State v. Barboza-Cortes

This opinion was

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 96397-5

Respondent,

V.

En Banc

JOSE G. BARBOZA-CORTES,

Petitioner. Filed 0 7

MADSEN,J.—In this case the court is asked to determine if the second degree

unlawful possession of a firearm statute, ROW 9.41.040(2)(a), and the second degree

identity theft statute, ROW 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.

No. 96397-5

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 comer.

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;

No. 96397-5

a different majority reversed defendant's convietion for seeond degree identity theft for

the Dava eheek, holding that the identity theft statute is an alternative means erime 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 Unanimitv 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. 1, § 21). In

alternative means eases, where the criminal offense can be committed in more than one

No. 96397-5

way,"an expression ofjury 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 ofthe 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.

No. 96397-5

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.'

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 ofconduct. 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 (some emphasis added)(citation omitted)(discussing Owens, 180 Wn.2d at

97-98).

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 Wn.2d at 734 (discussing Peterson,

168 Wn.2dat770).

The Sandholm court then turned to the DUl (driving under the influence) statute

before it, former RCW 46.61.502(2008), and considered the effect of its subsections

'The statute in question provided,"A person who knowingly initiates, organizes, plans, finances,

directs, manages, or supervises the theft of property for sale to others, or who knowingly traffics

in stolen property, is guilty oftrafficking in stolen property in the first degree." Sandholm, 184

Wn.2d at 734 n.3 (quoting RCW 9A.82.050(1)).

No. 96397-5

containing "affected by" clauses. Sandholm, 184 Wn.2d at 735, 733 (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 ofconduct 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 (emphasis added and omitted). With this analysis in mind, focusing on whether

the alleged alternative means describe distinct types ofconduct, we turn to the parties'

contentions.

Second Degree Unlawful Possession of a Firearm

Jose Barboza-Cortes contends that the trial court violated his right to a unanimous

jury verdict for unlawful possession of a firearm because one ofthe 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:

No. 96397-5

(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 ifRCW 9.41.040(2)(a) contained only those alleged alternatives it would not qualify

as an alternative means crime. Barboza-Cortes, 5 Wn. App. 2d at 112 (Fearing, J.,

dissenting in part). But the third alternative,"own," in the dissent's view,"is

significantly different from possession or control." Id.

In the present context, we disagree. While there may be subtle distinctions in

aspects of ownership, possession, and control that may be material in other contexts, in

the present circumstance they all describe ways of accessing guns; and all of those

interactions have been barred by the legislature as regards felons. Thus, in this context,

the statute is more properly characterized as describing "nuances inhering in the same

[prohibited] act"—accessing guns. Sandholm, 184 Wn.2d at 734. We conclude that the

alleged alternatives are "facets ofthe same criminal conduct." Id. Accordingly, RCW

9.41.040(2) is not an alternative means crime.^ We affirm the Court of Appeals on this

issue.

^ Cf. State V. Holt, 119 Wn. App. 712, 718, 82 P.3d 688(2004)(stating without analysis that

"Second degree unlawful possession of a firearm is an alternative means offense committed

when a convicted felon(1)owns,(2) possesses, or(3) controls a firearm. RCW

9.41.040(l)(b)."). Holt is disapproved to the extent it is contrary to the resolution here.

No. 96397-5

Second Degree Identity Theft

The State contends that the second degree identity theft statute is not an alternative

means crime and urges this court to reverse Division Three's holding, which reached the

opposite eonclusion. Again, we begin with the statute's language.

RCW 9.35.020(1) provides that "[n]o person may knowingly obtain, possess, use,

or transfer a means ofidentification orfinancial information of another person, living or

dead, with the intent to commit, or to aid or abet, any crime." (Emphasis added.) At

issue is whether the phrases "means of identification" and "financial information"

describe separate categories of conduct.^ See Sandholm, 184 Wn.2d at 734-35. Those

terms are defined'^ as follows:

(1) "Financial information" means any of the following information

identifiable to the individual that concerns the amount and conditions of an

individual's assets, liabilities, or eredit:

(a) Account numbers and balances;

(b) Transactional information concerning an account; and

(c) Codes, passwords, soeial security numbers, tax identification

numbers, driver's license or permit numbers, state identicard numbers

issued by the department of licensing, and other information held for the

purpose of account access or transaction initiation.

(3) "Means of identification" means information or an item that is

not describingfinances or credit but is personal to or identifiable with an

individual or other person, including: A current or former name ofthe

person, telephone number, an electronic address, or identifier of the

individual or a member of his or her family, including the aneestor ofthe

^ In State v. Butler, 194 Wn. App. 525, 530, 374 P.3d 1232(2016), Division Two of the Court of

Appeals held that identity theft is not an altemative means crime. But the Butler court

considered only "the four verbs" contained in the identity theft statute and did not consider the

two provisions at issue here. Id.

While definitional statutes do not create multiple altemative means for a crime, see State v.

Smith, 159 Wn.2d 778, 785, 154 P.3d 873 (2007), the means at issue here are listed in the

substantive offense itself. See id. at 789-90("we limit the reach ofthe altemative means doctrine

to those altemative means directly provided for by the assault statutes" in question).

8

No. 96397-5

person; information relating to a change in name, address, telephone

number, or electronic address or identifier of the individual or his or her

family; a social security, driver's license, or tax identification number of

the individual or a member of his or her family; and other information that

could be used to identify the person, including unique biometric data.

RCW 9.35.005 (emphasis added).

We acknowledge that the "means of identification" definition expressly excludes

information "describing finances or credit." RCW 9.35.005(3). Nevertheless, while the

identity theft statute lists categories of information (and the definitional statute describes

specific sets of such information)to which a violation ofthe statute applies, the statute

describes and prohibits only a single type of conduct: the taking of another's private

information to commit or aid and abet commission of a crime. It is unclear what

distinction the legislature intended when it divided "means of identification" and

"financial information," but what is clear is the overlap in a number of the items

identified in each of these definitions. For example, driver's license. Social Security, and

tax identification numbers are expressly listed in both definitions. Additionally, there is

implicit overlap in other items. "[IJnformation held for the purpose of account access or

transaction initiation" often includes a mother's maiden name, which also relates to the

"ancestor ofthe person." RCW 9.35.005(l)(c),(3). Thus, it is difficult to see these

definitions as describing distinct or different conduct. It is also clear that the distinction

between financial identifying information is not significant to the conduct the legislature

is trying to prevent, which is the use of another's identification to commit any crime. In

other words, punishment for using a person's personal information does not depend on

whether the crime committed is a financial crime or any other crime. We conclude that

No. 96397-5

the identity theft statute may be properly characterized as describing "nuances inhering in

the same [prohibited] act"—taking another's private information. Sandholm, 184 Wn.2d

at 734. Thus, the alleged alternatives here are more aptly characterized as "facets ofthe

same criminal conduct." Id. Accordingly, we hold that RCW 9.35.020(1) is not an

alternative means crime. We reverse the Court of Appeals on this issue.^

CONCLUSION

We hold that the second degree unlawful possession of a firearm statute, RCW

9.41.040(2)(a), is not an alternative means statute and affirm the Court of Appeals on this

issue. We hold that the second degree identity theft statute, RCW 9.35.020(1), also is not

an alternative means statute and reverse the Court of Appeals on this issue. Because

neither ofthe noted statutes is an alternative means crime, no unanimity instruction

addressing alternative means was required and the absence of such instruction was not

error. Accordingly, we affirm the Court of Appeals in part and reverse in part.

^ Given our disposition, we do not reach the State's contention that it effectively elected one

altemative means in closing argument.

10

No. 96397-5

WE CONCUR:

//

f

11

State V. Barboza-Cortes

No. 96397-5

Gonzalez, J.(concurring)—^Reasonable minds may disagree about whether

the identity theft and unlawful possession of a firearm statutes are alternative

means crimes. See State v. Barboza-Cortes, 5 Wn. App. 2d 86, 95,425 P.3d 856

(2018); id. at 116 (Fearing, J., dissenting in part). I agree with the majority that

neither is an alternative means crime. I write separately, however, because this has

convinced me we should modify our approach to alternative means crimes.

Our current system is unworkable and results in the vacation of fair

convictions after fair trials. Instead, we should adopt the federal approach from

Griffinv. United States, 502 U.S. 46, 56, 112S.Ct. 466, 116L. Ed. 2d 371 (1991).

Under Griffin, on appellate review, a general Jury verdict on an alternative means

crime will not be vacated so long as sufficient evidence supports at least one ofthe

means.^ See id. In State v. Owens, 180 Wn.2d 90, 95 n.2, 323 P.3d 1030(2014),

and State v. Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994), we

declined to follow the approach from Griffin. As a result, we have created an

arbitrary, unnecessary, and unpredictable standard that turns on increasingly subtle

'Defendants, of course, should be free to request jury instructions that require jury unanimity

and judges should grant such requests if necessary to protect the defendant's right to jury

unanimity. See WASH.CONST, art. I, § 21.

State V. Barboza-Cortes

shades of statutory meaning. I recognize I signed some ofthe precedents that I

would now reject.

With these observations, I concur.

State V. Barboza-Cortes