THE STATE OF WASHINGTON, Respondent, v. LARRY J. CAMARILLO, Petitioner
No. 56469-8
En Banc. Supreme Court of Washington
July 26, 1990
Washington law provides that no deficiency judgment may be obtained after a deed of trust foreclosure. However, where a junior deed of trust holder does not foreclose, that junior deed of trust holder is not precluded from suing under the note. See Adams v. FedAlaska Fed. Credit Union, 757 P.2d 1040 (Alaska 1988) where the Alaska Supreme Court permitted a creditor who held a second deed of trust on real property sold at a foreclosure sale to maintain a suit against the debtor on the promissory note, even though the creditor had no security interest on which to foreclose. In this case, Washington Mutual Savings Bank may bring action against the Shells for any balance owing under the promissory note in excess of the amount received by reason of the Internal Revenue Service redemption.
Reconsideration denied November 26, 1990.
CALLOW, C.J. -The defendant, Larry Camarillo, was charged by information with indecent liberties with an 11-year-old boy. The charge was brought under
On appeal the defendant claimed he was denied a fair trial because the State failed to elect which act of three incidents it was relying upon. The 1-count information covered a period during which there was evidence of three distinct commissions of the offense. The defendant further argued that State v. Petrich, 101 Wn. 2d 566, 683 P.2d 173 (1984)3 should be applied retroactively to provide for a jury instruction on jury unanimity when the State presents evidence of multiple acts but only one count is charged. The Court of Appeals affirmed the conviction. State v. Camarillo, 54 Wn. App. 821, 776 P.2d 176 (1989). We granted review.
The boy testified that the defendant accomplished sexual contact on three separate occasions. The first time the boy was at the defendant‘s house for dinner with his mother.
The second incident occurred at the defendant‘s house. This time the victim was spending the night at the defendant‘s house because he was babysitting for the boy‘s mother. On this occasion the boy was on the defendant‘s bed watching television. The boy testified that the defendant entered, lay beside him on the bed and placed his hand down the boy‘s pants and fondled him for 5 to 10 minutes.
The third incident occurred at the boy‘s house and was similar to the first. The boy testified that the defendant came into his bedroom and again sat him on his lap. The defendant then rubbed the zipper area of the boy‘s jeans.
About a year later the victim told a friend what had occurred because the friend‘s mother had discussed sharing a residence with the defendant. The victim then told his mother and she informed the police.
When the charge came to trial and the jury was instructed, defense counsel did not request that the State elect which act it relied upon for conviction, nor did the defense request a unanimity instruction.4
To convict a person of a criminal charge, the jury must be unanimous that the defendant committed the criminal act. State v. Stephens, 93 Wn. 2d 186, 190, 607 P.2d 304 (1980); State v. Badda, 63 Wn. 2d 176, 385 P.2d 859 (1963). In cases where there is evidence of multiple acts of like misconduct which relate to one charge against the defendant, the State is required to elect which act it is relying upon for a conviction. State v. Workman, 66 Wash. 292, 119 P. 751 (1911); State v. Sargent, 62 Wash. 692, 114 P. 868 (1911); State v. Osborne, 39 Wash. 548, 81 P. 1096 (1905). Workman states:
[W]hile evidence of separate commissions of the offense may be admitted as tending to prove the commission of the specific act relied upon, the proper course in such a case, after the evidence is in is to require the state to elect which of such acts is relied upon for a conviction.
State v. Petrich, supra, construed the rule in Workman to require the trial court to instruct the jury that all 12 members had to agree that the same underlying act has been proven beyond a reasonable doubt if the State neglects to elect which act constituted the crime. In effect, Petrich was a reiteration and clarification of Workman. The Workman-Petrich rule assures a unanimous verdict on one criminal act thereby protecting a criminal defendant‘s right to a unanimous verdict. Petrich, 101 Wn. 2d at 572. Failure of the court to follow the rule in Workman and Petrich is “violative of a defendant‘s state constitutional right to a unanimous jury verdict and United States constitutional right to a jury trial.” State v. Kitchen, 110 Wn. 2d 403, 409, 756 P.2d 105 (1988); State v. Badda, 63 Wn. 2d 176, 385 P.2d 859 (1963); State v. Allen, 57 Wn. App. 134, 788 P.2d 1084 (1990);
We turn to whether the failure by the State to elect which of the multiple acts it would rely upon to prove the charge or to give a unanimity instruction was harmless error in this case. Kitchen stated the standard of review when there is an error in multiple acts cases which puts jury unanimity in question, as follows:
In reviewing a multiple acts case in which there has been no election by the State or unanimity instruction by the trial court, the proper standard for determining whether the error is harmless is . . .
if a rational trier of fact could have a reasonable doubt as to whether each incident established the crime beyond a reasonable doubt. [State v.] Loehner, 42 Wn. App. [408,] 411 [711 P.2d 377 (1985)] (Scholfield, A.C.J., concurring) . . . This approach presumes that the error was prejudicial and allows for the presumption to be overcome only if no rational juror could have a reasonable doubt as to any of the incidents alleged.
Kitchen, 110 Wn. 2d at 411. Thus in multiple acts cases the standard of review for harmless error is whether a “rational trier of fact could find that each incident was proved beyond a reasonable doubt.” State v. Gitchel, 41 Wn. App. 820, 823, 706 P.2d 1091, review denied, 105 Wn. 2d 1003 (1985). See also State v. Badda, 63 Wn. 2d 176, 385 P.2d 859 (1963); State v. Allen, supra. Errors of constitutional proportions will not be held harmless unless the “appellate court is ‘able to declare a belief that it was harmless beyond a reasonable doubt.‘” State v. Burri, 87 Wn. 2d 175, 182, 550 P.2d 507 (1976) (quoting Chapman, 386 U.S. at 24).
In Kitchen, this court reversed the conviction and remanded for a new trial because “[t]here was conflicting testimony as to each of those acts and a rational juror could have entertained reasonable doubt as to whether one or more of them actually occurred.” Kitchen, 110 Wn. 2d at 412. State v. Coburn, 110 Wn. 2d 403, 409, 756 P.2d 105 (1988), a case consolidated with Kitchen, reversed Coburn‘s conviction because the testimony of the child victim was impeached and because the jury heard testimony pertaining to Coburn‘s reputation in the community for truth, veracity and good morals. Furthermore, as in Kitchen‘s case, the jury heard conflicting testimony “as to each of those acts and a rational juror could have entertained reasonable doubt as to whether one or more of them actually occurred.” Kitchen, 110 Wn. 2d at 412.
In State v. Petrich, supra, the defendant‘s conviction was overturned because this court was not satisfied that the failure of the State to elect error was not harmless due to the child‘s testimony. The victim in Petrich was able to
In the present case, the evidence admitted at trial came from the child victim, his mother, the defendant and an elderly woman who shared a residence with the defendant at all relevant times. As to the first incident the boy testified as to what the defendant had done and the attendant circumstances.5
The second incident occurred at the defendant‘s residence when the boy spent the night with the defendant because the defendant was babysitting for the boy‘s mother. Again, the boy‘s testimony was specific about what
The defendant‘s testimony contained a general denial that he had ever touched the boy in the fashion described through the boy‘s testimony. The defendant also had the
The defendant was charged under the former indecent liberties statute.9 Indecent liberties occurs when:
(1) A person . . . knowingly causes another person who is not his spouse to have sexual contact with him or another:
(b) When the other person is less than fourteen years of age
. . . .
(2) For the purposes of this section, “sexual contact” means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party.
The evidence related to the defendant‘s commission of the same acts, repeatedly, with the boy victim.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The admissibility of the evidence must meet the standard in ER 403 which provides “[a]lthough relevant,
State v. Thorne, 43 Wn. 2d 47, 60, 260 P.2d 331 (1953) held that it is proper for “[s]uch evidence [to be] admitted for the purpose of showing the lustful inclination of the defendant toward the offended female, which in turn makes it more probable that the defendant committed the offense charged.” In numerous other cases this court has “invoked an exception in similar cases to permit evidence of collateral sexual misconduct when it shows a lustful disposition directed toward the offended [victim].” State v. Ferguson, 100 Wn. 2d 131, 133-34, 667 P.2d 68 (1983); State v. Golladay, 78 Wn. 2d 121, 470 P.2d 191 (1970), overruled on other grounds in State v. Arndt, 87 Wn. 2d 374, 553 P.2d 1328 (1976); State v. Leohner, 69 Wn. 2d 131, 417 P.2d 368 (1966); State v. Fischer, 57 Wn. 2d 262, 356 P.2d 983 (1960); State v. Thorne, 43 Wn. 2d 47, 260 P.2d 331 (1953).
The incidents testified to by the boy occurred between June 4, 1981, and July 10, 1982. The defendant was charged with one count of indecent liberties based on the three events testified to by the boy. Under the Rules of Evidence, the testimony was properly before the jury. The balancing of the relevancy and probity of the evidence against its harmful or prejudicial effects prior to its admission or exclusion is within the trial court‘s discretion. State v. Ferguson, supra at 135.
The uncontroverted evidence upon which the jury could reach its verdict reveals no factual difference between the incidents. As observed by the Court of Appeals:
Here, besides Camarillo‘s bare denial of the allegations, there is no direct, contravening evidence concerning the occurrence of the alleged incidents. The jury, in order to render the verdict it did, must have chosen to believe S. Because proof of the substantially similar incidents relied upon a single witness’ detailed, uncontroverted testimony, and because Camarillo offered no evidence upon which the jury could discriminate between the incidents, a rational juror believing one of the incidents actually occurred would necessarily believe that the others occurred as well.
Our task is to determine whether a rational trier of fact could have a reasonable doubt as to whether any of the incidents did not establish the crime. In other words, whether the evidence of each incident established the crime beyond a reasonable doubt.
In the case at bar, the child testified with specificity about the details of the defendant‘s actions. He recalled what the defendant did to him and the circumstances which led up to the defendant molesting him. There was no conflicting testimony which would have placed any reasonable doubt in the mind of a juror that the events did not happen as described by the boy.
In State v. Allen, 57 Wn. App. 134, 788 P.2d 1084 (1990), a multiple acts case, Allen was convicted of indecent liberties based on the testimony of the child victim. The same issue was present in Allen as is present in this case, to wit: failure of the State to elect which act it was relying upon and failure to instruct on jury unanimity. In Allen, as here, when the defendant testified he stated only a general denial that any improper physical contact occurred. This case and
In view of Dixson‘s10 general denial of any improper physical contact and C.P.‘s testimony that substantially the same contact occurred during each visit, we find no rational basis for jurors to distinguish among the acts charged in count 1. The jurors had either to believe Dixson and acquit or believe C.P. and convict.
Allen, 57 Wn. App. at 139. The same is true in the case before us.
There was no uncertainty on the part of the boy regarding the type of sexual contact; there was no conflicting testimony about what had occurred on the three occasions testified to by the boy; the boy‘s testimony was unimpeached; and there was no attendant confusion as to dates and places on the part of the victim. The error was harmless beyond a reasonable doubt.
The conviction is affirmed.
DOLLIVER, DORE, ANDERSEN, DURHAM, SMITH, and GUY, JJ., concur.
UTTER, J. (concurring) - I agree with the majority‘s holding that the special facts of this case justify holding that the failure to give a unanimity instruction was harmless in this case. I write separately because the majority‘s reasoning, if read too expansively, might undermine the standard that this court unanimously agreed governs the question of harmless error. See State v. Kitchen, 110 Wn. 2d 403, 756 P.2d 105 (1988).
I agree with the majority that no reasonable juror could have found the defendant innocent. I am concerned, however, about reading the jury‘s collective mind to reach that result. Kitchen requires a presumption of prejudice whenever jury instructions are erroneous as to unanimity, precisely because the error usually makes it impossible to determine what the jury found factually. Without a unanimity instruction in a multiple acts case, the jury might convict even though it was not unanimous about any particular act having occurred. Kitchen, at 411. For that reason, the majority‘s citation to State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335, review denied, 109 Wn. 2d 1008 (1987) is inappropriate. In Casbeer, the Court of Appeals upheld a finding of nonentrapment in a bench trial because a specific factual finding about the lack of credibility of a witness supported it. If the jury made specific factual findings about the credibility of witnesses, I would readily agree to uphold these findings if supported by substantial evidence. Because the jury reaches its verdict without entering specific findings of fact, however, assumptions about what the jurors must have thought are usually grossly unfair to defendants appealing constitutionally defective jury instructions. An improperly instructed jury may reach a verdict without reaching the factual conclusions which should support a verdict.
This record, however, forces me to agree with the majority that the jury could not have reached the verdict it did without concluding that the victim was telling the truth about all three incidents and that the defendant was lying about all of them. Because nothing in the record suggests that the credibility of the two principals varied as to any of the incidents and no other direct evidence of the acts was introduced, I agree that given the credibility judgment the
I wish to emphasize that most records do not permit such confident inferences about what the jurors must have concluded. Such inferences will be inappropriate in almost any other case. We must always ask ourselves not just what we would have concluded were we the juror. We must decide whether any rational juror could have a reasonable doubt as to any of the acts alleged in deciding a harmless error question. Kitchen, at 411. Because no reasonable juror could have a reasonable doubt about any of the acts alleged in this case, I concur in the majority opinion.
BRACHTENBACH, J., concurs with UTTER, J.