State Of Washington, Respondent V. Juan Jose Rodriguez-montoya, Appellant

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,
Respondent,
V.
JUAN JOSE RODRIGUEZ-MONTOYA,
Appellant.
LEACH,J. — Juan Jose Rodriguez-Mon
No. 75759-8-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: March 5, 2018
toya 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
base its decisions on separate and distinct
should not have admitted R.A.L.'s out-of-
because R.A.L. did not make her statemen
identity for purposes of medical diagnosis or
The record shows that it was manifes
based the rape and molestation charges invo
acts. Second, evidence about an abuser's i
child's treatment and the totality of the c
statement, making it admissible under ER 80
ions that did not require that the jury
acts. He also claims that the court
ourt statement to her pediatrician
about the abuse and her abuser's
reatment.
ly apparent to the jury that the State
ving F.M-G. on separate and distinct
entity is reasonably necessary to a
rcumstances corroborates R.A.L.'s
(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
A jury convicted Rodriguez-Montoya
and two counts of child molestation in the firs
of F.M-G. and the molestation of R.A.L.
ement at trial.
f rape of a child in the first degree
degree for the rape and molestation
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
9 of the Washington Constitution protect defe
for the same offense.3 Beyond these constit
the power to define and designate punishm
determine whether the legislature intended
criminal conduct that violates both the rape of
the child molestation in the first degree statut
First, we evaluate the language of the
expressly authorize multiple punishments for
statute.6 An individual is guilty of child rape
has sexual intercourse with another who is
married to the perpetrator and the perpetrato
than the victim."7 "Sexual intercourse" mean
tes Constitution and article I, section
dants against multiple punishments
tional limitations, the legislature has
nt for criminal conduct.4 We must
to allow multiple punishments for
a child in the first degree statute and
elevant statutes to determine if they
conduct that violates more than one
n the first degree "when the person
less than twelve years old and not
is at least twenty-four months older
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
Vi	to be twice put in jeopardy of life or limb"); ASH. 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
involving the sex organs of one person and t
such persons are of the same or opposite se
An individual is guilty of child moles
person has, or knowingly causes another p
have,sexual contact with another who is less
to the perpetrator and the perpetrator is at I
victim."9 "'Sexual contact' means any touchin
of a person done for the purpose of gratifying
Neither statute expressly authorizes
t of sexual contact between persons
e mouth or anus of another whether
ation in the first degree "when the
rson under the age of eighteen to
han twelve years old and not married
ast thirty-six months older than the
of the sexual or other intimate parts
sexual desire of either party."19
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
same evidence test provides that a defenda
are identical both in fact and in law violate his
Thus, if the facts are not identical or "[i]f each
not required in the other, where proof of one
the offenses are not the same [in fact or
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.
as the "same evidence test."12 The
t's convictions for two offenses that
rotection against double jeopardy.13
offense requires proof of an element
oes not necessarily prove the other,
law] and multiple convictions are
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No. 75759-8.-I / 5
When an act of sexual intercourse involves penetration, rape of a child in
II
the first degree and child molestation in the irst degree are legally distinct; rape
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
15 State 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
We held that although the trial court should ha
the jury that the State must have based each
the absence of an instruction did not violate
jeopardy.21 We explained that the victim's te
lid and the same charging period.20
e submitted an instruction informing
ount on a separate and distinct act,
Land's right to be free from double
timony, the State's arguments, and
1
the to-convict instructions and information 1elineating the two counts made it
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,
"parts." F.M-G. also told a child interview sp
taken F.M-G.'s hand and placed it on Rodrig
and that Rodriguez-Montoya had touched F.
to at least two incidents of sexual intercour
Rodriguez-Montoya "put his privacy in my
Montoya used the part of his body that he "p
G. stated that Rodriguez-Montoya put his "p
20 Land, 172 Wn. App. at 597.
21 Land, 172 Wn. App. at 603.
22 Land, 172 Wn. App. at 602-03.
d have them touch each other's
cialist that Rodriguez-Montoya had
ez-Montoya's "pee" or his "privacy"
-G.'s "privacy." F.M-G. also testified
e. He stated that more than once
utt" and explained that Rodriguez-
e[s]" from to do so. In addition, F.M-
ivacy in my mouth" on five separate
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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.
within that charging period he was orally rape
molestation charge, the State explained,"No
with [F.M-G.], that same[unanimity] instruction
because [F.M-G.] has described multiple type
defendant's penis, the defendant's hand on[
happened multiple times." The State therefo
intercourse as rape and the acts involving tou
Finally, the to-convict instructions, like t
between the two counts. Instruction 9 stated t
rape of a child in the first degree involving F.FV
If you can unanimously agree that
,that's enough." In reference to the
with regard to Count II having to do
applies that I just described. That's
of sexual contact. His hand on the
.M-G.'s] penis, and the fact that it
e defined the acts involving sexual
hing as molestation.
e information, clearly differentiated
at to convict Rodriguez-Montoya of
-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
F.M-G., the jury had to find that he had "sex
estation in the first degree involving
al contact" with F.M-G. during the
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No. 75759-8-1 / 8
charging period. Instructions 10 and 16 provi
intercourse and sexual contact, respectively.
Similar to Land, we conclude that F.M-
in closing, and the to-convict instructions an
and molestation charges made it manifestly a
not seeking to impose multiple punishments f
violate Rodriguez-Montoya's guaranty agains
the jury that it needed to rely on separate an
conviction. Thus, no constitutional error occu
ER 803
Rodriguez-Montoya also challenges t
hearsay statement to her pediatrician on the
purposes of diagnosis or treatment. We r
admissibility of evidence for an abuse of discr
"Hearsay" is an out-of-court stateme
matter asserted.24 Generally, a hearsay state
it satisfies an exception to the rule.25 ER 803
does not exclude "[s]tatements made for
treatment." The exception applies only
23 State v. Fisher, 165 Wn.2d 727, 745
24 ER 801(c).
25 ER 802.
ed the statutory definitions of sexual
.'s testimony, the State's arguments
information distinguishing the rape
parent to the jury that the State was
r a single act. The trial court did not
double jeopardy by failing to instruct
distinct acts for the bases of each
red.
e trial court's admission of R.A.L.'s
ground that she did not make it for
view a trial court's rulings on the
tion.23
t offered to prove the truth of the
ent is not admissible at trial unless
a)(4) provides that the hearsay rule
urposes of medical diagnosis or
o hearsay statements that were
202 P.3d 937(2009).
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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
statements for purposes of medical diagnosis
admit child hearsay "only if corroborating evid
and it appears unlikely that the child would h
This corroborating evidence must be part of
which the child makes the statements.35
court should identify on the record the spec'
not understand that she made the
or treatment.33 But a trial court may
nce supports the child's statements
we fabricated the cause of injury."34
the totality of the circumstances in
facilitate appellate review, the trial
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
statement.
Consistent with Rodriguez-Montoya's
identify on the record what it considered to e
of-court statement to Guerra. The record, ho
surrounding her statement to Guerra.37 T
corroborate R.A.L.'s statement. First, Guerr
R.A.L., she observed R.A.L.'s vagina and labi
that Guerra examined R.A.L. three or fo
orted behavior did not support her
argument, the trial court did not
tablish the reliability of R.A.L.'s out-
ever, documents the circumstances
e totality of these circumstances
testified that when she examined
were red. R.A.L.'s mother testified
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
the abuse caused the redness. Guerra stated
caused the redness, including poor hygien
t she could not determine whether
that a number of issues could have
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).
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No. 75759-8-1 / 12
dermatitis, all of which are common. She als
explain the redness.
Further, Guerra had been R.A.L.'s pe
old, which means R.A.L. likely knew she
appointment and had no reason to invent her
that R.A.L. had seen Guerra for regular ch
years. Guerra explained that when a patie
clinic follows the same procedures: the medi
stated, however,that touching could
iatrician since R.A.L. was 18 months
was seeing Guerra for a medical
statement. R.A.L.'s mother testified
ckups over the last two-and-a-half
t comes in for an appointment, the
cal 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. Guer a stated that she begins by greeting	rl
the child, asks about her history, and then cInducts a physical examination. On
November 11, 2014, consistent with protocol,
had come to see her before performing
documented her conversation with R.A.L. as
Guerra asked R.A.L. about why she
a physical examination. Guerra
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
not admissible under ER 803(a)(4).39 B
"statements regarding the identity of the abu
child's medical treatment."49 The medical pro
to avoid returning the child to the abusive r
identity was therefore related to Guerra's dia
rally, statements attributing fault are
t when the declarant is a child,
er are reasonably necessary to the
ider must know who abused a child
lationship.41 Rodriguez-Montoya's
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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