Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 65847-6-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            ) 
TERR ELLIS MacMILLAN,                       )       UNPUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED: February 27, 2012

       Spearman, J.  --  Terr MacMillan was convicted of assault in the second 

degree with a deadly weapon enhancement. On appeal, he claims the trial court 

(1) gave a flawed unanimity instruction for the deadly weapon special verdict 

and (2) lacked authority to impose alcohol-related community custody 
conditions.1 He also asserts several claims in a statement of additional grounds 

(SAG). We hold that the unanimity instruction was prejudicial error under State 

v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010) and that the trial court lacked 

authority to impose two of the alcohol-related conditions. We conclude that his 

SAG claims lack merit. We reverse in part, affirm in part, and remand for further 

proceedings.

                                        FACTS

1 MacMillan also claims defense counsel was ineffective for failing to object to the illegal 
conditions, but we do not address this claim because we directly address the validity of the 
conditions. 

No. 65847-6-I/2

       Terr MacMillan and Tracie Elliott began dating in the fall of 2009. They

lived together until March 2010, when Elliott was convicted of possession of
stolen property and sentenced to confinement.2 MacMillan agreed to store 

Elliott's property while she was incarcerated. Sometime before Elliot's release 

from confinement, their relationship ended. After Elliott's release in April 2010, 

she found out MacMillan was storing her property at the residence of Max and 

Marie Shelman, the elderly parents of MacMillan's friend Sherry Grard. Elliott 

contacted the Shelmans, who confirmed MacMillan was storing items on their 

property. 

       Elliott and Brandon Gasho, the teenage son of a friend, went to the 

Shelman residence on April 29. Elliott towed away a utility trailer containing her 

belongings, although she knew the trailer belonged to MacMillan. Elliott and 

Gasho returned the next day in Elliott's sport utility vehicle (SUV). They

unlocked a storage container on the Shelman property, and Elliott walked back 

to the SUV to position it for easier loading. She saw MacMillan drive up quickly.

Elliott got into her SUV and locked the doors. MacMillan parked next to the SUV

and ran to the SUV's passenger door. He tried to open the door but could not, so 

he returned to his car and took a sword out of the back seat. He swung the 

sword once at the passenger-side window of the SUV, shattering it. As Elliott 

tried to exit through the driver's side, MacMillan dove through the shattered 

window, grabbed Elliott's keys, and struck her in the head with his hand. Elliott

2 Evidence of Elliott's convictions for possession of stolen property and theft was admitted at 
trial. 

                                           2 

No. 65847-6-I/3

got out of the car and began running. MacMillan ran after her and struck her on 

the hip with the flat side of the sword. When Elliott fell, MacMillan struck her left 

thigh in the same manner. He yelled that he was going to kill her and that "I 

should have taken care of you on Alger Mountain that day." MacMillan moved

toward the storage container and Elliott moved toward Mr. Shelman, who was 

nearby on his tractor. MacMillan then ran after Elliott, grabbed her by the arm, 

and pulled her in the direction of the storage container. Elliott sought help from 

Mr. Shelman, who told MacMillan to let her go or he would find himself in jail. 

MacMillan let her go and Elliott headed toward the Shelmans' house. She

testified that she looked back and saw MacMillan standing near the cars holding 

her purse and the sword. Gasho saw MacMillan walk past the cars and then 

disappear into the nearby woods on foot. By this time, Gasho had called 911. He 

saw that Elliott was limping and had bruises on her leg.

       Shortly after these events, Ms. Shelman was inside her house when she 

answered a phone call from MacMillan. Ms. Shelman testified that MacMillan 

asked her to go out and tell Elliott that she would have to change her story. She 

testified that he was "very polite." Ms. Shelman told MacMillan she did not want 

to get involved and declined to pass along the message. Ms. Shelman also 

recalled tripping over a purse, which she thought was Elliott's, inside her home.

She testified that Elliott was outside where the police were during this phone 

call. Elliott, on the other hand, testified that she was present when Ms. Shelman 

was talking on the phone with MacMillan and that she recognized MacMillan's 

                                           3 

No. 65847-6-I/4

voice because he was yelling. 

       The police arrived and searched the Shelman property and the adjoining 

woods. They did not find Elliott's purse or keys, or a sword. They found a sword 

sheath inside the car that MacMillan had driven. Police spoke with Elliott and 

observed that she was crying, breathing heavily, appeared to be in pain, and

was favoring one leg. They also took photographs of bruising on Elliott's left 

thigh.

       By amended information, the State charged MacMillan with robbery in the 

first degree, assault in the second degree, felony harassment, and tampering 

with a witness. All of the charges were designated domestic violence. 

Additionally, the State alleged MacMillan committed the robbery and assault 

while armed with a deadly weapon.

       At trial, MacMillan testified that he was acting to defend his property from 

Elliott. He gave Elliott the keys to the storage container to get her property but

wanted to be there when she did, so she would take only what was hers. He was 

called by Ms. Shelman after Elliott's visit on April 29 and was informed that Elliott 

had taken his trailer. The trailer was full of his tools but contained nothing 

belonging to Elliott. All of her belongings were in the storage container. He 

testified that Ms. Shelman called him again on April 30 and said Elliott was back. 

He hurried to the Shelmans' to prevent Elliott from taking the remainder of his 

belongings and to find out where she had taken the trailer. He also wanted his 

keys back. The car he was driving belonged to Grard. He denied knowing that a

                                           4 

No. 65847-6-I/5

sword sheath was in the car but noted that Grard "has lots of oriental stuff."

       MacMillan testified that when he arrived, he walked up to Elliott and 

asked what she was doing and where his stuff was, but she tried to start up her 

car and "was going to leave, run me over." He saw that the storage container 

was open and his belongings were on the ground. He then grabbed a stick and 

broke Elliott's window. He swatted Elliott with the stick and she told him she had 

sold his trailer and his property was gone. He heard someone say the sheriff 

was coming and he fled because he had a misdemeanor warrant. MacMillan 

denied striking Elliott with a pipe or sword, hitting her in the face, taking her 

purse or keys, or threatening to kill her. He testified that when he spoke with Ms.

Shelman on the phone, he wanted to tell Elliott to tell the truth. MacMillan

acknowledged past convictions for theft and possession of stolen property. 

       The court gave the following special verdict instruction asking the jury to 

determine whether MacMillan was armed with a deadly weapon during the 

alleged robbery and assault:

       You will also be given special verdict forms.  If you find the 
       defendant not guilty of these crimes do not use the special verdict 
       forms. If you find the defendant guilty of these crimes, you will then 
       use the special verdict forms and fill in the blank with the answer 
       "yes" or "no" according to the decision you reach. Because this is a
       criminal case, all twelve of you must agree in order to answer the 
       special verdict forms. In order to answer the special verdict forms
       "yes," you must unanimously be satisfied beyond a reasonable 
       doubt that "yes" is the correct answer. If you unanimously have a 
       reasonable doubt as to this question, you must answer "no."

For the general verdict, the jury was instructed on assault in the second degree 

                                           5 

No. 65847-6-I/6

by use of a deadly weapon. The jury was given separate instructions defining 

"deadly weapon" differently for purposes of the general verdict and the special 

verdict. 

       The jury found MacMillan guilty of assault in the second degree and 

tampering with a witness, acquitted him of robbery, and could not reach 
agreement on the harassment charge.3 The jury answered "yes" to the special 

verdict form asking if MacMillan was armed with a deadly weapon while 

committing the assault and found that Elliott and MacMillan were "members of 

the same family or household" for the domestic violence designation. 

       At sentencing, the trial court opined that the jury appeared to have given 

"short shrift" to MacMillan's defense of property claim. It imposed a low-end 

standard range sentence of 75 months of confinement, which included a 12-

month deadly-weapon enhancement on the assault count. The court also noted 

that MacMillan's criminal history included a prior conviction for possession of a 

controlled substance and was consistent with that of a person with a substance-

abuse problem. MacMillan did not object when the court stated that he would be 

required to undergo a substance-abuse evaluation and follow-up treatment. 

Additionally, one of the conditions of community custody stated, "Do not possess 

or consume alcohol and do not frequent establishments where alcohol is the 

chief commodity for sale."

                                    DISCUSSION

3 The court ultimately dismissed the harassment charge with prejudice.

                                           6 

No. 65847-6-I/7

       MacMillan claims on appeal that the trial court (1) gave a flawed 

unanimity instruction for the deadly weapon special verdict and (2) lacked 

authority to impose alcohol-related community custody conditions. He also 

makes several claims in a SAG. We address his claims in turn.

                              Special Verdict Instruction

       MacMillan contends the special verdict instruction was error under State 

v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010). We review de novo whether a 

jury instruction correctly states the relevant law. State v. Linehan, 147 Wn.2d 

638, 643, 56 P.3d 542 (2002).

       Citing conflicting opinions from this court, the parties disagree as to 

whether MacMillan may raise this issue for the first time on appeal as one 

involving an error of constitutional magnitude. The State relies on State v. 

Nunez, 160 Wn. App. 150, 248 P.3d 103, rev. granted, 172 Wn.2d 1004, 258 

P.3d 676 (2011) in which Division III held that a jury instruction requiring 

unanimity on a school zone enhancement was not manifest constitutional error 

that could be raised for the first time on appeal. MacMillan relies on State v. 

Ryan, 160 Wn. App. 944, 252 P.3d 895, rev. granted, 172 Wn.2d 1004, 258 

P.3d 676 (2011), in which this Division disagreed with Nunez based on our 
understanding of Bashaw.4 We find the reasoning of Ryan persuasive and will 

review MacMillan's claim for the first time on appeal.

4 The Washington Supreme Court has accepted review in Nunez and Ryan on the issue of 
whether a criminal defendant may first challenge on appeal a unanimity instruction that is 
erroneous under Bashaw.

                                           7 

No. 65847-6-I/8

       The next issue is whether the jury instruction was erroneous. There is no 

dispute that it was. The State concedes the instruction was substantively 

identical to the erroneous Bashaw instruction, which told jurors they must agree 
on an answer to the special verdict.5 Bashaw, 169 Wn.2d at 146. 

       Finally we must determine whether the instructional error was prejudicial. 

To find the error harmless, we must conclude beyond a reasonable doubt that 

the verdict would have been the same absent the error. Bashaw, 169 Wn.2d at 

147 (citing State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)). The State 

contends any error was harmless beyond a reasonable doubt because the jury 

returned a general verdict finding that the assault was committed by means of a 

deadly weapon. We disagree. The Bashaw court, in response to the State's 

argument that any error was harmless because the trial court polled the jury and 

the jurors affirmed that their decision was unanimous, stated, "This argument 

misses the point. The error here was the procedure by which unanimity would be 

inappropriately achieved." Bashaw, 169 Wn.2d at 147. The court explained:

       The result of the flawed deliberative process tells us little about 
       what result the jury would have reached had it been given a correct 
       instruction.  Goldberg     is  illustrative. There, the jury initially 
       answered "no" to the special verdict, based on a lack of unanimity, 
       until told it must reach a unanimous verdict, at which point it
       answered  "yes."    Id. at 891-93, 72 P.3d 1083. Given           different 
       instructions, the jury returned different verdicts.       We    can only 
       speculate as to why this might be so. For instance, when unanimity 
       is required, jurors with reservations might not hold to their positions 

5 The Bashaw court explained, "Though unanimity is required to find the presence of a special 
finding increasing the maximum penalty, it is not required to find the absence of such a special 
finding." Bradshaw, 169 Wn.2d at 147 (citing State v. Goldberg, 149 Wn.2d 888, 893, 72 P.3d 
1083 (2003)).Therefore an instruction stating that unanimity was required for either determination 
was error. Id.

                                           8 

No. 65847-6-I/9

       or may not raise additional questions that would lead to a different
       result. We cannot say with any confidence what might                 have 
       occurred had the jury been properly instructed. We              therefore 
       cannot conclude beyond a reasonable doubt that                   the jury 
       instruction error was harmless.

Id. This observation about the flawed deliberative process applies here. In 

addition, even if we were to consider the State's point that the jury found 

MacMillan guilty of assault with a deadly weapon, the definitions of "deadly 

weapon" for the general verdict and the special verdict are not interchangeable. 

It is easier for an item to qualify as a deadly weapon under the general verdict

definition, which stated:

       Deadly weapon also [sic] means any weapon, device, instrument, 
       substance or article including a           vehicle, which under the 
       circumstances in which it is        used, attempted to be used, or 
       threatened to be used, is readily capable of causing death or 
       substantial bodily harm.

The definition of deadly weapon for the special verdict stated:

       A deadly weapon is an implement or instrument that has the 
       capacity to inflict death and from the manner in which it is used, is 
       likely to produce or may easily and readily produce death. The 
       following instruments are examples of deadly weapons: blackjack, 
       sling shot, billy, sand club, sandbag, metal knuckles, any dirk, 
       dagger, pistol, revolver or any other firearm, any knife having a 
       blade longer than three inches, any razor with an unguarded blade, 
       and any metal pipe or bar used or intended to be used as a club, 
       any explosive, and any weapon containing poisonous or injurious 
       gas. 

The general verdict definition encompasses not only a defendant's actual use of 

an instrument but also attempted or threatened use. It encompasses instruments 

that can produce substantial bodily harm. But the special verdict definition 

                                           9 

No. 65847-6-I/10

requires a showing that an instrument has the capacity to inflict death, and 

encompasses only actual use. Moreover, as MacMillan notes, there was
conflicting evidence about the implement he used to strike Elliott.6 We conclude 

the instructional error was not harmless beyond a reasonable doubt and, 
accordingly, reverse the sentencing enhancement.7

                           Community Custody Condition

       MacMillan contends there was no evidence that alcohol was involved in 

the offense, therefore the sentencing court erroneously imposed the alcohol-

related community custody conditions. A court may impose only a sentence that 

is authorized by statute. State v. Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 

(1999). Illegal or erroneous sentences may be challenged for the first time on 

appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008).

       MacMillan's claim involves the condition, "Do not possess or consume 

alcohol and do not frequent establishments where alcohol is the chief commodity 

for sale." The State argues that the sentencing court properly imposed a 

substance-abuse evaluation and treatment where MacMillan did not dispute that 

he had a history of substance abuse. But MacMillan does not contest the 

6 Elliott testified that the instrument was a sword about three to four feet in length and about two 
to three inches wide. Mr. Shelman testified that he saw MacMillan break Elliott's window with 
what he thought was a stick. Gasho testified that the object was long, skinny, and looked like a 
pipe. MacMillan himself testified that he used a stick. 

7 This remedy is consistent with Bashaw and Ryan, in which the courts, after concluding that the 
instructional errors were not harmless beyond a reasonable doubt, vacated the sentencing 
enhancements and exceptional sentences respectively. Bashaw, 169 Wn.2d at 148; Ryan, 160 
Wn. App. at 950.

                                           10 

No. 65847-6-I/11

imposition of a substance-abuse evaluation, only the alcohol-related conditions.

       Under RCW 9.94A.703, some community custody conditions are

mandatory, while others are subject to the court's discretion. Relevant to this 

case, the court may, in its discretion, order an offender to "[r]efrain from 

consuming alcohol" under subsection 3(e) or to "[c]omply with any crime-related 

prohibitions" under subsection 3(f). 

       We conclude that, because there was no evidence alcohol played a role 

in MacMillan's offenses, the sentencing court lacked authority to impose the 

conditions prohibiting him from possessing alcohol and from frequenting 

establishments where alcohol is the chief commodity for sale. The court did, 

however, have the authority to order the prohibition on alcohol consumption, 

which is specifically permitted by RCW 9.94A.703(3)(e) regardless of whether 

alcohol was involved in the offense. State v. Jones, 118 Wn. App. 199, 206-07, 

76 P.3d 258 (2003).

                                      SAG Issues

       MacMillan's first SAG claim is that insufficient evidence supports his 

conviction for tampering with a witness. On a challenge to the sufficiency of the 

evidence, this court must decide whether, viewing the evidence in a light most 

favorable to the State, any rational trier of fact could have found all the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 94 Wn.2d 216, 

221, 616 P.2d 628 (1980). The elements of a crime may be established by direct 

                                           11 

No. 65847-6-I/12

or circumstantial evidence, one being no more or less valuable than the other. 

State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).  All reasonable 

inferences must be drawn in favor of the State and interpreted most strongly 

against the defendant.  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 

(1992).

       To convict MacMillan of tampering with a witness, the State had to prove 

the following elements beyond a reasonable doubt:

       (1) That on or about April 30, 2010, the defendant attempted to 
           induce a person to testify falsely or without right or privilege to 
           do so, withhold any testimony or absent himself or herself from 
           any official proceeding or withhold from a law enforcement 
           agency information which he or she had relevant to a criminal 
           investigation; and
       (2) That the other person was a witness or a person the defendant 
           had reason to believe was about to be called as a witness in 
           any official proceedings or a person whom the defendant had
           reason to believe might have information relevant to a criminal 
           investigation; and 
       (3) That any of these acts occurred in the State of Washington.

       MacMillan challenges the sufficiency of the evidence based on: (1) 

inconsistencies within Ms. Shelman's testimony and inconsistencies between her 

testimony and Elliott's; (2) Ms. Shelman's testimony that she told MacMillan she 

would not deliver his message to Elliott; (3) the lack of evidence that he made 

further attempts to persuade Shelman to deliver his message to Elliott; (4) the 

lack of evidence about the effect that MacMillan's words had on Elliott; and (5) 

the fact that Elliott was cooperative with police and appeared as a witness 

against MacMillan at trial. 

                                           12 

No. 65847-6-I/13

       These arguments lack merit. The crime of tampering with a witness does 

not require an actual contact with the witness. State v. Williamson, 131 Wn. App. 

1, 6, 86 P.3d 1221 (2004). Furthermore, this claim is based mostly on the lack of 

consistency in and credibility of the witnesses' testimony. But "[c]redibility 

determinations are for the trier of fact and cannot be reviewed on appeal."  State 

v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (citing State v. Casbeer, 

48 Wn. App. 539, 542, 740 P.2d 335 (1987)).  We defer to the trier of fact on 

issues of conflicting testimony and persuasiveness of the evidence.  State v. 

Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992) (citing State v. 

Longuskie, 59 Wn. App. 838, 844, 801 P.2d 1004 (1990)).

       MacMillan's next SAG claim involves the following jury question, 

regarding the to-convict instruction for tampering with a witness, submitted to the 

trial court during deliberations:
Instruction 20 Item 18

       Does the delivery of a message by a second party constitute an 
       attempt?

The trial court answered, "You are to be guided by the instructions of law 

previously provided." Id. MacMillan claims that the trial court did not have a well-

founded reason for not answering the jury's question. But he fails to explain why

the trial court's response was erroneous or prejudicial to him.

8 Instruction No. 20, Item 1 referred to the first element in the to-convict instruction for tampering 
with a witness: "(1) That on or about April 30, 2010, the defendant attempted to induce a person 
to testify falsely or without right or privilege to do so, withhold any testimony or absent himself or 
herself from any official proceeding or withhold from a law enforcement agency information 
which he or she had relevant to a criminal investigation . . . ."

                                           13 

No. 65847-6-I/14

       MacMillan's last SAG claim is that he received ineffective assistance of 

counsel for several reasons. To prevail on a claim of ineffective assistance, a 

defendant must satisfy the two-prong test under Strickland v. Washington, 466 

U.S. 668, 687 -- 88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  If a defendant fails to 

establish either prong, we need not inquire further.  State v. Hendrickson, 129 

Wn.2d 61, 77, 917 P.2d 563 (1996).  First, he must show that counsel's 

representation fell below an objective standard of reasonableness. Id. Only 

legitimate trial strategy constitutes reasonable performance. State v. Aho, 137 

Wn.2d 736, 745, 975 P.2d 512 (1999). Second, he must show that the deficient 

performance was prejudicial. Hendrickson, 129 Wn.2d at 78.  Prejudice occurs 

when it is reasonably probable that but for counsel's errors, "'the result of the 

proceeding would have been different.'" State v. Lord, 117 Wn.2d 829, 883 -- 84, 

822 P.2d 177 (1991) (quoting Strickland, 466 U.S. at 694). There is a strong 

presumption of effective representation of counsel, and the defendant must show 

that there was no legitimate strategic or tactical reason for the challenged 

conduct. State v McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).

       MacMillan contends that counsel's failure to seek a lesser included 

offense instruction on attempted witness tampering amounted to ineffective 

assistance. Assuming that a person can be charged with attempted tampering 

with a witness, MacMillan fails to explain why a lesser included instruction was 

appropriate here given the evidence. He also claims ineffective assistance 

based on counsel's failure to object to photographs of and testimony about 

                                           14 

No. 65847-6-I/15

Elliott's injuries, and counsel's failure to retain a medical expert. But he does not 

explain why any of the photographs were inadmissible or why expert testimony 

was admissible, nor does he show prejudice. Finally, MacMillan claims counsel's
failure to bring a Batson9 challenge during jury selection amounted to ineffective 

assistance. He asserts that the prosecution struck as many men as possible to 
obtain a predominantly female jury, prejudicing his ability to receive a fair trial.10

SAG 14-15. However, absent a showing of prejudice, Batson errors cannot be 

raised for the first time on appeal. State v. Wise, 148 Wn. App. 425, 440, 200 

P.3d 266 (2009). MacMillan asserts, "It could be concluded that given the 

[female jurors'] responses and the fact that they as females are more vulnerable 

to violence and therefore more sensitive to it, that the defendant was sure to get 

convicted of a violent crime against a woman regardless how weak or 

circumstantial the evidence." This explanation is inadequate to show prejudice. 

Furthermore, it fails to account for the jury's acquittal on the robbery count and

failure to agree on the felony harassment count. 

9 A Batson challenge is based on the principle that the Fourteenth Amendment's equal protection 
clause requires defendants to be "tried by a jury whose members are selected pursuant to 
nondiscriminatory criteria." Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 1712, 90 L.Ed.2d 
69 (1986) (citing Martin v. Texas, 200 U.S. 316, 321, 26 S.Ct. 338, 50 L.Ed. 497 (1906)). Batson
articulated a three-part analysis to determine whether discriminatory criteria were used to 
peremptorily challenge a venire member: (1) the defendant must establish a prima facie case of 
purposeful discrimination, by providing evidence that raises an inference that a peremptory 
challenge was used to exclude a venire member from the jury on account of the member's race; 
(2) if a prima facie case is established, the burden shifts to the prosecutor to come forward with a 
race-neutral explanation for challenging the venire member; and (3) the trial court must 
determine whether the defendant has established purposeful discrimination. Batson, 163 U.S. at 
96-98. A Batson challenge can also be raised against peremptory challenges based on gender. 
State v. Burch, 65 Wn. App. 828, 833-36, 830 P.2d 357 (1992). 

10 The prosecution used peremptory challenges to strike six men and one woman from the 
venire. The defense struck five women and two men, and the jury was ultimately composed of 
three men (one being an alternate juror) and ten women.

                                           15 

No. 65847-6-I/16

       Affirmed in part, reversed in part, and remanded for further proceedings 

consistent with this opinion.

WE CONCUR:

                                           16