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      IN THE COURT OF APPEALS OF THE STATE OF                                                 WASHINGT , NN
                                                                                                                           Y 12 AN 8: 112
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                                                        DIVISION II                                            By _


    STATE OF WASHINGTON,                                                              No. 45907 -8 -II


                                            Respondent.


           v.



    AARON MICHAEL WILLIAMSON,                                                 UNPUBLISHED OPINION


                                            Appellant.




          LEE, J. —     A jury found Aaron Michael Williamson guilty of indecent liberties by forcible

compulsion. Williamson appeals, arguing that ( 1) the trial court' s limiting jury instruction for ER

404(b) evidence was in error; (2) his trial counsel was ineffective for not objecting to the improper

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

by not objecting 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 of Williamson' s prior acts of sexual

                                                        1,
misconduct against           his   stepdaughter,   L.        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 of the sexual abuse that occurred in California, but

admitted the evidence of sexual abuse that occurred in Washington under ER 404( b) for the

purpose of showing 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.' s bed with her. L. was laying on her side, and Williamson crawled in and

lay behind her. According           to L., Williamson told her, " I don' t want to go in you but I just 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 her towards 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 of her 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 at trial. According to 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 of the current offense was particularly vulnerable or incapable

of resistance "; ( 2)   "[   t]he offense was part of an ongoing pattern of sexual abuse of the same victim



                                                               2
No. 45907 -8 -II


                                                                                                                                        "; and ( 3)
under       the   age of   18   years, manifested           by multiple incidents           of a prolonged period of time




  t]he defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate

the   commission of the 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 of   4   and   5   on at   least two    separate occasions "; ( 3)        "[   f]ondling of breast,

buttocks, and pubic areas occurred several times a month, both over and under clothing for a period

of    13   years."    CP at 45.


                The jury convicted Williamson of indecent liberties by forcible compulsion. Williamson' s

offender score was zero. Based, in part, on the stipulated aggravating circumstances, the trial 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' s jury instruction 15 was in error because it classified

evidence of          Williamson'       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 if the error is a " manifest

error      affecting    a constitutional right."              RAP 2. 5(      a)( 3).   An alleged error to a jury 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.




                                                                            3
No. 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

object to jury 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 of prior 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,"          the jury was misled to believe that the past sexual acts, were


                                                                   4
No. 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 of the 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, the trial court' s jury instruction 15 was in error because it classified 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 erroneous jury instruction,
we do not reach the other issues raised on appeal.



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