Docket Number: 77706-3 

Title of Case: State v. Coleman
File Date: 01/25/2007
Oral Argument Date: 10/17/2006


SOURCE OF APPEAL
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Appeal from King County Superior Court
02-1-05896-1
Honorable Joan B Allison


JUSTICES
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See the end of the opinion for the names of the signing Justices.

COUNSEL OF RECORD
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Counsel for Petitioner(s)
Oliver Ross Davis
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
Brian Martin McDonald
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA, 98104-2362


Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104






IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 77706-3
Respondent, )
) En Banc
v. )
)
JOHN E. COLEMAN, JR., )
)
Petitioner. )
____________________________ ) Filed January 25, 2007

C. JOHNSON, J. -- This case involves whether the lack of a Petrich1

unanimity instruction was harmless error where the jury heard contradictory

evidence as to at least one act in a multiple acts case. Prejudice is presumed in a

multiple acts case where there is neither an election nor a unanimity instruction.

The State agrees that a unanimity instruction was required here. In this case,

because a rational juror could have a reasonable doubt whether at least one incident

supporting the charge occurred, the presumption of error is not overcome and the

error is not clearly harmless. We reverse the Court of Appeals.

1 Recognizing that election of a particular act may at times be impractical, we modified the
Workman (State v. Workman, 66 Wash. 292, 119 P. 751 (1911)), rule and allowed either an
election or a unanimity instruction. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).

Cause No. 77706-3

Coleman was charged with molesting two children, C.V. and M.D., over a

period of three years. Count I charged Coleman with molestation of C.V.; count II

with molestation of M.D. The jury found Coleman guilty on both counts. The

judge imposed concurrent 300-month exceptional sentences. The judge found that

Coleman abused a position of trust2 and that the offense was part of a pattern of

abuse.
Coleman appealed the omitted unanimity instruction.3 Based on the lack of a

unanimity instruction, the Court of Appeals reversed on count II (the count
regarding M.D.). 4 As to count I (regarding molestation of C.V.), the Court of

Appeals affirmed; the omitted unanimity instruction was not prejudicial because the

State did not emphasize specific incidents of molestation. State v. Coleman, noted

2 Coleman is related to C.V. C.V. testified that Coleman is her grandmother's brother. 10 Report
of Proceedings (RP) at 15. The State's position is that Coleman is her grandfather's brother. Br.
of Resp't at 2.
3 Coleman also appealed the exceptional sentence. The Court of Appeals reversed Coleman's
exceptional sentence as invalid under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159
L. Ed. 2d 403 (2004). It held that if found guilty on count II, Coleman was entitled to be
resentenced within the standard range. As discussed below, we need not address the sentencing
issue.
4 The Court of Appeals wrote that "error was harmless as to Count II." Coleman, noted at 128
Wn. App. 1003, 2005 Wash. App. LEXIS 1356, at *1. The court actually affirmed Coleman's
conviction on count I (the count involving C.V.) citing harmless error. It reversed on count II.

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Cause No. 77706-3

at 128 Wn. App. 1003, 2005 Wash. App. LEXIS 1356, at *2. We granted

Coleman's petition for review challenging the finding of harmless error. State v.

Coleman, 157 Wn.2d 1001 (2006). We also granted the State's challenge to the

Court of Appeals' remand for imposition of a standard range sentence.

To convict on a criminal charge, the jury must be unanimous that the

defendant committed the criminal act. When the prosecution presents evidence of

multiple acts of like misconduct, any one of which could form the basis of a count

charged, either the State must elect which of such acts is relied upon for a

conviction or the court must instruct the jury to agree on a specific criminal act. By

requiring a unanimous verdict on one criminal act, we protect a criminal defendant's

right to a unanimous verdict based on an act proved beyond a reasonable doubt.

State v. Camarillo, 115 Wn.2d 60, 63-64, 794 P.2d 850 (1990).

An election or instruction that all 12 jurors must agree that the same

underlying act has been proved beyond a reasonable doubt assures a unanimous

verdict on one criminal act. Where there is neither an election nor a unanimity

instruction in a multiple acts case, omission of the unanimity instruction is presumed

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Cause No. 77706-3

to result in prejudice. The omission is error because of the possibility

that some jurors relied on one act or incident and some relied on another, resulting

in a lack of unanimity on all of the elements necessary for a valid conviction. State

v. Kitchen, 110 Wn.2d 403, 411-12, 756 P.2d 105 (1988). The unanimity

instruction requirement avoids the risk that jurors will aggregate evidence

improperly. Without the election or instruction, each juror may arrive at a guilty

verdict by responding to testimony about discrete incidents -- incidents which, if an

election were made, the jury may not all agree occurred.

A conviction beset by this error will not be upheld unless the error is harmless

beyond a reasonable doubt. The presumption of error is overcome only if no

rational juror could have a reasonable doubt as to any of the incidents alleged.

Kitchen, 110 Wn.2d at 411-12.

In Kitchen, we concluded that the presumption was not overcome as to two
defendants.5 The incidents that gave rise to the claim against James Kitchen had

5 Kitchen was a consolidated case involving three matters. Error was not harmless as to James
Kitchen and Albert Coburn, but was harmless as to Samuel Childress.

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Cause No. 77706-3

occurred over slightly more than one year. The victim described several episodes

that could constitute statutory rape. For each incident she described in detail the

place and circumstances. Yet some evidence weakened her story. For example, she

was not always certain as to exact dates. The defense introduced several

contradictory statements made by the victim, including testimony that her allegations

were fabricated. The jury also heard character and reputation testimony. Kitchen,

110 Wn.2d at 406-07. Similarly, in that case Albert Coburn introduced evidence

including contradictory statements by the victim or witnesses. Witnesses testified

that the child's behavior might be explained by other contemporary sources of

stress. Coburn also introduced character evidence and denied the allegations.

We reversed the convictions, finding that jurors could have rested their

finding of guilt on different episodes. Based on the testimony we concluded that a

rational juror could have entertained reasonable doubt whether one or more of the

acts occurred. Kitchen, 110 Wn.2d at 412. Kitchen requires that a unanimity

instruction be given when separate identifiable instances of criminal conduct are

introduced in support of a single charge and there is conflicting testimony such that

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Cause No. 77706-3

a rational juror could reasonably doubt whether one or more incidents actually

occurred.

State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), also supports this

conclusion. Petrich was charged with indecent liberties and second degree statutory

rape. The victim discussed at least four episodes at length. She also acknowledged

other incidents. She said the incidents usually occurred at her grandparent's home

or in a truck on weekends or vacation. But she was unsure regarding the dates and

places of all the incidents she alleged and was uncertain regarding the type of

contact.

The State concedes that a unanimity instruction was necessary "[b]ecause

there was evidence of multiple acts of molestation with respect to each victim." Br.
of Resp't at 10.6 The State also maintains its concession that testimony was

inconsistent as to whether touching occurred at the movie Snow Dogs. Br. of Resp't

at 15-16. The State argues, however, that the Snow Dogs incident was not the focus

6 In its answer, the State rested on its briefing to the Court of Appeals. The State used the answer
to raise an additional issue: whether the trial court can, upon remand, impose an exceptional
sentence. The issue is discussed below.

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Cause No. 77706-3

of the case and hence any lack of unanimity is harmless.

The facts support the State's concessions that there was evidence of multiple

incidents as to each victim and that testimony was inconsistent as to at least one

incident involving C.V. The jury heard from C.V.'s teacher, Sarah McAlpin.

McAlpin testified that C.V. told her that Coleman had been touching her on and

under her clothes. McAlpin told the jury C.V. said the touching occurred during

times when Coleman would take her to movies or go out to dinner. 5 Report of

Proceedings (RP) at 16.

The State called a Child Protective Services social worker, Majorie

Trudnowski, who told the jury that C.V. described how Coleman touched her at the

movie Snow Dogs the previous Friday. 2 RP at 44. Trudnowski testified C.V. told

her about other incidents of touching at Coleman's house, and in Coleman's car. 2

RP at 46-47. Testifying later, the school's counselor, Christine Barnes, said that

C.V. told her Coleman touched her at C.V.'s house and Coleman's house. Barnes

contradicted Trudnowski regarding the incident at Snow Dogs, telling the jury C.V.

said that "nothing really happened" at the movie. 2 RP at 99. C.V. herself denied

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Cause No. 77706-3

that anything happened at the movie. 10 RP at 63-64. M.D. likewise testified that

"nothing really happened" at the movie. 9 RP at 185. The facts support the State's

concession that the movie incident was both a discrete act and that whether it

occurred is controverted.

The facts do not support the State's argument that the error was harmless

because the disputed incidents were not the focus of the trial. An election or

unanimity instruction may not be required in a multiple act case if there is no

controverted evidence. Camarillo, 115 Wn.2d 60. But the case before us is not one

lacking controverted evidence; e.g., a case in which a witness says off-handedly that

abuse occurred in five different instances but describes with particularity only one

instance. The focus of a trial, at least for jurors, potentially changes once evidence

is introduced of separate identifiable incidents.

Trudnowski was called early in the trial. She described the incident at Snow

Dogs in some detail. The jury learned that the story was recounted to Trudnowski

within weeks of the alleged incident. A juror could find Trudnowski especially

credible: she was, for example, the first trained interviewer not employed by C.V.'s

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Cause No. 77706-3

school to interview her. A juror could believe that C.V. gave more candid

testimony to Trudnowski than she gave in later interviews as the attention on C.V.

increased.

Though its witnesses could not concur about whether molestation occurred at

the movie, the State continued to insinuate that it did. C.V. was called to the stand

and asked if she was touched at the movie. The transcript suggests the prosecutor

was surprised when C.V. said that no molestation occurred at Snow Dogs. Yet even

then the State did not abandon the allegation of touching at the movie but instead

drew attention to it. In closing arguments the prosecutor urged the jury to ignore

C.V.'s contradictory stories about Snow Dogs. The prosecutor said, "[A]t one point

something happened during the movies and another point it didn't happen . . . does

that make her a liar ... . . Is it possible she just doesn't remember anymore?" 11 RP

at 19. The State then referred to the movie a second time. It argued that C.V.'s

lack of specificity in describing incidents other than the movie might be because

"this has been going on a lot longer" for C.V. and that the incidents "all blend

together." 11 RP at 21-22. The State tried to minimize the discrepancy, suggesting

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Cause No. 77706-3

the jurors should "not get distracted by details" and instead "answer . . . did Uncle

Johnny touch these girls?" 11 RP at 23, 26. But the jury was not directed to

disregard the detailed testimony alleging molestation at the movie.

Reversal is required because this was a multiple acts case, prejudice is

presumed, and there is a risk of a lack of unanimity on all the elements. The

incident was a focus of the trial, and a rational juror could have believed that

molestation occurred at Snow Dogs. It was error to omit the instruction.

Finally, the State asks us to address whether it may seek an exceptional

sentence on remand. At the Court of Appeals, the State agreed that the exceptional

sentence imposed by the trial judge was error under the reasoning of the United

States Supreme Court opinion in Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed. 2d 403 (2004), but it argued that the error was harmless. The

Court of Appeals rejected that argument and remanded count I with instructions to

resentence to a standard range sentence.

In the briefing before us, the State presents two arguments on the proper

remedy on remand. First, the State argues that on remand the jury should be

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Cause No. 77706-3

permitted to find aggravating circumstances pursuant to the amendments to the

Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, Laws of 2005, ch. 68.

This statute was enacted to "fix" the constitutional problems found by the United

States Supreme Court with the prior sentencing procedures. Second, the State

argues that inherent authority exists to seek an exceptional sentence independent of

the statutory amendments, citing to Washington Superior Court Criminal Rule (CrR)
6.16(b).7

Because both of these arguments are resolved in State v. Pillatos, No. 75984-

7 (Wash. Jan. 25, 2007), we need not further address them here.

CONCLUSION

We find that it was not harmless error to fail to give a unanimity instruction

where the State introduced evidence of distinguishable acts that could satisfy the

7 The cited portion of that rule reads as follows:
(b) Special Findings. The court may submit to the jury forms for such special
findings which may be required or authorized by law. The court shall give such instruction
as may be necessary to enable the jury both to make these special findings or verdicts and
to render a general verdict. When a special finding is inconsistent with another special
finding or with the general verdict, the court may order the jury to retire for further
consideration.
CrR 6.16(b).

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Cause No. 77706-3

crime charged. The Court of Appeals is reversed, and this case is remanded to the

trial court for further proceedings.

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Cause No. 77706-3

AUTHOR:
Justice Charles W. Johnson

WE CONCUR:
Chief Justice Gerry L. Alexander Justice Tom Chambers

Justice Susan Owens

Justice Barbara A. Madsen, result only Justice Mary E. Fairhurst

Justice Richard B. Sanders Justice James M. Johnson

Justice Bobbe J. Bridge

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