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STATE v. TIMLEY5/27/1994
The opinion of the court was delivered by
This is a direct appeal by the defendant, Irvin Timley, from his conviction of three counts of rape and four counts of aggravated criminal sodomy stemming from three separate incidents
involving three victims. Timley was charged in two separate complaints, and the cases were consolidated for trial. The Habitual Criminal Act was imposed, and Timley was sentenced to consecutive sentences of 45 years to life on each count.
Timley raises a number of issues. He alleges error in the instructions, violation of his right to a speedy trial, gender discrimination in striking two males by peremptory challenge, failure to cross-endorse witnesses, timeliness of notice to impose the Habitual Criminal Act, sufficiency of the evidence, and failure to exclude a juror who knew the trial judge.
There was no dispute at trial that sexual contact occurred between Timley and each of the victims. Timley admitted to penetration sufficient to support each of the charges. Timley's defense was that the alleged victims consented to the sexual activity. Timley contended that each alleged victim approached him and agreed that he would supply her with drugs and she would give him whatever sexual activity he wanted. He admitted to choking each victim and making threats, but he insisted that the choking was intended to be mutually stimulating and was only to enhance the sexual feeling. Each victim, on the other hand, testified that she never consented to sexual activity with Timley, nor did she consent to the choking. L.H. contended that she did not voluntarily get into Timley's car, but was knocked unconscious and awoke in the back seat of his car to discover that he was engaging in sexual activity with her. D.A. and T.S. each insisted that she accepted a ride from Timley and that rather than taking her where she requested, he began choking her and forced her into the back seat of his car to engage in sexual activity without her consent.
I. INSTRUCTIONS
Timley contends the trial court erred in instructing the jury that it could find him guilty if it found that the sexual act was perpetrated by use of force or fear. He suggests that the instructions given by the trial court were improper because he may have been deprived of a unanimous verdict. He maintains that some members may have found that a victim was overcome by force while other members may have found that that victim was overcome
by fear and that if this did occur, the jury verdict would not be unanimous. Timley argues:
"The only way to assure jury unanimity in a multiple acts case is to require that either the state elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that they must all agree that the same underlying criminal act has been proved beyond a reasonable doubt."
Timley notes that his defense was that the sex was consensual and therefore the manner of perpetration is critical.
Timley cites without discussion or analysis State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), for the proposition that the jury must agree that the same underlying criminal act has been proved beyond a reasonable doubt. In Kitchen, the appeals of several defendants were consolidated. The defendants had been charged with sex offenses, but the dates of the offenses had not been pinpointed. Rather, each victim had testified that on more than one occasion the defendant had engaged in activity which could support a finding of guilt. The court noted the rule that " hen the prosecution presents evidence of several acts that could form the basis of one count c
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