State v. Harmon
| Decision Date | 08 February 2022 |
| Docket Number | 37415-7-III |
| Parties | STATE OF WASHINGTON, Respondent, v. OLIVER JAMES HARMON, Appellant. |
| Court | Washington Court of Appeals |
STATE OF WASHINGTON, Respondent,
v.
OLIVER JAMES HARMON, Appellant.
No. 37415-7-III
Court of Appeals of Washington, Division 3
February 8, 2022
UNPUBLISHED OPINION
STAAB, J.
Oliver Harmon appeals from convictions on four counts of rape of a child in the second degree and one count of communication with a minor for an immoral purpose. He assigns numerous errors to the trial proceedings, including instructional error and prosecutorial misconduct. We agree that Harmon was denied his constitutional right to a unanimous verdict on the communication with a minor count, but find no other reversible error. We reverse his conviction on that count and remand for resentencing and retrial.
FACTS
This prosecution arises from the alleged sexual abuse by Oliver Harmon of the preteen daughter of his childhood friend, Richard. The facts are drawn from the trial record.
Richard describes Harmon as having been a family friend since Richard was around 10 years old. In summer 2016, Richard's then-12-year-old daughter, whom we refer to pseudonymously as Tammy ("Richard" is also a pseudonym), began visiting and staying overnight with Harmon and his girlfriend, Katrina Earhart. Harmon had known Tammy since she was a baby. Harmon was then 43 years old.
Tammy believes it was "like the first night [she] stayed over" at the Harmon/Earhart home that she confessed to Harmon that she "had feelings for him." Report of Proceedings (RP) at 279-80. According to Tammy, he told her "the feelings was [sic] mutual, that he liked me too and stuff," and then tickled her. RP at 280. She believes that is the first time she kissed him.
When Tammy visited Harmon and Earhart, she would sleep with them in their queen-size bed. According to Earhart, Tammy would sleep on Harmon's side of the bed or in the middle between the two, and Harmon occasionally slept naked or in his underwear. According to Tammy, it was Harmon who slept in the middle, and slept nude. Earhart "didn't think it was weird at all" that Harmon would sleep naked when Tammy was in the bed. RP at 119. According to Earhart, anyone who knows Harmon "knows that he sleeps naked, he walks around the house, you know, in his underwear." RP at 119.
During Tammy's visits to the Harmon/Earhart home, the trio passed the time playing cards, playing hide-and-seek, and wrestling. Harmon and Earhart lived in a
mobile home that was located in a storage lot, and the hiding occurred in and around vehicles that the couple's landlord stored at the lot. Among the vehicles were portable offices, a dump truck, trailers, an excavator, mobile homes, pilot trucks, and one white and one purple semitruck.
According to Tammy, between July and December 2016, when she was 12 and 13 years old, she and Harmon engaged in at least 10 sexual acts. The acts occurred in the mobile home's master bedroom, its spare bedroom, on the living room couch, in or on portable offices, and in the purple and white semitrucks. Tammy engaged in these acts with Harmon because she thought she loved him.
Tammy identified no dates on which the sexual acts occurred, but she testified at trial to details that distinguished one encounter from another. She testified that during games of hide-and-seek with Earhart, Harmon digitally penetrated her vagina two or three times while the two sat on a bed covered in plastic, inside the white semitruck. According to Tammy, she and Harmon entered the cab of the truck by opening unlocked doors. On one occasion inside the semitruck, according to Tammy, Harmon told her that her vagina was tight and that she needed to finger herself. Tammy testified that Harmon also touched her breasts four or five times inside the white semitruck during the hide-and-seek games.
Tammy asserted that she and Harmon also engaged in vaginal intercourse. During one instance in a spare room, he unsuccessfully attempted to insert his penis into her
vagina. Tammy suffered pain and bled from the incident. Once while Earhart bathed, Tammy and Harmon had vaginal intercourse with Harmon wearing a condom. On another occasion, the two engaged in intercourse while Harmon wore an orange, magnum condom.
According to Tammy, on four or five occasions, Harmon performed oral sex on her on the bed in the white semitruck and in his bedroom. On two or three occasions, Tammy masturbated Harmon. The latter activity occurred once inside the white semitruck. On another occasion, Tammy masturbated Harmon on top of a portable office.
Tammy claims that Earhart knew she and Harmon had "kissed and stuff" because Tammy and Harmon told her about it. RP at 320. Tammy claims they did not tell Earhart about "the sex part" because "it would just break her." RP at 320, 340. According to Tammy, Earhart cried when told about the kissing and stuff. Because Harmon had told Tammy he wanted to engage in a threesome with the two women, Tammy then kissed Earhart. Tammy backed off when Earhart responded by putting her tongue in Tammy's mouth, however, because Tammy dislikes French kissing.
Tammy's sexual activity with Harmon came to the attention of responsible adults in 2017, after Richard's girlfriend, Paula, [1] overheard Harmon speaking to Tammy on
Skype, a video chat application, in December 2016. The conversation sounded flirtatious. A couple of months later, Tammy told Paula more about her and Harmon's relationship. Paula told Tammy she needed to tell her father, and Paula then reported what she had learned to police.
Following the report to law enforcement, Union Gap Police Detective Shawn James went to the storage lot where the Harmon/Earhart mobile home was located and took photographs. He wished to photograph the inside of the white semitruck, where Tammy alleged one of the rapes occurred, but found that its doors were locked.
Harmon was charged with four counts of rape of a child in the second degree and one count of communication with a minor for immoral purposes. For each rape count, the State alleged the aggravating factor of an ongoing pattern of sexual abuse. Each of the four rape counts alleged the crime took place between June 1, 2016, and December 31, 2016.
The charges proceeded to a five-day jury trial. Among the State's witnesses was Tammy's paternal grandmother, Natalie Forenpohar. Forenpohar testified to Harmon's long relationship with the family. She also testified that she did not feel comfortable with Tammy staying overnight with Harmon and Earhart, given that Tammy was only 12, and Forenpohar's unexplained concern about the couple's "lifestyle." RP at 163.
In cross-examining Forenpohar, defense counsel raised an issue not touched on during direct: Forenpohar's observations to investigating officers that Tammy's behavior
changed around the time the sexual relationship allegedly began. The following exchange occurred between defense counsel and Forenpohar:
Q [By defense counsel] . . . Now, do you recall discussing the matters that are the subject of this trial with Detective James of the police department?
A Yes.
Q Okay. And do you recall discussing with him how your granddaughter [Tammy] had changed over this matter?
A Yes.
Q Okay. And do you recall telling Detective James that [Tammy] used to listen to you but would not now, she would not lie to you or hide things from you, but now after this incident she had started lying and hiding things and would not talk to you?
A Yes.
. . . .
Q Okay. Well, when kids hit that age, don't they start doing that sort of thing with their parents or grandparents and change their behavior and-
A They might, but do they start cutting?
Q Don't know, do they? But it's not unusual for kids to stop talking with their parents or not talking quite so much with their parents or grandparents and not sharing everything with them and sometimes they even start lying. Is that correct?
A It might be, but [Tammy] always talked to me. She never had any reason not to.
RP at 166-67 (emphasis added).
In the defense case, Harmon admitted that Tammy kissed him and confessed her love for him but he denied having any sexual contact with her. He described his
relationship with Tammy as an uncle-niece relationship. Earhart similarly denied that Harmon or Tammy shared a sexual relationship.
Harmon and Earhart's landlord testified (as did Harmon and Earhart) that the semitrucks on his property were kept locked and that only he and his wife had access to the keys. He explained that he kept the semitrucks locked because of the sleeper cab bed in each, out of concern that otherwise homeless people would sleep in the cabs. He averred that he never observed signs of forced entry into either semitruck.
Among the trial court's jury instructions were a few dealing with the fact that multiple criminal acts were charged. They included instruction 3, a "unanimity" instruction, which informed jurors that for each rape count, they "must unanimously agree as to which act has been proved." Clerk's Papers (CP) at 25. They included instruction 6, a "separate crime" instruction, which informed jurors that a separate crime was charged in each count and each must be decided separately. CP at 28.
Neither party proposed a unanimity instruction for the communication with a minor count, nor did the court give such an instruction for that count. Neither party objected to any jury instruction.
The trial court used the same elements instruction for all four rape counts, distinguished only by the identification of the count at issue. Consistent with the charging document, each elements instruction stated that one element that must be proved
was that Harmon had sexual intercourse with Tammy "on, about, during or between June 1, 2016 and December 31, 2016." CP at 32-35.
During closing arguments, when the prosecutor spoke to jurors about the communication with a minor count, she identified...
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