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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

TRENT WAYNE TYLER,

Appellant.

 No. 83461-4-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — The State charged Trent Wayne Tyler with multiple counts 

related to sexual assault of his younger half-sister, S.T. On appeal, he alleges 

violation of his constitutional right to a unanimous jury verdict. We accept the 

State’s concession that unanimity was not assured for two of the convictions and 

reversal is required on those counts. We affirm the remaining convictions.

FACTS

Tyler and S.T. are half-siblings. Tyler was approximately 11 years older 

than S.T. and acted as a father figure to her. When she was 19 years old, S.T. 

reported that Tyler had sexually assaulted her. She alleged that the assaults 

began when she was 10 years old and continued until she was 18 years old. 

The State charged Tyler with eight counts related to S.T.’s allegations: (1) 

child molestation in the first degree; (2) attempted rape of a child in the second 

degree; (3) child molestation in the second degree; (4) rape of a child in the third 

degree; (5) child molestation in the third degree; (6) incest in the first degree; (7) 

incest in the second degree; and (8) communicating with a minor for immoral 
No. 83461-4-I/2

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purposes. A jury failed to reach a verdict on any of the charges and the court 

declared a mistrial. 

The State retried Tyler on all charges. The jury acquitted him of rape of a 

child in the third degree as charged in count 4, child molestation in the third 

degree as charged in count 5, and communication with a minor for immoral 

purposes as charged in count 8. The jury convicted Tyler on the other counts. 

Upon sentencing, the parties agreed that count 3 for child molestation in 

the second degree merged with count 1, child molestation in the first degree. 

The two incest charges, counts 6 and 7, also merged. The court sentenced Tyler 

to a standard range indeterminate sentence of 130 months to life in incarceration. 

Tyler appeals.

ANALYSIS

Tyler argues the trial court violated his right to a unanimous verdict by 

failing to elect the specific acts underlying each charge or issue a Petrich1

instruction to the jury. 

Washington criminal defendants have a constitutional right to a unanimous 

jury verdict. WASH. CONST. art. I, sec. § 21, State v. Ortega-Martinez, 124 

Wn.2d 702, 707, 881 P.2d 231 (1994). When the prosecution presents evidence 

of multiple acts of misconduct which could form the basis of a charged count, the 

State must elect the act to support a conviction or the court must instruct the jury 

to agree on a specific criminal act. State v. Coleman, 159 Wn.2d 509, 511, 150 

 1 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), abrogated in 

part on other grounds by State v. Kitchen, 110 Wn.2d 403, 405–06, 756 P.2d 105 

(1988).
No. 83461-4-I/3

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P.3d 1126 (2007). “An election or instruction that all 12 jurors must agree that 

the same underlying act has been proved beyond a reasonable doubt assures a 

unanimous verdict on one criminal act.” Coleman, 159 Wn.2d at 512. 

“Whether or not a unanimity instruction was required in a particular case is 

a question of law reviewed de novo.” State v. Lee, 12 Wn. App. 2d 378, 393, 460 

P.3d 701, review denied, 195 Wn. 2d 1032, 468 P.3d 622 (2020). A unanimity 

instruction is not necessary where the State chooses to elect an act as the basis 

for conviction. State v. Carson, 184 Wn.2d 207, 229, 357 P.3d 1064 (2015). For 

an election to be effective, the State must tell the jury which act to rely on in its 

deliberations. Carson, 184 Wn.2d at 227. Without either an election or a 

unanimity instruction in a multiple acts case, omission of the unanimity instruction 

is presumed prejudicial. Coleman, 159 Wn.2d at 512. “A conviction beset by this 

error will not be upheld unless the error is harmless beyond a reasonable doubt.” 

Coleman, 159 Wn.2d at 512. The error is harmless only if no rational juror could 

have a reasonable doubt as to any of the incidents alleged. Coleman, 159 

Wn.2d at 512. 

Counts 3 and 7

The State concedes that unanimity was not assured for count 3 (child 

molestation in the third degree) and count 7 (incest in the second degree). The 

State acknowledges that the testimony described multiple acts that could 
No. 83461-4-I/4

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constitute second degree child molestation2 and second degree incest3. Tyler 

testified and denied the acts. Given the controverted testimony, the failure to 

elect the acts to support these two charges or provide unanimity jury instructions 

to the jury was prejudicial. Tyler’s right to a unanimous verdict was violated on 

counts 3 and 7 and reversal is required for these convictions.

Counts 1, 2, and 6

The State contends that we should decline review of Tyler’s arguments 

concerning unanimity in counts 1, 2, and 6 because he raises the issue for the 

first time on appeal. 

We “may refuse to review any claim of error which was not raised in the 

trial court.” RAP 2.5(a). RAP 2.5(a) is permissive and does not automatically 

preclude introduction of a new issue on appeal. Pulcino v. Fed. Express Corp., 

141 Wn.2d 629, 649, 9 P.3d 787 (2000) overruled on other grounds by McClarty 

v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844 (2006). As an exception to the 

rule, a party may raise a manifest constitutional error affecting a constitutional 

right for the first time on appeal. RAP 2.5(a)(3). “The defendant must 

demonstrate that ‘(1) the error is manifest, and (2) the error is truly of 

constitutional dimension.’ ” State v. Dillon, 12 Wn. App. 2d 133, 139–40, 456 

 2 “A person is guilty of child molestation in the second degree when the 

person has, or knowingly causes another person under the age of eighteen to 

have, sexual contact with another who is at least twelve years old but less than 

fourteen years old and the perpetrator is at least thirty-six months older than the 

victim.” RCW 9A.44.086(1). 

3 “A person is guilty of incest in the second degree if he or she engages in 

sexual contact with a person whom he or she knows to be related to him or her, 

either legitimately or illegitimately, as an ancestor, descendant, brother, or sister 

of either the whole or the half blood.” RCW 9A.64.020(2)(a). 
No. 83461-4-I/5

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P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198 (2020) (quoting State 

v. O'Hara, 167 Wn.2d 91, 217 P.3d 756 (2009)). “An error is manifest when it 

results in actual prejudice.” Dillon, 12 Wn. App. 2d at 140. 

While the State argues that any error related to jury unanimity is not 

manifest as to counts 1, 2, and 6, the concession that Tyler’s constitutional rights 

were violated leads us to conclude that a thorough evaluation of all counts is 

necessary. We exercise our discretion to review the remaining counts in order to 

ensure that Tyler received the rights guaranteed by our constitution. 

Tyler claims that the State argued multiple acts of sexual contact 

supporting counts 1, 2, and 6 but failed to elect supporting actions or request a 

jury unanimity instruction. However, S.T.’s trial testimony establishes three 

specific acts and the State’s closing argument pairs these acts with the

associated counts. 

Count 1 charged Tyler with child molestation in the first degree for sexual 

contact with S.T. when she was less than 12 years old as defined in RCW 

9A.44.083(1). The court’s instructions to the jury included that conviction for first 

degree child molestation required proof beyond a reasonable doubt that Tyler 

had sexual contact with S.T. when she was less than 12 years old. The 

instructions defined “sexual contact” as “any touching of the sexual or other 

intimate parts of a person done for the purpose of gratifying sexual desires of 

either party.” 

S.T. described a specific incident of sexual contact that occurred when 

she was around 10 years old. Tyler and S.T. went for a drive in his car when he 
No. 83461-4-I/6

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began touching her leg and inner thigh. S.T. testified that Tyler eventually put his 

hand down her pants and started touching her vagina. In closing arguments, the 

State referred to this incident as evidence that Tyler had sexual contact with S.T. 

when she was less than 12 years old as required for child molestation in the first 

degree.4 The State clearly designated this as the act the jury should consider for 

the first degree molestation count. A unanimity instruction was not necessary for 

count 1.

Count 2 charged Tyler with attempted rape of a child in the second 

degree. Second degree rape of a child occurs when “when the person has 

sexual intercourse with another who is at least twelve years old but less than 

fourteen years old and the perpetrator is at least thirty-six months older than the 

victim.” RCW 9A.44.076(1). The court instructions required the jury to find that 

Tyler performed “any act that is a substantial step toward” having sexual 

intercourse with S.T. when she was between 12 and 14 years of age. 

S.T. testified about an event that occurred in the bathroom at Tyler’s 

house. Tyler “started touching [her] and getting forceful with [her].” He pulled 

down S.T.’s pants and tried to have sex with her. He was interrupted by the 

sound of his baby crying in another room. This was the only testimony 

 4 The State cited this incident as evidence of second degree child 

molestation but provided the elements of first degree molestation. “What 

evidence do you have that the defendant committed the crime of child 

molestation in the second degree? Now, this is when you have sexual contact 

with a person that is less than 12 years old.” It is clear from the elements and the 

State’s emphasis that S.T. was “probably ten at that time. So she is definitely 

under 12,” that the State was referring to first degree child molestation as 

charged in Count 1. 
No. 83461-4-I/7

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supporting attempted rape of a child. During closing argument, the State 

specifically referenced this incident in the discussion of count 2. Because S.T. 

testified about only one act that could support a conviction of attempted rape of a 

child in the second degree, a unanimity instruction was not required. 

In count 6, the State charged Tyler with first degree incest under RCW 

9A.64.020(1)(a). A conviction for first degree incest required the jury to find that 

Tyler had engaged in sexual intercourse with a person he knew to be related to 

him by blood. The definition of sexual intercourse provided to the jury included 

sexual contact between “the sex organs of one person and the mouth . . . of 

another.” S.T. testified to only one incident of sexual intercourse, when Tyler 

forced her to perform oral sex on him. As the State presented evidence of only 

one act of sexual intercourse that would support a charge of incest in the first 

degree, a Petrich instruction was not necessary. 

We affirm counts 1, 2, and 6, but reverse counts 3 and 7 and remand for 

resentencing. 

WE CONCUR: