### FILED 

### AUGUST 9, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. NICHOLAS LEEJACOB GILLAM, Appellant. 

### ) ) ) ) 

### ) ) ) ) 

### ) No. 33216-1-111

UNPUBLISHED OPINION
SIDDOWAY, J.

- Nicholas Gillam appeals his convictions for possession ofa stolen motorvehicle and attempt to elude the police. In apro se statement ofadditional grounds (SAG), 1he argues that (1) the evidence was insufficientto support what he contends are five alternative means ofpossessing a stolen motor vehicle orto supportthe knowledge element ofthe crime, and (2) the prosecutorviolated Mr. Gillam's United States constitutional FourteenthAmendmentrightwhen he knowingly presented false testimony attrial. Becausepossession ofa stolen motorvehicle is a single means crime,

1Mr. Gillam's opening briefassigned errorto a misnumbering, inthejudgment and sentence, ofthe counts charged. A correctedjudgment 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 ofprosecutorial misconduct is not supported by evidence in the record, we affirm. FACTS AND PROCEDURAL BACKGROUND In May 2014, ScottPeterson rented a car for a friend so she could travel to Montana to visit her grandfather. The car ended up in the possession ofNicholas 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 ifMr. Peterson hadreported it as stolen. Mr. Petersontold him that he had. Duringthe call and in a subsequent visit to Mr. Peterson's home, Mr. Gillam said he wantedto continue using the car and asked Mr. Peterson to call police and report it was no longer stolen. Mr. Peterson initially saidhe wouldbutwantedthe car back, butwhen 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 Gillam he had not withdrawn his report that the car was stolen.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 officerwho had been looking for the stolen car spotted it in the parking lot ofa convenience store. Hepulled his clearly identifiable police car in close behind to preventthe 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 carto his left, was able to escape the officer's effort to 2No. 33216-1-111 

### State v. Gillam
block him and sped out ofthe parking lot. Pursued by two police officers and driving at high speed on rims-only on the right side (both tires onthe right side were flattened during Mr. Gillam's maneuvers in the convenience storeparking lot), Mr. Gillam ultimately crashedthe car into a light pole. The State charged Mr. Gillam (among other crimes) with one count ofpossession ofa stolen motorvehicle and one count ofattempt to elude a police vehicle. Attrial, the court gave thejury a to-convict instruction on the crime ofpossession ofa stolen motor vehicle that identified four elements the State mustprove beyond a reasonable doubt. One element was, "[t]hat on or about the 25th day ofMay, 2014, the defendant knowingly received, retained, possessed, concealed, or disposed ofa stolen motor vehicle." Clerk's Papers (CP) at 179. Ajury found Mr. Gillam guilty as charged. Mr. Gillam appeals. In a prose statement ofadditional grounds filed withthis court, Mr. Gillamrelies
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 ofa stolen motor vehicle is an alternative means crime, committed by knowingly 

### receiving, or 

### retaining, or

### possessing, or 

### concealing, or 

### disposing ofa stolen motorvehicle. He argues thatby including all ofthe alternative
means in the to-convict instruction, the State was requiredby the law ofthe case doctrine

3No. 33216-1-III 

### State v. Gillam

to present evidence sufficientto prove each means beyond a reasonable doubt. He also contends theprosecutorpresented false testimony, violating his right to due process. In the preargumentwork-up ofthe appeal, we asked the State to respond to Mr. Gillam's SAG.2 ANALYSIS 

### I. Jury unanimity Mr. Gillam's first additional ground for reliefasserts thatthe 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. "Aperson is guilty ofpossession ofa stolen motor vehicle ifhe or she possess[es]
a stolen motor vehicle." RCW 9A.56.068(1). Possession ofstolenproperty is defined, in part, as "knowingly to receive, retain, possess, conceal, or dispose ofstolenproperty." RCW 9A.56.140(1). Mr. Gillam argues that the State assumed the burden ofproving what he contends are the five alternative means ofpossessing stolenproperty mentioned in the to-convict instruction and failed to do so.

2Normally, this court would ask both counsel to briefSAG issues ofpotential merit, RAP 10.lO(f), but giventhe thoroughness ofMr. Gillam's briefing we invited defense counsel to weigh in only ifhe had somethingto add. 4No. 33216-1-111 State v. Gillam "Generally, an alternative means crime is one by whichthe criminal conduct may be proved in a variety ofways." 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 orprovided direction on how they are to be distinguished, see id., "determining which statutes create alternative means crimes is left tojudicial interpretation." State v. Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87 (2015). Washington cases "have disapproved ofrecognizing alternative means crimes simply by the use ofthe 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).

Id. 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. Butwhen the statute describes minor nuances inhering in the same act, the more likely the various "alternatives" are merely facets ofthe same criminal conduct.

In Lillard, on which Mr. Gillam relies, Division One addressed Mr. Lillard's pro
se argument that because the court'sto-convict instruction on the charge ofpossessing stolen property "specifically listed the alternative definitions of'possession' as alternative means ofthe offense to be proved by the State, there mustbe 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 5No. 33216-1-III State v. Gillam
Wn. App. at 434-35. InHayes, the other decision on which Mr. Gillam relies, Division One characterizedLillardas holding that it is only whenthe court includes "knowingly received, retained, possessed, concealed, or disposed ofstolenproperty" 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 ofstolen property' in RCW 9A.56.140(1) is definitional. It does not create alternative means ofa crime. 

### Id. at 477. Recently, Division Tworejected the dubious reasoning ofLillardand Hayes that terms the courts recognized as facets ofa definition, and as not creating alternative means ofcommitting 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 characterizedLillardandHayes 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 withLillardand Hayes, the patternto-convict instruction has heretofore provided, as to the possession element, "That on or about (date), the defendant knowingly [received] [retained] [possessed] [concealed] [disposedof] a stolen motor vehicle." 1lA WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 77.21 at 177 (3d ed. 2008) (emphasis added). 6No. 33216-1-111 

### State v. 

### Gillam
definitional terms in the to-convict instruction created alternative means." 

### Id. Makekau points outthat in 

### State v. 

### Smith, 159 Wn.2d 778, 785, 154 P.3d 873 (2007), our Supreme Courtheld that "including definitions ofan element ofa crime in ajury instruction separate from the to-convict instruction does not create alternative means ofcommitting the crime." 

### Id. Makekau goes on to say-andwe agree- that "[i]fdefinitions in a separate instruction do not create alternative means, there is no reason that includingthe definitions in the to-convict instruction should change the result." 

### Id. Because Washington cases have not interpreted the definition ofwhat 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 ofthe crime ofpossessing a stolen motorvehicle, the State was notrequired topresent evidence that Mr. Gillam knowingly received, retained, possessed, concealed, and disposed ofa stolen motor vehicle. Turningto Mr. Gillam's challenge to the sufficiency ofevidence to support a finding thathe knew the rental car was stolen, "[t]hetest for determining the sufficiency ofthe evidence is whether, afterviewingthe evidence in the light most favorable to the State, any rational trier offact 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 afterreporting the car stolen is sufficient, standing alone, to

7

### No. 33216-1-111 

### State v. Gillam support a rationaljuror'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 contributiontoward the cost ofthe
car (albeit miniscule, given what Mr. Peterson owed under the rental contract). Butthe fact that Mr. Gillam can pointto some evidence supporting his ostensible beliefthat he had Mr. Peterson's permissionto retain the car does not change the fact that other testimony from Mr. Peterson established Mr. Gillam knew the car was stolen. Thejury evidently believed Mr. Peterson's testimony that he told Mr. Gillam he never withdrew his report ofa stolen vehicle. And Mr. Gillam's effort to elude the officer who spotted him at the convenience score was additional consciousness ofguilt evidence. A reasonable fact finder presented with the State's evidence could find beyond a reasonable doubt that Mr. Gillam knew the carwas stolen. 

### II. False testimony Mr. Gillam's second additional ground for reliefis that the prosecutor knowingly presentedperjured testimony to thejury in violation ofMr. Gillam's right to due process. It is fundamental that the Fourteenth Amendmentto the United States Constitution cannot tolerate a state criminal conviction obtained by knowing use offalse evidence; "deliberate deception ofa court andjurors by the presentation ofknown false evidence is 8No. 33216-1-III 

### State v. Gillam incompatible with 'rudimentary demands of justice."' 

### Giglio v. UnitedStates, 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 newtrial is required ifthe false evidence could in any reasonable likelihood have affected the verdict. 

### Id. Mr. Gillam has notprovided us with any evidence in support ofhis contentionthat the prosecutor knowingly presented perjured testimony. Since his challenge involves factual allegations outside the record ofthis appeal, his remedy is to seek reliefby personal restraint petition. 

### State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991). Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# d?~w~ft· Siddoway, J. WE CONCUR:

Pennell, J.

9