(dissenting) — The State chose to limit the prosecution to one specific incident. In order to convict Mr. Eaker of first degree rape of a child, Jury Instruction No. 5 directed the jury that it had to find:
That on or between the 1st day of January, 1990 and the 31st day of December, 1991, the defendant had sexual intercourse with [M.F.] while [M.F.’s] parents were on vacation on the day that Judy Russel [sic] was babysitting [M.F.] and took him to his house at 1325 Isaacs Street, Walla Walla. . . .
Clerk’s Papers at 61. “An impermissible comment [on the evidence] is one which conveys to the jury a judge’s personal attitudes toward the merits of the case or allows the jury to infer from what the judge said or did not say that the judge personally believed the testimony in question.” State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). When a jury instruction removes a disputed issue of fact from the jury’s consideration, it is an improper comment on the evidence. State v. Becker, 132 Wn.2d 54, 65, 935 P.2d 1321 (1997).
The majority concludes that Jury Instruction No. 5 improperly comments on the evidence because it “assumes as an undisputed fact that on a day sometime between January 1, 1990 and December 31, 1991, Judy Russell served as a baby-sitter for M.F. and took him to his house on Isaacs.” Majority at 118. In my view, however, it did not instruct the jury that these corroborating facts had been resolved and established as a matter of law. Rather, the instruction told the jury that not only did it have to find the alleged criminal act took place on a certain day, but also that it had to find *122each of those alleged corroborating facts happened that day as well.
The majority reasons that the instruction does not contain the word “and” between the corroborating facts, so it does not make clear “that the jury must determine that the criminal act took place, that it took place on the day that Ms. Russell baby-sat for M.F., and that this day occurred between January 1,1990 and December 31,1991.” Majority at 119. But a commonsense reading of the instruction indicates the jury had to find the specific act alleged by the State took place on a certain day and each of the corroborating facts identifying the specific act also took place that day. Unlike the instruction in Becker, Jury Instruction No. 5 did not resolve any disputed issues of fact. Moreover, it did not indicate the trial court’s opinion as to the evidence presented at trial. The corroborating facts in the instruction merely assured that the jury would consider the specific act relied on by the State for conviction. See State v. Tili, 139 Wn.2d 107, 127-28, 985 P.2d 365 (1999). It did not improperly comment on the evidence and was proper. I therefore respectfully dissent.
Review denied at 149 Wn.2d 1003 (2003).