# Fl LE

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent, 

### v. JORGE NAHUN PENAFUENTES, Petitioner. ) ) ) ) ) ) ) ) ) 

# ___________________________) No. 88422-6 EnBanc
Filed
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OWENS, J. -- The SixthAmendment guarantees a criminal defendantthe right to assistance ofcounsel, which includes the right to confer privately with that counsel. State intrusion into those private conversations is a blatant violation ofa foundational right. We strongly condemn "the odious practice ofeavesdropping on privileged communicationbetween 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 whenthere was no way to isolate the prejudice to the defendant from such "shocking and unpardonable conduct." 

### ld.State v. Pena Fuentes No. 88422-6
Inthis case, we are asked whether a conviction must be vacated even ifit were shown that the eavesdropping did not result in any prejudice to the defendant-in other words, whether the presumption ofprejudice 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 juryhad found the defendant guilty. Thus, while the conduct was unconscionable, there was no way for the eavesdropping to have any effect onthe trial itself. Further, the prosecutor submitted a declaration stating that the detective onthe case never communicated any information about the attorney-client conversations to the prosecution. In light ofthese circumstances, we hold that eavesdropping is presumed to
causeprejudice to the defendant unless the State canprove beyonda reasonable doubt that the eavesdropping did not result in any suchprejudice. Inthis 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 NahunPefiaFuentes and his attorney, there are also legal challenges to four otherrulings: (1) the trialjudge's decision regarding discovery related to the eavesdropping, (2) the trialjudge's evidentiary

2State 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 trialjudge's ruling that PefiaFuentes's convictions for bothrape ofa child and child molestation violated his doublejeopardyrights, and (4) the Court of Appeals' denial ofPefiaFuentes's motion to supplement the record. Below is a summary ofthe basic facts in this case, as well as the facts related to each ofthe various legal issues. J.B. ReportsAbuse InNovember 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 offirst degree child molestation, and three counts ofsecond degree child molestation. Overview of the Trial PefiaFuentes was put on trial in October 2010. Because ofthe ongoing nature ofthe abuse and the limitations ofJ.B.'s memories from childhood, the prosecution did not know the specific dates ofparticular incidents ofabuse. However, J.B. could recall the location ofabuse, and because the family had moved somewhat frequently, the different incidents ofabuse could be connected with specific time periods based
onwhere the family was living when the abuse occurred. Therefore, the prosecution

3State 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, betweenNovember 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 PefiaFuentes and J.B.'smotherhad divorced, while J.B. was living with her mother in Sammamish and PefiaFuentes was living in Redmond between November 26, 2005 andNovember 25, 2007. At trial, J.B. testified about many incidents ofinappropriate touching, beginning when she was in first grade. Her memories ofthe early abuse at the Bellevue apartment (related to count II) were "[n]ot very good," 2 Verbatim Report of Proceedings (VRP) at 322, and thejuryultimately found Pefia Fuentes not guilty on countII. J.B.'s memories oflater abuse at the condo (related to counts I, III, and IV)
were much clearer. She testified in detail about repeated incidents ofPefiaFuentes abusing her at the condo. 

### !d. at 329-30. J.B. also testified about two specific and particularly severe incidents involving penetrationthat occurred while they were living at the condo. Thejuryultimately found PefiaFuentes guilty on counts I, III, and IV.

4State 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). Thejurywas unable to reach unanimity on the remaining charges. No witnesses directly corroborated or refuted J.B.'s testimony. Some ofthe 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 oflB.'s friends testified that she had alluded to the abuse in previous years. Pefia Fuentes himselfdid not testify at trial, butthe original police interview of Pefia Fuentes was submitted as evidence. During that interview, he denied most ofthe abuse but acknowledged a few incidents that occurred while he was roughhousing with J.B. L.P. 

### 's Testimony at Trial Most ofthe issues now in front ofus arise out ofa series ofevents that began with a letter written by J.B.'shalfsister, L.P. L.P. is about four and a halfyears younger than lB. and has the same mother, but is the biological daughter ofPefia Fuentes. Attrial, the defense introduced a letter to the prosecutorthat L.P. had written when she was 11 years old. Inthe letter, L.P. indicated that she believed lB.
was lying at the behest oftheir mother based on a conversation she had overheard betweenthem. Inher deposition, L.P. indicated that she could not recall whose idea

5State v. Pena Fuentes No. 88422-6 the letter was, and that she could no longerremember what she had overheard her mother say to J.B. Thetrialjudge allowed thejuryto considerthe letter in orderto assess L.P.'s credibility-i.e., for impeachmentpurposes only-butnot for the truth ofthe matter asserted withinthe letter. Attrial, L.P. again testified that she could not rememberthe conversation betweenher mother and J.B. DoubleJeopardyRuling After his conviction, Pefia Fuentes filed a motion for a newtrial, arguing that his convictions for first degree rape ofa child (countI) and first degree child molestation (counts III and IV) violated his doublejeopardyrights. PefiaFuentes argued that thejury could have found him guilty ofrape ofa child and child molestation for the same act because the court did not instruct thejurythat those occasions hadto be separate and distinct from the act alleged in count I. The trial judge agreed and granted a newtrial on count I. He thenruled that countI couldnot proceed to trial because ofthe police misconduct discussed below, so he dismissed 

### it withprejudice. 

### New Video ofL.P. After Pefia Fuentes's conviction and while the motion for the new trial was pending, the defendant's current wife, MihaelaPefia, 1 and her brother, Corneliu

1To avoid confusion, we refer to Mihaela Pefia by her first name in this opinion. 6State v. Peiia Fuentes No. 88422-6 Hertog, decided to contact L.P. about her testimony. Hertog discovered through Face book where L.P. had recentlybegun attending church and approached herthere. Hertog and L.P. dispute the nature ofthe ensuing conversation. Hertog contends that they simply explainedto L.P. that her trial testimonyhadbeenunclear and asked if she would bewilling to clarify what she remembered. According to Hertog, L.P. agreed to clarifyher testimony on camera "without anyhesitation," and when Mihaela asked L.P. ifshe felt threatened or intimidated, L.P. answered no. Clerk's Papers (CP) at 71. On the video, Mihaela asked, "Andwhat is it that you can testify to? And what have you told mebefore?" and L.P. responded, "That all the accusations I madeto my dad are not true and that I heard mymom and my sisterplotting to accuse my dad of sexual assault." 

### Id. at 146. However, L.P.'s version ofthe events surrounding the videotaping differs significantlyfrom Hertog's. L.P. indicates that she panicked whenMihaela and Hertog showedup at her church and that she "hadnever 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 thatbecause I was scared
... I knew that all the things I had said in that video were lies." 

### !d. at 151.

7State v. Pena Fuentes No. 88422-6 Pefia Fuentes then filed a supplemental motion for a newtrial based on (1) the judge's decision to disallow L.P.'s letter at trial and (2) the "newly discovered evidence" ofthe video ofL.P. recanting her trial testimony. 

### !d. at 58. The trialjudge denied the motion. Onthe first issue, he ruled that the decision to exclude L.P.'s letter
was within the court's discretion. Onthe second issue, the trialjudgenoted that it
came down to credibility. He found thatL.P. was already impeached at trial and that the video would not have changedthe results. A DetectiveListens to PrivateAttorney-Client Conversations After learning ofMihaelaand 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 PefiaFuentes's phone calls fromjail. On January 5, 2011, Detective Johnson informed the prosecutor that he had listened to all ofPefia Fuentes'sphone calls, including six conversations betweenPefia Fuentes and his attorney. The prosecutor immediately informed Detective Johnson that he should not listento any more calls and that he should not disclose the content ofthe 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

8State v. Pena Fuentes No. 88422-6 Johnson did not disclose the content ofthe phone calls betweenPefia Fuentes and his attorney to him. Because ofthe eavesdropping, Pefia Fuentes moved to dismiss all charges with prejudice. Thetrialjudge 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-whichhad concludedpriorto the eavesdropping-orthe 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 informationbut that the prosecutorhad notprovided 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 RecordonAppeal 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 trialjudge'sruling on the doublejeopardyviolation. Atthe Court ofAppeals, Pefia Fuentes filed a supplemental designation of clerk's papers, which included a formal complaint filed withthe King County SheriffsDepartmentregarding Detective Johnson's actions, as well as the sheriffs department's response. Upon a motion from the State, the Court ofAppeals struck the

9State v. Pefia Fuentes No. 88422-6 materials because (1) PefiaFuentes 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 onthe existing record. The Court ofAppeals affirmed all ofthe trial court's rulings exceptthe double jeopardyruling and remanded for a longer sentence. State v. PenaFuentes, No. 66708-4-I, slip op. (unpublishedportion) at 18 (Wash. Ct. App. Jan. 14, 2013). Pefia Fuentes petitioned for review and this court granted review. State v. PenaFuentes, 177 Wn.2d 1008, 302 P.3d 180 (2013).ISSUES 1. Is the presumption ofprejudice resulting from the State eavesdropping on attorney-client conversations rebuttable? Ifso, what standard ofproofis required? 2. Did the trialjudge err whenhe denied discovery ofpolice reports related to the eavesdropping? 3. Didthe trialjudge err whenhe allowed admission ofL.P.'s letter only for witness impeachment purposes? 4. DidPefiaFuentes's convictions for first degree rape ofa child and first degree child molestation violate doublejeopardy? 5. Did the Court ofAppeals correctly strike PefiaFuentes's supplemental clerk's papers?

10State 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 theAbsence of Prejudice BeyondaReasonableDoubt A defendant's constitutional right to the assistance ofcounsel 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 ofan appalling decision by the sheriffto install a microphone in thejail's conference room and eavesdrop on conversations betweenthe 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 sheriffwas 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 ifthe presumption ofprejudice is rebuttable. The United States Supreme Courthas expressly rejected a per se prejudice rule for such eavesdropping, holding that when an eavesdropper did not communicate the topic ofthe overheard conversations and thereby create "at least a realistic possibility ofinjury to [the defendant] or benefitto the State, there can be no SixthAmendment violation." 

### Weatherfordv. Bursey, 429 U.S. 545, 557-58,97 S. Ct. 837, 51 

### L. Ed. 2d

11State 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 meetingto 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 ofa defendant's constitutional rights and cannot be permitted, there are rare circumstances where there is no possibility ofprejudicetothe defendant. We do not believethe extreme remedy ofdismissing the charges is required whenthere is no possibility of prejudice. To account for those rare circumstances where there is no possibility of prejudice to the defendant, we hold that thepresumption ofprejudice arising from such eavesdropping is rebuttable. We now turn to the question ofthe burden ofproofin such a situation and hold that the State has the burdento 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 ofthe court's discretion. 

### State v. Starrish, 86 Wn.2d 200,209, 544 P.2d 1 (1975). Evenunder 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 musthold the State to the highest burden ofproofto ensure that it is protected.

12State v. Pena Fuentes No. 88422-6 The State argues that the defendant shouldhave the burden to show prejudice whenthe information is not communicatedto the prosecutor. We disagree. The State is the party that improperly intruded on attorney-client conversations and it must provethat its wrongful actions did notresult in prejudice to the defendant. Further, the defendant is hardly in a positionto showprejudice when only the State knows what was done with the information gleaned from the eavesdropping. The proper standard the trial court must apply is proofbeyond a reasonable doubt withthe burden
onthe State. Here, the record is unclear as to what standard the trialjudge applied. When evaluating the eavesdropping, the trialjudge commentedthat it was egregious misconduct butthen stated, "I do not believe 

### it affected the trial and I'mnot satisfied that it will affect, sufficiently, well, that 

### ithas affected the motion for a new trial. I'm going to deny the motion to dismiss onthat basis." 3 VRP at 593-94. Onthis record, there is no wayto be sure ofthe standard applied bythe trialjudge. Therefore, we remand for the trial court to consider whether the State has proved the absence of prejudice beyond a reasonable doubt. 

### B. AdditionalDiscoveryIs Needed To Determine Whether the Eavesdropping Resultedin Prejudice to Pena Fuentes The prosecutor argues thatPefiaFuentes cannot showprejudice resulting from the eavesdropping because (1) the eavesdropping occurred after trial, so the actual trial could not have been affected, and (2) the prosecutorneverhad anyknowledge of
13State v. Pena Fuentes No. 88422-6 the content ofthe conversations, so the posttrial motions could not have been affected. PefiaFuentes 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 ofthe attorney-client conversations, his investigation may have been aided by his eavesdropping. Because the State holds all ofthe informationregarding the eavesdropping and any results thereof, PefiaFuentes cannot make any showing of prejudice (orrebut the State's arguments regarding lack ofprejudice) without discovery ofinformationrelated to the eavesdropping. Under CrR4.7(e)(1), a court may require disclosure ofany relevant information that is both material and reasonable. Here, the trial court's decision rested entirely onthe State's representations as to the prosecutor's knowledge ofthe content ofthe eavesdropped conversation. Notably, however, the State made no representations as to the date that Detective Johnson eavesdropped onthe conversations or whether he continuedhis 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 ofevidence at issue in the posttrial motions were the videotape ofL.P. and her later declaration to the prosecutor stating that everything in the videotape was a lie. The declaration was apparently facilitated byDetective Johnson,

14State v. Pena Fuentes No. 88422-6 and it was taken on December 28, 2010-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 ofprejudice arises because regardless ofwhether the prosecutorhimself knew ofthe content ofthe conversations, he may have relied on evidence gathered by Detective Johnson as part ofan investigation aided bythe eavesdropping. Onthis 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 ofwhether Pefta Fuentes was prejudiced. Because such discovery is necessary to determine prejudice,
we reverse the trialjudge's decision to deny discovery and remand for further proceedings. C. The Court of AppealsProperlyHeld That the DefenseFailed To Object at Trial to the Decision To Limit Consideration of L.P. 's Letter to Impeachment Attrial, thejudge allowed L.P.'s letter to be admitted solely for purposes of assessing L.P.'s credibility. He instructed thejurynot to consider the letter for the truth ofthe matter asserted within. PeftaFuentes now contends that it was legal error
15State v. Pena Fuentes No. 88422-6 for the trialjudgeto admit the letter only for impeachmentpurposes, and not as a recorded recollection under ER 803(a)(5). We affirm the trialjudge'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 ofcounsel claim for the failure to object. An error oflaw is grounds for a new trial ifthe defendant objected at the time. CrR7.5(a)(6). The Court ofAppeals correctly noted that PefiaFuentes failed to object at trial. Inresponse, Pefia Fuentes contends that the failure to object at trial constituted ineffective assistance ofcounsel. However, as the Court ofAppeals noted, PefiaFuentes failed to assign error based on ineffective assistance ofcounsel in his appeal and further failed to provide any analysis ofthe test for ineffective assistance ofcounsel. PefiaFuentes now contends that the decision to not assign error was made deliberately by appellate counsel out ofdeference to the trial attorney, who had cancer at the time ofthe appeal. Nonetheless, he still fails to provide any analysis applying the test for ineffective assistance ofcounsel. We affirm both the trial court and the Court ofAppeals on this issue. 

### D. Pefia Fuentes's Convictions DidNot Violate DoubleJeopardy Thejury convictedPefia Fuentes offirst degree rape ofa child (count I) and two counts offirst degree child molestation (counts Illand IV) for conduct occurring between January 1, 2003 and November 25, 2005. Thejury instructions for the child

16State 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 musthave occurred on an occasion separate and distinct from the child molestation charges. Pefia Fuentes moved for a new trial, arguing that thejury could have convicted him of child rape based on one ofthe same incidents that formed the basis for the child molestation convictions. The trialjudge agreed and granted a newtrial on the child rape charge. 2 The trialjudgeruled that there was a possibility that thejurors could have convicted Pefia Fuentes offirst degree rape ofa child based on one ofthe same incidents that formed the basis for his conviction for first degree child molestation. Given the waythejury was instructed, ifthis were the case, the conviction would

2 The trialjudge granted a new trial on the child rape charge, but then ordered that that charge be dismissed with prejudice because ofthe police eavesdropping. The trialjudge 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.
17State v. Pena Fuentes No. 88422-6 have violated PefiaFuentes's doublejeopardyrights. 3 The Court ofAppeals reversed that ruling, Pefia Fuentes, No. 66708-4-I, slip op. (unpublished portion) at 15, and PefiaFuentes challenges that reversal. A "defendant's doublejeopardyrights are violated ifhe 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, ifeach 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. Restraintof Fletcher, 113 Wn.2d 42, 49, 776 P.2d 114 (1989)). Ofcourse, if each count arises from a separate and distinct act, the defendant is notpotentially exposed to multiple punishments for a single act. See State v. Mutch, 171 Wn.2d 646, 661-63, 254 P.3d 803 (2011). Onreview, the court may consider insufficient instructions "in light ofthe full record" to determine ifthe instructions "actually

3 In this case, thejury was instructed that sexual contact for the purposes ofchild molestation included "any touching ofthe sexual or other intimate parts ofaperson done for the purpose ofgratifying sexual desires ofeitherparty or a thirdparty." CP at 45 (Instruction 20). Sexual intercourse for the purposes ofrape included "any act ofsexual contactbetween persons involving the sex organs ofone 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 patternjury 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 onjury instructions recommended not using both definitions in a case where rape was charged, perhaps to avoid the situation wehave here. Id. 18State v. Pena Fuentes No. 88422-6 effected a doublejeopardy error." I

### d. at 664. This court has refused to find error when it is "manifestly apparent to thejurythat each count represent[s] a separate act." 

### Id. at 665-66. InMutch, the defendant was convicted offive separate counts ofrape based on five acts that occurred with the same victim over the course ofone 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 ofalleged criminal acts or question the victim's credibility regarding the number ofrapes. Id. at 665. This court found that thejuryknew that each count represented a separate act and that no doublejeopardy violation occurred. 

### Id. at 665-66. In another case, this court found that a "pattern ofmolestation and rape" that spanned several years was sufficientto support multiple counts ofchild molestation and child rape. State v. French, 157 Wn.2d 593, 612, 141 P.3d 54 (2006). Inthis case, the record reveals that thejury instructions did not actually effect a doublejeopardyviolation. Itis 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 ofa child and those that would constitute child molestation. Attrial, the defendant did not challenge the number ofincidents or whether they overlapped, butrather he chose the strategy ofattacking J.B.'s credibility.

19State 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 PefiaFuentes's behaviors into two categoriesthe acts involvingpenetration, which constituted rape, and the other inappropriate acts, which constituted molestation. And again, the defendant did not challengethe number ofacts or whether the acts overlapped; he challenged only J.B.'sbelievability. Thejury ultimately believed J.B.'s testimony regarding the various acts that occurred at the condo. Onthis record, it is clearthat the rape count was exclusively based onthe two specific acts ofpenetration, and the molestation counts were exclusively based onthe inappropriate behavior otherthan those two acts ofpenetration. Because ofthe clarity in the prosecutor's closing argument, webelieve it is "manifestly apparent" thatthe jury convictedPefiaFuentes based on separate and distinct acts. We affirm the Court ofAppeals' decision (albeit for different reasoning) to reverse the trial court's double jeopardyruling.

20State v. Pefia Fuentes No. 88422-6
E. The Court of Appeals Correctly Struck the Supplemental Clerk's Papers Pefia Fuentes argues that the Court ofAppeals erroneously struckthe supplemental clerk's papers he filed, which included the complainthe submitted to the sheriffs department regarding Detective Johnson's conduct and the response. We affirm the Court ofAppeals' 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 canbe considered on review. PefiaFuentes did not address RAP 9.11 in his briefto the Court ofAppeals. Inhis briefs to this court he addresses only two ofthe 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 compellingbasis for his charges to be dismissed is the failure of the sheriffs department to acknowledge that misconduct occurred, and thus the complainthe filed and the sheriffs department's response are essential to the record. The Court ofAppeals was correct to strike the additional evidence. First, Pefia Fuentes still fails to address the other four requirements ofRAP 9.11. Second, the sheriffs department's response is unnecessary to the legal analysis in this case, where the court must determine the consequences ofthe State's actions in relation to Pefia

21State v. Pena Fuentes No. 88422-6 Fuentes's criminal case-notwhether there are consequences to Detective Johnson personally. We affirm the Court ofAppeals on this issue. CONCLUSION We are appalled that we must again reiterate that the State cannot eavesdrop on private conversations between a defendant andcounsel. 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. Inthis case, we
reverse and remand with instructions that the State has the burden ofproving 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 ofAppeals.

22State v. Pefia Fuentes No. 88422-6



### WE CONCUR:

23