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State v. Miller

February 10, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JAMES LEE MILLER, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-06325-8. Date filed: 08/21/95. Judge signing: Hon. Jo Anne Alumbaugh.

PER CURIAM. James Lee Miller appeals his convictions for first degree rape of a child and assault. He contends the court erred in failing to ensure unanimity on the assault charge, give reasons on the record for denying a sentencing alternative, or enter written findings and Conclusions following a CrR 3.5 hearing. We affirm because the continuing course of conduct exception to the unanimity rule applies here, the court was not required to give reasons on the record for denying the sentencing alternative, and the requisite CrR 3.5 findings and Conclusions have been filed and are properly before the court.

FACTS

The State charged Miller with first degree rape of a child, the alternative crime of first degree child molestation, and fourth degree assault. The State's evidence established that on the evening of June 26, 1994, Joan Varner was taking care of five children, including four nieces and nephews and a family friend.

Miller, who was romantically involved with Varner at the time, arrived at Varner's residence around 1:30 a.m. He appeared intoxicated. Varner later told him they could not have sex that night because the children were there.

During the night, Varner got up and found Miller naked in the living room. He was kneeling over J.A., the victim in the assault count. She told him to return to the bedroom, which he did. Shortly thereafter, Varner woke up and found Miller back in the living room, leaning over J.A. He was naked except for a towel. His genitals were exposed.

Miller returned to the bedroom, but again ended up in the living room. This time, Varner found him laying next to C.W., who had let out a scream. Miller was fully clothed.

J.A. testified that Miller bent over her, shook her nightgown at the shoulder, and asked "Do you like that?" She said "Yes" because she thought he was talking about the nightgown. Miller then kissed her on the cheek and said he would be right back.

He returned and laid down next to her. He started repeatedly grabbing her feet, and she kicked at him. He eventually stood up, went to the hallway, and said "Come here." When J.A. went to him, he tried to touch her left inner thigh, but she moved away. J.A. returned to her sleeping spot, and Miller began to talk to A.B.

According to A.B., she woke up during the night and felt Miller's finger in her vagina. Except for a towel around his waist, Miller was naked.

Miller did not testify. In a statement to police, however, he initially denied touching any of the children. After a detective suggested he might have mistaken one of the children for somebody else, Miller said he mistook 12-year-old A.B. for 31-year-old Varner. He eventually realized A.B. was not Varner because of her breast size and the absence of pubic hair.

The court refused the defense's request for a unanimity instruction on the assault count. The jury found him guilty on both counts.

At sentencing, the court denied Miller's request for a Special Sex Offender Sentencing Alternative and instead imposed a standard range sentence.

DECISION

Miller first argues that he was denied his right to a unanimous verdict. He contends the evidence showed several acts that would each support conviction, and therefore the court should have required a unanimity instruction or election by the State. The State, on the other hand, contends no instruction or ...


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