                                                                          FILED
                                                                  COURT OF APPEALS WY I
                                                                  STATE OF WASHIRGTON
                                                                  2018 APR -9 Ali 9:19




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         )      No. 77765-3-1
                     Respondent,         )
                                         )      DIVISION ONE
              V.                         )
                                         )
COREY ALLEN PEARSON,                     )      UNPUBLISHED OPINION
DOB: 12/28/1998,                         )
                                         )      FILED: April 9, 2018
                    Appellant.           )
                                         )

       BECKER, J. — The appellant was convicted in juvenile court of one count of

child molestation and one count of child rape, both arising from a single incident

of intimate contact with the victim. Because the same conduct was not required

to prove both convictions, there was no double jeopardy violation.

       When appellant Corey Pearson was 16, he lived in the same household

as 12-year-old KLM. The girl's account of being sexually assaulted by Pearson

led to Pearson's prosecution.

       Pearson was tried as a juvenile on one count of second degree child

molestation and one count of second degree child rape. KLM was 13 at the time

of trial; Pearson was 17. KLM testified about an occasion when she and Pearson

were lying in a bed together. She said he started kissing her lips and neck, and
No. 77765-3-1/2

then he moved his hands toward her "vaginal area" and started touching her

beneath her clothing.

             Q. [STATE:] Okay. And what was his hand doing? Was
      that under or over clothing?
             A. [KLM:] Under.
             Q. Okay. And was that under or over your underwear?
             A. Under.
             Q. Okay. So was it touching your skin -- the skin of your
      vagina?
             A. Yeah.
             Q. And was his hand doing anything down there? Was it
      moving at all?
             A. Yeah.
             Q. How was it moving?
             A. I don't know. It was just moving.
             Q. Okay. Have you ever used a tampon?
             A. Yeah.
             Q. And did his fingers ever --
             A. Yes.
             Q. -- go where a tampon would go?
             A. Yeah.
             Q. Okay. And what were they doing when they were inside
      there?
             A. Moving.

This incident formed the basis of both charges; KLM did not allege that Pearson

assaulted her on any other occasion.

      At the conclusion of the bench trial, the court found Pearson guilty on both

counts. The court imposed a standard range term of 15 to 36 weeks'

commitment on the rape count and 30 days on the molestation count, to run

concurrently.

      Pearson brought this timely appeal. He claims a violation of his double

jeopardy rights. Our review is de novo. State v. Land, 172 Wn. App. 593, 598,

295 P.3d 782, review denied, 177 Wn.2d 1016 (2013).



                                        2
No. 77765-3-1/3

       The constitutional guarantee against double jeopardy protects a defendant

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

WASH. CONST. art. I, § 9; In re Personal Restraint of Orange, 152 Wn.2d 795,

815, 100 P.3d 291 (2004). Pearson contends child rape and child molestation

constitute the same offense in the circumstances of this case because, he

claims, the same evidence proved both counts.

       We apply the "same evidence" test, asking whether the crimes are the

same in law and in fact. State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853

(1983). If there is an element in each which is not included in the other, and

proof of one would not necessarily also prove the other, the offenses are not the

same and the double jeopardy clause does not prevent convictions for both.

Vladovic, 99 Wn.2d at 423.

       The elements of second degree child rape are:(1) sexual intercourse,(2)

with a child between 12 and 14 years old,(3) who is not married to the

perpetrator, and (4) who is at least 36 months younger than the perpetrator.

RCW 9A.44.076(1). "Sexual intercourse" means penetration of the vagina or

anus, or any act of sexual contact between persons involving the sex organs of

one person and the mouth or anus of another. RCW 9A.44.010(1).

       The elements of second degree child molestation are:(1) sexual contact,

(2) with a child between 12 and 14 years old,(3) who is not married to the

perpetrator, and (4) who is at least 36 months younger than the perpetrator.

RCW 9A.44.086(1). "Sexual contact" means "any touching of the sexual or
No. 77765-3-1/4

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).

       Thus, child rape requires proof of intercourse, which is not an element of

child molestation, and child molestation requires proof that the perpetrator acted

for sexual gratification, which is not an element of child rape. State v. Jones, 71

Wn. App. 798, 825, 863 P.2d 85 (1993), review denied, 124 Wn.2d 1018 (1994).

       When there is an element in each offense that is not included in the other,

they are not the same in law. Vladovic, 99 Wn.2d at 423. But we cannot rule out

a double jeopardy violation unless we also consider whether the two offenses are

the same in fact. State v. Nvsta, 168 Wn. App. 30, 47, 48, 275 P.3d 1162(2012),

review denied, 177 Wn.2d 1008 (2013). Double jeopardy occurs if the offenses

are the same in fact, that is, if "evidence of the same single act was required to

support each conviction." Nvsta, 168 Wn. App. at 48.

       We discussed the "same in fact" component of the double jeopardy test in

Land. Like Pearson, the defendant was convicted of one count of child rape and

one count of child molestation based on conduct involving the same victim and

the same charging period. The defendant argued on appeal that the trial court

erred by failing to instruct the jury that separate acts were required to support the

rape and molestation charges. Such an instruction is a requirement under State

v. Mutch 171 Wn.2d 646, 661, 254 P.3d 803(2011), when the State has

charged more than one identically worded count of the same offense in the same

charging period. That situation creates a potential problem of double jeopardy.

Land, 172 Wn. App. at 599.


                                         4
No. 77765-3-1/5

       We agreed with the defendant in Land that even though rape and

molestation have different elements, they can be the same in fact if both offenses

arise out of the same act of oral-genital intercourse. The trial testimony was that

the defendant touched the victim on her breasts and "lower part," inserted his

finger inside her vagina, and "'kissed" her "'on the lower half." Land, 172 Wn.

App. at 597-98. This testimony created a potential double jeopardy problem

calling for a Mutch "separate acts" instruction to prevent the jury from convicting

Land of both rape and child molestation based on a single act. Land, 172 Wn.

App. at 600-01. In the final analysis, we found no instructional error because it

was manifestly apparent from the record that the rape count was supported only

by the digital penetration; thus, the State was not seeking to impose more than

one punishment for the same offense. Land, 172 Wn. App. at 601-03.

       Pertinent to Pearson's case, we explained in Land that when rape occurs

by penetration, it is not the same offense as child molestation; but when rape

occurs by oral-genital contact, it is the same offense as child molestation if the

same act of sexual contact was necessary to prove it.

             Where the only evidence of sexual intercourse supporting a
      count of child rape is evidence of penetration, rape is not the same
      offense as child molestation. And this is so even if the penetration
      and molestation allegedly occur during a single incident of sexual
      contact between the child and the older person. The touching of
      sexual parts for sexual gratification constitutes molestation up until
      the point of actual penetration; at that point, the act of penetration
      alone, regardless of motivation, supports a separately punishable
      conviction for child rape.
             But 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

                                         5
No. 77765-3-1/6

       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.

Land, 172 Wn. App. at 600.

       Pearson recognizes that his case appears to fall into the first category

discussed in Land. Under Land, rape accomplished by penetration is not the

same offense as child molestation. But Pearson argues that penetration was the

only evidence of molestation in his case, putting his case into the second

category where rape and molestation are the same offense in fact. According to

Pearson,

      there was no "touching of sexual parts for sexual gratification" "up
      until the point of actual penetration." Rather, the touching of sexual
      parts for sexual gratification was the penetration. . . .Thus, this case
      falls into the second category because 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."

       We disagree with Pearson's characterization of the evidence.

KLM testified that Pearson touched her unclothed vagina before inserting his

fingers in her vagina. She said that Pearson moved his hand towards her vaginal

area, put his hand beneath her underwear, touched the skin of her vagina, and

then put his fingers inside her vagina. Pearson's touching of KLM's vaginal area

before penetration occurred was available to prove the molestation. This fact

pattern illustrates what we said in Land. Even though the penetration and

molestation occurred during a single incident of sexual contact between Pearson

and KLM, his touching of her sexual parts for sexual gratification constituted


                                         6
No. 77765-3-1/7

molestation up until the point of actual penetration. At that point, the act of

penetration, regardless of motivation, constituted the separately punishable

offense of rape.

       At the disposition hearing, the trial judge commented that the conduct for

both crimes was "a single act." Pearson interprets this comment as an express

formal finding by the court that his two offenses were the same in fact for

purposes of a double jeopardy violation.

       The "single act" remark cannot be taken to mean that the judge found the

two offenses were the same in fact for purposes of a double jeopardy analysis.'

The judge identified separate conduct to support each count in his oral findings at

the end of trial. The judge declined to dismiss the molestation conviction as a

violation of double jeopardy when defense counsel suggested that he do so. "I

don't know that a dismissal would be appropriate based on the findings that I

have already made."

       At various points below, the parties and the judge used the term "merger"

and referred to a single act without being clear about what they meant. During

the disposition hearing, the prosecutor said that the molestation and rape

convictions were "pretty clearly the same act or offense." The prosecutor also

said, "for an equity or in the interest of justice argument, the State has no

objection to this Court merging them." The judge then said that his analysis of



       I Even if the trial court had made a formal finding of a "single act," we are
aware of no authority that prevents us from examining the underlying evidence in
a bench trial just as we would in a jury trial to determine the proper application of
the Vladovic "same evidence" test.

                                          7
No. 77765-3-1/8

appropriate punishment began with considerations of "merger": "Based on the

circumstances that have been presented that the conduct in both of those was a

single act—it was the same act—lam going to find that those would merge for

purposes of the disposition that I am making." The court's written findings and

conclusions state that the molestation and rape counts "merge for purposes of

disposition."

       The "merger" doctrine is a rule of statutory construction used in a double

jeopardy analysis only when a crime is elevated to a higher degree by proof of

another crime—for example, when kidnapping or assault is used to support a

charge of first degree rape. State v. Johnson, 92 Wn.2d 671, 681,600 P.2d

1249 (1979), cert. dismissed, 446 U.S. 948 (1980); State v. Freeman, 153 Wn.2d

765, 772-73, 108 P.3d 753(2005); Vladovic, 99 Wn.2d at 420-21. There is no

indication that the trial judge in Pearson's case intended that meaning of the term

"merger." Possibly, the court meant to say that Pearson's conduct constituted a

"single act" as that term is used in a juvenile sentencing statute, RCW 13.40.180

(1)(a). See State v. S.S.Y., 170 Wn.2d 322, 330 & n.2, 241 P.3d 781 (2010).

Whether two convictions arise from a single act or from the "same criminal

conduct" for sentencing purposes is distinct from a double jeopardy analysis.

State v. Chenoweth, 185 Wn.2d 218, 222, 370 P.3d 6(2016); State v. Wilkins,

200 Wn. App. 794, 809, 403 P.3d 890 (2017).

       In short, the judge's oral remarks have no bearing on our conclusion that

Pearson's offenses are distinguishable in law and in fact. Following Land, we

conclude the court's finding that Pearson was guilty of both molestation and rape


                                        8
No. 77765-3-1/9

does not violate double jeopardy even though the offenses stem from a single

incident of intimate contact.

       Affirmed.




WE CONCUR:




                                                             ?)




                                       9
