    Fl LE



           IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                            )
                                                )
                           Respondent,          )                No. 88422-6
                                                )
      v.                                        )                   EnBanc
                                                )
JORGE NAHUN PENA FUENTES,                       )
                                                )     Filed _    _;_F-=EB"'-,-""-0_,_8_,_20 .14..___
                                                                                          .. .
                           Petitioner.          )
___________________________)

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

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

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

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

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

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

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

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

conduct." ld.
State v. Pena Fuentes
No. 88422-6


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

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

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

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

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

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

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

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

communicated any information about the attorney-client conversations to the

prosecution.

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

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

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

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

additional discovery.

                                         FACTS

        While the most significant issue in this case involves the detective

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

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

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



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State v. Pena Fuentes
No. 88422-6


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

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

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

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

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

various legal issues.

J.B. Reports Abuse

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

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

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

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

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

degree child molestation.

Overview of the Trial

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

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

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

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

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

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



                                              3
State v. Pefia Fuentes
No. 88422-6


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

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

       •    Count II was based on abuse alleged to have occurred while the family was
            living at an apartment in Bellevue, between November 26, 2000 and June 1,
            2003.

       •    Counts I, III, and IV were based on abuse alleged to have occurred while the
            family was living at a condo between January 1, 2003 and November 25,
            2005.

       •    Counts V, VI, and VII were based on abuse alleged to have occurred after
            Pefia Fuentes and J.B. 'smother had divorced, while J.B. was living with her
            mother in Sammamish and Pefia Fuentes was living in Redmond between
            November 26, 2005 and November 25, 2007.

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

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

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

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

count II.

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

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

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

particularly severe incidents involving penetration that occurred while they were

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

and IV.




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State v. Pena Fuentes
No. 88422-6


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

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

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

to reach unanimity on the remaining charges.

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

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

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

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

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

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

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

with J.B.

L.P. 's Testimony at Trial

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

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

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

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

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

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

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



                                             5
State v. Pena Fuentes
No. 88422-6


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

mother say to J.B.

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

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

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

conversation between her mother and J .B.

Double Jeopardy Ruling

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

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

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

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

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

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

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

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

with prejudice.

New Video ofL.P.

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

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


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

                                               6
State v. Peiia Fuentes
No. 88422-6


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

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

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

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

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

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

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

(CP) at 71.

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

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

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

sexual assault." Id. at 146.

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

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

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

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

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

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

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

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



                                             7
State v. Pena Fuentes
No. 88422-6


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

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

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

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

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

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

the video would not have changed the results.

A Detective Listens to Private Attorney-Client Conversations

       After learning ofMihaela and Hertog's visit to L.P. at her church in mid-

December 2010, the prosecutor and the police decided to investigate possible witness

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

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

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

between Pefia Fuentes and his attorney. The prosecutor immediately informed

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

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

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

tampering investigation. The prosecutor then told defense counsel about the

eavesdropping. The prosecutor later submitted a declaration stating that Detective




                                             8
State v. Pena Fuentes
No. 88422-6


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

attorney to him.

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

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

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

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

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

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

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

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

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

motion.

Motion To Supplement the Record on Appeal

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

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

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

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

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

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

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



                                            9
State v. Pefia Fuentes
No. 88422-6


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

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

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

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

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

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

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

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

                                         ISSUES

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

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

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

the eavesdropping?

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

witness impeachment purposes?

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

degree child molestation violate double jeopardy?

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

clerk's papers?




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State v. Pena Fuentes
No. 88422-6


                                      ANALYSIS

A.     The Presumption ofPrejudice Resulting from the State Eavesdropping on
       Attorney-Client Conversations Can Be Rebutted If the State Shows the Absence
       ofPrejudice Beyond a Reasonable Doubt

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

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

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

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

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

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

       The Cory court presumed prejudice arising from the eavesdropping that

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

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

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

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

prejudicial or if the presumption of prejudice is rebuttable.

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

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

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

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

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



                                            11
State v. Pena Fuentes
No. 88422-6


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

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

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

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

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

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

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

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

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

such eavesdropping is rebuttable.

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

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

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

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

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

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

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

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

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




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State v. Pena Fuentes
No. 88422-6


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

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

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

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

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

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

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

on the State.

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

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

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

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

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

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

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

prejudice beyond a reasonable doubt.

B.     Additional Discovery Is Needed To Determine Whether the Eavesdropping
       Resulted in Prejudice to Pena Fuentes

        The prosecutor argues that Pefia Fuentes cannot show prejudice resulting from

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

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


                                              13
State v. Pena Fuentes
No. 88422-6


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

Pefia Fuentes counters that the overheard conversations included discussions

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

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

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

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

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

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

discovery of information related to the eavesdropping.

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

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

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

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

representations as to the date that Detective Johnson eavesdropped on the

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

submitted evidence showing that Detective Johnson discontinued his participation in

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

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

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

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



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State v. Pena Fuentes
No. 88422-6


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

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

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

possibility of prejudice arises because regardless of whether the prosecutor himself

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

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

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

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

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

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

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

discovery in order to determine whether Detective Johnson continued to investigate

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

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

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

proceedings.

C.     The Court ofAppeals Properly Held That the Defense Failed To Object at Trial
       to the Decision To Limit Consideration ofL.P. 's Letter to Impeachment

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

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

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


                                             15
State v. Pena Fuentes
No. 88422-6


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

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

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

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

failure to object.

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

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

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

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

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

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

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

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

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

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

Court of Appeals on this issue.

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

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

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

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



                                             16
State v. Pefia Fuentes
No. 88422-6


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

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

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

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

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

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

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

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

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

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

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




2
 The trial judge granted a new trial on the child rape charge, but then ordered that that
charge be dismissed with prejudice because of the police eavesdropping. The trial judge
essentially ruled that while the eavesdropping did not prejudice the defendant as to the
charges for which he had already been tried, it did prejudice the defendant with regard to
a new trial.

                                             17
State v. Pena Fuentes
No. 88422-6


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

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

Pefia Fuentes challenges that reversal.

       A "defendant's double jeopardy rights are violated if he or she is convicted of

offenses that are identical both in fact and in law." State v. Calle, 125 Wn.2d 769,

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

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

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

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

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

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

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

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




3
  In this case, the jury was instructed that sexual contact for the purposes of child
molestation included "any touching of the sexual or other intimate parts of a person done
for the purpose of gratifying sexual desires of either party or a third party." CP at 45
(Instruction 20). Sexual intercourse for the purposes of rape included "any act of sexual
contact between persons involving the sex organs of one person and the mouth or anus of
another." Id. at 34 (Instruction 9). These two elements are substantially identical. These
instructions appear to be drawn on pattern jury instructions drafted by the Washington
Supreme Court Committee on Jury Instructions. See 11 WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 45.01, at 831, 45.07, at 839 (3d
ed. 2008). We note that the committee on jury instructions recommended not using both
definitions in a case where rape was charged, perhaps to avoid the situation we have here.
I d.

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State v. Pena Fuentes
No. 88422-6


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

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

I d. at 665-66.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

credibility.



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State v. Pena Fuentes
No. 88422-6


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

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

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

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

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

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

separate and distinct acts. He divided Pefia Fuentes's behaviors into two categories-

the acts involving penetration, which constituted rape, and the other inappropriate

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

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

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

at the condo.

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

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

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

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

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

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

jeopardy ruling.




                                            20
State v. Pefia Fuentes
No. 88422-6


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

       Pefia Fuentes argues that the Court of Appeals erroneously struck the

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

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

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

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

is unlikely the documents would have changed the decision.

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

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

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

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

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

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

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

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

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

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

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

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

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



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State v. Pena Fuentes
No. 88422-6


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

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

                                   CONCLUSION

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

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

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

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

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

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

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

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

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




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State v. Pefia Fuentes
No. 88422-6




WE CONCUR:




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