                                                              FILED
                                                             May 5, 2016
                                                   In the Office of the Clerk of Court
                                                  WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )         No. 32825-2-111
                                             )
                     Respondent,             )
                                             )
              v.                             )         UNPUBLISHED OPINION
                                             )
ANTHONY WAYNE BLAUERT,                       )
                                             )
                     Appellant.              )

       LAWRENCE-BERREY, J. -Anthony Blauert appeals his conviction for first degree

child molestation. He raises seven issues on appeal. These issues include sufficiency of

the evidence, lack of jury unanimity, and the State's witnesses improperly vouching for

the credibility of the victim/witness. We conclude that the State presented sufficient

evidence for the conviction, but that Mr. Blauert's right to a unanimous jury verdict was

violated, and the violation was not harmless. We therefore reverse Mr. Blauert's

conviction and remand for a new trial. 1




       1
       Because we reverse on the grounds that Mr. Blauert was deprived of jury
unanimity, we decline to address the remainder of the issues he raises.
No. 32825-2-111
State v. Blauert


                                          FACTS

       Jane Doe is the mother ofD.D., 2 who was born July 16, 2009. Ms. Doe was

lifelong friends with Stephanie Blauert, and Mrs. Blauert occasionally babysat D.D. In

the beginning of 2013, Mrs. Blauert babysat D.D. frequently, but further into the year

Mrs. Blauert became more of a secondary babysitter for when Ms. Doe's family members

were unavailable. In August 2013, Ms. Doe and D.D. moved in with Ms. Doe's friend,

Nichole Burlingame.

       On October 17, 2013, D.D. went to the restroom in their home and called for her

mother to come help her. Ms. Doe helped D.D. wipe and D.D. winced, which she had

never done. Ms. Doe asked her daughter where it hurt, and D.D. responded that her "no-

no" hurt, which is how the two referred to genitalia. Report of Proceedings (RP) at 169.

When Ms. Doe asked why it hurt, D.D. responded, "well, Andy touched me." 3 RP at 169.

As D.D. said this, she pointed to her vagina. Ms. Doe asked if Mr. Blauert was wiping

too hard, because Ms. Doe knew Mr. Blauert assisted Mrs. Blauert with babysitting. D.D.

responded, "no, mom, we weren't wiping." RP at 169. Ms. Doe asked what they were




      2
         For purposes of this opinion, we fictionalize the names of the mother, her friend,
and the initials of her daughter to protect the daughter's anonymity.
       3
         Mr. Blauert was the only person D.D. referred to as "Andy." RP at 171.

                                             2
No. 32825-2-111
State v. Blauert


doing. D.D. responded that they were "playing," and that Mr. Blauert touched her in the

"no-no" with his fingers. RP at 169.

      After D.D. told her mother what had happened, her mother quickly walked out of

the bathroom crying. Ms. Burlingame noticed Ms. Doe crying and asked what happened.

Ms. Doe could not speak. Ms. Burlingame asked if she could go talk to D.D., and Ms.

Doe told Ms. Burlingame that she could. Ms. Doe did not tell Ms. Burlingame what her

daughter had said. D.D. came out of the bathroom, and Ms. Burlingame asked her what

she had told her mom in the bathroom. D.D. said she told her mom that "Andy" had

touched her "no-no" with his finger. RP at 179.

      Ms. Doe called the police that day. After she called the police, Ms. Doe took her

daughter to have her examined at a doctor's office. The police did not ask Ms. Doe to

arrange the doctor's appointment-Ms. Doe decided to go herself. At the doctor's office,

family nurse practitioner Tamera Nolan examined D.D. for signs of inappropriate contact.

D.D. told Ms. Nolan, "my no no hurts," and "it feels like my heart is coming down." RP

at 202. Ms. Nolan asked what happened, and D.D. said that "her and Andy were ...

playing and that he touched her inside." RP at 203. D.D. told Ms. Nolan that she climbed

into bed with Mr. Blauert to cuddle. D.D. was the first to mention the name "Andy." RP

at 204. D.D. also said that "it wasn't Dustin." RP at 203.



                                            3
No. 32825-2-111
State v. Blauert


       In November 2013, Ms. Doe took D.D. to a forensic interview at the request of the

police. Karen Winston, a forensic child interview specialist, interviewed D.D. and

recorded the interview.

       The State charged Mr. Blauert with one count of first degree rape of a child. The

trial court held a Ryan 4 hearing to determine whether Ms. Doe, Ms. Winston, and Ms.

Burlingame could testify to D.D.'s disclosures pursuant to RCW 9A.44.120. Judge

Sperline presided over the Ryan hearing. At the Ryan hearing, the prosecutor argued that

Mr. Blauert molested D.D. on October 15, 2013. In his oral rulings, Judge Sperline stated

that he believed D.D. would be found competent at trial, but formally reserved any

competency issues for the actual trial. Judge Sperline also ruled that the very short period

of time between when the incident allegedly occurred and when D.D. made her

disclosures weighed in favor of finding that D.D.'s statements were reliable. Defense

counsel did not object to any of Judge Sperline's oral rulings.

       The day of trial, the State amended the information to include an alternative charge

of first degree child molestation. During the pretrial motions in limine, the prosecutor

conceded that the incident probably did not occur on October 15. The prosecutor also

acknowledged that D.D. disclosed to Ms. Winston that Mr. Blauert had touched her


       4
           State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984).

                                             4
No. 32825-2-III
State v. Blauert


twice-once when she was three, and once when she was four. The prosecutor stated,

"[W]e're not alleging the earlier incident. Because she's not able to give very many

details about it." RP at 106. The trial court asked defense counsel if there was a

challenge to competency, and defense counsel responded that he was not challenging

D.D.'s competency yet but might object to competency depending on how D.D. testified.

        D.D. testified at trial. She testified that while in Mr. Blauert's home, Mr. Blauert

pinched the outside of her front "no-no" once with his fingernails. RP at 157-58. She

testified Mr. Blauert touched her under her clothes and that her pants were all the way

down.

        After the trial court excused D.D., defense counsel asked the trial court to consider

competency "before any potential hearsay testimony [was] given." RP at 161. The trial

court stated that defense counsel had conceded competency. Defense counsel argued that

the trial court could find D.D. incompetent after D.D. had testified, and this would

prohibit Ms. Doe and Ms. Burlingame from thereafter testifying to D.D. 's hearsay

statements. The trial court and the prosecutor clarified that RCW 9A.44.120 only

requires the child to testify in order for the hearsay statements to be admitted, and because

D.D. testified, her competence now had no bearing on the statements' admissibility.

Defense counsel stated that he was satisfied.


                                                5
No. 32825-2-111
State v. Blauert


       The State's next witness was Ms. Doe. Toward the beginning of Ms. Doe's

testimony, the following exchange occurred:

       [Prosecutor:] Is [D.D.] a truthful child?
       [Ms. Doe:] Yes.

RP at 165. Defense counsel did not object to the prosecutor's question. The trial court

cut off Ms. Doe's testimony, asked counsel to approach the bench, and stated that it is

highly improper to ask a witness to express an opinion about the truthfulness of another

witness because it invades the province of the jury. The prosecutor argued Ms. Doe had

knowledge of her daughter's reputation, and defense counsel stated he did not object

because Ms. Doe testified as to her observations of her daughter. After the trial court's

warning, the prosecutor then asked Ms. Doe whether her daughter ever makes up stories,

to which Ms. Doe responded that she does. The prosecutor then asked Ms. Doe if she

was able to tell when her daughter was making up a story, and Ms. Doe responded that

she was.

      Ms. Burlingame testified. The State then called Detective Ryan Green. During

Detective Green's testimony, the following exchange occurred:

               [Prosecutor:] And if you can estimate, how many of these types of
       cases-and when I say these types of cases, I'm talking about rape of a
       child, child molestation cases-have you handled in your career as a
       detective with the sheriffs office?
               [Detective Green:] Probably close to a hundred, if not more.

                                             6
No. 32825-2-III
State v. Blauert


              [Prosecutor:] And in your experience, is it unusual for children to
       delay reporting?
              [Detective Green:] Yes, most often so.
              [Prosecutor:] It's unusual for them to delay reporting?
              [Detective Green:] No. It's very common, and most of the time
       children have a hard time understanding what has happened to them, so they
       do delay in reporting.

RP at 189. Defense counsel did not object to this testimony.

       After the trial court excused Detective Green and sent the jury out, the trial court

advised counsel to review State v. Smith, 162 Wn. App. 833, 262 P.3d 72 (2011) before

calling additional witnesses. The trial court stated the Smith case deals with improper

prosecutorial vouching. The prosecutor stated that she was not going to ask Ms. Winston

anything about D.D.'s credibility, but only ask Ms. Winston about her experience,

training, education, job, how she had contact with D.D., and then publish the video of

D.D.'s interview.

      After lunch, the State called Ms. Nolan. Ms. Nolan testified that she examined

D.D. on October 17, and D.D. said that "her and Andy were ... playing and that he

touched her inside." RP at 203. Ms. Nolan also testified that D.D. said that "it wasn't

Dustin," and that D.D. was the first person to mention the name "Andy." RP at 203-04.

Defense counsel did not object to these statements. The prosecutor also asked Ms. Nolan

questions about D.D.'s demeanor, and the following exchange occurred:


                                             7
No. 32825-2-III
State v. Blauert


              [Prosecutor:] Did she give you any occasion to believe that she had
       a motive in making this-in telling you this?
              [Ms. Nolan:] No.
              [Prosecutor:] Did she appear to be forthcoming in her statements?
              [Ms. Nolan:] Yes.
              [Prosecutor:] Was there anybody else in the room while she made
       these statements?
              [Ms. Nolan:] Her mother.
              [Prosecutor:] And was her mother-what was her mother's role in
       this?
              [Ms. Nolan:] Encouraging the patient to be honest and to be
       forthcoming and supporting her.

RP at 204. Defense counsel did not object to these questions. Finally, Ms. Nolan

testified that she did not find any physical evidence to corroborate D.D. 's complaints.

       After the trial court excused Ms. Nolan, the court brought up the prosecutor's

previous question of whether D.D. "appeared to be forthcoming making her statements."

RP at 210. The trial court advised the prosecutor again to read Smith, and stated that

"[ a]ny kind of statement that appears to vouch for the credibility of the witness is going to

be a big, big problem." RP at 210. The prosecutor explained that her question was

intended to ask, "[W]as [D.D.] hesitant." RP at 210. The trial court told the prosecutor

that "we've had at least two witnesses express at least an indirect opinion about the

credibility of [D.D.]." RP at 212.




                                              8
No. 32825-2-111
State v. Blauert


        Next, the State called Ms. Winston. The State played the interview tape for the

Jury. During the interview, the following exchange occurred between Ms. Winston and

D.D.:

               Ms Winston: Hey [D.D.], how many times did Andy touch your
        pee?
              [D.D.]: Two times.
              Ms. Winston: Two times? How old were you the first time that
        Andy touched your pee?
              [D.D.]: Three.
              Ms. Winston: You were three? How old were you the last time he
        touched your pee?
              [D.D.]: Four.
              Ms. Winston: Four? Okay.

Ex. 3 at 11:36:05 -11:36:25.

        The State rested. Mr. Blauert called Mrs. Blauert. Mrs. Blauert testified that she

began babysitting D.D. around August 20, 2013, and babysat D.D. three days per week

until September 6. Mrs. Blauert testified that she did not babysit D.D. for the next month

and one-half, and then babysat D.D. one more time on October 15. Mrs. Blauert testified

that she did not watch D.D. for the full day on October 15 because she had to work, and

that Mr. Blauert's friend Dustin Cruz helped watch D.D. Mrs. Blauert testified that Mr.

Blauert was in Portland, Oregon, getting a medical examination that day. The State

conceded that Mr. Blauert was not at his home when D.D. was there on October 15.




                                             9
No. 32825-2-III
State v. Blauert


       Mr. Blauert also called Mr. Cruz. Mr. Cruz testified that he watched D.D. until

around 7:00 p.m. to 7:15 p.m. on October 15, and then D.D. was picked up. Mr. Cruz

testified Mr. Blauert arrived home between 8:00 p.m. and 8:15 p.m.

       The trial court instructed the jury that in order to find Mr. Blauert guilty of the

alternative crime of child molestation, it must find "[t]hat between July 1, 2013 and

October 23, 2013, both days inclusive, the defendant had sexual contact with [D.D.]."

Clerk's Papers (CP) at 30. The State did not elect the specific act on which the jury

should rely in its deliberations. The trial court did not give a Petrich 5 instruction.

       The jury acquitted Mr. Blauert of first degree rape of a child, but convicted him of

first degree child molestation. After the trial, Judge Sperline filed findings of fact and

conclusions of law from the pretrial Ryan hearing. Mr. Blauert appeals.

                                         ANALYSIS

       A.     Sufficiency of the evidence

       In a criminal case, the State must provide sufficient evidence to prove each

element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When a defendant challenges the



       5
        State v. Petrich, 101 Wn.2d 566, 683 P .2d 173 ( 1984 ), overruled in part on other
grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogated in part on
other grounds by In re Pers. Restraint ofStockwell, 179 Wn.2d 588, 316 P.3d 1007

                                               10
No. 32825-2-111
State v. Blauert


sufficiency of the evidence, the proper inquiry is "whether, after viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of the

State and interpreted most strongly against the defendant." Id. Furthermore, "[a] claim of

insufficiency admits the truth of the State's evidence and all inferences that reasonably

can be drawn therefrom." Id. In a challenge to the sufficiency of the evidence,

circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150

Wn.2d 774, 781, 83 P.3d 410 (2004). This court's role is not to reweigh the evidence and

substitute its judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P .2d

628 (1980).

       Here, Mr. Blauert only challenges the sufficiency of the State's evidence insofar as

the jury found he committed the crime within the charging period and had sexual contact

with D.D.

              1.     Sufficiency of evidence supporting the jury's finding that the crime
                     occurred within the July 1 to October 23 charging period

      Mr. Blauert claims that the State failed to produce sufficient evidence to sustain

the added element: that the crime occurred within the charging period, which was


(2014).
                                             11
No. 32825-2-III
State v. Blauert


between July 1, 2013, and October 23, 2013. The charging period is not a statutory

element of first degree child molestation. See RCW 9A.44.083. However, under the law

of the case doctrine, 'jury instructions not objected to become the law of the case." State

v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). The State assumes the burden to

prove beyond a reasonable doubt any elements added to the to-convict instructions, even

if those elements do not have a statutory basis. Id. In the event of a sufficiency of

evidence challenge on appeal, the sufficiency of evidence to sustain the verdict is

determined with reference to the instructions. Id. at 103 ( quoting Tonkovich v. Dep 't of

Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948)).

       The reviewing court looks at the evidence at whatever point the sufficiency

challenge is raised. State v. Jackson, 82 Wn. App. 594, 608-09, 918 P.2d 945 (1996).

The defendant is not barred from claiming insufficiency at a late stage of the proceedings,

but the court will use the most complete record available at the time the claim is made.

Id.

      Here, if this court were to solely examine the State's evidence, there would be

insufficient evidence to sustain the jury's finding that Mr. Blauert molested D.D. within

the charging period. None of the State's witnesses could say when the act occurred. D.D.

testified that she could not remember when it happened. Ms. Doe testified.that the


                                             12
No. 32825-2-111
State v. Blauert


Blauerts babysat D.D. throughout the entirety of 2013, and babysat D.D. before she and

her daughter ever moved in with Ms. Burlingame. Ms. Doe and Ms. Burlingame testified

that D.D. never told them when Mr. Blauert touched her. D.D. never made any

statements to this effect in her forensic interview.

       However, in determining whether the evidence is sufficient to sustain the

conviction, this court uses the most complete record available at the time the claim is

made. This includes the defendant's evidence. Mr. Blauert called Mrs. Blauert at trial,

who testified that she only babysat D.D. from August 20 to September 6, and once more

on October 15. The charging period encompasses these dates. Mrs. Blauert also testified

that Mr. Blauert was occasionally present when she babysat D.D. Viewing the evidence,

as this court must, in the light most favorable to the State and drawing all reasonable

inferences in favor of the State and interpreting them most strongly against Mr. Blauert,

the evidence is sufficient to support the jury's finding that Mr. Blauert molested D.D.

between July 1, 2013 and October 23, 2013, as required by the law of the case.

              2.     Sufficiency of the evidence supporting the jury's finding that Mr.
                     Blauert had sexual contact with D.D.

       A person commits first degree child molestation when that person "knowingly

causes another person under the age of eighteen to have sexual contact with another who

is less than twelve years old and not married to the perpetrator and the perpetrator is at

                                              13
No. 32825-2-III
State v. Blauert


least thirty-six months older than the victim." RCW 9A.44.083. "Sexual contact" is

defined as "any touching of the sexual or other intimate parts of a person done for the

purpose of gratifying sexual desire of either party or a third party." RCW 9A.44.010(2).

       "Offenses such as child molestation or indecent liberties reasonably require a

showing of sexual gratification because the touching may be inadvertent." State v.

Gurrola, 69 Wn. App. 152, 157, 848 P.2d 199 (1993). The jury may infer sexual

gratification if an adult male with no caretaking function touches the intimate parts of a

child, but additional evidence is needed if the male has a caretaking function. State v.

Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991).

       Mr. Blauert argues this case is like Powell, where this court found that the

evidence was insufficient to find that Mr. Powell's purpose was achieving sexual

gratification. Id. at 918. In Powell, a fourth grade girl sat on Mr. Powell's lap and Mr.

Powell hugged her around the chest. Id. at 916. As Mr. Powell assisted her off his lap,

he touched her buttocks and placed his hand on her underpants under her skirt. Id. On

another occasion, while the girl was alone with Mr. Powell in his truck, he touched both

her thighs. Id. On each of the occasions Mr. Powell only touched the outside of her

clothing. Id.




                                             14
No. 32825-2.:In
State v. Blauert


       This case is not Powell. Mr. Blauert helped babysit D.D., so additional evidence is

needed to sustain Mr. Blauert's conviction other than the fact that he touched D.D. 's

intimate parts. This additional evidence exists in the record. While in the Blauerts'

home, Mr. Blauert pinched the outside ofD.D.'s vagina with his fingernails. Mr. Blauert

touched her under her clothes. Mr. Blauert had pulled her pants all the way down. Ms.

Doe asked her daughter if Mr. Blauert was wiping too hard, and D.D. responded, "[N]o,

mom, we weren't wiping," and that they were "playing." RP at 169. Mrs. Blauert was at

the store when this all happened. These facts are not "susceptible of innocent

explanation." Powell, 62 Wn. App. at 918. We conclude that the State presented

sufficient evidence to support the jury's finding that Mr. Blauert committed the crime

within the charging period and had sexual contact with D.D.

       B.     Jury unanimity

       Mr. Blauert contends, for the first time on appeal, that the trial court should have

instructed the jury that it must unanimously agree on which underlying act gave rise to

criminal liability for the one count the State charged. A defective verdict that deprives

the defendant of a unanimous verdict invades the fundamental constitutional right to a

trial by jury. The issue may, therefore, be raised for the first time on appeal. E.g., State v.

Bobenhouse, 166 Wn.2d 881, 892 n.4, 214 P.3d 907 (2009).



                                              15
No. 32825-2-111
State v. Blauert


       The Washington Constitution gives criminal defendants the right to a unanimous

jury verdict. CONST. art. I, § 21. In cases where the State presents evidence of multiple

criminal acts and any one of these acts could constitute the crime charged, the jury must

unanimously agree on the same act that constitutes the crime in order to convict the

defendant. Petrich, 101 Wn.2d at 572. To ensure jury unanimity when multiple acts

could relate to one charge, "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 proved beyond a

reasonable doubt." State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). Election

of an act may be established if the State's closing argument, when considered with the

jury instructions and the charging documents, makes it clear which act or acts the State is

relying on for each charge and there is no possibility that the jury could have been

confused as to which act related to which charge. State v. Bland, 71 Wn. App. 345, 352,

860 P.2d 1046 (1993), overruled in part on other grounds by State v. Smith, 159 Wn.2d

778, 154 P.3d 873 (2007).

       Constitutional error occurs if there is no election and no unanimity instruction is

given. Bobenhouse, 166 Wn.2d at 893. The error stems from the possibility that some

jurors may have relied on one act as the basis for convicting the defendant and other



                                               16
No. 32825-2-III
State v. Blauert


jurors may have relied on a different act, resulting in a lack of unanimity on all of the

elements necessary for a valid conviction. Kitchen, 110 Wn.2d at 411.

       An exception exists when the evidence shows the defendant was engaged in a

"continuing course of conduct." State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453

( 1989). In this situation, neither an election nor a unanimity instruction is required. Id.

In determining whether the evidence supports multiple criminal acts or a continuing

course of conduct, this court evaluates the facts in a commonsense manner considering

(1) the time that elapsed between the criminal acts, and (2) whether the different acts

involved the same parties, the same location, and the same ultimate purpose. State v.

Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996).

              1.     Deprivation of jury unanimity

       This entire jury unanimity issue is caused by the 16-day overlap between the

beginning of the charging period on July 1 and when D.D. turned four years old on

July 16. The State alleged Mr. Blauert only committed one act of molestation. The jury

heard evidence that the Blauerts babysat D.D. throughout the entirety of the charging

period. The jury also saw the videotaped child interview with Ms. Winston in which D.D.

stated that Mr. Blauert touched her twice-once when she was three, and once when she

was four. At the pretrial motions in limine, the prosecutor acknowledged D.D.'s


                                              17
No. 32825-2-III
State v. Blauert


statements that Mr. Blauert touched her twice. The trial court asked if D.D. was four

years old during the entire charging period, and the prosecutor agreed. The prosecutor

was mistaken. The prosecutor then told the trial court that the State was "not alleging the

earlier incident. Because she's not able to give very many details about it." RP at 106.

       On appeal, the State argues that neither an election nor a Petrich instruction was

required because D.D. was four years old throughout the entire charging period in the to-

convict instruction. Therefore, the State argues, it was factually impossible for the jury to

convict Mr. Blauert based on the evidence that Mr. Blauert first touched D.D. when she

was three. This might be a meritorious argument if the State's math were correct.

However, the jury heard evidence that D.D. was born on July 16, 2009. Therefore, her

fourth birthday was July 16, 2013, so she was in fact three years old for a portion of the

charging period.

       The State also argues that the prosecutor elected the second touching because the

charging information and the to-convict instruction both designated the touching that

occurred when D.D. was four years old. This is incorrect-both the charging information

and the to-convict instruction only list the July 1 to October 23 charging period. The

State also argues that the prosecutor elected the second touching when she emphasized

the charging period during her closing argument and mentioned the August 20 to



                                             18
No. 32825-2-III
State v. Blauert


September 6 time frame on rebuttal. This argument is still predicated on the same

mathematical error-the charging period listed in the information and the to-convict

instruction includes 16 days in which D .D. was still three years old, so this cannot be a

valid election. While a prosecutor can make a valid election in closing argument, Bland

requires the closing argument be taken together with the jury instructions and the

charging documents so that there is no possibility that the jury could have been confused

as to which act related to which charge. Bland, 71 Wn. App. at 352. Considering the

State's closing argument and the jury instructions, we conclude there is a possibility that

the jury was confused as to which act the State relied on for conviction.

       Because the State charged one count and introduced evidence of two separate

touchings within the charging period, Mr. Blauert was deprived of jury unanimity unless

those two touchings were a continuous course of conduct. However, this court cannot

perform a continuing course of conduct analysis given that no evidence relating to the

first alleged touching exists other than D.D.'s statement in the forensic interview. This is

the reason why the State did not charge the first allegation in the first place. The State

knew this evidence was contained in the videotape, but decided to publish it to the jury

anyway. The State then failed to elect the act on which the jury should rely, and did not

propose a unanimity instruction. Here, like in Petrich, the jury saw evidence that multiple


                                             19
No. 32825-2-III
State v. Blauert


"distinct criminal acts have been committed, but defendant is charged with only one count

of criminal conduct." Petrich, 101 Wn.2d at 572. On this record, it is impossible to

know which of the two acts was proved to the satisfaction of all of the jurors beyond a

reasonable doubt. We conclude that Mr. Blauert was deprived of his right to a unanimous

jury verdict.

                2.   Harmless error inquiry

       Failure to give the Petrich instruction, when required, is reversible error unless the

error is harmless beyond a reasonable doubt. State v. Camarillo, 115 Wn.2d 60, 64, 794

P.2d 850 (1990). "Thus in multiple acts cases the standard of review for harmless error is

whether a 'rational trier of fact could find that each incident was proved beyond a

reasonable doubt.'" Id. at 65 (quoting State v. Gitchel, 41 Wn. App. 820, 823, 706 P .2d

1091 (1985)).

       In Petrich the error was not harmless due to the child's testimony. The victim was

able to describe some of the acts with some detail and specificity, but other details were

acknowledged "with attendant confusion as to date and place, and uncertainty regarding

the type of sexual contact that took place." Petrich, 101 Wn.2d at 573. The error was not

harmless. Id.




                                              20
No. 32825-2-III
State v. Blauert


       The reverse was true in Camarillo, where three separate touchings occurred and

each was independently capable of supporting one count of indecent liberties. Camarillo,

115 Wn.2d at 63. At trial, the "boy's testimony was specific about what had occurred."

Id. at 66-67. "There was no conflicting testimony which would have placed any

reasonable doubt in the mind of a juror that the events did not happen as described by the

boy." Id. at 71. The Camarillo court noted that the evidence presented was sufficient to

establish each crime had occurred, there was no conflicting testimony, the defendant had

a general denial defense, and the victim provided specific detailed testimony regarding

each touching that occurred. Id. at 71-72. Ultimately, the Camarillo court determined

that if the jury reasonably believed one incident occurred, all the incidents must have

occurred. Id. at 70-71 (quoting State v. Camarillo, 54 Wn. App. 821, 828, 776 P.2d 176

(1989), aff'd, 115 Wn.2d 60). The error was harmless beyond a reasonable doubt. Id. at

72.

       This case is more like Petrich. D.D. consistently described the second touching in

specific detail and explained how Mr. Blauert pulled her pants down and touched her

vagina with his finger when she was four years old. However, no other testimony or

corroborating evidence supported her statement that Mr. Blauert touched her when she

was three years old-which was still within the charging period. Like in Petrich and


                                            21
No. 32825-2-III
State v. Blauert


unlike Camarillo, a rational juror could have entertained reasonable doubt as to whether

the first touching actually occurred. We conclude the error here was not harmless beyond

a reasonable doubt.

       C.      Remedy

       Where an appellate court reverses a conviction for reasons other than insufficiency

of the evidence, the proper remedy is to remand for a new trial. See State v. Wright, 165

Wn.2d 783, 802 n.11, 203 P.3d 1027 (2009). Consistent with our rulings in this case, we

therefore reverse Mr. Blauert's conviction for first degree child molestation and remand

for a new trial.

       For the record, we note that the State concedes that the prosecutor committed error

when she elicited testimony from witnesses concerning D.D. 's credibility. We agree.

The State counters that the prosecutor's error was harmless. We express no opinion,

other than we trust the same error will not reoccur. Mr. Blauert also raises a number of

other issues. Because we reverse Mr. Blauert's conviction on the grounds that he was

deprived of jury unanimity, we decline to address these issues. See State v. Richie, 191

Wn. App. 916, 920 n.1, 365 P.3d 770 (2015).




                                            22
No. 32825-2-III
State v. Blauert


       Reversed and remanded.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                          Lawrence-Berrey, J.
                                                                              j
WE CONCUR:



                                            -;;-; Lk  w ( J::-
Fearing,C.J        i                      Siddoway,J.  ~




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