(dissenting). I would affirm the decision of the Court of Appeals that the trial judge erred in refusing to instruct the jurors that they must be unanimous regarding which specific act of sexual penetration was committed by the defendant, Ricky Cooks.1
*531I
Cooks was charged with sexual penetration of a person under the age of thirteen.2 The complainant, ten years old at the time of trial, testified that Cooks sexually assaulted her on three separate occasions, on three successive days, involving fondling of her breasts and genitals, as well as either anal penetration or attempted anal penetration. Each incident, as described, would have supported a conviction. Although the complainant could not specify the exact date of the assaults, she was able to describe three separate incidents occurring on consecutive days. The child testified with reasonable specificity regarding the times, locations, and details of each separate assault.
The trial judge refused to instruct the jury in accordance with the following defense-proposed unanimity instruction:
"Members of the jury, you must be unanimous as to which specific act of penetration occurred, if any, before you can find the Defendant guilty of esc in the first degree.”
Cooks contends that without the proffered instruction the jury might return a split verdict, with some jurors finding that the assault occurred on day one, and others finding that the assault occurred on day two or three.3
The defense theory was that the complainant *532fabricated the charges to avoid punishment by her foster mother. The jury deliberated briefly before finding the defendant guilty of the lesser offense of esc in the second degree.
ii
State courts asked to decide the constitutional adequacy of an unanimity instruction in sexual molestation cases have adopted the approach set forth in State v Petrich, 101 Wash 2d 566; 683 P2d 173 (1984). In Petrich, the defendant was charged with one count of indecent liberties and one count of second-degree statutory rape. At trial, the thirteen-year-old complainant testified regarding numerous incidents of sexual contact over a-twenty-one-month period. At the conclusion of the state’s case, the defendant moved to compel the state to elect which offense was to be relied on for conviction, arguing that he was charged with only one count of each offense, but the evidence adduced at trial would support multiple charges. The court denied the motion, stating that the acts alleged were in the nature of a continuing offense.
The Supreme Court of Washington rejected the characterization of ongoing sexual abuse as a "continuing offense” because the evidence showed a series of separate and distinct acts.4
*533To determine whether one continuing offense may be charged, the facts must be evaluated in a commonsense manner. In the present case, each described incident occurred in a separate time frame and identifying place. The only connection between the incidents was that the victim was the same person; this is not enough to call the offense one transaction. [.Petrich, supra at 571.]
Having determined that the allegations were separate and alternative "acts,” the court proceeded to distinguish "alternate means” cases from "alternate acts” cases.
[W]hen the State alleges alternative means of committing a single criminal act, this court has approved instructions that, although requiring unanimity in the verdict, did not require a unanimous determination of which of several alternative means was actually used to commit the crime, so long as substantial evidence supported each alternative. [Citations omitted.]
. . . This is not an "alternative means” case. The State charged petitioner with one count each of statutory rape and indecent liberties, but proceeded at trial to present evidence of numerous separate criminal acts. Petitioner argues that when the evidence shows several incidents which *534could form the basis of the one incident charged in the information, to ensure a unanimous verdict on the underlying crime, the State must tell the jury which act is relied on to convict. [Id. at 569-570.]
To guard against a compromise in a multiple acts case, the court set forth the following rule: When evidence introduced at trial indicates that several distinct criminal acts have been committed, and the defendant is charged with only one count of criminal conduct, jury unanimity must be protected in the following manner. The prosecutor may, in his discretion, elect the act upon which he will rely for conviction. Absent an election, the jury must be instructed that all twelve jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt, thereby assuring that a conviction rests upon a unanimous verdict based on one criminal act. Id. at 572.
In fashioning the unanimity rule, the court was attentive to the nature of criminal sexual conduct charges involving children.
These options [referring to the choice of prosecutorial election or a specific unanimity instruction] are allowed because, in the majority of cases in which this issue will arise, the charge will involve crimes against children. Multiple instances of criminal conduct with the same child victim is a frequent, if not the usual pattern. Note, The Crime of Incest Against the Minor Child and the States’ Statutory Responses, 17 J Fam Law 93, 99 (1978-79). Whether the incidents are to be charged separately or brought as one charge is a decision within prosecutorial discretion. Many factors are weighed in making that decision, including the victim’s ability to testify to specific times and places. Our decision in this case is not intended to hamper that discretion or encourage the bringing of multiple charges when, in the prosecutor’s judg*535ment, they are not warranted. The criteria used to determine that only a single charge should be brought, may indicate that the election of one particular act for conviction is impractical. In such circumstances, defendant’s right to a unanimous verdict will be protected with proper jury instructions. [Petrich, supra at 572-573.]
Alaska adopted the rule set forth in Petrich to guard the fundamental right to a unanimous verdict in a multiple acts case. State v Covington, 703 P2d 436 (Alas App, 1985).5
Arizona similarly requires the prosecutor to elect one act among several or to provide a specific unanimity instruction. State v Schroeder, 167 Ariz 47; 804 P2d 776 (1990).6
California and Colorado have formulated a different, but an equally protective, unanimity rule to assure valid and unanimous verdicts in multiple acts evidence sexual abuse prosecutions. In People v Jones, 51 Cal 3d 294; 270 Cal Rptr 611; 792 P2d 643 (1990), the child complainant testified about frequent oral copulation at five separate locations, supporting four counts of child molestation. The ten year old was unable to specify the exact time, *536place, or circumstances of the assaults occurring over a two-year period, typical of testimony offered in a molestation case. The jury was instructed that in order to convict the defendant of lewd conduct, the prosecution must prove beyond a reasonable doubt, and the jury must "unanimously agree on, 'the commission of the same specific act or acts constituting said crime within the time period alleged.’ ” Id. at 300.
In affirming the conviction, the Supreme Court of California stated:
In [child molestation cases], although the jury may not be able to readily distinguish between various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.
In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation omitted.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim. [Id. at 321-322.]
The Supreme Court of Colorado, adopting the rule and rationale of Jones, recommended that when circumstances of a particular case indicate a likelihood of juror disagreement about which acts the defendant committed, special verdicts are advisable to provide additional assurance that a *537verdict is supported by unanimous jury agreement. Thomas v People, 803 P2d 144, 154 (Colo, 1990).
The foregoing rules strike an appropriate balance between the needs of the state and the rights of a defendant. The state is not hindered in successfully and fairly prosecuting child sex abuse cases. In the event that it is impractical to elect one of many acts testified, the prosecutor can choose not to elect a particular act. If the prosecutor does not elect, the jury must be instructed that it must unanimously agree on which specific act supports the charged crime. Unless the court requires a specific unanimity instruction, there is no assurance that the jurors unanimously found that the prosecutor proved, beyond a reasonable doubt, every fact necessary to constitute the crime with which the defendant is charged. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970).
I disagree with the view that a specific unanimity instruction is required only when the various acts themselves are materially distinct. When the prosecution puts in evidence of separate and identifiably different instances of the same or similar criminal conduct, the court should be required to instruct the jury that it must unanimously agree on which of the several acts forms the basis of the conviction.
in
The premise of the majority is the decision of the United States Court of Appeals for the Fifth Circuit in United States v Gipson, 553 F2d 453 (CA 5, 1977), concerning the need for a specific unanimity instruction.7 The majority view is derived from Gipson and its progeny. In Gipson, defendant *538was convicted under a statute that criminalized a number of different and possibly unrelated acts, characterized by the court as two distinct conceptual groupings. Gipson, involving an assessment of guilt based on acts of a different nature, is analytically distinct from the issue in the instant case.
The instant case concerns evidence of repeated instances of the same criminal conduct offered to establish a single charge. The rule set forth in the majority opinion might be satisfactory and supported by federal law in appropriate cases; it is not applicable here and, most importantly, does not protect defendant’s right to a unanimous verdict.
I would affirm the decision of the Court of Appeals.
Unpublished opinion per curiam, issued April 7, 1993 (Docket No. 126607).
MCL 750.520b; MSA 28.788(2).
The jury was provided with a general unanimity instruction. Ante, p 509. In response to defense argument on the possibility of a compromise, the court stated that it would instruct the jury that it must find that the defendant engaged in a "specific act” that involves some actual entry into the anal opening of the complainant’s body. Ante, p 508.
The court did not, however, instruct the jury that it must agree on a specific act with respect to the lesser offenses, including second-*532degree criminal sexual conduct, fourth-degree criminal sexual conduct, assault with intent to commit criminal sexual conduct involving penetration. The jury found Cooks guilty of criminal sexual conduct in the second degree.
See also People v Melendez, 224 Cal App 3d 1420, 1429; 274 Cal Rptr 599 (1990). The continuous course of conduct exception to the requirement of a specific unanimity instruction must be narrowly drawn. The continuous conduct exception only applies to those offenses where the statute defining the crime may be interpreted as applying to an offense that may be continuous in nature, such as failure to provide, contributing to the delinquency of a minor, driving under the influence, concealing stolen property, and criminal acts of possession.
*533Multiple sex acts do not merge into a single continuing offense because the defendant can be convicted and punished for each separate act.
The lead opinion cites an earlier California decision, People v Winkle, 206 Cal App 3d 822; 253 Cal Rptr 726 (1988), ante, pp 521-522. Winkle did not apply the continuous course of conduct exception to uphold a conviction in the absence of a unanimity instruction. The victim’s youth and the repeated incidents of the same act of molestation made the unanimity instruction unnecessary. The California Supreme Court disapproved of the rationale of Winkle in People v Jones, 51 Cal 3d 294; 270 Cal Rptr 611; 792 P2d 643 (1990).
The New York Court of Appeals rejected the continuing conduct exception to sexual abuse, because those crimes as defined in the Penal Law of New York "punish the performance of a single act.” People v Keindl, 68 NY2d 410, 420-421; 509 NYS2d 790; 502 NE2d 577 (1986).
The court of appeals reinstated the defendant’s conviction of separate counts of lewd and lascivious acts and sexual assault. The complainant was wholly unable to distinguish the circumstances of one assault from another. On the basis of the record, the jury could not have reasonably accepted part of the complainant’s story without accepting it in full. Therefore, the trial court’s error in not requiring the state to elect among incidents or, alternatively, in failing to provide a curative instruction, did not appreciably affect the verdict. State v Covington (On Rehearing), 711 P2d 1183, 1185 (Alas App, 1985).
Although the prosecutor failed to elect a single act on which to base a conviction, and a special unanimity instruction was given, any error was harmless. The complainant testified about seven incidents that occurred within several hours in the course of one evening. On the basis of the facts, the court deemed it irrelevant that the jury might have found that some, but not all, of the alleged acts had occurred, as long as it unanimously agreed that the child had been sexually abused that evening. Id. at 53.
Ante, p 513.