Appeal fro Pierce County Superior Court. Docket No: 10-1-04754-1. Date filed: 04/27/2012. Judge signing: Honorable Ronald E Culpepper.
Valerie Marushige, for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Stephen D. Trinen, Deputy, for respondent.
AUTHOR: J. Robin Hunt, P.J. Joel Penoyar, JPT. concurs. Lisa Worswick, J. (dissenting).
[179 Wn.App. 963] ¶ 1 David William Carson appeals his jury trial convictions for three counts of first degree child molestation. He argues that (1) the trial court violated his right to a unanimous jury verdict by failing to provide a Petrich  unanimity instruction, (2) his trial counsel provided ineffective assistance in successfully opposing the trial court's giving a Petrich unanimity instruction, and (3) the trial court violated his right to a public trial by sealing the jury questionnaires without a Bone-Club  hearing. In a Statement of Additional Grounds for Review (SAG), Carson further asserts that (1) inconsistent testimony during the child hearsay hearing and the jury trial unfairly prejudiced him; and (2) there was another " David" whom the victim mentioned in the child forensic interview, which suggests that Carson was not the perpetrator. We hold that defense [179 Wn.App. 964] counsel's objection to a Petrich jury instruction, if error, was invited and that it did not constitute
ineffective assistance of counsel. We affirm.
I. Child Molestation
¶ 2 In 2009, David William Carson moved in with his friend DH, DH's fiancé --TH, and their three children--C, M, and five-year-old CC. In exchange for housing, Carson paid $250 a month in rent, gave the family part of his food stamp allowance, performed household chores, and watched the children while DH and TH worked.
¶ 3 In August 2010, TH was driving the children to a friend's house when CC repeatedly tried to get her attention. When TH responded, CC told her that Carson had " tried to put his penis in his [CC's] butt"  and that once Carson had put " string"  on his hands and tape on his mouth. TH stopped the car and called DH; she called the police when she arrived at her friend's house. After speaking with a police officer, TH scheduled a forensic interview for CC.
¶ 4 On August 26, CC met with Cornelia Thomas, a forensic interviewer at Mary Bridge Child Advocacy Center. During the interview, CC referred to Carson's  penis as " business" but clarified that " business" meant " penis" by [179 Wn.App. 965] pointing to his private parts when Thomas asked him to show her what " business" meant. CC detailed three occasions when Carson had tried to put his " business" in CC's bottom : (1) when Carson tied CCs hands and put duct tape on his mouth in TH's room, (2) when Carson made CC look at a Spiderman blanket in CC's bedroom, and (3) when Carson twisted CC's " business" in the bathroom.
¶ 5 Michele Breland, a nurse at Mary Bridge Children's Hospital, later performed a medical examination on CC, during which CC told her that Carson had tried to punch CC, had put his " business in [CC's] bottom," and had twisted CC's penis. 4 Report of Proceedings (RP) at 389. The physical examination results were inconclusive about whether CC's condition was indicative of sexual assault.
¶ 6 Pierce County Sheriff's Department Detective Thomas Catey investigated the alleged abuse of CC. Carson voluntarily met Catey at the sheriff's office and told Catey that (1) he had moved out of DH and TH's home after DH accused him of sleeping with TH, and (2) he believed DH and TH had fabricated CC's molestation story in retaliation for leaving their home and placing them in a financial bind.
¶ 7 The State charged Carson with three counts of first degree child molestation. Carson requested a jury trial.
A. Child Hearsay Hearing; Voir Dire
¶ 8 CC's mother, TH, testified at a pretrial child hearsay hearing to determine the
admissibility of CC's statements [179 Wn.App. 966] to her the first time CC told her about Carson. She related CC's statements that Carson had tried to sodomize him and had once taped CC's mouth and tied his hands. The trial court later ruled these child hearsay statements admissible.
¶ 9 After the jurors filled out questionnaires, the trial court conducted voir dire. Based on the completed questionnaires, both counsel decided which jurors to excuse and which jurors to question individually.
B. Trial Testimony
¶ 10 At trial, CC identified Carson as " Uncle David," who had lived with his (CC's) family. 2 RP at 103. CC testified that Carson had touched his (CC's) bottom with his (Carson's) " business"  in DH's office, " where his computer games are" ; in CC's room; in the bathroom; in his mother's room; and in his dad's " old room" ; CC also described an incident in his mother's room when Carson had tied CC's hands with plastic strings and put duct tape on CC's mouth. On cross-examination, CC testified that he did not remember Carson having touched his (CC's) " business" at all. 2 RP at 126.
¶ 11 TH testified that (1) Carson lived with her family during the summer of 2009 and took care of the children while she and DH worked; (2) the day before Memorial Day weekend 2010, Carson moved out after an argument with DH; (3) on August 13, 2010, CC told her " that David tried to [179 Wn.App. 967] put his penis in his [CC's] butt"  after putting " string"  on CC's hands and tape on his mouth; and (4) after that day, CC did not want to get dressed in front of family members, stopped leaving the restroom door open, and became more aggressive. Detective Catey testified that Carson told him he had moved out of TH's home after DH accused him of sleeping with TH, denied any sexual contact with CC, and believed DH and TH had fabricated CC's molestation story in retaliation for his leaving them in a financial bind.
¶ 12 Child forensic interviewer Thomas testified that she had recorded her August 26, 2010 interview with CC approximately two weeks after CC's disclosure to TH. During this interview, CC disclosed a twisting of his " business" (which he later identified as a penis by pointing to that area of his body); a time when he was duct taped, had his hands tied with plastic string, and had a penis " going into his bottom" ; and identified Carson as the perpetrator. 3 RP at 218. The trial court admitted into evidence CC's hearsay statements to Thomas and the DVD (digital video disk) recording of this interview, which Thomas had labeled with her initials; the jury viewed this DVD during trial.
¶ 13 Carson testified that he had known DH since 1996 and had moved in with DH and TH in 2009 after Carson had an altercation with his brother. Carson mentioned an agreement that he would pay TH and DH rent, give them $150 of his food stamps, and watch the children. Carson also mentioned that DH owned pornography and that he (Carson) had caught CC watching pornography once. Carson further testified that in May 2010, DH accused him of sleeping with TH, which prompted Carson to move out, which then upset DH and TH because they had no one to watch their children. Carson denied bathing the children, helping CC in the bathroom, touching CC's penis, tying up CC, or having access to zip-ties.
[179 Wn.App. 968] ¶ 14 Mary Bridge Children's Hospital nurse Breland testified that when she performed
a physical examination of CC on August 26, 2010, CC had asked her whether she was going to check his " business" (pointing to his penis) and told her that Carson had tried to punch him and put " his business in [CC's] bottom," which made him feel like he had to " poop," and that Carson had tried to twist CC's " business." 4 RP at 390, 389, 391. Breland found no sign of trauma and nothing unusual on CC's penis and testicles; his anus appeared normal. Based on CC's physical examination, Breland could not conclusively say that CC's condition was indicative of sexual assault.
C. Jury Instructions
¶ 15 The trial court and counsel discussed whether to give a Petrich jury instruction. The State had included in its proposed jury instructions the following Petrich instruction:
... To convict the defendant on any count of Child Molestation in the First Degree, one particular act of Child Molestation in the First Degree must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of Child Molestation in the First Degree.
Clerk's Papers (CP) at 38 (Jury Instruction 3).
¶ 16 Carson's counsel, however, explained that he had purposefully not proposed a Petrich instruction because he did not think one was necessary for the three separate and distinct incidents at hand. Instead, he believed that (1) a Petrich instruction was required only when the child talks about five or six incidents and just one is charged; and (2) more importantly, a Petrich instruction would confuse the jury. The next day, Carson's counsel reiterated that he had deliberately omitted a Petrich instruction from his proposed instructions because he saw no need for one and a Petrich instruction " becomes a problem" because it would " confuse the heck out of this jury" and potentially mislead the jury. 4 RP at 405, 406.
[179 Wn.App. 969] ¶ 17 When the trial court asked Carson's counsel if he was objecting to giving a Petrich instruction, he responded in the affirmative. When the trial court asked if Carson's counsel objected to WPIC  4.25 (the " Petrich instruction" ), he replied, " I think it's confusing, yes." 4 RP at 408. The trial court then asked whether Carson's counsel thought it would be error to give a Petrich instruction, to which he responded, " I do." 4 RP at 409. Based on defense ...