STATE v. EARL (2006)

PUBLISHED IN PART OPINION

 ¶ 1 Frank Earl appeals convictions for first degree child rape, attempted first degree child rape, second degree child rape, and second degree child molestation.   He argues that (1) juror misconduct violated his right to a fair trial, (2) the trial court erroneously denied his motion for a mistrial, (3) the State's expert witness improperly commented on the victim's credibility and Earl's guilt, (4) insufficient evidence supports both of his first degree rape convictions, (5) his trial counsel rendered ineffective assistance, (6) the trial court erred when it imposed an exceptional sentence for attempted first degree child rape, and (7) the trial court erred when it imposed community custody on the second degree child rape.   The State concedes these two sentencing errors.

¶ 2 We affirm Earl's convictions, vacate the community custody portion of his sentence for second degree child rape, vacate his sentence for attempted first degree child rape, and remand for resentencing on the attempted first degree child rape conviction.

FACTS

I. Child Rape and Molestation

¶ 3 When AK was 12, she told her stepmother, Benita,¹ that Frank Earl, whom AK called “grandpa,” had been sexually abusing her when her mother, Florenda, and Florenda's boyfriend, Harris, took AK to Earl's house to visit.²  Earl had told AK not to tell anyone about the abuse because they would get in trouble.

¶ 4 Following interviews with child protective services (CPS), AK was removed from her mother's home and placed in protective custody with her father, Youell, or in foster care.   Although these visits were supposed to be supervised, AK  had unsupervised visits with her mother.   While charges were pending, Earl went to Florenda's house when AK was visiting, prompting the court to take away Florenda's visitation rights.

¶ 5 AK later recanted her accusations against Earl. About three months before trial, AK returned to live with her mother and Harris.³

II. Procedure Pertaining To Published Portion of Opinion

¶ 6 On the morning of the second day of deliberations, Juror 7 went to the jury administration room with a letter from her psychologist indicating she should not continue with further deliberations because she was in a “psychological crisis.”   The psychologist's letter indicated that (1) Juror 7 was reporting “abdominal pain, nausea, constant crying, anxiety, depression, irritability, and fear for her safety since an incident that occurred during her jury deliberations on December 15, 2005”; ⁴  (2) Juror 7 had told her that during a break another juror had “verbally attacked her, called her insulting names, and impugned her integrity”; ⁵  (3) Juror 7's psychologist had been treating Juror 7 for a number of years for anxiety and stress related issues;  and (4) he (the psychologist) feared that Juror 7's mental health would deteriorate if she continued as a juror.   Because Juror 7 had discussed the case with her psychologist and she had fragile mental health, the State and Earl agreed that Juror 7 should be removed from jury service.

¶ 7 Out of the presence of the other jurors, the trial court brought Juror 7 into the courtroom and informed her that the parties had agreed to release her from further jury service.   Juror 7 told the trial court that during a break another juror had used a “disrespectful term” to refer to  some of the jurors, including her. After further questions from the trial court and counsel, Juror 7 indicated that it was more “situation calling” than name calling and, although she thought the other juror should not have made such comment during the break, the presiding juror was not sure it was “out of line.”   Juror 7 also told the court that she made a loud retort to the other juror's comment, but no one apologized.

¶ 8 Juror 7 told the trial court that she felt threatened by this other juror and that she was afraid of going back into deliberations with this juror.   Juror 7 acknowledged that she was “kind of sensitive” but she was not sure if she was being overly sensitive about this situation.   She told the trial court that she had been in treatment with her psychologist for over ten years, following a bad car accident in which she suffered head injuries.

¶ 9 Defense counsel questioned Juror 7 about her psychologist's letter's mentioning that the offending juror had said she wanted the deliberations to end soon so she could be home with her family at Christmas.   Juror 7 clarified that the other juror had never said this;  rather, this was the impression that Juror 7 had gotten from the other juror.

¶ 10 The State and defense counsel then told the court that they wanted the name of the juror that offended Juror 7. The trial court temporarily excused Juror 7 from the courtroom and asked:

[W]hat is the purpose of identifying-I haven't heard her say what occurred, she can't disclose specifically, but it did occur in the jury room-what juror was done this.   And she felt it was a personal attack, if I understood it right ․

So, what good, I want you to tell me, gentlemen, does it do for this proceeding to identify this person who has offended this No. 7, No. 7 with a thirteen-year history of health care, who may be sensitive, overly sensitive.   Give me a good reason why I should have this person identified.   I want to go on with this thing and the deliberations will begin anew with an alternate.

 Report of Proceedings (RP) (Dec. 16, 2005) at 678-79.   Neither the State nor defense counsel provided the trial court with a reason to have the other juror identified.

¶ 11 Still out of the presence of the other jurors, the trial court then excused Juror 7 and called the presiding juror into the courtroom.   The trial court asked the presiding juror, “Are you aware of any problems that I should know about that have occurred in your deliberations?”   RP (Dec. 16, 2005) at 685.   When the presiding juror started to answer, “Yes, sir, it's,” the trial court interjected, “I should also advise you, I don't want you to say anything that's going to reveal the status of your deliberations.” RP (Dec. 16, 2005) at 685.   The presiding juror responded, “I understand.   No, sir.   No problems.”   RP (Dec. 16, 2005) at 685.   The trial court then excused the presiding juror.

¶ 12 After the alternate juror arrived to replace Juror 7, the trial court called the whole jury into the courtroom and told them:

With the agreement of the State and the defense, the Court has excused No. 7 ․ And the deliberations, as I told you before, as you will remember, I said the deliberations should begin anew.   Remember I used the word “anew”?   And you all know what that means.   You are going to start from the beginning with deliberations with the 12 of you.   It was the Court's judgment it was in the best interest of both the State and the defense and, the juror that was excused, her health.   So, by agreement, No. 7 was excused and 3 was brought back in, and you should begin deliberating anew.

RP (Dec. 16, 2005) at 689.

¶ 13 After the jury was excused, defense counsel gave the trial court a note Earl had written, explaining, “Mr. Earl wants on the record his concern that there is cause for a mistrial at this time.”   RP (Dec. 16, 2005) at 689.   The trial court read Earl's note, which said:

You did not resolve the problem.   The problem is still in the jury room.   In [the judge from the previous two trials] courtroom each jury member was questioned.   I am concerned that there is still cause for a mistrial.

 Clerk's Papers (CP) at 135.   After reading this note, the trial court stated that it did not agree with Earl, but that it would file the note for the record.

¶ 14 Earl appeals.

ANALYSIS

I. Juror Misconduct

 ¶ 15 Earl argues that juror misconduct deprived him of his right to a fair trial and that the trial court did not conduct an appropriate inquiry into the misconduct.   The State responds that the trial court did not abuse its discretion in limiting the scope of the inquiry because Earl did not meet his burden of proving juror misconduct or resulting prejudice.   We agree with the State.

 ¶ 16 We review a trial court's investigation into jury misconduct for abuse of discretion.  State v. Elmore, 155 Wash.2d 758, 761, 123 P.3d 72 (2005);  State v. Lemieux, 75 Wash.2d 89, 91, 448 P.2d 943 (1968).   The party alleging juror misconduct has the burden to show that misconduct occurred.  State v. Hawkins, 72 Wash.2d 565, 566, 434 P.2d 584 (1967).   We grant a new trial only where juror misconduct has prejudiced the defendant.  State v. Boling, 131 Wash.App. 329, 332, 127 P.3d 740, review denied, 158 Wash.2d 1011, 145 P.3d 1214 (2006);  State v. Briggs, 55 Wash.App. 44, 55, 776 P.2d 1347 (1989).   Such is not the case here.

¶ 17 Earl contends that the trial court should have inquired into and learned the identity of the juror who had spoken with Juror 7 during a break and then, the court should have either removed the offending juror or at least reinstructed the jury.   The State responds that the trial court did not abuse its discretion in choosing not to inquire further about the offending juror's identity because Earl did  not establish that any other jurors, besides Juror 7, had actually engaged in misconduct.⁶

¶ 18 The trial court questioned Juror 7 at length, read her psychologist's letter asking the court to excuse her for mental and other health reasons, and questioned her further about the contents of the letter.   It appeared to the trial court that the other juror's remark to Juror 7 was a “personal attack,” and that Juror 7 was being overly sensitive.   Besides the name or “situation calling,” the jurors did not discuss the case during the break and not all the other jurors had been in the room at the time.

¶ 19 To help determine whether the incident had been a personal attack on Juror 7, or something else that might have tainted the entire jury, the trial court then brought in the presiding juror.   The trial court asked the presiding juror to explain whether there had been any juror problems, but the trial court expressly admonished the presiding juror to do so without disclosing the status of the jury's deliberations.   The presiding juror confirmed that there had not been juror problems.

 ¶ 20 Where there is potential juror misconduct, “the trial judge is faced with a ‘delicate and complex task,’ in that he or she must adequately investigate the allegations, but also must take care to respect the principle of jury secrecy.”  Elmore, 155 Wash.2d at 761, 123 P.3d 72 (quoting United States v. Thomas, 116 F.3d 606, 618 (2d Cir.1997)).   The trial court's inquiry should not risk violating “the cardinal principle that juror deliberations must remain secret.” Elmore, 155 Wash.2d at 770, 123 P.3d 72.

 ¶ 21 In our view, the trial court adequately investigated the allegations of juror misconduct, protecting Earl's right to a fair trial while taking care not to violate the jury's secret deliberations.   A personal remark, even a derogatory one, between jurors during a deliberation break, is  not juror misconduct if it does not involve the substance of the jury's deliberations.⁷  Earl has not met his burden of showing juror misconduct or resulting prejudice.   We hold, therefore, that the trial court did not abuse its discretion in excusing Juror 7, in declining to identify the juror who had offended Juror 7, and in substituting the alternate juror and instructing the jury to begin its deliberations anew.

¶ 22 Earl also argues that the trial court erred when it denied his pro se motion for a mistrial based on juror misconduct.⁸  The trial court removed the juror who committed the alleged misconduct.   Earl made no further showing of misconduct or prejudice.   For the same reasons that we found no trial court abuse of discretion in its handling of the alleged juror misconduct, we hold that the trial court did not abuse its discretion in denying Earl's motion for a mistrial.   See State v. Greiff, 141 Wash.2d 910, 921, 10 P.3d 390 (2000).

¶ 23 We affirm Earl's convictions.

¶ 24 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Procedural Facts Pertaining To UnPublished Portion of Opinion

I. Background

¶ 25 The State charged Earl with two counts of first degree child rape, one count of attempted first degree child rape, one count of second degree child rape, and one count of second degree child molestation.   His first jury trial ended in mistrial based on a discovery violation.   His second jury trial ended in mistrial as a result of juror misconduct.

II. Trial

A. Testimony1. AK's testimony

¶ 26 At Earl's third trial, AK testified that (1) she was born July 14, 1991;  (2) she had known Earl all her life and called him “grandpa”;  (3) she sometimes spent the night at his house, usually on weekends;  and (4) Earl began touching her in the “wrong places” when she was eight years old.   When asked to talk about Earl having touched her when she was eight, AK responded that (1) he had touched her in almost every room of Earl's house except the spare bedroom;  (2) Earl's house was a single story with two bedrooms, a living room, bathroom, and kitchen;  (3) during one incident on the couch in the living room, Earl had touched her “private spot” with his fingers;  and (4) sometimes Earl would touch her on top of her clothing, but other times he would touch her skin under her clothing.

¶ 27 AK testified that Earl first touched her vagina in his bedroom when she was eight years old;  the last time it happened was when she was twelve.   Earl was stronger than AK, and she could not stop him from touching her.   When she asked Earl to stop, he would assure her that it was okay and that he would not hurt her.   But Earl put his fingers inside her vagina and moved his hands around, and it hurt.   When she would try to pull Earl's hand out of her, it would hurt worse because he was inside of her.   When she would tell Earl that it hurt, he would respond, “I'll try not to hurt you anymore.”   RP (Dec. 8, 2005) at 262.

¶ 28 AK further testified that her breasts started to develop when she was 12, and Earl would rub them through her clothing.   She said that Earl had touched her most of the times that she visited his house, but that he would try not to touch her as much when her mother was outside his house working on cars, compared to when her mother was not there.   Once she saw Earl with his clothes off when she was about nine years old.   Earl took her into the garage at his workplace, pulled down his pants and underwear, and told her to kiss his “private” or penis.   She told him, “No,” and he “put it away.”

¶ 29 According to AK, Earl told her many times not to tell anyone about his touching her or they would get in trouble.   So AK did not tell anyone for awhile because she was afraid of what Earl would do if she told.   The last time Earl had touched her, he put his fingers inside her, after Thanksgiving 2003, just a few days before she told her stepmother.

¶ 30 AK further testified that (1) she had told at least four people, two of whom were Earl's sons, that Earl had not touched her, because she did not want them to hate her;  (2) she had written letters to her cousins and mother saying that Earl had not touched her and that her stepmother had forced her to say that he had;  (3) these letters were not true;  (4) she had written them, with the her cousin's help, hoping that she would be able to return to her mother's home;  and (5) about three months before trial, AK had returned to live with her mother and Harris.

2. AK's Stepmother's Testimony

¶ 31 Benita testified that she was AK's stepmother for approximately 13 years while she was married to Youell.   Before 2003, Benita and Youell had had only one visit with AK, in 1994, when she was about two years old.   In 2003, they arranged for AK to visit them and sometimes spend full weekends at their house.   Every time that AK spent the night, she would scream and cry in her sleep until someone woke her up.   AK would cry out, “Don't. Stop. Please don't touch me.”   RP (Dec. 7, 2005) at 181.   Benita reported this information to AK's Child Protective Services (CPS) worker.   In December 2003, after hearing reports of physical abuse, Youell decided to fight for custody of AK so that she could live with him.

¶ 32 Approximately six months after the overnight visits with her father began, AK asked Benita if she could speak to her privately.   AK told Benita that Earl had touched her private spots on many occasions.   AK did not offer specifics, but was concerned that her mother would be mad that she told.   Benita told AK not to worry and that she would call the police.   AK became more nervous and frightened that she would be in trouble;  and she asked Benita not to call the police, because her mother did not believe her when AK had told her about Earl.

¶ 33 Benita called the police and told Officer Weaver about AK's statements.   Weaver spoke with AK and confirmed her statements to Benita that Earl had put his hand down AK's pants and exposed himself to her.   AK told Weaver that the last time this happened was on December 8, 2003.   After calling CPS about appropriate placement for AK, Weaver placed AK in protective custody with her father for the weekend so that AK would not have to return to her mother's house.

¶ 34 AK lived with her father and Benita or in foster care until three months before trial.   At one point, Youell and Benita called the Tacoma Police to retrieve AK from a visit with her mother. AK told Benita that during her visits with her mother, Florenda was making AK write letters recanting her allegations against Earl.

3. AK's Mother's Testimony

¶ 35 AK's mother, Florenda, testified that (1) Earl and AK's father, Youell, were friends who fished together;  (2) Youell had introduced her (Florenda) to Earl;  (3) she and Earl had a sexual relationship that started in 1990 and ended in December 2003;  and (4) she (Florenda) and her boyfriend, Harris, frequently visited Earl's house to work on cars.   They often took AK with them, about two to three times a week for about four years.

¶ 36 Florenda further testified that she was angry when she learned that learned AK had disclosed Earl's abuse to Benita and that, as a result, AK would not be coming home.

4. Child Victim Sexual Abuse Interview

¶ 37 Jennifer Knight, a child victim interviewer for the Child Advocacy Center (CAC) at Mary Bridge Children's Hospital, testified about her training to conduct forensic child interviews and the procedures used at the CAC. She detailed child interview protocol, including her training to look for “canned responses” that could be a product of adults suggesting the abuse to the child.   Knight explained that (1) sexually abused children typically use “powerless speech[,]” (2) recantation by sexually abused children in unstable families is typical, (3) children frequently omit details in their disclosures and have a difficult time disclosing about penetration, and (4) disclosure by children is frequently a process that occurs over time.

¶ 38 Knight then testified about her December 30, 2003 interview of AK, using standard child interviewing procedures.   AK appeared embarrassed throughout the interview, “used powerless speech,” disclosed that sexual abuse had occurred, and had difficulty talking about “certain things.”   The trial court, however, did not allow the State to elicit prior consistent statements that AK had said to Knight, which the trial court ruled would be improper bolstering of AK's credibility.

¶ 39 Earl's counsel did not object to the trial court's instructions to the jury.   And he agreed to the unanimity instructions, Instructions 5 and 6, which required the jury to agree unanimously as to which acts the State proved beyond a reasonable doubt for each of the five separate counts.

C. Verdict and Sentence

¶ 40 The jury found Earl guilty as charged on all five counts.   The trial court sentenced him to 318 months for each first degree child rape conviction, 318 months for the attempted first degree child rape conviction, and 116 months for the second degree child molestation conviction.   On the second degree child rape count, the trial court found that Earl was a persistent offender and imposed a sentence of life without the possibility of parole and community custody.

ANALYSIS PERTAINING TO UNPUBLISHED PORTION OF OPINION

II. EvidenceA. Sufficiency

¶ 41 Earl next argues that there was insufficient evidence to convict him of first degree child rape because AK's generic testimony did not establish that the intercourse occurred before she was 12 years old.   We disagree.

1. Standard of Review

¶ 42 When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt.  State v. Joy, 121 Wash.2d 333, 338, 851 P.2d 654 (1993);  State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).   Earl's insufficient evidence claim “admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.”  Salinas, 119 Wash.2d at 201, 829 P.2d 1068.

2. Generic Testimony

¶ 43 Washington courts have affirmed multiple-count sexual assault convictions “notwithstanding the State's reliance on ‘generic’ child testimony.”  State v. Hayes, 81 Wash.App. 425, 435, 914 P.2d 788, review denied, 130 Wash.2d 1013, 928 P.2d 413 (1996);  see also State v. Jensen, 125 Wash.App. 319, 104 P.3d 717, review denied, 154 Wash.2d 1011, 113 P.3d 482 (2005);  State v. Brown, 55 Wash.App. 738, 780 P.2d 880 (1989), review denied, 114 Wash.2d 1014, 791 P.2d 897 (1990).   In Hayes, the court reasoned that ruling generic testimony to be inadequate “risks ․ immunizing from prosecution” the most egregious offenders who subject young victims to multiple assaults.  81 Wash.App. at 438, 914 P.2d 788.   Striking a balance between the defendant's due process rights 9 and the child victim's inability to give extensive details about multiple assaults, the Hayes court set forth the following three-part test:  At a minimum, the victim must be able to describe (1) the kind of act or acts with sufficient specificity for the jury to determine which offense, if any, has been committed;  (2) the number of acts committed with sufficient certainty to support each count alleged;  and (3) the general time period in which the acts occurred.  Hayes, 81 Wash.App. at 438, 914 P.2d 788.

¶ 44 Earl challenges the sufficiency of the evidence to establish only one element of first degree child rape-he contends that AK's generic testimony did not establish that he had penetrated her before she was 12 years old. 10  Earl's challenge fails.   AK's testimony sufficiently establishes that Earl committed first degree child rape at least twice, when AK was eight years old.   AK testified that Earl “was touching me in wrong places,” 11 in places he “shouldn't have,” when she was eight years old.   She described the various rooms in Earl's house in which he had touched her sexually on multiple occasions.   When asked how Earl had touched her on these occasions, AK stated that he had touched her “private spot,” or vagina, with his fingers “inside of me.”

¶ 45 In response to the State's request to describe how Earl had touched her when she was eight years old, AK specifically stated that she was eight years old when Earl touched her vagina in his bedroom.   She went on to testify that she did not know how many times he had touched her vagina, but that it was “[a] lot of times.”   She stated that Earl touched her most of the times that she had been at his house and that she was at his house “a lot.”   AK's mother testified that she often took AK to Earl's house, as often as two to three times a week, starting when AK was eight years old, for about four years.

¶ 46 Viewing the evidence in the light most favorable to the State, AK testified with sufficient specificity for the jury to determine that Earl had committed at least two first degree child rapes when AK was less than 12 years old.

B. Opinion Testimony

¶ 47 Earl next argues that the State's child sexual abuse expert witness, Jennifer Knight, violated his right to a fair trial by giving improper opinions about AK's credibility and, indirectly, about Earl's guilt.   Earl assigns error to Knight's background testimony about (1) the speech typically used by abused children, (2) “canned” answers that may be the product of adult suggestion, and (3) the typical occurrence of recantation by sexually abused children in unstable families.   Earl asserts that we may review these errors on appeal, despite his counsel's failure to raise a contemporaneous objection, because they are manifest errors affecting his constitutional right to a fair trial.

¶ 48 We will not consider issues raised for the first time on appeal, unless there is manifest error affecting a constitutional right.  State v. Kirkman, 159 Wash.2d 918, 926, 155 P.3d 125 (2007);  RAP 2.5(a).  “The defendant must identify a constitutional error and show how the alleged error actually affected the defendant's rights at trial.   It is this showing of actual prejudice that makes the error ‘manifest,’ allowing appellate review.”   Kirkman, 159 Wash.2d at 926-27, 155 P.3d 125 (quoting State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995)).

¶ 49 Alleged manifest error regarding opinion testimony “requires a nearly explicit statement by the witness that the witness believed the accusing victim.   Requiring an explicit or almost explicit statement on an ultimate issue of fact is consistent with [ ] precedent holding the manifest error exception is narrow.”  Kirkman, 159 Wash.2d at 936, 155 P.3d 125.   Because Knight did not make an explicit statement about AK's credibility, Earl cannot show a manifest error of constitutional magnitude such that he can circumvent his failure to object below.   Knight's testimony presented no opinions on an ultimate issue nor did it contain explicit statements about either AK or Earl. 12 We hold that there is no manifest error allowing us to review this argument for the first time on appeal.

III. Effective Assistance of Counsel

¶ 50 Earl argues that he was denied effective assistance of counsel because his trial attorney agreed to a defective unanimity instruction. 13  He asserts that the “unanimity instruction was defective because it did not clearly require the jury to unanimously agree as to which five separate acts were proven beyond a reasonable doubt for each of the five separate counts.” 14  Br. of Appellant at 27.   This argument also fails.

A. Standard of Review

¶ 51 To prove ineffective assistance of counsel, Earl must show deficient performance and prejudice.  State v. Thomas, 109 Wash.2d 222, 225-26, 743 P.2d 816 (1987).  “If either part of the test is not satisfied, the inquiry need go no further.”  State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996).

¶ 52 We review alleged errors in jury instructions de novo.  State v. Brett, 126 Wash.2d 136, 171, 892 P.2d 29 (1995) cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996);  State v. S.M., 100 Wash.App. 401, 409, 996 P.2d 1111 (2000).   We presume jurors follow the instructions they are given.  State v. Daniels, 160 Wash.2d 256, 264, 156 P.3d 905 (2007) (citing State v. Stein, 144 Wash.2d 236, 247, 27 P.3d 184 (2001)).

B. Unanimity Instructions

¶ 53 In order to convict a defendant, the jury must unanimously find that the State proved the underlying act that constituted the crime beyond a reasonable doubt.  State v. Petrich, 101 Wash.2d 566, 572, 683 P.2d 173 (1984).   Where the evidence alleges multiple acts against a defendant, any one of which could constitute the crime charged, the jury must all agree about which act constitutes the crime.  State v. Kitchen, 110 Wash.2d 403, 411, 756 P.2d 105 (1988).   In a case with multiple counts, the trial court's instructions should include language informing the jury it must unanimously find the State proved one act for each count.  State v. Noltie, 116 Wash.2d 831, 843, 809 P.2d 190 (1991).

¶ 54 Reading the challenged unanimity instruction in the context of the other instructions, we hold that Earl fails to show the instructions were deficient as a whole.  Brett, 126 Wash.2d at 171, 892 P.2d 29.   Instruction No. 5 clearly indicates that each crime is separate, and that the jury must find proof of an underlying act for each individual charge:  “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.”   CP at 144.   Immediately following this instruction, Instruction No. 6 says, “You have heard evidence alleging more than one sexual act between the defendant and the alleged victim, A.K. To convict the defendant, all twelve of you must agree that the same underlying sexual act has been proved beyond a reasonable doubt.”   CP at 138-61.   Read together, these instructions ensure the jury's unanimity in finding Earl guilty of each charge based on separate facts.

¶ 55 Because the jury instructions were not deficient, Earl fails to show deficient performance by his trial counsel.   Therefore, we need not address the prejudice part of the ineffective assistance of counsel test.   Thus, we hold that Earl's counsel was not ineffective for agreeing to the jury instructions.

IV. Sentencing

A. Exceptional Sentence

¶ 56 Earl also argues that the trial court imposed an exceptional sentence on count 3, attempted first degree child rape, without making the findings required to justify such a sentence.   The State concedes that the trial court improperly sentenced Earl outside the standard range on count 3 and that he is entitled to resentencing.

¶ 57 We review de novo whether a trial court had statutory authority to impose a particular sentence.  State v. Murray, 118 Wash.App. 518, 521, 77 P.3d 1188 (2003).   Under the Sentencing Reform Act, the standard range for an attempted crime is obtained by multiplying the standard range for the completed offense by 75 percent.  RCW 9.94A.595. A trial court must impose a sentence within the standard range unless it finds substantial and compelling reasons to justify departure.  RCW 9.94A.505(2)(a)(i);  RCW 9.94A.535;  State v. Suleiman, 158 Wash.2d 280, 288, 143 P.3d 795 (2006).

¶ 58 Here, the trial court used the standard range for first degree child rape for count 3, without multiplying it by 75 percent as required where the conviction is for an attempt.   And, as Earl correctly notes, the trial court thus sentenced him outside the standard range for attempted first degree child rape without a finding of aggravating circumstances to justify an exceptional sentence.   Accepting the State's concession of error, we remand count 3 for resentencing.

B. Community Custody

¶ 59 Lastly, Earl argues that the trial court erred when it imposed community custody for the remainder of Earl's life on count 5, second degree child rape, because Earl was sentenced as a persistent offender to life without parole.   The State also concedes that the trial court improperly imposed community custody on count 5 and requests that we strike it from Earl's sentence.

¶ 60 Because Earl neither challenges nor assigns error to the trial court's finding that he is a persistent offender, it is a verity on appeal.  State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994).   Under RCW 9.94A.570, a persistent offender is not eligible for community custody.   Because Earl is not eligible for community custody, the trial court had no authority to impose it on count 5. Accepting the State's concession of error, we remand to the trial court to strike the community custody from Earl's sentence on count 5.

¶ 61 We affirm Earl's convictions, vacate the community custody component of his sentence for second degree child rape (count 5) (with the trial court to correct his judgment and sentence accordingly), and remand for resentencing on his attempted first degree child rape conviction (count 3).

FOOTNOTES

1.   To protect AK's privacy, we do not use AK's parents' full names.

2.   Earl and Florenda had a 13-year sexual relationship, which encompassed the period of his sexual abuse of AK.

3.   Earl was in custody at this time, awaiting trial in this case and in his separate, but linked, case involving sexual abuse of his daughters.

4.   Clerk's Papers (CP) at 537.

5.   CP at 539.

6.   Because we find no abuse of trial court discretion in its handling of the alleged juror misconduct, we do not address the State's related argument that Earl cannot use Juror 7's statements to establish jury misconduct.

7.   Although we could find no published Washington case on point, we note the following opinions from the federal courts:  United States v. Gaskin, 364 F.3d 438, 464 (2nd Cir.2004), cert. denied, 544 U.S. 990, 125 S.Ct. 1878, 161 L.Ed.2d 751 (2005) (juror discussions during a break that do not involve a review of the evidence or debate culpability of the defendant are not jury misconduct);  United States v. Resko, 3 F.3d 684, 689-91 (3rd Cir.1993) (in reviewing alleged juror misconduct, courts should focus on whether the communications between the jurors constituted deliberations);  Stockton v. Virginia, 852 F.2d 740, 747 (4th Cir.1988).

8.   Because we find no error in the trial court's denial of Earl's motion, we do not address the State's related arguments that Earl did not actually ask the trial court for a mistrial and, if he did, that Earl is bound by his attorney's decision not to seek a mistrial.

FN9.  Due process requires the State bear the burden of proving each and every element of the crime charged beyond a reasonable doubt.  State v. McCullum, 98 Wash.2d 484, 488, 656 P.2d 1064 (1983)..  FN9.  Due process requires the State bear the burden of proving each and every element of the crime charged beyond a reasonable doubt.  State v. McCullum, 98 Wash.2d 484, 488, 656 P.2d 1064 (1983).

FN10.  Earl is correct that the jury had to find AK “was less than twelve years old at the time of the sexual intercourse and was not married to [Earl].” CP at 150..  FN10.  Earl is correct that the jury had to find AK “was less than twelve years old at the time of the sexual intercourse and was not married to [Earl].” CP at 150.

FN11.  RP (Dec. 8, 2005) at 254..  FN11.  RP (Dec. 8, 2005) at 254.

FN12.  On the contrary, Knight testified in general about the type of “powerless speech, which is typical of abused children.”   RP (Dec. 13, 2005) at 498.   Her statement that AK used “powerless speech[ ]” during the interview was not an opinion about AK's credibility in particular.   RP (Dec. 13, 2005) at 498.Knight also testified that she was trained to look for “canned responses” that indicated someone had suggested the abuse to the child and she described the protocol she used when interviewing child victims.   But Knight did not say that AK's responses did not appear to be canned.   Moreover, our Supreme Court held that testimony on interview protocol for child victims is not an improper opinion on the child's credibility.   Kirkman, 159 Wash.2d at 931, 155 P.3d 125.   The court reasoned that experts “often use a similar protocol in all child witness interviews, whether they believe the child witness or not.”  Id. Such description of child interview protocol, however, does not constitute impermissible opinion testimony about a specific child's credibility.Knight also stated that recantation was common for sexually abused children, but she did not testify that she believed AK's letters or that her recantations were untruthful.   In short, Knight never testified that she believed AK or that AK was telling the truth based on her responses.   Knight's testimony was not an explicit statement on an ultimate issue of fact..  FN12.  On the contrary, Knight testified in general about the type of “powerless speech, which is typical of abused children.”   RP (Dec. 13, 2005) at 498.   Her statement that AK used “powerless speech[ ]” during the interview was not an opinion about AK's credibility in particular.   RP (Dec. 13, 2005) at 498.Knight also testified that she was trained to look for “canned responses” that indicated someone had suggested the abuse to the child and she described the protocol she used when interviewing child victims.   But Knight did not say that AK's responses did not appear to be canned.   Moreover, our Supreme Court held that testimony on interview protocol for child victims is not an improper opinion on the child's credibility.   Kirkman, 159 Wash.2d at 931, 155 P.3d 125.   The court reasoned that experts “often use a similar protocol in all child witness interviews, whether they believe the child witness or not.”  Id. Such description of child interview protocol, however, does not constitute impermissible opinion testimony about a specific child's credibility.Knight also stated that recantation was common for sexually abused children, but she did not testify that she believed AK's letters or that her recantations were untruthful.   In short, Knight never testified that she believed AK or that AK was telling the truth based on her responses.   Knight's testimony was not an explicit statement on an ultimate issue of fact.

FN13.  Earl does not, however, allege that trial counsel was also deficient in failing to object to Knight's testimony..  FN13.  Earl does not, however, allege that trial counsel was also deficient in failing to object to Knight's testimony.

FN14.  Earl concedes that he may not directly challenge this jury instruction on appeal because his trial counsel agreed to it and, therefore, the doctrine of invited error applies..  FN14.  Earl concedes that he may not directly challenge this jury instruction on appeal because his trial counsel agreed to it and, therefore, the doctrine of invited error applies.

HUNT, J.