                                                                       :f: A PPE
                                                                  STATE C.
                                                                         :'-1/1

                                                                  2011 rOV 13 IA      53




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                       )       No. 74952-8-1
                                           )
                     Respondent,           )       DIVISION ONE
                                           )
                     v.                    )
                                           )
ROSE I. GORDON,                            )       UNPUBLISHED OPINION
                                           )
                     Appellant.            )       FILED: November 13, 2017
                                           )

       SPEARMAN, J. —A valid waiver of a defendant's Mirandal rights depends

on the totality of the circumstances present during the interrogation. A trial court's

finding of waiver will be affirmed if it is supported by substantial evidence. A claim

of double jeopardy will be sustained only if the jury was not properly instructed

and the State failed to make it manifestly apparent to the jury that it was not

seeking multiple punishments for a single act. In this case, Rose Gordon

challenges her convictions for multiple child sex offenses, contending that a

language barrier prevented her from knowingly, intelligently and voluntarily

waiving her Miranda rights and that her right against double jeopardy was

violated because she was convicted on two counts that were not based on



       1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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separate and distinct acts. But the finding of waiver is supported by substantial

evidence and the jury was made well aware that the two counts at issue must be

based on separate and distinct acts. We affirm.

                                           FACTS

       Gordon was born in Tonga in 1980 and moved to the United States in

2006. In 2008, Gordon gave birth to a daughter, C.H. Gordon met Ricky Gordon

on a dating website in March 2013 and married him approximately a month later.

In 2014, Gordon and Ricky2 had a son, R.G.

      On November 7, 2014, the Snohomish County Sheriff's Office served a

search warrant on the Gordon's home. The warrant was based on a tip from the

Federal Bureau of Investigation (FBI) that the Gordons were dealing in depictions

of minors engaged in sexually explicit conduct. When police entered the home,

C.H. was naked and sitting on the couch with Gordon and Ricky. Both Gordon

and Ricky were arrested and transported to the jail. A "keep separate" provision

was imposed so that Gordon and Ricky could not be near each other while being

booked into the jail. Verbatim Report of Proceedings(VRP)(1/27/16) at 444.

       After Gordon was booked, Detective Peter Teske and Deputy Jeff Ross

met with her in a private interview room. When the officers introduced

themselves, Gordon immediately began talking about her understanding of why

she was there. Detective Teske interrupted Gordon to advise her of her Miranda




       2   We refer to Ricky Gordon by his first name for clarity.

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rights. He read them to her from a printed form, pointing to each word so she

could follow along. Gordon agreed to waive her Miranda rights, both orally and in

writing. Detective Teske then began recording the interview and obtained a

second Miranda waiver from Gordon on the recording.

       The interview was conducted entirely in English. Gordon admitted she and

Ricky had touched C.H.'s vagina on multiple occasions "to see what she would

do." Clerk's Papers(CP)at 211. Gordon stated that Ricky had performed oral

sex on C.H. and that they told C.H. to touch Gordon's vagina and Ricky's penis.

Gordon stated she once inserted her finger into C.H.'s vagina but that C.H.

complained that it hurt and so she stopped. Gordon indicated the depth of the

penetration to Detective Teske by pointing to the first knuckle of her own finger.

Gordon stated that she and Ricky did these things to "train her now and teach

her the right thing. .. ." CP at 213.

       A forensic investigation of Gordon's and Ricky's phones revealed large

numbers of photographs and videos of C.H. naked or engaging in sexual acts.

One photograph, taken on April 19, 2014, showed C.H. sitting with Ricky on a

couch and touching his erect penis. Another photograph, taken on June 7, 2014,

depicted C.H. performing oral sex on Ricky.

       The State charged Gordon in a fifteen-count information with crimes

against C.H., acting either as a principal or an accomplice. These included first

degree rape of a child, occurring between October 1,2013 and November 7,




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2014 (count I), and first degree child molestation, occurring on April 19, 2014

(count 111).

        At a CrR 3.5 hearing, the trial court read a transcript of Gordon's police

interview and also listened to the audio recording of the interview. The trial court

found that Gordon "was articulate when expressing herself' and "was not

halting." CP at 134. The trial court also found that while Gordon's sentence

structure "was not the same as those who have been educated ... the structure

was not far removed from many others who have testified" and that Gordon

"appeared to be substantially fluent in the English language." CP at 134-35. The

trial court concluded that Gordon's ability to communicate in English "was not an

impediment to her ability to make a knowing and voluntary waiver" of her Miranda

rights. CP at 135.

        At trial, Gordon, who had the assistance of a Tongan interpreter

throughout the proceedings, requested to testify in English. Gordon did not

dispute that she had performed sexual acts with C.H. and had taken photographs

or videos of other sexual acts involving C.H. Rather, Gordon contended that she

did these things under duress. She testified that Ricky knew that she was not a

United States citizen and threatened to have her deported if she did not do what

he said. Gordon also testified that Ricky hit her and burned her hands with an

iron. Gordon claimed that she did not tell Detective Teske any of this because

she encountered Ricky while being booked into the jail and Ricky motioned to her

to keep quiet.

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      In closing argument, the deputy prosecutor informed the jury that they

could convict Gordon on count 1 based on:(1)the June 7 photograph of C.H.

performing oral sex on Ricky, or (2) Gordon's admission to Detective Teske that

she digitally penetrated C.H.

      Now, this image also supports count one which is rape of a child in
      the first degree.


      [Y]ou really have two choices on count one on how you wish to
      show — if you wish to conclude the State has proven this. There's
      either of those images. There was oral sex happening. She
      instructed her to do that under accomplice liability.
              The second choice would be that if you recall in her interview
      she told the detectives that she digitally penetrated [C.H.] with her
      finger up to her knuckle. Detective Teske told you that she
      demonstrated to him it was up to her knuckle, that she screamed
      out it hurt. Remember she said, no, no, no, I don't like it. There's
      that.

VRP (2/2/16) at 810-11. The deputy prosecutor instructed the jury that count III

was based on the April 19 photograph depicting C.H. touching Ricky's penis.

      Count three is a count of child and child molestation in the first
      degree. You will see that in the second-to-last slide depicting [C.H.]
      touching Mr. Gordon's penis. That is, again, another accomplice
      liability charge. Mrs. Gordon is in the series of photos. You will see
      from the metadata within minutes of each other, within seconds
      from each other. She tells you from the interview that she is the one
      that instructs her to do this.

VRP (2/2/16) at 819-20.

      The jury rejected Gordon's duress defense and returned guilty verdicts on

every count except for count XV. Gordon appeals.




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                                   DISCUSSION

                                  Miranda Waiver

       Gordon contends that the trial court erred in admitting her statements to

Detective Teske. She argues that her English language skills were not sufficient

to execute a knowing, voluntary and intelligent waiver of her Miranda rights. We

disagree.

       A custodial statement is admissible if police advised the defendant of his

or her constitutional rights and the defendant knowingly, voluntarily and

intelligently waived those rights. Miranda, 384 U.S. at 479. Whether there has

been a valid waiver depends on the totality of the circumstances, including the

background, experience, and conduct of the defendant. North Carolina v. Butler,

441 U.S. 369, 374-75, 99 S. Ct. 1755,60 L. Ed. 2d 286 (1979). A defendant's

language barrier is an important consideration in determining whether a waiver is

valid. State v. Teran, 71 Wn. App. 668, 672-73, 862 P.2d 137(1993).

       We review a trial court's decision after a CrR 3.5 hearing to determine

whether substantial evidence supports the trial court's findings of fact, and

whether those findings support the conclusions of law. State v. Broadawav, 133

Wn.2d 118, 130-31, 942 P.2d 363(1997). Substantial evidence exists where

there is a sufficient quantity of evidence in the record to persuade a fair-minded,

rational person of the truth of the finding. State v. Halstien, 122 Wn.2d 109, 129,

857 P.2d 270 (1993). We defer to a trial court's assessment of credibility. State v.

Hill, 123 Wn.2d 641, 646, 870 P.2d 363(1994).

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       Here, the totality of the circumstances demonstrates that Gordon

understood her Miranda rights and voluntarily, knowingly, and intelligently waived

them. When Detective Teske went over the rights with Gordon, she responded in

English that she understood them. She did not express any confusion or difficulty

understanding, nor did she ask any questions. In contrast, later in the interview,

when Gordon was not sure she was using the word "masturbate" correctly, she

stopped to ask Detective Teske if her usage was correct.

       The remainder of the interview after the waiver also demonstrates

Gordon's comprehension. Gordon responded appropriately and accurately to

questions regarding her address, phone number and date of birth. When

Detective Teske asked questions in English about Gordon's relationship with

Ricky and her conduct with C.H., Gordon's answers were responsive. In fact,

Gordon appeared eager to explain her actions and to emphasize that she and

Ricky loved C.H., that they believed they were acting in her best interest, and

that they did not compel her to participate in sexual activity by force. Gordon

talked freely during the interview with little prompting. Both Detective Teske and

Deputy Ross testified that they had no concerns regarding Gordon's

comprehension. The trial court did not err by finding that Gordon voluntarily,

knowingly, and intelligently waived her Miranda rights.

                                 Double Jeopardy

       Gordon contends that her convictions on count! and count III violated

double jeopardy. She argues that because the charging periods for the two

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counts overlapped, the jury could have convicted her of rape of a child based on

the same incident that formed the basis for the child molestation conviction. But

because it was manifestly apparent to the jury that the State was not seeking

multiple punishments against Gordon for the same act, there was no double

jeopardy violation.

       The constitutional guaranty against double jeopardy protects a defendant

against multiple punishments for the same offense. U.S. CONST. AMEND. V; WASH.

CONST. art. 1, § 9; State v. Mutch, 171 Wn.2d 646, 661, 254 P.3d 803(2011). We

review a potential double jeopardy violation de novo. Mutch, 171 Wn.2d at 662.

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

that when a sexual act involves oral-genital contact only, if done for the purposes

of sexual gratification, that conduct may constitute both rape of a child and child

molestation. When both are charged, the jury instructions must require that the

rape of a child and child molestation counts be based on separate and distinct

acts. Land, 172 Wn. App. at 600-01. The absence of such language presents the

potential for double jeopardy. Land, 172 Wn. App. at 600-01. But there is no

double jeopardy violation if, considering the evidence, arguments, and jury

instructions in their entirety, it is "'manifestly apparent to the jury that the State

[was] not seeking to impose multiple punishments for the same offense. . . .

Mutch, 171 Wn.2d at 664 (quoting State v. Berq, 147 Wn. App. 923, 931, 198

P.3d 529 (2009)).




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       Here, the instructions for count III did not include an instruction that the

conduct must have occurred on an occasion separate and distinct from that of

count I. Nevertheless, there was no double jeopardy violation. The State clearly

elected the evidence on which it was relying for count 1: either C.H. performing

oral sex on Ricky on June 7 or Gordon's digital penetration of C.H. And the State

identified the evidence forming the basis for count III: the incident of C.H.

touching Ricky's penis on April 19. The State reviewed the exhibits depicting

each incident with the jury so that there could be no confusion regarding which

incident supported which count. There was no suggestion that any act of oral-

genital contact was the basis for count III. Nor did the State suggest that the jury

could use the same incident to support more than one count. Based on the

evidence, argument, and instructions, it was manifestly apparent to the jury that

the State was not seeking to impose multiple punishments for the same offense.

       Affirmed.




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