                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             June 7, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                No. 46929-4-II

                        Respondent,

        v.                                                      PUBLISHED OPINION

 DAVID PALAUKEKALA MAKEKAU,

                        Appellant.

       MAXA, J. – David Makekau appeals his conviction and sentence for possession of a stolen

motor vehicle. RCW 9A.56.068(1) states that a person is guilty of possessing a stolen vehicle if

the person “possess[es] . . . a stolen motor vehicle.” RCW 9A.56.140(1) defines possessing

stolen property, in part, as “knowingly to receive, retain, possess, conceal, or dispose of stolen

property.” The trial court’s to-convict jury instruction incorporated the definition of possession

and required the State to prove that Makekau “knowingly received, possessed, concealed, or

disposed of a stolen motor vehicle.” Clerk’s Papers (CP) at 86. Makekau argues that under the

law of the case doctrine the State assumed the burden of proving each of the alternative

definitions of possession included without objection in the to-convict instruction.

       We hold that (1) the terms “receive, retain, possess, conceal, or dispose of” are

definitional and do not create alternative means of the crime of possession of a stolen vehicle,

which involves a single means – possessing a stolen vehicle; and (2) including the disjunctive

terms “received, possessed, concealed, or disposed of” in the to-convict instruction did not
No. 46929-4-II


transform them into alternative means of the crime because the disjunctive terms together define

the single means of possession. Therefore, the State was required to prove only that Makekau’s

conduct satisfied one of the disjunctive terms, and it is undisputed that the State presented

sufficient evidence that Makekau “possessed” the stolen motorcycle.

       Makekau also argues, and the State concedes, that there is a scrivener’s error in the

judgment that the trial court should correct. Accordingly, we affirm Makekau’s conviction, but

remand to correct the scrivener’s error in the judgment and sentence.

                                               FACTS

       In August 2014, the owner of a yellow Suzuki motorcycle reported it as stolen. A few

days later, the owner saw someone riding his stolen motorcycle and called the police. Two

officers located and pursued the motorcycle, but the rider accelerated away before they could

apprehend him. Both officers believed that the person riding the motorcycle was Makekau. One

officer later talked with a person who said he had seen Makekau with a yellow Suzuki

motorcycle.

       The State charged Makekau with possession of a stolen motor vehicle and attempting to

elude a pursuing police vehicle. At trial, the trial court’s to-convict jury instruction required the

jury to find beyond a reasonable doubt that Makekau “knowingly received, possessed, concealed,

or disposed of a stolen motor vehicle.” CP at 86. The State proposed the jury instruction and

Makekau did not object.

       On October 14, 2014, the jury found Makekau guilty of possession of a stolen motor

vehicle and not guilty of attempting to elude a pursuing police vehicle. The trial court’s

judgment and sentence erroneously stated that the jury returned its verdict on October 13, 2014.



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No. 46929-4-II


       Makekau appeals his conviction and requests correction of the scrivener’s error in the

judgment and sentence.

                                           ANALYSIS

A.     POSSESSION OF A STOLEN MOTOR VEHICLE AND ALTERNATIVE MEANS

       The threshold issue in this case is whether possession of a stolen motor vehicle is a single

means crime or an alternative means crime. We hold that possession of a motor vehicle is a

single means crime.

       1.   Alternate Means Doctrine

       An “alternative means” crime is one where the criminal conduct can be proved in

multiple ways. State v. Owens, 180 Wn.2d 90, 96, 323 P.3d 1030 (2014). Such crimes generally

are identified by stating a single crime, followed by a statement of more than one means by

which the crime can be committed. State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873 (2007).

       The alternative means determination relates to jury unanimity required under article I,

section 21 of the Washington Constitution. Owens, 180 Wn.2d at 95. For an alternative means

crime, a defendant is entitled to a unanimous jury determination as to the particular means by

which he or she committed the crime. Id. If there is no express statement of jury unanimity, the

State must present sufficient evidence to support each of the alternative means. Id. But if the

statute identifies a single means of committing a crime, unanimity is not required even if there

are different ways of establishing that means. See Smith, 159 Wn.2d at 783.

       Whether a statute provides an alternative means for committing a crime is left to judicial

determination. State v. Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87 (2015). There are three

guiding principles. First, the use of a disjunctive “or” in a list of methods of committing the



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crime does not necessarily mean that those methods are alternative means. Owens, 180 Wn.2d at

96. For example, in Owens the Supreme Court held that seven terms stated in the disjunctive

together constituted a single means rather than seven alternative means for trafficking in stolen

property. Id. at 98.

          Second, a statutory definition of an element of a crime generally does not create

alternative means for that crime. Id. at 96. The Supreme Court repeatedly has “rejected the

notion that multiple definitions of statutory terms necessarily create either new elements or

alternate means of committing a crime.” State v. France, 180 Wn.2d 809, 818, 329 P.3d 864

(2014); see also Smith, 159 Wn.2d at 790 (concluding that the common law definitions of

assault, when submitted as a separate jury instruction, do not constitute alternative means of

committing second degree assault). A jury need not be unanimous as to the definitions of a

single means of committing a crime. See State v. Linehan, 147 Wn.2d 638, 649-50, 56 P.3d 542

(2002).

          Third, the alternative means analysis focuses on whether the statute describes the crime in

terms of distinct acts or closely related acts that are aspects of one type of conduct. Sandholm,

184 Wn.2d at 734.

          The more varied the criminal conduct, the more likely the statute describes
          alternative means. But when the statute describes minor nuances inhering in the
          same act, the more likely the various “alternatives” are merely facets of the same
          criminal conduct.

Id. In other words, “less weight is placed on the use of the disjunctive ‘or’ and more weight on

the distinctiveness of the criminal conduct.” Id. at 735.

          In Owens, the Supreme Court addressed RCW 9A.82.050(1), which prohibits trafficking

in stolen property. 180 Wn.2d at 92. The statute provided that a person is guilty of trafficking if


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No. 46929-4-II


he or she “ ‘knowingly initiates, organizes, plans, finances, directs, manages, or supervises the

theft of property for sale to others.’ ” Id. at 96 (quoting RCW 9A.82.050(1)). The court held

that this group of terms together identified a single category of criminal conduct – facilitating or

participating in the theft of stolen property. Id. at 98-99. One basis for the court’s conclusion

was that the act of trafficking necessarily would involve several of the listed terms.

        The State points out that the words listed in the first clause of RCW 9A.82.050 do
        not address distinct acts because of how closely related those terms are. For
        example, it would be hard to imagine a single act of stealing whereby a person
        “organizes” the theft but does not “plan” it. Likewise, it would be difficult to
        imagine a situation whereby a person “directs” the theft but does not “manage” it.
        Any one act of stealing often involves more than one of these terms. Thus, these
        terms are merely different ways of committing one act, specifically stealing.

Id. at 99.

        2.   Possession of a Stolen Vehicle Statutes

        RCW 9A.56.068(1) states that a person is guilty of possessing a stolen vehicle if the

person “possess[es] . . . a stolen motor vehicle.” And RCW 9A.56.140(1) defines what it means

to “possess” stolen property:

        “Possessing stolen property” means knowingly to receive, retain, possess,
        conceal, or dispose of stolen property knowing that it has been stolen and to
        withhold or appropriate the same to the use of any person other than the true
        owner or person entitled thereto.

The question here is whether these statutes provide for a single means of committing the crime –

possessing a stolen vehicle; or five alternative means of committing the crime – receiving,

retaining, possessing, concealing, or disposing of a stolen vehicle.

        We hold that possession of a stolen vehicle is a single means crime for three reasons.

First, RCW 9A.56.068(1) defines only a single element of the crime – possessing a stolen motor




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vehicle. This statute clearly does not suggest that there may be alternate means of committing

the crime.

       Second, this court has noted that RCW 9A.56.068(1) must be read in conjunction with

RCW 9A.56.140(1). State v. Satterthwaite, 186 Wn. App. 359, 364, 344 P.3d 738 (2015). But

the only purpose of RCW 9A.56.140(1) is definitional – to provide a better understanding of the

single element stated in 9A.56.068(1). Definitional statutes do not create alternative means of a

crime. Owens, 180 Wn.2d at 96.

       Third, the five terms in RCW 9A.56.140(1) are so closely related that they do not

describe distinct acts apart from actually possessing the stolen vehicle, but are “merely facets of

the same criminal conduct.” Sandholm, 184 Wn.2d at 734. For example, it would be hard to

imagine a situation where a person receives, retains, conceals, or disposes of a stolen vehicle

without also possessing it at some time. See Owens, 180 Wn.2d at 99.

       Division One of this court addressed this issue in State v. Hayes, 164 Wn. App. 459, 480,

262 P.3d 538 (2011). The court held that the reference in RCW 9A.56.140(1) to “receive, retain,

possess, conceal, or dispose of stolen property” is definitional and does not create alternative

means of a crime. Id. at 477. We agree with Hayes on this issue.

       We hold that the definition of possession under RCW 9A.56.140(1) does not create

alternative means of proving possession of a stolen motor vehicle, and therefore that possessing a

stolen motor vehicle is a single means crime.

B.     INCLUDING DEFINITIONAL TERMS IN TO-CONVICT INSTRUCTION

       Instead of requiring the State to prove that Makekau possessed a stolen motor vehicle, the

trial court’s to-convict jury instruction required the State to prove that Makekau “knowingly



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received, possessed, concealed, or disposed of” a stolen motor vehicle.1 CP at 86. Makekau

argues that even if possession of a stolen motor vehicle is not an alternative means crime, under

the law of the case doctrine the definitional terms in RCW 9A.56.140(1) become alternative

means when listed without objection in the to-convict instruction. We disagree.

         1.   Law of the Case Doctrine

         Constitutional due process requires the State to prove every element of the crime beyond

a reasonable doubt. France, 180 Wn.2d at 814. However, the law of the case doctrine provides

that jury instructions not objected to become the law of the case. Id. Therefore, if the trial court

gives a to-convict jury instruction that erroneously includes an additional element of a crime that

is not required under the law and the State does not object, the State must prove that additional

element. Id. at 815; see also State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). And

on appeal, the defendant can make a sufficiency of the evidence challenge based on the added

element. Hickman, 135 Wn.2d at 102.2

         For example, in Hickman the to-convict instruction required the State to prove the two

elements of insurance fraud and a third, unnecessary element – the venue of the crime. Id. at

101. The Supreme Court held that under the law of the case doctrine, venue became a third

element that the State had to prove. Id. at 102.


1
    The to-convict instruction here omitted the fifth term in RCW 9A.56.140(1), “retain[ed].”
2
  In Musacchio v. United States, the United States Supreme Court adopted a contrary rule,
holding that “when a jury instruction sets forth all the elements of the charged crime but
incorrectly adds one more element, a sufficiency challenge should be assessed against the
elements of the charges crime, not against the erroneously heightened command in the jury
instruction.” ___ U.S ___, 136 S. Ct. 709, 715, 193 L. Ed. 2d 639 (2016). Because our Supreme
Court has not addressed whether to adopt the holding in Musacchio and the State does not ask us
to apply that case, we apply existing Washington law.


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No. 46929-4-II


       As discussed above, the only element of possession of a stolen motor vehicle is

possessing a stolen motor vehicle. The question here is whether including the definitional terms

“received, possessed, concealed, or disposed of” in the to-convict instruction added three

unnecessary elements along with possession that the State was required to prove, or whether the

four terms together should be treated as defining the single statutory element.

       2.    Lillard and Hayes

       Division One of this court addressed this issue in two cases: State v. Lillard, 122 Wn.

App. 422, 93 P.3d 969 (2004) and Hayes, 164 Wn. App. 459. Both cases held that including the

definitional terms “received, retained, possessed, concealed, or disposed of” in the to-convict

instruction for crimes involving possession of stolen property required the State to prove all five

alternatives. Hayes, 164 Wn. App. at 481; Lillard, 122 Wn. App. at 434-35.

       In Lillard, the to-convict instructions for first degree possession of stolen property

required the State to prove that the defendant “ ‘knowingly received, retained, possessed,

concealed, or disposed of stolen property.’ ” 122 Wn. App. at 434 (quoting jury instruction).

The court cited to Hickman and stated without discussion that “[b]ecause the instruction

specifically listed the alternative definitions of ‘possession’ as alternative means of the offense to

be proved by the State, there must be sufficient evidence to support each alternative.” 122 Wn.

App. at 434-35. However, the court did not address whether the five definitional terms together

could be treated as defining a single means rather than as alternative means.

       In Hayes, the to-convict instructions for first degree possession of a stolen motor vehicle

required the State to prove that the defendant or an accomplice “ ‘knowingly received, retained,

possessed, concealed, or disposed of, a stolen motor vehicle.’ ” 164 Wn. App. at 480 (quoting



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jury instruction). Initially, the court noted that Lillard held that where the trial court includes

“knowingly received, retained, possessed, concealed, or disposed of” stolen property in the to-

convict instruction, “these terms will be treated as alternative means the State must prove.”

Hayes, 164 Wn. App. at 478-79. However, the court then stated:

       Lillard summarily applied Hickman to hold, in response to an issue raised in a pro
       se supplemental brief, that the definitional terms in RCW 9A.56.140(1) were
       transformed into alternative means when inadvertently included in a to-convict
       instruction. This is not a holding we are inclined to expand.

Hayes, 164 Wn. App. at 479 n.5.

       The defendant in Hayes argued that as in Lillard, all five definitional terms became

alternative means for which the State assumed the burden of proving by substantial evidence. Id.

at 481. Significantly, the State did not challenge this argument, and therefore the court accepted

it. Id. The court treated the definitional terms of possession “as alternative means, not because

they necessarily are alternative means, but because they were listed in the to-convict instructions

for the two counts of possession of a stolen vehicle and under Lillard the State was obligated to

support them with substantial evidence.” Id.

       As in Lillard, the court in Hayes did not address whether the five definitional terms

together could be treated as defining a single means rather than as alternative means. Despite its

footnote suggesting that the application of Lillard should be limited, the court provided no

analysis of this issue – presumably because the State did not challenge the defendant’s position.

       3.    Lindsey and Owens

       Two more recent cases involving a different crime call into question the assumption in

Lillard and Hayes that inclusion of definitional terms in a to-convict instruction necessarily




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No. 46929-4-II


converts a single means crime into an alternative means crime: State v. Lindsey, 177 Wn. App.

233, 311 P.3d 61 (2013), review denied, 180 Wn.2d 1022 (2014) and Owens, 180 Wn.2d at 96.

       In Lindsey, this court addressed the alternative means issue for trafficking in stolen

property under RCW 9A.82.050(1). 177 Wn. App. at 238-44. RCW 9A.82.050(1) states that a

person who “knowingly initiates, organizes, plans, finances, directs, manages, or supervises the

theft of property for sale to others, or who knowingly traffics in stolen property” is guilty of first

degree trafficking in stolen property. The defendant in Lindsey argued that this language

identified eight alternative means for committing the crime. 177 Wn. App. at 240. This court

held that the first seven terms together constituted one means and trafficking constituted a second

means. Id. at 241-42. We emphasized that the seven terms defined a single category of criminal

conduct – facilitating or participating in the theft of property for sale – and that definitional

statutes do not create multiple alternative means. Id.

       Significant here is the fact that the to-convict instruction in Lindsey listed all seven of the

terms from RCW 9A.82.050(1). We did not suggest that including these terms in the to-convict

instruction created seven alternative means.3 Instead, because the seven terms together

constituted a single alternative means, we required only that the State prove one of the seven

disjunctive terms in order to sustain the conviction. Id. at 248.

       In Owens, the Supreme Court also addressed trafficking in stolen property under RCW

9A.82.050(1). 180 Wn.2d at 96. The court adopted the reasoning in Lindsey and also concluded

that the first seven terms in the statute together constituted a single alternative means of


3
  It does not appear that the defendant in Lindsey argued that including the seven terms in the to-
convict instruction created seven alternative means and that under the law of the case doctrine
the State was required to prove all seven means.


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No. 46929-4-II


committing the crime. Id. at 97-98. As in Lindsey, all seven terms were included in the to-

convict instruction. Id. at 101 n.6. However, the court did not require the State to prove all

seven terms in order to defeat a sufficiency of the evidence challenge.4 Id. at 100-01.

         4.   Analysis

         We hold that the to-convict instruction here did not state alternative means of committing

the crime of possession of a stolen vehicle for five interrelated reasons. First, Lillard and Hayes

are not persuasive because the statements in those cases about the to-convict instructions creating

additional alternative means were not based on any meaningful analysis or discussion of the

issue. The courts in both cases basically assumed that including the definitional terms in the to-

convict instruction created alternative means. Therefore, we do not follow the holdings in those

cases.

         Second, as discussed above, the terms “received, possessed, concealed, or disposed of”

are definitional and do not create alternative means of the crime of possession of a stolen vehicle.

If these terms merely define different aspects of “possession” and do not represent alternative

means, it is unclear why including them in the to-convict instruction would transform them into

alternative means.

         Third, the Supreme Court in Smith held that including definitions of an element of a

crime in a jury instruction separate from the to-convict instruction does not create alternative

means of committing the crime. 159 Wn.2d at 785; see also France, 180 Wn.2d at 818-19. If



4
  Again, it does not appear that the defendant in Owens argued that including the seven terms in
the to-convict instruction created seven alternative means and that under the law of the case
doctrine the State was required to prove all seven means.



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definitions in a separate instruction do not create alternative means, there is no reason that

including the definitions in the to-convict instruction should change the result.

       Fourth, Owens and Lindsey make it clear that several terms listed disjunctively together

can define a single means, and that if several terms represent one means the State is required to

prove only one of the terms in order to sustain a conviction. Owens, 180 Wn.2d at 98-99, 100-

101; Lindsey, 177 Wn. App. at 241-42, 248. Under this approach, the terms “received,

possessed, concealed, or disposed of” can be treated as aspects of a single means – possession.

Therefore, including those terms in the to-convict instruction identifies only one means, not four.

       Fifth, although Owens and Lindsey did not address the specific issue here, the courts in

those cases gave no indication that including a list of disjunctive terms that did not constitute

alternative means in the to-convict instruction transformed those terms into alternative means.

       We hold that because the terms “received, possessed, concealed, or disposed of” are

definitional and do not create alternative means of the crime of possession of a stolen vehicle,

including the terms in the to-convict instruction did not transform them into alternative means of

the crime. Instead, they are closely related aspects of a single means, possession of a stolen

vehicle. As a result, the State was required to prove only that Makekau’s conduct satisfied one

of the disjunctive terms – received or possessed or concealed or disposed of the stolen vehicle.

C.      SUFFICIENCY OF EVIDENCE

       Because the to-convict instruction for possession of a stolen motor vehicle states only a

single means and requires the State to prove only one of the four definitional terms, there is no

dispute that the State presented sufficient evidence to support the conviction. The two officers

and a third person all testified that Makekau “possessed” the motorcycle, one of the four terms in



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the to-convict instruction. Makekau does not attempt to argue otherwise. Therefore, we affirm

Makekau’s conviction.

D.     SCRIVENER’S ERROR

       Makekau argues, and the State concedes, that his judgment and sentence misstates the

date of the jury’s verdict. Makekau’s judgement and sentence states that the jury returned its

verdict on October 13, 2014 but the jury actually returned its verdict on October 14, 2014.

       The State concedes that this case should be remanded to correct the scrivener’s error.

Therefore, we remand this case to the trial court to correct the scrivener’s error in the judgment

and sentence.

                                         CONCLUSION

       We affirm Makekau’s conviction, but we remand to the trial court to correct the

scrivener’s error.



                                                     MAXA, A.C.J.



 We concur:




 MELNICK, J.




 SUTTON, J.




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