State v. Carson , 184 Wash. 2d 207 ( 2015 )

Stephens, J.

¶43 (concurring) — I am concerned that both the majority and Justice Gordon McCloud’s concurrence make broad statements about when a Petrich¹⁹ instruction is required in a multicount case. As the majority quietly observes, this question is not before us. Majority at 223 n.10.1 am also concerned that the concurrence erroneously characterizes the majority as announcing a broader holding than it does. But to me, the path to greater clarity is to state the relevant holding in its simplest terms: Carson’s claim of ineffective assistance of counsel fails because the State made a clear election before the case went to the jury, specifying exactly three separate acts for the three separate counts of first degree child molestation. Relying on the State’s election—as both the majority and Justice Gordon McCloud’s concurrence ultimately do—I conclude that defense counsel’s performance was neither deficient nor prejudicial. On this basis, I concur in the decision to affirm Carson’s conviction.

Fairhurst, J., concurs with Stephens, J.

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