State v. Carson, 357 P.3d 1064

Background

Carson lived with the victim C.C. (age 5) and was later charged with three counts of first-degree child molestation based on three incidents described in a forensic interview.
The amended information charged three counts with identical broad date ranges because C.C. could not give specific dates.
At trial the jury viewed the videotaped forensic interview (which described three incidents) multiple times; C.C.’s live testimony was often non-committal.
The State proposed a WPIC/Petrich unanimity instruction; defense counsel objected as confusing in a multicount case and the court sustained the objection.
The prosecutor’s closing argument explicitly elected the three incidents from the videotape as the acts the State relied on for conviction.
Carson was convicted on all three counts and appealed, arguing ineffective assistance because counsel objected to the Petrich instruction.

Issues

Issue	Carson's Argument	State/Defense Argument	Held
Whether defense counsel’s objection to the Petrich unanimity instruction was deficient performance (ineffective assistance)	Counsel erred by objecting and thereby deprived Carson of required unanimity protection	Counsel reasonably objected because the standard Petrich wording (designed for single-count cases) would confuse/prejudice a jury in a multicount case and fit defense strategy	Not deficient: counsel’s objection was a reasonable tactical choice to avoid jury confusion and advance the all-or-nothing innocence defense
Whether any deficient performance prejudiced Carson under Strickland	Absence of a Petrich instruction risked nonunanimous convictions and thus prejudice	No prejudice because the prosecutor clearly elected the three specific acts in closing argument, eliminating the need for Petrich	No prejudice: State’s clear election meant unanimity instruction unnecessary; outcome would not likely differ
Whether Petrich unanimity instruction is required in multicount cases when acts = counts	Petrich (or a multicount variant) was required to ensure juror unanimity across counts	Petrich originates from single-count contexts; in this record counsel reasonably feared the model instruction would confuse jurors; election by prosecutor obviated instruction	Court did not adopt a broad rule; held only that here Petrich was unnecessary because of election and counsel’s objection was reasonable
Whether trial counsel’s stated misunderstanding of law (that Petrich applies only to single-count cases) renders performance per se deficient	Any legal misunderstanding that led to refusing the instruction made counsel’s conduct unreasonable	Even if counsel had some misunderstanding, the record shows his primary concern was jury confusion and strategy, so performance not per se deficient	Not per se deficient: record shows tactical concern about confusion and strategy, so decline to impose automatic deficiency rule

Key Cases Cited

State v. Petrich, 101 Wn.2d 566 (Wash. 1984) (established unanimity rule when multiple distinct acts support a single charged count)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance test: deficient performance and prejudice)
State v. Kitchen, 110 Wn.2d 403 (Wash. 1988) (explains that prosecution election or jury instruction can assure unanimity)
State v. Kyllo, 166 Wn.2d 856 (Wash. 2009) (presumption that counsel’s choices are reasonable trial tactics)
State v. Vander Houwen, 163 Wn.2d 25 (Wash. 2008) (unanimity instruction required where multiple acts/counts and the State failed to identify which acts corresponded to which counts)
State v. Grier, 171 Wn.2d 17 (Wash. 2011) (ineffective assistance standard; tactical decisions protected absent no conceivable legitimate tactic)