FILED
MAY 23,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 29545-1-111 ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION TIMOTHY LUCIOUS, ) ) Appellant. )
KORSMO, C.J. - Timothy Lucious appeals his convictions for drive-by shooting
and six counts of second degree assault while armed with a firearm, arguing that the
evidence did not support both alternative theories of assault in each count. We disagree
with his arguments and affirm the convictions and his persistent offender sentence.
FACTS
This case involves the shooting of a group of women in a car on Spokane's lower
South Hill. Mr. Lucious and another man, identified as "Mike Mike"l by one of the
victims, approached a car containing the women from different sides. Mr. Lucious fired
1 He was identified as Michael Gardner. No. 29545-1-III State v. Lucious
at least five shots into the car, seriously wounding two of the occupants. A third
occupant was knocked unconscious by Michael Gardner; the other three women did not
receive any physical injuries.
Alternative charges of attempted first degree murder and first degree assault were
filed for each of the six women. The case proceeded to jury trial. The court also
instructed the jury on the lesser degree offense of second degree assault for each of the
first degree assaults. The jury ultimately found the defendant guilty of drive-by shooting
and six counts of second degree assault. 2 The jury also unanimously concluded that Mr.
Lucious was armed with a firearm on each of the assault charges.
After finding that Mr. Lucious had previously been convicted of second degree
assault and riot while armed with a deadly weapon, the court sentenced him to life in
prison as a persistent offender. 3 He then timely appealed to this court.
ANALYSIS
Mr. Lucious argues that four of the assault convictions should be overturned due
to insufficient evidence supporting one of the alternative means of committing the
offense, the jury's special verdict instructions erroneously required unanimity, and the
2 The jury apparently could not agree on the greater charges and left all of those verdict forms blank. 3 Those offenses were among Mr. Lucious' s 10 prior adult felony convictions.
No. 29545-1-II1 State v. Lucious
persistent offender sentencing statute runs afoul of Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We will address those three contentions in
that order.
Sufficiency ofAlternative Means
The jury was instructed upon two different theories of second degree assault: the
victims were assaulted with a deadly weapon or they were intentionally assaulted and had
substantial bodily harm inflicted upon them. Clerk's Papers (CP) at 100-05. Since four
of the assault victims were not struck by any bullets, Mr. Lucious argues that the
evidence did not support instruction on the substantial bodily harm theory of assault. 4
Noting that a third victim was knocked unconscious by Mr. Gardner, the State contends
that there are only three counts subject to the instructional error, but argues that the error
was harmless in light of the special verdicts.
When a jury is instructed on alternate means of committing a crime, the jury is not
required to be unanimous on which alternative was established if each alternate means
was supported by substantial evidence. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d
105 (1988). However, ifone of the means is not supported by substantial evidence, the
verdict must be overturned unless this court "can determine that the verdict was founded
Appellant agrees that the evidence supported the deadly weapon alternative.
4 Brief of Appellant at 7.
No. 29545-1-III State v. Lucious
upon one of the methods with regard to which substantial evidence was introduced."
State v. Bland, 71 Wn. App. 345, 354, 860 P.2d 1046 (1993).
The State argues, in the spirit of Bland, that the jury's unanimous finding that each
of the assaults was committed with a firearm satisfies any concerns about jury unanimity.
We agree. To return the special verdict, each juror was required to agree that a firearm
was used in the commission of the offense. CP at 114. The gun was the sole deadly
weapon used in the assault. By unanimously agreeing that Mr. Lucious was armed with a
firearm when the assaults were committed, the jury also had to unanimously agree that
each victim was assaulted with a deadly weapon.
Thus, we are convinced that the jury could have convicted Mr. Lucious on the
challenged counts only under the deadly weapon theory that was supported by substantial
evidence. The error in instructing on the substantial bodily harm alternative was
harmless in light of the special verdicts.
Special Verdict Form
Mr. Lucious next reprises an argument that the special verdict form erroneously
required the jury to act unanimously. This argument has been repeatedly rejected on
several different grounds.
Where, as here, the defendant did not object to the special verdict form, this court
has concluded that the issue cannot be presented initially on appeal because it does not
implicate a constitutional concern subject to review under RAP 2.5(a). State v. Guzman
Nunez, 160 Wn. App. 150, 159,162-63,248 P.3d 103 (2011), aff'd in part, 174 Wn.2d
707,285 P.3d 21 (2012).
More fundamentally, the Washington Supreme Court has concluded that the
special verdict form is not erroneous and has overruled the authority on which Mr.
Lucious's argument is based. See Guzman Nunez, 174 Wn.2d at 718-19 (overruling State
v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003) and partially overruling State v.
Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010)). The verdict forms used in this case were
correct.
The trial court did not err in using the special verdict forms.
Persistent Offender Sentencing
Finally, Mr. Lucious argues that the trial court erroneously sentenced him to
prison as a persistent offender. He contends that his prior convictions needed to be
proved to a jury rather than the trial judge. Both the United States Supreme Court and the
Washington Supreme Court have rejected this contention.
"Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.
2348, 147 L. Ed. 2d 435 (2000). Blakely maintained the Apprendi exception when it
No. 29545-I-III State v. Lucious
determined that most Washington aggravating factors must be submitted to a jury.
Blakely, 542 U.S. at 301. The Washington Supreme Court recognizes that this exception
confirms that prior felony convictions used to support a persistent offender sentence do
not need to be proved to ajury beyond a reasonable doubt. State v. Wheeler, 145 Wn.2d
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FILED
MAY 23,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 29545-1-111 ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION TIMOTHY LUCIOUS, ) ) Appellant. )
KORSMO, C.J. - Timothy Lucious appeals his convictions for drive-by shooting
and six counts of second degree assault while armed with a firearm, arguing that the
evidence did not support both alternative theories of assault in each count. We disagree
with his arguments and affirm the convictions and his persistent offender sentence.
FACTS
This case involves the shooting of a group of women in a car on Spokane's lower
South Hill. Mr. Lucious and another man, identified as "Mike Mike"l by one of the
victims, approached a car containing the women from different sides. Mr. Lucious fired
1 He was identified as Michael Gardner. No. 29545-1-III State v. Lucious
at least five shots into the car, seriously wounding two of the occupants. A third
occupant was knocked unconscious by Michael Gardner; the other three women did not
receive any physical injuries.
Alternative charges of attempted first degree murder and first degree assault were
filed for each of the six women. The case proceeded to jury trial. The court also
instructed the jury on the lesser degree offense of second degree assault for each of the
first degree assaults. The jury ultimately found the defendant guilty of drive-by shooting
and six counts of second degree assault. 2 The jury also unanimously concluded that Mr.
Lucious was armed with a firearm on each of the assault charges.
After finding that Mr. Lucious had previously been convicted of second degree
assault and riot while armed with a deadly weapon, the court sentenced him to life in
prison as a persistent offender. 3 He then timely appealed to this court.
ANALYSIS
Mr. Lucious argues that four of the assault convictions should be overturned due
to insufficient evidence supporting one of the alternative means of committing the
offense, the jury's special verdict instructions erroneously required unanimity, and the
2 The jury apparently could not agree on the greater charges and left all of those verdict forms blank. 3 Those offenses were among Mr. Lucious' s 10 prior adult felony convictions.
No. 29545-1-II1 State v. Lucious
persistent offender sentencing statute runs afoul of Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We will address those three contentions in
that order.
Sufficiency ofAlternative Means
The jury was instructed upon two different theories of second degree assault: the
victims were assaulted with a deadly weapon or they were intentionally assaulted and had
substantial bodily harm inflicted upon them. Clerk's Papers (CP) at 100-05. Since four
of the assault victims were not struck by any bullets, Mr. Lucious argues that the
evidence did not support instruction on the substantial bodily harm theory of assault. 4
Noting that a third victim was knocked unconscious by Mr. Gardner, the State contends
that there are only three counts subject to the instructional error, but argues that the error
was harmless in light of the special verdicts.
When a jury is instructed on alternate means of committing a crime, the jury is not
required to be unanimous on which alternative was established if each alternate means
was supported by substantial evidence. State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d
105 (1988). However, ifone of the means is not supported by substantial evidence, the
verdict must be overturned unless this court "can determine that the verdict was founded
Appellant agrees that the evidence supported the deadly weapon alternative.
4 Brief of Appellant at 7.
No. 29545-1-III State v. Lucious
upon one of the methods with regard to which substantial evidence was introduced."
State v. Bland, 71 Wn. App. 345, 354, 860 P.2d 1046 (1993).
The State argues, in the spirit of Bland, that the jury's unanimous finding that each
of the assaults was committed with a firearm satisfies any concerns about jury unanimity.
We agree. To return the special verdict, each juror was required to agree that a firearm
was used in the commission of the offense. CP at 114. The gun was the sole deadly
weapon used in the assault. By unanimously agreeing that Mr. Lucious was armed with a
firearm when the assaults were committed, the jury also had to unanimously agree that
each victim was assaulted with a deadly weapon.
Thus, we are convinced that the jury could have convicted Mr. Lucious on the
challenged counts only under the deadly weapon theory that was supported by substantial
evidence. The error in instructing on the substantial bodily harm alternative was
harmless in light of the special verdicts.
Special Verdict Form
Mr. Lucious next reprises an argument that the special verdict form erroneously
required the jury to act unanimously. This argument has been repeatedly rejected on
several different grounds.
Where, as here, the defendant did not object to the special verdict form, this court
has concluded that the issue cannot be presented initially on appeal because it does not
implicate a constitutional concern subject to review under RAP 2.5(a). State v. Guzman
Nunez, 160 Wn. App. 150, 159,162-63,248 P.3d 103 (2011), aff'd in part, 174 Wn.2d
707,285 P.3d 21 (2012).
More fundamentally, the Washington Supreme Court has concluded that the
special verdict form is not erroneous and has overruled the authority on which Mr.
Lucious's argument is based. See Guzman Nunez, 174 Wn.2d at 718-19 (overruling State
v. Goldberg, 149 Wn.2d 888, 72 P.3d 1083 (2003) and partially overruling State v.
Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010)). The verdict forms used in this case were
correct.
The trial court did not err in using the special verdict forms.
Persistent Offender Sentencing
Finally, Mr. Lucious argues that the trial court erroneously sentenced him to
prison as a persistent offender. He contends that his prior convictions needed to be
proved to a jury rather than the trial judge. Both the United States Supreme Court and the
Washington Supreme Court have rejected this contention.
"Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.
2348, 147 L. Ed. 2d 435 (2000). Blakely maintained the Apprendi exception when it
No. 29545-I-III State v. Lucious
determined that most Washington aggravating factors must be submitted to a jury.
Blakely, 542 U.S. at 301. The Washington Supreme Court recognizes that this exception
confirms that prior felony convictions used to support a persistent offender sentence do
not need to be proved to ajury beyond a reasonable doubt. State v. Wheeler, 145 Wn.2d
116, 121,34 PJd 799 (2001). It earlier had also reached the same result under our state
constitution. State v. Thorne, 129 Wn.2d 736,782-83,921 P.2d 514 (1996).
Recognizing this contrary authority, Mr. Lucious suggests that a majority of the
United States Supreme Court is poised to change its minds about this exception. While
appellate courts sometimes may try to adjudge undecided issues on the basis of an
anticipated future ruling, they are not free to ignore existing law on the theory that it may
change some day. Instead, we must follow existing authority until the Washington
Supreme Court changes it. E.g., State v. Gore, 101 Wn.2d 481,487,681 P.2d 227
(1984).
In light of the controlling authority, this court lacks the ability to grant the relief
Mr. Luscious requests.
Statement ofAdditional Grounds
Mr. Lucious also filed a statement of additional grounds, the bulk of which alleges
failings by trial counsel, although he also attacks the judge and the prosecutor. We have
reviewed the arguments, but decline to consider most of them as many involve 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).
One argument that can be addressed on this record is the sufficiency of the
evidence to support the drive-by shooting conviction. RCW 9A.36.045(1) defines the
offense in terms of discharging a firearm "in a manner which creates a substantial risk of
death or serious physical injury" from a motor vehicle or "the immediate area of a motor
vehicle that was used to transport the shooter or the firearm, or both, to the scene of the
discharge." Here, a witness described Mr. Luscious shooting at the victim's car and then
promptly getting into a red Cadillac and departing the scene. That testimony amply
supported this conviction.
The convictions are 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.
Korsmo, C.J.
WE CONCUR:
Brown,'.