Opinion
No. 28539-1-III.
Filed: March 3, 2011.
Appeal from a judgment of the Superior Court for Spokane County, No. 09-1-02188-1, Jerome J. Leveque, J., entered October 16, 2009.
Reversed and remanded by unpublished opinion per Siddoway, J., concurred in by Kulik, C.J., and Sweeney, J.
David Miller appeals his judgment and sentence for third degree child rape and third degree child molestation, claiming that (1) a Petrich instruction was required but not given in connection with the third degree child molestation charge and (2) he received ineffective assistance when his trial counsel failed to argue that his convictions were based on the "same criminal conduct" for purposes of calculating his offender score. We agree that the conviction for third degree child molestation must be reversed in light of what appears to have been an inadvertent omission of a unanimity instruction, an outcome that renders Mr. Miller's other assignments of error moot. We reject the arguments in his statement of additional grounds as insufficiently stated and supported.
State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984).
FACTS AND PROCEDURAL BACKGROUND
David Miller was convicted of third degree child rape and third degree child molestation for sexual contact and sexual intercourse with the 15-year-old daughter of a family to whom he was related by marriage and had been a family friend for many years. The State alleged that Mr. Miller committed the crimes between May 8, 2008 and March 13, 2009. He was 38 years old at the time.
Mr. Miller admitted at trial that he had engaged in a sexual relationship with the victim, M.L.P., but asserted that it began only after her sixteenth birthday and that the sexual contact was consensual. While M.L.P. also characterized the sexual contact as consensual, she testified to several instances of sexual contact and intercourse while she was only 15. Evidence at trial also included a statement Mr. Miller had provided to police in which he placed the sexual intercourse "around," not after, M.L.P.'s sixteenth birthday. Report of Proceedings (RP) at 516.
Among the evidence of sexual contact presented to the jury was the following:
M.L.P. testified that she and Mr. Miller had sexual intercourse for the first time on the weekend of May 8, 2008, when he was baby-sitting her and her younger siblings. She testified to having sexual intercourse with Mr. Miller for the second time a few weeks later, in his sports utility vehicle. She testified that sometime during the summer of 2008, she and Mr. Miller were discovered by her mother "having sex with our clothes on basically" in the living room of her home. RP at 411. All of these contacts took place while she was 15 years old. She testified that for a couple of years before she and Mr. Miller had sexual intercourse, they held hands, kissed, and engaged in genital touching. While she testified to a hiatus in her sexual relationship with Mr. Miller after the occasion when the two were discovered by her mother, she testified that the two engaged in sexual intercourse regularly after her sixteenth birthday.
M.L.P.'s mother testified that sometime between late July and early August 2008 she encountered Mr. Miller and M.L.P. in her home with M.L.P. straddling his lap, fully clothed but with genital-to-genital contact. RP at 302-04.
Detective David Ellis testified that when interviewed, Mr. Miller admitted to a first incident of intercourse with M.L.P. at her home, a second incident of oral sex and intercourse in Mr. Miller's vehicle, and a third incident at the home where the two were discovered by M.L.P.'s mother. The detective testified that when interviewed, Mr. Miller admitted that these events took place on dates when M.L.P. was 15 years old.
The State's proposed jury instructions included three proposed unanimity instructions, one regarding each of the counts charged, which included a charge of child molestation in the second degree (alleging sexual contact prior to M.L.P.'s fourteenth birthday) of which Mr. Miller was acquitted. Clerk's Papers (CP) at 37, 39, 41. However, the final instructions read to the jury and filed with the clerk contained unanimity instructions for only the charges of child rape in the third degree and child molestation in the second degree. CP at 92-112.
Instruction 9, dealing with the count of third degree child rape, is representative of the instructions:
The State alleges that the defendant committed acts of rape of a child in the third degree on multiple occasions. To convict the defendant of rape of a child in the third degree, one particular act of rape of a child in the third degree must be proved beyond a reasonable doubt, and you must unanimously agree as to which act have [sic] been proved. You need not unanimously agree that the defendant committed all the acts of rape of a child in the third degree.
CP at 102.
Before the trial court instructed the jury, defense counsel was asked whether he had any objections or exceptions to the jury instructions to be given by the court and responded that he had none. In closing arguments to the jury, the State did not identify a single incident from among the evidence presented as the basis for the count of child molestation in the third degree.
The jury found Mr. Miller guilty of third degree child rape and third degree child molestation. The two convictions were counted against each other as current offenses and resulted in Mr. Miller being sentenced with an offender score of three. Mr. Miller appeals.
ANALYSIS
Mr. Miller raises three issues on appeal, but we find one — the failure to provide a unanimity instruction for the count of child molestation in the third degree — to be dispositive. The State does not dispute that the instruction should have been given, but argues that the error was invited and therefore cannot be the basis for appeal.
The jury was instructed that to convict Mr. Miller of child molestation in the third degree, the State must prove, among other elements, that "between May 8, 2008 and March 13, 2009 the defendant had sexual contact with M.L.P." CP at 105 (Instruction 12). "Sexual contact" was defined for the jury to mean "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party or a third party." CP at 109 (Instruction 16). As summarized above, the jury had been presented with evidence of multiple distinct acts of sexual contact taking place during the time frame identified in the instruction.
A time frame during which M.L.P. was 15 years old.
In Petrich, the court held that in cases in which evidence indicates that several distinct criminal acts have been committed but the defendant is charged with only one count of criminal conduct, the constitutional requirement of jury unanimity must be assured by either requiring the State to elect the act on which it will rely for conviction or instructing the jury that all 12 jurors must agree that the same criminal act has been proved beyond a reasonable doubt. 101 Wn.2d at 572. When, as here, the State does not elect, a jury instruction must be given to assure the jury's understanding of the unanimity requirement. Id. In some multiple acts cases in which a dedicated Petrich instruction was not given for each count, an omnibus instruction has been found adequate. See State v. Noltie, 116 Wn.2d 831, 843, 809 P.2d 190 (1991) (finding adequate an instruction that "`Although the twelve of you need not agree that all of the acts have been proved, to convict the defendant of Count I or Count II you must unanimously agree that at least one separate act of sexual intercourse pertaining to each count has been proved beyond a reasonable doubt'"); State v. Ellis, 71 Wn. App. 400, 402, 859 P.2d 632 (1993) (finding marginally adequate an instruction that "`Although twelve of you need not agree that all the acts have been proved, you must unanimously agree that at least one particular act has been proved beyond a reasonable doubt for each count'").
The invited error doctrine "prohibits a party from setting up an error at trial and then complaining of it on appeal." State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995). The defendant must materially contribute to the error challenged on appeal by engaging in some type of affirmative action through which it knowingly and voluntarily sets up the error. In re Pers. Restraint of Call, 144 Wn.2d 315, 326-28, 28 P.3d 709 (2001); State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996). The State bears the burden of proving invited error. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004).
The State has not met that burden here. The parties agree that the State requested the instruction and defense counsel did not object to it. There is nothing in the record to suggest that the court ever affirmatively indicated to counsel that it was rejecting the State's proposed instruction. There is nothing in the record to suggest that defense counsel knowingly and voluntarily set up the error — at most, he failed to notice that one unanimity instruction had been omitted, apparently inadvertently, from the final instructions prepared by the court and read to the jury.
In addition, the record before us does not conclusively establish that Mr. Miller failed to propose unanimity instructions for each count. The clerk's papers do not contain Mr. Miller's proposed instructions. Because the State has not shown that defense counsel "set up" the trial court by inducing the alleged error, the invited error doctrine does not apply.
Other instructions given in this case do not cure or mitigate the omission of an instruction requiring unanimity on the charge of child molestation in the third degree. Indeed, the fact that the instructions specified two charges on which the jury must be unanimous and failed to include a similar instruction for the third charge could be construed to imply that unanimity was not required as to that charge.
When the State fails to make an election in a multiple acts case and the trial court fails to instruct the jury on unanimity as to that charge, there is constitutional error. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). Mr. Miller is entitled to a reversal of his conviction for child molestation in the third degree.
Reversal of one of the two convictions renders moot Mr. Miller's assignments of error relating to "same criminal conduct" and ineffective assistance of counsel.
STATEMENT OF ADDITIONAL GROUNDS
Mr. Miller raises several issues in his one-page statement of additional grounds, including whether his confession was coerced, whether he properly invoked his Sixth Amendment right to counsel, whether perjured testimony was offered at trial, and whether Detective Ellis's testimony was hearsay. He fails to provide enough information for us to understand the nature and occurrence of the alleged errors. While a defendant is not required to cite to the record or authority for his statement of additional grounds, we are not required to search the record to find support for the defendant's claims. RAP 10.10(c). Mr. Miller has not sufficiently explained the factual basis or legal authority for his claims to allow for any meaningful review. To the extent that Mr. Miller relies on matters outside the record, a personal restraint petition is the appropriate means to raise such issues. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
We reverse Mr. Miller's conviction for child molestation in the third degree, vacate the judgment and sentence, and remand for proceedings consistent with this opinion.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and SWEENEY, J., Concur.