### FILED SEPTEMBER4,2014 In the Office oftheClerk ofCourt W A State CourtofAppeals, Division III

INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) ) No. 31544-4-III Respondent, ) ) 

### v. ) ) AARONT. ANDLOVEC, ) UNPUBLISHED OPINION ) Appellant. ) FEARING, J.

- AaronAndlovec was convicted ofchild molestation andtwo counts ofrape for persistently sexually assaulting a 13- and later 14-year-oldgirl, A.C. Onappeal, Andlovec contendsthatthe trial court should haveprovided aPetrich instruction that wouldrequirethejurytounanimously decide on what discrete date the various criminal counts occurred. He also complains abouthis sentencing orderthat precludes alcohol related conduct while oncommunity custody. SinceAndlovec engaged in a series ofsexual attacks, wereject his claimthathe was entitledto a Petrich instruction. We modify theprohibition involving alcohol during community custody.No. 31544-4-111 State v. Andlovec FACTS From 2008 to 2010, DefendantAaron Andlovec lived with his cousin Bryan Jones. Jones' stepdaughter, A.C., born December 16, 1995, also lived in the home. The 37­ year-old Andlovec pursued a sexual relationship with 13-year-oldA.C. Aaron Andlovec first touched A.C.'s vagina when she was 12 or 13 years old whilethey watched a movietogether. Attrial, A.C. could not rememberprecisely when this occurred, stating, "I think I was in school perhaps. I don't know. It may have been

summer maybe." Report ofProceedings (RP) at 101. A.C. further testified: Q: Who initiated the contact? A: Usually, it was Aaron. Well, I wouldjustbe sittingthere kind of, and it wouldbe like-I don't know. We have like a normal conversation about like whatever, and then I don'tknow. He wouldjust start like rubbing my leg again, and it would progress on, and I didn't-I don't know. I never really said anything. Q: When you say it would progress on, again, can you be specific? A: Yeah. I don't know. Itwouldbegin withrubbing my legs, and then he puthis handup my shirt, andthen eventually it led on to sex. RP at 101. The sexual abuse included Andlovec touchingA.C.'s breasts, legs, and arms, and vaginal intercourse. The two always had intercourse in A.C.'s bed, located in the upstairs ofthe house. Andlovec andA.C. had sex abouttwice a week for one year. BryanJones, Aaron Andlovec's cousin, testifiedthat when Andlovec and A.C. were upstairs, he either worked, slept, orplayedthe video game World ofWar craft. On May 19,2010, A.C. told her motherthatAndlovec raped her. A.C.'s mother

2No. 31544-4-III State v. Andlovec informedpolice. As part oftheir investigation, police took the top ofa mattress from the home. Subsequenttesting showed thatthe mattress contained A.C.'s deoxyribonucleic acid (DNA) and Andlovec's semen. PROCEDURE On June 22, the state ofWashington charged Aaron Andlovec with three separate counts: rape ofa child in the second degree occurring between September 1and December 15, 2009; child molestation in the second degree occurring between September 1and December 15, 2009; and rape ofa child in the third degree occurringbetween December 16,2009 and May 17,2010. The charges were based on RCW 9A.44.076 (rape ofchild at least 12 but less than 14 years old), RCW 9A.44.086 (molestation ofa child at least 12 but less than 14 years old), and RCW 9A.44.079 (rape ofa 14 to 16 year old) respectively. A.C. was 13 years old for counts one and two, and 14 years old for count three based on her December 16 birthday. For each count, the State charged Andlovec with committing the offense as part ofan "ongoingpattern ofsexual abuse" under RCW 9.94A.535(3)(g), which reads: (3) Aggravating Circumstances-Considered by a Jury-Imposedby the Court Except for circumstances listed in subsection (2) ofthis section, the following circumstances are an exclusive list offactors that can support a sentence above the standard range. Such facts should be determined by procedures specified in RCW 9.94A.537. (g) The offense was part ofan ongoingpattern ofsexual abuse ofthe same victim under the age ofeighteen years manifested by multiple incidents over a prolonged period oftime.
3No. 31544-4-111 State v. Andlovec

Attrial, Aaron Andlovec testified in his defense. He denied having sex or any sexual contact with A.C. Andlovec claimed that he masturbated while watching adult movies on A.C.'s bed, and also engaged in sexwith A.C.'s mother on A.C.'sbed. Andlovec pointed to these actions to explain why his semen was found on A.C.'s mattress. In closing, the State argued: Aaron Andlovec was a trusted family member, a cousin of[A.C.'s] stepfather. He came into the house. He befriended [A.C]. They talked at great length. Heknew about her school functions. He knew, in fact, that she was a middle schooler, not even yet in eighth grade. He knewthat it was the summerbetween her seventh grade and eighth grade years at [middle school], and he befriended her. They shared secrets. They played together. Hehelped her with homework, and he had sex with her. He had sexwith her many, many times, week afterweek and month after month, and this happened mUltiple times a week sometimes. From September of2009 until the discovery in May of2010, Aaron Andlovec had sexwith thirteen and then fourteen year old [A.C.]. You can listen to the evidence, and you can weigh it. You can listen to [A.C.'s] recollection ofthe many times Aaron Andlovec had sexwith her, and yourecall the details, and she was clear, and she was I guess encouraged to give details about whathappened, but she testified that itwas penile/vaginal. Hispenis inside ofher many times, and she told you what led up to it. Touching, closeness at first, a hand up her shirt and eventually leading to sex, an ongoingpattern ofsex. Looking at the evidence in this case, evidence shows Mr. Andlovec was having sex with a 13 year old. Following herbirthday, December 16th, he kept having sexwith [A.C.] over and over. She was 14 then. Aaron Andlovec had sex with a 13 and 14 year old girl. RP at 449,450,460.
4No. 31544-4-II1 State v. Andlovec Thejuryfound Aaron Andlovec guilty on all three counts. For each count, the juryalso found by special verdict that Andlovec committed each crime as part ofan "ongoingpattern ofsexual abuse." Clerk's Papers (CP) at 143, 145, 147. At sentencing, the trial court imposed a condition ofcommunity custody stating that Andlovec "shall not use, possess or purchase alcohol, nor goto establishments where alcohol is the prime commodity for sale." CP at 171. LAW AND ANALYSIS

UnanimityInstruction Aaron Andlovec contends, for the first time on appeal, that the trial court should have instructed thejurythat they must unanimously agree on which underlying act gave rise to criminal liability for each count charged. A defective verdict which 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. State v. Fitzgerald, 39 Wn. App. 652, 655, 694 P.2d 1117 (1985). The law distinguishes between a '"multiple acts"prosecution and a "continuing

course ofconduct" prosecution. A '"multiple acts" prosecution tends to show evidence of acts that occur at differenttimes, in differentplaces, or against different victims. State v. Love, 80 Wn. App. 357,361,908 P.2d 395 (1996). A "continuing course ofconduct" requires an ongoing enterprise with a single objective. Love, 80 Wn. App at 361. The f 

# , nomenclature is misleading since a "continuing course ofconduct" inevitably involves

5No. 31544-4-III State v. Andlovec

. multiple acts. The distinction between a multiple acts case and a continuing course of conduct case is critical, because in the former case thejury must be instructed and must find unanimously that discrete criminal acts occurred on specific dates. To convict a person ofa criminal charge, thejurymust be unanimous that the defendant committed the criminal act. State v. Camarillo, 115 Wn.2d 60, 63, 794 P.2d 850 (1990); State v. Bobenhouse, 166 Wn.2d 881, 892, 214 P.3d 907 (2009). When the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count ofcriminal conduct,jury unanimity must be protected. State v. Petrich, 101 Wn.2d 566,572,683 P.2d 173 (1984), holdingmodified byState v. Kitchen, 110 Wn.2d 403,406 n.l, 756 P.2d 105 (1988). To protect unanimity, the State may elect which act it relies upon for conviction or thejury must be instructed that all 12jurors must agree that the same underlying criminal act has been proved beyond areasonable doubt. State v. Barrington, 52 Wn. App. 478, 480,761 P.2d 632 (1988). Washington labels such ajury instruction a "Petrich instruction." The failure to do so in mUltiple acts cases is constitutional error. Bobenhouse, 166 Wn.2d at 893. The

error stems from the possibility that somejurors may have relied on one act or incident and somejurors a different act, resulting in a lack ofunanimity on all ofthe elements necessary for a valid conviction. Kitchen, 110 Wn.2d at 411.

6No. 31544-4-II1 State v. Andlovec AaronAndlovec argues thatthejuryheard evidence ofmany sexually assaultive acts. He further contends hewas entitled to a Petrich instruction because his prosecution is one for multiple acts. The State agrees that it did not argue separate acts ofsexual intercourse with A.C. The State instead argues that no unanimity instruction was necessary because Andlovec engaged in one "continuing course ofconduct," which constituted three distinct crimes. Petrich, 101 Wn.2d at 571. We agree. Whenthe evidence shows the defendant was engaged in a "continuing course of conduct," the State need not make an election and the trial court need not give a unanimity instruction. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). That the charged conduct occurred at different times and places tends to showthat several distinct acts occurred rather than a continuing course ofconduct. Handran, 113 Wn.2d at 17. Evidence ofa single victim likewise is not enough in itselfto demonstrate that the offense was one continuing offense. Petrich, 101 Wn.2d at 571. To determine whether

one continuing offense may be charged, the facts mustbe evaluated in a common sense

manner. Petrich, 101 Wn.2d at 571. Fitzgerald, 39 Wn. App. at 655, supports AaronAndlovec'sposition. The State chargedVincent Fitzgeraldwithtwo counts ofstatutory rape involving different victims. Eachvictim testified to multiple incidents ofrape. We reversed the conviction since the juryreturned a general verdict ofguilty without specifyingwhich underlying acts were

7 

## f 

# INo. 31544-4-III State v. Andlovec relied upon in reaching the decision. The trial court gave no Petrich instruction. The only connection between the incidents ofrape was that the victims were the same. The connection was not enough to find that the offenses contained in each count constitute a single transaction. State v. York, 152 Wn. App. 92, 95-96, 216 P.3d 436 (2009), also assists Aaron Andlovec. The York court ruled thatthe "continuing course ofconduct" exception did not operate. The State charged the defendant with four counts ofsecond degree rape ofa child. The victim testified to three specific instances and a general pattern. The York court ruled that the failure to provide aPetrich instruction for count four was harmful

error. Still, the York court conceded that the continuing course ofconduct exception might apply in other circumstances. State v. Craven, 69 Wn. App. 581, 588, 849 P.2d 681 (1993), presents the opposite outcome. Linda Craven repeatedly assaulted a child over the course ofthree weeks. The state charged Craven with one count ofassault on the theory that Craven engaged in a systematic'pattern ofabusive conductwhich lent itselfto the continuing course exception. Finding no errorwith the trial court's failure to provide a Petrich instruction, the court commented in a footnote: We note that charging one count ofassault for a continuous course ofconduct seems particularly appropriate where, as here, the child victim is preverbal, the abusive conduct occurred outside thepresence ofwitnesses, and no one could testity to any single act ofabuse. Where evidence ofthe abuse can only come from aphysical examination ofthe child, from the totality ofthe injuries, from an observation ofthe child's demeanor, and
8

# I ,
j 

# I I No. 3 1 544-4-III 

# I i State 

### v. Andlovec l I from the circumstances surrounding the incidentwhich brings the child to the attention ofhealth careprofessionals, basing a conviction upon distinct 

# I i criminal acts is not the only theory upon which toproceed. Indeed, a fact patternwhich evidences systematic abuse particularly lends itselfto a continuing course ofconduct analysis. 

# I I Craven, 69 Wn. App. at 589 n.7. I l A.C. was verbal. Butthe sexual assaults from Aaron Andlovec occurred outside the presence ofothers over a two-yearperiod. Andlovec had easy access to A.C. Understandably, A.C. did notkeep a diary with dates as to the assaults. Understandably she would wish to forget the specifics ofeach horrendous act. York is distinguishable because the State didnot charge Aaron Andlovec with counts involving specific instances in addition to another count involving general harm. Aaron Andlovec raped the same young girl on the same bed. In every instance, wheneverAndlovec and A.C. had sex, he touched her legs, vagina, and breasts. His single objective was to have sex with A.C. That Andlovec molested A.C. as part ofthat

one continuing course ofconduct does not splinterhis objective. Our Supreme Court in Petrich entertained the possibility ofthe State charging a defendant with a continuous course ofconduct instead ofdiscrete acts for mUltiple acts against a child. In instructing courts on how "[t]o determine whether one continuing offense may be charged," thePetrich court impliedly condoned such a charge, if warranted underthe circumstances. 101 Wn.2d at 571. ThePetrich court commented: [I]n the majority ofcases in which this issue will arise, the charge will involve crimes against children. Multiple instances ofcriminal conduct

9No. 31544-4-111 State v. Andlovec with the same child victim is a frequent, ifnot the usual, pattern.... Whether the incidents are to be chargedseparately or broughtas one charge is a decision withinprosecutorialdiscretion. Many factors are weighed in making that decision, including the victim's ability to testify to specific times and places. Our decision in this case is not intended to hamperthat discretion or encourage the bringing ofmUltiple charges when, in the prosecutor'sjudgment, they are notwarranted. The criteria used to determine that only a single charge should be brought, may indicate that the election ofone particular act for conviction is impractical. In such circumstances, defendant's rightto a unanimous verdict will be protected with properjury instructions. 101 Wn.2d at 572 (internal citation omitted) (emphasis added). Language from State v. Brown, 55 Wn. App. 738, 746, 780 P.2d 880 (1989) is apt. TheBrown court wrote: The Petrich rule was a modification ofa rule first announced in State v. Osborne, 39 Wash. 548, 81 P. 1096 (1905), and later explained in State v. Workman, 66 Wash. 292,119 P. 751 (1911). These cases required the prosecutor to elect which ofseveral distinct crimes within the evidence and proofis relied on for conviction. State v. Osborne, 39 Wash. at 552; State v. Workman, 66 Wash. at 294. In more recent times, our courts have had occasion to reconsider whether the election rule strikes a proper balancebetween the defendant's rights and the problems presented in the prosecution ofcases involving sexual molestation ofchildren. Itis in the context ofsuch cases that the issues associated with evidence ofmultiple offenses andjuryunanimity usually arise. State 

### v. Petrich, 101 Wn.2d [566,] 572, [683 P.2d 173 (1984)]. Particularly when the accused resides with the victim orhas virtually unchecked access to the child, and the abuse has occurred on a regularbasis and in a consistent manner over a prolonged period oftime, the child may have no meaningful reference point oftime or detail by which to distinguish one specific act from another. The more frequent and repetitive the abuse, the more likely it becomes that the victim will be unable to recall specific dates and places. Moreover, because the molestation usually occurs outside the presence ofwitnesses, and often leaves no permanentphysical evidence, the State's case rests on the testimony ofa victim whose memory may be clouded by a blur ofabuse and a desire to forget.
10No. 3 1 544-4-III State 

### v. Andlovec

In cases where the accused child molester virtually has unchecked access tothe victim, neither alibi nor misidentification is likely to be a reasonable defense. Thetrue issue is credibility. Brown's defense was not alibi or misidentification, but complete denial, coupled with an attack on [the victim's] credibility. Thejury'stask was to decide whowas telling the truth, the defendant orthe victim. In light ofthe fact that thejurywas instructed that its verdict mustbe unanimous as to the offense relied on for conviction, we do notthink more specificity in testimony was necessary for thejuryto reach aproper verdict. We think this holding strikes a proper balance ofthe competing interests involved in "resident child molester" cases. Rendering such testimony as was given here inadequate even under a unanimity instruction would force prosecutors to make an election that the Petrich court described as "impractical." With the exception ofthose who happen to select victims with better memories or who are I-act offenders, the most egregious child molesters effectively would be insulated from prosecution. We cannot countenance such a result when alibi or misidentification is not raised as a defense. 55 Wn. App. at 747-49 (citations omitted). We hold that for crimes against children, the prosecution may charge a defendant with a continuing course ofconduct, and, in such cases, aPetrich instruction is unnecessary. Community Custody ConditionforAlcohol Thetrial court imposed the community custody conditionthat Aaron Andlovec "not use, possess orpurchase alcohol, nor go to establishments where alcohol is the prime commodity for sale." CP at 171. Andlovec challenges this condition for the first time on appeal. However, established case law holds that illegal or erroneous sentences may be challenged for the first time on appeal. State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 

# f

11 

# ! f**~** 

### rNo. 31544-4-111 

### I I I

r State v. Andlovec (1999). This courtreviews sentencing conditions for an abuse ofdiscretion. State v. Crockett, 118 Wn. App. 853, 856, 78 P.3d 658 (2003). This courtreverses only ifthe decision is manifestly unreasonable or based on untenable grounds. State v. Williams, 157 Wn. App. 689, 691, 239 P.3d 600 (2010). As apart ofany sentence, the court may impose and enforce crime-related prohibitions and affirmative conditions as provided in chapter 9.94A RCW. RCW 9.94A.505(8). A "crime-relatedprohibition" is a restraint on "conductthat directly relates to the circumstances ofthe crime for which the offender has been convicted." RCW 9.94A.030(l0). Intum, "[c]ircumstance" is defined as "[a]n accompanying or accessory fact." Williams, 157 Wn. App. at 692 (quoting BLACK'S LAWDICTIONARY 277 (9th ed. 2009)). Nothing in the record relates alcohol to the circumstances ofAndlovec's convictions. Therefore, 9.94A.505(8) cannot be the basis ofthe prohibition on alcohol. As the State notes, thetrial court holds discretion, under RCW 9.94A.703(3)(e), to order any offender to refrain from consuming alcohol, while on community custody. Thus, we uphold the sentence ofAaron Andlovec to the extent he is prohibited from drinking alcohol. The community custody condition at issue goes farther, however, and bans Andlovec from possessing orpurchasing alcohol and from entering an establishment whose principal business is the service ofalcohol. We hold thatthese additional provisions exceeds the trial court's statutory authority.

12No. 3 I544-4-III State v. Andlovec CONCLUSION We affirm Aaron**Andlovec~s** three**convictions~** butremand this case with instructions to the trial court to strike those portions ofthe alcohol-related community custody condition that exceed RCW 9.94A.703. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate**Reports~** butit will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

# r~ 

# ()**Lawrence-Berrey~** 

### J.

13