IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 46935-9-II

Respondent,

v.

KORAN RASHAD BUTLER, PART PUBLISHED OPINION

Appellant.

WORSWICK, P.J. — Koran Butler appeals his convictions and sentence for forgery, 

second degree identity theft, and attempted second degree theft. He primarily argues that the 

trial court violated his constitutional right to a unanimous verdict by not issuing a unanimity 

instruction because the State provided insufficient evidence of one of the alternative means of 

committing identity theft. In the published portion of this opinion we hold that identity theft is 

not an alternative means crime. In the unpublished portion of this opinion we consider and reject 

Butler’s arguments regarding the trial court’s reasonable doubt instruction, ineffective assistance 

of counsel, and legal financial obligations (LFOs). We affirm Butler’s convictions. 

FACTS

On February 3, 2014, Koran Butler attempted to cash a check at Heritage Bank in 

Tacoma. The check was made out for $1,500 and was to be paid to “K. Butler” for “auto work.” 

Verbatim Report of Proceedings (VRP) (Oct. 28, 2014) at 78. Assistant branch manager, 

Marlene Wheeler, compared the signature on the check to the account holder’s on-file signature 

and concluded the signatures did not match. Law enforcement officers arrived at Heritage Bank 

and arrested Butler.

Filed

Washington State

Court of Appeals

Division Two

June 14, 2016
No. 46935-9-II

2

The State charged Butler with second degree identity theft, forgery, and attempted second 

degree theft. The jury found Butler guilty of all three charges.

ANALYSIS

Butler argues that the trial court instructed the jury on alternative means of committing 

identity theft without including a unanimity instruction, and because the State presented 

insufficient evidence to prove one of the alternative means, Butler’s constitutional right to a 

unanimous verdict was violated. Butler did not object to the trial court’s jury instructions or 

request a unanimity instruction. Generally we will not review claims raised for the first time on 

appeal unless the party claiming the error can show the presence of an exception to that rule, 

such as a manifest error affecting a constitutional right. RAP 2.5(a)(3); State v. Robinson, 171 

Wn.2d 292, 304, 253 P.3d 84 (2011); State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 

(2009). However, even assuming Butler can raise this claim for the first time on appeal, we hold 

that identity theft is not an alternative means crime and no unanimity instruction was necessary. 

Therefore, Butler’s claim fails.

“An ‘alternative means crime’ is one ‘that provide[s] that the proscribed criminal conduct 

may be proved in a variety of ways.’” State v. Peterson, 168 Wn.2d 763, 769, 230 P.3d 588 

(2010) (alteration in original) (quoting State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873 

(2007)). Because the legislature has not defined what constitutes an alternative means crime, 

whether a statute provides an alternative means for committing a particular crime is left to 

judicial determination. Peterson, 168 Wn.2d at 769. We review questions of statutory 

interpretation de novo and interpret statutes to give effect to the legislature’s intentions. State v. 

Bunker, 169 Wn.2d 571, 577-78, 238 P.3d 487 (2010).
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There is no bright-line rule for making this determination and we must evaluate each case 

on its own merits. Peterson, 168 Wn.2d at 769. “The statutory analysis focuses on whether each 

alleged alternative describes ‘distinct acts that amount to the same crime.”’ State v. Sandholm, 

184 Wn.2d 726, 734, 364 P.3d 87 (2015) (quoting Peterson, 168 Wn.2d at 770). The more 

varied the criminal conduct, the more likely the statute describes alternative means. Sandholm, 

184 Wn.2d at 734. Thus, we focus our analysis on the different underlying acts that could 

constitute the same crime. State v. Owens, 180 Wn.2d 90, 96-97, 323 P.3d 1030 (2014). The 

various underlying acts must vary significantly to constitute distinct alternative means. 180 

Wn.2d at 97. 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. Sandholm, 184 

Wn.2d at 734. Merely stating methods of committing a crime in the disjunctive does not mean 

that there are alternative means of committing a crime. State v. Lindsey, 177 Wn. App. 233, 240-

41, 311 P.3d 61 (2013). A statute divided into subparts is more likely to designate alternative 

means. 177 Wn. App. at 241. We place less weight on the use of the disjunctive “or” and more 

weight on the distinctiveness of the criminal conduct. Sandholm, 184 Wn.2d at 726.

We begin our review by analyzing the language of the criminal statute at issue. See 

Owens, 180 Wn.2d at 96. RCW 9.35.020 reads:

(1) No person may knowingly obtain, possess, use, or transfer a means of 

identification or financial information of another person, living or dead, with the 

intent to commit, or to aid or abet, any crime.

. . . .

(3) A person is guilty of identity theft in the second degree when he or she violates 

subsection (1) of this section under circumstances not amounting to identity theft 

in the first degree.

Butler contends the use of four different verbs in the statute—obtain, possess, transfer, 

and use—establish that the crime is committable in more than one way, and is therefore an 
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alternative means crime. Butler’s argument is similar to the one our Supreme Court rejected in 

Owens. 180 Wn.2d at 99. The statute addressed in Owens provided that a person who 

“knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of 

property for sale to others, or who knowingly traffics in stolen property, is guilty of trafficking in 

stolen property in the first degree.” RCW 9A.82.050(1). There, the defendant argued that the 

eight different verbs articulated eight alternative means for committing the crime of first degree 

trafficking in stolen property. Owens, 180 Wn.2d at 95-96. He argued that his conviction had to 

be reversed because the State charged all eight and there was not substantial evidence to support 

each means charged. 180 Wn.2d at 95-96.

Relying on the placement of the word “knowingly” in two different positions in the list of 

verbs, the Owens court concluded that the statute articulated only two alternative means, not 

eight. 180 Wn.2d at 99. The court also pointed out that the first seven verbs were so closely 

related they did not really address distinct acts:

For example, it would be hard to imagine a single act of stealing whereby a person 

“organizes” the theft but does not “plan” it. Likewise, it would be difficult to 

imagine a situation whereby a person “directs” the theft but does not “manage” it.

Any one act of stealing often involves more than one of these terms. Thus, these 

terms are merely different ways of committing one act, specifically stealing.

Consistent with Peterson, where the various acts of moving without giving proper 

notice were too similar to constitute distinct alternative means, an individual’s 

conduct under RCW 9A.82.050(1) does not vary significantly between the seven 

terms listed in the first clause.

Owens, 180 Wn.2d at 99; see Peterson, 168 Wn.2d 763.

Here, the four verbs describing identity theft are like the seven verbs that described the 

first alternative means of trafficking in stolen property in Owens. The verbs here are not distinct 

means by which to commit identity theft, but rather are multiple facets of a single means. For 

instance, following the analysis in Owens, it would be hard to imagine the crime of identity theft 
No. 46935-9-II

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being committed by a single act of “using” a check that did not also involve “obtaining” and 

“possessing” the check. Likewise, one could not “transfer” financial information without also 

“obtaining” and “possessing” that information.

Butler attempts to distinguish these verbs from those in Owens by arguing that one could 

“obtain” financial information without “using” or “transferring” it. Reply Br. of Appellant 6. 

However, not every verb must overlap in order to constitute a single means. For instance, in 

Owens it could be said that one could “supervise” the theft without “financing” it. See 180

Wn.2d at 99. Because no single action in the statute could be completed without simultaneously 

completing at least one other action, the various acts are too similar to constitute distinct 

alternative means. See 180 Wn.2d at 99.

We hold that identity theft is not an alternative means crime, and therefore the trial court 

did not err by not issuing a unanimity instruction. 

A majority of the panel having determined that only the foregoing portion of this opinion 

will be printed in the Washington Appellate Reports and that the remainder shall be filed for 

public record in accordance with RCW 2.06.040, it is so ordered.

ADDITIONAL FACTS

At Butler’s trial, the court issued the following “to convict” jury instruction for second 

degree identity theft:

To convict the defendants [sic] of identity theft in the second degree, the 

following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 3rd day of February, 2014, the defendant knowingly 

obtained, possessed, transferred, or used a means of identification or financial 

information of another person, living or dead, to-wit: Patricia Gann;

(2) That the defendant acted with the intent to commit, or aid or abet, any 

crime; and

(3) That any of these acts occurred in the State of Washington.

If you find from the evidence that each of these elements have been proved 

beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
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On the other hand, if after weighing all the evidence, you have a reasonable 

doubt as to any one of these elements, then it will be your duty to return a verdict 

of not guilty.

Clerk’s Papers (CP) at 22. The trial court did not issue a unanimity instruction. Butler neither 

objected to the use of this instruction nor proposed an alternative instruction.

The trial court also instructed the jury as to reasonable doubt, using Washington’s pattern 

instruction for reasonable doubt:

The defendant has entered a plea of not guilty. That plea puts in issue every 

element of each crime charged. The State is the plaintiff and has the burden of 

proving each element of each crime beyond a reasonable doubt. The defendant has 

no burden of proving that a reasonable doubt exists as to these elements.

A defendant is presumed innocent. This presumption continues throughout 

the entire trial unless during your deliberations you find it has been overcome by 

the evidence beyond a reasonable doubt.

A reasonable doubt is one for which a reason exists and may arise from the

evidence or lack of evidence. It is such a doubt as would exist in the mind of a 

reasonable person after fully, fairly, and carefully considering all of the evidence 

or lack of evidence. If, from such consideration, you have an abiding belief in the 

truth of the charge, you are satisfied beyond a reasonable doubt. 

CP at 16; See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 

85 (3d ed. 2009) (WPIC). Butler neither objected to the use of the pattern instruction nor 

proposed a different instruction.

At sentencing, Butler stipulated to the State’s calculation of his offender score, which did 

not recognize his second degree identity theft and forgery convictions as the same criminal 

conduct. The sentencing court ordered Butler to pay $1,550 in LFOs. Butler did not object to 

the imposition of LFOs.

ADDITIONAL ANALYSIS

I. “REASONABLE DOUBT” INSTRUCTION

Butler argues that the trial court’s reasonable doubt instruction infringed on his 

Fourteenth Amendment right to due process. We decline to consider this argument.
No. 46935-9-II

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Butler did not comply with CrR 6.15(c) by failing to timely object to the trial court’s 

instruction on the definition of reasonable doubt. CrR 6.15(c) requires timely and well-stated 

objections to jury instructions “‘in order that the trial court may have the opportunity to correct 

any error.’” State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988) (quoting Seattle v. 

Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976)). As previously mentioned, we will not 

review claims raised for the first time on appeal, unless the party claiming the error can show the 

presence of an exception to that rule, such as a manifest error affecting a constitutional right. 

RAP 2.5(a)(3); Robinson, 171 Wn.2d at 304; O’Hara, 167 Wn.2d at 97-98. Butler must show 

that the error is both manifest and that it implicates a specifically identified constitutional right. 

O’Hara, 167 Wn.2d at 98.

Butler does not identify a manifest error in the challenged instruction. Here, the 

instruction issued by the trial court followed the language of WPIC 4.01 exactly. In 2007, our 

Supreme Court directed that trial courts use WPIC 4.01 to instruct the jury on the burden of 

proof and the definition of reasonable doubt. State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 

1241 (2007). By providing the jury with WPIC 4.01, the trial court complied with our Supreme 

Court’s explicit directive.

Butler cannot show that following the Supreme Court’s directive was a manifest error 

implicating one of his specifically identified constitutional rights. Therefore, his challenge fails 

to fall within the very limited scope of RAP 2.5(a)(3) and, as such, we do not address the 

challenge for the first time on review.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Butler next argues his trial counsel rendered ineffective assistance by stipulating to an 

improper offender score. Butler argues that his identity theft and forgery offenses constituted the 
No. 46935-9-II

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same criminal conduct for sentencing purposes and should have together counted as one point. 

We disagree.

Because ineffective assistance of counsel claims present mixed questions of law and fact,

we review them de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To show 

ineffective assistance of counsel, a defendant must show that defense counsel’s conduct was 

deficient, and that the deficient performance resulted in prejudice. State v. Reichenbach, 153 

Wn.2d 126, 130, 101 P.3d 80 (2004); see also Strickland v. Washington, 466 U.S. 668, 687, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s performance is deficient if it falls below an 

objective standard of reasonableness. Reichenbach, 153 Wn.2d at 130. “The threshold for the 

deficient performance prong is high, given the deference afforded to [the] decisions of defense 

counsel in the course of representation.” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 

(2011).

Butler cannot prove his counsel performed deficiently because the court properly 

calculated his offender score. “Same criminal conduct” exists when “two or more crimes that 

require the same criminal intent, are committed at the same time and place, and involve the same 

victim.” RCW 9.94A.589(1)(a). All three elements must be satisfied to find two crimes to be 

the same criminal conduct. State v. Graciano, 176 Wn.2d 531, 540, 295 P.3d 219 (2013).

Here, Butler’s identity theft had one victim, Patricia Gann, because Butler used financial 

information of only Gann when he presented the checks. See State v. Fisher, 139 Wn. App. 578, 

584, 161 P.3d 1054 (2007) (identity theft is committed against each person whose identity has 

been stolen). In contrast, the forgery had two victims, Gann and Heritage Bank. See State v. 

Calvert, 79 Wn. App. 569, 580, 903 P.2d 1003 (1995) (both the account holder and the bank are 

victims of a forgery involving bad checks). Because these crimes had different victims, they did 
No. 46935-9-II

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not involve the same criminal conduct. State v. Webb, 112 Wn. App. 618, 624, 50 P.3d 654 

(2002). Therefore, counsel’s stipulation was reasonable and not deficient performance.

III. LEGAL FINANCIAL OBLIGATIONS

Butler argues that the sentencing court improperly imposed LFOs without considering his 

ability to pay. Butler did not challenge this finding during sentencing and, thus, he cannot do so 

as a matter of right for the first time on appeal. State v. Blazina, 174 Wn. App. 906, 911, 301 

P.3d 492 (2013), remanded, 182 Wn.2d 827 (2015). Our decision in Blazina, over a year before 

Butler’s November 2014 sentencing hearing, provided notice that the failure to object to LFOs 

imposed at sentencing waived the issue on appeal. 174 Wn. App. at 911. As our Supreme Court 

noted in reviewing our decision in Blazina, an appellate court may in its discretion decline to 

reach such unpreserved claims of error. Blazina, 182 Wn.2d at 830.

The record reflects that at the sentencing hearing, the State initially requested $2,300 in 

LFOs. After hearing from Butler that at the time of the crime he was employed as a licensed 

pharmacy technician, the sentencing court ultimately reduced the LFOs to $1,550. In light of the 

sentencing court’s colloquy and the subsequent reduction in LFOs, and because Butler had 

sufficient notice of his obligation to object to LFOs imposed at sentencing to preserve the issue 

for appeal, we exercise our discretion and decline to address Butler’s contention regarding his 

LFOs for the first time on appeal.

Because identity theft is not an alternative means crime, Butler failed to preserve his 

reasonable doubt jury instruction argument, Butler’s counsel was not ineffective, and Butler 

failed to preserve his LFO argument, we affirm his conviction and sentence.
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IV. APPELLATE COSTS

Butler filed a supplemental brief requesting that, if the State substantially prevails in this 

appeal, we decline to impose appellate costs on him because he claims he is indigent. The State 

did not respond. We exercise our discretion and decline to impose appellate costs.

Under former RCW 10.73.160(1) (1995), we have broad discretion whether to grant or 

deny appellate costs to the prevailing party. State v. Nolan, 141 Wn.2d 620, 626, 8 P.3d 300 

(2000); State v. Sinclair, 192 Wn. App. 380, 388, ___ P.3d ___ (2016). Ability to pay is an 

important factor in the exercise of that discretion, although it is not the only relevant factor. 

Sinclair, 192 Wn. App. at 389.

It appears from the limited trial court record that Butler does not have the present ability 

to pay appellate costs and it is questionable whether he will have the future ability to pay. The 

trial court found Butler indigent at trial, and counsel was appointed to represent Butler on appeal. 

The record does not support, nor does the State argue, that Butler’s indigent status is likely to 

change. RAP 15.2(f).

Under the specific circumstances of this case, we decline to impose appellate costs on 

Butler. 

Worswick, P.J.

We concur:

Johanson, J.

Lee, J.