                                                                                                    If--' 1I— E D
                                                                                              010 ? CI APPEALS
                                                                                                  T
                                                                                                  0avIS10?M 1 L

                                                                                            209 MAR 13     AM IP:, l I
                                                                                             STATE




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                        DIVISION II

STATE OF WASHINGTON,                                                              No. 43359- 1- 11


                                          Respondent,


            rW4




DAVID WILLIAM CARSON,                                                        PUBLISHED OPINION




            HUNT, J. —      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

                                                  Petrichl

jury   verdict      by failing   to   provide a              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
                                                   2
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




1
    State    v.   Petrich, 101 Wn.2d 566, 572, 683 P. 2d 173 ( 1984),             overruled on other grounds by
State v. Kitchen, 110 Wn.2d 403, 405 -06, 756 P. 2d 105 ( 1988).

2
    State   v.    Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).
No. 43359 -1 - II




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 counsel' s objection to a Petrich jury instruction, if error, was invited and

that it did not constitute ineffective assistance of counsel. We affirm.

                                                               FACTS


                                                     I. CHILD MOLESTATION


         In 2009, David William Carson                      moved     in   with   his friend DH, DH'     s   fiance —TH, and


their three   children —C.      M,      and   five- year    -old   CC. 3   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.


         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

                                    4
penis   in his [ CC'   s]   butt"       and   that   once   Carson had      put "   string "5   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.




3
  To provide some confidentiality in this case, we use initials in the body of the opinion to
identify the victim, victim' s family members, and other juveniles.

4 2 Report of Proceedings ( RP) at 164.

5 2 RP at 168. TH testified that the " string" CC refers to is a " zip -tie" of the type they used to fix
a recliner    in their home.
No. 43359 -1 - II



           On August 26, CC met with Cornelia Thomas, a forensic interviewer at Mary Bridge

Child    Advocacy          Center.         During the interview, CC referred to Carson' s6 penis as " business" but

clarified that " business" meant " penis" by pointing to his private parts when Thomas asked him

to show her what " business" meant.7 CC detailed three occasions when Carson had tried to put
                                      bottoms : (
his " business" in CC'            s                     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)

                                                                                        9
when     Carson twisted CC'                s"   business" in the bathroom.


           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
    CC   initially    referred        to Carson        as   his "     uncle.        When Thomas asked what CC' s uncle' s name
was,     CC replied it       was "     David"       and clarified         that     he had   another uncle, "        Mulkins," who " doesn' t
do    nothin'   to me,      he tried fights         with me on           Halo      games."    Pierce County Superior Court, Wash.,
Forensic Interview, State                  v.   Carson, No. 10 -1- 04754 -1, (               Aug. 26, 2010), digital video recording
by Mary Bridge Child Advocacy, Center ( on file with Wash. Court of Appeals, Div. II, No.
43349 -1 - II) (Ex. 5),          at   13   min.,   56    sec. -       13 min., 57 sec.

7
    Pierce    County       Superior Court, Wash., Forensic Interview, Ex. 5,                             supra, at     13   min.,   55   sec. -   14
min., 3 sec.

8
    In response to Thomas' s question about when Carson put his penis in CC' s bottom, CC initially
mentioned     a fourth incident - in CC' s " new house." Pierce County Superior Court, Wash.,
Forensic Interview, Ex. 5,                      supra,      at   13   min,     58    sec,   14   min,   12   sec.    CC did not, however,
provide any detail about this fourth instance.

9 Pierce County Superior Court, Wash., Forensic Interview, Ex. 5, supra, at 13 min, 58 sec, 13
min.,    55   sec.;   13   min.,      59   sec.;   14   min.,     3   sec.;    14 min., 19 sec.




                                                                               3
No. 43359 -1 - II




            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.

                                                        II. PROCEDURE


            The State    charged        Carson   with   three   counts     of   first degree    child molestation.     Carson


requested a jury trial.

                                           A. Child Hearsay Hearing; Voir Dire

            CC'   s   mother,        TH,   testified at a pretrial child hearsay hearing to determine the

admissibility of CC' s statements 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 had taped CC' s mouth and tied


his hands. The trial court later ruled these child hearsay statements admissible.

            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

                                10
question     individually.

                                                      B. Trial Testimony

            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)




 io
      The   parties    did   not     designate the   jury    voir   dire   as part of   the   record   on appeal.    Thus, the
record before us fails to show that voir dire did not occur in open court.




                                                                    I
No. 43359 -1 - II


                  11                                                                         12;
 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)
                            13
 business"        at all.        2 RP at 126.


            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

                                                              14
tried to    put    his   penis    in his [ CC'   s]   butt, "      after   putting " string "15     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.




11
     CC   clarified       that " business" is "[       s] omething that you use to go to the bathroom" and that he
did    know any other name for " business."
      not                                                             2 RP     at   105.   CC testified that Carson' s " business"
never went inside his bottom. 2 RP at 111.


122RPat109.

13 Much of CC' s trial testimony was inconsistent and confusing.
 142RPat164.

     2 RP at 168.




                                                                           5
No. 43359 -1 - II



          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, , hich Thomas had labeled with her initials; the jury viewed
                                   w

this DVD during trial.

          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.

           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
No. 43359 -1 - II




examination, Breland could not conclusively say that CC' s condition was indicative of sexual

assault.




                                                  C. Jury Instructions

           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).

           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.

           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

                   WPIC16

objected     to             4. 25 ( the " Petrich instruction "), he   replied, "   I think it' s confusing,   yes."   4




 16
      11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4. 25, at
 110 ( 3d.   ed.   2008) ( WPIC).



                                                             7
No. 43359 -1 - II



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 counsel' s


strong, repeated objections, the trial court did not give the jury a Petrich instruction.

            The trial court did, however, instruct the jury that its verdict must be unanimous:

                         As jurors, you have a duty to discuss the case with one another and to
            deliberate in an effort to reach a unanimous verdict. Each of you must decide the
            case for yourself, but only after you consider the evidence impartially with your
            fellow jurors. During your deliberations, you should not hesitate to re- examine
            your own views and to change your opinion based upon further review of the
            evidence and          these instructions.        You should not, however, surrender your honest
            belief about the value or significance of evidence solely because of the opinions
            of your      fellow jurors. Nor should you change your mind just for the purpose of
            reaching a verdict.


CP    at   72 (   Jury   Instruction 12).        The trial    court   further instructed the         jury: "   A separate crime is


charged      in    each        count.   You     must   decide   each      count   separately.        Your verdict on one count


should' not control your verdict on                  any   other count."       CP at 63 ( Jury Instruction 3).

            The trial court also gave the jury a separate " to convict" instruction for each of the three

charged counts, listing the following elements of child molestation that the State needed to prove

beyond a reasonable doubt:


                         To convict the defendant of the crime of child molestation in the first
            degree       as charged      in Count I, [ II,    III] each of the following elements of the crime
            must be proved beyond a reasonable doubt:
                          1)    That between the dates           of    April 1,     2009,      and   May   31,   2010, the
            defendant had sexual contact with C. C.;
                          2) That C. C. was less than twelve years old at the time of the sexual
            contact and was not married to the defendant and not in a state registered
            domestic partnership with the defendant;
                    3) That C. C. was at least thirty - months younger than the defendant;
                                                      six
            and

                          4) That this act occurred in the State of Washington.
                         If you find from the evidence that each of these elements has been proved
            beyond       a reasonable      doubt, then it     will   be   your   duty to     return a verdict of   guilty.
No. 43359 -1 - II



                 On the other hand, if, after weighing all the evidence you have reasonable
          doubt as to any one of these elements, then it will be your duty to return a verdict
          of not guilty.


CP at 67, 68, 69 ( Jury Instructions 7, 8, 9).

                                              D. Closing Arguments; Verdict

          During       closing      argument,       the State focused on the evidence and distinguishing

characteristics of three distinct acts of child molestation that occurred on three different dates at


three   separate     locations: ( 1) the incident in the bathroom when Carson twisted CC' s " business,"


 2) the incident in TH' s room when Carson tied CC' s hands and placed tape over his mouth, and


 3) the incident in CC' s bedroom when Carson placed his penis in CC' s anus while making CC

look    at a   Spiderman blanket. 4 RP              at   427 -30.   The State also explained to the jury that despite

the   evidence of several acts,         it   was   asking the   jury    to focus   on   only three   specific acts:    Carson' s


twisting of CC' s penis as the first act and the incidents in TH' s room and CC' s bedroom as the

second and third acts:


           STATE]: ...             The allegations in this case are that the defendant placed his hand
          and    twisted, according to [ CC],              his penis on one occasion while he was in the
          bathroom....


                     CC], you' ll remember, described several different times the defendant tried
          to   put   his   penis   in his bottom: In his       room,     in his   mom' s room,   in the   office.     He
          described several different occasions.
                      Some he was able to describe with greater specificity than others, and
          there' s two that the State is focusing on and would like you to focus on for
          purposes ofyour deliberations, one that occurred in his room, and the instant one
          that I' m referring to right now that occurred allegedly in his mother' s room.

4 RP at 424, 428 ( emphasis added).


          During Carson' s closing argument, his counsel noted the State' s burden to prove its case

beyond a reasonable doubt; Carson' s learning disability and his resultant susceptibility to TH and



                                                                    4
No. 43359 -1 - II




DH' s taking advantage of him; their coaching CC to accuse Carson of molestation, in revenge

for leaving them in a financial bind without a babysitter, household servant, and rent and food

contributor;      and   the   weak   merely    circumstantial        evidence    of molestation.      In support of his


argument to the jury to acquit, counsel stressed CC' s convoluted, contradictory, and " jumbled

mess"    of "confusing"       statements    during   the forensic     interview    and at   trial. 4 RP     at   454.   During

deliberations, the jury followed defense counsel' s closing argument suggestion and asked to

review the DVD of Thomas' s forensic interview of CC, during which he had told her about the

same three molestation incidents on which the State had focused during its closing argument.

The jury found Carson guilty of all three counts. He appeals.

                                                      ANALYSIS


                                        I. SEALED JURY QUESTIONNAIRES


          Carson first argues that the trial court violated his right to a public trial by sealing the jury

questionnaires       without    first conducting      a             closure
                                                          courtroom -               analysis   under       Bone -Club.     As


Carson correctly notes in his reply brief, our Supreme Court recently held that the trial court' s

sealing of juror questionnaires without a Bone -Club analysis does not violate a defendant' s
public   trial   rights.   See Reply Br. of Appellant at 3 ( citing State v. Beskurt, 176 Wn.2d 441, 447,
                                                                      17
293 P. 3d 1159 ( 2013)).        Finding     Beskurt dispositive,           we do not further address this issue.




 17
      As in Beskurt, the      jury   here   completed     the   questionnaires     before   voir   dire.    Moreover, trial
 counsel did not use the questionnaires as a substitute for voir dire, but instead used them as a
  screening tool." See Beskurt, 176 Wn.2d at 447.




                                                                10
No. 43359 -1 - II



                                                   II. PETRICH INSTRUCTION


          Carson next challenges the trial court' s failure to give a Petrich instruction on two

grounds —(    1) such failure was reversible error, and ( 2) his defense counsel rendered ineffective

assistance   in objecting to the trial                 court' s proposed     giving   such    instruction.    We hold that the


invited   error    doctrine bars Carson'           s   first   challenge.   See State v. Kyllo, 166 Wn. 2d 856, 861 -62,


215 P. 3d 177 ( 2009).           With respect to his second challenge, we hold that Carson fails to show


deficient performance and, therefore, fails to meet the test for ineffective assistance of counsel.

                                                           A. Invited Error


          Carson first argues that the trial court violated his constitutional right to unanimous jury
                                                                            18
verdicts    by failing      to    give    a   Petrich instruction.                The State    responds      that ( 1)   a Petrich


instruction was not necessary because the prosecutor elected for the jury' s consideration three

distinct acts to support the three separate counts of child molestation, and ( 2) Carson invited the

error when     he   objected and asked             the trial     court not   to   give a   Petrich instruction. We hold that


because Carson invited this claimed error, he cannot raise it on appeal.


          The invited error doctrine is a strict rule that precludes a criminal defendant from seeking

appellate review of an error he helped create, even when the alleged error involves constitutional

rights.    State   v.   Studd, 137 Wn.2d 533, 546 -47, 973 P. 2d 1049 ( 1999); State v. Henderson, 114




18 In Petrich our Supreme Court held,
                     When the evidence indicates that several distinct criminal acts have been
           committed, but defendant is charged with only one count of criminal conduct, jury
           unanimity must be protected. ...   The State may, in its discretion, elect the act
           upon which      it    will   rely for       conviction. ...       When the State chooses not to elect,

           this jury instruction must be given to ensure the jury' s understanding of the
           unanimity requirement.
Petrich, 101 Wn.2d at 572.



                                                                     11
No. 43359 -1 - II



Wn.2d 867, 870 - 71, 792 P. 2d 514 ( 1990) (               citing State v. Boyer, 91 Wn.2d 342, 344 -45, 588 P. 2d

1151 ( 1979)).         This doctrine applies to alleged failures to provide a Petrich unanimity jury

instruction.     For   example,        in State   v.   Corbett, 158 Wn.       App.   576, 592, 242 P. 3d 52 ( 2010),   we




held that where the defendant proposed jury instructions that did not include a Petrich

instruction, the invited error doctrine precluded him from challenging on appeal for the first time

the trial court' s failure to provide a Petrich unanimity instruction:

            Corbett argues that the trial court failed to instruct the jury that it must find
        separate and distinct acts supporting each count and enter unanimous verdicts
        based     on   these   separate and        distinct   acts.   Corbett requests that we vacate three of
        his [ four]     convictions on       this           But Corbett proposed the jury instructions
                                                       ground.

        he    now seeks      to   challenge[.]      Accordingly, Corbett invited any error.

Corbett, 158 Wn. App. at 591 -92 ( citing State v. Phelps, 113 Wn. App. 347, 353, 57 P. 3d 624

 2002); Henderson, 114 Wn.2d at 870 -71).


        Carson       more    overtly invited        omission of a       Petrich instruction than did Corbett:     Corbett


simply failed to include           a   Petrich instruction       with   his   proposed   instructions.   Corbett, 158 Wn.


App.   at    585 -86, 591.        But Carson deliberately omitted a Petrich instruction from his proposed

jury instructions and then repeatedly and strenuously opposed the trial court' s plan to give a

Petrich instruction, as the following colloquy illustrates:

            THE COURT]:          My understanding is both sides have put together packets of
            instructions,    and the only difference is whether or not Washington Pattern
            Instruction 4. 25, WPIC 4. 25,             sometimes called       the "[ Petrich] instruction," can be
            given.



             CARSON' S COUNSEL]:                   I left it out of mine, Your Honor, and I' ll explain to
            the Court why. I think I did off the record.

                     So because we have multiple counts here, to me, this child' s testimony
            was a muddled mess, ...               we still have multiple counts, and I think the [ Petrich]
            instruction wasn' t designed for that. Obviously, Your Honor is going to make the


                                                                  12
No'. 43359 -1 - II



        final decision, but I wanted to give you and the State the reason why I didn' t put it
        in there.




            THE COURT]:         So   you' re    objecting to giving the [ Petrich] instruction, Mr.
        Sepe?


            CARSON' S COUNSEL]:            I   am   for the   reasons   that I indicated. ...   I looked at
            Petrick] and I looked at the comments that indicate, as I read it, that it should
        only be      used where you' re   alleging     one count   but    multiple acts.   Here, we' re not

        doing that. I didn' t feel it was needed.

            THE COURT]:       You' re objecting to 4. 25?

            CARSON' S COUNSEL]:           I think it' s confusing, yes.

            THE COURT]: You think it would be error to give 4. 25?


            CARSON' S COUNSEL]: I do.


4 RP   at    404 -09.   After the trial court sustained Carson' s counsel' s objection and withdrew the


Petrich instruction from the stack it was going to read to the jury, the trial court again inquired:

            THE COURT]:       Mr. Sepe, any objections or exceptions?

            CARSON' S COUNSEL]:                We have no objections to the instructions [ to be]
         given by the Court or the failure to give any instruction of the defense.

            THE COURT]:        And the defense was opposed to giving the [ Petrich] instruction.

            CARSON' S COUNSEL]:                We were, and I think we made a clear record as to
            why we didn' t think it was necessary.

4 RP   at    410.    Because Carson affirmatively opposed the trial court' s giving the jury a Petrich

unanimity instruction, the invited error doctrine precludes his claiming this as error on appeal.




                                                              13
No. 43359 -1 - II



                                           B. Effective Assistance of Counsel


          Carson next argues that his trial counsel rendered ineffective assistance in that his


objection to the trial court' s giving a Petrich instruction constituted deficient representation and

the   trial    court' s   resultant    failure to         provide   this   instruction   was "`   presumed to result in


prejudice. "'      Br. of Appellant at 19 ( quoting State v. Coleman, 159 Wn.2d 509, 512, 150 P. 3d

1126 ( 2007)).        The State counters that defense counsel' s objection to the proposed Petrich

instruction     was   legitimate trial strategy           and   that Carson   failed to demonstrate    prejudice.   Br. of


Resp' t   at   10, 13.    We hold that defense counsel' s objection to the proposed Petrich instruction


was legitimate trial strategy, not deficient performance, and thus not ineffective assistance of

counsel.



                                                     1.    Standard of review


          To prevail on an ineffective assistance of counsel claim, a defendant must show both

deficient performance and resulting prejudice; failure to show either prong defeats such claim.

State   v.    McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).                    Because Carson fails to satisfy the

deficient performance prong, we do not address the second, prejudice prong of the test. McNeal,
145 Wn.2d at 362.


             We review an ineffective assistance claim de novo, beginning with a strong presumption

that trial counsel' s performance was adequate and reasonable and giving exceptional deference

when evaluating counsel' s strategic decisions. Strickland v. Washington, 466 U.S. 668, 689, 104

 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011)


 citing Kyllo, 166 Wn. 2d             at   862),   adhered to in part on remand, 168 Wn. App. 635, 278 P. 3d




                                                                    14
No. 43359 -1 - II



225 ( 2012).         Thus, to establish deficient performance, a defendant must show that counsel' s

performance fell below an objective standard of reasonableness. McNeal, 145 Wn.2d at 362.

          Given       the      deference      we      afford   defense        counsel' s    decisions   in    the     course    of




representation,       the threshold        for deficient    performance       is high. Grier, 171 Wn.2d        at   33.   There is


a strong presumption that counsel has rendered adequate assistance and has made all significant

decisions     by    exercising       reasonable professional        judgment. State v. Lord, 117 Wn.2d 829, 883,


822 P. 2d 177 ( 1991).               Thus, "[ w]hen counsel' s conduct can be categorized as legitimate trial

                                                                         19
strategy      or   tactics,    performance       is   not   deficient. "           Kyllo, 166 Wn.2d     at   863.     Generally,

legitimate trial strategy cannot serve as the basis for a claim of ineffective assistance of counsel.

Lord, 117 Wn.2d          at   883. Such is the case here.


                                                 2. Performance not deficient


          Carson fails to show that his counsel' s performance was deficient. We disagree with him

and the dissent that defense counsel declined the Petrich instruction under a mistaken belief that

this instruction was unnecessary.                  On the contrary, the record shows that Carson' s counsel ( 1)

had carefully and strategically considered whether it was in his client' s best interest for the trial
court    to   give    the     jury    a   Petrich instruction,      and (     2)   decided to oppose giving the Petrich

instruction to avoid confusing the jury (not simply, as Carson asserts for the first time on appeal;

because he         was under a mistaken            belief   about   the law).        Defense counsel' s tactical decision to


avoid    jury      confusion was          legitimate trial strategy —a         general credibility attack on the victim' s



 19
      A criminal defendant can rebut the presumption of reasonable performance by showing that
his counsel' s representation was unreasonable under prevailing professional norms and that there
is "   no conceivable         legitimate tactic" that       explains counsel' s performance.            Grier, 171 Wn.2d at
33 (   citations omitted).           Again, such is not the case here.


                                                                    15
No. 43359 -1 - II




 muddled mess ,20 of coached testimony advanced by defense counsel' s strenuous argument to

the trial court that giving the Petrich instruction would result in the very evil that such an

instruction is normally intended to        prevent. —jury confusion.

        The following colloquy about the proposed jury instructions demonstrates this focal point

of counsel' s trial strategy:

         CARSON' S COUNSEL]:                I left [ the Petrich instruction] out of [my proposed
        instructions], Your Honor, and I' ll explain to the Court why. .. .
                Generally, when you read the comments to the [ Petrick] instruction, it
        doesn' t apply, as I understand it, to multi -count cases because the way it' s read
        could confuse the jury. Normally it' s when you have one count but you have like
        six possible acts that could have accounted for.
                  Say, for example, hypothetically the State charged him with one count of
        child molestation and yet the child describes perhaps an incident in one bedroom,
        something in an         office,   and   something in   another   bedroom.
                                                                       The jury, under
         Petrick], would    have to decide which of those one acts unanimously do they
        agree on to support the charge beyond a reasonable doubt.
               It becomes a problem when you have multiple counts because look what it
        says   in the   second    sentence: "    To convict the defendant on any count of child
        molestation, one particular act of child molestation in the first degree must be
        proved beyond a reasonable doubt."
                The reason that comment is there and even though the jury is given
        Instruction 3. 01, that each count is to be considered by you separately and your
        verdict on one doesn' t affect your verdict on the other, the reason that they give
        you that little warning under the comment is to avoid the possibility that, well, if
        you find that he committed one act, then he must have committed all the counts.




20 4 RP at 406.



                                                        ffst
No. 43359 -1 - II



                So I elected, when reading the comment, when reading and looking at this
         case, saying we' re going to confuse the heck out of this jury and there' s a
        possibility they could be misled into thinking that this means to convict him on
                                                        21]
         any   count,   they   must agree on, at        least,   one act. [




4 RP at 404 -06 ( emphasis added).


         When the trial court sought to clarify that defense counsel objected to giving the Petrich

instruction, counsel reiterated his trial strategy, again focusing on the confusion it would cause

for the jury and asserting it would be error to give such instruction in this case:

          THE COURT]:               So   you' re   objecting to giving the [ Petrick] instruction, Mr.
         Sepe?


          CARSON' S COUNSEL]:                  I   am   for the   reasons     that I indicated.   I believe there' s
         one count and you           have    multiple     alleged acts.        When you have something like
         this, if   you    look although this child' s testimony was muddled, inconsistent
                                   at—

         and confusing as heck, and the tape wasn' t much better, there seems to be
         something that happened in his bedroom, something that happened involving
         twisting " the business" in the bathroom, maybe, or an office, depending on which
         version you believe,     something that appears to may have happened in his
         mother' s room.           So when I looked at that, I said, well, there' s three somewhat
         distinct   acts   here,   albeit   confusing. And I looked at [ Petrick] and I looked at the
         comments that indicate, as I read it, that it should only be used where you' re
         alleging one count but multiple acts. Here, we' re not doing that. I didn' t feel it
         was needed.



          THE COURT]:              You' re objecting to 4. 25?

          CARSON' S COUNSEL]:                  I think it' s confusing, yes.


21
     Counsel also argued:
                    So because we have multiple counts here, to me, this child' s testimony
         was a muddled mess but assuming that isn' t the case for purposes of argument,
         we still have multiple counts, and I think the [ Petrich] instruction wasn' t designed
          for that. Obviously, Your Honor is going to make the final decision, but I wanted
          to give you and the State the reason why I didn' t put it in there and why I only put
          it in there when I have a one -count case but there' s a possible six acts to choose
          from.
 4 RP at 406.




                                                                  17
No. 43359 -1 - II




         THE COURT]:       You think it would be error to give 4.25?


         CARSON' S COUNSEL]: I do.


4 RP at 408 -09 ( emphasis added).


        Consistent with this expression of trial strategy, Carson' s counsel avoided discussing

specific incidents in his closing argument and argued instead that CC' s testimony and statements

were so muddled, inconsistent, and confusing that they created a reasonable doubt about whether

Carson had committed any of the acts or the charged crimes,

         CARSON' S COUNSEL]: ...            But then on the testimony it was a jumbled mess
        of old   house,   new   house, this bathroom.    We had more than a dozen I- don' t-
        knows and I- don' t- remembers.


        It   makes no sense.    His testimony, this taped   statement,   is   all over   the   place.   It' s
        an inconsistent, jumbled, confusing mess, and yet that' s what the State wants you
        to believe beyond a reasonable doubt is the evidence that proves that my client is
        guilty beyond a reasonable doubt.
         A]nd you see that this is as jumbled a mess as to what came from there.
               And the big question I think you need to ask yourselves in this case is, do I
        feel comfortable convicting three counts or of any count of a charge like this
        based on that, that jumbled, confusing mess?

4 RP at 450, 454 -55, 457.


        We hold that Carson' s counsel' s decision to oppose giving a Petrich instruction was a

reasonable trial strategy to avoid jury confusion, that Carson fails to rebut the strong deferential

presumption that counsel' s performance was not deficient, and that consequently his ineffective




                                                    18
No. 43359 -1 - II



                                                       22
assistance of counsel argument                fails.


                                         III. STATEMENT OF ADDITIONAL GROUNDS


            In his SAG, Carson asserts that ( 1) TH' s testimonies at the child hearsay hearing and at

trial were inconsistent, thus prejudicing him; and ( 2) in his interview with Thomas, CC identified

another     person known          as "   David." SAG at 1 - 2. These claims fail to require reversal.


            Carson claims that during the child hearsay hearing, TH testified that when CC told her

about      Carson,      she "   kept   driving    to her friend[']   s    house ";   but during the jury trial, TH testified

that she "       pulled over at        a place    and       got out and called     her [ b] oyfriend."    SAG   at   2.   Carson


incorrectly mischaracterizes TH' s testimony. Although TH testified at the child hearsay hearing

that she had initially continued driving; she also testified that she had eventually stopped her




22
     Because we hold that Carson fails to show deficient performance, we do not address the
prejudice        prong    of    the ineffective     assistance of counsel          test.   Both Carson and the dissent cite
Coleman for the proposition that omission of a unanimity instruction is presumed to result in
prejudice.         But the presumption of prejudice in Coleman was in the context of harmless error
analysis,        not   in the    context    of an   ineffective     assistance of counsel        claim.    See Coleman, 159
Wn.2d       at   511.     The presumption of prejudice in an ineffective assistance of counsel claim is
limited to " the         complete        denial   of counsel and comparable circumstances"                such as ( 1) where a
defendant " is denied counsel                at a critical stage of       his trial "; (2)   where " counsel entirely fails to
subject     the   prosecution' s case        to   meaningful adversarial          testing "; ( 3) where the circumstances are
such that " the likelihood that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate without inquiry into [ the]
actual conduct of            the trial ";   and ( 4) where " counsel labors under an actual conflict of interest."
In   re Pers. Restraint of Davis, 152 Wn.2d 647, 674, 101 P. 3d 1 ( 2004) ( internal quotation marks
and    footnoted citations omitted) ( quoting Visciotti v. Woodford, 288 F. 3d 1097, 1106 ( 9th Cir.),
rev'   d   on other grounds,           537 U. S. 19, 123 S. Ct. 357, 154 L. Ed. 2d 279 ( 2002)).                Carson fails to
show       that any     of   these   circumstances —comparable             to "   complete   denial   of counsel" — are present

here. See Davis, 152 Wn.2d at 674. Therefore, there is no presumption of prejudice.




                                                                     19
No. 43359 -1 - II



           23
vehicle.             Contrary to Carson' s claim, the record shows that TH' s child hearsay hearing

testimony was not inconsistent with her jury trial testimony.

         Carson also appears to assert that CC identified the wrong defendant by alleging that

during   CC'     s    forensic interview      with   Thomas, CC      mentioned a "         Mulkins," who happens to be


 David" Mulkins.            SAG   at   1.    Again, Carson    mischaracterizes       the   record.   The recording of this

interview shows that when CC mentioned Mulkins, it was in response to Thomas' s asking CC

what   his    uncle' s name was,       to   which    CC   responded, "   David....    My other [ uncle] is Mulkins and

he doesn' t do nothin' to me, he tried fights with me on Halo games. "24 When Thomas asked if

 Uncle David" was the one who had put his penis in CC' s bottom and twisted CC' s business, CC

nodded     affirmatively.     25 The record thus shows that when CC mentioned Mulkins, he was merely

distinguishing between his             two            Uncle
                                             uncles — "         David" ( Carson), who had molested him; and his


other uncle, "        Mulkins" ( David Mulkins), who had not molested him.




23 In Report of Proceedings ( Vol. 1) at 61:
        THE STATE]: Did you continue driving?
             TH]: Yes.
             THE STATE] : Was that difficult for you?
             TH] : Yes.
             THE STATE]:          At some point did you stop the vehicle or pull over?
             TH]: Yes.


24 Pierce County Superior Court, Wash., Forensic Interview, Ex. 5, supra, at 13 min., 56 sec., -
 13   min.,     57   sec. ( emphasis added),




25 Pierce County Superior Court, Wash., Forensic Interview, Ex. 5, supra, at 13 min., 57 sec.

                                                                20
No. 43359 -1 - II



        Moreover,       at   trial, CC accurately identified Carson   as "   Uncle David," the perpetrator:


            THE STATE]: And who is David?
            CC]:    My Uncle David.
            THE STATE]:     Do you see your Uncle David anywhere in the courtroom today?
            CC]: Right there.
            THE STATE]:          And, Your Honor, I would ask that the record reflect that the
        witness has identified the defendant.


2 RP   atl03.      This part of the record shows that even if CC knew another " David" in addition to

Carson, CC accurately identified Carson as the person who had molested him. Contrary to

Carson' s assertions, nothing in the record supports Carson' s allegation of mistaken identity.

         We affirm.




                                                          Hunt, P. J.
T rnnriir




                                                        21
No. 43359- 1- 11



          WORSwICK, J. (           dissenting) — I disagree with the majority' s holding that David William

Carson'      s counsel was not           ineffective.    In my opinion, defense counsel' s decision to decline a

Petrich 26     instruction cannot be characterized as a legitimate trial tactic, and, therefore, his

performance was            deficient. Further,      counsel' s error was prejudicial.       Carson has met his burden


to show ineffective assistance of counsel, and I disagree with the majority' s opinion holding

otherwise.       Accordingly, I would reverse Carson' s convictions for three counts of first degree

child molestation.



                                                  I. DEFICIENT PERFORMANCE


          Defense counsel' s performance is deficient if it falls below an objective standard of

reasonableness.            State    v.   McFarland, 127 Wn.2d 322, 334 7- 35,             899 P. 2d 1251 ( 1995).         To


overcome the presumption that counsel' s performance was reasonable, counsel' s conduct must


be devoid       of   any conceivably legitimate trial strategy.              State v. Grier, 171 Wn.2d 17, 42, 246


P. 3d 1260 ( 2011).            In some instances failing to request a jury instruction may be a legitimate trial

tactic. See State         v.   Yarbrough, 151 Wn.        App.   66, 90, 210 P. 3d 1029 ( 2009) ( "[ F] ailure to request


a    limiting   instruction for          evidence    admitted    under    ER 404( b)     may be a legitimate tactical

decision      not   to   reemphasize      damaging      evidence. ").   Such is not the case here.


             In Washington, defendants have               a constitutional right    to   a unanimous   jury    verdict.   See


State   v.   Badda, 63 Wn.2d 176, 181 -82, 385 P. 2d 859 ( 1963).                   A Petrich instruction is necessary

to   protect a      defendant'     s right   to   a unanimous    jury   verdict.   Petrich, 101 Wn.2d     at   569.   When


defense counsel rejected the proposed Petrich instruction, defense counsel unilaterally waived

 Carson' s right to a unanimous verdict. Although a defendant may waive the right to a 12- person


26 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173,( 1984).


                                                                 22
No. 43359 -1 - II




jury, or to a jury altogether, a defendant may not waive his right to a unanimous verdict should

the defendant     elect a   jury trial.   State     v.   Noyes, 69 Wn.2d 441, 446, 418 P. 2d 471 ( 1966) ( When a


hung jury stands 11 to 1 for acquittal, defendant is not permitted to waive a unanimous verdict

and accept   the    vote of    11 jurors       as a valid verdict.)        Accordingly, defense counsel' s waiver of

Carson' s right to a unanimous verdict is per se unreasonable.


        Second, defense counsel declined the Petrich instruction under the mistaken belief that a

Petrich instruction     was      unnecessary in this             case.    When asked about the Petrich instruction


defense counsel stated:


                   I didn' t [ propose     a   Petrich instruction],       and the reason I didn' t, obviously,
        from [ C. C.'testimony it was all jumbled up. I don' t know what happened,
                        s]

        where, and new, old, or whatever, but from the videotape at some point there
        seemed to be three separate and distinct incidents, one in his room, one in his
        mother' s room, and one in the bathroom.
                   Normally Petrich instructions come up where the child talks about five or
        six incidents and one of them is charged, and then Petrich says, well, you have to
        agree on whatever act it is.
                   Here, I didn' t feel that there was a need for that because even though it
        was a jumbled mess, there were, at least, three separate and distinct incidents
        referred to, and I didn' t think Petrich was necessary, but that' s certainly the
        Court' s discretion.


3 Report     of   Proceedings ( RP)            at   334 -35.     But defense       counsel    was   mistaken.    A Petrich


instruction is     required     in   cases     where       the   State   charges   multiple   counts   based    on " generic




testimony" regarding         prolonged and consistent sexual abuse.                  State v. Hayes, 81 Wn. App. 425,

430 -31, 914 P. 2d 788 ( 1996). In Hayes, Division One of this court stated:


                   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 delineate[ s] specific and distinct
         incidents    of sexual abuse"          during     the charging     periods.   The trial court must also

         instruct the jury that they must be unanimous as to which act constitutes the count




                                                                  23
No. 43359 -1 - II



          charged and that they are to find " separate and distinct acts" for each count when
          the counts are identically charged.

81 Wn.     App.     at   431 ( footnotes   omitted).   Here, the State charged Carson with three counts of


rape of a child. C. C.' s testimony establishes some distinct acts of sexual abuse, but also includes

 generic    testimony" regarding ongoing          abuse.   Therefore,   a   Petrich instruction   was required.   I


cannot be convinced that basing a decision on an erroneous view of the law can be characterized

as a legitimate trial tactic.


          Third, defense counsel declined the Petrich instruction based on his assertion that the


instruction would needlessly confuse the jury. Jury instructions are proper when they permit the

parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of

the    applicable   law. State     v.   Barnes, 153 Wn.2d 378, 382, 103 P. 3d 1219 ( 2005).          Therefore, it


stands to reason that defense counsel may decline, or the trial court may reject, a jury instruction

that    is misleading.        However, it is unreasonable to believe that the jury will be misled or

confused by an instruction that is an accurate statement of applicable law required to protect a

specific   constitutional right.         In my opinion, defense counsel' s conduct is as unreasonable as

declining a reasonable doubt instruction on the theory that the definition of reasonable doubt may

confuse the jury.

          Here, defense counsel' s reasons for declining the Petrich instruction are fundamentally

unreasonable.        When defense counsel' s actions are unreasonable or based on misunderstandings


of the law, I do not believe they can be characterized as legitimate trial tactics or strategies.

Accordingly, I would hold the defense counsel' s performance was deficient.




                                                           24
No. 43359 -1 - II



                                                            II. PREJUDICE


           To prevail on his claim of ineffective assistance of counsel, Carson must also show

prejudice.        When the State presents evidence of multiple acts that could each form the basis of

one charged crime, "             either the State must elect which of such acts is relied upon for a conviction


or   the   court must       instruct the      jury   to   agree on   a specific criminal act."   State v. Coleman, 159


Wn.2d 509, 511,             150 P. 3d 1126 ( 2007). "           Where there is neither an election nor a unanimity

instruction in a multiple acts case, omission of the unanimity instruction is presumed to result in

prejudice. ,      27 Coleman, 159 Wn.2d at 512

                Failure   to     give   the    Petrich      instruction,   when   required,   violates the defendant' s


constitutional right to a unanimous jury verdict and is reversible error, unless the error is

harmless."          State   v.   Bobenhouse, 166 Wn.2d 881, 894, 214 P. 3d 907 ( 2009) (                 citing State v.

Camarillo, 115 Wn.2d 60, 64, 794 P. 2d 850 ( 1990)).                        Specifically, in cases where the trial court

failed to give a required Petrich instruction " the standard of review for harmless error is whether




     The State clearly chose not to elect. During the discussion regarding the Petrich instruction
the State asserted:


                      Your honor, I need to go back and look at the case law. My understanding
            of Petrich is the State needs to either elect a specific date, incident time per
            charge or if they failed to elect, a Petrich instruction is required.
                      We have not elected. What we have done is we have charged three counts
            of identical offenses during the same period of time, so I, frankly, think, and I just
            wanted to speak with [ defense counsel] about this to see if he and I were of like
            mind, I think [ the Petrich instruction] is required, frankly, but that would be the
            only difference between my                    proposed [   instructions] and the defense proposed
             instructions] .


3 RP       at   335 -36 (           The State later confirmed that it was not electing during a
                            emphasis added).

second conversation regarding the use of the proposed Petrich instruction.



                                                                     25
No. 43359 -1 - II



a ` rational trier of fact could find that each incident was proved beyond a reasonable doubt."'

Camarillo, 115 Wn.2d at 65 ( quoting State v. Gitchel, 41 Wn. App. 820, 823, 706 P.2d 1091

 1985)).


            Reviewing courts have held that failure to give a Petrich instruction is harmless when

 the evidence presented was sufficient to establish that each crime had occurred, there was no


conflicting       testimony,    and   the    victim provided specific          detailed testimony."     Bobenhouse, 166


Wn.2d       at   894 ( citing Camarillo, 115 Wn.2d            at   70).   Here, the victim did not provide specific


detailed testimony.           His testimony         was vague,     confusing,     and, at   times, inconsistent.   Further,


Carson testified         and   specifically denied the           allegations      of   abuse.     Accordingly, I am not

convinced         that the   error was      harmless beyond        a reasonable     doubt.      Because the error was not


harmless, this court presumes that the error was prejudicial to Carson, and he has met his burden

under the second prong of the ineffective assistance of counsel test.

            Carson is required to show both counsel' s performance was deficient and counsel' s

deficient        performance prejudiced        him. Defense counsel' s performance was deficient because he


had    no   legitimate tactical       reason   to   justify declining     a   Petrich instruction.    Carson has also met


his burden to show prejudice because the failure to give a Petrich is presumed to be prejudicial,

and,   here, the      error    was    not   harmless beyond        a reasonable        doubt.    Therefore, I believe that


Carson has met his burden to prove ineffective assistance of counsel and I would reverse.




                                                                 26
