(dissenting) — Paul Holland contends instruction 8 allowed the jury to convict him without being unanimous as to the conduct underlying each count. The record does not reveal that Mr. Holland took exception to the court’s instructions.
Here, instruction 8 was the "to convict” instruction for the three counts of molestation. Relevant here is the first element of each child molestation count:
. . . Count 2 . . .
1) That between October 2, 1991 and November 2, 1991, the defendant had sexual contact with a minor female;
. . . Count 3 . . .
1) That between October 2, 1991 and November 2, 1991, and on an occasion other than one found to support Count 2, the defendant had sexual contact with a minor female;
. . . Count 4 . . .
1) That between October 2, 1991 and November 2, 1991, and on an occasion other than any found to support Counts 2 and/or 3, the defendant had sexual contact with a minor female;
It is clear from the instructions that an individual juror could not rely on the same contact to support more than one count. However, Mr. Holland argues "some jurors may have relied on one act or incident and some another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction.” State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988).
Kitchen relies on the rule announced in State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984) that when there is only one charge of criminal conduct and there is evidence of several distinct acts which could support the charge, the State *429must either rely on one particular act or the jury must be instructed it must be unanimous as to which act supports the charge. Petrich, at 572. The situation is similar here: while Mr. Holland was charged with only three counts of first degree child molestation, there was evidence he had touched the victim "more than three times”.
As Division Two of this court points out in State v. Ellis, 71 Wn. App. 400, 404, 859 P.2d 632 (1993), there are cases where the Petrich instruction was not given, yet the idea of jury unanimity was not violated. One of those cases is State v. Noltie, 116 Wn.2d 831, 843, 809 P.2d 190 (1991) in which the jury was instructed:
Evidence has been introduced of alleged multiple acts of sexual intercourse between [M] and the defendant.
Although the twelve of you need not agree that all of the acts have been proved, to convict the defendant of Count I or Count II you must unanimously agree that at least one separate act of sexual intercourse pertaining to each count has been proved beyond a reasonable doubt.
As the Ellis court noted, the instruction did not tell the jurors they must agree on the same underlying act for each count; it allowed conviction if each juror found one act per count proved beyond a reasonable doubt. Ellis, at 405. The court noted further, that in holding the instruction adequate, the Supreme Court "must have thought that the instruction adequately communicated to the ordinary juror the idea that each juror must agree on the same underlying act.” Ellis, at 405.
Here, in addition to instruction 8, previously set forth, the jurors were instructed they must consider each count "as if it were a separate trial”, that their verdict on one count should not control their verdict on another count, and that they must unanimously agree on a verdict for each of the counts. As in Noltie, there was no instruction requiring the members of the jury to unanimously agree on the same underlying act for each count. The instructions given adequately informed the jurors that they must agree on the same underlying act for each count. They conveyed the same message as is contained in an unanimity instruction. Mr. *430Holland’s right to a unanimous jury verdict has not been violated.
I would affirm the two convictions of first degree child molestation.
Review denied at 127 Wn.2d 1008 (1995).