¶1concurring.
¶2I concur with the majority because I believe it highly probable in this particular case that the jury’s verdict was unanimous. I write separately to point out . a technical difference I have with the majority, and to *54stress how palpably erroneous it was for the trial court to ignore the serious problem flagged by the defendant’s motion to dismiss. It is incumbent upon a trial judge who is presented with a motion like the one the defendant made in this case to either dismiss the indictment, require the state to elect the act which it alleges constitutes the crime, or instruct the jury that they must agree unanimously on a specific act that constitutes the crime before the defendant can be found guilty. See State v. Kitchen, 110 Wash.2d 403, 756 P.2d 105 (1988); Spencer v. Superior Court, 136 Ariz. 608, 667 P.2d 1323 (1983).
¶3First, the technical point. I do not believe that it is quite correct to call this indictment “duplicitous.” The indictment charged a single count of sexual abuse— one crime — that occurred on a single day. However, the state intended, and was permitted, to show that a whole series of crimes had occurred on that day.
¶4A duplicitous indictment is one that charges more than one crime in the same count. Spencer, 136 Ariz. at 610, 667 P.2d at 1325. For example, in Spencerthe indictment charged that the defendant molested the victim “from July 1979 through August 1980.” Id. at 609, 667 P.2d at 1324. It is true that some cases, like People v. Keindl, 509 N.Y.S.2d 790, 68 N.Y.2d 410, 502 N.E.2d 577 (1986), speak of situations like the one we are presented with as involving duplicitous indictments. Other cases, like People v. Slaughter, 211 Cal. App.3rd 577, 259 Cal.Rptr. 437 (1989) and United States v. Payseno, 782 F.2d 832 (9th Cir.1986), eschew that term for this set of circumstances. In Kitchen, the court referred to this situation as a “multiple acts” case. Kitchen, 110 Wash.2d at 405-06, 756 P.2d at 106. What we call the problem presented here has no practical ramification in this case at this stage, but it is well to be precise in this confusing area of the law. Indeed, perhaps it was too cursory a glance at the word “duplicitous” that accounts for the trial judge’s otherwise inexplicable failure to grant the defendant’s timely objection to the manner in which the state was presenting this case. Leaving that technical point, I agree with the majority that the only real problem with what happened here was the potential for a less than unanimous verdict. The majority concludes that the error was not prejudicial because the jury was faced with only one question — who was telling the truth?
¶5I take a slightly different tack than does the majority. I think that there was clear error here, but that, under all the facts of the case, the error was harmless beyond a reasonable doubt. That is the proper inquiry. See State v. Kitchen. While the jury did not have to find the defendant committed either all of the acts or none of them, I think it highly likely that they decided to believe the victim as to everything that occurred. While it is possible to quarrel with various aspects of the cases the majority relies on, the most salient feature that I find in several of them is the failure of the defense to offer, or point to evidence by which the jury could somehow distinguish between the multiple acts testified to by the victim. See People v. Winkle, 206 Cal.App.3d 822, 253 Cal.Rptr. 726 (1988); People v. Deletto, 147 Cal.App.3d 458, 195 Cal.Rptr. 233 (1983) cert. denied, 466 U.S. 952, 104 S.Ct. 2156, 80 L.Ed.2d 542 (1984). Those cases were presented to the jury by both the state and the defense as an all or nothing proposition. As the majority so correctly observes, that is also true of the case before us. Here, the defense suggested that whatever the defendant did was accidental and argued that the victim simply built up harmless incidents in her mind until she was convinced they were intentional. There was no attempt to distinguish between the different acts — the defense was identical as to all of them.
¶6I agree with the majority about the other aspect of the case. I have also considered whether this case should be reversed because there was cumulative error. I do not believe reversal is called for. I believe the defendant received a fair trial.