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State v. Barboza-Cortes

Supreme Court of Washington, En Banc

November 7, 2019

STATE OF WASHINGTON, Respondent,
v.
JOSE G. BARBOZA-CORTES, Petitioner.

          MADSEN, J.

         In this 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.

          FACTS

         This 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.

         The 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.

         Following 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.

         Defendant 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).

         ANALYSIS

         Standard of Review

         An 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).

         The Requirements of Unanimity and Alternative Means

         Under 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 231(1994)).

         As 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.

         In 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.

          By way 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 ...


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