                                                                           FILED 

                                                                         JAN 16,2014 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 30790-5-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
ANTONIA CUEVAS CORTES,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, C.J. -    Antonio Cuevas Cortes challenges his convictions for child rape,

child molestation, and incest in the fIrst and second degree, alleging that double jeopardy

precludes the multiple convictions. We believe the Washington Supreme Court has

settled these challenges against his position and affrrm.

                                          FACTS

       Mr. Cuevas Cortes was convicted by a jury of one count of second degree incest

related to victim G.C., and of third degree child rape, third degree child molestation, and

first and second degree incest involving E.C. With respect to the counts involving E.C.,

the charging period for the rape and molestation offenses was the same two year period
No. 30790-5-111
State v. Cuevas Cortes


from late 2002 to late 2004. The two incest counts were charged over a period from 2000

to 2010 and overlapped the rape and molestation counts.

       The court instructed the jury that it must unanimously agree on the act that related

to each count, but declined to give similarly worded instructions requested by the

defense. The jury convicted on the five noted counts; three other charges were dropped

during trial. The court imposed standard range terms. Mr. Cuevas Cortes then timely

appealed to this court.

                                        ANALYSIS

       Mr. Cuevas Cortes argues that the trial court violated his constitutional right to be

free from double jeopardy because the jury instructions could have allowed the jury to

convict Mr. Cuevas Cortes of all four crimes involving E.C. based on a single act.

Specifically, he challenges the court's failure to give a "separate and distinct acts"

instruction.

       Mr. Cuevas Cortes did not request such an instruction at the trial court.

Accordingly, we will only review that claimed error if Mr. Cuevas Cortes can show that

it was a manifest error affecting a constitutional right. RAP 2.5(a)(3). The alleged error

is unquestionably constitutional in nature. The Fifth Amendment and article I, section 9,

both prohibit "multiple punishments for the same offense imposed in the same

proceeding." In re Pers. Restraint ofPereer, 150 Wn.2d 41,48-49, 75 P.3d 488 (2003).




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No. 30790-5-III
State v. Cuevas Cortes


       However, the argument still fails. 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). "Ifthere is an element in each

offense which is not included in the other, and proof of one offense would not necessarily

also prove the other, the offenses are not constitutionally the same and the double

jeopardy clause does not prevent convictions for both offenses." ld. (quoting State v.

Valdovie, 99 Wn.2d 413,423,662 P.2d 853 (1983).

       Mr. Cuevas Cortes has not established that the offenses are the same in law and in

fact. Child molestation is not a lesser included offense of child rape. State v. French,

157 Wn.2d 593, 610-11,141 P.3d 54 (2006). Because of that fact, a conviction for both

child molestation and child rape does not violate double jeopardy. ld. at 611 n.11.

       Similarly, incest and rape are not the same offenses in law because each offense

contains elements that the other does not have. Calle, 125 Wn.2d at 778. Moreover, the

legislature has shown that it desires to punish incest in addition to rape as the purpose of

the incest statute is to preserve family security. ld. at 780-81. For that reason, we believe

that Mr. Cuevas Cortes's argument also fails with respect to the molestation charge. The

purpose of an incest prosecution is different than the purpose behind a prosecution for

violating RCW 9A.44. ld. at 781.




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No. 30790-5-111
State v. Cuevas Cortes


      Accordingly, we hold that incest can be prosecuted in conjunction with either

child rape or child molestation. Thus, Mr. Cuevas Cortes has not shown any potential

double jeopardy violation that would have required a separate and distinct act instruction.

      The convictions are affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                        Korsmo, C.J.

WE CONCUR:




      K~J'



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