State of Washington v. Oliver James Harmon

• Court: Court of Appeals of Washington
• Decided: February 8, 2022
• Docket: 37415-7
• Status: Unpublished

Opinion

FILED FEBRUARY 8, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III

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

STATE OF WASHINGTON, ) ) No. 37415-7-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) OLIVER JAMES HARMON, ) ) Appellant. )

STAAB, J. — Oliver Harmon appeals from convictions on four counts of rape of a

child in the second degree and one count of communication with a minor for an immoral

purpose. He assigns numerous errors to the trial proceedings, including instructional

error and prosecutorial misconduct. We agree that Harmon was denied his constitutional

right to a unanimous verdict on the communication with a minor count, but find no other

reversible error. We reverse his conviction on that count and remand for resentencing

and retrial.

FACTS

This prosecution arises from the alleged sexual abuse by Oliver Harmon of the

preteen daughter of his childhood friend, Richard. The facts are drawn from the trial

record. No. 37415-7-III State v. Harmon

Richard describes Harmon as having been a family friend since Richard was

around 10 years old. In summer 2016, Richard’s then-12-year-old daughter, whom we

refer to pseudonymously as Tammy (“Richard” is also a pseudonym), began visiting and

staying overnight with Harmon and his girlfriend, Katrina Earhart. Harmon had known

Tammy since she was a baby. Harmon was then 43 years old.

Tammy believes it was “like the first night [she] stayed over” at the

Harmon/Earhart home that she confessed to Harmon that she “had feelings for him.”

Report of Proceedings (RP) at 279-80. According to Tammy, he told her “the feelings

was [sic] mutual, that he liked me too and stuff,” and then tickled her. RP at 280. She

believes that is the first time she kissed him.

When Tammy visited Harmon and Earhart, she would sleep with them in their

queen-size bed. According to Earhart, Tammy would sleep on Harmon’s side of the bed

or in the middle between the two, and Harmon occasionally slept naked or in his

underwear. According to Tammy, it was Harmon who slept in the middle, and slept

nude. Earhart “didn’t think it was weird at all” that Harmon would sleep naked when

Tammy was in the bed. RP at 119. According to Earhart, anyone who knows Harmon

“knows that he sleeps naked, he walks around the house, you know, in his underwear.”

RP at 119.

During Tammy’s visits to the Harmon/Earhart home, the trio passed the time

playing cards, playing hide-and-seek, and wrestling. Harmon and Earhart lived in a

2 No. 37415-7-III State v. Harmon

mobile home that was located in a storage lot, and the hiding occurred in and around

vehicles that the couple’s landlord stored at the lot. Among the vehicles were portable

offices, a dump truck, trailers, an excavator, mobile homes, pilot trucks, and one white

and one purple semitruck.

According to Tammy, between July and December 2016, when she was 12 and 13

years old, she and Harmon engaged in at least 10 sexual acts. The acts occurred in the

mobile home’s master bedroom, its spare bedroom, on the living room couch, in or on

portable offices, and in the purple and white semitrucks. Tammy engaged in these acts

with Harmon because she thought she loved him.

Tammy identified no dates on which the sexual acts occurred, but she testified at

trial to details that distinguished one encounter from another. She testified that during

games of hide-and-seek with Earhart, Harmon digitally penetrated her vagina two or

three times while the two sat on a bed covered in plastic, inside the white semitruck.

According to Tammy, she and Harmon entered the cab of the truck by opening unlocked

doors. On one occasion inside the semitruck, according to Tammy, Harmon told her that

her vagina was tight and that she needed to finger herself. Tammy testified that Harmon

also touched her breasts four or five times inside the white semitruck during the hide-and-

seek games.

Tammy asserted that she and Harmon also engaged in vaginal intercourse. During

one instance in a spare room, he unsuccessfully attempted to insert his penis into her

3 No. 37415-7-III State v. Harmon

vagina. Tammy suffered pain and bled from the incident. Once while Earhart bathed,

Tammy and Harmon had vaginal intercourse with Harmon wearing a condom. On

another occasion, the two engaged in intercourse while Harmon wore an orange, magnum

condom.

According to Tammy, on four or five occasions, Harmon performed oral sex on

her on the bed in the white semitruck and in his bedroom. On two or three occasions,

Tammy masturbated Harmon. The latter activity occurred once inside the white

semitruck. On another occasion, Tammy masturbated Harmon on top of a portable

office.

Tammy claims that Earhart knew she and Harmon had “kissed and stuff” because

Tammy and Harmon told her about it. RP at 320. Tammy claims they did not tell

Earhart about “the sex part” because “it would just break her.” RP at 320, 340.

According to Tammy, Earhart cried when told about the kissing and stuff. Because

Harmon had told Tammy he wanted to engage in a threesome with the two women,

Tammy then kissed Earhart. Tammy backed off when Earhart responded by putting her

tongue in Tammy’s mouth, however, because Tammy dislikes French kissing.

Tammy’s sexual activity with Harmon came to the attention of responsible adults

in 2017, after Richard’s girlfriend, Paula,1 overheard Harmon speaking to Tammy on

1 A pseudonym.

4 No. 37415-7-III State v. Harmon

Skype, a video chat application, in December 2016. The conversation sounded

flirtatious. A couple of months later, Tammy told Paula more about her and Harmon’s

relationship. Paula told Tammy she needed to tell her father, and Paula then reported

what she had learned to police.

Following the report to law enforcement, Union Gap Police Detective Shawn

James went to the storage lot where the Harmon/Earhart mobile home was located and

took photographs. He wished to photograph the inside of the white semitruck, where

Tammy alleged one of the rapes occurred, but found that its doors were locked.

Harmon was charged with four counts of rape of a child in the second degree and

one count of communication with a minor for immoral purposes. For each rape count,

the State alleged the aggravating factor of an ongoing pattern of sexual abuse. Each of

the four rape counts alleged the crime took place between June 1, 2016, and December

31, 2016.

The charges proceeded to a five-day jury trial. Among the State’s witnesses was

Tammy’s paternal grandmother, Natalie Forenpohar. Forenpohar testified to Harmon’s

long relationship with the family. She also testified that she did not feel comfortable with

Tammy staying overnight with Harmon and Earhart, given that Tammy was only 12, and

Forenpohar’s unexplained concern about the couple’s “lifestyle.” RP at 163.

In cross-examining Forenpohar, defense counsel raised an issue not touched on

during direct: Forenpohar’s observations to investigating officers that Tammy’s behavior

5 No. 37415-7-III State v. Harmon

changed around the time the sexual relationship allegedly began. The following

exchange occurred between defense counsel and Forenpohar:

Q [By defense counsel] . . . Now, do you recall discussing the matters that are the subject of this trial with Detective James of the police department? A Yes. Q Okay. And do you recall discussing with him how your granddaughter [Tammy] had changed over this matter? A Yes. Q Okay. And do you recall telling Detective James that [Tammy] used to listen to you but would not now, she would not lie to you or hide things from you, but now after this incident she had started lying and hiding things and would not talk to you? A Yes. .... Q Okay. Well, when kids hit that age, don’t they start doing that sort of thing with their parents or grandparents and change their behavior and— A They might, but do they start cutting? Q Don’t know, do they? But it’s not unusual for kids to stop talking with their parents or not talking quite so much with their parents or grandparents and not sharing everything with them and sometimes they even start lying. Is that correct? A It might be, but [Tammy] always talked to me. She never had any reason not to.

RP at 166-67 (emphasis added).

In the defense case, Harmon admitted that Tammy kissed him and confessed her

love for him but he denied having any sexual contact with her. He described his

6 No. 37415-7-III State v. Harmon

relationship with Tammy as an uncle-niece relationship. Earhart similarly denied that

Harmon or Tammy shared a sexual relationship.

Harmon and Earhart’s landlord testified (as did Harmon and Earhart) that the

semitrucks on his property were kept locked and that only he and his wife had access to

the keys. He explained that he kept the semitrucks locked because of the sleeper cab bed

in each, out of concern that otherwise homeless people would sleep in the cabs. He

averred that he never observed signs of forced entry into either semitruck.

Among the trial court’s jury instructions were a few dealing with the fact that

multiple criminal acts were charged. They included instruction 3, a “unanimity”

instruction, which informed jurors that for each rape count, they “must unanimously

agree as to which act has been proved.” Clerk’s Papers (CP) at 25. They included

instruction 6, a “separate crime” instruction, which informed jurors that a separate crime

was charged in each count and each must be decided separately. CP at 28.

Neither party proposed a unanimity instruction for the communication with a

minor count, nor did the court give such an instruction for that count. Neither party

objected to any jury instruction.

The trial court used the same elements instruction for all four rape counts,

distinguished only by the identification of the count at issue. Consistent with the

charging document, each elements instruction stated that one element that must be proved

7 No. 37415-7-III State v. Harmon

was that Harmon had sexual intercourse with Tammy “on, about, during or between June

1, 2016 and December 31, 2016.” CP at 32-35.

During closing arguments, when the prosecutor spoke to jurors about the

communication with a minor count, she identified several acts that could support the

conviction. She told jurors, “You as a jury need to find one.” RP at 482.

In thereafter discussing the rape counts, the prosecutor talked to jurors about how

to analyze the multiple counts of rape, and how different acts could be different counts.

When it was defense counsel’s turn to close, he reminded the jurors of

grandmother Forenpohar’s testimony that Tammy exhibited changed, deceptive behavior

at ages 12 and 13. Challenging Tammy’s credibility, he argued in part,

Ms. Earhart and Mr. Harmon deny that anything occurred between him and [Tammy]. Furthermore, [Tammy]’s own allegations themselves don’t stand up to scrutiny. She can’t remember the details regarding this situation. Her own grandmother says she’s—she was lying.

RP at 519 (emphasis added).

The prosecutor responded to this attack on Tammy’s truthfulness with the

following argument in rebuttal:

Now, I think there was some mischaracterization of Natalie[ Forenpohar]’s testimony. When Mr. Oakley gets up and says, well Natalie got on the stand and she said her granddaughter lied. So therefore, she’s completely not credible and you can’t believe a thing out of [Tammy]’s mouth. That is not what Natalie said. Natalie fully believes everything out of [Tammy]’s mouth in regard to what happened to her in what Oliver did. That’s why she testified. That’s what she was talking about.

8 No. 37415-7-III State v. Harmon

So. And you know what, it’s not for myself or for Mr. Oakley to tell you who’s lying, who’s not lying, what it is. Let’s look at Instruction Number 1. Instruction Number 1, I think Mr. Oakley read you the first paragraph, somewhere down in the second one that talks about the things that you can consider in regard to witness testimony. And it talks about the opportunity for the witness to observe and know the things he or she is testifying about. The ability of the witness to observe accurately the quality of a witness’s memory loss testifying. The manner of while they’re testifying. Any personal interests of what the witness might have in the outcome of the issues. Any personal, any bias, or prejudice the witness may have shown. So, it’s up for you to determine where we are. And what has been proven to you. That’s your job. That’s why we picked you. For you guys to evaluate all the evidence, all the witnesses, go back into that jury room and together collectively make a decision on that.

RP at 524-25 (emphasis added). Defense counsel did not object.

The jury found Harmon guilty as charged. It also answered yes to four special

verdict forms for the aggravating factor of an ongoing pattern of sexual abuse, indicating

that each rape was “part of an ongoing pattern of sexual abuse of the same victim . . .

manifested by multiple incidents.” CP at 53-56.

The trial court imposed a standard range sentence. Its judgment and sentence

states in part that “[w]hile on community custody, the defendant shall . . . [p]ay

supervision fees as determined by [the Department of Corrections],” notwithstanding that

Harmon was found indigent for purposes of appointment of counsel on appeal. CP at 60,

71. Harmon appeals.

9 No. 37415-7-III State v. Harmon

LAW AND ANALYSIS

We analyze Oliver Harmon’s brief on appeal as raising five issues, which we

address in turn.

I. THE TRIAL COURT DID NOT ERR BY FAILING TO PROVIDE AN UNREQUESTED “SEPARATE AND DISTINCT ACTS” INSTRUCTION ON COUNTS 1 THROUGH 4 (ASSIGNMENTS OF ERROR 1 THROUGH 3)

Oliver Harmon contends that his four rape convictions violated his constitutional

right to be free from double jeopardy. Because the State used identical language to

charge him with multiple rapes and did not allege specific dates for each, Harmon argues

that the trial court should have instructed the jury that each of his four rape convictions

must be based on distinct acts. He asks us to vacate three of the four rape convictions

and remand the remaining conviction for resentencing.

The State responds that the invited error doctrine bars Harmon’s double jeopardy

claim because he requested the pattern Petrich2 instruction, whose note on use states that

it should be used “when the evidence indicates that several distinct criminal acts have

been committed, but the defendant is charged with only one count of criminal conduct.”

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

4.25 note on use at 124 (5th ed. 2021) (WPIC) (emphasis added). It also argues that even

if Harmon did not invite error, he does not face double jeopardy because it is manifestly

2 State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984), abrogated on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988).

10 No. 37415-7-III State v. Harmon

apparent from the record that the State did not seek to impose multiple punishments for

the same offense.

Invited error

The invited error doctrine prevents a party from creating an error at trial and then

relying on that error for a challenge on appeal. In re Pers. Restraint of Coggin, 182

Wn.2d 115, 119, 340 P.3d 810 (2014). The doctrine bars a criminal defendant’s

challenge even when the alleged error involves constitutional rights. State v. Peters, 10

Wn. App. 2d 574, 582, 455 P.3d 141 (2019). In determining whether the invited error

doctrine applies, courts have “considered whether a defendant affirmatively assented to

the error, materially contributed to it, or benefitted from it.” State v. Momah, 167 Wn.2d

140, 154, 217 P.3d 321 (2009). The defendant must materially contribute to the error by

engaging in some type of affirmative action through which he knowingly and voluntarily

sets up the error. In re Pers. Restraint of Call, 144 Wn.2d 315, 328, 28 P.3d 709 (2001);

State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996); State v. Mercado, 181 Wn.

App. 624, 630, 326 P.3d 154 (2014). The State bears the burden of proof that an error is

invited. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004).

Harmon contends that double jeopardy was created by the elements instructions,

instructions 10 through 13, because they failed to require separate and distinct acts for

each crime. Since the giving of Harmon’s requested Petrich instruction did not set up the

error about which he complains, the invited error doctrine does not apply.

11 No. 37415-7-III State v. Harmon

“Manifestly apparent” analysis

The state and federal constitutions double jeopardy clauses prohibit multiple

punishments for the same offense. U.S. CONST. amend. V, XIV; CONST. art. I, § 9;

State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010). The protections against

double jeopardy can be violated when a defendant is charged with identically-described

counts of a single crime and the jury instructions allow the jury to base convictions for

multiple counts on a single underlying event. State v. Borsheim, 140 Wn. App. 357, 366,

165 P.3d 417 (2007). The problem is not prevented by the giving of unanimity and

separate crime instructions, because jurors might unanimously agree that a single

criminal act was committed, understand that each count alleges a separate crime, and yet

not understand (because not instructed) that each crime must be based on a different act.

Harmon never complained at trial that the jury instructions created a risk that he

would be punished more than once for the same rape, but a defendant may raise a double

jeopardy claim for the first time on appeal. RAP 2.5(a)(3); State v. Mutch, 171 Wn.2d

646, 661, 254 P.3d 803 (2011).

Borsheim and other decisions of this court have long held that in multiple

act/multiple count cases, trial courts should protect against double jeopardy by instructing

the jury “‘that they are to find separate and distinct acts for each count.’” 140 Wn. App.

at 367 (internal quotation marks omitted) (quoting State v. Hayes, 81 Wn. App. 425, 431,

914 P.2d 788 (1996)). While such defendants have sometimes sought to rely on the

12 No. 37415-7-III State v. Harmon

WPIC 4.25 Petrich instruction, it “reflects the single-count roots of Petrich,”3 as our

Supreme Court observed in State v. Carson, 184 Wn.2d 207, 217, 357 P.3d 1064 (2015).

In a multiple act/multiple count prosecution it does not ensure against double jeopardy.

This court has never held that the giving of a “separate and distinct acts”

instruction is essential to avoid double jeopardy in a multiple act/multiple count case. A

claim of double jeopardy can be rejected if other facts establish that the jury instructions

“[made] the relevant legal standard manifestly apparent to the average juror.” Borsheim,

140 Wn. App. at 366 (internal quotation marks omitted) (quoting State v. Watkins, 136

Wn. App. 240, 241, 148 P.3d 1112 (2006)); State v. Weaver, 198 Wn.2d 459, 466, 496

P.3d 1183 (2021). Borsheim observed that in State v. Ellis, 71 Wn. App. 400, 859 P.2d

632 (1993), for example, the trial court safeguarded against double jeopardy by giving

separate “to convict” instructions for each count4 and by stating in those instructions that

3 In State v. Carson, the majority opinion tended to attach the label of “Petrich instruction” to only an instruction like WPIC 4.25, given in a multiple act/single count case. 184 Wn.2d 207, 216-17, 224, 357 P.3d 1064 (2015). A concurring opinion observed that the note on use to WPIC 4.25 at that time stated that the instruction could be modified for multiple act/multiple count cases, citing Hayes and Borsheim as examples. The concurrence referred to such a multicount instruction as a Petrich instruction. Id. at 231-33 (Gordon-McCloud, J., concurring). We take a cue from Borsheim, referring to an instruction designed to ensure unanimity as a “unanimity instruction” and an instruction designed to avoid double jeopardy as a “separate and distinct act” instruction. 4 In Borsheim, a single “to convict” instruction was given for all four identical counts of first degree rape of a child, “further compound[ing]” the double jeopardy concern in that case. 140 Wn. App. at 368.

13 No. 37415-7-III State v. Harmon

the underlying criminal act had to have occurred at a different time than acts underlying

other counts. Borsheim, 140 Wn. App. at 368-69 (citing Ellis, 71 Wn. App. at 401-02).

Such instructions made it apparent that the trial court “was attempting to draw the jury’s

attention to the principle that each count charged the commission of a separate event.”

Id. at 369.

It was definitively established that “a separate and distinct act” instruction is not

essential in Mutch, 171 Wn.2d at 663 (internal quotation marks omitted). The court held

that “flawed jury instructions that permit a jury to convict a defendant of multiple counts

based on a single act do not necessarily mean that the defendant received multiple

punishments for the same offense; it simply means that the defendant potentially received

multiple punishments for the same offense.” Id. The court also disapproved of cases in

which this court failed to look beyond jury instructions in reviewing a double jeopardy

challenge. Id. at 663-64 (disapproving of State v. Berg, 147 Wn. App. 923, 931, 198 P.3d

529 (2008); State v. Carter, 156 Wn. App. 561, 234 P.3d 275 (2010)).

Mutch teaches that appellate courts reviewing allegations of double jeopardy

“‘may review the entire record to establish what was before the court.’” Id. at 664

(quoting State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991)). If it is not clear

from “the evidence, arguments, and instructions” that it was manifestly apparent to the

jury that the State was not seeking to impose multiple punishments for the same offense

and that each count was based on a separate act, there is a double jeopardy violation. Id.

14 No. 37415-7-III State v. Harmon

Mutch also held that the outcome of rigorous “manifestly apparent” review should be the

same as constitutional harmless error analysis. Id. at 664-65 & n.6 (emphasis omitted)

(quoting Berg, 147 Wn. App. at 931).

We turn to a review of the relevant evidence, arguments, and instructions in the

trial below.

Evidence

The State’s direct examination of Tammy elicited her testimony to at least 8 acts

that would constitute second degree rape of a child—in closing argument, the prosecutor

represented that her testimony had established anywhere between 8 and 11 acts of penile-

vaginal penetration, other vaginal penetration, or oral-genital sexual contact. RP at 499.

While Tammy did not remember dates, the questioning sought details that would

distinguish separate acts: the type of sexual act and how often it occurred, and details

such as what had been occurring before it happened, where it took place, things that were

said, and how long it lasted. E.g., RP at 283-306, 311-16.

The State’s lengthy questioning about the details of separate acts suggested to

jurors that the State was not asking them to impose multiple punishments for a single

offense.

Argument

The principal issue at trial, and therefore the focus of the parties’ arguments, was

whether any sexual contact (anything more than a kiss) took place at all. For that reason,

15 No. 37415-7-III State v. Harmon

and because no concern was raised below that jurors might return more than one guilty

verdict for a single rape, the lawyers did not disagree in their closing arguments about

how to decide the four rape counts. The prosecutor offered an explanation, however.

The prosecutor directed the jurors’ attention to instruction 3, which told them that

“[t]o convict the defendant on any count of rape of a child in the second degree, one

particular act of rape of a child in the second degree must be proved beyond a reasonable

doubt, and you must unanimously agree as to which act has been proved.” CP at 25. The

prosecutor told the jurors:

Okay. So, Instruction Number 3 that the Judge read to you is really kind of deformed, convoluted thing because the State is alleging four counts of rape of a child in the second degree and all four of those Counts are for that six month time period. So, this Jury Instruction outlines how you guys can go back and figure out okay, so [Tammy] said that there was this time that he put it in raw and it made her bleed. Okay, that can one count [sic]. Okay, there’s another time where [Tammy] said he—sorry, where [Tammy] said that he put his right—put his finger in me where my baby— where a baby would came out of. That could be another count. So, you need to figure out if there’s collectively four counts of sexual intercourse that fit that definition. Now, the State would believe that based off of [Tammy]’s testimony, where she talks about 2 maybe 3 times of actual sexual intercourse with penile vaginal penetration. Then there’s 4 or 5 times of genital penetration. And there’s 2 to 3 times of the eating her out. So, you need to collectively go back as a jury and figure this Instruction out.

RP at 499-500 (emphasis added).

Speaking to jurors about the special verdict form, the prosecutor told them,

16 No. 37415-7-III State v. Harmon

[N]ot only do you have to determine if there is four counts of rape of a child 2 and one count of communicating with a minor for immoral purposes, but you have to go a step further and you have to decide if this is an ongoing pattern of sexual behavior. And so, the Judge has gone through jury—the Special Verdict Forms and so this is the Jury Instruction that’s going to walk you through that. So, are there multiple incidents? So, you’ll need to assess all the evidence, all the testimony and determine that.

RP at 500 (emphasis added).

These explanations served the same purpose as a “separate and distinct acts”

instruction. Harmon fails to persuade us that the prosecutor’s argument did not make it

apparent that the State was not asking jurors to impose multiple punishments for a single

Instructions

In Ellis, Judge Dean Morgan, writing for the panel, observed, “[I]t is our view that

the ordinary juror would understand that when two counts charge similar crimes, each

count requires proof of a different act.” 71 Wn. App. at 406. Ellis has been abrogated by

Mutch, which requires more. But we need not discard the common sense inference that

while the giving of unanimity, separate crime, and separate elements instructions will not

guarantee against double jeopardy, the fact that jurors were given all three makes it more

likely they will understand that each count requires proof of a different act.

Harmon’s jury not only received unanimity, separate crime, and separate elements

instructions, it was instructed on the aggravating circumstance of an ongoing pattern of

17 No. 37415-7-III State v. Harmon

sexual abuse. The question posed by each of four special verdict forms, to which the

jurors answered yes, was

Was the crime part of an ongoing pattern of sexual abuse of the same victim under the age of 18 years manifested by multiple incidents over a prolonged period of time?

CP at 53-56 (emphasis added).

It is manifestly apparent from (1) the State’s presentation of lengthy detailed

evidence of multiple acts, (2) its explanation in closing argument of the need to agree to

one act of rape for one rape count and another act for another, and (3) the giving of the

unanimity, separate crime, separate elements, and special verdict instructions, that the

State was not asking jurors to impose multiple punishments for a single offense. Double

jeopardy is not shown.

II. JURY UNANIMITY - COMMUNICATION WITH A MINOR (ASSIGNMENTS OF ERROR 4 THROUGH 6)

The State also presented evidence of multiple acts that would constitute its single

charge of communication with a minor for an improper purpose. In closing, the

prosecutor identified multiple acts that could support conviction for that count and told

the jury it must decide on which act to find him guilty.5 Unlike the rape counts, the jury

5 As to this count, the prosecutor argued: So, no matter what you decide is that communicating with a minor for immoral purposes, was it the phone call, was it the video chat, was it the conversation that [Paula] overheard where she thought that [Tammy] was talking to a boyfriend that she was giddy and flirty? Was it the video chat

18 No. 37415-7-III State v. Harmon

was not given a unanimity instruction for the communication with a minor count.

Harmon contends that for those reasons, and because the State failed to elect one act as

the basis for the charge, he was denied his Sixth and Fourteenth Amendment to the

United States Constitution right to a unanimous verdict.

The State’s response once again relies on the invited error doctrine, arguing that

by proposing a unanimity instruction for the four counts of second degree child rape but

not for the communication with a minor charge, Harmon assisted in creating the error.

What constitutes invited error has already been discussed. Recall that for error to

be invited, the defendant must materially and voluntarily contribute to the error appealed.

Mercado, 181 Wn. App. at 630. The fact that Harmon did not propose a unanimity

instruction for the communication with a minor count is an act of omission, not an

affirmative act. The invited error doctrine does not apply.

that [Tammy] told us about yesterday, where Oliver asked her to come over and she came over and then there was the orange condom incident? Or the Judge read to you Instructions that it could be words or conduct. So, is it Oliver opening that semi door to get her into the back on that plastic mattress? You get to decide. and,

[Tammy] gave you a lot of examples of this. You as a jury need to find one.

RP at 481-82 (emphasis added).

19 No. 37415-7-III State v. Harmon

Failure to instruct or elect

The federal and state constitutions guarantee a criminal defendant the right to a

unanimous verdict. U.S. CONST. amend. VI, XIV; CONST. art. I, § 21; Ramos v.

Louisiana, 140 S. Ct. 1390, 1397, 206 L. Ed. 2d 583 (2020); State v. Armstrong, 188

Wn.2d 333, 340, 394 P.3d 373 (2017); Petrich, 101 Wn.2d at 569. The State implicates

this right when it argues and presents evidence of many distinct acts that could constitute

a crime, but has charged only one count without identifying it by a distinct time and

place. Jurors could each find that the evidence proved that a crime was committed by

some act, but without agreeing that the same act was proved to be a crime beyond a

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

To ensure unanimity in multiple act/single count cases, the State must either elect

the act on which it relies for conviction or the court must instruct the jury that all 12

jurors must agree that the State proved the same criminal act beyond a reasonable doubt.

State v. Camarillo, 115 Wn.2d 60, 64, 794 P.2d 850 (1990); Petrich, 101 Wn.2d at 572.

The State did neither here, and in the case of this count, the prosecutor’s argument

did not prevent the problem. The prosecutor argued to jurors that they needed to

“decide” or “find” one act that would support the communication with a minor count, but

she did not tell them they had to agree on the same act as supporting the count. This

presents a classic violation of the right to a unanimous jury verdict and requires reversal

of this conviction and a new trial.

20 No. 37415-7-III State v. Harmon

III. WHETHER THE PROSECUTING ATTORNEY COMMITTED PREJUDICIAL MISCONDUCT IN VOUCHING FOR THE VICTIM AND ARGUING FACTS NOT IN EVIDENCE (ASSIGNMENTS OF ERROR 7 THROUGH 9)

Harmon asserts that the prosecutor committed misconduct in closing arguments by

improperly vouching for Tammy’s grandmother, and arguing facts not in evidence.

Harmon acknowledges that he did not object to the challenged statement. “‘In order to

establish prosecutorial misconduct, a defendant must show that the prosecutor’s conduct

was both improper and prejudicial in the context of the entire record and the

circumstances at trial.’” State v. Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021)

(internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191, 189

P.3d 126 (2008)). A defendant’s failure to object essentially raises the bar. When a

defendant fails to object, we will reverse for prosecutorial misconduct during closing

only if “the remark is so flagrant and ill intentioned that it causes an enduring and

resulting prejudice that could not have been neutralized by an admonition to the jury.”

State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). “In other words, a conviction

must be reversed only if there is a substantial likelihood that the alleged prosecutorial

misconduct affected the verdict.” Id.

Harmon challenges one sentence in the prosecutor’s closing argument. To put this

sentence in context, we consider the testimony at trial. Tammy’s grandmother testified

that Tammy’s behavior changed after she began associating with Harmon. Specifically,

Tammy’s grandmother testified that before her relationship with Harmon, Tammy was

21 No. 37415-7-III State v. Harmon

honest and open with her grandmother, but after the relationship began, Tammy began

lying and hiding things from her grandmother. During closing, defense counsel

challenged Tammy’s credibility, arguing that “[s]he can’t remember the details regarding

this situation. Her own grandmother says she’s—she was lying.” RP at 519. In rebuttal,

the State responded to this argument:

Now, I think there was some mischaracterization of [grandmother]’s testimony. When [defense counsel] gets up and says, well [grandmother] got on the stand and she said her granddaughter lied. So therefore, she’s completely not credible and you can’t believe a thing out of [Tammy]’s mouth. That is not what [grandmother] said. [Grandmother] fully believes everything out of [Tammy]’s mouth in regard to what happened to her in what Oliver did. That’s why she testified. That’s what she was talking about.

RP at 524 (emphasis added). Defense counsel did not object or request a mistrial.

On appeal, Harmon contends that the comment constitutes misconduct not only

because it referenced facts outside the record, but because it indirectly vouched for

Tammy’s credibility. It is misconduct for a prosecutor to suggest that the jury decide a

case based on evidence outside the record. State v. Pierce, 169 Wn. App. 533, 553, 280

P.3d 1158 (2012). A prosecutor also commits misconduct by improperly vouching for a

witness. State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010). A prosecutor

improperly vouches when indicating that “evidence not presented at trial supports the

witness’s testimony.” Id. The prejudicial effect of the prosecutor’s comments are

reviewed in the context of the State’s total argument. State v. McKenzie, 157 Wn.2d 44,

22 No. 37415-7-III State v. Harmon

52, 134 P.3d 221 (2006). Prosecutors may argue inferences from the evidence, but

prejudicial error will be found if “it is ‘clear and unmistakable’ that counsel is expressing

a personal opinion.” State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995).

In this case, it is clear that the prosecutor’s comment referenced evidence outside

the record. The grandmother never testified that she believed Tammy’s allegations. Nor

did the grandmother express her reasons for testifying. It is less clear that the

prosecutor’s comment constitutes vouching by the prosecutor. While the prosecutor

referenced facts outside the evidence, it is not clear and unmistakable that the prosecutor

was expressing the prosecutor’s personal opinion.

While the prosecutor’s reference to evidence outside the record was misconduct,

this does not automatically require reversal. Under the heightened standard, a defendant

who fails to object to perceived misconduct at trial must show more than impropriety and

prejudice to succeed on appeal. State v. Loughbom, 196 Wn.2d 64, 74, 470 P.3d 499

(2020). Instead, when a defendant fails to object to an improper comment at trial, the

defendant must show that the prejudice was incurable. Id. Incurable prejudice has only

been found “‘in a narrow set of cases where we were concerned about the jury drawing

improper inferences from the evidence.’” Id. (quoting In re Pers. Restraint of Phelps,

190 Wn.2d 155, 170, 410 P.3d 1142 (2018)). The Supreme Court has recognized

reversible misconduct under this heightened standard when the misconduct is either so

23 No. 37415-7-III State v. Harmon

inflammatory that it threatens the fundamental fairness of trial, or when it is so severe as

to demonstrate that it was flagrant and ill intentioned. See Phelps, 190 Wn.2d at 171.

Harmon argues that the prosecutor’s misconduct in this case was flagrant because

it is well established that prosecutors may not provide a personal opinion, vouch for a

witness, or allude to facts outside the record. The dissent agrees and relies on the

decision in State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996). In Fleming,

the court found misconduct when the prosecutor argued that to acquit the defendant, the

jury must find that the State’s witnesses are either lying or mistaken. Id. at 213. The

Court of Appeals deemed this misconduct flagrant because the same argument had been

rejected in a published decision a year and a half earlier. Id. at 214.

While the court in Fleming reversed a conviction based on its finding that the

misconduct was flagrant, the Supreme Court requires more than a violation of known

standards. It requires intentional misconduct that is so pervasive that it cannot be cured.

In In re Personal Restraint of Glasmann, the prosecutor’s closing argument relied

extensively on a slide show presentation that superimposed captions on top of

photographic evidence. 175 Wn.2d 696, 286 P.3d 673 (2012). The captions included

phrases like “GUILTY,” and “DO YOU BELIEVE HIM?” Id. at 706. The court found

that adding captions to the photographs amounted to unadmitted evidence. The court also

recognized that prior case law established that it “is improper to present evidence that has

been deliberately altered in order to influence the jury’s deliberations.” Id. Because

24 No. 37415-7-III State v. Harmon

these standards were well known when the prosecutor in Glasmann intentionally

presented altered photographs during closing argument, the court found the prosecutor’s

misconduct to be flagrant and ill intentioned. Id. at 707.

In addition to finding the misconduct flagrant, the court went on to find that the

“misconduct here was so pervasive that it could not have been cured by an instruction.”

Id. The court recognized that “‘[T]he cumulative effect of repetitive prejudicial

prosecutorial misconduct may be so flagrant that no instruction or series of instructions

can erase their combined prejudicial effect.’” Id. (quoting State v. Walker, 164 Wn. App.

724, 737, 265 P.3d 191 (2011)).

In other cases, the Supreme Court has made it clear that our review of

unchallenged prosecutorial misconduct should focus less on whether the misconduct was

flagrant and more on whether it was curable by an objection. In State v. Emery, 174

Wn.2d 741, 278 P.3d 653 (2012), the prosecutor made two erroneous arguments. First,

that in order to acquit, the jury must be able to say, “I doubt the defendant is guilty, and

my reason is blank.” Id. at 750-51. Second, the prosecutor argued that the “truth of these

charges” is that the defendant was guilty and then charged the jury with “speak[ing] the

truth” by holding the defendants accountable. Id. at 751. The Supreme Court agreed that

both arguments were improper and then took the opportunity to clarify the standard of

review when a defendant fails to object to prosecutorial misconduct. Id. at 761.

25 No. 37415-7-III State v. Harmon

The court noted that objections are necessary to correct the error, prevent it from

reoccurring, and to prevent abuse of the appellate process. Conversely, “An objection is

unnecessary in cases of incurable prejudice only because ‘there is, in effect, a mistrial and

a new trial is the only and the mandatory remedy.’” Id. at 762 (quoting State v. Case,

49 Wn.2d 66, 74, 298 P.2d 500 (1956)). Emery tells us that our focus on review is less

about whether the misconduct was flagrant and more on whether it was incurable. Id; see

also State v. Walker, 182 Wn.2d 463, 478, 341 P.3d 976 (2015) (Walker II) (“We do not

focus on the prosecutor’s subjective intent in committing misconduct, but instead on

whether the defendant received a fair trial in light of the prejudice caused by the violation

of existing prosecutorial standards and whether that prejudice could have been cured with

a timely objection.”).

Likewise, in In re Personal Restraint of Phelps, 190 Wn.2d at 171, the court found

misconduct, but not incurable misconduct. In Phelps, the prosecutor argued facts not in

evidence during closing by making comments about the defendant “grooming” the

victim. The defendant claimed that this error was flagrant and ill intentioned sufficient to

overcome a lack of objection. The Supreme Court disagreed:

Here, even assuming the prosecutor had committed misconduct, the misconduct did not cross the line into areas of conduct that would have threatened the fundamental fairness of his trial. The grooming comments did not rise to the level of being inflammatory, nor did they come close to the level of severity our precedent suggests is necessary to meet the ‘flagrant and ill intentioned’ standard.

26 No. 37415-7-III State v. Harmon

Id.

The narrow set of cases where the Supreme Court has found incurable misconduct

generally include the use of inflammatory comments or repeated, pervasive, and

intentional misconduct. See Loughbom, 196 Wn.2d at 75 (prosecutor’s repeated remarks

about curing the “war on drugs” during opening and closing was flagrant and ill

intentioned); State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011) (prosecutor

injected racial prejudice into the trial by arguing “black folk don’t testify against black

folk”); Slater, 197 Wn.2d at 683 (prosecutor was allowed to argue throughout closing

that one missed court date was evidence of guilt); Glasmann, 175 Wn.2d at 707

(prosecutor’s extensive use of slide show with captions superimposed over photographs

was improper, and misconduct was so pervasive that it could not be cured by instruction);

Walker II, 182 Wn.2d at 471-72 (of the 250 slides used in prosecutor’s closing, a

significant number contained derogatory comments and personal opinions of guilt).

In this case, after a five-day trial, the prosecutor uttered one sentence in rebuttal

that was improper. Although the comment was in response to Harmon’s closing, which

also mischaracterized the evidence, the prosecutor went too far in referencing evidence

outside the record and claiming that one witness was vouching for another. The

prosecutor’s immediate shift to the jury instructions suggests that the comment was

inadvertent as opposed to intentional. Regardless, the comment was not inflammatory,

not repetitive, and not pervasive. Nor was it incurable.

27 No. 37415-7-III State v. Harmon

The trial court could have cured any prejudice resulting from the State’s remarks

by reminding the jury that the arguments of counsel are not evidence and reminding them

to disregard arguments that are not supported by the record. The court could have also

reminded the jury that they are the sole judges of the credibility of the witnesses. These

instructions are standard for a reason. To say that they would not cure the very error that

they are directed toward is to say that they are ineffective as instructions.

IV. WHETHER TRIAL COUNSEL PERFORMED INEFFECTIVELY BY FAILING TO OBJECT TO THE PROSECUTORIAL MISCONDUCT (ASSIGNMENTS OF ERROR 10 AND 11)

In the alternative, Harmon argues that his attorney was constitutionally ineffective

for failing to object to the prosecutor’s comment during closing. The standard for

ineffective assistance of counsel is well established. Criminal defendants have a

constitutionally guaranteed right to effective assistance of counsel. U.S. CONST. amend.

VI; CONST. art. I, § 22; State v. Lopez, 190 Wn.2d 104, 115, 410 P.3d 1117 (2018). A

claim of ineffective assistance of counsel is an issue of constitutional magnitude that may

be considered for the first time on appeal. State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d

1122 (2007). Claims of ineffective assistance of counsel are reviewed de novo. State v.

White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995).

A defendant bears the burden of showing (1) that his counsel’s performance fell

below an objective standard of reasonableness based on consideration of all the

circumstances and, if so, (2) there is a reasonable probability that but for counsel’s poor

28 No. 37415-7-III State v. Harmon

performance the outcome of the proceedings would have been different. State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either element is not

satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

In reviewing the record for deficiencies, there is a strong presumption that

counsel’s performance was reasonable. McFarland, 127 Wn.2d at 335. The burden is on

a defendant alleging ineffective assistance of counsel to show deficient representation.

Id. The reasonableness of counsel’s performance is to be evaluated from counsel’s

perspective at the time of the alleged error and in light of all the circumstances.

Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).

When counsel’s conduct can be characterized as legitimate trial strategy or tactics,

performance is not deficient. Kyllo, 166 Wn.2d at 863.

A defendant must affirmatively prove prejudice, not simply show that “the errors

had some conceivable effect on the outcome.” Strickland v. Washington, 466 U.S. 668,

693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant demonstrates prejudice by

demonstrating that the result of the proceeding would have been different but for

counsel’s deficient representation. McFarland, 127 Wn.2d at 337.

In this case, Harmon cannot establish deficiency or prejudice. If Harmon had

objected to the prosecutor’s comment in closing, there is a strong likelihood that the

objection would have been sustained. As noted above, it is also likely that the trial court

would have repeated instructions to the jury on evidence and judging credibility.

29 No. 37415-7-III State v. Harmon

Nevertheless, lawyers frequently make a tactical decision not to object during closing

unless an argument is assessed to be repeated or flagrant. Here, the prosecutor was

responding to Harmon’s argument, the comment was fleeting, and the prosecutor

immediately turned to the jury instructions on evidence and credibility. There are

legitimate, tactical reasons a defense attorney may not object to this comment.

Even if Harmon was able to show that counsel’s failure to object was deficient and

not the product of a tactical decision, he fails to show that a timely objection would have

changed the outcome of the trial. Instead, an objection would most likely have resulted

in the trial court admonishing the jury that counsel’s arguments are not evidence and they

should disregard any arguments that are not supported by the evidence. The court may

have also instructed the jury that they are the sole judges of the credibility of the witness.

Both of these instructions were already provided to the jury and jurors are presumed to

follow the instructions. Phelps, 190 Wn.2d at 172.

Finally, we note that Tammy’s grandmother was not a primary or significant

witness at trial. The primary witness was Tammy, and while her credibility was crucial,

her grandmother’s only relevant testimony was that Tammy’s behavior changed after she

developed a relationship with Harmon. In closing, both parties stretched inferences from

the grandmother’s testimony. Defense counsel argued, without objection, that even

Tammy’s grandmother believed the witness was lying about the allegations. This is not a

case where the prosecutor’s improper comments shifted the burden of proof, or relied on

30 No. 37415-7-III State v. Harmon

inflammatory language, or was so intentional and so pervasive as to infect the trial.

Because Harmon cannot show prejudice, he cannot meet his burden of showing

ineffective assistance of counsel.

V. WHETHER THE TRIAL COURT ERRED BY IMPOSING DEPARTMENT OF CORRECTIONS SUPERVISION COSTS

In its judgment and sentence, the trial court required Oliver Harmon to pay

Washington Department of Corrections supervision fees. In a supplemental brief,

Harmon argues that because he is indigent this was error. Since we are reversing one of

his convictions and remanding, Harmon can raise this challenge to any imposition of the

fees when he is resentenced.

We reverse Harmon’s communication with a minor for improper purposes

conviction, otherwise affirm, and remand for resentencing and any retrial.

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.

_____________________________ Staab, J.

I CONCUR:

_____________________________ Siddoway, A.C.J.

31 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

No. 37415-7-III

FEARING, J. (concurring in part and dissenting in part) — I concur in the

majority’s ruling that reverses Oliver Harmon’s one conviction for communication with a

minor for immoral purposes. I disagree with the majority’s analysis and ruling with

regard to prosecutorial misconduct and the omission of a distinct acts jury instruction.

Based on the lack of this jury instruction, I would reverse all but one of Harmon’s

convictions for rape of a child in the second degree and dismiss the other three counts

with prejudice. I would also reverse the one remaining rape of a child conviction because

of prosecutorial misconduct and remand that charge for a new trial.

I do not include a statement of facts or of procedure because the majority above

averagely outlines those facts and procedure. I employ the same pseudonyms as the

majority.

Prosecutorial Misconduct

Oliver Harmon argues that the prosecutor committed flagrant, ill-intentioned, and

prejudicial misconduct when declaring, during summation, that Tammy’s grandmother

believed Tammy’s allegations against Harmon. Harmon asserts two grounds of

misconduct that uniquely arise from the same remark. First, the prosecuting attorney’s

comments indirectly and unlawfully vouched for the credibility of Tammy. Second, the No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

State’s attorney’s improperly argued facts not in evidence. I address each ground

separately.

Improper Vouching

During cross-examination of Tammy’s grandmother, Natalie Forenpohar, defense

counsel prompted Forenpohar to testify that, after the incidents with Oliver Harmon,

Tammy lied to and hid matters from the grandmother. In turn, defense counsel, during

closing, emphasized the lying of Tammy. Counsel probably suggested to the jury that

Forenpohar testified that Tammy lied about the conduct of Oliver Harmon, when counsel

remarked:

She can’t remember the details regarding this situation. Her own grandmother says she’s—she was lying.

Report of Proceedings (RP) at 519 (emphasis added). In rebuttal, the State’s attorney

Now, I think there was some mischaracterization of Natalie’s [Forenpohar’s] testimony. When Mr. Oakley [defense counsel] gets up and says, well Natalie got on the stand and she said her granddaughter lied. . . . That is not what Natalie said. Natalie fully believes everything out of [Tammy’s] mouth in regard to what happened to her in what Oliver did. That’s why she testified. That’s what she was talking about. So. And you know what, it’s not for myself or for Mr. Oakley to tell you who’s lying, who’s not lying, what it is.

RP at 524 (emphasis added).

On appeal, Oliver Harmon contends the State’s attorney’s rebuttal constituted

impermissible vouching for the veracity of the victim, Tammy, and thereby comprised

2 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

prosecutorial misconduct. The State responds that Harmon waived his prosecutorial

misconduct claim by failing to object to the challenged remarks during trial. I agree with

the majority that Harmon did not invite the error by failing to object.

The State also contends that any misconduct did not constitute flagrant and ill-

intentioned conduct requiring a reversal. The State highlights that defense counsel,

during closing, commented that Tammy’s grandmother testified that Tammy was lying.

Nevertheless, the State does not contend that Harmon opened the door to any vouching

because of the questioning of Natalie Forenpohar or the defense’s closing statement.

To resolve a claim of prosecutorial misconduct, I first inquire whether the

prosecutor made inopportune comments. Because I conclude that the prosecuting

attorney uttered improper comments, I later address whether the remarks were

inflammatory and ill-intentioned and thus reversible.

I address the law of vouching for another’s veracity before returning to the subject

of prosecutorial misconduct. No reliable test for truthfulness exists, such that a witness is

not qualified to judge the truthfulness of a child’s story. United States v. Azure, 801 F.2d

336, 341 (8th Cir. 1986); State v. Dunn, 125 Wn. App. 582, 594, 105 P.3d 1022 (2005).

This rule particularizes the general rule that no witness may give an opinion on another

witness’ credibility. State v. Neidigh, 78 Wn. App. 71, 76-77, 895 P.2d 423 (1995); State

v. Wright, 76 Wn. App. 811, 821-22, 888 P.2d 1214 (1995); State v. Suarez-Bravo, 72

Wn. App. 359, 366, 864 P.2d 426 (1994); State v. Padilla, 69 Wn. App. 295, 299, 846

3 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

P.2d 564 (1993); State v. Walden, 69 Wn. App. 183, 186-87, 847 P.2d 956 (1993); State

v. Smith, 67 Wn. App. 838, 846, 841 P.2d 76 (1992); State v. Stover, 67 Wn. App. 228,

231, 834 P.2d 671 (1992); State v. Casteneda-Perez, 61 Wn. App. 354, 362, 810 P.2d 74

(1991). Lay opinion of the truthfulness of another is not helpful within the meaning of

ER 701, because the jury can assess credibility as well or better than the lay witness.

State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995).

In most sexual abuse cases, the respective credibility of the victim and the

defendant looms crucial because the testimony of each directly conflicts and the two are

the only percipient witnesses. State v. Alexander, 64 Wn. App. 147, 154, 822 P.2d 1250

(1992); State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P.2d 1117 (1985). Therefore, a

witness’ declaring the victim to be telling the truth in essence marks the defendant with

guilt. Opinions on guilt are improper whether made directly or inferentially. State v.

Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014); State v. Montgomery, 163 Wn.2d

577, 594, 183 P.3d 267 (2008).

Lay witness testimony about the victim’s credibility implicates the accused’s guilt

or innocence and thus implicates the accused’s right to a fair trial and impartial jury

under article I, section 21 of the Washington State Constitution and the Sixth Amendment

to the United States Constitution. State v. Johnson, 152 Wn. App. 924, 934, 219 P.3d

958 (2009). The admission of testimony vouching for a witness forms constitutional

error because such evidence violates the defendant’s constitutional right to a jury trial,

4 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

which includes the independent determination of the facts by the jury. State v.

Quaale, 182 Wn.2d at 199 (2014); State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125

(2007); State v. Florczak, 76 Wn. App. 55, 74, 882 P.2d 199 (1994). Vouching

endangers the accused because jurors may surrender their own common sense in

weighing testimony.

In addition to the law precluding the prosecuting attorney from asking a witness to

vouch for the credibility of a witness, rules of professional responsibility and trial

practice prohibit the State’s attorney from vouching for a witness. State v. Reed, 102

Wn.2d 140, 146, 684 P.2d 699 (1984). Improper vouching generally occurs (1) if the

prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if

the prosecutor indicates that evidence not presented at trial supports the witness’

testimony. State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010) (plurality opinion).

The testimony of Natalie Forenpohar does not fit perfectly in the definition of a

layperson “vouching.” Forenpohar never testified that she believed Tammy’s accusations

against Oliver Harmon. But Forenpohar impliedly vouched for Tammy when she

testified that Tammy only started lying after the assaults by Harmon. More importantly,

the State told the jury that Natalie Forenpohar vouched for every utterance from the

mouth of Tammy.

The prosecuting attorney did not express a personal belief as to the veracity of

Tammy. Nevertheless, the prosecutor referred to evidence outside the record when

5 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

indirectly vouching for Tammy. The State’s attorney claimed, contrary to the record, that

the grandmother: “fully believes everything out of [Tammy’s] mouth in regard to what

happened to her and what Oliver did. That’s why she testified.” RP at 524.

Five Washington decisions, all involving alleged sexual abuse of a minor, entail

reversals of convictions because of vouching for the credibility of a witness. In State v.

Sutherby, 138 Wn. App. 609, 158 P.3d 91 (2007), aff’d on other grounds, 165 Wn.2d

870, 204 P.3d 916 (2009), a jury convicted Randy Sutherby of child rape and child

molestation, among other charges. This court reversed because the trial court allowed the

victim’s mother to testify that her daughter was telling the truth. The mother stated she

could determine if her daughter lied because of a half-smile that appeared on the child’s

face on prevarication. The mother impliedly suggested to the jury to judge the daughter’s

truthfulness, when the daughter testified before the jury, by her facial expression.

In State v. Alexander, 64 Wn. App. 147, 822 P.2d 1250 (1992), the prosecution

questioned the victim’s counselor, David Bennett, about whether the victim gave any

indication that she was lying about the abuse. Bennett testified he did not believe the

victim lied. This court reversed the conviction of Robert Alexander for child rape.

Without analysis, this court also concluded that the error, combined with other error, was

not harmless beyond a reasonable doubt.

Another important decision is State v. Dunn, 125 Wn. App. 582 (2005). This

court reversed another conviction for rape of a child on the ground of inadmissible

6 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

testimony. Physician Assistant James Kramer testified that, despite an absence of any

physical evidence of rape, he concluded that sexual abuse occurred because of the

detailed story told him by the victim. The impermissible testimony was prejudicial

because the only evidence of sexual abuse was the child’s own testimony and hearsay

statements to others. The evidence was sufficient to convict Larry Dunn of rape, but still

not harmless because the trial pitted the child’s credibility against Dunn’s credibility.

In State v. Jerrels, 83 Wn. App. 503, 925 P.2d 209 (1996), the jury found Harvey

Jerrels guilty of multiple child sex offenses involving his daughter and stepdaughters. At

trial, the prosecutor asked the mother thrice as to whether she believed her children told

the truth. The mother responded affirmatively each time. This court reversed Jerrels’

conviction. We noted that a jury will not easily disregard a mother’s opinion as to her

children’s veracity even if instructed to do so. The same may be true with regard to a

grandmother’s opinion.

A final compelling decision is State v. Johnson, 152 Wn. App. 924 (2009). The

State charged Gerald Johnson with child molestation. The jury heard testimony that

Johnson’s wife believed the story of the victim. The court held the testimony to be

reversible and manifest constitutional error.

I recognize that trial defense counsel speciously told the jury that Natalie

Forenpohar testified that Tammy lied when accusing Oliver Harmon of rape and other

misconduct. Defense counsel thereby deprecated the veracity of Tammy or essentially

7 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

unnvouched for her. The State’s attorney, however, should not have responded by falsely

proclaiming that Forenpohar testified that she believed all accusations of Tammy against

Harmon. Instead, the prosecuting attorney should have objected to defense counsel’s

argument because the evidence did not corroborate counsel’s statement. Two falsehoods

do not create a truth.

In State v. Jones, 144 Wn. App. 284, 183 P.3d 307 (2008), a prosecution for a

controlled substance delivery, defense counsel questioned a law enforcement officer

about the failure of the confidential informant to testify. Counsel asked the officer

whether a court had issued a warrant for the arrest of the informant. On redirect

examination of the officer, the State’s attorney asked if the confidential informant had

expressed concern about testifying against Richard Jones. Over defense counsel’s

objection, the officer answered that the informant told the officer that the informant

feared testifying and thereby implied that the informant feared that Jones would harm

him.

On appeal, in State v. Jones, Richard Jones contended the prosecuting attorney

engaged in misconduct when asking a witness to supply a hearsay statement in order to

bolster the credibility of the confidential informant. The State responded that Jones

opened the door. The Supreme Court sided with Jones and answered that a defendant has

no power to open the door to prosecutorial misconduct.

The California Supreme Court recently wrote:

8 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

“Defense counsel does not open the door for prosecutorial vouching every time he or she argues that a prosecution witness’s testimony is untrue.” (Rodriguez, supra, 26 Cal. App. 5th at p. 910, 237 Cal. Rptr. 3d 550.) Impermissible vouching—where counsel relies on evidence not available to the juror or invokes his or her personal prestige or depth of experience—does not become permissible simply because the speaker claims to be responding to something opposing counsel said. People v. Bain (1971) 5 Cal. 3d 839, 849, 97 Cal. Rptr. 684, 489 P.2d 564 [“A prosecutor’s misconduct cannot be justified on the ground that defense counsel ‘started it’ with similar improprieties”]; People v. Taylor (1961) 197 Cal. App. 2d 372, 383, 17 Cal. Rptr. 233 [“It is no answer to state that defense counsel also used questionable tactics during the trial and therefore the district attorney was entitled to retaliate”].

People v. Rodriguez, 9 Cal. 5th 474, 484-85, 463 P.3d 815, 822-23, 262 Cal. Rptr. 3d

618, 626 (2020) (alterations in original).

After the State’s attorney told the jury that Natalie Forenpohar testified on behalf

of the State because Forenpohar believed Tammy, counsel added that neither counsel

plays a role in determining who told the truth. Based on this additional comment, the

State contends its attorney rectified any error. But the prosecuting attorney said more:

Natalie fully believes everything out of [Tammy’s] mouth in regard to what happened to her in what Oliver did. That’s why she testified. That’s what she was talking about. So. And you know what, it’s not for myself or for Mr. Oakley to tell you who’s lying, who’s not lying, what it is.

RP at 524 (emphasis added). Before telling the jury that he should not tell it who is or is

not lying, the State’s attorney did exactly that. More importantly, the prosecutor did not

add that a witness should not tell the jury who is telling the truth. The prosecuting

9 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

attorney directed the jury to believe Tammy based in part on the alleged vouching by

Natalie Forenpohar.

I must now decide whether the vouching constitutes prosecutorial misconduct

sufficient to require a new trial. To resolve a claim of prosecutorial misconduct, we first

inquire whether the prosecutor uttered improper comments, then, if the answer is yes, we

inquire as to whether the comments prejudiced the defendant. State v. Lindsay, 180

Wn.2d 423, 431, 326 P.3d 125 (2014). I have already written that the prosecutor

improperly vouched for the victim, Tammy, so I proceed to address the extent of

prejudice.

Different standards for reversal of a conviction apply depending on whether the

accused objected to the prosecutorial misconduct at trial. To prevail on appeal on a claim

of prosecutorial misconduct when the defense objected below, a defendant must simply

show prejudice. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008); State v. Yates,

161 Wn.2d 714, 774, 168 P.3d 359 (2007), abrogated on other grounds by State v.

Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). Oliver Harmon’s attorney failed to object

to the prosecutor’s vouching for the veracity of Tammy falsely through Natalie

Forenpohar. If defense counsel fails to object to the misconduct at trial, the defendant on

appeal must show more than some prejudice. Washington courts consider the claim of

prosecutorial misconduct waived on appeal unless the misconduct is so flagrant and ill-

intentioned that it evinces an enduring prejudice that the trial court not have cured by a

10 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

jury instruction. State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006), overruled

on other grounds by, Sate v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014); State v. Evans,

163 Wn. App. 635, 642-43, 260 P.3d 934 (2011).

The higher standard of prejudice for prosecutorial misconduct employs fuzzy

adjectives and imposes on the court the task of entering the minds of jurors such that the

standard is nearly impossible to apply. Part of the misconduct test requires a showing of

“ill-intention” by the prosecuting attorney. “Ill-intentioned” means having malicious

intentions. Dictionary.com, https://www.dictionary.com/browse/ill-intentioned (last

visited Jan. 24, 2022). We enter a quagmire when attempting to discern the intentions of

a prosecuting attorney.

The misconduct of the prosecutor must also be flagrant. “Flagrant” is something

considered “wrong or immoral[,] conspicuously or obviously offensive.” Oxford English

Dictionary Online, https://en.oxforddictionaries.com/definition/flagrant (last visited Jan.

24, 2022). Characterizing a prosecuting attorney’s conduct as flagrant is also

problematic.

Based on Supreme Court language, the majority reasonably writes that reversible

prosecutorial misconduct requires “intentional misconduct.” Majority opinion at page 24.

Nevertheless, despite the ill-intentioned standard, our Supreme Court has directed us not

to delve into the mind of the prosecutor. The Supreme Court has written twice that we

should not focus on the prosecutor’s subjective intent in committing misconduct, but

11 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

instead on whether the defendant received a fair trial in light of the prejudice caused by

the violation of existing prosecutorial standards and whether that prejudice could have

been cured with a timely objection. State v. Walker, 182 Wn.2d 463, 478, 341 P.3d 976

(2015); State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012). I have already noted

that the State’s counsel violates prosecutorial standards when vouching for a witness.

At least two Washington courts have noted one factor to consider when

determining if improper prosecutorial arguments were flagrant and ill-intentioned such

that the accused suffered prejudice. An argument should be so characterized when a

Washington court previously recognized those same arguments as improper in a

published opinion. State v. Johnson, 158 Wn. App. 677, 685, 243 P.3d 936 (2010); State

v. Fleming, 83 Wn. App. 209, 213-14, 921 P.2d 1076 (1996). In State v. Fleming, the

prosecuting attorney told the jury that, to acquit the defendants of rape, the jury must find

that the victim lied or was confused. This court held the misconduct to be flagrant

because the prosecutor uttered the argument two years after an opinion proscribing the

argument.

I follow State v. Johnson and State v. Fleming. As previously written, at least five

Washington decisions hold that neither the prosecutor nor a witness can vouch for the

truthfulness of another witness, let alone the victim. State v. Johnson, 152 Wn. App. 924

(2009); State v. Sutherby, 138 Wn. App. 609 (2007); State v. Dunn, 125 Wn. App. 582

(2005); State v. Jerrels, 83 Wn. App. 503 (1996); State v. Alexander, 64 Wn. App. 147

12 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

(1992). For this reason alone, I conclude that the prosecutorial misconduct constituted

ill-intentioned and flagrant misconduct that could not be cured with a jury instruction.

The Washington Supreme Court earlier instructed lower courts to consider the

likelihood of whether the misconduct affected the jury’s verdict. State v. Emery, 174

Wn.2d 741, 761 (2012). This factor echoes the factor of whether a curative instruction

can prevent harm to the accused and implicates the strength of the State’s evidence.

Nevertheless, the Washington Supreme Court recently has held that lower courts should

not weigh the State’s evidence when assessing prejudice in the context of prosecutorial

misconduct. State v. Walker, 182 Wn.2d 463, 479 (2015). The high court, in State v.

Walker, wrote that, even if the State has strong evidence to affirm the convictions had the

defendant challenged the sufficiency of the evidence, the focus must be on the

misconduct and its impact, not on the evidence that was properly admitted.

Even if I followed the old standard test of discerning reversible misconduct by

measuring the vigor of the State’s evidence, I would still rule that the prosecuting

attorney committed ill-intentioned, flagrant, and prejudicial conduct. As numerous

decisions teach, vouching by the prosecutor particularly raises concerns and renders harm

in a sexual assault on a child prosecution wherein the guilt or innocence of the accused

depends on the veracity of the accused and the victim. The credibility of Tammy was

crucial to assessing the guilt of Oliver Harmon.

13 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

No independent witness observed any misbehavior by Oliver Harmon. One

interested witness, who was purportedly nearby during some of the rapes and

molestations, denied seeing any evidence suggesting criminal activity. I emphasize that

Tammy testified that many of the assaults occurred in the cabs of the respective white

and a purple tractor-trailer trucks. Nevertheless, a potentially disinterested witness, the

owner of the trucks, insisted that he always locked the trucks and no one other than he

and his wife had access to the trucks keys. Circumstances supported a finding that the

trucks remained locked when the alleged crimes occurred because the trucks suffered no

damage from attempted burglaries and the investigating officer found the cab of one of

the trucks locked.

Based on the clashing evidence presented at trial, I doubt a curative instruction

would have impacted the jury’s thinking. The trial court already instructed the jury that

statements by parties’ counsel did not constitute evidence. When a curative instruction

repeats a previously delivered instruction, the remedial instruction is less likely to cure

the misconduct. State v. Jones, 13 Wn. App. 2d 386, 407, 463 P.3d 738 (2020).

Even though I conclude that Oliver Harmon suffered prejudice from

the vouching to the honesty of Tammy and the misconduct of the State, I must still

perform a harmless error analysis. State v. Kirkman, 159 Wn.2d 918, 927 (2007).

Constitutional error is harmless only if the State establishes beyond a reasonable doubt

that any reasonable jury would have reached the same result absent the error. State v.

14 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

Quaale, 182 Wn.2d at 202 (2014). The untainted evidence must be so overwhelming that

it leads necessarily to a finding of guilt. State v. Thach, 126 Wn. App. 297, 313, 106 P.3d

782 (2005), overruled on other grounds by State v. Case, 13 Wn. App. 2d 657, 466 P.3d

799 (2020). Based on the same factors under which I conclude that Oliver Harmon

suffered prejudice because of prosecutorial misconduct, I find, under the constitutional

standard, the error to be harmful.

Facts Not In Evidence

To repeat, the prosecuting attorney referred to evidence outside the record when

claiming, contrary to the record, that grandmother Natalie Forenpohar: “fully believes

everything out of [Tammy’s] mouth in regard to what happened to her in what Oliver did.

That’s why she testified.” RP at 524. In addition to Forenpohar never avowing that she

believed everything that Tammy asserted with regard to Harmon, Forenpohar never

disclosed the reason for why she testified. I conclude this latter comment also constituted

a separate instance of prosecutorial misconduct. The prosecuting attorney implied to the

jury that Natalie Forenpohar took the time and endured the trauma of subjecting herself to

cross-examination because of the importance to her of telling the jury about the honesty

of her granddaughter, when Forenpohar may have only testified because the State

subpoenaed her.

The prosecuting attorney holds wide latitude in closing argument to draw

reasonable inferences from the evidence and to express such inferences to the jury. State

15 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

v. Boehning, 127 Wn. App. 511, 519, 111 P.3d 899 (2005). Despite this latitude,

however, the prosecuting attorney may not utter prejudicial statements unsupported by

the record. State v. Weber, 159 Wn.2d 252, 276, 149 P.3d 646 (2006). The prosecutor

commits misconduct when bolstering a witness’ credibility based on “facts” not in

evidence. State v. Jones, 144 Wn. App. 284, 293-294 (2008).

For the same reasons that I conclude the prosecutor’s vouching constituted

flagrant and prejudicial misconduct, I conclude that the State’s attorney’s reference to

facts not in evidence comprised reversible misconduct. A prosecutor commits reversible

misconduct by urging the jury to decide a case based on evidence outside the record.

State v. Pierce, 169 Wn. App. 533, 553, 280 P.3d 1158 (2012). Earlier case law taught

the prosecuting attorney that he could not argue facts outside the evidence.

Oliver Harmon does not claim cumulative error as a result of the prosecuting

attorney both vouching for a witness and arguing facts not in evidence. But he runs the

two arguments together for purposes of analyzing prejudice. I also do so in part because

some of the same remarks that constituted vouching comprised asserting facts not in

evidence. I conclude that, even if one of the prohibitions against the prosecutor’s

comments did not comprise error, the two prohibitions brought harmful cumulative error.

Furthermore, the prosecuting attorney, during summation, uttered two comments contrary

to trial testimony.

16 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

Cumulative error may warrant reversal, even if each error standing alone would

otherwise be considered harmless. State v. Weber, 159 Wn.2d 252, 279 (2006); State v.

Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Repetitive misconduct can have a

“cumulative effect.” In re Personal Restraint of Glasmann, 175 Wn.2d 696, 707, 286

P.3d 673 (2012) (plurality opinion); State v. Jones, 13 Wn. App. 2d 386, 408 (2020). The

test to determine whether cumulative errors require reversal of a defendant’s conviction is

whether the totality of circumstances substantially prejudiced the defendant and denied

him a fair trial. In re Personal Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660

(2014), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621

(2018).

In State v. Jones, 144 Wn. App. 284 (2008), this court held that the prosecutor’s

repeated misconduct cumulatively deprived Richard Jones of a fair trial and reversed his

conviction for selling a controlled substance. Among other comments during summation,

the prosecuting attorney commented that police would suffer professional repercussions

if they used an untrustworthy informant and would have discontinued using an informant

if they doubted his sobriety or trustworthiness. The State’s counsel also suggested that

the confidential informant did not testify for fear of Jones. No trial testimony supported

any of the assertions. The court may not have reversed based on one instance of

misconduct, but reversed because of the cumulative effect of the misconduct.

17 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

Double Jeopardy—Rape Convictions

Oliver Harmon contends that his four rape convictions violated his constitutional

right to be free from double jeopardy. Because the State used identical language to

charge him with multiple rapes and did not allege specific dates for each of the four acts,

Harmon argues that the trial court should have instructed the jury that each of his four

rape convictions must be based on distinct acts. Accordingly, he requests that we vacate

three of the four rape convictions.

The State responds that the invited error doctrine bars Oliver Harmon’s double

jeopardy claim because he requested a jury instruction based on 11 Washington Practice:

Washington Pattern Jury Instructions: Criminal 4.25 (5th ed. 2019)(WPIC). The State

also asserts that, even if Harmon did not invite this error, Harmon did not face double

jeopardy because the record “manifestly” reveals that the State did not seek to impose

multiple punishments for the same offense. I agree with the majority that Harmon did not

invite error and proceed to the substance of Harmon’s assignment of error.

In support of his double jeopardy claim, Oliver Harmon does not raise the typical

argument that the State prosecuted him twice for the same crime. Instead, he contends

that the jury instructions exposed him to multiple punishments for the same act. Harmon

faced four counts of rape of a child. He claims that the delivered jury instructions,

including jury instructions 3, 6, and 10 through 13, failed to effectively communicate to

the jury that it could not convict him of more than one count for the same act of rape.

18 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

Although jury instruction 3 apprised the jury that it must be unanimous in finding a

particular act of rape occurred, neither instruction 3 nor any other instruction informed

the jury that it could not use the same act of rape to convict him of two or more counts.

He contends that the failure to expressly inform the jury that each conviction must hinge

on a discrete act breached double jeopardy principles.

The state and federal constitution double jeopardy clauses prohibit multiple

punishments for the same offense. U.S. CONST. amends. V, XIV; WASH. CONST. art. I, §

9; State v. Turner, 169 Wn.2d 448, 454, 238 P.3d 461 (2010). Conversely,

the double jeopardy clauses do not preclude the imposition of separate punishments for

different offenses. State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991).

As an initial proposition, jury instructions must adequately convey the law. State

v. Borsheim, 140 Wn. App. 357, 366, 165 P.3d 417 (2007). The instructions must render

the relevant legal standard manifestly apparent to the average juror. State v.

LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996), abrogated on other grounds by

State v. O’Hara, 167 Wn.2d 91, 217 P.3d 756 (2009); State v. Watkins, 136 Wn. App.

240, 241, 148 P.3d 1112 (2006).

The manifestly apparent principle extends to the need to inform the jury that it

cannot find the accused guilty of the same criminal act based on the same incident;

otherwise the accused may incur multiple punishments for the same act. The defendant’s

exposure to double jeopardy based on inadequate instructions can occur when the State

19 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

charges multiple counts of the same crime or when two crimes overlap in elements. State

v. Peña Fuentes, 179 Wn.2d 808, 318 P.3d 257 (2014); State v. Sanford, 15 Wn. App. 2d

748, 477 P.3d 72 (2020); State v. Land, 172 Wn. App. 593, 295 P.3d 782 (2013). In such

instances, the court should deliver a separate and distinct acts jury instruction.

Unfortunately, the WPICs contain no Washington Pattern Jury Instruction for separate

and distinct acts, which omission may result in the absence of an instruction during some

trials and many appellate decisions wherein the accused asserts a double jeopardy

challenge to convictions of the same crime multiple times.

One might conclude that a juror would automatically know, without specific

instructions, that, to convict the defendant of the same crime more than once, the jury

must unanimously find that distinct acts occurred. The majority bases its ruling in part on

this observation. Nevertheless, the law assumes otherwise. State v. Mutch, 171 Wn.2d

646, 254 P.3d 803 (2011) impliedly, if not expressly, directs this court to reject this

notion.

In sexual abuse cases, when the State alleges multiple counts within the same

charging period, the State need not elect particular acts associated with each count so

long as the evidence clearly delineates specific and distinct incidents of sexual abuse

during the charging period. State v. Hayes, 81 Wn. App. 425, 431, 914 P.2d 788 (1996).

If the jury instructions do not make it “manifestly apparent” to a jury that the State does

not seek multiple punishments for the same offense, the State “may” jeopardize the

20 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

defendant’s right to be free from double jeopardy. State v. Berg, 147 Wn. App. 923, 931,

198 P.3d 529 (2008), disapproved of by State v. Mutch, 171 Wn.2d 646, 254 P.3d 803

(2011); State v. Borsheim, 140 Wn. App. 357, 367 (2007). In the absence of such an

instruction, the jury might, consistent with its instructions, unanimously find that the

State proved only one act beyond a reasonable doubt and yet base multiple convictions on

proof of that single act. In re Personal Restraint of Delgado, 160 Wn. App. 898, 904,

251 P.3d 899 (2011); State v. Berg, 147 Wn. App. 923, 931-35 (2008).

Note that State v. Berg and State v. Borsheim employ the word “may” when

referencing the accused’s exposure to double jeopardy in the absence of a separate and

distinct acts jury instruction. Use of the precatory auxiliary verb “may” implies that

flawed jury instructions do not automatically inflict double jeopardy. If the trial court

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

charged and fails to instruct the jury that it must find “‘separate and distinct acts’” for

each count when the counts are identically charged, this court may still uphold the

convictions if events during the trial otherwise make “‘the need for a finding of ‘separate

and distinct acts’ manifestly apparent to the average juror.’” In re Personal Restraint of

Delgado, 160 Wn. App. 898, 904 (2011) (quoting State v. Borsheim, 140 Wn. App. 357,

367-68 (2007). One division of this court refers to this principle as the “manifestly

apparent test.” State v. Sanford, 15 Wn. App. 2d 748, 754 (2020).

21 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

A jury unanimity instruction does not protect against a double jeopardy violation,

unless the trial court instructed the jury that it must unanimously agree that a particular

act had been proven beyond a reasonable doubt for each count. State v. Mutch, 171

Wn.2d 646, 663 (2011); State v. Borsheim, 140 Wn. App. 357, 369 (2007). Oliver

Harmon’s jury instruction 3 informed the jury that it must unanimously find that the

defendant committed a “particular act,” but not a different, particular act for each count.

A jury instruction to “‘decide each count separately’” also does not protect against a

double jeopardy violation, because the instruction fails to inform the jury that each count

requires proof of a different act. State v. Mutch, 171 Wn.2d at 662-63 (2011).

In two Court of Appeals decisions, this court reversed and dismissed all but one of

the sexual assault convictions because of the absence of a separate and distinct acts jury

instruction. State v. Borsheim, 140 Wn. App. 357 (2007); State v. Berg, 147 Wn. App.

923 (2008). The remedy includes affirming one of the convictions since a jury unanimity

instruction insured that the jury unanimously agreed to one instance of assault. State v.

Borsheim, 140 Wn. App. 357, 371 (2007).

Remember that the Borsheim and Berg opinions only read that a missing separate

and distinct acts instruction “may” impose double jeopardy, not that the absence of the

instruction necessarily requires reversal. Nevertheless, this court, in both appeals,

omitted any analysis thereafter about whether the other jury instructions, the testimony,

and the argument of counsel otherwise rendered it manifestly apparent to the jury that it

22 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

needed to unanimously find separate and distinct acts in order to convict on more than

one count. The Washington Supreme Court later criticized this court for failing, in

Borsheim and Berg, to engage in an analysis of the record. State v. Mutch, 171 Wn.2d

646 (2011).

Flawed jury instructions that permit a jury to convict a defendant of multiple

counts based on a single act do not necessarily portend that the defendant received

multiple punishments for the same offense. State v. Mutch, 171 Wn.2d 646, 663 (2011).

Instead, imperfect instructions simply mean that the defendant potentially received

multiple punishments for the same offense. State v. Mutch, 171 Wn.2d 646, 663 (2011).

When reviewing allegations of double jeopardy, the reviewing court must not stop with a

reading of the jury instructions, but should review the entire record. State v. Mutch, 171

Wn.2d at 664; State v. Noltie, 116 Wn.2d 831, 848-49 (1991). No double jeopardy

violation results when the information, instructions, testimony, and argument clearly

demonstrate that the State was not seeking to impose multiple punishments for the same

offense. State v. Mutch, 171 Wn.2d at 664; State v. Hayes, 81 Wn. App. 425, 440 (1996).

Stated differently, in the absence of a separate and distinct acts instruction, the accused

suffers double jeopardy, if after considering the evidence, arguments, and instructions,

the record is not clear that it was “manifestly apparent” to the jury that the State did not

seek to impose multiple punishments for the same offense and that each count was based

on a separate act. State v. Mutch, 171 Wn.2d at 664 (2011); State v. Berg, 147 Wn. App.

23 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

923, 931 (2008). This latter rule echoes the harmless error principle. State v. Mutch, 171

Wn.2d at 664-65 (2011).

According to the Supreme Court, we must rigorously and strictly review the

record. State v. Mutch, 171 Wn.2d 646, 664 (2011). Because the Mutch court tied the

rigorous and strict review to whether the jury clearly understood its need to find separate

and distinct acts, I assume the meticulous review should be geared toward protecting the

accused’s constitutional right against double jeopardy. Oliver Harmon contends that the

failure to deliver a separate and distinct acts instruction demands vacation of more than

one convictions except in rare circumstances. The Supreme Court wrote, in State v.

Mutch, that Richard Mutch’s “case present[ed] a rare circumstance where, despite

deficient jury instructions, it is nevertheless manifestly apparent that the jury found him

guilty of five separate acts of rape to support five separate convictions.” State v. Mutch,

171 Wn.2d at 665 (2011). Thus, affirming all convictions in the absence of the separate

and distinct acts instruction should be the exception, not the rule.

The accused, in at least ten Washington decisions, raised a double jeopardy

contention similar to that raised by Oliver Harmon: State v. Peña Fuentes, 179 Wn.2d

808 (2014); State v. Mutch, 171 Wn.2d 646 (2011); State v. Noltie, 116 Wn.2d 831

(1991); State v. Sanford, 15 Wn. App. 2d 748 (2020); State v. Sage, 1 Wn. App. 2d 685,

407 P.3d 359 (2017); State v. Land, 172 Wn. App. 593 (2013); State v. Carter, 156 Wn.

App. 561, 234 P.3d 275 (2010); State v. Berg, 147 Wn. App. 923 (2008); State v.

24 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

Borsheim, 140 Wn. App. 357 (2007); State v. Ellis, 71 Wn. App. 400, 859 P.2d 632

(1993). Because of the length of this concurring/dissenting opinion, I discuss many of

the decisions in an appendix rather than the body of the opinion.

No Washington decision provides a checklist for a court to complete when

applying the manifestly apparent test. A reading of the Washington cases, however,

suggest the following factors as considerations when applying the test when the trial

court, as in Oliver Harmon’s trial, omitted a separate and distinct acts jury instruction.

The following factors, if present in a case, support rejecting double jeopardy:

 The defense did not challenge the number of incidents or claim that the

incidents overlapped.

 The defense asserted consent.

 The victim distinguished between dates when the respective criminal acts

occurred.

 The victim distinguished between places where the respective criminal acts

 The victim provided detailed descriptions of various sexual assaults or

described events surrounding the distinct assaults.

 The trial court delivered a jury unanimity instruction.

 The trial court delivered a separate to-convict instruction for each count.

25 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

 After each to-convict instruction, the court gave a corresponding unanimity

instruction requiring that “one particular act” of the charged crime must be

proved for each count.

 The number of incidents, to which the victim testified, correlated to the

number of to-convict instructions.

 Each to-convict instruction charged the jury that it must find that the

underlying act occurred on a day other than the day on which other counts

 The to-convict instructions gave a separate date of the crime for the

respective counts.

 During closing, the State elected separate acts for each count.

 The prosecuting attorney, during closing, told the jury that it must

unanimously find, in order to convict on one count, the defendant

committed an act distinct and separate from an act used to convict on

another count.

The following factors, if present in a case, support finding double jeopardy:

 The defense provided evidence of the victim being dishonest, manipulative,

or angry at the defendant.

 The victim provided inconsistent testimony.

26 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

 The victim could not distinguish one act from another or testified vaguely

as to the criminal acts.

 The victim did not identify times at which the criminal acts occurred.

 The victim did not identify places where the alleged acts occurred.

 The jury instructions did not identify specific dates for the respective

crimes.

 The to-convict instructions employed the same dates for the crime.

 The trial court gave only one to-convict instruction for multiple counts of

the same crime.

 The prosecution, during summation, spoke of criminal acts in generalities.

I now apply the manifestly apparent test. The following factors in the trial record

favor a ruling that Harmon suffered double jeopardy because the jury may have been

confused. The four to-convict instructions read the same as to the window of time for the

crime. Tammy testified to more alleged incidents of rape than that which the State

charged. Tammy testified to at least ten sexual acts when the State charged four counts

of rape and one count of communication with a minor. Tammy identified no dates on

which the sexual acts occurred. Contrary to the majority’s opinion, no court has

identified lengthy questioning with regard to separate acts to justify an adverse double

jeopardy ruling.

27 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

The following factors in Oliver Harmon’s trial record favor a ruling that it was

manifestly apparent to the jury that it must find a separate and distinct act for each

conviction. The trial court gave a separate to-convict instruction for each of the four

charges of rape of a child. The trial court also delivered a jury unanimity instruction and

a separate counts instruction.

Tammy identified places where the acts occurred, including a bed covered in

plastic inside a semi-truck, a spare room, and while playing hide-and-seek with Katrina

Earhart. For at least one assault, she identified an event surrounding the incident, the

event being Harmon telling her that her vagina was tight. She described one time when

Harmon only inserted his glans, and she suffered pain and bled. She described an orange,

magnum condom. She described differing acts, such as sexual intercourse, cunnilingus,

and masturbation. Harmon did not provide any motive for Tammy fabricating.

The State’s attorney explained to the jury how to analyze the multiple counts of

rape. Contrary to Oliver Harmon’s contention, the prosecutor tied at least two events to

two counts. Counsel spoke:

[T]he State is alleging four counts of rape of a child in the second degree and all four of those Counts are for that six month time period. So, this Jury Instruction outlines how you guys can go back and figure out okay, so [Tammy] said that there was this time that he put it in raw and it made her bleed. Okay, that can [be] one count. Okay, there’s another time where [Tammy] said he—sorry, where [Tammy] said that he put his right—put his finger in me where my baby— where a baby would came [sic] out of. That could be another count. So,

28 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part)

you need to figure out if there’s collectively four counts of sexual intercourse that fit that definition.

RP at 499-500 (emphasis added). This discourse, particularly the direction to collectively

decide if four counts of sexual intercourse occurred, suggests the jury must ground each

count in a separate incident.

I recognize numerous conflicting factors as to whether Oliver Harmon possibly or

likely suffered double jeopardy. I highlight that strong evidence from the owner of the

semi-trucks, among other witnesses, contravenes the credibility of Tammy. I further

underscore that Katrina Earhart testified that no sexual assaults occurred and that, even

though Earhart may be an interested witness, she was frequently in the vicinity of the

alleged acts and Tammy does not suggest that Earhart saw any assault. Finally, I resist

the temptation to take the most traveled path and affirm the conviction in a close call.

Instead, I return to the principle that this court should apply the manifestly apparent test

sparingly. For these reasons, I conclude that Harmon likely suffered double jeopardy.

I respectfully concur in part and dissent in part:

Fearing, J.

29 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part) Appendix

Appendix

In State v. Sanford, 15 Wn. App. 2d 748, 477 P.3d 72 (2020), the jury convicted Howard Sanford of first degree rape of a child, first degree child molestation, second degree rape of a child, and second degree child molestation. First degree child rape constitutes sexual intercourse with one under the age of twelve. One commits second degree child rape when performing sexual intercourse with a child twelve years old or above. Child molestation comprises sexual contact with a child. Conduct entailing child molestation and rape of a child can overlap when the action of the defendant in sexually touching the child eventually leads to penetration. First and second degree child molestation also maintain the same age difference as with rape. On appeal, Howard Sanford argued that his convictions violated double jeopardy principles. This court agreed that the rape and molestation convictions imposed double jeopardy because the trial court did not instruct the jury that its verdict must be based on separate and distinct acts for each count and the State did not make it manifestly apparent that the jury had to base the convictions on separate and distinct acts. The court remanded to vacate Sanford’s first degree child molestation and second degree child molestation convictions. The State charged Howard Sanford with first degree rape of a child and first degree child molestation for incidents that occurred before the victim turned 12 years old, and second degree rape of a child and second degree molestation for incidents that occurred after the victim turned 12 years old. The victim testified that Sanford put his penis in her mouth multiple times when she was nine and also when she was 10 or 11. She also testified that this conduct occurred almost daily after she turned 12 years old. Sanford also at times licked her vagina. The abuse continued until the victim turned 14. An advanced registered nurse practitioner, who interviewed the victim testified that the victim disclosed that Sanford's penis ‘was on her vagina and around her vagina lips.’” State v. Sanford, 15 Wn. App. 2d at 751 (2020). The victim also reported that, when she was age 10, Sanford ejaculated in her mouth. The trial court delivered a separate counts jury instruction and a jury unanimity instruction. Nevertheless, the trial court did not instruct the jury that a finding of guilty for each offense must be based on separate and distinct acts. During her closing argument, the prosecutor argued that the sexual intercourse supporting the child rape counts was Sanford putting his penis in the victim’s mouth. The prosecuting attorney later described the child molestation events, stating: “‘The

30 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part) Appendix

reason the defendant put his penis in her mouth was for sexual gratification.’” State v. Sanford, 15 Wn. App. 2d at 751 (2020). Thus, the prosecutor referred to the same conduct when seeking convictions for both rape and child molestation. The court noted that the defendant may not be separately punished for conduct that constitutes both child molestation and child rape. The without counts are the same in fact and in law because all the elements of the rape as proved are included in molestation, and the evidence required to support the conviction for molestation also necessarily proves the rape. When the jury could convict the defendant of both child rape and child molestation based on the same acts of oral with genital contact, the trial court must instruct the jury that its verdict must be based on separate and distinct acts for each charge. The failure to give such an instruction does not necessarily mean that multiple convictions violate double jeopardy. But the failure to give a separate and distinct acts instruction in this situation creates the potential that the defendant received multiple punishments for the same offense. Because of the possibility of a double jeopardy violation, the court, pursuant to State v. Mutch, reviewed the entire trial record. The only evidence presented at trial of both child rape and child molestation was that Sanford engaged in oral to genital contact involving his penis and the victim’s vagina. The State presented no evidence of vaginal penetration. In turn, the State failed to identify and differentiate specific acts that could form the basis for more than one conviction. The victim’s trial testimony did not differentiate between acts of rape and acts of molestation. The victim testified that Sanford put his penis in her mouth and licked her vagina multiple times for several years, all of which would constitute both rape and molestation. In discussing rape and sexual intercourse during closing argument, the prosecutor emphasized the evidence that Sanford almost daily put his penis in the victim’s mouth. She referenced the specific incident when Sanford ejaculated in the victim’s mouth when she was 10, which constituted first degree child rape. The prosecutor also noted that the last time the victim remembered being forced to perform oral sex was when she was 13, which constituted second degree rape. The prosecutor stated that the incident the nurse practitioner described when Sanford’s penis touched the victim’s vagina constituted child molestation. In rebuttal, the prosecutor did not attempt to distinguish between rape and molestation. Instead, she referred to both offenses together as sexual abuse. In other words, the prosecutor expressly relied on the same acts to support both the rape charges and the molestation charges. The court concluded that the jury instructions, when read with the record, essentially informed the jury that the same acts that could constitute rape also could constitute molestation.

31 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part) Appendix

In In State v. Sage, 1 Wn. App. 2d 685, 407 P.3d 359 (2017), a jury convicted Jonathan Sage of four counts of second degree rape of a child. Sage allegedly engaged in sexual acts with two young brothers. The State alleged two counts per child. The State alleged that both acts with the first boy occurred between September 1, 2011 and June 30, 2012, and the two acts with the second boy occurred between December 19, 2011 and December 19, 2012. The trial court delivered separate “‘to convict’” instructions for each of the four counts. After each to convict instruction, the court gave a corresponding unanimity instruction requiring that “‘one particular act’” of the charged crime must be proved for each count. State v. Sage, 1 Wn. App.2d at 693 (2017). The court also delivered a separate crimes jury instruction, but not an instruction that each count required a separate and distinct act. On appeal, the court relied heavily on State v. Mutch. The court recognized the defect in the jury instructions, but ruled that Jonathan Sage did not suffer double jeopardy because the State clearly elected separate acts for each count in closing argument, testimony supported those separate acts, and the court gave a unanimity instruction. This court emphasized that the trial court delivered a separate to-convict instruction for each count. During testimony, one the boys detailed the various places where Sage performed intercourse with him. In closing argument, the State identified count 1 as the first time that the boy had intercourse with Sage. The State then described sex in the garage as the potential count 2. The prosecuting attorney also listed places testified to by the second child as the basis for counts 3 and 4. The second boy had also testified to events surrounding various acts and the location of the acts. These factors made it manifestly apparent to the jury that the State was not seeking multiple punishments against Sage for the same act.

In State v. Peña Fuentes, 179 Wn.2d 808, 318 P.3d 257 (2014), the State convicted Jorge Peña Fuentes of one count of child rape and two counts of child molestation. The trial court delivered no separate and distinct acts jury instruction. The instructions for molestation, however, required “sexual contact” and also defined sexual intercourse for purposes of rape to include “sexual contact” involving the sex organs of one person and the mouth of another. Therefore, the jury could have convicted the defendant of rape based on the same incidents that formed the basis of the molestation convictions. During trial, the defense did not challenge the number of incidents or whether they overlapped, but rather chose the strategy of attacking the victim’s credibility. In closing

32 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part) Appendix

the prosecutor identified two specific acts that supported the rape conviction and clearly divided the defendant’s behaviors between those acts involving penetration and other inappropriate acts that constituted molestation. The Supreme Court emphasized the clarity of the State’s attorney’s jury summation. The high court wrote: It is manifestly apparent that the convictions were based on separate acts because the prosecution made a point to clearly distinguish between the acts that would constitute rape of a child and those that would constitute child molestation.

State v. Peña Fuentes, 179 Wn.2d at 825 (2014).

In State v. Land, 172 Wn. App. 593, 295 P.3d 782 (2013), the jury convicted Clifford Land of one count of child rape and one count of child molestation involving the same child and charging period. Against the State’s argument, the court ruled that the manifestly apparent test applied to cases when the two convictions are for different offenses that do not have identical elements if the two offenses can arise from the same course of conduct. The victim testified that that Land inserted his finger inside her vagina on multiple occasions, touched her vaginal region without penetration, and touched her breasts. This court agreed with Land that the trial court should have given and failed to give a separate and distinct acts jury instruction. But the court concluded that it was manifestly apparent the State was not seeking to impose multiple punishments for the same offense. The Court of Appeals highlighted that the victim did not testify that Land’s mouth came in contact with her sex organs. She testified that Land touched her breasts and “lower part,” both over and under her clothing, on more than one occasion. The testimony supported Land’s conviction for child molestation in the third degree. The testimony did not support a conviction for rape of a child, because rape of a child requires proof of sexual intercourse. In addition, the prosecutor’s argument dispelled the possibility that jurors would view the victim’s vague testimony that Land kissed her on her “lower half” as proof of rape. The prosecutor highlighted the victim’s testimony about penetration as the crucial element proving rape. Finally, the to-convict instructions, like the information, clearly delineated the two counts. The court reasoned that delineation distinguished Land’s case from State v. Borsheim, wherein the to-convict instruction encompassed four identical counts in a single instruction.

33 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part) Appendix

In State v. Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011), a jury convicted Richard Mutch of five counts of second degree rape. The jury instructions failed to include a direction that each count must be based on a separate and distinct criminal act. The “to convict” instructions for each rape count read the same, including that the State must prove the crime occurred between February 2 and 3, 1994. The court also delivered a separate counts instruction. The Washington Supreme Court agreed with the Court of Appeals, in State v. Borsheim, that the separate crime instruction does not save the prosecution from double jeopardy because the instruction still fails to inform the jury that each crime required proof of a different act. The jury unanimity instruction also did not protect against a double jeopardy violation. The Supreme Court observed that the Court of Appeals, in State v. Berg and State v. Carter, recognized the possibility of a double jeopardy breach, not the inevitability of double jeopardy when the trial court fails to deliver a separate and distinct acts instruction. Nevertheless, in both decisions, the court failed to explore beyond the jury instructions whether in fact the defendant suffered double jeopardy. The Washington Supreme Court concluded that Richard Mutch’s prosecution presented a “rare circumstance” when, despite deficient jury instructions, the court could conclude that that the jury found him guilty of five separate acts of rape to support the five separate convictions. State v. Mutch, 171 Wn.2d 646, 665 (2011). The high court was convinced beyond a reasonable doubt, based on the entire record, that the jury instructions did not effect a double jeopardy violation. The victim testified to five separate episodes of rape. In turn, the trial court delivered five to-convict instructions alternatively for first and second degree rape. During its cross-examination of the victim, the defense did not challenge her account of the number of sexual acts, but rather focused on her relationship and previous interactions with Mutch. A detective testified that Mutch admitted to engaging in multiple sexual acts with the victim. The State discussed all five episodes of rape in its arguments. The defense argued consent.

In State v. Carter, 156 Wn. App. 561, 234 P.3d 275 (2010), disapproved of by State v. Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011), Germaine Carter appealed his convictions for four counts of first degree child rape. Among other arguments, Carter asserted that the trial court’s failure to give a separate and distinct acts jury instruction exposed him to double jeopardy. The court agreed and remanded with instructions to dismiss three of the four rape convictions.

34 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part) Appendix

Germaine Carter’s daughter stated that, in 2003 and 2004, while she lived with her father, he entered her room at night between forty and fifty times and raped her. The daughter was then six and seven years old. The trial court instructed the jury, giving them four nearly identical “to convict” instructions, a unanimity instruction, and an instruction stating, “A separate crime is charged in each count.” Neither the prosecutor nor Carter requested a jury instruction requiring that the jury find a “separate and distinct act” for each count. The court noted that jury instructions “must make the relevant legal standard manifestly apparent to the average juror.” State v. Carter, 156 Wn. App. at 565 (2010) (quoting State v. Borsheim, 140 Wn. App. 357, 366 (2007)). The State argued that, because the charging documents, evidence presented, jury instructions and closing arguments all made clear that each count required proof of a separate act, Carter was not in danger of double jeopardy. The court followed State v. Borsheim without reviewing the entire trial record. Although the Supreme Court, in State v. Mutch, disapproved of the ruling in Carter, the ruling might still stand, despite such disapprobation, because the child provided few details of the criminal acts.

In State v. Berg, 147 Wn. App. 923, 198 P.3d 529 (2008), disapproved of by State v. Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011), the State convicted Edward Berg with two counts of child molestation of his stepdaughter. The court gave two separate, but nearly identical, to-convict instructions, a standard unanimity instruction, and a separate counts instruction. The to-convict instructions employed the same dates for the crime. This court found a double jeopardy violation because the trial court did not give a “separate and distinct act” instruction or otherwise require that the jury base each conviction of third degree child molestation on a “separate and distinct” underlying event. The victim presented inconsistent testimony at trial. She claimed that the sexual contact happened only on the living room couch, but a friend testified that she disclosed the contact happened in her downstairs bedroom. Edward Berg claimed that the stepchild acted manipulative and unhappy at home, so she framed him by sleeping with him on the couch and by falsely accused him of raping and molesting her. The mother of the alleged victim and another occupant in the home testified that the child frequently crawled onto the couch to sleep with Berg. The mother also testified that the child often ran away from home and did not want to come home. The mother described her daughter as emotionally and physically insecure. The mother testified to the child being manipulative and a danger to the stability of the home. The mother also testified that one of the acts alleged

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by the victim could not have occurred in the daughter’s bedroom because fabric pieces covered the bed and the pieces remained undisturbed. On appeal, the State argued that the jury sufficiently understood that different proof was required for each count. The State also asserted that any instructional error was harmless. The court, while relying on In State v. Borsheim, agreed with Edward Berg. The court rejected arguments accepted by later courts. The State argued that Berg was adequately protected from double jeopardy because the prosecutor presented evidence of separate acts to support both convictions and explained in closing that the jury had to agree that two particular acts occurred. The court answered that the double jeopardy violation resulted from omitted language in the instructions, not the State’s proof or the prosecutor’s arguments. The State offered no authority for the proposition that evidence or argument presented at trial may remedy a double jeopardy violation caused by deficient instructions. The State argued that the court’s unanimity instruction adequately protected Berg from double jeopardy because it contained the language, “[t]o convict the defendant on any count of child molestation in the third degree, one particular act of child molestation in the third degree must be proved beyond a reasonable doubt.” State v. Berg, 147 Wn. App. 923, 934-35 (2008) (emphasis added). The court responded that the instruction did not ensure that a separate act be used to convict on all counts.

Oliver Harmon particular relies on State v. Borsheim, 140 Wn. App. 357 (2007). The State charged Bryan Borsheim with four counts of first degree rape of a child. As in Oliver Harmon’s prosecution, the State did not, in the information or the jury instructions, identify a distinct date for each charge. Instead, the State alleged that each act occurred between September 1, 2000 and September 8, 2003. The trial court delivered a separate counts instructions, and a jury unanimity instruction similar to Oliver Harmon’s jury instruction 3. The trial court also gave one to-convict instruction for all four counts. On appeal, Bryan Borsheim argued that the jury instructions violated his right to jury unanimity and protection against double jeopardy. This court rejected his jury unanimity argument, but accepted his double jeopardy contention. The court reversed three of Bryan Borsheim’s four convictions. The court reasoned that the various jury instructions exposed Bryan Borsheim to multiple punishments for the same offense and so caused double jeopardy. The court emphasized that the one to-convict instruction referenced all four counts, a difference from Oliver Harmon’s jury instructions that included a to-convict instruction for each separate count. Nevertheless, the Borsheim court did not consider the enfolding of all charges into one to-convict instruction essential to its ruling.

36 No. 37415-7-III State v. Harmon (concurring in part, dissenting in part) Appendix

In State v. Ellis, 71 Wn. App. 400, 859 P.2d 632 (1993), which had similar separate counts and jury unanimity instructions, this court declined to find a double jeopardy violation. Each to-convict instruction charged the jury that it must find that the underlying act occurred on a day other than the day on which other counts occurred. Such language is missing from Oliver Harmon’s jury instructions. Jerry Ellis’ trial court added an instruction that read: “‘Although twelve of you need not agree that all the acts have been proved, you must unanimously agree that at least one particular act has been proved beyond a reasonable doubt for each count.”’ State v. Ellis, 71 Wn. App. at 402.

In State v. Noltie, 116 Wn.2d 831 (1991), the jury convicted Frederic Noltie of one count of statutory rape and one count of indecent liberties. On appeal, Noltie complained about the information, not jury instructions. Noltie criticized the information as charging him with two counts of statutory rape without sufficiently distinguishing the two alleged criminal acts. The Supreme Court rejected the argument because the information, instructions, testimony, and jury argument established that the State charged Noltie with two different instances of statutory rape and did not seek to impose multiple punishments for the same offense. The court cited the principles that, when reviewing allegations of double jeopardy, an appellate court may review the entire trial record. The count emphasized that the trial court gave separate “‘to convict’” instructions relating to the two counts of statutory rape. The instruction for the second count read, in part, that the jury must find that Noltie engaged in sexual intercourse in an incident separate from and in addition to any incident that the State may have proved in court one. During closing argument, the prosecuting attorney recognized the jury instructions provided only the “bare bones” of the elements of each count. State v. Noltie, 116 Wn.2d at 849 (1991). Nevertheless, the State’s attorney stressed that the jury must find that Noltie engaged in sex with the child twice to convict on the second charge.