Superior Court County: Snohomish. Superior Court Cause No: 93-1-00311-5. Date filed in Superior Court: 10/25/93. Superior Court Judge Signing: Larry McKeeman.
Written by: Cox, J., Concurred by: Webster, J., Becker, J.
COX, J. -- At issue in this case is the sufficiency of generic testimony to support the conviction of Ralph Hayes for raping his young daughter, K. The State charged Hayes with four counts of rape of a child during the period "on or about" July 1, 1990 through May 31, 1992. K. testified at trial that Hayes "put his private part in mine" some "two or three times a week" during the charging period. The State presented other evidence that was consistent with the charges. A jury convicted Hayes on all four counts. He appeals.
We conclude that (1) the evidence was sufficient to support Hayes' conviction on all four counts; (2) Hayes was
not placed in double jeopardy or deprived of his right to present a defense by the State's use of the same language in the charging document and use of different evidence for each count; (3) Hayes did not receive ineffective assistance of counsel; and (4) there was no other error. Accordingly, we affirm.
K. was born in November 1981. She was 11 when she testified at trial in 1993.
In November 1985, K. was four when she began living with Hayes and Terri Vermaat. In May 1986, Vermaat and Hayes were married. Nine months later, Hayes left their home, but left K. in the care of Vermaat until July 1988. Hayes then assumed sole care of K., and they then lived together for a short time at the homes of various friends and relatives.
In September 1988, Hayes and K. began living with Diane and her daughter, Nicky. Hayes married Diane in September 1989. All four of them lived in an apartment on Fowler Street in Everett until May or June of 1990. They then moved to another apartment.
Sometime in 1991, Hayes and Diane separated. During the separation, Hayes and K. lived with Scott Donaldson in Everett for about three to six months. Diane and Nicky moved to Lynnwood. Hayes and Diane then got back together sometime later that year. They moved back to the Fowler Street apartments and lived there with K. and Nicky.
On June 18, 1992, authorities removed K. from the Hayes' home. That was done in connection with the charges in this case.
K. testified at trial that from the summer of 1990 until she was taken from Hayes' home in June 1992, Hayes
"put his private part in mine" at least four times and up to "two or three times a week." She testified that these incidents occurred when she lived alone with Hayes before he lived with Diane; when she was living on Fowler Street with Diane and Nicky; and when they lived with Donaldson. She also testified that the last time it happened was two weeks before she was taken away from Hayes on June 18, 1992.
K. also testified that when Hayes "put his private part in mine" it would last about 30 minutes, and he would get on top of her and move his "private" in and out of her. She testified that she saw something "yellowish white" come out of Hayes' "private," and that he would use paper towels kept under the bed to wipe them both off. K. testified that it hurt once and that she bled once. She testified that it would happen in Hayes' bedroom during the day, in the afternoon, and when Nicky was away.
K. testified that the first time she told anyone about these incidents was when Hayes and Diane were "split up," and she and Hayes were living with Donaldson. At that time, she told her best friend, "Leah," and Leah's mother told Diane. Diane likewise testified that K. disclosed these allegations to Leah and her. But Diane added that K. fabricated the allegations because she no longer wanted to live with Hayes.
Nicky testified that K. disclosed to her that Hayes had been touching her. But Nicky stated only that K. told her that Hayes once took her pencil and pulled her into bed.
Karen Evans, the nurse practitioner who examined K., testified that K. told her that Hayes had put his private in her private two times a week for more than a year. She also testified that the condition of K.'s hymen was consistent with this frequency of intercourse.
Sufficiency of the Evidence
Hayes first argues that the evidence is insufficient to
support his convictions for four counts of rape of a child because there was no testimony that four separate and distinct acts of sexual intercourse occurred within the charging period. The State responds by citing testimony regarding seven different acts of alleged sexual intercourse and K.'s "generic" testimony that it occurred at least four times and up to two or three times a week. We hold that the evidence was sufficient to support the conviction.
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.*fn1 The reviewing court must defer to the trier of fact to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences therefrom.*fn2 Thus, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.'"*fn3
To convict a criminal defendant, a unanimous jury must conclude that the criminal act charged has been committed.*fn4 In cases where several acts are alleged, any one of which could constitute the crime charged, the jury must unanimously agree on the act or incident that constitutes the crime.*fn5 In such "multiple acts" cases, Washington law applies the "either or" rule:
either the State [must] elect the particular criminal act upon which it will rely for conviction, or . . . the trial court [must] instruct the jury that all of them must agree that the same
underlying criminal act has been proven beyond a reasonable doubt.*fn6
In sexual abuse cases where multiple counts are alleged to have occurred within the same charging period, the State need not elect particular acts associated with each count so long as the evidence "clearly delineates specific and distinct incidents of sexual abuse" during the charging periods.*fn7 The trial court must also instruct the jury that they must be unanimous as to which act constitutes the count charged and that they are to find "separate and distinct acts" for each count when the counts are identically charged.*fn8
Here, the evidence shows specific and distinct acts of sex abuse during the charging period. The trial court also complied with the requirement to properly instruct the jury.*fn9 Thus, our inquiry is whether the evidence ...