In re Huezo

• Docket Number: 38697-0-III
• Decision Date: 29 June 2023
• Parties: In the Matter of the Personal Restraint of JUAN LUNA HUEZO, Petitioner.
• Court: Washington Court of Appeals

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In the Matter of the Personal Restraint of JUAN LUNA HUEZO, Petitioner.

No. 38697-0-III

Court of Appeals of Washington, Division 3

June 29, 2023

UNPUBLISHED OPINION

Lawrence-Berrey, A.C.J.

Juan Luna Huezo seeks relief from personal restraint stemming from his 2018 convictions for one count of rape of a child in the first degree and two counts of child molestation in the first degree. In this timely petition, Mr. Luna Huezo argues his convictions should be reversed because improper witness opinions denied him his right to a jury trial and because the trial court erred by admitting hearsay. Also, he challenges eight community custody conditions. To the extent Mr. Luna Huezo seeks a new trial, we deny his petition. But to the extent he seeks relief from some community custody condition we grant partial relief.

FACTS

Mr Luna Huezo was the stepfather of two minor girls T.O.,^[1] born in April 2005, and B.O., born in July 2006. State v. Luna Huezo, No. 36001-6-III, slip op at 1 (Wash.Ct.App. Dec. 1, 2020) (unpublished) http://www.courts.wa.gov/opinions/ pdf/360016_unp.pdf. He is more than two decades older than the girls. He began sexually abusing T.O. when she was nine years old and B.O. when she was eight years old.

In 2017, T.O.'s friends saw her crying during class and, after speaking with her, reported their concerns to their teacher. T.O. and B.O. spoke with a school counselor and disclosed the sexual abuse. The counselor contacted the Kennewick Police Department and, the same day, Mauri Murstig, a forensic child interviewer at the Sexual Advocacy Response Center, interviewed both girls. T.O. described multiple instances of sexual abuse by Mr. Luna Huezo and details about specific items he used during the abuse- including duct tape, condoms, oil, and baby wipes, and the location of those items.

She also disclosed that Mr. Luna Huezo showed her pornographic videos using his cell phone and asked her to smile like the women in those videos.

Later that evening, the police obtained and executed a search warrant at the girls' home and their aunt's residence where they found condoms, oil, duct tape, zip ties, baby wipes, and a zebra blanket. Approximately two weeks later, Dr. Shannon Phipps, a family practice physician, conducted a sexual assault examination of T.O.

Procedure

The State charged Mr. Luna Huezo with one count of rape of a child in the first degree relating to T.O. and three counts of child molestation in the first degree, with one count relating to T.O. and two counts relating to B.O. The one count of rape of a child in the first degree and the first count of child molestation in the first degree alleged aggravating circumstances of an ongoing pattern of sexual abuse and breach of a position of trust. The second count of child molestation in the first degree alleged the aggravating circumstance of violation of a position of trust.

B.O testified at trial. Her answers were generally nonresponsive or vague regarding Mr. Luna Huezo's sexual acts with her, but she indicated he touched her "private part" under her clothes, with his hand. Rep. of Proc. (No. 36001-6) (RP) at 229-30. B.O. also testified she saw him touch T.O.'s "private part" underneath her clothes. RP at 236. B.O. stated she heard T.O. crying when Mr. Luna Huezo had T.O. in the bedroom with him.

T.O. also testified at trial. She testified about several instances in which Mr. Luna Huezo molested or penetrated her, including instances when he moved his fingers "in" her vagina and it hurt a little and one instance where he had her kneel and put her mouth "on" his penis while he was standing. RP at 254, 265.

T.O. testified Mr. Luna Huezo duct taped her hands together behind her back during one incident. She testified he would remove a condom from a "gray and blue" backpack he kept in the bathroom and put it on his "private part." RP at 263, 262. She said he would also "rub [oil] over his private part" and, after he finished, he always cleaned himself with a baby wipe and would throw it in the garbage. RP at 265. T.O. testified that when she asked him if he was doing the same thing to B.O., he replied yes.

Dr. Phipps testified about her examination of T.O. She is a family practice physician with Kadlec Clinics. At that time, she had been performing sexual assault examinations on young people for more than one year and had conducted approximately 10 to 12 examinations. She conducted the examinations at the request of law enforcement or the prosecutor's office. The State questioned Dr. Phipps about her examination of T.O.:

Q And did you ask [T.O.] why she-for her medical history?

A I did.

Q And what did she tell you?

[DEFENSE COUNSEL]: Your Honor, I'm going to object to any hearsay evidence.

[PROSECUTOR]: Your Honor, this is pursuant to the medical hearsay exception.

THE COURT: I'll overrule.

. . . .

Q Okay. So how did you continue your-or the exam with her?

A Well, I-after having asked the questions to make her comfortable, I asked her if she knew that she was to see me because law enforcement had asked her to come in. And she said she was. I then rephrased the question and I asked her if she knew why law enforcement had asked her to see me. And at that point she did start talking to me about her relationship with her stepfather and the behavior that her stepfather had done with her, which had led her to talk to her school counselor and inform law enforcement and then present to me.

. . . .

Q So what did she tell you?

A She told me that her stepdad, when her mom is at work, will take her to his room. This apparently has been ongoing since she was nine, she told me. She was able to tell me the age at which it started. So, approximately two years.

. . . .

Q And what did she tell you happened in his room?

A She stated to me that he would take off first her clothes and then his clothes. And then he would place his private parts-those were her exact words-on her private parts.

I did ask her to explain this a little bit more, being 11, she wasn't familiar with typical anatomy or names of anatomy. So I did explain to her the difference between a vagina and a rectum, because I was trying to ascertain, before I did the physical exam, what areas in which injury might have occurred.

And so what she told me was that-what she described to me was that he would attempt to place his penis in both her vagina and rectum; but she said that she was too small.

And what I understood from her was that there was more touching and not actual penetration, although perhaps some initially attempted penetration.

Q Did she talk about after that what did she-did you ask her about her putting her mouth or his put [sic] his mouth anywhere?

A I did ask her that. I asked her if her stepfather had ever had her place her mouth on, and I referred it to her in her terminology, his private. She shook her head yes. She didn't make a verbal reply, but she did shake her head yes.

RP at 145-49. The prosecutor asked Dr. Phipps if she came to an opinion regarding the physical state of T.O.'s body following her examination. Dr. Phipps responded:

I didn't find any abnormalities, physically, except for the psychiatric exam. But due to the fact that it was not an acute exam and healing can occur, that was not surprising to me; nor did it negate the history for me.

But I did think that she was a child who would benefit from having some counseling as well, because she was clearly, her affect and her mood demonstrated an abnormality that I would have considered consistent with some kind of trauma.

RP at 154. The prosecutor questioned Dr. Phipps "because you don't find any kind of physical manifestations in her body, does that mean that no sexual abuse occurred?" RP at 154. Dr. Phipps answered:

No, it doesn't. The body is incredible for healing. And I would relate this back to the example that I gave between an acute and a non-acute visit.

If you're walking down the street and you twist your knee. You might have some swelling initially. If you go immediately for something, that might be perceived. Whereas if you wait three or four days, the swelling may have resolved, there may not be a physical finding yet the injury still occurred, so the body can heal.

RP at 154. Dr. Phipps stated that she would not expect to see tears or lesions in the vaginal area if a penis rubbed against the area, rather than entered the vagina. Finally, Dr. Phipps declared that "[i]t's more typical not to find findings than to find findings" in sexual assault examinations. RP at 161.^[2]

Detective Jose Santoy with the Kennewick Police Department also testified. He testified he observed the forensic interview of the girls conducted by Ms. Murstig from a separate room behind two-way glass. Based on the interviews, he applied for separate search warrants for two locations. He described finding the items T.O. described during her forensic interview, including grapeseed and coconut oil, a package of baby wipes, a backpack containing condoms, and a backpack containing duct tape and zip ties. After the search, he set up the appointment for Dr. Phipps to examine T.O.

Mr. Luna Huezo testified in his defense. He denied any inappropriate sexual contact with either T.O. or B.O. After both parties rested, the State dismissed count 4, a child molestation charge involving B.O.

Verdict and sentence

The jury found Mr. Luna Huezo guilty on all remaining counts and found the presence of the aggravating factors. The court imposed an indeterminant sentence of 300 months to life and ordered Mr. Luna Huezo to comply with several conditions of community custody, including the following that he challenges in this petition:

5. Inform the supervising CCO^[3] and sexual deviancy treatment provider of any dating relationship.

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