%`E§QESB april 233 2016
la tire Ul"tice rii`tl:e Clei‘lr oi`€oiirt WA State Coisrt ot` A;);)eri§s, Divisioii ll§
IN THE CO$URT OF APPEALS OF THE S'I`A"I_`IE O]§` WA_SHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33022~2-111
Respondent, § l
v. l UNPUBLISHED OPINION
JlEREI\/IIAH RAY LOGAN, l
Appellant. §
LAW'RENCE-BERREY, J. - A jury convicted Jeremiali Ray Logan of second degree rape of a child and second degree child rnolestation. in his appeal, he asserts that his constitutional right to a unanimous jury verdict was violated because the trial court failed to give a Perrz`chl instruction. We conclude that Mr. Logan invited this error and we decline to review it. We therefore afiirm.
FAC'I`S I`)esiree logan married jeremiah Logan in 2009. Desiree had a daughter, B.E.H.,
who was not Jeremiah’s daughter B.E.H. was born on January 22, 1999. The Logans
l Stote v. Ferrz`ch, 101 Wn.Zd 566, 572, 683 P.Zd 173 (1984), overruled import on other grounds by Stoz‘e v. Kiz‘cherz, 110 Wn.,'£d 403, 40613..1, 756 P.Zd 105 (1983),
abrogated irc part on other grounds by fn re Pers. Resrroirzr ofStoo!o/vell, 179 Wn.Zd 5 88, 316 P.3d1007(2014).
No. 33022~2-1{1
Srczre v. logan
had three younger children together, and for a period of tiine, all six lived in a three bedroom trailer 'l`hey had a single computer in the home, which they kept in the master bedrooin_ on a coinpnter desk next to the head of the bed.
Around Septeniber or October 2011, l\/ls. Logan came home from work to find B.E.H. sitting on her hu_sband’s lap, alone in the rnaster bedroorn, watching YouTnbe videos on the coniputer. The way they were sitting "ittstantly" made l\/ls. hogan feet unconit`ortable, and she t_honght it was inappropriate Report of Proceedings (RP) at 84.
Aronnd February 9, 2()12, Desiree Logan came horne from work and the rnaster‘ bedroom door was loclted. B.E.H. and her stepfather were alone in the room. l\/ls. hogan unlocked the door with a koey, and opened the door to find B.E.H. walking toward the door with her pants unzipped and .leretniah sleeping in bed. When Dcsiree asked B.E.H. why her pants were unzipped, said she was looking at pornography on the coinputer. However, inuch later she stated that her stepfather had been rubbing her vagina while they sat on the bed watching pornography, and when her stepfather heard the door being unlocked he pretended to be asleep.
On February 16, 2012, a cont`idant convinced B.E.H. to report the abuse. Just prior to reporting the abuse, and vvhile l\/[r. l,ogan was asleep, took her younger halt`-
siblings to a iteighbor’s house and the neighbor called the police
No. BBGZZ-»Z~lll Slal‘e v. Logau PROCEDIJRE
On june 27, 2()}2, the State charged Jereiniah logan with second degree rape of a child and second degree child lnolestation, occurring "on or about between Septeinber }5, 2011 and Fcbruary 17, 20§_2.” Clerl§’s Papers (CP) at l. At trial, testified to roughly haif a dozen instances in which her stepfather molested or raped her. She testified that these sexual assaults occurred after she started seventh grade in the fall of 201 l, and continued almost until she left the trailer.
Both the State and l\/lr. l,ogan filed proposed jury instructions Both sets permitted the jury to find guilt based on the broad tirnel;`rame charged Specitically, l\/slr. Logan’s
proposed to-convict instruction for rape of a child in the second degree stated in relevant
part: To convict the defendant of the crime of rape of a child in the second degree, each ot` the following elements of the crime iniist be proved beyond a reasonable doubt: (i) "l`hat on or about the Fall of 2011 to Feioruary l6, 2()12, the defendant had sexual intercourse with [B.E.H.]', CP at 45.
Siinilarly, Mr. Loga.n’s proposed to-convict instruction for second degree child
molestation stated in relevant part:
No. 33022-2-1{1{ State v. Lc)gczn
To convict the defendant of the crime of child ;nolestation in the
second degree, each of the following elements of the crime must be proved
beyond a reasonabfe doubt:
(l) That on or about Fall 2011 to February l6, 2012, the
defendant had sexual contact with [B.E.H.];
CP at ¢l'i. Neither the State nor l_\/lr. Logan proposed a Perri`ch iiistruction
The trial court later prepared its jury instructions ln its to-convict instructions, the trial court gave a broad tiinefraine substantially similar to the tiinefrain_e quoted above The trial court presented its instructions to both counsei, and asked for their commerits. The State had no objections or exceptions Mr. Logan’s counsel said, "No exceptions or objections from the defense, either." RP at 174.
The jury found l\/Ir. Logan guilty of second degree rape of a child and second degree chifd inolestation. The trial court sentenced hiin to 2l 0 inonths to life imprisonment
I`_,AW AND ANALYSIS A. Fai[i,¢re to give a Petrich instruction l\/lr. Logan contends the trial court erred because it did not instruct the jury on
unaniinity. He argues a unanimity instruction was required because the State presented
evidence ofnaultiple acts that could constitute the crimes charged
No. 330>22-2-1]1 Stai‘e v. Logon
" ‘ To convict a person of a criminal charge, the juiy must be unanimous that the defendant committed the criminal act.’ " Srare v. Bobenhouse, 166 Wn.Zd 881, 392, 214 93d 907 (2()()9) (quoting Siczte v. Comdri`llo, 115 Wn.2d 6(), 63, 794 P.Zd 850 (1990)). When the evidence iiidicates that several distinct criminal acts `have been com_rnitted, but the defendant is charged with only one count of criminal conduct, jury unanimity must be protected. Stdfe Pefri`C//z, lOl Wn..'£d 566, 572, 683 P.Zd 173 (1984), overruled in part on other grounds by Sfdfe v. Kz`tchelt, 110 Wn.Zd. 403, 406 n.l, 756 P.Zd 105 (1938)_, abrogated in part on other grounds by fn re Pers. Resfrdz'nf o‘fSIoc/’€wel!, 179 Wn.Zd 588, 316 P.Bd 1007 (20l4). T`o protect unanimity, the State may elect on which act it relies for conviction, or the jtiry must be instructed that all 12 jurors inust agree that the same underlying criminal act has been proved beyond a reasonable doubt. Sloz‘e v. Bdrrz`ngton, 52 Wn. App. 478, 480, 761 P,Zd 632 (1988). Washington labels such ajury instruction a "Perrz`ch iiistruction." A triai court’s failure to give a Pel'rz`ch instruction when warranted violates a defendant’s state constitutional right to a unanimous jury verdict and the United States constitutional right to a jury tria.i. Camczrillo, l 15 Wn.Zd at 64 (quoting Kirchen,
no wade ar 409).
No. _33022-2-111 Srczte v. »Lr)gan
l\levertheless, the invited error doctrine precludes appellate review of an alleged error affecting even a constitutional right of a defendan_t. Sraz‘e v. Henderson, l l¢l Wn.Qd 867, 870-71, 792 P.Zd 5l4 (199()). "The invited error doctrine is a strict rule that preciudes a criminal defendant from seeking appellate review of an error he helped create." Srare v. Carson, l79 Wn. App. 961 973, 320 P.3d 185 (2014), aff’d, l84 Wn.?.d 207, 357 P.Bd §064 (2,()15).
Here, Mr. Logan’s proposed jury instructions for both charged offenses allowed him to be convicted if the jury found the criminal conduct to have occurred from "on or about the Fall of 201 l to February 16,'2012." CP at -45, 47. The trial court’s jury instructions provided a substantially similar broad tiniefraine. When the trial court asked whether l\/lr. Logan had any comments to the court’s instructions, defense counsel answered, "No exceptions or objections from the defense, either." RP at 174. We co'ricl_ude that i\/lr.
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%`E§QESB april 233 2016
la tire Ul"tice rii`tl:e Clei‘lr oi`€oiirt WA State Coisrt ot` A;);)eri§s, Divisioii ll§
IN THE CO$URT OF APPEALS OF THE S'I`A"I_`IE O]§` WA_SHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 33022~2-111
Respondent, § l
v. l UNPUBLISHED OPINION
JlEREI\/IIAH RAY LOGAN, l
Appellant. §
LAW'RENCE-BERREY, J. - A jury convicted Jeremiali Ray Logan of second degree rape of a child and second degree child rnolestation. in his appeal, he asserts that his constitutional right to a unanimous jury verdict was violated because the trial court failed to give a Perrz`chl instruction. We conclude that Mr. Logan invited this error and we decline to review it. We therefore afiirm.
FAC'I`S I`)esiree logan married jeremiah Logan in 2009. Desiree had a daughter, B.E.H.,
who was not Jeremiah’s daughter B.E.H. was born on January 22, 1999. The Logans
l Stote v. Ferrz`ch, 101 Wn.Zd 566, 572, 683 P.Zd 173 (1984), overruled import on other grounds by Stoz‘e v. Kiz‘cherz, 110 Wn.,'£d 403, 40613..1, 756 P.Zd 105 (1983),
abrogated irc part on other grounds by fn re Pers. Resrroirzr ofStoo!o/vell, 179 Wn.Zd 5 88, 316 P.3d1007(2014).
No. 33022~2-1{1
Srczre v. logan
had three younger children together, and for a period of tiine, all six lived in a three bedroom trailer 'l`hey had a single computer in the home, which they kept in the master bedrooin_ on a coinpnter desk next to the head of the bed.
Around Septeniber or October 2011, l\/ls. Logan came home from work to find B.E.H. sitting on her hu_sband’s lap, alone in the rnaster bedroorn, watching YouTnbe videos on the coniputer. The way they were sitting "ittstantly" made l\/ls. hogan feet unconit`ortable, and she t_honght it was inappropriate Report of Proceedings (RP) at 84.
Aronnd February 9, 2()12, Desiree Logan came horne from work and the rnaster‘ bedroom door was loclted. B.E.H. and her stepfather were alone in the room. l\/ls. hogan unlocked the door with a koey, and opened the door to find B.E.H. walking toward the door with her pants unzipped and .leretniah sleeping in bed. When Dcsiree asked B.E.H. why her pants were unzipped, said she was looking at pornography on the coinputer. However, inuch later she stated that her stepfather had been rubbing her vagina while they sat on the bed watching pornography, and when her stepfather heard the door being unlocked he pretended to be asleep.
On February 16, 2012, a cont`idant convinced B.E.H. to report the abuse. Just prior to reporting the abuse, and vvhile l\/[r. l,ogan was asleep, took her younger halt`-
siblings to a iteighbor’s house and the neighbor called the police
No. BBGZZ-»Z~lll Slal‘e v. Logau PROCEDIJRE
On june 27, 2()}2, the State charged Jereiniah logan with second degree rape of a child and second degree child lnolestation, occurring "on or about between Septeinber }5, 2011 and Fcbruary 17, 20§_2.” Clerl§’s Papers (CP) at l. At trial, testified to roughly haif a dozen instances in which her stepfather molested or raped her. She testified that these sexual assaults occurred after she started seventh grade in the fall of 201 l, and continued almost until she left the trailer.
Both the State and l\/lr. l,ogan filed proposed jury instructions Both sets permitted the jury to find guilt based on the broad tirnel;`rame charged Specitically, l\/slr. Logan’s
proposed to-convict instruction for rape of a child in the second degree stated in relevant
part: To convict the defendant of the crime of rape of a child in the second degree, each ot` the following elements of the crime iniist be proved beyond a reasonable doubt: (i) "l`hat on or about the Fall of 2011 to Feioruary l6, 2()12, the defendant had sexual intercourse with [B.E.H.]', CP at 45.
Siinilarly, Mr. Loga.n’s proposed to-convict instruction for second degree child
molestation stated in relevant part:
No. 33022-2-1{1{ State v. Lc)gczn
To convict the defendant of the crime of child ;nolestation in the
second degree, each of the following elements of the crime must be proved
beyond a reasonabfe doubt:
(l) That on or about Fall 2011 to February l6, 2012, the
defendant had sexual contact with [B.E.H.];
CP at ¢l'i. Neither the State nor l_\/lr. Logan proposed a Perri`ch iiistruction
The trial court later prepared its jury instructions ln its to-convict instructions, the trial court gave a broad tiinefraine substantially similar to the tiinefrain_e quoted above The trial court presented its instructions to both counsei, and asked for their commerits. The State had no objections or exceptions Mr. Logan’s counsel said, "No exceptions or objections from the defense, either." RP at 174.
The jury found l\/Ir. Logan guilty of second degree rape of a child and second degree chifd inolestation. The trial court sentenced hiin to 2l 0 inonths to life imprisonment
I`_,AW AND ANALYSIS A. Fai[i,¢re to give a Petrich instruction l\/lr. Logan contends the trial court erred because it did not instruct the jury on
unaniinity. He argues a unanimity instruction was required because the State presented
evidence ofnaultiple acts that could constitute the crimes charged
No. 330>22-2-1]1 Stai‘e v. Logon
" ‘ To convict a person of a criminal charge, the juiy must be unanimous that the defendant committed the criminal act.’ " Srare v. Bobenhouse, 166 Wn.Zd 881, 392, 214 93d 907 (2()()9) (quoting Siczte v. Comdri`llo, 115 Wn.2d 6(), 63, 794 P.Zd 850 (1990)). When the evidence iiidicates that several distinct criminal acts `have been com_rnitted, but the defendant is charged with only one count of criminal conduct, jury unanimity must be protected. Stdfe Pefri`C//z, lOl Wn..'£d 566, 572, 683 P.Zd 173 (1984), overruled in part on other grounds by Sfdfe v. Kz`tchelt, 110 Wn.Zd. 403, 406 n.l, 756 P.Zd 105 (1938)_, abrogated in part on other grounds by fn re Pers. Resfrdz'nf o‘fSIoc/’€wel!, 179 Wn.Zd 588, 316 P.Bd 1007 (20l4). T`o protect unanimity, the State may elect on which act it relies for conviction, or the jtiry must be instructed that all 12 jurors inust agree that the same underlying criminal act has been proved beyond a reasonable doubt. Sloz‘e v. Bdrrz`ngton, 52 Wn. App. 478, 480, 761 P,Zd 632 (1988). Washington labels such ajury instruction a "Perrz`ch iiistruction." A triai court’s failure to give a Pel'rz`ch instruction when warranted violates a defendant’s state constitutional right to a unanimous jury verdict and the United States constitutional right to a jury tria.i. Camczrillo, l 15 Wn.Zd at 64 (quoting Kirchen,
no wade ar 409).
No. _33022-2-111 Srczte v. »Lr)gan
l\levertheless, the invited error doctrine precludes appellate review of an alleged error affecting even a constitutional right of a defendan_t. Sraz‘e v. Henderson, l l¢l Wn.Qd 867, 870-71, 792 P.Zd 5l4 (199()). "The invited error doctrine is a strict rule that preciudes a criminal defendant from seeking appellate review of an error he helped create." Srare v. Carson, l79 Wn. App. 961 973, 320 P.3d 185 (2014), aff’d, l84 Wn.?.d 207, 357 P.Bd §064 (2,()15).
Here, Mr. Logan’s proposed jury instructions for both charged offenses allowed him to be convicted if the jury found the criminal conduct to have occurred from "on or about the Fall of 201 l to February 16,'2012." CP at -45, 47. The trial court’s jury instructions provided a substantially similar broad tiniefraine. When the trial court asked whether l\/lr. Logan had any comments to the court’s instructions, defense counsel answered, "No exceptions or objections from the defense, either." RP at 174. We co'ricl_ude that i\/lr. Logan, by proposing near identical instructions as those actually given by the trial court, by not proposing a Perric//z instruction, and by not objecting to the court’s instructions, has invited the error he now raises. We decline to review this alleged
€I'T`OI`.
No. 33()22-2»£11 Stczz‘e v. Logczn
Affzrrned. A maj ority of the panel hats determined this opinion will not be printed in the
Wa.s,hington Appellate Reports, but it Wiii be filed for public record pursuant to
RCW 2.06.040. _ m ' _ B _ §§
LaWrenoe~Berrey, A.C..T. § § j. WE CONC UR:
__..…_._,
§ Q,,_W,,Qyo
`.Pen eli, J.