State Of Washington, V. Edwin Vladimir Lopez

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE THE STATE OF WASHINGTON, No. 85071-7-I Respondent, v. UNPUBLISHED OPINION EDWIN VLADIMIR LOPEZ, Appellant.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 examina