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, 

Respondent, 

V. 

NICHOLAS LEE JACOB GILLAM, 

Appellant. 

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No. 33216-1-111 

UNPUBLISHED OPINION 

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withdrawn his report that the car was stolen.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 

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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 

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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. 

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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). 

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. 

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. 

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 

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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). 

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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 

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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 

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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. 

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