constitutional prohibition against double jeopardy forbids
multiple punishments for the same offense. In a case where
there is a risk of multiple convictions based on a single
act, the jury must be instructed that separate and distinct
acts must support each conviction. When the trial court fails
to so instruct and multiple convictions occur, there is a
potential for double jeopardy. Here, a jury convicted
Gonzales of first degree child molestation, first degree
child rape, and witness tampering. On appeal, Gonzales claims
that his convictions for molestation and child rape violated
double jeopardy because the jury was not instructed that it
needed to find a separate and distinct act to support each
conviction. We disagree because, in light of the
entire record before us, it was manifestly apparent to the
jury that the State was not seeking to impose multiple
punishments for the same offense and that each count was
based on a separate act. Thus, no double jeopardy violation
also argues that the trial court erroneously provided
supplemental jury instructions, admitted improper character
evidence, and ordered an unconstitutionally vague community
custody condition. And, in a statement of additional grounds,
Gonzales alleges a number of other errors. None of the claims
no error and affirm.
J.G. was six years old, she and her younger brother moved in
with their grandfather, Eddy Gonzales, and his wife, Terri.
After the move, J.G. typically slept beside her grandfather
in her grandparents' bed. About six months after moving
in, Gonzales began molesting J.G. He rubbed J.G.'s
breasts about fifteen separate times while she was in her
grandparents' bed. He placed his hand and fingers on
J.G.'s vagina about twenty or twenty-five different
times. Once or twice, while in bed, Gonzales made J.G. put
her mouth on his penis. Once, she awoke on the couch with his
penis in her hand. Another time, J.G. fell asleep on the
couch and woke up to find Gonzales engaging in oral sex on
her. This sexual abuse ended when J.G. was ten or eleven
years old. But after the molestation stopped, J.G. once
encountered Gonzales masturbating in his room while holding
J.G. was eleven years old, she got into a fight with her
grandmother, Terri and moved in with her sister, Ashley. She
told Ashley about the molestation. On December 4, 2013,
Ashley reported the allegations to the police and to Terri.
Ashley and Terri drove to the Gonzales home where a police
officer was waiting outside. Against the officer's
instructions, Terri went inside and confronted Gonzales. She
asked him if the allegations were true. Gonzales was
apologetic and repeatedly said that he was sorry. Later, when
the officers came in, Gonzales admitted that he had touched
J.G.'s breasts fifteen times, and used gestures to
demonstrate how he touched her. He told an officer that J.G.
"helped" him with the molestation and acted like
she enjoyed it. Verbatim Report of Proceedings (VRP) at 1225.
Gonzales later told his son, J.G.'s father, that he
couldn't help himself and that J.G. had come on to him.
From jail, Gonzales wrote letters to Terri apologizing and
telling her that J.G. could refuse to testify.
was charged with first degree rape of a child and first
degree child molestation. The State later added a second
count of first degree child rape and charged him with
tampering with a witness. A jury acquitted Gonzales of one
count of first degree child rape, but found him guilty of the
remaining charges. Gonzales's sentence included a
community custody condition that he "not enter any
parks/playgrounds/schools." Clerk's Papers (CP) at
123. Gonzales appeals.
argues that his convictions for child molestation and rape of
a child constitute double jeopardy. He contends that in the
absence of an instruction that the jury find separate and
distinct acts for each count, it was possible that the jury
convicted him twice for the same conduct.
review a double jeopardy claim de novo. Mutch, 171
Wn.2d at 662. The constitutional guaranty against double
jeopardy protects a defendant against multiple punishments
for the same offense. U.S. Const, amend. V; Wash. Const, art.
I, § 9; Mutch, 171 Wn.2d at 661 (quoting
State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190
(1991)). "A 'defendant's double jeopardy rights
are violated if he or she is convicted of offenses that are
identical both in fact and in law.'" State v.
Pena Fuentes, 179 Wn.2d 808, 824, 318 P.3d 257 (2014)
(quoting State v. Calle, 125 Wn.2d 769, 777, 888
P.2d 155 (1995)). Two offenses are not the same when
"there is an element in each offense which is not
included in the other, and proof of one offense would not
necessarily prove the other...." State v.
Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983).
degree child molestation requires proof of "sexual
contact" with a child. RCW 9A.44.083(1). Sexual contact
means "any touching of the sexual or other intimate
parts of a person done for the purpose of gratifying sexual
desire of either party or a third party." RCW
9A.44.010(2). First degree child rape requires proof of
"sexual intercourse" with a child. RCW
9A.44.073(1). Sexual intercourse can be proved by penetration
of the vagina or anus, or by "any act of sexual contact
between persons involving the sex organs of one person and
the mouth or anus of another" RCW 9A.44.010(2).
State v. Land, 172 Wn.App. 593, 600, 295 P.3d 782
(2013) (citing State v. Huges, 106 Wn.2d 675,
682-84, 212 P.3d 558 (2009), this court held that there is a
potential double jeopardy violation
where the only evidence of sexual intercourse supporting a
count of child rape is evidence of sexual contact involving
one person's sex organs and the mouth or anus of the
other person, that single act of sexual intercourse, if done
for sexual gratification, is both the offense of molestation
and the offense of rape. In such a case, the two offenses are
not separately punishable. They are the same in fact and
in law because all the elements of the rape as proved
are included in molestation, and the evidence required to
support the conviction for molestation also necessarily
proves the rape.
oral sex was the only act supporting child rape. Under
Land, rape of a child and child molestation are the
same offense with respect to oral sex. Thus, an instruction
that the act of molestation must be separate and distinct
from the act of rape should have been given to the jury.
Because it was not, there is potential for double jeopardy.
reviewing a potential double jeopardy violation, we review
the entire record to determine if it was
"'manifestly apparent to the jury that the State
[was] not seeking to impose multiple punishments for the same
offense' and that each count was based on a separate act,
..." Mutch, at 664 (quoting State v.
Berg, 147 Wn.App. 923, 931, 198 P.3d 529 (2008)). If it
was manifestly apparent that the State did not seek multiple
punishments for the same act, then there is no double
jeopardy violation. Id.
State's closing argument makes clear that the State did
not seek to impose multiple punishments for the same act.
After describing child molestation definitions, the State
[J.G.] says specifically in the bedroom that ...the defendant
placed his hands down [J.G.'s] underwear and touched her
vagina with his hand. She said that this happened between 20
and 25 times...this is clearly done for sexual gratification.
Also in the bedroom you have the defendant reaching up her
shirt, touching her breasts. She says that this happened
about 15 times...this is a purposeful act done for sexual
And then finally you have the incident where he placed his
penis in her hand when she was asleep ...