FILED COURT OF'APPEALS 'STATE OF WASHINGTON
2018 MAR 12 AM 8:38
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 75873-0-1 ) Respondent, ) ) DIVISION ONE v. ) ) JEREMY WAYNE EHRMANTROUT, ) UNPUBLISHED OPINION ) Appellant. ) FILED: March 12, 2018 ) MANN, J. —Jeremy Ehrmantrout appeals his convictions for one count of first
degree child rape and three counts of first degree child molestation. The State
concedes that Ehrmantrout is entitled to a new trial because his right to counsel was
violated. We accept the State's concession, reverse Ehrmantrout's convictions, and
remand for a new trial.
FACTS
In July 2001, S.E. was born to Lamara Penny and Jeremy Ehrmantrout. In 2008,
after her parents separated, S.E. and her younger brother lived with Ehrmantrout during
the week and Penny on the weekends. This arrangement lasted until December 2013
when Ehrmantrout and Penny renegotiated their children's residential arrangement. In
July 2014, S.E. told her boyfriend, B.F., that Ehrmantrout "butt raped" her. B.F. told No. 75873-0-1/2
Penny that "Jeremy [Ehrmantrout] had done some things to [S.E.] that [she] really
needed to talk to [S.E.] about." Penny confronted S.E. and S.E. told her what
happened.
Ehrmantrout was charged initially on July 29, 2015, with one count of rape of a
child in the first degree and one count of child molestation in the first degree.
The next day, a detective had S.E. call Ehrmantrout to try to get him to "acknowledge"
what happened. The detective, unbeknownst to Ehrmantrout, recorded the call. At trial,
the State played a tape of the conversation and the tape was admitted into evidence.
Prior to trial, the State amended the information charging Ehrmantrout with two
counts of first degree rape of a child and three counts of first degree child molestation.
At trial, S.E. testified that Ehrmantrout abused her while she was in sixth grade.
At Ehrmantrout's apartment, S.E. would sleep with her little brother underneath a table
in the living room. She testified that one night Ehrmantrout laid down next to her, pulled
his pants and underpants down, and made her touch his "privates." S.E. also testified
about two other types of abuse that happened on the apartment's couch. While on the
couch, Ehrmantrout would make S.E. tickle his feet. He would tell her to move "higher"
until she touched his "penis." S.E. testified that she touched his penis "[m]ore than five
[times] at least" for "[a] couple nights a week" for "[a] couple months." Othertimes, after
Ehrmantrout told S.E. to take her clothes off, he would "rub" "[h]is hand to [her]
privates." S.E. did not remember exactly how many times this happened; she testified
that it happened more than once but less than 10 times. One count of child rape was
dismissed at the conclusion of the State's case. The jury found Ehrmantrout guilty of
the remaining counts.
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ANALYSIS
Right to Counsel
Ehrmantrout argues that his right to counsel was violated by the admission of the
recorded telephone call because his Sixth Amendment right to counsel attached when
charges were filed. The State concedes that Ehrmantrout's right to counsel was
violated and that he is entitled to a new trial. We accept the State's concession. We
reverse Ehrmantrout's convictions and remand for a new trial. Because we remand for
a new trial, we do not address Ehrmantrout's arguments regarding voir dire, judicial
notice, sentencing, the right to present a defense, and the appearance-of-fairness
doctrine.
Sufficiency of the Evidence
While we remand for a new trial, it is necessary to address the scope of the new
trial in response to Ehrmantrout's claim that there is insufficient evidence to support
three counts of child molestation. S.E.'s generic testimony about the alleged abuse, he
argues, supports only one count of molestation or, at most, two. If there is insufficient
evidence to support three molestation charges, then double jeopardy bars the State
from retrying Ehrmantrout on any dismissed count. See Burks v. United States, 437
U.S. 1, 17,98 S. Ct. 2141,57 L. Ed. 2d 1(1978)(holding that double jeopardy bars
retrial where a court has vacated a conviction due to insufficient evidence).
A defendant may be convicted only when a unanimous jury concludes that the
act that the State charged in the information has been committed. State v. Kitchen, 110
Wn.2d 403, 409, 756 P.2d 105(1988). The State may either elect the act to rely on for
a conviction or the trial court must instruct the jury that it must unanimously agree that
-3- No. 75873-0-1/4
the State has proved the same act beyond a reasonable doubt. Kitchen, 110 Wn.2d at
409. When the State alleges that multiple counts of sexual abuse occurred within the
same charging period, it need not elect particular acts for each count so long as the
evidence "clearly delineates specific and distinct incidents of sexual abuse" during the
charging periods. State v. Hayes, 81 Wn. App. 425, 431, 914 P.2d 788(1996)(internal
quotation marks omitted).
Evidence is sufficient to support a conviction if, when viewed in the light most
favorable to the State, any rational trier of fact could find that the act charged was
committed. Hayes, 81 Wn. App. at 430. We draw all reasonable inferences from the
evidence in favor of the State and interpret them most strongly against the defendant.
Hayes, 81 Wn. App. at 430.
Generic testimony may be sufficient to sustain a conviction for child molestation
when three elements exist. The alleged victim must(1) describe the acts with "sufficient
specificity to allow the trier of fact to determine what offense, if any, has been
committed,"(2)"describe the number of acts committed with sufficient certainty to
support each of the counts alleged by the prosecution," and (3)"describe the general
time period in which the acts occurred." Hayes, 81 Wn. App. at 438.
In Hayes, the court held that the victim's generic testimony sustained four counts
of child molestation. 81 Wn. App. at 438-39. The victim established the first prong by
testifying that Hayes "put his private part in mine," the second by testifying that this
happened at least "four times" and up to "two or three times a week," the third by
testifying that the acts occurred between 1990 and 1992. Hayes, 81 Wn. App. at 438-
-4- No. 75873-0-1/5
39. The court reasoned that this generic testimony was sufficieht to sustain Hayes's
four convictions for child molestation. Hayes, 81 Wn. App. at 439.
In State v. Jensen, however, the court held that generic testimony did not sustain
three counts of child molestation. 125 Wn. App. 319, 328, 104 P.3d 717(2005). The
victim established two counts: the first by testifying that Jensen '`entered her room at
night and touched her in her 'private spot" and the second by testifying that Jensen
entered her room and "touched her breast." Jensen, 125 Wn. App. at 327. The victim
also testified that Jensen "touched her private area la]few times" and "entered her
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FILED COURT OF'APPEALS 'STATE OF WASHINGTON
2018 MAR 12 AM 8:38
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 75873-0-1 ) Respondent, ) ) DIVISION ONE v. ) ) JEREMY WAYNE EHRMANTROUT, ) UNPUBLISHED OPINION ) Appellant. ) FILED: March 12, 2018 ) MANN, J. —Jeremy Ehrmantrout appeals his convictions for one count of first
degree child rape and three counts of first degree child molestation. The State
concedes that Ehrmantrout is entitled to a new trial because his right to counsel was
violated. We accept the State's concession, reverse Ehrmantrout's convictions, and
remand for a new trial.
FACTS
In July 2001, S.E. was born to Lamara Penny and Jeremy Ehrmantrout. In 2008,
after her parents separated, S.E. and her younger brother lived with Ehrmantrout during
the week and Penny on the weekends. This arrangement lasted until December 2013
when Ehrmantrout and Penny renegotiated their children's residential arrangement. In
July 2014, S.E. told her boyfriend, B.F., that Ehrmantrout "butt raped" her. B.F. told No. 75873-0-1/2
Penny that "Jeremy [Ehrmantrout] had done some things to [S.E.] that [she] really
needed to talk to [S.E.] about." Penny confronted S.E. and S.E. told her what
happened.
Ehrmantrout was charged initially on July 29, 2015, with one count of rape of a
child in the first degree and one count of child molestation in the first degree.
The next day, a detective had S.E. call Ehrmantrout to try to get him to "acknowledge"
what happened. The detective, unbeknownst to Ehrmantrout, recorded the call. At trial,
the State played a tape of the conversation and the tape was admitted into evidence.
Prior to trial, the State amended the information charging Ehrmantrout with two
counts of first degree rape of a child and three counts of first degree child molestation.
At trial, S.E. testified that Ehrmantrout abused her while she was in sixth grade.
At Ehrmantrout's apartment, S.E. would sleep with her little brother underneath a table
in the living room. She testified that one night Ehrmantrout laid down next to her, pulled
his pants and underpants down, and made her touch his "privates." S.E. also testified
about two other types of abuse that happened on the apartment's couch. While on the
couch, Ehrmantrout would make S.E. tickle his feet. He would tell her to move "higher"
until she touched his "penis." S.E. testified that she touched his penis "[m]ore than five
[times] at least" for "[a] couple nights a week" for "[a] couple months." Othertimes, after
Ehrmantrout told S.E. to take her clothes off, he would "rub" "[h]is hand to [her]
privates." S.E. did not remember exactly how many times this happened; she testified
that it happened more than once but less than 10 times. One count of child rape was
dismissed at the conclusion of the State's case. The jury found Ehrmantrout guilty of
the remaining counts.
-2- No. 75873-0-1/3
ANALYSIS
Right to Counsel
Ehrmantrout argues that his right to counsel was violated by the admission of the
recorded telephone call because his Sixth Amendment right to counsel attached when
charges were filed. The State concedes that Ehrmantrout's right to counsel was
violated and that he is entitled to a new trial. We accept the State's concession. We
reverse Ehrmantrout's convictions and remand for a new trial. Because we remand for
a new trial, we do not address Ehrmantrout's arguments regarding voir dire, judicial
notice, sentencing, the right to present a defense, and the appearance-of-fairness
doctrine.
Sufficiency of the Evidence
While we remand for a new trial, it is necessary to address the scope of the new
trial in response to Ehrmantrout's claim that there is insufficient evidence to support
three counts of child molestation. S.E.'s generic testimony about the alleged abuse, he
argues, supports only one count of molestation or, at most, two. If there is insufficient
evidence to support three molestation charges, then double jeopardy bars the State
from retrying Ehrmantrout on any dismissed count. See Burks v. United States, 437
U.S. 1, 17,98 S. Ct. 2141,57 L. Ed. 2d 1(1978)(holding that double jeopardy bars
retrial where a court has vacated a conviction due to insufficient evidence).
A defendant may be convicted only when a unanimous jury concludes that the
act that the State charged in the information has been committed. State v. Kitchen, 110
Wn.2d 403, 409, 756 P.2d 105(1988). The State may either elect the act to rely on for
a conviction or the trial court must instruct the jury that it must unanimously agree that
-3- No. 75873-0-1/4
the State has proved the same act beyond a reasonable doubt. Kitchen, 110 Wn.2d at
409. When the State alleges that multiple counts of sexual abuse occurred within the
same charging period, it need not elect particular acts for each count so long as the
evidence "clearly delineates specific and distinct incidents of sexual abuse" during the
charging periods. State v. Hayes, 81 Wn. App. 425, 431, 914 P.2d 788(1996)(internal
quotation marks omitted).
Evidence is sufficient to support a conviction if, when viewed in the light most
favorable to the State, any rational trier of fact could find that the act charged was
committed. Hayes, 81 Wn. App. at 430. We draw all reasonable inferences from the
evidence in favor of the State and interpret them most strongly against the defendant.
Hayes, 81 Wn. App. at 430.
Generic testimony may be sufficient to sustain a conviction for child molestation
when three elements exist. The alleged victim must(1) describe the acts with "sufficient
specificity to allow the trier of fact to determine what offense, if any, has been
committed,"(2)"describe the number of acts committed with sufficient certainty to
support each of the counts alleged by the prosecution," and (3)"describe the general
time period in which the acts occurred." Hayes, 81 Wn. App. at 438.
In Hayes, the court held that the victim's generic testimony sustained four counts
of child molestation. 81 Wn. App. at 438-39. The victim established the first prong by
testifying that Hayes "put his private part in mine," the second by testifying that this
happened at least "four times" and up to "two or three times a week," the third by
testifying that the acts occurred between 1990 and 1992. Hayes, 81 Wn. App. at 438-
-4- No. 75873-0-1/5
39. The court reasoned that this generic testimony was sufficieht to sustain Hayes's
four convictions for child molestation. Hayes, 81 Wn. App. at 439.
In State v. Jensen, however, the court held that generic testimony did not sustain
three counts of child molestation. 125 Wn. App. 319, 328, 104 P.3d 717(2005). The
victim established two counts: the first by testifying that Jensen '`entered her room at
night and touched her in her 'private spot" and the second by testifying that Jensen
entered her room and "touched her breast." Jensen, 125 Wn. App. at 327. The victim
also testified that Jensen "touched her private area la]few times" and "entered her
room at night two other times," but she did not testify to any sexual contact when
Jensen was in her room on these visits. Jensen, 125 Wn. App. at 327. The court held
that the victim's generic testimony did not describe the third molestation offense with
sufficient specificity. Jensen, 125 Wn. App. at 328.
Similarly, in State v. Edwards, the court held that generic testimony did not
sustain two counts of child molestation. 171 Wn. App. 379, 403, 294 P.3d 708(2012).
Edwards's victim testified that he touched her "front private" 10 to 15 times, but she only
provided details of the first incident; the "first time" Edwards touched her vagina his
hand "move[d]" while touching it and "it hurt" and felt "bad." Edwards, 171 Wn. App. at
384. The victim testified that the first act occurred when she was five or six, but "[t]here
was no evidence defining the time period in which any other act occurred." Edwards,
171 Wn. App. at 403. Since the victim's generic testimony did not clearly delineate
between specific and distinct incidents of sexual abuse, the court held that there was
insufficient evidence to support the second count of child molestation. Edwards, 171
Wn. App. at 403.
-5- No. 75873-0-1/6
Here, the evidence is sufficient to support each count of molestation. The
evidence satisfies the first Haves element because it describes the acts with sufficient
specificity. S.E. testified that(1) Ehrmantrout "rub[bed]" "the outside" of her "privates,"
(2)she touched Ehrmantrout's penis under the table in the living room, and (3)she
touched his penis on the couch after she rubbed his feet. Similar to the victim's
testimony in Haves, and unlike the victims' testimony in Jensen or Edwards, this generic
testimony delineated between specific and distinct incidents of sexual abuse.
The evidence satisfies the second Haves element because it describes with
sufficient certainty how many acts of molestation Ehrmantrout committed. S.E. testified
that Ehrmantrout made her touch his penis under the table once. She testified,
however, that she touched his penis after rubbing his feet much more often. This
happened "[a] couple nights a week,""[m]ore than five at least," for "[a] couple months."
S.E. also testified that Ehrmantrout "rub[bed]" her "privates""more than one" time, but
less than 10 times. Again, S.E.'s description of the abuse is more similar to the victim's
testimony in Hayes—Hayes's victim testified that Hayes abused her at least "four times"
and up to "two or three times a week"—than it is to the victim's testimony in Edwards—
Edwards's victim testified that Edwards touched her "front private" 10 to 15 times but
only described the details of the first incident. Hayes, 81 Wn. App. at 438-39; Edwards,
171 Wn. App. at 384.
Finally, the evidence satisfies the third Haves element because it describes the
general time period in which the abuse occurred. S.E. testified that Ehrmantrout
abused her "during the school year" in "[s]ixth grade." S.E.'s testimony described the
type of act committed, the number of acts committed, and the general time period in
-6- No. 75873-0-1/7
which the acts occurred. Her generic testimony sustains each separately charged count
of the three counts charged.
Reversed and remanded.
WE CONCUR:
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-7-