      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,

                                                  No. 75127-1-1
                     Respondent,
                                                  DIVISION ONE
       V.

EDDY GONZALES,                                   PUBLISHED OPINION IN PART


                     Appellant.                   FILED: December 26, 2017


       SPEARMAN, J. — The constitutional prohibition against double jeopardy

forbids multiple punishments for the same offense. In a case where there is a risk

of multiple convictions based on a single act, the jury must be instructed that

separate and distinct acts must support each conviction. When the trial court fails

to so instruct and multiple convictions occur, there is a potential for double

jeopardy. Here, a jury convicted Gonzales of first degree child molestation, first

degree child rape, and witness tampering. On appeal, Gonzales claims that his

convictions for molestation and child rape violated double jeopardy because the

jury was not instructed that it needed to find a separate and distinct act to support
No. 75127-1-1

each conviction.1 We disagree because, in light of the entire record before us, 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. Thus, no double jeopardy violation occurred.

        Gonzales also argues that the trial court erroneously provided

supplemental jury instructions, admitted improper character evidence, and

ordered an unconstitutionally vague community custody condition. And, in a

statement of additional grounds, Gonzales alleges a number of other errors.

None of the claims have merit.

        We find no error and affirm.

                                             FACTS

        When J.G. was six years old, she and her younger brother moved in with

their grandfather, Eddy Gonzales, and his wife, Terri. After the move, J.G.

typically slept beside her grandfather in her grandparents' bed. About six months

after moving in, Gonzales began molesting J.G. He rubbed J.G.'s breasts about

fifteen separate times while she was in her grandparents' bed. He placed his

hand and fingers on J.G.'s vagina about twenty or twenty-five different times.

Once or twice, while in bed, Gonzales made J.G. put her mouth on his penis.

Once, she awoke on the couch with his penis in her hand. Another time, J.G. fell

asleep on the couch and woke up to find Gonzales engaging in oral sex on her.

This sexual abuse ended when J.G. was ten or eleven years old. But after the


          1 Gonzales did not object to the deficient instructions below, but a double jeopardy claim
is of constitutional proportions and may be raised for the first time on appeal. State v. Mutch, 171
Wn.2d 646, 661, 254 P.3d 803(2011).

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No. 75127-1-1

molestation stopped, J.G. once encountered Gonzales masturbating in his room

while holding her bra.

       When J.G. was eleven years old, she got into a fight with her

grandmother, Terri and moved in with her sister, Ashley. She told Ashley about

the molestation. On December 4, 2013, Ashley reported the allegations to the

police and to Terri. Ashley and Terri drove to the Gonzales home where a police

officer was waiting outside. Against the officer's instructions, Terri went inside

and confronted Gonzales. She asked him if the allegations were true. Gonzales

was apologetic and repeatedly said that he was sorry. Later, when the officers

came in, Gonzales admitted that he had touched J.G.'s breasts fifteen times, and

used gestures to demonstrate how he touched her. He told an officer that J.G.

"helped" him with the molestation and acted like she enjoyed it. Verbatim Report

of Proceedings(VRP)at 1225. Gonzales later told his son, J.G.'s father, that he

couldn't help himself and that J.G. had come on to him. From jail, Gonzales

wrote letters to Terri apologizing and telling her that J.G. could refuse to testify.

       Gonzales was charged with first degree rape of a child and first degree

child molestation. The State later added a second count of first degree child rape

and charged him with tampering with a witness. A jury acquitted Gonzales of one

count of first degree child rape, but found him guilty of the remaining charges.

Gonzales's sentence included a community custody condition that he "not enter

any parks/playgrounds/schools." Clerk's Papers(CP) at 123. Gonzales appeals.
No. 75127-1-1


                                   DISCUSSION

Double Jeopardy

       Gonzales argues that his convictions for child molestation and rape of a

child constitute double jeopardy. He contends that in the absence of an

instruction that the jury find separate and distinct acts for each count, it was

possible that the jury convicted him twice for the same conduct.

       We review a double jeopardy claim de novo. Mutch, 171 Wn.2d at 662.

The constitutional guaranty against double jeopardy protects a defendant against

multiple punishments for the same offense. U.S. Const. amend. V; Wash. Const.

art. I, § 9; Mutch, 171 Wn.2d at 661 (quoting State v. Noltie, 116 Wn.2d 831, 848,

809 P.2d 190 (1991))."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.

Perla Fuentes, 179 Wn.2d 808, 824, 318 P.3d 257(2014)(quoting State v. Calle,

125 Wn.2d 769, 777, 888 P.2d 155 (1995)). Two offenses are not the same when

"there is an element in each offense which is not included in the other, and proof

of one offense would not necessarily prove the other... ." State v. Vladovic, 99

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

       First degree child molestation requires proof of "sexual contact" with a

child. RCW 9A.44.083(1). Sexual contact means "any touching of the sexual or

other intimate parts of a person done for the purpose of gratifying sexual desire

of either party or a third party." RCW 9A.44.010(2). First degree child rape

requires proof of "sexual intercourse" with a child. RCW 9A.44.073(1). Sexual

intercourse can be proved by penetration of the vagina or anus, or by "any act of

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No. 75127-1-1

sexual contact between persons involving the sex organs of one person and the

mouth or anus of another. . . ." RCW 9A.44.010(2).

       In State v. Land, 172 Wn. App. 593, 600, 295 P.3d 782(2013)(citing

State v. Huqes, 106 Wn.2d 675,682-84, 212 P.3d 558(2009), this court held that

there is a potential double jeopardy violation

       where the only evidence of sexual intercourse supporting a count of
       child rape is evidence of sexual contact involving one person's sex
       organs and the mouth or anus of the other person, that single act of
       sexual intercourse, if done for sexual gratification, is both the
       offense of molestation and the offense of rape. In such a case, the
       two offenses are not separately punishable. They are the same in
       fact and in law because all the elements of the rape as proved are
       included in molestation, and the evidence required to support the
       conviction for molestation also necessarily proves the rape.

Here, oral sex was the only act supporting child rape. Under Land, rape of a child

and child molestation are the same offense with respect to oral sex. Thus, an

instruction that the act of molestation must be separate and distinct from the act

of rape should have been given to the jury. Because it was not, there is potential

for double jeopardy.

       When reviewing a potential double jeopardy violation, we review the entire

record to determine if 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, at 664 (quoting State v. Berq,

147 Wn. App. 923, 931, 198 P.3d 529 (2008)). If it was manifestly apparent that

the State did not seek multiple punishments for the same act, then there is no

double jeopardy violation. Id.




                                         5
No. 75127-1-1

      The State's closing argument makes clear that the State did not seek to

impose multiple punishments for the same act. After describing child molestation

definitions, the State argued,

      [J.G.] says specifically in the bedroom that ...the defendant
      placed his hands down [J.G.'s] underwear and touched her
      vagina with his hand. She said that this happened between 20
      and 25 times...this is clearly done for sexual gratification.
              Also in the bedroom you have the defendant reaching up
      her shirt, touching her breasts. She says that this happened
      about 15 times...this is a purposeful act done for sexual
      gratification.
              And then finally you have the incident where he placed his
      penis in her hand when she was asleep out in the living room.

VRP at 1670. The State did not argue that oral sex constituted child molestation.

       For the two counts of child rape, the State explained,

      [O]ral sex equals intercourse in the State of Washington. And
      that act that was described during the trial by [J.G], actually she
      said that it happened several times. Not only the sense where
      he was placing his penis in her mouth, but also the time where
      he was placing his face and his head up into her crotch and
      licking her vagina with his tongue. That's all sexual intercourse
      per state law, and those are acts of rape of a child.

VRP at 1666. The prosecutor then explained that the two acts of rape must be

separate and distinct, which could be based on the places where the acts

occurred.

      For one, we have the bedroom. We have the defendant placing
      his penis in her mouth and telling her to do that. This happened
      as [J.G.] described in her testimony two or three times but she
      said, definitely more than once. So what that means is that you
      could sustain your verdicts on counts I and II [for child rape]
      based on that testimony alone. She said it happened more than
      once.
              But[J.G.] also told us about some other things that the
      defendant did. In the living room the incident where he placed
      his mouth on her vagina. So the State suggests that based on

                                       -6 -
No. 75127-1-1

      [J.G.'s] testimony — and, again, you can base your verdicts on
      any act that you believe establishes sexual intercourse and rape
      of a child. But the easiest way to do that will be to look at the
      two distinct types of acts. We have the penis in the mouth and
      we have the defendant performing an act of mouth on vagina,
      oral sex on [J.G.].

VRP at 1666-67.

      The State distinguished the acts of child molestation and the acts of child

rape. It described the type of conduct that supported the child molestation count

and the child rape counts and gave examples. The State never argued that the

same conduct, oral sex, could be both child rape and child molestation.

       Gonzales contends that it was not manifestly apparent that the State was

not seeking multiple punishments for the same act because J.G.'s testimony was

ambiguous regarding timing and details. But J.G.'s testimony was clear and

consistent. She testified that Gonzales fondled her breasts multiple times while

sharing a bed. He fondled her vaginal area multiple times (without penetration)

while sharing a bed, and once placed his penis in her hand while she was asleep

on the couch. J.G. additionally testified that while in bed, Gonzales placed his

penis in her mouth, and that while on the couch, he placed his mouth on her

vagina. While she did not always provide specific dates, she gave a range of time

when they occurred, and Gonzales does not argue that her testimony about

these acts fell outside the charging period.

       Gonzales also argues that the prosecutor told the jury that there were

many acts on which it could base a guilty verdict so it was not manifestly

apparent that he was not seeking multiple punishments for the same offense. But


                                         7
No. 75127-1-1

the prosecutor gave categories of abuse that would support each charge. The

prosecutor never told the jury that it could find both molestation and rape from

the same conduct.

       It was manifestly apparent that the State did not seek to punish Gonzales

more than once for the same act, so there is no double jeopardy violation.

Supplemental Jury Instructions

       Gonzales argues that the trial court erred when it gave a supplemental

jury instruction after the jury began deliberating. He contends that the new

instruction on separate counts went beyond matters argued to the jury.

       Whether to give further instructions in response to a request from a

deliberating jury is within the discretion of the trial court. State v. Becklin, 163

Wn.2d 519, 529, 182 P.3d 944(2008). We review the trial court's decision for

abuse of discretion. Id. "[S]upplemental instructions should not go beyond

matters that either had been, or could have been, argued to the jury." State v.

Ransom, 56 Wn. App. 712, 714, 785 P.2d 469(1990)(quoting Sams v.

Commercial Standard Ins. Co., 157 Kan. 278, 139 P.2d 859 (1943)).

       After one day of deliberations in Gonzales's trial, the State brought to the

court's attention that it did not instruct the jury to consider multiple counts

separately as provided in 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 3.01 (4th ed. 2016)(WPIC). The State proposed that

WPIC 3.01 be read to the jury along with WPIC 4.68, regarding additional

instructions that go to the jury. The defense said that it was "just as surprised" as

the State that the jury was not instructed on WPIC 3.01. Gonzales argued that

                                          - 8-
No. 75127-1-1

the delay in giving this instruction would result in irreparable harm and requested

a mistrial. The trial court denied a mistrial and instructed the jury that

      [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. You are not to give this instruction
      special importance just because it was read separately. Consider it
      along with all of the instructions you have received.

VRP at 1725. The jury returned its verdict some time later that day.

       The trial court did not abuse its discretion by giving the supplemental jury

instruction because WPIC 3.01 did not exceed matters that were argued or could

have been argued to the jury. It is also evident from the record that Gonzales

assumed that the jury instructions contained WPIC 3.01, so he cannot show that

his cross examination or closing argument would have changed if the instruction

had been offered before deliberations began. We affirm the trial court's

supplemental instructions.

Lustful disposition evidence

       Gonzales argues that the trial court erred by admitting testimony that he

masturbated while holding J.G.'s bra. He contends this uncharged misconduct

goes to propensity and should be excluded under ER 404(b). He argues that it

was an error to admit this testimony to show his "lustful disposition" toward J.G.,

particularly because it occurred after the charged conduct.

       The decision to admit evidence is within the discretion of the trial court and

will not be disturbed absent an abuse of discretion. State v. Brown, 132 Wn.2d

529, 572, 940 P.2d 546(1997). There is an abuse of discretion when the trial



                                          9
No. 75127-1-1

court's decision is manifestly unreasonable or based upon untenable grounds or

reasons. Id.

        Rules of Evidence(ER)404(b) provides that leividence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith. It may, however, be admissible for other

purposes,.. ." Washington courts have consistently held one such other purpose

is evidence of collateral sexual misconduct when it shows the defendant's lustful

disposition toward the victim. State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220

(1991); State v. Camarillo, 115 Wn.2d 60, 70, 794 P.2d 850(1990); State v.

Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 68(1983); State v. Medcalf, 58 Wn.

App. 817, 822-23, 795 P.2d 158(1990). This is because a lustful disposition

makes it more likely that the defendant committed the crime charged. Ray, 116

Wn.2d at 547. Evidence of uncharged sexual misconduct occurring before or

after the charged acts is admissible. State v. Crowder, 119 Wash. 450, 205 P.

850(1922). In an ER 404(b) analysis, the trial court must balance probative value

against the potential for unfair prejudice. Camarillo, 115 Wn.2d at 69-70.

        Here, the trial court admitted J.G.'s testimony that she saw Gonzales

masturbating while holding her bra. The court reasoned that Gonzales's behavior

was sexual conduct that showed lustful disposition toward J.G. The court also

found that the probative value of the evidence was not outweighed by unfair

prejudice.2 The trial court did not abuse its discretion. Gonzales's action shows a


       2 Gonzalez does not dispute that the trial court properly found by a preponderance of the
evidence that the alleged conduct occurred. See State v. Benn, 120 Wn.2d 631, 653, 845 P.2d
289(1993).

                                             - 10-
No. 75127-1-1

sexual desire for J.G. Thus, it goes toward an "other purpose" as provided under

ER 404(b).

        Gonzales argues that any uncharged sexual misconduct is unfairly

prejudicial in a sex abuse prosecution. But the admitted evidence was not

unfairly prejudicial because his act was not more inflammatory than the charged

crime, and J.G. was only indirectly victimized by it.

        Gonzales also argues that the admitted testimony had diminished

probative value because the incident occurred after the alleged abuse. But an act

occurring after the charged abuse is relevant to lustful disposition. Crowder, 119

Wash. 452. It was not an abuse of discretion to conclude that the probative value

of this testimony was not outweighed by unfair prejudice.

        We affirm the admission of the lustful disposition testimony.

Community Custody Condition

        Gonzales argues that his community custody condition stating "[d]o not

enter any parks/playgrounds/schools" is unconstitutionally vague and not crime-

related.3

        We review community custody conditions for abuse of discretion, and will

reverse them only if they are manifestly unreasonable. State v. Irwin, 191 Wn.

App. 644, 652, 364 P.3d 830 (2015). An unconstitutional condition is manifestly

unreasonable. Id. Laws must provide ordinary people fair warning of proscribed

conduct, and have standards that are definite enough to protect against arbitrary


         3 The State first argues that this court should decline to consider Gonzales's arguments
because they are not supported by legal authority or citation. But we conclude that Gonzales
sufficiently briefed his argument on this issue, and so we consider it on the merits.

                                              -11-
No. 75127-1-1

enforcement. Id. A community custody condition is unconstitutionally vague if it

fails to do either. Id. This court recently held that a community condition stating

"Do not enter any parks, playgrounds, or schools where minors congregate" is

not unconstitutionally vague. State v. Norris, No. 75258-8-1 (Wash. Ct. App. Oct.

30, 2017). The condition here is even clearer than that in Norris, because one

need not consider whether minors congregate in the prohibited areas. Those

areas are simply off limits. This community custody condition is not vague.

       Community custody conditions also must be reasonably related to the

crime. Irwin, 191 Wn. App. at 656 (citing State v. Kinzie, 181 Wn. App. 774, 785,

326 P.3d 870 (2014)). The condition need not exactly mirror the means and

methods of the charged crime to be crime related. In Kinzie, the court prohibited

the defendant from dating women who have children even though the defendant

sexually abused the children of a friend with whom he was not in a dating

relationship. Kinzie, 181 Wn. App. at 785. Because Gonzales sexually abused a

minor, prohibiting him from frequenting locations oriented towards children is

related to his crime.

       We affirm the community custody conditions.

       The remainder of this opinion has no precedential value. Therefore, it will

be filed for public record in accordance with the rules governing unpublished

opinions. See RCW 2.06.040.

Statement of Additional Grounds

       Gonzales advances a number of additional challenges in his statement of

additional grounds.

                                        - 12 -
No. 75127-1-1

       Gonzales argues that the jurors were biased to his crime. But he does not

point to evidence of bias in voir dire, which took place over five days, or during

trial. His argument lacks support in the record. He then argues that "many lies

were proven." To the extent that any witness's testimony was impeached, that

would go toward the credibility of the witness. Credibility determinations are for

the trier of fact and cannot be reviewed on appeal. Camarillo, 115 Wn.2d at 71.

       Gonzales argues that officers entered his house without a warrant. But as

the trial court concluded in a pretrial motion to suppress, no warrant was required

because entry was based on a valid caretaking function, and warnings prior to

entering the home were not required because the officers did not intend to

conduct a warrantless search.

       Gonzales argues that he was interviewed before receiving Miranda

warnings.4 When the officers went into the house, Terri was yelling at Gonzales.

An officer did try to talk to Gonzales, but was interrupted by Terri. Meanwhile,

Gonzales was telling Terri that he was sorry. An officer led him to a back

bedroom, and read him Miranda warnings. Gonzales said that he understood the

warnings, and agreed to speak with the officer. The court found that the

statements to Terri were not in response to interrogation, that Gonzales then

waived his right to silence, and his statements were therefore admissible. The

court did not err.

       Gonzales argues that all witnesses were in a room together at the police

station, allowing them to confer. There is no evidence in the record that the


       4   Miranda v. Arizona, 384 U,S 436, 86 S. Ct. 1602, 16 L.Ed.2d 694(1966)

                                            -13-
No. 75127-1-1

witnesses conferred, so this argument is more properly asserted in a personal

restraint petition.

       Gonzales argues that at one point during trial, he was roughly placed in

handcuffs while jurors were present. Gonzales's attorney requested a mistrial.

Based on his observations, the trial judge denied the motion, reasoning that the

jury may not have seen the handcuffing, and the force used was appropriate.

This was not an abuse of discretion.

       Gonzales requested a continuance of the sentencing date because after

the trial the prosecutor intercepted a letter that was addressed to his lawyers.

The trial court did not err in denying the request because the matter did not relate

to sentencing.

       Gonzales argues that Terri should not have been permitted to testify

because she was heavily medicated. Terri testified that she was on about 18

different prescriptions at one point while J.G. was living with them. Gonzales

points to no evidence in the record on appeal that Terri was heavily medicated

while testifying.

       Gonzales argues that a juror misinterpreted a gun gesture that he made

while communicating with his lawyer. During trial, a juror reported seeing

Gonzales make a gun gesture with his fingers while J.G. was testifying. Gonzales

asked for a mistrial because he believed the gesture was taken out of context.

The court denied the mistrial and admonished the jury that any activities by

Gonzales during trial were not evidence. It is within the trial court's discretion to

determine the appropriate course of action where a defendant misbehaves in the

                                        - 14 -
No. 75127-1-1

courtroom. State v. Fualaau, 155 Wn. App. 347, 360, 228 P.3d 771 (2010).

Gonzales does not demonstrate that the gun gesture caused prejudice that could

not be rectified by an admonishment to the jury. The trial court did not err in

denying a mistrial.

       Gonzales argues that he received ineffective assistance of counsel

because no witnesses were called for defense, specifically a witness to discount

a report that there was yelling inside the house wt-en officers entered. But the
                                                    1
officers entered the house in part because Gonzales threatened self-harm, which

does not relate to yelling. In addition, the decision by defense counsel whether to

call a witness could be considered legitimate trial strategy, which cannot form the

basis for an ineffective assistance claim. State v. Humphries, 181 Wn.2d 708,

719-720, 336 P.3d 1121 (2014).

       Gonzales appears to argue that the prosecutor engaged in misconduct by

making a hand gesture showing how the abuse occurred. But there is no

evidence in the record that such a gesture was mide. Regardless, there was no

objection that would have permitted the court to alldress the potential

misconduct. Thus, any claim of error was waived.
                                                                                        a

       Affirmed.

                                                                                      =37.,




WE CONCUR:




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