Background - In 2008 Wilkins (stepfather) cared for NH, then age 3; NH later presented with genital lesions and tested positive for HSV-2. Medical staff noted signs of penetration. - NH reported nightmares and bedwetting years later; a 2014 videotaped forensic interview (age ~10) included NH describing Wilkins ordering her to remove clothes, getting on top of her, touching her "bad spot," and penetrating her. - The State charged Wilkins with first‑degree child rape and first‑degree child molestation; the trial court allowed the jury to view the full 2014 videotaped interview over defense objection. - At a pretrial amendment hearing the prosecutor suggested (imprecisely) the lesser molestation count would be dismissed if the jury convicted on both counts; at sentencing the parties agreed the offenses constituted "same criminal conduct" for offender‑score purposes only. - The jury convicted on both counts; Wilkins was sentenced concurrently. On appeal he argued double jeopardy (and judicial estoppel), asserted the videotape should have been redacted, claimed ineffective assistance, and alleged prosecutorial misconduct. The court affirmed. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---:|---|---| | Judicial estoppel based on prosecutor's pretrial statements | State is estopped from arguing against dismissal because prosecutor said the lesser count would be thrown out | Wilkins: prosecutor’s statements guaranteed dismissal so State cannot now assert convictions are valid | Rejected — prosecutor’s statements were tentative, not clearly inconsistent; judicial estoppel not established | | Double jeopardy (are rape and molestation the same offense?) | Wilkins: convictions for both arising from one incident constitute multiple punishments for same offense | State: statutes have different elements (rape requires intercourse/penetration; molestation requires sexual contact for gratification) so separate punishable offenses | Affirmed for State — offenses differ in law and fact; no double jeopardy violation given unrebutted presumption legislature intended separate punishment | | Admissibility / redaction of videotaped statements (ER 404(b)) | Wilkins: NH’s statement that Wilkins "does bad things to kids" was prior bad‑act evidence and should be redacted | State: statements show victim’s state of mind, lack specificity, and were admissible; trial court properly admitted full tape | Affirmed — trial court did not abuse discretion; statements deemed victim’s state of mind, not propensity evidence | | Prosecutorial misconduct & ineffective assistance | Wilkins: prosecutor improperly commented on defendant’s statement and appealed to juror sympathy; counsel failed to object to exhibits/medical records | State: prosecutor’s comments were permissible inferences from defendant’s admitted statement and reasonable response to defense attacks; no medical records were admitted | Affirmed — no prosecutorial misconduct shown; ineffective assistance claim fails because record shows no disputed exhibit admission | ### Key Cases Cited State v. French, 157 Wn.2d 593 (2006) (child molestation is not a lesser‑included offense of child rape) State v. Fuentes, 179 Wn.2d 808 (2014) (double jeopardy analysis requires offenses be identical in law and fact) State v. Calle, 125 Wn.2d 769 (1994) (Blockburger and legislative‑intent framework for multiple punishments) State v. Hughes, 166 Wn.2d 675 (2009) (circumstances where different statutes nevertheless preclude multiple punishments) State v. Land, 172 Wn. App. 593 (2013) (single incident may support convictions for both rape and molestation where penetration and sexual contact elements differ) State v. Jones, 71 Wn. App. 798 (1993) (upholding convictions for both child rape and molestation from same incident) State v. Womac, 160 Wn.2d 643 (2007) (double jeopardy and vacation of lesser conviction when multiple punishments result) State v. Albarran, 187 Wn.2d 15 (2016) (vacatur of lesser conviction is proper remedy for double jeopardy violation)