State Of Washington v. Corey Alexander Ventar ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 79178-8-I
v.
UNPUBLISHED OPINION
COREY ALEXANDER VENTAR,
Appellant.
DWYER, J. — Corey Alexander Ventar appeals from the judgment entered
on a jury’s verdicts finding him guilty of rape in the second degree and rape of a
child in the third degree. He contends that the judgment violates his right to be
free from double jeopardy. Ventar also avers that his convictions were supported
by insufficient evidence, that the trial court erred in admitting certain testimony,
and that the use of the victim’s initials in the jury instructions constituted both an
impermissible comment on the evidence and an unconstitutional court closure.
The State concedes that the trial court’s entry of judgment on convictions
for both rape in the second degree, premised on rape of an incapacitated victim,
and rape of a child in the third degree based on a single underlying act violated
Ventar’s right to be free from double jeopardy. We accept this concession and
order vacation of Ventar’s conviction of rape of a child in the third degree. We
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affirm the trial court’s ruling in all other challenged respects. Accordingly, we
affirm Ventar’s conviction of rape in the second degree.
I
In August 2016, 19-year-old Corey Ventar came to Snohomish County to
visit his friend T.R. On August 4, 2016, Ventar and T.R. met with T.R.’s
girlfriend, S.G., and her friend, J.C., to attend a “Movie in the Park Night” at Willis
Tucker Park. J.C. was 15 years old.
Movie nights in Willis Tucker Park were typically attended by 1,300 to
2,000 people. J.C. and her friends went to “movie night” every week to drink and
socialize. On this occasion, J.C. drank “[a]t least half” of a bottle of vodka. S.G.
and J.C. split a tablet of Xanax that they obtained from T.R. and Ventar. Ventar
also later gave J.C. an additional quarter tablet of Xanax.
J.C. became intoxicated and, according to several witnesses, was having
difficulty walking, talking, and understanding her surroundings. Another witness
remembered that J.C. could walk and talk, but had a slowed reaction time.
Park director Tom Teigen observed J.C. and became concerned. Teigen
spoke with her and, although she was able to respond to his questions, he
noticed that her speech was slurred and that she quickly became less coherent.
Teigen determined that J.C.’s mother should be called to take her home. Ventar
offered to walk J.C. home but it was “obvious” to Teigen that J.C. was so
intoxicated that she could not physically succeed in walking home. Teigen
believed that J.C.’s friends were calling her mother, however, and gave his
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attention to other park patrons. When he returned to check on J.C., she and her
friends were gone.
In fact, Ventar, J.C. and several others had hidden in the nearby woods.
J.C. and Ventar remained in the woods while J.C.’s friends left to tell Teigen that
they had secured a ride home for J.C. When these teens returned, Ventar and
J.C. were no longer at that location. After approximately 45 minutes, during
which her friends were unable to find J.C., S.G. located J.C.’s younger sister and
asked her to call J.C.’s mother.
Testimony diverged as to what occurred while Ventar and J.C. were alone
in the woods. Although J.C. does not recall much of the evening, she
remembered seeing Ventar on top of her, and feeling a pressure between her
legs. J.C. put her hand down and said “no” before “black[ing] out.”
According to Ventar, J.C. began kissing him and they each performed oral
sex on the other. They did not have vaginal sex, Ventar stated, because J.C.
told him she did not want to have sex because she was “still a virgin,” and “only
16.”1 Ultimately, J.C. and Ventar walked out of the woods together and sat on
picnic benches. Several of J.C.’s friends saw them, noticed that there was
something in J.C.’s hair, and escorted her to the bathroom.
Another teen testified to helping J.C. into the bathroom after finding her
lying face down in a bush nearby.
1 J.C. was, in fact, 15 years old at the time of these events.
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Meanwhile, J.C.’s mother arrived at the park. J.C.’s mother and S.G.
walked into the bathroom together and found J.C. vomiting and unable to stand.
J.C.’s mother helped her into the backseat of her car.
J.C. then told her mother that she had been raped. J.C. was transported
to the hospital. A forensic nurse examined J.C. and observed that her hymen
had a recent laceration and that there was dirt and debris in her genital area.
The nurse also conducted swabs testing from a standard sexual assault kit and
cut off a piece of J.C.’s hair that appeared to have semen on it. Lab tests
indicated that semen was present in the hair sample, and in external anal,
perineal, and oral swabs. Saliva was discovered from the perineal and external
anal swabs. DNA from the hair, perineal, and oral samples matched a DNA
sample provided by Ventar.
Ventar was charged with rape in the second degree and rape of a child in
the third degree. At trial, although her full name had been used in open court,
J.C.’s initials were used in the written jury instructions.
Ventar was convicted on both counts. He was sentenced to a period of
incarceration of 120 months to life on the second degree rape conviction, with a
36 month sentence on the child rape conviction. The sentencing court did not
treat the two convictions as the same criminal conduct at sentencing, thus
including each offense in the offender score of the other. The sentencing court
also ordered a $100 DNA collection fee and certain mandatory legal financial
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obligations, imposing interest on those legal financial obligations “from the date
of the judgment until payment in full.”
Ventar appeals.
II
The Fifth Amendment to the United States Constitution and article I,
section 9 of the Washington Constitution prohibit multiple punishments for the
same offense. State v. Gocken, 127 Wn.2d. 95, 100, 896 P.2d 1267 (1995).
Ventar contends—and the State concedes—that entering judgment on the
convictions for rape in the second degree and rape of a child in the third degree,
under the circumstances of this case, violated double jeopardy. We agree.
The State’s concession is motivated by our Supreme Court’s decision in
State v. Hughes, 166 Wash. 2d 675, 212 P.3d 558 (2009). In that decision, the
court described the issue before it thusly:
Whether convictions for rape of a child in the second degree and
rape in the second degree due to nonconsent by reason of mental
incapacity or physical helplessness which arise out of the same act
violate double jeopardy.
Hughes, 166 Wash. 2d at 681. The court answered that query in the affirmative,
explaining that
[a]lthough the elements of the crimes facially differ, both statutes
require proof of nonconsent because of the victim’s status.
Regardless of whether nonconsent is proved by the age of the
victim and the age differential between the victim and the
perpetrator or by the mental incapacity or physical helplessness of
the victim, both statutes protect individuals who are unable to
consent by reason of their status.
Hughes, 166 Wash. 2d at 684.
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The State correctly concedes that the age differentials between rape of a
child in the second and third degrees do not remove the latter offense from the
reach of the Hughes decision.2
The remedy for a violation of double jeopardy protections is to vacate the
conviction of the lesser offense. State v. Albarran, 187 Wash. 2d 15, 22, 383 P.3d
1037 (2016). Here, the lesser of the two offenses is rape of a child in the third
degree.3 Therefore, we order that conviction vacated and remand for
resentencing on the remaining conviction.
III
Ventar next argues that insufficient evidence supports each of his
convictions. Because we have already determined that the conviction for rape of
a child in the third degree must be vacated, we need not address the evidentiary
sufficiency underlying that verdict. As to the other conviction, because a rational
trier of fact could have found the elements of rape in the second degree proved
beyond a reasonable doubt, Ventar’s contention fails.
Evidence is sufficient to support a conviction when, viewed in the light
most favorable to the State, it permits any rational trier of fact to find the essential
elements of the crime proved beyond a reasonable doubt. State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth
of the State’s evidence and all inferences that reasonably can be drawn
2 The Hughes decision is consistent with case law preceding the effective date of the
Sentencing Reform Act of 1981, chapter 9.94A RCW. See, e.g., State v. Birgen, 33 Wash. App. 1,
651 P.2d. 240 (1982).
3 RCW 9A.44.050(2) establishes that rape in the second degree is a Class A felony.
RCW 9A.44.079(2) establishes that rape of a child in the third degree is a Class C felony.
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therefrom.” Salinas, 119 Wash. 2d at 201. We defer to the trier of fact on issues of
conflicting testimony, the credibility of witnesses, and the persuasiveness of the
evidence. State v. Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d 970 (2004).
Ventar asserts that the State proffered insufficient evidence to support his
conviction of rape in the second degree because it did not prove that J.C. was
physically helpless or mentally incapacitated at the time that he had sexual
intercourse with her or, alternatively, that Ventar was unaware that J.C. was
physically helpless or mentally incapacitated. These arguments are without
merit. Numerous witnesses remembered J.C. slurring her speech, unable to
walk on her own, and appearing unaware of her surroundings after “chugging”
half of a bottle of vodka and taking Xanax. A park official who interacted with
J.C. was concerned enough about J.C. that he determined that her mother
should be called.
A rational finder of fact could infer that a 15-year-old girl whose level of
intoxication was as described by multiple witnesses, and who an adult had
already identified as physically unable to walk home, was physically helpless or
mentally incapacitated. Similarly, a rational finder of fact could find it
unbelievable that Ventar merely perceived J.C. as “happy” and “excited.”
From the evidence adduced at trial, a rational finder of fact could find that
J.C. was physically helpless or mentally incapacitated, and that Ventar was
aware of J.C.’s helplessness or incapacitation. Thus, a constitutionally sufficient
quantum of evidence supports Ventar’s conviction of rape in the second degree.
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IV
Ventar next avers that the trial court erred by admitting evidence of J.C.’s
subsequent suicide attempt. Because no adequate objection was interposed to
this testimony, Ventar failed to preserve this claim of error for review. Appellate
relief is not warranted.
A party may not raise an objection that was not properly preserved in the
trial court absent manifest constitutional error. RAP 2.5(a). An evidentiary error
is not a constitutional error. State v. Powell, 166 Wash. 2d 73, 83, 206 P.3d 321
(2009). “A party may only assign error in the appellate court on the specific
ground of evidentiary objection made at trial.” State v. Collins, 45 Wash. App. 541,
546, 726 P.2d 491 (1986) (citing State v. Guloy, 104 Wash. 2d 412, 421, 705 P.2d
1182 (1985)); accord ER 103 (a)(1).4
When asked about her daughter’s demeanor following the events of
August 4, 2016, J.C.’s mother testified that although, for the first few weeks, J.C.
seemed to be “in denial,” things became more difficult later on. She went on to
testify that she had “had to deal with the suicide attempt.” At this point, Ventar’s
counsel stated, “Objection,” but specified no basis therefor.
On appeal, Ventar now argues that it was not necessary to state a specific
ground for his objection because the specific ground was apparent from the
4 ER 103 states:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the party is
affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely
objection or motion to strike is made, stating the specific ground of objection, if
the specific ground was not apparent from the context.
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context. Ventar then undercuts this claim by offering several different grounds
for potential objection—that the testimony was inflammatory, or irrelevant, or
unduly prejudicial. However, these are distinct grounds for objecting. See ER
401, 402, 403. Ventar’s approach on appeal makes clear that the specific basis
for objection urged on the trial court is still not clear. This is the reason that the
requirement of ER 103(a)(1) exists. The claim of error was not preserved for
review.
Accordingly, Ventar does not establish an entitlement to appellate relief.
V
Ventar next argues that the trial court erred by denying his motion for a
mistrial. Ventar claims that a State witness, S.G., violated a trial court order in
limine by testifying that she and J.C. purchased Xanax from Ventar.
A trial court should grant a mistrial only when the defendant has been so
unfairly prejudiced that nothing short of a new trial can ensure that the defendant
will be fairly tried. State v. Emery, 174 Wash. 2d 741, 765, 278 P.3d 653 (2012).
We review the trial court’s denial of a mistrial request for an abuse of discretion.
State v. Rodriguez, 146 Wash. 2d 260, 269, 45 P.3d 541 (2002). We will find such
an abuse of discretion only when “‘no reasonable judge would have reached the
same conclusion.’” Rodriguez, 146 Wash. 2d at 269 (internal quotation marks
omitted) (quoting State v. Hopson, 113 Wash. 2d 273, 284, 778 P.2d 1014 (1989)).
Here, the trial court’s ruling in limine did not address the sale of drugs,
which neither party raised as an issue, but did exclude evidence of bad acts
except “activity surrounding Xanax.” Following testimony by the State’s witness
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that the Xanax was purchased by J.C., as opposed to given to her, the trial court
sustained Ventar’s objection. Ventar then asked for a mistrial, asserting that he
had not been informed that this testimony would be presented. Following an
offer of proof by the State that an interview with the State’s witness had included
references to drug sales and had been provided to Ventar, the trial court
changed its ruling on the issue. The trial court ruled that, without the prejudice of
unfair surprise, the sale of Xanax was admissible res gestae evidence.
Testimony may be admissible as res gestae evidence, “‘if it is so
connected in time, place, circumstances, or means employed that proof of such
other misconduct is necessary for a complete description of the crime charged,
or constitutes proof of the history of the crime charged.’” State v. Schaffer, 63
Wash. App. 761, 769, 822 P.2d 292 (1991) (quoting 5 KARL B. TEGLAND,
WASHINGTON PRACTICE: EVIDENCE § 115, at 398 (3d ed.1989)), aff’d, 120 Wash. 2d
616, 845 P.2d 281 (1993). Res gestae evidence is admissible “in order that a
complete picture be depicted for the jury.” State v. Tharp, 96 Wash. 2d 591, 594,
637 P.2d 961 (1981).
Here, J.C.’s inability to consent to sexual intercourse was proved by
evidence of her intoxication (as a result of drinking alcohol and taking Xanax
provided to her by Ventar). Thus, a reasonable judge could rule admissible
evidence as to how it was that J.C. obtained the Xanax. There was no unfair
prejudice.
The trial court did not abuse its discretion by denying Ventar’s request for
a mistrial.
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VI
Ventar next claims that the use of J.C.’s initials, instead of her full name, in
the jury instructions (1) constituted an impermissible judicial comment on the
evidence, (2) relieved the State of its burden of proof, and (3) together with the
use of J.C.’s initials in other court documents amounted to a court closure in
violation of Ventar’s right to a public trial. We disagree.
A
The Washington Constitution prohibits a judge from conveying personal
attitudes to the jury, or instructing a jury that “‘matters of fact have been
established as a matter of law.’” State v. Levy, 156 Wash. 2d 709, 721, 132 P.3d
1076 (2006) (quoting State v. Becker, 132 Wash. 2d 54, 64, 935 P.2d 1321 (1997)).
However, the use of a child victim’s initials in jury instructions do not constitute a
judicial comment on the evidence. State v. Mansour, 78708-0-I, slip op. at 1
(Wash. Ct. App. Aug. 24, 2020),
https://www.courts.wa.gov/opinions/pdf/787080.pdf.
This claim of error fails.
B
Ventar additionally claims that the use of J.C.’s initials undermined the
presumption of innocence by “preemptively telling the jury that the court was
protecting her as a sexual assault victim,” thus depriving him of his constitutional
right to due process. We disagree.
“Instructions must convey to the jury that the State bears the burden of
proving every essential element of a criminal offense beyond a reasonable
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doubt.” State v. Bennett, 161 Wash. 2d 303, 307, 165 P.3d 1241 (2007). “It is
reversible error to instruct the jury in a manner relieving the State of its burden to
prove every element of a crime beyond a reasonable doubt.” Bennett, 161
Wash. 2d at 307. An allegation that a jury instruction relieved the State of this
burden is an error of constitutional magnitude reviewable for the first time on
appeal. State v. Ridgley, 141 Wash. App. 771, 779, 174 P.3d 105 (2007). We
review challenged jury instructions de novo in the context of the instructions as a
whole. Bennett, 161 Wash. 2d at 307. However, it is established that the use of a
child victim’s initials in jury instructions does not undermine the presumption of
innocence. Mansour, slip op. at 8.
C
Finally, Ventar contends that the use of J.C.’s initials in the jury
instructions violated his right to a public trial. Again, we disagree.
“Both our federal and state constitutions guarantee a criminal defendant’s
right to a public trial.” State v. Turpin, 190 Wash. App. 815, 818, 360 P.3d 965
(2015). “An alleged violation of the right to a public trial presents a question of
law that this court reviews de novo.” Turpin, 190 Wn. App at 818. A public trial
claim may be raised for the first time on appeal. Turpin, 190 Wash. App. at 819.
Here, Ventar asserts that the use of J.C.’s initials constituted a court
closure for which the trial court was required to conduct an on-the-record
analysis applying the framework set forth in Seattle Times Co. v. Ishikawa, 97
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Wn.2d 30, 640 P.2d 716 (1982). He further argues that because the trial court
did not conduct such an analysis, reversal is required.5
An Ishikawa analysis is required only when the public trial right has been
implicated and when a closure is contemplated. Mansour, slip op. at 9. A
closure has occurred “‘when the courtroom is completely and purposefully closed
to spectators so that no one may enter and no one may leave,’” or “where a
portion of a trial is held someplace ‘inaccessible’ to spectators.” State v. Love,
183 Wash. 2d 598, 606, 354 P.3d 841 (2015) (quoting State v. Lormor, 172 Wash. 2d
85, 93, 257 P.3d 624 (2011)).
Here, J.C. testified using her full name in open court and was consistently
referred to by her full name throughout the proceedings. J.C.’s name was fully
accessible to spectators and open to any member of the public who physically
appeared in the courtroom, or who read a transcript of the trial court proceedings.
No closure occurred. No Ishikawa analysis was necessary. Ventar’s argument
thus fails.
VII
Ventar next makes several arguments regarding his sentence. First, he
contends that his offender score was incorrectly calculated because the two
convictions were erroneously not treated as the same criminal conduct. Second,
he avers that certain legal financial obligations should not have been imposed.
5 Ventar also filed a motion to strike the State’s brief, which used J.C. and other juveniles’
initials instead of their names. We deny that motion.
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A
Because we have determined that the child rape conviction must be
vacated, the same criminal conduct claim is moot.
B
Ventar asserts that a DNA collection fee should not have been imposed
on him because (1) he has prior felony convictions for which his DNA would have
been collected, and (2) the State did not provide any evidence that his DNA had
not already been collected. His argument has merit. “[W]hen a defendant has a
prior Washington felony conviction, the State must show that the defendant’s
DNA has not previously been collected.” State v. Houck, 9 Wash. App. 2d 636, 651
n.4, 446 P.3d 646 (2019). On remand, the trial court shall strike the DNA
collection fee unless the State meets its burden of proof.
Ventar additionally claims that interest should not have been imposed on
his nonrestitution legal financial obligations. Again, this claim has merit. The
plain language of RCW 10.82.090(1)6 makes clear that interest should not accrue
on nonrestitution legal financial obligations. On remand, the trial court shall
comply with the statute when resentencing Ventar.
VIII
Ventar also submitted a statement of additional grounds for review.
Pursuant to RAP 10.10, a defendant may file such a document to raise, identify,
and discuss those matter the defendant believes have not been adequately
6 “As of June 7, 2018, no interest shall accrue on nonrestitution legal financial
obligations.” RCW 10.82.090(1).
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addressed by defense counsel. We will not, however, consider a defendant’s
statement of additional grounds for review if it does not inform the court of the
nature and occurrence of the alleged errors, and we are not obligated to search
the record for support of claims made in a defendant’s statement of additional
grounds. RAP 10.10(c).
In his statement of additional grounds, Ventar argues that because he was
also drinking alcohol and using Xanax during the events at issue, he was also
necessarily incapable of consent. Accordingly, Ventar reasons, a “double
negative” rule should apply and “cancel out” his criminal behavior. Our law
recognizes no such rule.
Here, the jury was instructed that a reasonable belief that J.C. was not
mentally incapacitated or physically helpless was a defense to rape in the second
degree. If the jury believed that Ventar had proved by a preponderance of the
evidence that he was so intoxicated that he was unable to perceive J.C.’s mental
incapacity or physical helplessness, the jury’s verdict would have reflected this
finding. Ventar’s novel legal assertions fail to establish a ground for appellate
relief.
Ventar’s conviction of rape in the second degree is affirmed. Ventar’s
conviction of rape of a child in the third degree must be vacated, and the matter
is remanded to the trial court for resentencing.
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Affirmed in part, reversed in part, and remanded.
WE CONCUR:
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