State v. Holland

891 P.2d 49, 77 Wash. App. 420
CourtCourt of Appeals of Washington
DecidedApril 4, 1995
Docket13176-9-III
StatusPublished
Cited by23 cases

This text of 891 P.2d 49 (State v. Holland) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holland, 891 P.2d 49, 77 Wash. App. 420 (Wash. Ct. App. 1995).

Opinions

Sweeney, A.C.J.

Paul Wesley Holland appeals his conviction on two counts of first degree child molestation. He contends the information charging him with the crimes was deficient; he also contends the trial court erred in permitting a witness to testify as an expert, in admitting testimony without adequate scientific basis, and in instructing the jury. We reverse and remand for trial.

[422]*422Facts and Procedural Background

Regina Swisher met Mr. Holland in September of 1991. Later that month he moved in with her and stayed for about 1 month, moving out during the first week of November. Ms. Swisher’s daughter, age 6, and son, age 8, lived with her. During the time Mr. Holland lived in the home, he was at times alone with the children.

The evening after Mr. Holland moved out, Ms. Swisher’s daughter volunteered to a babysitter that he had touched her private parts. She later repeated the allegation to her mother. At some point, she also reported the abuse to her teacher, following which she received counseling from school counselor Christine Welch.

Mr. Holland was charged with three counts of first degree child molestation.1 The daughter’s recollection of the events was as follows:

Q: What were you doing when Wes touched you?
A: I was sitting down on his lap and watching TV.
Q: Okay. Do you remember what you were watching on TV when these things would happen?
A: No.
Q: How many times did he do this to you?
A: More than three.
Q: But you don’t know exactly how many?
A: Yeah, I don’t know.

And on cross examination, she testified as follows:

Q: You said this happened more than three times. Could you — I don’t need a description of what happened at a particular time as between you and Wes, but I’m asking can you remember something else about it, can you remember a distinct thing about just one of these? Like what was on TV?
[423]*423A: No.
Q: Can you remember a particular day?
A: No.
Q: Can you remember anything that makes one time different from another, other than it was just at different times?
A: I can’t remember.
Q: But you’re sure it happened more than three times?
A: Yes.
Q: Why are you sure?
A: Because he was living there more than three times and he would do that.

Ms. Welch testified it was not unusual for a victim of child abuse to delay reporting the abuse. The jury found Mr. Holland guilty of two of three counts of first degree child molestation. He now appeals.

Discussion

Mr. Holland assigns error to the court’s failure to require a unanimous verdict. That challenge is dispositive of this appeal.

He contends instruction 82 allowed the jury to [424]*424convict him with less than a unanimous verdict on each count. Although he did not except to the court’s instructions, the right to a unanimous verdict is a fundamental constitutional right and may, therefore, be raised for the first time on appeal. State v. Gitchel, 41 Wn. App. 820, 821-22, 706 P.2d 1091, review denied, 105 Wn.2d 1003 (1985). Included in the constitutional requirement of jury unanimity is the requirement that the jury unanimously agree on the act underlying each charge. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).3

Mr. Holland was charged with three separate counts of first degree child molestation, but convicted of only two. [425]*425It is impossible, on this record, to conclude that all 12 jurors agreed on the same act to support convictions on each count.

There are circumstances in which the failure to require a unanimous verdict as to each count may well be harmless. One is when the nature of the jury’s verdict renders the failure harmless. See State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981); State v. Loehner, 42 Wn. App. 408, 409-10, 711 P.2d 377 (1985), review denied, 105 Wn.2d 1011 (1986). For example, if the victim in this case had testified to only three separate acts of molestation and the jury had then convicted Mr. Holland of all three, all 12 jurors would necessarily have found that all three acts had been committed. Such a verdict would foreclose the possibility that some jurors agreed on one act for count 3, while others disagreed and thought the same act constituted the basis for count 4, a count on which Mr. Holland was ultimately acquitted. There is no way given this verdict to assure that all the members of the jury were relying on the same incident when considering each count.

The dissent relies on State v. Noltie, 116 Wn.2d 831, 809 P.2d 190 (1991) and State v. Ellis, 71 Wn. App. 400, 859 P.2d 632 (1993). Both cases are distinguishable because, in both, a form of unanimity instruction was given. In Ellis, at 402, the court instructed the jury that "[ajlthough 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”; essentially the same instruction was also used in Noltie, at 843.4 No such instruction constrained the jury here.

[426]*426Mr. Holland also contends the information lacked the specificity to allow him to defend these charges. He argues the lack of differentiation among the three counts of molestation prevented him from determining what evidence applied to each count.

The charges in the information on the molestation counts, counts 2, 3, and 4, were as follows:

COUNT 2: That the said PAUL WESLEY HOLLAND in the County of Grant, State of Washington, between October 2,1991 and November 2, 1991, did engage in sexual contact with and was at least thirty-six months older than a minor female child dob 05-10-85, a person who was less than twelve years of age and not married to the accused.
COUNT 3: That the said PAUL WESLEY HOLLAND in the County of Grant, State of Washington, between October 2,1991 and November 2, 1991, did engage in sexual contact with and was at least thirty-six months older than a minor female child dob 05-10-85, a person who was less than twelve years of age and not married to the accused.

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Cite This Page — Counsel Stack

Bluebook (online)
891 P.2d 49, 77 Wash. App. 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holland-washctapp-1995.