State v. Petrich

Decision Date17 May 1984
Docket NumberNo. 49971-3,49971-3
Citation683 P.2d 173,101 Wn.2d 566
PartiesSTATE of Washington, Respondent, v. Charles W. PETRICH, Petitioner.
CourtWashington Supreme Court

Robert Egger, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, Rebecca Roe, Deputy Pros. Atty., Seattle, for respondent.

DIMMICK, Justice.

Petitioner was charged with one count of indecent liberties and one count of second degree statutory rape. At trial, numerous incidents of sexual contact were described in varying detail. He was convicted on both counts and now seeks review of his convictions, contending that the State's failure to elect the act upon which it relied for each conviction deprived him of his right to a unanimous jury verdict. We conclude that the trial court's failure to ensure a unanimous verdict warrants a new trial. Although we need not reach petitioner's other issues, his assertion that it was error to admit expert testimony concerning the reporting patterns of sexually abused children is discussed inasmuch as it is likely to arise again upon retrial.

The victim of both counts was petitioner's granddaughter. She testified that the incidents of sexual contact began after the death of her father on March 1, 1979, with the last episode occurring sometime during Christmas vacation in 1980. Following that vacation, the victim, then 13, refused any further sexual contact with her grandfather. On direct examination, she described the first incident in some detail. She mentioned many other incidents, including several involving sexual intercourse. On cross-examination, at least four episodes were discussed at length. All of these incidents occurred during the same summer. After that summer she could not recall specific details, either dates or places, although the episodes usually occurred on a weekend or vacation and either at her grandparent's home or in petitioner's truck parked near a river.

The victim did not report these occurrences to anyone until approximately 8 months later, in July or August 1981. She explained that petitioner had told her not to tell, that she feared she would not be believed or loved if she told, and that her grandfather would go to jail. She expressed love for her grandparents and concern that she would not be permitted to see them anymore. Over objection, the State presented the testimony of Kathleen Kennelly of the Harborview Sexual Assault Center. She testified that a delay in reporting was found in over 50 percent of sexual abuse cases involving child victims. She further stated that delay could be in terms of years, and that longer delay was associated with cases where the perpetrator was someone known to the child. She also stated that in "eighty-five to ninety percent of our cases, the child is molested by someone they already know."

At the end of the State's case, the defense moved to compel the State to elect which offense was to be relied on for conviction, arguing that defendant was charged with only one count of each offense but the evidence showed several incidents. Defense counsel pointed out that unless the jury agreed on one particular incident as the basis for each charge, the verdict would not be unanimous. The State responded that one continuing offense had been charged. The motion to compel election was denied.

Petitioner was found guilty on both counts. The Court of Appeals, in an unpublished opinion, affirmed.

I

In Washington, a defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed. State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980). The nature of this right to a unanimous verdict and the extent of protection that it affords has engendered some controversy. See State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982) (Utter, J., dissenting). For example, when the State alleges alternative means of committing a single criminal act, this court has approved instructions that, although requiring unanimity in the verdict, did not require a unanimous determination of which of several alternative means was actually used to commit the crime, so long as substantial evidence supported each alternative. State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976); cf. State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980) (insufficient evidence to support submitting a kidnapping alternative to the jury in an aggravated murder trial).

We note the line of cases relying on Arndt, but find them inapplicable here. This is not an "alternative means" case. The State charged petitioner with one count each of statutory rape and indecent liberties, but proceeded at trial to present evidence of numerous separate criminal acts. Petitioner argues that when the evidence shows several incidents which could form the basis of the one incident charged in the information, to ensure a unanimous verdict on the underlying crime, the State must tell the jury which act is relied on to convict.

In a very similar situation, this court reversed a conviction involving one charge of carnal knowledge because the evidence tended to prove three distinct commissions of the offense at different times and places. State v. Workman, 66 Wash. 292, 119 P. 751 (1911). The court stated:

[W]here the evidence tends to show two separate commissions of the crime, unless there is an election it would be impossible to know that either offense was proved to the satisfaction of all of the jurors beyond a reasonable doubt. The verdict could not be conclusive on this question, since some of the jurors might believe that one of the offenses was so proved and the other jurors wholly disbelieve it but be just as firmly convinced that the other offense was so proved. The greater the number of offenses in evidence, the greater the possibility, or even probability, that all of the jurors may never have agreed as to the proof of any single one of them.... [T]he 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, at 294-95, 119 P. 751. The court further found the trial court's refusal to require election prejudicial error, and reversed for a new trial. Workman, at 295, 119 P. 751. Accord, Deason v. State, 363 So.2d 1001 (Ala.1978); People v. Mota, 115 Cal.App.3d 227, 171 Cal.Rptr. 212 (1981); People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980); Commonwealth v Stites, 190 Ky. 402, 227 S.W. 574 (1921); Burlison v. State, 501 S.W.2d 801 (Tenn.1973); State v. Counterman, 8 Ariz.App. 526, 448 P.2d 96 (1968).

The State's attempt to avoid application of Workman by characterizing the charge as a continuing offense is not persuasive. Under appropriate facts, a continuing course of conduct may form the basis of one charge in an information. But "one continuing offense" must be distinguished from "several distinct acts," each of which could be the basis for a criminal charge. See U.S. v. Berardi, 675 F.2d 894 (7th Cir.1982); People v. Mota, supra. To determine whether one continuing offense may be charged, the facts must be evaluated in a common sense manner. In the present case, each described incident occurred in a separate time frame and identifying place. The only connection between the incidents was that the victim was the same person; this is not enough to call the offense one transaction. See Royce and Waits, The Crime of Incest, 5 N.Ky.L.Rev. 191 (1978); cf. People v. Mota, supra (repeated gang rape of victim over a several hour period held to be one continuing offense as to each defendant).

Nor do we believe that petitioner's motion for election was a request for specificity. Petitioner does not argue that the information was defective; thus, criminal rules allowing objections and amendments to the information are not applicable. See e.g., CrR 2.1(d), (e). Further, petitioner's motion was not untimely. He could not have raised the election issue before the evidence had been presented.

Petitioner concedes that an instruction was not requested which could have informed the jury that it must unanimously agree on the same criminal act for conviction on each charge. In another context, we suggested that error, if any, may be obviated by instructing the jury fully on its need to agree unanimously when alternatives are presented by the evidence. See State v. Parmenter, 74 Wash.2d 343, 353-54, 444 P.2d 680 (1968); accord, Commonwealth v. Stites, supra. Under the circumstances, petitioner's failure to request an instruction did not waive his objection. Petitioner made a proper motion before the trial court, fully apprising the court of his argument and its legal basis. The denial of that motion was reasonably interpreted as the trial court's final decision on the matter. Renewal of petitioner's argument, in the form of a jury instruction based on the same claim, was not required to preserve this issue.

When the evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count of criminal conduct, jury unanimity must be protected. We therefore adhere to the Workman rule, with the following modification. 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.

These options are allowed because, in the majority of cases in which this issue will arise, the charge will involve crimes against children. Multiple instances of criminal conduct with the same child victim is a frequent, if not the usual, pattern. Note, The Crime of Incest Against the Minor Child and the States' Statutory Responses, 17 J.Fam.Law 93, 99 (1978-79)....

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