Fl LE 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Respondent, 

v. 

JORGE NAHUN PENA FUENTES, 

Petitioner. 

) 

) 

) 

) 

) 

) 

) 

) 

) ___________________________) 

No. 88422-6 

EnBanc 

Filed _ _;_F-=EB"'-, -""-0 _,_8 _,_20 ........ 14..___ 

OWENS, J. -- The Sixth Amendment guarantees a criminal defendant the 

right to assistance of counsel, which includes the right to confer privately with that 

counsel. State intrusion into those private conversations is a blatant violation of a 

foundational right. We strongly condemn "the odious practice of eavesdropping on 

privileged communication between attorney and client." State v. Cory, 62 Wn.2d 371, 

378, 382 P.2d 1019 (1963). We presume that such eavesdropping results in prejudice 

to the defendant and have vacated criminal convictions when there was no way to 

isolate the prejudice to the defendant from such "shocking and unpardonable 

conduct." ld. 
State v. Pena Fuentes 

No. 88422-6 

In this case, we are asked whether a conviction must be vacated even if it were 

shown that the eavesdropping did not result in any prejudice to the defendant-in 

other words, whether the presumption of prejudice from such eavesdropping is 

rebuttable. That question is crucial in this case because here, the police detective 

eavesdropped on attorney-client conversations after the trial was complete and the 

jury had found the defendant guilty. Thus, while the conduct was unconscionable, 

there was no way for the eavesdropping to have any effect on the trial itself. Further, 

the prosecutor submitted a declaration stating that the detective on the case never 

communicated any information about the attorney-client conversations to the 

prosecution. 

In light of these circumstances, we hold that eavesdropping is presumed to 

cause prejudice to the defendant unless the State can prove beyond a reasonable doubt 

that the eavesdropping did not result in any such prejudice. In this case, the record 

does not provide enough information to make this determination, and we remand for 

additional discovery. 

FACTS 

While the most significant issue in this case involves the detective 

eavesdropping on conversations between Jorge Nahun Pefia Fuentes and his attorney, 

there are also legal challenges to four other rulings: (1) the trial judge's decision 

regarding discovery related to the eavesdropping, (2) the trial judge's evidentiary 

2 
State v. Pena Fuentes 

No. 88422-6 

ruling related to a letter by Pefia Fuentes's daughter (who is also the victim's half 

sister), (3) the trial judge's ruling that Pefia Fuentes's convictions for both rape of a 

child and child molestation violated his double jeopardy rights, and ( 4) the Court of 

Appeals' denial ofPefia Fuentes's motion to supplement the record. Below is a 

summary of the basic facts in this case, as well as the facts related to each of the 

various legal issues. 

J.B. Reports Abuse 

In November 2008, ninth grader J.B. told her school counselor that her 

stepfather, Pefia Fuentes, had touched her inappropriately when she was younger. The 

counselor immediately contacted Child Protective Services and J.B.'s parents. The 

police investigated, and Pefia Fuentes was eventually charged with first degree rape of 

a child, three counts of first degree child molestation, and three counts of second 

degree child molestation. 

Overview of the Trial 

Pefia Fuentes was put on trial in October 2010. Because of the ongoing nature 

of the abuse and the limitations of J.B.'s memories from childhood, the prosecution 

did not know the specific dates of particular incidents of abuse. However, J.B. could 

recall the location of abuse, and because the family had moved somewhat frequently, 

the different incidents of abuse could be connected with specific time periods based 

on where the family was living when the abuse occurred. Therefore, the prosecution 

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State v. Pefia Fuentes 

No. 88422-6 

based its charges on conduct occurring during a certain time period, which it 

determined based on where the family was living at the time: 

• Count II was based on abuse alleged to have occurred while the family was 

living at an apartment in Bellevue, between November 26, 2000 and June 1, 

2003. 

• Counts I, III, and IV were based on abuse alleged to have occurred while the 

family was living at a condo between January 1, 2003 and November 25, 

2005. 

• Counts V, VI, and VII were based on abuse alleged to have occurred after 

Pefia Fuentes and J.B. 'smother had divorced, while J.B. was living with her 

mother in Sammamish and Pefia Fuentes was living in Redmond between 

November 26, 2005 and November 25, 2007. 

At trial, J.B. testified about many incidents of inappropriate touching, 

beginning when she was in first grade. Her memories of the early abuse at the 

Bellevue apartment (related to count II) were "[n]ot very good," 2 Verbatim Report of 

Proceedings (VRP) at 322, and the jury ultimately found Pefia Fuentes not guilty on 

count II. 

J.B.'s memories of later abuse at the condo (related to counts I, III, and IV) 

were much clearer. She testified in detail about repeated incidents ofPefia Fuentes 

abusing her at the condo. !d. at 329-30. J.B. also testified about two specific and 

particularly severe incidents involving penetration that occurred while they were 

living at the condo. The jury ultimately found Pefia Fuentes guilty on counts I, III, 

and IV. 

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State v. Pena Fuentes 

No. 88422-6 

J.B. indicated that the abuse was less frequent after Pefia Fuentes and her 

mother divorced. During this time, lB. testified that the abuse occurred at Pefia 

Fuentes's home in Redmond (related to counts V, VI, and VII). The jury was unable 

to reach unanimity on the remaining charges. 

No witnesses directly corroborated or refuted J.B.'s testimony. Some of the 

State's witnesses, including lB.'s grandmother, testified that lB. sometimes 

expressed disco_mfort about having to go to Pefia Fuentes's house, and two of lB.'s 

friends testified that she had alluded to the abuse in previous years. 

Pefia Fuentes himself did not testify at trial, but the original police interview of 

Pefia Fuentes was submitted as evidence. During that interview, he denied most of the 

abuse but acknowledged a few incidents that occurred while he was roughhousing 

with J.B. 

L.P. 's Testimony at Trial 

Most of the issues now in front of us arise out of a series of events that began 

with a letter written by J.B. 'shalf sister, L.P. L.P. is about four and a half years 

younger than lB. and has the same mother, but is the biological daughter ofPefia 

Fuentes. At trial, the defense introduced a letter to the prosecutor that L.P. had 

written when she was 11 years old. In the letter, L.P. indicated that she believed lB. 

was lying at the behest of their mother based on a conversation she had overheard 

between them. In her deposition, L.P. indicated that she could not recall whose idea 

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State v. Pena Fuentes 

No. 88422-6 

the letter was, and that she could no longer remember what she had overheard her 

mother say to J .B. 

The trial judge allowed the jury to consider the letter in order to assess L.P.' s 

credibility-i.e., for impeachment purposes only-but not for the truth of the matter 

asserted within the letter. At trial, L.P. again testified that she could not remember the 

conversation between her mother and J .B. 

Double Jeopardy Ruling 

After his conviction, Pefia Fuentes filed a motion for a new trial, arguing that 

his convictions for first degree rape of a child (count I) and first degree child 

molestation (counts III and IV) violated his double jeopardy rights. Pefia Fuentes 

argued that the jury could have found him guilty of rape of a child and child 

molestation for the same act because the court did not instruct the jury that those 

occasions had to be separate and distinct from the act alleged in count I. The trial 

judge agreed and granted a new trial on count I. He then ruled that count I could not 

proceed to trial because of the police misconduct discussed below, so he dismissed it 

with prejudice. 

New Video ofL.P. 

After Pefia Fuentes's conviction and while the motion for the new trial was 

pending, the defendant's current wife, Mihaela Pefia, 1 and her brother, Corneliu 

1 To avoid confusion, we refer to Mihaela Pefia by her first name in this opinion. 

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State v. Peiia Fuentes 

No. 88422-6 

Hertog, decided to contact L.P. about her testimony. Hertog discovered through 

Face book where L.P. had recently begun attending church and approached her there. 

Hertog and L.P. dispute the nature of the ensuing conversation. Hertog contends that 

they simply explained to L.P. that her trial testimony had been unclear and asked if 

she would be willing to clarify what she remembered. According to Hertog, L.P. 

agreed to clarify her testimony on camera "without any hesitation," and when Mihaela 

asked L.P. if she felt threatened or intimidated, L.P. answered no. Clerk's Papers 

(CP) at 71. 

On the video, Mihaela asked, "And what is it that you can testify to? And what 

have you told me before?" and L.P. responded, "That all the accusations I made to my 

dad are not true and that I heard my mom and my sister plotting to accuse my dad of 

sexual assault." Id. at 146. 

However, L.P. 's version of the events surrounding the videotaping differs 

significantly from Hertog's. L.P. indicates that she panicked when Mihaela and 

Hertog showed up at her church and that she "had never felt more scared in [her] life." 

Id. at 150. She states that once she saw they had a video camera, she knew Mihaela 

and Hertog would not leave unless she made a video saying what they wanted her to 

say. According to L.P., Mihaela told L.P. how to answer the questions on the video. 

On camera, L.P. answered accordingly, but later said, "I only did that because I was 

scared ... I knew that all the things I had said in that video were lies." !d. at 151. 

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State v. Pena Fuentes 

No. 88422-6 

Pefia Fuentes then filed a supplemental motion for a new trial based on (1) the 

judge's decision to disallow L.P.'s letter at trial and (2) the "newly discovered 

evidence" of the video of L.P. recanting her trial testimony. !d. at 58. The trial judge 

denied the motion. On the first issue, he ruled that the decision to exclude L.P. 's letter 

was within the court's discretion. On the second issue, the trial judge noted that it 

came down to credibility. He found that L.P. was already impeached at trial and that 

the video would not have changed the results. 

A Detective Listens to Private Attorney-Client Conversations 

After learning ofMihaela and Hertog's visit to L.P. at her church in midDecember 2010, the prosecutor and the police decided to investigate possible witness 

tampering. The prosecutor asked Detective Casey Johnson to listen to Pefia Fuentes's 

phone calls from jail. On January 5, 2011, Detective Johnson informed the prosecutor 

that he had listened to all of Pefia Fuentes's phone calls, including six conversations 

between Pefia Fuentes and his attorney. The prosecutor immediately informed 

Detective Johnson that he should not listen to any more calls and that he should not 

disclose the content of the conversations between Pefia Fuentes and his attorney to 

anyone. The prosecutor also requested that the detective be removed from the witness 

tampering investigation. The prosecutor then told defense counsel about the 

eavesdropping. The prosecutor later submitted a declaration stating that Detective 

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State v. Pena Fuentes 

No. 88422-6 

Johnson did not disclose the content of the phone calls between Pefia Fuentes and his 

attorney to him. 

Because of the eavesdropping, Pefia Fuentes moved to dismiss all charges with 

prejudice. The trial judge agreed that the police misconduct was "egregious." 3 VRP 

at 593. However, he denied the motion to dismiss, concluding that the police 

misconduct did not affect either the trial-which had concluded prior to the 

eavesdropping-or the motion for a new trial. Pefia Fuentes moved for discovery of 

all police reports and evidence gathered by Detective Johnson, arguing that he had 

previously requested such information but that the prosecutor had not provided it. He 

also moved to dismiss all charges because the State withheld such evidence. The 

judge denied the motion for discovery because he had already ruled on the underlying 

motion. 

Motion To Supplement the Record on Appeal 

Pefia Fuentes appealed the trial court's ruling that the police misconduct did not 

affect the trial, as well as its rulings on discovery and excluded evidence. The State 

cross appealed the trial judge's ruling on the double jeopardy violation. 

At the Court of Appeals, Pefia Fuentes filed a supplemental designation of 

clerk's papers, which included a formal complaint filed with the King County 

Sheriffs Department regarding Detective Johnson's actions, as well as the sheriffs 

department's response. Upon a motion from the State, the Court of Appeals struck the 

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State v. Pefia Fuentes 

No. 88422-6 

materials because (1) Pefia Fuentes failed to address RAP 9.11, (2) the additional 

evidence he submitted did not appear likely to change the decision being reviewed, 

and (3) it would not be inequitable to decide the case on the existing record. 

The Court of Appeals affirmed all of the trial court's rulings except the double 

jeopardy ruling and remanded for a longer sentence. State v. Pena Fuentes, No. 

66708-4-I, slip op. (unpublished portion) at 18 (Wash. Ct. App. Jan. 14, 2013). Pefia 

Fuentes petitioned for review and this court granted review. State v. Pena Fuentes, 

177 Wn.2d 1008, 302 P.3d 180 (2013). 

ISSUES 

1. Is the presumption of prejudice resulting from the State eavesdropping on 

attorney-client conversations rebuttable? If so, what standard of proof is required? 

2. Did the trial judge err when he denied discovery of police reports related to 

the eavesdropping? 

3. Did the trial judge err when he allowed admission ofL.P.'s letter only for 

witness impeachment purposes? 

4. Did Pefia Fuentes's convictions for first degree rape of a child and first 

degree child molestation violate double jeopardy? 

5. Did the Court of Appeals correctly strike Pefia Fuentes's supplemental 

clerk's papers? 

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State v. Pena Fuentes 

No. 88422-6 

ANALYSIS 

A. The Presumption of Prejudice Resulting from the State Eavesdropping on 

Attorney-Client Conversations Can Be Rebutted If the State Shows the Absence 

of Prejudice Beyond a Reasonable Doubt 

A defendant's constitutional right to the assistance of counsel unquestionably 

includes the right to confer privately with his or her attorney. Cory, 62 Wn.2d at 373-

74. In Cory, the seminal Washington case on this issue, this court dismissed a 

defendant's charges with prejudice because of an appalling decision by the sheriff to 

install a microphone in the jail's conference room and eavesdrop on conversations 

between the defendant and his attorney during trial. !d. at 372, 378. 

The Cory court presumed prejudice arising from the eavesdropping that 

occurred during trial. !d. at 377 & n.3 ("we must assume that information gained by 

the sheriff was transmitted to the prosecutor" and therefore "[t]here is no way to 

isolate the prejudice resulting from an eavesdropping activity, such as this"). 

However, the court did not directly address whether all eavesdropping is per se 

prejudicial or if the presumption of prejudice is rebuttable. 

The United States Supreme Court has expressly rejected a per se prejudice rule 

for such eavesdropping, holding that when an eavesdropper did not communicate the 

topic of the overheard conversations and thereby create "at least a realistic possibility 

of injury to [the defendant] or benefit to the State, there can be no Sixth Amendment 

violation." Weatherfordv. Bursey, 429 U.S. 545, 557-58,97 S. Ct. 837, 51 L. Ed. 2d 

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State v. Pena Fuentes 

No. 88422-6 

30 (1977) (reviewing a case where an undercover agent sat in on a meeting between 

defendant and counsel but did not communicate anything about the meeting to anyone 

else). The United States Supreme Court's reasoning is sound, and we agree with it. 

While eavesdropping on attorney-client conversations is an egregious violation of a 

defendant's constitutional rights and cannot be permitted, there are rare circumstances 

where there is no possibility of prejudice to the defendant. We do not believe the 

extreme remedy of dismissing the charges is required when there is no possibility of 

prejudice. To account for those rare circumstances where there is no possibility of 

prejudice to the defendant, we hold that the presumption of prejudice arising from 

such eavesdropping is rebuttable. 

We now turn to the question of the burden of proof in such a situation and hold 

that the State has the burden to show beyond a reasonable doubt that the defendant 

was not prejudiced. State v. Granacki, 90 Wn. App. 598, 602 n.3, 959 P.2d 667 

(1998) ("A trial court's decision to dismiss an action based on State v. Cory and under 

CrR 8.3(b) is reviewed for abuse of the court's discretion. State v. Starrish, 86 Wn.2d 

200,209, 544 P.2d 1 (1975). Even under CrR 8.3(b), the burden is on the State to 

prove beyond a reasonable doubt that there was no prejudice to the defendant."). The 

constitutional right to privately communicate with an attorney is a foundational right. 

We must hold the State to the highest burden of proof to ensure that it is protected. 

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State v. Pena Fuentes 

No. 88422-6 

The State argues that the defendant should have the burden to show prejudice 

when the information is not communicated to the prosecutor. We disagree. The State 

is the party that improperly intruded on attorney-client conversations and it must 

prove that its wrongful actions did not result in prejudice to the defendant. Further, 

the defendant is hardly in a position to show prejudice when only the State knows 

what was done with the information gleaned from the eavesdropping. The proper 

standard the trial court must apply is proof beyond a reasonable doubt with the burden 

on the State. 

Here, the record is unclear as to what standard the trial judge applied. When 

evaluating the eavesdropping, the trial judge commented that it was egregious 

misconduct but then stated, "I do not believe it affected the trial and I'm not satisfied 

that it will affect, sufficiently, well, that it has affected the motion for a new trial. I'm 

going to deny the motion to dismiss on that basis." 3 VRP at 593-94. On this record, 

there is no way to be sure of the standard applied by the trial judge. Therefore, we 

remand for the trial court to consider whether the State has proved the absence of 

prejudice beyond a reasonable doubt. 

B. Additional Discovery Is Needed To Determine Whether the Eavesdropping 

Resulted in Prejudice to Pena Fuentes 

The prosecutor argues that Pefia Fuentes cannot show prejudice resulting from 

the eavesdropping because (1) the eavesdropping occurred after trial, so the actual 

trial could not have been affected, and (2) the prosecutor never had any knowledge of 

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State v. Pena Fuentes 

No. 88422-6 

the content of the conversations, so the posttrial motions could not have been affected. 

Pefia Fuentes counters that the overheard conversations included discussions 

regarding the posttrial motions and that since Detective Johnson was engaged in an 

investigation related to the posttrial motions at the same time that he had access to the 

tapes of the attorney-client conversations, his investigation may have been aided by 

his eavesdropping. Because the State holds all of the information regarding the 

eavesdropping and any results thereof, Pefia Fuentes cannot make any showing of 

prejudice (or rebut the State's arguments regarding lack of prejudice) without 

discovery of information related to the eavesdropping. 

Under CrR 4.7(e)(1), a court may require disclosure of any relevant 

information that is both material and reasonable. Here, the trial court's decision 

rested entirely on the State's representations as to the prosecutor's knowledge of the 

content of the eavesdropped conversation. Notably, however, the State made no 

representations as to the date that Detective Johnson eavesdropped on the 

conversations or whether he continued his investigation after that date-the State only 

submitted evidence showing that Detective Johnson discontinued his participation in 

the investigation after he disclosed the eavesdropping to the prosecutor on January 5, 

2011. The key pieces of evidence at issue in the posttrial motions were the videotape 

of L.P. and her later declaration to the prosecutor stating that everything in the 

videotape was a lie. The declaration was apparently facilitated by Detective Johnson, 

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State v. Pena Fuentes 

No. 88422-6 

and it was taken on December 28, 201 0-two days after the tapes were delivered to 

him. But we do not lmow whether Detective Johnson listened to the tapes while 

actively seeking evidence related to the posttrial motions. That is where the 

possibility of prejudice arises because regardless of whether the prosecutor himself 

knew of the content of the conversations, he may have relied on evidence gathered by 

Detective Johnson as part of an investigation aided by the eavesdropping. 

On this record, there is no way to lmow whether Detective Johnson's 

investigation and actions were affected by what he may have overheard when 

eavesdropping. The State provides no evidence regarding Detective Johnson's 

investigation; it contends only that the information did not pass directly from 

Detective Johnson to the prosecutor. In this situation, Pefta Fuentes must be allowed 

discovery in order to determine whether Detective Johnson continued to investigate 

after eavesdropping. Such evidence is crucial to the determination of whether Pefta 

Fuentes was prejudiced. Because such discovery is necessary to determine prejudice, 

we reverse the trial judge's decision to deny discovery and remand for further 

proceedings. 

C. The Court of Appeals Properly Held That the Defense Failed To Object at Trial 

to the Decision To Limit Consideration of L.P. 's Letter to Impeachment 

At trial, the judge allowed L.P. 's letter to be admitted solely for purposes of 

assessing L.P. 's credibility. He instructed the jury not to consider the letter for the 

truth of the matter asserted within. Pefta Fuentes now contends that it was legal error 

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State v. Pena Fuentes 

No. 88422-6 

for the trial judge to admit the letter only for impeachment purposes, and not as a 

recorded recollection under ER 803(a)(5). We affirm the trial judge's decision to 

limit consideration ofL.P.'s letter because the defense (1) failed to properly object at 

trial and (2) did not properly bring an ineffective assistance of counsel claim for the 

failure to object. 

An error of law is grounds for a new trial if the defendant objected at the time. 

CrR 7.5(a)(6). The Court of Appeals correctly noted that Pefia Fuentes failed to 

object at trial. In response, Pefia Fuentes contends that the failure to object at trial 

constituted ineffective assistance of counsel. However, as the Court of Appeals noted, 

Pefia Fuentes failed to assign error based on ineffective assistance of counsel in his 

appeal and further failed to provide any analysis of the test for ineffective assistance 

of counsel. Pefia Fuentes now contends that the decision to not assign error was made 

deliberately by appellate counsel out of deference to the trial attorney, who had cancer 

at the time of the appeal. Nonetheless, he still fails to provide any analysis applying 

the test for ineffective assistance of counsel. We affirm both the trial court and the 

Court of Appeals on this issue. 

D. Pefia Fuentes's Convictions Did Not Violate Double Jeopardy 

The jury convicted Pefia Fuentes of first degree rape of a child (count I) and 

two counts of first degree child molestation (counts Ill and IV) for conduct occurring 

between January 1, 2003 and November 25, 2005. The jury instructions for the child 

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State v. Pefia Fuentes 

No. 88422-6 

molestation charges (counts III and IV) stated that the State must prove that the 

conduct occurred on separate and distinct occasions. The instructions for the child 

rape charge (count I) did not include an instruction that the conduct must have 

occurred on an occasion separate and distinct from the child molestation charges. 

Pefia Fuentes moved for a new trial, arguing that the jury could have convicted him of 

child rape based on one of the same incidents that formed the basis for the child 

molestation convictions. The trial judge agreed and granted a new trial on the child 

rape charge.2 The trial judge ruled that there was a possibility that the jurors could 

have convicted Pefia Fuentes of first degree rape of a child based on one of the same 

incidents that formed the basis for his conviction for first degree child molestation. 

Given the way the jury was instructed, if this were the case, the conviction would 

2 The trial judge granted a new trial on the child rape charge, but then ordered that that 

charge be dismissed with prejudice because of the police eavesdropping. The trial judge 

essentially ruled that while the eavesdropping did not prejudice the defendant as to the 

charges for which he had already been tried, it did prejudice the defendant with regard to 

a new trial. 

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State v. Pena Fuentes 

No. 88422-6 

have violated Pefia Fuentes's double jeopardy rights.3 The Court of Appeals reversed 

that ruling, Pefia Fuentes, No. 66708-4-I, slip op. (unpublished portion) at 15, and 

Pefia Fuentes challenges that reversal. 

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. Calle, 125 Wn.2d 769, 

777, 888 P.2d 155 (1995) (citing State v. Johnson, 96 Wn.2d 926, 933, 639 P.2d 1332 

(1982)). "However, if each offense, as charged, includes elements not included in the 

other, the offenses are different and multiple convictions can stand." I d. (citing In re 

Pers. Restraint of Fletcher, 113 Wn.2d 42, 49, 776 P.2d 114 (1989)). Of course, if 

each count arises from a separate and distinct act, the defendant is not potentially 

exposed to multiple punishments for a single act. See State v. Mutch, 171 Wn.2d 646, 

661-63, 254 P.3d 803 (2011). On review, the court may consider insufficient 

instructions "in light of the full record" to determine if the instructions "actually 

3 In this case, the jury was instructed that sexual contact for the purposes of child 

molestation included "any touching of the sexual or other intimate parts of a person done 

for the purpose of gratifying sexual desires of either party or a third party." CP at 45 

(Instruction 20). Sexual intercourse for the purposes of rape included "any act of sexual 

contact between persons involving the sex organs of one person and the mouth or anus of 

another." Id. at 34 (Instruction 9). These two elements are substantially identical. These 

instructions appear to be drawn on pattern jury instructions drafted by the Washington 

Supreme Court Committee on Jury Instructions. See 11 WASHINGTON PRACTICE: 

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 45.01, at 831, 45.07, at 839 (3d 

ed. 2008). We note that the committee on jury instructions recommended not using both 

definitions in a case where rape was charged, perhaps to avoid the situation we have here. 

I d. 

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No. 88422-6 

effected a double jeopardy error." I d. at 664. This court has refused to find error 

when it is "manifestly apparent to the jury that each count represent[ s] a separate act." 

I d. at 665-66. 

In Mutch, the defendant was convicted of five separate counts of rape based on 

five acts that occurred with the same victim over the course of one night and the 

following morning. Id. at 655. A detective testified that the defendant admitted to 

engaging in multiple sex acts, and the defendant did not argue insufficiency of 

evidence as to the number of alleged criminal acts or question the victim's credibility 

regarding the number of rapes. Id. at 665. This court found that the jury knew that 

each count represented a separate act and that no double jeopardy violation occurred. 

I d. at 665-66. In another case, this court found that a "pattern of molestation and 

rape" that spanned several years was sufficient to support multiple counts of child 

molestation and child rape. State v. French, 157 Wn.2d 593, 612, 141 P.3d 54 (2006). 

In this case, the record reveals that the jury instructions did not actually effect a 

double jeopardy violation. It is manifestly apparent that the convictions were based 

on separate acts because the prosecution made a point to clearly distinguish between 

the acts that would constitute rape of a child and those that would constitute child 

molestation. At trial, the defendant did not challenge the number of incidents or 

whether they overlapped, but rather he chose the strategy of attacking J .B.'s 

credibility. 

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State v. Pena Fuentes 

No. 88422-6 

In the prosecutor's closing argument, he addressed count I (child rape) and 

identified the two specific acts that occurred at the condo that supported a child rape 

conviction. 3 VRP at 553 (describing alleged conduct in detail). The prosecutor then 

addressed counts III and IV, which involved child molestation that occurred during 

the same time period as count I. Id. at 553-54 (describing different alleged conduct in 

detail). The prosecutor clearly used "rape" and "child molestation" to describe 

separate and distinct acts. He divided Pefia Fuentes's behaviors into two categoriesthe acts involving penetration, which constituted rape, and the other inappropriate 

acts, which constituted molestation. And again, the defendant did not challenge the 

number of acts or whether the acts overlapped; he challenged only J .B.'s believability. 

The jury ultimately believed J.B. 's testimony regarding the various acts that occurred 

at the condo. 

On this record, it is clear that the rape count was exclusively based on the two 

specific acts of penetration, and the molestation counts were exclusively based on the 

inappropriate behavior other than those two acts of penetration. Because of the clarity 

in the prosecutor's closing argument, we believe it is "manifestly apparent" that the 

jury convicted Pefia Fuentes based on separate and distinct acts. We affirm the Court 

of Appeals' decision (albeit for different reasoning) to reverse the trial court's double 

jeopardy ruling. 

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State v. Pefia Fuentes 

No. 88422-6 

E. The Court of Appeals Correctly Struck the Supplemental Clerk's Papers 

Pefia Fuentes argues that the Court of Appeals erroneously struck the 

supplemental clerk's papers he filed, which included the complaint he submitted to 

the sheriffs department regarding Detective Johnson's conduct and the response. We 

affirm the Court of Appeals' decision to strike the supplemental clerk's papers 

because (1) it was not inequitable to decide the case without the documents and (2) it 

is unlikely the documents would have changed the decision. 

RAP 9.11 sets out the six requirements for when additional evidence can be 

considered on review. Pefia Fuentes did not address RAP 9.11 in his brief to the 

Court of Appeals. In his briefs to this court he addresses only two of the RAP 9.11 

requirements, contending that "the additional evidence would probably change the 

decision being reviewed," and that "it would be inequitable to decide the case solely 

on the evidence already taken in the trial court." RAP 9.11(a)(2), (6). Pefia Fuentes 

reasons that the most compelling basis for his charges to be dismissed is the failure of 

the sheriffs department to acknowledge that misconduct occurred, and thus the 

complaint he filed and the sheriffs department's response are essential to the record. 

The Court of Appeals was correct to strike the additional evidence. First, Pefia 

Fuentes still fails to address the other four requirements of RAP 9 .11. Second, the 

sheriffs department's response is unnecessary to the legal analysis in this case, where 

the court must determine the consequences of the State's actions in relation to Pefia 

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State v. Pena Fuentes 

No. 88422-6 

Fuentes's criminal case-not whether there are consequences to Detective Johnson 

personally. We affirm the Court of Appeals on this issue. 

CONCLUSION 

We are appalled that we must again reiterate that the State cannot eavesdrop on 

private conversations between a defendant and counsel. We recognize that the 

prosecutor acted promptly and ethically to remedy and disclose the violation once it 

was discovered by him. Nonetheless, except in rare circumstances, we will vacate 

convictions when such unconstitutional actions have been taken. In this case, we 

reverse and remand with instructions that the State has the burden of proving beyond a 

reasonable doubt that no prejudice occurred. On remand, Pefia Fuentes must be 

allowed discovery related to the eavesdropping to allow him to respond to the State's 

arguments regarding prejudice. On all other issues we affirm the Court of Appeals. 

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State v. Pefia Fuentes 

No. 88422-6 

WE CONCUR: 

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