                                                                             COURT OF APPEALS
                                                                                   WVISION aI
                                                                           2015 APR -
                                                                                         7 f ti 9: 25
                                                                           STATE OF WASHINGTON
                                                                           SY_ _

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

 STATE OF WASHINGTON,                                                     No. 45720 -2 -II


                                  Respondent,


         v.

                                                                 UNPUBLISHED OPINION
 DARRELL LEE WITTE,


                                  Appellant.




        MAxA, J. — Darrell Witte appeals his conviction for three counts of first degree child


molestation. At trial, the State presented evidence of multiple separate acts that could establish


that Witte had sexual contact with a minor, but the trial court failed to instruct the jury that it was

required to unanimously agree on the criminal conduct that supported each count. Witte argues

that the trial court erred in not giving a unanimity instruction and thereby violated his

constitutional right to a unanimous jury verdict. However, at trial Witte adopted the State' s

proposed jury instructions even though they did not include a unanimity instruction. As a result,

we hold that Witte invited the error he challenges on appeal, and we decline to address this issue.


Accordingly, we affirm Witte' s convictions.

                                                  FACTS


        Witte was charged with three counts of first degree child molestation based on allegations

that he molested JW -H   over a period     from December 2009 to November 2011. At trial, the State


presented evidence of   five   separate   instances showing Witte'   s sexual conduct.
45720 -2 -II



          When the parties discussed jury instructions, the State submitted proposed instructions

that did not include a unanimity instruction. When the trial court asked if the defendant' s

counsel   had   prepared     jury   instructions,      counsel replied, "         I did not, Your Honor. I am adopting,

with an argument against some, which                   I think     will   be in   agreement."   Report of Proceedings ( RP)


at 404. The trial court clarified the instruction to be removed and then asked defense counsel,

 Did I   understand    from     you    that the   rest   look okay to        you ?"   RP at 404. Defense counsel


responded, "    The   rest   look   over [ sic]   to   me,    Your Honor." RP at 404.


          The jury convicted Witte of each charge. Witte appeals his convictions.

                                                          ANALYSIS


          Witte   argues     that he   was entitled      to   a   unanimity instruction1 to protect his constitutional


right to a unanimous jury verdict.' We hold that Witte is precluded from raising this issue

because he invited the error he complains of on appeal, and we affirm Witte' s convictions.


          The invited error doctrine prohibits a party from setting up an error at trial and then

challenging that error on appeal. In re Pers. Restraint of Coggin, 182 Wri.2d 115, 119, 340 P. 3d

810 ( 2014).      This doctrine applies to unanimity instructions. State v. Carson, 179 Wn. App. 961,

973, 320 P. 3d 185 ( 2014), review           granted,         181 Wn.2d 1001 ( 2014).           Specifically, where a

defendant' s proposed instructions do not include a unanimity instruction, the invited error



1 In State v. Petrich our Supreme Court held:
   When the evidence indicates that several distinct criminal acts have been committed,
    but defendant is charged with only one count of criminal conduct, jury unanimity
    must be protected....   The State may, in its discretion, elect the act upon which it will
    rely for conviction....  When the State chooses not to elect, this jury instruction must
    be given to ensure the jury' s understanding of the unanimity requirement.
101 Wn.2d 566, 572, 683 P. 2d 173 ( 1984),   overruled on other grounds by State v. Kitchen, 110
Wn.2d 403 ( 1988).

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45720 -2 -II




doctrine precludes the defendant from appealing the trial court' s failure to give such an

instruction. State v. Corbett, 158 Wn. App. 576, 591 -92, 242 P. 3d 52 ( 2010).

        Corbett may not directly apply because Witte did not propose any instructions. However,

Witte adopted the State' s proposed jury instructions that did not include a unanimity instruction.

The invited    error   doctrine   also applies   in this   situation. "   Under the doctrine of invited error,


even where constitutional rights are involved, we are precluded from reviewing jury instructions

when   the defendant has     proposed an    instruction       or agreed    to its wording."   State v. Winings, 126


Wn.   App.   75, 89, 107 P. 3d 141 ( 2005) (      emphasis added);        see also In re the Detention of Gaff, 90

Wn.   App.   834, 845, 954 P. 2d 943 ( 1998) (       holding that the parties' agreement as to the wording

of a jury instruction precluded the court' s review of the omission of the instruction).

        Here, the State proposed jury instructions that did not include a unanimity instruction,

and Witte' s counsel told the trial court that he was adopting those instructions except for an

instruction that is not relevant here. Later, when the trial court asked Witte' s counsel if the


instructions were acceptable, counsel responded that the rest of the instructions looked okay.

These comments were the equivalent to agreeing to the exclusion of a unanimous jury instruction

from the trial court' s instructions.


        Witte did not propose a unanimity instruction and agreed to the trial court' s jury

instructions that did not include a unanimity instruction. Therefore, we hold that the invited

error doctrine prohibits Witte from challenging on appeal the trial court' s failure to give such an

instruction.




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45720 -2 -II



        We affirm Witte' s convictions.


        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.




We concur:




B fJR(ee' N, A. C.J.




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