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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON,                                No. 70643-8-

              Respondent,

              v.



MANUEL JUAREZ-GARCIA,                               UNPUBLISHED OPINION

              Appellant.                            FILED: November 10, 2014


       Verellen, J. — Manuel Juarez-Garcia contends that the State assumed the

burden of proving beyond a reasonable doubt which specific act of rape caused the

child victim's pregnancy, an aggravating circumstance. But the to-convict instructions

and special verdict forms did not require the State to prove which of the multiple rapes

resulted in the victim's pregnancy. Viewing the evidence and all reasonable inferences

in the light most favorable to the State, there is sufficient evidence for a rational trier of

fact to conclude that one of the three acts of rape caused the victim's pregnancy.

       Juarez-Garcia also contends that the double jeopardy prohibition on multiple

punishments is offended when a sentence enhancement includes an "element" that is

the same as the basis for one of his convictions. Because the legislature clearly intends

to impose an enhanced punishment here, no double jeopardy violation exists.

       Juarez-Garcia's other arguments are unpersuasive. We affirm.
No. 70643-8-1/2



                                          FACTS

       On five separate occasions between July 2012 and November 2012, Juarez-

Garcia had sexual contact with his 14-year-old stepdaughter. The jury found that he

had sexual intercourse with the victim on three of those five occasions.

       The first incident involving sexual intercourse occurred in the back seat of a

vehicle at the labor camp. The jury found Juarez-Garcia guilty of second degree rape

by forcible compulsion (count I), second degree child rape (count II), and second degree

child molestation (count III).

       The second incident involving sexual intercourse occurred in the back seat of a

vehicle at a Fred Meyer parking lot. The jury found Juarez-Garcia guilty of forcible rape

(count IV), child rape (count V), and child molestation (count VI).

       The third incident involving sexual intercourse occurred outdoors. The jury found

Juarez-Garcia guilty of forcible rape (count IX), child rape (count X), and child

molestation (count XI).

       The victim became pregnant, and she had an abortion in December 2012. DNA

evidence established a 99.99991 percent probability that Juarez-Garcia fathered the

aborted fetus. At trial, the victim testified that she was not pregnant upon arriving in

Washington and that she had her period in both California and Washington before she

became pregnant. The victim also testified that the first time (and only times) she had

sex was with Juarez-Garcia in Washington and that no consensual sex occurred

between the victim and Juarez-Garcia.

       The jury convicted Juarez-Garcia of three counts of forcible rape (counts I, IV,

and IX); three counts of child rape (counts II, V, and X); four counts of child molestation
No. 70643-8-1/3


(counts III, VI, VIII, and XI); and one count of attempted second degree child rape
(count XII).

       Juarez-Garcia's forcible rape convictions were enhanced by the jury's special

verdict finding that the victim was under the age of 15 at the time of the offense.1 For

Juarez-Garcia's forcible rape and child rape convictions, the jury returned special

verdicts finding that the rapes resulted in the victim's pregnancy—an aggravating

circumstance under RCW 9.94A.535(3)(i).2

       At sentencing, the trial court found that three of the child molestation convictions

(counts III, VI, and XI) merged with the child rape convictions. The trial court also found

that the three child rape convictions constituted the same criminal conduct as the three

forcible rape convictions. The trial court imposed an exceptional sentence of 40 years

on the forcible rape convictions.

       Juarez-Garcia appeals.

                                        ANALYSIS

       Juarez-Garcia contends that the State assumed the burden of proving beyond a

reasonable doubt which specific act of rape caused the victim's pregnancy and that

there is insufficient evidence to support the jury's special verdict as to the aggravating

circumstance. Viewing the evidence in the light most favorable to the State, a rational


       1The under-15 sentence enhancement was charged and applied only to the
forcible rape convictions. See RCW 9.94A.837.
       2A trial court may impose an exceptional sentence where a jury finds beyond a
reasonable doubt that "[t]he offense resulted in the pregnancy of a child victim of rape."
RCW 9.94A.535(3)(i). Although the jury returned a special verdict that the crime
resulted in the victim's pregnancy for three counts of forcible rape and three counts of
child rape, the trial court observed at sentencing that only the charge in count IV,
forcible rape, resulted in the victim's pregnancy. The trial court offered no explanation
for the difference between the jury's special verdict and the trial court's observation.
No. 70643-8-1/4


trier of fact could find there is sufficient evidence that the victim became pregnant as a

result of any one of the three acts of rape by Juarez-Garcia. The State did not assume

any greater burden.

       Juarez-Garcia acknowledges that, in multiple rape cases involving the pregnancy

aggravating circumstance, the State does not normally have the burden of proving

which specific act of rape caused the victim's pregnancy; that aggravating circumstance

is not an element of the crime.3 But Juarez-Garcia contends that the Hickman doctrine

compelled the State to prove beyond a reasonable doubt which specific act of rape

caused the victim's pregnancy because of the combined impact of the "separate and

distinct" language in the to-convict instructions and the phrasing of the special verdict

forms.4 We disagree.

       Where multiple counts allegedly occur within the same charging period in sexual

abuse cases, the to-convict instructions must make it manifestly apparent that each

count is based on proof of a separate and distinct act.5 Here, the State alleged that

multiple counts of sexual abuse occurred within the same charging period. The to-




       3 E&, State v. Brett. 126 Wn.2d 136, 154-55, 892 P.2d 29 (1995) ("Aggravating
circumstances, however, are not elements of the crime, but 'aggravation of penalty'
factors.") (citation and internal quotation marks omitted).
       4 The Hickman doctrine, one aspect of the broader "law of the case" doctrine,
holds that elements added to the to-convict instruction become the "'law of the case'
which the State must prove beyond a reasonable doubt to prevail." State v. Hickman.
135 Wn.2d 97, 99, 954 P.2d 900 (1998).
       5 State v. Borsheim. 140 Wn. App. 357, 366-67, 165 P.3d 417 (2007).
No. 70643-8-1/5


convict instructions, thus, properly required that each of the multiple alleged incidents of

rape must be established as separate and distinct acts.6

       The State had the burden of proving beyond a reasonable doubt the aggravating

circumstance that "[t]he offense resulted in the pregnancy of a child victim of rape."7

The two special verdict forms here followed the same format, with two blanks for the

jury to complete in answering the question whether "the crime resulted] in the

pregnancy of a child victim of rape?"8 In answering "yes," the jury also had to fill in the

blank in the preamble identifying "the crime(s)" that supported the aggravating

circumstance. In the special verdict form for forcible rape, the jury identified "the

crime(s)" by filling in counts I, IV, and IX. In the special verdict form for child rape, the

jury filled in counts II, V, and X. Thus, for all of Juarez-Garcia's rape convictions, the

jury found beyond a reasonable doubt that as to "the crime(s)," consisting of the rape

counts identified by the jury, "the crime resulted] in the pregnancy of a child victim of

rape."9 Although it would have been more precise to use the language "the crime(s)"

both in the preamble and in the question on each form, the completed special verdict

forms adequately reflect the jury's determination that the victim became pregnant as a

result of one of Juarez-Garcia's three acts of rape.




       6 Consistent with this requirement, jury instruction 25 provided, "A separate crime
is charged in each count. You must decide each count separately. Your verdict on one
count should not control your verdict on any other count." Clerk's Papers at 93.
      7 See RCW 9.94A.535(3)(i), .537(3). The parties do not dispute that the State
had the burden of proving beyond a reasonable doubt the elements of forcible rape
under RCW 9A.44.050 and child rape under RCW 9A.44.076.
       8 Clerk's Paper at 111, 112.
       9 Id. at 111-12.
No. 70643-8-1/6


       Juarez-Garcia cites no authority that a special verdict form's wording, read

together with the separate and distinct language in a to-convict instruction, results in the

State assuming the burden of proving which specific act of rape caused the victim's

pregnancy or, even more illogically, that each rape caused a separate pregnancy. With

or without the separate and distinct language in the to-convict instruction, the special

verdict forms simply do not require the jury to find which specific act of rape caused the

child victim's pregnancy. Juarez-Garcia does not establish any combined impact of the

to-convict instruction and the special verdict forms. Therefore, the State did not assume

the burden of proving which specific act of rape caused the child victim's pregnancy.

          Moreover, Juarez-Garcia provides no authority that the Hickman doctrine applies

to a jury's finding of an aggravating circumstance in a special verdict form. Unlike in

Hickman, where the to-convict instruction added venue as an additional element for the

jury to consider, the to-convict instruction here did not include the aggravating

circumstance. Notably, no cases have applied the Hickman doctrine to a special verdict

form.10

          Juarez-Garcia also contends that there is insufficient evidence to support the

jury'sfinding that the victim became pregnant as a result of any one of the three acts of

rape. We disagree.

          A challenge to the sufficiency of the evidence admits the truth of the State's

evidence and all reasonable inferences that can be drawn from them.11 We review the



          10 See generally State v. France, 180 Wn.2d 809, 814 n.2, 816, 818, 329 P.3d
864 (2014) (recognizing that the State's burden to prove facts beyond the elements of a
crime arises in limited circumstances under the Hickman doctrine).
          11 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
No. 70643-8-1/7


evidence "in the light most favorable to the State."12 Evidence is sufficient to support an

aggravating circumstance if it allows any rational trier of fact to find the aggravating

circumstance beyond a reasonable doubt.13

       Here, the victim testified that she was not pregnant upon arriving in Washington

and that she had her period in both California and Washington before she became

pregnant. The victim testified that the first time (and only times) she had sex was with

Juarez-Garcia in Washington and that no consensual sex occurred between her and

Juarez-Garcia. DNA14 evidence also established a 99.99991 percent probability that

Juarez-Garcia fathered the aborted fetus. The victim's testimony supports a reasonable

inference that she became pregnant in Washington as the result of one of the rapes and

that no other act of sexual intercourse could have caused her pregnancy.15 Viewing the

evidence in the light most favorable to the State, there is sufficient evidence to sustain

the jury's finding beyond a reasonable doubt that the victim became pregnant as a

result of one of the three acts of rape by Juarez-Garcia between July 2012 and

November 2012.




       12 State v. Varqa, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).
       13 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L Ed. 2d 560
(1979): see also State v. Chanthaboulv. 164 Wn. App. 104, 142, 262 P.3d 144(2011)
("We review a jury's special verdictfinding the existence of an aggravating circumstance
under the sufficiency of the evidence standard.").
       14 Deoxyribonucleic acid.
      15 Juarez-Garcia suggests that the State successfully opposed admission of
evidence that might have shed light on the gestational period for the fetus. But Juarez-
Garcia does not assign error to the trial court's ruling excluding hearsay testimony by a
nurse practitioner who overheard statements by others regarding the victim's
gestational period. Further, nothing in the record suggests that the State objected to the
admissibility of this evidence in an attempt to frustrate any defense theory that the rapes
were not the source of the victim's pregnancy.
No. 70643-8-1/8


          Juarez-Garcia contends that the trial court erred when it failed to enter written

findings offact and conclusions of law supporting its imposition of an exceptional

sentence. Generally, a trial court should make written findings of fact and conclusions

of law supporting the imposition of an aggravating circumstance. Whenever an

exceptional sentence is imposed, "the court shall set forth the reasons for its decision in

written findings of fact and conclusions of law."16 But a trial court's failure to enter

findings of fact and conclusions of law supporting an exceptional sentence is harmless if

the jury's finding of the aggravating circumstance supports the exceptional sentence

and the trial court's oral ruling or memorandum decision provides an adequate basis for

appellate review.17

       Here, the judgment and sentence explicitly recites that the trial court found

substantial and compelling reasons justifying an exceptional sentence based on the

pregnancy aggravating circumstance as found by the jury in a special verdict.18 The

record and the written judgment and sentence are sufficiently clear regarding the

reasons for imposing an exceptional sentence. Therefore, the trial court's failure to

enter mandatory written findings and conclusions when it imposed an exceptional

sentence is harmless and not a basis for relief on appeal.


       16 RCW 9.94A.535; see also State v. Hale. 146 Wn. App. 299, 306, 189 P.3d 829
(2008).
       17 State v. Bluehorse. 159 Wn. App. 410, 423, 248 P.3d 537 (2011) ("[Wjhere 'the
trial court's oral opinion and the hearing record are sufficiently comprehensive and clear
that written facts would be a mere formality, the trial court's failure to enter mandatory
written findings and conclusions is harmless.'") (quoting State v. Hickman, 157 Wn. App.
767, 771 n.2, 238 P.3d 1240 (2010)).
       18 In its oral decision, the trial court used the term "exceptional sentence" to
describe both the under-15 sentence enhancement and the pregnancy aggravating
circumstance. But the judgment and sentence clearly reflects the exceptional sentence
is based upon the pregnancy aggravating circumstance.


                                                8
No. 70643-8-1/9



       Juarez-Garcia contends that because the under-15 sentence enhancement

includes a status "element" based on the victim's age, and a separate offense—child

rape—includes a status element based on the victim's age, the double jeopardy

prohibition on multiple punishments is violated.19 We disagree.

       We review double jeopardy claims de novo.20 Both the federal and state

constitutions protect against multiple prosecutions for the same conduct and multiple

punishments for the same offense.21 But "'[wjithin constitutional constraints,' the

legislature is free to define crimes and punishments as it sees fit."22

       Juarez-Garcia was charged and convicted of both forcible rape and child rape.

The jury, in a special verdict, found that for each of the three forcible rape convictions,

"the victim was under fifteen years of age at the time of the offense."23 The under-15

sentence enhancement, therefore, applied only to Juarez-Garcia's convictions for

forcible rape.




       19 As clarified at oral argument, Juarez-Garcia contends that under the same
evidence test, see State v. Jackman. 156 Wn.2d 736, 747-51, 132 P.3d 136 (2006), we
do not compare the elements of forcible rape (the predicate offense to which the under-
15 sentence enhancement was applied) plus the under-15 sentence enhancement
"element" with the elements of child rape. Rather, we should compare only the
requirements for the under-15 sentence enhancement with the elements of child rape to
determine if double jeopardy is violated.
       20 State v. Smith, 177 Wn.2d 533, 545, 303 P.3d 1047 (2013).
       21 U.S. Const, amend. V; Wash. Const, art. I, § 9; State v. Kellev. 168 Wn.2d
72, 77, 226 P.3d 773 (2010).
       22 Smith, 177 Wn.2d at 545 (internal quotation marks omitted) (quoting State v.
Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995)).
       23 RCW 9.94A.837(2); State v. Rice, 159 Wn. App. 545, 569, 246 P.3d 234
(2011) ("On a finding of the RCW 9.94A.837 special allegation, a defendant's sentence
must be enhanced.").
No. 70643-8-1/10


       State v. Rice specifically addressed the validity of the under-15 sentence

enhancement in the double jeopardy context.24 In Rice, the defendant was convicted of

first degree kidnapping and first degree child molestation. An under-15 sentence

enhancement was applied to the defendant's first degree kidnapping conviction. The

under-15 sentence enhancement increased the defendant's presumptive or standard

sentencing range,25 with the minimum term either becoming "the maximum of the

standard sentence range for the offense or twenty-five years, whichever is greater."26

The defendant argued that because the predicate first degree child molestation charge

used to charge first degree kidnapping involved a victim less than 12 years old, a

sentence enhancement based on the victim's age constituted a second punishment for

the same offense.27 Although the sentence enhancement coincided with an underlying

element of the predicate offense (first degree child molestation), Rice held that the

defendant's legislatively mandated under-15 sentence enhancement did not violate

double jeopardy.28

       Juarez-Garcia points this court to the United States Supreme Court's recent

decision in Allevne v. United States.29 Allevne held that, consistent with Apprendi v.




       24 159 Wn. App. 545, 568-70, 246 P.3d 234 (2011).
       25 Rice noted that while "[sjentencing enhancements increase the presumptive or
standard sentencing range, . .. they do not require a finding of an aggravating factor
[under RCW 9.94A.535(3)] that allows the trial court to consider imposing an
exceptional sentence outside the presumptive or standard sentencing range." Id. at
569.

       26 Former RCW 9.94A.712 (2006), recodified as RCW 9.94A.507(3)(c)(ii).
       27 Rjce, 159 Wn. App. at 568-69.
       28 \± at 568-70.
       29 _ U.S. _, 133 S. Ct. 2151, 186 L.Ed. 2d 314 (2013).


                                            10
No. 70643-8-1/11


New Jersey30 and its progeny, for purposes ofthe Sixth Amendment right to a jury trial,
any fact (i.e., a sentencing factor) that increases the punishment for a crime is an

"element" of that crime and must be found by a jury and proved beyond a reasonable

doubt.31 Allevne determined that "facts increasing the legally prescribed floor [of the
sentencing range] aggravate the punishment."32 Here, Juarez-Garcia argues that,

because Allevne eliminated any distinction between sentencing enhancements and

aggravating circumstances, Allevne invalidated Rice's holding. But Allevne is limited to

the Sixth Amendment, does not mention double jeopardy, and does not indirectly impact

double jeopardy analysis.33

       More importantly, as recognized in prior Washington cases, Apprendi and its

progeny did not alter the double jeopardy landscape because "none of [those] cases

concerned] the double jeopardy clause."34 And they do not make a sentencing factor—


       30 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
       31 Allevne. 133 S. Ct. at 2158.
       32 id, at 2161.
       33 See United States v. Arzate, No. 13-30008-RWZ, 2013 WL 6531121, at *2 (D.
Mass. Dec. 13, 2013) ("[Allevne] says nothing about. . . double jeopardy.").
        We note that the recent decision in State v. McEnroe. No. 89881-2 (Wash.
Sept. 4, 2014), does not impact our analysis. In McEnroe, the defendants argued that a
jury finding of an absence of "sufficient mitigating circumstances to merit leniency" in a
death penalty case constituted an essential element of capital murder that must be
charged in the information based on Allevne. McEnroe, slip. op. at 3-4. Our Supreme
Court disagreed. McEnroe recognized that Allevne does not literally mean that such a
fact becomes an "element" for all purposes. Just because Allevne recognizes that any
fact that enhances a punishment is an "element" of the crime that must be found beyond
a reasonable doubt by a jury for Sixth Amendment purposes, that does not mean it must
also be treated as an "element" for purposes of the charging document, jd. at 7-11.
McEnroe noted that the only constitutional provisions at issue in Apprendi and Allevne
are the Sixth and Fourteenth Amendments, not the Fifth Amendment. kL at 11.
       34 Kellev, 168 Wn.2d at 82; State v. Aquirre. 168 Wn.2d 350, 367, 229 P.3d 669
(2010).


                                            11
No. 70643-8-1/12


either a sentence enhancement or an aggravating circumstance—an "element" of an

"offense" for double jeopardy purposes. The core principle underlying Washington case
law is that when the legislature clearly intends to impose cumulative punishment for the
same act or conduct, double jeopardy is not violated.35

       Here, the legislature clearly intended to impose cumulative punishment. Juarez-

Garcia was convicted of forcible rape, to which the under-15 sentence enhancement

applied. Under RCW 9.94A.837, the under-15 sentence enhancement only applies to

first degree rape, second degree rape, indecent liberties by forcible compulsion, and

first degree kidnapping with sexual motivation. In addition, the legislative history clearly

states that the under-15 sentence enhancement was intended to "result in more severe

punishment for certain sex offenses against children ... by increasing the minimum

sentences to twenty-five years or the maximum of the standard sentence range,

whichever is greater, for. . . rape of a child in the second degree."36 Juarez-Garcia

provides no compelling argument that the presence of the child rape convictions, found

to be the same criminal conduct as his forcible rape convictions, alters the clear

legislative intent to enhance the forcible rape convictions based on the victim's age.37




       35 See, e.g.. Kellev, 168 Wn.2d at 77 ("A legislature can enact statutes imposing,
in a single proceeding, cumulative punishments for the same conduct."); Aguirre. 168
Wn.2d at 366-67; Rice, 159 Wn. App. at 570; State v. Eaton. 143 Wn. App. 155, 160,
177 P.3d 157 (2008) ("[A] sentence enhancement is not a separate sentence or a
separate substantive crime.").
       36 H.B. 3277, 59th Leg., Reg. Sess. (Wash. 2006).
       37 The trial court ordered that all counts be served concurrently. The length of
Juarez-Garcia's total confinement of 40 years is the same, with or without the multiple
child rape convictions.


                                             12
No. 70643-8-1/13


Because the legislature's intent is clear, double jeopardyanalysis ends, and we need
not entertain a Blockburger "same evidence" analysis.38

       The State moves to strike a portion of Juarez-Garcia's reply brief that relies on

hearsay evidence excluded at trial. A "motion to strike is typically not necessary to point

out evidence and issues a litigant believes this court should not consider."39 Because

the challenged portion of Juarez-Garcia's reply brief is neither material nor relevant to

this case's resolution, striking the brief is unnecessary.40 And, in any event, we have

not relied upon the arguments that Juarez-Garcia improperly included in his reply

brief.41 We therefore deny the State's motion to strike.

      Affirmed.




WE CONCUR:




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      38 See Blockburger v. United States. 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.
306(1932).
      39 Engstrom v. Goodman. 166 Wn. App. 905, 909 n.2, 271 P.3d 959 (2012).
      40 See Durland v. San Juan County. 175 Wn. App. 316, 327 n.8, 305 P.3d 246,
review granted, 179Wn.2d 1001, 315 P.3d 530 (2013).
      41 See Norton v. U.S. Bank Nat'l Ass'n, 179 Wn. App. 450, 463, 324 P.3d 693,
review denied. 180 Wn.2d 1023, 328 P.3d 903 (2014).


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