                                                                                               LED -
                                                                                    COURT OF APPEALS
                                                                                          DIVISION II

                                                                                   701u AUG i 1    Ali 9. 10

      IN THE COURT OF APPEALS OF THE STATE OVW                                               MXOTON

                                                   DIVISION II                     BYO .P         TY

STATE OF WASHINGTON,                                                            No. 45941 -8 -II


                                     Respondent,


           MM




BRETT CHARLES EVERETTE,                                                   UNPUBLISHED OPINION




           MAXA, P. J. —   Brett Everette appeals his convictions for attempted first degree


kidnapping, first degree unlawful possession of a firearm, and felony harassment. We hold that
 1) the State presented sufficient evidence to prove that Everette committed the " abduct" element

of attempted    first degree kidnapping; ( 2) the State presented sufficient evidence that Everette


was   in   unlawful   possession   of a   firearm; ( 3)   the trial court was not required to include a

unanimity instruction because Everette' s multiple threats constituted a continuing course of

conduct; and ( 4) the trial court did not abuse its discretion in denying Everette' s untimely motion

for a new trial. Accordingly, we affirm Everette' s convictions.

                                                          FACTS


           Everette and Kendra Swanger were acquaintances of Joey Sanchez -Juarez. Sanchez -

Juarez was angry at Swanger because she had taken a car he had received in a drug deal and
returned it to the original owner, her boyfriend' s father. Sanchez -Juarez repeatedly attempted to

contact Swanger by text, phone, and social media. Sanchez -Juarez, Everette, and others

developed a plan to find Swanger and get Sanchez- Juarez' s car back, which included potentially

harming her.
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          On August 12, 2013, Everette came to Maria Johnson' s house looking for Swanger and

Bradley Martin, Swanger' s boyfriend. Johnson told him that they were not in her house. In fact,
Swanger and Martin were in a back bedroom of Johnson' s house with the door closed. Swanger

eventually let Everette into the   room.      Everette asked Swanger where Sanchez- Juarez' s car was,


and she replied that she did not know. Everette became angry, grabbed Swanger' s hair and neck,

and threw her onto the bed.

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          According   to Swanger, Everette flashed       a gun and pointed   the   gun at   her head   and   body.

Everette stated that he was not afraid of smashing in Swanger' s face, killing her, putting " some

new holes in her head" with his friend' s shotgun, or going back to prison. Report of Proceedings

 RP) (   Dec. 19, 2013) at 17. In addition, Everette told everyone in the room that they could not

leave.    Swanger did not feel free to leave. Everette made several phone calls, in one instructing

someone to tell Sanchez -Juarez to come to Johnson' s house.

          When Everette briefly left the room, Martin jammed a skateboard underneath the

bedroom door and he and Swanger jumped out the bedroom window. Swanger ran from

Johnson' s house into an alley. Sanchez -Juarez drove up the alley, pulled up to Swanger, pointed

a shotgun at   her,   and asked where   his   car was.   Sanchez -Juarez then jumped out of the car, pulled


Swanger to the ground, and kicked her. Sanchez -Juarez and another person in the car started

dragging Swanger back to the car before letting her go and driving off.




 1 Martin did not see a gun, but testified that he observed Everette grabbing at the front of his
 pants, which gave Martin the impression that Everette was keeping a weapon in his pants. .
 Martin testified he believed Everette had a gun.


                                                          F)
45941 -8 -II




        The State charged Everette with attempted first degree kidnapping with a firearm

enhancement, first degree unlawful possession of a firearm, and felony harassment with a

firearm enhancement. The case proceeded to trial, and the jury found Everette guilty on all

charges on     December 20, 2013.           On February 10, 2014, the trial court sentenced Everette to life

without the possibility of early release on the attempted first degree kidnapping and first degree

unlawful possession of a firearm convictions, and a standard range of 116 months for the felony

harassment conviction.


        On February 12, 2014, Everette filed a pro se motion for a new trial. He argued that he

had unsuccessfully tried to contact his trial attorney during preparations for trial and that newly

discovered information demonstrated that there were no phone records supporting witness


testimony that Everette had made calls to Sanchez -Juarez. Everette filed a notice of appeal on

February 14, 2014. On February 25, 2014, Everette submitted additional pro se motions in
support of     his   motion   for   a new   trial. CP 150- 63.   Because Everette claimed ineffective


assistance of counsel, the trial court appointed new counsel, who filed a second notice of appeal

on March 10, 2014. Everette' s new counsel also submitted a memorandum in support of his

motions for a new trial, which seemed to argue that counsel required additional time to

investigate Everette' s claims.


         The trial court denied Everette' s motion for a new trial because ( 1) it was not filed within

the time limits specified by CrR 7. 5( b) and there was no basis to extend the time for filing, and.

 2) CrR 7. 5( a)( 3) did not apply because Everette did not produce newly discovered evidence and

the evidence would not have changed the outcome of the trial. CP 189. In addition, the trial

court concluded that it did not have jurisdiction to address the issues Everette raised in his

motions   because he already had filed            a notice of appeal and   therefore the trial court was   not
45941 -8 - II




permitted to rule on motions without receiving permission from the Court of Appeals under RAP

7. 2( e).


            Everette, appeals his convictions and the trial court' s denial of his motion for a new trial.




A.          SUFFICIENT EVIDENCE


            Everette challenges whether the State presented sufficient evidence for a reasonable jury

to find him guilty of the charges of attempted first degree kidnapping and first degree unlawful

possession of a firearm. We hold that there was sufficient evidence for a reasonable jury to

convict Everette of both charges.


            The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond      a reasonable   doubt. State   v.   Homan, 181 Wn.2d 102, 105, 330 P. 3d 182 ( 2014). In a


sufficiency of the evidence claim, the defendant admits the truth of the State's evidence and all
reasonable      inferences drawn from that        evidence.   Id. at 106.   Credibility determinations are made

by the trier of fact and are not' subject to our review. State v. Miller, 179 Wn. App. 91, 105, 316
P. 3d 1143 ( 2014).      Circumstantial and direct evidence are equally reliable. Id.

            L    Attempted First Degree Kidnapping

            Everette challenges the sufficiency of the State' s evidence on one element of attempted

first degree kidnapping: whether Everette made a substantial step toward intentionally

  abducting" Swanger. We hold that the State presented sufficient evidence to prove this

 element.



            Under RCW 9A. 40. 020( 1),         a person is guilty of kidnapping in the first degree if he or she

  intentionally     abducts another person with        intent:... (   c) To inflict bodily injury on him or her;



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45941 -8 -II




or ( d)   To inflict   extreme mental       distress    on   him, her,    or a     third   person."   RCW 9A.40. 010( 1)


defines "     abduct" as   restraining     a person    by    either "(   a) secreting or holding him or her in a place

where he or she is not likely to be found, or (b) using or threatening to use deadly force." 2 A
person is guilty of criminal attempt to commit a crime if "with intent to commit a specific crime,

he   or she   does any    act which   is   a substantial      step toward the         commission of      that crime."    RCW


9A.28. 020( 1).


           Everette concedes that the State presented evidence that he restrained Swanger, but he

argues that the State failed to present evidence that he attempted to hold Swanger in a place that

she was not likely to be found because the bedroom in Johnson' s house was not such a place.

However, this argument ignores the fact that RCW 9A.40. 010( 1) allows the State to prove

abduction by establishing that the defendant restrained a person using or threatening to use

deadly force.

           Here, the evidence showed that Everette threatened to use deadly force on Swanger.

Both Swanger and Martin testified that Everette made several threats involving deadly force,

                             to kill Swanger                threating    to   put " some new       holes in her head,"   while
including threatening                              and




restraining her in Johnson' s bedroom. RP ( Dec. 19, 2013) at 17. We hold that this evidence was

sufficient for a reasonable jury to find that Everette restrained Swanger by threatening her with

deadly force, and therefore that sufficient evidence was presented for a reasonable jury to find
that he " abducted" her.




2,                                                                                 2014,         52, § 2. The amendment did
     RCW 9A.40. 010        was   recently   amended.         See LAWS         of           ch.

not   impact the       subsection   that   we   rely   on   for   our analysis.
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         2.     Unlawful Possession of a Firearm


         Everette argues that the State failed to present sufficient evidence of his unlawful

possession of a firearm because only Swanger testified to actually seeing him in possession of a

firearm. We hold that the State presented sufficient evidence of Everette' s unlawful possession

of a firearm.


         Under RCW 9. 41. 040( 1)(      a),   a person " is guilty of the crime of unlawful possession of a

firearm in the first degree, if the person owns, has in his or her possession, or has in his or her

control any firearm after having previously been convicted" of any serious offense.3 The State
must prove that the defendant knowingly owned, possessed, or controlled the firearm. State v.

Williams, 158 Wn.2d 904, 909- 10, 148 P. 3d 993 ( 2006). Everette stipulated at trial that he had


previously been convicted of a serious offense. Therefore, the issue is whether there was

sufficient evidence to establish that he knowingly owned, possessed, or controlled a firearm.

          The State presented evidence that Swanger saw Everette possessing a handgun. Martin

did not see Everette in possession of a gun, but he testified that he believed Everette possessed a

handgun because he frequently reached down into the top of his pants.

          Everette argues that Swanger' s testimony was inconsistent with Johnson' s and Martin' s

testimony. Johnson testified that she did not see Everette with a gun when he came into her
house, RP ( Dec. 18, 2013) at 156, and Martin testified that he did not see a gun. However, we

defer to the trier of fact on decisions resolving conflicting testimony and the credibility of

witnesses.     Miller, 179 Wn.    App.   at   105.   We hold that based on Swanger' s testimony, the State




 3
     RCW 9. 41. 040   was   recently   amended.      See LAWS of 2014,   ch.   111, § 1.   The amendments did
 not add to or subtract from the language of RCW 9. 41. 040( 1)( a).


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45941 -8 -II




presented sufficient evidence for a reasonable jury to find beyond a reasonable doubt that

Everette possessed a firearm.


B.        UNANIMITY INSTRUCTION - FELONY HARASSMENT


          Everette argues that his conviction of felony harassment violated his right to a unanimous

verdict because the jury could have convicted him based on multiple purported threats. We hold

that these acts were part of a continuing course of conduct and therefore there was no need for a

unanimity instruction.

          We review de novo whether a unanimity instruction is required. See State v. Furseth, 156

Wn.   App.     516, 520, 233 P. 3d 902 ( 2010).             Because the failure to give a unanimity instruction is

an error of constitutional magnitude, a defendant may raise the issue for the first time on appeal.

State v. Locke, 175 Wn.            App.   779, 802, 307 P. 3d 771 ( 2013), review denied, 179 Wn.2d 1021


 2014).


          To convict Everette for felony harassment, one of the elements that the State had to prove

beyond a reasonable doubt was that Everette knowingly threatened to kill Swanger. RCW

9A. 46. 020( 1)(    a)( i),   ( 2)( b); State   v.   Mills, 154 Wn.2d 1, 10- 11, 109 P. 3d 415 ( 2005). Everette


argues    that there    was evidence of          three   possible   threats: ( 1)   his threat to kill Swanger, ( 2) his


threat to   shoot    Swanger in the head, (            3) and his gesturing with the handgun.4 He, therefore,

argues that a unanimity instruction was required.




4 Everette also argues that the jury could have convicted him of felony harassment based on
Sanchez -Juarez pushing Swanger to the ground and attempting to drag her to the car, and
Sanchez- Juarez' s implied threat to shoot Swanger when he pointed a shotgun at her. However,
the jury instructions regarding felony harassment did not allow the jury to convict based on an
accomplice liability theory. We presume the jury followed the trial court' s instructions unless
demonstrated otherwise. State v. Curtiss, 161 Wn. App. 673, 698, 250 P. 3d 496 ( 2011).
Therefore, we reject this claim.



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          For a conviction to be constitutionally valid, a unanimous jury must conclude that the

accused committed the criminal act charged. State v. Kitchen, 110 Wn.2d 403, 411, 756 P. 2d

105 ( 1988),     abrogated on other grounds, In re Pers. Restraint ofStockwell, 179 Wn.2d 588, 316

P. 3d 1007 ( 2014).    When multiple incidents are alleged, any one of which could constitute the

crime charged, the jury must.unanimously agree on which incident constitutes the crime. Id..

Under these circumstances, unless the State elects which incident it will rely on for the

conviction, a trial court must instruct the jury that all 12 jurors must agree that the same

underlying criminal act has been proved beyond a reasonable doubt. ' Id..

          However, the defendant is not entitled to a unanimity instruction if the evidence shows

that   multiple acts constitute a   continuing    course of conduct.     Locke, 175 Wn.      App.    at   803. A


continuing course of conduct involves an ongoing enterprise with a single objective. Id. We
evaluate the facts in a common sense manner to determine whether a defendant's multiple acts

constitute a continuing course of conduct. Id.

          A continuing court of conduct exists where " multiple acts of the charged crime were

committed with a single purpose against one victim             in   a short period of   time."   Id. In State v.


Crane, the Supreme Court applied the continuing course of conduct exception to multiple acts of

assault against a victim over a     two- hour     period.   116 Wn.2d 315, 330, 804 P. 2d 10 ( 1991),


overruled on other grounds In Pers. Restraint ofAndress, 147 Wn.2d 602,. 56 P. 3d 981 ( 2002).

Similarly, in State v. Marko, we held that a defendant' s statements to two different people over

90 minutes constituted a continuing course of conduct for the crime of intimidating a witness.

 107 Wn. App. 215, 221, 27 P. 3d 228 ( 2001).

          Here, Everette' s threats occurred over a short period of time, against the same person,


and    in the   same place.   Therefore,   we   hold that the threats   constituted a   continuing   course of
45941 -8 -II




conduct and that no unanimity instruction was required. Accordingly, we hold that the trial court

did not err when it did not give a unanimity instruction for the felony harassment charge.

C.           DENIAL OF NEw TRIAL MOTION


             Everette argues that the trial court erred in denying his motion for a new trial on the

grounds that the motion was untimely. Everette argues the trial court erred by not extending the

time for filing his motion. We disagree.

             We review for an abuse of discretion a trial court' s denial of a motion for a new trial.

State   v.   Pete, 152 Wn.2d 546, 552, 98 P. 3d 803 ( 2004).    A trial court abuses its discretion by

reaching a conclusion no reasonable judge would reach. Id. We will reverse a trial court's denial

of a new trial motion only where the moving party clearly shows that the trial court abused its

discretion. See id.


             CrR 7. 5( b) provides that a motion for a new trial must be served and filed within 10 days

after the verdict. The rule also provides that the court " in its discretion" may extend this time.

CR 7. 5( b) (    emphasis added).



             Here, Everette' s motion for a new trial was untimely; he filed his first pro se motion for a

new trial several weeks after the jury' s guilty verdict. The trial court had the discretion under

CrR 7. 5( b) to extend the time for filing the motion, but the trial court chose not to extend the

time. Everette provides no explanation for why the trial court should have considered the

untimely motion. Therefore, we hold that the trial court did not abuse its discretion in denying
the motion on the basis of untimeliness.5




5 Everette also argues the trial court erred when it found that it had lost jurisdiction to decide his
motion for a new trial because Everette already had filed a notice of appeal. We agree. See RAP
7. 2. However, because the trial court also denied the motion based on untimeliness, this error is
harmless.



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45941 -8 -II



         Everette also assigns error to the trial court' s conclusions that ( 1) CrR 7. 5( a)( 3) did not


apply because Everette did not present newly discovered evidence and ( 2) even if Everette' s

attorney had presented the evidence, it would not have changed the outcome of the trial.

However, Everette fails to provide any argument showing that these conclusions are erroneous in

any material respect. Therefore, these assignments of error are waived. RAP 10. 3( a)( 6), Ames v.

Ames, 1. 84 Wn.   App.   826, 850, 340 P. 3d 232 ( 2014),   review denied, No. 91511- 3 ( Wash. July 8,

2015).


         We affirm Everette' s convictions.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                           MAXA, i' J.


 We concur:




 SUTTON, J.




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