Opinion Information Sheet

			

                                                                               FILED
                                                                           FEB. 28, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

   COURT OF APPEALS, DIVISION III, STATE OF 
                                  WASHINGTON

STATE OF WASHINGTON,                                )    No.  28958-3-III
                                                    )
                  Respondent,                       )
                                                    )    ORDER AMENDING
           v.                                       )    OPINION
                                                    )
CORY JAMES MONAGHAN,                                )
                                                    )
                  Appellant.                        )

       Having considered respondent's motion to amend the opinion filed on 

February 7, 2012, and the record and file herein;

       IT IS ORDERED that the opinion filed on February 7, 2012, shall be amended as 

follows:

       On page 12, the paragraph that begins "Mr. Monaghan also contends" shall be 

deleted and the following paragraph shall be substituted in its place:

              Mr. Monaghan also contends the trial court based its decision on 
       psychologically indefensible beliefs that a delusional disorder is not a 
       mental disease.  The trial court in its oral ruling noted that the experts had 
       engaged in a "philosophical discussion about whether a personality 
       disorder can be a mental disease or defect," [footnote 6] and suggested 
       that the legislature probably did not intend that personality disorders 
       (such as paranoid personality disorder) should be the basis for an 
       insanity defense.  The court never stated that a delusion disorder is a  

No. 28958-3-III
State v. Monaghan

       personality disorder. But, ultimately, the trial court concluded that Mr. 
       Monaghan's expert failed to overcome the State's experts' opinions that 
       Mr. Monaghan did not have a delusional disorder or any other mental 
       defect or disease.

       DATED:

       PANEL:         Judges Kulik, Sweeney, and Brown

       FOR THE COURT:

                                                    ________________________________
                                                    TERESA C. KULIK
                                                    CHIEF JUDGE

                                                                          FILED
                                                                       FEB. 7, 2012
                                                               In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  28958-3-III
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
CORY JAMES MONAGHAN,                            )         PUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Kulik, C.J.  --  Cory Monaghan killed his friend, Jeremy Karavias, by shooting 

                                               2 

No. 28958-3-III
State v. Monaghan

him, breaking his neck, stabbing him, and burning a trailer house down upon him.  Mr. 

Monaghan was charged with first degree premeditated murder and first degree arson.  

The superior court denied his pretrial motion for acquittal on grounds of insanity and the 

jury convicted him as charged, with a special verdict finding that he was armed with a 

firearm when he committed the murder.  On appeal, he contends (1) he established with a 

preponderance of the evidence that he was insane due to a delusional disorder, (2) the 

State failed to prove premeditation beyond a reasonable doubt, (3) the trial court erred by 

refusing to instruct the jury that it must unanimously agree on the act or acts that 

constituted the murder, and (4) the prosecutor engaged in misconduct in closing argument 

by misinforming the jury about the evidence it could consider.     

       The trial court did not err in finding that Mr. Monaghan did not have a mental 

disease or defect at the time he killed Mr. Karavias.  We also conclude that an instruction 

based on State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on 

other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988) was not required 

because the continuing course of conduct exception to the Petrich instruction applies.  

We also reject Mr. Monaghan's other assertions of error.  We affirm the convictions.

                                            FACTS

       On Christmas Eve in 2005, Mr. Monaghan's young daughter died of cancer.  

Family members credit this unfortunate event with causing Mr. Monaghan's subsequent 

depression and odd behavior.  One aspect of this behavior was Mr. Monaghan's belief 

                                               3 

No. 28958-3-III
State v. Monaghan

that a business rival was trying to ruin his tree-trimming business by sabotaging 

equipment and bugging his cellular telephone.  

       In October 2008, Mr. Monaghan and one of his employees went deer hunting.  His 

employee, a young man named Jeremy Karavias, had been living with Mr. Monaghan and 

his family since July of that year and was considered a friend.  Mr. Monaghan and Mr. 

Karavias stopped in Malo, Washington, on October 21, 2008, to visit Mr. Monaghan's 

uncle, Ron Wessel.  

       From the moment that Mr. Monaghan arrived unexpectedly, Mr. Wessel had a 

premonition of violence.  Although he invited the two men into his home, Mr. Wessel felt 

uneasy and secretly armed himself with a handgun while they were there.  He also called 

his two adult daughters, told them Mr. Monaghan was acting weird, and asked them to 

stop by.  

       Mr. Wessel's daughters later testified that Mr. Monaghan seemed on edge and 

"would just zone out" that night.  Report of Proceedings (RP) at 128.  He brought a 

loaded assault rifle and a handgun into his uncle's house and seemed uneasy when his 

cousin offered to unload and clean the rifle.  During the evening, Mr. Monaghan read 

portions of the Bible or the Koran aloud and declared that it was time to suit up for battle 

now that the economy was crashing.  That night, Mr. Monaghan slept on his uncle's 

couch, Mr. Karavias slept in Mr. Monaghan's truck, and Mr. Wessel slept with his gun 

close at hand.  

                                               4 

No. 28958-3-III
State v. Monaghan

       The next morning, Mr. Monaghan read aloud passages from the Bible about 

slaying enemies.  Then he asked his uncle where in the area he could hunt deer, and he 

and Mr. Karavias prepared to leave.  From the couch, Mr. Wessel watched his nephew 

and Mr. Karavias standing by the front door, mumbling quietly to each other.  Mr. Wessel 

could only see Mr. Karavias, who stood holding the assault rifle with the barrel pointed 

toward the floor. 

       Suddenly Mr. Wessel heard a shot and saw Mr. Karavias stagger backward, 

exclaiming, "'Cory, Cory.'" RP at 1182.  Mr. Wessel rushed over and asked, "'What 

the F did you do.'" RP at 1183.  Mr. Monaghan said, "'He pointed a gun at me.'" RP at 

1183.  "'Bull F-ing shit,'" responded Mr. Wessel, who had been watching Mr. Karavias 

and knew the statement was a lie.  RP at 1184.  Mr. Wessel called 911, handed the 

telephone to Mr. Monaghan, and grabbed a handgun from him.  Mr. Monaghan told the 

911 dispatcher, "There's been a terrible accident," and later, "the gun went off and he got 

shot." Transcript of Ex. 13 at 000610.  After unloading and hiding the handgun, Mr. 

Wessel took back his telephone and talked to the dispatcher while Mr. Monaghan knelt 

by Mr. Karavias, who was squirming and moaning.  The next time Mr. Wessel looked, he 

saw Mr. Monaghan down on the floor cradling Mr. Karavias's head.  Mr. Monaghan 

braced his feet against the door, grabbed Mr. Karavias's head, and twisted until Mr. 

Wessel heard "'crack, crack, crack'" from Mr. Karavias's neck.  RP at 1190.  Mr. 

Karavias's feet twitched briefly and he stopped moving altogether.  Mr. Monaghan then 

                                               5 

No. 28958-3-III
State v. Monaghan

looked up at Mr. Wessel with a look of "ecstasy" on his face.  RP at 1189.

       Mr. Wessel ran from the room to get his gun and told the dispatcher, "'He just 

broke that kid's neck.'" RP at 1191.  When Mr. Wessel walked back to the living room, 

he saw that Mr. Monaghan had flipped Mr. Karavias over, lifted his shirt, and apparently 
was preparing to stab Mr. Karavias's abdomen with a hunting knife.1

       Mr. Wessel ran from the house, hid in an outbuilding for awhile, and eventually 

drove away.  He discovered police and border patrol officers gathered down the road 

from his house and warned them that Mr. Monaghan was armed.  Over one hour after the 

incident occurred, the officers noticed that Mr. Wessel's trailer was on fire.  A helicopter 

crew dispatched to the scene saw a figure run from the burning trailer and ordered him to 

stop.  Mr. Monaghan, shirtless and covered with blood, complied with the order to lie 

down.  He had a cloth wrapped around a wound in his left thigh.  After Mr. Monaghan 

was arrested, an officer asked him if he was wounded and he responded that Mr. Karavias 

had stabbed him.  The officers found a bloody sweatshirt, a Bible, and a lighter on the 

ground near him.  Some of the blood on the sweatshirt and on Mr. Monaghan's body was 

Mr. Karavias's.  A kitchen knife found next to Mr. Monaghan's burned pickup (parked 

near the trailer) was stained solely with Mr. Monaghan's blood.  

       During Mr. Monaghan's ambulance ride to the hospital, the medics treated two 

small stab wounds on his thigh and they noted that his moustache hairs were singed.  A 

1 Mr. Wessel testified that it looked like Mr. Monaghan was going to "'gut'" Mr. 
Karavias.  RP at 1191.  

                                               6 

No. 28958-3-III
State v. Monaghan

deputy later reported that Mr. Monaghan's head, eyebrows, hair, and hands were singed 

as though they had been flash-burned.  Soon after he arrived at the hospital, Mr. 

Monaghan became unresponsive and had to be intubated.  Medical personnel were 

concerned that he was undergoing a psychotic episode.  He was airlifted to Sacred Heart 

Medical Center in Spokane and was eventually revived.  Two officers accompanied Mr. 

Monaghan to an x-ray examination room, where his restraints were removed.  When the 

officers stepped behind a protective wall during the x-ray, Mr. Monaghan jumped from 

the table and attempted to open the door to leave the room.  The officers had to wrestle 

him to the ground and reported that although he first looked enraged, he then changed his 

demeanor and said he was sorry.  

       Investigators found Mr. Karavias's charred remains in the burned debris of the 

trailer.  Due to the intense heat of the fire, most of his tissue was gone and any bullet 

fragments had melted away.  A forensic pathologist testified that, as a result, he could not 

determine the specific cause of his death.  Mr. Monaghan's pickup had burned to the 

ground.  Wessel family members who moved the truck one week later found the burned 

remains of a hunting knife under the pickup.  

       The State charged Mr. Monaghan by amended information with first degree 

murder with a firearm sentencing enhancement and first degree arson.  He entered a plea 

of not guilty by reason of insanity.  Pretrial, he moved for acquittal on grounds of 

insanity.  After a hearing, the trial court denied the motion for acquittal and entered 

                                               7 

No. 28958-3-III
State v. Monaghan

written findings of fact and conclusions of law. 

       The jury found Mr. Monaghan guilty of the charges and found by special verdict 

that he was armed with a firearm when he committed the murder.  He was sentenced to 

407 months of confinement.  

                                         ANALYSIS

       Insanity Defense. Mr. Monaghan first assigns error to the trial court's denial of his 

motion for acquittal on grounds of insanity.  We review the court's decision by 

considering whether substantial evidence supports the challenged facts and whether these 

facts support the court's conclusion that Mr. Monaghan failed to prove insanity by a 

preponderance of the evidence.  State v. Sommerville, 111 Wn.2d 524, 533-34, 760 P.2d 

932 (1988).  Substantial evidence exists if the record contains enough evidence to 

persuade a rational person of the truth of the declared premise.  Id. at 534.  When 

substantial evidence supports the trial court's challenged facts, those facts are binding on 

appeal.  State v. Klein, 156 Wn.2d 102, 115, 124 P.3d 644 (2005).

       Washington law presumes that a person is sane at the time the person commits a 

crime.  State v. Box, 109 Wn.2d 320, 322, 745 P.2d 23 (1987).  Thus, a defendant who 

claims the defense of insanity must carry the burden of showing by a preponderance of 

the evidence that he or she was insane at the time of the offense.  RCW 10.77.080.  Not 

all who are "deranged" may raise the insanity defense, because "legal insanity has a 

different meaning and a different purpose than the concept of medical insanity."  

                                               8 

No. 28958-3-III
State v. Monaghan

State v. Crenshaw, 98 Wn.2d 789, 793, 659 P.2d 488 (1983).  To prove legal 

insanity, the defendant must establish the elements of the M'Naghten rule, codified in 

RCW 9A.12.010.  M'Naghten's Case, 10 Clark & Fin. 200, 210, 8 Eng. Rep. 718, 722 

(H.L. 1843), cited in Klein, 156 Wn.2d at 113.  The defendant must show with a 

preponderance of the evidence that:

              (1)  At the time of the commission of the offense, as a result of 
       mental disease or defect, the mind of the actor was affected to such an 
       extent that:
              (a)  He or she was unable to perceive the nature and quality of the 
       act with which he or she is charged; or
              (b)  He or she was unable to tell right from wrong with reference to 
       the particular act charged.
RCW 9A.12.010.2

       Mental Disease or Defect. The trial court in written findings of fact found that 

Mr. Monaghan did not have a mental disease or defect.  Sufficient evidence supports 

these findings.

       Mr. Monaghan presented the testimony and written report of Dr. Vincent 

Gollogly, a clinical psychologist, who reviewed police and medical reports and 

interviewed Mr. Monaghan over the course of two days in September 2009.  Dr. Gollogly 

concluded from this information and from psychological evaluation tests that Mr. 

Monaghan exhibited the mental diseases of delusional disorder and paranoid personality 

disorder.  In Dr. Gollogly's opinion, Mr. Monaghan had suffered a fixed delusion since 

2 RCW 9A.12.010 was amended in 2011 to make it gender neutral.  Laws of 2011, ch. 
336, § 353.  

                                               9 

No. 28958-3-III
State v. Monaghan

2004 that a business rival was out to ruin his business and harm him.  This mental 

disease, Dr. Gollogly opined, caused such extreme emotional turmoil that Mr. Monaghan 

could not appreciate the nature and quality of his actions and could not distinguish 

between right and wrong on the day of the incident.  Specifically, Dr. Gollogly concluded 

that Mr. Monaghan "had developed a maladaptive pattern of excessive paranoia and 

suspicion about others, even those that were close friends and relatives." Clerk's Papers 

(CP) at 130.  

       Testimony from Mr. Monaghan's father, his brother, and former co-workers 

supported the reports that Mr. Monaghan believed the business rival was attempting to 

harm him and his business.  Additional testimony established that Mr. Monaghan had 
been acting "weird"3 and "on edge"4 just before the murder.  

       In response, the State presented the testimony of Dr. Trevor Travers, a clinical 

psychologist, and Dr. William Grant, a forensic psychiatrist.  These medical experts 

interviewed Mr. Monaghan in July 2009 during his 15-day, court-ordered inpatient 

evaluation and again after Mr. Monaghan had been transferred back to jail.  They also 

reviewed police and medical records and telephone conversations between Mr. Monaghan 

and family members recorded while he was in jail. 

       According to Dr. Travers, a mental disease is a severe illness that distorts the 

perception of reality to the extent that the person is psychotic.  He noted that in 25 hours 

3 RP at 43.
4 RP at 188.

                                              10 

No. 28958-3-III
State v. Monaghan

of telephone conversations, Mr. Monaghan showed organized, task-oriented 

thinking with no signs of psychosis.  Additionally, at the time of the murder and 

arson, Mr. Monaghan did not exhibit paranoia or describe any hallucinations or delusions 

regarding his victim.  Dr. Travers stated that Mr. Monaghan exhibited symptoms of a 
paranoid personality disorder and "magical thinking,"5 not psychosis, when he was at 

Eastern State Hospital.  And Dr. Travers indicated that anxiety disorders, such as the 

paranoid personality disorder, are not considered to be mental diseases in the 

psychological community. 

       Dr. Grant testified that a delusional disorder is a major mental illness, but that the 

records, tests, and interviews did not show that Mr. Monaghan had a delusional disorder.  

A delusional person is extremely tenacious in his delusions, he asserted, and Mr. 

Monaghan could be talked out of his delusions.  For instance, although Mr. Monaghan 

claimed that the business competitor was tracking him through his cellular telephone, Mr. 

Monaghan explained that he kept using his telephone because he had business contacts on 

it.  Then, when Mr. Monaghan got a new cellular telephone, he was satisfied that he 

could not be tracked.  Dr. Grant insisted that a genuinely paranoid, delusional person 

would not be so easily dissuaded from his delusion.  

       Mr. Monaghan argues that persistent adherence to a delusion is not one of the 

diagnostic criteria for a delusional disorder recognized in the American Psychiatric 

5 RP at 691-92.

                                              11 

No. 28958-3-III
State v. Monaghan

Association, Diagnostic and Statistical Manual of Mental Disorders (4th rev. ed. 

2000) (DSM-IV-TR).  While persistent adherence to the delusion is not included in the 

diagnostic criteria for the disorder, the DSM-IV-TR does recognize the "sustained 

delusional beliefs" that are characteristic of this disorder.  DSM-IV-TR at 328.  In its 

introduction, the DSM-IV-TR explains that "[t]he specific diagnostic criteria included in 

DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not 

meant to be used in a cookbook fashion."  Id. at xxxii.  Washington courts recognize that 

the DSM-IV-TR is an evolving, imperfect document that should not be treated as 

sacrosanct.  Klein, 156 Wn.2d at 117 (quoting In re Pers. Restraint of Young, 122 Wn.2d 

1, 28, 857 P.2d 989 (1993)).  The trial court properly considered the DSM-IV-TR and the 

experience and training of all of the expert witnesses when it determined the credibility 

and weight to be given to the evidence.  State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 

850 (1990).  

       Mr. Monaghan also contends the trial court based its decision on psychologically 

indefensible beliefs that a delusional disorder is not a mental disease.  The trial court in 

its oral ruling noted that the experts had engaged in a "philosophical discussion about 
whether a personality disorder can be a mental disease or defect,"6 and suggested that the 

legislature probably did not intend that personality disorders (such as paranoid 

personality disorder) should be the basis for an insanity defense.  The court never stated 

6 RP at 867.

                                              12 

No. 28958-3-III
State v. Monaghan

that a delusion disorder is a personality disorder.  But, ultimately, the trial court 

concluded that Mr. Monaghan's expert failed to overcome the State's experts' opinions 

that Mr. Monaghan did not have a delusional disorder or any other mental defect or 

disease. 

       Finally, Dr. Grant and Dr. Travers testified that even if Mr. Monaghan suffered 

from a paranoid-type delusional disorder, the evidence did not show that his delusion 

involved anyone other than the business competitor.  No statements by Mr. Monaghan 

ever indicated that he thought Mr. Karavias was connected to this business competitor or 

any other aspect of Mr. Monaghan's alleged paranoia.  

       We defer to the trial court's determination of the weight and persuasiveness of 

conflicting expert opinions.  State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 

(2004).  Substantial evidence supports the trial court's finding that Mr. Monaghan did not 

suffer a mental disease or defect under RCW 9A.12.010 at the time of the offense.

       Inability to Perceive the Act or to Tell Right from Wrong. The trial court also 

found that Mr. Monaghan was able to perceive the nature and quality of his acts and to 

tell right from wrong at the time he committed the charged offenses.  These findings are 

supported by substantial evidence.  For instance, it is undisputed that Mr. Monaghan 

knew he was shooting Mr. Karavias and would likely kill or seriously injure him.  He 

showed an awareness that his acts were criminal when he lied to the 911 dispatcher by 

stating that there had been a terrible accident, when he set the fire with the apparent 

                                              13 

No. 28958-3-III
State v. Monaghan

motive to destroy evidence, when he fled from the burning trailer, when he falsely 

accused Mr. Karavias of pointing the rifle at him and stabbing him, and when he 

tried to escape in the hospital.  

       The evidence supports the trial court's findings, which in turn support the 

conclusion that Mr. Monaghan failed to prove his insanity by a preponderance of the 

evidence.  Accordingly, the trial court properly denied his motion for acquittal on 

grounds of insanity. 

       Premeditation. Mr. Monaghan next contends there is insufficient evidence to 

support the premeditation element of the first degree murder charge.  We review the 

evidence in the light most favorable to the State and ask whether any rational trier of fact 

could find sufficient evidence to support the essential elements of the crime beyond a 

reasonable doubt.  State v. Cross, 156 Wn.2d 580, 627, 132 P.3d 80 (2006) (quoting State 

v. Brown, 132 Wn.2d 529, 551, 940 P.2d 546 (1997)); State v. Hoffman, 116 Wn.2d 51, 

82, 804 P.2d 577 (1991).

       As charged here, premeditation is an essential element of first degree murder.  

RCW 9A.32.030(1)(a).  The premeditation required to support conviction "must involve 

more than a moment in point of time." RCW 9A.32.020(1).  In other words, the State 

must show that the defendant decided to cause the victim's death after some period of 

reflection, however short.  State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006) 

(quoting Hoffman, 116 Wn.2d at 82-83).  "Premeditation may be proved by 

                                              14 

No. 28958-3-III
State v. Monaghan

circumstantial evidence where inferences supporting premeditation are reasonable and the 

evidence is substantial."  Id.

       Mr. Monaghan makes the novel argument that because the State failed to prove 

which act -- shooting, breaking the neck, or setting fire to the trailer -- actually killed Mr. 

Karavias, the State failed to show that the act causing death was premeditated.  Viewed in 

the light most favorable to the State's case, substantial evidence supports a rational 

juror's conclusion beyond a reasonable doubt that Mr. Monaghan committed each of the 

above violent acts.  And multiple acts of violence support an inference of premeditation.  

Cross, 156 Wn.2d at 627; Hoffman, 116 Wn.2d at 84.  Even if the evidence cannot 

conclusively establish that one particular act actually killed Mr. Karavias, a reasonable 

juror could find beyond a reasonable doubt that Mr. Monaghan made the decision to kill 

his victim at least by the time he twisted Mr. Karavias's neck.  Thus, there was sufficient 

evidence to support the element of premeditation.   

       Petrich Instruction. At the completion of the State's case, the trial court asked the 

parties whether a unanimity instruction was needed for the count of first degree murder.  

Mr. Monaghan later argued that a unanimity instruction based on Petrich was required 

because three separate and distinct acts of murder were alleged.  The State responded that 

a Petrich instruction is not required when, as here, the defendant is charged with a 

continuing course of conduct within a short period of time.  The trial court agreed with 

the State and declined the unanimity instruction.  Mr. Monaghan contends the trial court 

                                              15 

No. 28958-3-III
State v. Monaghan

erred by refusing to instruct the jury that it must unanimously agree on which criminal act 

was the basis for its verdict.

       We review a trial court's refusal -- based on factual reasons -- to give an instruction 

for an abuse of discretion.  State v. Hunter, 152 Wn. App. 30, 43, 216 P.3d 421 (2009); 

State v. White, 137 Wn. App. 227, 230, 152 P.3d 364 (2007).  The refusal to give a jury 

instruction is a reversible error only if the instruction properly states the law and the 

evidence supports it.  State v. Ager, 128 Wn.2d 85, 93, 904 P.2d 715 (1995).  

       A defendant may be convicted only when a unanimous jury decides that the 

defendant committed the criminal act charged in the information.  State v. Crane, 116 

Wn.2d 315, 324-25, 804 P.2d 10 (1991).  Under Petrich, if the State presents evidence of 

multiple distinct acts that could form the basis of one charge, the State must tell the jury 

which act to rely on or the court must instruct the jury to agree on a specific act.  Petrich, 

101 Wn.2d at 572; State v. Coleman, 159 Wn.2d 509, 511, 150 P.3d 1126 (2007); Crane, 

116 Wn.2d at 325.  By requiring a unanimous verdict on one criminal act, the courts 

protect the defendant's constitutional right to a unanimous verdict based on an act that 

was proved beyond a reasonable doubt.  Coleman, 159 Wn.2d at 511-12; Kitchen, 110 

Wn.2d at 409. 

       A Petrich unanimity instruction is not required, however, when the State presents 

evidence of multiple acts that indicate a "continuing course of conduct."  Crane, 116 

Wn.2d at 326; State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989); State v. Love, 

                                              16 

No. 28958-3-III
State v. Monaghan

80 Wn. App. 357, 361, 908 P.2d 395 (1996).  "A continuing course of conduct requires 

an ongoing enterprise with a single objective."  Love, 80 Wn. App. at 361.  To determine 

whether multiple acts constitute a continuing course of conduct, we evaluate the facts in a 

commonsense manner.  Handran, 113 Wn.2d at 17; Love, 80 Wn. App. at 361.  

       Washington courts have found a continuing course of conduct in cases where 

multiple acts of assault were committed with a single purpose against one victim in a 

short period of time.  See cases cited in Love, 80 Wn. App. at 361-62.  In Crane, the 

continuing course of conduct exception was applied to multiple acts of assault against a 

child victim over a two-hour time period, ending in the death of the child.  Crane, 116 

Wn.2d at 330.  A unanimous jury verdict was not required on each incident of assault 

during the two-hour period; instead, the jury needed only to be unanimous that the 

continuous conduct occurred.  Id.; State v. York, 152 Wn. App. 92, 96, 216 P.3d 436 

(2009).

       The evidence here, viewed in the light most favorable to the State, shows that Mr. 

Monaghan committed three potentially lethal acts against Mr. Karavias: he shot him in 

the chest at close range, he twisted Mr. Karavias's neck until he broke it, and he burned 

down the trailer with Mr. Karavias inside.  Mr. Wessel -- an eyewitness -- testified that he 

observed Mr. Monaghan shoot Mr. Karavias and twist his neck until it snapped and Mr. 

Karavias went limp.  Although Mr. Monaghan contends the State failed to prove that he 

started the fire, circumstantial evidence (no one else was near the trailer; Mr. Monaghan 

                                              17 

No. 28958-3-III
State v. Monaghan

had singed hair, face, and hands; and he had a motive to conceal his crime) could support 

a reasonable juror's conclusion beyond a reasonable doubt that Mr. Monaghan committed 

the arson.  These acts occurred within a 90-minute period, and any rational juror could 

conclude that the acts had one objective: to kill Mr. Karavias.  With this evidence, the 

continuing course of conduct exception applies and a Petrich unanimity instruction was 

not required.  Crane, 116 Wn.2d at 330; Love, 80 Wn. App. at 361.  The trial court did 

not abuse its discretion in refusing to instruct the jury that it must agree on one specific 

act to support the first degree murder charge.  The trial court did not err in refusing to 

give a Petrich unanimity instruction.

       Prosecutorial Misconduct. Finally, Mr. Monaghan contends the trial court erred 

in overruling his objection to a statement made by the prosecutor during rebuttal closing 

argument.  The prosecutor discussed the medical records that were not entered into 

evidence but that were relied upon by Mr. Monaghan's expert witnesses in reaching their 

opinions on his sanity:

              Counsel -- made reference to a lot of the records that the experts 
       testified to.  And that's something that you wouldn't normally hear in a 
       criminal case.  Normally all that stuff would be hearsay; you have to hear it, 
       you know, directly from the horse's mouth.  But when experts testify 
       they're allowed to give opinions and they're allowed to tell you why they 
       have the opinions, including relying on things that they've read.  But that's 
       not really evidence; that's just things that they read . . . to support their 
       opinions.

RP at 2912 (emphasis added).  Mr. Monaghan objected that the medical records are 

actual evidence and the court overruled, stating that it would allow leeway and let the 

                                              18 

No. 28958-3-III
State v. Monaghan

jury decide for itself.  

       To prove prosecutorial misconduct, the defendant must establish that the 

prosecutor's comments were improper and prejudicial in the context of the record.  State 

v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (quoting State v. Magers, 164 

Wn.2d 174, 191, 189 P.3d 126 (2008)). Prejudice is proved by showing a substantial 

likelihood that the misconduct affected the verdict.  Id. at 442-43 (quoting Magers, 164 

Wn.2d at 191).  Reversal is not required if the error could have been obviated by a 

curative instruction and the defendant did not request one.  Hoffman, 116 Wn.2d at 93.  

We review a claim of prosecutorial misconduct for an abuse of discretion.  State v. Ish, 

170 Wn.2d 189, 195, 241 P.3d 389 (2010).  

       A prosecutor has wide latitude in closing argument to express reasonable 

inferences from the evidence and to comment on the credibility of witnesses.  

Thorgerson, 172 Wn.2d at 448.  The prosecutor's statements of the law must be confined

to the law set forth in the court's jury instructions.  State v. Davenport, 100 Wn.2d 757, 

760, 675 P.2d 1213 (1984).  In this case, the jury was given jury instruction 8 that was 

based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.51 

at 199 (3d ed. 2008), the standard for expert opinion testimony:

              A witness who has special training, education, or experience may be 
       allowed to express an opinion in addition to giving testimony as to facts.
              You are not, however, required to accept his or her opinion.  To 
       determine the credibility and weight to be given to this type of evidence, 
       you may consider, among other things, the education, training, experience, 
       knowledge, and ability of the witness.  You may also consider the reasons 
       given for the opinion and the sources of his or her information, as well as 

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No. 28958-3-III
State v. Monaghan

       considering the factors already given to you for evaluating the testimony of 
       any other witness.

CP at 166 (emphasis added).  This instruction emphasizes that the weight of an expert's 

opinion is judged in part by the education, experience, and factual data used by the expert 

to form that opinion.  The prosecutor's challenged comments do not contradict the law of 

the instruction and merely cast doubt on the reliability of the information relied upon by 

the defense's expert witnesses.  

       On the other hand, the prosecutor may have erred by referring to the medical 

records as inadmissible hearsay.  See Thorgerson, 172 Wn.2d at 445 (disapproving the 

prosecutor's reference to the hearsay rules and how they affect production of evidence at 

trial).  ER 703 allows expert opinion testimony based on hearsay that would be otherwise 

inadmissible in evidence.  State v. Russell, 125 Wn.2d 24, 74, 882 P.2d 747 (1994).  But 

Mr. Monaghan shows no prejudice.  Both the State's expert witnesses and the defense's 

expert witnesses based their opinions in part on medical records that were not entered 

into evidence at trial.  The reference to those records as merely "things that they read" to 

support their expert opinions cuts both ways.  RP at 2912.  The court's instruction on 

expert testimony reduced any confusion raised by the prosecutor's remarks.  Furthermore, 

contrary to Mr. Monaghan's assertion, it was his burden -- not the State's -- to propose a 

curative instruction.  Hoffman, 116 Wn.2d at 93.  Mr. Monaghan fails to show a 

substantial likelihood that the prosecutor's comments affected the jury's verdict.  

       The prosecutor's statement was not reversible misconduct.

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No. 28958-3-III
State v. Monaghan

       Conclusion. We affirm the trial court's finding that Mr. Monaghan was not 

insane.  We affirm that Mr. Monaghan acted with premeditation.  We affirm that no 

Petrich instruction was required because Mr. Monaghan's actions were a continuous 

course of conduct.  We conclude there was no prosecutorial misconduct.  Therefore, we 

affirm the convictions.

                                                    _________________________________
                                                    Kulik, C.J.

WE CONCUR:

_______________________________________
Sweeney, J.

_______________________________________
Brown, J.

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