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### COURT OF APPEALS 

### OF THE 

### STATE OF 

## WASHINGT ,

# NN 0 STATE OF WASHINGTON, 

### By _ 

### TON DIVISION II Respondent.
v. AARON MICHAEL WILLIAMSON, Appellant. No. 45907 - 8 -II

UNPUBLISHED OPINION
LEE, J. — 

### Ajury found Aaron Michael Williamson guilty ofindecent liberties by forcible compulsion. Williamson appeals, arguing that (1) the trial court's limitingjury instruction for ER 404(b) evidence was in error; (2) histrial counsel was ineffective fornot objecting to the improper 

### limiting instruction; (3) the prosecutor committed misconduct; (4) his trial counsel was ineffective 

## by notobjecting to-

the prosecutor's improper conduct; and (5) the trial court erroneously imposed
an exceptional sentence based on consideration of good time credit. Because we hold the trial court gave an erroneous instruction for the evidence admitted under ER 404(b), we reverse and remand. FACTS

Before trial began, the State moved to admit evidence ofWilliamson' s prior acts ofsexual misconduct against his stepdaughter, L. 1, 

### starting in California when she was four years old and 

### continuing after the family moved to Washington when L. was approximately twelve years old. The State argued that this evidence was necessary to show Williamson's lustful disposition

1 We use initials to protect L.' s privacy interests.No. 45907 - 8 -II 

### towards L. The trial court excluded evidence ofthe sexual abuse that occurred in California, but admitted the evidence of sexual abuse that occurred in Washington under ER 404(b) for the 

### purpose ofshowing Williamson' s lustful disposition towards L. 

### At trial, L.testified that Williamson previously would touch her inappropriately at least a couple of times per month. The charged incident took place in the spring of 2011. Williamson 

## came, uninvited,into L.'sbedwith her. L.was laying on herside, andWilliamson crawled inand lay behind her. 

### According to L., Williamson told her, " I don' t want to go in you but Ijust want to get some physical relief." Verbatim Report of Proceedings ( VRP) at 267. When L. told him n] o," 

### he pleaded with her,reached his hand around her hip, and pulled hertowards him. VRP at 269, 319. Williamson' s hand went into her pajama bottoms to her pubic hairline. L. put her hand
on his to make him stop. 

### L. used two hands, and tried to roll away, to make Williamson stop. Williamson then either pulled his hand out ofher pants or L. pulled his hand out. About two years later, in March of 2013, L. told her mother about the sexual abuse. 

### Williamson also testified attrial. Accordingto Williamson,when he was confronted about L.' s allegations, he admitted to L.' s mother, his pastor, his pastor' s wife, his mother, and his sister that he molested L. 

### Williamson then turned himself in to the Jefferson County Sheriff. For the most part, Williamson' s version of the prior sexual abuse was consistent with L.' s version. 

### However, with regard to the charged incident, Williamson denied that L. resisted or turned away 

### to prevent his hand from going past her pubic line.

Williamson stipulated to the 

### following aggravating factors: ( 1) "[ t]he defendant knew or 

### should have known that the victim ofthe current offense was particularly vulnerable or incapable of resistance "; (2) "[ 

### t]he offense was part ofan ongoing pattern ofsexual abuse ofthe same victim 2No. 45907 -8 -II under the age of 18 years, manifested 

### by multiple incidents of a prolonged period oftime ";and (3) 

### t]he defendant used his orherposition oftrust,confidence, orfiduciary responsibilityto facilitate the commission ofthe current offense." Clerk' s Papers (CP) at 45. Williamson also stipulated that the 

### following facts supported the aggravating factors: ( 1) "[ s] exual abuse started around age four
or five and continued until age 17 when L. moved out of the home "; ( 2) "[ a] nal penetration occurred between the ages of4 and 5 on at least two separate occasions "; (3) "[ 

### f] ondling ofbreast, 

### buttocks, and pubic areas occurred severaltimes amonth,both overand under clothing foraperiod of 13 years." CP at 45. 

## Thejuryconvicted Williamson ofindecent liberties byforcible compulsion. Williamson's offenderscore was zero. Based, in part,on the stipulated aggravating circumstances, thetrial court sentenced Williamson to an exceptional indeterminate sentence of 17 years to life. Williamson appeals. ANALYSIS Williamson argues that he is entitled to reversal because the trial court gave an erroneous 

### jury instruction. 

### We hold the trial court'sjury instruction 15 was in error because it classified evidence ofWilliamson' s prior bad acts as " offenses." CP at 38. 

### Generally, a party may not raise an issue for the first time on appeal. RAP 2. 5( a). 

### However, an appellant may raise an issue for the first time on appeal ifthe error is a " manifest
error affecting a constitutional right." RAP 2.5( a)(3). 

### An alleged error to ajury instruction can 

### be a manifest error affecting a constitutional right and may be raised for the first time on appeal. State v. Stearns, 119 Wn.2d 247, 250, 830 P.2d 355 ( 1992). The error is " manifest" if Williamson
can show that the asserted error had " practical and identifiable consequences at trial." State v. 3No. 45907 -8 -II

Grimes, 165 Wn.

### App. 172, 186 - 87, 267 P. 3d 454 (2011), review denied, 175 Wn.2d 1010 (2012). 

### To determine whether the erroneous instruction affects a constitutional right, this court analyzes 

### whether the error implicates a constitutional interest, as opposed to another form of trial error. State v. O' Hara, 167 Wn.2d 91, 98 -99, 217 P.3d 756 (2009).

At trial, Williamson did not offer any proposed 

### jury instructions. Rather, Williamson agreed without exception to the State' s proposed instructions. 

### Specifically, Williamson did not 

### objecttojury instruction 15, which he now contests. Jury instruction 15 states:

Evidence has been admitted in this case regarding the defendant's commission of previous sex offenses. 

### The defendant is not on trial for any act, conduct, or offense not charged in this case. Evidence ofprior sex offense" [ sic] on its own is not sufficient to prove the defendant guilty of the crime charged in this case. The State has the burden of 

### proving beyond a reasonable doubt that the defendant committed each of the elements of the crime charged. CPat38. 

### Here, manifest error was present in characterizing Williamson' s prior bad acts as evidence of "previous sex offenses." CP at 38 ( emphasis added). 

### Characterizing the evidence as " previous
sex offenses," rather than " previous sex acts," was in error because no evidence was admitted 

### indicating Williamson had any previous sex offenses. In fact, Williamson had a prior offender
score of zero; he did not have any previous offenses of any kind. Therefore, the instruction was in error because it was not supported 

### by substantial evidence. 

### See State v. Clausing, 147 Wn.2d 620, 626, 56 P. 3d 550 (2002).

The error was manifest because the difference between an " offense" and an " act" bears both " practical and identifiable consequences at trial." Grimes, 165 Wn. 

### App. at 186 -87. 

### By calling the past sexual acts " offenses," 

### thejurywas misledto believe thatthe past sexual acts, were 4No. 45907 -8 -II

offenses, and therefore, the current act, which was similar to the past sexual acts, was also an offense." 

### This is a practical and identifiable consequence ofthe erroneous instruction, and thus, the error is manifest. The error implicates a constitutional concern because it violated Williamson' s right to a fair trial. O' Hara, 167 Wn.2d at 98 -99. 

### Accordingly,thetrial court'sjury instruction 15 was in errorbecause itclassified evidence of Williamson' s prior bad acts as " offenses." 

### We reverse and remand.2 

## A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. Lee, J. We concur:



### 2 Because we reverse and remand based on the trial court's giving an erroneousjury instruction, we do not reach the other issues raised on appeal. 5