[Nos. 34331-2-II; 35662-7-II. Division Two. May 15, 2007.]
In the Matter of the Personal Restraint of RANDY J. SUTHERBY, Petitioner. [1] Criminal Law — Former Jeopardy — Multiple Punishments — In General. The double jeopardy clause of the Fifth Amendment protects against multiple punishments for the same offense. [2] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — What Constitutes — Unit of Prosecution. For purposes of the constitutional guaranty against double jeopardy, whether a defendant may be separately convicted of multiple violations of a single criminal statute depends on what the legislature intends the "unit of prosecution" to be under the statute. Under the "unit of prosecution" test, the question to be answered is what act or course of conduct does the statute prohibit? If the legislature has failed to denote the unit of prosecution in the statute, the rule of lenity requires that the statute be construed in favor of the defendant. [3] Statutes — Construction — Meaning of Words — "Any." The word "any" in a statute can mean (1) one; (2) one, some, or all regardless of quantity; (3) one or more; (4) great, unmeasured, or unlimited in amount; or (5) all. [4] Obscenity — Pornography — Child Pornography — Possession — Unit of Prosecution — Multiple Depictions in Same Location. A person who simultaneously possesses multiple depictions of a minor engaged in sexually explicit conduct in the same location commits just one unit of prosecution of the crime of unlawful possession of depictions of a minor engaged in sexually explicit conduct under former RCW 9.68A.070 (1990). [5] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — Remedy. A defendant's unlawful convictions of multiple counts of the same offense may be remedied by merging the convictions into a single count and resentencing the defendant for the single count. [6] Witnesses — Credibility — Testimony by Other Witness — Validity. One witness generally may not give an opinion as to another witness's credibility; such testimony is unfairly prejudicial because it invades the exclusive province of the jury. [7] Evidence — Opinion Evidence — What Constitutes — In General. Opinion testimony is testimony based on one's belief or idea rather than on direct knowledge of the facts at issue. [8] Witnesses — Credibility — Determination — In General. Witness credibility determinations are solely for the trier of fact to make. [9] Witnesses — Credibility — Testimony by Other Witness — Veracity of Child Sex Abuse Victim — Training Jury to Look for Certain Mannerism. It is prejudicial error for the mother of an alleged child sex abuse victim to testify that the mother looks for a certain mannerism to detect when the child is lying, and that the child did not display this mannerism when she reported the abuse, thereby training the jury to look for the mannerism during the child's testimony to determine whether the child is telling the truth. Nature of Action: Prosecution for one count of first degree child rape, one count of first degree child molestation, and ten counts of possession of depictions of a minor engaged in sexually explicit conduct with sexual motivation. Superior Court: After consolidating five of the possession counts into two counts, the Superior Court for Grays Harbor County, No. 05-1-00148-1, David E. Foscue, J., on December 23, 2005, entered a judgment on a verdict finding the defendant guilty of the remaining counts, including the special allegations of sexual motivation. At trial, the alleged child victim's mother testified that the mother looks for a certain mannerism to detect when the child is lying and that the child did not display that mannerism when she reported the abuse. Court of Appeals: Holding that the defendant committed only one act of possession of depictions of a minor engaged in sexually explicit conduct and that the mother's testimony regarding the child's veracity prejudiced the defendant with respect to the first degree child rape and first degree child molestation charges but not with respect to the possession charges, the court merges the convictions of possession of depictions of a minor engaged in sexually explicit conduct into a single count, affirms the single count, reverses the convictions of first degree child rape and first degree child molestation, dismisses the personal restraint petition, and remands the case for further proceedings. James E. Lobsenz- (of Carney Badley Spellman), for appellant/petitioner. H. Steward Menefee-, Prosecuting Attorney, and Gerald R. Fuller-, Deputy, for respondent. ¶1 QUINN-BRINTNALL, J. — A jury convicted Randy Sutherby of first degree child rape, first degree child molestation, and seven counts of possession of depictions of minors engaged in sexually explicit conduct. Sutherby argues on appeal that (1) the trial court used the wrong unit of prosecution under the child pornography statute, former RCW 9.68A.070 (1990); (2) the child's mother gave impermissible opinion testimony that E.K. was telling the truth when she said that Sutherby raped her; and (3) his attorney should have moved to sever the child rape charges from the child pornography charges. We agree with Sutherby that the proper unit of prosecution under former RCW 9.68A.070 is one for contemporaneous possession of child pornography in the same location. And we agree that the trial court erred when it allowed the child's mother's opinion testimony. Accordingly, we reverse and remand for a new trial on the first degree child rape and child molestation charges. But because our review of the record clearly establishes that the error in admitting the mother's improper opinion testimony did not affect the jury's deliberations on the pornography charges, we affirm and merge those convictions and remand for resentencing on one count of possession of depictions of minors engaged in sexually explicit conduct. FACTS BACKGROUND ¶2 The State alleged the following facts. On Christmas Eve, Sutherby crawled into bed with his five-year-old granddaughter, E.K., and inserted his finger repeatedly into her vagina. E.K. told her grandmother the next day that her genitals hurt, and she expressed fear at the prospect of spending more time with Sutherby. ¶3 Two days later, E.K. also reported the incident to her mother and identified Sutherby as the assailant. E.K.'s mother immediately took E.K. to Dr. Sharon Ahart, who interviewed her and received a similar description of events. Dr. Ahart noted trauma to E.K.'s hymen and irritation to her genitals that may have been caused by rubbing. ¶4 Detective Edward McGowan investigated the charge. He eventually arrested Sutherby and read him his Miranda PROCEDURE ¶5 The State charged Sutherby by amended information with: (1) 1 count of first degree child rape, (2) 1 count of first degree child molestation, and (3) 10 counts of possession of depictions of minors engaged in sexually explicit conduct. The trial court consolidated five of the pornography counts into two counts on the ground that the proper unit of prosecution under former RCW 9.68A.070 is per minor and some of the counts related to different images of the same minors. The jury convicted Sutherby on all counts and found sexual motivation on each of the seven counts of possessing depictions of minors engaged in sexually explicit conduct. ¶6 In this appeal, we address two issues: (1) what is the proper unit of prosecution under the child pornography statute, former RCW 9.68A.070, and (2) does the trial court's error in allowing E.K.'s mother to give impermissible opinion testimony require reversal of Sutherby's first degree child rape and molestation convictions? ANALYSIS UNIT OF PROSECUTION ¶7 Sutherby argues that the trial court erred when it ruled that the proper unit of prosecution under former RCW 9.68A.070 was per minor child depicted. ¶9 For this analysis, the first task is to closely review the statute to determine what act or course of conduct it prohibits. State v. Root, 141 Wn.2d 701, 706, 9 P.3d 214 (2000). Sutherby was charged with multiple violations of former RCW 9.68A.070. That statute provides: "A person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a . . . felony." And the legislature defined "visual or printed matter" as "any photograph or other material that contains a reproduction of a photograph." RCW 9.68A.011(2) (emphasis added). ¶10 The debate here focuses on the legislature's use of the word "any." Sutherby argues that "any" means "one or more," and that, applying this definition, possessing child pornography at any one time and general location is typically Concurring) (noting that, despite the majority's holding that misdemeanor possession of marijuana was one unit of prosecution even though two quantities were found in the defendant's contemporaneous possession, a case-by-case analysis is required to determine whether, for instance, one quantity was in Seattle and another in Spokane or one quantity was consumed before another was possessed). ¶11 "The word 'any' has troubled many courts." United States v. Reedy, 304 F.3d 358, 365 n.7 (5th Cir. 2002). It denotes a full spectrum of quantities, including: (1) one; (2) one, some, or all regardless of quantity; (3) one or more; (4) great, unmeasured, or unlimited in amount; and (5) all. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 97 (1976). The placement of the word in RCW 9.68A.011(2) provides no guidance as to the legislature's intended use in this context. The statute is equally sensible using the acceptable dictionary definitions of (1) one; (2) one, some, or all; or (3) one or more. Under these readings, the legislature may have intended that the statute ban the possession of (1) one photograph or other material that contains a reproduction of a photograph; (2) one, some, or all, regardless of quantity, photographs or other material containing a reproduction of a photograph; or (3) one or more photographs or other material containing a reproduction of a photograph. A reading of the statute's plain meaning fails to reveal the legislature's intended answer to the question of how many is "any" and, thus, does not set a unit of prosecution. ¶12 If the legislature fails to denote the unit of prosecution in the statute, courts must resolve the ambiguity and must do so in favor of the defendant charged with having violated the statute. Adel, 136 Wn.2d at 634-35 (citing Bell v. United States, 349 U.S. 81, 84, 75 S. Ct. 620, 99 L. Ed. 905 (1955)). In Bell, the United States Supreme Court held that when "argumentative skill . . . could persuasively and not unreasonably reach either of the conflicting constructions," it is improper to resolve the question by turning a single transaction into multiple offenses. Bell, 349 U.S. at 83-84. Applying this rule of lenity here to avoid turning a single transaction into multiple offenses, we hold that Sutherby's violation of the statute by simultaneously possessing multiple materials in the same location is one unit of prosecution for which he is subject to only one conviction. ¶13 We are mindful that this decision differs from Division One's recent opinion in State v. Gailus, 136 Wn. App. 191, 147 P.3d 1300 (2006). In that case, the court held that the proper unit of prosecution is each photograph, film, or each digital file containing a photograph or film. But the Gailus court was not asked to interpret the word "any." Its analysis focused instead on whether a compact disc containing multiple images constituted one unlawful act or many. In light of those arguments, we agree that the legislature intended to prohibit possession of the images regardless of the method or medium used to store them. Because Galius's narrow unit of prosecution ruling does not address the arguments Sutherby raises, it does not apply here. MOTHER'S TESTIMONY ¶14 Sutherby also argues that E.K.'s mother's testimony—that her daughter was not lying about Sutherby raping her—deprived him of his right to a jury trial. At trial, E.K.'s mother impermissibly commented on methods she used to determine her daughter's credibility and trained the jury to look for a particular mannerism during E.K.'s testimony to determine whether she was telling the truth. ¶15 The testimony at issue follows in full: Q And have you taught [E.K.] about telling the truth and the consequences? A Yes. Q And how have you done that? A How? Q Yeah, what kind of conversations? A Just—she just knows it's wrong to lie and that she will be punished and you get time outs. She knows it can hurt people and causes problems and it's for her safety too. Q Can you tell when she has told a fib? A Yeah. Q How do you tell that? A She makes kind of a—tries not to smile, but makes a half smile when she is telling a fib. Q Ever seen that face or reaction when she was talking about what happened with [Sutherby]? A No. 1 Report of Proceedings at 33-34. We agree with Sutherby that this testimony was wholly improper and deprived him of his right to have the jury determine E.K.'s credibility. ¶18 In some instances, a witness who testifies to his belief that the defendant is guilty is merely stating the obvious, such as when a police officer testifies that he arrested the defendant because he had probable cause to believe he committed the offense. See, e.g., State v. Kirkman, ¶19 Accordingly, we reverse Sutherby's first degree child rape and first degree child molestation convictions and remand for retrial on counts one and two. BRIDGEWATER and ARMSTRONG, JJ., concur.