IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, ) o Respondent, ) ) ) No. 69172-4-1 DIVISION ONE 2» -\CZ 5 er"M-> v. ) ) UNPUBLISHED OPINION f/>f-n s—i RANDALL JOSEPH WHITE, ) Appellant. ) ) ) FILED: January 21, 2014 

### U3 ^
. • —11—> O "- vGrosse, J. —When a jury is instructed on alternative means ofcommitting a crime, the defendant's right to a unanimous verdict is not violated ifsubstantial 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 intimidateanotherperson, we affirm his conviction forunlawful display of

a weapon. FACTS 

### The State charged Randall White withone countofsecond 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 Peakwas pregnantwiththe 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 herNo. 69172-4-1/2
insisted thatWhite 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 inthe face and then spit on her. Peak called 911. While she was talking with the 911 operator, White 

### grabbed hercell phone and ran out of the house. As Peak tried tofollowWhite, she encountered Bellevue Police Officer Curtis Mclvor, who was responding to 

### the 911 call. Mclvoraccompanied Peakback to the house. Peakwas crying and 

### upset andtold MclvorthatWhite had struck herin 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 returnedNo. 69172-4-1/3 Peak's cell phone but informed herthat 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 askedWhite to putthe 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 Peakaboutwhyshe 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 floorwith a taser. 

### After handcuffing White and rolling him over, the officers discovered an open folding knife underneath him. 

### Peakwas still crying, shaking, and visibly distraught afterofficers removed White from the house. Peak told Officer Thomas Moriarity that White had 

### grabbed herby the shirt and demanded that she "[t]ell [him] every fucking wordNo. 69172-4-1/4 [she] told to the cops." Peak also told Moriarity thatWhite "was making gestures withthe knife" as he yelled ather. 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 overto comfort her and crouched down beside her. He denied threatening Peakwith the knife and claimed that he put itdown as soon as she mentioned it. White also denied holding Peak againstthe wall. Thejury found White guiltyas charged of fourth degree assaulton count II and guilty ofthe 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 remainderofthe 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 sufficientevidence to support onlyone of the alternative means and that the conviction therefore violated his constitutional right to a unanimousjury.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 thejury be instructed on more than one ofthose means. . . . But, in orderto 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 bepresented.'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 "'onits ownmerits.'"4 The mere use of a disjunctive phrase in an instruction or statute does not 

### automaticallytriggera substantial evidencereview.5 Here, inorder 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. 

### 2Statev. Smith. 159Wn.2d 778, 783, 154 P.3d 873 (2007) (citation omitted). 3Statev. Arndt, 87 Wn.2d 374, 378, 553 P.2d 1328 (1976). 4State v. Peterson. 168 Wn.2d 2d 763, 769, 230 P.3d 588 (2010) (quoting State 

## y. Klimes. 117Wn. App. 758, 769, 73 P.3d416 (2003)). 5Smith, 159Wn.2d at783.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 

### thesafetyofotherpersons.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 ofothers, but asserts the evidence did not manifest "an intentto intimidate
another." Relying on the "invited error" doctrine, the State contends that White cannot challenge the sufficiency ofthe evidence on appeal because he proposed 

### the instruction containing the alternativemeans.7 But we need notaddress 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 anyevent, tosupportbothofthealleged 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 Peakaboutwhat she had told the police and then went into the kitchen, where he 

### grabbed a knife to openfood 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



### 6JuryInstruction 15 (emphasis added);seealsoRCW9.41.270(1). 7 See State v. Bover. 91 Wn.2d 342, 344-45, 588 P.2d 1151 (1979) (under 

### invited error doctrine, a party may notrequest an instruction and then complain on appeal thatthe requested instruction was given). 

### 8See Statev. Emery, 161 Wn.App. 172, 199, 253 P.3d 413 (2011).No. 69172-4-1/7 

### "Tell me everyfucking word you told to the cops." Peaktold OfficerMoriaritythat White "was making gestures withthe knife," while he was yelling inherface. 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 thatWhite displayed the knife in a manner that manifested "an intentto intimidate another." The evidence was therefore sufficientto support his conviction. Affirmed. 

# ^%V^

WE CONCUR: 

# C&s^'