State v. Nunez
248 P.3d 103
Wash. Ct. App.2011Background
- Nunez was convicted of delivery and possession of a controlled substance with a 24-month sentencing enhancement for a finding that the crimes occurred within 1,000 feet of a school bus stop.
- State added the 1,000-foot school zone enhancement as a special allegation to the charges.
- Trial occurred in June–July 2009 after multiple continuances and speedy-trial scheduling decisions.
- Bashaw (2010) later held it was error to instruct juries that unanimity was required to convict or acquit an aggravating factor.
- Nunez moved to supplement his brief to challenge the enhancement based on Bashaw, which the court granted.
- The Court of Appeals affirmed, rejecting both the instructional-error claim and other challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the school-zone enhancement instruction was manifest constitutional error. | Nunez argues Bashaw requires vacating the enhancement. | Nunez did not object at trial; error not manifest. | Not manifest constitutional error; affirmed. |
| Whether the issue is reviewable under RAP 2.5(a) given preservation rules. | Bashaw error is reviewable as public-interest and constitutional issue. | Failure to object prevents review under RAP 2.5(a). | Not reviewed on appeal under RAP 2.5(a); affirm. |
| Whether instructional error affected rights such that Bashaw harmless-error analysis applies. | The unanimity requirement could influence verdict on enhancement. | No prejudicial effect shown; pattern instruction proper. | Not shown to have practical prejudice; not manifest. |
Key Cases Cited
- State v. Bashaw, 169 Wash.2d 133 (2010) (holding that unanimity is not required to convict on enhancement; analyzed for harmless error)
- State v. Goldberg, 149 Wash.2d 888 (2003) (unanimity principles related to aggravating factors; context for Goldberg rule)
- State v. Labanowski, 117 Wash.2d 405 (1991) (acquittal-first vs. unable-to-agree instructions; preference for unable-to-agree)
- State v. O'Hara, 167 Wash.2d 91 (2009) (manifests and prejudicial impact of instructional errors examined; burden on showing actual prejudice)
- State v. Scott, 110 Wash.2d 682 (1988) (RAP 2.5(a) preservation of errors in appellate review)
- Lynn v. State, 67 Wash.App. 339 (1992) (four-step framework for manifest constitutional error analysis)