Tеrry Miller appeals from the district court’s order granting summary dismissal of his application for post-conviction relief. He argues that on Count I of the two count indictment the jury was presented with evidence of several acts of manual-genital touching, each of which could have constituted the charge. He asserts that his trial counsel’s failure to request a unanimity instruction constituted ineffеctive assistance of counsel because the jury could have returned a non-unanimous verdict by agreeing that an act constituting the charge was committed, but disagreeing as to which specific incident occurred. For the reasons set forth below, we affirm the district court’s dismissal of Miller’s application.
I.
FACTS AND PROCEDURE
A. Facts And Proceedings In The Underlying Criminal Case
As explained by this Court in
State v. Miller,
*264 Miller was charged with and tried on one count alleging manual/genital contact and one count alleging fellatio with an eight-year-old girl, C.B. The offenses were alleged to have taken place between August 19, 1991, and January 1994, while Miller was living with C.B., her mother and C.B.’s two younger sisters. At trial, Miller presented evidence of his good character through the testimony of various character witnesses and by cross-examination of the state’s witnesses. In his closing argument to the jury, defense counsel pointed out that the person depicted by his client’s witnesses contrasted significantly with the complaining witness’s testimony, which counsel argued appeared to be very well rehearsed and, therefore, unreliable. The jury returned a verdict of guilty on both counts. The district court imposed concurrent sentences of twenty years, with minimum terms of confinement of eight years. Miller appeаled.
This Court’s opinion affirmed Miller’s conviction on July 11,1997.
B. Facts And Procedure In Post-Conviction Proceedings
On July 10, 1998, Miller, with the assistance of counsel, filed a timely application for post-conviction relief alleging his trial counsel had been ineffective in failing to request a unanimity instruction and by failing to preserve and raise the issue on direct appeal. The state filed an answer asserting that there were no genuine issues of material fact, and filed a motion for summary disposition. Miller also filed a motion for summary disposition, asserting that, given the state’s answer, there were no issues of material fact.
Following a hearing on the cross motions for summary disposition, the district court ordered summary dismissal in favor of the state, explaining that:
The rationale for allowing a “continuing course of conduct” is due to the very nature of child molеstation. In these eases, there is usually a close relationship between the victim and the abuser. The abuser may have access to the victim and may even live with the victim, having the leverage of authority and control. Often these cases involve threats, coercion and psychological, physical and emotional pressure. Such crimes often are not promptly reported. They may occur many times before there is disclosure to a responsible adult. Fear, shame, confusion, naivete or weakness of the victim can be exploited by the abuser to prevent disclosure of his acts. Dates and times go unnoted until they can not be recalled by the victim. The more the incidents are repeated the more difficult it becomes to pinpoint the individual events.
In this case, the Court believes that there was a continuing course of conduct. Evidence that a defendant engages 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 distinct acts. Inquiring into the “circumstances of the conduct and considerаtion of the intent and objective of the actor” as required by State v. Major,111 Idaho 410 ,725 P.2d 115 (1986), the Court finds that the intent and the objective were one over the course of time. Actions such as the kind alleged in this case were to secure the same objective: “to arouse, appeal to, or gratify the lust or passions or sexual desires” of the petitioner or his victim.
Responding to Miller’s argument that there was no “continuous course of conduct” because there were six alleged incidents of manual-genital contact between Miller and the victim, the court ruled:
As recognized in State v. Taylor, [118 Idaho 450 , 452,797 P.2d 158 , 160 (Ct.App.1990),] “[i]n child sexual abuse eases involving a continuous course of sexual abuse, and evidence of frequent, secretive offenses over a period of time, credibility, not alibi, is the only issue.” Either the jury will believe the child’s testimony that the consistent, repetitive pattern of acts occurred or they will disbelieve it. The victim’s testimony regarding the specific incidents was consistent and the pattern was repetitive. The petitioner has not shown conflicting testimony as to any of those acts. Based upon the record before *265 the Court, even if there was no “continuing course of conduct,” to provide the prоper actus reus, the Court finds beyond a reasonable doubt that the jury would have reached the same result if it would have been given a unanimity instruction. The jury plainly believed the victim by returning two unanimous guilty verdicts. Thus, if there was error, the error was harmless. The petitioner cannot show prejudice based on the Strickland [v. Washington,466 U.S. 668 ,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984) ] test for ineffective assistance of counsel and the petitioner’s request for relief must be denied.
[Bjased on the foregoing, counsel’s failure to appeal the issue cannot be said to prejudice the petitioner. Thus, his claim for ineffective assistance on appeal must also be denied.
Miller filed a timely notice of appeal.
II.
STANDARD OF REVIEW
An application for post-conviction relief initiates a proceeding which is civil in nature.
Pizzuto v. State,
The facts are not disputed. Thus, the only question before us is one of law, whether trial counsel’s failure to request a unanimity instruction or alternatively, to preserve and raise the issue on direct appeаl, constituted ineffective assistance of counsel. Requisite to this inquiry is the legal question of whether a unanimity instruction was required at all. Whether the jury instructions fairly and adequately present the issues and state the applicable law is a question of law over which this Court exercises free review.
State v. Bush,
III.
DISCUSSION
A. Law Applicable To Ineffective Assistance Of Counsel Claims
To establish that his trial counsels’ alleged errors constituted ineffective assistance of counsel, Miller must show that (1) trial counsel’s performance was deficient and (2) trial counsel’s deficient performance рrejudiced his defense.
Strickland v. Washington,
As noted in
Strickland v. Washington,
Because of the difficulties inherent in [evaluating counsel's performance], a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the рresumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’
*266 B. Lewd And Lascivious Conduct Does Not Contain A Separate Continuing Course Of Conduct Element
Idaho Criminal Rule 8 requires that each crime be charged in a separate count. The indictment in the underlying criminal case charged Miller as follows:
[O]n or about August, 1991, through January, 1994, as a continuing course of conduct, 1 in the County of Canyon, State of Idaho, did willfully and lewdly, commit a lewd and lascivious act upon the body of a minor, C.B., under the age of sixteen years, to wit: then seven (7) to (8) years of age, by having manual to genital contact with the intent to arouse, appeal to or gratify the lust, passion and sexual desire of the defendant.
(Emphasis added.) A legally sufficient indictment or information is a plain, concise, and definite written statement of the essential fаcts constituting the offense charged. I.C. §§ 19-1303, 19-1409 through 19-1418;
State v. Robran,
Miller alleged in his application for post-conviction relief, and argues on appeal, that the “continuing course of conduct” language prejudiced him because the jury might have agreed that he committed an act constituting the charge, but disagreed as to which specific act the young victim testified to constituted the offense. The state, on the other hand, argues that Idaho Code § 18-1508 provides for a charge based upon a continuous сourse of conduct.
Idaho Code § 18-1508 provides:
Any person who shall commit any lewd or lascivious act or acts upon or with the body or any part or member thereof of a minor child under the age of sixteen (16) year’s, including but not limited to, genital-genital contact, oral-genital contact, anal-genital contact, oral-anal contact, manual-anal contact, or manual-genital contact, whether between persons of the same or opposite sex, or who shall involve such minor child in any act of bestiality or sadomasochism as defined in section 18-1507, Idaho Code, when any of such acts are done with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person, such minor child, or third party, shall be guilty of a felony and shall be imprisoned in the state prison for a term of not more than life.
(Emphasis added.) While the statute criminalizes “act or acts,” we do not interpret this language to allow for a continuing course of conduct element. Rather, the legislature’s use of the plural is a recognition that a series of sexual contacts by different means which occur as a part of a single incident, i.e., a continuous transaction without significant breaks, are to be charged as a single cоunt of lewd conduct.
Compare State v. Estes,
Accordingly, we hold that Idaho Code § 18-1508 does not contain a separate continuing course of conduct element.
*267 C. Multiple Offenses Were Committed By Miller
Whether a course of criminal conduct constitutes a single or multiple offenses depends on “whether or not the conduct constituted separate, distinct and independent crimes” and “requires an inquiry into the circumstances of the conduct and consideration of the ‘intent and objeсtive of the actor.’ ”
Bush,
Whether a course of conduct constitutes one offense or several can be a troublesome question, [footnote omitted] The distinction is important: to charge a defendant with two offenses when only one was committed violates the defendant’s right against double jeopardy, U.S. Const, amend. V, Idaho Const, art. 1, § 13; conversely, to charge a defendant with onе offense when more than one was committed can prejudice the defendant “in the shaping of evidentiary rulings, in producing a conviction on less than a unanimous verdict as to each separate offense, in sentencing, in limiting review on appeal, and in exposing the defendant to double jeopardy.” Criminal Procedure, § 19.2(e), p. 457.
Whether a course of criminal conduct should be divided or aggregated depends on whether or not the conduct constituted “separate, distinct and independent crimes.” State v. Hall,86 Idaho 63 , 69,383 P.2d 602 , 606 (1963). This inquiry requires consideration of the circumstances of the conduct, see State v. McCormick,100 Idaho 111 , 115-16,594 P.2d 149 , 153-54 (1979) (Where act of burglary was completed before act of rape, these were separate criminal acts.); Hall, supra,86 Idaho at 75 ,383 P.2d at 610 (Where robbery was completed before murder committed, thesе were separate acts.), and consideration of the “intent and objective of the actor.” In re Ward,64 Cal.2d 672 ,51 Cal.Rptr. 272 , 275,414 P.2d 400 , 403 (1966), cert. denied,385 U.S. 923 ,87 S.Ct. 238 ,17 L.Ed.2d 147 .
A recitation of the victim’s testimony from the trial in the underlying criminal case, viewed in light of Major, reveals that six separate incidents of manual-genital contact occurred between Miller and C.B. The first incident transpired approximately two weeks after Miller moved in with C.B. and her mother. On a separate occasion, Miller forced C.B. to have manual-genital contract and oral-genital contact with him. On yet another occasion, Miller fondled C.B. while he was watching a pornographic movie. C.B. described three more separate and discrete incidents in which Miller had manual-genital contact with her, occurring at unspecified times between August 1991 and January 1994. Each incident C.B. described was separated by an indeterminate period of time, was of brief duration, and involved unique circumstances.
Under the analysis set forth in Major, each incident was a separate, distinct and independent crime, rather than a part of a continuing course of conduct without end. Accordingly, we conclude that Miller committed multiple offenses rather than one continuing offense over a period of time.
D. Counsel’s Failure To Request A Unanimity Instruction Was Harmless Error
In a criminal case, the district court has a duty to give jury instructions on “all matters of law necessary for their information .” I.C. § 19-2132;
State v. Mack,
To the extent that evidence of a continuing course of conduct is relevant, all the incidеnts C.B. testified to are admissible under I.R.E. 404(b) to prove motive, opportunity, intent, preparation, identity, or plan to exploit and sexually abuse the victim.
See, e.g., State v. LaBelle,
In this case, the prosecutor could have properly charged Miller with two or more counts of the six specific instances, because each consisted of a separate incident — a distinct union of
mens rea
and
actus reus
separated by a discrete period of time and circumstancе from any other such similar incident. Therefore, Miller was entitled to a jury instruction directing the jury to find him guilty, beyond a reasonable doubt, of a single agreed upon incident. No such instruction was given.
See State v. Petrich,
As the district court noted, C. B.’s testimony relating to the specific instances of sexual misconduct was uncontradieted. Counsel for Miller limited his cross-examination to inquiry into the victim’s credibility and motive for fabrication. The jury obviously found C. B.’s testimony credible, as Miller was found guilty on both counts of the indictment. We also note that C. B.’s uncontradieted testimony on any one of the specific instances of manual-genital touching would have satisfied Count I of the indictment. Accordingly, had any single incident of manual-genital contact beеn relied upon as the basis for the charge, we are convinced, beyond a reasonable doubt, that the jury would have found Miller guilty on that basis given the admissibility of all the other incidents under I.R.E. 404(b).
See Spor,
The district court addressed the prejudice prong of the Strickland test in its notice of intent to dismiss when it explained that, even if there was no “continuing course of conduct ... beyond a reasonable doubt ... the jury would have reached the same result if it would have been given a unanimity instruction. The jury plainly believed the victim by returning a guilty verdict. Thus, the error— the failure to give a unanimity instruction— was harmless. The petitioner cannot show prejudice based on the Strickland test for ineffective assistance of counsel аnd the petitioner’s request for relief must be denied.” *269 Finding that the error at trial was harmless, the court ruled that Miller was not prejudiced by his counsel’s failure to preserve and raise the unanimity instruction issue on direct appeal. Given our discussion above, we agree.
IV.
CONCLUSION
Miller has failed to demonstrate that the district court erred in ordering summary dismissal of his application for post-conviction relief. Accordingly, we affirm the district court’s dismissal of Miller’s application for post-conviction relief.
Notes
. Jury Instruction No. 21 stated, in pertinent part, that the state bore the burden of proving beyond a reasonable doubt that the offense occurred "on or about August, 1991, through January, 1994, as a continuing course of conduct.”
. Because Miller could have been properly charged with six counts оf lewd conduct, not raising the issue of unanimity may well have been a legitimate tactical decision. In a case charging a continuous course of conduct, the defense can argue that the state obligated itself to prove the entire course of conduct, i.e., each constituent act of lewd conduct, beyond a reasonable doubt. Furthermore, while suffering but one conviction, the defendant obtains double jeopardy protection on any such acts between the defendant and the victim occurring during the entire period of the alleged course of conduct.