State v. Camarillo

• Decision Date: 26 July 1990
• Docket Number: No. 56469-8,56469-8
• Citation: 115 Wn.2d 60,794 P.2d 850
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Larry J. CAMARILLO, Petitioner. En Banc

Page 60

115 Wn.2d 60

794 P.2d 850

STATE of Washington, Respondent, v. Larry J. CAMARILLO, Petitioner.

No. 56469-8.

Supreme Court of Washington,

En Banc.

July 26, 1990.

Washington Appellate Defender Ass'n, Anna-Mari Sarkanen, Seattle, for petitioner. Norm Maleng, King County Prosecutor and Peter Goldman, Deputy County Prosecutor, Seattle, for respondent.

CALLOW, Chief Justice.

The defendant, Larry Camarillo, was charged by information with indecent liberties with an 11-year-old boy. The charge was brought under former RCW 9A.44.100(1)(b). ¹ The one count information was based on conduct which occurred over a one year period between June 4, 1981 and July 10, 1982. The defendant was convicted. ²

On appeal the defendant claimed he was denied a fair trial because the State failed to elect which act of three incidents it was relying upon. The one count information covered a period during which there was evidence of three distinct commissions of the offense. The defendant further argued that State v. Petrich, 101 Wash.2d 566, 683 P.2d 173 (1984) ³ should be applied retroactively to provide for a jury instruction on jury unanimity when the State presents evidence of multiple acts but only one count is charged. The Court of Appeals affirmed the conviction. State v. Camarillo, 54 Wash.App. 821, 776 P.2d 176 (1989). We granted review.

The boy testified that the defendant accomplished sexual contact on three separate occasions. The first time the boy was at the defendant's house for dinner with his mother. The boy testified that he was in the defendant's bedroom watching television when the defendant came in and placed him on his lap. The defendant then rubbed the zipper area of the boy's pants for 5 to 10 minutes.

The second incident occurred at the defendant's house. This time the victim was spending the night at the defendant's house because he was babysitting for the boy's mother. On this occasion the boy was on the defendant's bed watching television. The boy testified that the defendant entered, lay beside him on the bed and placed his hand down the boy's pants and fondled him for 5 to 10 minutes.

The third incident occurred at the boy's house and was similar to the first. The boy testified that the defendant came into his bedroom and again sat him on his lap. The defendant then rubbed the zipper area of the boy's jeans.

About a year later the victim told a friend what had occurred because the friend's mother had discussed sharing a residence with the defendant. The victim then told his mother and she informed the police.

When the charge came to trial and the jury was instructed, defense counsel did not request that the State elect which act it relied upon for conviction, nor did the defense request a unanimity instruction. ⁴

To convict a person of a criminal charge, the jury must be unanimous that the defendant committed the criminal act. State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980); State v. Badda, 63 Wash.2d 176, 385 P.2d 859 (1963). In cases where there is evidence of multiple acts of like misconduct which relate to one charge against the defendant, the State is required to elect which act it is relying upon for a conviction. State v. Workman, 66 Wash. 292, 119 P. 751 (1911); State v. Sargent, 62 Wash. 692, 114 P 868 (1911); State v. Osborne, 39 Wash. 548, 81 P. 1096 (1905). Workman states:

(W)hile evidence of separate commissions of the offense may be admitted as tending to prove the commission of the specific act relied upon, the proper course in such a case, after the evidence is in is to require the state to elect which of such acts is relied upon for a conviction.

Workman, 66 Wash. at 295, 119 P. 751.

State v. Petrich, supra, construed the rule in Workman to require the trial court to instruct the jury that all 12 members had to agree that the same underlying act has been proven beyond a reasonable doubt if the State neglects to elect which act constituted the crime. In effect, Petrich was a reiteration and clarification of Workman. The Workman- Petrich rule assures a unanimous verdict on one criminal act thereby protecting a criminal defendant's right to a unanimous verdict. Petrich, 101 Wash.2d at 572, 683 P.2d 173.

Failure of the court to follow the rule in Workman and Petrich is "violative of a defendant's state constitutional right to a unanimous jury verdict and United States constitutional right to a jury trial." State v. Kitchen, 110 Wash.2d 403, 409, 756 P.2d 105 (1988); State v. Badda, 63 Wash.2d 176, 385 P.2d 859 (1963); State v. Allen, 57 Wash.App. 134, 788 P.2d 1084 (1990); Const. art. 1, § 22 (amend 10); U.S. Const. amend. 6. When error occurs during a trial the jury verdict will be affirmed only if that error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065) (1967); State v. Kitchen, supra 110 Wash.2d at 409, 756 P.2d 105.

We turn to whether the failure by the State to elect which of the multiple acts it would rely upon to prove the charge or to give a unanimity instruction was harmless error in this case. Kitchen stated the standard of review when there is an error in multiple acts cases which puts jury unanimity in question, as follows:

In reviewing a multiple acts case in which there has been no election by the State or unanimity instruction by the trial court, the proper standard for determining whether the error is harmless is

. . . . .

... ... if a rational trier of fact could have a reasonable doubt as to whether each incident established the crime beyond a reasonable doubt.

[State v.] Loehner, 42 Wn. App. [408,] 411 [711 P.2d 377 (1985) ] (Scholfield, A.C.J., concurring) ... This approach presumes that the error was prejudicial and allows for the presumption to be overcome only if no rational juror could have a reasonable doubt as to any of the incidents alleged.

Kitchen, 110 Wash.2d at 411, 756 P.2d 105. Thus in multiple acts cases the standard of review for harmless error is whether a "rational trier of fact could find that each incident was proved beyond a reasonable doubt." State v. Gitchel, 41 Wash.App. 820, 823, 706 P.2d 1091, review denied 105 Wash.2d 1003 (1985). See also State v. Badda, 63 Wash.2d 176, 385 P.2d 859 (1963); State v. Allen, supra. Errors of constitutional proportions will not be held harmless unless the "appellate court is 'able to declare a belief that it was harmless beyond a reasonable doubt.' " State v. Burri, 87 Wash.2d 175, 182, 550 P.2d 507 (1976) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828).

In Kitchen, this court reversed the conviction and remanded for a new trial because "(t)here was conflicting testimony as to each of those acts and a rational juror could have entertained reasonable doubt as to whether one or more of them actually occurred." Kitchen, 110 Wash.2d at 412, 756 P.2d 105. State v. Coburn, 110 Wash.2d 403, 409, 756 P.2d 105 (1988), a case consolidated with Kitchen, reversed Coburn's conviction because the testimony of the child victim was impeached and because the jury heard testimony pertaining to Coburn's reputation in the community for truth, veracity and good morals. Furthermore, as in Kitchen's case, the jury heard conflicting testimony "as to each of those acts and a rational juror could have entertained reasonable doubt as to whether one or more of them actually occurred." Kitchen, 110 Wash.2d at 412, 756 P.2d 105.

In State v. Petrich, supra, the defendant's conviction was overturned because this court was not satisfied that the failure of the State to elect error was not harmless due to the child's testimony. The victim in Petrich was able to describe with some detail and specificity the acts committed against her, but other details were acknowledged "with attendant confusion as to date and place, and uncertainty regarding the type of sexual contact that took place." Petrich, 101 Wash.2d at 573, 683 P.2d 173.

In the present case, the evidence admitted at trial came from the child victim, his mother, the defendant and an elderly woman who shared a residence with the defendant at all relevant times. As to the first incident the boy testified as to what the defendant had done and the attendant circumstances. ⁵

The second incident occurred at the defendant's residence when the boy spent the night with the defendant because the defendant was babysitting for the boy's mother. Again, the boy's testimony was specific about what had occurred. ⁶ There was additional corroborative evidence which placed the child with the defendant that night from the boy's mother. ⁷

The third incident occurred while the defendant was at the boy's home. The boy's testimony is that the defendant rubbed the outside of the zipper area on his jeans. ⁸

The defendant's testimony contained a general denial that he had ever touched the boy in the fashion described through the boy's testimony. The defendant also had the elderly woman testify that she had never seen the defendant and the boy alone.

The defendant was charged under the former indecent liberties statute. ⁹ Indecent liberties occurs when:

(1) A person ... knowingly causes another person who is not his spouse to have sexual contact with him or another:

. . . . .

(b) When the other person is less than fourteen years of age.

(2) For the purposes of this section, "sexual contact" means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party.

Former RCW 9A.44.100. The sexual contact has not been limited to direct contact with the breasts or genital organs. Indecent sexual contact may take place through clothing. In re Adams, 24 Wash.App. 517, 519, 601 P.2d 995 (1979) citing People v. Thomas, 91 Misc.2d 724, 398 N.Y.S.2d 821 (1977); State v. Buller, 31 Or.App. 889, 571 P.2d 1263 (1977). Therefore, not only did the second incident constitute indecent liberties, but the first and third incidents did as...