State Of Washington, V David Palaukekala Makekau , 194 Wash. App. 407 ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
June 7, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46929-4-II
Respondent,
v. PUBLISHED OPINION
DAVID PALAUKEKALA MAKEKAU,
Appellant.
MAXA, J. – David Makekau appeals his conviction and sentence for possession of a stolen
motor vehicle. RCW 9A.56.068(1) states that a person is guilty of possessing a stolen vehicle if
the person “possess[es] . . . a stolen motor vehicle.” RCW 9A.56.140(1) defines possessing
stolen property, in part, as “knowingly to receive, retain, possess, conceal, or dispose of stolen
property.” The trial court’s to-convict jury instruction incorporated the definition of possession
and required the State to prove that Makekau “knowingly received, possessed, concealed, or
disposed of a stolen motor vehicle.” Clerk’s Papers (CP) at 86. Makekau argues that under the
law of the case doctrine the State assumed the burden of proving each of the alternative
definitions of possession included without objection in the to-convict instruction.
We hold that (1) the terms “receive, retain, possess, conceal, or dispose of” are
definitional and do not create alternative means of the crime of possession of a stolen vehicle,
which involves a single means – possessing a stolen vehicle; and (2) including the disjunctive
terms “received, possessed, concealed, or disposed of” in the to-convict instruction did not
No. 46929-4-II
transform them into alternative means of the crime because the disjunctive terms together define
the single means of possession. Therefore, the State was required to prove only that Makekau’s
conduct satisfied one of the disjunctive terms, and it is undisputed that the State presented
sufficient evidence that Makekau “possessed” the stolen motorcycle.
Makekau also argues, and the State concedes, that there is a scrivener’s error in the
judgment that the trial court should correct. Accordingly, we affirm Makekau’s conviction, but
remand to correct the scrivener’s error in the judgment and sentence.
FACTS
In August 2014, the owner of a yellow Suzuki motorcycle reported it as stolen. A few
days later, the owner saw someone riding his stolen motorcycle and called the police. Two
officers located and pursued the motorcycle, but the rider accelerated away before they could
apprehend him. Both officers believed that the person riding the motorcycle was Makekau. One
officer later talked with a person who said he had seen Makekau with a yellow Suzuki
motorcycle.
The State charged Makekau with possession of a stolen motor vehicle and attempting to
elude a pursuing police vehicle. At trial, the trial court’s to-convict jury instruction required the
jury to find beyond a reasonable doubt that Makekau “knowingly received, possessed, concealed,
or disposed of a stolen motor vehicle.” CP at 86. The State proposed the jury instruction and
Makekau did not object.
On October 14, 2014, the jury found Makekau guilty of possession of a stolen motor
vehicle and not guilty of attempting to elude a pursuing police vehicle. The trial court’s
judgment and sentence erroneously stated that the jury returned its verdict on October 13, 2014.
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Makekau appeals his conviction and requests correction of the scrivener’s error in the
judgment and sentence.
ANALYSIS
A. POSSESSION OF A STOLEN MOTOR VEHICLE AND ALTERNATIVE MEANS
The threshold issue in this case is whether possession of a stolen motor vehicle is a single
means crime or an alternative means crime. We hold that possession of a motor vehicle is a
single means crime.
1. Alternate Means Doctrine
An “alternative means” crime is one where the criminal conduct can be proved in
multiple ways. State v. Owens, 180 Wash. 2d 90, 96, 323 P.3d 1030 (2014). Such crimes generally
are identified by stating a single crime, followed by a statement of more than one means by
which the crime can be committed. State v. Smith, 159 Wash. 2d 778, 784, 154 P.3d 873 (2007).
The alternative means determination relates to jury unanimity required under article I,
section 21 of the Washington Constitution. Owens, 180 Wash. 2d at 95. For an alternative means
crime, a defendant is entitled to a unanimous jury determination as to the particular means by
which he or she committed the crime. Id. If there is no express statement of jury unanimity, the
State must present sufficient evidence to support each of the alternative means. Id. But if the
statute identifies a single means of committing a crime, unanimity is not required even if there
are different ways of establishing that means. See Smith, 159 Wash. 2d at 783.
Whether a statute provides an alternative means for committing a crime is left to judicial
determination. State v. Sandholm, 184 Wash. 2d 726, 732, 364 P.3d 87 (2015). There are three
guiding principles. First, the use of a disjunctive “or” in a list of methods of committing the
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crime does not necessarily mean that those methods are alternative means. Owens, 180 Wash. 2d at
96. For example, in Owens the Supreme Court held that seven terms stated in the disjunctive
together constituted a single means rather than seven alternative means for trafficking in stolen
property. Id. at 98.
Second, a statutory definition of an element of a crime generally does not create
alternative means for that crime. Id. at 96. The Supreme Court repeatedly has “rejected the
notion that multiple definitions of statutory terms necessarily create either new elements or
alternate means of committing a crime.” State v. France, 180 Wash. 2d 809, 818, 329 P.3d 864
(2014); see also Smith, 159 Wash. 2d at 790 (concluding that the common law definitions of
assault, when submitted as a separate jury instruction, do not constitute alternative means of
committing second degree assault). A jury need not be unanimous as to the definitions of a
single means of committing a crime. See State v. Linehan, 147 Wash. 2d 638, 649-50, 56 P.3d 542
(2002).
Third, the alternative means analysis focuses on whether the statute describes the crime in
terms of distinct acts or closely related acts that are aspects of one type of conduct. Sandholm,
184 Wash. 2d at 734.
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 other words, “less weight is placed on the use of the disjunctive ‘or’ and more weight on
the distinctiveness of the criminal conduct.” Id. at 735.
In Owens, the Supreme Court addressed RCW 9A.82.050(1), which prohibits trafficking
in stolen property. 180 Wash. 2d at 92. The statute provided that a person is guilty of trafficking if
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he or she “ ‘knowingly initiates, organizes, plans, finances, directs, manages, or supervises the
theft of property for sale to others.’ ” Id. at 96 (quoting RCW 9A.82.050(1)). The court held
that this group of terms together identified a single category of criminal conduct – facilitating or
participating in the theft of stolen property. Id. at 98-99. One basis for the court’s conclusion
was that the act of trafficking necessarily would involve several of the listed terms.
The State points out that the words listed in the first clause of RCW 9A.82.050 do
not address distinct acts because of how closely related those terms are. 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.
Id. at 99.
2. Possession of a Stolen Vehicle Statutes
RCW 9A.56.068(1) states that a person is guilty of possessing a stolen vehicle if the
person “possess[es] . . . a stolen motor vehicle.” And RCW 9A.56.140(1) defines what it means
to “possess” stolen property:
“Possessing stolen property” means knowingly to receive, retain, possess,
conceal, or dispose of stolen property knowing that it has been stolen and to
withhold or appropriate the same to the use of any person other than the true
owner or person entitled thereto.
The question here is whether these statutes provide for a single means of committing the crime –
possessing a stolen vehicle; or five alternative means of committing the crime – receiving,
retaining, possessing, concealing, or disposing of a stolen vehicle.
We hold that possession of a stolen vehicle is a single means crime for three reasons.
First, RCW 9A.56.068(1) defines only a single element of the crime – possessing a stolen motor
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vehicle. This statute clearly does not suggest that there may be alternate means of committing
the crime.
Second, this court has noted that RCW 9A.56.068(1) must be read in conjunction with
RCW 9A.56.140(1). State v. Satterthwaite, 186 Wash. App. 359, 364, 344 P.3d 738 (2015). But
the only purpose of RCW 9A.56.140(1) is definitional – to provide a better understanding of the
single element stated in 9A.56.068(1). Definitional statutes do not create alternative means of a
crime. Owens, 180 Wash. 2d at 96.
Third, the five terms in RCW 9A.56.140(1) are so closely related that they do not
describe distinct acts apart from actually possessing the stolen vehicle, but are “merely facets of
the same criminal conduct.” Sandholm, 184 Wash. 2d at 734. For example, it would be hard to
imagine a situation where a person receives, retains, conceals, or disposes of a stolen vehicle
without also possessing it at some time. See Owens, 180 Wash. 2d at 99.
Division One of this court addressed this issue in State v. Hayes, 164 Wash. App. 459, 480,
262 P.3d 538 (2011). The court held that the reference in RCW 9A.56.140(1) to “receive, retain,
possess, conceal, or dispose of stolen property” is definitional and does not create alternative
means of a crime. Id. at 477. We agree with Hayes on this issue.
We hold that the definition of possession under RCW 9A.56.140(1) does not create
alternative means of proving possession of a stolen motor vehicle, and therefore that possessing a
stolen motor vehicle is a single means crime.
B. INCLUDING DEFINITIONAL TERMS IN TO-CONVICT INSTRUCTION
Instead of requiring the State to prove that Makekau possessed a stolen motor vehicle, the
trial court’s to-convict jury instruction required the State to prove that Makekau “knowingly
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received, possessed, concealed, or disposed of” a stolen motor vehicle.1 CP at 86. Makekau
argues that even if possession of a stolen motor vehicle is not an alternative means crime, under
the law of the case doctrine the definitional terms in RCW 9A.56.140(1) become alternative
means when listed without objection in the to-convict instruction. We disagree.
1. Law of the Case Doctrine
Constitutional due process requires the State to prove every element of the crime beyond
a reasonable doubt. France, 180 Wash. 2d at 814. However, the law of the case doctrine provides
that jury instructions not objected to become the law of the case. Id. Therefore, if the trial court
gives a to-convict jury instruction that erroneously includes an additional element of a crime that
is not required under the law and the State does not object, the State must prove that additional
element. Id. at 815; see also State v. Hickman, 135 Wash. 2d 97, 102, 954 P.2d 900 (1998). And
on appeal, the defendant can make a sufficiency of the evidence challenge based on the added
element. Hickman, 135 Wash. 2d at 102.2
For example, in Hickman the to-convict instruction required the State to prove the two
elements of insurance fraud and a third, unnecessary element – the venue of the crime. Id. at
101. The Supreme Court held that under the law of the case doctrine, venue became a third
element that the State had to prove. Id. at 102.
1
The to-convict instruction here omitted the fifth term in RCW 9A.56.140(1), “retain[ed].”
2
In Musacchio v. United States, the United States Supreme Court adopted a contrary rule,
holding that “when a jury instruction sets forth all the elements of the charged crime but
incorrectly adds one more element, a sufficiency challenge should be assessed against the
elements of the charges crime, not against the erroneously heightened command in the jury
instruction.” ___ U.S ___, 136 S. Ct. 709, 715, 193 L. Ed. 2d 639 (2016). Because our Supreme
Court has not addressed whether to adopt the holding in Musacchio and the State does not ask us
to apply that case, we apply existing Washington law.
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As discussed above, the only element of possession of a stolen motor vehicle is
possessing a stolen motor vehicle. The question here is whether including the definitional terms
“received, possessed, concealed, or disposed of” in the to-convict instruction added three
unnecessary elements along with possession that the State was required to prove, or whether the
four terms together should be treated as defining the single statutory element.
2. Lillard and Hayes
Division One of this court addressed this issue in two cases: State v. Lillard, 122 Wn.
App. 422, 93 P.3d 969 (2004) and Hayes, 164 Wash. App. 459. Both cases held that including the
definitional terms “received, retained, possessed, concealed, or disposed of” in the to-convict
instruction for crimes involving possession of stolen property required the State to prove all five
alternatives. Hayes, 164 Wash. App. at 481; Lillard, 122 Wash. App. at 434-35.
In Lillard, the to-convict instructions for first degree possession of stolen property
required the State to prove that the defendant “ ‘knowingly received, retained, possessed,
concealed, or disposed of stolen property.’ ” 122 Wash. App. at 434 (quoting jury instruction).
The court cited to Hickman and stated without discussion that “[b]ecause the instruction
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.” 122 Wn.
App. at 434-35. However, the court did not address whether the five definitional terms together
could be treated as defining a single means rather than as alternative means.
In Hayes, the to-convict instructions for first degree possession of a stolen motor vehicle
required the State to prove that the defendant or an accomplice “ ‘knowingly received, retained,
possessed, concealed, or disposed of, a stolen motor vehicle.’ ” 164 Wash. App. at 480 (quoting
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jury instruction). Initially, the court noted that Lillard held that where the trial court includes
“knowingly received, retained, possessed, concealed, or disposed of” stolen property in the to-
convict instruction, “these terms will be treated as alternative means the State must prove.”
Hayes, 164 Wash. App. at 478-79. However, the court then stated:
Lillard summarily applied Hickman to hold, in response to an issue raised in a pro
se supplemental brief, that the definitional terms in RCW 9A.56.140(1) were
transformed into alternative means when inadvertently included in a to-convict
instruction. This is not a holding we are inclined to expand.
Hayes, 164 Wash. App. at 479 n.5.
The defendant in Hayes argued that as in Lillard, all five definitional terms became
alternative means for which the State assumed the burden of proving by substantial evidence. Id.
at 481. Significantly, the State did not challenge this argument, and therefore the court accepted
it. Id. The court treated the definitional terms of possession “as alternative means, not because
they necessarily are alternative means, but because they were listed in the to-convict instructions
for the two counts of possession of a stolen vehicle and under Lillard the State was obligated to
support them with substantial evidence.” Id.
As in Lillard, the court in Hayes did not address whether the five definitional terms
together could be treated as defining a single means rather than as alternative means. Despite its
footnote suggesting that the application of Lillard should be limited, the court provided no
analysis of this issue – presumably because the State did not challenge the defendant’s position.
3. Lindsey and Owens
Two more recent cases involving a different crime call into question the assumption in
Lillard and Hayes that inclusion of definitional terms in a to-convict instruction necessarily
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converts a single means crime into an alternative means crime: State v. Lindsey, 177 Wash. App.
233, 311 P.3d 61 (2013), review denied, 180 Wash. 2d 1022 (2014) and Owens, 180 Wash. 2d at 96.
In Lindsey, this court addressed the alternative means issue for trafficking in stolen
property under RCW 9A.82.050(1). 177 Wash. App. at 238-44. RCW 9A.82.050(1) states 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 first
degree trafficking in stolen property. The defendant in Lindsey argued that this language
identified eight alternative means for committing the crime. 177 Wash. App. at 240. This court
held that the first seven terms together constituted one means and trafficking constituted a second
means. Id. at 241-42. We emphasized that the seven terms defined a single category of criminal
conduct – facilitating or participating in the theft of property for sale – and that definitional
statutes do not create multiple alternative means. Id.
Significant here is the fact that the to-convict instruction in Lindsey listed all seven of the
terms from RCW 9A.82.050(1). We did not suggest that including these terms in the to-convict
instruction created seven alternative means.3 Instead, because the seven terms together
constituted a single alternative means, we required only that the State prove one of the seven
disjunctive terms in order to sustain the conviction. Id. at 248.
In Owens, the Supreme Court also addressed trafficking in stolen property under RCW
9A.82.050(1). 180 Wash. 2d at 96. The court adopted the reasoning in Lindsey and also concluded
that the first seven terms in the statute together constituted a single alternative means of
3
It does not appear that the defendant in Lindsey argued that including the seven terms in the to-
convict instruction created seven alternative means and that under the law of the case doctrine
the State was required to prove all seven means.
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committing the crime. Id. at 97-98. As in Lindsey, all seven terms were included in the to-
convict instruction. Id. at 101 n.6. However, the court did not require the State to prove all
seven terms in order to defeat a sufficiency of the evidence challenge.4 Id. at 100-01.
4. Analysis
We hold that the to-convict instruction here did not state alternative means of committing
the crime of possession of a stolen vehicle for five interrelated reasons. First, Lillard and Hayes
are not persuasive 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. The courts in both cases basically assumed that including the definitional terms in the to-
convict instruction created alternative means. Therefore, we do not follow the holdings in those
cases.
Second, as discussed above, the terms “received, possessed, concealed, or disposed of”
are definitional and do not create alternative means of the crime of possession of a stolen vehicle.
If these terms merely define different aspects of “possession” and do not represent alternative
means, it is unclear why including them in the to-convict instruction would transform them into
alternative means.
Third, the Supreme Court in Smith 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. 159 Wash. 2d at 785; see also France, 180 Wash. 2d at 818-19. If
4
Again, it does not appear that the defendant in Owens argued that including the seven terms in
the to-convict instruction created seven alternative means and that under the law of the case
doctrine the State was required to prove all seven means.
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No. 46929-4-II
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.
Fourth, Owens and Lindsey make it clear that several terms listed disjunctively together
can define a single means, and that if several terms represent one means the State is required to
prove only one of the terms in order to sustain a conviction. Owens, 180 Wash. 2d at 98-99, 100-
101; Lindsey, 177 Wash. App. at 241-42, 248. Under this approach, the terms “received,
possessed, concealed, or disposed of” can be treated as aspects of a single means – possession.
Therefore, including those terms in the to-convict instruction identifies only one means, not four.
Fifth, although Owens and Lindsey did not address the specific issue here, the courts in
those cases gave no indication that including a list of disjunctive terms that did not constitute
alternative means in the to-convict instruction transformed those terms into alternative means.
We hold that because the terms “received, possessed, concealed, or disposed of” are
definitional and do not create alternative means of the crime of possession of a stolen vehicle,
including the terms in the to-convict instruction did not transform them into alternative means of
the crime. Instead, they are closely related aspects of a single means, possession of a stolen
vehicle. As a result, the State was required to prove only that Makekau’s conduct satisfied one
of the disjunctive terms – received or possessed or concealed or disposed of the stolen vehicle.
C. SUFFICIENCY OF EVIDENCE
Because the to-convict instruction for possession of a stolen motor vehicle states only a
single means and requires the State to prove only one of the four definitional terms, there is no
dispute that the State presented sufficient evidence to support the conviction. The two officers
and a third person all testified that Makekau “possessed” the motorcycle, one of the four terms in
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the to-convict instruction. Makekau does not attempt to argue otherwise. Therefore, we affirm
Makekau’s conviction.
D. SCRIVENER’S ERROR
Makekau argues, and the State concedes, that his judgment and sentence misstates the
date of the jury’s verdict. Makekau’s judgement and sentence states that the jury returned its
verdict on October 13, 2014 but the jury actually returned its verdict on October 14, 2014.
The State concedes that this case should be remanded to correct the scrivener’s error.
Therefore, we remand this case to the trial court to correct the scrivener’s error in the judgment
and sentence.
CONCLUSION
We affirm Makekau’s conviction, but we remand to the trial court to correct the
scrivener’s error.
MAXA, A.C.J.
We concur:
MELNICK, J.
SUTTON, J.
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