State Of Washington v. Arthur E. Benson, (1 Aka), 74815-7

Background

In 2001–2002, A.L.F., age 7–8, lived with her mother and mother's boyfriend, Arthur Benson, who supervised her; Benson engaged her in sexual acts including showing his penis, having her touch it, one incident of oral-genital contact (penis in her mouth), and multiple incidents of genital-to-genital contact without penetration.
The State charged Benson with one count of first degree rape of a child (based on the oral-genital incident) and three counts of first degree child molestation (based on other non‑oral incidents).
At trial the court gave separate to‑convict instructions for each molestation count requiring acts to be "separate and distinct," but the rape instruction did not require a finding that it was separate and distinct from the molestation counts.
In closing, the prosecutor expressly elected the oral‑genital act for the single rape count and identified different acts/categories for the molestation counts.
The jury convicted on all counts; Benson appealed asserting a double jeopardy violation and challenging a community custody condition that prohibited frequenting areas where minors congregate as defined by the supervising officer.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions violated double jeopardy by potentially punishing same act twice	State: No double jeopardy because prosecutor clearly elected the oral‑genital act for rape and distinguished acts for molestation	Benson: Jury instructions lacked a requirement that rape be based on an act "separate and distinct" from molestation, risking multipunishment for same conduct	No double jeopardy violation — considering the full record (election in closing, separate to‑convict instructions, distinct evidence, defense focus on credibility), it was manifestly apparent the State sought separate punishments
Whether community custody condition is unconstitutionally vague	State conceded the condition was invalid	Benson argued condition was vague and delegated excessive discretion to supervising officer	Condition prohibiting "frequenting areas where minor children are known to congregate, as defined by the supervising Community Corrections Officer" is unconstitutionally vague and must be struck
Whether appellate costs may be awarded	State: generally seeks costs for prevailing party	Benson: trial court found indigent on appeal	Appellate costs not awarded unless State shows Benson's financial circumstances significantly improved since indigency finding
Whether additional grounds raising facts outside record are cognizable on appeal	Benson raised medical records and alibi evidence not in record	State: such matters not in record cannot be considered on direct appeal	Court: arguments relying on evidence outside the record are improper on direct appeal and should be raised via personal restraint petition

Key Cases Cited

State v. Land, 172 Wn. App. 593 (recognizes oral‑genital contact can constitute both rape and molestation and requires separate‑acts instruction when both charged)
State v. Pena Fuentes, 179 Wn.2d 808 (double jeopardy analysis: prosecutor's clear election and record can make it manifestly apparent convictions are for separate acts)
State v. Mutch, 171 Wn.2d 646 (discusses reviewing jury instructions in context of full record for double jeopardy issues)
State v. Borsheim, 140 Wn. App. 357 (unanimity instruction did not cure double jeopardy where identical counts lacked separate‑acts requirement)
State v. Irwin, 191 Wn. App. 644 (addresses limitations on overly vague community custody conditions)
State v. Alvarado, 164 Wn.2d 556 (procedural rules on appellate costs and prevailing party considerations)