 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 68369-1-1
                     Respondent,                                                     <j~>

                                                DIVISION ONE
              v.
                                                PUBLISHED OPINION
                                                                               t\>
JEFFREY T. HUYNH,

                     Appellant.                 FILED: August 12, 2013


      Grosse, J. — The analysis of whether the legislature intended a crime to

have alternative means of commission focuses on the act that constitutes the

offense.   Here, the act that constitutes the offense of possession with intent to

manufacture or deliver is possession.     The "intent to manufacture or deliver"

element deals with the defendant's subjective mental state and therefore does

not constitute alternative means of committing the offense. Further, a defendant

is not entitled to unanimity with regard to the statutory factors that make an

offense a major violation of the Uniform Controlled Substances Act1 (major
VUCSA) because those factors are definitional, that is, they are different sets of

facts that, if present, make the offense a major VUCSA. For these reasons, and

because the trial court did not abuse its discretion in denying the motions to

sever and because the issues appellant raises in his statement of additional

grounds are either unreviewable or without merit, we affirm.




1Chapter 69.50 RCW.
No. 68369-1-1/2


                                    FACTS

       In January 2011, Border Patrol Agent Seim DeLaCruz was working

undercover as "a midlevel to ounce dealer to kilo level dealer" in cocaine. Agent

DeLaCruz learned of a person named Jeff (later identified as appellant Jeffrey

Huynh) who wanted to broker a deal for the purchase of kilograms of cocaine.

      Agent DeLaCruz and Huynh met in February 2011 at a restaurant in

Mount Vernon.     Agent DeLaCruz brought two kilograms of cocaine to the

meeting. Huynh arrived with another man who was to be the buyer; Huynh acted

as broker. Huynh and Agent DeLaCruz got into the agent's car, where Huynh

looked at and took pictures of the cocaine. The buyer decided he needed a few

days to decide whether to buy the cocaine, and the purchase never occurred.

      Agent DeLaCruz and Huynh had several more contacts between February

and May 20, 2011. On May 20, Huynh telephoned Agent DeLaCruz and told the

agent he was on his way to the Mount Vernon restaurant with a person who

wanted to buy two kilograms of cocaine for $42,000. Huynh's broker's fee was to

be $4,000. When Agent DeLaCruz arrived at the restaurant, Huynh and two

other men (Raymond Mak and Jai Lin) were already there. Agent DeLaCruz and

Huynh went outside at Huynh's request; Mak and Lin remained inside. Once

outside, Huynh brought up the matter of his broker's fee and also told the agent

that Mak and Lin were willing to purchase three to five kilograms every week or

every other week.     The agent promised Huynh a $2,000 broker's fee per

transaction.
No. 68369-1-1/3


      Agent DeLaCruz and Huynh went back inside the restaurant and joined

Mak and Lin. They all went into the bathroom where Huynh showed the agent

bundles of stacked $100 bills. The men then returned to the table and Mak said

he wanted to see the cocaine. Agent DeLaCruz and Mak went outside and the

agent opened the trunk and showed Mak the two kilograms of cocaine. The two

men then returned to the restaurant.

      The entire group then went back to the parking lot, where Mak grabbed

the cocaine, Huynh gave Agent DeLaCruz the money, and the agent gave Huynh

his broker's fee.   Other undercover agents were stationed nearby.     Huynh and

Lin were arrested outside the restaurant; Mak had driven away and was arrested

several blocks away. The cocaine was found in the trunk of Mak's car.

      The State charged Huynh with possession of cocaine with intent to

manufacture or deliver contrary to RCW 69.50.401 and conspiracy to possess

cocaine with intent to manufacture or deliver contrary to RCW 69.50.401 and

.407. The State provided notice of its intent to seek an exceptional sentence on

the ground that the charged offenses were major VUCSAs related to trafficking in

controlled substances.


       Prior to trial, Huynh moved to sever the counts and the defendants. The

court denied Huynh's motion. Mak and Huynh were tried together.

       The "[t]o convict" instruction on the possession with intent to manufacture

or deliver count against Huynh, instruction 12, provided as follows:

              To convict the defendant, JEFFREY T. HUYNH, of the crime
       of possession with intent to manufacture or deliver a controlled
       substance, each of the following elements of the crime must be
       proved beyond a reasonable doubt:
No. 68369-1-1/4




            (1) That on or about May 20, 2011, the defendant, JEFFREY
      T. HUYNH, or an accomplice, possessed a controlled substance -
      Cocaine;

           (2) That the defendant, JEFFREY T. HUYNH, or an
      accomplice, possessed the substance with the intent to
      manufacture or deliver a controlled substance - Cocaine;

      and


               (3) That this act occurred in the State of Washington.

             If you find from the evidence that each of these elements
      has been proved beyond a reasonable doubt, then it will be your
      duty to return a verdict of guilty.

              On the other hand, if, after weighing all the evidence, you
      have a reasonable doubt as to any one of these elements, then it
      will be your duty to return a verdict of not guilty.

      Instruction 16 defined "[mjanufacture":

               Manufacture    means the direct or       indirect production,
      preparation, compounding, conversion, or processing of any
      controlled substance.

               Manufacture also means the packaging or repackaging of
      any controlled substance or labeling or relabeling of the controlled
      substance's container.

      Instruction 17 defined "[djeliver or delivery" as "the actual or constructive

or attempted transfer of a controlled substance from one person to another."

      The "[t]o convict" instruction on the conspiracy count, instruction 20,

provided:

               To convict the defendant, JEFFREY T. HUYNH, of the crime
      of conspiracy to commit possession with intent to manufacture or
      deliver a controlled substance, each of the following elements of
      the crime of conspiracy must be proved beyond a reasonable
      doubt:
No. 68369-1-1/5


             (1) That on or about May 20, 2011, the defendant agreed
       with one or more persons other than the undercover agent, to
       engage in or cause the performance of conduct constituting the
       crime of possession with intent to manufacture or deliver a
       controlled substance;

                (2) That the defendant made the agreement with the intent
       that such conduct be performed;

              (3) That any one of the persons involved in the agreement
       took a substantial step in pursuance of the agreement; and

             (4) That any of these acts occurred in the State of
       Washington.

              If you find from the evidence that each of these elements
       has been proved beyond a reasonable doubt, then it will be your
       duty to return a verdict of guilty.

               On the other hand, if after weighing all the evidence, you
       have a reasonable doubt as to any one of these elements, then it
       will be your duty to return a verdict of not guilty.

       Huynh's counsel joined in the objection raised by Mak's counsel as to the

inclusion of the word "manufacture" in the instructions:

       Regarding the inclusion of the word "manufacture" I think that
       should    be excluded from the definition of the crime and the
       aggravated allegation. I don't think any evidence was brought
       forward to indicate that that alternative is being charged.
       Possession with intent to deliver has clearly been charged and the
       evidence being put forth. But the manufacturing as the alternative I
       think should be excluded under the facts of this case.

       The court rejected the objection to the inclusion of the word "manufacture":

"The State's evidence was sufficient for the jury to find that there was an intent to

cut or to dilute the strength of the cocaine and repackage it for sale for other

individuals. So that will be included."

       The jury found Huynh guilty of the crimes of possession and conspiracy to

possess "[w]ith [ijntent to [m]anufacture or [djeliver" cocaine.      In the special
No. 68369-1-1/6


verdict forms, the jury answered "yes" to the question, "Was the crime a major

violation of the Uniform Controlled Substance Act?" Huynh appeals.

                                    ANALYSIS

I.     Alternative Means

       "Criminal defendants have the right to a unanimous jury verdict.        But

unanimity is not required 'as to the means by which the crime was committed so

long as substantial evidence supports each alternative means.'"2 Huynh argues
that his convictions must be reversed because substantial evidence does not

support each alternative means of committing both the underlying offenses and

the aggravating circumstances. His argument raises the threshold questions of

whether possession with intent to manufacture or deliver is an alternative means

crime and whether the statutory factors that may identify an offense as a major

VUCSA are alternative means on which the jury must be unanimous.

       A.     Underlying Offenses

       "An 'alternative means crime' is one 'that provide[s] that the proscribed

criminal conduct may be proved in a variety of ways.'"3 The legislature has not
defined "alternative means crimes," nor has it identified which crimes are

alternative means crimes.4 Whether the alternative means analysis applies is

determined by the legislative intent in the statute.5 Merely stating methods of



2 State v. Peterson, _ Wn. App. _, 301 P.3d 1060, 1071 (2013) (footnotes and
citations omitted).
3 State v. Peterson, 168 Wn.2d 763, 769, 230 P.3d 588 (2010) (alteration in
original) (quoting State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873 (2007)).
4 Peterson. 168 Wn.2d at 769.
5 State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976).

                                        6
No. 68369-1-1/7



committing a crime in the disjunctive does not, of itself, create alternative means

of committing a crime.6
      The statute under which        Huynh was charged, RCW 69.50.401(1),

provides: "Except as authorized by this chapter, it is unlawful for any person to

manufacture, deliver, or possess with intent to manufacture or deliver, a

controlled substance."


      The analysis of whether the legislature intended a crime to have

alternative means of commission focuses on the act that constitutes the offense.

For example, State v. Peterson7 reflects that this is the proper focus.           In

Peterson, the issue was whether failure to register as a sex offender, former

RCW 9A.44.130 (2003), is an alternative means crime.           That version of the

statute made it a crime for a person to fail to register as a sex offender after (1)

becoming homeless, (2) moving between fixed residences within a county, or (3)

moving from one county to another. The statute set different deadlines within

which a person had to register depending upon whether the person became

homeless, moved between fixed residences within a county, or moved from one

county to another. In determining whether the crime is an alternative means

crime, the court compared the crime to theft, which the court held is an

alternative means crime because it may be committed by "(1) wrongfully

obtaining or exerting control over another's property or (2) obtaining control over




6 State v. Laico. 97 Wn. App. 759, 762, 987 P.2d 638 (1999).
7 168 Wn.2d 763, 769, 230 P.3d 588 (2010).

                                         7
No. 68369-1-1/8



another's property through color or aid of deception."8 In concluding that, unlike
theft, failure to register is not an alternative means crime, the court stated:

       The alternative means available to accomplish theft describe
       distinct acts that amount to the same crime.         That is, one can
       accomplish theft by wrongfully exerting control over someone's
       property or by deceiving someone to give up their property. In each
       alternative, the offender takes something that does not belong to
       him, but his conduct varies significantly. In contrast, the failure to
       register statute contemplates a single act that amounts to failure to
       register: the offender moves without alerting the appropriate
       authority. His conduct is the same—he either moves without notice
       or he does not. The fact that different deadlines may apply,
       depending on the offender's residential status, does not change the
       nature ofthe criminal act: moving without registering.[9]
       The statute at issue here, RCW 69.50.401(1), describes three distinct acts

that amount to a violation of the statute: (1) manufacture, (2) delivery, and (3)

possession with intent to manufacture or deliver. These distinct acts constitute

three alternative means. But, the same cannot be said of possession with intent

to manufacture or deliver. The only physical act involved in "possession] with

intent to manufacture or deliver" is the act of possession.             The intent to

manufacture and the intent to deliver elements of the crime address the

defendant's subjective mental state.       An element dealing with a defendant's

subjective mental state generally cannot be the subject of an alternative means

analysis. Possession with intent to manufacture or deliver is not an alternative

means crime. Accordingly, we need not and do not address whether substantial




8 Peterson, 168 Wn.2d at 769 (citing State v. Lineham, 147 Wn.2d 638, 644-45,
647, 56 P.3d 542 (2002)).
9 Peterson. 168 Wn.2d at 770.


                                           8
No. 68369-1-1/9



evidence supports possession with intent to deliver as well as possession with

intent to manufacture.10

       B.      Aggravating Circumstance

       Huynh argues that his enhanced sentence must be vacated because the

State did not present substantial evidence to prove each alternative means of

committing a major VUCSA.

       The presence of any of the six statutory factors may identify a current

offense as a major VUCSA.11 The jury was instructed that it must be unanimous
that the aggravating circumstance was proved beyond a reasonable doubt. The

instruction on a major VUCSA, instruction 27, provided:

               A major trafficking violation of the Uniform Controlled
       Substances Act is one which is more onerous than the typical
       offense. The presence of any of the following factors may identify
       the offense charged in Count 1 as a major trafficking violation:


10 Huynh does not argue the evidence was insufficient to prove possession with
intent to deliver.
11 RCW9.94A.535(3)(e). The factors are
               (i) The current offense involved at least three separate
       transactions in which controlled substances were sold, transferred,
       or possessed with intent to do so;
               (ii) The current offense involved an attempted or actual sale
       or transfer of controlled substances in quantities substantially larger
       than for personal use;
               (iii) The current offense involved the manufacture of
       controlled substances for use by other parties;
             (iv) The circumstances of the current offense reveal the
       offender to have occupied a high position in the drug distribution
       hierarchy;
              (v) The current offense involved a high degree of
       sophistication or planning, occurred over a lengthy period of time,
       or involved a broad geographic area of disbursement; or
                (vi) The offender used his or her position or status to
       facilitate the commission of the current offense, including positions
       of trust, confidence or fiduciary responsibility (e.g., pharmacist,
       physician, or other medical professional).
No. 68369-1-1/10




              Whether the offense involved an attempted or actual sale or
       transfer of controlled substances in quantities substantially larger
       than for personal use;

              Whether the circumstances of the offense reveal that the
       defendant occupied a high position in the drug distribution
       hierarchy; or

              Whether the offense involved a high degree of sophistication
       or planning, occurred over a lengthy period of time, or involved a
       broad geographic area of distribution.

       The jury was also instructed that in order to find the existence of the

aggravating circumstance, the jury must "unanimously agree that the aggravating

circumstance has been proved beyond a reasonable doubt." The "aggravating

circumstance" on which the jury had to be unanimous was that the offenses were

major VUCSAs. The jury was not instructed that it must be unanimous with

regard to which of the three statutory factors made the offenses major VUCSAs.

       Huynh argues that because the jury was not instructed on unanimity as to

the statutory factors, the exceptional sentence can stand only if substantial

evidence supports all three factors. And, he argues, substantial evidence does

not support all three factors.

       Under the alternative means analysis, definitional statutes do not create

additional alternative means ofcommitting an offense.12 For example, in State v.
Laico,13 the court determined that the definition of "great bodily harm" for first

degree assault did not create three alternative means for committing the offense.

Accordingly, jury unanimity with regard to the existence of great bodily harm did



12 Linehan. 147 Wn.2d at 646.
13 97 Wn. App. 759, 987 P.2d 638 (1999).

                                        10
No. 68369-1-1/11



not require unanimity as to the type of great bodily harm. Similarly, the statutory

factors that may identify an offense as a major VUCSA are different sets of facts

that, if present, make the offense a major VUCSA. Accordingly, jury unanimity

with regard to the presence of the aggravating circumstance of major VUCSA

does not require unanimity as to which set of facts makes the offense a major

VUCSA.

II.    Motion to Sever

       At several points during trial, Huynh moved to sever the counts against

him and to sever his trial from Mak's trial. The trial court denied the motions.

       The law does not favor separate trials. We review a trial court's denial of

a motion to sever for manifest abuse of discretion.14 To show that the trial court

abused its discretion in denying severance, "the defendant must be able to point

to specific prejudice."15
       A.     Severance of the Offenses

       CrR 4.4(b) provides:

              The court, on application of the prosecuting attorney, or on
       application of the defendant other than under section (a), shall
       grant a severance of offenses whenever before trial or during trial
       with the consent of the defendant, the court determines that
       severance will promote a fair determination of the defendant's guilt
       or innocence of each offense.

       A defendant seeking severance has the burden of demonstrating that a

trial involving all counts would be so manifestly prejudicial as to outweigh the




14 State v. Medina, 112 Wn. App. 40, 52, 48 P.3d 1005(2002).
15 State v. Bvthrow. 114 Wn.2d 713, 720, 790 P.2d 154(1990).

                                         11
No. 68369-1-1/12


concern for judicial economy.16 Joinder of offenses carries the potential for
prejudice if (1) the defendant may have to present separate, possibly conflicting,

defenses; (2) the jury may infer guilt on one charge from evidence of another

charge; or (3) the cumulative evidence may lead to a guilty verdict on all charges

when, if considered separately, the evidence would not support every charge.17
       Huynh argues he was entitled to severance of the possession with intent

to manufacture or deliver count from the conspiracy to possess with intent to

manufacture or deliver count because one count alleged that Huynh acted as

Mak's accomplice and the other count alleged that he was responsible for his

own conduct. These different theories of liability, Huynh argues, likely confused

the jury and made it difficult for the jury to compartmentalize the evidence. But,

as the trial court stated in denying Huynh's motion to sever the offenses, "It does

appear all of the allegations relate to the same events or course of events and,

therefore, would be cross admissible against one another."               Huynh's brief

argument citing allegedly very different theories of liability is not sufficient to meet

his burden of showing that joinder of the offenses was so prejudicial that it

outweighed the need for judicial economy.

       B.     Severance of the Defendants

       Although he argued several grounds for severance below,18 on appeal,
Huynh argues only that he was entitled to severance because the State




16 Bvthrow, 114Wn.2dat718.
17 Bvthrow, 114Wn.2dat718.
18 Huynh argued that Mak's statement against him was inadmissible. But the
court redacted all references to Huynh in Mak's statement. He also argued that

                                           12
No. 68369-1-1/13



presented no evidence that he intended to manufacture cocaine and therefore

the testimony about repackaging and diluting cocaine would not have been

admissible against him.

         CrR 4.4(c)(2) provides that the court, on application of the prosecuting

attorney or the defendant, should grant a severance of defendants:

                 (i) if before trial, ... it is deemed appropriate to promote a
         fair determination of the guilt or innocence of a defendant; or
                 (ii) if during trial upon consent of the severed defendant, it is
         deemed necessary to achieve a fair determination of the guilt or
         innocence of a defendant.

         As with the severance of offenses, a defendant arguing for severance of

defendants must be able to point to specific prejudice resulting from the denial of

the motion to sever.19       Huynh's entire argument is that the evidence about
repackaging and diluting the cocaine would not have been admissible against

him. This does not show the requisite specific prejudice.

         The trial court did not abuse its discretion in denying Huynh's motions to

sever.


III.     Statement of Additional Grounds (SAG)

         A.     Informant's Tip

         Huynh argues that evidence flowing from the informant's tip should have

been excluded on the ground that the informant was unreliable and that the

information was obtained in violation of the privacy act, chapter 9.73 RCW.

However, it is not clear from Huynh's SAG or the record what this issue is about.



the defenses were mutually antagonistic, but does not raise this argument on
appeal.
19 State v. Emery. 174 Wn.2d 741, 752, 278 P.3d 653 (2012).

                                            13
No. 68369-1-1/14


Nor can we ascertain what informant or what tip Huynh is referring to.          Huynh

does not cite to the record in support of his argument.              The issue is not

reviewable. See RAP 10.10(c).

       B-     Opportunity to Testify

       Huynh argues he was denied due process because his counsel denied

him the opportunity to testify.

       At trial, Huynh's counsel stated:

              [DEFENSE COUNSEL]: Your Honor, I have discussed the
       issue with Mr. Huynh, and I have advised him he does not have to
       take the witness stand. His constitutional rights - -

              [PROSECUTOR]: Objection, Your Honor, speaking.

              [DEFENSE COUNSEL]: And he has chosen to do that.

       Because Huynh himself chose not to testify, he cannot claim a denial of

due process because he did not testify.

       C.     Closing Argument

       Huynh's argument in his SAG as to this issue is unintelligible. We are

unable to review it. See RAP 10.10(c). Further, to the extent Huynh claims his

counsel did not present a closing argument, Huynh is incorrect.

       D.     Entrapment Instruction

       Huynh did not request an instruction on entrapment.             Accordingly, he

cannot claim error in the trial court's failure to give such instruction.20




20 See State v. Scott. 110 Wn.2d 682, 686, 757 P.2d 492 (1988) (the failure to
request an instruction, or to challenge the trial court's failure to give a requested
instruction, waives the issue on appeal).


                                           14
No. 68369-1-1/15



     Affirmed.




                                4
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WE CONCUR:




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