State v. Handyside
| Decision Date | 23 December 1985 |
| Docket Number | No. 14872-9-I,14872-9-I |
| Citation | 711 P.2d 379,42 Wn.App. 412 |
| Parties | STATE of Washington, Respondent, v. Lawrence A.F. HANDYSIDE, Appellant. |
| Court | Washington Court of Appeals |
Norman K. Maleng, King County Pros. Atty., Raymond McFarland, Deputy Pros. Atty., Seattle, for respondent.
Lawrence Handyside appeals his convictions for statutory rape in the first degree and indecent liberties, contending that he was denied due process of law and equal protection of the laws because the State failed to charge him with the specific crimes of incest in the first degree and incest in the second degree. At oral argument, Handyside presented the additional issue of jury unanimity. Permission was granted to file supplemental briefs on that issue. We affirm the conviction for statutory rape and reverse the conviction for indecent liberties.
The State charged Handyside with statutory rape in the first degree of Michelle, age 10, and with indecent liberties upon Christine, age 8. The relationship of Handyside to the victims is "step-grandfather". From 1960 until 1969, and again from May 1983 until September 1983, Handyside was married to the victims' natural grandmother. The couple was not married during 1982, the time of the alleged offenses, but they continued to reside together during the period of the divorce, except for a short time in 1970. The victims know Handyside as their grandfather. Michelle testified that Handyside tickled the area "where I go to the bathroom" with his mouth one time. She also testified that Handyside touched her in that same area "lots of times".
Michelle also testified that she observed Handyside on one occasion touching her sister, Christine, "in the leg with his finger inside [on t]he lower part [of her body] inside [her dress]." Christine testified that Handyside "play[ed] with my private spot ... [r]ight around where you go to the bathroom", "[w]ith his finger", "a lot of times". Christine also testified that Handyside wanted her to touch his "private area" with her finger, which she did
Handyside contends that he should have been prosecuted for incest instead of statutory rape and indecent liberties because the State is not permitted to charge under general statutes if the defendant's conduct is also chargeable under a special statute (i.e., incest) and the statutes are concurrent. Handyside cites State v. Shriner, 101 Wash.2d 576, 681 P.2d 237 (1984) in support of his argument.
We do not reach the general versus specific issue because the relationship of step-grandchild is not included in the relationships to which the incest statute applies.
RCW 9A.64.020 describes the relationship for which sexual conduct is forbidden as follows:
(1) ... a person whom he knows to be related to him, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either the whole or the half blood.
* * *
(3) As used in this section, "descendant" includes stepchildren and adopted children under eighteen years of age.
The statute makes no reference to any "step" relationships, other than stepparent to a stepchild. As a general rule of statutory construction, criminal statutes are to be strictly construed. State v. Shipp, 93 Wash.2d 510, 515, 610 P.2d 1322 (1980). To include the relationship of step-grandparent and step-grandchild in the incest statute would write a term into the statute not included by the Legislature. This we cannot do. Since Handyside could not have been charged under the incest statute, he was properly
charged with statutory rape and indecent liberties.
The trial court did not give an instruction requiring the jury to be unanimous on the incident or incidents of sexual misconduct it relied upon for conviction. The defendant did not request such an instruction. This court has held, however, that the right to a unanimous verdict is derived from the fundamental constitutional right to a trial by jury and thus may be raised for the first time on appeal. State v. Fitzgerald, 39 Wash.App. 652, 655, 694 P.2d 1117 (1985); State v. Russell, 101 Wash.2d 349, 678 P.2d 332 (1984).
When the State introduces evidence of more than one act of criminal misconduct which could be found beyond a reasonable doubt to support conviction for the crime charged, the State can be required to elect which incident it relies upon as proof of guilt, or, in the alternative, the jury must be instructed that its vote must be unanimous on the one or more incidents it relies upon in finding guilt. State v. Petrich, 101 Wash.2d 566, 683 P.2d 173 (1984); State v. Fitzgerald, supra. Applying this rule protects against a conviction where some jurors relied on one incident and some another, and there is no unanimity on all elements necessary for a valid conviction.
Handyside was charged in count 1 with statutory rape in the first degree, RCW 9A.44.070, which required proof of "sexual intercourse" 1 with Michelle, who was under the age of 11.
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...must be instructed that it must be unanimous as to the one or more incidents it relies upon in finding guilt. State v. Handyside, 42 Wash.App. 412, 415, 711 P.2d 379 (1985); State v. Petrich, 101 Wash.2d 566, 572, 683 P.2d 173 (1984). The State argues that, while a unanimity instruction is ......
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State v. Hill, No. 38499-0-II (Wash. App. 1/26/2010)
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