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State v. Gonzales

Court of Appeals of Washington, Division 1

December 26, 2017

STATE OF WASHINGTON, Respondent,
v.
EDDY GONZALES, Appellant.

          OPINION

          Spearman, J.

         The 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.[1] 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 occurred.

         Gonzales 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 have merit.

         We find no error and affirm.

         FACTS

         When 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 her bra.

         When 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.

         Gonzales 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.

         DISCUSSION

         Double Jeopardy

         Gonzales 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.

         We 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).

         First 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).

         In 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.

         Here, 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.

         When 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.

         The 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 argued,

[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 gratification.
And then finally you have the incident where he placed his penis in her hand when she was asleep ...

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