                                                                        FILED
                                                                     AUGUST 9, 2016
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 33216-1-111
                     Respondent,             )
                                             )
      V.                                     )
                                             )
NICHOLAS LEE JACOB GILLAM,                   )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

       SIDDOWAY, J. - Nicholas Gillam appeals his convictions for possession of a

stolen motor vehicle and attempt to elude the police. In a pro se statement of additional

grounds (SAG), 1 he argues that (1) the evidence was insufficient to support what he

contends are five alternative means of possessing a stolen motor vehicle or to support the

knowledge element of the crime, and (2) the prosecutor violated Mr. Gillam's United

States constitutional Fourteenth Amendment right when he knowingly presented false

testimony at trial. Because possession of a stolen motor vehicle is a single means crime,




       1 Mr.  Gillam's opening brief assigned error to a misnumbering, in the judgment
and sentence, of the counts charged. A corrected judgment and sentence was filed. Only
the issues raised by his SAG remain to be resolved.
No. 33216-1-111
State v. Gillam


the evidence was sufficient, and Mr. Gillam's complaint of prosecutorial misconduct is

not supported by evidence in the record, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       In May 2014, Scott Peterson rented a car for a friend so she could travel to

Montana to visit her grandfather. The car ended up in the possession of Nicholas Gillam.

Almost a week after renting the car, Mr. Peterson reported it stolen.

       Several days after Mr. Peterson reported the car stolen, he received a telephone

call from Mr. Gillam, who told Mr. Peterson he had the rental car and asked if Mr.

Peterson had reported it as stolen. Mr. Peterson told him that he had. During the call and

in a subsequent visit to Mr. Peterson's home, Mr. Gillam said he wanted to continue

using the car and asked Mr. Peterson to call police and report it was no longer stolen.

Mr. Peterson initially said he would but wanted the car back, but when Mr. Gillam came

to his home and would not leave the car, Mr. Peterson told Mr. Gillam he had not

withdrawn his report that the car was stolen.

       Two days later, a police officer who had been looking for the stolen car spotted it

in the parking lot of a convenience store. He pulled his clearly identifiable police car in

close behind to prevent the car from leaving and made eye contact with Mr. Gillam, who

was in the driver's seat. Upon realizing what was happening, Mr. Gillam backed into the

police car and, by driving up over the curb and sidewalk, striking a handicapped parking

sign and side-swiping a parked car to his left, was able to escape the officer's effort to

                                                2
No. 33216-1-111
State v. Gillam


block him and sped out of the parking lot. Pursued by two police officers and driving at

high speed on rims-only on the right side (both tires on the right side were flattened

during Mr. Gillam's maneuvers in the convenience store parking lot), Mr. Gillam

ultimately crashed the car into a light pole.

       The State charged Mr. Gillam (among other crimes) with one count of possession

of a stolen motor vehicle and one count of attempt to elude a police vehicle.

       At trial, the court gave the jury a to-convict instruction on the crime of possession

of a stolen motor vehicle that identified four elements the State must prove beyond a

reasonable doubt. One element was, "[t]hat on or about the 25th day of May, 2014, the

defendant knowingly received, retained, possessed, concealed, or disposed of a stolen

motor vehicle." Clerk's Papers (CP) at 179.

       A jury found Mr. Gillam guilty as charged. Mr. Gillam appeals.

       In a prose statement of additional grounds filed with this court, Mr. Gillam relies

on State v. Hayes, 164 Wn. App. 459, 477, 262 P.3d 538 (2011), aff'd, 182 Wn.2d 556,

342 P.3d 1144 (2015) and State v. Lillard, 122 Wn. App. 422, 434-35, 93 P.3d 969

(2004) to argue that possession of a stolen motor vehicle is an alternative means crime,

committed by knowingly receiving, or retaining, or possessing, or concealing, or

disposing of a stolen motor vehicle. He argues that by including all of the alternative

means in the to-convict instruction, the State was required by the law of the case doctrine




                                                3
No. 33216-1-III
State v. Gillam


to present evidence sufficient to prove each means beyond a reasonable doubt. He also

contends the prosecutor presented false testimony, violating his right to due process.

          In the preargument work-up of the appeal, we asked the State to respond to Mr.

Gillam's SAG. 2

                                           ANALYSIS

                                        I. Jury unanimity

          Mr. Gillam's first additional ground for relief asserts that the State failed to

present evidence to support every alternative means for possessing stolen property

included in the to-convict instruction and failed to prove that he knew the rental car was

stolen.

          "A person is guilty of possession of a stolen motor vehicle if he or she possess[ es]

a stolen motor vehicle." RCW 9A.56.068(1). Possession of stolen property is defined, in

part, as "knowingly to receive, retain, possess, conceal, or dispose of stolen property."

RCW 9A.56.140(1). Mr. Gillam argues that the State assumed the burden of proving

what he contends are the five alternative means of possessing stolen property mentioned

in the to-convict instruction and failed to do so.




          2
        Normally, this court would ask both counsel to brief SAG issues of potential
merit, RAP 10. lO(f), but given the thoroughness of Mr. Gillam's briefing we invited
defense counsel to weigh in only if he had something to add.

                                                 4
No. 33216-1-111
State v. Gillam


       "Generally, an alternative means crime is one by which the criminal conduct may

be proved in a variety of ways." State v. Owens, 180 Wn.2d 90, 96, 323 P.3d 1030

(2014). Since the legislature has not designated which crimes are alternative means

crimes or provided direction on how they are to be distinguished, see id., "determining

which statutes create alternative means crimes is left to judicial interpretation." State v.

Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87 (2015). Washington cases "have

disapproved of recognizing alternative means crimes simply by the use of the disjunctive

'or'" and "[have not] found that structuring the statute into subsections is dispositive or

that definitional statutes create alternative means." Id. at 734 (internal citation omitted).

       Rather, the statutory analysis focuses on whether each alleged alternative
       describes "distinct acts that amount to the same crime." [State v. ]Peterson,
       168 W[n].2d [763,] 770[, 230 P.3d 588 2010]. 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 Lillard, on which Mr. Gillam relies, Division One addressed Mr. Lillard's pro

se argument that because the court's to-convict instruction on the charge of possessing

stolen property "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, unless we can determine that the verdict was based

on only one alternative means and that substantial evidence supports that means." 122

                                              5
No. 33216-1-III
State v. Gillam


Wn. App. at 434-35. In Hayes, the other decision on which Mr. Gillam relies, Division

One characterized Lillard as holding that it is only when the court includes "knowingly

received, retained, possessed, concealed, or disposed of stolen property" in the to-convict

instruction that those terms will be treated as alternative means the State must prove. 164

Wn. App. at 478-79. 3 Otherwise, Hayes held,

       the reference to 'receive, retain, possess, conceal, or dispose of stolen
       property' in RCW 9A.56.140(1) is definitional. It does not create
       alternative means of a crime.

Id. at 477.

       Recently, Division Two rejected the dubious reasoning of Lillard and Hayes that

terms the courts recognized as facets of a definition, and as not creating alternative means

of committing a crime, could somehow be transformed into alternative means by being

included in the to-convict instruction. State v. Makekau, No. 46929-4-11, 2016 WL

3188944, at *6 (June 7, 2016). It characterized Lillard and Hayes as unpersuasive,

"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," rather, "[t]he courts in both cases basically assumed that including the



       3
         Consistent with Lillard and Hayes, the pattern to-convict instruction has
heretofore provided, as to the possession element, "That on or about (date), the defendant
knowingly [received] [retained] [possessed] [concealed] [disposed of] a stolen motor
vehicle." 1 lA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 77.21 at 177 (3d ed. 2008) (emphasis added).

                                              6
No. 33216-1-111
State v. Gillam


definitional terms in the to-convict instruction created alternative means." Id. Makekau

points out that in State v. Smith, 159 Wn.2d 778, 785, 154 P.3d 873 (2007), our Supreme

Court 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." Id. Makekau goes on to say-and we agree- that "[i]f 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." Id.

       Because Washington cases have not interpreted the definition of what it means to

"possess" stolen property as creating alternative means, and including the definition in

the to-convict instruction does nothing to change the single-means character of the crime

of possessing a stolen motor vehicle, the State was not required to present evidence that

Mr. Gillam knowingly received, retained, possessed, concealed, and disposed of a stolen

motor vehicle.

       Turning to Mr. Gillam's challenge to the sufficiency of evidence to support a

finding that he knew the rental car was stolen, "[t]he test for determining the 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. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992). Mr. Peterson's testimony as to

his contact with Mr. Gillam after reporting the car stolen is sufficient, standing alone, to




                                              7
No. 33216-1-111
State v. Gillam


support a rational juror's finding that Mr. Gillam knew beyond a reasonable doubt that

the car was stolen.

       Mr. Gillam nonetheless points to Mr. Peterson's testimony that Mr. Gillam wanted

to keep the rental car, offered to reimburse Mr. Peterson for the continuing cost, and gave

Mr. Peterson $12.00 that Mr. Peterson assumed was a contribution toward the cost of the

car (albeit miniscule, given what Mr. Peterson owed under the rental contract). But the

fact that Mr. Gillam can point to some evidence supporting his ostensible belief that he

had Mr. Peterson's permission to retain the car does not change the fact that other

testimony from Mr. Peterson established Mr. Gillam knew the car was stolen. The jury

evidently believed Mr. Peterson's testimony that he told Mr. Gillam he never withdrew

his report of a stolen vehicle. And Mr. Gillam's effort to elude the officer who spotted

him at the convenience score was additional consciousness of guilt evidence.

       A reasonable fact finder presented with the State's evidence could find beyond a

reasonable doubt that Mr. Gillam knew the car was stolen.

                                     II. False testimony

       Mr. Gillam's second additional ground for relief is that the prosecutor knowingly

presented perjured testimony to the jury in violation of Mr. Gillam's right to due process.

It is fundamental that the Fourteenth Amendment to the United States Constitution cannot

tolerate a state criminal conviction obtained by knowing use of false evidence;

"deliberate deception of a court and jurors by the presentation of known false evidence is

                                             8
No. 33216-1-III
State v. Gillam


incompatible with 'rudimentary demands of justice."' Giglio v. United States, 405 U.S.

150, 153, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (quoting Mooney v. Holohan, 294 U.S.

103, 112, 55 S. Ct. 340, 79 L. Ed. 791 (1935)). A new trial is required if the false

evidence could in any reasonable likelihood have affected the verdict. Id.

       Mr. Gillam has not provided us with any evidence in support of his contention that

the prosecutor knowingly presented perjured testimony. Since his challenge involves

factual allegations outside the record of this appeal, his remedy is to seek relief by

personal restraint petition. State v. Norman, 61 Wn. App. 16, 27-28, 808 P .2d 1159

(1991).

       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                    d?~w~ft·
                                                  Siddoway, J.

WE CONCUR:




                                                  Pennell, J.




                                              9
