State v. Manley, No. 53929-9-I (WA 7/18/2005)

Decision Date18 July 2005
Docket NumberNo. 53929-9-I,53929-9-I
CourtWashington Supreme Court
PartiesSTATE OF WASHINGTON, Respondent, v. DONALD JAMES MANLEY, Appellant.

Appeal from Superior Court of King County. Docket No: 02-1-10128-0. Judgment or order under review. Date filed: 03/12/2004. Judge signing: Hon. Richard F McDermott.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.

Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Donald James Manley (Appearing Pro Se), Doc # 857967, Stafford Creek Corr. Center, 191 Constantine Way, Aberdeen, WA 98520.

Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.

Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.


A jury convicted Donald Manley of one count of first degree child rape, three counts of first degree child molestation, and one count of third degree child rape. After his conviction, Manley obtained new counsel and moved for a new trial. The trial court denied the motion and sentenced Manley to 280 months in prison. Manley appeals, arguing that the jury instructions violated his rights to a unanimous jury and to be free of double jeopardy, the trial court abused its discretion by admitting evidence of uncharged sexual misconduct, and he received ineffective assistance of counsel.

We reject Manley's arguments. The State elected which act the jury was to rely on for each child molestation count, and the jury instructions made it clear that each count was separate from the others. There is no doubt the jury made unanimous findings on at least one different act for each count. Uncharged misconduct occurring before or after the charged act is admissible as lustful disposition evidence, and here the record indicates that its probative value outweighed the danger of unfair prejudice. Finally, no aspect of Manley's trial counsel's performance fell below a standard of reasonableness, so he received effective assistance of counsel. We affirm.


On November 11, 2002, Auburn Police Officer Pat Douglas spoke to 14 year old N.G. at the Wellington Park Apartments after another resident reported overhearing her talking about being sexually abused. N.G. eventually told Officer Douglas that her de facto father, Donald Manley, had sexually abused her.1 Officer Douglas then arrested Manley. During the investigation, N.G. said that Manley had sexually abused her many times beginning when she was five years old. The State charged Manley with one count of first degree rape of a child and three counts of first degree child molestation based on acts committed between January 27, 1993 and January 26, 2000, and one count of third degree rape of a child based on acts committed between January 27, 2002 and November 11, 2002. At trial, N.G. testified about four specific incidents of abuse between January 27, 1993 and January 26, 2000, as well as numerous other incidents occurring after January 26, 2000. She also testified that she had always considered Manley her father and still loved him very much. There were no eyewitnesses to any of the incidents. Two of N.G.'s friends testified that she told them that Manley had abused her. Three defense witnesses Manley's ex-girlfriend Tammy Stokes, his brother Dale, and his mother, Jeannie Boyles all testified that they never saw Manley abuse N.G., N.G. never disclosed any abuse to them, and N.G. and Manley had a good relationship. Another defense witness, a CPS worker previously involved with the family, testified that N.G. never disclosed any abuse to her. Manley did not testify.

I. Jury Unanimity and Double Jeopardy

Manley argues that the jury instructions deprived him of his right to a unanimous verdict because they did not tell the jury that its verdicts for each of the three child molestation counts must be based on unanimous findings that three different acts occurred. Manley also contends the `to convict' instructions violated his right against double jeopardy because they permitted the jury to use the same act to convict him on more than one count. The State asserts that it properly elected a distinct act to support each charge, and that even if the election were inadequate, the trial court gave a proper Petrich instruction.

We review de novo alleged errors of law in jury instructions.2 Jury instructions are sufficient when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law.3 Jury instructions should be read as a whole to determine whether they properly inform the fact finder of the applicable law.4

As an initial matter, the State argues under RAP 2.5(a) that Manley failed to preserve this claim of error for review because he did not raise objections below.5 But RAP 2.5(a)(3) allows us to consider `manifest error affecting a constitutional right' for the first time on appeal. Arguments based on jury unanimity and double jeopardy are constitutional.6 The State argues that State v. Noel holds that the insufficiency of a Petrich instruction is not a manifest error affecting a constitutional right.7 But there the appellant invited the error when he asked for the instruction he later argued was insufficient.8 That was not the case here.9 We consider Manley's arguments even though he failed to raise them below.10

Manley argues that the jury instructions did not sufficiently explain the unanimity requirement. He contends they allowed the jury to convict on all three child molestation counts while making a unanimous finding on only one of the counts. He also asserts that the State did not adequately elect a particular act for each child molestation count. The State counters that its election of a particular act for each count and/or the trial court's Petrich instruction satisfied Manley's right to jury unanimity.

In Washington, a unanimous jury must conclude that the defendant committed the criminal act charged in the information.11 Where a conviction on one count could be based on more than one act, one of two things must happen: (1) the State may elect the particular act upon which it will rely for conviction, or (2) the court may give a Petrich instruction informing the jury that `all 12 jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.'12 Failure to do either is constitutional error.13

The State relies on the charging document, together with the prosecutor's questions to the victim and closing argument, to establish that it elected which act the jury was to rely on for each count. Manley argues that this did not cure the errors in the jury instructions, and he was therefore denied his right to a unanimous jury verdict.

In State v. Bland, the State charged Bland with two counts of second degree assault with a deadly weapon, one for each of two victims, and one count of second degree reckless endangerment.14 After a jury convicted Bland on both assault counts, he argued on appeal that because the assault convictions could have been based on three different acts, the trial court had to give unanimity instructions. We held that a unanimity instruction was not required because the State clearly elected Bland's gun threat to the first victim as the single act it was relying on for count I and his shot at the second victim as the act it was relying on for count II.15

Several things demonstrated that the State had clearly elected the act it was relying on for each count: (1) the charging document specified that the alleged assaults in counts I and II were both committed with a deadly weapon, (2) the State used special verdict forms that ensured the jurors relied on the deadly weapon acts to convict on the assault charges, (3) the jury instructions read as a whole made it clear that the two assault counts were based on Bland's conduct with the deadly weapon,16 and (4) the State elected those same acts in its closing argument.17 The court stated `{t}here is no possibility that the jury could have become confused and thought that Bland's hitting Jefferson in the face might be a second degree assault. There was no error.'18

Here, the charging document specified that the molestations (counts II through IV) occurred in different counties. When questioning N.G. at trial, the prosecutor specifically established the residence, city/town, and county where each act took place.19 The prosecutor also used a chart during questioning as an exhibit to demonstrate to the jury the victim's age and county of residence during each act. The prosecution's closing argument made it clear that the State relied on the molestation at the Sundancer Apartments in Auburn for count II, the acts in the family trailer in Shelton for count III, and those in the Tacoma apartment for count IV.

Unlike the jury instructions in Bland, the `to convict' instructions in this case did not differentiate among the three molestation counts. The `to convict' instructions for all three counts were identical, with nothing identifying the specific act associated with the count. But instruction six provided that `{a} separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count.' As we noted in Ellis, `the ordinary juror would understand that when {three} counts charge the very same type of crime, each count requires proof of a different act.'20 The same is true here. The jury instructions, taken as a whole, made it clear that the three molestation counts involved separate acts. That, together with the State's clear election during questioning and closing argument, persuades us that the jury based its verdicts for counts II, III, and IV on three separate...

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