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Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 A Cascade County jury found Joseph John Martinez guilty of sexual intercourse

without consent, in violation of § 45-5-503, MCA. Martinez appeals his conviction,

alleging that the Eighth Judicial District Court erred in precluding him from questioning

the victim about a Facebook message she exchanged with a third party; that he did not

voluntarily, knowingly, and intelligently waive his Miranda rights against

self-incrimination; and that he received ineffective assistance of counsel. We affirm.

¶3 On October 23, 2014, 15-year-old C.H. and others were drinking at a party in

TristenDavidson’s garage inGreat Falls. C.H. remembers drinking spiced rum and vodka

straight out of the bottle and chasing it with “strawberry soda.” C.H. left the garage and

went inside to use the restroom. The last thing that C.H. remembers about that night was

coming out of the bathroom,laying down on the floor,and passing out. Davidson observed

C.H. vomiting and then laying on the floor. He moved her up onto a mattress in his

bedroom and placed a small garbage can next to the bed. When Davidson left C.H. in his

roomwith the door open, she had all her clothes on and was “passed out.”

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¶4 Great Falls Police Officer Jeff Parks arrived at Davidson’s home in response to a

noise complaint at about oneo’clock in the morning. Davidson advised Officer Parks that

there were other people in the house and that “somebody was passed out” in a bedroom.

When Officer Parks opened the door to the bedroom, Davidson saw C.H. “laying on the

bed face down with her pants off, and Martinez trying to . . . hide behind her on the bed.”

Martinez was laying on the mattress with his pants down. Officer Parks told Martinez to

stand up and witnessed Martinez “trying to hide an erection, and trying to get his pants

buckled up right away.” There appeared to be vomit on C.H., she was “limp,” and she

appeared to Officer Parks “to be incoherent.” Officer Parks called for medical responseas

quickly aspossible because he fearedfor C.H.’s life. The next thing that C.H. remembered

was waking up at Benefis Hospital where she was being treated for alcohol poisoning.

¶5 After C.H. was placed in the ambulance, 18-year-old Martinez identified himself to

Officer Parks. Officer Parks took Martinez to the police station to speak with him further.

Once in the interview room, Officer Parks read MartinezaMirandawarning, and Martinez

agreed to answer questions. Martinez provided a breath test, which was positive for

alcohol. Martinez ultimately admitted to engaging in sexual relations with C.H., including

penetration.

¶6 The following morning, Great Falls Police Officer Kevin Supalla transported

Martinez to the hospital for a body search to be conducted pursuant to a search warrant.

While waiting for the exam to begin, Martinezasked Officer Supalla some questions,told

himthat he hopedC.H. was at least 17 years old,and admittedto inserting his fingers into

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C.H.’s vagina. Officer Supalla recorded the majority of his time with Martinez at the

hospital on his digital audio recorder. Martinez was not reminded of his Miranda rights

while at the hospital.

¶7 At trial, Martinez objected to his Mirandawaiver form being admitted into evidence

because whether he was capable of understanding and waiving his rights had not been

established. The District Court overruled the objection, reasoning that Martinez could

explore that issue because it “goes to the weight of the evidence.” A video of the police

station interviewwas admitted and playedfor the jury. Officer Parks testified that Martinez

understood what he was saying to him and that he believed Martinez voluntarily waived

his rights. Martinez also objected to the audiorecordingfrom the hospital being played for

the jury because it was a surreptitious recording. The District Court overruled Martinez’s

objection,and the tape was played for the jury. Martinez’s counsel renewed his objection

after the tapewas played. The District Court again overruled his objection.

¶8 On appeal, Martinez argues that the District Court erred in admitting the recorded

interview from the police station because his intoxicated state at the time of the waiver,

taken together with his age, education level, and intellectual capacity, invalidates his

Miranda waiver. We review a district court’s determination that a defendant voluntarily,

knowingly, and intelligently waived his Miranda rights to ensure its factual findings are

supported by substantial credible evidence and its conclusions of law are correct.

Statev. Nixon, 2013 MT 81, ¶ 15, 369 Mont. 359, 298 P.3d 408.

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¶9 The State “may not use statements that stem from a custodial interrogation of a

defendant unless the defendant is warned, prior to questioning, that he has a right to remain

silent, that any statement he does make may be used as evidence against him, and that he

has a right to the presence of an attorney.” State v Olson, 2003 MT 61, ¶ 13, 314 Mont.402,

66 P.3d 297 (citing Miranda v. Arizona, 384 U.S. 436, 444,86 S. Ct. 1602, 1612(1966)).

An individual apprised of his or her rights may waive them so long as the waiver is made

“voluntarily, knowingly, and intelligently.” State v. Main, 2011 MT 123, ¶ 21,

360Mont.470, 255 P.3d 1240. That inquiry has “two distinct dimensions”:

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Mirandarights have been waived.

Main, ¶ 21(quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986)).

¶10 The totality of the circumstances surrounding the interrogation presents substantial

evidence to support the finding that Martinez voluntarily, knowingly, and intelligently

waived his Mirandarights. Officer Parks testified that before Martinez signed the waiver,

he “appeared intoxicated,” but that Martinez was coherent and able to understand and

follow instructions during the interview. Parks testified that Martinez “track[ed]” and

responded appropriately to questions. Martinez understood why he was being questioned,

as well as the consequences of the crime, as was evidenced by the changes in his story, his

repeating that he hoped C.H. was over the legal age of consent, and his fear of going to

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prison if he confessed to Officer Parks. The District Court did not err in admitting the

video of Martinez’s taped interview.

¶11 Martinez argues also that the recording from the hospital should not have been

admitted because he was not informed of his Miranda rights a second time. The State

argues that Martinez was not entitled to be informed of his Miranda rights at the hospital

because he was not subject to an interrogation. A spontaneous or unsolicited remark, not

made in response to interrogation, is admissible even without a Miranda warning.

State v. Braulick, 2015 MT 147, ¶ 16, 379 Mont. 302, 349 P.3d 508. With respect to

“interrogation” under Miranda, this term “refers not only to express questioning, but also

to any words or actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” State v. Munson, 2007 MT 222, ¶ 25,

339Mont.68, 169 P.3d 364 (internal citations and quotations omitted). The primary focus

in determining whether an incriminating response was reasonably likely to be elicited from

the suspect is on the perceptions of the suspect, rather than on the intent of the police.

Munson, ¶ 25.

¶12 Officer Supalla did not conduct any express questioning of Martinez at the hospital,

nor did he use any words that were reasonably likely to elicit an incriminating response

from Martinez. Officer Supalla testified that Martinez was “just spontaneously coming out

with things” during the conversation at the hospital. Officer Supalla confirmed that he did

not ask any questions regarding the events, but simply let him talk, answered Martinez’s

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questions, and occasionally asked for clarification when he could not understand Martinez.

We agree with the State that Martinez was not subject to interrogation at the hospital

because Officer Supalla did not act or speak in a way that he should have known would

elicit an incriminating response. The District Court did not err in admitting the audio

recording from the hospital.

¶13 Martinez argues that he was deprived of effective assistance of counsel when his

trial counsel failed to file a motion to suppress the recording of the interview and the

recording from the hospital. To prevail on a claim of ineffective assistance of counsel, a

defendant must show that his counsel’s performance was deficient and the deficient

performance prejudiced him. Hardin v. State, 2006 MT 272, ¶ 18, 334 Mont. 204,

146 P.3d 746. Counsel did not perform deficiently when he failed to file a motion to

suppress Martinez’s statements because on the merits both the interview and the hospital

statements were admissible. Theoutcome would have been the same ifMartinez’s counsel

moved to suppress the statements. See Heddings v. State, 2011 MT 228, ¶ 33,

362 Mont. 90, 265 P.3d 600 (observing that “a claim of constitutionally ineffective

assistance of counsel will not succeed when predicated upon counsel’s failure to make

motions or objections which, under the circumstances, would have been frivolous, which

would have been, arguably, without procedural or substantive merit, or which, otherwise,

would likely not have changed the outcome of the proceeding.”). Martinez therefore was

not deniedeffective assistance of counsel.

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¶14 During defense counsel’s cross-examination of C.H., he inquired if she recalled

exchanging Facebook instant messages with her friend James Garwood the day after the

party. The State objected,and the District Court sustained the inquiry based on the court’s

previous ruling that the Facebook Messenger statements constituted inadmissible hearsay

and violated the Rape Shield Statute, § 45-5-511(2), MCA. The ongoing conversation

between C.H. and Garwood, who did not testify at trial, details their plans to meet up and

drink and smoke. The District Court asked whether the conversation “goes to [C.H’s] state

of mind in the sense that she went [to the party] that night wanting to have sex.” Defense

counsel responded, “She went there that night, I believe, in looking at her posting with

Mr. Garwood, she’s well aware of what’s going on and who is there and participating in

the activities that everybody was engaging in.” In the exchange between C.H. and

Garwood on October 23, 2014, while C.H. was still in the hospital, C.H. told Garwood that

she did not remember anything about the previous night. She asked Garwood, “Oh did I

sleep with anyone[?]” and “So will u tell me what happened I wasn’t a slut was i[?]” After

Garwood told C.H. that he found Martinez on top of her with his pants down and pulled

him off of herwhen the cops showed up, C.H. responded,“Omg I’m such a slut I’m sorry about last night.” The District Court held that the statements were inadmissible and nothing

had been cited to indicate that any exception to the hearsay ruleapplied. The court added

that the discussion was not relevant and went to the sexual conduct of C.H., which is

precluded by the Rape Shield Statute.

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¶15 District courts have broad discretion in determining the relevance and admissibility

of evidence. State v. Walker, 2018 MT 312, ¶ 11, 394 Mont. 1, 422 P.3d 202. A court

abuses its discretion if it acts arbitrarily without the employment of conscientious judgment

or exceeds the bounds of reason, resulting in substantial injustice. Walker, ¶ 11. The Rape

Shield Statute generally precludes any “[e]vidence concerning the sexual conduct of the

victim.” Section 45-5-511(2), MCA. Relevant evidence generally is admissible unless

otherwise provided by the constitution, statute, the Montana Rules of Evidence, or other

rules. M. R. Evid. 402. Relevant evidence means “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” M. R. Evid. 401.

¶16 Martinez maintains that he was deprived of his constitutional right of confrontation

when the District Court denied the admission of the Facebook messages authored by C.H.

Martinez argues that C.H.’s indicationthat she thought she might have slept with someone

or acted like “a slut” speaks “directly to the issue of consent.” Martinez claimed that C.H.

told him that she was a senior in high school. Martinez maintains that he wanted to question

C.H. about the Facebook messages “to impeach [her] on the issue of consent.” C.H. was

not, however, lawfully able to consent. The District Court instructed the jury, in

accordance with Montana law, that a victim is incapable of consent if she is less than

sixteenyears old. Section 45-5-501(1)(b)(iv), MCA. C.H. was fifteenyears old the night

of the party. These messages were not relevant to and not probative of her consent.

SeeM.R. Evid. 401 and 402. The court’s instruction also told the jury, “It is a defense for

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the defendant to prove that he reasonably believed the victim to be 16 years or older.”

Martinez had ample opportunity to cross-examine C.H. about Martinez’s claim that C.H.

told himthat she was a seniorin high school, and did so at length. The Facebook messages

said nothing about C.H.’s age. And, as the State aptly observes, the messages were

consistent with how a sex-crime victim likely may respond—with shame and

embarrassment. If anything, the messages showed that C.H. remembered nothing about

her encounter with Martinez. The District Court did not abuse its discretion by excluding

the Facebook messages.

We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandumopinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. We affirm.