IN THE COURT OFAPPEALS FORTHE STATE OFWASHINGTON

STATE OFWASHINGTON, No. 77776-9-I

Respondelit, DIVISION ONE V. UNPUBLISHED OPINION SIMON ORTIZ MARTINEZ,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 communitycustodysentencing conditions. We affirm Martinez’s conviction, and affirm in part and reverse in part the challenged community custodyconditions. FACTS OnApril 26, 2017, the State charged Martinezwith one countoffirstdegree child rape,2 alleging that between July 22, 2009 and July 21, 2012, Martinez had sexual intercoursewith his biological daughter, Y.M., whowas born July 22, 2000.

1 There is some question astowhetherAppellant’s name is Simon MartinezOrtizorSimon Ortiz Martinez. While thejudgment and sentence refers to him as Ortiz Martinez, attrial, parties referred to him as Martinez Ortiz. And when he testified, he identified himselfas Simon Martinez. Thus, we referto him as Martinezthroughoutthe 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 ‘sfriends, the motherofone ofherfriends, 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 ofthe complaint” exception to the hearsay rule Martinez moved to exclude this testimony, arguing Y M ‘s disclosures were not made until June and November2014, twoyears afterthe end ofthe2012 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 atthe age of5 until she left home at age of 14, herdisclosures were timely The trial court ruled the statementswere 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 itdispensed with the six month, or any particulartime limit on that So since Murley, evidencefocuses mainly on the credibility of the complaining victim, and the timeliness of the complaint is no longer a predicate factthat must be proved before admission ofthe complaint So afterMurley, there’s notimeliness requirement, so to speak. While discussing ER404(b) objections to instances ofabuse pre-dating the charging period, the courtsoughtclarificationfrom the State astowhetherthe “fact ofthe 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 courtwith atranscriptofY M ‘s child forensic interviewfrom March 2016, a police reportfrom the Marshalltown, Iowa policewhich summarized

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herforensic interviewtestimony, and a copyofY M ‘s medical records The State indicated thatwhile Martinez’s abuse continued until 2014, it soughtto admit only those acts ofsexual 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 statementsY M may have made aboutthe duration ofthe abuse, the dates ofany abuse, orthe identityofthe reported abuser Attrial, Y M testified that Martinezfirst started abusing herwhen she was fiveyearsoldwhen hetouched hervagina Y M alsotestifiedthatherfatherforced herto rub his peniswith her hands Y M recounted an incidentwhen Martinezspit
on his hands and wiped the spiton his penis and on hervagina, and tried to insert his penis into hervagina Because it hurt“reallybad,” she “kepttelling him tostop” Y M testified that over time her father’s inappropriate touching became a daily
occurrence and that sexual intercourse occurred at least every otherweek After Y M began menstruating when shewas 11 or 12years old, herfatherbegan using condoms during intercourse Y M recounted how Martinez brought her pets and suggested he would purchase other petsfor her ifshe continued to do as he asked Y M alsotestified that her father often told her that if she ever told anybody about what was happening, he would “get in really big trouble.”

3No. 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 thejury As the State indicated prior to trial, it did not elicit any evidence from Y M regarding sexual abuse or intercoursethat occurred after her 12th birthday AT

, a high school friend, testified that in June 2014, Y M told hershe had been molested and raped AT told Y M that ifshe did nottell her mother about being raped, she would tell herown motherabout it That night, Y M told hermother, Ramona Rios, thatshe had been raped by Martinez Rios made Y M confront her father with the story Martinez denied Y M ‘s accusations Rios, in shockoverthe allegations, fled intothewoods, 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 notto take Y M tothe police orto a hospital because Y M did notwantthefamilytorn apartand wanted to keep the abuse secret After this confrontation, Y M felt things became very tense around the house Riosadmitted shedid notwantY M to be alonewith Martinez Y M began to run away from home in October and November 2014, because she “felt like a burden atthe house” aftertelling her motherabout being raped by herfather Another one ofY 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

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apartment complex because Y M had nowhere to staythat night Y M told John that “she had been

. . . abused and thatshe didn’twantto go home.” Martinez testified in his defense and denied that he had ever had sexual relations with his daughter. Thejuryfound Martinezguilty as charged Thetrial courtsentenced 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, pursuantto 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 ofa 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, derivedfromtheancientdoctrine of“hueand cry,” is a case lawexception to the hearsay rule, which allows the State to introduce evidence in sex offense
cases thatthe victim made a timely complaint to someone after being assaulted.

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Statev. Murley, 35Wn.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 admitevidencethatavictim reported thatheorshewas sexuallyassaulted, raped,
or molested State v Ferguson, 100 Wn 2d 131, 135-36, 667 P 2d 68 (1983) Evidence ofthe details ofthe complaint, including the identity ofthe offender and the nature ofthe 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 testimonythatdelaybyyoungwomen 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 errorto admittestimonyfrom 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 ofpriorassaults on wife admissible under ER404(b) toexplain wife’s delay in reporting sexual abuse and to rebut implication that molestation did not occur) But our Supreme Court has nevertheless expresslyheld thatthe “factofthe complaint” hearsayexception remains good law See eq ,Ferquson, lOOWn 2d at 144 Trialcourts are requiredtofollowSupreme Court precedent See Marriage ofSnider, 6 Wn App 2d 310, 315, 430 P 3d 726 (2018) (undervertical stare decisis, courts are required tofollowdecisions handed

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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 theywere 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 thatthe complaintwas 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 oftimeliness 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), Spencerv Badgley Mullins Turner PLLC, 6 Wn App 2d 762, 785, 432 P 3d 821 (2018), reviewdenied, 438 P 3d 119 (Wash 2019) In this case, the State presented evidence tothetrial courtto 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 lawenforcementthat Martinezcontinued toabuse heruntil she leftthefamily 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

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record supports a determination that Y.M.’s complaints in June and November 2014were timely because theyoccurred while she was still being abused Although the State did not elicit evidence attrial that Martinez continued to rape Y M throughout2013 and 2014, the trial court’s admissibility ruling was not based on trial evidence but instead on the State’s pretrial offerofproof ER 104(a) provides that preliminary questions regarding the admissibility of evidence must be made bythe court outside the presence ofthejury The rules ofevidence 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 courtwhen the court rendered itsadmissibilitydecision, nottheevidence ultimately admitted at trial See Jones, 50 Wn App at 712 The State’s offer of proof established the admissibilityoftheevidence See Statev Kilgore, 147Wn 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 authorityforthis proposition Here, the State chose to charge Martinezwith first degree child rape To convict Martinez offirst degree child rape, the jury had to find the rape occurred before Y M ‘s 12th birthday See RCW9A44 073 (“A person is guilty of rape ofa child in the first degree when the person has sexual intercourse with anotherwho is less than twelve years old .“). As a result, the charging period ended beforeY.M.’s

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12th birthday on July 22, 2012 The charging period had nothing to do with the date on which Martinez ceased his sexual molestation ofY M Oncethe State established thatY M ‘s reportsweretimely, anydelay in her reporting the abuse became a credibility issue forthe jury State v Fleming, 27 Wn App 952, 957, 621 P 2d 779 (1980) (“The complaint is admitted as bearing
on the credibility ofthe complainant “), see also State v Thomas, 52 Wn 2d 255, 257, 324 P 2d 821 (1958) Martinez’s defensewasthatY M completelyfabricated the charge against him Martinez had the opportunityto cross-examine Y M and to ask herwhy she did not report herfather’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 forfirst degree child rape B Community Custody Conditions Martinez also challenges several of the community custody conditions imposed atsentencing Communitycustodyconditions are reviewed foran abuse ofdiscretion and will only be reversed ifthey are manifestly unreasonable State
v Nguyen, 191 Wn 2d 671, 678, 425 P 3d 847 (2018) “Atrial court’s imposition ofan 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

9No. 77776-9-1110 relationship is prohibited until the treatment provider approves of such 6 Obtain prior permission ofthe 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 ofbusiness is related to sexuallyexplicit material 10 Do not possess, use, accessorviewanysexuallyexplicit material as defined by RCW9 68 130 orerotic 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 byyoursexual 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 orderofa courtprohibiting conductthat directly relates to the circumstances ofthe crime forwhich the offender has been convicted

“ ROW9 94A 030(10) There is no abuse ofdiscretion ifa “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 concludethat there is a sufficientconnection between the prohibition and the crime ofconviction,
we will not disturb the sentencing court’s community custody conditions” jçj at 685-86

10No. 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) Martinezwas convicted of raping his minordaughter, with whom he lived with her mother The condition is reasonably crime related to protect other minor children ifMartinez everdates someonewho has minorchildren ~ See Statev 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

~ Martinezalso argues this condition is unconstitutionallyvague The Supreme Court held otherwise in Nguyen 191 Wn 2d at683

~ Martinez relies on Statev Moultrie 143Wn App 387 177 P 3d 776 (2008) to arguethe 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 notanalyze the dating relationship condition 11No. 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 ofthe supervising CCC before changing work location, is not crimerelated 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]nlesswaived bythe court, as part ofanyterm of community custody, the court shall order an offenderto [w]ork at departmentapproved 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 bythe Department of Corrections The sentencing court did not abuse its discretion in ordering Martinez to obtain permission from a CCC before changing his place ofemployment

Entering Sex-Related Business (Condition 9) orPossessing Sexually Explicit Material (Condition 10) Lastly, Martinezchallengesthe provisions ofcommunitycustody conditions 9 and 10, which prohibit him from entering sex-related businesses or possessing sexuallyexplicit material In Nguyen, the Supreme Court held these conditions are appropriateways to control a sex offender’s deviant sexual impulses 191 Wn 2d at 686 Accordingly, the sentencing courtdid not abuse its discretion by imposing these condftions as away of helping control Martinez’s sexual urges.

12No. 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 UnconstitutionallyVague Conditions Martinez challenges the following community custody conditions as unconstitutionallyvague 10. Do notpossess, use, access orviewanysexuallyexplicitmaterial 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 conductas defined by RCW 9 68A 011(4) unless given prior approval byyoursexual deviancy provider 18 Stayoutofareaswhere children’s activities regularlyoccurorare occurring This includes parks used for youth activities, schools, daycarefacilities, playgrounds, wading pools, swimming pools being used foryouth activities, play areas (indoororoutdoor), sports fields being used for youth sports, arcades, and any specific location identified in advance by DCC or CCC Due process guaranteesthat laws notbevague, meaningthatcitizens 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.

13No. 77776-9-1114 A community custody condition “is not unconstitutionally vague merely because a person cannot predictwith complete certaintythe exact point atwhich 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 unconstitutionallyvague only“ifpersons ofcommon intelligence must necessarilyguess 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 753Erotic Materials and Depictions of Sexually Explicit Conduct

(Condition 10) Martinez challenges the constitutionalityofthe 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 unconstitutionallyvague

AreasWhere Children’sActivities 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 unconstitutionallyvague. 191 Wn.2d at681. 14No. 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 unconstitutionallyvague 191 Wn App at 654-55 And Division Two ofthe courtagreed thatthe condition invited a completelysubjective 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 “areaswhere children’s activities regularlyoccur” While some of the locations, such as daycare facilities and schools, are clear, other illustrative locations, such as “parks used foryouth activities,” are not There is no standard fordetermining thefrequencyorregularitywith which children’s activities musttake 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 unconstitutionallyvague Condition 18, however, does not allowfor 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

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designate in advance specific locations where Martinez cannot frequent Thus, the condition does not invite arbitraryenforcement We affirm Martinez’s conviction forfirst 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 forthe courtto modify Condition 18 to be consistentwith this opinion We otherwise affirm the remaining conditions

WE CONCUR:

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