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FILED 

SEPTEMBER 1, 2015 

In the Office of the Clerk of Cou rt 

W A State Court of Appeals, 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ROBERT L. HUTSELL, ) UNPUBLISHED OPINION 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. - Robert Hutsell appeals his convictions of first degree child 

rape and first degree child molestation, contending that the evidence suggested several 

acts ofrape 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 Petrichl 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 ofthe 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 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 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 )). 

2 

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 

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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. 

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State v. Hutsell 

No. 32053-7-III 

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 

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State v. Hutsell 

No. 32053-7-111 

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 

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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 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 

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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 ofthat 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 ofpajamas? 


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 offher 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. 


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State v. Hutsell 

No. 32053 M7-II1 

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? 


A Yes. 


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[ r loom. 


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? 

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State v. Hutsell 

No. 32053-7-III 

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? 


A Yes. 


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? 


A Yes. 


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 oftime. All ofMr. 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 

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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 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 

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 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. 

3The 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 1 0(2). 

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State 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 the jail. SAG at 2. Mr. Hutsell had the opportunity to crossexamine Detective Lebsock about the fact that he did not avail himself ofthese other 

means ofprocuring 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 ofwitnesses 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 ofthe 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). 

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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. 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 10.1O(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). 

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State v. Hutsell 

No. 32053-7-II1 

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 Ie 

Siddoway, c.]. ~, ~ WE CONCUR: 

Brown, J. 

Lawrence-Berrey, J. 

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