                                                                       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,
                                                 No. 75759-8-1
                      Respondent,
        V.                                       DIVISION ONE

 JUAN JOSE RODRIGUEZ-MONTOYA,                    UNPUBLISHED OPINION

                      Appellant.                 FILED: March 5, 2018


       LEACH,J. — Juan Jose Rodriguez-Montoya 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 ions that did not require that the jury

base its decisions on separate and distinct acts. He also claims that the court

should not have admitted R.A.L.'s out-of- ourt statement to her pediatrician

because R.A.L. did not make her statemen about the abuse and her abuser's

identity for purposes of medical diagnosis or reatment.

       The record shows that it was manifes ly apparent to the jury that the State

based the rape and molestation charges invo ving F.M-G. on separate and distinct

acts. Second, evidence about an abuser's i entity is reasonably necessary to a

child's treatment and the totality of the c rcumstances corroborates R.A.L.'s

statement, making it admissible under ER 80 (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 Rodriguez-

Montoya'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 ement at trial.

       A jury convicted Rodriguez-Montoya f rape of a child in the first degree

and two counts of child molestation in the firs degree for the rape and molestation

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




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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 tes Constitution and article I, section

9 of the Washington Constitution protect defe dants against multiple punishments

for the same offense.3 Beyond these constit tional limitations, the legislature has

the power to define and designate punishm nt for criminal conduct.4 We must

determine whether the legislature intended to allow multiple punishments for

criminal conduct that violates both the rape of a child in the first degree statute and

the child molestation in the first degree statut

       First, we evaluate the language of the elevant statutes to determine if they

expressly authorize multiple punishments for conduct that violates more than one

statute.6 An individual is guilty of child rape n the first degree "when the person

has sexual intercourse with another who is less than twelve years old and not

married to the perpetrator and the perpetrato is at least twenty-four months older

than the victim."7 "Sexual intercourse" mean 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).



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No. 75759-8-1 /4


or anus of one person by another and "any a t of sexual contact between persons

involving the sex organs of one person and t e mouth or anus of another whether

such persons are of the same or opposite se

       An individual is guilty of child moles ation in the first degree "when the

person has, or knowingly causes another p rson under the age of eighteen to

have,sexual contact with another who is less han twelve years old and not married

to the perpetrator and the perpetrator is at I ast thirty-six months older than the

victim."9 "'Sexual contact' means any touchin of the sexual or other intimate parts

of a person done for the purpose of gratifying sexual desire of either party."19

       Neither statute expressly authorizes 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 as the "same evidence test."12 The

same evidence test provides that a defenda t's convictions for two offenses that

are identical both in fact and in law violate his rotection against double jeopardy.13

Thus, if the facts are not identical or "[i]f each offense requires proof of an element

not required in the other, where proof of one oes not necessarily prove the other,

the offenses are not the same [in fact or         law] and multiple convictions are

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.



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No. 75759-8.-I / 5


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

the first degree and child molestation in the irst degree are legally distinct; rape
                                              I
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.M-

G.'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



       15State 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)

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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 lid and the same charging period.20

We held that although the trial court should ha e submitted an instruction informing

the jury that the State must have based each ount on a separate and distinct act,

the absence of an instruction did not violate Land's right to be free from double

jeopardy.21 We explained that the victim's te timony, the State's arguments, and

the to-convict instructions and information 1elineating the two counts made it
                                              1
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,           d have them touch each other's

"parts." F.M-G. also told a child interview sp cialist that Rodriguez-Montoya had

taken F.M-G.'s hand and placed it on Rodrig ez-Montoya's "pee" or his "privacy"

and that Rodriguez-Montoya had touched F. -G.'s "privacy." F.M-G. also testified

to at least two incidents of sexual intercour e. He stated that more than once

Rodriguez-Montoya "put his privacy in my          utt" and explained that Rodriguez-

Montoya used the part of his body that he "p e[s]" from to do so. In addition, F.M-

G. stated that Rodriguez-Montoya put his "p ivacy in my mouth" on five separate

      20 Land, 172 Wn. App. at 597.
      21 Land, 172 Wn. App. at 603.
      22 Land, 172 Wn. App. at 602-03.



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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. If you can unanimously agree that

within that charging period he was orally rape ,that's enough." In reference to the

molestation charge, the State explained,"No with regard to Count II having to do

with [F.M-G.], that same[unanimity] instruction applies that I just described. That's

because [F.M-G.] has described multiple type of sexual contact. His hand on the

defendant's penis, the defendant's hand on[ .M-G.'s] penis, and the fact that it

happened multiple times." The State therefo e defined the acts involving sexual

intercourse as rape and the acts involving tou hing as molestation.

       Finally, the to-convict instructions, like t e information, clearly differentiated

between the two counts. Instruction 9 stated t at to convict Rodriguez-Montoya of

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

F.M-G., the jury had to find that he had "sex al contact" with F.M-G. during the




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No. 75759-8-1 / 8


charging period. Instructions 10 and 16 provi ed the statutory definitions of sexual

intercourse and sexual contact, respectively.

       Similar to Land, we conclude that F.M- .'s testimony, the State's arguments

in closing, and the to-convict instructions an information distinguishing the rape

and molestation charges made it manifestly a parent to the jury that the State was

not seeking to impose multiple punishments f r a single act. The trial court did not

violate Rodriguez-Montoya's guaranty agains double jeopardy by failing to instruct

the jury that it needed to rely on separate an distinct acts for the bases of each

conviction. Thus, no constitutional error occu red.

                                   ER 803

       Rodriguez-Montoya also challenges t e trial court's admission of R.A.L.'s

hearsay statement to her pediatrician on the ground that she did not make it for

purposes of diagnosis or treatment. We r view a trial court's rulings on the

admissibility of evidence for an abuse of discr tion.23

      "Hearsay" is an out-of-court stateme t offered to prove the truth of the

matter asserted.24 Generally, a hearsay state ent is not admissible at trial unless

it satisfies an exception to the rule.25 ER 803 a)(4) provides that the hearsay rule

does not exclude "[s]tatements made for         urposes of medical diagnosis or

treatment."   The exception applies only o hearsay statements that were




       23 Statev. Fisher, 165 Wn.2d 727, 745 202 P.3d 937(2009).
       24 ER 801(c).
       25 ER 802.



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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).
       31 Powell, 166 Wn.2d at 84.

       32 Powell, 166 Wn.2d at 84.



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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 not understand that she made the

statements for purposes of medical diagnosis or treatment.33 But a trial court may

admit child hearsay "only if corroborating evid nce supports the child's statements

and it appears unlikely that the child would h we fabricated the cause of injury."34

This corroborating evidence must be part of the totality of the circumstances in

which the child makes the statements.35         facilitate appellate review, the trial

court should identify on the record the spec' 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.



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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 orted behavior did not support her

statement.

       Consistent with Rodriguez-Montoya's argument, the trial court did not

identify on the record what it considered to e tablish the reliability of R.A.L.'s out-

of-court statement to Guerra. The record, ho ever, documents the circumstances

surrounding her statement to Guerra.37 T e totality of these circumstances

corroborate R.A.L.'s statement. First, Guerr testified that when she examined

R.A.L., she observed R.A.L.'s vagina and labi were red. R.A.L.'s mother testified

that Guerra examined R.A.L. three or fo 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 t she could not determine whether

the abuse caused the redness. Guerra stated that a number of issues could have

caused the redness, including poor hygien 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 stated, however,that touching could

explain the redness.

       Further, Guerra had been R.A.L.'s pe iatrician since R.A.L. was 18 months

old, which means R.A.L. likely knew she was seeing Guerra for a medical

appointment and had no reason to invent her statement. R.A.L.'s mother testified

that R.A.L. had seen Guerra for regular ch ckups over the last two-and-a-half

years. Guerra explained that when a patie t comes in for an appointment, the

clinic follows the same procedures: the medical 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. Guerrla stated that she begins by greeting

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

November 11, 2014, consistent with protocol, Guerra asked R.A.L. about why she

had come to see her before performing a physical examination.              Guerra

documented her conversation with R.A.L. as 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



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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 rally, statements attributing fault are

not admissible under ER 803(a)(4).39           B t when the declarant is a child,

"statements regarding the identity of the abu er are reasonably necessary to the

child's medical treatment."49 The medical pro ider must know who abused a child

to avoid returning the child to the abusive r lationship.41 Rodriguez-Montoya's

identity was therefore related to Guerra's dia 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.



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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:



                         ,




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