 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                    )                                                   o

                                        )      No. 69172-4-1                    2»         -\CZ
                      Respondent,       )
                                        )      DIVISION ONE
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            v.                          )
                                        )      UNPUBLISHED OPINION                          f/> f-n s—i
RANDALL JOSEPH WHITE,                   )
                                        )                                            U3
                                                                                     . •
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                                                                                                —11—>
                      Appellant.        )      FILED: January 21,   2014
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                                        )


       Grosse, J. —When a jury is instructed on alternative means of committing

a crime, the defendant's right to a unanimous verdict is not violated if substantial

evidence supports each charged alternative.         Because the State presented

substantial evidence that Randall White displayed a knife in a manner that not

only warranted alarm for the safety of other persons, but also manifested an

intent to intimidate another person, we affirm his conviction for unlawful display of

a weapon.

                                      FACTS

       The State charged Randall White with one count of second degree assault

while armed with a deadly weapon - domestic violence (count I) and one count

of fourth degree assault - domestic violence (count II). At trial, Ericka Peak

testified that in March 2012, she and White were living together in Peak's

Bellevue house.    The couple had been in a relationship for more than five

months, and Peak was pregnant with the couple's child.

       White spent the afternoon of March 26, 2012, drinking and watching

videos. Shortly before 6:30 p.m., he told Peak that he wanted her to cash her
No. 69172-4-1/2



insisted that White return the money in a few days so that she could pay the rent.

In response, White became "really agitated" and turned up the volume on the

television.   When Peak turned the volume down, White threatened to pull the

television down from its stand.

       As White reached for the television, Peak grabbed him by the shoulders

and tried to pull him back. White swung around and hit Peak with his hand.

While the two struggled, White's arm obstructed Peak's breathing "for a split

second."

       White appeared to calm down and went into the kitchen to make

something to eat.    Peak told White that he could not treat her this way and

suggested that he make arrangements to return to Texas. White slapped Peak

in the face and then spit on her.

       Peak called 911.    While she was talking with the 911 operator, White

grabbed her cell phone and ran out of the house. As Peak tried to follow White,
she encountered Bellevue Police Officer Curtis Mclvor, who was responding to

the 911 call. Mclvor accompanied Peak back to the house. Peak was crying and

upset and told Mclvor that White had struck her in the face and stomach and spit
in her face.    Mclvor helped Peak secure the house and left after about 45

minutes.

       Several hours later, White returned to the house and knocked on the door.

Peak let him in because he appeared to have calmed down. White returned
No. 69172-4-1/3



Peak's cell phone but informed her that he would keep the battery until he left for

Texas.

         White became increasingly agitated as he repeatedly asked Peak what

she had said to the police. After about 15 minutes, he went into the kitchen and

started throwing food away. White used a knife to open the food packages and

eventually cut himself.

         After stopping the bleeding, White held the knife while he approached

Peak, who was sitting in the living room. As he stood about two to three feet

away from her, he began yelling, "[W]hat the fuck did [you] say to the cops?"

Peak repeatedly asked White to put the knife down.

         While White and Peak were quarreling, a neighbor called 911.          As he

approached the house, Officer Mclvor could see Peak sitting in a chair, with
White crouched next to her. Peak was "crying and whimpering," and White was

yelling at Peak about why she had called the police.

         As the officers forced open the door, White stood up and held Peak

against the wall.     When White failed to comply with repeated commands to
release Peak, the officers grabbed him and forced him to the floor with a taser.

After handcuffing White and rolling him over, the officers discovered an open

folding knife underneath him.

         Peak was still crying, shaking, and visibly distraught after officers removed
White from the house.        Peak told Officer Thomas Moriarity that White had

grabbed her by the shirt and demanded that she "[t]ell [him] every fucking word
No. 69172-4-1/4



[she] told to the cops." Peak also told Moriarity that White "was making gestures

with the knife" as he yelled at her.

       White acknowledged that he spent a few hours drinking in a nearby bar

and was "affected" by alcohol when he returned to Peak's house around 10:15

p.m. After Peak let him in, he went into the kitchen to make something to eat.

While in the kitchen, White continued to argue with Peak, who was sitting in the

living room.   At some point, White grabbed a knife and used it to open food

packages. When Peak started crying, White, still holding the knife, went over to

comfort her and crouched down beside her. He denied threatening Peak with the

knife and claimed that he put it down as soon as she mentioned it. White also

denied holding Peak against the wall.

       The jury found White guilty as charged of fourth degree assault on count II

and guilty of the lesser included offense of unlawful display of a weapon on count

I. The court sentenced White to concurrent 364-day terms, with credit for 115

days served and the remainder of the sentence suspended.



                                       ANALYSIS

       White contends that the "to convict" instruction for the lesser included

offense of unlawful display of a weapon (count I) specified two alternative means.

He argues that the State presented sufficient evidence to support only one of the

alternative means and that the conviction therefore violated his constitutional

right to a unanimous jury.
No. 69172-4-1/5


      Criminal defendants in Washington have a constitutional right to a

unanimous jury verdict.1 When the crime charged can be committed by more
than one means, however,

      the defendant does not have a right to a unanimous jury
      determination as to the alleged means used to carry out the
      charged crime or crimes should the jury be instructed on more than
      one of those means. . . . But, in order to safeguard the defendant's
      constitutional right to a unanimous verdict as to the alleged crime,
      substantial evidence of each of the relied-on alternative means
      must be presented.'21
Whether a statute sets forth alternative means of committing the offense

depends on legislative intent.3 There are no bright-line rules for determining

alternative means, and the courts must evaluate each case "'on its own merits.'"4

The mere use of a disjunctive phrase in an instruction or statute does not

automatically trigger a substantial evidence review.5
       Here, in order to establish lesser included offense of unlawful display of a

weapon, the State was required to prove, among other things, that White

displayed the knife




1 State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231 (1994); Wash.
Const, art. I, §21.
2 State v. Smith. 159 Wn.2d 778, 783, 154 P.3d 873 (2007) (citation omitted).
3 State v. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976).
4 State v. Peterson. 168 Wn.2d 2d 763, 769, 230 P.3d 588 (2010) (quoting State
y. Klimes. 117 Wn. App. 758, 769, 73 P.3d416 (2003)).
5 Smith, 159 Wn.2d at 783.
No. 69172-4-1/6

       in a manner, under circumstances, and at a time and place that
       manifested an intent to intimidate another or warranted alarm for
      the safety of other persons.161
White concedes that the evidence of his confrontation with Peak supported an

inference that he displayed the knife in a manner that warranted alarm for the

safety of others, but asserts the evidence did not manifest "an intent to intimidate

another."

       Relying on the "invited error" doctrine, the State contends that White

cannot challenge the sufficiency of the evidence on appeal because he proposed

the instruction containing the alternative means.7 But we need not address this
dubious proposition nor the State's alternative claim that unlawful display of a

weapon is not an alternative means crime because the evidence was sufficient,

in any event, to support both of the alleged alternative means.8
       Several hours after assaulting Peak, White returned to her house, clearly

still angry because she had called the police. White gave Peak her cell phone,
but kept the battery, rendering the phone useless. He repeatedly interrogated
Peak about what she had told the police and then went into the kitchen, where he

grabbed a knife to open food packages. Eventually, White returned to the living
room to confront Peak again. While still holding the knife in his hand, White
repeatedly demanded to know, "[W]hat the fuck did [you] say to the cops," and


6Jury Instruction 15 (emphasis added); see also RCW 9.41.270(1).
7 See State v. Bover. 91 Wn.2d 342, 344-45, 588 P.2d 1151 (1979) (under
invited error doctrine, a party may not request an instruction and then complain
on appeal that the requested instruction was given).
8 See State v. Emery, 161 Wn.App. 172, 199, 253 P.3d 413 (2011).
No. 69172-4-1/7


"Tell me every fucking word you told to the cops." Peak told Officer Moriarity that

White "was making gestures with the knife," while he was yelling in her face.

       Viewed      in the light most favorable to the State, the foregoing

circumstances were sufficient to permit a rational trier of fact to find beyond a

reasonable doubt that White displayed the knife in a manner that manifested "an

intent to intimidate another." The evidence was therefore sufficient to support his

conviction.

       Affirmed.




                                             ^%V^

WE CONCUR:




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