I
~ i I I FILED SEPTEMBER 1, 2015
I i In the Office of the Clerk of Cou rt W A State Court of Appeals, Division III
I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
I I STATE OF WASHINGTON,
Respondent, ) ) ) No. 32053-7-111
) v. ) ) ROBERT L. HUTSELL, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. - Robert Hutsell appeals his convictions of first degree child
rape and first degree child molestation, contending that the evidence suggested several
acts of rape or molestation against eight-year-old E.L., yet the State did not elect a single
act as the basis for each charge nor was the jury given a Petrich l instruction. He claims
that his Sixth Amendment right to a unanimous jury verdict was violated as a result. In a
pro se statement of additional grounds, Mr. Hutsell assigns four errors.
As described by the witnesses, the several criminal acts supported by the evidence
were all part of a continuous course of conduct, with the result that no election or Petrich
instruction was required. For that reason, and because Mr. Hutsell raises no viable
challenge in his statement of additional grounds, we affirm.
1 State v. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). State v. Hutsell No. 32053-7-III
FACTS AND PROCEDURAL BACKGROUND
In February 2011, Robert Hutsell offered to babysit the four children of a couple
with whom he was friends, so that the couple could enjoy a night out. It was agreed that
Mr. Hutsell would pick up the children from their home, take them to his home to spend
the night, and return them the following day. During the evening of the overnight, the
two older children-both boys-played video games in Mr. Hutsell's living room. The
two girls, eight-year-old E.L. and her younger sister, were in Mr. Hutsell's bedroom,
where E.L. played a computer game on Mr. Hutsell's bed while her sister and Mr. Hutsell
watched.
E.L. was originally playing the game cross-legged, but eventually rolled onto her
stomach to play, after which Mr. Hutsell, who was sitting beside her, began to rub her
back. When E.L.'s sister, M.L., fell asleep, Mr. Hutsell moved M.L. to the top of the
bed, returned to E.L. ' s side and continued rubbing her back. Then, as later recounted by
E.L., Mr. Hutsell "started moving closer down" to her "bottom." Report of Proceedings
(RP) at 117. After about 10 minutes, he removed her pajama pants and then her
underwear, rolled her over, and sexually assaulted her. Evidence was later presented at
trial that he licked her in her "front" "private area" at a minimum, RP at 323; E.L. also
told a forensic interviewer that Mr. Hutsell had also put his tongue inside her vagina,
touched her vagina with his fingers, and put his penis inside her "butt." Ex. 3, at 22
(transcript of forensic interview (Apr. 4, 2011 )).
State v. Hutsell No. 32053-7-III
The molestation ended when E.L. told Mr. Hutsell that she had to go to the
bathroom. She picked up her clothes, took them into the bathroom with her, got dressed,
and then went into the living room with her brothers, where she stayed for the rest of the
night.
E.L. told her brother, D.L., that Mr. Hutsell had licked her private parts, but
neither of them initially mentioned anything about the incident to their parents upon
being returned home by Mr. Hutsell. According to E.L., she was "scared" that "it was
going to be [her] fault." RP at 122.
Weeks later, E.L.'s father was speaking on the telephone with Mr. Hutsell, when
D.L.-hearing the conversation-mentioned to his mother that E.L. had accused Mr.
Hutsell of something. When asked by her mother what had happened, E.L. disclosed that
Mr. Hutsell had "licked her and touched her in her private area." RP at 397. E.L.'s
mother immediately told E.L.'s father to get off the phone and, when he did, she called
the police. Mr. Hutsell called E.L.'s father back shortly thereafter to continue their
conversation and ask about what had disrupted their call, and learned of E.L. ' s
accusations.
The police investigation included an interview of E.L. by Karen Winston, a
forensic child interviewer. Ms. Winston used a body diagram during the questioning to
facilitate a description of what had happened. E.L. told Ms. Winston that Mr. Hutsell
"kept putting his tongue inside [her] vagina." Ex. 3, at 20. E.L. also told Ms. Winston
State v. Hutsell No. 32053-7-111
that Mr. Hutsell had touched her with his finger and "his private part." Id. at 21. Upon
further questioning, E.L. reportedly told Ms. Winston that Mr. Hutsell's finger had gone
to "the same place" as his tongue; Ms. Winston maintains that E.L. further confirmed this
by pointing to the "crotch area on the body diagram." Id. at 22; RP at 165. When
questioned about where Mr. Hutsell's "private part" touched her, Ms. Winston says that
E.L. pointed to the buttocks on the female body diagram and the penis on the male body
diagram. RP at 166. E.L. explained Mr. Hutsell "made [her] stick out [her] butt." Ex. 3,
at 25.
Unbeknownst to E.L. 's parents, Mr. Hutsell had two prior sex offenses-one for
statutory rape and another for rape of a child in the first degree-and he had violated his
probation by being alone with E.L. and her siblings. After learning from E.L.'s father of
E.L. 's allegations, Mr. Hutsell called his department of corrections supervising officer
and reported that he had babysat children without a chaperone, in violation of his
probation. He was arrested for the violation, after which Detective Paul Lebsock
interviewed him at the Benton County JaiL According to Detective Lebsock, Mr. Hutsell
admitted to having removed E.L's pajama pants and underwear and having licked her
vagina, but denied any other touching with his tongue, finger, or penis.
The State charged Mr. Hutsell with one count each of child rape in the first degree
and child molestation in the first degree.
At trial, E.L. testified that Mr. Hutsell licked her "in [her] private area." RP at
323. When asked to clarify, she explained it was her "front area" that was licked. Id.
E.L.'s brother testified that E.L. told him that Mr. Hutsell "licked her private." RP at
346. E.L. 's mother testified that E.L. disclosed to her that Mr. Hutsell "licked her and
touched her in her private area" about a month after it happened. RP at 397. Detective
Lebsock testified to his jailhouse interview of Mr. Hutsell. Ms. Winston testified to the
substance of her interview with E.L., and a videotape of the interview was played for the
JUry.
In the defense case, investigators engaged by Mr. Hutsell testified that during their
interview of E.L., she did not allege any sexual contact other than being licked on her
vagina. A report of a medical examination of E.L. undertaken in connection with the
investigation stated, "[h]ymenal tissue intact. No obvious transections or scars. Anus
without dilation or scars. Skin and extremities within normal limits." RP at 555.
Finally, Mr.
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I
~ i I I FILED SEPTEMBER 1, 2015
I i In the Office of the Clerk of Cou rt W A State Court of Appeals, Division III
I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
I I STATE OF WASHINGTON,
Respondent, ) ) ) No. 32053-7-111
) v. ) ) ROBERT L. HUTSELL, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. - Robert Hutsell appeals his convictions of first degree child
rape and first degree child molestation, contending that the evidence suggested several
acts of rape or molestation against eight-year-old E.L., yet the State did not elect a single
act as the basis for each charge nor was the jury given a Petrich l instruction. He claims
that his Sixth Amendment right to a unanimous jury verdict was violated as a result. In a
pro se statement of additional grounds, Mr. Hutsell assigns four errors.
As described by the witnesses, the several criminal acts supported by the evidence
were all part of a continuous course of conduct, with the result that no election or Petrich
instruction was required. For that reason, and because Mr. Hutsell raises no viable
challenge in his statement of additional grounds, we affirm.
1 State v. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988). State v. Hutsell No. 32053-7-III
FACTS AND PROCEDURAL BACKGROUND
In February 2011, Robert Hutsell offered to babysit the four children of a couple
with whom he was friends, so that the couple could enjoy a night out. It was agreed that
Mr. Hutsell would pick up the children from their home, take them to his home to spend
the night, and return them the following day. During the evening of the overnight, the
two older children-both boys-played video games in Mr. Hutsell's living room. The
two girls, eight-year-old E.L. and her younger sister, were in Mr. Hutsell's bedroom,
where E.L. played a computer game on Mr. Hutsell's bed while her sister and Mr. Hutsell
watched.
E.L. was originally playing the game cross-legged, but eventually rolled onto her
stomach to play, after which Mr. Hutsell, who was sitting beside her, began to rub her
back. When E.L.'s sister, M.L., fell asleep, Mr. Hutsell moved M.L. to the top of the
bed, returned to E.L. ' s side and continued rubbing her back. Then, as later recounted by
E.L., Mr. Hutsell "started moving closer down" to her "bottom." Report of Proceedings
(RP) at 117. After about 10 minutes, he removed her pajama pants and then her
underwear, rolled her over, and sexually assaulted her. Evidence was later presented at
trial that he licked her in her "front" "private area" at a minimum, RP at 323; E.L. also
told a forensic interviewer that Mr. Hutsell had also put his tongue inside her vagina,
touched her vagina with his fingers, and put his penis inside her "butt." Ex. 3, at 22
(transcript of forensic interview (Apr. 4, 2011 )).
State v. Hutsell No. 32053-7-III
The molestation ended when E.L. told Mr. Hutsell that she had to go to the
bathroom. She picked up her clothes, took them into the bathroom with her, got dressed,
and then went into the living room with her brothers, where she stayed for the rest of the
night.
E.L. told her brother, D.L., that Mr. Hutsell had licked her private parts, but
neither of them initially mentioned anything about the incident to their parents upon
being returned home by Mr. Hutsell. According to E.L., she was "scared" that "it was
going to be [her] fault." RP at 122.
Weeks later, E.L.'s father was speaking on the telephone with Mr. Hutsell, when
D.L.-hearing the conversation-mentioned to his mother that E.L. had accused Mr.
Hutsell of something. When asked by her mother what had happened, E.L. disclosed that
Mr. Hutsell had "licked her and touched her in her private area." RP at 397. E.L.'s
mother immediately told E.L.'s father to get off the phone and, when he did, she called
the police. Mr. Hutsell called E.L.'s father back shortly thereafter to continue their
conversation and ask about what had disrupted their call, and learned of E.L. ' s
accusations.
The police investigation included an interview of E.L. by Karen Winston, a
forensic child interviewer. Ms. Winston used a body diagram during the questioning to
facilitate a description of what had happened. E.L. told Ms. Winston that Mr. Hutsell
"kept putting his tongue inside [her] vagina." Ex. 3, at 20. E.L. also told Ms. Winston
State v. Hutsell No. 32053-7-111
that Mr. Hutsell had touched her with his finger and "his private part." Id. at 21. Upon
further questioning, E.L. reportedly told Ms. Winston that Mr. Hutsell's finger had gone
to "the same place" as his tongue; Ms. Winston maintains that E.L. further confirmed this
by pointing to the "crotch area on the body diagram." Id. at 22; RP at 165. When
questioned about where Mr. Hutsell's "private part" touched her, Ms. Winston says that
E.L. pointed to the buttocks on the female body diagram and the penis on the male body
diagram. RP at 166. E.L. explained Mr. Hutsell "made [her] stick out [her] butt." Ex. 3,
at 25.
Unbeknownst to E.L. 's parents, Mr. Hutsell had two prior sex offenses-one for
statutory rape and another for rape of a child in the first degree-and he had violated his
probation by being alone with E.L. and her siblings. After learning from E.L.'s father of
E.L. 's allegations, Mr. Hutsell called his department of corrections supervising officer
and reported that he had babysat children without a chaperone, in violation of his
probation. He was arrested for the violation, after which Detective Paul Lebsock
interviewed him at the Benton County JaiL According to Detective Lebsock, Mr. Hutsell
admitted to having removed E.L's pajama pants and underwear and having licked her
vagina, but denied any other touching with his tongue, finger, or penis.
The State charged Mr. Hutsell with one count each of child rape in the first degree
and child molestation in the first degree.
At trial, E.L. testified that Mr. Hutsell licked her "in [her] private area." RP at
323. When asked to clarify, she explained it was her "front area" that was licked. Id.
E.L.'s brother testified that E.L. told him that Mr. Hutsell "licked her private." RP at
346. E.L. 's mother testified that E.L. disclosed to her that Mr. Hutsell "licked her and
touched her in her private area" about a month after it happened. RP at 397. Detective
Lebsock testified to his jailhouse interview of Mr. Hutsell. Ms. Winston testified to the
substance of her interview with E.L., and a videotape of the interview was played for the
JUry.
In the defense case, investigators engaged by Mr. Hutsell testified that during their
interview of E.L., she did not allege any sexual contact other than being licked on her
vagina. A report of a medical examination of E.L. undertaken in connection with the
investigation stated, "[h]ymenal tissue intact. No obvious transections or scars. Anus
without dilation or scars. Skin and extremities within normal limits." RP at 555.
Finally, Mr. Hutsell testified on his own behalf and denied having made any admission to
Detective Lebsock and denied any sexual contact with E.L.
The jury found Mr. Hutsell guilty of both counts. In light of his two prior
offenses, he was sentenced to life in prison without parole. He appeals.
ANALYSIS
Mr. Hutsell contends that because the State presented evidence of several sexual
acts that could constitute the charged crimes but did not elect which acts it was relying
on, nor did the Court provide the jury with a Petrich instruction, he was denied his Sixth
Amendment right to a unanimous jury verdict. In response, the State argues that each of
the acts described was part of a continuing course of conduct.
"In Washington, a defendant may be convicted only when a unanimous jury
concludes that the criminal act charged in the infonnation has been committed." Petrich,
101 Wn.2d at 569. "When the evidence indicates that several distinct criminal acts have
been committed, but defendant is charged with only one count of criminal conduct, jury
unanimity must be protected." Id. at 572. To adequately protect jury unanimity, either
the State must elect the specific act it is relying on to constitute the crime charged or the
court must give the jury a "Petrich" instruction, telling them that all "12 jurors must
agree that the same underlying criminal act has been proved beyond a reasonable doubt."
Id. "[F]ailure to follow one of these options is error, violative of a defendant's state
constitutional right to a unanimous jury verdict and United States constitutional right to a
jury trial." Kitchen, 110 Wn. 2d 403,409, 756 P.2d 105 (1988), abrogated in part on
other grounds by In re Pers. Restraint ofStockwell, 179 Wn.2d 588, 316 P.3d 1007
(2014).
Ifjury unanimity is not assured through election or instruction, the result can be
sustained on the basis that the error was harmless only if the constitutional harmless error
standard is satisfied. "[T]he error will be deemed harmless only if no rational trier of fact
could have entertained a reasonable doubt that each incident established the crime beyond
a reasonable doubt." Kitchen, 110 Wn. 2d at 406.
The requirement for either an election or a Petrich instruction applies only when
the State presents evidence of several distinct criminal acts. State v. Handran, 113
Wn.2d 11, 17, 775 P.2d 453 (1989). "It does not apply where the evidence indicates a
'continuing course of conduct.'" Id. (quoting Petrich, 101 Wn.2d at 571). The State
contends in this case that Mr. Hutsell's sexual acts constituted a continuing course of
conduct.
Generally, evidence that the charged conduct occurred at different times and
places tends to show that several distinct acts occurred rather than a continuing course of
conduct, whereas evidence that a defendant engaged in a series of actions intended to
secure the same objective supports the characterization of those actions as a continuing
course of conduct rather than as distinct acts. State v. Fiallo-Lopez, 78 Wn. App. 717,
724, 899 P.2d 1294 (1995) (citing Handran, 113 Wn.2d at 17). In determining whether
an act is one of several distinct criminal acts or part of a continuing course of conduct
'''the facts must be evaluated in a commonsense manner.'" Handran, 113 Wn.2d at 17
(quoting Petrich, 101 Wn.2d at 571).
Here, the constitutional harmless error standard would not be satisfied, because
E.L.'s allegations as reported to others, reflected in the videotaped interview, and
described in her trial testimony, were somewhat imprecise (despite the State's efforts to
State v. Hutsell No. 32053-7-II1
obtain specifics) and were not entirely consistent. As Mr. Hutsell argues, the evidence,
while sufficient to sustain the jury's verdict, fell short of that required to say that every
rational juror would have found every act alleged beyond a reasonable doubt.
We agree with the State, however, that it charged and prosecuted the counts as
involving a continuing course of conduct and that its evidence supported that approach,
with the result that no election or Petrich instruction was required. At trial, E.L.
described all of the conduct as occurring in Mr. Hutsell's bedroom, beginning after M.L.
fell asleep and was moved by Mr. Hutsell to the top of the bed:
Q Did the rubbing of the back ever stop?
A Yes, eventually.
Q What happened after that?
A He pulled off my pants.
Q Okay. Now, you said you were sitting criss-cross applesauce. Were
you still sitting criss-cross applesauce?
A I was laying on my belly.
Q Do you remember what you were wearing?
A My pajamas.
Q And do you remember what kind of pajamas?
A Hannah Montana.
Q And sometimes pajamas can be like a long gown or it could be like a
bottom pants and top. Do you remember which kind?
A Bottom pants and top.
Q And so you said your pants were pulled down and you were on your
A Belly.
RP at 117. She testified that after pulling off her pajama pants, Mr. Hutsell pulled off her
underwear. RP at 118. She then described the sexual contact and how it ended:
Q What happened next?
A That's when he started licking me.
State v. Hutsell No. 32053 7-II1 M
Q Okay. Did you get licked on parts of your body?
A Yes.
Q What part?
A My private area.
Q Lots of people say "private area" for lots of different areas. Was it a
specific private area? What was the specific private area?
A My bottom private area.
Q And you were on your stomach?
A Myback.
Q On your back. And about how long did that occur?
A I don't remember.
Q Did it end?
Q What happened when it ended?
A I told him I had to go to the bathroom.
Q What did you do?
A I took my clothes and went to the bathroom, put them back on, and
went out into the living[ rloom.
RP at 119-20.
E.L., 11 years old by the time of trial, could not place a time frame on the conduct,
but closer questioning revealed that it was uninterrupted and that it occurred during a
time frame after her younger sister fell asleep and while her older brothers were still up
and playing video games:
Q When you got up from the bed, were you able to find your clothes? A Yes. Q Did you leave and put them on or did you put them on and leave? A I grabbed them and left. Q Did you go right to the bathroom? A Yes. Q How far away was the bathroom? A I think it was right across the hall.
Q Where did you go next?
A Then I went out into the living[ r loom.
Q Who was out in the living[ r]oom?
A My brothers.
Q Were they asleep or still playing video games?
A They were still playing video games.
Q What did do you [sic] out there?
A I went to the couch.
Q Did you watch for a while?
Q Did you ever play the video game out in the living room again?
A No.
Q Did everybody go to sleep at some point?
Q How did that happen?
A I fell asleep first and then my brothers fell asleep.
Q And did you sleep through the night or ever get up to go to the
bathroom?
A I slept through the night.
RP at 120-21.
All of the acts happened on a single night, in Mr. Hutsell's bedroom, and
according to E.L.'s recount were uninterrupted until they ended when she told Mr.
Hutsell she needed to go to the bathroom and moved into the living room and the safety
of her brothers' company. It is reasonable to infer from surrounding events that the acts
occurred over a short period of time. All of Mr. Hutsell's actions were of a type to secure
the same objective: sexual gratification.
While one could parse E.L.' s original description of events to Ms. Winston into
multiple acts that would separately support a guilty verdict for rape of a child in the first
degree,2 and first degree child molestation,3 a commonsense analysis supports the State's
characterization and prosecution of the criminal conduct as a continuous course of action.
As a result, although the State did not elect which act it was relying on to support the
charges against Mr. Hutsell, the court was not required to give the jury a Petrich
unanimity instruction. The trial court did not err.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds for review (SAG), Mr. Hutsell raises
four.
1. Failure to follow "protocol" duringjailhouse interview. Mr. Hutsell argues
that Detective Lebsock did not "follow protocol" because he neither videotaped his
The child rape charge required the State to prove that Mr. Hutsell had sexual 2 intercourse with E.L. RCW 9A.44.01O(l) provides that "sexual intercourse":
(a) has its ordinary meaning and occurs upon any penetration, however slight, and (b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and (c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
3 The child molestation charge required proof of "sexual contact." "Sexual contact means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party." RCW 9A.44.0 10(2).
interview of Mr. Hutsell nor did he have Mr. Hutsell write out a statement, and either
means was feasible at the jail. SAG at 2. Mr. Hutsell had the opportunity to cross-
examine Detective Lebsock about the fact that he did not avail himself of these other
means of procuring a statement from Mr. Hutsell and argue this shortcoming to the jury.
Even if not the best record of a confession, statements by a criminal defendant are
admissible at his trial as admissions of a party under ER 801 (d)(2)(i). It is for the fact
finder to determine the credibility of witnesses and the persuasiveness of evidence. In re
Kuvara, 97 Wn.2d 743, 747,649 P.2d 834 (1982). The court did not err in admitting the
detective's testimony to the confession.
2. & 3. Ineffective assistance ofcounsel: failure to obtain a child interviewer and
failure to impeach witnesses. Mr. Hutsell next complains that his trial lawyer failed to
hire a child interviewer for the defense and that he failed to impeach witnesses. A well
settled standard applies to claims of ineffective assistance of counsel. To prevail on a
claim of ineffective assistance of counsel, a defendant must show both that his counsel
erred and that the error was so significant, in light of the entire trial record, that it
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). When a claim can be disposed of on one ground, a
reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140
Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
To demonstrate that he was prejudiced by his lawyer's failure to call a child
interviewer for the defense, Mr. Hutsell must show, at a minimum, that a supportive
witness existed. Nothing in the record indicates that one did. If Mr. Hutsell has evidence
of the availability of such a witness, his remedy is to file a personal restraint petition
supported by that evidence from outside our record. "Typically, where the record does
not support an argument or there is evidence outside of the record, the remedy is to bring
a personal restraint petition with evidence in support of the claim." State v. Turner, 167
Wn. App. 871, 881, 275 PJd 356 (2012).
Mr. Hutsell challenges his lawyer's failure to impeach witnesses but without
saying which witnesses, or how they could have been impeached. Although Mr. Hutsell
is not required to cite to the record in a SAG, he must inform the court of the nature and
occurrence of alleged errors. RAP 10.1 O(c). Here, too, if there is nothing in the record to
demonstrate that a witness could have been impeached, then Mr. Hutsell will have to
pursue this claim, if at all, through a personal restraint petition demonstrating prejudice.
4. Failure to sequester the jury. Mr. Hutsell complains that the jury was allowed
to return home each night following trial, creating a risk of media exposure despite the
fact that he faced the prospect of life in confinement without the possibility of parole.
We find nothing in searching the record that indicates that sequestration was ever
requested or, for that matter, that there was concern about media interest in Mr. Hutsell's
case. We will not consider arguments made for the first time on appeal. RAP 2.S(a).
Affirmed.
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.
duLLo Siddoway,c.]. ~, Ie~ WE CONCUR:
Brown, J.
Lawrence-Berrey, J.