# 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 LEACH,J.— Juan Jose Rodriguez-Mon No. 75759-8-1 DIVISION ONE UNPUBLISHED OPINION FILED: March 5, 2018 toya appeals his convictionsfor rape of a child in the first degree and two counts of child molestation in the first degree for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 againstdouble jeopardy to challenge the convictionsfor 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-of

because 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 thatthe 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.

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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 Rodriguez

Montoya 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 ofchild 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 thatthe 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

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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 Amendmentto the United St 9 ofthe 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 conductthat violates both the rape of the child molestation in the first degree statut First, we evaluate the language ofthe 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 subjectfor the same offense Vi to be twice put in jeopardy of life or limb"); ASH. CONST. art. I, § 9 ("[n]o person shall be . . .twice put in jeopardyfor the sam offense"); Mutch, 171 Wn.2d at663.

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 0Wn.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 ofthe same or opposite se An individual is guilty of child moles person has, or knowingly causes another p have,sexual contactwith 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 notmarried ast thirty-six months older than the ofthe 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 againstdouble jeopardy.13 offense requires proof of an element
oes not necessarily prove the other, law] and multiple convictions are

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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 notseparatel 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 thatthe 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 1elineating the two counts made it manifestly apparentthatthe State was notseeking 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, 172Wn.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

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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]fyou 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.],thatsame [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 9stated 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 appliesthat I justdescribed. 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 ofchild 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

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charging period. Instructions 10and 16 provi intercourse and sexual contact, respectively. Similarto 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 punishmentsf 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 ofsexual

.'s testimony,the State's arguments information distinguishing the rape parent to the jury that the State was r a single act. The trial courtdid not double jeopardy byfailing 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 attrial unless a)(4) provides that the hearsay rule urposes of medical diagnosis or o hearsay statements that were

202 P.3d 937 (2009).

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"'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 statementfor purposes oftreat 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 notchallenge
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 apparentfrom 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 attrial 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'sfailure to objectto 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). 31 Powell, 166 Wn.2d at 84. 32 Powell, 166 Wn.2d at 84. -9-

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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 statementfor 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-

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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 statementto 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-

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dermatitis,all ofwhich 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,thattouching 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 a stated that she begins by greeting r l 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. aboutwhy 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 overtwo 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

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R.A.L.'s vagina and labia,showsthatthe tota ity ofthe circumstances corroborates R.A.L.'s statement. Also,courts generally ac eptthat a child's young age supports the conclusion that she did notfabricate 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 ofJ.'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, 53Wn.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-

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trial court did not abuse its discretion in admitting R.A.L.'s statement identifying Rodriguez-Montoya as her abuser. CONCLUSION Rodriguez-Montoya's convictionsfor r pe and molestation ofF.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 herabus ras Rodriguez-Montoya. Weaffirm.

WE CONCUR:



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