cooperat[ing]." Martinez later called Kelly directly to ask if she was "going to court."
We requested, and the parties provided, supplemental briefing on the sufficiency of the evidence of witness tampering because of a discrepancy between the charging period on the information and the to-convict jury instruction. Whereas the information charged that Martinez tampered with a witness "during a period of time intervening between March 19, 2010 and March 25, 2010, " Clerk's Papers at 8, the jury was instructed to convict if it found Martinez tampered with a witness "on or about February 26, 2010." Clerk's Papers at 78. Because time was not a material element of the charge or defense, we are satisfied that evidence that Martinez engaged in a course of witness tampering in March 2010 was sufficient to show that the crime occurred "on or about" February 26, 2010. State v. Hayes, 81 Wn.App. 425, 432-33, 914 P.2d 788 (1996) ("[W]here time is not a material element of the charged crime, the language 'on or about' is sufficient to admit proof of the act at any time within the statute of limitations, so long as there is no defense of alibi.").
Ex. 23 at 4.
Id.
Id. at 7.
Id.
Id.
Id.
Id. at 9.
Id.
Id. at 11.
Because the State produced evidence of three different calls and did not specify which call the jury should rely on to convict, Martinez argues he was entitled to a Petrich instruction requiring the jury to unanimously agree on the specific criminal act that supported the witness tampering charge.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
Although Martinez did not raise the issue of a unanimity instruction before the trial court, he may raise it for the first time on appeal as it concerns an alleged manifest constitutional error. State v. Bobenhouse, 166 Wn.2d 881, 892 n.4, 214 P.3d 907 (2009).
Where the State presents evidence of a "continuing course of conduct" rather than several distinct criminal acts, a Petrich instruction is not required. To determine whether criminal conduct constitutes one continuing act, we must evaluate the facts in a "commonsense manner." Although evidence of conduct at different times and places tends to show several distinct acts, evidence that the defendant engaged "in a series of actions intended to secure the same objective supports the characterization of those actions as a continuing course of conduct rather than several distinct acts."
Petrich, 101 Wn.2d at 571.
Id.
State v. Fiallo-Lopez, 78 Wn.App. 717, 724, 899 P.2d 1294 (1995).
Here, the State charged Martinez with tampering with a witness "based on a series of acts" that occurred "during a period of time intervening between March 19, 2010 and March 25, 2010." In closing argument, the prosecutor argued Martinez tampered with a witness when on "March 19th he made two calls and then March 25th he made that one call to . . . Kelly."
Clerk's Papers at 8.
Report of Proceedings (July 19, 2010) at 480.
Thus, the State proceeded at all times on the theory that the three calls evidenced a continuing course of conduct with the same objective: to keep Kelly from testifying. A Petrich instruction was not required.
Martinez next contends the court erred by admitting the recordings of his phone calls from jail. Evidentiary rulings are reviewed for abuse of discretion. Martinez argues the State failed to establish the chain of custody of the compact discs on which the recordings were burned.
State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
Establishing the chain of custody is necessary where evidence is not readily identifiable and is susceptible to alteration. In such cases, the proponent must establish a chain of custody "'with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.'" But when evidence is unique and readily identifiable, it may be identified by a witness who can state the item is what it purports to be. The recorded phone calls are "unique and readily identifiable." Kelly's testimony identifying Martinez as the caller and herself and Heather as the recipients was sufficient to identify the recordings as what they purported to be.
State v. Roche, 114 Wn.App. 424, 436, 59 P.3d 682 (2002) (emphasis omitted) (quoting United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989)).
Id.
See ER 901(b)(5) ("Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording" may be authenticated or identified "by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.").
Further, even if a chain of custody was required, the State provided one. Sergeant Catey Hicks testified that all inmate calls at King County jail are automatically recorded onto hard drives. When law enforcement officers request recordings, they provide the phone number and a date range. Hicks or her partner, Sergeant Pierson, burn all of the calls made to that phone number onto a compact disk and provide it, a phone log, and a "classification sheet" that lists where the inmates have been housed.
Although it was Sergeant Pierson rather than Sergeant Hicks who burned the compact disk in this case, Hicks' testimony is sufficient to "render it improbable that the original item has either been exchanged with another or been contaminated or tampered with." To the extent Pierson's failure to testify calls the chain of custody into question, the discrepancy was minor and went to the weight of the evidence, not its admissibility.
Roche, 114 Wn.App. at 436.
Martinez does not argue that Pierson's absence deprived him of his Sixth Amendment rights to confrontation and cross-examination.
Finally, Martinez challenges his offender score, contending the State failed to prove that two convictions for armed robbery in Florida were comparable to a Washington crime.
The State must prove the offender score at sentencing. Where the State alleges that criminal history includes felony convictions from another state, it must prove by a preponderance of the evidence both the existence and comparability of those convictions.
State v. Ammons, 105 Wn.2d 175, 186, 713 P.2d 719, 718 P.2d 796 (1986).
RCW 9.94A.525(3); State v. Ford, 137 Wn.2d 472, 482, 973 P.2d 452 (1999).
To determine whether a foreign conviction is comparable to a Washington felony, the court uses a two-part test. The first question is whether the elements of the foreign offense are substantially similar to the Washington offense. If so, the foreign conviction counts toward the offender score. If the elements of the foreign offense are broader, the court must then determine whether the offense is factually comparable; i.e., whether the conduct underlying the foreign offense would have violated the comparable Washington statute.
In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005).
Id.
Id.
At the time of Martinez's crime, Florida defined "robbery" as follows:
(1) "Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony in the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(3)(a) An act shall be deemed "in the course of committing the robbery" if it occurs in an attempt to commit robbery or in flight after the attempt or commission.
(b) An act shall be deemed "in the course of the taking" if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.
Fla. Stat. § 812.13 (1992).
Washington law provides:
A person commits robbery when he unlawfully takes personal property from the person of another or in his or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking.
A person is guilty of robbery in the first degree in Washington if "in the commission of a robbery or of immediate flight therefrom, he or she: (i) [i]s armed with a deadly weapon; or (ii) [d]isplays what appears to be a firearm or other deadly weapon; or (c) [i]nflicts bodily injury."
Martinez first argues Florida's statute is broader because Florida allows conviction if a forceful act is committed "subsequent to the taking, " whereas Washington law requires that the defendant take property by means of the "threatened use of immediate force, violence, or fear of injury." But Washington's statute expressly provides that a person commits robbery by using force or fear to "obtain or retain possession of the property." In both Washington and Florida, a robbery conviction may be based on force used to retain property immediately following the taking.
Compare Fla. Stat. § 812.13(3)(b), with RCW 9A.56.190.
RCW 9A.56.190 (emphasis added).
State v. Manchester, 57 Wn.App. 765, 770, 790 P.2d 217 (1990).
Martinez also argues that Florida's intent to steal element is broader than Washington's because it includes the intent to "temporarily deprive" a person of his or her money or property. He contends that Washington law requires the intent to permanently deprive. He is mistaken. Intent to permanently deprive is not an element of the crime of robbery.
See State v. Komok, 113 Wn.2d 810, 816-17, 783 P.2d 1061 (1989).
Because the elements of first degree robbery in Florida and Washington are legally comparable, the court did not err in including Martinez's Florida convictions in his offender score.
Affirmed.