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                                                              20/6 OCT 31 hHS:L




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 DIVISION ONE
                     Respondent,
                                                 No. 74037-7-1
              v.
                                                 UNPUBLISHED OPINION
NICHOLAS DEON CLOYD,

                     Appellant.                  FILED: October 31, 2016


       Dwyer, J. — Following a jury trial in King County Superior Court, Nicholas

Cloyd was convicted of one count of violation of the Uniform Controlled
Substances Act1 for delivery of cocaine. He now appeals, contending that he

was deprived of his right to a unanimous jury verdict. This is so, he claims,

because the State presented evidence of two unlawful acts but did not elect

which act constituted the charged delivery and the trial court did not give an

instruction requiring the jury to be unanimous as to which act it based its verdict

on. Because, under the facts of this case, the State was not obligated to elect a

specific act for conviction and the trial court was not required to issue such an

instruction, we affirm.




        Ch. 69.50 RCW.
No. 74037-7-1/2




       On July 22, 2013, Nicholas Cloyd was arrested during an undercover

operation executed by the Seattle Police Department's Anti-Crime Team. During

the operation, undercover officer Andrew Zwaschka was positioned on a street in

the Belltown neighborhood to solicit the purchase of narcotics. Support officers

trailed Zwaschka, from various vantage points, by five to seven seconds

throughout the operation. Eventually, Zwaschka was led to a parked vehicle

where Cloyd was sitting in the front, passenger-side seat. The vehicle's windows

were tinted and the passenger-side window was rolled down a couple of inches.

       Zwaschka approached the vehicle and Cloyd asked, "what are you looking

for?" Zwaschka responded, "twenty hard" and attempted to hand Cloyd twenty

dollars. Cloyd told Zwaschka, "[n]o, no, no. You're going to deal with the girl,"

while he poured small, white rocks of crack cocaine into the palm of his hand

from a container. Through the cracked window, Zwaschka observed Cloyd

handing the rocks in his hand to "the girl," who was sitting in the driver's seat.

This woman, later identified as Erika Frunk, then got out of the car and sold the

narcotics to Zwaschka. The trailing officers did not witness Zwaschka and

Cloyd's interaction, but did observe the exchange between Zwaschka and Frunk.

       At trial, the jury was instructed that, "[b]ecause this is a criminal case,

each of you must agree for you to return a verdict." Instruction 13. There was no

unanimity instruction related to the specific acts alleged. The trial court's

instructions to the jury also included an instruction regarding accomplice liability:




                                           2-
No. 74037-7-1/3



             A person is an accomplice in the commission of a crime if,
      with knowledge that it will promote or facilitate the commission of
      the crime, he or she either:
            (1) solicits, commands, encourages, or requests another
      person to commit the crime; or
            (2) aids or agrees to aid another person in planning or
      committing the crime.

Instruction 11. Cloyd did not propose any jury instructions but, rather, adopted

the instructions proposed by the State.

       It was the State's theory that Cloyd engaged in two deliveries, either

directly or as an accomplice, and that the State provided evidence of both

deliveries-Cloyd's delivery to Frunk and Frunk's delivery to Zwaschka. Neither

Cloyd nor Frunk testified at trial. The jury convicted Cloyd, as charged, with one

count of violation of the Controlled Substances Act for delivery of cocaine.

                                          II


       Cloyd contends that he was deprived of his right to a unanimous jury

verdict. This is so, he asserts, because the State presented evidence of two acts

but did not elect which act constituted the charged delivery, and the trial court did

not give an instruction requiring the jury to be unanimous as to which act it found

to be proved. We disagree.

       The Washington Constitution provides a criminal defendant with the right

to a unanimous jury verdict. Wash. Const, art. I, § 22; State v. Furseth, 156 Wn.

App. 516, 519, 233 P.3d 902 (2010). Therefore, an alleged denial of this right

may be raised for the first time on appeal. State v. Gooden, 51 Wn. App. 615,

617, 754P.2d 1000(1988).




                                          3-
No. 74037-7-1/4


       "Where the evidence indicates that more than one distinct criminal act has

been committed but the defendant is charged with only one count of criminal

conduct, the jury must be unanimous as to which act or incident constitutes the

charged crime." Furseth, 156 Wn. App. at 519-20 (citing State v. Noltie, 116

Wn.2d 831, 842-43, 809 P.2d 190 (1991)). In such cases, "either (1) the State

must elect a specific act on which it will rely for conviction or (2) the trial court

must instruct the jury that it must unanimously agree that a specific criminal act

has been proved beyond a reasonable doubt." Furseth, 156 Wn. App. at 520

(citing State v. Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009)).

However, if the evidence proves that the defendant was engaged in a "continuing

course of conduct," the State need not elect a specific act, nor need the trial court

instruct the jury that it must be unanimous as to the act proved. State v. Fiallo-

Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294 (1995) (citing State v. Handran,

113Wn.2d 11, 17, 775 P.2d 453 (1989)).

       To determine whether the criminal conduct constitutes a continuing course

of conduct, we review the evidence in a commonsense manner. Fiallo-Lopez, 78

Wn. App. at 724 (citing Handran, 113 Wn.2d at 17). Evidence that the conduct

occurred at different times and in different places supports a showing of several

distinct acts. Fiallo-Lopez, 78 Wn. App. at 724 (citing Handran. 113 Wn.2d at

17). Conversely, evidence that the defendant engaged in a series of actions to

attain the same objective supports a continuing course of conduct. Fiallo-Lopez,

78 Wn. App. at 724 (citing State v. Handran. 113 Wn.2d at 17).
No. 74037-7-1/5


      Viewed in a commonsense manner, the acts alleged demonstrate a

continuing course of conduct. The acts (1) occurred in the same place, (2)

happened within a short period of time, and (3) demonstrate a single objective.

First, all of the acts occurred at the location at which the vehicle was parked.

The first act occurred inside the vehicle and the second act occurred a few steps

away from that vehicle. Second, the acts occurred in a short period of time.

Indeed, the trailing officers were five to seven seconds behind Zwaschka and

were able to observe the interaction between Zwaschka and Frunk, which

occurred immediately after Cloyd's interaction with Zwaschka. Third, the

evidence supports the inference that both of the acts furthered a single objective:

delivering narcotics to Zwaschka. To complete the exchange, Cloyd handed

Frunk the narcotics and Frunk then gave the narcotics to Zwaschka in exchange

for money.

       Cloyd attempts to distinguish the deliveries herein from the continuing

course of conduct at issue in Fiallo-Lopez. In Fiallo-Lopez, the defendant was

convicted of delivery and possession of cocaine. 78 Wn. App. at 723. The

defendant therein delivered different amounts of cocaine to an undercover

officer, on the same evening, at two separate locations: first, at a Mexican

restaurant and then in the parking lot of a grocery store. Fiallo-Lopez, 78 Wn.

App. at 720-23. We held that the evidence showed that the narcotics transaction

was a continuing course of conduct because it involved the same parties, had the

same ultimate purpose of delivering narcotics to the buyer, and the delivery of




                                          5-
No. 74037-7-1/6


the cocaine at the Mexican restaurant was preliminary to the second delivery at

the grocery store. Fiallo-Lopez, 78 Wn. App. at 725-26.

       Cloyd asserts that the acts herein were distinct because a juror could have

doubted whether both acts occurred. Therefore, he claims, the first delivery was

not "preliminary" to the second delivery. However, neither Cloyd nor Frunk

testified at trial, leaving Zwaschka's testimony uncontradicted. Indeed, the sole

distinguishing fact between Fiallo-Lopez and this case is that Fiallo-Lopez's

deliveries occurred in two separate locations whereas the acts herein occurred in

the same location. This disparity does not favor Cloyd's assertion.2 Viewed in a

commonsense manner, the evidence established that the first delivery herein

was preliminary to the second. Pursuant to the rule discussed in Fiallo-Lopez,

the two deliveries were part of the same continuing course of conduct.3

       There was no trial court error.

                                                IV


        Cloyd requests that no costs be assessed against him on appeal.

Pursuant to RAP 14.2, we have the discretion not to impose appellate costs. The

State does not contest his claim. Accordingly, pursuant to State v. Sinclair, 192

Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016), we

exercise our discretion and will not impose appellate cost against Cloyd.




        2 Neither does it support Cloyd's claim that a constitutionally insufficient quantum of
evidence was presented to prove both acts. Sufficient evidence was proffered to establish each.
        3Cloyd's assertion that the doctrine of judicial estoppel applies herein is wrong. Our
review is necessarily based on the evidence presented and its sufficiency to support the verdict.
Because there was no prosecutorial election, the State's closing argument does not bear on the
question presented.
No. 74037-7-1/7


      Affirmed.


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We concur:


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