Opinion
No. 26608-3-II
Filed: December 9, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County Docket No: 99-1-00995-9 Judgment or order under review Date filed: 10/24/2000
Counsel for Appellant(s), R. A. Lewis, Attorney at Law, 430 N.E. Everett St, Camas, WA 98607-2115.
Counsel for Respondent(s), John Prince Fairgrieve, Attorney at Law, 1200 Franklin, P.O. Box 5000, Vancouver, WA 98666-5000.
A jury convicted Randy Rugg of molesting his teenage step-daughter, D.J., finding him guilty of second degree child molestation, Count II, and attempted second degree child molestation, Count I. Believing that the instructions setting out the elements of each second degree child molestation and attempted child molestation charge required that the jury be unanimous in their findings, the trial court declined to give a separate unanimity instruction. The elements instruction on the second degree child molestation expressly required that "[a]ll twelve of you must agree that the same underlying criminal act has been proved beyond a reasonable doubt." Clerk's Papers (CP) at 78.
Thus, we affirm Count II.
But the elements instruction on the attempted second degree child molestation count did not include this requirement. Because the attempted molestation instruction in Count I failed to require unanimity, we vacate the jury's verdict as to that count and reverse the attempted second degree child molestation conviction.
FACTS
One day in mid-April, 1999, D.J.'s mother, Kerrie Rugg, told D.J. that her step-father, Randy Rugg, wanted to engage in a "threesome" with the two of them. Report of Proceedings (RP) (7/17/00) at 39-40. When D.J. refused, Kerrie told her that Rugg would pay D.J. $500 if she agreed. D.J. was born on August 13, 1984, and was 14 years old at that time. D.J. called Child Protective Services (CPS) and told them about the incident. Approximately 10 days later, D.J. met with Detective Jane Scott and a social worker, David Pike, from the Child Abuse Intervention Unit in Vancouver and reported two other molesting incidents involving Rugg. Detective Scott and Detective Barry Folsom contacted Rugg at his workplace and asked him if he would consent to discuss the allegations. Rugg admitted having committed most of the acts D.J. reported, but told the detectives that the offer of the "threesome" and the money was made "in jest." RP (7/18/00) at 227. He also stated that another incident, in which he demanded that D.J. place a condom on his erect penis, was intended to educate D.J. about sex. He claimed to have no recollection of a third event we refer to as the "kissing" incident.
Pre-Trial Motions
On June 29, 1999, the State charged Rugg with two counts of second degree child molestation of D.J. On November 23, 1999, the court granted the State's request to amend the information to add a solicitation charge related to the "threesome" incident. At the same hearing, the court denied Rugg's request for a "taint hearing" (RP (11/23/99) at 18) and addressed both parties' motions in limine. Specifically, the State sought a ruling on the admissibility of testimony that Rugg molested his biological daughter when she was 11 to 13 years old.
RCW 9A.44.086 states
(1) A person is guilty of child molestation in the second degree when the person has sexual contact with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.
(2) Child molestation in the second degree is a class B felony. (Emphasis added.)
At a "taint hearing" the defendant moves to suppress testimony of a witness, usually a child, on grounds that the testimony is the product of leading, suggestive, or coercive questioning and, therefore, unreliable.
The State learned of R.R.'s claims during trial preparation.
The State alleged that R.R.'s testimony was admissible under ER 404(b) to show motive or intent and/or lack of mistake or accident and was relevant to rebut Rugg's claim that his conduct with D.J. was intended as sex education. The trial judge ruled that the State could call R.R. as a witness, subject to a later ER 404(b) hearing.
On December 2, 1999, the court heard Rugg's motion to suppress statements he made to Detective Scott and Detective Folsom. The trial court ruled the statements admissible. Rugg does not challenge this ruling on appeal.
On January 4, 2000, Rugg waived his timely trial and constitutional speedy trial rights in open court. Two weeks before the February 14, 2000 trial, the State moved to amend the information to add two charges alleging that Rugg molested his biological daughter, R.R. Rugg objected to the amendment, arguing that it was vindictive and untimely because the State had been aware of R.R.'s allegations for months and the original trial date had passed without the State adding the new charges. RP (2-1-00) at 7.
Rugg's waiver of speedy trial lists the right to trial within 60 days of arraignment if incarcerated or 90 days if not (under the criminal rules) and the constitutional right to a speedy trial. Additionally, Rugg acknowledged by his signature that he had been informed that if he did not receive a trial within those time limits, the case would be dismissed and could never be filed again and, knowing all this, he waived the right to trial within a certain number of days and the constitutional right to speedy trial. The judge also signed, indicating "I have questioned the defendant and find that (1) he intelligently, knowingly and voluntarily waived the above rights to speedy trial, and (2) that he was competent to make such waiver." CP at 29.
The State gave no reason for its delay in charging Rugg for R.R.'s claims, but it stressed that the new charges involved the same evidence as would have come in under ER 404(b) to show intent or lack of mistake. Over Rugg's objection, the trial court allowed the amendment and granted Rugg's subsequent request for a continuance.
On April 6, 2000, the court granted the State's request for another continuance because R.R. was pregnant and her doctors believed the stress of testifying would be dangerous to her health and that of her unborn child. Rugg suggested that the court sever the trial, thereby allowing the trial of the charges relating to D.J. to go forward and trying the charges relating to R.R. once she was able to testify. But because R.R. was also a witness in D.J.'s trial, the trial court denied Rugg's motion to sever and continued the trial to May 30, 2000.
On May 26, 2000, Rugg requested a continuance. The court granted his request and reset the trial date to July 17, 2000. On July 12, 2000, the court heard Rugg's formal motion to sever. Rugg argued that both cases (three counts regarding D.J. and two counts regarding R.R.) were weak and the evidence from each would be used to bootstrap the other. The court denied the motion and ruled that because Rugg told Detective Scott and Pike that his conduct with D.J. was either "in jest" or sex education, R.R.'s testimony was admissible in D.J.'s trial under ER 404(b) to show motive, intent, and/or lack of mistake.
On the first day of trial, July 17, 2000, the State submitted various motions. In one, the State sought permission to inquire into alleged incidents of domestic violence perpetrated by the defendant against [D.J.], and other acts witnessed by [R.R.]. In [D.J.'s] case, such evidence is relevant to explain her inconsistent statements and fear of the defendant; in [R.R.'s] case such evidence is relevant to explain her delay in reporting the abuse. CP at 58 (State's Additional Motions in Limine).
The court granted this motion.
Trial At trial, D.J. testified to five events. In the "kissing" incident, D.J. testified that Kerrie (her mother) called D.J. into the bedroom Kerrie shared with Rugg, and that Kerrie and Rugg were naked. Rugg told D.J. that "he wanted to teach [her] about sex." RP (7/17/00) at 45. He told D.J. to undress and when she had done as he directed, kissed her neck, breasts, stomach, and inner thighs. The "condom" incident also began with Kerrie calling D.J. into the adults' bedroom. This time Rugg told D.J. that he wanted to teach her how to put on a condom. D.J. refused and they argued. At some point Kerrie placed D.J.'s hand on Rugg's erect penis and moved D.J.'s hand back and forth until Rugg ejaculated. Although D.J.'s testimony is not entirely clear, she appeared to testify that the first event occurred in 1997, and the second about five months later. D.J. turned 14 on August 13, 1998. D.J. also testified (over Rugg's objection) that Rugg struck her once, leaving a mark or bruise. She claimed that she was afraid of Rugg because he was verbally abusive. The State then called D.J.'s mother, Rugg's wife, Kerrie. Out of the jury's presence, the court granted the State's motion that it be allowed to question Kerrie as a hostile witness. Kerrie corroborated much of D.J.'s account of the request for the threesome, but she denied that she would ever have let it happen. She also denied conveying any offer of money to D.J. Kerrie corroborated D.J.'s version of the "kissing" incident in all respects except that Kerrie claimed Rugg only kissed D.J. on the shoulder and simply "pointed to" the other areas men or boys might "go for." RP (7/18/00) at 142. Kerrie denied the condom incident completely. Kerrie acknowledged that she loved Rugg, that she still lived with him, and that they arrived at the courthouse together. Responding to the State's question of whether she supported Rugg over her daughter, Kerrie replied, "No, not necessarily. They took their own way." RP (7/18/00) at 153. Kerrie also testified that she had been charged with and pleaded guilty to obstruction of justice for her attempt to dissuade D.J. from testifying. Defense counsel did not object to these questions.
D.J. testified to five specific instances of sexual misconduct: (1) the threesome request; (2) the kissing incident; (3) the condom incident; (4) an offer to terminate her grounding discipline if D.J. allowed Rugg to ejaculate on her breasts; and (5) an incident where Rugg fondled her breasts while she worked at the computer.
Rugg admitted that he told D.J. to put a condom on his erect penis. Detective Scott did not testify about whether he admitted that Kerrie placed D.J.'s hand on his penis and showed her how to masturbate him.
On cross examination, the prosecutor interposed a relevance objection. Sustaining the objection, the judge pointed out that defense counsel was also leading the witness: And even though [the State] called the witness, she's an adverse witness, I don't think that gives you the opportunity to lead, Counsel. So try to avoid leading if you can. Let's go forward. She's identified with your side of the case, Counsel, obviously. She came in with Mr. Rugg.
Next question. RP (7/18/00) at 155-56 (emphasis added). Defense counsel did not object, request a curative instruction, or move for a mistrial after the court made this comment. In her testimony, Detective Scott related Rugg's admissions regarding the "threesome" solicitation offer and his admission that he asked D.J. to put a condom on his erect penis. She indicated that Rugg told her that the first incident was a joke and that the second was to educate D.J. Detective Scott also testified that Rugg asserted that he did not recall the "kissing" incident. Before the State called its first witness on the charges involving Rugg's biological daughter, R.R., Rugg renewed his motion for severance. The court denied the motion, explaining that the sex education aspect of this permeates the whole panoply of testimony, if you will, from [D.J.], Kerrie Rugg, Randy Rugg through his statements to Detective Jane Scott. So I think that the bases if you will for bringing — allowing the two cases to stay together for the purpose of using or allowing the jury . . . to use the interaction of the two alleged victims to form as a basis for intent as to what Mr. Rugg's real intent was. RP (7/18/00) at 263. R.R. testified that when she was 10 or 12 years old, Rugg would have her sit on his lap and that he would put his hands on her buttocks and under her clothes. R.R. also testified that Rugg scared her because he was violent. She also testified that when she was four or five years old she witnessed Rugg push her younger sister off a chair for spilling juice. R.R. also testified that D.J. showed her a big bruise on her foot one morning, which R.R. believed Rugg caused. Rugg was never charged with the instances of domestic violence described by D.J. and R.R. After the State rested, the trial court granted Rugg's motion to dismiss Count IV, the first degree child molestation charge involving R.R.
Specifically, Detective Scott testified that Rugg explained that "it's essentially a demonstration where he, Kerrie, and [D.J.] are all present and he asked [D.J.] to put the condom on but according to him she declined." RP (7/18/00) at 226. Detective Scott then testified that Rugg explained that he naturally would have his pants off and would have an erection, as "[y]ou can't put [a condom] on otherwise." Id.
Jury Instructions
The trial court gave the jury the following elements instructions: To convict the defendant of the crime of Child Molestation in the Second Degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That between the 1st day of January, 1997 through the 17th day of April, 1999, on a separate occasion than that charged in Count II, the defendant had sexual contact with [D.J.] (dob: 8-13-84); (2) That [D.J.] was at least twelve years old but less than fourteen years old at the time of the sexual contact and was not married to the defendant; (3) That the defendant was at least thirty-six months older than [D.J.]; and (4) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. All twelve of you must agree that the same underlying criminal act has been proved beyond a reasonable doubt. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 72 (Instruction No. 8); CP at 78 (Instruction No. 14 (modified to reference Count II)). The trial court gave the jury an inferior degree instruction on attempted second degree child molestation in Count I. To convict the defendant of Attempted Child Molestation in the Second Degree in regards to Count I, each of the following elements of the crime must be proved beyond a reasonable doubt. (1) That between the 1st day of January 1997 and the 17th day of April, 1999, the defendant did an act which was a substantial step toward the commission of Child Molestation in the Second Degree; (2) That the act was done with the intent to commit Child Molestation in the Second Degree; and (3) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 77 (Instruction No. 13). The trial court overruled Rugg's request for proposed jury instruction No. 18, which read as follows: There are allegations that the defendant committed acts of Child Molestation in the Second Degree and Child Molestation in the First Degree on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt. CP at 109. Observing that the proposed instruction No. 18 was "basically the Petrich instruction," the court explained that it could simply be removed as the "to convict" instructions also charged the jury to agree on the same underlying criminal act. RP (7/19/00) at 369.
The instruction was drafted when Rugg was charged with Count IV, first degree child molestation of R.R. Because the instruction referred to a charge of first degree child molestation that was not before the jury, it would have been error for the trial court to give this instruction in its proposed form. But the court should have directed the State to retype the instruction to correctly reflect the charges before the jury.
State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984).
Defense counsel specifically objected to the "to convict" instruction for second degree child molestation and to the court's refusal to give a specific Petrich unanimity instruction. The jury returned a verdict of guilty of attempted second degree child molestation on Count I, and a verdict of guilty of second degree child molestation in Count II. The jury was unable to reach a verdict on Count III, the solicitation ("threesome") charge. Count IV alleging first degree child molestation against R.R. was dismissed before deliberations, and Rugg was found not guilty of second degree child molestation, Count V, also involving his biological daughter, R.R. Rugg raises numerous issues: (1) Was the filing of the amended information vindictive and untimely such that it deprived him of a fair trial? (2) Did the trial court violate his right to a timely trial under CrR 3.3 when it continued his trial to protect the health of his pregnant victim/witness daughter? (3) Was evidence of Rugg's sexual activity with his biological daughter admissible under ER 404(b) to rebut his claim that he was joking or educating his step-daughter when he performed the sexual acts alleged? (4) Was evidence of uncharged allegations of domestic violence admissible to explain the delay in D.J. and R.R.'s reports of abuse? (5) Did the trial court comment impermissibly on the credibility of hostile witness, Kerrie Rugg? (6) Was there sufficient evidence to prove that the acts in question occurred while D.J. was more than 12 but less than 14 years of age? (7) Did the elements instructions adequately inform the jury that they must be unanimous in their finding of the events supporting the charges? We address each in turn.
Counsel stated that he "would like a specific Petrich instruction." RP (7/19/00) at 369.
ANALYSIS
(1) Amending the Information On February 1, 2000, the State moved to amend the information to add Count IV, first degree child molestation, and Count V, second degree child molestation, of Rugg's biological daughter, R.R. Rugg claims that the State's motion to amend the information was filed in retaliation for his refusal to accept the plea bargain and that amending the information 14 days before trial forced him to choose between his right to a speedy trial and his right to adequately prepare for trial. The court may allow the State to amend an information "at any time before verdict or finding if substantial rights of the defendant are not prejudiced." CrR 2.1(d). These substantial rights include the right to effective representation by counsel and the right to speedy trial. State v. Earl, 97 Wn. App. 408, 410-11, 984 P.2d 427 (1999).
The defendant must prove by a preponderance of the evidence that interjection of new facts into the case, when the State has not acted with due diligence, will compel him to choose between these rights. State v. Woods, 143 Wn.2d 561, 583, 23 P.3d 1046, cert. denied, 122 S.Ct. 374 (2001). See also State v. Price, 94 Wn.2d 810, 814, 620 P.2d 994 (1980). The defendant has the burden of showing prejudice. State v. Guttierrez, 92 Wn. App. 343, 346, 961 P.2d 974 (1998) (citing State v. Gosser, 33 Wn. App. 428, 435, 656 P.2d 514 (1982)).
We review a ruling granting a motion to amend the information for abuse of discretion. State v. Brett, 126 Wn.2d 136, 155, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). An abuse of discretion occurs when the trial court's ruling is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). See also State v. Jackson, 111 Wn. App. 660, 669, 46 P.3d 257 (2002) (court's ruling on change of venue motion discretionary; discretion abused when exercised in manifestly unreasonable manner or on untenable grounds). At the time of the amendment, Rugg had been aware of the substance of R.R.'s testimony for nearly three months, since November 23, 1999.
Moreover, Rugg's counsel interviewed R.R. on December 1, 1999, after the court tentatively ruled that her testimony regarding Rugg's molesting her was admissible under ER 404(b). Defense counsel acknowledged that he received formal notice of the State's intent to file an amended information on January 27, 2000, 18 days prior to trial. And the prosecution had indicated the possibility that additional charges would be filed based on R.R.'s statements at the time she and her mother were interviewed in late November/early December 1999. Because defense counsel knew the nature of R.R.'s testimony and the possibility that the State would file additional charges nearly three months before the then scheduled trial date, the record does not support Rugg's claim that amending the information was untimely or prejudicial. Nor does the record support Rugg's vindictive prosecution claim. Prosecutorial vindictiveness is the intentional filing of a more serious crime in retaliation for a defendant's lawful exercise of a procedural right. State v. Bonisisio, 92 Wn. App. 783, 790, 964 P.2d 1222 (1998) (quoting State v. Lee, 69 Wn. App. 31, 35, 847 P.2d 25 (1993) (quoting State v. McKenzie, 31 Wn. App. 450, 452, 642 P.2d 760 (1981))), review denied, 137 Wn.2d 1024 (1999). An initial charging decision does not freeze prosecutorial discretion. Bonisisio, 92 Wn. App. at 790. Prosecutorial vindictiveness must be distinguished "from the rough and tumble of legitimate plea bargaining." Lee, 69 Wn. App. at 35.
"The mere appearance of vindictiveness is insufficient to establish a due process violation." State v. Lass, 55 Wn. App. 300, 306, 777 P.2d 539 (1989). And a mere opportunity for vindictiveness is an insufficient reason for limiting prosecutorial discretion and will not support a claim of prosecutorial vindictiveness. Rugg argues that the prosecutor's actions lead to the implication that the State was retaliating. But the State had notified the defense of the possibility of filing the charges for the molestation of R.R. late in November or early December 1999, long before plea negotiations failed. Even following unsuccessful plea negotiations, "absent . . . a showing [of actual vindictiveness], there is no violation of due process merely because a prosecutor "ups the ante" by amending to a higher charge." Lee, 69 Wn. App. at 37 (citing United States v. Goodwin, 457 U.S. 368, 382-84, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). Thus, the record does not support Rugg's claim that the State retaliated against him. (2) Continuances/Timely Trial Rugg next asserts that the trial court did not meet its responsibility to ensure a timely trial in accordance with CrR 3.3(a) when it allowed a continuance because of R.R.'s pregnancy on April 6, 2000.
Rugg, of course, sought a continuance of his February 14, 2000 trial date. He states his speedy trial waiver is not binding because it showed no expiration date. See Br. of Appellant at 22 (citing State v. Helms, 72 Wn. App. 273, 275, 864 P.2d 23 (1993) (holding that a waiver of unspecified duration is effective "only until the date of the trial contemporaneously or subsequently set by the court")). The waiver to which he refers is CP at 32. He does not address the waiver in open court on January 4, 2000.
In open court Rugg waived both his timely trial rights under CrR 3.3 as well as his constitutional speedy trial rights without reservation.
Initially, we note that on April 6, 2000, the trial court granted the State's motion to continue the trial to May 30, 2000, to accommodate R.R.'s health needs. But on May 26, Rugg asked the court to continue the trial and waived his rights to timely trial under CrR 3.3. Because Rugg waived his timely trial rights under CrR 3.3 and his constitutional right to a speedy trial, we need not address the merits of this claim. Rugg argues, however, that his waivers are ineffective. We disagree. Under CrR 3.3(h)(2), a trial court may continue a case when required in the administration of justice and if the defendant will not be prejudiced. See also State v. Woods, 143 Wn.2d 561, 579, 23 P.3d 1046, cert. denied, 122 S.Ct. 374 (2001). A continuance is proper when a material State witness is unavailable if (1) there is a valid reason for the unavailability, (2) the witness will become available within a reasonable time, and (3) there is no substantial prejudice to the defendant. State v. Nguyen, 68 Wn. App. 906, 914-15, 847 P.2d 936 (upholding continuance when the primary investigator on the case was called for immediate Air National Guard duty during Operation Desert Shield), review denied, 122 Wn.2d 1008 (1993). See also State v. Day, 51 Wn. App. 544, 754 P.2d 1021 (affirming trial court's continuance of defendant's trial for murdering his first wife to allow his second wife to complete dissolution proceedings against him and thus be eligible to testify), review denied, 111 Wn.2d 1016 (1988).
Additionally, Rugg unconditionally waived his timely trial and constitutional speedy trial rights on January 4, 2000, in open court.
Due to her high risk pregnancy, R.R. was unavailable as a witness for about six weeks, a reasonable time given that Rugg was not incarcerated. In addition, Rugg did not demonstrate how the April 6, 2000 continuance prejudiced his defense. And, given his waivers and subsequent and previous motions for a continuance, his claim that his timely trial rights under CrR 3.3 have been violated is meritless. Accordingly, we hold that Rugg's trial was timely and that the trial court did not abuse its discretion when it granted the State's request for a continuance to protect the health of Rugg's biological daughter and his unborn grandchild. (3) Failure to Sever Rugg argues that the trial court erred in denying his motion to sever Counts I, II, and III (the D.J. charges) from Counts IV and V (the R.R. charges). He asserts that the inherent prejudice in trying cumulative sex offenses where the charges only had one witness (Detective Scott) in common required severance. Br. of Appellant at 26-31 (citing State v. Ramirez, 46 Wn. App. 223, 730 P.2d 98 (1986)).
Rugg's argument presupposes that R.R.'s testimony is not admissible under ER 404(b) on Counts I through III.
The State argued that R.R.'s testimony was admissible on Counts I through III under ER 404(b) to show Rugg's motive or intent. During the interview with Detective Scott, Rugg admitted both the "threesome" and the condom incidents, but he stated that he had no memory of the "kissing" incident in which D.J. claimed he kissed her shoulder, breasts, stomach, and the inside of her thighs. Rugg characterized the "threesome" incident as a jest and the condom incident as sex education. RP (7/18/00) at 226-27.
The State sought to admit R.R.'s testimony to refute Rugg's defensive explanations and to establish that his true intention was his own sexual gratification. Later at trial, when Rugg renewed his motion to sever, the court explained that the defense theory of "sex education" ran through the testimony of D.J., Kerrie, and the statements Rugg made to Detective Scott; the court reiterated that R.R.'s testimony was relevant to refute that claim. [T]he sex education aspect of this permeates the whole panoply of testimony, if you will, from D[.J.], Kerrie Rugg, Randy Rugg through his statements to Detective Jane Scott. So I think that the bases if you will for bringing — allowing the two cases to stay together for the purpose of using or allowing the jury . . . to use the interaction of the two alleged victims to form as a basis for intent as to what Mr. Rugg's real intent was. RP (7/18/00) at 263.
The real dispute between the parties is whether R.R.'s testimony was only admissible if Rugg had testified and offered his sex education claim as a defense at trial, whereas the State and the trial judge viewed the defense theory as already presented through the admissions Rugg made to Detective Scott. Rugg's statements to police admitting the actus reus of two of the crimes charged the threesome and "condom" incident but attempting to negate the mens rea, put at issue the question of Rugg's motive and intent during these contacts with D.J. R.R.'s testimony showed intent under ER 404(b), not other prior bad acts consistent with the current charges. Thus, it was admissible. As such, R.R.'s testimony regarding other incidents of sexual contact with her father was relevant and admissible evidence of Rugg's intention and the trial court did not err in allowing R.R. to testify to them. See e.g. State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995) (evidence that defendant had rendered four other women with whom he had had relationships unconscious with drugs and then raped them was admissible under ER 404(b) in prosecution of defendant for similar conduct involving fifth woman to establish common plan or scheme); State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991) (evidence of prior sexual contact with the victim is admissible to show lustful inclination toward that victim under ER 404(b)); State v. Longuskie, 59 Wn. App. 838, 843, 801 P.2d 1004 (1990) (evidence of sexual contact with third parties admissible and not too remote under ER 404(b) when defendant testified his sexual dysfunction and lack of arousal began at age 19, some 30 years prior to trial). (4) Admission of Uncharged Domestic Violence Claims D.J. and R.R. briefly testified that they were afraid of Rugg because he was violent. Each recounted an incident in which Rugg allegedly struck and bruised D.J. Rugg assigns error to the admission of this evidence because it is more prejudicial than probative.
Rugg also notes that the State never claimed that D.J.'s allegations were admissible for any purpose in the charges relating to R.R. That separate counts may not be cross-admissible does not necessarily represent a sufficient ground to support a motion for severance as a matter of law. State v. Bythrow, 114 Wn.2d 713, 720-21, 790 P.2d 154 (1990).
The State counters that the trial court was within its discretion in admitting the evidence to explain why both victims delayed reporting the molestation. In State v. Wilson, 60 Wn. App. 887, 808 P.2d 754, review denied, 117 Wn.2d 1010 (1991), this court upheld the admission of prior physical assaults of a child rape victim to explain why the victim delayed reporting the sexual assault: The evidence of the physical assaults was relevant to rebut the evidence presented by [the defendant] and other witnesses that the sexual abuse did not occur. That testimony would have gained unwarranted credibility had the court prevented the victim from testifying that she never reported the abuse and was unable to resist or escape the abuse out of fear of [the defendant]. The evidence is relevant because it tends to make the existence of a material fact, that [the defendant] sexually abused the victim, more probable. Wilson, 60 Wn. App. at 890.
Although Rugg disputed that he acted for sexual gratification, his admissions to Detectives Scott and Folsom corroborated much of D.J.'s testimony about the "threesome" and condom incidents. And Kerrie's testimony supported D.J.'s account of the initial "kissing" incident (although Kerrie testified that Rugg only actually kissed D.J.'s shoulder and pointed to the other portions of her daughter's naked body that boys or men might "go for." RP (7/18/00) at 142.) Because D.J.'s testimony was largely corroborated and her mother was convicted of obstructing justice for attempting to persuade D.J. to stop cooperating with Rugg's prosecution, we believe that the domestic violence testimony, while questionably admissible, was unlikely to have significantly affected the jury's deliberations in this case. On any retrial of the attempted molestation charge, however, absent express evidence of Rugg's threats, the better course is to limit the testimony to events relating to sexual abuse.
(5) Commenting on the Evidence Rugg claims that when the judge stated in the jury's presence that Kerrie was a hostile witness for the State and identified with Rugg, he "made a direct comment on the credibility of a witness with valuable evidence for the defense theory of the case." Br. of Appellant at 34. Our constitution prohibits judges from commenting on the evidence: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." CONST. ART. IV, § 16. An impermissible comment is one that conveys to the jury a judge's personal attitudes towards the merits of the case or allows the jury to infer what the judge personally believes. State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). The touchstone of error in a trial court's comment on the evidence is "whether the feeling of the trial court as to the truth value of the testimony of a witness has been communicated to the jury." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (citing State v. Trickel, 16 Wn. App. 18, 25, 553 P.2d 139 (1976)). Here the trial judge communicated his feelings concerning the witness' defense bias to the jury when stating that Kerrie was "identified with [Rugg's] side of the case . . . obviously. She came in with Mr. Rugg." RP (7/18/00) at 155-56. Thus, this statement was a comment on the evidence. Judicial comments on the evidence are presumed prejudicial. In re Detention of R.W., 98 Wn. App. 140, 144, 988 P.2d 1034 (1999) (citing Lane, 125 Wn.2d at 838-39). From the record before us, however, it is clear that the comment did not affect the jury's verdict. The judge's statements, though improper, did not convey anything to the jury that Kerrie had not already admitted. Shortly before the judge's comments, Kerrie testified that she still loved Rugg, that she was living with him again, and that she came to court with him. And when asked whether she supported Rugg over her daughter, Kerrie replied, "No, not necessarily. They took their own way." RP (7/18/00) at 153. Kerrie also admitted that she had pleaded guilty to charges of obstructing a law enforcement officer and had talked with D.J. about the consequences to the family if Rugg went to jail. That testimony itself shows that she was obviously "identified with [Rugg's] side of the case." See RP (7/18/00) at 155-56.
In light of this testimony, the trial judge's comments were cumulative and harmless beyond a reasonable doubt. (6) Sufficiency of the Evidence: Age of Victim The State charged Rugg with second degree child molestation under RCW 9A.44.086 and specifically alleged that D.J. was "at least twelve (12) years old but less than fourteen (14) years old" when the events occurred. CP at 30. Because D.J. was 14 for eight months of the charging period, Rugg argues that his due process rights were violated: It is a violation of due process for an individual to be tried for a crime, based upon an information and instructions which permit the jury to convict for conduct occurring during a period of time when the crime charged could not have occurred. Br. of Appellant at 35. Rugg relies on State v. Aho, 137 Wn.2d 736, 975 P.2d 512 (1999), to support this argument. But Aho is inapposite here.
The due process violation in Aho occurred because Aho was charged with a crime that did not exist during part of the time the crime was alleged to have occurred. Aho, 137 Wn.2d at 742-43. Here, the issue is factual: was D.J. older than 12 but less than 14 at the time of the events in question? Although somewhat confusing, D.J.'s testimony about the timing of the events was sufficient to enable the jury to find that the events occurred when she was less than 14 years old. On direct, when asked how long before she reported the "solicitation" incident to CPS (which happened in April 1999) that the first incident occurred, D.J. answered, "I don't remember. Probably — I don't know. Few months. I don't really remember." RP (7/17/00) at 45. In a somewhat confusing exchange of testimony involving another incident for which Rugg was never charged, D.J. testified that the "condom" incident occurred three to four months after the first event. D.J. turned 14 in August of 1998. She testified that she first called CPS in 1997 and reported the first incident. She reiterated that the "condom" incident occurred about five months after the first incident. Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The fact finder resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of evidence. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157, review denied, 130 Wn.2d 1008 (1996). Although D.J. presented conflicting testimony as to the timing of the events supporting Rugg's convictions, the jury instructions directed the jury to resolve such discrepancies and to find Rugg guilty only if it unanimously determined beyond a reasonable doubt that Rugg committed the acts while D.J. was less than 14.
To convict the defendant of the crime of Child Molestation in the Second Degree as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That between the 1st day of January, 1997 through the 17th day of April, 1999, on a separate occasion than that charged in Count II, the defendant had sexual contact with [D.J.] (dob: 8-13-84); (2) That [D.J.] was at least twelve years old but less than fourteen years old at the time of the sexual contact and was not married to the defendant; (3) That the defendant was at least thirty-six months older than [D.J.]; and (4) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. All twelve of you must agree that the same underlying criminal act has been proved beyond a reasonable doubt. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. CP at 72; CP at 78 (modified to reference Count II).
The jury instruction on the second degree child molestation charges clearly established D.J.'s birthday and required the jury to unanimously agree on the underlying criminal act and agree that it occurred while D.J. was older than 12 but not yet 14. We presume juries follow the instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). D.J.'s testimony, though somewhat confused, was sufficient for a rational trier of fact to find beyond a reasonable doubt that Rugg molested her when she was older than 12 but before she was 14. It is not our role to determine whether we believe the evidence at trial established guilt beyond a reasonable doubt; instead the relevant question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). The jury's verdict on Count II is properly supported by the record in this case.(7)
Jury Instructions
Finally, Rugg contends that the trial court's refusal to give his proffered State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), instruction requires reversal. The State counters that the essence of Petrich was contained in each of the element instructions used to convict Rugg. A defendant may be convicted only when a unanimous jury concludes that the defendant committed the criminal act charged in the information. Petrich, 101 Wn.2d at 569. This unanimity requirement means that if evidence of more than one criminal act is presented, the jury must be unanimous in deciding that the same underlying criminal act has been proved beyond a reasonable doubt: The State may, in its discretion, elect the act upon which it will rely for conviction. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the State chooses not to elect, this jury instruction must be given to ensure the jury's understanding of the unanimity requirement. Petrich, 101 Wn.2d at 572 (emphasis added).
D.J. testified to more than the two events for which Rugg was convicted; for instance, she also testified to an uncharged incident in which Rugg came up behind her and grabbed her breasts while she was seated at the computer. And D.J. testified about another incident when Rugg offered to forgive a punishment in exchange for a sexual favor/act.
We see no deficiency in the elements instructions for the two counts of second degree child molestation, Instructions 8 and 14, which both charge [i]f you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. All twelve of you must agree that the same underlying criminal act has been proved beyond a reasonable doubt. CP at 72, 78 (emphasis added). But Rugg correctly points out that the elements instruction governing deliberations on the attempted second degree child molestation charge lacks that same unanimity language. The State argues that jury instructions must be read as a whole, and a requested instruction need not be given if the subject matter is adequately covered elsewhere in the instructions. Br. of Respondent at 36 (citing State v. Ng, 110 Wn.2d 32, 41, 750 P.2d 632 (1988)).
Since both "to convict" instructions for the second degree molestation charges include the unanimity language, the State contends that, read as a whole, the jury would know that unanimity was required for the attempted second degree molestation charge as well. We disagree. The State cites no authority for its argument, and our research reveals none. D.J. testified to at least five different events in which her step-father molested or attempted to molest her. Her mother corroborated one and Rugg another. But three other statements were uncorroborated. Therefore the jury would not necessarily know that the unanimity requirement found in Instructions 8 and 14 for the completed offense also applied to the crime of attempting that offense charge. Petrich does not require that each "to convict" instruction includes a charge relating to unanimity (in other words, unanimity is not an element that must be included in every "to convict" instruction). But when two out of three "to convict" instructions expressly require unanimity, and the third, an attempt, does not, the jury would be just as likely to infer that unanimity was not required for the attempted crime. Because the court failed to instruct the jury to be unanimous on the lesser included attempted child molestation charge in Count I, we reverse this Count and remand for a new trial.
We affirm the child molestation conviction in Count II. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER and MORGAN, JJ., concur.