State Of Washington, V. Adam Ezra Paris ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 85912-9-I
Respondent,
v. UNPUBLISHED OPINION
ADAM EZRA PARIS,
Appellant.
BOWMAN, J. — Adam Ezra Paris appeals his jury convictions for two
counts of rape of a child in the first degree and two counts of child molestation in
the first degree. Paris argues that insufficient evidence supports his conviction
for one count of child molestation. He also argues that the trial court erred by
giving an “abiding belief” reasonable doubt jury instruction and concluding that
Paris opened the door to prejudicial testimony. Paris also raises several issues
in a statement of additional grounds for review (SAG). We affirm.
FACTS
In December 2010, Paris began dating Danielle,1 who had two daughters,
eight-year-old P.M. and five-year-old K.G.-R. In 2011, Paris moved in with
Danielle and her children. After Paris moved in, he began to sexually assault
P.M., which eventually became a daily occurrence. Paris also sexually assaulted
1
Although now divorced, Danielle used the last name Paris at trial. For clarity,
we refer to Danielle by her first name and mean no disrespect.
No. 85912-9-I/2
K.G.-R. In 2012, Paris and Danielle married. They then had two sons of their
own, E.M.P. in 2013 and E.P. in 2016.
Because of digestive issues, K.G.-R. suffered from painful constipation
and required a rectal suppository, which Danielle helped her administer. Paris
would insist on helping K.G.-R. insert the suppository, but Danielle consistently
refused. One day, Paris and K.G.-R. were home alone when K.G.-R. needed her
medication. Paris again insisted on helping her, but K.G.-R. refused. Paris
yelled at K.G.-R. until she complied. He directed K.G.-R. to “get on all fours,” or
get down on the floor on her hands and knees, and removed her pants and
underwear. Rather than insert the rectal suppository, Paris repeatedly poked at
and inserted his fingers into K.G.-R.’s vagina.
In November 2017, Danielle discovered photographs on their shared
computer of Paris having sexual contact with the family dog. Danielle also found
a picture of P.M. mixed in with the photos. This prompted her to contact the
police, and the State charged Paris with animal cruelty.2 She also asked P.M. if
Paris had ever touched her inappropriately, but P.M. did not disclose the abuse.
Danielle then filed for divorce in late November 2017 and in December 2017, she
received a restraining order limiting Paris’ contact with the children as part of the
dissolution proceedings.
In early 2018, K.G.-R. disclosed the sexual abuse to her school counselor.
In February 2018, K.G.-R. and P.M. both met with a child forensic interviewer.
K.G.-R. described “weird cuddling” but did not disclose the extent of Paris’ abuse.
2
Paris pleaded guilty to animal cruelty in the second degree in June 2018.
2
No. 85912-9-I/3
P.M. also disclosed that Paris was inappropriate with her but did not disclose the
extent of the abuse.
In January 2019, E.M.P. disclosed to Danielle that Paris sexually abused
him. Later that month, P.M. disclosed to her therapist that Paris sexually
assaulted her. That night, K.G.-R. also fully disclosed to Danielle that Paris
sexually assaulted her. Then, in February 2019, P.M. and K.G.-R. both disclosed
the abuse to a child forensic interviewer. Shortly after, in March, the State
charged Paris with one count of rape of a child in the first degree and one count
of child molestation in the first degree of P.M. and one count of rape of a child in
the first degree and one count of child molestation in the first degree of K.G.-R.3
Before trial, Paris moved under ER 403 to exclude testimony about his
animal cruelty conviction and the “underlying” photos of him with the family dog.
The trial court granted the motion, determining that “the probative value [of the
testimony] . . . is substantially outweighed by the prejudicial impact to defense.”
But the court explained that it would “revisit” the issue if defense solicited
testimony “that raise[s] an issue about the reason for the mother pursuing the
divorce.”
At trial, P.M. and K.G.-R. testified in detail about Paris raping and
molesting them. Danielle then testified about when and how the girls disclosed
the abuse. On cross-examination, Paris asked Danielle questions about her
attempts to limit his contact with the children, including when she filed for divorce
3
The State also charged Paris with one count of first degree child rape and one
count of first degree child molestation of E.M.P. The jury acquitted Paris of those
charges, so they are not at issue in this appeal.
3
No. 85912-9-I/4
and her request for a restraining order. Paris then pointed out that Danielle
alleged that he sexually assaulted the girls shortly after seeking the divorce and
restraining order. And he elicited testimony that P.M. did not initiate her
disclosure to Danielle. Instead, Danielle asked P.M. whether Paris had
inappropriately touched her.
Outside the presence of the jury, the State argued that Paris’ cross-
examination opened the door to testimony about Danielle’s discovery of the
photos of Paris with the family dog because it put at issue Danielle’s motivation in
seeking a divorce and restraining order and prompting P.M. to tell her about any
abuse. According to the State, Paris’ questions suggested that Danielle
“coached” the girls’ disclosures for her own purpose in the dissolution
proceedings. The trial court agreed and allowed Danielle to testify that she
sought the restraining order and confronted P.M. only after she found
“concerning” pictures of Paris and the family dog with a picture of P.M. mixed in.
At the close of trial, the court instructed the jury about reasonable doubt.
It instructed the jury that reasonable doubt is “such a doubt as would exist in the
mind of a reasonable person after fully, fairly, and carefully considering all of the
evidence or lack of evidence.” And if, “from such consideration, you have an
abiding belief in the truth of the charge, you are satisfied beyond a reasonable
doubt.”
The jury convicted Paris of two counts of first degree child rape of P.M.
and K.G.-R. and two counts of first degree child molestation of P.M. and K.G.-R.
On December 16, 2022, the court sentenced Paris to a standard range,
4
No. 85912-9-I/5
indeterminate sentence under RCW 9.94A.507. It imposed 292 months to life for
the child rape counts and 182 months to life for the child molestation counts.
Paris appeals.
ANALYSIS
Paris argues that insufficient evidence supports his conviction for the one
count of child molestation in the first degree of K.G.-R. He also argues that the
trial court erred by giving the jury an “abiding belief” reasonable doubt instruction
and concluding that Paris opened the door to testimony about the photographs of
him with the family dog. Finally, Paris raises several issues in his SAG. We
address each argument in turn.
1. Sufficiency of the Evidence
Paris contends that insufficient evidence supports his conviction of child
molestation in the first degree of K.G.-R. We disagree.
Due process requires the State to prove each element of a charged crime
beyond a reasonable doubt. State v. Johnson, 188 Wn.2d 742, 750, 399 P.3d
507 (2017) (citing U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3). We
review a challenge to the sufficiency of the evidence de novo as a question of
constitutional law. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).
Such a challenge admits the truth of the State’s evidence and all reasonable
inferences from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
So, we examine the evidence in a light most favorable to the State and determine
whether any rational trier of fact could have found the essential elements of the
charged crime beyond a reasonable doubt. Id. We “defer to the jury on issues of
conflicting testimony, credibility of witnesses, and the persuasiveness of the
5
No. 85912-9-I/6
evidence.” State v. Loos, 14 Wn. App. 2d 748, 765, 473 P.3d 1229 (2020). And
we “consider circumstantial and direct evidence equally reliable.” Id.The court instructed the jury that to convict Paris of first degree child
molestation of K.G.-R., it must find that “on or between January 1, 2011 and
December 31, 2017, in an incident separate and distinct from any other count,
the defendant had sexual contact with [K.G.-R.].” The court further instructed the
jury 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.”
Paris argues that no evidence shows he acted for sexual gratification
because “[t]he act of successfully inserting an enema into K.G.-R.’s anus to
relieve constipation cannot be considered sexual.” But K.G.-R. testified that
Paris “never” inserted the suppository. Instead, K.G.-R. described getting “on all
fours” and Paris standing behind her, “poking” and penetrating her vagina with
his fingers.
Poking and penetrating K.G.-R.’s vagina is unrelated to the act of inserting
a rectal suppository. And Paris engaged in those acts several times.4 Viewing
4
We note that first degree child rape and first degree child molestation are
separate offenses and that the double jeopardy clause does not prevent convictions—
and attendant penalties—for both offenses arising out of a single incident where the only
evidence of sexual intercourse supporting the rape is penetration. State v. Wilkins, 200
Wn. App. 794, 807-08, 403 P.3d 890 (2017). But here, the court instructed the jury that
it must find Paris committed first degree child molestation of K.G.-R. in an incident
“separate and distinct from any other count.” And unchallenged jury instructions become
the law of the case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). The
parties do not dispute that the act of penetration supports the jury’s determination that
Paris committed rape of a child in the first degree of K.G.-R. So, we focus on only the
act of “poking” in our analysis.
6
No. 85912-9-I/7
the evidence in a light most favorable to the State, a reasonable jury could
conclude that Paris acted for the purpose of sexual gratification.
2. Reasonable Doubt Jury Instruction
Paris claims the trial court erred by instructing the jurors that if, after
considering all the evidence, they had “an abiding belief in the truth of the
charge,” they are satisfied beyond a reasonable doubt. We disagree.
We review a challenged jury instruction de novo, evaluating it in the
context of the instructions as a whole. State v. Brett, 126 Wn.2d 136, 171, 892
P.2d 29 (1995). Although no specific wording is required, jury instructions must
define “reasonable doubt” and clearly communicate that the State carries the
burden of proof. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007).
Instructions must also properly inform the jury of the applicable law, not mislead
the jury, and permit each party to argue its theory of the case. Id.Here, the trial court gave the jury the Washington Practice jury instruction
for “reasonable doubt.” See 11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 4.01, at 98 (5th ed. 2021) (WPIC). It instructed the
jury:
A reasonable doubt is one for which a reason exists and
may arise from the evidence or lack of evidence. It is such a doubt
as would exist in the mind of a reasonable person after fully, fairly,
and carefully considering all of the evidence or lack of evidence. If,
from such consideration, you have an abiding belief in the truth of
the charge, you are satisfied beyond a reasonable doubt.
Citing State v. Emery, 174 Wn.2d 741, 278 P.3d 653 (2012), Paris argues that
the “court’s instruction impermissibly encouraged the jury to undertake a search
for the truth.”
7
No. 85912-9-I/8
In Emery, the prosecutor told the jury during closing argument, “ ‘Members
of the jury, I ask you, go back there to deliberate, consider the evidence, use
your life experience and common sense, and speak the truth by holding these
men accountable for what they did.’ ” 174 Wn.2d at 750-51. Our Supreme Court
held that encouraging jurors to “speak the truth” was improper because “[t]he
jury’s job is not to determine the truth of what happened . . . . Rather, a jury’s job
is to determine whether the State has proved the charged offenses beyond a
reasonable doubt.” Id. at 760.
We rejected Paris’ argument in State v. Fedorov, 181 Wn. App. 187, 199-
200, 324 P.3d 784 (2014). In that case, we acknowledged that it is improper for
a prosecutor to tell the jury to “speak the truth” because it misstates the jury’s
role. Id. at 200. But we distinguished Emery because “the ‘belief in the truth’
phrase accurately informs the jury its ‘job is to determine whether the State has
proved the charged offenses beyond a reasonable doubt.’ ” Id. at 200 (quoting
Emery, 174 Wn.2d at 760).
Division Two of our court reached the same conclusion in State v. Jenson,
194 Wn. App. 900, 902, 378 P.3d 270 (2016) (adopting Fedorov). It concluded
that the “existence or nonexistence of an ‘abiding belief in the truth’ . . . correctly
invites the jury to weigh the evidence.” Id.Paris argues that our court wrongly decided Fedorov and Jenson.
According to Paris, those cases relied on State v. Pirtle, 127 Wn.2d 628, 904
P.2d 245 (1995), and State v. Bennett, 161 Wn.2d 303, 165 P.3d 1241 (2007),
and neither case directly addresses his argument.
8
No. 85912-9-I/9
In Pirtle, our Supreme Court approved a jury instruction that read, “ ‘If,
after such consideration[,] you do not have an abiding belief in the truth of the
charge, you are not satisfied beyond a reasonable doubt.’ ” 127 Wn.2d at 657-
58.5 The court concluded that while the language was unnecessary, the trial
court did not err by including it. Id. at 658. And in Bennett, our Supreme Court
specifically approved the use of WPIC 4.016 as a whole because it “adequately
permits both the government and the accused to argue their theories of the
case.” 161 Wn.2d at 317 (citing Pirtle, 127 Wn.2d at 656-58).
Fedorov and Jenson each cited Pirtle and Bennett and then independently
determined that the “abiding belief in the truth” language in WPIC 4.01 serves a
different purpose than the “speak the truth” language used by the prosecutor
during closing in Emery. Fedorov, 181 Wn. App. at 200; Jenson, 194 Wn. App.
at 901-02. And our Supreme Court denied review in both cases. State v.
Fedorov, 181 Wn.2d 1009, 335 P.3d 941 (2014); State v. Jenson, 186 Wn.2d
1026, 385 P.3d 119 (2016). We decline the invitation to depart from that
precedent.
3. Testimony About Photographs
Paris argues that the trial court abused its discretion by admitting
Danielle’s testimony about the photographs of Paris engaged in “concerning”
5
Emphasis omitted, alteration in original.
6
The language in WPIC 4.01 has not changed since the Bennett decision. See
11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01,
at 79 (2d ed. Supp. 2005).
9
No. 85912-9-I/10
conduct with the family dog.7 The State contends Paris opened the door to the
evidence when he questioned Danielle on cross-examination about initiating
divorce proceedings and confronting P.M. We agree with the State.
We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. State v. Scherner, 153 Wn. App. 621, 656, 225 P.3d 248(2009). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. Id. A trial court may admit only
“relevant evidence.” ER 402. Evidence is “relevant” if it tends to make the
existence of any fact of consequence more or less probable than it would be
without the evidence. ER 401.
A court may exclude relevant evidence “if its probative value is
substantially outweighed by the danger of unfair prejudice.” ER 403. Still, the
court “has discretion to admit evidence that might otherwise be inadmissible if the
defendant opens the door to the evidence.” State v. Warren, 134 Wn. App. 44,
65, 138 P.3d 1081 (2006), aff’d, 165 Wn.2d 17, 195 P.3d 940 (2008). The “open
door” doctrine promotes fairness by preventing one party from raising a subject
and then barring the other party from further inquiry. State v. Avendano-Lopez,
79 Wn. App. 706, 714, 904 P.2d 324 (1995). Indeed, “ ‘[i]t would be a curious
rule of evidence which allowed one party to bring up a subject, drop it at a point
where it might appear advantageous to him, and then bar the other party from all
7
Paris argues that the trial court “abused its discretion permitting the [S]tate to
introduce evidence of Paris’s animal cruelty conviction.” But the jury never heard
evidence that the State charged Paris with that crime or that he pleaded guilty to it.
10
No. 85912-9-I/11
further inquiries about it.’ ” State v. Bennett, 42 Wn. App. 125, 127, 708 P.2d
1232 (1985)8 (quoting State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969)).
Before trial, Paris moved under ER 403 to exclude any reference to the
photographs Danielle found of him with the family dog. The court granted the
motion because at that time, the prejudicial impact of the evidence “substantially
outweighed” its probative value. But the court explained that “in the event that it
becomes more precise that the defense is raising questions that raise an issue
about the reason for [Danielle] pursuing the divorce[,] [i]f that becomes relevant
in cross-examination, . . . the court without the jury present will revisit the issue.”
During Danielle’s cross-examination, defense counsel asked:
Q. Okay. Now, [Paris] moved out of the house, the family
home, on November 24th, 2017, correct?
A. Yes.
Q. Okay. November 25th, 2017 was the last day that [Paris]
was ever in that house; is that correct?
A. That is correct.
Q. Okay. And five days later, on November 30th, 2017, you
filed for divorce?
A. I did.
Q. Okay. As part of that divorce case, on December 7th, 2017,
you obtained a restraining order barring [Paris] from the
residence and limiting his contact with the two boys, right?
A. Yes, I did.
Q. Now, there was a guardian ad litem appointed in your
divorce proceeding, correct?
A. Yes.
....
8
Bennett analyzes the admission of evidence under ER 404(b), which prohibits
the admission of “[e]vidence of a person’s character or a trait of character . . . for the
purpose of proving action in conformity” with the current offense. The fourth element of
the test in assessing whether to admit evidence of a person’s prior misconduct under ER
404(b) “ensure[s] that the evidence does not run afoul of . . . ER 403.” State v.
Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (courts must weigh the probative
value of the evidence against its prejudicial effect).
11
No. 85912-9-I/12
Q. . . . Did a portion of that guardian ad litem report to the court
have to do with recommendations on child custody and
visitation?
A. Yes.
Q. Okay. And a couple days after the report was filed, you filed
a declaration in response to that guardian ad litem report,
correct?
A. I believe so.
Q. And that was because you didn’t agree with some of the
recommendations by the guardian ad litem regarding how
much visitation [Paris] should have with [E.M.P.] and [E.P.]?
A. I can’t fully disclose on everything.
Q. Okay. Fair enough.
....
Q. Do you remember the court issuing an order regarding
[Paris’] opportunity to visit with the girls?
A. Yes, I do.
Q. Okay. Do you remember objecting to it or disagreeing with
it?
A. I do remember.
Q. And that was around the fall of 2018?
A. Timeline, I’m not clear. I’m sorry.
Q. That’s okay. No, I appreciate that. That’s totally fine.
And then fast forward about — I guess it’s about four
months. January 1st, 2019, that is the day that [E.M.P.]
disclosed to you that he had been the victim of sexual abuse
at the hands of [Paris], his father, right?
A. That’s around the time he did come forward about some of
what happened, yes.
Q. Okay. And then just over two weeks after that, January
18th, 2019, you were the recipient of additional disclosures
by [P.M.] and [K.G.-R.] that [Paris] had sexually abused
them as well?
A. I was secondary on [P.M.] and then yes, [K.G.-R.].
Q. Okay. And you learned of their disclosures either
secondarily or primarily on the very same day?
A. Yes, I did.
Q. Okay. And that was the same day that [E.M.P.] was being
forensically interviewed . . . ?
A. Yes, it was.
....
Q. I’d like to ask you a few questions about [P.M.], if I may.
You indicated that her disclosure to you occurred in
the car while [E.M.P.] was at an occupational therapy
appointment?
A. Yes.
Q. And it was just the two of you in the car?
12
No. 85912-9-I/13
A. Yes, it was.
Q. And that was the first time that [P.M.] ever told you that
[Paris] had touched her in a sexual or inappropriate way?
A. That was the first time I’d gotten more of an open
conversation, so yes.
Q. Do you recall asking [P.M.] in November 2017 directly, “Has
[Paris] ever touched you inappropriately?”
A. There is a problem with asking that question, sir. I can’t
really answer.
Q. Okay. I will move on then.
Outside the presence of the jury, the State argued defense counsel’s
questions opened the door to testimony about Danielle finding the pictures of
Paris with the family dog. It explained that the defense “paint[ed] a picture of
[Danielle] coaching the children along the [divorce] process because she’s trying
to put a separation between the defendant and the kids,” when actually the
pictures of Paris with the dog and the photo of P.M. mixed in motivated Danielle
to seek the divorce and restraining order and to confront P.M. about Paris’
abuse.
The trial court agreed. It allowed the State to ask Danielle “what
motivated you to seek a restraining order in December of 2017” and “what
motivated you to ask [P.M.] . . . during that same timeframe . . . about whether
the defendant had touched her inappropriately.”9 Danielle testified, “Because of
9
The court also read the jury a limiting instruction before Danielle’s redirect
examination by the State:
[The prosecutor] is going to ask the witness some questions, and you are
being — evidence is being allowed by me to be inquired into on the topic
of why the witness pursued a restraining order and why the witness asked
a particular question of her daughter. You are being allowed to hear this
evidence only for the limited purpose of hearing the motivation behind the
witness taking those actions and not for any other purpose, so the use of
that evidence is only for the limited purpose of the why from the witness.
13
No. 85912-9-I/14
photos I found of . . . Paris and the family dog - it was concerning to me - and
within those pictures a photo of my daughter [P.M.].”
Because Paris’ questions on cross-examination put at issue Danielle’s
motivation to seek a restraining order and ask P.M. directly whether Paris had
ever inappropriately touched her, the trial court did not abuse its discretion by
allowing Danielle to testify about the source of her motivation.
4. SAG
In his SAG, Paris argues that the trial court erred by dismissing an
impaneled juror, failing to instruct the jury on “the medical exception to sexual
intercourse,” failing to engage in a “same criminal conduct” analysis when
calculating his offender score, and imposing an unlawful enhanced sentence.
A. Biased Juror
Paris argues the trial court erred by dismissing a juror for bias at the close
of the evidence. We disagree.
We review a trial court’s decision to excuse a juror for an abuse of
discretion. State v. Hughes, 106 Wn.2d 176, 204, 721 P.2d 902 (1986); State v.
Sassen Van Elsloo, 191 Wn.2d 798, 806-07, 425 P.3d 807 (2018). The trial
court “has the advantage of observing a juror’s demeanor” and is “ ‘in the best
position to determine a juror’s ability to be fair and impartial.’ ” State v. Teninty,
17 Wn. App. 2d 957, 964, 489 P.3d 679 (2021) (quoting State v. Noltie, 116
Wn.2d 831, 839, 809 P.2d 190 (1991)). So, we “will uphold a trial court’s
decision so long as it falls within the broad range of reasonable decisions.” Id.The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee the right to a fair trial “by an
14
No. 85912-9-I/15
impartial jury.” Under RCW 2.36.110, a trial judge has a duty “to excuse from
further jury service any juror, who in the opinion of the judge, has manifested
unfitness as a juror by reason of bias . . . or by reason of conduct or practices
incompatible with proper and efficient jury service.” RCW 2.36.110 places a
continuous obligation on the trial court to excuse any juror who is unfit and
unable to perform their duties as a juror. State v. Jorden, 103 Wn. App. 221,
227, 11 P.3d 866 (2000). To dismiss an impaneled juror for actual bias, the
challenging party must show that the juror “has formed or expressed” a biased
opinion and that the juror “cannot disregard such opinion and try the issue
impartially.” RCW 4.44.190.
Before closing arguments, juror 11 realized that he had “played music
together with the defendant [at church events] for about 20 times over the last
year.” The trial court dismissed the juror because “[t]hat close connection can
lead to an inference of bias and prejudice and not being able to be impartial.”
Paris argues he is entitled to a new trial because the court failed to establish that
the juror was actually biased. We need not reach that issue because Paris fails
to show prejudice.
Prejudice exists and a defendant is entitled to a new trial when the
erroneous dismissal of an impaneled juror “stems from concern over the juror’s
views of the merits of the evidence presented.” Sassen Van Elsloo, 191 Wn.2d
at 815. But when the erroneous dismissal of an impaneled juror does not stem
from concern over the juror’s views of the merits of the evidence presented, no
new trial is warranted if any error was harmless. Id. Error is harmless if we can
say, “ ‘with fair assurance, after pondering all that happened without stripping the
15
No. 85912-9-I/16
erroneous action from the whole, that the judgment was not substantially swayed
by the error.’ ” Id. at 82310 (quoting Hinton v. United States, 979 A.2d 663, 690-
91 (D.C. Cir. 2009)).
The trial court did not excuse juror 11 based on concern about the juror’s
view of the merits of the evidence presented. And Paris makes no argument that
any error substantially swayed his verdict. Indeed, we presume an alternate juror
is unbiased. Sassen Van Elsloo, 191 Wn.2d at 822. As a result, the release of
juror 11 had no substantial influence on the outcome of the trial, and any error
was harmless.
B. Medical Exception Instruction
Paris argues that the facts of his case supported a jury instruction on the
“medical exception” to “sexual intercourse.” He now asserts his conduct with
K.G.-R. was for medical purposes because he inserted a suppository into K.G.-
R.’s rectum to treat her constipation. According to Paris, the failure to provide
such an instruction violated his right to due process by preventing him from
presenting a complete defense. But the evidence adduced at trial did not support
such an instruction.
While the trial court must fully instruct the jury on the applicable law, there
is no right to an instruction that is not supported by the evidence. State v. Prado,
144 Wn. App. 227, 241, 181 P.3d 901 (2008). And there is no evidence in the
record to suggest that Paris inserted a suppository into K.G.-R’s rectum. First, as
discussed above, K.G.-R. testified that Paris did not insert a suppository and,
10
Internal quotation marks omitted.
16
No. 85912-9-I/17
instead, repeatedly touched and poked her vagina. That conduct is unrelated to
the act of inserting a suppository. Further, Paris completely denied the allegation
at trial, testifying that he “never helped [K.G.-R.] insert suppositories in her anus.”
As a result, the evidence did not support the trial court giving a “medical
exception” instruction.
C. Same Criminal Conduct
Paris argues that the trial court erred in failing to engage in a “same
criminal conduct analysis” when calculating his offender score. Paris waived this
argument on appeal because he did not seek a same criminal conduct analysis
at sentencing.
“We review a sentencing court’s calculation of an offender score de novo.”
State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003). The sentencing court
follows the guidelines of the Sentencing Reform Act of 1981, chapter 9.94A
RCW, to calculate an offender score. See RCW 9.94A.525, .510. In calculating
an offender score, the court must (1) identify all prior convictions, (2) eliminate
those that “wash out,” and (3) count the prior convictions that remain. State v.
Moeurn, 170 Wn.2d 169, 175, 240 P.3d 1158 (2010).
If a trial court finds that some or all of a defendant’s current crimes
encompass the same criminal conduct, the court must count those offenses as a
single crime to calculate the defendant’s offender score. RCW 9.94A.589(1)(a).
But a defendant must request that the trial court conduct a same criminal conduct
analysis at sentencing to preserve the issue for appeal. State v. Jackson, 28
Wn. App. 2d 654, 667-68, 538 P.3d 284 (2023).
17
No. 85912-9-I/18
Paris did not ask the sentencing court to engage in a same criminal
conduct analysis. Indeed, Paris told the court that he is “not arguing that [the
child rape and child molestation] counts . . . are [the] same criminal conduct”
because the law would not support such a finding.11 Paris waived the issue for
appeal.
D. Sentencing Enhancement
Paris also argues that the trial court unlawfully elevated his minimum
sentence by imposing an indeterminate sentence under RCW 9.94A.507
because “any fact that increases a mandatory statutory minimum is required to
be submitted to a jury.” We disagree.
Whether an issue presents a question of law or fact is a question of law
that we review de novo. State v. Mullen, 186 Wn. App. 321, 328, 345 P.3d 26(2015). Under RCW 9.94A.507(1)(a)(i) and (3), a person convicted of rape of a
child in the first degree or child molestation in the first degree is subject to a
minimum and maximum term of confinement. In such cases, the minimum term
must be either within the standard range or, if grounds for an exceptional
sentence apply, it may be outside the standard range. RCW 9.94A.507(3)(c)(i).
The maximum term “shall consist of the statutory maximum sentence for the
offense.” RCW 9.94A.507(3)(b). The statute also requires an offender to comply
11
The State and Paris both told the court that under State v. Torrence, No.
52432-5-II, slip op. at 13-19 (Wash. Ct. App. Oct. 6, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2 52432-5-II Unpublished Opinion.pdf,
convictions for first degree child rape and first degree child molestation do not constitute
the same criminal conduct because each crime requires a different criminal intent.
18
No. 85912-9-I/19
with the Indeterminate Sentence Review Board and provides for community
custody up to the maximum term of a sentence. RCW 9.9A.507(5), (6).
In support of his argument, Paris cites Alleyne v. United States, 570 U.S.
99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). In Alleyne, the United States
Supreme Court held that under the Sixth Amendment, any fact (i.e., a sentencing
factor) that increases punishment for a crime is an “element” of that crime and
“must be submitted to the jury and proved beyond a reasonable doubt.” Id. at
107-08.
Here, the trial court imposed a minimum term of 292 months—a sentence
within his standard range.12 So, the trial court did not elevate his minimum
sentence. In any event, as much as Paris characterizes RCW 9.94A.507 as
increasing his punishment based on facts that must be decided by a jury, the
statute does not defy Alleyne. Paris is subject to the indeterminate sentencing
statute only because a jury determined beyond a reasonable doubt the facts
sufficient to support his convictions for first degree rape of a child and first degree
child molestation. In turn, those convictions authorized the trial judge to impose
an indeterminate sentence under RCW 9.94A.507.
In sum, sufficient evidence supports Paris’ conviction for child molestation
in the first degree of K.G.-R., and the trial court did not err by instructing the jury
that it is satisfied beyond a reasonable doubt if “you have an abiding belief in the
truth of the charge[s]” and concluding that Paris opened the door to testimony
12
Paris had an offender score of 9, making the standard range on the most
serious offense 240 to 318 months.
19
No. 85912-9-I/20
about the photographs of him with the family dog. Finally, none of the issues
Paris raises in his SAG amount to error.
We affirm Paris’ convictions for two counts of rape of a child in the first
degree and two counts of child molestation in the first degree of P.M. and K.G.-R.
WE CONCUR:
20