                                                                                         Fl!ED
                                                                                  Cl; fiT O
                                                                                    U
                                                                                             APPPALS
                                                                                       DIVISION
                                                                                2013 JU   30 All 10=20
                                                                                                    2
      IN THE COURT OF APPEALS OF THE STATE OF
                                                                       WASH                   0   SFII :
                                       DIVISION II                              SY
                                                                                                   Y
STATE OF     WASHINGTON,                                         No. 41916 5 II
                                                                           - -


                             Respondent,

        V.


JEFFREY LAMONT RANDALL,                                    UNPUBLISHED OPINION


                             Appellant.


        JOHANSON A. . Jeffrey Lamont Randall appeals his jury convictions of two counts
                 J.
                  C     —


of unlawful delivery of a controlled substance to a minor with sexual motivation and two counts

of involving a minor in a drug transaction to deliver a controlled substance. Randall argues that

the trial court violated his right to a unanimous verdict because the trial court did not give a

Petrich instruction, and failure to do so was not harmless. He also argues that (1)insufficient

evidence supports the jury's finding of sexual motivation, ( )the jury returned inconsistent
                                                           2

verdicts, 3)the State violated his right to be free from double jeopardy by failing to allege
          (

specific incidents to support the involving a minor in a drug transaction and unlawful delivery
                                            '

convictions, 4) trial court gave an erroneous special verdict jury instruction that required the
             ( the

jury to be unanimous to answer "no"on the special verdict forms, and (5) trial court should
                                                                        the

have given a missing witness instruction for the victims' parents. Randall makes various other

arguments in his statement of additional grounds (SAG).



1
    State v. Petrieh, 101 Wn. d 566, 569, 683 P. d 173 ( 1984),
                            2                  2              modified in part by State v.
Kitchen, 110 Wn. d 403, 756 P. d 105 (1988).
               2             2
No.41916 5 II
         - -




       We hold that (1)the failure to give a Petrich instruction was harmless, ( )sufficient
                                                                               2

evidence supports the jury's sexual motivation findings, (3) the jury's verdicts were not

inconsistent, 4)
              ( Randall's arguments regarding double jeopardy are hypothetical and not ripe for

review, 5)the trial court's special verdict instruction was proper, and (6)a missing witness
        (

instruction for the victims' parents was unnecessary. Randall's remaining SAG claims are not

preserved for appeal, too vague, or reliant on matters outside the record; therefore we do not

further consider them. Accordingly, we affirm.

                                               FACTS


                          I. RANDALL'S RELATIONSHIP WITH HT AND VN


       In   spring 2008, HT   and   VN were 15 year old female students at Tacoma high schools.
                                               -    -

Students, including HT and VN, commonly spent time at a particular bus stop near the school,

smoking cigarettes and marijuana. Randall, a 40- old male known as "House" and "Weed
                                               year -

Man," a reputation among the students for providing alcohol, marijuana, and transportation.
    had

4 Verbatim Report of Proceedings (VRP) at 636 37, 642, 648, 5 VRP at 733, 8 VRP at 1334.
                                              -

HT and VN met Randall through friends and started regularly buying marijuana from him. HT

and VN also desired to be seen with him to gain popularity at school.

       From approximately March to early June 2008, Randall picked up HT and VN every day

after school.   They   drove around Pierce   County selling marijuana   out of his   car.   But before


Randall permitted HT and VN to sell marijuana, he put them through loyalty tests. These tests

included talking about themselves while naked, kissing him, and taking their shirts off for him.

Eventually, he required each girl to have sexual intercourse with him. Randall knew that HT and




                                                  2
No. 41916 5 II
          - -




VN were only 15 at the time and that they did not want to engage in intercourse with him. After

they passed the loyalty tests, HT and VN participated in Randall's sales by weighing the

marijuana, collecting     money, and    taking marijuana     to sell at school.   They were often with

Randall all afternoon and evening and would sneak out of their parents' homes to be with

Randall at night.

          Randall regularly gave HT and VN marijuana and alcohol for their own use and he

sometimes gave them a portion of the sale proceeds as compensation. Randall called HT and

VN " ama"and "Little Mama" and made them call him "
   M                                              Papa."4 VRP 665, 5 VRP at 733,

837.     When he became irritated with either HT or VN, he treated them like they were "in

trouble"and scared them by telling them about his "
                                                  goons."4 VRP at 664. HT and VN feared

Randall's goons"as dangerous men who would hurt people at his command. 4 VRP at 664, 5
           "

VRP at 802.


                                      II. INVESTIGATION AND TRIAL


          In late April or early May 2008, another high school student reported to police rumors

that Randall had raped HT and VN. HT and VN initially denied knowing Randall, but they later
admitted that they had lied because they feared for their safety. In June 2008, a Tacoma police

officer arrested Randall on an unrelated warrant. In jail, Detective Steven Reopelle interviewed

Randall about the rape and drug allegations.

          During trial, the State filed a third amended information charging Randall with four

counts of third degree child rape, two counts of involving a minor in a drug transaction, and two

counts    of unlawful   delivery   with sexual motivation.    The information did not include specific


2
    We use initials to protect minors' identity.

                                                    3
No. 41916 5 II
          - -




dates for the offenses, stating that the offenses had occurred between March 1 and June 4, 2008.

Randall acknowledged receipt of the amended information, waived formal reading, waived any

objection to the amendment, and pleaded not guilty.

       At trial,HT and VN testified consistently with the facts outlined above and admitted that

they had lied during the initial police interviews, that they had lied to their parents, and that they

could not remember specific dates or times of the events occurring nearly three years earlier.

They testified that they had sold marijuana for Randall for about three months in spring 2008 and

that he had separately raped them each twice. Randall called one witness, the house manager at

the group home facility where Randall lived at the time of the allegations. The house manager

testified about the facility in general, that there was always staff onsite who performed room

checks all hours of the day, and that Randall never caused problems for the staff. Randall did not

testify.

           Randall proposed a missing witness instruction for HT's and VN's parents and a Petrich

unanimity jury instruction related to each charge. The trial court refused both, reasoning that a

missing witness instruction was unnecessary and that the evidence established a continuing

course of conduct involving an ongoing enterprise with a single objective; thus a Petrich

unanimity instruction was not needed. Regarding the sexual motivation special verdict, the trial
court instructed the jury:

                  You will also be furnished with two special verdict forms for the crimes
           charged in Counts VII and VIII. If you find the defendant not guilty of these
           crimes, do not use the special verdict forms. If you find the defendant guilty, you.


3 The court defined sexual motivation to mean " hat one of the purposes for which the defendant
                                              t
committed the crime was for the purpose of his or her sexual gratification." CP at 296 (Jury
Instruction No. 24).


                                                   W
No.41916 5 II
         - -




        will then use the corresponding special verdict or forms and fill in the blank
        with the answer "yes"or "no"according to the decision you reach. In order to
        answer the special verdict forms " es," must unanimously be satisfied beyond
                                         y    you
        a   reasonable doubt that "yes"is the correct      answer.   If you have a reasonable
        doubt as to the question, you must answer " o."
                                                  n

Clerk's Papers at 304 (Jury Instruction No. 31).

        During closing arguments, the State argued that the offenses occurred sometime during

the charged time period and explained that the exact dates were not necessary because it was

clear that the acts occurred " ll the time."11 VRP at 1822. Randall's counsel generally denied
                             a

all allegations and argued that (1) and VN had picked Randall as an easy target to unfairly
                                   HT

blame when their drug and alcohol use was revealed; and (2)HT and VN lacked credibility

because their testimony lacked detail, they lied to their parents and police, and their memories

were   impaired   from alcohol and   drug   use.   Randall's counsel also pointed out inconsistencies

between HT's and VN's testimony and the testimony from other witnesses and claimed that

Randall was innocent and simply a lonely man who reached out to kids because he wanted to

help them.

        The jury acquitted Randall of the rape charges but found him guilty of two counts of

involving a minor in a drug transaction, one count for each victim, and two counts of unlawful

delivery of a controlled substance with sexual motivation, one count for each victim. Randall

appeals.

                                              ANALYSIS


                                      I. UNANIMOUS VERDICTS


        First, Randall contends that the trial court violated his right to a unanimous verdict

because the trial court. did not give a Petrich instruction and the failure to do so was not-


                                                     5
No. 41916 5 II
          - -




harmless. Specifically, he argues that (1) s and VN's testimony was general in nature and
                                          HT'

could not have supported the jury's verdicts, and (2) State presented insufficient evidence of
                                                     the

unlawful delivery and involving a minor in a drug transaction. Assuming, without deciding, that

both the unlawful delivery and involving a minor convictions involved multiple acts that

required a Petrich unanimity instruction, we hold that any error in failing to give such
instruction was harmless and that HT's and VN's testimony was sufficient to support four

convictions; one unlawful delivery charge per victim and one involving a minor charge per

victim.


          To convict a criminal defendant, a unanimous jury must conclude that the criminal act

charged      has been committed.          State v. Petrich, 101 Wn. d 566, 569, 683 P. d 173 ( 1984),
                                                                  2                  2

modified     in   part by State   v.   Kitchen,   110 Wn. d
                                                        2     403, 405 06, 756 P. d 105 (1988). In cases
                                                                       -        2


where several acts are alleged, any one of which could constitute the crime charged, the jury

must unanimously agree on the act or incident that constitutes the crime. Kitchen, 110 Wn. d at
                                                                                         2

411; Petrich, 101 Wn. d
                    2             at   572. In such "`
                                                     multiple acts "'      cases, Washington law applies the

either     or "'   rule: "`[ ither the State must elect the particular criminal act upon which it will
                          E]

rely for conviction, or ...       the trial court [must] instruct the jury that all of them must agree that

the   same   underlying   criminal act has been proven        beyond   a   reasonable doubt. "' State v. Hayes,


81 Wn, App. 425, 430 31, 914 P. d 788, review denied, 130 Wn. d 1013 (1996) alteration in
                     -        2                             2               (

original)quoting Kitchen, 110 Wn. d at 411).
          (                     2


4
    We move directly to a harmless error analysis because we note some inconsistency between the
State's concession of error in its brief and its retraction of this concession, at least in part, at oral
argument. Compare Br. of Resp't at 22 23 with Wash. Court of Appeals oral argument, State v.
                                      -
Randall,No. 41916 5 II Jan. 18, 2013) at 18 min., sec.
                  - - (                         48   23 min., sec. on file with court).
                                                                20       (

                                                         31
No.41916 5 II
         - -



       We presume that the trial court's failure to give a Petrich instruction when needed is

prejudicial. State v. Bobenhouse, 166 Wn. d 881, 893, 214 P. d 907 (2009);
                                        2                  3             State v. Coleman,

159 Wn. d 509, 512, 150 P. d 1126 (2007).In multiple acts cases, when the State fails to elect
      2                  3                                       "

which incident it relies upon for the conviction or the trial court fails to instruct the jury that all

jurors must agree that the same underlying criminal act has been proved beyond a reasonable

doubt," will find this error harmless "only if no rational trier of fact could have entertained a
      we

reasonable doubt that each incident established the crime beyond a reasonable doubt."Kitchen,

110 Wn. d at 405 06.
      2          -


        The State argues that this case is similar to Bobenhouse, 166 Wn. d 881; State v.
                                                                        2

Camarillo, 115 Wn. d 60, 794 P. d 850 (1990); State v. Allen, 57 Wn. App. 134, 139, 787
                 2            2             and

P. d 566 (1990),
 2             where the courts held that the lack of a unanimity instruction was harmless. In

these cases, the State charged the defendants with one count of the alleged crimes and the

victims testified that several incidents occurred, each one of which could have supported the one

count charged. Bobenhouse, 166 Wn. d at 893 94;Camarillo, 115 Wn. d at 70; Allen, 57 Wn.
                                 2          -                   2
              5
App. at   13 9.   At trial, the defendants offered general denials and presented no evidence on

which the jury could discriminate among incidents. Bobenhouse, 166 Wn. d at 895; Camarillo,
                                                                     2

115 Wn. d at 72; Allen,-
      2               57 Wn. App. at 139. These courts determined that sufficient evidence

established that the acts occurred and the lack of the unanimity instruction was harmless.

Bobenhouse, 166 Wn. d at 895; Camarillo, 115 Wn. d at 72;Allen, 57 Wn. App. at 139.
                  2                            2



5 Allen was actually charged with three counts of indecent liberties involving two victims, but
only argued that the unanimity instruction should have been given for one of the counts; thus the
analysis focused on the one count. Allen, 57 Wn.App. at 137.



                                                   VA
No. 41916 5 II
          - -



            Randall's case is similar to Bobenhouse, Camarillo, and Allen. Importantly, the crucial

point in each was that "`
                       proof of the substantially similar incidents relied upon a single witness'

detailed, uncontroverted testimony."'
                                    Camarillo, 115 Wn. d at 70 (quoting State v. Camarillo,
                                                     2

54 Wn. App. 821, 828, 776 P. d 176 (1989)).
                           2             Here, the State presented two witnesses' detailed

uncontroverted testimony about the              substantially   similar incidents. HT and VN testified that


Randall involved them in his marijuana sales and provided them with marijuana for their own

use every day between March and June 2008. And, as in Bobenhouse, Camarillo, and Allen,

Randall generally denied the allegations, the main issue at trial was the victims' credibility, and

the jury had no uncontroverted evidence on which to rationally discriminate among incidents.

Bobenhouse, 166 Wn. d at 895; Camarillo, 115 Wn. d at 70 71;Allen, 57 Wn. App. at 139.
                  2                            2         -

Here, the jury's verdict reflects that it accepted HT's and VN's testimony; we will not disturb the

jury's credibility determinations. Camarillo, 115 Wn. d at 71.
                                                    2

            Randall relies on Coleman to argue that the error was not harmless. Coleman, 159 Wn. d
                                                                                               2

at 512. We disagree. The State charged Coleman with one count of child molestation for each
victim for acts        occurring   over   a   period   of three years.      Coleman, 159 Wn. d
                                                                                           2         at   511. At


Coleman's trial, a Child Protective Services worker testified that the victim, CV,told her that (1)

Coleman inappropriately touched her while watching a particular movie on a particular day, and

2)additional touching incidents occurred in Coleman's house and car. Coleman, 159 Wn. d at
                                                                                    2

514.    Then, CV's school counselor and the other witness testified that CV told them that

nothing really happened" during the movie. Coleman, 159 Wn. d at 514. And, CV testified
                                                          2
that   no
            touching    occurred at the movie. Coleman, 159 Wn. d at 514.
                                                              2                          But, the State did not

abandon the movie incident           even     after this   contradictory   evidence and instead,   during closing
No. 41916 5 II
          - -




arguments, told the jury     to   ignore     s contradiction and convict
                                           CV'                             anyway.   Coleman, 159

Wn. d at 515.
  2


        The Supreme Court held that the failure to give a unanimity instruction was not harmless

in that situation, explaining that

        a] election or unanimity instruction may not be required in a multiple act case if
         n
       there is no controverted evidence. Camarillo, 115 Wn. d 60, 794 P. &
                                                               2           850. But
                                                                                2
       the case before us is not one lacking controverted evidence; e. ., case in which a
                                                                     g a
       witness says off handedly that abuse occurred in five different instances but
                          -
       describes with particularity only one instance. The focus of a trial, at least for
       jurors, potentially changes once evidence is introduced of separate identifiable
        incidents.


Coleman, 159 Wn. d
               2          at 514.    The Supreme Court concluded that because the incident at the

movie was a focus at trial and because CV did not provide evidence of any other instances with

particularity, rational jurors could disagree about whether molestation occurred at the movie

specifically and it was prejudicial error to omit the Petrich instruction. Coleman, 159 Wn. d at
                                                                                          2

515.


        But unlike in Coleman, here there was no contradictory evidence of a specific incident.

And there   were no separate identifiable incidents among which the jury could distinguish. HT

and VN did not describe any one incident with particularity. Thus, Randall's jury considered the

totality of the evidence of several incidents to ascertain whether there was proof beyond a

reasonable doubt to substantiate guilt because of the acts constituting one incident and also to

believe that if   one   happened, then     all must have   happened." Camarillo, 115 Wn. d at 71.
                                                                                       2



6
 Here, HT and VN's stories changed between the initial questioning by parents and the police
and theirtestimony at trial. But HT and VN also explained the reason why their testimony
changedtheir fear of Randall and his goons. And when the girls testified at trial,their testimony
        —
was not contradictory.


                                                    9
No. 41916 5 II
          - -




Randall's jury determined that there was such proof. We hold that the trial court's failure to give

a unanimity instruction was harmless.
                        II.SUFFICIENT EVIDENCE OF SEXUAL MOTIVATION


       Randall next argues that the State presented insufficient evidence to support the jury's

sexual motivation findings related to the unlawful delivery to a minor convictions. Concluding
that sufficient evidence supports the jury's sexual motivation findings when viewed in the light

most favorable to the State, we reject this argument.

       Evidence is sufficient to support a guilty finding if,after viewing the evidence in the
                                                              "

light most favorable to the State, a rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt."State v. Rose, 175 Wn. d 10, 14, 282 P. d 1087 (2012).A
                                                      2                3               "

claim of insufficient evidence admits the truth of the State's evidence and all inferences that


reasonably can be drawn from that evidence."State v. Caton, 174 Wn. d 239, 241, 273 P. d 980
                                                                  2                  3

2012).    We consider circumstantial and direct evidence to be         equally   reliable.   State v.


Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980).And we defer to the trier of fact on issues of
                2                  2

conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.




7
  Randall also argues that HT's and VN's general testimonies did not properly support Randall's
convictions. But, HT and VN did not describe any one incident with particularity which is why
the failure to give a Petrich instruction was harmless. Also, Randall argues that the lack of
specificity in his verdict violates his right to appeal because he does not know which allegations
supported the jury's verdict. He asserts that the jury's acquittal on the rape charges show that the
jury did not find all of the witnesses' testimony entirely credible and that we cannot conclude the
jury simply accepted the complaining witnesses' allegations without question. But, we do not
review a jury's determination on witness credibility or the weight of the evidence, and Randall's
verdicts are not contradictory. State v. Thomas, 150 Wn. d 821, 874 75, 83 P. d 970 (2004),
                                                             2              -        3
aff' ,166 Wn. d 380, 208 P. d 1107 (2009).
   d        2             3



                                                 10
No. 41916 5 II
          - -




Thomas, 150 Wn. d 821, 874 75, 83 P. d 970 (2004), d, 166 Wn. d 380, 208 P. d 1107
              2            -       3             aff'       2             3

2009).

        An allegation of sexual motivation requires the State to prove that sexual gratification

was among the defendant's purposes in committing the charged offense. State v. Thompson, 169

Wn. App. 436, 476, 290 P. d 996 (2012),
                        3             review denied, 176 Wn. d 1023 (2013) citing RCW
                                                           2                (

030( 4A. The
9.7)). State must present "` vidence of identifiable conduct by the defendant
   4
   9                       e

while committing the offense which proves beyond a reasonable doubt the offense was

committed for the purpose of sexual gratification."'Thompson, 169 Wn. App. at 476 (quoting

State v. Halstien, 122 Wn. d 109, 120, 857 P. d 270 (1993)).
                         2                  2              Evidence of sexual motivation is

not limited to criminal sexual contact. Halstien, 122 Wn. d at 121. In fact, the Supreme Court
                                                        2

has explained, Reading in a requirement of sexual contact would undermine the purpose of the
               "

statute, which was enacted to fill a perceived gap in the criminal code not covered by existing

sex offense crimes."Halstien, 122 Wn. d at 121.
                                    2

        HT's and VN's testimony provided sufficient evidence to support the jury's finding that

Randall delivered controlled substances to them for the purpose of his sexual gratification. The

jury heard testimony describing Randall's relationship with the victims. Randall exploited HT's

and VN's low self -
                  esteem by encouraging them to believe that selling marijuana for him would

improve   their social status among their peers.        Randall   wanted HT and VN to rely on him

emotionally   and   always   call him if   they needed anything. The records of the phone calls

between Randall and HT and VN spanned through all hours of the night and day over the


8
    The jury found sexual motivation for the unlawful delivery convictions but not for the
involving a minor in drug transaction charges.

                                                   11
No. 41916 5 II
          - -




charged period of time and Randall withheld marijuana whenever HT or VN upset him. 5 VRP

at 799 801. Further, Randall gave HT and VN nicknames of " ama"and "Little Mama" and
       -                                                 M

made them call him " apa,"
                   P     while the other high school kids all called him " ouse"and "Weed
                                                                         H

Man."4 VRP 665, 5 VRP at 733, 837. This is circumstantial evidence that he considered and

treated HT and VN as his girlfriends.

         Randall conditioned HT and VN's participation in his marijuana selling business on the

performance of sexualized loyalty tests, and he bragged to another high school student that he

had   sex   with both HT and VN.    These loyalty tests included talking about themselves while

naked, kissing him, and taking their shirts off for him. After the girls passed Randall's sexual

loyalty tests, he allowed them to sell marijuana for him, and in return, Randall delivered

marijuana to them for their own use. The jury could have reasonably believed that the evidence

demonstrated that Randall treated HT and VN as girlfriends, that he gave the girls marijuana in

part because he wanted them to perform sexual acts, and that he received sexual gratification

from their sexual acts. Taking the evidence in the light most favorable to the State, we hold that

the jury could reasonably conclude that Randall delivered marijuana to HT and VN for the

purpose of his sexual gratification, and that the State presented sufficient evidence for the jury to

find that Randall unlawfully delivered controlled substances to HT and VN with sexual

motivation. Rose, 175 Wn. d at 14.
                        2




9
    Randall raises further sufficiency claims in his SAG. Since we have adequately addressed this
issue as raised by Randall's appellate counsel, we do not review it again in the SAG context. See
RAP 10. 0(
    a).
      1

                                                 12
No.41916 5 II
         - -



                                    III. INCONSISTENT VERDICTS


       Randall next argues that the jury's sexual motivation finding and simultaneous rape

acquittals created inconsistent verdicts and these inconsistent verdicts also show a lack of a

unanimous verdict. We disagree.

       Inconsistent verdicts ...     present a situation where "
                                                               error"in the sense that the jury has

not followed the court's   instructions, most certainly has occurred. "' State v. Goins, 113 Wn.

App. 723, 730, 54 P. d 723 (2002), d,151 Wn. d 728, 92 P. d 181 (2004)quoting United
                   3             aff'      2            3              (

States v. Powell, 469 U. . 57, 65, 105 S. Ct. 471 83 L. Ed. 2d 461 (1984)). "'[ here the
                       S                                                  But w]

jury's verdict is supported by sufficient evidence from which it could rationally find the

defendant guilty beyond a reasonable doubt, we will not reverse on grounds that the guilty

verdict is inconsistent with   an   acquittal   on   another count."   Goins, 113 Wn. App. at 734

alteration in original) quoting State v. Ng, 110 Wn. d 32, 48, 750 P. d 632 (1988)).
                        (                          2                2

       Here, Randall's jury was instructed that to convict of third degree child rape it must find

that he had "sexual intercourse with a child who is at least fourteen years old but less than

sixteen years old, who is. not married to the person, and who is [at] least forty eight months
                                                                                  -

younger than the person."2 CP at 278 (Jury Instruction No. 6).
                                                             The trial court defined " exual
                                                                                     s

intercourse" as "that the sexual organ of the male entered and penetrated the sexual organ of the

female and occurs upon any penetration, however slight[,] any act of sexual contact between
                                                       or

persons involving the sex organs of one person and the mouth or anus of another."2 CP at 283

Jury Instruction No. 11).The trial court also instructed the jury that " exual motivation"means
                                                                       s

one of the purposes for which the defendant committed the crime was for the purpose of his or

her sexual gratification."2 CP at 296 (Jury Instruction No. 24).



                                                     13
No. 41916 5 II
          - -




        We hold that acquittals on the rape charges were not inconsistent with a guilty finding for

sexual motivation because sexual motivation did not require the jury to find that sexual

intercourse occurred. Instead, the jury had to agree only that Randall's acts were committed, at

least in part, for sexual gratification purposes. The jury could reasonably believe that Randall

delivered a controlled substance for his sexual gratification while also simultaneously believing

sexual intercourse did not occur; therefore, the verdicts were consistent. .

                                        IV. DOUBLE JEOPARDY


        Randall further argues the State's failure to allege specific incidents violated his right to

be free from double jeopardy because the State may be able to bring further prosecutions for the

same acts. We disagree.

        We review double jeopardy claims de novo..
                                                 State v. Kelley, 168 Wn. d 72, 76, 226 P. d
                                                                        2                3

773 (2010).The United States Constitution provides that a person may not be subject `for the
            "

same   offense to be twice put in   jeopardy of life   or   limb. "'   State v. Chouap, 170 Wn. App. 114,

122,   285   P. d 138 ( 2012)
              3                 quoting
                                (          U. . CONST. amend.
                                            S                            V). Similarly, the Washington

Constitution provides that a person may not be put in jeopardy twice for the same.offense.

Chouap, 170    Wn. App. at 122 (quoting WASH. CONST. art. I,               § Randall does not argue that
                                                                           9).

he has twice been'put in jeopardy for the same offense. Instead, he argues that at some time in

the future he may twice be put in jeopardy. We reject his argument as hypothetical and not ripe




                                                   14
No. 41916 5 II
          - -



           10
for review.


                                   V. SPECIAL VERDICT INSTRUCTION


       Randall argues that the trial court gave an erroneous special verdict jury instruction that

required the jury to be unanimous to answer " o" the special verdict forms. Br. of Appellant
                                            n on

at 23. We disagree.

       The challenged jury instruction read:

              You will also be furnished with two special verdict forms for the crimes
       charged in Counts VII and VIII. If you find the defendant not guilty of these
       crimes, do not use the special verdict forms. If you find the defendant guilty, you
       will then use the corresponding special verdict form or forms and fill in the blank
       with the answer "yes"or "no"according to the decision you reach. In order to
       answer the special verdict forms " es," must unanimously be satisfied beyond
                                        y     you
       a reasonable doubt that "yes"is the correct answer. If you have a reasonable

       doubt as to the question, you must answer "
                                                 no."

CP at 304 (
          Jury Instruction No. 31).

       We review alleged errors of law injury instructions de novo. Boeing Co. v. Key, 101

Wn. App. 629, 632, 5 P. d 16, review denied, 142 Wn. d 1017 (2001). Randall's contention
                      3                            2

regarding this jury instruction is untenable because it relies on the special verdict instruction


io
  Also, in his SAG, Randall asserts that his right to be free from double jeopardy was violated
when (1)the trial court admitted evidence that was also used in a Tacoma Municipal Court
misdemeanor prosecution, 2) trial court admitted evidence seized incident to arrest, 3)
                          ( the                                                          ( the
State used evidence against him for a misdemeanor in municipal court and in this case, 4)( the
State charged him with multiple counts of involving a minor in a drug transaction without
establishing specific and different places and times, and (5) State failed to seek trial on all
                                                             the
drug charges    at the   same   time.   Randall's arguments relating to the Tacoma Municipal Court
cases depend on matters outside the record; thus we cannot address them on direct appeal. State
v. McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995).And, although RAP 10. 0 does not
                    2                  2                                   1
require Randall to refer to the record or to cite applicable authority in his SAG, he is required to
inform us of the "nature and occurrence of alleged errors."RAP 10. 0( Randall's remaining
                                                                   c).  1
assertions regarding double jeopardy are too vague to allow this court to identify the issues; thus,
we do not further consider them.


                                                    15
No. 41916 5 II
          - -




given in State v. Bashaw, 169 Wn. d 133, 145, 234 P. d 195 (2010), later rejected in State v.
                                2                  3             and

Guzman Nunez, 174 Wn. d 707, 709 10, 285 P. d 21 ( 2012). In
                    2            -        3                               Nun " our Supreme Court
                                                                            ez,

overruled Bashaw's nonunanimity rule, concluding it " onflicts with statutory authority, causes
                                                    c

needless confusion, does not serve the policies that gave rise to it,and frustrates the purpose of

jury unanimity." Nunez, 174 Wn. d at 709 10. Applying Nunez, we hold that the trial court
                              2          -

properly instructed the jury regarding the special verdict.

                                             VI. SAG ISSUES


                                         A. Missing Witnesses

       In his pro se SAG, Randall asserts that the trial court erred by failing to give his proposed

missing witness instruction based on the absence of HT's and VN's parents. We disagree.

       We review the adequacy of jury instructions de novo. State v. Pirtle, 127 Wn. d 628,
                                                                                   2

656, 904 P. d 245 (1995),
          2             cent. denied, 518 U. . 1026 (1996).A missing witness instruction is
                                           S

proper when (1) witness is peculiarly available to the party; 2) testimony relates to an
               the                                            ( the

issue of fundamental importance as contrasted to a trivial or unimportant issue; and (3)the

circumstances establish, as . a matter of reasonable probability, that the party would not

knowingly fail to call the witness in question unless the witness's testimony would be damaging.

State v. Montgomery, 163 Wn. d 577, 598 99, 183 P. d 267 (2008).
                           2            -        3

       At     trial, Randall asked for   a   missing witness instruction.    The State opposed the

instruction   as   unnecessary under the     Montgomery   test.   The State explained that Randall's

counsel had interviewed the witnesses, knew where to find them, and could have subpoenaed

them as well. The State called one of the mothers to testify, but the court determined she was




                                                   16
No. 41916 5 II
          - -



intoxicated and not a competent witness. The mother did not return later to testify as instructed.

The court ruled that a missing witness instruction was not proper. We agree.

         HT's and VN's parents were not peculiarly available to either party and their testimony

would not have been of fundamental importance because they did not have independent

knowledge      of their   daughters'   interactions with Randall.   Montgomery, 163 Wn. d 598 99.
                                                                                      2       -

Moreover, there is no evidence that the State failed to call the witness because the witness's

testimony would be damaging. We hold the trial court did not err by failing to give a missing

witness instruction.


                                             B. Arresting Officer

         Randall further asserts that the arresting officer should have testified at the CrR 3. and
                                                                                              5

3. hearing about the search of Randall's car. Because this claimed error was not raised in the
 6

trial court,   we   decline to address it.     Thus, Randall did not preserve for appeal any error

regarding the arresting officer; in addition, Randall's assertion is too vague for us to address.

RAP 2. (
    a); 10.
     5 RAP 10.

                                              C. Jail Interview


         Randall next asserts that the trial court erred by admitting into evidence his jail interview

with Detective      Reopelle. Randall claims that the jail interview violated his right to counsel

because at the time of the interview, he was in custody on misdemeanor marijuana charges

following    his arrest for    a   traffic incident.   Randall explains that he was waiting for his

misdemeanor arraignment when Detective Reopelle pulled him out of the line and took him back

to the   jail for   the interview.     According to Randall, this action violated his right to counsel




                                                       17
No. 41916 5 II
          - -




because it was obvious that Detective Reopelle did not want Randall to be assigned counsel
                    11
before the interview.


       But, Randall does not explain how the trial court erred. Instead, he asserts that he had

appointed counsel before the interview with Detective Reopelle, citing municipal court records.

SAG at 40.    Because Randall bases this assertion on matters outside our record, we cannot

consider it on direct appeal. State v. McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995).
                                                        2                  2

                                  D. Prosecutorial Misconduct


       Next, Randall asserts that the State committed prosecutorial misconduct by filing an

amended information that added charges more than 18 months after his original indictment. At

trial, Randall expressly waived   any   objection    to the amendment   on   the record.   When a


defendant fails to object at trial to alleged prosecutorial misconduct, he waives any error on

appeal unless he can show that the misconduct was so flagrant or ill intentioned that the trial

court could not have cured the error by instructing the jury. State v. Weber, 159 Wn. d 252, 270,
                                                                                    2



   This issue was raised during Randall's CrR 3. and 3. motions. His trial counsel explained
                                                  5       6
that Detective Reopelle was the lead detective on the rape charges but Detective Reopelle had
not yet filed the rape charges on the day Randall was scheduled to be arraigned on the
misdemeanor possession charges. At the motion hearing, Randall asserted that Detective
Reopelle and the prosecutor's office had violated his right to counsel because they wrongfully
postponed Randall's misdemeanor arraignment so that Detective Reopelle could interview him
before he was arraigned. In response, the State argued that Randall could not show evidence of
any conspiracy to deprive him of his rights, that Randall was properly read his Miranda warnings
before the interview, that his statements were voluntary, and that Detective Reopelle
discontinued the interview as soon as Randall invoked his rights. Miranda v. Arizona, 384 U. .S
436, 86 S. Ct. 1062, 16 L.Ed. 2d 694 (1966).
       The trial court denied Randall's motion to suppress his interview with Detective
Reopelle, characterizing the issue as not involving Miranda rights but, instead, involving
whether the sequencing of events justified a suppression order. The trial court ruled there was no
evidence of a conspiracy between Detective Reopelle and the prosecutor's office to circumvent
Randall's right to counsel

                                                18
No. 41916 5 II
          - -




149 P. d 646 (2006),
     3             cent. denied, 551 U. . 1137 (2007).Randall fails to meet this heightened
                                      S

burden.


       Additionally, Randall asserts that the trial court erroneously denied a mistrial based on

opinion testimony from Detective Reopelle and HT and that the State committed misconduct by

eliciting that testimony. Although RAP 10. 0 does not require Randall to refer to the record or
                                         1

cite applicable authority, he is required to inform us of the "nature and occurrence of alleged

errors."RAP 10. 0( His prosecutorial misconduct claims are too vague and the record does
            c).
              1

not support them; thus, we cannot address them.

                                       E. Remaining Claims

       Randall makes several claims that we are also unable to review on direct appeal because

they rely on matters outside this court's record. McFarland, 127 Wn. d at 335. First, Randall
                                                                   2

asserts that his right to be present at trial was violated during jury deliberations when his counsel

and the prosecutor   were   called into court and he   was   not   present. He concedes this claim

involves matters outside the record.


       Next, Randall claims that the appellate record is incomplete because the transcripts he

received do not include any reports of proceedings from the time of his arrest in June 2008 until

November 2009. Randall is correct, the first VRP transcripts in our record is from November

2009. But because we lack an adequate record to know what happened before November 2009,

we are unable to address this issue on direct appeal. McFarland, 127 Wn. d at 335.
                                                                       2

       Also, Randall makes several claims for the first time on appeal. We will not review an

issue raised for the first time on appeal unless the claimed error is a manifest error affecting a

constitutional right. RAP 2. (
                          a)( First, Randall asserts a CrR 3. speedy trial right violation,
                           3).
                           5                                3


                                                 19
No. 41916 5 II
          - -




claiming that he was in jail for approximately two and a half years before his trial started. SAG
                                                   -   - -

at 15 19. But violations of CrR 3. are not constitutionally based and cannot be raised for the
      -                          3

first time on appeal. State v. Smith, 104 Wn. d 497, 508, 707 P. d 1306 (1985).
                                            2                  2

         Next, Randall asserts that the trial court erred by admitting under ER 404( )
                                                                                   b trace

evidence of       marijuana   found in his   backpack. Evidentiary errors are not of constitutional

magnitude and because Randall did not object to the evidence's admission at trial, we will not

review it on appeal. State v. Jackson, 102 Wn. d 689, 695, 689 P. d 76 (1984).
                                             2                  2

         Finally, Randall claims that the trial court should have found that the State engaged in
        12
Brady        and discovery violations because the State failed to make witnesses available for defense

interviews, the State failed to disclose an e mail from HT's pediatrician, and the trial court failed
                                              -

to disclose in-
              camera review of counseling records. In reviewing a Brady challenge, on direct

review, we can consider only matters demonstrated by the trial record. McFarland, 127 Wn. d
                                                                                        2

at 335. An appellant has the burden of perfecting the record so that this court has before it all the

evidence relevant to the issues       on   appeal.   RAP   9. ( 6( In November 2009, Randall
                                                            1 9.
                                                           a), a).

moved to compel production of the counseling records for in camera review. The court granted

the motion for in camera review. Our record does not show any further discussion about these

counseling records thus we are unable to address Randall's claims because the record is not

complete enough to allow review of the claimed error. RAP 9. ( 6(
                                                          a),
                                                           1 9.
                                                             a).

             Similarly, in August 2010, Randall moved to dismiss all charges based in part on the

State's alleged failure to make the witness available and its recent disclosure of the email from


12
     Brady v. Maryland, 373 U. .83, 87, 83 S. Ct. 1194, 10 L.Ed. 2d 215 (1963).
                             S


                                                     20
No. 41916 5 II
          - -




HT's pediatrician when trial was scheduled about a week later. The court denied the motion to

dismiss but granted Randall a continuance and ordered that the State work with Randall to make

those witnesses available. Because the State provided Randall with the e-ail in August 2010,
                                                                        m

several months before his January 2011 trial, he cannot show that he was prejudiced and his

claim that the State did not timely provide it fails. Strickler v. Greene, 527 U. .263, 280, 119 S.
                                                                                S

Ct. 1936, 144 L. Ed. 2d 286 (1999) holding that to establish a Brady violation, the defendant
                                   (

must show (1)the evidence was favorable to the defendant, (2)the State suppressed the

evidence, and (3) suppression prejudiced the defendant). And our record does not indicate
                 the

any further discussion about the State making the witnesses available thus we are also unable to

address this claim.


       We affirm.


       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

040,
2.6.it is so ordered.
 0



                                                 1                               UY '
                                                                  Johanson, A. .
                                                                               J.
We concur:




                       nt,J.



                       gen, J.




                                                21
