        IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

  STATE OF WASHINGTON,
                                                           No. 77776-9-I
                             Respond elit,
                                                           DIVISION ONE
                   V.
                                                           UNPUBLISHED OPINION
  SIMON ORTIZ MARTINEZ,

                             Appellant.                    FILED: July 1, 2019


            ANDRUS, J.   —    Simon Ortiz Martinez1 challenges his conviction for first

degree child rape, arguing the trial court erred in admitting statements the victim

made to friends and her mother under the “fact of the complaint” hearsay

exception. He also challenges several community custody sentencing conditions.

We affirm Martinez’s conviction, and affirm in part and reverse in part the

challenged community custody conditions.

                                                 FACTS

        On April 26, 2017, the State charged Martinez with one count of first degree

child rape,2 alleging that between July 22, 2009 and July 21, 2012, Martinez had

sexual intercourse with his biological daughter, Y.M., who was born July 22, 2000.




        1 There is some question as to whether Appellant’s name is Simon Martinez Ortiz or Simon
Ortiz Martinez. While the judgment and sentence refers to him as Ortiz Martinez, at trial, parties
referred to him as Martinez Ortiz. And when he testified, he identified himself as Simon Martinez.
Thus, we refer to him as Martinez throughout the opinion.
        2 RCW 9A.44.073.
No. 77776-9-1/2

         The State sought to introduce the testimony of four witnesses—two of

Y M ‘s friends, the mother of one of her friends, and Y M ‘s mother—to confirm that

Y M had reported being raped The State argued this evidence was admissible

under the “hue and cry” or “fact of the complaint” exception to the hearsay rule

Martinez moved to exclude this testimony, arguing Y M ‘s disclosures were not

made until June and November 2014, two years after the end of the 2012 charging

period, and the “fact of the complaint” exception did not apply to such untimely

disclosures     The State contended that because Martinez continuously abused

Y M starting at the age of 5 until she left home at age of 14, her disclosures were

timely

         The trial court ruled the statements were admissible It reasoned

                 Historically also the {d]octrine required that the complaint be
         timely        But this timeliness requirement was changed in 1949 in
         a case called State v Murley           So essentially my read of Murley
         is that it dispensed with the six month, or any particular time limit on
         that

                So since Murley, evidence focuses mainly on the credibility of
         the complaining victim, and the timeliness of the complaint is no
         longer a predicate fact that must be proved before admission of the
         complaint So after Murley,     there’s no timeliness requirement, so
         to speak.

         While discussing ER 404(b) objections to instances of abuse pre-dating the

charging period, the court sought clarification from the State as to whether the “fact

of the complaint” statements Y M made related to rapes that occurred during the

charging period or sometime thereafter As a part of its ER 404(b) offer of proof,

the State provided the court with a transcript of Y M ‘s child forensic interview from

March 2016, a police report from the Marshalltown, Iowa police which summarized



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No. 77776-9-1/3

her forensic interview testimony, and a copy of Y M ‘s medical records The State

indicated that while Martinez’s abuse continued until 2014, it sought to admit only

those acts of sexual abuse that had occurred before—but not after—the charging

period under ER 404(b)        The State clarified that the “fact of the complaint”

testimony was not specific to any particular incident of rape, but related to

“everything that’s happened throughout her life

       Based on this clarification, the trial court ruled that the witnesses could

testify that Y M had reported being raped, but they could not recount any

statements Y M may have made about the duration of the abuse, the dates of any

abuse, or the identity of the reported abuser

       At trial, Y M testified that Martinez first started abusing her when she was

five years old when he touched her vagina Y M also testified that her father forced

her to rub his penis with her hands Y M recounted an incident when Martinez spit

on his hands and wiped the spit on his penis and on her vagina, and tried to insert

his penis into her vagina Because it hurt “really bad,” she “kept telling him to stop”

Y M testified that over time her father’s inappropriate touching became a daily

occurrence and that sexual intercourse occurred at least every other week After

Y M began menstruating when she was 11 or 12 years old, her father began using

condoms during intercourse

      Y M recounted how Martinez brought her pets and suggested he would

purchase other pets for her if she continued to do as he asked Y M also testified

that her father often told her that if she ever told anybody about what was

happening, he would “get in really big trouble.”



                                             3
No. 77776-9-114

       To corroborate Y M ‘s version of events, the State elicited testimony from

Y M that Martinez was not circumcised            Martinez stipulated that he is not

circumcised, and the court read this stipulation to the jury As the State indicated

prior to trial, it did not elicit any evidence from Y M regarding sexual abuse or

intercourse that occurred after her 12th birthday

       A T a high school friend, testified that in June 2014, Y M told her she had
           ,




been molested and raped A T told Y M that if she did not tell her mother about

being raped, she would tell her own mother about it

      That night, Y M told her mother, Ramona Rios, that she had been raped by

Martinez   Rios made Y M confront her father with the story        Martinez denied

Y M ‘s accusations Rios, in shock over the allegations, fled into the woods, where

she remained for hours Y M locked herself in the bathroom holding a gun until

Martinez demanded she return the gun to him Rios chose not to take Y M to the

police or to a hospital because Y M did not want the family torn apart and wanted

to keep the abuse secret

      After this confrontation, Y M felt things became very tense around the

house Rios admitted she did not want Y M to be alone with Martinez Y M began

to run away from home in October and November 2014, because she “felt like a

burden at the house” after telling her mother about being raped by her father

      Another one of Y M ‘s high school friends, C R testified that Y M stayed
                                                         ,




with her over Thanksgiving in November 2014 And at that time, Y M told C R

that she “had been raped   “   C R ‘s mother, Melissa John, testified that a week or

two after Thanksgiving, C R asked her if she would pick Y M up from an



                                             4
No. 77776-9-1/5

apartment complex because Y M had nowhere to stay that night Y M told John

that “she had been   .   .   .   abused and that she didn’t want to go home.”

       Martinez testified in his defense and denied that he had ever had sexual

relations with his daughter.

       The jury found Martinez guilty as charged The trial court sentenced him to

an indeterminate sentence of confinement—123 months to life                The sentence

included standard and special conditions for community custody related to sex

offenses, pursuant to RCW 9.94A.703 and RCW 9.94A.704. Martinez appeals.

                                               ANALYSIS

       A Hearsay Statements

       Martinez argues the trial court erred in admitting Y M ‘s out-of-court

statements to third-party witnesses under the “fact of the complaint” hearsay

exception We review a trial court’s interpretation of an evidentiary rule de novo

as a question of law and review the decision to admit evidence for an abuse of

discretion   State v Gunderson, 181 Wn 2d 916, 921-22, 337 P 3d 1090 (2014)

An abuse of discretion occurs when a trial court’s decision is manifestly

unreasonable or based on untenable grounds or reasons, such as a

misconstruction of a rule. k~. at 922.

       Martinez first argues that the “fact of the complaint” rule is not a valid

exception to the hearsay rule because it is not found in the rules of evidence

The rule, derived from the ancient doctrine of “hue and cry,” is a case law exception

to the hearsay rule, which allows the State to introduce evidence in sex offense

cases that the victim made a timely complaint to someone after being assaulted.



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No. 77776-9-1/6

Statev. Murley, 35 Wn.2d 233, 236-37, 212 P.2d 801 (1949); Statev. Chenoweth,

188 Wn App 521, 532, 354 P 3d 13 (2015)           Under the rule, the trial court may

admit evidence that a victim reported that he or she was sexually assaulted, raped,

or molested    State v Ferguson, 100 Wn 2d 131, 135-36, 667 P 2d 68 (1983)

Evidence of the details of the complaint, including the identity of the offender and

the nature of the act, are not admissible Id

       The hue and cry rule was originally based on the antiquated notion that “a

female naturally complains promptly of offensive sex liberties upon her person”

Murley, 35 Wn 2d at 237      Courts now recognize there are many reasons why a

victim may wait to report a sexual assault       See e q   ,   State v Graham, 59 Wn

App 418, 421-25, 798 P 2d 314 (1990) (affirmed admissibility of expert witness

testimony that delay by young women in reporting sexual abuse is not uncommon)

And the hue and cry exception appears to have largely been replaced in favor of

specific evidentiary rules   See e ci, State v Makela, 66 Wn App 164, 172-74,

831 P 2d 1109 (1992) (no error to admit testimony from three witnesses to whom

victim reported rape under ER 801 (d)(1)(ii)), State v Wilson, 60 Wn App 887,

889-91, 808 P 2d 754 (1991) (evidence of prior assaults on wife admissible under

ER 404(b) to explain wife’s delay in reporting sexual abuse and to rebut implication

that molestation did not occur)       But our Supreme Court has nevertheless

expressly held that the “fact of the complaint” hearsay exception remains good law

See eq ,Ferquson, lOOWn 2d at 144 Trialcourts are required to follow Supreme

Court precedent See Marriage of Snider, 6 Wn App 2d 310, 315, 430 P 3d 726

(2018) (under vertical stare decisis, courts are required to follow decisions handed



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No. 77776-9-117

down by higher courts in same jurisdiction). Thus, the trial court did not err in

evaluating the State’s proffered evidence under the “fact of the complaint”

exception

       Martinez next argues the trial court erred in admitting Y M ‘s out-of-court

statements because they were not timely as required by the exception The trial

court appears to have concluded that Murley dispensed with the timeliness

requirement     But the Supreme Court has reiterated the timeliness requirement

since Murley In Ferguson, the Supreme Court stated that “[t]he rule admits only

such evidence as will establish that the complaint was timely made” 100 Wn 2d

at 135-36, see also Chenoweth, 188 Wn App at 532-33 (rejecting State’s

argument that timeliness is no longer required)        The trial court thus erred in

concluding that a showing of timeliness is unnecessary

      This court, however, can affirm an evidentiary ruling on any ground

supported by the record      State v Powell, 126 Wn 2d 244, 259, 893 P 2d 615

(1995), Spencer v Badgley Mullins Turner PLLC, 6 Wn App 2d 762, 785, 432

P 3d 821 (2018), review denied, 438 P 3d 119 (Wash 2019)

       In this case, the State presented evidence to the trial court to establish that

Y.M. reported that her father was raping her while the sexual abuse was still

ongoing     Before trial, the State’s offer of proof included evidence that Y M told

law enforcement that Martinez continued to abuse her until she left the family home

in December 2014. The trial court recounted on the record that the State had

presented evidence that even after Y.M.’s disclosure to A.T. and Rios in June

2014, the rapes continued “largely unabated until December 2014.” Thus, the



                                             7
No. 77776-9-1/8

record supports a determination that Y.M.’s complaints in June and November

2014 were timely because they occurred while she was still being abused

       Although the State did not elicit evidence at trial that Martinez continued to

rape Y M throughout 2013 and 2014, the trial court’s admissibility ruling was not

based on trial evidence but instead on the State’s pretrial offer of proof ER 104(a)

provides that preliminary questions regarding the admissibility of evidence must

be made by the court outside the presence of the jury The rules of evidence do

not apply when the trial court is making an admissibility determination, and the

court may consider evidence that would be inadmissible at trial       ER 1101(c)(1),

State v Jones, 50 Wn App 709, 712, 750 P 2d 281 (1988) When we evaluate

the trial court’s admissibility decisions, we review the evidence presented to the

court when the court rendered its admissibility decision, not the evidence ultimately

admitted at trial   See Jones, 50 Wn App at 712           The State’s offer of proof

established the admissibility of the evidence See State v Kilgore, 147 Wn 2d 288,

293, 53 P 3d 974 (2002)

       Martinez next argues that to be admissible, Y M ‘s complaint had to have

occurred during the charging period But he cites no authority for this proposition

Here, the State chose to charge Martinez with first degree child rape To convict

Martinez of first degree child rape, the jury had to find the rape occurred before

Y M ‘s 12th birthday See RCW 9A 44 073 (“A person is guilty of rape of a child in

the first degree when the person has sexual intercourse with another who is less

than twelve years old     .“).   As a result, the charging period ended before Y.M.’s




                                               8
No. 77776-9-119

12th birthday on July 22, 2012 The charging period had nothing to do with the

date on which Martinez ceased his sexual molestation of Y M

       Once the State established that Y M ‘s reports were timely, any delay in her

reporting the abuse became a credibility issue for the jury State v Fleming, 27

Wn App 952, 957, 621 P 2d 779 (1980) (“The complaint is admitted as bearing

on the credibility of the complainant   “),   see also State v Thomas, 52 Wn 2d 255,

257, 324 P 2d 821 (1958) Martinez’s defense was that Y M completely fabricated

the charge against him Martinez had the opportunity to cross-examine Y M and

to ask her why she did not report her father’s rape until 2014 Martinez also had

ample opportunity to cast doubt on Y M ‘s credibility through testimony from her

mother Based on the record before us, we conclude the trial court did not abuse

its discretion in admitting fact of the complaint testimony               Thus, we affirm

Martinez’s conviction for first degree child rape

       B Community Custody Conditions

       Martinez also challenges several of the community custody conditions

imposed at sentencing Community custody conditions are reviewed for an abuse

of discretion and will only be reversed if they are manifestly unreasonable State

v Nguyen, 191 Wn 2d 671, 678, 425 P 3d 847 (2018) “A trial court’s imposition

of an unconstitutional condition is manifestly unreasonable      “   ki

          I      Crime Related Conditions

       Martinez challenges the following community custody conditions as not

crime related.

       5. Inform the supervising CCO and sexual deviancy treatment
       provider of any dating relationship.  Sexual contact in a
                                                     .   .   .




                                                 9
No. 77776-9-1110

         relationship is prohibited until the treatment provider approves of
         such

         6 Obtain prior permission of the supervising   CCO before changing
         work location

         9 Do not enter sex-related businesses, including x-rated movies,
         adult bookstores, strip clubs, and any location where the primary
         source of business is related to sexually explicit material

         10 Do not possess, use, access or view any sexually explicit material
         as defined by RCW 9 68 130 or erotic materials as defined by RCW
         9 68 050 or any material depicting any person engaged in sexually
         explicit conduct as defined by RCW 9 68A 011(4) unless given prior
         approval by your sexual deviancy provider

         As a condition of community custody, a sentencing court may, in its

discretion, impose ‘any crime-related prohibitions”        ROW 9 94A 703(3)(f)       A

“crime-related prohibition” is defined as “an order of a court prohibiting conduct that

directly relates to the circumstances of the crime for which the offender has been

convicted   “   ROW 9 94A 030(10) There is no abuse of discretion if a “reasonable

relationship” exists between the crime of conviction and community custody

condition Nguyen, 191 Wn 2d at 684 (quoting State v Irwin, 191 Wn App 644,

658-59, 364 P 3d 830 (2015))       “The prohibited conduct need not be identical to

the crime of conviction, but there must be ‘some basis for the connection        “




(quoting Irwin, 191 Wn App at 657) “So long as it is reasonable to conclude that

there is a sufficient connection between the prohibition and the crime of conviction,

we will not disturb the sentencing court’s community custody conditions” jçj at

685-86




                                             10
No. 77776-9-I/Il

                Notice of Dating Relationship (Condition 5)

        The sentencing court did not abuse its discretion when ordering that

Martinez notify his CCO of any dating relationship              The sentencing court has

discretion to order an offender to refrain from “direct or indirect contact with the

victim of the crime or a specified class of individuals” RCW 9 94A 703(3)(b)

Martinez was convicted of raping his minor daughter, with whom he lived with her

mother The condition is reasonably crime related to protect other minor children

if Martinez ever dates someone who has minor children ~ See State v Kinzle, 181

Wn App 774, 785, 326 P 3d 870 (2014) (holding that sentencing court did not

abuse its discretion to prohibit Kinzle from dating women with minor children or

forming relationships with families with minor children because he was convicted

of molesting children with whom he came into contact due to a social relationship

with their parents)     This condition furthers the State’s essential need to protect

children    Thus, it is crime related, and the sentencing court did not abuse its

discretion by imposing the condition ~

                Prohibition on Sexual Contact (Condition 5)

        Martinez also challenges the prohibition on “[sjexual contact in a

relationship” without prior approval of a CCO or treatment provider                The State

concedes that the prohibition is not related to his crime           We accept the State’s




       ~ Martinez also argues this condition is unconstitutionally vague The Supreme Court held
otherwise in Nguyen 191 Wn 2d at 683
        ~ Martinez relies on State v Moultrie 143 Wn App 387 177 P 3d 776 (2008) to argue the
dating relationship notice requirement is not crime related But Moultrie was a vagueness and
overbreadth challenge to the condition that he not have contact with vulnerable ill or disabled
adults jçL at 396 The case did not analyze the dating relationship condition


                                                  11
No. 77776-9-1/12

concession and remand for the sentencing court to strike that prohibition from

Condition 5

              Permission to Change Work Location (Condition 6)

       Next, Martinez argues that Condition 6, requiring him to obtain prior

permission of the supervising CCC before changing work location, is not crime-

related Where a condition is authorized by statute, it need not be crime related

See State v Acevedo, 159 Wn App 221, 234, 248 P 3d 526 (2010)                RCW

9 94A 703(2)(b) provides that “[u]nless waived by the court, as part of any term of

community custody, the court shall order an offender to      [w]ork at department-

approved      employment” The sentencing court did not waive this standard

condition, and Martinez does not challenge it     Thus, Condition 6 is statutorily

authorized as an extension of the condition that he must work at employment

approved by the Department of Corrections The sentencing court did not abuse

its discretion in ordering Martinez to obtain permission from a CCC before

changing his place of employment

              Entering Sex-Related Business (Condition 9) or Possessing Sexually
              Explicit Material (Condition 10)

       Lastly, Martinez challenges the provisions of community custody conditions

9 and 10, which prohibit him from entering sex-related businesses or possessing

sexually explicit material In Nguyen, the Supreme Court held these conditions are

appropriate ways to control a sex offender’s deviant sexual impulses 191 Wn 2d

at 686 Accordingly, the sentencing court did not abuse its discretion by imposing

these condftions as a way of helping control Martinez’s sexual urges.




                                           12
No. 77776-9-1113

         With the exception of prohibiting “[slexual contact in a relationship” in

Condition 5, we conclude that the challenged community custody conditions are

crime related.

            2    Unconstitutionally Vague Conditions

         Martinez challenges the following community custody conditions as

unconstitutionally vague

         10. Do not possess, use, access or view any sexually explicit material
         as defined by RCW 9 68 130 or erotic materials as defined by RCW
         9 68 050 or any material depicting any person engaged in sexually
         explicit conduct as defined by RCW 9 68A 011(4) unless given prior
         approval by your sexual deviancy provider

         18 Stay out of areas where children’s activities regularly occur or are
         occurring This includes parks used for youth activities, schools,
         daycare facilities, playgrounds, wading pools, swimming pools being
         used for youth activities, play areas (indoor or outdoor), sports fields
         being used for youth sports, arcades, and any specific location
         identified in advance by DCC or CCC

         Due process guarantees that laws not be vague, meaning that citizens must

be afforded fair warning of proscribed conduct         U S CONST amend XIV,         § 1,
WASH CONST art 1,      § 3, Statev BahI, 164Wn 2d 739, 752, 193 P 3d 678 (2008)
A community custody condition             is   unconstitutionally vague    if   Martinez

demonstrates either (1) that the condition does not sufficiently define the

prohibition so an ordinary person can understand the prohibition, or (2) that the

condition does not provide sufficiently ascertainable standards to protect against

arbitrary enforcement. Bahl, 164 Wn.2d at 752-53; see also Nguyen, 191 Wn.2d

at 678     If either requirement is not satisfied, the condition is unconstitutionally

vague. BahI, 164 Wn.2d at 753.




                                                13
No. 77776-9-1114

        A community custody condition “is not unconstitutionally vague merely

because a person cannot predict with complete certainty the exact point at which

his actions would be classified as prohibited conduct.’ City of Seattle v. Eze, 111

Wn 2d 22, 27, 759 P 2d 366 (1988) Rather, a condition is unconstitutionally vague

only “if persons of common intelligence must necessarily guess at its meaning and

differ as to its application” City of Seattle v Webster, 115 Wn 2d 635, 643, 802

P 2d 1333 (1990)        To reduce any possible chilling effect, a stricter standard of

definiteness applies to materials protected by the First Amendment                   BahI, 164

Wn 2d at 753

                Erotic Materials and Depictions of Sexually Explicit Conduct
                (Condition 10)
        Martinez challenges the constitutionality of the prohibition on possession of

“erotic materials” and depictions of “sexually explicit conduct            “~   Our Supreme

Court already rejected a similar argument in BahI                  In that case, the Court

concluded that neither phrase is unconstitutionally vague in the context of a

prohibition on frequenting “establishments whose primary business pertains to

sexually explicit or erotic material” 164 Wn 2d at 758-60 Although the holding

arose in a slightly different context, the reasoning applies to the condition at issue

here Condition 10 is not unconstitutionally vague

               Areas Where Children’s Activities Regularly Occur (Condition 18)

        Martinez raises a vagueness challenge to Condition 18, requiring him to

avoid “areas where children’s activities regularly occur” He argues that phrase


        ~ Martinez also challenges the constitutionality of the prohibition on sexually explicit
material but the Supreme Court held in Nguyen that this condition of community custody is not
unconstitutionally vague. 191 Wn.2d at 681.


                                                  14
No. 77776-9-1/15

does not provide adequate notice of what is prohibited and allows for arbitrary

enforcement We agree in part

       In Irwin, this court held that the phrase “where children are known to

congregate” was unconstitutionally vague 191 Wn App at 654-55 And Division

Two of the court agreed that the condition invited a completely subjective standard

for interpreting “places where children congregate” State v Wallmuller, 4 Wn

App 2d 698, 703-04, 423 P 3d 282 (2018), review granted, 192 Wn 2d 1009, 432

P 3d 794 (2019)

       We find no difference between “areas where minor children are known to

congregate” and “areas where children’s activities regularly occur” While some of

the locations, such as daycare facilities and schools, are clear, other illustrative

locations, such as “parks used for youth activities,” are not There is no standard

for determining the frequency or regularity with which children’s activities must take

place for the area to be permanently off limits     And the State has provided no

rationale for requiring Martinez to stay out of areas where children’s activities

sometimes occur, such as a sports field, even when no children are present As

written, Condition 18 is unconstitutionally vague

       Condition 18, however, does not allow for arbitrary enforcement In Irwin,

this court determined that a similar condition that gave a CCO the discretion to

define prohibited areas, without “some clarifying language or an illustrative list of

prohibited locations,” left the condition vulnerable to arbitrary enforcement     191

Wn App at 655 Unlike in Irwin, the condition in this case authorizes the CCO to




                                             15
No. 77776-9-1/16

designate in advance specific locations where Martinez cannot frequent Thus,

the condition does not invite arbitrary enforcement

      We affirm Martinez’s conviction for first degree child rape We remand for

the sentencing court to strike that portion of Condition 5 that prohibits sexual

contact in a relationship We further remand for the court to modify Condition 18

to be consistent with this opinion We otherwise affirm the remaining conditions




WE CONCUR:




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