State Of Washington v. Tehl Matthew Dunlap, 48753-5

Dunlap and Thompson had an on‑again/off‑again relationship; on Sept. 27, 2015 Thompson was with a friend (Aaron); Dunlap confronted her at a bar, then drove Thompson in his truck for ~60–90 minutes during which Thompson testified Dunlap assaulted her repeatedly and would not let her leave.
State charged Dunlap with fourth‑degree assault (single count), first‑degree kidnapping, unlawful imprisonment, and malicious mischief; jury convicted on fourth‑degree assault and unlawful imprisonment but acquitted on kidnapping and malicious mischief.
Before trial defense counsel moved under CrR 3.1(f) for authorization of funds for investigative services; the court granted the motion; days later counsel filed an affidavit of prejudice against that judge, which the court denied as untimely because a discretionary ruling had already been made.
Defense moved to recuse the judge after learning the judge had once represented Dunlap as a victim in an old assault matter; judge declined, stating the event was >10 years earlier and he did not recall Dunlap or details.
At trial the State argued multiple assaultive episodes occurred but did not elect a particular act and no unanimity instruction was requested or given; Dunlap did not object at trial and raised unanimity for the first time on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of affidavit of prejudice (denial of judge)	Affidavit was timely and should disqualify judge	Granting CrR 3.1(f) funds is discretionary, so affidavit filed after that ruling is untimely	Denied: affidavit untimely because it was filed after a discretionary ruling on investigative funds
Appearance of fairness / recusal	Judge’s prior role as defense counsel in a case involving Dunlap created an appearance of bias	Prior encounter was over 10 years earlier, judge did not recall Dunlap, no evidence of actual or probable bias	Denied: no reasonable observer would conclude judge lacked impartiality; no abuse of discretion in refusing recusal
Jury unanimity for assault charge	Multiple distinct assaults were alleged; State should have elected an act or the court should have given a unanimity instruction; error is constitutional and manifest	The assaults formed a single continuing course of conduct (same victim, place, time, and objective), so no election or unanimity instruction was required; issue waived by failure to object	Declined to reach on appeal: jury unanimity error not manifest because evidence supported a continuing course of conduct; convictions affirmed

State v. Gentry, 183 Wn.2d 749 (2015) (party may disqualify judge by affidavit when statutory criteria met)
In re Recall of Lindquist, 172 Wn.2d 120 (2011) (affidavit of prejudice must be filed before judge makes any discretionary ruling)
State v. Kitchen, 110 Wn.2d 403 (1988) (when multiple distinct acts can support the charged crime, State must elect or court must give unanimity instruction)
State v. Rodriquez, 187 Wn. App. 922 (2015) (continuing course of conduct obviates need for election/unanimity)
State v. McNearney, 193 Wn. App. 136 (2016) (standards for manifest error review when unanimity not raised below)
State v. Crane, 116 Wn.2d 315 (1991) (continuing course of conduct can encompass multiple acts over an extended period)