Washington Child Molestation Lawyers

Convicted And Sentenced For Third Degree Child Molestation, Attempted Third Degree Child Molestation

BAKER, J.   Morris O'Dell was convicted and sentenced for third degree child molestation, attempted third degree child molestation, and 15 counts of communication with a minor for immoral purposes.  Because the victim testified to multiple incidents but the trial court ruled that as a matter of law only one incident merited submission to the jury for child
molestation, O'Dell argues that the jury could have convicted him based on one of the incidents dismissed by the court.  But the prosecuting attorney elected during closing argument to rely on the incident not dismissed by the court; therefore we conclude that beyond a reasonable doubt the jury based its decision on an incident sufficiently supported by the evidence.
We reject O'Dell's other arguments, and affirm.

O'Dell's convictions arose out of allegations made by his 14-year-old stepdaughter.  The victim testified to five separate incidents on which third degree child molestation or attempted child molestation charges could rest.  She also testified to two incidents upon which two counts of communication with a minor for immoral purposes were based.  Finally, the
last 13 counts of communication with a minor for immoral purposes were based on 13 separate incidents of electronic mail ('email') he had sent to her. During closing argument, the prosecuting attorney explained to the jury that: Count I is about what happened in {the victim's} bedroom after the night that there's that garage conversation when her dad gave her alcohol.  And {the victim} told you that after she left the garage that night, she went to bed and she woke up to find the defendant kissing her forehead and pulling his hands out of her pants, her underwear; she said that she felt his hand on her private area.

The prosecuting attorney next explained that: In Count II, the defendant is charged with attempted child molestation in
the third degree, and that was the day that {the victim} stayed home from school. .  And {the victim} told you that that conversation was about licking, the defendant asked his daughter if she wanted to know what it was like to be licked, and he tried to put his hands down her pants, and she fought him off.

During deliberation, the jury asked two questions: Please provide us with the date and description of the incident for the
child molestation charge number one.  Please provide us with the date and description of the incident for attempted child molestation charge number two. After consulting with counsel, the court responded, 'Please refer to the instructions, particularly instruction number seven.' Ultimately, the jury convicted O'Dell on all 17 counts.  The court sentenced O'Dell to 29 months for his count I felony conviction of child molestation in the third degree, 90 days for his count II misdemeanor
conviction of attempted child molestation in the third degree, and 30 days each for counts III - XVII, communication with a minor for immoral purposes (misdemeanors).  The court ordered all of the sentences to run consecutively. The court found that O'Dell had earned 585 days of credit for time served in the King County jail.  The court applied 45 days to the felony sentence and 540 days to the misdemeanor sentences.

We review de novo the application of a statute.1  We also review de novo a challenge to the adequacy of a 'to convict' instruction.2 ''Criminal defendants in Washington have a right to a unanimous jury verdict.''3  More specifically, '{i}n multiple acts cases where several acts are alleged, any one of which could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime.'4 Generally, to protect jury unanimity, either the State must elect the act
upon which it will rely for conviction, or the 'court {must} instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt.'5  But if a defendant is convicted in a multiple acts case where the prosecution did not elect the act upon which it relied for a conviction, and failed to support one of the acts with sufficient evidence for a conviction, the conviction must be reversed.6 A person commits 'child molestation in the third degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual contact with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.'7 ''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 or a third party.'8 The State presented evidence of three incidents that it claimed could support a child molestation charge. 

The three incidents included an incident in the victim's bedroom, a tackling incident, and an incident in the parents' bedroom on a day the victim stayed home from school.  The trial court ruled that sufficient evidence existed to support submission to the jury for only the incident in the victim's bedroom. Because the court ruled that two of the incidents were not sufficiently supported by evidence to submit to the jury, O'Dell argues that his conviction for child molestation should be reversed.  He makes a similar argument for the charge of attempted molestation.  But even in multiple acts cases where at least one of the acts is not supported by sufficient evidence, jury unanimity still may be protected if the State, 'in its discretion, elect{s} the act upon which it will rely for conviction.'9 During closing argument, the State elected the acts on which it relied, leaving no doubt that the jury's unanimous verdicts were based on incidentssupported by the evidence.

O'Dell argues that despite this election, the jury indicated its confusion during deliberations when it submitted two questions:  'Please provide us with the date and description of the incident for the child molestation charge number one.  Please provide us with the date and description of the incident for attempted child molestation charge number two.' But the jury's questions may not be used as support for the idea that its members were confused when it arrived at the verdict.  In State v. Ng,10 our
Supreme Court explained that '{t}he individual or collective thought processes leading to a verdict 'inhere in the verdict' and cannot be used to impeach a jury verdict.'11  The court further explained that a 'jury's question does not create an inference that the entire jury was confused, or that any confusion was not clarified before a final verdict was reached.'12
Although the jury here asked a question that seemingly signals confusion as to which incidents the State elected, we cannot assume that the confusion was not cleared up during the remainder of deliberations. O'Dell also argues that in State v. Refuerzo,13 this court called into question the effectiveness of the State making its election during closing argument.  In Refuerzo, we noted that even if the State elected a defendant's flight from a bicycle officer over his flight from a marked
police car as the basis for an eluding charge, the jury would not be precluded from relying on the flight from the police car for the finding of guilt.14  We noted that the trial court instructed the jury that the attorneys' remarks and arguments were not evidence and decided that because evidence supported the other incident, the jury could rely on it for a conviction.15
But the facts in Refuerzo are easily distinguishable from the facts in O'Dell's case. 

The court in Refuerzo ultimately found that substantial evidence supported both incidents upon which the jury may have relied.16 Thus, unlike in Odell's case, Refuerzo did not involve multiple incidents where at least one of the incidents was not supported by sufficient evidence.  Because the court found both incidents were supported by sufficient evidence, our commentary on the effectiveness of the prosecuting
attorney's election was not dispositive and therefore, dicta.17  Moreover, even if our commentary in Refuerzo were not dicta, we would not read it as challenging the long-held belief that the State may 'elect the act upon which it will rely for conviction.'18 Next, O'Dell argues that the trial court erred by failing to give him full credit for time served.  O'Dell argues that the court failed to grant his constitutional and statutory right for credit for time served.  The court applied 540 days to the misdemeanor sentences, but only 45 days to the felony sentence.  O'Dell claims that all 585 days should have been applied
to his felony sentence.

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