California Court of Appeal Jun 23, 2016 No. D069904Unpublished
Filed 6/23/16 P. v. Husted CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D069904
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1203424)
MARK DAVID HUSTED,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Jeffrey J.
Prevost, Judge. Affirmed.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Andrew S. Mestman and Arlene
A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Mark David Husted argues that that his convictions for aggravated sexual assault
of a child and forcible lewd and lascivious conduct must be reversed because there is
insufficient evidence of force or duress. Husted also contends that the trial court erred in
failing to instruct the jury sua sponte on the crime of nonforcible lewd acts as lesser
included offenses to the charged offenses of forcible lewd or lascivious conduct.
We conclude that substantial evidence supports the jury's verdicts, and further
conclude that any instructional error was harmless. We therefore affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
J.D. was born in August 1995. Her parents, W.H. and K.H., were married in 1995
and had two daughters together, J.D. and M.H.
In 2000, W.H. and Husted worked for a flooring company. W.H. was Husted's
supervisor, and W.H. invited Husted to live with him, K.H. and their children in their
home because W.H. believed that Husted was "down and out."
2
W.H. and K.H. began to have trouble in their marriage, in part due to Husted and
K.H. growing close. W.H. eventually moved out, and at some point Husted moved in
with K.H., J.D., and M.H.1
In 2002, when J.D. was six or seven years old, K.H., J.D., M.H., and Husted
moved to an apartment complex in Riverside. While they were living there, K.H.
worked, and Husted, who was unemployed, took care of J.D. and M.H. J.D. viewed
Husted as a father figure and considered him to be "like a stepfather . . . back then[.]"
J.D. "obey[ed] [Husted] because he was [her] stepdad."
J.D. testified to multiple instances of sexual abuse perpetrated against her by
Husted during the time he was living with her, her mother, and her siblings. When she
was between six and nine years old (between 2001 and 2004), while she, her sister,
mother and Husted were living in an apartment complex, J.D. recalled an incident in
which she and Husted were on the couch. She was on top of him. Husted and J.D. had
intercourse and, after that, Husted pushed J.D.'s head down so that J.D. would orally
copulate him. Husted instructed J.D., "Don't use your teeth."
J.D. remembered the intercourse as being "very painful." She "cried because it
hurt, and then [Husted] would tell [her] that once [she] got older, it would feel better."
J.D. specifically recalled three instances at the apartment in which she and Husted
had sexual intercourse on the couch. Each time she would orally copulate him afterward.
1 K.H. and Husted later had children together, including J.D.'s half brother, K. 3
Husted would push her head down to make her "do oral." J.D. would not resist because
"[she] did what [she] was told to do. Any action, [she] just did it."
J.D. also remembered a time at the apartment when she, her sister M.H. (who was
three or four years old at the time), and Husted were on the ground next to the couch at
night. K.H. was in the back bedroom. While M.H. was asleep next to J.D., Husted orally
copulated J.D. for the first time. J.D. specifically recalled being on her back with her legs
spread.
J.D. also recounted an incident in which she either orally or manually copulated
Husted until he ejaculated. J.D. specifically remembered that Husted told her, when he
ejaculated, "These are your brothers and sisters."
In another incident, J.D. and Husted were in Husted's blue truck. They climbed
into the back of the truck, Husted unzipped his pants, and J.D. orally copulated him.
J.D. also testified that when she was eight or nine years old, in 2003 or 2004, she,
M.H., K.H., K., and Husted began living in different hotels. While they were staying at a
particular hotel in Corona, J.D. and Husted took a shower together, and they had sex.
Husted was sitting in the tub, and she straddled him. The door to the bathroom was
closed, and the other family members were in the living area of the room.
J.D. did not tell her mother about the sexual abuse because Husted told her that "if
[she] told [her] mom, it would make her jealous and ruin [Husted and K.H.'s]
relationship." J.D. was concerned for her mother because she had already lost J.D.'s
father, and J.D. did not want her mother to lose another romantic partner. As J.D.
explained, she kept Husted's sexual abuse a secret between her and Husted because she
4
cared for her mother and did not want to be responsible for the break up of another of her
mother's relationships.
When J.D. was between 10 and 13 years old, she began to learn about molestation
and rape in school. She understood that what Husted did to her was wrong. J.D. told two
classmates, K.B. and S.C., that Husted had molested her. K.B. testified that when she
and J.D. were in the sixth grade, J.D. told K.B. and S.C. that her stepfather would take
her into the shower, touch her, and do things to her.
J.D. testified that the last time she remembered Husted attempting to molest her,
she and Husted were lying on the floor. Husted tried to touch J.D.'s leg. J.D. pushed him
away and moved closer to the bed frame. Husted did not do anything else to J.D. on that
occasion.
In 2005, K.H. lost custody of J.D. and M.H. to W.H. as a result of her drug use.
The girls moved in with W.H. and his girlfriend K.D.
J.D. eventually disclosed to W.H. that Husted had sexually abused her. W.H. did
not report the molestation to the police because he already had custody of the girls, he did
not know where K.H. and Husted were living, and he felt that any threat Husted
presented had been eliminated. W.H. believed that not reporting was the best choice for
his family at the time.
Husted's molestation of J.D. came to police attention only after J.D. became
sexually involved with M.A. when she was 13 years hold. M.A., who was six years older
than J.D., worked for K.D.'s mother. During an investigation into M.A., investigators
5
asked J.D. how many men she had had sexual relations with. J.D. responded that she had
had sex only with M.A. and Husted.
2. The defense case
Husted testified in his own defense. Husted contended that he never molested J.D.
He never thought that J.D. would say "something like this" about him, and he was
"disgusted" by the allegations. Husted thought that he and J.D. were close; they never
had problems.
K.H. testified that she had seen J.D. and Husted in the shower together once, but
with the door open. They had come in from the pool and were wearing bathing suits and
got into the shower just to rinse off. K.H. also knew that J.D. and Husted had fallen
asleep together on the couch while watching a movie. However, K.H. never saw Husted
acting inappropriately with either of the girls.
B. Procedural background
The District Attorney of Riverside County charged Husted with five counts of
aggravated sexual assault by rape of a child under the age of 14 (Pen. Code, § 269, subd.
(a)(1);2 counts 1-5); five counts of aggravated sexual assault by oral copulation of a child
under the age of 14 (§ 269, subd. (a)(4); counts 6-10); and 10 counts of lewd and
lascivious acts on a child under the age of 14 years by force, violence, duress, menace, or
fear (§ 288, subd. (b)(1); counts 11-20). The lewd conduct counts were based on the
same acts underlying the aggravated sexual assault counts.
2 All further statutory references are to the Penal Code. 6
The case proceeded to trial. During trial, the court dismissed counts 5 and 20
pursuant to section 1385.
The jury found Husted guilty on counts 1, 2, 3, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17,
and 19. The jury acquitted him on counts 4, 9, 14, and 18.
The trial court sentenced Husted to a term of 60 years to life in state prison.3
III
DISCUSSION
A. Substantial evidence supports the jury's verdicts
The jury convicted Husted of three counts of aggravated sexual assault of a child
under 14 years of age in violation of section 269, subdivision (a)(1) (counts 1-3), four
counts of aggravated sexual assault of a child under 14 years of age in violation of section
269, subdivision (a)(4) (counts 6-8, 10), and seven counts of forcible lewd conduct with a
child (counts 11-13, 15, 16, 17, and 19), based on the same conduct underlying his
convictions for the aggravated sexual assault counts.
Each offense for which Husted was convicted required the jury to find that he
committed the unlawful act by use of "force, violence, duress, menace or fear of
immediate and unlawful bodily injury on the victim or another person." (§§ 288, subd.
(b)(1), 269, subd. (a)(1) & (4).) Husted argues that all of his convictions must be
3 Pursuant to section 654, the trial court imposed and stayed Husted's sentences as to counts 6-8, 11-13, 15-17, and 19. 7
reversed because there is insufficient evidence that he committed the acts by use of
"force, violence, duress, menace or fear of immediate and unlawful bodily injury."4
1. Relevant legal standards
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a
limited one. ' "The proper test for determining a claim of insufficiency of evidence in a
criminal case is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts on which
that determination depends. [Citation.] Thus, if the verdict is supported by substantial
evidence, we must accord due deference to the trier of fact and not substitute our
evaluation of a witness's credibility for that of the fact finder." ' " (People v. Smith (2005)
37 Cal.4th 733, 738-739.)
2. Analysis
A review of the record demonstrates that it contains sufficient evidence to support
a finding that Husted committed the charged offenses by the use of duress.
4 Husted contends that his convictions for violating section 269, subdivision (a)(1) and (4) must be reversed entirely, and that his convictions for violating section 288, subdivision (b) should be reduced to convictions for violating section 288, subdivision (a), which does not require a finding of force, violence, duress, menace, or fear. 8
Duress, in the context of the sexual offenses at issue—i.e., aggravated sexual
assault against a child and lewd acts—is " 'a direct or implied threat of force, violence,
danger, hardship or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to (1) perform an act which otherwise would not have been performed or,
(2) acquiesce in an act to which one otherwise would not have submitted.' "5 (People v.
Cochran (2002) 103 Cal.App.4th 8, 13 (Cochran) [duress as applicable to violations of
§§ 269 & 288]; see also People v. Leal (2004) 33 Cal.4th 999, 1004-1005, 1010
[definition of duress with respect to lewd acts]; People v. Senior (1992) 3 Cal.App.4th
765, 774-775 (Senior) [definition of duress with respect to sexual penetration].) Duress,
by its nature, "involves psychological coercion" of the victim. (Senior, at p. 775.)
Duress "can arise from various circumstances, including the relationship between
the defendant and the victim and their relative ages and sizes." (Senior, supra, 3
Cal.App.4th at p. 775.) " 'Where the defendant is a family member and the victim is
young, . . . the position of dominance and authority of the defendant and his continuous
exploitation of the victim' is relevant to the existence of duress." (Ibid., quoting People v.
Superior Court (Kneip) (1990) 219 Cal.App.3d 235, 239.) Other relevant factors may
" 'include threats to harm the victim, physically controlling the victim when the victim
attempts to resist, and warnings to the victim that revealing the molestation would result
in jeopardizing the family.' " (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
5 The jury was specifically instructed on this meaning of duress. 9
The fact that a victim testifies that the defendant did not use force or threats does
not require a finding that no duress was present; rather, the victim's testimony must be
considered in light of the victim's age at the time of the alleged conduct and the victim's
relationship to the defendant. (Cochran, supra, 103 Cal.App.4th at pp. 13-14.) In
Cochran, the defendant was convicted of multiple counts of aggravated sexual assault
and forcible lewd conduct against his nine-year-old daughter, even though the victim had
testified that she was not afraid of the defendant, and that he had not beaten or punished
her, nor had he grabbed or forced her to participate in the charged acts. (Id. at pp. 11,
15.) In affirming the defendant's convictions, the Court of Appeal concluded that the
sexual assaults were accomplished by duress because the victim "engaged in sex acts
only in response to her father's parental and physical authority. Her compliance was
derived from intimidation and the psychological control he exercised over her and was
not the result of freely given consent." (Id. at pp. 15-16.) The court further noted that,
although the existence of a parent/child relationship between the victim and his/her
molester does not establish duress as a matter of law, "as a factual matter, when the
victim is as young as this victim and is molested by her father in the family home, in all
but the rarest cases duress will be present." (Id. at p. 16, fn. 6.)
This case is not one of those "rarest" of cases referred to in Cochran. Although
J.D. never testified that she was afraid of Husted, that he threatened to punish her if she
did not submit to his sexual advances, or that he grabbed her or forced her to engage in
the sexual acts, there was abundant other evidence from which one could conclude that
J.D. participated in sexual acts with Husted as a result of duress. J.D. was between seven
10
and nine years old when the abuse started. Husted was her de facto stepfather, in that she
considered him to be "like a stepfather" to her, and she "obey[ed]" him as a result of what
she viewed to be his role as her stepfather. In addition, at the time the abuse was
occurring, Husted was the main caregiver for both girls—meaning that he was the
primary person to whom J.D. looked to meet her daily needs.
In addition, J.D. testified that Husted specifically warned her that if she told
anyone about the abuse, her disclosure would result in the fracturing of her mother's
relationship with Husted. J.D. testified that she was afraid of causing the break up of
another of her mother's relationships. Husted's warning to J.D. that revealing the
molestation would result in her mother being hurt and losing her relationship with
Husted, which would effectively bring an end to their "family" as J.D. experienced it at
the time, is precisely the kind of factor that suggests the existence of duress in a sexual
abuse case involving a parental figure.
Given the nature of the relationship between J.D. and Husted, together with J.D.'s
young age, as well as Husted's warnings that if J.D. revealed the sexual abuse she would
cause the break up of her mother's relationship with Husted, a reasonable fact finder
could conclude that J.D. was particularly vulnerable to the psychological coercion that
arises from the implicit threat of adverse consequences to a parent/child relationship.
Thus, the evidence presented against Husted was sufficient to show that the sex offenses
of which he was convicted were accomplished through the use of duress.
11
B. Any error in failing to instruct the jury on the lesser included offense of nonforcible lewd conduct was harmless
Husted contends that the trial court committed reversible error in failing to instruct
the jury, sua sponte, on the offense of nonforcible lewd conduct, in violation of section
288, subdivision (a), as a lesser included offense to the offenses charged in counts 11-19,
forcible lewd conduct, in violation of section 288, subdivision (b)(1). According to
Husted, if the jury had been properly instructed with this lesser included offense with
respect to counts 11-19, there is a reasonable probability that the jury would have
declined to convict him of the offenses requiring force or duress in the counts on which
he was convicted (counts 1, 2, 3, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, and 19) and, instead,
would have convicted him of only the lesser offenses of nonforcible lewd conduct with
respect to counts 11, 12, 13, 15, 16, 17, and 19. We conclude that although the trial court
should have instructed the jury on the lesser included offense of nonforcible lewd
conduct in violation of section 288, subdivision (a), with respect to counts 11-19, the
error did not prejudice Husted.
1. Additional background
After the defense rested, the trial court and parties conferred off the record
regarding jury instructions. After going back on the record, the trial court asked the
parties to recount some of the discussion that had been held off the record regarding what
had been decided with respect to certain jury instructions, including the instructions
related to the charges involving section 288, subdivision (b)(1). In response, the
prosecutor stated:
12
"I think we went back and forth whether the [section] 288[ subdivision] (a) is a lesser. People's position is no lesser should be given. It's either he did it or he did not. Defense is making a motion or asking for just simple assault in this case."
Immediately thereafter, the court asked defense counsel, "Were you asking for
attempt also?" Defense counsel responded, "I'm not asking for an attempt. I'm asking for
the lesser of the assault. I don't believe there was evidence to request the attempt." The
court then said, "All right. I will give assault as a lesser included offense as to Counts 11
through 19 then." The court did not ask defense counsel about instructing on section 288,
subdivision (a) as a lesser included offense of section 288, subdivision (b), and counsel
did not request that instruction.
2. Analysis
" 'An offense is necessarily included in another if (1) the greater statutory offense
cannot be committed without committing the lesser because all of the elements of the
lesser offense are included in the elements of the greater; or (2) if the charging allegations
of the accusatory pleading include language describing it in such a way that if committed
in that manner the lesser offense must necessarily be committed.' " (People v. King
(2010) 183 Cal.App.4th 1281, 1318-1319.) " ' "It is settled that in criminal cases, even in
the absence of a request, the trial court must instruct on the general principles of law
relevant to the issues raised by the evidence." ' " (People v. Breverman (1998) 19 Cal.4th
142, 154 (Breverman).) The trial court's obligation to instruct on the general principles
of law relevant to the issues raised by the evidence includes a duty to instruct on a lesser
included offense when the evidence raises a question as to whether all of the elements of
13
the charged offense are present and there is substantial evidence to support a conviction
on the lesser included offense. (Ibid.) The corollary to this rule is that a trial court has no
duty to give an instruction, even if requested, on a lesser included offense if there is not
substantial evidence that could support a finding of guilt on that offense. (People v.
Bolden (2002) 29 Cal.4th 515, 558.)
The People agree that the offense of nonforcible lewd conduct set forth in section
288, subdivision (a) is a lesser included offense of the offense of forcible lewd conduct as
set forth in section 288, subdivision (b)(1). (See People v. Ward (1986) 188 Cal.App.3d
459, 472-473.) Husted contends that the court's failure to instruct on the lesser offense of
section 288, subdivision (a) was error because, he maintains, there is substantial evidence
that could support a finding of guilt on the lesser offense and not the greater.
As an initial matter, the People contend that Husted invited any error on the part of
the trial court in failing to instruct the jury on section 288, subdivision (a). The trial
court's "obligation to instruct on [such] offenses exists even when as a matter of trial
tactics a defendant not only fails to request the instruction but expressly objects to its
being given." (Breverman, supra, 19 Cal.4th at p. 154.) Invited error, however, may be
found if counsel "expresses a deliberate tactical purpose in resisting or acceding to the
complained-of instruction." (People v. Valdez (2004) 32 Cal.4th 73, 115.) The record
does not support the People's contention. Specifically, the record does not reveal what
was discussed between the attorneys and the court regarding the jury instructions during
the in-chamber conference. Further, during the minimal on-the-record reflections
concerning what had been discussed, defense counsel never requested that the court not
14
instruct the jury on section 288, subdivision (a). Defense counsel said nothing about
instructions regarding that offense, and instead requested an instruction on the lesser
included offense of simple assault. Although it is possible that defense counsel
specifically requested that the court not instruct the jury with respect to section 288,
subdivision (a) during the unreported conference regarding jury instructions, we have no
way of knowing what did or did not occur during that off-the-record discussion.6 The
information that is available to us based on discussions that were held on the record does
not indicate that defense counsel invited the court's error regarding the failure to instruct
on section 288, subdivision (a).
The People next argue that the trial court did not err in failing to instruct the jury
on section 288, subdivision (a), because there was not substantial evidence to support
giving the instruction. We disagree. Although Husted's defense was that no sexual
contact occurred, and not that sexual contact occurred but that it occurred without the use
of force or duress, if the jury found that there was sexual contact, the jury had to then
decide whether various factors, including J.D.'s age and her relationship with Husted,
supported a finding that any sexual conduct between the two was the result of duress.
Given that J.D. did not testify to any use of force on Husted's part, or to any direct threats
6 We emphasize that unreported discussions regarding decisions to be made by the court during trial may make it very difficult for a reviewing court to be able to adequately address issues raised on appeal. For this reason, it is important for the trial court to ensure that discussions regarding significant trial events, such as the instructions that are to be provided to the jury, be on the record. 15
of force, violence, danger, hardship, or retribution, the evidence could have supported a
finding that the lesser offense, and not the greater, had been committed.
However, we conclude that the trial court's failure to instruct the jury on the lesser
included offense to counts 11-19—i.e., nonforcible lewd conduct—did not prejudice
Husted. "[T]he failure to instruct sua sponte on a lesser included offense in a noncapital
case is, at most, an error of California law alone, and is thus subject only to state
standards of reversibility." (Breverman, supra, 19 Cal.4th at p. 165.) "[S]uch
misdirection of the jury is not subject to reversal unless an examination of the entire
record establishes a reasonable probability that the error affected the outcome." (Ibid.)
There is no reasonable probability that the trial court's error in failing to instruct
the jury on the lesser included offense of nonforcible lewd conduct with respect to counts
11-19 affected the outcome of Husted's trial. J.D. described in detail each rape and each
incident of oral copulation that formed the basis for the jury's convictions on counts 1, 2,
3, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17, and 19. Husted's defense was not that he committed
the acts, but without force or duress; rather, his defense was that he did not engage in
sexual intercourse or oral copulation with J.D. at all. The jury clearly believed J.D. and
not Husted with respect to these counts. Further, the circumstances under which these
incidents occurred, including the fact that J.D. was between six and nine years old,
Husted was essentially J.D.'s stepfather and her primary caregiver at the time, and Husted
had warned her that any disclosure would, effectively, break apart her family, lead us to
conclude that it is not reasonably probable that Husted would have received a more
16
favorable outcome on counts 11, 12, 13, 15, 16, 17, or 19 if the jury had been given the
option of convicting Husted of committing lewd acts without force or duress.
Further, the jury determined the factual issue regarding Husted's use of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury against him in
its guilty verdicts on counts 1-3, 6-8, and 10. "[I]n some circumstances it is possible to
determine that although an instruction on a lesser included offense was erroneously
omitted, the factual question posed by the omitted instruction was necessarily resolved
adversely to the defendant under other, properly given instructions. In such cases the
issue should not be deemed to have been removed from the jury's consideration since it
has been resolved in another context, and there can be no prejudice to the defendant since
the evidence that would support a finding that only the lesser offense was committed has
been rejected by the jury." (People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled in
Breverman, supra, 19 Cal.4th at pp. 164-165 [overruling Sedeno to the extent that an
"erroneous omission of instructions on lesser included offenses . . . requires reversal
unless 'the factual question posed by the omitted instruction was necessarily resolved
adversely to the defendant under other, properly given instructions' "].) Although the
jury's verdicts with respect to counts 1-3, 6-8, and 10 may "not categorically establish
that the error [in failing to instruct on lesser included offenses as to other counts] was
harmless," "it is clear that . . . a jury's determination on a factual issue under other
instructions is relevant to determining whether an instructional error is harmless."
(People v. Campbell (2015) 233 Cal.App.4th 148, 167.)
17
Counts 11-19 were based on the same conduct as that underlying the aggravated
sexual assault counts, as to which Husted makes no claim of instructional error.
Therefore, even if the jury had been instructed on the lesser included offense of
nonforcible lewd conduct with respect to counts 11-19, the jury would still have had to
make an "all or nothing" choice with respect to whether Husted committed aggravated
sexual assault by rape and/or oral copulation as charged in counts 1-4 and 6-10. Given
the fact that the jury found Husted guilty on counts 1-3, 6-8, and 10, all of which required
a finding that Husted committed the offenses by the use of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury, it is not reasonably probable
that the jury would have concluded, in conflict with its findings with respect to counts 1-
3, 6-8, and 10, that Husted did not use force, violence, duress, menace, or fear of
immediate and unlawful bodily injury with respect to the lewd conduct counts alleged in
counts 11-19. Nor is it reasonably probable that the jury would have found Husted guilty
solely of the lesser offense of nonforcible lewd conduct as to counts 11, 12, 13, 15, 16,
17, and 19, and acquitted him of all of the aggravated sexual assault charges alleged in
counts 1-4 and 6-10, as well as the forcible lewd conduct charges alleged in counts 11-19.
In sum, the jury's determination of the factual issue regarding whether Husted used force,
violence, duress, menace, or fear of immediate and unlawful bodily injury in committing
counts 1-3, 6-8, and 10 supports our conclusion that it is not reasonably probable that
Husted would have obtained a more favorable result if the jury had been instructed on the
lesser included offense of nonforcible lewd conduct with respect to counts 11-19.