Misdemeanor Assault with “Sexual Motivation”
In February 2014, Michael McNearney was in the lounge of a local Spokane hotel with his date. It was later reported that he and his female companion made unwelcome sexual comments to a cocktail waitress. At some point the waitress walked past Mr. McNearney and he reached under her server tray. He grabbed her private area, stating “I want that.” A few minutes later, Mr. McNearney started to leave the lounge. As he was doing so, he reached out and touched the same cocktail waitress on the stomach. This touching was caught on the hotel’s surveillance video; the earlier grabbing was not.
The State charged Mr. McNearney with a single count of Assault in the Fourth, with Sexual Motivation. At trial, the State presented the waitress’s testimony, as well as the surveillance video which showed Mr. McNearney touching her stomach.
The State did not elect which of these unwanted touches was the basis for the single count of Assault in the Fourth Degree, with Sexual Motivation. Mr. McNearney did not request a jury instruction requiring the jury to be unanimous on one or the other of the two touchings. This is known as a Petrich instruction, following the legal precedent in State v. Petrich, 101 Wn.2d 566 (1984). A Petrich instruction insures that unanimity not be interpreted as half the jurors in favor of one of the alleged assaults, and half in favor of the other, and conclude this is unanimity in favor of conviction. Mr. McNearney was entitled to unanimity on one or the other of these two touchings.
Mr. McNearney was convicted, with a special verdict that the assault was committed with sexual motivation.
On appeal, the State conceded that it did not elect which of the two touchings it was relying on to prove the single assault charge, and also conceded that the court did not give an unanimity instruction. However, the State argued it did not need to do so because the assaults were part of a continuing course of conduct within a very short period of time. Additionally, the State argued Mr. McNearney waived any error by failing to object or ask for a Petrich instruction at trial. Mr. McNearney conceded that he did not do these things, but argued on appeal such error could be overlooked and brought up on appeal for the first time because the error was of constitutional magnitude, i.e. he was denied the right of a unanimous verdict required under the 6th amendment to the U.S. Constitution.
There was a viable defense strategy behind not requesting a unanimity instruction: doing so would “essentially concede that Mr. McNearney’s conduct lent itself to more than one criminal charge.” State v. McNearney, 193 Wn.App. 136, 143 (Mar 2016). Additionally, such a request often tips the State to move to “amend the criminal information and add an additional count of fourth degree assault.” McNearney at 144.
The appellate court in McNearney ruled it would not consider Mr. McNearney’s claimed error on appeal for the first time, holding that there was not a “manifest” constitutional error. Because the “grabbing” and the stomach touch here were against the same victim, at the same cocktail lounge, within moments of each other, any error for not requiring unanimity was not “manifest error”.
There is a concurring opinion by Justice Fearing about interpretation of the term “manifest”, which may well open the door for the Washington Supreme Court to take up this case on discretionary review.
Mr. McNearney’s conduct here is reprehensible. Appropriately, his conviction carries a weight which other Assault 4 convictions do not. Based on the jury’s special verdict that the Assault 4 was done “with sexual motivation,” Mr. McNearney may have more explaining to do than most if a potential employer runs a criminal background check.
These are always very difficult cases, and it is easy to be an armchair quarterback. From a trial strategy standpoint, a Petrich instruction would allow some distance or distinction between the two acts of touching. The second touching involving the waitress’s stomach was harder to dispute in terms of whether it did or did not occur, but the nature of that touching could be disputed. The stomach touch could be argued as a boorish, demeaning act, but not sexual.
The “grabbing” of the private area was not observed; it was a swearing match concerning that touching.
Mr. McNearney’s defense team may have concluded that any concession to the stomach touch, e.g. by a Petrich instruction, would simply validate in jurors’ minds that the more serious, earlier grab occurred. However, if a Petrich instruction had been requested, it is conceivable that jurors would not be unanimous about the first touch, assuming that Mr. McNearney denied it occurred (unclear from the appellate opinion). If the jury had only found the stomach touch proven, he would have a stronger argument for no special verdict.
If you have a criminal matter please contact Jan Olson at Ellis, Li & McKinstry PLLC, (206) 682-0565.