IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

JOSE CARLOS QUIROGA LEDESMA,

Appellant.

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No. 37987-6-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Jose Carlos Quiroga Ledesma appeals his three first 

degree child molestation convictions. We conclude there was no reversible error and 

affirm.

FACTS

N.B.1and her family moved from Florida to Washington in September 2017. 

In February 2018, N.B.’s family joined a church where they met Jose Carlos Quiroga 

Ledesma and his family. N.B. went to Bible study on Tuesdays and regular church 

services on Fridays and Sundays. N.B. became good friends with Ledesma’s daughter, 

 

1

 To protect the privacy interests of the child victim, we use her initials throughout 

this opinion. Gen. Order 2012-1 of Division III, In re the Use of Initials or Pseudonyms 

for Child Victims or Child Witnesses, (Wash. Ct. App. June 18, 2012), 

https://www.courts.wa.gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber

=2012_001&div=III.

FILED

JULY 15, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37987-6-III

State v. Ledesma

2

K.Q., and their families became very close. N.B. spent a lot of time with K.Q. at her 

home and referred to Ledesma as “Tio,” a Spanish term for family member. 3 Report of 

Proceedings (RP) (Aug. 20, 2019) at 353.

In August 2018, N.B. told her youth ministry pastor, Yessica Marenco, that 

Ledesma had been touching her. The topic came up after a pastor gave a sermon 

discussing abuse. While Ms. Marenco drove N.B. and K.Q. home from the sermon, 

N.B. said she thought she was being abused. She was very nervous. Later in the evening, 

N.B. told Ms. Marenco more details. The next morning, Ms. Marenco told church 

leaders, who told N.B.’s mother and later notified the police. N.B.’s mother took her to 

the hospital when she found out about the abuse. N.B. eventually told her mother what 

happened herself.

The State charged Ledesma with three counts of child molestation in the first 

degree based on allegations of abuse between May 1 and August 18, 2018. Counts 2 and 

3 accused Ledesma of the molestation “and/or a crime based on the same conduct or on a 

series of acts connected together or constituting parts of a single scheme or plan, and/or 

so closely connected in respect to time, place and occasion that it would be difficult to 

separate proof of one charge from proof of the others . . . .” Clerk’s Papers (CP) at 3-4.
No. 37987-6-III

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Trial

State’s witnesses

The State called N.B., N.B.’s mother, Ms. Marenco, K.Q., the church pastor, and a 

Tacoma Police Department detective assigned to the case. 

N.B.

N.B. was 11 years old when Ledesma touched her inappropriately several times. 

The first incident happened when she and her parents were at Ledesma’s apartment with a 

few other people. Everyone was eating outside on the patio. N.B. asked Ledesma’s wife 

for a jacket and went inside to get it from a closet. She got hot later and, when she went 

to put the jacket back, she said: “I was having a difficult time putting it back and I asked 

for help, and then that’s when [Ledesma] put his hands in my pocket.” 3 RP (Aug. 20, 

2019) at 356. She told him to “‘please help me put the jacket back,’” but he would not. 

3 RP (Aug. 20, 2019) at 358. His hands were in her front pants pockets, and she thought 

“[h]e was trying to touch my private area.” 3 RP (Aug. 20, 2019) at 359. His fingers 

were on her thigh and could not reach her vagina but were close. N.B. was 

uncomfortable but she did not say anything to anyone. After the jacket was on the 

hanger, N.B. went back to spend time with K.Q. N.B. and her parents left a few minutes 

later. 
No. 37987-6-III

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4

The next incident happened when N.B. and K.Q. were sleeping on Ledesma’s 

living room floor. She testified, “I couldn’t go to sleep, and then when I was able to 

sleep, he woke me up. It was around 3:00 in the morning and he pulled my shirt to wake 

[me] up.” 3 RP (Aug. 20, 2019) at 367. She “got up thinking something was wrong,” 

and then Ledesma started touching her. 3 RP (Aug. 20, 2019) at 369. He grabbed her by 

her back, put his arms around her, and started kissing her with his tongue in her mouth. 

He touched her buttocks over her clothes while their bodies were touching. He also put 

her hand on his erect penis over his clothes. After she moved her hand, he went back to 

his room. K.Q. did not wake up, and N.B. did not tell her because she did not want to be 

a “snitch” or break up their friendship. 3 RP (Aug. 20, 2019) at 379.

N.B. could not fall back asleep afterward. Around 6:00 a.m., Ledesma gestured to 

her to come to the hallway. He touched N.B.’s buttocks, put his tongue in her mouth, and 

told her he wanted to sleep with her. N.B. answered, “‘No,’” and walked back to the 

couch. 3 RP (Aug. 20, 2019) at 382. K.Q. woke up when N.B. got back to the couch. 

The next incident happened when Ledesma drove N.B. and K.Q. home from a 

friend’s house after a sleepover. Ledesma’s truck had a lot of stuff in the back seat, so 

K.Q. told N.B. to sit in the front where there was more space. During the ride, Ledesma 

grabbed N.B.’s left thigh, over her pants, with his right hand. She felt uncomfortable and 
No. 37987-6-III

State v. Ledesma

5

crossed her legs. He put his hand back on her thigh and touched her vagina before she 

moved his hand. He tried again and when she moved his hand, he squeezed her hand 

forcefully. He told her to pull her sleeves up because it was “‘too hot,’” and pushed 

them up with his hand. 3 RP (Aug. 20, 2019) at 394. Then he told K.Q. to look for 

something in the back, and he pretended to look for something in the passenger door and 

reached over and touched N.B.’s breast for a couple seconds. On cross-examination, 

N.B. said that she and K.Q. had been talking throughout the whole car ride. 

When N.B., K.Q., and Ledesma arrived home from the truck ride, K.Q. and her 

mother went to choose outfits in the bedroom and left N.B. in the living room. Ledesma 

called to N.B. from the kitchen, and he “kind of like cornered [her] where the table was.” 

3 RP (Aug. 20, 2019) at 395. She said, “I backed away and then he grabbed me by my 

waist and pulled me toward him. He tried to kiss me, but I kept moving away and moving 

away. And then [K.Q.] came out, and then I moved.” 3 RP (Aug. 20, 2019) at 395. 

The final incident occurred a few days later at the church Ledesma and N.B. 

attended. There are two Sunday services and church members eat lunch together in the 

downstairs area between services. At lunch time, Ledesma told N.B. to go to the back of 

the church, where there is an alleyway. N.B. was not eating with everyone. N.B.’s 

mother tried to get her to eat, and Ledesma offered to drive her to get food. She said
No. 37987-6-III

State v. Ledesma

6

“‘no’” to both. 3 RP (Aug. 20, 2019) at 404. She went outside because she thought 

Ledesma would tell her that “this was going to stop” or “that he was sorry.” 3 RP 

(Aug. 20, 2019) at 404. When she walked to the back of the church, Ledesma was 

already in the alley. She said he “grabbed me and he tried to kiss me but I faced away.” 

3 RP (Aug. 20, 2019) at 402. He kissed her cheek because she moved her face. She told 

him to stop and he kept trying to grab her. Then, a “girl popped up in the window” facing 

the alleyway and the girl said “Hey.” 3 RP (Aug. 20, 2019) at 409. N.B. said hello and 

walked away. 

On cross-examination, N.B. testified that she wants to move back to Florida. She 

knew her parents were still friends with Ledesma and his wife, but she was not friends 

with K.Q. anymore. She was not aware that their parents had planned a winter vacation 

for their families. 

Cristina Arreche

N.B.’s mother, Cristina Arreche, described how her family became close with 

Ledesma’s family when they moved to Washington. She did not recall the night when 

N.B. asked for a jacket and only knew what N.B. said about it. 

After learning of the accusations and talking with police, Ms. Arreche continued 

seeing Ledesma and his wife, but infrequently. She loved Ledesma’s wife very much and 
No. 37987-6-III

State v. Ledesma

7

tried to forgive Ledesma. Ledesma told her “he didn’t know why he had done it.” 

3 RP (Aug. 20, 2019) at 466. Ms. Arreche forgave him because, “If I want God to 

forgive me, I also have to forgive.” 3 RP (Aug. 20, 2019) at 478. The families no longer 

have contact. 

K.Q.

K.Q. testified that she never saw her father with N.B. near the closet. She 

remembers a night when her mother grabbed a jacket from the closet and gave it to Ms. 

Arreche. Ms. Arreche then gave it to N.B., who took it home with her when her family 

left. 

N.B. spent the night in K.Q.’s living room one time. K.Q. did not recall seeing 

N.B. on her phone on the couch in the early morning and she did not see Ledesma come 

into the room. K.Q. is a light sleeper and wakes up when her parents go to the bathroom 

and when her pet birds chirp. 

K.Q. remembered when Ledesma picked her and N.B. up from a sleepover. She 

sat in the back seat of Ledesma’s truck because she is smaller and fit better. K.Q. did not 

fall asleep during the ride and could see and talk to N.B. the whole time. She did not see 

Ledesma touch N.B., try to roll up her sleeves, lean across her to get something out of the 
No. 37987-6-III

State v. Ledesma

8

door, or do anything unusual. She could not remember what happened after the truck 

ride. 

When N.B. told K.Q. and Ms. Marenco about the abuse, K.Q. was angry and sad 

because she was “losing a friend right there.” 4 RP (Aug. 21-22, 2019) at 535. K.Q. 

“knew [N.B.] was lying and she didn’t understand at the time.” 4 RP (Aug. 21-22, 2019) 

at 536.

Dr. Kallas

Dr. Robin Kallas, an emergency pediatric medicine physician, treated N.B. upon 

her arrival at the hospital. She described the hospital’s protocol for patients who allege 

sexual assault:

Typically, the physician will present, speak to the parent, medically clear 

the patient. And then if there’s no emergent medical condition, we will 

have the social worker go speak with the family. And once the social 

worker is complete, we’ll go back in and complete the physical exam.

4 RP (Aug. 21-22, 2019) at 587. The following exchange took place:

[THE STATE:] . . . Prior to the examination, what kinds of 

information do you need, as a physician, in order to figure out what kind of 

examination you’re going to do?

[DR. KALLAS:] I’ll speak with the social worker. She will tell me 

the circumstances of the concern. Typically, if it’s a teenager and we 

expect physical findings, there is a [SANE2] nurse that will come in and 

assist with the exam.

 

2 Sexual assault nurse examiner.
No. 37987-6-III

State v. Ledesma

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. . . .

[THE STATE:] Okay. And you said that person gets summoned if 

you expect physical findings?

[DR. KALLAS:] Yes.

[THE STATE:] What kinds of criteria or information do you use 

when making that determination?

[DR. KALLAS:] If the family members have told the social worker 

that there was recent penetration or sexual activ[ity] or unexpected rape.

[THE STATE:] That’s penetration of the vagina or anus?

[DR. KALLAS:] Right. And if it’s been within three days, is when 

we will typically collect evidence.

[THE STATE:] Okay. Why is your protocol such that you don’t 

speak with the patient yourself?

[DR. KALLAS:] We don’t want to influence anything that they 

have to say. . . . 

[THE STATE:] Okay. So the social worker speaks with the parent, 

usually, or the child?

[DR. KALLAS:] Usually the social worker will speak with the 

parent.

4 RP (Aug. 21-22, 2019) at 589-90. 

The prosecutor then asked, “[W]hat information did you have prior to your 

examination that was relevant to your examination?” 4 RP (Aug. 21-22, 2019) at 591. 

The court overruled Ledesma’s objection. Dr. Kallas answered: “I was told by the social 

worker that the event had occurred more than three days prior. I was told that there was 

alleged fondling over clothing.” 4 RP (Aug. 21-22, 2019) at 592. Based on that 

information, Dr. Kallas did not call the SANE nurse and conducted the exam herself. 
No. 37987-6-III

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After completing a full exam of N.B., including her genitals, she determined N.B. was 

healthy.

The court sent out the jury and the defense explained its objection to Dr. Kallas’s 

testimony regarding what the social worker told her:

[T]his witness is testifying to statements that were made either by [N.B.] or 

by her mother. This witness doesn’t know. So it’s a double hearsay 

statement. The information that this witness was testifying to came from 

the social worker. That’s one level of hearsay. Then there’s a second level 

of hearsay, either from [N.B.] or from her mother in giving that information 

about what sexual assault might have occurred there. That’s why I think 

it’s objectionable. And the foundation was not laid to overcome that 

objection. 

Secondly, is that because the witness testified that she was following 

protocols that were done in connection with the police and the prosecutor’s 

office, it is clearly to collect—to preserve testimonial evidence, which 

means that it does not meet the standard necessary for a medical records 

exception because this information was not necessarily given to the social 

worker for the purposes of the exam, but for many purposes, including law 

enforcement purposes. And the doctor specifically avoids taking that 

information, which probably would meet the hearsay exception for that, 

because of the procedures that have been set up in conjunction with law 

enforcement. So I don’t think that was appropriate to come in. 

4 RP (Aug. 21-22, 2019) at 597-98. The court disagreed:

I think it was for medical diagnosis and for her—she testified about—it was 

obviously very vague, she didn’t say anything specific about what [N.B.] 

said, just what the general nature of the allegations were. And if that was 

prejudicial in any way, I don’t believe it was. I think it’s probative and it is 

through the medical exception to hearsay that she needed it in order to 

determine what she was going to do next, in terms of her exam.
No. 37987-6-III

State v. Ledesma

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4 RP (Aug. 21-22, 2019) at 598.

Defense witnesses

The defense called Ledesma’s wife and two family friends who had been present 

during the jacket incident. 

Judith Saavedra

Judith Saavedra, Ledesma’s wife, confirmed that she was close with N.B.’s family. 

She remembered the night of the alleged jacket incident: they were having coffee at the 

dining room table with N.B.’s parents and another couple. When N.B. and her parents 

were getting ready to leave, it had gotten cold outside so Ms. Saavedra retrieved a jacket 

from the closet and lent it to N.B.’s mother. Ms. Arreche said it was best if N.B. wore the 

jacket, so N.B. put it on, and they left. N.B. did not get the jacket out of the closet nor did 

she put the jacket back. Ledesma was in the dining room the whole time, and Ms. 

Saavedra did not see Ledesma touch N.B. 

N.B. spent the night at Ms. Saavedra’s home twice. The second time, N.B. and 

K.Q. slept in the living room. Ms. Saavedra went to bed around 12:30 a.m. that night, 

and Ledesma was already asleep. She did not hear anything unusual. 

Ms. Saavedra remembered the day of the alleged church incident because she went 

outside to get heartburn medication from her car. Ledesma was picking up garbage 
No. 37987-6-III

State v. Ledesma

12

outside, which he did every other Sunday between services. She saw N.B. walking 

nearby, talking on her cell phone. N.B. and Ledesma were not interacting. Ledesma and 

Ms. Saavedra went back inside together after she got the medication from her car. 

Even after the allegations, N.B.’s parents socialized with Ms. Saavedra and 

Ledesma. On one occasion, N.B. was in Ms. Saavedra and Ledesma’s home and was not 

acting uncomfortable. In November, after the allegations, N.B.’s mother invited K.Q., 

Ms. Saavedra, and Ledesma to go on a trip, but they did not go. The families are no 

longer friends. 

Beatriz Hernandez and Cergio Hinojosa

Beatriz Hernandez was at Ledesma’s house on the night of the jacket incident. 

She saw Ms. Arreche give the jacket to N.B., who put it on before they all left. She could 

not recall whether Ms. Arreche asked for the jacket or if Ms. Saavedra offered it. She did 

not see Ledesma near N.B. nor did she see N.B. try to put the jacket away. She had 

known Ledesma and Ms. Saavedra for 15 years, and they never had coffee or dinner on 

the patio. 

Cergio Hinojosa, Ms. Hernandez’s husband, testified similarly. On the night of the 

jacket incident, he saw Ms. Arreche give the jacket to N.B. before they left.
No. 37987-6-III

State v. Ledesma

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Ledesma

Outside the presence of the jury, the court asked the defense to make a record on 

Ledesma’s decision not to testify. The following exchange took place:

[THE DEFENSE]: . . . Your Honor, I’ve discussed it thoroughly 

with my client. I’ve advised him that he has an absolute right to testify and 

that he does not have to testify, either. I read him the Jury Instruction that 

will be given in light of him not testifying, and so he understands that the 

jury cannot draw any conclusions from that, and he’s made a decision not to 

testify in this case. 

THE COURT: Is what [defense counsel] just told me, is that all 

true?

[LEDESMA]: Yes. 

THE COURT: You had an opportunity to talk to him about your 

Constitutional right to testify?

[LEDESMA]: Yes.

THE COURT: And your absolute right not to testify?

[LEDESMA]: Yes. 

THE COURT: And what is your decision about that?

[LEDESMA]: Not to testify. 

THE COURT: Okay. Thank you. 

5 RP (Aug. 26-27, 2019) at 679-80.

The defense rested and the State did not call any rebuttal witnesses. 
No. 37987-6-III

State v. Ledesma

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Petrich3instruction, closing arguments, and verdict

The trial court gave instructions of law to the jury, including a Petrich instruction, 

which provided:

The State alleges that the defendant committed multiple acts of child 

molestation in the first degree on multiple occasions. To convict the 

defendant on any count of child molestation in the first degree, one 

particular act of child molestation in the first degree must be proved beyond 

a reasonable doubt, and you must unanimously agree as to which act has 

been proved. You need not unanimously agree that the defendant 

committed all the acts of child molestation in the first degree.

CP at 60. 

In closing, the State elaborated on the Petrich instruction: 

[N.B.] testified about four different incidents where the defendant touched 

her inappropriately. Each incident involved one or more types of sexual 

contact.

. . . [A]ny of these incidents may be considered as an incident that 

you can convict . . . on, but it has to be agreed by the 12 of you.

For example, all 12 of you have to agree that he kissed her on the 

mouth with his tongue. And so you can assign that to Count I. Count II has 

to be a different act, but all 12 of you must decide on that particular act. 

So with regard to the act of him putting her hand on his penis, that 

can be No. 2, if you all agree to that being No. 2. It has to be different than 

the other counts and so on. 

 

3

 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on 

other grounds by State v. Kitchen, 110 Wn.2d 403, 406 n.1, 756 P.2d 105 (1988), 

abrogated in part on other grounds by In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 

316 P.3d 1007 (2014).
No. 37987-6-III

State v. Ledesma

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5 RP (August 26-27, 2019) at 685-86. The State recounted the jacket, sleepover, truck, 

and church incidents, emphasizing how Ledesma came back after the first sleepover 

incident to do the same thing again. He discussed how the truck incident started with 

Ledesma’s hand on N.B.’s thigh but later ended up with his hand on her breast. 

During deliberations, the jury sent out the following question: “Can multiple 

counts arise from [the] same incident?” CP at 67. The court answered, “Please reread the 

jury instructions.” CP at 67.

The jury found Ledesma guilty on all three counts of first degree child molestation. 

The court imposed a concurrent sentence of 130 months to life for each count, based on 

an offender score of 6. 

Ledesma appeals.

ANALYSIS

INEFFECTIVE ASSISTANCE OF COUNSEL 

Ledesma contends his counsel was ineffective for two reasons. First, his counsel 

failed to make a half-time motion that there was insufficient evidence regarding the 

jacket, kitchen, and church incidents to convict. Second, his counsel failed to argue same 

criminal conduct regarding the truck and sleepover incidents at sentencing. 
No. 37987-6-III

State v. Ledesma

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We first set forth the applicable standards. Both the federal and state constitutions 

guarantee the right to effective assistance of counsel. See U.S. CONST. amend. VI; WASH.

CONST. art. I, § 22. We review claims of ineffective assistance of counsel de novo. State 

v. Jones, 183 Wn.2d 327, 338-39, 352 P.3d 776 (2015).

To prevail on an ineffective assistance of counsel claim, a defendant must show 

both (1) deficient performance and (2) resulting prejudice. State v. Estes, 188 Wn.2d 450, 

457-58, 395 P.3d 1045 (2017) (citing Strickland v. Washington, 466 U.S. 668, 687, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Performance is deficient when it falls 

“below an objective standard of reasonableness based on consideration of all the 

circumstances . . . .” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). 

The threshold for deficiency is high; a defendant must overcome a strong presumption 

that counsel’s performance was effective. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 

1260 (2011). Prejudice results when, within reasonable probabilities, the outcome of the 

proceedings would have differed but for counsel’s deficient performance. Estes, 188 

Wn.2d at 458. A defendant must show more than a “‘conceivable effect on the 

outcome’” to prevail. Id. (internal quotation marks omitted) (quoting State v. Crawford, 

159 Wn.2d 86, 99, 147 P.3d 1288 (2006)). 
No. 37987-6-III

State v. Ledesma

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1. Half-time motion

Ledesma contends his counsel was ineffective for failing to bring a half-time 

motion to dismiss for insufficient evidence that sexual contact occurred during the jacket, 

truck, and church incidents. We disagree.

When reviewing a claim of insufficiency, we view the evidence and reasonable 

inferences drawn therein in the light most favorable to the State. State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992). We then ask whether any rational trier of fact 

could have found the State proved the elements of the crime beyond a reasonable doubt. 

Id. The weight and credibility of the evidence is left to the trier of fact and cannot be 

reviewed on appeal. State v. Goodman, 150 Wn.2d 774, 781, 783, 83 P.3d 410 (2004). 

We review the sufficiency of the evidence de novo. State v. Berg, 181 Wn.2d 857, 867, 

337 P.3d 310 (2014).

To convict Ledesma of child molestation in the first degree, the State had 

to prove that: (1) Ledesma had sexual contact with a N.B., (2) N.B. was less than 

12 years old at the time of the contact and was not married to Ledesma, (3) N.B. is 

at least 36 months younger than Ledesma, and (4) this contact occurred in Washington. 

See RCW 9A.44.083.
No. 37987-6-III

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Ledesma argues the State failed to prove sexual contact. “Sexual contact” means 

“any touching of the sexual or intimate parts of a person done for the purpose of 

gratifying sexual desire of either party.” RCW 9A.44.010(2). Contact is sexual “if the 

conduct is of such a nature that a person of common intelligence could fairly be expected 

to know that, under the circumstances, the parts touched were intimate and therefore the 

touching was improper.” State v. Jackson, 145 Wn. App. 814, 819, 187 P.3d 321 (2008). 

The statute protects “parts of the body in close proximity to the primary erogenous areas 

which a reasonable person could deem private with respect to salacious touching by 

another.” In re Welfare of Adams, 24 Wn. App. 517, 521, 601 P.2d 995 (1979). 

Whether contact is sexual may be determined as a matter of law when it involves 

direct contact to the genitals or breasts. Id. at 520. Conversely, whether contact with 

other body parts is sexual must be left to the trier of fact. Jackson, 145 Wn. App. at 819. 

Even over-the-clothing touching may be sexual contact if it is not susceptible of an 

innocent explanation. State v. Harstad, 153 Wn. App. 10, 22, 218 P.3d 624 (2009).

Ledesma first claims the jacket incident, when he put his hands in N.B.’s pants 

pockets, did not constitute sexual contact. He next claims the kitchen and church 

incidents, when he grabbed N.B. by her waist, pulled her toward him, and tried to kiss 

her, were not sexual contact. He relies on State v. R.P., 67 Wn. App. 663, 838 P.2d 701 
No. 37987-6-III

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(1992), aff’d in part, rev’d in part, 122 Wn.2d 735, 862 P.2d 127 (1993), and State v. 

Marcum, 61 Wn. App. 611, 811 P.2d 963 (1991), to support his position. 

In R.P., the defendant picked up, hugged, and kissed a classmate before placing a 

“‘hickey’” on her neck. 67 Wn. App. at 665. R.P. appealed his indecent liberties 

conviction, arguing insufficient evidence of sexual contact. Division One of this court 

affirmed: R.P. forcibly contacted the victim’s neck with his lips, which are associated 

with sexually intimate acts, and the contact lasted long enough to bruise. Id. at 669. 

The Supreme Court reversed on that count. Its two-paragraph opinion read, in 

part: “After examining the record and the facts of this case, we find that there was 

insufficient evidence of sexual contact to sustain count 1 (indecent liberties).” R.P., 

122 Wn.2d at 736.

In Marcum, the defendant argued the evidence that he put his hands down the 

inside of the victim’s pants (count 2) and kissed the victim’s face and rubbed his chest 

(count 3) was insufficient to prove first degree child molestation. 61 Wn. App. at 612 

n.1. In a footnote, Division Two held that evidence of the defendant’s hands in the 

victim’s pants was “enough to raise an inference that he did so for sexual gratification.” 

Id. Without explanation, it reversed on count 3, holding that evidence of kissing and 

chest rubbing were insufficient to convict. Id.
No. 37987-6-III

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Neither of these cases contain sufficient facts on the circumstances of the contact 

nor do they provide analysis as to why the contact was not sexual. We find Adams is 

more helpful to our analysis, where the court held the defendant’s contact with the 

victim’s hips was sexual because, under the circumstances, the touching was improper. 

24 Wn. App. at 520. The Adams court explained that a jury can determine whether 

conduct is improper using “commonly accepted community sense of decency, propriety

and morality.” Id. 

Here, the jury determined Ledesma’s contact with N.B. was sexual. Because 

Ledesma touched N.B. over her clothes on her thighs and waist, and not her genitals or 

breasts, the nature of the contact was a question for the jury. The State’s evidence, which 

we take as true, sufficiently supports the jury’s finding. Ledesma offered no innocent 

explanation for the challenged incidents—putting his hands deep inside an 11-year-old 

girl’s front pockets, later cornering the same girl and trying to kiss her, and still later 

trying to kiss her on the lips while she resisted. These incidents are all improper

according to a commonly accepted community sense of decency and morality, and any 

reasonable person in Ledesma’s situation should have known as much. The evidence 

sufficiently supported a finding of sexual contact for all three challenged incidents. 
No. 37987-6-III

State v. Ledesma

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Because the evidence was sufficient to prove sexual contact, Ledesma’s counsel 

was not ineffective for not moving to dismiss on those grounds. A reasonable attorney 

would not make a failing motion; thus, the performance did not fall below an objective 

standard of reasonableness. 

2. Not arguing same criminal conduct at sentencing

Ledesma next contends his counsel was ineffective for failing to argue at 

sentencing that the two molestations during the sleepover and the two molestations during 

the truck ride were the same criminal conduct. We agree that it was deficient 

performance not to make the argument, but we conclude that Ledesma has not shown his 

sentence would have differed had counsel done so.

Failure to argue same criminal conduct at sentencing may constitute ineffective 

assistance of counsel, State v. Rattana Keo Phuong, 174 Wn. App. 494, 547, 299 P.3d 37 

(2013), but it is only prejudicial if Ledesma can show that his sentence would have 

differed had counsel made the argument. State v. Munoz-Rivera, 190 Wn. App. 870, 887, 

361 P.3d 182 (2015). 

If separate offenses involve the same criminal conduct, they are counted as a single 

offense for purposes of calculating an offender score. RCW 9.94A.589(1)(a). Separate 

offenses constitute the same criminal conduct when three elements are present: “(1) same 
No. 37987-6-III

State v. Ledesma

22

criminal intent, (2) same time and place, and (3) same victim.” State v. Porter, 133 

Wn.2d 177, 181, 942 P.2d 974 (1997). Unless all the elements are met, the offenses are 

counted separately. State v. Chenoweth, 185 Wn.2d 218, 220, 370 P.3d 6 (2016). Where 

the evidence supports either conclusion, the matter lies in the trial court’s discretion. 

State v. Graciano, 176 Wn.2d 531, 538, 295 P.3d 219 (2013). The defendant bears the 

burden of proving same criminal conduct. Id. at 539.

Ledesma argues the two acts that occurred during the sleepover and the two acts 

that occurred in the truck involve two, not four, instances of criminal conduct because his 

intent did not change. Multiple acts may have the same criminal intent if they constitute a 

“continuing, uninterrupted sequence of conduct.” Porter, 133 Wn.2d at 186. When an 

offender has time between the acts to “pause, reflect, and either cease his criminal activity 

or proceed to commit a further criminal act,” and chooses the latter, new criminal intent 

has been formed to commit the second act. State v. Grantham, 84 Wn. App. 854, 859, 

932 P.2d 657 (1997). 

We agree with Ledesma that the truck acts were the same criminal conduct. 

Ledesma first put his hand on N.B.’s upper thigh and touched her vagina through her 

pants. When she moved his hand, he squeezed it and he then leaned over and touched her 

breast. These acts occurred within moments of one another and were a “continuing,
No. 37987-6-III

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23

uninterrupted sequence.” This scenario is like Porter, where the defendant made two 

back-to-back drug sales in the same place to the same undercover officer. 133 Wn.2d at 

183. 

However, we disagree with Ledesma that the sleepover incidents were the same 

criminal conduct. Ledesma relies on Phuong, 174 Wn. App. at 548, where the defendant 

dragged the victim from her car, up the stairs, and into his bedroom before attempting to 

rape her. Phuong was convicted of unlawful imprisonment and attempted rape. Id. at 

501. At sentencing, counsel did not argue same criminal conduct, which was ineffective 

assistance because the court could have found Phuong’s criminal purpose was the same 

for both the unlawful imprisonment and the attempted rape. Id. at 548. 

Phuong is distinguishable. Notably, Ledesma first touched N.B. around 3:00 a.m. 

He then left the living room and came back, three hours later, to molest N.B. a second 

time. This is dissimilar from the unlawful imprisonment prior to the rape scenario that 

was a continuous sequence of events. It is more like Grantham, where the defendant 

raped the victim, kicked her, threatened her, ignored her requests to be brought home, 

then used new physical force to rape her again. 84 Wn. App. at 856. Ledesma had 

sufficient time—much more than Grantham had—to reflect on his first act before 

deciding to proceed with a second act. Thus, while we agree that Ledesma intended 
No. 37987-6-III

State v. Ledesma

24

sexual contact with N.B. for both acts, they were sufficiently distinct in time so that 

Ledesma had ample time between the incidents to pause and reflect. 

In total, there were six instances of criminal conduct: (1) the jacket incident,

(2) the truck incident, (3) the kitchen incident, (4) the first sleepover incident, (5) the 

second sleepover incident, and (6) the church incident. Because of how the State charged 

the three counts and argued them, it was not possible for the trial court (or us) to know 

which of the six instances of criminal conduct the jury’s three convictions were based on. 

Out of the seven touchings, only the two truck touchings involved the same criminal 

conduct. The odds are therefore less than 50 percent that the jury erred by basing two of 

its three convictions on the two truck touchings. For this reason, we cannot conclude that 

the trial court would have found that two of the convictions were based on the same 

criminal conduct. Because Ledesma cannot establish he was prejudiced by his counsel’s 

failure to raise the same criminal conduct argument at sentencing, we reject his 

ineffective assistance of counsel claim.

DR. KALLAS’S TESTIMONY

Ledesma argues the trial court erred by allowing Dr. Kallas to testify about what 

the social worker told her. Ledesma contends the testimony was inadmissible triple 

hearsay—N.B. to her mother, her mother to the social worker, and the social worker to 
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25

Dr. Kallas. The State contends the testimony was admissible under a hearsay exception, 

ER 803(a)(4)’s statement for purposes of medical diagnosis or treatment. Alternatively, 

the State argues that error, if any, is not reversible. We agree with the second, alternative 

argument.

Nonconstitutional evidentiary error is reversible only if it is reasonably probable 

that the error materially affected the outcome of the proceeding. State v. Neal, 144 Wn.2d

600, 611, 30 P.3d 1255 (2001). Here, the evidentiary error, if any, did not materially 

contribute to the jury’s guilty verdicts.

N.B. testified at length about Ledesma’s conduct and the State relied almost 

exclusively on her testimony to prove its case. In contrast, Dr. Kallas testified the social 

worker told her “there was alleged fondling over clothing” that “occurred more than three 

days prior.” 4 RP (Aug. 21-22, 2019) at 592. This brief testimony was admitted by the 

State to explain why Dr. Kallas—rather than a SANE nurse—examined N.B. Compared 

to N.B.’s extensive testimony, Dr. Kallas’s testimony was generalized and brief. Thus, 

the purported hearsay did not materially contribute to the jury’s guilty verdicts. We 

conclude that evidentiary error, if any, is not reversible. 
No. 37987-6-III

State v. Ledesma

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ER 403

Ledesma argues for the first time on appeal that, even if Dr. Kallas’s testimony 

was admissible under the medical exception, it should have been excluded under ER 403 

because it was unfairly prejudicial.4 The State argues this court should not address this 

issue because it was not raised below. We agree.

On appeal, a party may only assign error to a trial court’s evidentiary ruling if they 

objected on those grounds at trial. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 

(1985). In other words, we will not reverse “where the trial court rejected the specific 

ground upon which the defendant objected to the evidence and then, on appeal, the 

defendant argues for reversal based on an evidentiary rule not raised at trial.” State v. 

Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009).

Ledesma did not raise an ER 403 objection to Dr. Kallas’s testimony. He instead 

argued it was hearsay. Because his objection did not sufficiently allow the trial judge to 

 

4

 ER 403 provides: “Although relevant, evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.”
No. 37987-6-III

State v. Ledesma

27

assess the proffered evidence under ER 403, he cannot now do so on appeal. 

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW (SAG)

Ledesma raises several additional arguments in his SAG. We address each issue in 

turn. 

SAG #1: Contradictions in testimony

Ledesma contends that much of N.B.’s testimony was contradicted by her own and 

other witnesses’ testimony. He lists dozens of instances where N.B.’s testimony changes 

slightly and points to facts and other testimony to undermine N.B.’s version of events. He

also emphasizes that N.B.’s parents remained friends with him even after the allegations, 

inviting him on trips and not worrying about N.B. being near him—that, he claims,

indicates they knew the abuse did not happen. He finally contends that N.B. made false 

accusations so that her family would move back to Florida. 

While we can understand Ledesma’s frustration, it is not the role of the appellate 

court to weigh evidence or engage in fact finding. State v. Bennett, 180 Wn. App. 484, 

489, 322 P.3d 815 (2014). And we cannot review the jury’s credibility determinations on 

appeal. Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). The jury heard 

evidence from numerous witnesses, some of whom contradicted and undermined portions 

of N.B.’s testimony. The jury heard that N.B.’s parents stayed in touch with Ledesma 
No. 37987-6-III

State v. Ledesma

28

even after N.B. came forward about the abuse, and N.B. testified that she wished to live 

in Florida. The jury is free to believe or disbelieve witnesses and weigh the evidence 

before coming to a factual determination. Here, the jury found the State, through N.B. 

and other witnesses, proved beyond a reasonable doubt that Ledesma molested N.B. on 

three occasions. We cannot disturb a valid jury verdict on the grounds Ledesma raises. 

SAG #2: Ledesma prevented from testifying

Ledesma next contends he requested to testify in his own defense, but his attorney 

advised against it and told him he did not need to because “everything would be just 

fine.” SAG at 1.

Defendants have a constitutional right to testify on their own behalf. Rock v. 

Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). This right is 

protected by both the federal and state constitutions. Id.; State v. Robinson, 138 Wn.2d 

753, 758, 982 P.2d 590 (1999); U.S. CONST. amend. V; U.S. CONST. amend. VI; 

U.S. CONST. amend. XIV; WASH. CONST. art. I, § 22. This fundamental right “cannot be 

abrogated by defense counsel or by the court.” Robinson, 138 Wn.2d at 758. Only a 

defendant can decide whether to exercise the right to testify, and a defendant’s waiver of 

that right must be knowing, voluntary, and intelligent. Id. at 758-59.
No. 37987-6-III

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29

A defendant may be entitled to an evidentiary hearing if counsel actually prevented 

the defendant from testifying. State v. Thomas, 128 Wn.2d 553, 557, 910 P.2d 475 

(1996). However, an allegation that counsel advised against taking the stand, without

“substantial factual evidence” is insufficient to warrant such a hearing. Robinson, 138 

Wn.2d at 770; see In re Pers. Restraint of Lord, 123 Wn.2d 296, 316-17, 868 P.2d 835 

(1994). “The defendant must ‘allege specific facts’ and must be able to ‘demonstrate, 

from the record, that those ‘specific factual allegations would be credible.’” Robinson, 

138 Wn.2d at 760 (internal quotation marks omitted) (quoting Passos-Paternina v. United 

States, 12 F. Supp. 2d 231, 239 (D.P.R. 1998), aff’d, 201 F.3d 428 (1st Cir. 1999)). 

Ledesma has not alleged specific facts nor pointed to any place in the record to 

show his counsel prevented him from testifying. Counsel told the court that he advised 

Ledesma of his absolute right to testify, as well as his absolute right not to testify. The 

court asked Ledesma whether this conversation occurred and Ledesma confirmed that it 

had. When the court asked what his decision was, Ledesma answered, “Not to testify.” 

5 RP (Aug. 26-27, 2019) at 680. In light of this record, Ledesma’s bare assertion that 

counsel advised him against testifying does not warrant an evidentiary hearing on the 

issue. 
No. 37987-6-III

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SAG #3: Ineffective assistance of counsel

Ledesma takes issue with several decisions made by his trial counsel. He does not 

present these arguments as ineffective assistance of counsel but instead lists them as 

bullet points on the first page of his SAG. While this court generally refuses to review 

issues without argument and citation to authority, RAP 10.3(a)(5); State v. Olson, 126 

Wn.2d 315, 320-21, 893 P.2d 629 (1995), we can dispose of these issues easily. 

Ledesma first contends defense counsel “deliberately ignored” his request to 

remove two venire jurors 15 and 225from the pool. SAG at 1. We first note that 

peremptory challenges fall within counsel’s ambit; they are not designated as a 

defendant’s right. State v. Lawler, 194 Wn. App. 275, 285, 374 P.3d 278 (2016). But 

because juror bias affects a defendant’s constitutional right to a fair trial, id. at 281, we 

briefly review the record.

Venire juror 15 worked for the Department of Corrections and is married to a 

Tacoma police officer. She understood the reasonable doubt standard and the importance 

of keeping jury deliberations private. Ledesma does not point to specific instances of bias 

or develop any argument as to why venire juror 15 should not have been empaneled. 

 

5 Venire juror 22 was excused for cause, so that issue is moot. 
No. 37987-6-III

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31

Ledesma next contends his counsel deliberately ignored his request to call a 

witness. In general, “the decision whether to call a particular witness is a matter for 

differences of opinion and therefore presumed to be a matter of legitimate trial tactics.” 

In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004). Tactical 

decisions such as these are left to defense counsel. Grier, 171 Wn.2d at 31. 

Ledesma states that his desired witness, Mariana Barajas, brought N.B. from 

soccer games to Ledesma’s home and knew N.B.’s relationship with her father. He 

otherwise does not explain how Ms. Barajas’s testimony would have aided his defense. 

There are numerous reasons why counsel may not have called this witness and without 

more information, we cannot determine whether this decision was unreasonable. And of 

course, we cannot determine whether the absence of Ms. Barajas’s testimony caused 

prejudice because we do not know what she would have testified about. 

Without a developed argument or citation to the record, we cannot adequately 

address Ledesma’s ineffective assistance of counsel claims. If material facts on this issue 

exist outside of the record, Ledesma must seek relief through a personal restraint petition. 

RAP 16.4; State v. Alvarado, 164 Wn.2d 556, 568-69, 192 P.3d 345 (2008).
No. 37987-6-III

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32

SAG #4: Ledesma’s back problems

Ledesma contends the judge was negligent in not providing information to the jury 

about his back problems.6 During trial, defense counsel addressed the court: 

My client wants you to understand that he was in apparently an 

accident a couple years ago and he’s been moving around a lot in his seat 

and he’s adjusting to get comfortable. He has lower back issues. We got 

him an extra pillow. Hopefully that will take care of it. He doesn’t want 

you to think he’s being disrespectful or anything.

3 RP (Aug. 20, 2019) at 450. The court responded, “No problem. Thanks for the 

explanation.” 3 RP (Aug. 20, 2019) at 450. The record does not contain any other 

references to Ledesma’s back problems. Again, without any specific argument or 

citations to the record, this court cannot review this issue. See RAP 10.10(c) (We will not 

consider an argument made in a statement of additional grounds if it does not inform us of

the nature and occurrence of the alleged error.).

Most of Ledesma’s contentions involve issues this court is unable to review. The 

remaining claims are undeveloped and lack merit. 

 

6 Ledesma’s SAG reads: “I had requested that my attorney let the Judge and the 

jurors know of my back problems, (that situation came up in court about me, moving 

consistently), the judge was negligent to provide this information to the jurors.” SAG at 

1. It seems he meant to write that the judge was negligent in not providing this 

information to the jurors. 
No. 37987-6-III 

State v. Ledesma 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Lawrence-Berrey, J.\ 

j 

WE CONCUR: 

O)dow~. A-c 6= 

Siddoway, A.C.J. ~~ ,.::r. Fearing, J. 

33