[No. 57823-5-I. Division One. August 27, 2007.]
[1] Criminal Law Evidence Multiple Illegal Acts Unanimous Verdict Identification of Criminal Act In General. A criminal defendant's right to a unanimous jury verdict is the guarantee that a conviction may be returned only if the jury unanimously agrees that the criminal act charged in the information was committed. Pursuant to this right, the jury must be unanimous as to which act or incident constitutes a particular charged count of criminal conduct. [2] Criminal Law Evidence Multiple Illegal Acts Election or Unanimity Instruction Necessity In General. In a criminal prosecution in which several acts could form the basis of one count charged, either the State must elect the act on which it will rely for conviction or the court must instruct the jury that is must unanimously agree that a specific criminal act has been proved beyond a reasonable doubt. [3] Criminal Law Former Jeopardy Multiple Punishments In General. The double jeopardy clauses of the Fifth Amendment and Const. art. I, § 9 protect against multiple punishments for the same offense. [4] Criminal Law Former Jeopardy Multicount Indictment Unspecified Acts or Charging Periods Nature of Issue Double Jeopardy or Unanimous Verdict. A convicted defendant's claim on appeal that the instructions at trial allowed the jury to base a conviction on more than one identical count on a single underlying event, thereby exposing the defendant to multiple punishments for a single offense, implicates the constitutional right to be free from double jeopardy, as opposed to the right to juror unanimity. A contention asserting that all jurors must agree on the same act underlying any given count has to do with jury unanimity and the right to jury trial. A contention asserting that the jury could not use the same act as a factual basis for more than one count has to do with the right to be free from double jeopardy. To use one act as the basis for two counts is to convict twice for the same crime. [5] Trial Instructions Clarity Degree. Jury instructions must more than adequately convey the law; they must make the relevant legal standard manifestly apparent to the average juror. [6] Sexual Offenses Former Jeopardy Multiple Illegal Acts Separate and Distinct Act for Each Conviction Necessity Instructions Sufficiency. When several counts of a sexual offense are alleged to have occurred within the same charging period, the double jeopardy clauses of the Fifth Amendment and Const. art. I, § 9 require the trial court to instruct the jury that a conviction on each charged count must be based on a separate and distinct underlying act. This requirement is not satisfied by instructions stating that the jury must be unanimous regarding which act formed the basis for any given count, that each element of the crime must be proved as to each count, that a separate crime is charged in each count, and that each of the elements of the crime must be proved as to each count. The better practice would be to set out the separate counts in separate to-convict instructions so as to indicate that each count is associated with a separate episode or date of occurrence. [7] Criminal Law Confessions Admission as Evidence Impeachment Evidence Preservation for Review Taking the Stand Necessity. A criminal defendant need not take the stand and testify in order to preserve for appellate review a claim that the trial court erred by ruling that the defendant's pretrial statements may be admitted to impeach the defendant should the defendant testify at trial. [8] Criminal Law Witnesses Impeachment Miranda Violation Effect. An unwarned statement voluntarily made by a criminal defendant may be used to impeach the defendant. [9] Criminal Law Confessions Voluntariness Test Factors. A criminal defendant's statement is voluntary if, under the totality of the circumstances, it was not coerced. Voluntariness is determined by relevant circumstances, including the condition of the defendant, the defendant's mental abilities, any promises or misrepresentations made by an interrogating officer, and whether the defendant's will was overborne. Implied promises or misrepresentations do not necessarily render a statement involuntary. [10] Criminal Law Confessions Voluntariness Advisement of Rights Questioning at Defendant's Request. When an interrogating officer who has given the Miranda warnings to a criminal suspect ceases questioning the suspect after the suspect requests an attorney but then resumes questioning at the suspect's request after the suspect affirmatively waives the Miranda rights, it may be concluded that statements subsequently made by the suspect were made voluntarily and are admissible. [11] Criminal Law Confessions Voluntariness Hearing Findings and Conclusions Review Standard of Review. Findings of fact entered by a trial court in a CrR 3.5 hearing on the admissibility of an out-of-court statement are reviewed to determine whether they are supported by substantial evidence. Findings supported by substantial evidence are binding on the reviewing court. Evidence is substantial if it is sufficient to persuade a fair-minded, rational person of the truth of the finding. [12] Criminal Law Evidence Opinion Evidence Guilt or Innocence In General. Opinion testimony as to a criminal defendant's guilt generally is improper and inadmissible. Such testimony is inadmissible because it invades the exclusive province of the finder of fact. [13] Appeal Review Issues Not Raised in Trial Court Constitutional Rights Court Rule "Manifest" Error Necessity. An appellate court will not review a constitutional issue raised for the first time on appeal under RAP 2.5(a)(3) unless it involves manifest error affecting a constitutional right. [14] Sexual Offenses Evidence Opinion Evidence Credibility of Child Victim Treating Physician Victim's Account Consistent With Sexual Abuse Diagnosis Review "Manifest" Error. In a prosecution for sexual assault of a child, testimony by the child's treating physician that the physician's medical findings and sexual abuse diagnosis are consistent with the child's account does not constitute an explicit or nearly explicit statement that the physician believes the child's assertion that the defendant was the party guilty of that abuse. Thus, such testimony does not constitute a "manifest error affecting a constitutional right" within the meaning of RAP 2.5(a)(3) that would provide a basis for raising the claim of error for the first time on appeal. [15] Criminal Law Right To Testify In General. A criminal defendant has the right to testify at trial on his or her own behalf. [16] Criminal Law Right To Testify Denial By Defense Counsel Claim Evaluation. A criminal defendant's claim that defense counsel improperly prevented the defendant from testifying at trial is evaluated as a claim of ineffective assistance of counsel. [17] Criminal Law Right to Counsel Effective Assistance of Counsel Test. A claim of ineffective assistance of counsel requires a showing that counsel's performance was deficient and that the defendant was prejudiced by the deficient performance. [18] Criminal Law Right to Counsel Effective Assistance of Counsel Presumption In General. When considering a claim of ineffective assistance of counsel in a criminal proceeding, a court begins with the presumption that counsel's representation was effective. [19] Criminal Law Right to Counsel Effective Assistance of Counsel Preventing Defendant From Testifying Actual Prevention Necessity What Constitutes. Defense counsel does not render ineffective assistance with respect to the defendant's right to testify unless defense counsel "actually prevents" the defendant from testifying, i.e., unless defense counsel refuses to allow the defendant to testify in the face of the defendant's unequivocal demands to do so. [20] Criminal Law Right To Testify Defendant's Choice Role of Defense Counsel. While a criminal defendant's decision whether to testify should ultimately be made by the defendant, it is entirely appropriate for defense counsel to advise and inform the defendant in making the decision whether to take the stand. [21] Criminal Law Right to Counsel Effective Assistance of Counsel Preventing Defendant From Testifying Actual Prevention What Constitutes Strong Advisement Against Testifying Equivocal Defendant. Defense counsel does not "actually prevent" a criminal defendant from testifying at trial by strongly advising the defendant against doing so if the defendant throughout the course of the trial equivocates or vacillates regarding the desire to testify and is fully aware that the ultimate decision whether to testify is a personal one. Nature of Action: Prosecution for four counts of first degree rape of a childdomestic violence. Superior Court: The Superior Court for King County, No. 03-1-02477-1, Brian D. Gain, J., on February 27, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding the jury was properly instructed that it needed to be unanimous regarding the defendant's commission of a specific criminal act, that instructions allowing the jury to base a conviction of all four counts on a finding that a single underlying event occurred violated the prohibition against double jeopardy, that the trial court did not err by making a pretrial ruling that statements made by the defendant during a custodial interrogation were potentially admissible to impeach his testimony should he testify at trial, that opinion testimony by the victim's treating physician only indirectly related to the victim's credibility rather than belief whether the defendant was guilty and did not constitute manifest constitutional error that could be raised for the first time on appeal, and that defense counsel did not actually prevent the defendant from testifying at trial, the court affirms the judgment as to the first count of first degree rape of a child, reverses the judgment as to the other three counts on double jeopardy grounds, and remands the case for further proceedings. Nancy P. Collins- (of Washington Appellate Project), for appellant. Daniel T. Satterberg-, Acting Prosecuting Attorney, and Brian M. McDonald-, Deputy, for respondent. Ά1 DWYER, J. Following a jury trial in King County Superior Court, Bryan Borsheim was convicted of four counts of rape of a child in the first degree. Borsheim appeals from the judgment entered on the verdicts, contending that the trial court violated both his right to be free from double jeopardy and his right to a unanimous jury verdict by failing to instruct the jury that a conviction on each of the four charged counts must be predicated upon a different underlying event. Borsheim also contends that the trial court erred by ruling that statements made by him during a custodial interrogation were admissible for impeachment purposes, that he was denied a fair trial by the admission of expert witness testimony that he asserts invaded the province of the jury, and that his attorneys wrongly coerced him not to testify. Ά2 We agree that the trial court's instructions allowed the jury to base each of Borsheim's four convictions on proof of a single underlying event, in violation of Borsheim's right to be free from double jeopardy. That error requires vacation of Borsheim's convictions on the second, third, and fourth counts submitted to the jury. We affirm the trial court's rulings in all other challenged respects and, accordingly, affirm Borsheim's conviction on the first count submitted to the jury. FACTS Ά3 Audra Granger and her daughter, B.G., lived with Borsheim between February 2001 and September 2003, during which time Granger and Borsheim were involved in a romantic relationship. In September 2003, then 11-year-old B.G. told her grandparents that Borsheim had been sexually abusing her. Her grandparents contacted the police, who placed Borsheim under arrest. Ά4 On September 11, 2003, the State charged Borsheim with three counts of rape of a child in the first degreedomestic violence. The State later filed an amended information adding a fourth count. Each of the identical counts alleged that Borsheim raped B.G. "during a period of time intervening between September 1, 2000 through September 8, 2003." Ά5 Prior to trial, the trial court held a CrR 3.5 hearing concerning the admissibility of statements made by Borsheim during a custodial interrogation. The trial court ruled that the statements were voluntarily made and, therefore, were admissible as possible impeachment evidence should Borsheim testify at trial. Ά6 The matter proceeded to jury trial on September 28, 2004. Borsheim did not testify at trial. Consequently, the State never offered into evidence testimony regarding the statements made by Borsheim during the custodial interrogation. Ά7 B.G. testified that Borsheim would take showers with her on a daily basis and that Borsheim forced her to submit to either vaginal or oral sex, usually during those showers, almost every week-day for the two and one half years she and her mother lived with Borsheim, and in eight of the approximately nine homes in which they lived during that time. A medical witness for the State testified that she had reviewed B.G.'s medical files, that her observations were consistent with B.G.'s reports of sexual abuse, and that her medical diagnosis was that B.G. had been sexually abused. Ά8 The jury returned verdicts of guilty on all four counts. The trial court imposed a sentence at the high end of the standard sentencing range, with the sentences for each of the counts to be served concurrently. Ά9 A few days later, Borsheim filed a pro se motion for a new trial, claiming that his counsel had prevented him from testifying at trial. After an evidentiary hearing, the trial court denied the motion. Ά10 This appeal followed. DISCUSSION Jury Instructions Ά11 Borsheim first contends that the trial court's instructions to the jury deprived him of a fair trial by compromising both his right to be free from double jeopardy and his right to jury unanimity. We agree that the jury instructions were inadequate in that they exposed Borsheim to multiple punishments for the same offense, in violation of his right to be free from double jeopardy. Ά12 The relevant instructions provided to the jury are as follows: There are allegations that the Defendant committed acts of rape of child on multiple occasions. To convict the Defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt. Instruction 3 (emphasis added). A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count. Instruction 4 (emphasis added). To convict the defendant of the crime of Rape of a Child in the First Degree, as charged in counts 1, 2, 3, and 4, each of the following elements of the crime must be proved beyond a reasonable doubt as to each count: (1) That during a period of time intervening between February 1, 2001, and September 5, 2003, the defendant had sexual intercourse with [B.G.] (2) That [B.G.] was less than twelve years old at the time of the sexual intercourse and was not married to the defendant; (3) That the defendant was at least twenty-four months older than [B.G.]; and (4) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty on that count. On the other hand, if, after weighing all the evidence you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty on that count. Instruction 9 (emphasis added). Ά13 As Borsheim argues, none of the preceding instructions specifically state that a conviction on each charged count must be based on a separate and distinct underlying incident and that proof of any one incident cannot support a finding of guilt on more than one count. Borsheim contends, therefore, that the instructions allowed the jurors to base a conviction on all four counts on a finding that a single underlying event occurred. Ά14 As an initial matter, we note that this contention implicates Borsheim's right to be free from double jeopardy, not his right to a unanimous jury verdict. Ά16 Here, instruction 3 provides the protection required by these principles. That instruction states that, to convict the defendant, the jurors must unanimously agree that a specific criminal act had been proved beyond a reasonable doubt. [A contention] asserting that all jurors must agree on the same act underlying any given count has to do with jury unanimity and the right to jury trial. [A contention] asserting that the jury could not use the same act as a factual basis for more than one count has to do with the right against double jeopardy; at least in the context here, to use one act as the basis for two counts is to convict twice for the same crime. (Emphasis added.) Ά19 In keeping with these principles, we made clear more than a decade ago that in sexual abuse cases where multiple identical counts are alleged to have occurred within the same charging period, the trial court must instruct the jury "that they are to find 'separate and distinct acts' for each count." State v. Hayes, 81 Wn. App. 425, 431, 914 P.2d 788 (1996) (quoting Noltie, 116 Wn.2d at 846). Here, multiple counts of sexual abuse were alleged to have occurred within the same charging period. Thus, pursuant to the rule articulated in Hayes, an instruction that the jury must find "separate and distinct" acts for convictions on each count was required. However, no such instruction was proposed by the State and none was given by the trial court. Ά20 The instructions actually given the jury did not cure this defect. As herein discussed, instruction 3 adequately informed the jurors as to the need for jury unanimity regarding which act formed the basis for any given count. It did not, however, convey the need to base each charged count on a "separate and distinct" underlying event. Similarly, although instruction 4 states that "a separate crime is charged in each count," neither this instruction, nor any other, informed the jury that each "crime" required proof of a different act. Finally, instruction 9, the "to convict" instruction, states that each of the elements of the crime must be proved "as to each count." However, this instruction does not state that the first such element, "sexual intercourse with [B.G.]," requires a finding of a "separate and distinct" act of sexual intercourse for each count on which a conviction is rendered. Ά21 The error in omitting an instruction addressing this double jeopardy concern is further compounded by the fact that instruction 9, somewhat confusingly, encompasses all four identical counts in a single instruction rather than setting the counts out in separate instructions, as would be preferable. See, e.g., Noltie, 116 Wn.2d at 849 (two separate "to convict" instructions given for two counts of rape); State v. Ellis, 71 Wn. App. 400, 401-02, 859 P.2d 632 (1993) (four separate "to convict" instructions given for two counts of child molestation and two counts of child rape). Ά22 Thus, read together, the instructions given by the trial court neither contained the "separate and distinct act" instruction expressly required by the rule articulated in Hayes, nor made the need for a finding of "separate and distinct acts" manifestly apparent to the average juror. Ά23 The State's reliance on Ellis, 71 Wn. App. 400, a decision filed several years before Hayes, does not militate otherwise. In the Ellis case, the court considered a similar argument to that raised here, i.e., that the instructions given by the trial court allowed the jury to use the same underlying act to convict the defendant on more than one count. Ellis, 71 Wn. App. at 406. The court rejected the defendant's argument under the particular facts of that case, stating, "It is our view that the ordinary juror would understand that when two counts charge the very same type of crime, each count requires proof of a different act." Ellis, 71 Wn. App. at 406. However, that conclusion was based on consideration of instructions that differed in significant respects from those given in this case. Ά24 Most significantly, the trial court in the Ellis case gave four separate "to convict" instructions, one for each charged count. The first and the second count charged identical crimes, but the instruction for the second count explicitly stated that the act underlying that count had to have occurred "on a day other than Count I." Ellis, 71 Wn. App. at 401-02. The third and the fourth count similarly charged identical crimes, but each alleged that the charged act had occurred during a different period of time. Ά25 Based both on the four separate "to convict" instructions and the distinguishing language therein contained, it is apparent that the trial court in the Ellis case was attempting to draw the jury's attention to the principle that each count charged the commission of a separate event. Here, in contrast, the trial court merely proffered a single "to convict" instruction, encompassing all four identical counts but listing the elements of the charged crime only once. Ά26 Additionally, the unanimity instruction provided by the trial court in the Ellis case further alluded to the requirement that each charged count must be based on a different act: Evidence has been introduced of multiple acts of sexual contact and intercourse between the defendant and [C.R.]. Although twelve of you need not agree that all the acts have been proved, you must unanimously agree that at least one particular act has been proved beyond a reasonable doubt for each count. Ellis, 71 Wn. App. 402 (emphasis added). The unanimity instruction given in this case, in contrast, did not contain the "for each count" language. Thus, although it adequately instructed the jury with regard to the concern for jury unanimity, it did not adequately instruct the jury with regard to the concern of double jeopardy. Ά27 In its Ellis opinion, the court also relied on the fact that the trial court had provided an instruction, similar to instruction 4 in this case, which stated, "A separate crime is charged in each count. You must decide each count separately." Ellis, 71 Wn. App. at 402. However, contrary to the State's contention, the Ellis decision did not hold that this instruction, standing alone, was sufficient to convey to the jury the need for it to base its decision on each charged count on a different underlying event. Rather, the Ellis decision held that the instructions were adequate when viewed as a whole, considering both the separate and separately worded "to convict" instructions as well as the "for each count" language of the unanimity instruction. Ellis, 71 Wn. App. at 402-06. Ά28 Furthermore, the Ellis decision noted that the instructions there at issue were only "marginally" adequate. Ellis, 71 Wn. App. at 406. Focusing specifically on the unanimity instruction, the court stated that the instruction was only barely adequate because it attempted to convey both "the idea that all 12 jurors must agree on the act used as a factual basis for any given count" (unanimity) and "the idea that the same act cannot be used to convict twice" (double jeopardy). Ellis, 71 Wn. App. at 407. The court further noted that the two concepts should, preferably, be described "in separate instructions, or at least in separate sentences." Ellis, 71 Wn. App. at 407. Ά29 Here, language conveying the need to base each conviction on a different act was neither contained in the unanimity instruction, as held to be only marginally adequate by the court in Ellis, nor was it set out in any other instruction, as required by the rule articulated by us in Hayes. Therefore, the jury instructions failed to make manifestly apparent to the jury that each of the four counts must be based on a different underlying act. In other words, the instructions allowed the jury to unanimously find that one act of sexual intercourse had been proved beyond a reasonable doubt and to base all four convictions on that single act. This error exposed Borsheim to multiple punishments for a single offense and, thus, violated his right to be free from double jeopardy. Ά30 However, as the unanimity instruction insured that the jury unanimously agreed as to the commission of at least one act of child rape, our holding requires only that we reverse and order vacated Borsheim's convictions on counts two, three, and four. In order to determine whether any of the other errors alleged by Borsheim requires reversal of his conviction on the first count, we must examine the remaining issues raised. Ruling on Admissibility of Borsheim's Statements As was the case in Greve, Borsheim also asserts that the potential use of the contested evidence implicated a constitutional right. See U.S. CONST. amend. V; Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Stewart, 113 Wn.2d 462, 465-66, 780 P.2d 844 (1989). Accordingly, we hold that the rationale of the Greve decision applies here with equal force and reach the merits of Borsheim's claim of error. Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. Ά35 Borsheim testified at the CrR 3.5 hearing that, after he invoked his right to an attorney and was being led back to his cell by a jail sergeant, he asked the sergeant how he could get an attorney, to which the sergeant responded, "you talk to the detective and then you will get an attorney." Borsheim further testified that he understood this statement to mean that he must speak to the detective before an attorney would be provided to him. On cross-examination, however, Borsheim acknowledged that he understood that he had a right to have an attorney present when he was questioned by the detective, and that he had a right to remain silent. Ά36 The trial court found that Borsheim's statements were voluntarily made and, therefore, admissible as possible impeachment evidence should Borsheim testify. That finding is supported by substantial evidence. Borsheim also contends that because the State did not produce the jail sergeant's testimony at the CrR 3.5 hearing, it must be presumed that Borsheim's testimony as to the conversation between him and the Sergeant was accurate. The case relied on by Borsheim for this proposition iterates the rule that " 'where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so,the jury may draw an inference that it would be unfavorable to him.' " State v. Davis, 73 Wn.2d 271, 276, 438 P.2d 185 (1968) (internal quotation marks omitted) (quoting Wright v. Safeway Stores, Inc., 7 Wn.2d 341, 346, 109 P.2d 542 (1941)). However, the proceeding here was a hearing to the bench, not a trial to a jury. Borsheim has not demonstrated how or why this rule, allowing but not mandating a particular inference by a jury, must mandate a particular inference by the trial court. Ά37 There was no error. Expert Witness Testimony Ά38 Borsheim next asserts that the testimony of the State's expert medical witness invaded the province of the jury and, thereby, violated Borsheim's right to a fair trial. Borsheim, however, did not preserve this claim of error for appellate review. "Manifest error" requires a nearly explicit statement by the witness that the witness believed the accusing victim. Requiring an explicit or almost explicit witness statement on an ultimate issue of fact is consistent with our precedent holding the manifest error exception is narrow. Kirkman, Ά42 The error alleged may not properly be characterized as a manifest constitutional error and, therefore, is not reviewable on appeal. Kirkman, Borsheim's Right To Testify Ά46 Borsheim testified at the hearing that he had consistently insisted that he wanted to testify at trial but that his attorneys pressured him not to do so. On the last day of trial, Borsheim again insisted that he wanted to take the stand, to which one of his attorneys responded, "I guess I can think of some things to ask you." Borsheim further testified that as a result of that statement, he felt forced not to take the stand because he did not believe his counsel to be prepared to question him. On cross-examination during the hearing, however, Borsheim testified that he understood that he had a right to testify at trial. Ά47 The trial court denied Borsheim's motion, finding that Borsheim knew that he had a right to testify and that his choice not to do so was made voluntarily. Ά48 This finding is supported by substantial evidence. Ά49 Borsheim's conviction on the first count of rape of a child in the first degree is affirmed. Borsheim's convictions on counts two, three, and four are reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion. GROSSE and COX, JJ., concur.