State v. Tyler

422 P.3d 436

STATE of Washington, Respondent,

v.Robert Lee TYLER, Petitioner.

NO. 93770-2

Supreme Court of Washington.

Oral Argument Date: March 13, 2018

Filed AUGUST 02, 2018

Jennifer L. Dobson, Attorney at Law, P.O. Box 15980, Seattle, WA 98115-0980, Dana M. Nelson, Nielsen Broman & Koch PLLC, 1908 E. Madison Street, Seattle, WA 98122-2842, for Petitioner.

Mary Kathleen Webber, Snohomish County Prosecutors Office, MSC 504, 3000 Rockefeller Avenue, for Respondent.

STEPHENS, J.

¶ 1 Robert Tyler challenges his conviction for possession of a stolen vehicle. Relying on State v. Hickman , 135 Wash.2d 97, 954 P.2d 900 (1998), he contends that the State was required to prove he engaged in all the actions that constitute "possession" of a stolen vehicle because these were listed in the to-convict jury instruction. Further arguing that the evidence is insufficient to prove he "disposed of" a stolen vehicle, Tyler argues that his conviction must be reversed and the case dismissed with prejudice.

¶ 2 We affirm Tyler's conviction, although on different grounds than those relied on by the Court of Appeals below. That court viewed the jury instructions as setting forth alternative means of possessing stolen property, which became the "law of the case" under Hickman. However, it concluded that Hickman was abrogated by Musacchio v. United States , ––– U.S. ––––, 136 S.Ct. 709, 193 L.Ed. 2d 639 (2016). This was error in light of our recent decision in State v. Johnson , 188 Wash.2d 742, 747, 399 P.3d 507 (2017), which confirmed that Hickman remains good law and the State is generally required to prove all elements set forth in a to-convict jury instruction. However, Hickman's law of the case rule is inapplicable here because possession of a stolen motor vehicle is a single means crime, and the given instructions did not alter that fact. Accordingly, the State was not required to prove that Tyler "disposed of" a stolen vehicle but only that he "possessed it" in one of the defined ways under RCW 9A.56.140(1). Because it is undisputed that the evidence established possession, the jury's verdict stands, and we affirm Tyler's conviction.

BACKGROUND AND PROCEDURAL HISTORY

¶ 3 A Snohomish County deputy sheriff discovered a white Honda sedan and a pickup truck parked 20 feet apart on a remote, forested service road. The deputy observed that the sedan was lifted up on a jack with the driver's side wheels elevated in the air. Upon approaching the pickup truck, the deputy encountered four individuals: Robert Tyler and Rebekah Nicholson sat in the truck's passenger compartment, Tyson Whitt was partially covered by a tarp in the bed of the truck,¹ and Anthony Coleman stood outside the truck.

¶ 4 Tyler informed the deputy that he owned the truck and produced a bill of sale. Looking into the truck's passenger cabin, the deputy observed what appeared to be stripped car parts, including a disconnected car stereo and speakers. Upon further inquiry by the deputy, Tyler claimed not to know anything about these items, neither how they came to be in his truck nor to whom they belonged. When asked who owned the Honda, Tyler replied that he did not know. Upon inspecting the sedan, the deputy observed that it seemed as if it was being stripped of its parts: bolts on the suspended wheels were partially loosened, and the stereo and front door speakers were missing. The deputy found in the sedan's ignition a key with a Chrysler brand logo and noticed that the key had been "shaved," suggesting potential vehicle theft.

¶ 5 The deputy ran a computer search of the sedan's license plate number and learned that the sedan had been reported stolen the prior day. He then contacted the vehicle's owner and confirmed that the brand of car stereo that had been in the sedan matched that of the disconnected car stereo in the passenger compartment of Tyler's truck.

¶ 5 Following further questioning, the deputy placed Tyler under arrest. During a subsequent interrogation, Tyler stated that he had observed Whitt taking parts out of the sedan, and that he deduced the sedan Whitt had been driving was stolen. Tyler denied stealing the vehicle. The State charged Tyler with one count of possession of a stolen vehicle.

¶ 6 At trial, the court's to-convict jury instruction read, in relevant part, "To convict the defendant of the crime of possessing a stolen motor vehicle, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 10th day of January, 2014, the defendant knowingly received, retained, possessed, concealed, disposed of a stolen motor vehicle." Clerk's Papers (CP) at 27 (jury instruction 4). A separate jury instruction stated, in relevant part, "Possessing a stolen motor vehicle means knowingly to receive, retain, possess, conceal, or dispose of a stolen motor vehicle." CP at 26 (jury instruction 3). Neither party objected to these instructions. The jury found Tyler guilty of possession of a stolen vehicle.

¶ 7 On appeal, Tyler argued inter alia that the " ‘to convict’ " jury instruction "listed as alternative means that defendant received, retained, possessed, concealed, or disposed of the stolen vehicle." Br. of Appellant at 1. Relying on the law of the case doctrine as set forth in Hickman , 135 Wash.2d 97, 954 P.2d 900, under which the State must prove all elements listed in to-convict instructions, Tyler urged that his conviction must be reversed and the case dismissed with prejudice because the evidence was insufficient to show he "disposed of" a stolen vehicle. Suppl. Br. of Pet'r at 5-6, 12-13.

¶ 8 The Court of Appeals requested additional briefing from the parties regarding the relevance of an intervening case, Musacchio , ––– U.S. ––––, 136 S.Ct. 709. There, the United States Supreme Court rejected application of the law of the case doctrine in a similar context and held that a sufficiency challenge should be assessed against the statutory elements of the crime charged, regardless of any heightened command in the jury instructions. Id. at 715. Concluding that Musacchio superseded Washington case law and effectively abrogated Hickman , the Court of Appeals affirmed Tyler's conviction. State v. Tyler , 195 Wash. App. 385, 399-400, 382 P.3d 699 (2016).

¶ 9 At about the same time as this case, Division One of the Court of Appeals had reached a similar conclusion in State v. Johnson , No. 73113-1-1, slip op., 2016 WL 3190525 (Wash. Ct. App. June 6, 2016) (unpublished) https://www.courts.wa.gov/opinions/pdf/731131.pdf. We granted review in Johnson to consider Musacchio 's import on Washington's law of the case doctrine, recognizing that Division Three had taken a contrary view. See State v. Jussila , 197 Wash. App. 908, 912-13, 392 P.3d 1108 (2017). We disagreed with the Court of Appeals' reliance on Musacchio , holding that "our long standing ‘law of the case’ doctrine continues to apply." Johnson , 188 Wash.2d at 756, 399 P.3d 507. Furthering the goals of finality, efficiency, and fairness in the judicial process, we concluded that the law of the case doctrine helps avoid prejudice to the parties and ensures that appellate courts review cases under the same rules considered by juries. Id. at 757, 399 P.3d 507. Nonetheless, we affirmed Johnson's conviction, finding the evidence sufficient when measured against the to-convict instruction.

¶ 10 We stayed consideration of Tyler's petition for review pending the final decision in Johnson. Following issuance of the Johnson opinion, we granted partial review. State v. Tyler , 189 Wash.2d 1016, 404 P.3d 497 (2017).

ANALYSIS

¶ 11 Tyler makes a number of cascading and alternative arguments, but they are all premised on the view that the jury instructions required proof that he engaged in each of the listed means of possessing a stolen motor vehicle. His main argument is that the to-convict instruction set forth several alternative means of committing possession of a stolen motor vehicle—"received, retained, possessed, concealed, disposed of." CP at 27; see Pet. for Review at 5-6; Br. of Appellant at 8; Suppl. Br. of Pet'r at 8. In his supplemental brief, he additionally argues that the instruction should be read as mandating proof of all the listed actions to establish possession of a stolen vehicle. Suppl. Br. of Pet'r at 7-8. In either case, under his argument the State would need to demonstrate sufficient evidence of all means of possession because the State did not elect a specific means and no unanimity instruction was given to the jury on alternative means. See State v. Woodlyn , 188 Wash.2d 157, 164, 392 P.3d 1062 (2017). Because the evidence is insufficient to show he "disposed of" a stolen motor vehicle, concludes Tyler, his conviction must be reversed.²

¶ 12 The State counters that the list of ways one can possess a stolen motor vehicle (including the "disposed of" provision) is merely definitional. See RCW 9A.56.140(1) (" ‘Possessing stolen property’ means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto."). It reads the to-convict instruction in the context of the definitional instruction immediately preceding it and argues that the sole element the State had to prove was Tyler's "possession" of a stolen motor vehicle. See Suppl. Br. of Resp't at 3-11; see also RCW 9A.56.068(1) ("A person is guilty of possession of a stolen vehicle if he or she possess [possesses] a stolen motor vehicle." (alteration in original) ). Accordingly, the State concludes that "[t]he law of the case doctrine does not apply in this case" to require proof that Tyler "disposed of" a stolen motor vehicle. Suppl. Br. of Resp't at 11.³

¶ 13 We agree with the State. Possession of a stolen vehicle is not an "alternative means" or "all means" crime, and the jury instructions in this case did not make it so. Because the...