### FILED 

### May 5, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

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


### v. ANTHONY WAYNEBLAUERT, Appellant. ) ) ) ) ) ) ) ) ) No. 32825-2-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, 

### J. -AnthonyBlauert appeals his conviction for first degree child molestation. He raises seven issues on appeal. These issues include sufficiency of the evidence, lack of juryunanimity, andthe State'switnesses improperly vouching for the credibility ofthe victim/witness. We concludethatthe Statepresented sufficient evidence for the conviction, butthatMr. Blauert'srightto a unanimousjury verdict was violated, and the violationwas notharmless. Wetherefore reverse Mr. Blauert's conviction and remand for a newtrial. 1

1Becausewe reverse onthe grounds thatMr. Blauertwas deprived of jury unanimity, we decline to address the remainder ofthe issues he raises.No. 32825-2-111 State v. Blauert
FACTS Jane Doe is the mother ofD.D.,2 who was bornJuly 16, 2009. Ms. Doe was lifelong friends with Stephanie Blauert, and Mrs. Blauert occasionally babysat D.D. In the beginning of2013, Mrs. Blauertbabysat D.D. frequently, but further into the year Mrs. Blauertbecame more ofa secondary babysitter for whenMs. Doe's family members
were unavailable. InAugust 2013, Ms. Doe and D.D. moved in with Ms. Doe's friend, Nichole Burlingame. On October 17, 2013, D.D. wentto the restroom in their home and called for her motherto come help her. Ms. Doe helped D.D. wipe and D.D. winced, which she had
never done. Ms. Doe asked her daughter where it hurt, and D.D. responded thather "nono"hurt, which is how the two referredto genitalia. Report ofProceedings (RP) at 169. WhenMs. Doe asked why it hurt, D.D. responded, "well, Andy touched me."3 RP at 169. As D.D. saidthis, shepointed to hervagina. Ms. Doe asked ifMr. Blauertwas wiping too hard, because Ms. Doe knew Mr. Blauert assisted Mrs. Blauertwith babysitting. D.D. responded, "no, mom, we weren'twiping." RP at 169. Ms. Doe askedwhatthey were

2 Forpurposes ofthis opinion, we fictionalize the names ofthe mother, her friend, and the initials ofher daughterto protect the daughter's anonymity. 3 Mr. Blauertwas the onlyperson D.D. referredto as "Andy." RP at 171. 2No. 32825-2-111 State v. Blauert doing. D.D. responded thatthey were "playing," and that Mr. Blauerttouched her in the "no-no" with his fingers. RP at 169. AfterD.D. told hermother whathad happened, hermother quickly walked out of the bathroom crying. Ms. Burlingame noticed Ms. Doe crying and asked whathappened. Ms. Doe could not speak. Ms. Burlingame asked ifshe could go talkto D.D., and Ms. Doe told Ms. Burlingamethat she could. Ms. Doe did nottell Ms. Burlingame what her daughter had said. D.D. came out ofthe bathroom, and Ms. Burlingame asked her what she had told hermom in the bathroom. D.D. said she told her momthat "Andy"had touched her "no-no"with his finger. RP at 179. Ms. Doe called the police that day. After she called the police, Ms. Doetook her daughter to have her examined at a doctor's office. Thepolice did not ask Ms. Doeto arrange the doctor's appointment-Ms. Doe decided to go herself. Atthe doctor's office, family nursepractitioner TameraNolan examined D.D. for signs ofinappropriate contact. D.D. toldMs. Nolan, "myno no hurts," and "itfeels like my heart is coming down." RP at 202. Ms. Nolan asked what happened, and D.D. saidthat "her and Andy were ... playing and thathe touched her inside." RP at 203. D.D. told Ms. Nolanthat she climbed into bedwith Mr. Blauertto cuddle. D.D. was the first to mention the name "Andy." RP at 204. D.D. also said that "itwasn'tDustin." RP at 203.
3No. 32825-2-111 State v. Blauert
In November 2013, Ms. Doe took D.D. to a forensic interview at the request ofthe police. Karen Winston, a forensic child interview specialist, interviewed D.D. and recorded the interview. The State charged Mr. Blauertwith one count offirst degree rape ofa child. The trial courtheld aRyan4hearing to determine whether Ms. Doe, Ms. Winston, and Ms. Burlingame could testify to D.D.'s disclosures pursuantto RCW 9A.44.120. Judge Sperline presided overthe Ryan hearing. AttheRyan hearing, the prosecutor argued that Mr. Blauertmolested D.D. on October 15, 2013. In his oral rulings, Judge Sperline stated that he believed D.D. would be found competent at trial, but formally reserved any competency issues for the actual trial. Judge Sperline also ruled thatthe very shortperiod oftime between when the incident allegedly occurred and when D.D. made her disclosures weighed in favor offinding that D.D.'s statements were reliable. Defense counsel did not objectto any ofJudge Sperline's oral rulings. The day oftrial, the State amended the information to include an alternative charge offirst degree child molestation. During the pretrial motions in limine, the prosecutor conceded that the incidentprobably did not occur on October 15. The prosecutor also acknowledged that D.D. disclosed to Ms. Winston thatMr. Blauerthad touched her

4State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984). 4No. 32825-2-III State v. Blauert
twice-oncewhen she was three, and once when she was four. The prosecutor stated, "[W]e're not alleging the earlier incident. Because she's not able to give very many details about it." RP at 106. The trial court asked defense counsel ifthere was a challenge to competency, and defense counsel responded that he was not challenging D.D.'s competencyyet but might objectto competency depending on how D.D. testified. D.D. testified at trial. She testified that while in Mr. Blauert's home, Mr. Blauert pinchedthe outside ofher front "no-no" once with his fingernails. RP at 157-58. She testified Mr. Blauerttouched herunder her clothes and thatherpants were all the way down. Afterthe trial court excused D.D., defense counsel asked the trial courtto consider competency "before any potential hearsay testimony [was] given." RP at 161. The trial court stated that defense counsel had conceded competency. Defense counsel argued that the trial court could find D.D. incompetent after D.D. had testified, and this would prohibitMs. Doe and Ms. Burlingame from thereafter testifying to D.D.'s hearsay statements. The trial court and the prosecutor clarifiedthat RCW 9A.44.120 only requires the child to testify in order for the hearsay statements to be admitted, and because D.D. testified, her competence now had no bearing on the statements' admissibility. Defense counsel statedthat he was satisfied.
5

### No. 32825-2-111 State v. Blauert
The State's next witness was Ms. Doe. Toward the beginning ofMs. Doe's testimony, the following exchange occurred: [Prosecutor:] Is [D.D.] a truthful child? [Ms. Doe:] Yes. 

### RP at 

### 165. Defense counsel did not objectto the prosecutor's question. The trial court cut offMs. Doe's testimony, asked counsel to approach the bench, and stated that it is highly improper to ask a witness to express an opinion about the truthfulness ofanother witness because it invades the province ofthejury. The prosecutor argued Ms. Doe had knowledge ofher daughter's reputation, and defense counsel stated he did not object because Ms. Doe testified as to her observations ofher daughter. Afterthe trial court's warning, the prosecutorthen asked Ms. Doe whether her daughter ever makes up stories, to which Ms. Doe responded that she does. Theprosecutorthen asked Ms. Doe ifshe
was able to tell when her daughter was making up a story, and Ms. Doe responded that she was. Ms. Burlingame testified. The State then called Detective Ryan Green. During Detective Green's testimony, the following exchange occurred: [Prosecutor:] And ifyou can estimate, how many ofthese types of cases-andwhen I say these types ofcases, I'mtalking about rape ofa child, child molestation cases-haveyou handled in your career as a detective with the sheriffs office? [Detective Green:] Probably close to a hundred, ifnot more. 6No. 32825-2-III State v. Blauert [Prosecutor:] And in your experience, is it unusual for children to delay reporting? [Detective Green:] Yes, most often so. [Prosecutor:] It's unusual for them to delay reporting? [Detective Green:] No. It'svery common, and most ofthe time children have a hard time understanding whathas happenedto them, so they do delay in reporting. RP at 189. Defense counsel did not objectto this testimony. Afterthe trial court excused Detective Green and sentthejury out, the trial court advised counsel to review State v. Smith, 162 Wn. App. 833, 262 P.3d 72 (2011) before calling additional witnesses. The trial court stated the Smith case deals with improper prosecutorial vouching. The prosecutor stated that she was not going to ask Ms. Winston anything about D.D.'s credibility, but only ask Ms. Winston about her experience, training, education,job, how she had contact with D.D., and thenpublishthe video of D.D.'s interview. After lunch, the State called Ms. Nolan. Ms. Nolan testified that she examined D.D. on October 17, and D.D. saidthat "her and Andy were ...playing and that he touched her inside." RP at 203. Ms. Nolan also testified that D.D. said that "itwasn't Dustin," and that D.D. was the first person to mention the name "Andy." RP at 203-04. Defense counsel did not object to these statements. The prosecutor also asked Ms. Nolan questions about D.D.'s demeanor, and the following exchange occurred:

7No. 32825-2-III State v. Blauert [Prosecutor:] Did she give you any occasion to believe that she had a motive in making this-intelling you this? [Ms. Nolan:] No. [Prosecutor:] Did she appearto be forthcoming in her statements? [Ms. Nolan:] Yes. [Prosecutor:] Was there anybody else in the room while she made these statements? [Ms. Nolan:] Hermother. [Prosecutor:] And was her mother-whatwas hermother's role in this? [Ms. Nolan:] Encouragingthe patientto be honest and to be forthcoming and supporting her. RP at 204. Defense counsel did not object to these questions. Finally, Ms. Nolan testified that she did not find any physical evidence to corroborate D.D.'s complaints. Afterthe trial court excused Ms. Nolan, the court brought up the prosecutor's previous question ofwhetherD.D. "appearedto be forthcoming making her statements." RP at 210. The trial court advised the prosecutor again to read

### Smith, and stated that "[a]nykind ofstatement that appears to vouch for the credibility ofthe witness is goingto be a big, bigproblem." RP at 210. Theprosecutor explained that her question was intended to ask, "[W]as [D.D.] hesitant." RP at 210. Thetrial courttoldthe prosecutor that "we'vehad at leasttwo witnesses express at least an indirect opinion aboutthe credibility of[D.D.]." RP at 212.

8No. 32825-2-111 State v. Blauert Next, the State called Ms. Winston. The State playedthe interview tape for the Jury. During the interview, the following exchange occurred between Ms. Winston and D.D.: Ms Winston: Hey [D.D.], how many times did Andy touch your pee? [D.D.]: Two times. Ms. Winston: Two times? How old were you the first time that Andy touched your pee? [D.D.]: Three. Ms. Winston: You were three? How old were you the last time he touched your pee? [D.D.]: Four. Ms. Winston: Four? Okay. Ex. 3 at 11:36:05 -11:36:25. The State rested. Mr. Blauert called Mrs. Blauert. Mrs. Blauerttestified that she began babysitting D.D. around August 20, 2013, and babysat D.D. three days perweek until September 6. Mrs. Blauert testified that she did not babysitD.D. for the next month and one-half, and then babysat D.D. one more time on October 15. Mrs. Blauert testified that she did not watch D.D. for the full day on October 15 because she had to work, and that Mr. Blauert's friend Dustin Cruz helped watch D.D. Mrs. Blauerttestified that Mr. Blauert was in Portland, Oregon, getting a medical examination that day. The State concededthat Mr. Blauert was not at his home when D.D. was there on October 15.

9No. 32825-2-III State v. Blauert
Mr. Blauert also called Mr. Cruz. Mr. Cruz testified that he watched D.D. until around 7:00 p.m. to 7:15 p.m. on October 15, and then D.D. was picked up. Mr. Cruz testified Mr. Blauert arrived home between 8:00 p.m. and 8:15 p.m. The trial court instructed thejurythat in orderto find Mr. Blauert guilty ofthe alternative crime ofchild molestation, it must find "[t]hatbetween July 1, 2013 and October 23, 2013, both days inclusive, the defendant had sexual contactwith [D.D.]." Clerk's Papers (CP) at 30. The State did not elect the specific act on which thejury should rely in its deliberations. The trial court did not give a Petrich5instruction. Thejury acquitted Mr. Blauert offirst degree rape ofa child, but convicted him of first degree child molestation. Afterthe trial, Judge Sperline filed findings offact and conclusions oflaw from the pretrialRyan hearing. Mr. Blauert appeals. ANALYSIS A. Sufficiency of the evidence In a criminal case, the State mustprovide sufficient evidence to prove each element ofthe charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). When a defendant challenges the

5 State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), overruled inparton other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogatedinparton othergrounds byIn re Pers. Restraint of Stockwell, 179 Wn.2d 588, 316 P.3d 1007 10No. 32825-2-111 State v. Blauert sufficiency ofthe evidence, the proper inquiry is "whether, after viewing the evidence in the light most favorable to the State, any rational trier offact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly against the defendant." Id. Furthermore, "[a] claim of insufficiency admits the truth ofthe State's evidence and all inferences that reasonably
can be drawn therefrom." Id. In a challenge to the sufficiency ofthe evidence, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). This court's role is notto reweigh the evidence and substitute itsjudgment for that ofthejury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Here, Mr. Blauert only challenges the sufficiency ofthe State's evidence insofar as thejury found he committed the crime within the chargingperiod and had sexual contact with D.D. 1. Sufficiency ofevidence supporting the jury's finding thatthe crime occurred within the July 1to October23 charging period Mr. Blauert claims that the State failed to produce sufficient evidence to sustain the added element: that the crime occurred within the chargingperiod, which was (2014). 11No. 32825-2-III State v. Blauert
between July 1, 2013, and October 23, 2013. The chargingperiod is not a statutory element offirst degree child molestation. See RCW 9A.44.083. However, under the law ofthe case doctrine, 'jury instructions not objected to become the law ofthe case." State
v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). The State assumes the burdento prove beyond a reasonable doubt any elements added to the to-convict instructions, even ifthose elements do not have a statutory basis. Id. In the event ofa sufficiency of evidence challenge on appeal, the sufficiency ofevidence to sustain the verdict is determined with reference to the instructions. Id. at 103 (quoting Tonkovich v. Dep 't of Labor & Indus., 31 Wn.2d 220, 225, 195 P.2d 638 (1948)). The reviewing court looks at the evidence at whateverpointthe sufficiency challenge is raised. State v. Jackson, 82 Wn. App. 594, 608-09, 918 P.2d 945 (1996). The defendant is not barred from claiming insufficiency at a late stage ofthe proceedings, but the court will use the most complete record available at the time the claim is made. Id. Here, ifthis court were to solely examine the State's evidence, there would be insufficient evidence to sustainthejury's finding thatMr. Blauertmolested D.D. within the chargingperiod. None ofthe State's witnesses could say when the act occurred. D.D. testified that she could not remember when it happened. Ms. Doe testified.that the
12No. 32825-2-111 State v. Blauert
Blauerts babysat D.D. throughoutthe entirety of2013, and babysatD.D. before she and her daughter ever moved in with Ms. Burlingame. Ms. Doe and Ms. Burlingame testified that D.D. never told them when Mr. Blauert touched her. D.D. never made any statements to this effect in her forensic interview. However, in determining whetherthe evidence is sufficientto sustain the conviction, this court uses the most complete record available at the time the claim is made. This includes the defendant's evidence. Mr. Blauert called Mrs. Blauert at trial, who testified that she only babysat D.D. from August 20 to September 6, and once more
on October 15. The chargingperiod encompasses these dates. Mrs. Blauert also testified that Mr. Blauert was occasionally present when she babysat D.D. Viewingthe evidence,
as this court must, in the light most favorable to the State and drawing all reasonable inferences in favor ofthe State and interpreting them most strongly against Mr. Blauert, the evidence is sufficient to support thejury's finding that Mr. Blauert molested D.D. between July 1, 2013 and October 23, 2013, as required by the law ofthe case. 2. Sufficiency ofthe evidence supporting the jury's finding that Mr. Blauerthad sexual contact with D.D. A person commits first degree child molestation when thatperson "knowingly
causes anotherperson underthe age ofeighteen to have sexual contactwith another who is less than twelve years old and not married to the perpetrator and the perpetrator is at 13No. 32825-2-III State v. Blauert
least thirty-six months olderthan the victim." RCW 9A.44.083. "Sexual contact" is defined as "anytouching ofthe sexual or other intimate parts ofaperson done for the purpose ofgratifying sexual desire ofeitherparty or a third party." RCW 9A.44.010(2). "Offenses such as child molestation or indecent liberties reasonably require a showing ofsexual gratification because the touching may be inadvertent." State v. Gurrola, 69 Wn. App. 152, 157, 848 P.2d 199 (1993). Thejurymay infer sexual gratification ifan adult male with no caretaking function touches the intimate parts ofa child, but additional evidence is needed ifthe male has a caretaking function. State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991). Mr. Blauert argues this case is like Powell, where this court found that the evidence was insufficientto find thatMr. Powell'spurpose was achieving sexual gratification. Id. at 918. In Powell, a fourth grade girl sat on Mr. Powell's lap and Mr. Powell hugged her around the chest. Id. at 916. As Mr. Powell assisted her offhis lap, he touched her buttocks and placed his hand on her underpants under her skirt. Id. On another occasion, while the girl was alone with Mr. Powell in his truck, he touched both her thighs. Id. On each ofthe occasions Mr. Powell only touched the outside ofher clothing. Id.

14No. 32825-2.:In State v. Blauert
This case is not Powell. Mr. Blauert helped babysitD.D., so additional evidence is needed to sustain Mr. Blauert's conviction otherthan the fact that he touched D.D.'s intimate parts. This additional evidence exists in the record. While in the Blauerts' home, Mr. Blauertpinched the outside ofD.D.'s vagina with his fingernails. Mr. Blauert touched her under her clothes. Mr. Blauerthad pulled herpants all the way down. Ms. Doe asked her daughter ifMr. Blauertwas wiping too hard, and D.D. responded, "[N]o, mom, we weren't wiping," and that they were "playing." RP at 169. Mrs. Blauertwas at the store when this all happened. These facts are not "susceptible ofinnocent explanation." Powell, 62 Wn. App. at 918. We conclude that the State presented sufficient evidence to supportthejury's finding that Mr. Blauert committed the crime within the chargingperiod and had sexual contact with D.D. B. Jury unanimity Mr. Blauert contends, for the first time on appeal, that the trial court should have instructed thejurythat it must unanimously agree on which underlying act gave rise to criminal liability for the one count the State charged. A defective verdictthat deprives the defendant ofa unanimous verdict invades the fundamental constitutional right to a trial byjury. The issue may, therefore, be raised for the first time on appeal. E.g., State v. Bobenhouse, 166 Wn.2d 881, 892 n.4, 214 P.3d 907 (2009).
15No. 32825-2-111 State v. Blauert
The Washington Constitution gives criminal defendants the right to a unanimous juryverdict. CONST. art. I, § 21. In cases where the State presents evidence ofmultiple criminal acts and any one ofthese acts could constitute the crime charged, thejurymust unanimously agree on the same actthat constitutes the crime in orderto convictthe defendant. Petrich, 101 Wn.2d at 572. To ensurejuryunanimity when multiple acts could relate to one charge, "eitherthe State [must] electthe particular criminal act upon which it will rely for conviction, or ... the trial court [must] instructthejurythat all of them must agree thatthe same underlying criminal act has been provedbeyond a reasonable doubt." State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). Election ofan act may be established ifthe State's closing argument, when considered withthe jury instructions and the charging documents, makes it clear which act or acts the State is relying on for each charge and there is no possibilitythat thejurycould have been confused as to which actrelated to which charge. State v. Bland, 71 Wn. App. 345, 352, 860 P.2d 1046 (1993), overruled inparton othergrounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007). Constitutional error occurs ifthere is no election and no unanimity instruction is given. Bobenhouse, 166 Wn.2d at 893. The error stems from the possibility that some jurors may have relied on one act as the basis for convicting the defendant and other
16No. 32825-2-III State v. Blauert jurors may have relied on a different act, resulting in a lack ofunanimity on all ofthe elements necessary for a valid conviction. Kitchen, 110 Wn.2d at 411. An exception exists when the evidence shows the defendant was engaged in a "continuing course ofconduct." State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). In this situation, neither an election nor a unanimity instruction is required. Id. In determining whetherthe evidence supports multiple criminal acts or a continuing
course ofconduct, this court evaluates the facts in a commonsense manner considering (1) the time that elapsed betweenthe criminal acts, and (2) whetherthe different acts involved the same parties, the same location, and the same ultimate purpose. State v. Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). 1. Deprivation ofjury unanimity This entirejuryunanimity issue is caused by the 16-day overlap between the beginning ofthe chargingperiod on July 1and when D.D. turned four years old on July 16. The State alleged Mr. Blauert only committed one act ofmolestation. Thejury heard evidence that the Blauerts babysat D.D. throughout the entirety ofthe charging period. Thejury also saw the videotaped child interview with Ms. Winston in which D.D. stated that Mr. Blauert touched hertwice-oncewhen she was three, and once when she
was four. Atthe pretrial motions in limine, the prosecutor acknowledged D.D.'s
17No. 32825-2-III State v. Blauert

statements that Mr. Blauerttouched hertwice. The trial court asked ifD.D. was four years old during the entire charging period, and the prosecutor agreed. Theprosecutor
was mistaken. Theprosecutor thentold the trial court thatthe State was "not alleging the earlier incident. Because she's not able to give very many details about it." RP at 106. On appeal, the State argues that neither an election nor a Petrich instruction was required because D.D. was four years old throughout the entire charging period in the toconvict instruction. Therefore, the State argues, it was factually impossible for thejuryto convict Mr. Blauertbased on the evidence thatMr. Blauert first touched D.D. when she
was three. This might be a meritorious argument ifthe State's mathwere correct. However, thejuryheard evidence thatD.D. was born on July 16, 2009. Therefore, her fourth birthday was July 16, 2013, so she was in fact three years old for a portion ofthe chargingperiod. The State also argues that the prosecutor elected the second touching because the charging information and the to-convict instruction both designated the touching that occurred when D.D. was four years old. This is incorrect-boththe charging information and the to-convict instruction only list the July 1to October 23 chargingperiod. The State also argues thatthe prosecutor elected the second touching when she emphasized the chargingperiod during her closing argument and mentionedthe August 20 to
18No. 32825-2-III State v. Blauert September 6 time frame on rebuttal. This argument is still predicated on the same mathematical error-thechargingperiod listed in the information and the to-convict instruction includes 16 days in which D.D. was still three years old, so this cannotbe a valid election. While a prosecutor can make a valid election in closing argument, Bland requires the closing argument be taken together with thejuryinstructions and the charging documents so that there is no possibility that thejury could have been confused
as to which act related to which charge. Bland, 71 Wn. App. at 352. Considering the State's closing argument and thejury instructions, we conclude there is a possibility that thejury was confused as to which act the State relied on for conviction. Because the State charged one count and introduced evidence oftwo separate touchings within the chargingperiod, Mr. Blauertwas deprived of juryunanimity unless those two touchings were a continuous course ofconduct. However, this court cannot perform a continuing course ofconduct analysis giventhat no evidence relating to the first alleged touching exists otherthan D.D.'s statement in the forensic interview. This is the reason why the State did not charge the first allegation in the first place. The State knew this evidence was contained in the videotape, but decided to publish it to thejury anyway. The State then failed to elect the act on whichthejury should rely, and did not propose a unanimity instruction. Here, like in Petrich, thejury saw evidence that multiple
19No. 32825-2-III State v. Blauert
"distinct criminal acts have been committed, but defendant is charged with only one count ofcriminal conduct." Petrich, 101 Wn.2d at 572. On this record, it is impossible to know which ofthe two acts was proved to the satisfaction ofall ofthejurors beyond a reasonable doubt. We conclude thatMr. Blauert was deprived ofhis right to a unanimous juryverdict. 2. Harmless error inquiry Failure to give the Petrich instruction, when required, is reversible error unless the
error is harmless beyond a reasonable doubt. State v. Camarillo, 115 Wn.2d 60, 64, 794 P.2d 850 (1990). "Thus in multiple acts cases the standard ofreview for harmless error is whether a 'rational trier offact could find that each incident was provedbeyond a reasonable doubt.'" Id. at 65 (quoting State v. Gitchel, 41 Wn. App. 820, 823, 706 P.2d 1091 (1985)). In Petrich the error was not harmless due to the child's testimony. The victim was able to describe some ofthe acts with some detail and specificity, but other details were acknowledged "with attendant confusion as to date and place, and uncertainty regarding the type ofsexual contact that took place." Petrich, 101 Wn.2d at 573. The error was not harmless. Id.

20No. 32825-2-III State v. Blauert
The reverse was true in Camarillo, where three separate touchings occurred and each was independently capable ofsupporting one count ofindecent liberties. Camarillo, 115 Wn.2d at 63. At trial, the "boy'stestimony was specific about whathad occurred." Id. at 66-67. "There was no conflictingtestimony which would have placed any reasonable doubt in the mind ofajurorthat the events did not happen as describedby the boy." Id. at 71. The Camarillo court noted that the evidence presented was sufficientto establish each crime had occurred, there was no conflictingtestimony, the defendant had
a general denial defense, and the victimprovided specific detailed testimony regarding each touching that occurred. Id. at 71-72. Ultimately, the Camarillo court determined that ifthejuryreasonably believed one incident occurred, all the incidents must have occurred. Id. at 70-71 (quoting State v. Camarillo, 54 Wn. App. 821, 828, 776 P.2d 176 (1989), aff'd, 115 Wn.2d 60). The error was harmless beyond a reasonable doubt. Id. at 72. This case is more like Petrich. D.D. consistently described the second touching in specific detail and explained how Mr. Blauertpulled herpants down and touched her vagina with his finger when she was four years old. However, no other testimony or corroborating evidence supported her statementthatMr. Blauerttouched her when she
was three years old-whichwas still within the chargingperiod. Like in Petrich and
21No. 32825-2-III State v. Blauert
unlike Camarillo, a rationaljurorcould have entertained reasonable doubt as to whether the first touching actually occurred. We conclude the errorhere was not harmless beyond
a reasonable doubt. C. Remedy Where an appellate court reverses a conviction for reasons otherthan insufficiency ofthe evidence, the properremedy is to remand for a new trial. See State v. Wright, 165 Wn.2d 783, 802 n.11, 203 P.3d 1027 (2009). Consistentwith ourrulings in this case, we therefore reverse Mr. Blauert's conviction for first degree child molestation and remand for a new trial. Forthe record, we note that the State concedes thatthe prosecutor committed error when she elicited testimony from witnesses concerning D.D.'s credibility. We agree. The State counters thatthe prosecutor's error was harmless. We express no opinion, other than we trust the same error will not reoccur. Mr. Blauert also raises a number of other issues. Because we reverse Mr. Blauert's conviction on the grounds that he was deprived of juryunanimity, we decline to address these issues. See State v. Richie, 191 Wn. App. 916, 920 n.1, 365 P.3d 770 (2015).

22No. 32825-2-III State v. Blauert
Reversed and remanded. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040. Lawrence-Berrey, J. WE CONCUR: 

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