State Of Washington, V. Rigo Roberto Cortez

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 84744-9-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

RIGO ROBERTO CORTEZ,

Appellant.

DÍAZ, J. — A jury convicted Rigo Roberto Cortez of three counts of child

molestation against his granddaughter, R.A.C. 1 He now argues (1) there is

insufficient evidence to support the jury’s decision on two of the convictions; (2)

the trial court misapplied ER 404(b) by admitting testimony of two additional,

unwanted, and uncharged sexual touchings; (3) the trial court’s jury instructions

improperly allowed the jury to convict him on multiple charges for the same act,

violating his right to be free from double jeopardy; and (4) several conditions of his

sentence violate his constitutional rights, asking also that we remand the matter to

strike two fees the court imposed. We hold that none of his assignments of error

are meritorious, except that we remand this matter for the court to strike those fees.

1 We refer to R.A.C. by her initials to protect her privacy.

No. 84744-9-I/2

I. BACKGROUND

R.A.C. was born in 2007. Cortez is her step-grandfather, i.e., Cortez’s

stepson is R.A.C.’s father. R.A.C. and her mother lived with Cortez at different

points of R.A.C.’s childhood. During the approximately nine-year period when

R.A.C. lived with Cortez off and on, he sometimes cared for her.

In December 2019, when R.A.C. was 12 years old and in seventh grade,

she reported to two friends and then to her school counselor that Cortez touched

her inappropriately multiple times.

As we will discuss in more detail below, ultimately, the State charged Cortez

with two counts of child molestation in the first degree for incidents occurring

between April 2012 and April 2019 (counts 1 and 2). And the State charged Cortez

with two counts of child molestation in the second degree for incidents occurring

between April 2018 and December 2019 (counts 3 and 4). Count 3 was the same

type of act as in count 2, but in a different location and time, although the events

occurred within overlapping time periods, namely, April 2018 and April 2019.

The jury acquitted Cortez of count 1, but found him guilty of counts 2, 3, and

4. The trial court imposed terms of confinement, restitution—neither of which are

challenged here—and conditions of community custody, which he does challenge.

Cortez timely appeals.

II. ANALYSIS

A. Sufficiency of the Evidence

1. Law

“The standard for sufficiency of evidence is ‘whether any rational trier of fact

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could have found the essential elements of the crime beyond a reasonable doubt

when viewing the evidence in a light most favorable to the State.’” State v. Gantt,

29 Wn. App. 2d 427, 441-42, 540 P.3d 845, 855 (2024) (quoting State v. Treat,

109 Wn. App. 419, 426, 35 P.3d 1192 (2001)). “And a key tenant of our justice

system is that ‘a jury is free to believe or disbelieve a witness, since credibility

determinations are solely for the trier of fact.’” Id. (quoting Morse v. Antonellis, 149

Wn.2d 572, 574, 70 P.3d 125 (2003)). “Further, an appellate court ‘must defer to

the trier of fact for purposes of resolving conflicting testimony and evaluating the

persuasiveness of the evidence.’” Id. (quoting State v. Homan, 181 Wn.2d 102,

106, 330 P.3d 182 (2014)).

A person is guilty of child molestation in the first degree, in pertinent part,

when the person has sexual contact with another who is less than 12 years old

and the perpetrator is at least 36 months older than the victim. RCW 9A.44.083(1).

A person is guilty of child molestation in the second degree when the person has

sexual contact with another who is at least 12 years old but less than 14 years old

and the perpetrator is at least 36 months older than the victim. RCW 9A.44.086(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(13).

2. Additional Factual Background

Starting when R.A.C. was five years old, and from 2010 to 2012, R.A.C. and

her mother lived with Cortez and other family members in an unnamed apartment.

In approximately 2012, Cortez moved out and did not live with R.A.C. and her

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mother for a few years. Then, in 2015, Cortez and his wife moved into the

“Dashpoint apartments” with R.A.C. and her mother. Then, in 2019, they all moved

to a duplex together.

R.A.C. testified that, when she was nine or 10 years old and living in the

Dashpoint apartments with her mother and Cortez, Cortez touched two of R.A.C.’s

body parts. She stated, “We’d be sitting on a couch together watching TV, and he

would slide his hand, like, on my inner thigh. And, yeah, things like that. He would

try to put his hand down my bra.” More specifically, as to the inner thigh, she

testified that Cortez would “palm” R.A.C.’s thigh on top of her clothes and slide his

hand down closer to her vagina, which made R.A.C. uncomfortable. As to the

breast, Cortez would put his hand under R.A.C.’s shirt and try to touch her breast,

stopping right above the nipple before she “stopped him,” by pushing him away.

She testified that Cortez touched R.A.C. in these ways on almost a daily basis.

The State charged this series of touchings in the Dashpoint apartments as count

2.

While there may have been a period of time when Cortez lived elsewhere,

the whole family began to live together again in a duplex when R.A.C. was in fourth

grade. Cortez continued to touch R.A.C., testifying, “it was basically the same

thing. You know, going under my bra and touching my inner thigh.” She testified

that Cortez would try and “give up eventually” after R.A.C. pushed him away. Id.

at 998. The State charged these touchings in the duplex as count 3.

R.A.C. also testified about another incident when she was sweeping the

kitchen, stating that Cortez grabbed her from behind and “pressed himself against”

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her for a few seconds. Cortez pressed himself against her in such a way that

R.A.C. could feel his penis pressed against her buttocks. Cortez did not grab her

in that way again. The State charged this incident as count 4.

3. Discussion

Generally, Cortez argues R.A.C.’s testimony is insufficient to support his

convictions for child molestation. Cortez offers different types of arguments for

counts 2 and 3 than for count 4. We address each type in turn.

As to counts 2 and 3, Cortez argues that there is insufficient evidence to

establish child molestation because the evidence does not prove he touched

R.A.C.’s “intimate parts.” RCW 9A.44.010(13). Cortez further distinguishes

between the touching of R.A.C.’s breasts and her inner thighs, claiming each was

insufficiently intimate in different ways.

As to the breasts, Cortez argues that the evidence does not establish sexual

contact of an “intimate part” because the evidence does not show he actually

touched her nipples and, thus, he only attempted to touch her breasts. Cortez

relies, for example, on R.A.C.’s following statement: “he would try to put his hands

under my bra to touch my boob, but he never really got to really grab it since I

stopped him.”

This argument fails for two reasons. First, Cortez’s argument is factually

incorrect because, as to both counts, Cortez actually did touch R.A.C.’s breasts

because he touched the top of the breasts, just above the nipple. For example,

she testified:

Q: Did you feel his hand touch your skin any lower than that upper

chest area?

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A: Yes.

Q: Where did you feel his hands ultimately get to? How far down did

they get? . . .

A: Above the nipple.. . .

Q: Did you feel his fingers actually underneath your bra?

A: Yes.

Thus, we conclude this touching was sufficient for a rational jury to conclude he

touched an “intimate part” under RCW 9A.44.010(13)).

Second, even if we were to accept his definition of “breast” as consisting

only of the nipple, and thus he only “attempted” to unsuccessfully molest her,

Cortez still touched a body part “in close proximity to the primary erogenous areas”

when he “put his hand down [her] bra.” State v. Powell, 62 Wn. App. 914, 917 n.3,

816 P.2d 86 (1991) (“[t]he term ‘intimate parts’ has been interpreted to have a

broader connotation than sexual and to include ‘parts of the body in close proximity

to the primary erogenous areas . . .’” (emphasis added)); Therefore, the jury had

sufficient evidence to find that Cortez touched her breasts or parts in “close

proximity” thereto.

As to the thighs, Cortez argues that touching R.A.C. on her clothed thigh

does not by itself support the conclusion that child molestation occurred.

Specifically, Cortez argues that, even if the thigh qualifies as “an intimate body

part,” that such “touching does not by itself establish intent for sexual gratification.”

Cortez argues there must be additional proof that the touching was intended for

sexual gratification, such as heavy breathing or a rubbing motion. Cortez also

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asserts that “[t]ouching a grandchild’s thigh over the clothing while watching TV is

not inherently sexual or inappropriate,” particularly when he was engaged in a

“caretaking function.” And, similarly to the argument above, Cortez avers that “any

touching of [R.A.C.’s] thigh was fleeting because [R.A.C.] would push Mr. Cortez’s

hand away.”

Indeed in Powell, this court concluded that a defendant’s touching of a

child’s clothed thighs may be susceptible to an innocent explanation and, without

more, may be insufficient evidence of touching for sexual gratification. 62 Wn.

App. at 918. However, Powell’s requirement for an “additional showing” of sexual

intent expressly excludes touching of erogenous zones and, per above, body parts

“close proximity” thereto. Id. at 917. That is, if the defendant touches those areas,

an additional showing of sexual intent is unnecessary.

Here, R.A.C. testified that when Cortez touched her thigh, he slid his hand

down toward her vagina before she stopped him. We hold that a rational jury could

find that such a touching was close enough to an erogenous zone to be considered

sexually motivated. Gantt, 29 Wn. App. 2d at 441-42. Moreover, Cortez points to

nothing in the record to explain why he would continually touch his granddaughter’s

thigh (or breast) in that manner for caretaking purposes. Viewing the evidence in

a light most favorable to the State, it would not be an irrational inference for a jury

to find Cortez was sexually motivated when doing so.

As to this alleged caretaking function, Cortez further attempts to contrast

this court’s holding in State v. Harstad, 153 Wn. App. 10, 16, 218 P.3d 624 (2009).

Br. of App. at 17. Our decision in Harstad does not bolster Cortez’s argument and,

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in fact, undermines his argument. There, the defendant was convicted of child

molestation for touching his son’s girlfriend’s children’s various parts of their body

when the children slept under blankets. 153 Wn. App. at 16-18. This court held

that “[c]overing a child with a blanket could be seen as caretaking, but it is not the

kind of caretaking that requires close contact with an unrelated child’s intimate

parts. Covering a child with a blanket in order to hide inappropriate touching is,

put simply, not caretaking.” Id. at 23 (emphasis added). Similarly, we hold that

watching television, as it is commonly performed, “is not the kind of caretaking”

that requires close contact with a child’s breasts or inner thighs. Id.; see also State

v. Wilson, 56 Wn. App. 63, 68, 782 P.2d 224 (1989) (“the fact finder may also

consider the circumstantial evidence surrounding the touching.”).

Turning to count 4 (Cortez hugging R.A.C. from behind), Cortez similarly

avers that there is insufficient evidence to show that Cortez touched R.A.C. for the

purpose of sexual gratification. He argues that the “evidence [was] equivocal. It

[was] consistent with Mr. Cortez, a caretaker, merely giving [R.A.C.] a hug from

behind.” This argument is again factually and legally unavailing.

In fact, R.A.C. testified:

A: . . . He was in the living room and he came in

the kitchen. And when I was sweeping, like, he came

behind me and, like, pressed himself against me.

Q: What part of his body did you feel pressed up

against you?

A: I felt his private part. So his -- his penis.

Yeah, that's what I felt, like, pressed against

my butt as I was sweeping.

Q: As you were sweeping. Do you remember about how

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long you felt his penis pressed up against your -- and

you said it was pressed up against your butt?

A: Yes. It was like a few seconds.

The State, not inaccurately, characterizes this testimony as Cortez “press[ing] his

penis into his granddaughter’s clothed buttocks.”

When viewing the evidence in the light most favorable to the State we

conclude that that State’s interpretation of his behavior is one which a rational jury

could reach, which would permit it to conclude that the touching was done for

sexual gratification. Treat, 109 Wn. App. at 426. And, Cortez points to nothing in

the record to support his claim that he was engaged in caretaking of some kind.

Finally, Cortez also argues that counts 2 and 3 are not supported by

sufficient evidence because R.A.C.’s testimony was overly “generic,” i.e., it did not

sufficiently differentiate between specific events. “In sexual abuse cases where

the State alleges multiple acts within the same charging period, the State need not

elect particular acts associated with each count so long as the evidence clearly

delineates specific and distinct incidents of sexual abuse during the charging

periods.” State v. Edwards, 171 Wn. App. 379, 401, 294 P.3d 708 (2012) (quoting

State v. Hayes, 81 Wn. App. 425, 431, 914 P.2d 788 (1996)) (emphasis added).

Here, as will be discussed in further detail below, R.A.C. did testify to a

series of ongoing touchings by Cortez, but the State delineated counts 2 and 3 by

the location and time periods in which they occurred. Namely, in its closing

argument, the State explained that count 2 referred to

the incidents of general touching and repeated touching that

occurred at the Dashpoint Apartments when she was between the

ages of 9 and 10.

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No. 84744-9-I/10

And, the State delineated count 3 as

the repeated and general touching that occurred in the home that

she’s living in now, after she moved out of the Dashpoint Apartment

and into [the duplex] in 2017 where she lived all the way up until her

12th birthday and after.

Moreover, courts apply a three-part test to determine whether a child’s

testimony about repeated sexual touching is “generic,” namely:

First, the alleged victim must describe the kind of act or acts with

sufficient specificity to allow the trier of fact to determine what

offense, if any, has been committed. Second, the alleged victim must

describe the number of acts committed with sufficient certainty to

support each of the counts alleged by the prosecution. Third, the

alleged victim must be able to describe the general time period in

which the acts occurred. The trier of fact must determine whether

the testimony of the alleged victim is credible on these basic points.

Hayes, 81 Wn. App. at 438.

Although there is an overlapping time period in the charging documents, we

conclude R.A.C.’s testimony for counts 2 and 3 is sufficiently specific because (1)

she described the acts specifically by describing how he touched her breasts and

thigh, (2) she described the acts as almost “daily” whenever they watched

television, and (3) she described the general time period in which the acts occurred

demarcated both by her age and her location of residence at the time.

In short, we hold that there was sufficient evidence to persuade a rational

jury that Cortez committed the essential elements of the crime beyond a

reasonable doubt. Gantt, 29 Wn. App. 2d at 441-42. 2

2 Cortez filed a statement of additional grounds (“SAG”), in which he appears also

to argue that the trial court did not support its verdict with substantial evidence,

stating “the prosecutor only accused me and did not give any evidence or dates,”

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B. Testimony of Two Prior Un-Charged Incidents

1. Additional Factual Background

Before trial, the court granted the State’s motion to admit R.A.C.’s testimony

about two uncharged incidents where Cortez touched her. In the first incident,

R.A.C. testified:

I remember I was around 10. But he wasn’t living with us at the time,

he was living . . . [in] a little cabin outside in his friend’s yard . . . But

I remember -- I don’t exactly remember what he did or tried to do.

But we were left alone in the little cabin, and I remember telling him

that if he did that one more time, I would have called the police.

When asked how Cortez responded to that statement, R.A.C. testified that Cortez

“told me that he was just joking. He was just playing around.”

In the second incident, R.A.C. testified:

I’m pretty sure my grandma sent [Cortez] to get a diaper for my little

brother. And when he went up there, I was there on my mom’s bed

sleeping, and he went onto the bed and laid on me. He put his whole

weight on me and he kissed me on the lips and I pushed him off and

that’s when he left back downstairs.

Cortez objected to the admission of this testimony, arguing the State offered

this testimony simply to show Cortez’s lustful disposition toward R.A.C., contrary

to State v. Crossguns, 199 Wn.2d 282, 505 P.2d 529 (2022). Cortez further argued

and that no one “gave her an exam” (presumably, referring to R.A.C.). Without

citing any evidence in the record, Cortez also seeks to undermine unnamed

witnesses’ credibility, claiming “that the people accusing me have filed to legalize

their status in the USA and used me to do so.” Viewing the evidence in the light

most favorable to the State, as we must, a rational trier of fact could find R.A.C.

and (as we will discuss below) Cortez’s wife’s testimony credible and sufficient to

sustain the verdicts. Treat, 109 Wn. App. at 426. Further, Cortez’s questioning of

some witnesses’ alleged motives in testifying is rankly conclusory and not sufficient

to meet his burden to show a jury could not have rationally based its verdict on the

totality of the evidence. Cortez makes no other cogent arguments. Thus, his SAG

fails.

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No. 84744-9-I/12

that, even if there was some proper purpose for this evidence, its admission was

still substantially outweighed by the unfair prejudice to him. The court found that

“the probative value . . . goes to intent . . .[,] that he was put on notice and that

behavior continued . . . [a]nd [to] the absence of mistake.”

2. Discussion

“Evidence 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.’” Gantt, 29 Wn. App. 2d at 446

(quoting ER 404(b)).

We assume, without deciding, that R.A.C.’s testimony of regarding these

two uncharged incidents are “other” wrongs or acts which the trial court had no

proper purpose for which to admit them under ER 404(b). But, we conclude that

the trial court’s admission of these acts was harmless, for four reasons.

“In analyzing the erroneous admission of evidence in violation of ER

404(b), we apply the nonconstitutional harmless error standard.” State v.

Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). The nonconstitutional

harmless error standard “asks whether ‘within reasonable probabilities, had the

error not occurred, the outcome of the trial would have been materially affected.’”

State v. Bartch, 28 Wn. App. 2d 564, 575, 537 P.3d 1091 (2023), review denied,

544 P.3d 29 (2024) (quoting Gunderson, 181 Wn.2d at 926). “The improper

admission of evidence constitutes harmless error if the evidence is of minor

significance in reference to the overall, overwhelming evidence as a whole.” Id. at

575 (citing Thien Lunh Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086

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(1994)). “In assessing whether the error was harmless, we must measure the

admissible evidence of [the defendant’s] guilt against the prejudice, if any, caused

by the inadmissible testimony.” State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d

1120 (1997).

First, we conclude that the potential prejudice caused by this arguendo

inadmissible testimony is of minor significance when measured against the

admissible evidence of Cortez’s guilt. As reviewed above, R.A.C.’s testified to

repeated, regular touchings over a period of nearly seven years. R.A.C. described

in significant detail the potentially hundreds of incidents of “daily” improper

touchings, in a manner which identified clearly the body parts touched and which

delineated the time and place of the assaults. In contrast, she described the two

one-time incidents briefly and vaguely, in terms of the kind of touching that

occurred (in the cabin) or when and where it occurred (in the bedroom). Indeed,

R.A.C. testified that the incident in the bedroom was the only time Cortez laid on

her and kissed her lips. In short, the breadth and specificity of R.A.C.’s admissible

testimony supporting Cortez’s guilt overwhelmed the potential prejudice of her

arguendo inadmissible testimony.

Further, the jury heard testimony from Cortez’s wife who confirmed she was

aware of R.A.C.’s allegations and chastised him as follows:

Q. Ms. Garcia, when you told Mr. Cortez what [R.A.C.] had told you

about what happened in [her daughter’s] apartment, what do you

remember telling him?

A. What I said to my husband?

Q. Yes.

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No. 84744-9-I/14

A. Well, I call her Tweedy and I told him that Tweedy said that

someone touched her at night. So I told him -- I told him, you know,

you can’t go around doing things like that because here it’s a very

dangerous country and you -- you can’t do things like that here. So

I said that to him and he said, I – I wouldn’t be able to do that.

Q. Now, when you said you told him that, you told him that you can’t

go around doing things like that here, did you mean like here as in

the United States?

A. Yes.

(Emphasis added).

When confronted with this evidence at trial, Cortez simply denied ever

touching R.A.C. In fact, Cortez categorically denied ever being alone watching

television with R.A.C. He also denied that his wife asked him if he touched R.A.C.

Cortez otherwise put on no substantive defense.

When considering the breadth of R.A.C.’s “detailed” testimony, “the jury’s

opportunity to assess [Cortez’s] credibility,” and the “damning” nature of his wife’s

admissible testimony, we cannot say, with any reasonable probability, that the

admission of R.A.C.’s arguendo inadmissible limited testimony would have

materially affected the outcome of the trial had they been excluded. State v.

Gresham, 173 Wn.2d 405, 425, 269 P.3d 207 (2012).

Second, unlike in Bartch, the State did not frame its theory around Cortez

having an uncontrollable sexual attraction to R.A.C. throughout the trial. 128 Wn.

App. 2d at 576. The State did not even refer to either incident in its closing

argument, unlike in Bartch, where prior incidents of sexual touching were a focal

point of the State’s overall theory. Id. Instead, the State emphasized the daily and

“repeated” touchings at the Dashpoint apartment, the duplex, and (as to count 4)

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the incident where Cortez pressed himself against her from behind. These facts

further undermine the possibility that the admission of these two incidents

materially affected the outcome.

Third, the jury found Cortez guilty of counts 2 through 4, but found him not

guilty of count 1, another incident of unwanted touching that R.A.C. testified to.

The jury’s findings show that the two uncharged incidents were not so prejudicial

that they affected the entire verdict. In that way, that evidence was of minor

significance, both to guilt and non-guilt. Nghiem, 73 Wn. App. at 413.

Fourth, after the State rested, the State suggested that the court give a

limiting instruction regarding these incidents. The proposed instruction to the jury

stated:

You may have heard evidence concerning alleged misconduct by the

defendant, that the State alleges occurred during the time period

when the charged incidents were alleged to have been committed.

Such evidence may only be considered by you to the extent that you

find it relevant to the issues of intent and opportunity it is not to be

considered by you for any other purpose.

11 WASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS:

CRIMINAL 5.30 cmt. (5th ed. 2021).

Cortez declined the instruction, stating, “Your honor, I don’t agree that this

instruction should be given at this point. I think that it’s too vague to be helpful to

the jury with respect to what specific evidence is being discussed.” Had his

counsel considered in real time that this arguendo inadmissible testimony was so

prejudicial that it would have affected the outcome of the trial, it would have been

unlikely that Cortez would have declined an instruction without offering a more

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specific alternative. 3 This fact too then supports our conclusion that the testimony

was of minor significance as compared to the admissible evidence.

In short, we conclude that it is not reasonably probable that the admission

of the two incidents materially affected the outcome of the trial. Bartch, 28 Wn.

App. 2d at 575. Ultimately, they were of minor significance compared to the

overall, overwhelming evidence as a whole. Nghiem, 73 Wn. App. at 413.

C. Double Jeopardy

1. Law

“The constitutional guaranty against double jeopardy protects a defendant .

. . against multiple punishments for the same offense.” State v. Reedy, 26 Wn.

App. 2d 379, 387, 527 P.3d 156 (2023), review denied, 534 P.3d 798 (2023)

(quoting State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)); U.S. CONST.

amend. V; W ASH. CONST. art. I, § 9. “However, ‘[i]f one crime is over before another

charged crime is committed, and different evidence is used to prove the second

crime, then the two crimes are not the ‘same offense’ and a perpetrator may be

punished separately for each crime without violating a defendant’s double jeopardy

rights.’” Id. (quoting Noltie, 116 Wn.2d at 848).

“A so-called ‘separate and distinct’ jury instruction is one where the court

3 That said, we do believe that the trial court should have issued a limiting

instruction for both incidents and, as Cortez’s counsel accurately stated, “it’s most

appropriate to ask for the limiting instructions to be given around the time that that

testimony comes in, as it allows the jury to contextualize what’s coming before it

or immediately thereafter.” “Although it is usually preferable to give a limiting

instruction contemporaneously with the evidence at issue, it is within a trial court’s

discretion to choose instead to give a limiting instruction at the close of all of the

evidence.” State v. Ramirez, 62 Wn. App. 301, 304, 814 P.2d 227 (1991). Neither

occurred here, though that fact is not dispositive of our analysis.

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informs the jury that each crime requires proof of a different act.” Id. (citing State

v. Mutch, 171 Wn.2d 646, 663, 254 P.3d 803 (2011)). “In other words, a separate

and distinct instruction informs the jury that, to convict, ‘one particular act has [to

be] proved beyond a reasonable doubt for each count.’” Id. at 387-88 (quoting

Mutch, 171 Wn.2d at 663). “Where jury instructions are ‘lacking for their failure to

include a “separate and distinct” instruction’ they may be flawed.” Id. at 388

(quoting Mutch, 171 Wn.2d at 663) (emphasis added). “‘However, flawed jury

instructions that permit a jury to convict a defendant of multiple counts based on a

single act do not necessarily mean that the defendant received multiple

punishments for the same offense; it simply means that the defendant potentially

received multiple punishments for the same offense.’” Id. (quoting Mutch 171

Wn.2d at 663) (some emphasis added).

“Our Supreme Court has ‘disapproved’ of the Court of Appeals looking only

at the jury instructions and conducting no further inquiry into the record.” Id.

(quoting Mutch 171 Wn.2d at 663-64). “On review, the court may consider

insufficient instructions ‘in light of the full record’ to determine if the instructions

‘actually effected a double jeopardy error.’” State v. Peña Fuentes, 179 Wn.2d

808, 824, 318 P.3d 257 (2014) (quoting Mutch, 171 Wn.2d at 661-63). “This court

has refused to find error when it is ‘manifestly apparent to the jury that each count

represent[s] a separate act.’” Id. at 824 (quoting Mutch, 171 Wn.2d at 665-66).

Three cases illuminate the concept of “manifestly apparent.”

In Mutch, our Supreme Court concluded the jury instructions and the

manner in which the facts were presented at trial violated the double jeopardy

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clause because the instructions “failed to include sufficiently distinctive ‘to convict’

instructions” for each rape count, and the counts were “nearly identical, including

that they all indicated the same time of occurrence of the criminal conduct,

between ‘the 2nd day of February, 1994 and the 3rd day of February, 1994.’” 171

Wn.2d at 662.

Conversely, in Peña Fuentes, our Supreme Court found it was manifestly

apparent the multiple convictions were based upon separate acts because the

State, in closing argument, “made a point to clearly distinguish between the acts

that could constitute rape of a child and those that would constitute child

molestation.” 179 Wn.2d at 825. The court held that the manifestly apparent

standard is satisfied when, in closing argument, the State identifies specific acts

and identifies them as separate and distinct from each other. Id.

Similarly, in State v. Daniels, in its presentation of the evidence, “the State

distinguished between different geographic locations (Seattle and Tacoma) and

between different time periods (before and after Daniels knew the victim was

underage) to support convictions for two separate charges.” 183 Wn. App. 109,

119, 332 P.3d 1143 (2014). And the State reiterated the same in its closing

argument. Id.

“Double jeopardy challenges are reviewed de novo.” Reedy, 26 Wn. App.

2d at 389 (quoting Mutch, 171 Wn.2d at 661-62).

2. Discussion

Cortez argues that the jury instructions did not make clear that the acts

underlying each count had to be considered separately from each other count.

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Specifically, he avers the court’s “separate and distinct” instructions distinguished

each count only from a single other count (e.g., 1 from 2, and 3 from 4), but not

from all the other counts (e.g., 2 from 3). 4 This failure meant that a jury rightly

would not convict him of counts 1 and 2 for the same act (and thus there was no

double jeopardy concerns between the same degree of charges), but the jury could

have convicted on counts 2 and 3 for same act, violating his double jeopardy rights.

And, Cortez argues the failure to distinguish between the charges was

aggravated by the overlap between the charging periods for each count.

Relevantly, the charging period for counts 1 and 2 (child molestation in the first

degree) overlapped with the charging period for counts 3 and 4 (child molestation

in the second degree) by one month, i.e., when it required the jury to find:

That the defendant . . . on or about the period between April 17, 2012

and April 16, 2019 . . . had sexual contact for the purpose of sexual

gratification, with R.A.C.

(counts 1 and 2)

That the defendant . . . on or about the period between April 17, 2018

and December 16, 2019 . . . had sexual contact for the purpose of

sexual gratification with R.A.C.

(counts 3 and 4)

(emphasis added).

The State acknowledges that the instructions made it possible that the jury

4 For example, the to-convict instruction for count 3 read: “To convict the defendant

of the crime of child molestation in the second degree in count 3 each of the

following elements of the crime must be proved beyond a reasonable doubt: (1)

That on or about on or about the period between April 17, 2018 and December 16,

2019, on an occasion separate and distinct from Count 4, the defendant had sexual

contact with R.A.C.” (Emphasis added). Thus, if it followed this instruction, a jury

would not convict Cortez for same act on counts 3 and 4, but could convict him for

the same acts for counts 2 and 3, as the instruction is silent between those counts.

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could convict Cortez for “counts two, three, and four, based on only two separate

instances of molestation.” But, the State argues it was “manifestly apparent” to the

jury that every single incident of child molestation the State charged was a

separate and distinct offense because (1) the State made this clear in its closing

argument, (2) other instructions further clarified the separate and distinct nature of

the incidents, and (3) Cortez himself presented the charges similarly. We agree.

First, in its closing argument, the State described each charge as a singular,

separate event:

[E]very single incident of child molestation that has been charged is

a separate and distinct offense . . . each offense charged goes to a

specific incident.

And the State added:

For count number two, we’re talking about the incidents of general

touching and repeated touching that occurred at the Dashpoint

apartments when she was between the ages of 9 and 10.

For count number three, again, we’re talking about the repeated and

general touching that occurred in the home that she’s living in now,

after she moved out of the Dashpoint Apartment and into her home

in 2017 where she lived all the way up until her 12th birthday and

after.

And for count four, specifically, we’re talking about the incident that

she told us about where she was sweeping and she felt her

grandfather come up behind her and press his penis against her

body.

(Emphasis added). 5 Thus, we conclude that in fact the State’s closing argument

5 Cortez also argues that the court’s error was compounded because the State did

not clearly “disclaim” reliance on other acts when it delineated which acts it would

rely on for each count. However, no authority requires the State to disclaim each

count in a particular manner. In State v. Carson, our Supreme Court concluded

that the State sufficiently elected different counts when the State informed the jury

in closing argument it only wanted to focus on a few events of child molestation.

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No. 84744-9-I/21

“made a point to clearly distinguish between the acts that” constituted each of the

three charges. Peña Fuentes, 179 Wn.2d at 825.

The court further advised the jury that the State had charged each crime in

a separate count and instructed them to decide each count separately and

distinctly, stating:

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.

And, the court instructed the jury that it must arrive at its verdict unanimously,

stating:

To convict the defendant on any count of child molestation in the

second degree, one particular act of child molestation in the second

degree must be proved beyond a reasonable doubt, and you must

unanimously agree as to which act has been proved. You need not

unanimously agree that the defendant committed all the acts of child

molestation in the second degree.

While we are not suggesting these instructions alone would address a double

jeopardy challenge, we do not consider these instructions in isolation but must view

them “in light of the full record.” Peña Fuentes, 179 Wn.2d at 824 (quoting Mutch,

171 Wn.2d at 661-63).

Finally, at trial, Cortez did not challenge the number of incidents or whether

R.A.C. remembered when or where Cortez touched her. Rather, Cortez generally

challenged R.A.C.’s credibility and asked the jury to weigh it against that of Cortez.

Also, Cortez did not challenge how the State elected which act or acts

184 Wn.2d 207, 229, 357 P.3d 1064 (2015). The court held only that the State “in

some way” must disclaim its intention to rely on other acts. Here, as there, the

State implicitly disclaimed its reliance on some acts by affirmatively specifying

which acts it was relying upon.

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No. 84744-9-I/22

corresponded with each charge. On the contrary, in closing, Cortez also referred

to each count by its corresponding event such as “two breast grabbing charges,

which are counts two and three,” and “this other incident where she says she was

sweeping the floor.” Thus, Cortez contributed to making it manifestly apparent to

the jury that “the State distinguished between different geographic locations . . .

and between different time periods . . . to support convictions for . . . separate

charges.” Daniels, 183 Wn. App. at 118.

Therefore, we do not find error because, when viewed in “light of the full

record,” it was manifestly apparent to the jury that each count represented a

separate act. Peña Fuentes, 179 Wn.2d at 825 (citing Mutch, 171 Wn.2d at 665-

66).

D. Conditions of Community Custody

We review community custody conditions for an abuse of discretion. State

v. Johnson, 197 Wn.2d 740, 744, 487 P.3d 893 (2021) (citing State v. Bahl, 164

Wn.2d 739, 753, 193 P.3d 678 (2008)). “A trial court necessarily abuses its

discretion if it imposes an unconstitutional community custody condition.” State v.

Wallmuller, 194 Wn.2d 234, 238, 449 P.3d 619 (2019) (citing Bahl, 164 Wn.2d at

744). In such a case, “[i]ssues of statutory interpretation and constitutional law are

reviewed de novo.” State v. Cornwell, 190 Wn.2d 296, 300, 412 P.3d 1265 (2018).

1. Home Searches (Condition 8)

Cortez argues that condition 8, requiring he consent to home searches, is

unconstitutionally overbroad and violates his right to privacy. The State responds

that the claim is not ripe. We agree with the State.

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Our Supreme Court addressed the ripeness of an appeal of a CCO search

condition of community custody in State v. Cates, 183 Wn.2d 531, 354 P.3d 832

(2015). There, the contested condition “require[d] Mr. Cates to ‘consent’ to

searches by his CCO, merely upon the CCO’s request, without specifying that the

search must be based on reasonable cause.” Cates, 183 Wn.2d at 535. The court

considered whether further factual development was required and the risk of

hardship to Cates if it declined to address the merits of his challenge at the time.

Id. The condition at issue was “limited to that needed to monitor Cates’ compliance

with supervision.” Id. The court concluded it could only examine the merits of

Cates’ claim if the State attempted to enforce the condition after Cates’ release

from confinement. Id. Thus, it was not ripe for a review on the merits. Id. at 536.

Conversely, in Reedy, we concluded that a similar condition requiring

searches was ripe for review because the trial court “required” Reedy to “submit”

to home visits rather than “consent” to them. State v. Reedy, No. 83039-2-I, slip

op. at 25, (Wash. Ct. App. April 10, 2023) (published in part),

https://www.courts.wa.gov/opinions/pdf/830392.pdf. 6 That is, in Reedy, the

condition was ripe for review because the court made abundantly clear that Reedy

must comply with home visits regardless of any further factual development

including whether there was any evidence Reedy was violating any condition of

6 “Washington appellate courts should not, unless necessary for a reasoned

decision, cite or discuss unpublished opinions in their opinions.” GR 14.1(c).

“However, unpublished opinions of the Court of Appeals filed on or after March 1,

2013, may be cited as nonbinding authorities, if identified as such by the citing

party, and may be accorded such persuasive value as the court deems

appropriate.” GR 14.1(a). We cite to the unpublished portion of State v. Reedy

because it is the portion of the opinion that Cortez refers to in his reply brief.

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No. 84744-9-I/24

custody. The trial court said:

There’s another [condition] that says you must consent to DOC home

visits, but I’m going to change that, because I don’t care if you

consent or not. You must submit to DOC home visits to monitor your

compliance with supervision . . . on the sentencing form the court

crossed out “consent” . . . and wrote “submit.”

Reedy, No. 83039-2-I, slip op. at 25 (emphasis added). This court compared the

condition imposed on Reedy with that in Bahl. We concluded that the challenge in

Reedy, as in Bahl, was ripe for review because the conditions would take effect as

soon as he was released. Id.

But Cortez’s circumstances differ because the condition is not specific

enough to indicate what circumstances may later be present to justify (or not) the

search. Here, the relevant condition the court imposed upon Cortez was that he

must:

Consent to DOC home visits to monitor compliance with supervision.

Home visits include access for the purposes of visual inspection of

all areas of the residence in which the offender lives or has

exclusive/joint control/access.

The trial court otherwise did not elaborate on the nature or implementation of this

condition when it imposed it.

We conclude that this case is closer to Cates than to Reedy or Bahl and

hold that the condition as applied to Cortez is not ripe for review. As in Cates, the

condition does not require Cortez to take a specific action upon release to comply.

183 Wn.2d at 536. We further hold that the condition is otherwise constitutional

because, as in Cates, the State’s authority is limited to what is necessary “to

monitor [Cortez’s] compliance with supervision.” Id. at 535; see also Cornwell, 190

Wn.2d at 303-04 (an individual’s privacy interest [in their home] can be reduced

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No. 84744-9-I/25

“only to the extent necessitated by the legitimate demands of the operation of the

[community supervision] process.”). Thus, Cortez’s claim is not ripe and “does not

suffer a significant risk of hardship” if we decline to review the merits of any

enforcement of condition 8 at a later time. Cates, 183 Wn.2d at 536.

2. Drug and Alcohol Testing (condition 10)

The court required Cortez to submit to alcohol and drug testing.

Specifically, condition 10 required Cortez to “[b]e available for and submit to

urinalysis and/or breathanalysis upon the request of the CCO and/or chemical

dependency treatment provider.” Cortez argues that condition 10 must be stricken

because it is not crime-related under RCW 9.94A.703(3)(f). 7 We disagree.

A court must impose (unless it waives) a prohibition on the use of controlled

substances. RCW 9.94A.703(2)(c). In contrast, a court may order an offender, as

a “discretionary” condition, to not possess or consume alcohol. RCW

9.94A.703(3)(e). Additionally, the court may, as a “discretionary” condition, require

an offender to comply with any “crime-related condition.” RCW 9.94A.703(3)(f).

And a

“[c]rime-related prohibition” means an order of a court prohibiting

conduct that directly relates to the circumstances of the crime for

which the offender has been convicted, and shall not be construed

7 In his reply, he argues for the first time that “the drug testing condition is unlawful

because it is unconstitutional to impose it under these circumstances,” citing to two

unpublished cases, including State v. Rosales, No. 57463-2-II (Wash. Ct. App.

Mar. 12, 2024) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2057463-2-

II%20Unpublished%20Opinion.pdf. (Emphasis added). And he nowhere argues

it was a manifestly unconstitutional. RAP 2.5(a). Even if he had, we will not

consider such arguments raised for the first time on reply, as it is too late to warrant

consideration. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828

P.2d 549 (1992). We consider this claim only as a statutory challenge.

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No. 84744-9-I/26

to mean orders directing an offender affirmatively to participate in

rehabilitative programs or to otherwise perform affirmative conduct.

However, affirmative acts necessary to monitor compliance with the

order of a court may be required by the department.

RCW 9.94A.030(10) (emphasis added).

Nothing in the record indicates that consumption of alcohol or drugs

contributed to Cortez’s convictions for child molestation in the first or second

degree. But the State does not claim the conditions are crime-related. Instead,

the State claims the condition is a general exercise of the Department of

Corrections’ monitoring powers under RCW 9.94A.703(2)(c) and (3)(e). The State

is correct.

While nothing indicates that either alcohol or drugs are related to Cortez’s

crimes, the court is required to impose (and is thus justified in imposing) a

controlled substance prohibition unless it specifically waives it under RCW

9.94A.703(2)(c). See State v. Vant, 145 Wn. App. 592, 604, 186 P.3d 1149 (2008).

Therefore, we conclude the sentencing court did not abuse its discretion by

imposing testing for drugs.

As to the testing for alcohol consumption, the conditions imposed are

statutorily left to the broad discretion of the judge regardless of whether such abuse

or use is actually crime-related. RCW 9.94A.703(3)(e). And Cortez points to

nothing in the record to establish the trial court abused its discretion in a “manifestly

unreasonable” manner when imposing a restriction on alcohol consumption

grounded in statutory authority. Bahl, 164 Wn.2d at 753. In turn, “it follows . . .

that the trial court’s imposition of random urinalysis . . . tests to ensure compliance

with its conditions does not constitute an abuse of discretion, and the condition

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No. 84744-9-I/27

should remain.” Vant, 145 Wn. App. at 604.

3. Restrictions on Romantic and Dating Relationships (condition 5)

Condition 5 requires Cortez to:

Inform the supervising CCO and sexual deviancy treatment provider

of any dating relationship. Disclose sex offender status prior to any

sexual contact. Sexual contact in a relationship is prohibited until the

treatment provider approves of such.

Cortez argues the condition is invalid because it is not crime-related and it

interferes with his constitutional right to marry and to “engage in sexually intimate

activity with another person within the home.” He also argues the condition hinders

his constitutional right to freedom of speech, including “the right not to speak the

State’s message” by disclosing his status as a sex offender.

We reviewed a similar condition of community custody in Gantt, recounting:

This condition contains three parts. It requires Gantt to (1) inform the

supervising community corrections officer (CCO) of any “dating

relationship,” (2) disclose his sex offender status prior to any sexual

contact, and (3) receive approval from his treatment provider before

engaging in any sexual contact.

Gantt, 29 Wn. App. 2d at 455-56.

“[T]his court has upheld [similar] disclosure requirements as they protect

individuals ‘by providing them with knowledge of the potential risk he presents to

minors’ and [to] ‘make it possible for [the] CCO and treatment provider to take

whatever additional steps . . . to protect anyone embarking on a dating or sexual

relationship with [the offender].’” Id. at 456-57 (some alterations in original)

(quoting In Re Pers. Restraint of Sickels, 14 Wn. App. 2d 51, 60-61, 469 P.3d 322

(2020)). “The requirement for treatment provider approval is ‘common for sexual

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No. 84744-9-I/28

offenders’ as ‘the offender’s freedom of choosing even adult sexual partners is

reasonably related to their crimes because potential romantic partners may be

responsible for the safety of live-in or visiting minors.’” Id. (quoting Sickels, 14 Wn.

App. 2d at 61). Accordingly, we conclude Cortez’s challenge fails.

E. Legal Financial Obligations

Cortez argues that we should remand to strike the DNA fee and Victim

Penalty Assessment (VPA). The State does not object to a limited remand for this

purpose.

In 2023, our legislature amended RCW 7.68.035 to state that “[t]he court

shall not impose the penalty assessment under this section if the court finds that

the defendant, at the time of sentencing, is indigent as defined in RCW

10.01.160(3).” LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(4). Further, courts now

are statutorily required to waive VPAs, even those imposed prior to the 2023

amendments, on the defendant’s motion. Id.; RCW 7.68.035(5)(b).

Similarly, our legislature also amended statutes governing DNA collection

fees, eliminating the fee for all defendants. LAWS OF 2023, ch. 449, § 4. Further,

courts are required to waive any DNA collection fee imposed prior to the 2023

amendments, on the offender’s motion. Id.; RCW 43.43.7541(2).

Here, the court imposed a fee of $500 for the VPA and of $100 for a DNA

collection fee in December 2022. But, the court also found that Cortez was

indigent. In State v. Ellis, this court determined that, although the fees were

imposed prior to the effective date of these amendments, “it applies to Ellis

because this case is on direct appeal.” 27 Wn. App. 2d 1, 16, 530 P.3d 1048

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No. 84744-9-I/29

(2023). Similarly, even though Cortez’s restitution was set in 2022, RCW

9.94A.753(3)(b) is effective because his case is on direct appeal.

Thus, we accept the State’s concession and remand this matter to the court

to strike the VPA and DNA fees.

III. CONCLUSION

We affirm each of Cortez’s convictions and each condition of community

custody, but remand this matter to the trial court solely to strike the VPA and DNA

fees.

WE CONCUR:

29