A split Arkansas Court of Appeals panel Wednesday threw out a sexual-assault conviction against a Benton County man who prosecutors said attacked a 4-year-old girl.
The court found that the state created an “unfair surprise” when prosecutors changed the charge against Juan Carlos Martinez from rape to second-degree sexual assault after resting its case. The amended charge prevented Martinez from receiving a fair trial, according to the court’s ruling.
“The elements of the crimes were different, and appellant essentially had to defend a different charge. … We hold that the trial court committed reversible error by allowing the state to add the charge of second-degree sexual assault to the information at trial, after the state had rested its case. Accordingly, we reverse and dismiss appellant’s conviction,” Judge Waymond Brown wrote in the majority opinion.
Chief Judge Robert Gladwin and Judges Phillip Whiteaker and Larry Vaught joined Brown in the majority. Judges Rita Gruber and Rhonda Wood dissented.
A spokesman for Attorney General Dustin McDaniel said the office “will likely seek review of this decision by the Arkansas Supreme Court.”
Martinez, 45, was charged with rape in documents filed by prosecutors on Dec. 15, 2011.
Martinez waived his right to a jury trial, and a bench trial was held on Oct. 16, 2012.
During the trial, a woman testified that she went to a family member’s home where Martinez also lived on Oct. 3, 2011, and took her child with her. The woman left the child with Martinez while she went out for 30-40 minutes.
When she returned, the woman gave the child a bath and the child told her that Martinez had touched her genitals and that she felt pain there. The woman also noticed that the child was bleeding when she used the bathroom.
A detective with the Rogers Police Department testified that an examination of the child found semen, which was also detected in the child’s underwear. A forensic DNA examiner testified that the semen belonged to Martinez.
The judge ruled that the child could not testify at the trial because she was unable to identify Martinez. After that, prosecutors rested their case.
Martinez’s attorney then asked the court to dismiss the charge, arguing that the state had not proven that penetration occurred, which is one of the elements of a rape charge.
Circuit Judge Robin Green allowed prosecutors to amend the charge to second-degree sexual assault, and Martinez’s attorney asked the court to dismiss both charges.
Second-degree sexual assault involves a person older than 18 engaging in sexual contact with a person younger than 14 who is not the person’s spouse.
Green dismissed the rape charge, but found Martinez guilty of second-degree sexual assault and sentenced him to 20 years in prison. Martinez appealed, saying the change in charges had deprived him of a fair trial.
Martinez is currently in the Grimes Unit in Newport, according to Department of Correction records.
Wood wrote in the dissenting opinion that the Supreme Court has allowed amended charges in the past to remove some “technical defenses” that could be used to avoid punishment.
“The majority’s decision allows [Martinez] to go free on a dubious ‘technical defense.’ This is precisely the type of case where an amendment is appropriate,” Wood wrote.
But Gladwin wrote in a separate opinion that concurred with the majority that “The Due Process Clause of the Fourteenth Amendment of the United States Constitution is not a technicality,” and protects citizens from being “summarily arrested and convicted.”
Gladwin wrote that it was the burden of the state to prove every element of an offense beyond a reasonable doubt and that the “sole element” that Martinez could defend against under the rape charge was whether he had sex with the child, as it is defined by law. But allowing the amended charge reduced the state’s burden from having to prove that Martinez had sex with the child to proving that he made sexual contact.
“Had appellant known that he would have to defend a completely different offense with the element of touching, it is clear that his defense strategy would have been different. Much of the evidence that appellant allowed to be introduced without objection under the rape charge would likely have been thoroughly scrutinized had appellant known that the charge would be amended to sexual assault in the second degree,” Gladwin wrote.
Gladwin stated that the amended charge allowed the state to “side-step its duty” to prove every element of the offense and to benefit from testimony Martinez had not intended to defend himself against.
“As difficult as the holding in this case may be, it would be far worse to disregard the United States Constitution,” Gladwin wrote.
Jonathan Lane, a Little Rock attorney who represented Martinez in his appeal, said he was pleased with the decision.
“I think that due-process rights are some of the most important rights that we have. The opportunity to be made aware of exactly what rights you’re going to have to defend yourself on is a cornerstone of the Constitution,” Lane said.
Arkansas, Pages 9 on 03/13/2014