case the court is asked to determine if the second degree
unlawful possession of a firearm statute, RCW
9.411.040(2)(a), and the second degree identity theft
statute, RCW 9.35.020(1), are each alternative means
statutes, and, if so, whether, under the circumstances of
this case, the trial court was required to give a unanimity
instruction addressing the alternative means. For the reasons
discussed below. we hold that neither statute is an
alternative means statute. Accordingly, the absence of a
specific unanimity instruction regarding counts based on
these statutes did not result in error. We affirm the Court
of Appeals in part and reverse in part.
case began with the theft of a backpack from a vehicle. The
backpack contained cash and checks obtained for a school
fundraiser. Several days after the vehicle prowl, defendant
was video recorded at an ATM (automated teller machine)
depositing four checks in his bank account, three of which
had been in the stolen backpack. The fourth check listed
"Dava Construction Company" in the top left corner.
Ex. 4. Police obtained a warrant to search defendant's
residence for the backpack. During the search, police found
methamphetamine in defendant's basement apartment and a
shotgun under the mattress in the bedroom. There was no
testimony that the defendant owned the shotgun.
State charged defendant with multiple counts, including one
count of second degree unlawful possession of a firearm and
one count of identity theft for the Dava check. At trial,
State's witness Shelly Bedolla testified that Dava
Construction is a company that she and her husband operate.
She testified that the check in question was not one of her
company checks, although the name and address reflected her
business. Nor did she know the persons listed on the check.
a three-day trial, the jury found defendant guilty of nine
crimes, including second degree unlawful possession of a
firearm and second degree identity theft.
appealed. In the published portion of its split opinion,
Division Three of the Court of Appeals affirmed
defendant's conviction for second degree unlawful
possession of a firearm, holding that the firearm statute is
not an alternative means crime; a different majority reversed
defendant's conviction for second degree identity theft
for the Dava check, holding that the identity theft statute
is an alternative means crime and reversal is
required because the evidence did not support both
alternative means and the trial court's instructions did
not require express unanimity. State v.
Barboza-Cortes, 5 Wn.App. 2d 86, 88-89, 425 P.3d 856
(2018). Defendant petitioned for review of the noted affirmed
conviction, and the State petitioned for review of the noted
reversed conviction. This court granted both petitions.
State v. Barboza-Cortes, 192 Wn.2d 1009 (2019).
alternative means crime is one where the legislature has
provided that the State may prove the proscribed criminal
conduct in a variety of ways. State v. Armstrong,
188 Wn.2d 333, 340, 394 P.3d 373 (2017) (citing State v.
Peterson, 168 Wn.2d 763, 769, 230 P.3d 588 (2010)).
Deciding which statutes create alternative means crimes is
left to judicial interpretation. State v. Sandholm,
184 Wn.2d 726, 732, 364 P.3d 87 (2015) (citing
Peterson, 168 Wn.2d at 769). Accordingly, as with
other statutory interpretation questions, review is de novo.
State v. Mayorga DeSantiago, 149 Wn.2d 402, 417, 68
P.3d 1065 (2003).
Requirements of Unanimity and Alternative Means
our state constitution, criminal defendants have the right to
a unanimous jury verdict. Sandholm, 184 Wn.2d at 732
(citing WASH. CONST, art. I, § 21). In alternative means
cases, where the criminal offense can be committed in more
than one way, "an expression of jury unanimity is not
required provided each alternative means presented to the
jury is supported by sufficient evidence." Id.
However, if insufficient evidence supports one or more of the
alternative means presented to the jury, the conviction will
not be affirmed. Id. (citing State v.
Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P.2d
noted, deciding which statutes create alternative means
crimes is left to the courts. Id. "This review
begins by analyzing the language of the criminal statute at
issue." Id. (citing State v. Owens,
180 Wn.2d 90, 96, 323 P.3d 1030 (2014)). Only if the court
determines that the statute creates alternative means will it
then analyze a unanimity challenge. Id.
analyzing the statute at issue, the use of the disjunctive
"or" in the language in question, the presence of
statutory subsections, or the availability of definitional
statutes do not necessarily create alternative means.
Id. at 734. Rather, the salient inquiry is
"whether each alleged alternative describes
'distinct acts that amount to the same crime.'"
Id. (emphasis omitted) (quoting Peterson,
168 Wn.2d at 770). "The more varied the criminal
conduct, the more likely the statute describes alternative
means." Id. "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.
of example, this court in Sandholm explained that
the mere listing of eight actions in the trafficking in
stolen property statute, RCW 9A.82.050, did not create eight