FILED

COURT OF APPEALS

DIVISMI 11

2013 APP -2 AN 8: 47

STWE OF WASI- IINGTON

4EUTY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON,

Respondent, No. 42313 -8 -II

V.

PEDRO HERNANDEZ -LEON,

Appellant.

UNPUBLISHED OPINION

VAN DEREN, J. — A jury returned verdicts finding Pedro Hernandez -Leon guilty of

second degree child molestation and attempted second degree child molestation of JV 1

and

guilty of one count of second degree child molestation ofKV. The jury also returned special

verdicts on each of these convictions finding that Hernandez - Leon's offenses were part of an

ongoing pattern of sexual abuse of the victims. Hernandez -Leon appeals his second degree child

1 We refer to the juvenile victims and their immediate family members by their initials to protect

the victims' privacy. ,

2

The jury also returned verdicts findings Hernandez -Leon not guilty of fourth degree assault

with sexual motivation of AV, and not guilty of second degree child molestation ofKV. The

jury could not reach a verdict on the third degree rape of a child charge involving JV and the trial

court declared a mistrial on that charge.
No. 42313 -8 -II

molestation convictions, asserting that the State's evidence was insufficient to support a finding

of guilt on the charges. We affirm.

FACTS

AV (born February 3, 1993), JV (born May 6, 1994), and KV (born May 22, 1997) are

sisters. Their parents had divorced and the sisters lived with their mother, LV, during the school

week and with their father, DV, on weekends. The defendant, Hernandez -Leon, is married to

DV's sister, Jamie Hernandez.

JV had a close relationship with her Aunt Jamie and would spend nights at her house in

Longview, Washington. While at Jamie's house, Hernandez -Leon touched JV on her breasts and

buttocks, beginning when JV was 12 years old. JV stated that Hernandez -Leon "would come up

behind me and rub against my butt[ocks] or he would come up from behind me and rub across

my chest." Report of Proceedings (RP) at 37. Hernandez -Leon touched JV for "[a] few

seconds" in this manner on more than 10 occasions, sometimes sliding his hand across her chest

and buttocks and other times keeping his hand still on those areas. Hernandez -Leon would also

touch JV's buttocks when giving her a hug. When Hernandez -Leon touched JV on her breasts or

buttocks, she would tell him to stop and that she did not like it, but Hernandez -Leon would "just

shake his head and walk away." RP at 39. JV stated that Hernandez - Leon'sinappropriate

touching would occur when she was alone with Hernandez -Leon or when a lot of people were

running in and out of the house. Hernandez -Leon touched JV in this manner for a couple of

years, until she was 14 years old.

3Hernandez -Leon does not appear to appeal his attempted second degree assault conviction.

4 Because Jamie Hernandez shares a last name with the defendant, we refer to Jamie as Aunt

Jamie or by her first name for clarity.

2
No. 42313 -8 -II

JV described a couple of occasions where Hernandez -Leon touched her while she slept

on his couch, stating, "I'd be sleeping and he would puthis between my legs, or he would

just start rubbing my body, my butt[ocks] and my chest." RP at 50 -51. JV stated that when

Hernandez -Leon touched her in this manner, she would pretend to be asleep.

JV also described an incident that occurred after she fell asleep in Hernandez - Leon's bed

with Hernandez -Leon, Jamie, and her cousin. JV stated that she awoke to Hernandez - Leon's

hands rubbing back and forth on her hip and mid - thigh. Although she was awake, JV kept her

eyes closed and pretended to sleep. JV stated that Hernandez -Leon eventually slid his hands into

her shorts and digitally penetrated her vagina. JV said that after she had moved once while

Hernandez -Leon digitally penetrated her, Hernandez -Leon told her to be quiet and to not wake

up her Aunt Jamie.

JV also stated that over a period ofthree years, Hernandez -Leon would ask her "if [she]

wanted to suck on his penis or if [she] would let him stick his tongue in [her] vagina or anything

sexual." RP at 50. JV described one incident when Hernandez -Leon gestured to her suggesting

that she perform oral sex on him. She described a second incident where Hernandez -Leon stood

in the hallway and motioned for her to come into the bedroom with him. JV said that

Hernandez -Leon appeared serious when he requested oral. sex and that he would "storm off'

angrily when she refused. RP at 53.

When JV was 15 years old, she told her girl friend, SG, that Hernandez -Leon had

sexually assaulted her but asked SG not to tell anyone. SG stated that subsequent to JV's

conversation with her, Hernandez -Leon invited her to his house three or four times when Jamie

5

The incident in Hernandez- Leon'sbed that JV described formed the basis for the State'sthird

degree child rape charge, to which the jury could not render a verdict, and for which the trial

court declared a mistrial.

3
No. 42313 -8 -II

was not going to be present. When SG told JV about Hernandez- Leon'sinvitations, JV became

upset and screamed that the invitation was not funny and that Hernandez -Leon was serious.

SG attended JV's 16th birthday party at DV's house. While there, SG and HernandezLeon were standing on the porch when she felt Hernandez -Leon reach behind her and touch her

buttocks. SG said that she had her telephone securely in her back pocket and that HernandezLeon's hand was around the telephone with his fingers touching her. Hernandez -Leon did not

say anything to SG during the incident. SG walked away and told AV about the touching. When

SG described the touching to AV, AV looked "extremely uncomfortable" and told SG that she

should tell AV's parents about it. RP at 168. After Jamie learned about the incident, she and

Hernandez -Leon approached SG and Hernandez -Leon told SG that he was not grabbing her

buttocks and instead was putting her telephone back in her pocket because it was falling out.

After JV heard that Hernandez -Leon had touched SG on her buttocks, she became angry

and felt guilty that she had not reported Hernandez - Leon'sinappropriate touching earlier. JV

then told her Aunt Jamie about Hernandez -Leon touching her on the breasts and buttocks. Jamie

told JV not to tell her parents and that she would bring up the subject with them. Based on

Jamie'sreaction, JV did not tell her that Hernandez -Leon had digitally penetrated her vagina.

Jamie apparently never reported the allegations to JV's parents.

Hernandez -Leon began touching KV inappropriately when she was 11 years old. KV

stated that when Hernandez -Leon hugged her, he would "run his hands down [her] back and he[

would] grab [her] butt[ocks] sometimes," for a couple seconds until KV told him stop or would

pull away from him. RP at 97. Hernandez -Leon generally did not say anything when KV would

tell him to stop touching her, but on five or six occasions he told KV not to tell anyone else. On

one occasion, KV was bending over retrieving something from a closet when Hernandez -Leon

M
No. 42313 -8 -II

approached her from behind, grabbed her waist, and pulled her closer to him. She could feel his

penis against her buttocks for about three seconds. When she told Hernandez -Leon to stop, he

said, "[ S]hut up" and KV walked away. RP at 100.

KV also described an incident at Hernandez - Leon's house during her cousin'sbirthday

party when Hernandez -Leon walked by her on his way to the bathroom and swiped his hand

across her breast. At first, KV believed that Hernandez -Leon touched her breast accidentally,

but then believed the touch was purposeful when he swiped his hands across her breast on his

way out of the bathroom. Another touching incident occurred at her father's house on

Thanksgiving, when Hernandez -Leon put his hand between her legs and'touched her inner thigh

while she sat on a countertop.

KV also said Hernandez -Leon put his tongue inside of her mouth:

We were at his house, and my aunt and my cousin ... went out to get the pizza,

and I was watching TV on the couch and [Hernandez -Leon] was in his bedroom.

And he came out and he kneeled right in front of me and he kissed me. And I

thought it was just a regular kiss andjust like what my whole family does, like

we just kiss each other real quick. And then the way he did it, he stuck his tongue

in my mouth and I pulled away. And he's like, now you put your tongue in my

mouth, and I said no. Then he went, [ "Haw! "], and then walked away.

RP at 109.

AV reported that Hernandez -Leon had inappropriately touched her when she was 15

years old. Hernandez -Leon grabbed her buttocks for two or three seconds as she was getting up

from the couch. Hernandez -Leon apologized and said it was an accident. It was not until AV

told her mother about Hernandez -Leon grabbing SG that the parents asked their three daughters

about Hernandez - Leon's inappropriate touching and reported the girls' allegations to the police.

The State charged Hernandez -Leon by amended information with fourth degree assault

for his conduct involving AV, third degree child rape, second degree child molestation, and

5
No. 42313 -8 -II

attempted second degree child molestation for his conduct involving JV, and two counts of

second degree child molestation for his conduct involving KV.

AV, JV, and KV testified at trial consistently with the facts as stated above. Jamie

testified for the defense. Jamie stated that JV would sometimes sleep in her bed with

Hernandez -Leon and their baby but said that Hernandez -Leon never slept next to JV. She

testified that her family was "touchy feely" and would often hug, kiss, or pat each other. RP at

238 -39. Jamie also testified that if Hernandez -Leon had asked her nieces if they wanted to have

sex, he meant with other boys, and that he asked the question as a concerned uncle to assure that

the girls did not get into trouble. She further testified that she had seen Hernandez -Leon poke

and slap her nieces on the buttocks.

At trial, Hernandez -Leon denied touching JV's breasts, buttocks, or vagina and denied

ever asking her to engage in oral sex. He also denied touching KV's buttocks when hugging her

and denied touching her thigh at her father's house. He denied touching any of the girls from

behind when they were bent over. Hernandez -Leon testified that although he would hug his

nieces, kiss them on the mouth, and swat them on their buttocks he never touched them for the

purpose of sexual gratification. Hernandez -Leon admitted that the girls would tell him to stop

when he swatted them, but said, "I didn'tgive them many, it was only, like, one." RP at 266.

Hernandez -Leon denied that he had asked JV to have sex with him, indicating that he brought up

the subject as a way to advise her against having sex when she was too young. Hernandez -Leon

admitted that he stuck his tongue in KV's mouth but said he did it because he had just eaten a hot

pepper and was joking around.

The jury found Hernandez -Leon guilty of second degree child molestation' and attempted

second degree child molestation of JV and guilty of one count of second degree child

r
No. 42313 -8 -II

molestation ofKV. The jury also found by special verdict that his conduct on each ofthe three

convictions was "part of an ongoing pattern of sexual abuse of the same victim." Clerk's Papers

at 212, 215, 218. The jury found Hernandez -Leon not guilty of fourth degree assault with sexual

motivation related to the charges involving AV and not guilty of a second count of second degree

child molestation ofKV. The jury could not reach a verdict on the charge of third degree rape of

JV and the trial court declared a mistrial on that charge. Hernandez -Leon timely appeals his

second degree child molestation convictions.

ANALYSIS

Hernandez -Leon contends that the evidence is insufficient to support his second degree

child molestation convictions because the State failed to present evidence that he touched JV and

KV for the purpose of gratifying a sexual desire. We disagree and affirm Hernandez- Leon's

convictions.

Sufficient evidence exists to support a conviction if any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt when viewing the evidence in the

light most favorable to the State. State v. Hosier 157 Wn.2d 1; 8, 133 P:3d 936 (2006). A

defendant, claiming insufficiency of the evidence admits the truth of the State's evidence and all

inferences that reasonably can be drawn from the evidence. State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally, reliable.

State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.

State v. Walton, 64 Wn. App. 410, 415 -16, 824 P.2d 533 (1992).

6

Hernandez does not contend that the evidence is insufficient to support the remaining elements

of his second degree child molestation convictions.

7'
No. 42313 -8 -II

To convict Hernandez -Leon of second degree child molestation as charged under RCW

9A. 086, 44.the State had to prove beyond a reasonable doubt that he had "sexual contact with

another who is at least. twelve years old but less than fourteen years old and not married to the

perpetrator and the perpetrator is at least thirty -six months older than the victim." "` Sexual

contact' means any touching of the sexual or other intimate parts of a person done for the

purpose of gratifying sexual desire of either party or a third party." RCW 9A. 010(44. 2). In

prosecutions for child molestation where the evidence shows that the accused touched the victim

over clothing, the State is required to produce additional evidence to support a finding that the

touching was done for the purpose of sexual gratification. State v. Harstad, 153 Wn. App. 10,

21, 218 P.3d 624 (2009); State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991).

Citing Powell, Hernandez -Leon asserts that the State failed to present sufficient evidence

that his touching was for the purpose of sexual gratification. In Powell, the State presented

evidence that on one occasion the defendant made a "fleeting touch" of the alleged, victim's

intimate parts over her clothing and stopped touching her when the alleged victim told him to

stop; and that on a second occasion the defendant touched the alleged victim'sthighs in a manner

susceptible of an innocent explanation." 62 Wn. App. at 918. Division Three of this court held

that this evidence was insufficient to support an inference that the defendant had touched the

alleged victim for the purpose of sexual gratification, reasoning that in "cases in which the

evidence shows touching through clothing, or touching of intimate parts of the body other than

the primary erogenous areas, the court have required some additional evidence of sexual

gratification." Powell, 62 Wn. App. at 917.

This case is easily distinguishable from Powell and we hold that the State presented

ample evidence to support the jury's finding that Hernandez -Leon touched his victim'sfor the
No. 42313 -8 -II

purpose of gratifying sexual desire. Here, in addition to evidence that Hernandez -Leon touched

JV and KV on their intimate parts over their clothing, the State's evidence showed that the

touching took place several times over a number of years —often outside the presence of

others —and over the stated objections of the victims.

Additionally, with regard to his conduct against KV, when KV asked Hernandez -Leon to

stop touching her inappropriately, he responded, "[S]hut up." RP at 100. He also told KV on

multiple occasions not to tell anyone about his touching her. And, with regard to his conduct

against JV, Hernandez -Leon touched her intimate parts over her clothing while she pretended to

be asleep on the couch and often made sexually suggestive gestures at her and requested that she

engage in oral sex. This evidence, when viewed in a light most favorable to the State, strongly

supports the inference that Hernandez -Leon touched KV and JV for the purpose of gratifying his

sexual desire and, thus, sufficient evidence supports Hernandez- Leon's convictions.

We affirm.

A majority ofthe panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will be filed for public record pursuant to RCW 2. 040, 06.it is

so ordered.

VAN DEREN, J.

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