riLEo

COURT OF APPEALS DIV I

STATE OF WASilliiGTOti

201811AR -5 A" 8:l6

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

V.

JUAN JOSE RODRIGUEZ-MONTOYA,

Appellant.

LEACH, J. — Juan Jose Rodriguez-Mon

No. 75759-8-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: March 5, 2018

toya appeals his convictions for rape

of a child in the first degree and two counts of child molestation in the first degree

for the rape and molestation of F.M-G. and the molestation of R.A.L. He relies on

his constitutional guaranty against double jeopardy to challenge the convictions for

rape and molestation of F.M-G. under instruc

base its decisions on separate and distinct

should not have admitted R.A.L.'s out-ofbecause R.A.L. did not make her statemen

identity for purposes of medical diagnosis or

The record shows that it was manifes

based the rape and molestation charges invo

acts. Second, evidence about an abuser's i

child's treatment and the totality of the c

statement, making it admissible under ER 80

ions that did not require that the jury

acts. He also claims that the court

ourt statement to her pediatrician

about the abuse and her abuser's

reatment.

ly apparent to the jury that the State

ving F.M-G. on separate and distinct

entity is reasonably necessary to a

rcumstances corroborates R.A.L.'s

(a)(4). We affirm.
No. 75759-8-1/ 2

BACKGROUND

From the age of six, F.M-G. attended day care at "Patty's," a neighbor's

apartment. Patty's husband, Rodriguez-Montoya, also lived at the apartment. In

February 2014, seven-year-old F.M-G. told his mother that he did not want to

return to Patty's because Rodriguez-Montoya had made him touch RodriguezMontoya's "parts." F.M-G. disclosed to a chilc:: interview specialist that RodriguezMontoya had put his Penis into F.M-G.'s bottom, touched F.M-G.'s penis, made

F.M-G. touch his own penis, and made F.M- perform oral sex.

Four-year-old R.A.L. also attended P tty's day care. In November 2014,

R.A.L. told her mother that Rodriguez-Monto a had touched her inappropriately.

R.A.L.'s mother took her to see her pediatrician, Dr. Margarita Guerra. R.A.L.

disclosed that Rodriguez-Montoya had touc ed her private parts and made her

touch his. Guerra testified about R.A.L.'s sta

A jury convicted Rodriguez-Montoya

and two counts of child molestation in the firs

of F.M-G. and the molestation of R.A.L.

ement at trial.

f rape of a child in the first degree

degree for the rape and molestation

he charging periods for the counts

involving F.M-G. were identical. Rodriguez- ontoya appeals his convictions.

ANALYSI

Double Jeo

Rodriguez-Montoya asserts that the tri I court's instructions allowed the jury

to rely on the same act to find him guilty of b th rape and molestation of F.M-G. in

violation of his protection against double j opardy. An appellant may raise a

-2-
No. 75759-8-1/ 3

double jeopardy claim for the first time n appeal because it implicates a

constitutional right.' This court reviews double jeopardy claims de novo.2

The Fifth Amendment to the United St

9 of the Washington Constitution protect defe

for the same offense.3 Beyond these constit

the power to define and designate punishm

determine whether the legislature intended

criminal conduct that violates both the rape of

the child molestation in the first degree statut

First, we evaluate the language of the

expressly authorize multiple punishments for

statute.6 An individual is guilty of child rape

has sexual intercourse with another who is

married to the perpetrator and the perpetrato

than the victim."7 "Sexual intercourse" mean

tes Constitution and article I, section

dants against multiple punishments

tional limitations, the legislature has

nt for criminal conduct.4 We must

to allow multiple punishments for

a child in the first degree statute and

elevant statutes to determine if they

conduct that violates more than one

n the first degree "when the person

less than twelve years old and not

is at least twenty-four months older

both any penetration of the vagina

1 State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803 (2011); RAP 2.5(a)(3).

2 Mutch,171 Wn.2d at 661-62.

3 U.S. CONST. amend. V (no "person [shall] be subject for the same offense

to be twice put in jeopardy of life or limb"); ViASH. CONST. art. I, § 9 ("[n]o person

shall be . . . twice put in jeopardy for the sam offense"); Mutch,171 Wn.2d at 663.

4 State v. Louis, 155 Wn.2d 563, 568, 20 P.3d 936 (2005).

5 See State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995) (explaining

that whether the legislature authorized mu tiple punishments is a question of

legislative intent); see also State v. Wilkins,2 0 Wn. App. 794, 806, 403 P.3d 890

(2017) (holding that the legislature authoriz d multiple punishments for criminal

conduct that constitutes first degree child rap and first degree child molestation),

petition for review filed, No. 95250-7 (Wash. ov. 25, 2017).

6 Louis, 155 Wn.2d at 569.

7 RCW 9A.44.073(1).

-3-
No. 75759-8-1 /4

or anus of one person by another and "any a

involving the sex organs of one person and t

such persons are of the same or opposite se

An individual is guilty of child moles

person has, or knowingly causes another p

have, sexual contact with another who is less

to the perpetrator and the perpetrator is at I

victim."9 "'Sexual contact' means any touchin

of a person done for the purpose of gratifying

Neither statute expressly authorizes

t of sexual contact between persons

e mouth or anus of another whether

ation in the first degree "when the

rson under the age of eighteen to

han twelve years old and not married

ast thirty-six months older than the

of the sexual or other intimate parts

sexual desire of either party."19

r prohibits multiple punishments for

offenses arising out of a single act." Where, as here, the statutes are silent, we

apply a rule of statutory construction known

same evidence test provides that a defenda

are identical both in fact and in law violate his

Thus, if the facts are not identical or "[i]f each

not required in the other, where proof of one

the offenses are not the same [in fact or

permitted."14

8 RCW 9A.44.010(1).

9 RCW 9A.44.083(1).

19 RCW 9A.44.010(2).

11 Wilkins,200 Wn. App. at 807.

12 Louis, 155 Wn.2d at 569.

13 Louis, 155 Wn.2d at 569 (quoting C Ile, 125 Wn.2d at 777).

14 Louis, 155 Wn.2d at 569.

as the "same evidence test."12 The

t's convictions for two offenses that

rotection against double jeopardy.13

offense requires proof of an element

oes not necessarily prove the other,

law] and multiple convictions are

-4-
No. 75759-8-I . / 5

When an act of sexual intercourse involves penetration, rape of a child in

II

the first degree and child molestation in the irst degree are legally distinct; rape

requires proof of penetration while molestatioI does not, and molestation requires

proof of sexual gratification while rape does not.15 In State v. Land,16 however,

this court recognized that when an act of sexual intercourse involves oral-genital

contact alone, if done for sexual gratification the same evidence can prove both

rape and molestation. Because they are the same in fact and in law, in this

circumstance the two crimes are not separatel punishable based on a single act.17

Thus, when both are charged, the trial court should instruct the jury that it must

find the State based each count on separate nd distinct acts to avoid a potential

double jeopardy violation.15 But a violatio does not occur if the evidence,

arguments, and instructions make it "'manifestly apparent"to the jury that the State

based each count on a separate act and "Ivittas] not seeking to impose multiple

punishments for the same offense."19

Rodriguez-Montoya asserts that the j ry could have relied on a single act

to convict him of both rape and molestation of F.M-G. He notes that the State

presented evidence of multiple acts of sexual contact between his penis and F.MG.'s mouth during the same charging period. He contends that because the trial

court did not instruct the jury that it must r ly on separate and distinct acts to

15 State v. Jones,71 Wn. App. 798, 825, 863 P.2d 85 (1993).

16 172 Wn. App. 593, 600, 295 P.3d 72 (2013).

17 Land,172 Wn. App. at 600.

18 Land, 172 Wn. App. at 600-01.

19 Mutch, 171 Wn.2d at 664 (alteratio in original) (quoting State v. Berg,

147 Wn. App. 923, 931, 198 P.3d 529 (2008)

-5-
No. 75759-8-1 /6

convict him on each count, the two convictions violate his guaranty against double

jeopardy. We disagree.

In Land, a jury convicted Land of one ount of child rape and one count of

child molestation, both involving the same c

We held that although the trial court should ha

the jury that the State must have based each

the absence of an instruction did not violate

jeopardy.21 We explained that the victim's te

lid and the same charging period.20

e submitted an instruction informing

ount on a separate and distinct act,

Land's right to be free from double

timony, the State's arguments, and

1

the to-convict instructions and information 1 elineating the two counts made it

manifestly apparent that the State was not seeking to impose multiple punishments

for the same offense.22

We see this case as similar to Land.F.M-G.'s mother testified that F.M-G.

told her that Rodriguez-Montoya would take him into "the room where the washing

machines are," pull down F.M-G.'s pants,

"parts." F.M-G. also told a child interview sp

taken F.M-G.'s hand and placed it on Rodrig

and that Rodriguez-Montoya had touched F.

to at least two incidents of sexual intercour

Rodriguez-Montoya "put his privacy in my

Montoya used the part of his body that he "p

G. stated that Rodriguez-Montoya put his "p

20 Land, 172 Wn. App. at 597.

21 Land, 172 Wn. App. at 603.

22 Land,172 Wn. App. at 602-03.

d have them touch each other's

cialist that Rodriguez-Montoya had

ez-Montoya's "pee" or his "privacy"

-G.'s "privacy." F.M-G. also testified

e. He stated that more than once

utt" and explained that Rodrigueze[s]" from to do so. In addition, F.Mivacy in my mouth" on five separate

-6-
No. 75759-8-1 /7

occasions. F.M-G. therefore implicitly distinguished the acts that constituted rape

from those that constituted molestation.

The State explicitly did so in its closing argument. It told the jury that it had

charged Rodriguez-Montoya with "[r]ape of a child in the first degree for his anal

and oral rape of [F.M-G. and] child molestation in the first degree for his

inappropriate and gratuitous touching of [F M-G.]." The State explained the

unanimity instruction to the jury in relation to the rape charge and said, "[I]f you can

agree that at least on one occasion [F.M-G.] anally raped within that charging

period and you're unanimous, that's enough.

within that charging period he was orally rape

molestation charge, the State explained, "No

with [F.M-G.], that same [unanimity] instruction

because [F.M-G.] has described multiple type

defendant's penis, the defendant's hand on [

happened multiple times." The State therefo

intercourse as rape and the acts involving tou

Finally, the to-convict instructions, like t

between the two counts. Instruction 9 stated t

rape of a child in the first degree involving F.FV

If you can unanimously agree that

,that's enough." In reference to the

with regard to Count II having to do

applies that I just described. That's

of sexual contact. His hand on the

.M-G.'s] penis, and the fact that it

e defined the acts involving sexual

hing as molestation.

e information, clearly differentiated

at to convict Rodriguez-Montoya of

-G., the jury had to find that he had

"sexual intercourse" with F.M-G. during the charging period. Instruction 13 stated

that to convict Rodriguez-Montoya of child mo

F.M-G., the jury had to find that he had "sex

estation in the first degree involving

al contact" with F.M-G. during the

-7-
No. 75759-8-1 / 8

charging period. Instructions 10 and 16 provi

intercourse and sexual contact, respectively.

Similar to Land, we conclude that F.Min closing, and the to-convict instructions an

and molestation charges made it manifestly a

not seeking to impose multiple punishments f

violate Rodriguez-Montoya's guaranty agains

the jury that it needed to rely on separate an

conviction. Thus, no constitutional error occu

ER 803

Rodriguez-Montoya also challenges t

hearsay statement to her pediatrician on the

purposes of diagnosis or treatment. We r

admissibility of evidence for an abuse of discr

"Hearsay" is an out-of-court stateme

matter asserted.24 Generally, a hearsay state

it satisfies an exception to the rule.25 ER 803

does not exclude "[s]tatements made for

treatment." The exception applies only

23 State v. Fisher, 165 Wn.2d 727, 745

24 ER 801(c).

25 ER 802.

ed the statutory definitions of sexual

.'s testimony, the State's arguments

information distinguishing the rape

parent to the jury that the State was

r a single act. The trial court did not

double jeopardy by failing to instruct

distinct acts for the bases of each

red.

e trial court's admission of R.A.L.'s

ground that she did not make it for

view a trial court's rulings on the

tion.23

t offered to prove the truth of the

ent is not admissible at trial unless

a)(4) provides that the hearsay rule

urposes of medical diagnosis or

o hearsay statements that were

202 P.3d 937 (2009).

-8-
No. 75759-8-1 / 9

"'reasonably pertinent to diagnosis or trea ment.'"26 "Generally, to establish

reasonable pertinence (1) the declarant's motive in making the statement must be

to promote treatment, and (2) the medical rofessional must have reasonably

relied on the statement for purposes of treat ent."27

As a preliminary matter, the State ass rts that Rodriguez-Montoya did not

preserve this claim for appellate review. Gen rally, an appellant may not challenge

a trial court's decision to admit evidence unl ss "a timely objection or motion to

strike [was] made, stating the specific grounJ of objection, if the specific ground

was not apparent from the context."28 We will not reverse the trial court's decision

to admit evidence where the defendant seeks reversal "based on an evidentiary

rule not raised at trial."29 For example, in State v. Powell 3° defense counsel

objected at trial to a witness's testimony on th ground that it was not credible. On

appeal however, Powell challenged the adr issibility of evidence based on ER

403.31 Our Supreme Court held defense counsel's failure to object to the witness's

testimony at trial based on ER 403 meant th it Powell did not preserve the issue

for appellate review.32

Here, Rodriguez-Montoya claims that tie trial court abused its discretion in

admitting R.A.L.'s statement because of her joung age and because it identified

26 ER 803(a)(4); In re Pers. Restraint of Grasso, 151 Wn.2d 1, 19-20, 84

P.3d 859 (2004) (quoting State v. Woods, 143 Wn.2d 561, 602, 23 P.3d 1046

(2001)).

27 Grasso, 151 Wn.2d at 20.

28 ER 103(a)(1).

29 State v. Powell, 166 Wn.2d 73, 82, 06 P.3d 321 (2009).

30 166 Wn.2d 73, 83, 206 P.3d 321 (2009).

3

1 Powell, 166 Wn.2d at 84.

32 Powell, 166 Wn.2d at 84.

-9-
No. 75759-8-1 / 10

him as her abuser. The State claims th t he did not object below to the

admissibility of R.A.L.'s statement based on these grounds. Rather, in the trial

court he objected on the ground that R.A. . did not make her statement for

purposes of medical diagnosis or treatment. He thus asserted that her statement

did not meet the requirements of ER 803(a)( ). On appeal, he claims error based

on the same evidentiary rule but now asserts ore specific grounds to explain why

R.A.L. did not make her statement for purpos s of medical diagnosis or treatment.

Because he seeks review of the same issue he raised at trial, he preserved it for

review.

First, Rodriguez-Montoya contends that at four years old, R.A.L.'s age

makes it unlikely that she understood the p rpose for making her statement to

Guerra. This required that the trial court identify evidence in the record

corroborating her statement. Washington courts admit child hearsay statements

under ER 803(a)(4) even if the child does

statements for purposes of medical diagnosis

admit child hearsay "only if corroborating evid

and it appears unlikely that the child would h

This corroborating evidence must be part of

which the child makes the statements.35

court should identify on the record the spec'

not understand that she made the

or treatment.33 But a trial court may

nce supports the child's statements

we fabricated the cause of injury."34

the totality of the circumstances in

facilitate appellate review, the trial

c evidence—drawn from the totality

33 State v. Florczak,76 Wn. App. 55, 65, 882 P.2d 199 (1994).

34 Florczak,76 Wn. App. at 65.

35 Florczak,76 Wn. App. at 65-66.

-10-
No. 75759-8-1 / 11

of the circumstances—on which it relies to determine whether or not the

statements were reliable, and therefore admi sible."36

Rodriguez-Montoya contends that the court's failure to identify

corroborating evidence and the absence of evidence in the record supporting

R.A.L.'s statement show that the court abuse its discretion. He notes that R.A.L.

had no physical injuries and claims that because she was "not crying, upset or

fussy" when she spoke with Guerra, her re

statement.

Consistent with Rodriguez-Montoya's

identify on the record what it considered to e

of-court statement to Guerra. The record, ho

surrounding her statement to Guerra.37 T

corroborate R.A.L.'s statement. First, Guerr

R.A.L., she observed R.A.L.'s vagina and labi

that Guerra examined R.A.L. three or fo

orted behavior did not support her

argument, the trial court did not

tablish the reliability of R.A.L.'s outever, documents the circumstances

e totality of these circumstances

testified that when she examined

were red. R.A.L.'s mother testified

r days after R.A.L. told her that

Rodriguez-Montoya had molested her. Because Guerra did not examine R.A.L.

immediately after the incident, she testified th

the abuse caused the redness. Guerra stated

caused the redness, including poor hygien

t she could not determine whether

that a number of issues could have

e, a yeast infection, and contact

36 Florczak,76 Wn. App. at 66.

37 See Florczak,76 Wn. App. at 66-67 (holding that although the trial court

did not consider the reliability of KT's out-of-court statements, the record

sufficiently documented corroborating evideAce of those statements, including

KT's emotional state and behavior during her counseling sessions).

-11-
No. 75759-8-1 / 12

dermatitis, all of which are common. She als

explain the redness.

Further, Guerra had been R.A.L.'s pe

old, which means R.A.L. likely knew she

appointment and had no reason to invent her

that R.A.L. had seen Guerra for regular ch

years. Guerra explained that when a patie

clinic follows the same procedures: the medi

stated, however, that touching could

iatrician since R.A.L. was 18 months

was seeing Guerra for a medical

statement. R.A.L.'s mother testified

ckups over the last two-and-a-half

t comes in for an appointment, the

cal assistant takes the patient's vital

signs, inquires about her chief complaint, does a short "review of systems," and

then puts her in an examination room. Guer rla stated that she begins by greeting

the child, asks about her history, and then cI nducts a physical examination. On

November 11, 2014, consistent with protocol,

had come to see her before performing

documented her conversation with R.A.L. as

Guerra asked R.A.L. about why she

a physical examination. Guerra

ollows:

[R.A.L.] tells me in Spanish that Dieg asked her to touch his cola.

She said no, and he unzipped his pa ts and put her hands in—in

quotations—she points to the genital a ea. Then he pulled her pants

down and Diego touch[ed] her—she p ints to her vaginal area—with

his hands.

Diego told [R.A.L.] that if she id not tell anybody, he was

going to buy her candy. 1 asked [R.A. .] if it hurt when he touch[ed]

her, and [R.A.L.] responded no.

Because R.A.L. had been seeing Guer a for "regular checkups" for over two

years and each checkup involved similar pro edures, R.A.L. likely knew she was

seeing Guerra on November 11 for a me ically related purpose and had no

incentive to fabricate her statement. This, in addition to the redness around

-12-
No. 75759-8-1/13

R.A.L.'s vagina and labia, shows that the tota ity of the circumstances corroborates

R.A.L.'s statement. Also, courts generally ac ept that a child's young age supports

the conclusion that she did not fabricate the pause of her injury.38 R.A.L. was only

four years old when she made her statement to Guerra and therefore likely had no

reason to fabricate the abuse. Thus, the trial court did not abuse its discretion in

finding that R.A.L. made her statement for purposes of medical diagnosis or

treatment and admitting it under ER 803(a)(4

Rodriguez-Montoya also challenges the trial court's admission of R.A.L.'s

statement identifying him as her abuser. Gen

not admissible under ER 803(a)(4).39 B

"statements regarding the identity of the abu

child's medical treatment."49 The medical pro

to avoid returning the child to the abusive r

identity was therefore related to Guerra's dia

rally, statements attributing fault are

t when the declarant is a child,

er are reasonably necessary to the

ider must know who abused a child

lationship.41 Rodriguez-Montoya's

nosis and treatment of R.A.L. The

38 Florczak,76 Wn. App. at 66; accord State v. Ashcraft, 71 Wn. App. 444,

457-58, 859 P.2d 60(1993) (holding that beca se of J.'s young age, she appeared

to have no reason to fabricate the nature of her injuries); State v. Butler, 53 Wn.

App. 214, 222-23, 766 P.2d 505 (1989) (explaining that a child of two and a half

would normally have no reason to fabricate the cause of his injury).

39 Butler, 53 Wn. App. at 217.

49 State v. Hopkins, 134 Wn. App. 780, 788, 142 P.3d 1104 (2006) (holding

an out-of-court statement by the thirteen-ye r-old victim to a nurse practitioner

identifying her sister's friend as her abuser ps admissible under ER 803(a)(4));

accord State v. Robinson, 44 Wn. App. 611, 613-16, 722 P.2d 1379 (1986)

(holding an out-of-court statement by the three-year-old victim to a physician

identifying her father's friend as her abuser w s admissible under ER 803(a)(4)).

41 Hopkins, 134 Wn. App. at 788.

-13-
No. 75759-8-1 / 14

trial court did not abuse its discretion in admitting R.A.L.'s statement identifying

Rodriguez-Montoya as her abuser.

CONCLUSION

Rodriguez-Montoya's convictions for r pe and molestation of F.M-G. did not

violate his protection against double jeopardy. The trial court did not abuse its

discretion by admitting R.A.L.'s out-of-court statement to her pediatrician

describing the abuse and identifying her abus r as Rodriguez-Montoya. We affirm.

WE CONCUR:

,

-14-