State Of Washington v. Corey Alexander Ventar

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                                                    UNPUBLISHED OPINION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
No. 79178-8-I/2



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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No. 79178-8-I/4



       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 Wn.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 Wn.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 Wn.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 Wn.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

Wn.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 Wn. 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 Wn.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 Wn.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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No. 79178-8-I/8


                                               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 Wn.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 Wn. App. 541,

546, 726 P.2d 491 (1986) (citing State v. Guloy, 104 Wn.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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No. 79178-8-I/9


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 Wn.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 Wn.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 Wn.2d at 269 (internal quotation marks

omitted) (quoting State v. Hopson, 113 Wn.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

Wn. 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 Wn.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 Wn.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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No. 79178-8-I/11


                                          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 Wn.2d 709, 721, 132 P.3d

1076 (2006) (quoting State v. Becker, 132 Wn.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 Wn.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

Wn.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 Wn. 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 Wn.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 Wn. 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 Wn. 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 Wn.2d 598, 606, 354 P.3d 841 (2015) (quoting State v. Lormor, 172 Wn.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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No. 79178-8-I/14


                                                 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 Wn. 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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No. 79178-8-I/15


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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No. 79178-8-I/16


      Affirmed in part, reversed in part, and remanded.




WE CONCUR:




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