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# I FILED SEPTEMBER 1, 2015 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III 

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

# I STATE OF WASHINGTON, ) ) No. 32053-7-111 

## I Respondent, ) ) 

### v. ) ) ROBERT L. HUTSELL, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- RobertHutsell appeals his convictions offirst degree child rape and first degree child molestation, contendingthat the evidence suggested several acts ofrape ormolestation against eight-year-oldE.L., yet the State did not elect a single act as the basis for each charge nor was thejury given a Petrich l instruction. He claims that his SixthAmendmentrightto a unanimousjury verdict was violated as a result. In a pro se statement ofadditional grounds, Mr. Hutsell assigns four errors. As described bythe witnesses, the several criminal acts supported bythe evidence

were all part ofa continuous course ofconduct, with the resultthat no election orPetrich instruction was required. Forthat reason, and becauseMr. Hutsell raises no viable challenge in his statement ofadditional grounds, we affirm.

1State v. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984), overruledinparton othergrounds byState 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 ofa couple with whom he was friends, so that the couple could enjoy a night out. Itwas agreed that Mr. Hutsell would pick up the children from theirhome, take them to his home to spend the night, and return them the following day. During the evening ofthe overnight, the two older children-bothboys-playedvideo 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 ofthe 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 ofProceedings (RP) at 117. After about 10 minutes, he removed her pajamapants and then her underwear, rolled her over, and sexually assaulted her. Evidence was laterpresented 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 alsoput his tongue inside her vagina, touched her vagina with his fingers, andputhis penis inside her "butt." Ex. 3, at 22 (transcript offorensic interview (Apr. 4, 2011)). 

### 2State 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 herbrothers, where she stayed for the rest ofthe night. E.L. told her brother, D.L., that Mr. Hutsell had licked her private parts, but neither ofthem initially mentioned anything aboutthe incident to their parents upon being returned home by Mr. Hutsell. According to E.L., she was "scared" that "itwas 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.-hearingthe conversation-mentionedto his mother that E.L. had accused Mr. Hutsell ofsomething. When asked by her mother what had happened, E.L. disclosed that Mr. Hutsell had "licked her and touched her in herprivate area." RP at 397. 

### E.L.'s mother immediately told E.L.'s father to get offthe 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 ofE.L.' s accusations. The police investigation included an interview ofE.L. by Karen Winston, a forensic child interviewer. Ms. Winston used a body diagram during the questioning to facilitate a description ofwhat had happened. E.L. told Ms. Winston that Mr. Hutsell "keptputting his tongue inside [her] vagina." Ex. 3, at 20. 

### E.L. also told Ms. Winston 3State v. Hutsell 

### No. 32053-7-111

that Mr. Hutsell had touched her withhis finger and "his privatepart." Id. at 

### 21. Upon further questioning, E.L. reportedly told Ms. Winston thatMr. 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 aboutwhere Mr. Hutsell's "privatepart" 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. explainedMr. 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 ofa 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 calledhis department ofcorrections supervising officer and reported that he had babysat children without a chaperone, in violation ofhis 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'spajamapants and underwear and having licked her vagina, but denied any other touching with his tongue, finger, orpenis. The State charged Mr. Hutsell with one count each ofchild rape in the first degree and child molestation in the first degree.



### 4State v. Hutsell No. 32053-7-III

Attrial, 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 brothertestified that E.L. told him that Mr. Hutsell "licked herprivate." RP at 346. E.L.'s mothertestified that E.L. disclosed to herthat 

### Mr. Hutsell "licked her and touched her in herprivate area" about a month after ithappened. RP at 397. Detective Lebsock testified to hisjailhouse interview of

### Mr. Hutsell. Ms. Winston testified to the substance ofher interview with E.L., and a videotape ofthe interview was played for the JUry. In the defense case, investigators engaged by Mr. Hutsell testified that during their interview ofE.L., she did not allege any sexual contact otherthan being licked on her vagina. A report ofa medical examination ofE.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 onhis own behalfand denied having made any admission to Detective Lebsock and denied any sexual contactwith E.L. Thejury found Mr. Hutsell guilty ofboth counts. In light ofhis two prior offenses, he was sentenced to life in prison without parole. He appeals. ANALYSIS Mr. Hutsell contends thatbecause the State presented evidence ofseveral sexual acts that could constitute the charged crimes but did not elect which acts it was relying 

### 5State v. Hutsell 

### No. 32053-7-111

on, nor did the Court provide thejurywith a Petrich 

### instruction, he was denied his Sixth Amendmentrightto a unanimousjuryverdict. In response, the State argues that each of the acts described was part ofa continuing course ofconduct. "In Washington, a defendant may be convicted only when a unanimousjury concludes that the criminal act charged in the infonnation has been committed." Petrich, 

### 101 Wn.2d at 569. "Whenthe evidence indicates that several distinct criminal acts have been committed, but defendant is charged with only one count ofcriminal conduct,jury unanimity must be protected." Id. 

### at 572. To adequately protectjuryunanimity, either the State must elect the specific act it is relying on to constitute the crime charged or the court must give thejury a "Petrich" 

### instruction, telling them that all "12jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt." Id. 

### "[F]ailure to follow one ofthese options is error, violative ofa defendant's state constitutional right to a unanimousjuryverdict and United States constitutional right to a jurytrial." Kitchen, 

### 110 Wn. 2d 403,409, 756 P.2d 105 (1988), abrogated inparton othergrounds byIn re Pers. Restraint of Stockwell, 

### 179 Wn.2d 588, 316 P.3d 1007 (2014). If

juryunanimity is not assured through election or instruction, the result can be sustained onthe basis that the errorwas harmless only ifthe constitutional harmless error standard is satisfied. "[T]he error will be deemed harmless only ifno rational trier offact

6

### State 

### v. Hutsell No. 32053-7-III

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 ofseveral 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 ofconduct.'" 

### 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 thatthe charged conduct occurred at differenttimes and places tends to show that several distinct acts occurredratherthan a continuing course of conduct, whereas evidence that a defendant engaged in a series ofactions intended to

secure the same objective supports the characterization ofthose actions as a continuing

course ofconductrather 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 ofseveral distinct criminal acts orpart ofa continuing course ofconduct '''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 hertrial testimony, were somewhat imprecise (despite the State's efforts to 7State v. Hutsell No. 32053-7-II1

obtain specifics) and were not entirely consistent. As Mr. Hutsell argues, the evidence, while sufficientto sustainthejury's verdict, fell short ofthat required to say that every rationaljurorwouldhave found every act alleged beyond a reasonable doubt. We agree withthe State, however, that it charged and prosecuted the counts as involving a continuing course ofconduct and that its evidence supported that approach, with the resultthat no election orPetrich instruction was required. Attrial, E.L. described all ofthe conduct as occurring in Mr. Hutsell's bedroom, beginning afterM.L. fell asleep and was moved by Mr. Hutsell tothe top ofthe bed: Q Didthe rubbing ofthe backever stop? A Yes, eventually. Q What happened after that? A He pulled offmy 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 youremember what you were wearing? A My pajamas. Q And do you remember what kind ofpajamas? A Hannah Montana. Q And sometimes pajamas can be like a long gown or it could be like a bottompants andtop. Do you remember whichkind? A Bottompants and top. Q And so you saidyourpants were pulled down and you were onyour­ A Belly. RP at 117. She testified that afterpulling offherpajamapants, Mr. Hutsellpulled offher underwear. RP at 118. She then described the sexual contact and how it ended: Q Whathappened next? A That's when he started licking me. 8State v. Hutsell

M No. 32053 7-II1 Q Okay. Did you get licked on parts ofyour body? A Yes. Q Whatpart? A My private area. Q Lots ofpeople say "private area" for lots ofdifferent areas. Was it a specific private area? What was the specific private area? A Mybottom private area. Q And you were on your stomach? A Myback. 

### Q Onyourback. And about how long did that occur? A I don't remember. Q Did it end? A Yes. Q Whathappened 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 wentto the bathroom, putthem back on, and went out into the living[ rloom. RP at 119-20. E.L., 11 years old by the time oftrial, could not place a time frame on the conduct, but closer questioning revealed that itwas uninterrupted and that it occurred during a time frame afterher younger sister fell asleep and while her olderbrothers 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 putthem on ordid you putthem 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? 

### 9State v. Hutsell No. 32053-7-III

A Then I went out into the living[ rloom. 

### Q Who was out in the living[ r]oom? A My brothers. 

### Q Were they asleep or still playingvideo games? A They were still playing video games. Q What did do you [sic] outthere? A I went to the couch. 

### Q Didyou watch for a while? A Yes. Q Did you everplaythe video game out in the living room again? A No. Q Did everybody goto sleep at somepoint? A Yes. Q How did that happen? A I fell asleep first andthen my brothers fell asleep. Q And didyou sleep through the night or ever getup to go to the bathroom? A I slept through the night. RP at 120-21. All ofthe acts happened on a single night, in Mr. Hutsell's bedroom, and according to E.L.'s recount were uninterrupted until they ended when shetold Mr. Hutsell she needed to go to the bathroom and moved into the living room and the safety ofherbrothers' company. It is reasonable to infer from surrounding events that the acts occurred over a shortperiod oftime. All ofMr. Hutsell's actions were ofa type to secure the same objective: sexual gratification. While one couldparse E.L.'s original description ofevents to Ms. Winston into multiple acts thatwould separately support a guilty verdict for rape ofa child in the first

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### State v. 

### Hutsell No. 32053-7-III degree,2 and first degree child molestation,3 a commonsense analysis supports the State's characterization and prosecution ofthe criminal conduct as a continuous course ofaction. As a result, although the State did not elect which act it was relying on to support the charges againstMr. Hutsell, the courtwas not required to give thejury a 

### Petrich unanimity instruction. The trial court did not err. STATEMENT OF ADDITIONAL GROUNDS In a pro se statement ofadditional grounds for review (SAG), Mr. Hutsell raises four. 

### 1. Failure tofollow "protocol" duringjailhouse interview. Mr. Hutsell argues thatDetectiveLebsock did not "followprotocol" because he neither videotaped his

2 The child rape charge required the State to prove that Mr. Hutsell had sexual 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 ofthe vagina or anus however slight, by an object, when committed on one person by another, whether such persons are ofthe same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and (c) Also means any act ofsexual contactbetween persons involving the sex organs ofone person and the mouth or anus ofanother whether such persons are ofthe same oropposite sex. 3The child molestation charge required proofof"sexual contact." "Sexual contact means any touching ofthe sexual or other intimate parts ofa person done for the purpose ofgratifying sexual desires ofeitherparty." RCW 9A.44.01 0(2). 11State v. Hutsell No. 32053-7-III

interview ofMr. Hutsell nor did he have Mr. Hutsell write out a statement, and either

means was feasible at thejail. SAG at 2. Mr. Hutsell had the opportunity to crossexamine Detective Lebsock about the fact that he did not avail himselfofthese other

means ofprocuring a statement from Mr. Hutsell and argue this shortcomingto thejury. Even ifnot the best record ofa confession, statements by a criminal defendant are admissible at his trial as admissions ofa party under ER 801(d)(2)(i). Itis for the fact finder to determine the credibility ofwitnesses and the persuasiveness ofevidence. In re Kuvara, 97 Wn.2d 743, 747,649 P.2d 834 (1982). The court did not err in admittingthe detective's testimony to the confession. 

### 2. & 

### 3. Ineffective assistance of counsel:failure to obtain a childinterviewer 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 ofineffective assistance ofcounsel. Toprevail on a claim ofineffective assistance ofcounsel, a defendant must show both thathis counsel erred and that the error was so significant, in light ofthe entire trial record, that it deprived him ofa fair trial. Stricklandv. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). When a claim canbe disposed ofon one ground, a reviewing court need not considerboth Stricklandprongs. Id. at 697; State 

### v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).

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### State 

### v. Hutsell No. 32053-7-II1

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. IfMr. Hutsell has evidence ofthe availability ofsuch a witness, his remedy is to file a personal restraint petition supported by that evidence from outside ourrecord. "Typically, where the record does not support an argument or there is evidence outside ofthe record, the remedy is to bring

a personal restraint petition with evidence in support ofthe 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 ofthe nature and

occurrence ofalleged errors. RAP 10.1O(c). Here, too, ifthere is nothing in the record to demonstrate that a witness could have been impeached, then Mr. 

### Hutsell will have to pursue this claim, ifat all, through a personal restraintpetition demonstrating prejudice. 4. Failure to sequester thejury. Mr. Hutsell complains that thejurywas allowed to return home each night following trial, creating a risk ofmedia exposure despite the fact that he faced the prospect oflife in confinement without the possibility ofparole. 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). 13State 

### v. Hutsell No. 32053-7-II1

Affirmed. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, butitwill be filed for public record pursuantto RCW 2.06.040. 

# duLLo Ie Siddoway, 

## c.].

# ~,**~** WE CONCUR:

Brown, 

### J.

Lawrence-Berrey, J.

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