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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40842-2-II

                             Respondent,

       v.

BRADLEY D. KENYON,                                         UNPUBLISHED OPINION

                             Appellant.

       Johanson, J    --    Bradley Kenyon appeals his jury trial      conviction for delivery of 

methamphetamine and a school bus stop sentencing enhancement.     Kenyon asserts various claims 

on appeal:  (1)  insufficient evidence,  (2) ineffective assistance of counsel, (3)  prosecutorial 

misconduct, (4) improper jury instructions, and (5) jury misconduct.  We affirm.

                                            FACTS

                                      I.  Underlying Crime

       In September 2009, the West Sound Narcotics Enforcement Team (WestNet), at the 

direction of Shelton Police Detective Tasesa Maiava, used a confidential informant (CI), to 

execute a controlled buy of methamphetamine from Bradley Kenyon at his Shelton home.  Shelton 

Detectives Maiava and Inklebarger met the CI at a secure location and discussed the details of the  

No. 40842-2-II

controlled buy.  They searched  the CI to make sure she was not carrying any contraband.  

Following the search, Detective Maiava gave the CI prerecorded funds for the purchase.

       Detective Maiava drove the CI to an intersection near Kenyon's home and let the CI out 

of  his car.  The CI walked down C Street and turned toward Kenyon's trailer.         Detectives

Inklebarger and Maiava positioned themselves in different observation locations, and together, 

they never lost sight of the CI until she entered the trailer.  The CI left  Kenyon's trailer  10

minutes later, and the detectives again maintained visual contact with her until she returned to 

Detective Maiava's awaiting vehicle.  Inside the car, the CI handed Detective Maiava a baggie of 

crystal methamphetamine she had purchased from Kenyon.  Detective Inklebarger remained in his 

observation position for a few minutes to see whether anyone else left the trailer.  No one else left

during that time.

                                         II.  Procedure

       After the controlled buy, Detective Maiava used a wheeled measuring device to measure 

the distance from Kenyon's trailer to the nearest Shelton School District bus stop.  The Shelton 

School District had informed Detective Maiava that the nearest bus stop was at Olympic Highway 

North and C Street, in front of Skipworth's saw shop,1 and  Detective Maiava testified that he had

seen children waiting for the bus in front of Skipworth's.  

       The State charged Kenyon with delivery of a controlled substance.  RCW 69.50.401.  The 

State added a sentence enhancement because Kenyon delivered the drugs within 1000 feet of a 

1 Shelton School District officials told Detective Maiava that the bus stop was located at Olympic 
Highway and C Street, in front of Skipworth's.  The school district's bus route printout, admitted 
as State's exhibit 4, listed the stop at C Street and Adams -- a block away from Olympic Highway 
North.

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No. 40842-2-II

school bus stop.  RCW 69.50.435.

       Just before trial, Kenyon filed motions to continue the trial and to request appointment of

new counsel.  He claimed that his mother's testimony would exonerate him, but against counsel's

advice, Kenyon's mother left for Texas and missed the trial.  The trial court denied both motions.  

At trial, the CI testified that she and Kenyon were the only people in the trailer and that she 

purchased the methamphetamine from him.

       After the defense's case,    Kenyon moved for a directed verdict on the sentence

enhancement.  He argued that the State failed to adequately demonstrate that the Shelton School 

District had designated the site in front of Skipworth's saw shop as an official bus stop. The trial 

court denied this motion because Detective Maiava had consulted Shelton School District  to

determine the bus stop's location, and he had adequately described the school bus stop site from 

his personal experience.

       During Kenyon's closing argument, his defense counsel pondered:  "[T]here could have 

been somebody else in that trailer.  That's a reasonable doubt.  That's a reason to doubt, and 

that's the end of this case." 14 Verbatim Report of Proceedings (VRP) at 207.  During the 

State's rebuttal, this exchange occurred:

       [State:] The defense is not obligated to put on any kind of a case whatsoever.  But 
       you have to ask yourself if someone argues to you about what if there's somebody 
       else in the trailer, wouldn't you want to hear from that person?
       [Defense:] Objection, your Honor, it's improper.
       [Court:] Overruled.
       [State:] Again, they don't have to do anything; can sit on their hands throughout 
       trial, ladies and gentlemen.  But if you make a suggestion, if you argue that there's 
       maybe some kind of missing witness -- 
       [Defense]:  I object, your Honor.  This shifts the burden.  It's improper.
       [Court:] Overruled.

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No. 40842-2-II

       [State:]   -- do you want to see it or not?
       [Defense:] And I object.  There's no ground for any missing witness instruction or 
       any missing witness argument.
       [Court:]  Counsel, overruled.

14 VRP at 216-17.

       The court instructed the jury regarding the special verdict form: "Because this is a criminal 

case, all twelve of you must agree in order to answer the special verdict form."  Clerk's Papers 

(CP) at 170.   Kenyon did not object to this instruction.   The jury convicted Kenyon on the 

delivery charge and included the sentence enhancement.

       Defense counsel learned  later  that, during  a trial recess in the jury room, juror 4 

commented that Kenyon's female supporters in the gallery resembled the "Manson family"

because of their dress.  17 VRP at 297.  The trial court held a posttrial hearing to determine 

whether an evidentiary hearing or new trial would be necessary due to juror misconduct.  The trial 

court concluded that juror 4 was not referring to Kenyon, and her comment was not based on 

extrinsic evidence that the jury considered during deliberations.  Thus, the court determined that 

the comment, heard by some jurors, did not prejudice Kenyon and that the verdict should stand.

                                          ANALYSIS

                                 I.  Sufficiency of the Evidence

       Kenyon argues that insufficient evidence supports his conviction for delivery of a 

controlled substance and the sentence enhancement.  Kenyon also argues that the State failed to 

establish the reliability of the wheeled measuring device.   The State is correct that witness 

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No. 40842-2-II

testimony sufficiently supports both the conviction and sentence enhancement.       In addition, 

Kenyon failed to preserve for appeal the trial court's admission of the measurements.

                                    A.  Standard of Review

       This court reviews a claim of insufficient evidence for whether, when viewing the evidence 

in the light most favorable to the State, "'any rational trier of fact could have found the essential 

elements of the charged crime beyond a reasonable doubt.'"  State v. Yarbrough, 151 Wn. App. 

66, 96, 210 P.3d 1029 (2009) (quoting  State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 

(1990)).  A sufficiency challenge admits the truth of the State's evidence and all reasonable 

inferences therefrom.  State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 

385, 622 P.2d 1240 (1980).  "In determining the sufficiency of the evidence, circumstantial 

evidence is not to be considered any less reliable than direct evidence."  State v. Delmarter, 94 

Wn.2d 634, 638, 618 P.2d 99 (1980).

       The trier of fact makes determinations of credibility, and those determinations are not 

subject to review.  State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).  This court defers

to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of 

evidence.  State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 

1011 (1992).

       Finally, a party must preserve issues for appeal at the trial court.  Accordingly, we may 

refuse to review any claim of error a party failed to raise at the trial court absent a manifest error 

affecting a constitutional right.  RAP 2.5(a)(3).

                               B.  Delivery of Methamphetamine

                                               5 

No. 40842-2-II

       Kenyon asserts insufficient evidence supports         his conviction for delivery of 

methamphetamine.  This argument fails.

       The CI testified to buying methamphetamine from Kenyon.  She also testified that Kenyon 

was the only person inside his trailer during the controlled buy.  Moreover, Detectives Maiava and 

Inklebarger both testified that the CI went into Kenyon's trailer with $130 and no drugs; and she 

emerged with no money and a bag of methamphetamine.  Taking all this evidence, any rational 

trier of fact could have concluded that the State proved all the essential elements of delivery of a 

controlled substance beyond a reasonable doubt.

                               C.  Reliability of Measuring Device

       Kenyon next argues that we should vacate his sentence enhancement because the State 

failed to establish the reliability of the wheeled measuring device used to measure the distance 

between the bus stop and Kenyon's trailer.  Though the State did not make a prima facie showing 

of the measuring device's accuracy, Kenyon failed to preserve this issue for appeal.

       Kenyon did not object to the lack of foundation laid for the wheel measuring device, nor 

did he object prior to the admission of the measurement.  Therefore, we will not entertain the 

claim of error on appeal.  See RAP 2.5(a)(3).

                                   D.  Sentence Enhancement

       Kenyon argues that insufficient evidence supports the sentence enhancement because (1) 

the  State cannot establish the exact location of the bus stop and (2) Detective Maiava only 

measured the distance between Kenyon's trailer and one of two possible bus stops.  The State is 

correct that sufficient evidence supports the school bus stop enhancement.

                                               6 

No. 40842-2-II

       Detective Maiava testified that he contacted the Shelton School District bus garage, the 

entity with "jurisdiction over bussing," and the school informed him that the closest bus stop was 

at Olympic Highway North and C Street, in front of Skipworth's saw shop.  2 VRP at 139.  

Detective Maiava also testified to seeing children waiting for the bus in front of Skipworth's.  

Finally, Detective Maiava testified that, using a wheeled measuring device, he measured 525 feet, 

well within 1,000 feet from the school bus stop in front of Skipworth's to Kenyon's trailer.  This 

evidence suffices to prove all the essential elements necessary to convict Kenyon on the special 

enhancement.2  See Yarbrough, 151 Wn. App. at 96.

                              II.  Effective Assistance of Counsel

       Kenyon claims ineffective assistance of counsel for numerous reasons:  (1)  failure  to 

challenge the reliability of the wheeled measuring device; (2) failure  to object to the special 

verdict jury instruction requiring unanimity; (3) failure to prepare and conduct adequate 

investigation; (4) failure to impeach or confront State's witnesses or reveal their ulterior motives; 

(5) failure to communicate; (6) failure to rebut State's "Character Assassinations" of Kenyon; (7) 

failure to present expert witnesses; (8) failure to adequately present a defense; and (9) failure to 

act loyally.  Statement of Additional Grounds (SAG) at 14.  These claims lack merit.

2 At one point, the State asked Detective Maiava if he was familiar with the bus stop at "C Street 
and Adams," creating confusion about a second bus stop.  2 VRP at 143.  Apparently, the State's 
mention of the bus stop at C Street and Adams referenced the same bus stop in front of 
Skipworth's; so, there does not appear to be a second bus stop but more likely a single bus stop 
with multiple names.  Regardless, Detective Maiava testified that he knew the C Street and 
Adams stop to be the school bus stop site.

                                               7 

No. 40842-2-II

                                    A.  Standard of Review

       Washington has adopted the United States Supreme Court's two-pronged Strickland test 

for questions of ineffective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Cienfuegos, 144 Wn.2d 222, 226, 25 P.3d 1011 

(2001).  The Strickland inquiry states:

       "First, the defendant must show that counsel's performance was deficient.  This 
       requires showing that counsel made errors so serious that counsel was not 
       functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. 
       Second, the defendant must show that the deficient performance prejudiced the 
       defense.  This requires showing that counsel's errors were so serious as to deprive 
       the defendant of a fair trial, a trial whose result is reliable.  Unless a defendant 
       makes both showings, it cannot be said that the conviction . . . resulted from a 
       breakdown in the adversary process that renders the result unreliable."

State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 

687).  Under this standard, deficient performance falls "below an objective standard of 

reasonableness."  Strickland, 466 U.S. at 688.  The threshold for the deficient performance prong 

is high, given the deference afforded to defense counsel's  decisions        in the course of 

representation.  State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).

       To prevail on an ineffective assistance claim, a defendant must overcome "'a strong 

presumption that counsel's performance was reasonable.'"  Grier, 171 Wn.2d at 33 (quoting 

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)).  Performance is not deficient when 

counsel's conduct can be characterized as legitimate trial strategy or tactics.  Kyllo, 166 Wn.2d at 

863. Finally, when an appellant brings a claim on direct appeal, this court will not consider matters 

                                               8 

No. 40842-2-II

outside the trial record.  State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

                                  B.  Failing To Object at Trial

       Kenyon argues that his counsel ineffectively assisted him by failing to object to the 

reliability of the wheeled measuring device and failing to object to the sentence enhancement jury 

instruction.  Counsel was not ineffective.

       Detective Maiava measured the distance from the bus stop to Kenyon's trailer at 525 

feet -- obviously within 1,000 feet.  Even if counsel had objected to the reliability of the wheeled 

measuring device, the objection would have done little more than draw further attention to the

methamphetamine delivery occurring near a school bus stop.   An objection would have prompted 

the State to submit additional evidence to bolster its claim that Kenyon sold the drugs within 

1,000 feet of a school bus stop.    Because legitimate trial tactics do not constitute deficient 

performance, trial counsel's failure to object to the reliability of the wheeled measuring device 

does not constitute ineffective assistance.  See Kyllo, 166 Wn.2d at 863.

       Finally, at the time of trial, the Washington Pattern Instructions Committee accepted the

instruction used as standard law. Defense counsel's failure to challenge the instruction did not 

constitute deficient performance but rather normal practice.3  Therefore, it was reasonable that 

defense counsel did not object to the sentence enhancement instruction.  See Strickland, 466 U.S. 

at 688.

3 See State v. Brown, 159 Wn. App. 366, 372, 245 P.3d 776, review denied, 171 Wn.2d 1025 
(2011) (counsel's failure to anticipate changes in the law does not amount to ineffective 
assistance).

                                               9 

No. 40842-2-II

                         C.  Failure to Conduct Adequate Investigation

       Kenyon asserts that his counsel failed to call, attempt to call, or interview witnesses who 

could provide favorable testimony to impeach the State's witnesses.

       Apparently, Kenyon intended his mother to testify that on the day of the controlled buy, 

she was with Kenyon and that he did not sell methamphetamine to the CI.  When Kenyon's wife 

asked defense counsel whether Kenyon's mother should travel to Texas for the winter, defense 

counsel advised Kenyon's wife, "I would tell her not to go because we have trial."             1 

Supplemental VRP (SVRP) at 8.  Kenyon's mother traveled to Texas anyway.  Defense counsel 

reasonably advised Kenyon's mother to stay in the area for the trial, and she declined; moreover, 

defense counsel could have felt Kenyon's mother's testimony would not have been helpful to his 

trial approach.  Reasonable advice and defense tactics do not give rise to an ineffective assistance 

of counsel claim.  See Grier, 171 Wn.2d at 33.

       Defense counsel noted that he had other witnesses available, but he feared that the "jury's 

going to say [the other witnesses' testimony] is canned testimony and they're not going to believe 

[their testimony].  And I prefer to take another attack." 1 SVRP at 9.  Here, defense counsel 

properly exercised his right to choose his own legitimate trial tactics.  See Kyllo, 166 Wn.2d at 

863.

                               D.  Failure to Impeach Witnesses

       Kenyon next argues that defense counsel failed to adequately impeach the State's 

witnesses.  Specifically, Kenyon believes that (1) defense counsel should have impeached the CI 

regarding her drug use and violating her CI agreement; (2) he should have impeached officer 

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No. 40842-2-II

testimony about searching the CI prior to and after the controlled buy; and (3) he should have 

questioned the detectives' method of recording evidence.

       Kenyon's arguments appear to be unfounded, as the record demonstrates that defense 

counsel performed each of the acts Kenyon claims he failed to do.  Counsel did question the CI 

regarding her violating her CI agreement -- through her continued drug use -- until the State 

successfully objected.  Defense counsel did question Detective Maiava about his method of 

searching the CI for contraband prior to the buy.  Finally, defense counsel did question Detective 

Maiava, in detail, regarding the steps he used in logging in and reporting the drugs.

       Given defense counsel's efforts cross-examining the State's witnesses, Kenyon fails to 

overcome the strong presumption that counsel's performance was reasonable.  See Grier, 171 

Wn.2d at 33.  Accordingly, Kenyon fails to demonstrate ineffective assistance of counsel.

             E.  Failure to Communicate and Rebut State's Character Assassination

       Kenyon asserts that his defense counsel failed to communicate with him and failed to rebut 

the State's "Character Assassinations" of him. SAG at 14.  These contentions raise issues beyond 

the scope of the record on review, and we will not consider matters outside the trial record.  

McFarland, 127 Wn.2d at 335.

                             F.  Failure to Present Expert Witnesses

       Kenyon claims defense counsel's failure to call expert witnesses from the Shelton School 

District to verify the location of the bus stop constitutes ineffective assistance of counsel.  This 

claim is unsubstantiated.

       The State had already introduced, over defense counsel's unsuccessful objection, a 

                                               11 

No. 40842-2-II

document from the Shelton School District listing the district's bus stops; and Detective Maiava 

testified that a bus stop was located in front of Skipworth's saw shop -- the location from which 

he measured to Kenyon's trailer.  Defense counsel created doubts regarding the location of the 

bus stop after Detective Maiava referred to the bus stop at Olympic Highway and C Street, versus 

the Shelton School District's formal bus stop listing at C Street and Adams.

       Had Kenyon's defense counsel called a Shelton School District employee to testify, the 

employee  may have confirmed Detective Maiava's description of the bus stop in front of 

Skipworth's, strengthening the State's case.  For these reasons, Kenyon's defense counsel 

reasonably refrained from calling a Shelton School District employee to testify, and reasonable 

actions do not constitute ineffective assistance.  See Grier, 171 Wn.2d at 33.

                                    G.  Contact with the CI

       Kenyon next argues that defense counsel provided ineffective assistance because defense 

counsel had contact with the CI outside of the courtroom.  This claim lacks merit.

       Defense counsel noted prior to trial that he had contact with the CI between mid-

November 2009 and February 2010.  He stated that he "had contact with this individual" and that 

he had "run into this person out in the community."   10 VRP at 68, 76.  The record does not 

demonstrate how this contact prejudiced Kenyon or rendered his counsel ineffective, and absent 

support in the record, this claim is not suitable for direct appeal.  McFarland, 127 Wn.2d at 335.

                                               12 

No. 40842-2-II

                                 H.  Failure to Act with Loyalty

       Lastly, Kenyon asserts that his defense counsel failed to act with loyalty.  He argues that 

his counsel (1) apologized to the CI for asking questions; (2) sought to preclude the State from 

mentioning a material witness warrant for the CI; (3) refused to accept collect calls; (4) failed to 

keep appointments; and (5) failed to share the State's discovery and discuss the defense plan.

                                   1.  Apologizing to the CI

       When the defense cross-examined the CI, counsel questioned her about her criminal 

history in an apparent attempt to impeach her testimony.  Defense counsel asked, "Now let's talk 

specifically about that criminal history.  You have a conviction of unlawful issuance of a bank 

check -- I -- I'm sorry, I have to do this -- unlawful issuance of a bank check dating from October 

28th of 2003, is that correct?" 1 SVRP at 58.  Later, the defense asked the CI a question, and 

before she responded he said, as if the CI had lost her focus, "I'm sorry, [CI]?" 1 SVRP at 58.

       Kenyon claims these statements demonstrate disloyalty toward him.  These apologies, 

however, appear to be tactical efforts to win over a jury -- or maybe simply courtesies and 

decorum appropriate in basic human interaction.  Accordingly, the apologies did not constitute 

ineffective assistance.  See Grier, 171 Wn.2d at 33.

                  2.  Precluding discussion of the CI's material witness warrant

       Kenyon argues that defense counsel should not have asked the trial court to preclude 

mention of the CI's material witness warrant.  Also, Kenyon claims defense counsel should have 

focused on the CI violating her CI agreement with WestNet.  These claims lack merit.

       First, prior to trial, defense counsel asked the trial court to preclude the State from 

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No. 40842-2-II

mentioning the material witness warrant that the trial court had issued for the CI.  1 VRP at 38.  

He did so because "it doesn't seem relevant."    1 SVRP at 38.  Second, during the CI's cross-

examination, defense counsel asked whether she had violated her WestNet CI agreement, and she 

answered affirmatively before the State successfully objected to end this line of questioning.

       Defense counsel acted reasonably in both of these situations, so  his efforts  did not 

constitute deficient performance.  See Grier, 171 Wn.2d at 33.

           3.  Refusing collect calls, failing to keep appointments and share discovery

       Kenyon next claims that defense counsel created an irreconcilable conflict of interest by 

not accepting his collect calls, failing to keep scheduled appointments, and failing to share the 

State's discovery with him.  But, we will not consider these contentions because they raise issues 

beyond the scope of the record on review.  See McFarland, 127 Wn.2d at 335.

                                 III.  Prosecutorial Misconduct

       Kenyon argues that during rebuttal argument, the State erred by shifting the burden of 

proof to Kenyon.  But, because Kenyon advanced an exculpatory theory during closing, the State 

was entitled to rebut it.

                                    A.  Standard of Review

       An appellant claiming prosecutorial misconduct must show both improper conduct and 

resulting prejudice.  State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).  A defendant 

suffers prejudice only where there is a substantial likelihood the misconduct affected the jury's 

verdict.  State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 

(1998).  We review a prosecutor's comments during closing argument in the context of the total 

                                               14 

No. 40842-2-II

argument, the issues in the case, the evidence addressed in the argument, and the jury instructions.  

Brown, 132 Wn.2d at 561.

       While it is improper to imply that the defense has a duty to present evidence, the State 

may properly comment on the evidence.  See McKenzie, 157 Wn.2d at 58-59.  Specifically, the

State may comment on the absence of certain evidence if persons other than the defendant could 

have testified regarding that evidence.  State v. Jackson, 150 Wn. App. 877, 887, 209 P.3d 553, 

review denied, 167 Wn.2d 1007 (2009) (citing State v. Ashby, 77 Wn.2d 33, 37-38, 459 P.2d 403 

(1969)).  When a defendant attempts to establish a theory of the case by alleging the 

corroborating testimony of an uncalled witness, the State is entitled to attack the adequacy of the 

proof and point out weaknesses and inconsistencies, including the lack of testimony which would 

be integral to the defendant's theory.  State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114, 

review denied, 115 Wn.2d 1014 (1990).

       In Contreras, the defendant was charged with second degree assault.  He testified that on 

the night of the alleged assault, he was nowhere near the assault, but with a friend at the 

racetrack.  Contreras, 57 Wn. App. at 472.   During closing, the State commented on the 

defendant's failure to call this friend.  Contreras, 57 Wn. App. at 473.  Division One of this court 

held that the State is entitled to point out weaknesses and inconsistencies in a defendant's case, 

including the lack of testimony which would be integral in supporting the defendant's theory.  

Contreras, 57 Wn. App. at 476.  The Contreras case is similar to this one.

                                               15 

No. 40842-2-II

                               B.  No Improper Burden Shifting

       Here, Kenyon argued in closing that the CI may have purchased the methamphetamine

from somebody else in Kenyon's trailer.  Kenyon could have called this exculpatory witness, but 

he did not.  Consequently, the State's comments did not improperly shift the burden of proof.  

Instead, as in Contreras, the State validly drew attention to the defense theory's shortcomings, 

including the lack of testimony from a witness who could exonerate Kenyon.  See Contreras, 57 

Wn. App. at 476.

       Moreover, the trial court properly instructed the jury that closing remarks were not 

evidence; that the State had the burden of proof; and, that Kenyon was presumed innocent.  Also, 

the State prefaced its remarks reminding the jury that the State bears the burden of proof:  "The 

defense is not obligated to put on any kind of a case whatsoever.  But you have to ask yourself if 

someone argues to you about what if there's somebody else in the trailer, wouldn't you want to 

hear from that person?" 14 VRP at 216.  For these reasons, when taken in the context provided 

by the evidence and jury instructions, the State's rebuttal statements did not constitute error.  See

Brown, 132 Wn.2d at 561.

                                IV.  Improper Jury Instructions

       Kenyon asserts that we should vacate the       sentence  enhancement    because the jury 

instruction improperly required juror unanimity in order to reach a verdict.  But, Kenyon failed to 

preserve this issue for appeal.  We recently addressed the same issue in State v. Grimes, 165 Wn. 

App. 172, 267 P.3d 454 (2011), which controls here.  Based on Grimes, we hold that Kenyon 

failed to preserve the sentencing enhancement instruction issue for appeal and fails to show that 

                                               16 

No. 40842-2-II

this instruction involves a manifest error of constitutional magnitude.  See RAP 2.5(a)(3); Grimes, 

165 Wn. App. at 189.4

                                     V.  Juror Misconduct

       Kenyon next argues that the trial court erred by denying his motion for a new trial based 

on juror misconduct.  The trial court did not abuse its discretion in upholding the verdict.

                                    A.  Standard of Review

       We review a trial court's ruling on a motion for a new trial based on juror misconduct for 

an abuse of discretion.  State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994).  A court 

abuses its discretion when it makes a manifestly unreasonable decision or bases a decision on 

untenable grounds.  State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217 (2009).  We grant a new 

trial only where juror misconduct prejudiced a defendant.  State v. Earl, 142 Wn. App. 768, 774, 

177 P.3d 132, review denied, 164 Wn.2d 1027 (2008).  Although prejudice is presumed when

misconduct has occurred, one may overcome that presumption by showing that the conduct did 

not affect jury deliberations.  Depaz, 165 Wn.2d at 856.  

                           B.  Proper Denial of Motion for New Trial

       During a trial recess, juror 4 commented to other jurors that some of Kenyon's supporters 

reminded her of the "Manson family" because of their appearance.  17 VRP at 297.     As a result, 

Kenyon moved for a new trial based on juror misconduct.

4 Even if Kenyon could successfully show that the jury instruction claim raises a manifest 
constitutional error, he cannot demonstrate resulting prejudice.  Any error was harmless, as 
Detective Maiava testified to the distance from Kenyon's trailer to the bus stop in front of 
Skipworth's -- a distance well within the 1,000 feet special enhancement zone.  Kenyon did not 
contradict this evidence at trial.

                                               17 

No. 40842-2-II

       The trial court gathered juror declarations and held a hearing on the motion.  The court

concluded that a new trial was not necessary.  The trial court observed

       [O]ne juror saying anything, more likely than not one time, on one occasion.  And 
       only one juror thought he had heard it -- or she had heard it two times.  But then 
       again, only one juror saying anything that second time, one phrase.  And it was 
       never followed-up on at any time during the rest of the trial, or in deliberations.
       . . . 
              . . . .
              . . . Juror number 4 said it had nothing to do with the defendant.  Juror 
       number 7 said it had to do with the people sitting in the gallery and how they were 
       dressed and behaving.

17 VRP at 276.    The trial court added later:  "It is also pointed out [Juror 4] was not talking 

about the defendant, does not know who heard her, did not happen during deliberations, it 

happened once.  There was no discussion about it.  And it never entered their deliberations."  17 

VRP at 297.  Consequently, the trial court upheld the jury's verdict:  "[I]n light of the evidence 

this Court saw, I saw nothing to indicate that the verdict should not be supported at this time, and 

was justified.  The policy of a stable certain verdicts and frank discussion indicates this should 

sustain itself." 17 VRP at 298.

       In sum, the trial court examined the evidence of misconduct, and weighed the potential 

that Kenyon suffered prejudice before ultimately upholding the jury's verdict and denying 

Kenyon's motion for a new trial.  Thus, the court's action upholding the jury verdict was not 

manifestly unreasonable or based on untenable grounds, such as to constitute an abuse of its 

discretion.  See Depaz, 165 Wn.2d at 858.

                                               18 

No. 40842-2-II

       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 pursuant to RCW 2.06.040, it is so 

ordered.

                                                                   Johanson, J.
We concur:

               Armstrong, P.J.

                   Hunt, J.

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