THE STATE OF WASHINGTON, Respondent, v. ALFRED LOEHNER, Appellant.
No. 15218-1-1
Division One
December 23, 1985
408 Wash. App. 408
Mark W. Muenster of Washington Appellate Defender Association, for appellant.
Norm Malеng, Prosecuting Attorney, and Kathryn Goater, Deputy, for respondent.
WILLIAMS, J.--Alfred Loehner was charged by information with one count of second degree statutory rape, which was alleged to have been committed between June 1, 1982, and February 1, 1984. Two trials werе held. The first jury deadlocked and a mistrial was declared. The second jury returned a guilty verdict. The trial court denied Loehner‘s
At trial, the complaining witness, K. B., then age 13, testified that Loehner sexually abused her on five or six different occasions over a 21-month period. She also testified about two incidents involving Loehner with other children. In one K. B. and her friend saw Loehner smelling their dirty laundry. In the other K. B. saw Loehner sexually abuse the 1-year-old baby of a family friend.
The first issue is whether the trial court erred by not requiring the State to elect the incident upon which it was relying to convict or to require that the jury be unanimous as to the incident on which they found Loehner guilty. The rule is that:
When the еvidence 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. . . . The State may, in its discretion, elect the act upon which it will rely for convictiоn. Alternatively, if the jury is instructed that all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, a unanimous verdict on one criminal act will be assured. When the State chooses not to elect, this jury instruction must be givеn to ensure the jury‘s understanding of the unanimity requirement.
State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984); State v. Workman, 66 Wash. 292, 119 P. 751 (1911). Loehner was charged with a single count of second degree statutory raрe, but the testimony at trial described several instances of the crime. The trial court erred because it did not require the State to elect which incident it was relying on, and it did not instruct the jury that it had to be unanimous as to which incident was the basis for liability. Such error is harmless only if a rational trier of fact could have found each incident proved beyond a reasonable doubt. Petrich, at 573; State v. Gitchel, 41 Wn. App. 820, 823, 706 P.2d 1091 (1985). In this сase the error was harmless because the victim described the first episode in detail, the
The second issue is whether the trial court erred in admitting testimony by the victim сoncerning Loehner‘s alleged sexual abuse of other children. First, Loehner objects to the admission of evidence of the “laundry sniffing” incident. Although defense counsel brought a motion in limine to exclude this testimony, he did not give reasons in support. An objection which does not specify the particular ground upon which it is based is insufficient to preserve the question for appellate review. State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985). Second, Loehner argues that the trial court erred in admitting evidence concerning his alleged abuse of the 1-year-old baby. This argument was also not properly preserved for appeal. The evidence was not spеcified in the motion in limine, it was not objected to at trial, there was no motion to strike, and a curative instruction was not requested. See State v. Gallo, 20 Wn. App. 717, 728, 582 P.2d 558 (1978).
The judgment is affirmed.
WEBSTER, J., concurs.
SCHOLFIELD, A.C.J. (concurring)--On the particular facts of this case, I agree that the trial court‘s failure to instruct on the necеssity for unanimous jury agreement on the act relied upon to convict was harmless error.
I point out, however, that the majоrity opinion states a test for harmless error which, in my view, is incorrect. The opinion states that “[s]uch error is harmless only if a
In a case involving several acts, each of which could be fоund to constitute the commission of a crime, the test for harmless error is that the error is not harmless if a rational trier of fact could have a reasonable doubt as to whether each incident established the crime beyond a reasonablе doubt. If the jury could not have a reasonable doubt about any of the incidents, then it would be immaterial that the jury may not have аgreed unanimously on a single incident relied upon for conviction. The correct test is applied in State v. Gitchel, 41 Wn. App. 820, 823, 706 P.2d 1091 (1985) and State v. Fitzgerald, 39 Wn. App. 652, 656, 694 P.2d 1117 (1985). In both cases, the fаilure to instruct was prejudicial because “a rational trier of fact could have entertained a reasonable doubt as to one or more of the incidents of abuse.” Fitzgerald, at 656.
The majority opinion cites State v. Petrich, 101 Wn.2d 566, 573, 683 P.2d 173 (1984) as authority for its statement of the test. The statement in Petrich, however, is dictа, that is, unnecessary to the decision of the court in that case. Petrich cited as authority State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982), where the test is stated on page 823. Franco, however, involved alternative means of committing a single offense. In alternative means cases, unanimity as to the means is not required. State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976). The statement of the test for harmless error cited in the majority opinion is the correct test in cases involving alternative means of committing a single offense. It has no аpplication or relevancy to a case
Review denied by Supreme Court February 21, 1986.