Opinion
No. 59221-1-I.
March 3, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-01860-0, Larry E. McKeeman, J., entered November 14, 2006.
Affirmed by unpublished opinion per Schindler, A.C.J., concurred in by Becker, J., and Baker, J. Pro Tem.
A jury convicted Melvin D. Kent of two counts of rape in the second degree of his 16-year-old niece, K.K. Kent contends prosecutorial misconduct during closing argument, the failure to give a unanimity instruction, the prejudicial admission of hearsay, the trial court's decision to allow cross examination beyond the scope of direct, and ineffective assistance of counsel denied him a fair trial requiring reversal. Finding no error, we affirm.
FACTS
K.K.'s mother, Valisa Douglas (Douglas), was adopted when she was an infant. Douglas began trying to find her biological family when she was a teenager. In 2004, approximately 17 years later, Douglas finally located members of her biological family — her mother Judy Kent, her brother Jeff, her half-sister Debbie Thompson, and her half-brothers Melvin, Mike, and Mark Kent.
Beginning in early 2006, Melvin Kent (Kent) went to live with Douglas and her family, her husband Ralph, her 16-year-old daughter K.K., Nicholas (Nick), age 15, Mica, age 13, and Zeck, age 9, at their home in Gig Harbor. Kent offered to do a major renovation of the shop located on the property and do some construction projects at the house.
In the spring of 2006, Judy Kent died. In April, Douglas agreed to go to Judy Kent's home in Wenatchee to help the family sort through and pack up their mother's belongings. Douglas planned to go to Wenatchee while K.K. was on her spring break from school. Douglas asked K.K. to come with her to see her mother's house and spend time with their new family. Shortly before K.K.'s spring break, Douglas told K.K. that she needed to try and be nicer to Kent. K.K. agreed to drive to Wenatchee with Kent. Douglas drove separately.
When Douglas and K.K. were preparing to go to bed that night, K.K. told her mother that Kent was "creepy." Douglas told K.K. to "just ignore it. He's just an annoying brother." The next day Kent invited K.K. to go with him to Ellensburg to meet Judy Kent's brother, Dennis O'Keefe and Dennis's daughter-in-law, Dave and Joanne O'Keefe, and their 11-year-old daughter, Sam. K.K. agreed to go with Kent to Ellensburg to meet her relatives. Douglas also left and drove home to Gig Harbor.
Kent and K.K. arrived at the O'Keefe's house at around 9:00 p.m. After meeting her relatives and watching Grey's Anatomy on television, K.K. went to the upstairs bedroom with her cousin Sam. Around 11:00 p.m. Sam's parents told her to go to bed. Sam went downstairs to sleep on the couch. K.K. stayed upstairs and called her boyfriend Mark on her cell phone. Kent also stayed in the upstairs bedroom because he was using the computer. While K.K. was talking to Mark, she asked Kent to push a knot out of her
back. K.K. testified that she has scoliosis and frequently asks her friends and family to help her get the knots out of her back. According to K.K., Kent told K.K. to lie down on the bed so that he could massage her back and asked her to undo her bra so he could push out the knot.
After K.K. got off the phone, Kent told her that he was going to give her a full body massage. K.K. said no, she wanted to go to bed. Kent then flipped K.K. over, put a pillow over her face, and pulled down her pajama pants. Kent inserted his penis in K.K.'s vagina while grabbing her wrists. After he put his penis inside her vagina, he told K.K., "you're going to make me cum, you little shit," and "I'm going to make you my dirty little secret." Kent then stopped, performed oral sex on K.K. and bit her vagina. Kent penetrated K.K. again with his penis saying, "you're going to make me cum, you little shit, you're my dirty little secret." Kent ejaculated on K.K.'s stomach. Afterwards, Kent went to the bathroom and did not return to the upstairs bedroom.
Early the next morning, after everyone left the house, K.K. ran downstairs to shower and used powdered bleach to clean herself. K.K. said she put her pajama bottoms in a plastic bag because there was "stuff all over them." While she was in the bathroom, K.K. heard Kent banging on the door. But he eventually stopped banging and left. K.K. packed her belongings, put them in the car, and went to visit Dennis Page 4 who lived next door in his trailer. After K.K. and Kent spent the day with Dennis, they drove back to Gig Harbor. K.K. said she tried to act "normal" and did not tell her mother what happened "[b]ecause I felt like I was going to ruin her family she had just found, and I was scared that she wouldn't believe me."
Later that same week, K.K. and her brother Nick went with Kent to his nephew Ryan Thompson's house in Lake Stevens to go to a hockey game and spend the night. K.K. said she was scared to go with Kent, but decided to go because Nick was with her. Kent, his nephews Ryan and Tim, and Nick went to a hockey game in Everett. K.K. stayed at Ryan's house with Ryan's fianc Lindsey. After returning from the hockey game, Nick and K.K. said that they planned to sleep in the living room on the two couches. But Kent told Nick that he would sleep in the living room so that Nick and Tim could sleep in the room in the garage with a television. After everyone went to bed, K.K. was lying on the couch in the living room pretending to be asleep. Nick and Tim were watching a movie in the room in the garage.
K.K. said that Kent pulled her off the couch onto the ground, held her arms under her, took off the sweat pants she was wearing and inserted his penis in her vagina, saying, "you're going to make me cum, you little shit, you're so fucking tight." Kent stopped, performed oral sex on K.K. and bit her, drawing blood. Kent then inserted his penis in K.K. and ejaculated on her stomach. Afterward, K.K. ran to the bathroom and
cried for a long time. When she came out of the bathroom, Nick and Tim were outside with Kent. K.K. said that she did not say anything because she was scared and humiliated. She went back to the couch and pretended to sleep.
The next morning, Kent, K.K., Nick, and Tim left Ryan's house in Lake Stevens and went to Queen Anne to work on Debbie Thompson's house. When K.K. learned that the plan was to go back to Ryan's house and spend the night, she called Douglas to come pick her up.
Douglas testified that after the spring break, K.K. started locking her bedroom door and K.K. and Kent bickered a lot. A week after spring break, K.K. told her best friend Megan that she had been raped. Megan told K.K. that she had to tell someone. K. K. said she was afraid to say anything and probably wasn't going to.
In June, K.K. told her best friend Rory what had happened. Rory told her to go see the school counselor and to call the police. Rory also told K.K. that she should tell her boyfriend Mark. K.K. said she did not call the police because Kent was still living at her house and she was scared.
In July, K.K. called her boyfriend Mark and told him what had happened. Mark was concerned about K.K. and told K.K. he would come and get her. Before leaving, K.K. told Nick that Kent had raped her and gave Nick a note to give her mother telling her that she went to her boyfriend's house and to call her. After K. K. left, Nick gave the note to Douglas and told her that K.K. said Kent had raped her. When Douglas accused Kent of raping K.K., he unequivocally denied raping her.
On July 21, 2006, the State charged Kent with indecent liberties and rape in the third degree. A forensic analysis of the semen on K.K.'s pajamas showed that the likelihood that the semen was not Kent's was 1 in 7.5 quadrillion.
The State by amended information charged Kent with two counts of rape in the second degree. Count I alleged Kent had sexual intercourse with K.K. by forcible compulsion in Ellensburg on April 16, 2006. Count II alleged Kent had sexual intercourse with K.K. by forcible compulsion in Lake Stevens on April 22. Without objection, the court granted the State's motion at the beginning of trial to amend the information to correct the dates to April 9 for Count I and April 15 for Count II. At trial, there was no dispute that K.K. and Kent had sexual intercourse during K.K.'s spring break in April at the O'Keefe's house in Ellensburg and Ryan's house in Lake Stevens. The State also presented the testimony of K.K.'s mother, K.K.'s brother Nick, friends Megan and Rory, and her boyfriend Mark. K.K. testified that she did not consent and Kent used force to rape her. The State and the defense stipulated to admitting the forensic analysis of the DNA on the pajamas.
Kent testified at length about having consensual sex with K.K. Kent stated that he did not ejaculate the first night they had sex at the O'Keefe's in Ellensburg. But that when he and K.K. had sex again in the morning, he ejaculated on her stomach. Kent said that they also had consensual sex at Ryan's house in Lake Stevens. Kent testified that he would never force a woman to have sex with him. Over the defendant's objection, the prosecutor on cross examination asked Kent about the confrontation with Douglas, and why he didn't turn himself into the police and about what he told Ryan. Kent testified that when Douglas confronted him, he denied raping K.K. and did not turn himself into the police because there was no reason to do so.
Dennis O'Keefe and his son and daughter-in-law, Dave and Joanne O'Keefe, Debbie, Ryan, Lindsey, and Tim Thompson also testified on behalf of the defense.
Defense counsel repeatedly asked the witnesses to describe how K.K. acted after the alleged rapes. The witnesses each testified that they did not hear anything out of the ordinary on the nights the alleged rapes. The witnesses also stated that they did not notice any change in K.K.'s demeanor or anything out of the ordinary. In rebuttal, Ryan testified about what Kent had told him, including that he only had sex with K.K. two times.
Based on Kent's testimony, the defense informed the court that it would not request instructions on the lesser included offense of rape in the third degree because "it's either consensual sex, or . . . forcible compulsion."
In closing argument, the prosecutor told the jury that the only question was whether there was forcible compulsion. The prosecutor focused on K.K.'s testimony and the inconsistencies in Kent's version of what occurred to argue that K.K. was more credible and Kent was guilty of raping her at the O'Keefes' in Ellensburg and at Ryan's house in Lake Stevens.
Kent's attorney argued that K.K. was less credible than Kent because everyone who had contact with her after the alleged rapes did not notice any difference in her behavior or how she acted. Defense counsel argued that K.K.'s "happy go lucky" attitude and the fact that she was constantly text messaging and talking to her boyfriend and her mother, but never said anything, undermined her credibility and contradicted her testimony.
So let's talk about K.K. All right. She testifies that, you know, this was really bad, really traumatic. She was crying on the stand. She testified that it was so traumatic that in Ellensburg she needed to cleanse herself with the toilet cleaner. She testified it was so traumatic that she kept the pajamas, she kept those pajamas for a specific reason. Yet everybody that interacted with her after Ellensburg, everybody that interacted with her after Ellensburg, everybody that interacted with her after Lake Stevens noticed no difference in her behavior, noticed no difference in her behavior with Melvin, noticed no difference in her behavior to anybody else.
Timmy, Melvin, Nick, they all said we got up the next morning in Lake Stevens, it was like family. We were goofing around. She wasn't giving him the cold shoulder. She wasn't calling him names. She wasn't being rude. . . . Timmy, Nick, Debbie, Lake Stevens, Queen Anne, all said next day, she is happy go lucky.
In rebuttal, the prosecutor responded to the defense argument about how K.K. acted by asking the jurors how they would have acted at 16 if they had been raped by an uncle and asked "[a]re you confident that you would react the same way then as you would now, and are you confident that you would react the same way as everybody else on the jury? The answer to those questions is no. Because people react different."
I get a chance to respond to the arguments that [defense counsel] just made. And I want to point out a couple of things.
He spent some time with the witnesses and in his argument saying that, look, if this was really a rape, [K.K.] would not have acted the way she did afterwards. And I want you to consider and think about, do you know how you would act if you were raped by your uncle right now? Do you know how you would react if you were raped by your uncle when you were 16? Are you confident that you would react the same way then as you would now, and are you confident that you would react the same way as everybody else on the jury?
The answer to these questions is no. Because people react different. There are individuals. There is no set pattern that we can say, well, if this didn't happen then she wasn't a rape victim. It's not that simple. People are complicated.
The jury convicted Kent on the two counts of rape in the second degree.
ANALYSIS
Prosecutorial Misconduct
Kent contends that in rebuttal the prosecutor made an improper "golden rule" argument and that even though there was no objection, the judge should have instructed the jury to disregard the prosecutor's remarks. The State contends that because the argument was not flagrant or ill-intentioned, and Kent did not object, Kent waived his right to review. The State also contends that even if improper, the prosecutor's remarks were in direct response to the defense argument that K.K. did not act like someone who had been forcibly raped.
To establish prosecutorial misconduct, the defendant "bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1977). Where, as here, the defense does not object to an improper comment, error is waived unless the remark is "so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). The prejudicial effect of improper comments must not be viewed in isolation, but rather "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury." Brown, 132 Wn.2d at 561. Defense counsel's failure to object, move for a mistrial, or request a curative instruction strongly suggests that in context, the argument did not appear prejudicial to the defense. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). In the absence of an objection, appellate courts do not ordinarily fault a trial court for failing to sua sponte instruct the jury during closing argument. State v. Neidigh, 78 Wn. App. 71, 70, 895 P.2d 423 (1995).
And even if improper, a prosecutor's remarks that are in direct response to the defense argument are not grounds for reversal. "But the remarks may not go beyond what is necessary to respond to the defense and must not bring before the jury matters not in the record, or be so prejudicial that an instruction cannot cure them." State v. Dykstra, 127 Wn. App. 1, 8, 110 P.3d 756 (2005) (citing, State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961).
An improper golden rule argument asks the jurors to place themselves in the position of the victim. State v. Borboa, 157 Wn.2d 108, 122, 135 P.3d 469 (2006). In Borboa, the court held that in context, the prosecuting attorney did not commit misconduct by asking the jury to imagine walking around with a disfigured face, like the victim. Borboa, 157 Wn.2d at 124. In a footnote, the court also said that it was "not convinced that the prohibition on 'golden rule' arguments applies in the criminal context. . . ." Borboa, 157 Wn.2d at 124 n. 5.
But relying on State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956) and a Connecticut Court of Appeals case, State v. Mills, 57 Conn. App. 202, 748 A.2d 318 (2000), Kent argues that no objection or instruction could cure the effect of the prejudice. Case and Mills are distinguishable. In Case, the prosecutor repeatedly discussed matters outside the record, repeatedly expressed his personal opinion about the defendant's guilt, and referred to the defendant's character witnesses as his "herd." Case, 49 Wn.2d at 73. In concluding that no instruction could cure the cumulative effect of the remarks, the court held that "[t]here comes a time . . . when the cumulative effect of repetitive prejudicial error becomes so flagrant that no Page 11 instruction or series of instructions can erase it and cure the error." Case, 49 Wn.2d at 73. In Mills, the prosecutor repeatedly asked the jury "not to victimize the victim again," referred to the victim as a "nameless, faceless, slab of meat on an autopsy table," and encouraged the jury to identify with the victim by asking them to imagine they are waking up from a nightmare in which they are "[b]eing accosted by a knife-wielding assailant." Mills, 57 Conn. App. at 210-11. The prosecutor then stated that "[i]t's murder, murder based on an unprovoked attack of a man sitting at a table, minding his business. If we allow this to happen, we are all in trouble." Mills, at 207 n 8. In concluding the prosecutor's remarks were improper and too severe and frequent to be overcome by a curative instruction, the court stated that the "opinion that society would be in trouble if the defendant were not convicted might . . . have played a part in the jury's decision to convict because of a fear that the defendant might strike again." Mills, at 209. The court also stated there was no evidence that the defense argument invited the prosecutor's improper remarks. Mills, at 211.
Here, the defense argued that K.K.'s behavior after the alleged rapes supported Kent's testimony that sex was consensual and undermined her credibility. The prosecutor's remarks in rebuttal were in direct response to the defense argument that K.K. was not raped because she acted normally. In context, the prosecutor's rhetorical question, "do you know how you would react if you were raped by your uncle right now?," was meant to highlight the fact everyone reacts differently. And if the defense had objected, the court could have stricken the remarks and reiterated the jury instruction. The court also instructed the jury to reach its decision based on the facts and law, stating "[y]ou must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and the law given to you, not on sympathy, prejudice, or personal preference." Juries are presumed to follow instructions. State v. Graham, 59 Wn. App. 418, 428, 798 P.2d 314 (1990).
We conclude the remarks were not so flagrant and ill-intentioned that an instruction to the jury could not have cured any prejudice. Even if improper, the prosecutor's remarks were in direct response to the defense argument that K.K. did not act like she had been raped.
Fact of Complaint
Kent asserts that the trial court abused its discretion by admitting inadmissible hearsay under the common law "hue and cry/fact of complaint" exception and allowing Megan, Rory, K.K.'s boyfriend Mark, and her brother Nick to testify that K.K. told them Kent had raped her. Kent also asserts Douglas's testimony that Nick told her Kent had raped K.K. was double hearsay. In addition, Kent claims that the trial court abused its discretion by allowing witnesses to testify K.K. said his name and referred to the offense as "rape." In the alternative, Kent argues that even if the testimony was properly admitted, K.K.'s statements were not timely and should have been excluded.
The trial court's rulings regarding admission of evidence will not be reversed absent an abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Based on the premise that the "hue and cry/fact of complaint" testimony is an impermissible common law exception to the rules of evidence, Kent contends the trial court erred in admitting K.K.'s statements. We disagree with the premise of Kent's argument. The fact of complaint evidence "is not hearsay because it is introduced for the purpose of bolstering the victim's credibility and is not substantive evidence of the crime." State v. Bray, 23 Wn. App. 117, 121, 594 P.2d 1363 (1979). The rule is grounded in the assumption that in a forcible rape case, the absence of such evidence creates the inference that the victim's testimony is fabricated. State v. Bray, 124 Wn. App. at 122. Evidence of when a witness complains is admissible because one of the underlying questions in a sexual offense case is the credibility of the victim. State v. Murley, 35 Wn.2d 233, 237, 212 P.2d 801 (1949); State v. Alexander, 64 Wn. App. 147, 152, 822 P.2d 1250 (1992). In Murley, the court explained the history of the fact of complaint or "hue and cry" doctrine, as it was formerly known.
This doctrine rests on the ground that a female naturally complains promptly of offensive sex liberties upon her person and that, on trial, an offended female complainant's omission of any showing as to when she first complained raises the inference that, since there is no showing that she complained timely, it is more likely that she did not complain at all, and therefore that it is more likely that the liberties upon her person, if any, were not offensive and that consequently her present charge is fabricated. Thus, formerly, to overcome the inference, it became essential to the state's case-in-chief to prove affirmatively that she made timely hue and cry.
Murley, 35 Wn.2d at 237. And although the State is no longer required to prove that the victim timely complained, because the inference of fabrication exists and that inference affects the victim's credibility, evidence of when the victim complained is still admissible. Alexander, 64 Wn. App. at 152.
Thus, the fact of complaint exception allows the State in a forcible rape case to present evidence of the fact of the victim's complaint. State v. Bray, 23 Wn. App. at 121. But evidence of the details of the disclosure, including the specifics of the act and the identity of the offender is not admissible. Ferguson, 100 Wn.2d 131, 136, 667 P.2d 68 (1983). However, where identity is not an issue, testimony about the identity of the perpetrator is harmless error. Ferguson, 100 Wn.2d at 136.
Here, Kent's defense was that he and K.K. had consensual sex and she was not telling the truth. Because Kent claimed that K.K. was lying, the trial court did not abuse its discretion by allowing testimony that K.K. told her friends and her brother that Kent raped her. Consistent with the fact of complaint exception, the testimony did not address the specifics of what occurred. None of the witnesses testified about what K.K. may have said regarding the details of the rape, merely that Kent raped her. Because Kent's identity was not at issue, testimony as to his identity was harmless. Ferguson, 100 Wn.2d at 136. Because Nick's testimony was properly admitted under the fact of complaint exception, under ER 805, Kent's argument that the court impermissibly admitted "double hearsay" by allowing Douglas to testify that her son Nick told her Kent had raped K.K. fails.
It would be illogical to admit evidence of a complaint of a sexual offense without allowing the name of the offense.
Kent also asserts that if the fact of complaint exception applies, K.K.'s statements to Rory, to her boyfriend Mark, and to her brother Nick, were not timely. But because the State no longer has to prove a timely complaint, Kent's assertion fails. Alexander, 64 Wn. App. at 152; See also Graham, 59 Wn. App. at 422.
On this record we conclude the trial court did not err in admitting the fact of complaint testimony.
Cross Examination Beyond the Scope of Direct
Kent asserts that the trial court abused its discretion by allowing the prosecutor to improperly cross examine him about Douglas's confrontation after Nick told her that Kent had raped K.K. and about Ryan's conversation with him about turning himself in. The defense objected to the questions as outside the scope of direct examination. The court ruled that under ER 611(b), the prosecutor was allowed to question Kent because the questions affected his credibility.
Kent bears the burden of establishing the impropriety of the questions and their prejudicial effect. State v. King, 113 Wn. App. 243, 290, 54 P.3d 1218 (2002). We will not reverse unless the prosecutor's conduct was so prejudicial that no curative instruction could obviate the prejudice. State v. King, 113 Wn. App. at 289 (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). The absence of a curative instruction or a mistrial strongly suggests that the questions "did not appear critically prejudicial . . . in the context of the trial." King, at 290. A defendant may be vigorously cross-examined in the same manner as any other witness. Graham, 59 Wn. App at 427. The trial court has discretion to determine the scope of cross examination "so as to explain, qualify and rebut the defendant's direct testimony. . . ." Graham, 59 Wn. App. at 427; ER 611(b). Under ER 611(b), cross-examination is limited to the subject matter of direct examination and matters affecting the credibility of the witness. But the court may exercise its discretion to permit inquiry into additional matters. ER 611(b).
Although the questions about the confrontation with Douglas were beyond the scope of the direct examination, Kent cannot establish prejudice. When the prosecutor asked Kent what he said when Douglas accused him of raping K.K., Kent responded, "I said no, absolutely not. . . . I said I did not rape [K.K.] is what I said." Nor can Kent establish that the questions about why Ryan was driving him to the police station were prejudicial. And even if prejudicial, Kent cannot demonstrate that an instruction could not have cured the prejudice. See King, 113 Wn. App. at 290. The prosecutor asked Kent questions beyond the scope of direct about driving to the police stations and turning himself in and his conversations with his nephew, Ryan. Kent testified that Ryan encouraged him to turn himself in and drove him to police stations. But Kent told the jury that after he talked to his brother and learned that there was no warrant out for his arrest and no reason to turn himself in, Ryan dropped him off at his girlfriend's house.
The State mischaracterizes this testimony as evidence of flight and circumstantial evidence of guilt.
For the first time on appeal, Kent argues that the prosecutor's cross examination "implicated his constitutional rights not to incriminate himself, to be let alone, to have freedom of movement and to travel." The cases Kent relies on are distinguishable. In State v. Easter, 130 Wn.2d 228, 922 P.2d 1285 (1996), the defendant chose not to testify at trial. Because the State improperly characterized the defendant's silence as evasive and evidence of guilt, the court held that "[t]he use of pre-arrest silence as substantive evidence of guilt implicates the Fifth Amendment." Easter, 130 Wn.2d at 235. And Seattle v. Drew, 70 Wn.2d 405, 423 P.2d 522 (1967), does not support Kent's argument that the State improperly implicated his constitutional right to be "let alone." In Drew, the court held that an ordinance may not unreasonably or unnecessarily interfere with a person's freedom and, to be consistent with due process, laws must give fair notice about which acts will be punished.
Drew, 70 Wn.2d at 408.
Kent also relies on Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct 1322, 22 L. Ed. 2d 600 (1969) to argue that he had a constitutionally protected right to travel. But because Kent does not provide any argument for the assertion that the prosecutor implicated his constitutional right to travel, he waives any claim of error. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992); RAP 10.3(a)(5).
Unanimity Instruction
Kent also contends the trial court erred by failing to give the jury a Petrich instruction requiring unanimity because there were multiple dates and multiple incidents for the jury to consider on the two counts of rape in the second degree. The State asserts that a Petrich instruction was not warranted because each count involved a continuing course of conduct.
State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984).
To convict a defendant on a criminal charge, the jury must unanimously decide that the defendant committed the criminal act. State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007). The Petrich rule applies only to cases where several acts are alleged, any one of which could constitute the crime charged. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10 (1991). Under Petrich, 101 Wn.2d at 571, when the State presents evidence of multiple acts of like misconduct, any one of which could form the basis of a charged crime, the State must either elect which of the acts it is relying on or the court must instruct the jury to agree on a specific criminal act. Coleman, 159 Wn.2d at 511.
But the Petrich rule does not apply if the evidence shows a "continuing course of conduct." Petrich, 101 Wn.2d at 571. Where the evidence shows the defendant engaged in a series of actions intended to achieve the same objective, the acts are characterized as a continuing course of conduct rather than several distinct acts. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). Evidence of conduct at different times and places tends to show the acts are distinct. Petrich, 101 Wn.2d at 571. We evaluate the facts in a common sense manner to determine whether the criminal conduct constitutes a continuing course of action. Petrich, 101 Wn.2d at 571.
This is not a case where there was evidence of distinct criminal acts and the defendant was charged with only one crime. Cf. State v. Boyd, 137 Wn. App. 910, 155 P.3d 188 (2007). Here, Kent was charged with two counts of rape in the second degree and engaging in sexual intercourse by forcible compulsion in Ellensburg on April 9 and at Ryan's house in Lake Stevens on April 15. The evidence establishes that the multiple acts of oral and vaginal intercourse occurred at two different places and times, each of which was a continuing course of conduct with the single objective of rape. We conclude the trial court did not err in failing to give a unanimity instruction.
At oral argument, Kent cited State v. Williams, 137 Wn. App. 736, 154 P.3d 322 (2007), as an analogous case were the defendant was charged with separate acts of rape that all occurred in a short time period. Williams is distinguishable. In Williams each act that constituted rape was clearly separated by time from the next act constituting rape. Williams, 137 Wn. App. at 741 (between the first and second rape, Williams left the bedroom for five to ten minutes; between the second and third rape, Williams drove the victim to another house).
For the first time in his reply brief, Kent argues that because there were two separate and distinct sexual acts on April 9, the evidence does not establish a continuing course of conduct. The State only charged Kent with one count of rape in the second degree occurring on April 9. By his own admission, Kent engaged in a series of sexual acts on April 9 that were part of a continuing course of conduct for a single and continuing objective. Kent's testimony that he and K.K. had consensual sex two different times while in Ellensburg, does not establish the necessity for a Petrich instruction.
Ineffective Assistance of Counsel
Kent asserts that his counsel was ineffective because he failed to object to the prosecutor's "golden rule" argument, failed to propose any jury instructions, failed to object to the "fact of complaint" testimony, and failed to make a motion for a new trial.
To establish ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's performance is deficient if it falls below an objective standard of reasonableness based on a consideration of all the circumstances. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). To prove prejudice, a defendant must show that but for counsel's deficient performance, there is a reasonable probability the outcome of the proceedings would have been different. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
As previously discussed, because the prosecutor's rebuttal argument was in direct response to the defense closing, the defense made no objection, and the trial court did not abuse its discretion in admitting the "fact of complaint" testimony, Kent cannot establish either deficient performance or prejudice. Kent also cannot establish that his attorney was ineffective by failing to propose additional jury instructions or make a motion for a new trial. After Kent testified, the defense affirmatively decided not to propose a lesser included instruction for rape in the second degree, "[m]y client and I both agree with Mr. Stemler's assessment of the evidence that it's either consensual sex, or if the jury finds beyond a reasonable doubt that is forcible compulsion." Because a Petrich instruction was not necessary and the proposed jury instructions allowed the defense to argue Kent's position, Kent cannot show prejudice and his claim of ineffective assistance of counsel fails.
Likewise, Kent's claim that his attorney was ineffective by failing to object to the fact of complaint testimony and make a motion for a new trial fails.
We affirm Kent's conviction for two counts of rape in the second degree.
WE CONCUR: