                                                                    FILEO
                                                            COURT OF APPEALS DIY I
                                                            -STATE OF WASHINGTON

                                                             20I1 NOV -6 Ail 9:53




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 75170-1-1
                      Respondent,
        v.                                       DIVISION ONE

 GRAYLIN RENAULD JANUARY,                        UNPUBLISHED OPINION

                      Appellant.                 FILED: November 6, 2017


       LEACH, J. — Graylin January appeals his conviction for felony harassment

and unlawful possession of a firearm in the first degree. He challenges the

sufficiency of the evidence to convict him, claims       violation of his right to a
unanimous jury, and asserts ineffective assistance of counsel. Sufficient evidence

shows January communicated the intent to kill. Also, the trial court's failure to give

a unanimity instruction was not error because January's actual and constructive

possession of the gun formed a "continuous course of conduct." Thus,trial counsel

was not ineffective for failing to submit a unanimity instruction. We affirm.

                                   BACKGROUND

       Late one afternoon in June 2015, Christopher Saunders was driving his blue

Volkswagen Golf. He stopped in the left-turn lane at a stoplight. Felicia Januaryl


        1 Because Felicia January and Graylin January share a surname, we will
refer to Felicia by her first name for clarity.
No. 75170-1-1 / 2


stopped behind Saunders at the light in her Cadillac Escalade. Her husband,

defendant Graylin January, was in the passenger seat of her Escalade. A "road

rage" incident ensued that Saunders claimed involved January, a convicted felon,

pointing Felicia's gun2 at him. January challenges the sufficiency of the evidence

to prove that he communicated an intent to ki11.3 Accordingly, we recite only the

relevant facts.

       Saunders testified that when he stopped at the light, either his cell phone or

police scanner slid onto the floor from the passenger seat. After Saunders reached

down to collect what had fallen, he heard a vehicle behind him "lay on the horn."

He described it as a "continuous" honk and claimed the vehicle behind him was

the only vehicle honking. Saunders saw that the light was green and started to

turn left. After he began turning, the honking continued. In response, Saunders

testified, "I threw my middle finger out my sunroof." The vehicle behind him then

accelerated to the passenger side of his Volkswagen. Saunders testified that he

"screamed fuck you to them." He saw that the driver of the vehicle was an African

American female in her 30s. He did not exchange words with the driver but

focused instead on the passenger, an African American male in his 30s. Saunders

claimed that the passenger asked,"What did you say?" and then turned his whole

body toward Saunders and "held up a gun,. . . pointed it at the windshield, cocked

      2   Felicia testified that the gun is hers and she has a concealed weapons
permit.
       3 The parties gave conflicting versions of events at trial. Although at trial
January and Felicia denied that January had been in possession of Felicia's gun,
January does not challenge the sufficiency of the evidence to support that he was
in possession of her gun.

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No. 75170-1-1 13


it, and proceeded to point it in my direction." Saunders testified, "I was raised to

believe you don't pull a gun on somebody unless you're going to shoot, so I was

in fear of my life."

       Saunders slowed down to learn if the Escalade would continue on. When

it slowed in tandem with Saunders, he sped up. Saunders then saw the Escalade

pull into a store parking lot. He stopped in a turn lane approximately 1,000 feet

from the intersection where the incident occurred.         Saunders watched the

Escalade in his rearview mirror while he called 911. When the police arrived,

Saunders identified the driver and passenger of the Escalade as the individuals

involved in the incident.

       Felicia testified that immediately after the incident she pulled into the

parking lot and went into the store while January waited in the Escalade. She was

inside when the police arrived. She told police that her gun was in the center

console and gave her consent for them to retrieve it. January testified that when

the police questioned him he was scared. He knew that with his felony conviction

he was "not supposed to be around [guns]."

       A jury convicted January of felony harassment and unlawful possession of

a firearm in the first degree. January appeals.




       4 Responding Officer Jason Clift's testimony casts doubt on whether
January actually cocked the gun; when Clift retrieved the gun from the Escalade's
center console, there was no round in the chamber.

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No. 75170-1-1 / 4


                                     ANALYSIS

                            Sufficiency of the Evidence

       January challenges the sufficiency of the evidence to support his conviction

for felony harassment. When reviewing a sufficiency challenge, an appellate court,

viewing the evidence in the light most favorable to the State, asks whether any

rational trier of fact could have found the defendant guilty beyond a reasonable

doubt.5 Sufficient evidence must support every element of the charged offense.6

The appellate court defers to the trier of fact on issues of conflicting testimony,

witness credibility, and persuasiveness of the evidence.7            In questions of

sufficiency, circumstantial evidence and direct evidence carry equal weight.5

       To convict a person of felony harassment based on a threat to kill, the State

must prove beyond a reasonable doubt that the defendant (1) without lawful

authority, (2) knowingly threatened to cause bodily injury immediately or in the

future, and (3)the threat to cause bodily harm consisted of a threat to ki11.9 "Threat"

means to communicate,1° directly or indirectly, the intent to cause bodily injury.11

Here, the court also instructed the jury,



       5 State  v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       6 State  v. Alvarez, 128 Wn.2d 1, 19, 904 P.2d 754 (1995).
       7 State v. Mehrabian, 175 Wn. App. 678, 699, 308 P.3d 660(2013).
       8 State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
       9 RCW 9A.46.020(1)(a)(i), (2)(b).
        10 "Communication' is '[t]he expression or exchange of information by
speech, writing, gestures, or conduct; the process of bringing an idea to another's
perception." State v. Toscano, 166 Wn. App. 546, 554, 271 P.3d 912 (2012)
(alteration in original)(quoting BLACK'S LAW DICTIONARY 296 (8th ed. 2004)).
        11 RCW 9A.04.110(28)(a).

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No. 75170-1-1 /5

              To be a threat, a statement or act must occur in a context or
       under such circumstances where a reasonable person, in the
       position of the speaker, would foresee that the statement or act
       would be interpreted as a serious expression of intention to carry out
       the threat rather than as something said in jest or idle talk.[12]

       January challenges the sufficiency of the evidence to prove that he

communicated the intent to kill. He maintains that pointing a gun at another person

by itself is insufficient to prove a death threat. The jury may not infer criminal intent

from evidence that is patently equivocal. 13 January asserts that the evidence was

patently equivocal about whether he was communicating a threat to kill and that

the jury received insufficient evidence to resolve the ambiguity. We disagree.

       A reasonable juror could find that together, evidence of January's words

and actions unequivocally indicate that he communicated the intent to kill

Saunders. The nature of a threat depends on all the facts and circumstances and

is not limited to a literal translation of the words spoken.14 "[I]nferences of intent

may be drawn only 'from conduct that plainly indicates such intent as a matter of

logical probability.'"15 Saunders testified that January asked,"What did you say?'

and then "held up a gun,. . . pointed it at the windshield, cocked it, and proceeded

to point it in my direction." Saunders described how quickly the incident escalated

and explained, "It was pretty instantaneous. 1 screamed fuck you. [January

yelled,]'What did you say?' Gun to my face." He testified that January did not


       12 1 1WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 2.24, at 80 (4th ed. 2016).
      13 State v. Vasquez, 178 Wn.2d 1, 14, 309 P.3d 318 (2013).
      14 State v. C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003).
      15 Vasquez, 178 Wn.2d at 14 (quoting State v. Bergeron, 105 Wn.2d 1, 20,
711 P.3d 1000 (1985)).

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No. 75170-1-1 /6


raise the gun in jest and he "thought for sure I was going to be shot." Saunders

was "terrified" making the call to the police.

       In an aggressive incident of"road rage," a reasonable person in Saunders's

position would interpret a gun pointed in the direction of his head from the vehicle

beside his as communicating the intent to kill. Moreover, a jury could logically

believe that the question,"What did you say?" in conjunction with pointing a gun in

Saunders's direction suggests that if Saunders had repeated what he had said,

January would have likely shot him. Sufficient evidence shows that January's

conduct plainly indicated the intent to kill. A rational juror could have found beyond

a reasonable doubt that January threatened to kill Saunders when he pointed a

gun toward Saunders amidst a heated "road rage" incident.

                          The Right to a Unanimous Jury

       January also asserts for the first time on appeal that the trial court's failure

to give a Petrich16 unanimity instruction violated his right to a unanimous verdict in

violation of article I, section 22 of the Washington State Constitution.17 Generally,

we do not consider claims of error raised for the first time on appea1.18 But a party

may raise for the first time on appeal a manifest error affecting a constitutional




       16State v. Petrich, 101 Wn. 2d 566,683 P.2d 173(1984).
      17 "A defendant's right to a unanimous verdict is rooted in the Sixth
Amendment to the United States Constitution and in article I, section 22 of the
Washington State Constitution." State v. Furseth, 156 Wn. App. 516, 519, 233
P.3d 902(2010).
      18 State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).



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No. 75170-1-1/ 7


right.19 The failure to provide a unanimity instruction is a manifest constitutional

error that a party may raise for the first time on appea1.23

       January contends that the jury had to unanimously accept either the State's

theory of actual possession of the gun or its theory of constructive possession.

When the State presents evidence of several acts, any one of which is allegedly

sufficient to constitute the crime charged, the "'jury must be unanimous as to which

act or incident constitutes a particular charged count of criminal conduct.'"21 The

State must elect the act it is relying on or the trial court must instruct the jury that

the jury must agree as to what act or acts the State proved beyond a reasonable

doubt.22 But this rule does not apply when the State presents evidence of multiple

acts that are a "continuing course of conduct.'"23 To determine whether criminal

conduct constitutes one continuing act, the trial court must evaluate the facts in a

commonsense manner.24 A reviewing court will consider "(1) the time separating

the criminal acts and (2) whether the criminal acts involved the same parties,

location, and ultimate purpose."25

       To convict January of unlawful possession of a firearm in the first degree,

the jury had to find beyond a reasonable doubt that January knowingly had a

       19   RAP 2.5(a)(3); see also State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591
(2001).
       29 Furseth, 156 Wn. App. at 519 n.3.
       21 Furseth, 156 Wn. App. at 520 (quoting State v. Borsheim, 140 Wn. App.
357, 365, 165 P.3d 417 (2007)).
       22 Petrich, 101 Wn.2d at 570, 572-73.
       23 State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (quoting
Petrich, 101 Wn.2d at 571).
       24 Handran, 113 Wn.2d at 17.
       25 State v. Brown, 159 Wn. App. 1, 14,248, P.3d 518 (2010).



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No. 75170-1-1 / 8


firearm in his possession or contro1.26 Possession of a firearm may be actual or

constructive.27 Actual possession occurs when the firearm is in the actual physical

custody of the person charged.28 Constructive possession occurs when the person

charged does not have physical possession of the firearm but instead has

dominion and control over the firearm.29 In proving that January possessed a

firearm, the prosecution asserted both theories of possession. The prosecution

maintained that January actually possessed the firearm by pointing it at Saunders

in the intersection and that January constructively possessed the firearm at the

store parking lot by sitting in the Escalade alone with the firearm in the center

console. January contends that the trial court committed manifest constitutional

error by not giving a unanimity instruction because each instance of possession

occurred under a different theory of possession, at a different time, and in a

different place. We disagree.

       January's actual and constructive possession of the gun were part of a

continuing course of conduct. January cites State v. Mata3° for the proposition that

an interruption in possession of a firearm may result in more than one possession

charge. In Mata, however, Division Three held that the defendant's actual and

constructive possession constituted one chargeable offense of possession for

purposes of double jeopardy because the State offered no evidence that the


       28 RCW 9.41.040(1)(a).
       27 Statev. Manion, 173 Wn. App. 610, 634, 295 P.3d 270(2013).
       28 Manion, 173 Wn. App. at 634.
       29 Manion, 173 Wn. App. at 634.
       30180 Wn. App. 108, 120, 321 P.3d 291 (2014).


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No. 75170-1-1 / 9


possession had been interrupted.31 Mata therefore suggests that whether the

defendant's possession was interrupted is decisive rather than if the defendant

possessed the gun under more than one theory of possession. Thus, we examine

whether January's possession occurred close in time and placed to decide whether

his possession was a continuous course of conduct rather than the fact that the

State argued both actual and constructive possession.

       To support his claim that he did not continually possess the gun, January

cites State v. King.32 There, this court held that a continuing course of conduct

does not include two distinct instances of cocaine possession occurring at different

times, in different places, and involving two different containers.33 We distinguish

this case from King. January actually and constructively possessed Felicia's gun

in nearly the same place at the same time. And, similar to Mata, neither the State

nor January presented any evidence that January's possession was interrupted.

       Saunders testified that after January brandished a gun in the intersection,

January's Escalade pulled into the store parking lot only "one business away"from

the intersection. • Saunders immediately pulled over and called the police. He told

the dispatcher that January had pointed a gun at him "just now, like 30 seconds

ago" and that January was at the Short Stop only "a few hundred feet" from the

intersection. Officers arrived at the Short Stop within minutes of Saunders calling

911. Felicia testified that she had been in the store for no more than two or three


       31 Mata, 180 Wn. App at 120.
       32 75 Wn. App. 899, 878 P.2d 466 (1994).
       33 King, 75 Wn. App. at 903.

                                        -9-
No. 75170-1-1 / 10


minutes before police arrived. She told the responding officers that her gun was

in the center console in the Escalade in which January had been sitting and gave

Officer Clift permission to retrieve it. Thus, January's actual possession when he

pointed the gun at Saunders and constructive possession when he sat alone in the

car with the gun occurred minutes apart within a few hundred feet of one another.

This constitutes a continuous course of conduct.

       Because January's actual and constructive possession of Felicia's gun

constituted a continuous course of conduct, January was not entitled to a unanimity

instruction.

                        Ineffective Assistance of Counsel

       January next claims that he received ineffective assistance of counsel

because his trial counsel did not request a unanimity instruction. Claims of

ineffective assistance present mixed questions of law and fact, which this court

reviews de novo.34

       The defendant must show that(1) counsel's performance was deficient and

(2) counsel's deficient performance prejudiced the defense.35 If the defendant

carries this burden, we will reverse.36    To prove deficient performance, the

defendant must show that counsel's performance fell below an objective standard

of reasonableness.37 Appellate courts examine trial counsel's performance with


      34 Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
      35 Strickland, 466 U.S. at 687.
      36 State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995).
      37 Strickland, 466 U.S. at 687-88.



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No. 75170-1-1/ 1,1


great deference, and the defendant must overcome the presumption that the

challenged action "might be considered sound trial strategy."38

      As discussed above, because a unanimity instruction was not required in

this case, counsel's performance did not fall below an objective standard of

reasonableness. Because January did not show deficient performance, we need

not address whether counsel's performance prejudiced January's defense.

                                 Appellate Costs

       Finally, January asks the court to deny the State appellate costs based on

his indigency. We generally award appellate costs to the substantially prevailing

party on review.39 But when a trial court makes a finding of indigency, that finding

continues throughout review "unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency."4° Here, the trial

court found January was indigent. If the State has evidence indicating significant

improvement in January's financial circumstances since the trial court's finding, it

may file a motion for costs with the commissioner.

                                  CONCLUSION

       Sufficient evidence shows January communicated an intent to kill by

pointing a gun toward Saunders from the vehicle beside his during a "road rage"


      38 Strickland, 466 U.S. at 689(quoting Michel v. State of Louisiana, 350 U.S.
91, 101,76 S. Ct. 158, 100 L. Ed. 83(1955)).
      39 RAP 14.2.
      40 RAP 14.2; see also State v. St. Clare, 198 Wn. App. 371, 382, 393 P.3d
836, review denied, 189 Wn.2d 1004(2017).

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No. 75170-1-1/ 12


incident. January fails to show that the lack of a unanimity instruction violated his

constitutional right to a unanimous jury. Thus, January does not show that defense
                   1
counsel's failure to propose a unanimity instruction constitutes deficient

performance. We affirm.




WE CONCUR:



                        A c6"--




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