                                                                      FILED

                                                                 MAY 23,2013

                                                         In the Office of the Clerk of Court 

                                                       W A State Court of Appeals, Division III 


         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )       No. 29545-1-111
                                              )
                             Respondent,      )
                                              )
        v.                                    )
                                              )       UNPUBLISHED OPINION
TIMOTHY LUCIOUS,                              )
                                              )
                             Appellant.       )

      KORSMO,     C.J. - Timothy Lucious appeals his convictions for drive-by shooting

and six counts of second degree assault while armed with a firearm, arguing that the

evidence did not support both alternative theories of assault in each count. We disagree

with his arguments and affirm the convictions and his persistent offender sentence.

                                           FACTS

      This case involves the shooting of a group of women in a car on Spokane's lower

South Hill. Mr. Lucious and another man, identified as "Mike Mike"l by one of the

victims, approached a car containing the women from different sides. Mr. Lucious fired



       1 He   was identified as Michael Gardner.
No. 29545-1-III
State v. Lucious


at least five shots into the car, seriously wounding two of the occupants. A third

occupant was knocked unconscious by Michael Gardner; the other three women did not

receive any physical injuries.

       Alternative charges of attempted first degree murder and first degree assault were

filed for each of the six women. The case proceeded to jury trial. The court also

instructed the jury on the lesser degree offense of second degree assault for each of the

first degree assaults. The jury ultimately found the defendant guilty of drive-by shooting

and six counts of second degree assault. 2 The jury also unanimously concluded that Mr.

Lucious was armed with a firearm on each of the assault charges.

       After finding that Mr. Lucious had previously been convicted of second degree

assault and riot while armed with a deadly weapon, the court sentenced him to life in

prison as a persistent offender. 3 He then timely appealed to this court.

                                        ANALYSIS

       Mr. Lucious argues that four of the assault convictions should be overturned due

to insufficient evidence supporting one of the alternative means of committing the

offense, the jury's special verdict instructions erroneously required unanimity, and the




       2 The jury apparently could not agree on the greater charges and left all of those
verdict forms blank.
       3   Those offenses were among Mr. Lucious' s 10 prior adult felony convictions.

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No. 29545-1-II1
State v. Lucious


persistent offender sentencing statute runs afoul of Blakely v. Washington, 542 U.S. 296,

124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We will address those three contentions in

that order.

       Sufficiency ofAlternative Means

       The jury was instructed upon two different theories of second degree assault: the

victims were assaulted with a deadly weapon or they were intentionally assaulted and had

substantial bodily harm inflicted upon them. Clerk's Papers (CP) at 100-05. Since four

of the assault victims were not struck by any bullets, Mr. Lucious argues that the

evidence did not support instruction on the substantial bodily harm theory of assault. 4

Noting that a third victim was knocked unconscious by Mr. Gardner, the State contends

that there are only three counts subject to the instructional error, but argues that the error

was harmless in light of the special verdicts.

       When a jury is instructed on alternate means of committing a crime, the jury is not

required to be unanimous on which alternative was established if each alternate means

was supported by substantial evidence. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d

105 (1988). However, ifone of the means is not supported by substantial evidence, the

verdict must be overturned unless this court "can determine that the verdict was founded



       Appellant agrees that the evidence supported the deadly weapon alternative. 

       4
Brief of Appellant at 7. 


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No. 29545-1-III
State v. Lucious


upon one of the methods with regard to which substantial evidence was introduced."

State v. Bland, 71 Wn. App. 345, 354, 860 P.2d 1046 (1993).

       The State argues, in the spirit of Bland, that the jury's unanimous finding that each

of the assaults was committed with a firearm satisfies any concerns about jury unanimity.

We agree. To return the special verdict, each juror was required to agree that a firearm

was used in the commission of the offense. CP at 114. The gun was the sole deadly

weapon used in the assault. By unanimously agreeing that Mr. Lucious was armed with a

firearm when the assaults were committed, the jury also had to unanimously agree that

each victim was assaulted with a deadly weapon.

       Thus, we are convinced that the jury could have convicted Mr. Lucious on the

challenged counts only under the deadly weapon theory that was supported by substantial

evidence. The error in instructing on the substantial bodily harm alternative was

harmless in light of the special verdicts.

       Special Verdict Form

       Mr. Lucious next reprises an argument that the special verdict form erroneously

required the jury to act unanimously. This argument has been repeatedly rejected on

several different grounds.

       Where, as here, the defendant did not object to the special verdict form, this court

has concluded that the issue cannot be presented initially on appeal because it does not


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State v. Lucious


implicate a constitutional concern subject to review under RAP 2.5(a). State v. Guzman

Nunez, 160 Wn. App. 150, 159,162-63,248 P.3d 103 (2011), aff'd in part, 174 Wn.2d

707,285 P.3d 21 (2012).

       More fundamentally, the Washington Supreme Court has concluded that the

special verdict form is not erroneous and has overruled the authority on which Mr.

Lucious's argument is based. See Guzman Nunez, 174 Wn.2d at 718-19 (overruling State

v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003) and partially overruling State v.

Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010)). The verdict forms used in this case were

correct.

       The trial court did not err in using the special verdict forms.

       Persistent Offender Sentencing

       Finally, Mr. Lucious argues that the trial court erroneously sentenced him to

prison as a persistent offender. He contends that his prior convictions needed to be

proved to a jury rather than the trial judge. Both the United States Supreme Court and the

Washington Supreme Court have rejected this contention.

       "Other than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.

2348, 147 L. Ed. 2d 435 (2000). Blakely maintained the Apprendi exception when it


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No. 29545-I-III
State v. Lucious


determined that most Washington aggravating factors must be submitted to a jury.

Blakely, 542 U.S. at 301. The Washington Supreme Court recognizes that this exception

confirms that prior felony convictions used to support a persistent offender sentence do

not need to be proved to ajury beyond a reasonable doubt. State v. Wheeler, 145 Wn.2d

116, 121,34 PJd 799 (2001). It earlier had also reached the same result under our state

constitution. State v. Thorne, 129 Wn.2d 736,782-83,921 P.2d 514 (1996).

       Recognizing this contrary authority, Mr. Lucious suggests that a majority of the

United States Supreme Court is poised to change its minds about this exception. While

appellate courts sometimes may try to adjudge undecided issues on the basis of an

anticipated future ruling, they are not free to ignore existing law on the theory that it may

change some day. Instead, we must follow existing authority until the Washington

Supreme Court changes it. E.g., State v. Gore, 101 Wn.2d 481,487,681 P.2d 227

(1984).

       In light of the controlling authority, this court lacks the ability to grant the relief

Mr. Luscious requests.

       Statement ofAdditional Grounds

       Mr. Lucious also filed a statement of additional grounds, the bulk of which alleges

failings by trial counsel, although he also attacks the judge and the prosecutor. We have

reviewed the arguments, but decline to consider most of them as many involve factual


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No. 29545-1-III
State v. Lucious


allegations outside the record of this appeal. His remedy is to seek relief by personal

restraint petition. State v. Norman, 61 Wn. App. 16,27-28, 808 P.2d 1159 (1991).

       One argument that can be addressed on this record is the sufficiency of the

evidence to support the drive-by shooting conviction. RCW 9A.36.045(1) defines the

offense in terms of discharging a firearm "in a manner which creates a substantial risk of

death or serious physical injury" from a motor vehicle or "the immediate area of a motor

vehicle that was used to transport the shooter or the firearm, or both, to the scene of the

discharge." Here, a witness described Mr. Luscious shooting at the victim's car and then

promptly getting into a red Cadillac and departing the scene. That testimony amply

supported this conviction.

       The convictions are affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                                Korsmo, C.J.

WE CONCUR:




       Brown,'.


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