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State v. Woodlyn

Supreme Court of Washington, En Banc

April 13, 2017

STATE OF WASHINGTON, Respondent,
v.
DAVID EARL WOODLYN, Petitioner.

          STEPHENS, J.

         In the summer of 2011, David Earl Woodlyn cashed a series of blank checks written by Dora Kjellerson, an elderly woman suffering from dementia. In total, Woodlyn withdrew $1, 865 from Kjellerson's account. The State charged Woodlyn with theft in the second degree, an alternative means crime. The jury's "to convict" instruction required the jury to unanimously agree on Woodlyn's guilt-but not on how he committed the crime. Clerk's Papers (CP) at 72. In other words, the jury could return a guilty verdict even if individual jurors disagreed whether Woodlyn committed theft because he (1) "wrongfully obtained" Kjellerson's property or instead (2) "obtained control" over Kjellerson's property "by color or aid of deception." Id. The jury returned a general verdict of guilty.

         Woodlyn appealed, arguing the general verdict violated his right to jury unanimity under article I, section 21 of the state constitution insofar as the evidence was insufficient to support conviction under the "wrongfully obtained" alternative. The Court of Appeals agreed that the evidence of this means was insufficient, but nonetheless affirmed, holding that any error was harmless. The court reasoned that the absence of evidence of the theft by taking alternative reasonably showed that the jury's verdict rested on the theft by deception alternative. We reject the Court of Appeals reasoning. A determination on appeal that the State failed to support one or more alternative means does not establish that the jury relied unanimously on another, supported alternative.

         We nevertheless affirm the Court of Appeals in result because we conclude the evidence before the jury was sufficient to support both alternative means of second degree theft. We affirm on this basis.

         FACTS AND PROCEDURAL HISTORY

         Woodlyn was charged, tried, and convicted of theft in the second degree. The State alleged that Woodlyn wrote and cashed checks totaling $1, 865 from the account of Kjellerson. CP at 4-5. Woodlyn acknowledged cashing the checks but denied stealing from Kjellerson, maintaining that he cashed the checks on her behalf, gave her some of the cash, and kept the rest as payment for cutting Kjellerson's lawn. The following facts were offered at trial:

         In the summer of 2011, Woodlyn was unemployed save for occasional lawn care work. Woodlyn first met Kjellerson when he knocked on her door and offered to cut her lawn for $60. Kjellerson was elderly, lived alone, and was later found to be suffering from "moderate to severe dementia." Verbatim Report of Proceeding (VRP) (Nov. 13, 2013) at 538. According to Woodlyn, he cut Kjellerson's grass and performed other yard work three to five times that summer. Woodlyn testified that each time, Kjellerson paid him by signing an otherwise blank check, leaving Woodlyn to write in the payee and amount.

         On August 27, 2011, Woodlyn accompanied Kjellerson to her bank. Kjellerson indicated that Woodlyn needed money to cut the grass, but did not appear to know how much. When the teller asked Woodlyn how much Kjellerson needed to withdraw, Woodlyn responded by asking how much she had. Alarmed, the teller refused to dispense any funds, and a bank employee called the police. Woodlyn left the bank alone, and Kjellerson was accompanied home by the responding officer. Noting that the grass in Kjellerson's yard was roughly one foot high and "kind of over grown, " the officer asked Kjellerson how much money she paid for yard work. VRP (Nov. 18, 2013) at 688-89. Kjellerson estimated that she paid Woodlyn $60 during the month of August. According to the bank, Woodlyn in fact cashed seven checks from Kjellerson's account between July 25, 2011 and August 12, 2011. The checks ranged from $60 to $440, totaling $1, 865. Id. at 746-51.

         The State charged Woodlyn with theft in the second degree. The "to convict" instruction to the jury set out two alternative means of committing the crime: (1) that Woodlyn "wrongfully obtained" Kjellerson's property or (2) that Woodlyn "obtained control" over Kjellerson's property "by color or aid of deception." CP at 72. The trial court instructed the jurors that while they must agree unanimously as to Woodlyn's guilt or innocence, they could find Woodlyn guilty without agreeing unanimously as to the means. See 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 70.06 (4th ed. 2016); CP at 72-73. The jury returned a general verdict of guilty. CP at 87.

         Woodlyn appealed, claiming a violation of his right to a unanimous verdict because the State failed to present sufficient evidence to support the theft by taking alternative. State v. Woodlyn, No. 71311-6-1, slip op. at 5 (Wash.Ct.App. Mar. 9, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/713116.pdf. The State conceded that '"[n]o evidence of theft by taking was presented to the jury, '" but argued that the absence of evidence of theft by taking rendered any error harmless. Id. at 6-7 (alteration in original). On this basis, the Court of Appeals affirmed, reasoning that because "deception was the only basis for the jury to have concluded that Woodlyn's acceptance of Kjellerson's checks . . . was 'wrongful, '" the jury must have relied unanimously on the theft by deception alternative. Id. at 10. This court granted Woodlyn's petition for review. State v. Woodlyn, 185 Wn.2d 1024, 369 P.3d 502 (2016). The State then withdrew its concession. The State now argues that sufficient evidence supports both alternative means of committing theft.

         ISSUES

         (1) When a trial court erroneously instructs the jury it need not unanimously agree on the means by which the defendant committed a crime, is this error harmless based on a determination that no evidence supported one of the alternative means?

         (2) Was there sufficient evidence at trial to support Woodlyn's second degree theft conviction ...


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