Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

        THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            )
STATE OF WASHINGTON,                        )       No. 65766-6-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
               v.                           )
                                            )
                                            )
ALLEN JAMES ROOT,                           )       UNPUBLISHED
                                            )
                      Appellant.            )       FILED:  January 23, 2012
                                            )

       COX, J.  --  To ensure jury unanimity in a case where multiple acts could 

constitute a charged crime, "the State must tell the jury which act to rely on in its 

deliberations or the [trial] court must instruct the jury to agree on a specific 
criminal act."1 Because the prosecutor in this case told the jury which acts to 

rely on for each of three identical charges, and because the information, 

evidence, and instructions reinforced that election, unanimity was ensured.  We 

therefore affirm. 

        Based on allegations that Allen Root raped A.M. on three separate 

occasions, the State charged him with three counts of Rape of a Child in the 

First Degree.  The counts in the amended information were identically worded 

and included the phrase "in an act separate and distinct from [the other counts]."  

       1 State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988). 

No. 65766-6-I/2

The trial court read the information to the jury at the outset of voir dire. 

       At trial, A.M. testified to only three incidents.  The first occurred when she 

was about four.  Root was babysitting her and her brothers and she was wearing 

a favorite yellow outfit.  Root took her to her brother's room, had her get on her 

knees, and forced her to perform fellatio.  She did not remember whether he 

ejaculated.  A few months later, Root had A.M. do the same thing in her parents'

bedroom.  A.M. was "pretty sure" he ejaculated.  The last incident occurred at 

Root's home when she was about five.  She was staying at the Roots because 

her parents had gone to Las Vegas for a vacation.  Root again had her perform 

fellatio on her knees.  He ejaculated into a towel. 

       The trial court gave the jury three identical "to convict" instructions for the 

three counts of rape.  These instructions did not mention any dates or other facts 

that might link each of them to one of the three incidents.  But in closing 

argument, the prosecutor stated: 

              Count I, the easiest way to think of that is the yellow outfit.  
       You heard her description of the oral sex that takes place when 
       she is wearing that yellow outfit.  . . .  As we've heard in the 
       testimony, this occurred when she was four years old.  . . .She told 
       you in detail on that first occasion when she was four years old that 
       she comes home after preschool. . . . She is giving him oral sex.  
       That's the sexual intercourse in Count I that we're talking about.  
       . . . 
              Count II, you can think of as the parents' bedroom. And she 
       said this happened a few months later.  And similar, age four years 
       old, within that time period. . . . She described what happened.  He 
       brought her back to the bedroom again, had her get down on her 
       knees and again perform oral sex. In both cases, the first count 
       and second count, she was able to describe what he was 
       wearing, and the first one she described what she was wearing as 
       well.
       . . .

                                            2 

No. 65766-6-I/3

              The third instance is at the Root home.  Again, around five 
       years old, was her testimony. . . . [She] describes the home.  She 
       describes where they were and this Vegas trip. . . . The defense 
       brought on Forrest Root with regard to Count III and only Count III.  
       "She never stayed at our home." Well, that's incredible.[2]

       The jury found Root guilty on counts 1 and 3, and not guilty on count 2.  

Root appeals. 

                                      DECISION

       Criminal defendants in Washington have a right to a unanimous jury 
verdict.3 When the State presents evidence of multiple acts that could constitute 

a crime charged, "the State must tell the jury which act to rely on in its 

deliberations or the [trial] court must instruct the jury to agree on a specific 
criminal act."4 Failure to elect the act, coupled with the court's failure to instruct 

the jury on unanimity, is constitutional error.5 "The error stems from the 

possibility that 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."6

       For the first time on appeal, Root contends an instruction or election was 

required in this case because the three identical to-convict instructions did not 

identify any specific incidents, and any of the three acts identified by A.M. could 

constitute the crime charged in any of the counts.  Unanimity was not ensured, 

       2 Report of Proceedings (March 23, 2010) at 169-76 (emphasis added).
       3 Wash. Const. art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 
881 P.2d 231 (1994).
       4 Kitchen, 110 Wn.2d at 409; State v. Petrich, 101 Wn.2d 566, 572, 683 
P.2d 173 (1984).
       5 Kitchen, 110 Wn.2d at 411.
       6 Id.

                                            3 

No. 65766-6-I/4

he argues, because the court did not give a "Petrich"unanimity instruction7 and 

the State did not make a proper election.  The State does not dispute that the 

rule set forth in Petrich and Kitchen applies in this case.  It argues, however, that 

Root cannot raise a unanimity claim for the first time on appeal because the 
alleged error, while constitutional, is not "manifest."8  We disagree.  Our courts 

have repeatedly held that a Petrich error is manifest constitutional error that can 
be raised for the first time on appeal.9  The State's reliance on decisions 

addressing a different type of instructional error are inapposite.10        

       Turning to the merits, we note initially that Root misstates the 

requirements for jury unanimity. He states that "[t]o ensure jury unanimity on any 

count, either (1) the court had to give a Petrich instruction, or (2) the prosecutor 

had to elect an act to underlie that count, and the court had to give some version 
of WPIC 4.26."11 Root cites no authority, nor are we aware of any, supporting 

       7 WPIC 4.25 sets forth the standard Petrich instruction as follows:  The 
[State] [County] [City] alleges that the defendant committed acts of (identify 
crime) on multiple occasions.  To convict the defendant [on any count] of 
(identify crime), one particular act of (identify crime) must be proved beyond a 
reasonable doubt, and you must unanimously agree as to which act has been 
proved.  You need not unanimously agree that the defendant committed all the 
acts of (identify crime).
       8 RAP 2.5(a)(3).
       9 State v. Bobenhouse, 166 Wn.2d 881, 892 n.4, 214 P.3d 907 (2009); 
State v. O'Hara, 167 Wn.2d 91, 103, 217 P.3d 756 (2009); State v. Furseth 156 
Wn. App. 516, 519 n.3, 233 P.3d 902, review denied, 170 Wn.2d 1007 (2010); 
State v. Kiser, 87 Wn. App. 126, 129, 940 P.2d 308 (1997); State v. Fiallo-
Lopez, 78 Wn. App. 717, 725, 899 P.2d 1294 (1995); see Kitchen, 110 Wn.2d at 
411 (unanimity error is presumed prejudicial).
       10 See, e.g., State v. Nunez, 160 Wn. App. 150, 248 P.3d 103 (2011).
       11 Brief of Appellant at 12.  WPIC 4.26 states:

  JURY UNANIMITY -- SEVERAL DISTINCT CRIMINAL ACTS -- ELECTION TO 
                           SPECIFY A PARTICULAR ACT

                                            4 

No. 65766-6-I/5

the emphasized portion of this statement.  Root correctly points out that an 

instruction apparently based on WPIC 4.26 was mentioned in State v. Corbett, 

158 Wn. App. 576, 592, 242 P.3d 52 (2010). But the court did not hold that its 

use is required to ensure unanimity.  The rule remains that unanimity is ensured 

if either a Petrich instruction is given or the State tells the jury which act or acts 
to rely on for each count.12    

       In this case, the jury was presented with evidence of three acts of rape, 

any one of which could have constituted the crime charged in the three identical 

counts.  To ensure unanimity, the State needed to either offer a Petrich
instruction or tell the jury which acts applied to which counts.13  The State chose 

the latter option, telling the jury in closing that count 1 involved the yellow dress 

incident, count 2 involved the incident in A.M.'s parents' bedroom, and count 3 

involved the incident that happened at the Root home. 

       Root contends the prosecutor's election did not ensure unanimity 

because no instruction told the jury it was bound by the election during closing 

       In alleging that the defendant committed (name of crime), the [State]
[County] [City] relies upon evidence regarding a single act constituting [each 
count of] the alleged crime.  To convict the defendant [on any count], you must 
unanimously agree that this specific act was proved.
       12 Kitchen, 110 Wn.2d at 409.
       13 Had the jury returned three guilty verdicts, a failure to ensure unanimity 
would be harmless since it would be clear that all the jurors found Root guilty of 
all the acts presented, even if some jurors had different acts in mind while 
convicting on particular counts.  See State v. Holland, 77 Wn. App. 420, 425, 
891 P.2d 49 (1995); compare State v. Vander Houwen, 163 Wn.2d 25, 39, 177 
P.3d 93 (2008) (error lies in the inability of the State to assure us that 12 jurors 
who acquitted Vander Houwen of most charges agreed that the same underlying 
criminal act, proved beyond a reasonable doubt, attached to the two counts of 
conviction).   

                                            5 

No. 65766-6-I/6

argument, and because the following instruction actually precluded them from 

considering the argument: 

       The lawyers' remarks, statements, and arguments are intended to 
       help you understand the evidence and apply the law.  It is 
       important, however, for you to remember that the lawyers'
       statements are not evidence.  The evidence is the testimony and 
       the exhibits.  The law is contained in my instructions to you.  You 
       must disregard any remark, statement, or argument that is not 
       supported by the evidence or the law in my instructions.[14]  

We reject Root's contention for several reasons.  

       First, nothing in Petrich or Kitchen requires that elections be made in, or 

accompanied by, an instruction.  If anything, Kitchen contemplates a verbal 

election when it states that "the State must tell the jury which act to rely on in its 
deliberations. . . ."15  Second, under the facts in this case, we do not think a 

reasonable juror would read the instruction quoted above as precluding their 

consideration of remarks linking acts to counts.  To do so, a juror would have to 

conclude that the remarks were "not supported by the evidence or the law in 

[the] instructions."  This is not a reasonable conclusion, especially in light of the 

fact that "the ordinary juror would understand that when two counts charge the 
very same type of crime, each count requires proof of a different act."16

       Finally, Root's argument overlooks the fact that we may consider other 

aspects of the record, including the evidence, information, and instructions, in 
determining whether an election ensured unanimity.17  The evidence established 

       14 Instruction No. 1, Clerk's Papers at 116.
       15 Kitchen, 110 Wn.2d at 409.
       16 State v. Ellis, 71 Wn. App. 400, 406, 859 P.2d 632 (1993).
       17 State v. Bland, 71 Wn. App. 345, 351-52, 860 P.2d 1046 (1993); cf. 
State v. Corbett, 158 Wn. App. 576, 593, 242 P.3d 52 (2010) (considering 

                                            6 

No. 65766-6-I/7

three distinct acts of rape occurring on three separate dates at three separate 

locations. The information, which was read during voir dire, and all three to-

convict instructions stated that each count was based on "an act separate and 

distinct from [the other counts]."  Other instructions stated: 

              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.[18]     

              Because this is a criminal case, each of you must agree for 
       you to return a verdict.  When all of you have so agreed, fill in the 
       verdict forms to express your decision.[19]  

An ordinary juror considering the instructions, information, and evidence in this 

case would understand that the jury had to agree on Root's guilt for one act 
before they could return a verdict on any particular count.20  Thus, the record 

here supports and reinforces the prosecutor's election in closing argument.  

       This fact distinguishes this case from a case cited by Root -- State v. Kier, 

164 Wn.2d 798, 813, 194 P.3d 212 (2008).  In Kier, the supreme court 

considered whether assault and robbery convictions should merge because "a 

reasonable jury" could read the court's instructions as allowing them to base

their convictions on the same victim.  The State contended the prosecutor 

instructions, evidence and closing arguments, any reasonable jury would have 
known that it must find separate and distinct acts for each of four guilty verdicts).
       18 Instruction No. 6; Clerk's Papers at 122.
       19 Instruction No. 13; Clerk's Papers at 130 (emphasis added). 
       20 As we said in State v. Noel, 51 Wn. App. 436, 440, 753 P.2d 1017, 
review denied, 111 Wn.2d1003 (1988), "[t]he issue before us . . . is not whether 
it is possible to interpret [the] instruction . . . to mean one can be convicted 
without unanimity as to the act proved, but whether the ordinary juror would so 
interpret it."  See also State v. Moultrie, 143 Wn. App. 387, 393-94, 177 P.3d 
776 (2008).    

                                            7 

No. 65766-6-I/8

remedied the instructional problem by electing different victims for the two 

counts in closing argument.  In concluding that the State had not made "a clear 

election," the Kier court held that the instructions and evidence both allowed the 

jury to base its verdicts on the same victim.  Here, by contrast, a reasonable jury 

would not read the instructions as allowing them to convict on a count without 

agreeing on a particular act for that count.  

       We affirm the judgment and sentence. 

WE CONCUR:

                                            8