State v. Duenas

STATE OF WASHINGTON, Respondent, v. JONATHAN PEREZ DUENAS, Appellant.

No. 48119-7-II

Court of Appeals of Washington, Division 2

August 8, 2017

UNPUBLISHED OPINION

ORDER DENYING MOTION FOR RECONSIDERATION AND AMENDING OPINION

APPELLANT Jonathan Duenas moved this court to reconsider its June 13, 2017 opinion and reverse his convictions. After consideration, we deny the motion but amend the opinion in part as follows.

It is hereby ORDERED that on page 22, paragraph 1, the following text shall be deleted:

However, as discussed above, Heather did not expressly state that she believed HA. and K.L. were telling the truth or that Duenas was guilty.

The following language shall be inserted in its place:

As discussed above, Heather did not directly state that she believed HA. and K.L. were telling the truth. Moreover Heather's testimony did not infer Duenas's guilt and was not an opinion on the accuracy of H.A.'s and K.L.'s disclosures.

WORSWICK, J.

Jonathan Perez Duenas appeals his convictions and sentence for one count of first degree child rape, two counts of first degree child molestation, and one count of third degree child molestation. Duenas argues that (1) the trial court erred by admitting improper opinion testimony regarding (a) H.A.'s and K.L.'s ^[1] credibility and (b) Duenas's guilt (2) the prosecutor committed misconduct by (a) eliciting improper opinion testimony, (b) arguing facts not in evidence, (c) making improper appeals to the jury's passions and prejudices, (d) vouching for H.A.'s and K.L.'s credibility, and (e) disparaging defense counsel (3) his defense counsel was ineffective for (a) failing to object to impermissible opinion testimony, (b) failing to renew his child hearsay objection, and (c) failing to object to the prosecutor's misconduct; (4) the cumulative effect of the trial court's errors deprived him of a fair trial; (5) Duenas's convictions violated the prohibition against double jeopardy; (6) the trial court erred by imposing a sentence that exceeded the statutory maximum term; and (7) the trial court erred by ordering plethysmograph testing and prohibiting him from entering into a relationship with persons who have minor-aged children. The State concedes that Duenas's convictions violated the prohibition against double jeopardy, his sentence exceeded the statutory maximum, and imposition of plethysmograph testing was improper.

In his statement of additional grounds (SAG), Duenas claims the prosecutor committed misconduct by (1) bolstering H.A.'s credibility, (2) making improper appeals to the jury's passions and prejudices, (3) disparaging defense counsel, (4) minimizing the State's burden of proof, and (5) misrepresenting the role of the jury.

We accept some of the State's concessions and hold that the trial court imposed a sentence exceeding the statutory maximum and abused its discretion in ordering plethysmograph testing. But we reject Duenas's remaining arguments and the State's concession that Duenas's convictions violated the prohibition against double jeopardy. Accordingly, we affirm Duenas's convictions but remand for the trial court to amend the community custody term and to strike the plethysmograph testing community custody condition.

FACTS

I. Background

In 2013, K.L. told her mother, Heather, ^[2] that Heather's fiance, Duenas, had been touching both her and her sister, H.A. At the time of K.L.'s disclosure, K.L. was 14 years old, and H.A. was nine years old. Heather contacted police, and the State charged Duenas with first degree child rape of HA. (count I), ^[3] first degree child molestation of HA. (count II), ^[4] first degree child molestation of HA. (count III), ^[5] and third degree child molestation of K.L. (count IV).^[6]

At a pretrial hearing regarding the admissibility of H.A.'s hearsay statements, the State asked Heather if there had been any major issues between H.A. and Duenas. Heather answered in the negative. The State continued:

[THE STATE]: How did you start the conversation?

[HEATHER]: I-I said, [H.A.], is there anything that you would like to tell me?

And she goes, No. And I said, Well, let me make this easy for you. I said your sister has already told me something that I think is really important that you should probably tell me.

[THE STATE]: All right. And how did she respond?

[HEATHER]: And she started crying.

[THE STATE]: And do you recall what was said next?

[HEATHER]: I-she told me-I said, Is there anything you want to tell me? And she started crying. . . . And then she-she told me that he had been touching her.

1 Verbatim Report of Proceedings (VRP) at 35-36. Duenas objected to the admission of H.A.'s hearsay statements, arguing that H.A. had a motive to lie.^[7]

The trial court ruled that H.A.'s hearsay statements would be admissible at trial because they met the Ryan^[8] factors and provided sufficient indicia of reliability. The court stated that it did not "see a strong enough argument for a motive to lie" because H. A. reluctantly told Heather and K.L. about the abuse. 1 VRP at 55. The trial court also determined that H.A.'s accounts of the abuse were consistent and noted that Heather had avoided making suggestive answers when she talked to H. A.

II. Trial

At trial, H. A. testified that Duenas had touched her genitals and digitally raped her on the same day. H.A. also testified that Duenas touched her genitals on one other occasion.

Heather also testified at trial. In describing the day she first asked H.A. about the sexual assault allegations, she stated that she "just said, You know, is there anything you would like to tell me? . . . Your sister has already told me some things, and I just want to make sure that they're true." 2 VRP at 128. Heather continued:

So I said, Let me make this easy on you. I was, like, [K.L.] told me that [Duenas] had been touching you. And I was, like, Is that true? And she said-I said, Is there anything you want to tell me? And she said, No. And then she is, like, Yeah.

2 VRP at 128. Duenas did not object. Heather later testified that H.A. had a "really bad attitude problem" in the months leading up to the sexual assault allegations and that H.A. mostly directed her attitude toward Duenas. 2 VRP at 138. Duenas did not object.

On cross-examination, Duenas asked Heather, "[H.A. and K.L. are] good kids and they do the right thing most of the time . . . isn't that true? But they do lie on occasion." 2 VRP at 158. Heather responded in the affirmative. On redirect, the following exchange took place:

[THE STATE]: Defense counsel asked if they would occasionally not be completely honest as kids, correct?

[HEATHER]: Correct.

[THE STATE]: And they've told a fib or two in their day?

[HEATHER]: Yeah.

[THE STATE]: Okay. Now, if they would be not forthcoming with you, would it be about smaller stuff or would it be about a massive issue like this?

[HEATHER]: I think it would be a smaller-I-something like this is not something that's just made up or something that they're going to lie about. It's-I mean, I can tell, especially when my kids are, like, Well we weren't going to tell you, but-you know what I mean? Like, it's not something that's just-yeah. I don't know how to explain it.

2 VRP at 159-60. Duenas did not object. Duenas testified in his defense and denied H.A.'s and K.L.'s allegations.

At the close of trial, the trial court instructed the jury that "[y]ou are the sole judges of the credibility of each witness. You are also the sole judges of the value or weight to be given to the testimony of each witness." Clerk's Papers (CP) at 20. The jury was also instructed that "[a] separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on the other count." CP at 26. Additionally, the trial court instructed the jury that sexual intercourse included penetration by any object, including a body part, and that "sexual contact" means "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party." CP at 32.

During closing argument, the State argued:

The defendant raped and molested his soon-to-be stepchildren. ... A lot of us go through our daily routines and our daily lives and we don't deal with child sex abuse or don't face it. And that's a very good thing. It would not be a good society, if we were all dealing with that on a daily basis.

And it's hard when you're faced with it. And it's hard when you're faced with it not in the abstract. It's easy to sit there and say, I recognize that this happens. It's easy to say that in the abstract. But when it's right there in front of you and you've gotten to know a child because they've testified in front of you, it's not easy to sit there and fully comprehend that that child has had that happen to them.

And that's actually one of the challenges in prosecuting these cases. . . . We have the obvious hurdle, that we need to prove our case beyond a reasonable doubt.

But we also need 12 people to accept that this really did happen. And that's a hard thing to do.

But the unfortunate reality is that this stuff happens. It happens to kids every day and it happened to [K.L.] and it happened to [H.A.]. And it happened to them at the hands of the defendant.

4 VRP at 386-87. Duenas did not object.

The State continued and noted that one count of first degree child rape and two counts of first degree child molestation pertained to H.A.; the remaining third degree child molestation count related to K.L. In discussing the charges related to H.A., the State argued:

Now, both Counts 1 and 2 deal with the same incident, so I want to be clear on that. So [H. A.] described two incidents. The first incident, which involved the defendant putting his

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