QUINN-BRINTNALL, J.
¶1 A jury found Edwin Corbett guilty of four counts of first degree child rape. Corbett appeals, asserting that (1) the trial court improperly limited his cross-examination of a witness; (2) sufficient evidence does not support three of his convictions; (3) the jury instructions failed to protect his rights to be free from double jeopardy and to receive unanimous jury verdicts; (4) the prosecutor committed misconduct during closing arguments; and (5) the sentencing court imposed an unlawful prohibition on his contact with all minors, including his own biological children. We affirm because (1) Corbett did not provide sufficient argument related to any allegedly erroneous limitations on his cross-examination of a witness; (2) sufficient evidence supports all his convictions; (3) the jury instructions were proper and did not prejudice Corbett's trial. (4) the prosecutor did not commit misconduct; and (5) the sentencing condition prohibiting contact with all minor children, including Corbett's own biological children, is a valid crime-related prohibition that does not unduly burden his fundamental parenting rights.
FACTS
¶2 In January 2005, Kyla O. and Corbett moved into a North Tacoma, Washington, home along with Kyla O.'s two children from a previous marriage. Kyla O. shared custody with her ex-husband of her then six-and-a-half-year-old daughter, J.O., and her then three-and-a-half-year-old son, D.O. Kyla O. and Corbett married in March 2005. On July 31, 2005, Corbett learned that Kyla O. planned to leave him, a struggle ensued, and Corbett assaulted Kyla O. Shortly thereafter, Kyla O. permanently moved out of the house and ended her relationship with Corbett, though they are still married. Kyla O. and her children have had no contact with Corbett since 2005 other than during court proceedings.
Corbett pleaded guilty to misdemeanor assault for this incident at a separate trial.
¶3 When they lived together, Kyla O. worked and provided for the family while Corbett took care of the children. Kyla O.'s night work schedule and J.O.'s school schedule were such that on most days the two spent minimal time together. Accordingly, Corbett served as the primary caregiver for Kyla O.'s children when they were not with their father, including playing with them, disciplining them, and putting them to bed. Kyla O. knew that Corbett gave the children karate lessons and sometimes played a game called "open your mouth and close your eyes" involving candy suckers. 3 Report of Proceedings (RP) at 281.
¶4 At trial, Kyla O. testified that in late October 2005, J.O. spontaneously told her that Corbett's Tae Kwon Do lessons used to involve
"sit[ting] on the floor and clos[ing] our eyes and open[ing] our mouth[s]. It was supposed to be like for relaxation, but he would stick his penis
in my mouth, and I know that because even though he told me to close my eyes all the way, I would keep them cracked open, and I saw what he was doing."
3 RP at 304. J.O. did not want to report the crime to the police.
The trial court ruled in pretrial motions that J.O.'s statements to Kyla O.; her close friend, CF.; C.F's father, Chad F; and forensic child interviewer Cornelia Thomas were admissible under the child hearsay statute. RCW 9A.44.120.
¶5 Over the next year-and-a-half, Kyla O. periodically asked J.O. questions such as, "[I]s there anything you need to talk about?" so that J.O. knew that she could come to Kyla O. when she (J.O.) was ready to talk about the abuse. 3 RP at 310. Eventually, J.O. told Kyla O. that Corbett had put his penis in her mouth several times and that, during one incident, he put whipped cream on it. J.O. also told Kyla O. that Corbett had threatened to harm her family if she told anyone about the abuse, but J.O. testified at trial that Corbett never threatened her.
¶6 Eventually, J.O. told several of her friends, including her best friend, CF., about the abuse. Around September 2007, J.O. told C.F.'s father, Chad R, about the abuse. Chad F. conveyed the information to J.O.'s father, who in turn contacted the police and obtained counseling for J.O.
¶7 On November 26, 2007, the State charged Corbett with four separate counts of first degree child rape. An amended information specified that all four counts related to incidents that had occurred between January 1, 2005, and August 31, 2005.
We note that there are four scrivener's errors in Corbett's judgment and sentence where the dates of his crimes are those included in the original information and not those in the amended information.
¶8 At trial, J.O. testified about several different instances where Corbett put his penis into her mouth during different games that required her to keep her eyes closed. Multiple witnesses testified about details of the abuse that J.O. had disclosed to them over the years.
¶9 J.O. testified that on two separate occasions, Corbett put a "soft thing" in her mouth as part of a "candy taste game"; the "candy taste game" consisted of closing her eyes, identifying two different candies by taste, and receiving the candies as a reward. 3 RP at 395, 400, 408. She also testified that the "soft thing" Corbett placed in her mouth both times felt like the same object, felt "like regular skin," "didn't really have any flavor," did not have a fingernail, and that she had trouble keeping her mouth around it because "it was big and everything." 3 RP at 400-01. When she had to identify the "soft thing" as part of the candy game, J.O. testified that she did not "want to answer anything weird," so she lied and said it was a "sucker." 3 RP at 403. J.O. testified that after the games some of the candies that she received had "no sign of wetness" or were "completely dry." 3 RP at 404, 410. At trial, J.O. stated that she believed Corbett had put his "private area" in her mouth because the soft thing was too big to be a finger, too small to be "his foot or anything like that," and because, when she sat on a toilet during the candy taste games, her head was at eye level with his private area. 3 RP at 406. J.O. also testified that both candy taste games where Corbett put the "soft thing" in her mouth were played in a bathroom.
J.O. testified that a "private area" is "right between [the] legs" and used for "[g]oing to the bathroom." 3 RP at 406.
¶10 J.O. also testified about karate lessons that Corbett gave her to teach her how to concentrate. During the karate lesson, J.O. put headphones on to listen to music, closed her eyes, and had to try to block out the music sounds to learn how to focus. Corbett would reward J.O. by placing frosting on his finger and then placing it in her mouth. J.O. testified that during one karate lesson, Corbett put the same "soft thing" that he had used during the candy game, with frosting on it, in her mouth. At trial, J.O. also stated that, during her final karate lesson which took place in a bedroom, Corbett taped cotton balls over her eyes, but that she could see under the cotton balls as Corbett put his penis into her mouth. J.O. testified that the way Corbett's penis felt in her mouth during the final karate lesson was the same way the "soft thing" felt in the other abuse instances that she had described.
¶11 After the State rested, Corbett moved to dismiss three of the four counts for lack of sufficient evidence. Specifically, Corbett argued that J.O. had not identified "with any certainty what was in her mouth on three of the four occasions which this case has been narrowed down to." 6 RP at 719. The trial court denied the motion.
¶12 Corbett then testified in his defense. Corbett admitted that; he played candy games with the children "all the time," where he simply put candy in both children's mouths, without any guessing involved, to end their constant fights over particular pieces of candy. 6 RP at 775. He claimed that he had the children shut their eyes because D.O. worried about getting "cooties" from candy that had been in his sister's mouth. 6 RP at 775. Corbett denied giving the children any karate lessons because he felt they were not "mentally prepared" for karate, but he testified that he wrestled with them and showed them some moves. 6 RP at 777. Corbett denied that any sexual misconduct or touching occurred between J.O. and him.
¶13 The trial court instructed the jury, giving four identical "to convict" instructions. The trial court also gave a unanimity instruction and an instruction stating, "A separate crime is charged in each count," both of which the State and Corbett proposed. Clerk's Papers (CP) at 34.
Jury instructions 10 through 13 read, To convict [Corbett] of the crime of rape of a child in the first degree as charged in Count [I, II, III, IV], each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the period between the 1st day of January, 2005 and the 31s; day of August, 2005, [Corbett] had sexual intercourse with J.O.;
(2) That J.O. was less than twelve years old at the time of the sexual intercourse and was not married to [Corbett];
(3) That [Corbett] was at least twenty-four months older than J.O.; 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 the other hand, if, after weighing all the evidence you have reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Clerk's Papers (CP) at 39-42.
Jury instruction 6 reads,
In alleging that [Corbett] committed Rape of a Child in the First Degree, the State relies upon evidence regarding a single act constituting each count of the alleged crime. To convict [Corbett] on any count, you must unanimously agree that this specific act was proved.
CP at 35.
Jury instruction 5 reads in its entirety, "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 34.
The State's proposed jury instructions are not in the record on review; but at trial, the trial court explicitly stated that Corbett's proposed instructions on unanimity and separate crimes, which are in the record on review and became jury instructions five and six, were also included in the State's proposed instructions.
¶14 On February 19, 2009, the jury returned guilty verdicts on all four counts. On April 17, the trial court imposed four concurrent sentences of 318 months to life confinement and placed Corbett under community custody for life. Corbett had an offender score of nine and no prior criminal history. Additionally, the sentencing court imposed 26 conditions on Corbett's community custody, including two that he challenges in this appeal. Condition 16 states, "Do not initiate or prolong physical contact with children under the age of 18 for any reason." CP at 115. Condition 25 states, "No contact with any minors without prior approval of the [Department of Corrections/Community Corrections Officer (DOC/CCO)] and Sexual Deviancy Treatment Provider." CP at 116. Corbett timely appeals.
ANALYSIS
LIMITING CROSS-EXAMINATION
¶15 Corbett includes the following assignment of error in his brief: "Appellant was denied due process when the trial court erred by limiting defense cross-examination of a state's witness." Br. of Appellant at 1. But Corbett provides no argument or explanation of this assigned error anywhere in his brief. Without argument or authority to support it, we cannot address Corbett's assignment of error. RAP 10.3(a)(6) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record); State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986)).
SUFFICIENCY OF EVIDENCE
¶16 Corbett next challenges the sufficiency of evidence supporting three of his four convictions. He bases his appeal on (1) J.O.'s inability to identify what he put in her mouth during the games/lessons when her eyes were closed and (2) alleged inconsistencies between J.O.'s trial testimony and her pretrial statements that were admitted at trial via other witnesses' testimonies, arguing that these inconsistencies created such a level of doubt that no rational jury could have returned a guilty verdict. Specifically, Corbett highlights inconsistencies regarding where the abuse allegedly occurred (bathroom, bedroom, or garage), the substances that he allegedly put on his penis (whipped cream, chocolate, icing, or frosting), and whether Corbett threatened harm if J.O. revealed the abuse. We hold that sufficient evidence supports all four of Corbett's convictions.
¶17 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
¶18 In order to prove first degree child rape, the State had to show that (1) Corbett had sexual intercourse with JO. (2) J.O. was less than 12 years old and not married to Corbett, (3) Corbett was more than 24 months older than J.O., and (4) the acts occurred in Washington. RCW 9A.44.073. The definition of "sexual intercourse" includes any acts "involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex." RCW 9A.44.010(1)(c).
¶19 The evidence against Corbett is overwhelming. At trial, J.O. testified that, when she was 6 and 7 years old and lived with Corbett, who was around 30 years old at the time, (1) on three separate occasions while her eyes were closed, Corbett put a "soft thing" in her mouth that felt like skin, did not have a fingernail, and had no flavor; (2) on a fourth occasion she saw under cotton balls that were taped to her eyes that Corbett was putting his penis in her mouth; and (3) the feel of Corbett's penis in her mouth during the fourth incident matched the feel of the "soft thing" Corbett had put in her mouth on the other three occasions. Moreover, at least four other witnesses at trial testified that over the course of two years, J.O. made statements to them that included details similar to those that J.O. testified to at trial.
¶20 Corbett contends that J.O. could identify in only one instance exactly what he put in her mouth. But J.O. testified that the feel of Corbett's penis in her mouth in the last incident was the same feeling she had regarding the "soft thing" in her mouth in the other instances. Circumstantial evidence and direct evidence are equally reliable. Delmarter, 94 Wn.2d at 638. Based on J.O.'s trial testimony, any rational trier of fact could have found beyond a reasonable doubt that Corbett committed the essential elements of first degree child rape on four separate occasions.
¶21 Next, Corbett attempts to discredit J.O. by arguing inconsistencies in her pretrial and trial statements about some of the details of the abuse. Specifically, Corbett argues that J.O.'s pretrial and trial statements conflict as to the (1) location of the abuse, (2) substances placed on Corbett's penis during the abuse, and (3) whether Corbett threatened her if she told anyone about the abuse.
¶22 Corbett points to State v. Alexander, 64 Wn. App. 147, 822 P.2d 1250 (1992), to argue that J.O.'s inconsistencies are so extreme that a rational jury could not have found beyond a reasonable doubt that he sexually abused her. In Alexander, Division One of this court overturned multiple child rape convictions, in part because of extreme inconsistencies in the child victim's testimony at trial. 64 Wn. App. at 157-58. There, the child victim directly contradicted herself about whether a bathtub abuse incident ever occurred and whether her abuser used baby oil. Alexander, 64 Wn. App. at 150. Moreover, the victim's testimony as to the relative dates of her abuse contradicted her mother's testimony about times when the victim was around the alleged abuser. Alexander, 64 Wn. App. at 149-50.
¶23 In contrast, J.O.'s inconsistencies do not reach the level of those detailed in Alexander, Corbett's arguments are unpersuasive and fail for several reasons. As an initial matter, regardless of whether inconsistencies exist in J.O.'s statements, we defer to the trier of fact, here the jury, on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Camarillo, 115 Wn.2d at 71; Walton, 64 Wn. App. at 415-16. Corbett's entire argument regarding J.O.'s inconsistent statements goes to her credibility, and her credibility is a matter to be resolved by the jury that heard her testimony, not by a reviewing court. Camarillo, 115 Wn.2d at 71.
¶24 Moreover, our review of the record reveals that the inconsistencies in J.O.'s statements were not as significant as Corbett asserts. Although we acknowledge that J.O.'s pretrial and trial statements do directly contradict about whether Corbett threatened her, we do not agree with Corbett's claims of other inconsistencies in J.O.'s statements or that they are similar to the inconsistencies in Alexander.
¶25 Our review of the record in this case reveals no inconsistencies regarding the location of the abuse. At trial, J.O. testified that both candy games involving the "soft thing" took place in a bathroom and that the second karate lesson abuse incident involving cotton balls and Corbett's penis took place in a bedroom. J.O. did not identify a location for the first karate lesson abuse incident; only after repeated questioning did J.O. testify that she thought the first karate lesson abuse incident occurred "somewhere downstairs" and that it "could have" happened in a bathroom. 4 RP at 466. Corbett claims that C.F.'s testimony that J.O. told her the karate abuse happened in a garage and a child abuse medical evaluator's testimony that J.O. said she was abused in a bedroom contradict J.O.'s trial testimony. But there is no inherent conflict between these testimonies. The garage location for karate abuse that J.O. told to CF. does not conflict with J.O.'s trial testimony because that could have been the location of the first karate abuse incident and J.O. did not identify a specific location for this incident during the trial. The medical evaluator's testimony did not specify which incidents of abuse occurred in the bedroom or state that J.O. told her all the incidents occurred in a bedroom. J.O. testified at trial that at least some of the abuse, specifically the last karate lesson abuse incident, occurred in a bedroom. Thus, there are no direct inconsistencies between J.O.'s pretrial and trial statements about where the abuse occurred.
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.
[¶ 32] We recently addressed the importance of this rule, and the limitations it imposes on post-discharge inquiry into jury verdicts in Ma v. Bryan, 2010 ME 55, ¶ 9, 997 A.2d 755, 759-60.
We are . . . generally barred from inquiring into the jury's deliberations The reasons for this rule are compelling:
(1) the need for stability of verdicts; (2) the need to conclude litigation and desire to prevent any prolongation thereof; (3) the need to protect jurors in their communications to fellow jurors made in the confidence of secrecy of the jury room; (4) the need to save jurors harmless from tampering and harassment by disappointed litigants; (5) the need to foreclose jurors from abetting the setting aside of verdicts to which they may have agreed reluctantly in the first place or about which they may in the light of subsequent developments have doubts or a change of attitude.
. . . .
Hence our adoption of M.R. Evid. 606(b), which prohibits a juror from testifying as to any statements made during deliberations or "to the effect of anything upon that juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's mental processes in connection therewith." With these considerations in mind, we are permitted to inquire into the validity of a verdict only in very limited circumstances, for "serious allegations of juror bias in the context of juror dishonesty or inaccuracy in answering a voir dire questionnaire," for example.
Id. (citing
State v. Watts, 2006 ME 109, ¶¶ 15-17,
907 A.2d 147, 150-51).
[¶ 33] While Rule 606(b) states that a juror "may not testify," court opinions over the last century have interpreted this limitation to extend to any post-discharge communication by or with a juror or the jury that would undermine the validity or accuracy of the jury's reported verdict. See Taylor v. Lapomarda, 1997 ME 216, ¶¶ 5-10, 702 A.2d 685, 687-89 (holding that the court properly applied Rule 606(b) in declining to disturb the verdict following juror-initiated communications indicating confusion and inaccuracy in reporting verdict); Marr v. Shores, 495 A.2d 1202, 1204-06 (Me. 1985) (holding that the court properly did not consider, pursuant to Rule 606(b), post-discharge affidavit by jury foreman and separate affidavit by trial counsel regarding communication with another juror alleging references to insurance during deliberations); see also Tanner v. United States, 483 U.S. 107, 116-27, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (discussing, pursuant to Fed.R.Evid. 606(b), juror-initiated telephone call and subsequent affidavit alleging intoxication of jurors during trial); McDonald v. Pless, 238 U.S. 264, 265-69, 35 S.Ct. 783, 59 L.Ed. 1300 (1915) (discussing juror communication to counsel alleging improper method of calculation of verdict). Thus, the ban on juror testimony regarding the internal deliberation process of the jury or jury confusion or mistake in reporting the verdict is a ban on court consideration of any post-discharge juror communications about such subjects.
[¶ 34] Ninety-five years ago, the United States Supreme Court acknowledged that this strict ban on the use of post-discharge statements by jurors to undermine verdicts could lead to apparently un-just results in particular cases, but that the ban on the use of such juror statements was vital to preserve the integrity of the jury system.
But let it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.
McDonald, 238 U.S. at 267-68, 35 S.Ct. 783.
[¶ 35] In McDonald, the court recognized that the rule may exclude the only evidence of juror misconduct, but "a change in the rule would open the door to the most pernicious arts and tampering with jurors. . . . It would lead to the grossest fraud and abuse and no verdict would be safe." Id. at 268, 35 S.Ct. 783.
[¶ 36] The continuing validity of the rule stated in McDonald, after adoption of Rule 606(b) in the Federal Rules of Evidence, was reaffirmed in Tanner, 483 U.S. at 119-21,107 S.Ct. 2739. Besides Taylor, we have articulated similar policy concerns to exclude juror communications offered to impeach verdicts in Cyr v. Michaud, 454 A.2d 1376, 1383 (Me. 1983) (considering allegation of juror confusion as to verdict form post-adoption of M.R. Evid. 606(b)) and Patterson v. Rossignol, 245 A.2d 852, 857 (Me. 1968) (discussing policy considerations pre-adoption of M.R. Evid. 606(b)).
[¶ 37] But for the fact that it was a civil case without a double jeopardy concern, the facts in Taylor are very similar to those presented here. In Taylor, the jury's responses on its original verdict form indicated a misunderstanding as to the law of comparative negligence. 1997 ME 216, ¶ 3, 702 A.2d at 686. The jury was not discharged, and the court reinstructed the jury and recessed it to deliberate, after which the jury returned a verdict form that was inconsistent with its first verdict. Id. ¶ 4, 702 A.2d at 686. After the second verdict was read, the parties said they had nothing further for the jury, the jury was discharged, and the jury left the courtroom. Id. Within minutes, a court officer informed the court that the jurors wanted to speak to it because they had intended to award Taylor more than they had and that they had "messed up really bad." Id. The jury indicated in writing that it had misunderstood the verdict form. Id.
[¶ 38] Based on the jury's note to the court, the court denied Taylor's motion for a mistrial and for entry of judgment. Id. ¶ 4, 702 A.2d at 687. On appeal, we held that upon determining that the jury's verdict was not the result of outside influence or external juror misconduct, the court correctly concluded that there were no grounds for granting Taylor's motions. Id. ¶¶ 7, 10, 702 A.2d at 687-89 (noting that Taylor alleged only that the jury's verdict was the product of the jury's failure to understand how to calculate comparative negligence on the verdict form). In reaching this decision, we acknowledged that courts of other jurisdictions have taken a "wide variety of approaches to deciding whether to permit jury reassembly after discharge," concluding that this evidences "the impossibility of drawing a line which properly fits all of the points upon which parties may urge revisiting jury verdicts." Id. ¶ 8 n. 4, 702 A.2d at 688.
[¶ 39] Taylor had urged us to make a fact-specific inquiry and conclude that the jury, despite having been discharged, was "still together in the courthouse functioning as a jury" when it sent the note to the court. Id. 117, 702 A.2d at 688. We declined to do so, stating, in language reaffirmed in our recent statement in Ma, that such an inquiry would be contrary to our prior precedent and public policy considerations that "militate against permitting jurors to impeach their verdicts":
Ma v. Bryan, 2010 ME 55, ¶ 9, 997 A.2d 755, 759-60.
(1) the need for stability of verdicts; (2) the need to conclude litigation and desire to prevent any prolongation thereof; (3) the need to protect jurors in their communications to fellow jurors made in the confidence of secrecy of the jury room; (4) the need to save jurors harmless from tampering and harassment by disappointed litigants; (5) the need to foreclose jurors from abetting the setting aside of verdicts to which they may have agreed reluctantly in the first place or about which they may in the light of subsequent developments have doubts or a change of attitude.
Taylor, 1997 ME 216, 118, 702 A.2d at 688 (quoting
Patterson, 245 A.2d at 857).
[¶ 40] Similarly, in Cyr, we held that these policy considerations "apply to prohibit correcting a mistake in the recording of a verdict by using evidence, obtained after juror discharge, to establish that the jury misunderstood the verdict form provided to them." 454 A.2d at 1383; see also Field Murray, Maine Evidence § 606.2 at 278 (6th ed. 2007) ("Maine has joined those jurisdictions that prohibit subsequent juror testimony or affidavits in order to correct a mistake even in the recording of a verdict.").
Contrary to the State's argument, Taylor and Cyr are not distinguishable from this case on the grounds that inquiring post-discharge into the jury's verdicts in those cases would have improperly necessitated revisiting the jury's deliberations, but this case does not. In this case, similar to Taylor and Cyr, the jury misreported its intended verdict based on a misunderstanding of the instructions; the inquiry into the deliberative process of the juries, in all three cases, is comparable.
[¶ 41] Although our prior opinions addressed civil cases, the holdings of those opinions are equally applicable to criminal cases, given that Rule 606(b) applies to both. Tanner, 483 U.S. at 121-22, 107 S.Ct. 2739 (explicitly recognizing that Rule 606(b) applies to criminal cases). Other federal precedent with a similar result includes United States v. Briggs, 291 F.3d 958, 963-64 (7th Cir. 2002); United States v. Gonzales, 227 F.3d 520, 524-25 (6th Cir. 2000); United States v. Ford, 840 F.2d 460, 465 (7th Cir. 1988); and Gov't of the Virgin Islands v. Nicholas, 759 F.2d 1073, 1079-81 (3d Cir. 1985).
Research has disclosed one very old Maine criminal case in which the trial court was held to have properly corrected a verdict based on post-discharge information disclosed by jurors. In State v. Whittier, 21 Me. 341 (1842), the defendant was charged with two counts of what would today be criminal mischief. The trial court instructed the jury that there was insufficient evidence to support a verdict on the second count. Id. at 346. Despite that instruction, the jury returned a verdict of guilty on both counts and was discharged. Id. The jury then dined together and afterwards reported to the court that they were mistaken in reporting a guilty verdict on the second count. Id. The court then entered a not guilty verdict on the second count, and we, as then constituted, affirmed the change of verdict, holding that this correction was not error as it was consistent with the court's direction before the jury began its deliberations and there was no prejudice to the accused. Id. at 346-47. The very special circumstances of that case, and the unanimity of precedent to the contrary over the last century, cause us to restrict the holding in Whittier to its unique facts.
Federal Rule of Evidence 606(b) was amended in 2006 to allow post-discharge juror testimony that the jury had made a mistake in entering the verdict on the verdict form. The Maine Rule was not similarly changed, and no verdict form was used in reporting the first verdict. Federal Courts continue to bar inquiry into juror thought processes leading to a verdict. See, e.g., United States v. Davis, 612 F.Supp.2d 48, 53-54 n. 2 (D.D.C. 2009) (holding that Fed.R.Evid. 606(b), as amended, precluded the convicted defendant from questioning jurors about their understanding of the jury instructions and that none of the limited exceptions permitting juror testimony under the amended Rule 606(b) applied), affd, 377 FedAppx. 19 (D.C. Cir. 2010); see also Schuler v. Branch Banking Trust Co., No. 1:08cv378, 2010 WL 1257959, at *1, 2010 U.S. Dist. LEXIS 39012, at *2-3 (March 25, 2010) (denying motion for new trial in civil case, holding that Fed.R.Evid. 606(b), as amended, does not permit post-discharge juror testimony as to the lengthy and confusing nature of the jury instructions).
[¶ 42] Applying the holdings of these cases, we conclude that the trial court erred when, after discharge of the jury, it inquired into the jury's deliberative process beyond establishing, to the extent permitted by M.R. Evid. 606(b), that the jury's original verdict of not guilty on the count of aggravated OUI was not the product of outside influence or external juror misconduct. In this case, the jury rendered a verdict in open court that responded to both counts of the indictment, counsel did not request a poll or any further inquiry, the jurors then acknowledged the verdict as their verdict and were discharged without any overt indication that there was a problem in the rendering of the verdict. The jurors' subsequent communications with the court establish that their concern over the verdict resulted from the jurors' misunderstanding of the jury instructions and the alternative theories presented for liability on the one count of aggravated OUI, not from outside influences or external juror misconduct.
[¶ 43] Pursuant to Tanner and Taylor, the inquiry ends there. The dissent recognizes that Taylor governs this appeal and suggests that we overrule Taylor to allow the trial court to find facts to permit a jury to impeach its own verdict. The facts distinguishing this case from Taylor point to the importance of continuing the brightline rule stated in Rule 606(b). Here, unlike Taylor, the jury's announcement of its verdict led immediately to an emotional response in the courtroom. Here, unlike Taylor, the trial court perceived that the confusion reflected in the jurors' faces after the verdict may have been based on fear generated by the outburst in the courtroom. The Rule 606(b) ban on post-discharge juror impeachment of their own verdict properly prevents reopening accepted verdicts, after discharge of the jury, in such circumstances.
[¶ 44] After a jury is discharged, no court can then inquire into the extent to which the jurors may have been confused in rendering the verdict, or did or did not remain together and continue to act as a "single body" after being discharged, or whether or not they actually deliberated after being discharged and before contacting the court with concerns about the verdict. The jury reported a verdict on each count, in the manner that the court, the State, and the defense had anticipated; it was discharged and left the courtroom without comment.
Contrary to the State's argument that the jurors in this case voted on the issue of "aggravated OUI — accomplice liability" before being discharged and that they were merely reporting that vote on the special verdict form, the court explicitly instructed the jury after it was discharged to return to deliberate in order to complete the special verdict form. That verdict form was given to the jury only after it had reported its first verdict, was discharged, and was then reconvened and reinstructed. At several points in this trial, the State had both the burden and the opportunity to seek judicial action that could have avoided the problem here. For example, the jury instruction should have been clarified, and the State could have sought to poll the jurors if there was, in fact, any question about their confusion in reporting their verdict initially.
[¶ 45] In sum, the trial court exceeded the parameters established in Rule 606(b), and in Ma, Taylor, Cyr, Marr, Patterson, Tanner, and McDonald when, once it was established that the jury's verdict was not the result of outside influence or external juror misconduct, it made further inquiry into the process by which the jury reached its verdict and allowed the jury to reassemble to report a different verdict after having been discharged.
The entry is:
Judgment of conviction vacated. Remanded for entry of the original verdict of not guilty on Count II.