                                                                                                                               Ff LED
                                                                                                                      GOM, T  OF APPEALS
                                                                                                                           DIVISMN. 11
                                                                                                                    2013 JUL -9 f M 9 09

                                                                                                                     ST
                                                                                                                                        ON
                                                                                                                     8




                                     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                           DIVISION II

                                In re the Personal Restraint Petition of                            No. 42863 6 II
                                                                                                              - -


                                DYNAMITE SALAVEA,

                                                               Petitioner.                    UNPUBLISHED OPINION




                                         BJORGEN, J. —In   this personal restraint petition (PRP),
                                                                                                 Dynamite Salavea argues that

                                deficient jury instructions for his trial on charges of child rape and child molestation violated his
                                double   jeopardy protections and   that   we   should vacate several of his convictions. For the


                                reasons below, we deny Salavea's request for relief.

                                                                                 FACTS


1 -- - - _ - - - - - - __ _ .                                   I. -
                                                                 CHARGESAND TRIAL TFSTIMONY -- - - -


                                         In October 2000, the State charged Salavea with four counts of first degree child rape
                                and two counts of first degree child molestation, all occurring between February 1996 and June
                                1998. Two of the child rape charges and one of the child molestation charges were for crimes




                                1 RCW 9A. 4.
                                      073.
                                        4
                                2
                                    RCW 9A. 4.
                                        083.
                                          4
     No. 42863 6 II
               - -



     against R. .who was between five and seven years old at the time. The other two counts of
             T.,
              U
     child rape and one count of child molestation were for crimes against R. .
                                                                           T., between
                                                                            K who was

     the ages of six and eight at the time.

               Salavea is the cousin of R. .and R. . At trial, R. .
                                        T. T.
                                         U       K             T.' and R. .
                                                                s
                                                                U      T.' mother, B. .,
                                                                        s
                                                                        K           T

     testified that she used to take the two to their grandmother's house four or five times a week

     while she was at work. She testified that the boys frequently stayed overnight.

               T.
               R. . testified that he usually slept in a big bed in the basement when at his
                U

     grandmother's,
                  sometimes with as many as four or five relatives. At times Salavea slept in the
     basement bed with R. .and R. .R. .
                       T. T. U testified that Salavea would " tick his front private
                        U       K T.                        s

     in my back private"and that it happened more than once. Report of Proceedings (RP)at 375 76.
                                                                                              -
               T.
               R. . stated that he tried to stop Salavea, but "[ ] st of the time" Salavea did it
                U                                              mo

     anyway. RP at 376. R. .also testified that sometimes he would yell when this happened, but
                        T.
                         U
     that it was hard to yell because he was lying on his stomach with his face in a pillow.
     Sometimes"when R. .would try to stop Salavea, Salavea would hit him, and "other times"
                    T.
                     U

1-   T: not resist because he just..felt]
      U did
     R. :                      "     -- scared."RP
                                         [                                        at 377- 8.Salavea would force anal - -
                                                                                        7                       -

     intercourse on R. .for " ifferent time limits."
                    T. d
                     U                              RP at 378.

               In addition to describing the nighttime basement rapes, R. .described daytime sexual
                                                                       T.
                                                                        U
     assaults when his "auntie"went to the store. RP at 379. R. .testified that at these times,
                                                             T.
                                                              U

     Salavea would "do the same things"to him but in different rooms; a couple times"the sexual
                                                                      "

     assaults took place in his auntie's bedroom. RP at 383, 379. Once, when R. .did not go to
                                                                             T.
                                                                              U
     church with his grandmother, Salavea raped R. .in the living room. On this occasion, after
                                                T.
                                                 U

     3
         We   use   initials to protect the   privacy interests   of   sex   crime victims.
No. 42863 6 II
          - -



Salavea forced anal penetration, Salavea made R. .suck" front private."RP at 380, 383.
                                              T.
                                               U      his

T.
R. .also testified that twice or three times when he was outside, Salavea pushed him into his
 U

grandmother's shed and anally and orally raped him.

       T.
       R. .
        K testified that he used to visit his grandmother's house almost every week and that

he would   sleep   in the basement.   Salavea would put his hand down R. .
                                                                      T.' pants and rub
                                                                       s
                                                                       K

T.' private parts. R. .testified that he would start crying and tell Salavea to stop, but
R. .
 s
 K                 T.
                    K

Salavea would not. R. .also stated that Salavea put his "privates" on R. .
                   T.
                    K                                                 T.' behind and
                                                                       s
                                                                       K

rubbed it up and down. RP at 409 10. R. .testified that this happened "[ any times" and
                                 -   T.
                                      K                                m]
that " e was behind me every time I went over there."RP at 411, 415. Leah Hill, a friend of
     h

B. .,
 T testified that when R. .was eight, he told her that Salavea had "put his thing in my
                       T.
                        K

butt." at 357 58.
     RP       -

       Nurse practitioner Cheryl Hanna -Truscott testified that she evaluated R. .and R. .
                                                                              T. T.
                                                                               U       K

when they were seven- a half and eight and a half years old, respectively. R. .told her
                    and - -            - - -                               T.
                                                                            U

1) Salavea put his "private in my butt"and he put it all the way and made it bleed," ( that
  that                                               "                             2)
Salavea did othernasty" things, such as-
                         .             touching R. :
                                                T.' private with his -hands -and -then -
                                                - U
                                                  s

touching his own until " ray stuff' came out of Salavea's private part, and (3) he tried to get
                       g                                                      that

away, but Salavea would hit him and demand that he "hold still."RP at 330 31, 337. R. .
                                                                          -        T.
                                                                                    K
also told Truscott that Salavea (1)pulled R. .
                                          T.' pants down and put his mouth on R. .
                                           s
                                           K                                  T.'
                                                                               s
                                                                               K

private, telling R. .that he will try to bite it,and (2)
                 T.
                  K                                     forced him to put his mouth on Salavea's
private.




                                                3
No. 42863 6 II
          - -



       T.
       R. . told child interviewer Jennifer Knight about a number of the sexual assaults
        K

recounted above. Speaking of the incidents generally, R. .said that they started when he was
                                                      T.
                                                       K

about to go into the first grade and ended when he was in the second grade.
                         II. JURY INSTRUCTIONS AND CLOSING ARGUMENT


       Jury instruction 4 stated:

                 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 (CP)at 68.

       Instruction 8 defined " exual intercourse"in the following terms:
                             s

                 Sexual intercourse means any act of sexual contact between persons
       involving the sex organs of one person and the mouth or anus of another whether
       such persons are of the same or opposite sex.

CP at 72.

       Instruction 10, in turn, defined " exual contact"as:
                                        s

       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• arty.
                                                              p
CP at 74.


       The jury instructions also included a separate "to convict"instruction for each of the six
counts. Instructions 11 through 14 all pertained to first degree child rape; instructions 11 and 12
named R. . instructions 13 and 14 named R. . Otherwise, instructions 11 through 14
      T.,
       K and                            T.
                                         U

were nearly identical and covered the same time period, from February 1996 through June 1998.
Instructions 15 and 16 covered child molestation, one pertaining to R. .and one to R. .
                                                                    TU             T.
                                                                                    K

Instructions 15 and 16 were nearly identical and also covered the same time period,.
                                                                                   from



                                                 M
No. 42863 6 II
          - -



February 1996 through June 1998. The instructions did not direct the jury to base a verdict for

each count on separate and distinct criminal acts.

       During closing argument, the State delineated the elements of first degree child
molestation and the elements of first   degree child   rape.   The State recounted the testimony,

quoting R. . and R. . extensively, arguing that the details provided by them were too
        T. T.
         U        K

descript [sic]" be fabricated. RP at 637. The State argued that Salavea committed rape: (1)
              to

by putting his mouth on R. .and R. .
                        T.'
                         s
                         U      T.' penises and also (2)by putting his penis in
                                 s
                                 K
 U and R.
T.' .
R.
 s     T.' .
        s
        K anuses.                The State argued that Salavea committed child molestation by

touching R. . R. .
         T.' and T.' penises with his hands, rubbing his penis against their behinds,
          s
          U       s
                  K
and rubbing his penis against their penises.

       The jury found Salavea guilty of four counts of first degree child rape and two counts of

first degree child molestation. In his direct appeal Salavea argued that (1)prosecutorial delay
denied him due process and the benefits of the juvenile court jurisdiction and (2) trial court
                                                                                  the

improperly admitted child hearsay. We rejected both claims and affirmed. State v. Salavea, 115
Wn App. 52, - 60 P. d 1230 (2003): - Supreme Court granted reviewon -- single- - of - -- -
          54;     3              Our                                the-     issue
prosecutorial delay and affirmed. State v. Salavea, 151- n.133, 86 P. d 125 (2004).Salavea
                                                    2d W            3
now petitions for relief in a PRP.
                                           ANALYSIS


        In his PRP Salavea argues that (1)his two sets of convictions for child -
                                                                                rape violate

double jeopardy protections because the jury instructions did not require the jury to base its
convictions on separate and distinct incidents; and (2)his convictions for child .molestation



                                                 5
No. 42863 6 II
          - -



violate double jeopardy protections because, as defined in the jury instructions, they are lesser

included offenses of his child rape convictions.

                                   I. SEPARATE AND DISTINCT ACTS


         Salavea argues that the trial court failed to instruct the jury that in order to convict him of

multiple counts of first degree child rape, the verdict on each count must be based on proof of

separate and distinct   acts.   The State concedes that the jury instructions lacked this language.

However, under the applicable standards this omission does not raise any reversible error under

the circumstances presented.

A.       Standard of Review


         To prevail on a PRP, Salavea must establish by a preponderance of the evidence that
there was a constitutional error that resulted in actual and substantial prejudice or that there was a

nonconstitutional error that resulted in a fundamental defect, which inherently results "in a

complete miscarriage of justice."In re Pers. Restraint of Woods, 154 Wn. d 400, 409, 114 P. d
                                                                       2                  3
607 (2005); re Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P. d 1106 (2007).This
          In                                                        3
requirement -is necessary to preserve the societal interest in finality, economy, and integrity o - - --
                "                     -             -       - -          -        -
the trial process. It also recognizes that the petitioner has had an opportunity to obtain judicial
review   by appeal." Woods,      154 Wn. d at 409. Salavea argues the first of these two types of
                                       2
error.




         Actual prejudice "must be determined in light of the totality of circumstances." In re
Pers. Restraint    of Music,    104 Wn. d 189, 191, 704 P. d 144 ( 1985).
                                      2                  2                       In doing so, we will

consider the jury instructions, the arguments of counsel, the weight of evidence of guilt, and



                                                    C
No. 42863 6 II
          - -



other relevant factors in evaluating whether a particular instruction caused actual prejudice.

Music, 104 Wn. d at 191.
             2

         The ultimate question in determining whether actual prejudice exists is whether the error

so infected the petitioner's entire trial that the resulting conviction violates due process."

Music, 104 Wn. d at 191. An error warrants relief when the reviewing court has "` grave doubt
             2                                                                 a

as   to the harmlessness of   an error. "'   In re Pers. Restraint of Sims, 118 Wn. App. 471, 477, 73

P. d 398 (2003) quoting In re Pers. Restraint of Smith, 117 Wn. App. 846, 860, 73 P. d 386
 3              (                                                                  3

2003),
     overruled on other grounds by In re Domingo, 155 Wn. d 356, 119 P. d 816 (2005)).
                                                        2             3             A

per se prejudice rule is appropriate where it is certain that the defendant suffered multiple

punishments for the same act and there is no possibility that the jury used different actions as the
basis for the conviction. In re Pers. Restraint ofFrancis, 170 Wn. d 517, 524 25,242 P. d 866
                                                                 2            -       3

2010).

B.       Constitutional Error


         The state and federal constitutional guaranties against double jeopardy protect a

                  multiple punishments for the same offense " - Statev. - 471
defendant against "                    -                             - Mutch,             Wn 2d 646 - - --
                                                                                             .-

661, 254 P. d 803 ( 2011). To avoid this error in cases where multiple identical counts are
          3


alleged to have occurred within the same charging period, the trial court must explicitly instruct

the jury that it is to find "separate and distinct acts" for convictions on each count or must
otherwise make "the need for a finding of separate and distinct acts' manifestly apparent to the
                                          `

average juror."State v. Borsheim, 140 Wn. App. 357, 368, 165 P. d 417 (2007).In the absence
                                                              3
of such an instruction, it is possible for a unanimous jury to find that the State has proved only

one act beyond a reasonable doubt and yet base multiple convictions on proof of that single act.

                                                       7
No.42863 6 II
         - -



State v. Berg, 147 Wn. App. 923, 935, 198 P. d 529 (2008),
                                           3             overruled by Mutch, 171 Wn. d at
                                                                                   2

663 64.
    -


        In applying these rules, however, the court in Mutch, 171 Wn. d at 663 64, expressly
                                                                    2          -

modified the approach of Berg, 147 Wn. App. at 931, and State v. Carter, 156 Wn. App. 561,

234 P. d 275 (2010),
     3             overruled by Mutch, 171 Wn. d at 663 64..Berg and Carter held that
                                             2          -

where the instructions were unclear about the need to find that each count arose from a separate

and distinct act, the resulting ambiguity potentially exposed the defendant to multiple

punishments for a single offense in violation of the double jeopardy clauses. Mutch, 171 Wn. d
                                                                                           2
at   662.    Mutch refined   Berg and Carter   in two   respects.   First, it held that not just the

instructions, but the evidence, the argument, and the entire trial record may be considered in

treating these issues. Mutch, 171 Wn. d at
                                    2            664.   Second, our Supreme Court held that the

potential alone for multiple punishments for the same offense does not violate the double

jeopardy clauses. Rather, there must be multiple punishments for the same offense. Mutch, 171
Wn. d at 663 64.
  2          -


        Under Mutch, there is a double jeopardy violation if,considering the evidence,arguments- -
                              -

and instructions,

         it is not clear that it was `manifestly apparent to the jury that the State [was] not
         seeking to impose multiple punishments for the same offense' and that each count
         was based on a separate act.

Mutch, 171 Wn. d at 664 (quoting Berg, 147 Wn.App. at 931).If the reviewing court concludes
             2

that an actual, rather than possible double jeopardy violation exists under this rule, the proper

remedy      is to vacate the redundant convictions. Mutch, 171 Wn. d at 664.
                                                                 2
No. 42863 6 II
          - -



       Considering the entire record in this case, no double jeopardy violations occurred under

the rule in Mutch. Turning to the first degree child rapes of R. . charged in counts 3 and 4,
                                                              T.,
                                                               U as

T.
R. .testified directly to repeated acts of anal and oral intercourse when he was between the
 U

ages of five and eight, occurring in at least four different locations at his grandmother's house:

1) basement; 2) upstairs living room; 3) aunt's bedroom; and (4) shed. Thus, in
  the        ( the                    ( his                     the
addition to testimony that rapes occurred many times, the evidence before the jury described
distinct acts of sexual intercourse. Each act of intercourse is sufficient to support a single count

of rape.

       Regarding the first degree child rapes of R. .as charged in counts 1 and 2, R. .
                                                 T.,
                                                  K                                T.
                                                                                    K

disclosed at least two clear acts of oralgenital intercourse. One disclosure specified that Salavea
                                         /

put his mouth on R. .penis; another disclosure specified that Salavea put his penis in
                 T.'
                  s
                  K
T.' mouth. Further, R. .disclosed that Salavea anally raped him and that Salavea forced
R. .
 s
 K                  T.
                     K

him to put his penis in Salavea's anus. In addition to testimony that rape occurred many times,
the evidence before the jury described several distinct acts of sexual intercourse. Each act .of
intercourse is sufficient to support a single count of rape - . - -
                           -

        This evidence, together with the jury instructions and closing argument, made it

manifestly apparent to the jury that the State was not seeking to impose multiple punishments for
the same offense and that each count was based on a separate act. Under Mutch this does not

create double    jeopardy. Further, the acts of rape found in Mutch were no more separate or

distinct than those found here. If those circumstances did not offend the double jeopardy clauses

in the absence of a "separate and distinct act"instruction, the circumstances presented here also
would not.



                                                     E
No. 42863 6 II
          - -



       Under governing case law,the jury instructions did not put Salavea in double jeopardy by

punishing him multiple times for the same act. Because no error occurred, Salavea has not met

the first requirement for granting a PRP.

C.     Actual and Substantial Prejudice

       Even if Salavea had shown the alleged error, he failed to show actual and substantial

prejudice, the   second   requirement   for   a   PRP.   To demonstrate actual prejudice, Salavea must

show by a preponderance of the evidence that had the jury received an instruction requiring it to

find separate and distinct acts, it would have reached a different decision. Borrero, 161 Wn. d at
                                                                                            2

536. However, Salavea does not present any reason why such an instruction would have made

any difference when, as shown above, the jury had evidence before it of multiple acts

constituting each   rape count.   With that, Salavea does not show that the verdicts would have

differed had there been an instruction stating that the jury must base each conviction on a

separate and distinct act.

                                   II. LESSER INCLUDED OFFENSES


        Salavea argues -next thatunder the juryinstructions -his convictions-for childmolestation - -
                              -         -

violate double jeopardy protections because they are lesser included offenses to his convictions
for child rape. For this reason, he asserts that the molestation convictions must be vacated. We
disagree, because even if these instructions made molestation a lesser included offense of child

rape, it is clear from the evidence and the arguments that the convictions for rape and
molestation were based on separate acts.

        Our Supreme Court in State v. French, 157 Wn.2d 593, 141 P. d 54 (2006), that first
                                                                  3            held
degree child molestation is not a lesser included offense of first degree child rape. The court

                                                         10
No. 42863 6 II
          - -



based this ruling on two conclusions: first, that sexual contact, an element of child molestation,

continues to require a showing of purpose or intent, while child rape does not; and, second, that

child rape also requires a finding of penetration, while child molestation does not. French, 157

Wn. d at 611.
  2              Thus, the court held that the two crimes are separate and can be charged and

punished separately. French, 157 Wn. d at 611.
                                   2

       Salavea argues that the holding in French does not. follow from the specific jury

instructions given at his trial. He points out that instruction 8 defined "intercourse," element
                                                                                       an

of child rape, as sexual contact involving the sex organs of one person and the mouth or anus of

another. He further points out that instruction 10 defined " exual contact"as any touching of the
                                                           s

sexual or intimate parts done for the purpose of gratifying sexual desires. Therefore, he argues,
child molestation did not have an element that child rape lacked.

       Salavea is correct under the instructions       given.   The court in French ruled that


molestation was not a lesser included offense, among other reasons, because it lacked the

element of penetration found in child rape. French, 157 Wn. d at 611. In doing so, it applied
                                                          2
the rule from State v.Freeman, 153 Wn. d 765, 772, 108 P. d 753 (2005)citing-lockburger v. - -- - - --
                                     2                  3             (     B

United States, 284 U. .299, 304 52 S. Ct. 180, 76 L.Ed. 306 (1932)),
                    S                                             that

        t] test for whether two offenses may be separately charged and punished is
         he
       whether each crime contains an element that the other does not and whether the
        evidence necessary to support a conviction for one crime would have been
        sufficient to warrant a conviction for the other.

French, 157 Wn. d at 610.
              2

        Here, the instructions defined "intercourse" as " certain sexual contact,"omitting the

element of   penetration   from child rape.   Jury instructions to which no objections are made

become the law of the case. State v. Hickman, 135 Wn. d 97, 102, 954 P. d 900 (1998).Under
                                                    2                 3

                                                 11
No:42863 6 II
         - -



these instructions, all the elements of child molestation are also elements of child rape, and

evidence necessary to support a conviction of child rape would have warranted a conviction for
molestation.   Under the test in French and these instructions, Salavea cannot be convicted of

molestation for the same act for which he was convicted of rape. Salavea was convicted of first

degree child rape. Therefore, the double jeopardy guaranties would prohibit convicting him of
child molestation for the same act for which he was convicted of child rape.

       Here, though, the State never argued that Salavea's acts of rape simultaneously,

constituted acts of molestation; rather, the State argued that Salavea committed two different

crimes based    on   different acts.   During closing argument, the State argued that Salavea

committed child molestation by touching R. . R. .
                                        T.' and T.' penises with his hands, rubbing
                                         s
                                         U       s
                                                 K

his penis against their behinds, and rubbing his penis against their penises. In contrast, the State
argued that Salavea committed rape when he took other action, namely: (1) putting his mouth
                                                                        by
on R. .and R. .
   T.'
    s
    U      T.' penises and also (2)by putting his"penis in R. .and R. .
            s
            K                                              T.'
                                                            s
                                                            U      T.'
                                                                    s
                                                                    K
anuses.




       The testimonyat trial supported the distinctionbetween acts thatconstitute molestation --
                                                                        --

and acts that constitute rape. Salavea was convicted of one count of child molestation of R. .
                                                                                          T.,
                                                                                           U

and testimony supported that separate from the acts constituting rape, Salavea touched R. .
                                                                                       T.'
                                                                                        s
                                                                                        U

private"with his hands and then touched his own until he ejaculated. RP at 331. Salavea was
convicted of one count of child molestation of R. .and testimony supported that separate
                                               T.,
                                                K

from the acts constituting rape, Salavea put his hand in R. .
                                                         T.' pants, and held and squeezed his
                                                          s
                                                          K

private." at 336.
         RP




                                                 12
No. 42863 6 II
          - -



       The evidence amply supports conviction of Salavea on two counts of child molestation

for acts that do not constitute child rape. Therefore, even if these instructions made molestation

a lesser included offense of child rape, he has not shown that he was convicted of child

molestation for the   same   act for which he   was   convicted of child rape. Nor has he met his


burden of proving actual rather than possible prejudice by a preponderance of the evidence. As

noted, even without the evidence that showed rape, the jury had sufficient evidence from which

it could find molestation.


       The PRP is denied.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
 0




                                                         RG , ,   J.
We concur:




                                                  13
