### FILED MARCH 31, 2016 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent,

v. MICHAELJ. MCNEARNEY, Appellant. ) ) ) ) ) ) ) ) ) No. 32667-5-111

OPINIONPUBLISHED INPART

SIDDOWAY, C.J.

- Michael McNeamey appeals his convictions for second degree theftby deception and fourth degree assault with sexual motivation. Forthe first time on appeal, he argues thatbecausethe Statepresented evidence oftwo assaults without electingthe one onwhich it relied for its charge, the trial court erred in failing toprovide thejurywith a Petrich 1instruction. He also contends the prosecuting attorney committed misconduct in closing argumentbytrivializingthe State'sburden ofproof.

1State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruledinparton othergrounds byState v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), abrogatedin parton othergrounds byIn re Pers. Restraintof Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014).No. 32667-5-III State v. McNearney

Inthepublishedportion ofthis opinion, we address the assignment oferror for failure to give a Petrich instruction. Because the two acts ofassault were against the

same victim, occurred within a matter ofmoments at the same general location, and were alleged to be ongoing sexual harassment, we conclude as a threshold matterthat if constitutional error did occur, it was not manifest. Ifthe two acts were not a part ofa continuous course ofconduct, the trial court could certainly perceive them to be, absent argument otherwise from Mr. McNeamy. We decline to considerthe claimed error for the first time on appeal. In the unpublishedportion ofthis opinion, we reject Mr. McNeamey's argument thatthe prosecutor engaged in misconduct. Forthatreason, andbecauseMr. McNeamey raises no viable issue in his statement ofadditional grounds, we affirm. FACTS OnFebruary 26, 2014, Michael McNeameypatronizedthe lounge onthe main floor ofthe Davenport TowerHotel in Spokane. While there, Mr. McNeamey and his female companion made comments to and about one ofthe cocktail waitresses that the waitress perceived as sexual andthat were unwelcome. Theytalked about wanting to take the waitress "upstairs"2 and commented onher "rear-end." Report ofProceedings (RP) at 98. At one point, as the waitress walkedpastMr. McNeamey, hereached under

2 Atthe Davenport Towers, hotel rooms are "upstairs" from the lounge. 2No. 32667-5-111 State v. McNearney

the tray she was holding and "grabbed" hervaginal area. RP at 99-100, 115. While grabbing her, he said, "I wantthat." RP at 99. Mr. McNearney got up to leave the lounge area about five or six minutes later, and

as he was leavingthe lounge area, he again touched the same cocktail waitress. This time, he reached out and touchedher stomach. The second touching was caught on the hotel's surveillance video. The State charged Mr. McNearney with a single count offourth degree assault with sexual motivation. The same information also charged Mr. McNearney with second degree theft by deception. The theft charge was based on entirely separate events. Ajointtrial was held onthe two charges. The State presentedthe waitress's testimony that Mr. McNearney grabbed hervaginal area and the surveillance video showingthat he touchedher stomach moments later. The State did not elect which of these unwanted touches was the basis for the assault charge. Mr. McNearney neither requested a Petrich instruction nor objected to the court'sjury instructions. The court did not instructthejury on unanimity. In its rebuttal to Mr. McNearney's closing argument, the State attempted to illustrate the reasonable doubt standardwith a story about Bigfoot, the mythical ape-man. Mr. McNearney did not object. Thejuryreturned a verdict ofguilty onboth counts, along with a special verdict that the assault was committed with sexual motivation. Mr. McNearney appeals. 3No. 32667-5-III State v. McNearney

ANALYSIS A. Jury Unanimity Mr. McNearney contends he was denied his right to a unanimousjuryverdict under the Sixth Amendment ofthe United States Constitution because the Statepresented evidence oftwo assaults (either ofwhich could have constituted the charged crime), did not elect which act it was relying on to supportthe conviction, and the trial court failed to instruct thejury on the requirement ofunanimity. "In Washington, a defendant may be convicted only when a unanimousjury concludes that the criminal act charged in the information has been committed." Petrich, 101 Wn.2d at 569. "Whenthe evidence indicates that several distinct criminal acts have been committed, but [the] defendant is charged with only one count ofcriminal conduct, juryunanimity mustbe protected." Id. at 572. To adequately protectjuryunanimity, eitherthe State must electthe specific act on which it relies for the crime charged, or the court must give thejury a "Petrich" instruction, explaining that all "12jurors must agree that the same underlying criminal act has beenproved beyond a reasonable doubt." Id. "[F]ailure to follow one ofthese options is error, violative ofa defendant's state constitutional right to a unanimousjuryverdict and United States constitutional right to a jurytrial." State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988). The requirement for either an election by the State or aPetrich instruction applies only when the State presents evidence ofseveral distinct criminal acts. State v. Handran, 4No. 32667-5-111 State v. McNearney
113 Wn.2d 11, 17, 775 P.2d 453 (1989). "Itdoes not apply where the evidence indicates

a 'continuing course ofconduct.'" Id. (quotingPetrich, 101 Wn.2d at 571). Generally, evidencethat the charged conduct occurred at different times and places tends to show that several distinct acts occurred rather than a continuing course ofconduct. Id. By contrast, evidence that the defendant engaged "in a series ofactions intended to secure the same objective" indicates a continuing course ofconduct. State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). In determining whether an act is one of several distinct criminal acts or part ofa continuing course ofconduct "'the facts mustbe evaluated in a commonsense manner.'" Handran, 113 Wn.2d at 17 (quotingPetrich, 101 Wn.2d at 571). The State concedes it did not elect which ofthe two touchings it was relying on to prove the assault charge and that the court did not give a unanimity instruction. But in addition to arguing the assaults were part ofa continuing course ofconduct, it makes a threshold argument that

### Mr. McNeamey waived any instructional errorby failing to raise it at trial. Mr. McNeamey argues that the error is manifest constitutional error that can be raised for the first time on appeal. RAP 2.5 generally precludes an appellant from raising an issue for the first time

on appeal. One exception to this rule exists when an appellant can demonstrate a "manifest error affecting a constitutional right." RAP 2.5(a)(3). "To meet RAP 2.5(a) and raise an error for the first time on appeal, an appellant must demonstrate (1) the error 

### 5No. 32667-5-111 

### State v. McNearney
is manifest, and (2) the error is truly ofconstitutional dimension." 

### State v. 

### 0 'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). The constitutional error exception "is not intended to afford criminal defendants a means for obtaining new trials wheneverthey can 'identify a constitutional issue not litigated below."' 

### State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1998) (quoting 

### State v. Valladares, 31 Wn. App. 63, 76, 639 P.2d 813 (1982), 

### rev'dinparton othergrounds, 99 Wn.2d 663, 664 P.2d 508 (1983)). An error is considered manifest when there is actual prejudice. The focus ofthis analysis is on whetherthe error is so obvious on the record as to warrant appellate review. 

### O'Hara, 167 Wn.2d at 99-100. An appellant can demonstrate actual prejudice by making a plausible showingthat the asserted error had practical and identifiable consequences in the trial. 

### State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015) (citing 

### State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011)). "[T]o determine whether an error is practical and identifiable, the appellate court must place itselfin the shoes ofthe trial courtto ascertain whether, given what the trial court knew at that time, the court could have corrected the error." 

### O'Hara, 167 Wn.2d at 100. Importantly, "[i]t is not the role ofan appellate court on direct appeal to address claims where the trial court could not have foreseen the potential error orwhere the prosecutor or trial counsel could have beenjustified in their actions or failure to object." Id.

6No. 32667-5-111 State v. McNearney

Given the evidence presented, we find thatthe failure ofthe courtto give a Petrich instruction, iferror at all, does not merit review underthe RAP 2.5(a)(3) exception. If

error occurred, it was surely constitutional, see Fiallo-Lopez, 78 Wn. App. at 725; State v. Hepton, 113 Wn. App. 673, 684-85, 54 P.3d 233 (2002); State v. Camarillo, 115 Wn.2d 60, 63 n.4, 794 P.2d 850 (1990), butMr. McNeamey has failed to demonstrate that it was manifest. Placing ourselves inthe shoes ofthe trial court, it was not at all apparentthat the two touchings couldbe viewed as separate acts, as opposedto a continuing course of conduct. Both acts wereprecededby Mr. McNeamey's sexual innuendo. Within moments ofhis suggestive sexual statements, Mr. McNeamey grabbed the waitress in the vaginal area and said "I wantthat." RP at 99. Within five or six minutes, Mr. McNeamey again touched the waitress in an inappropriate manner. While the second touching occurred after Mr. McNeameyhadrisen from his seat and was leaving the lounge area, both occurred in or ontheperimeter ofthe lounge area ofthe main floor of the Davenport Tower. Ifthejurybelievedthe waitress-and it believedher enoughto find Mr. McNeamey guilty-all ofMr. McNeamey's objectionable actions were a part of

an ongoing crass and demeaning "flirtation/molestation" that tookplace overthe amount oftime ittookMr. McNeameyto finish his drink. Mr. McNeamey now argues that because there was a break intime and a change in location betweenthe two touchings, they lack the continuity necessary to show an 7No. 32667-5-111 State v. McNearney ongoing course ofconduct and were, instead, separate and distinct events. But in analyzing the waiver issue, we do not engage in the analysis the trial court wouldhave conducted ifMr. McNeameyproposed aPetrich instruction or objected and thereby brought the unanimity issue to the trial court's attention. We focus on what was manifest where no objection was raised and no such arguments were made. We also note that the trial court reasonably would not expectthe defense to argue the acts were separate and distinct. Thejury instruction conference was conductedby the trial court before the close ofthe State's case. Had Mr. McNeamey's attorney requested

a unanimity instruction, he would have essentially conceded that Mr. McNeamey's conduct lent itselfto more than one criminal charge. The State could have moved to amend the criminal information and add an additional count offourth degree assault.3 See CrR 2.l(d). A second assault conviction would have exposed Mr. McNeamey to an additional year ofincarceration. Forthis additional reason, defense acquiescence in the court's instructions and the State'sposition wouldhave seemed natural and appropriate to the trial court.

3 The State suggests that had this occurred, had the State beenpermitted to amend the information to allege an additional count offourth degree assault, and had Mr. McNeamey been convicted ofboth crimes, the argument on appeal would have been ofa doublejeopardyviolation. See, e.g., State v. Brown, 159 Wn. App. 1, 9, 248 P.3d 518 (2010). 8No. 32667-5-111 State v. McNearney

Because the issue was notpreserved for review and no exception exists, we decline to reviewMr. McNeamey's challenge. We affirm. A majority ofthe panel having determined that only the foregoing portion ofthis opinion will beprinted in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuantto RCW2.06.040, it is so ordered. Unpublished text follows B. ProsecutorialMisconduct Mr. McNeamey complains thatprosecutorial misconduct requires he receive a
newtrial. To prevail on a claim ofprosecutorial misconduct, a defendant must showthat the prosecutor's conductwas both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012) (citing State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011)). Where, as here, the defendant did not object at trial, the defendant is deemed to have waived any error, unless the prosecutor's misconduct was so flagrant and ill intentioned that it could not have been neutralizedby a curative instruction. Emery, 174 Wn.2d at 760-61 (citing State v. Stenson, 132 Wn.2d 668, 726-27, 940 P.2d 1239 (1997)). In analyzing prejudice, this court does not look at the comment in isolation, but in the context ofthe total argument, the issues in the case, the evidence, and the instructions 9

### No. 32667-5-III State v. McNearney 

### given to thejury. State v. Yates, 

### 161 Wn.2d 714, 774, 168 P.3d 359 (2007). It is presumed thejury followed the court's instructions. State v. Grisby, 

### 97 Wn.2d 493, 499, 647 P.2d 6 (1982).

Jury: Here, the challenged conduct was a result ofthe following story the State told the

Now, there's this story thatprosecutors will sometimes tell to make an example ofwhatreasonable doubt may or may not be, and sometimes it may seem like you're making light ofthe situation; so please forgive me. I'm not meaning to make light ofthe situation to make this seem any less serious than it is. Butreasonable doubt, you can almost look at it-andI'll justtell this story. You are home. It's a rainy day. You'rehome, and you're there with your daughter, your granddaughter, whatever the case may be; Sally. We'll call her Sally. Sally is about 8years old. It's arainy day. Sally wanted to go out and play. She can't. She can'tbecause it'sraining. So you decide, I got to do somethingto get Sally entertained. Let's go make some brownies. You go in and make the brownies. You cantell Sally's so excited. She's mixing away. She's thinking about getting that hot brownie and getting to eat it. You start to putthe brownies in the oven. You putthem in the oven. You'retelling Sally, [w]e're going to be eating these here in a few minutes. You pull them out ofthe oven. They're still piping hot. The phone rings. You've got to go into the living room to go answer that-answer that phone; it's in the living room. And you can tell Sally'sjustreally, again, chomping at the bit to get at those brownies. Butyou don'twant her to get at them because she might bumherself. You go out into the living room. You answer the call. You come back a few minutes later. What do you find? You find that there's some brownies missing from the tray. You look at Sally. Sally has a couple of crumbs on her face. You go, Sally, Itold you don't eat the brownies. You're going to get burnt. She goes, Mom, Grandma, whateverthe case may be, I didn't eat them. Bigfoot ate them. 10No. 32667-5-111 State v. McNearney Bigfoot ate them? Well, that's ridiculous. Then you think, well, I don'thave any proofBigfoot didn't eat them. But is that areasonable doubt that Sally ate those brownies? Again, you didn't actually see her eat them. Sure, you might have some tiny doubt after you kind ofget pastthe fact that, boy, that sounds ridiculous. But is that reasonable doubt? Considerthatwhen considering reasonable doubt. Considerthat when considering all ofthe elements ofthe offense, the testimony that you have heard. And again, the state is asking you to return a verdict ofguilty to the two offenses charged along with the enhanced-the special findings. Thankyou. RP at 359-61. The State argues on appeal that the prosecutor told this story in response to defense counsel's argumentthatbecause there was no video showing Mr. McNearney grabbing the waitress, areasonable doubt existed as to whether or not the waitress was fabricating the allegations. In support ofhis argument on appeal that the analogy was improper, Mr. McNeamey cites State v. Anderson, 153 Wn. App. 417, 220 P.3d 1273 (2009); State v. Walker, 164 Wn. App. 724, 265 P.3d 191 (2011), review granted, cause remanded, 175 Wn.2d 1022, 295 P.3d 728 (2012); and State v. Johnson, 158 Wn. App. 677, 243 P.3d 936 (2010). These cases are distinguishable. TheAnderson court recognized that analogizing the reasonable doubt standard to "everyday decisions" may be improper ifit trivializes the gravity ofthe State's burden. The prosecutor's comments discussing the reasonable doubt standard in the context ofeveryday decision making were also improper because they minimized the importance ofthe reasonable doubt standard and ofthe 11No. 32667-5-111 State v. McNearney jury's role in determining whether the State has met its burden. By comparingthe certainty required to convict with the certainty people often require when they make everyday decisions-both important decisions and relatively minor ones-theprosecutortrivialized and ultimately failed to convey the gravity ofthe State's burden and thejury's role in assessing its case. 153 Wn. App. at 431. There, the prosecutor argued people are convinced beyond a reasonable doubt in their everyday life when they choose to leave their children with a babysitter or when they choose to change lanes on a freeway. 

### Id at 425. The court concludedthatthese comments, while improper, were not flagrant or ill intentioned. 

### Id at 432.By contrast, in Walker, the court determined that the prosecutor's remarks were improperwhen the prosecutor "arguedthat the reasonable doubt standard 'is a common standard that you apply every day' and compared it to having surgery and leaving children with a babysitter." Walker, 164 Wn. App. at 732.4 The court determined the cumulative effect ofthe "everyday decision" argument, along with error from other improper arguments-including a "fill in the blank" argument, a "declarethe truth" argument, and a misstatement ofthe law on self-defense-amountedto prejudicial error.

4 Washington's Supreme Court granted review ofthe matter and remanded the case for reconsideration in light ofits decision in State v. Emery, 174 Wn.2d 741. On remand, Division Two ofthis court reaffirmed that the arguments were flagrant and ill intentioned and therefore improper, and that the cumulative error was so prejudicial that it could not have been remedied by a curative instruction. State v. Walker, noted at 173 Wn. App. 1027 (2013), review denied, 177 Wn.2d 1026, 309 P.3d 504 (2013). 12No. 32667-5-111 State v. McNearney
164 Wn. App. at 737-38. The "fill in the blank" argument, which is not at issue on this appeal, is improperbecause it subverts the presumption ofinnocence. SeeAnderson, 153 Wn. App. at 431. Finally, in Johnson, the prosecutor analogized the reasonable doubt standard to a partially completed puzzle, explaining that ifyou canputhalfthe puzzle together you know what the wholepicture is. 158 Wn. App. at 684-85. The court found this trivialized the State's burden and was improper. Id. The courtreversed and remanded for a new trial. Id. at 685-86. Here, the Bigfoot analogy, while silly, did not trivialize the State's burden of proof. Instead, immediately before telling the Bigfoot story, the prosecutor imploredthe jurytoPleasepay attention to reasonable doubt. We're counting on you to pay attention to reasonable doubt. Because when you got selected as ajuror a couple ofdays ago, no one told you you need to checkyour common sense at the door, folks. We want you to use your common sense and apply it to the definition ofreasonable doubt. RP at 359. Taken in context, as it must be, the Bigfoot analogy was intended as a response to Mr. McNeamey's argument that, because there was no video ofMr. McNeamey grabbing the waitress, thejury could have reasonable doubt. Whether it was
an effective response is questionable; certainly Mr. McNeamey's lawyer had a more effective argument for reasonable doubt than that Bigfoot grabbed the cocktail waitress.

13No. 32667-5-111 State v. McNearney
And finally, the courtprovidedthejury with an instruction on reasonable doubt.5 Ajury is presumedto follow the court's instructions. The State did not define reasonable doubt. Itmerely asked thejuryto use its

common sense to determine whether a reasonable doubt existed. Because the statements
were not improper, Mr. McNearney has failed to show prosecutorial misconduct. C. Statement of Additional Grounds In apro se statement ofadditional grounds (SAG), Mr. McNearney raises two. In both, he argues he received ineffective assistance ofcounsel. A courtreviewing a claim ofineffective assistance ofcouncil will engage in a two-part test. First, the defendant must show he received deficientrepresentation. State

v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995) (citing Stricklandv. Washington, 466 U.S. 668, 688-89, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Deficientperformance is determined using an objective standard ofreasonableness. State v. Stenson, 132 Wn.2d

5The instruction reads: A reasonable doubt is one for which a reason exists and may arise from the evidence or lack ofevidence. Itis such a doubt as would exist in the mind ofa reasonable person after fully, fairly, and carefully considering all ofthe evidence or lack ofevidence. If, from such consideration, you have an abiding beliefin the truth ofthe charge, you are satisfied beyond a reasonable doubt. Clerk's Papers at 28.

14No. 32667-5-111 State v. McNearney 668, 705-06, 940 P.2d 1239 (1997). Second, the defendant must show he or she suffered prejudice as a result ofthe deficient performance. Mierz, 127 Wn.2d at 471 (citing Strickland, 466 U.S. at 687). Prejudice will result if"'counsel's errors were so serious as to deprive the defendant ofa fair trial.'" Id. (quoting Strickland, 466 U.S. at 687). "This showing is made when there is a reasonable probability that, but for counsel's errors, the result ofthe trial would have been different." Id. (citing State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). A reasonable probability is a probability sufficientto undermine confidence in the outcome-it does not require a showing that the outcome would more likely than not be altered. State v. Tilton, 149 Wn.2d 775, 784, 72 P.3d 735 (2003) (citing Strickland, 466 U.S. at 693-94). "Inthis assessment, the appellate court will indulge in a strongpresumptionthat the defendant was properly represented." Meirz, 127 Wn.2d at 471 (citing Strickland, 466 U.S. at 688-89). In orderto rebut this presumption, a defendant alleging ineffective assistance ofcounsel mustprove counsel's representation was unreasonable "under prevailingprofessional norms and that the challenged action was not sound strategy." In

re Davis, 152 Wn.2d 647, 673, 101 P.3d 1(2004). "Thereasonableness ofcounsel's performance is to be evaluated from counsel's perspective at the time ofthe alleged error and in light ofall the circumstances." Id. Mr. McNearney argues that he received ineffective assistance oftrial counsel when defense counsel "refused"to interview witnesses before trial. SAG at 1. The 15No. 32667-5-111 State v. McNearney

record here does notpermit us to review this issue. The issue involves factual allegations outside the record ofthis appeal. Mr. McNearney's remedy is to seekreliefby personal restraint petition. State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991). Mr. McNearney also argues his attorney did not adequately explain his right to

severthe two cases. Here, though, the record indicates thattrial counsel discussed the potential for severing the two counts with Mr. McNearney. The record further indicates that Mr. McNearney wished to have the counts tried together. [DEFENSE COUNSEL]: And Ijustwantedto put something else on the recordTHE COURT: Go ahead. [DEFENSE COUNSEL]: -iflcould. Mr. McNearney and I have talked about this numerous times. I understand that normally these cases wouldn'tbetried togetherbecause they're two separate victims, two separateplaces, and the crimes aren'trelated. And I talked to Mr. McNearney about moving to sever the cases for trial, but in the interest of economy, he'djust as soon try the two ofthem together. Otherwise, it's going to take up one more week. THE COURT: Is that correct? MR. MCNEARNEY: Yes, Your Honor. THE COURT: Okay. Thank you for that record. RP at 5. There was no error. We affirm. 

# 21~41J=,e? Siddoway, C.J. I CONCUR:

Lawrence-Berrey, J. 

## j 16No. 32667-5-III FEARING, J. (concurring)- I concur in the majority's ruling. I write separately, not because I disagree withthe majority on any ofits analysis, butbecause I disagree with the Supreme Court's distortion ofthe term "manifest" in the context ofRAP 2.5(a)'s standard of"manifest constitutional error." The majority correctly notes that our state high court has declared "manifest"to be "prejudicial." State v. O'Hara, 167 Wn.2d 91, 99-100, 217 P.3d 756 (2009). Use ofthe word "prejudicial"to denote "manifest" alters the latter term. When interpreting court rules, the court approaches the rules as though they had been drafted by the legislature. State v. Mcintyre, 92 Wn.2d 620, 622, 600 P.2d 1009 (1979). Generally, we apply rules ofstatutory construction when interpreting courtrules. State v. Blilie, 132 Wn.2d 484, 492, 939 P.2d 691 (1997); WESCO Distrib., Inc. v. MA. Mortenson Co., 88 Wn. App. 712, 715, 946 P.2d 413 (1997). Ifthe courtrule does not define a term, we determine the plain and ordinary meaning from a standard dictionary. State v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605 (2003); State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002); State v. Mankin, 158 Wn. App. 111, 122, 241 P.3d 421No. 32667-5-111 State v. McNearney (2010).Webster's ThirdNew InternationalDictionary 1375 (1993) defines "manifest" as: 1 a : capable ofbeing readily and instantly perceivedby the senses and especially bythe sight :not hidden or concealed : open to view b : capable ofbeing easilyunderstood orrecognized at once by the mind :not obscure :obvious c : beingthe part or aspect ofaphenomenon that is directly observable : concretely expressed in behavior : overt 2 : bearing evident marks or signs Roget'sInternational Thesaurus 348.8 (5th ed. 1992) lists several synonyms for the adjective form ofmanifestation: apparent, evident, self-evident, axiomatic, indisputable, obvious, plain, clear, perspicuous, distinct, palpable, patent, tangible, visible, perceptible, perceivable, discernible, seeable, observable, noticeable, much in evidence, to be seen, easy to be seen, plain to be seen, plain as day, plain as the nose on one's face, plain as a pikestaff, big as life, big as life and twice as ugly, crystal-clear, clear as crystal, express, explicit, unmistakable, not to be mistaken, open-and-shut, selfexplanatory, self-explaining, and indubitable. Synonymous words found for "manifest" in my Microsoft Word program include obvious, patent, apparent, evident, clear, visible, marked, noticeable, discemable, plain, observable, unmistakable, and distinct. Neither the dictionary northe thesaurus employ the word "prejudicial" or another word similar in meaning to "prejudicial." We note thatBlack'sLawDictionary also distorts the definition of"manifest constitutional error." The legal dictionary demarcates the phrase as "[a]n errorbythe trial courtthat has an identifiably negative impact on the trial to such a degree that the 2

# I
' No. 32667-5-111 State v. McNearney
constitutional rights ofaparty are compromised." BLACK'S LA

### wDICTIONARY 660 (10th ed. 2014). Nevertheless, rules ofconstruction direct us to employ a lay dictionary, not lawyers' argot. We remain bound by the Supreme Court's construction of"manifest." Once a courtrule has been construed by the Supreme Court, the construction operates as ifit

were originally written into the rule. In re Pers. Restraint of Moore, 116 Wn.2d 30, 37, 803 P.2d 300 (1991); State v. Darden, 99 Wn.2d 675, 679, 663 P.2d 1352 (1983).

3