State v. Barboza-Cortes

451 P.3d 707

STATE of Washington, Respondent,

v.Jose G. BARBOZA-CORTES, Petitioner.

No. 96397-5

Supreme Court of Washington.

Argued May 9, 2019

Filed November 07, 2019

Kristina M. Nichols, Attorney at Law, Jill Shumaker Reuter, Eastern Washington Appellate Law, PLLC, Po Box 8302, Spokane, WA, 99203-0302, for Petitioner.

Douglas J. Shae, Ryan S. Valaas, Attorneys at Law, Po Box 2596, Wenatchee, WA, 98807-2596, for Respondent.

MADSEN, J.

¶1 In this case the court is asked to determine if the second degree unlawful possession of a firearm statute, RCW 9.41.040(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

¶2 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.

¶3 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.

¶4 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.

¶5 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 Wash. 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 Wash.2d 1009, 432 P.3d 788 (2019).

ANALYSIS

Standard of Review

¶6 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 Wash.2d 333, 340, 394 P.3d 373 (2017) (citing State v. Peterson, 168 Wash.2d 763, 769, 230 P.3d 588 (2010) ). Deciding which statutes create alternative means crimes is left to judicial interpretation. State v. Sandholm, 184 Wash.2d 726, 732, 364 P.3d 87 (2015) (citing Peterson, 168 Wash.2d at 769, 230 P.3d 588 ). Accordingly, as with other statutory interpretation questions, review is de novo. State v. Mayorga DeSantiago, 149 Wash.2d 402, 417, 68 P.3d 1065 (2003).

The Requirements of Unanimity and Alternative Means

¶7 Under our state constitution, criminal defendants have the right to a unanimous jury verdict. Sandholm, 184 Wash.2d at 732, 364 P.3d 87 (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 Wash.2d 702, 707-08, 881 P.2d 231 (1994) ).

¶8 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 Wash.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.

¶9 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, 364 P.3d 87. Rather, the salient inquiry is "whether each alleged alternative describes ‘distinct acts that amount to the same crime.’ " Id. (emphasis omitted) (quoting Peterson, 168 Wash.2d at 770, 230 P.3d 588 ). "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.

¶10 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 alternative means but only two true alternatives.¹

The first seven alleged "alternatives" represented multiple facets of a single means, while the eighth alternative was a true alternative because it described a separate category of conduct. In other words, only two statutory means existed because only two distinct types of conduct were established in the trafficking statute: participating in the theft of stolen property and transferring stolen property.

Id. at 734-35, 364 P.3d 87 (some emphasis added) (citation omitted) (discussing Owens, 180 Wash.2d at 97-98, 323 P.3d 1030 ).

¶11 Likewise, the Sandholm court explained that provisions in the sex offender registration statute, former RCW 9A.44.130 (2003), concerning failure to register with authorities after becoming homeless, after moving within the county, and after moving out of the county, did not present true alternatives. "Rather than describing distinct acts, ... the alleged ‘alternatives’ each described the same single act: failure to register as a sex offender without alerting the appropriate authorities. Thus, the statute created a single means to commit the crime." Sandholm, 184 Wash.2d at 734, 364 P.3d 87 (discussing Peterson, 168 Wash.2d at 770, 230 P.3d 588 ).

¶12 The Sandholm court then turned to the DUI (driving under the influence) statute before it, former RCW 46.61.502 (2008), and considered the effect of its subsections containing "affected by" clauses. Sandholm, 184 Wash.2d at 735, 733, 364 P.3d 87 (i.e., " ‘under the influence of or affected by intoxicating liquor or any drug; or ... under the combined influence of or affected by intoxicating liquor and any drug’ " (quoting former RCW 46.61.502(b)-(c) )). Reiterating that "the distinctiveness of the conduct" is the salient inquiry, this court opined:

Under this analysis, the DUI statute's "affected by" clauses do not describe multiple, distinct types of conduct that can reasonably be interpreted as creating alternative means. Rather, those portions of the DUI statute contemplate only one type of conduct: driving a vehicle under the "influence of' or while "affected by" certain substances that may impair the driver. Former RCW 46.61.502 (2008). These statutory subsections describe facets of the same conduct, not distinct criminal acts. Whether the defendant is driving under the influence of alcohol, or drugs, or marijuana, or some combination thereof, the defendant's conduct is the same—operating a vehicle while under the influence of certain substances. The fact that one substance or multiple substances may have caused that influence does not change the fundamental nature of the "influence of' or "affected by" criminal act. Former RCW 46.61.502 (2008).

Id. at 735, 364 P.3d 87 (emphasis added and omitted). With this analysis in mind, focusing on whether the alleged alternative means describe distinct types of conduct, we turn to the parties' contentions.

Second Degree Unlawful Possession of a Firearm

¶13 Jose Barboza-Cortes contends that the trial court violated his right to a unanimous jury verdict for unlawful possession of a firearm because one of the alternative means, ownership, was not supported by sufficient evidence. As discussed above, our first inquiry is whether the unlawful possession of a firearm statute qualifies as an alternative means crime. We begin with the statute's language. RCW 9.41.040, declares, in relevant part:

(2)(a) A person ... is guilty of the crime of unlawful possession of a firearm in the second degree, if the person ... owns, has in his or her possession, or has in his or her control any firearm:

(i) [a]fter having previously been convicted ... in this state or elsewhere of [specified felony crimes].

(Emphasis added.) Defendant urges us to adopt the analysis in Judge Fearing's dissent. Judge Fearing opined that the words "possess" and "control" are "similar in nature," such that if RCW 9.41.040(2)(a) contained only those alleged alternatives it would not qualify as an alternative means crime. Barboza-Cor...