State of Washington v. Cole, 96-1-00315-1

• Decision Date: 24 May 1999
• Docket Number: 96-1-00315-1
• Parties: <PartyHeader> STATE OF WASHINGTON, RESPONDENT, v. GEORGE R. COLE, APPELLANT. </PartyHeader>
• Court: Texas Court of Appeals

[1]
[2]	STATE OF WASHINGTON, RESPONDENT,; v.; GEORGE R. COLE, APPELLANT.
[3]	No. 41519-1-I
[4]	Washington Court of Appeals
[5]	SOURCE OF APPEAL Appeal from Superior Court of Whatcom County Docket No: 96-1-00315-1 Judgement or order under review Date filed: 10/16/1997 Judge signing: Hon. Steven J. Mura
[6]	May 24, 1999
[7]	Judges Authored by Ronald E. Cox Concurring: William W. Baker Faye C. Kennedy
[8]	Counsel OF Record Counsel for Appellant(s) Anne M. Bremner Stafford Frey Cooper 2500 Rainier Twr 1301 5th Ave Seattle, WA 98101-2621 Michael P. Iaria 1425 Western Ave Ste 108 Seattle, WA 98101-2037 Kitteridge Oldham Attorney At Law 1011 Western Ave Ste 902 Seattle, WA 98104 Counsel for Respondent(s) David S. McEachran Whatcom County Prosecuting Attorney Whatcom Co Courthouse 311 Grand Ave Bellingham, WA 98225-4048 Laura D. Hayes Whatcom County Prosecutor's Office Whatcom County Pros Ofc 311 Grand Ave Bellingham, WA 98225
[9]	The opinion of the court was delivered by: Cox, J.
[10]	UNPUBLISHED
[11]	George Cole appeals his conviction of third degree rape. Because Cole's acts on which the rape charge was based constituted a continuous course of conduct toward the victim, a unanimity instruction was not required. The trial court did not abuse its discretion in its evidentiary rulings, and those rulings did not deprive Cole of his right to confront the State's witnesses. We also hold that the application for authorization for the phone intercept was sufficient under the Washington privacy act, there was no prosecutorial misconduct, and the challenged jury instruction was proper. We affirm the Judgement and sentence.
[12]	On April 23, 1996, George Cole, 48 years old, spent the evening with his girlfriend's daughter, T.R., 16 years old. The evening began with Cole fixing a broken latch on T.R.'s car. While he worked, he and T.R. drank root beer schnapps and beer, a concoction that T.R. mixed for them. The two then drove out to Cole's property to fill a hot tub. While there, they had more beer and schnapps. T.R. eventually vomited from the alcohol. Cole dropped T.R. back at home at around 2 a.m. She went straight to bed, still feeling ill from the alcohol. Cole came into her bedroom, started giving her a massage, then removed her clothes, and digitally penetrated her vagina several times. T.R. protested verbally and pressed her hands against Cole's chest, but otherwise remained still throughout the assault.
[13]	Based on T.R.'s statements to the police, the State initially charged Cole with one count of third degree rape.*fn1 By amended information, the State later charged Cole with three counts of third degree rape. Count I was based on an allegation of digital penetration, count II was based on an allegation of oral sex, and count III was based on an allegation of penile penetration.
[14]	The jury convicted Cole of the first count, digital penetration, but acquitted him of the second and third counts.
[15]	Cole appeals.
[16]	I. Jury Unanimity
[17]	Cole contends that he was deprived of his right to a unanimous jury. We hold that he was not so deprived.
[18]	For a criminal defendant's conviction to be constitutionally valid, a unanimous jury must conclude that the accused committed the criminal act charged.*fn2 When multiple acts are alleged, any one of which could constitute the crime charged, the jury must unanimously agree which incident constitutes the crime.*fn3 To ensure that the jury so agrees, either (1) the State must elect an act on which it relies for conviction or (2) the court must instruct the jury that it must unanimously agree that at least one particular act constituting the crime charged has been proved beyond a reasonable doubt.*fn4
[19]	The State properly concedes that, because it is an error of constitutional magnitude, the failure to give a Petrich instruction may be raised for the first time on appeal.*fn5 But the State contends that a Petrich instruction was not required here because the evidence shows a continuing course of conduct. An exception to the requirement for a Petrich instruction arises where there is "'one continuing offense'" rather than "'several distinct acts.'"*fn6 To determine whether this exception applies, courts must evaluate the facts in a commonsense manner.*fn7 Where criminal conduct occurs within a short time frame and against the same victim, a commonsense approach suggests that this exception might apply.*fn8 In State v. Crane,*fn9 our Supreme Court discussed the proper application of this exception. There, the court found that the evidence indicated that, although there were a number of assaults against the same victim over the course of a week, there was actually only a two-hour period during which the fatal injuries were inflicted. In such a situation, reasoned the court, the "continuous conduct" exception applied.*fn10 In other states, the exception has been applied in the sexual assault context where more than one act of penetration of a single victim occurred within a short period of time in a single location.*fn11
[20]	The facts here support application of the continuing course of conduct exception. T.R. testified that, during an approximately 20-minute-long assault, Cole digitally penetrated her "several times." She testified that, when this was happening, she pushed on his chest and told him "no":
[21]	"Q. When did you tell him no, {T.R.}?"
[22]	"A. When he was putting himself inside me."
[23]	"Q. As far as you have described a number of things that happened, you said his fingers?"
[24]	A. (Witness nods head.)
[25]	"Q. Did you make any comment to him when that was happening?"
[26]	"A. I just said the same thing. I was just pushing up on his chest."
[27]	"Q. Did he stop at that point?"
[28]	"A. He said I will stop and then he didn't, he just I don't remember what he did. It was just messing around, then he started in again."
[29]	"Q. Did he actually have his fingers in your vagina?"
[30]	"A. Um, at this point?"
[31]	"Q. Yes."
[32]	"A. I don't really know in what order but he did at several times."*fn12
[33]	Based on this testimony, it is reasonable to conclude that the acts of digital penetration were so closely related that they form part of the same continuous course of conduct toward the same victim, obviating the need for a unanimity instruction.
[34]	Citing this same testimony, Cole contends that, with respect to the first act of digital penetration, no rape occurred because T.R. had not yet clearly expressed her lack of consent through words or conduct. But the excerpt above belies this contention. T.R. testified that she clearly stated no and pushed against Cole when he was penetrating her. She further testified that he continued the assault after she protested. Thus, with respect to the first act of digital penetration, the element of clearly expressed lack of consent was satisfied.
[35]	In sum, there is no reason to apply the Petrich rule here. The jurors could not have disagreed about which particular act Cole committed. T.R. testified to a series of acts of sexual assault that occurred in a short time period. Such testimony does not create a danger that the jury could have rested its decision to convict on different acts of digital penetration.*fn13
[36]	Because there was no risk here of violation of the constitutional right to jury unanimity, Cole was not entitled to a unanimity instruction.
[37]	II. Evidentiary Rulings
[38]	Cole next contends that he was denied his right to confront witnesses when the Judge limited cross examination and excluded certain extrinsic evidence pertaining to the alleged bias of the State's witnesses. Alternatively, he contends that the trial court abused its discretion in its evidentiary rulings. We reject both arguments.
[39]	Under both the federal and state constitutions, a defendant is guaranteed the right to present evidence in his or her defense and the right to confront and cross-examine adverse witnesses.*fn14 There is no bright-line rule for determining when the permitted cross examination is sufficient to pass constitutional muster. But the United States Supreme Court has stated that a defendant must be "permitted to expose the jury to the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness."*fn15 A defendant may not, however, present irrelevant evidence.*fn16
[40]	Cole first argues that the court violated his right to confrontation when it prohibited him from questioning T.R. about her prior use of alcohol and marijuana and the fact that her mother, Astrid Liljegren, had punished her for using the substances. Cole contends that this evidence was relevant to the question of whether T.R. invented the story of the rape because she did not want to get in trouble for drinking. But such a broad inquiry was not relevant to any issue at trial.
[41]	Evidence is relevant if it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."*fn17 The trial court properly noted that T.R.'s prior alcohol and drug use, on its own, was not relevant to the issue of bias. The court thus excluded reference to the prior acts. But the court expressly permitted Cole to question T.R. about her alcohol use on the night of the crime and her expectation that she would be punished for using alcohol. The court also permitted Cole to question Liljegren about whether she would have punished T.R. for drinking in April 1996. These rulings are certainly based on tenable grounds.
[42]	On cross examination, T.R. testified that she probably would have been punished if her mother learned that she was drinking that April night. She specified that she might have had her driving privileges restricted or been grounded. Moreover, Liljegren confirmed that T.R. did not have permission to drink and that she would have disciplined her for drinking in April 1996. And, based on this testimony,

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