State Of Washington, V. Byron Martin Spear, 53390-1

Background

Between Oct. 2016 and July 2017, Byron M. Spear lived with and cared for his sister’s children and was later charged with three counts of first-degree rape of a child and two counts of first-degree child molestation based on multiple incidents involving his niece, A.R.S.
Trial evidence included the child’s detailed testimony about multiple distinct acts (licking, digital and penile contact, use of a vibrator) and a witness who recounted Spear’s admissions on social media; Spear denied the allegations.
Jury instructions included separate to-convict instructions for each count, Petrich-style unanimity language requiring the jury to unanimously agree on which particular act supported a count, and a general instruction that each count must be decided separately.
During deliberations the jury asked whether counts must be different acts and how to report non-unanimous votes; the court told them to reread the instructions and the jury returned unanimous guilty verdicts on all counts.
At sentencing the court calculated an offender score of 9+ based on a stipulation including two Idaho convictions, imposed 318 months to life, ordered community custody conditions (including an internet/email restriction and testing/searches for controlled substances), and assessed a $100 DNA collection fee plus community supervision fees.
On appeal the Court of Appeals affirmed convictions, held the internet/email ban was unauthorized and must be struck, reversed the DNA fee and community supervision fees and remanded for reconsideration of LFOs consistent with defendant’s mental-health/ability-to-pay, and left the searches/testing condition for future factual development.

Issues

Issue	State's Argument	Spear's Argument	Held
Whether jury needed explicit separate-and-distinct-acts instruction to avoid double jeopardy	Record (victim testimony, separate to-convict instructions, prosecutor argument) made separate-act requirement manifestly apparent	Absence of a distinct-act instruction and jury question show jury misunderstood and could have punished same act multiple times	No double jeopardy violation; entirety of evidence, instructions, and argument made separate-act requirement manifestly apparent to jury
Whether court erred in answering jury question about unanimity	Instruction 7 (Petrich) and other unanimity instructions made unanimity requirement clear; telling jurors to reread instructions was proper	Court failed to make unanimity manifest and should have directly answered the jury’s question, protecting Spear’s right to unanimous verdict	No abuse of discretion; instructions (including Petrich instruction) sufficiently informed jury and court properly told jury to reread instructions
Whether Idaho convictions were properly included in offender score	Defendant and counsel signed Prosecutor’s Statement of Criminal History stipulating the priors and offender score, satisfying SRAs proof burden	State failed to prove comparability of the Idaho convictions to Washington felonies	No error: Spear’s signed stipulation constitutes an affirmative acknowledgment, so priors were includable
Whether sentencing conditions and LFOs were authorized (internet/email ban; testing/searches; DNA fee; community supervision fees)	Internet/email restriction linked to one social-media contact but did not contribute to charged crime; searches/testing authorized by statute when reasonable cause; DNA fee generally mandatory unless DNA already collected; supervision fees discretionary	Internet/email ban overbroad and not crime-related; searches/searches violate privacy and are premature to review; DNA fee improper given defendant’s mental health/indigency; supervision fees should be waived if indigent	Internet/email condition unauthorized — strike it; searches/testing condition allowed by statute but premature to review until implemented; DNA collection fee and community supervision fees reversed and remanded for reconsideration under RCW 9.94A.777 concerning mental health/ability-to-pay

Key Cases Cited

State v. Mutch, 171 Wn.2d 646 (2011) (when multiple acts could support multiple counts, instruction that each count be based on a separate act is required unless the record makes that requirement manifestly apparent)
State v. Petrich, 101 Wn.2d 566 (1984) (Petrich unanimity rule: jury must unanimously agree on the particular act supporting conviction when evidence shows several distinct acts)
State v. Ross, 152 Wn.2d 220 (2004) (defendant’s affirmative acknowledgement/stipulation can satisfy State’s burden to prove out-of-state priors for offender-score purposes)
State v. Nguyen, 191 Wn.2d 671 (2018) (crime-related prohibitions for community custody must be directly or reasonably related to the circumstances of the offense)
State v. O'Cain, 144 Wn. App. 772 (2008) (internet restrictions are crime-related only if internet use contributed to the crime)
State v. Tedder, 194 Wn. App. 753 (2016) (trial court must inquire into mental-health diagnosis and ability to pay before imposing LFOs other than restitution and victim penalty assessment)
State v. Lamar, 180 Wn.2d 576 (2014) (presumption that jurors follow trial court instructions)