IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 85071-7-I
Respondent,
v. UNPUBLISHED OPINION
EDWIN VLADIMIR LOPEZ,
Appellant.
BOWMAN, A.C.J. — A jury convicted Edwin Vladimir Lopez of rape of a
child in the first degree, child molestation in the first degree, and child
molestation in the second degree. Lopez appeals his convictions, arguing the
court violated his right to confront witnesses and to be free from double jeopardy.
Lopez also argues that the trial court erred by imposing a community custody
condition mandating random urinalysis (UA) and breath analysis (BA) testing and
by imposing a victim penalty assessment (VPA) and DNA collection fee. We
affirm Lopez’s convictions and community custody condition but remand for the
trial court to strike the VPA and DNA collection fee from his judgment and
sentence.
FACTS
Lopez and Angela Escobar married and had two daughters, J and G. G is
about four years younger than J. Around 2014, Lopez and Escobar separated
and divorced. After the divorce, J and G mostly lived with Escobar but spent two
evenings during the week and every other weekend with Lopez. No. 85071-7-I/2
In 2015, Lopez lived in a two-story house in Burien with his son, Anthony
Lopez, and Anthony’s1 friend, Royal Brewster. At the time, J was about 7 years
old. Anthony and Brewster lived in the basement of the house. Lopez’s
bedroom was upstairs on the second floor. When staying with Lopez, J and G
shared a bedroom, also located upstairs.
In early December 2015, Brewster noticed a pair of the girls’ shoes in the
basement and took them upstairs to return them. When he went upstairs,
Brewster saw that Lopez’s bedroom door was “wide open.” Inside Lopez’s room
he saw Lopez standing with J’s hand on his exposed penis. Brewster was
“disgusted” and walked away. Lopez appeared nervous, followed Brewster
downstairs, and began to act overly friendly.
Brewster told Anthony about what he saw and eventually Escobar learned
of the incident. She then reported it to the police and took J to the hospital. The
police reported the incident to Child Protective Services (CPS) and both agencies
began investigating. At the hospital, J participated in a forensic interview and a
sexual assault examination. Pediatric nurse practitioner Joanne Mettler and Dr.
Emily Brown performed the sexual assault examination.2 During the
examination, J denied that Lopez sexually assaulted her. Still, Mettler and Dr.
Brown collected DNA swabs for a rape kit and conducted a pelvic examination.
1 We refer to Anthony Lopez by his first name for clarity and intend no disrespect by doing so. 2 Dr. Brown was a fellow in training at the time and Mettler was supervising her. They conducted J’s examination “simultaneously together.”
2 No. 85071-7-I/3
DNA testing of J’s underwear revealed male DNA but was otherwise
inconclusive.
After the report of sexual assault, Escobar restricted Lopez’s contact with
J and G. Lopez did not see the kids for about a year. Then, the police and CPS
closed their investigations into the incident, and Lopez resumed supervised
visits. Months later, the visits became unsupervised, but per Escobar’s
insistence, Lopez could not keep his daughters overnight. After the visits
became unsupervised, Lopez began sexually assaulting J again. J said that
Lopez assaulted her in his apartment “[a]lmost every time we would go see him.”
Eventually, when J was about 12 or 13 years old, she realized that what
Lopez was doing to her “didn’t seem normal.” And she “was tired of having to go
over there and be[ ] treated like that,” so she told Escobar that Lopez was
sexually assaulting her. J explained that she did not come forward earlier, in
part, because she did not understand that Escobar was abusing her, but also
because Lopez made her promise not to tell. And she “was afraid that [her] little
sister would have to grow up without a father” if she told anyone.
Escobar reported J’s disclosure to the police, and J underwent a second
forensic interview and sexual assault examination. The police then arrested
Lopez. After G learned of the arrest, she disclosed that Lopez had been
molesting her as well. G was about eight years old at the time.
As to J, the State charged Lopez with two counts of rape of a child in the
first degree, one count of child molestation in the first degree, and one count of
3 No. 85071-7-I/4
child molestation in the second degree.3 The case proceeded to a jury trial.
At trial, Mettler testified about her 2015 examination of J. She told the jury
that J’s legs shook while in the stirrups during the pelvic examination. J also
testified. She told the jury about when Lopez molested her in his bedroom at the
Burien house in 2015. Brewster also testified about walking in on Lopez and J in
Lopez’s bedroom. J testified that Lopez continued to molest and rape her in his
Seattle apartment after his unsupervised visits resumed, including a time when
Lopez molested her under a blanket in his bed. And she described a time when
Lopez raped her in his car while parked in her school’s parking lot.
Lopez did not testify. His attorney generally denied the allegations and
argued the witnesses were not credible.
The jury convicted Lopez of one count of child rape in the first degree,
one count of child molestation in the first degree, and one count of child
molestation in the second degree. But it acquitted Lopez of one count of child
rape. Lopez appeals.
ANALYSIS
Lopez argues the trial court 1) violated his right to confrontation, 2)
violated his right to be free from double jeopardy, 3) erred by imposing an
unlawful community custody condition, and 4) that we should remand for the
court to strike the VPA and DNA collection fees. We address each argument in
turn.
3 As to G, the State amended the information to add another charge of child molestation in the first degree and another count of rape of a child in the first degree. The jury acquitted Lopez of the two counts related to G, so they are not at issue in this appeal.
4 No. 85071-7-I/5
1. Confrontation Clause
Lopez argues the trial court violated his right to confront witnesses when it
allowed Mettler to testify about her observations of J during the 2015 pelvic
examination. We disagree.
We review alleged confrontation clause violations de novo. State v.
Kronich, 160 Wn.2d 893, 901, 161 P.3d 982 (2007), overruled on other grounds
by State v. Jasper, 174 Wn.2d 96, 271 P.3d 876 (2012); State v. McDaniel, 155
Wn. App. 829, 839, 230 P.3d 245 (2010). The Sixth Amendment to the United
States Constitution and article I, section 22 of the Washington Constitution
guarantee criminal defendants the right to confront and cross examine witnesses.
The confrontation clause prohibits testimonial out-of-court statements of an
absent witness unless the witness is unavailable and the defendant has had a
prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36,
59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Whether a statement is
testimonial depends on whether the speaker’s primary purpose was to create an
out-of-court substitute for trial testimony. State v. Scanlan, 193 Wn.2d 754, 766,
445 P.3d 960 (2019).
Here, Mettler testified about J’s demeanor during the genital portion of the
sexual assault exam. She said:
I’m going to look at my report to refresh my memory. So, during the exam, [J] was cooperative. However, during the genital exam, she—her legs were shaking when they were in the stirrups.
Because Mettler testified to her own observation of J and was present at trial for
Lopez to cross-examine her, Lopez fails to show a violation of his confrontation
5 No. 85071-7-I/6
right.
Still, Lopez argues the record shows Mettler did not testify from her own
observations. According to Lopez, Mettler testified about Dr. Brown’s
observations during the pelvic examination. But Mettler explained that she was
training and supervising Dr. Brown during J’s examination. And she and Dr.
Brown were both present during the entire examination. Mettler performed one
part of the examination and Dr. Brown performed the other. After the exam,
Mettler wrote one portion of the report and Dr. Brown wrote the other. Then, both
Mettler and Dr. Brown read the entire report to ensure its accuracy and signed it.
While Mettler testified that she had no independent recollection of the event, she
also said the report would refresh her recollection. And, after looking at the
report, Mettler testified from her own memory of the event.4
Because Mettler testified about her own observations and was present for
cross-examination, the trial court did not violate Lopez’s right to confront
witnesses.
2. Double Jeopardy
Lopez argues that his convictions for both child molestation in the first
degree and child molestation in the second degree violate his right to be free
from double jeopardy. We disagree.
We review double jeopardy claims de novo. State v. Arndt, 194 Wn.2d
784, 815, 453 P.3d 696 (2019). A court violates a defendant’s right to be free
Lopez also argues that Mettler’s statements amount to inadmissible hearsay. 4
But Mettler testified about her own observations. So, she did not repeat an out-of-court statement and did not testify to hearsay. See ER 801(c), (d).
6 No. 85071-7-I/7
from double jeopardy when it imposes multiple punishments for the “same
offense.” State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991). To avoid
exposing a defendant to double jeopardy, the trial court must instruct a jury that
to convict a defendant charged with multiple counts of the same crime arising
from several acts, the jury must determine that each crime involved facts
“separate and distinct” from the other. See State v. Mutch, 171 Wn.2d 646, 662-
63, 254 P.3d 803 (2011). It is not enough to instruct the jury only that it must
decide each count separately and that its verdict on one count should not control
its verdict on any other count. Id.
Still, flawed jury instructions create only a “possibility of a double jeopardy
violation.” Mutch, 171 Wn.2d at 663. If, viewing the record as a whole, it is
“ ‘manifestly apparent to the jury that the State [was] not seeking to impose
multiple punishments for the same offense’ and that each count was based on a
separate act,” there is no double jeopardy violation. Id. at 6645 (quoting State v.
Berg, 147 Wn. App. 923, 931, 198 P.3d 529 (2008), abrogated on other grounds
by Mutch, 171 Wn.2d at 646).
Mutch is instructive. In that case, a jury convicted the defendant of five
counts of rape. Mutch, 171 Wn.2d at 652. The court read to the jury five “nearly
identical” to-convict instructions that included the same charging period. Id. at
662. The court also instructed the jury that “ ‘[a] separate crime is charged in
each count. You must decide each count separately. Your verdict on one count
5 Alteration in original.
7 No. 85071-7-I/8
should not control your verdict on any other count.’ ” Id.6 The defendant
appealed the verdicts, arguing the jury instructions were vague and allowed for
the possibility of five convictions based on one act. Id.
Our Supreme Court agreed that the jury instructions were flawed because
they failed to explain to the jury that a “ ‘separate and distinct’ ” act must support
each count. Mutch, 171 Wn.2d at 663. Still, the court concluded that it must look
beyond the jury instructions to determine whether an actual double jeopardy
violation occurred. Id. at 664. So, it looked to “the entire trial record” to consider
whether it was manifestly apparent to the jury that the State was not seeking to
impose multiple punishments for the same offense. Id.
A review of the record showed that the victim testified about five separate
incidents of rape. Mutch, 171 Wn.2d at 665. And in its arguments, the State
discussed and distinguished all five acts. Id. Finally, the defense did not argue
that there was insufficient evidence for any of the rapes. Id. Instead, defense
counsel argued that the victim consented. Id. Based on the entire record, the
court held that despite the deficient jury instructions, it was “manifestly apparent”
to the jury that each count of rape represented a separate act, so no double
jeopardy violation occurred. Id. at 665-66.
Our Supreme Court applied the same test in State v. Peña Fuentes, 179
Wn.2d 808, 318 P.2d 257 (2014). In Peña Fuentes, a jury convicted the
defendant of one count of first degree rape of a child and two counts of first
degree child molestation that occurred over about 35 months. Id. at 823. The
6 Alteration in original.
8 No. 85071-7-I/9
jury instructions for the rape charges did not include an instruction that the rape
must have occurred on separate and distinct occasions from the molestation
charges. Id. But in closing argument, the State “clearly” identified the specific
acts that supported each charge. Id. at 825. And it detailed the alleged conduct
supporting each count and distinguished them by time and place. Id. Further,
the defendant did not challenge the number of acts or whether the acts
overlapped. Id. at 825-26. Instead, he challenged only the witness’ credibility.
Id. Based on the entire record, our Supreme Court found that while the
instructions were improper, it was manifestly apparent that the jury convicted the
defendant based on separate and distinct acts. Id. at 826.
This case is like Mutch and Peña Fuentes. The trial court erred when it
did not instruct the jury that it must rely on “separate and distinct” acts to convict
Lopez of child molestation as charged in counts III and IV.7 But the record shows
the State made it manifestly apparent to the jury that each count arose from a
separate act.
In closing argument, the prosecutor identified the specific acts that
supported each count, including count III and count IV. The prosecutor
discussed the incident in the Burien house where Brewster walked in on Lopez
with J. The prosecutor told the jury that Brewster “saw with his own eyes the act
that is charged in Count III, which is Child Molestation in the First Degree.” Later
in closing argument, the prosecutor again reiterated that count III was “the
7 While count III is charged as child molestation in the first degree and count IV is charged as child molestation in the second degree, the evidence could support that both acts occurred when J was under the age of 12.
9 No. 85071-7-I/10
incident that [Brewster] saw.” The prosecutor also discussed J’s recollection of
the incident in Lopez’s Seattle apartment on the bed and said “[t]hat incident can
be used for Count IV, Child Molestation in the Second Degree.” And he later
discussed count IV as the incident where J was under the blanket in the Seattle
apartment.
Further, like the defendant in Peña Fuentes, Lopez’s defense focused on
the witnesses’ credibility, not the number of child molestations or whether they
overlapped. On this record, it was manifestly apparent to the jury that the State
sought convictions for two counts of child molestation based on separate and
distinct acts that occurred at different times and in different locations.
Lopez’s convictions for two counts of child molestation did not violate his
right to be free from double jeopardy.
3. Community Custody Condition
Lopez challenges the trial court’s imposition of community custody
condition 10, mandating random UA and BA testing. He argues that the
condition impedes his privacy interests under the Fourth Amendment to the
United States Constitution and article I, section 7 of the Washington Constitution
and is not narrowly tailored to serve a legitimate government purpose. We
disagree.
We review the imposition of community custody conditions for an abuse of
discretion and reverse the conditions if they are manifestly unreasonable. State
v. Nguyen, 191 Wn.2d 671, 678, 425 P.3d 847 (2018). A trial court’s imposition
10 No. 85071-7-I/11
of an unconstitutional condition is manifestly unreasonable. Id. (citing State v.
Bahl, 164 Wn.2d 739, 753, 193 P.3d 678 (2008)).
Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,
“the court may order an offender to . . . [c]omply with any crime-related
prohibitions.” RCW 9.94A.703(3)(f). A “crime-related prohibition” prohibits
“conduct that directly relates to the circumstances of the crime for which the
offender has been convicted.” RCW 9.94A.030(1). The SRA also mandates that
unless waived by the court, an offender must “[r]efrain from possessing or
consuming controlled substances except pursuant to lawfully issued
prescriptions.” RCW 9.94A.703(2)(c). And, “[a]s part of any community custody,
the court may order an offender to . . . [r]efrain from possessing or consuming
alcohol.” RCW 9.94A.703(3)(e). So, the SRA expressly authorizes community
custody conditions ordering an offender to refrain from controlled substance and
alcohol use.
Our state constitution guarantees that “[n]o person shall be disturbed in
[their] private affairs . . . without authority of law.” W ASH. CONST. art. I, § 7. But
“probationers do not enjoy constitutional privacy protection to the same degree
as other citizens.” State v. Olsen, 189 Wn.2d 118, 124-25, 399 P.2d 1141
(2017). Similarly, a person on community custody has a reduced expectation of
privacy. State v. Nelson, ___ Wn.3d ___, 565 P.3d 906, 917 (2025). But those
persons still have a diminished expectation of privacy in the nonconsensual
removal of their bodily fluids. Id. And the State’s attempt to enforce BA and UA
testing during a person’s term of community custody implicates these reduced
11 No. 85071-7-I/12
privacy interests. Id. This intrusion on a person’s lower expectation of privacy is
“ ‘constitutionally permissible only to the extent necessitated by the legitimate
demands’ of community custody.” Id.8 (quoting Olsen, 189 Wn.2d at 125).
In Nelson, the defendant pleaded guilty to three counts of third degree
rape of a child, communication with a minor for immoral purposes, and second
degree child molestation. 565 P.3d at 909. The court imposed several
community custody conditions, including that he not consume alcohol, marijuana,
or nonprescribed drugs. Id. at 910. To ensure compliance with those conditions,
the court ordered that the defendant submit to BA and UA testing. Id. The
defendant appealed, arguing that the BA and UA conditions impermissibly
interfered with his constitutional right to privacy because they were not crime
related. Id. at 911. Our Supreme Court disagreed, holding that the authority of
law supports the BA and UA testing conditions because they were narrowly
tailored to monitor the defendant’s compliance with his lawful statutorily imposed
conditions—the prohibition on alcohol and drugs. Id. at 917-18.
This case is like Nelson. The trial court ordered that Lopez “[n]ot possess
or consume controlled substances except pursuant to lawfully issued
prescriptions” and that he “not consume alcohol.” Lopez objected to neither
condition. To ensure compliance with those lawfully imposed conditions, the
court also ordered that Lopez “[b]e available for and submit to [UA] and/or [BA]
upon request of the [community corrections officer] and/or chemical dependency
treatment provider.” That condition is narrowly tailored to monitor compliance
8 Internal quotation marks omitted.
12 No. 85071-7-I/13
with the validly imposed conditions mandating Lopez to not consume controlled
substances or alcohol.
The court did not abuse its discretion by imposing UA and BA testing to
monitor and enforce Lopez’s lawfully imposed conditions.
4. VPA and DNA Collection Fee
Lopez argues that we should remand for the trial court to strike his $500
VPA and $100 DNA collection fee. The State “does not oppose remand solely to
strike the VPA and DNA fee.”
The trial court sentenced Lopez on March 3, 2023. It imposed a VPA and
DNA collection fee, which were mandatory at the time, and waived all
discretionary fees. That same day, the trial court found Lopez indigent for
purposes of appeal. Lopez then filed a notice of appeal on March 8.
Four months later on July 1, 2023, an amendment to RCW 7.68.035 took
effect, providing that the court “shall not impose the [VPA] 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).
The legislature also amended RCW 43.43.7541 and eliminated the previously
mandated $100 DNA collection fee. LAWS OF 2023, ch. 449, § 4. As amended,
the court must waive any fee imposed before July 1, 2023 for the collection of the
offender’s DNA. RCW 43.43.7541(2).
The State concedes the legislative amendments entitle Lopez to have his
fees stricken under RCW 7.68.035(4) and RCW 43.43.7541(2). See State v.
Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023) (“Although [the] amendment
13 No. 85071-7-I/14
[to RCW 7.68.035(4)] will take effect after [the defendant]’s resentencing, it
applies . . . because this case is on direct appeal.”), review granted, 4 Wn.3d
1009, 564 P.3d 547 (2025). We accept the concession.
We affirm Lopez’s convictions and community custody condition but
remand for the trial court to strike the VPA and DNA collection fee from his
judgment and sentence.
WE CONCUR: