State v. Arndt

Brachtenbach, J.

(dissenting)—This is a case where the majority holds that a person can be convicted of a crime without all jurors being convinced that the defendant did any of the criminal acts prohibited by statute.

Defendant was charged with committing grand larceny, in connection with receipt of public assistance, by means of:

1. A willfully false statement or representation; or

2. A willful failure to reveal any material facts, conditions or circumstances affecting eligibility;

or

3. A willful failure to promptly notify the county office in writing as required by law of any change in status with respect to resources or income.

Under the majority holding, defendant could be convicted without 12 jurors agreeing that she did any one of the three separate acts charged. It is entirely possible that four jurors believed the defendant made false statements on public assistance forms but was not culpable for failing to reveal any material conditions or for failing to notify the county office of any change in income status. Four other jurors might believe she committed the second act charged, and four more jurors might believe she committed act number three. It is incomprehensible how a defendant can be convicted if 12 jurors are not required to agree that defendant committed one or more of the acts charged. *388 However, that is the precise result of the majority’s holding.

The majority builds its case on faulty foundations. The majority relies upon the analysis of State v. Kosanke, 23 Wn.2d 211 , 160 P.2d 541 (1945), to define the issue. The majority fails to disclose, however, that the court in State v. Kosanke, supra, was concerned with the issue of duplicity in an information. In fact, eight of the cases relied upon by the majority involve duplicity rather than a unanimity requirement in the verdict. Duplicitous charges are something quite different from requiring the jury to agree unanimously that the defendant committed a criminal act.

The issue, as perceived by the majority, is whether the statute described (1) a single offense of grand larceny committable in more than one way, or (2) several separate and distinct offenses, each constituting grand larceny. The difficulty with such an approach is that the true issue before the court is never squarely faced. The real issue is whether the jury was convinced unanimously that one or more of the charged acts was committed. The statutory crime of public assistance grand larceny simply does not exist unless the defendant commits one or more of the acts specified. The majority, however, holds that the defendant is guilty even though the jury does not agree that she committed any one of the acts charged.

If the statute described a single offense of grand larceny committable in more than one way, the majority states that “it is unnecessary to a guilty verdict that there be more than unanimity concerning guilt as to the single crime charged, %.e., grand larceny, regardless of unanimity as to the means by which the crime is committed.” Three Washington cases are relied upon to support this conclusion. State v. Talbott, 199 Wash. 431 , 91 P.2d 1020 (1939); State v. Stuhr, 1 Wn.2d 521 , 96 P.2d 479 (1939); State v. Medley, 11 Wn. App. 491 , 524 P.2d 466 (1974). State v. Talbott, supra, involved a verdict of first-degree murder based upon alternative theories of guilt—felony murder or premedi *389 tated murder. The only language applicable to the majority’s opinion is found at pages 437-38:

The jury returned a verdict of murder in the first degree without specifying whether it related to the first or second counts, or to both. It is contended that the verdict is, therefore, void for uncertainty. We think there is no merit in this contention. The two counts do not charge different offenses, but merely charge the same offense in different ways, and the evidence in the case was amply sufficient to convict on either or both theories.

Such analysis is of little help in resolving the issue of whether the jury must be convinced unanimously that one or more of the charged acts was committed.

State v. Stuhr, supra, is even more remarkable than State v. Talbott, supra, for being totally devoid of analysis or reasoning. The court simply states at page 529 that “a finding that he committed either act established his guilt of the crime charged.”

Of more assistance is State v. Medley, supra. The analysis in this opinion clearly supports the reasoning of this dissent. State v. Medley, supra, involved a “joy riding” conviction pursuant to RCW 9.54.020. The defendant urged as error the trial court’s refusal to instruct the jury that it must agree unanimously as to whether the defendant actually stole the automobile or was merely riding in it with knowledge that it had been unlawfully taken. The Court of Appeals affirmed the conviction because under the statute there was no distinction between the guilt of the driver and that of the rider. The common denominator of either theory was the defendant’s presence in the automobile with knowledge that it had been unlawfully taken. Thus, the defendant was guilty whether or not the jury was unanimous in their belief as to whether he was driving or riding. If he were driving, he necessarily was riding in the car.

The requirement of jury unanimity was therefore not compromised by the court in State v. Medley, supra. Not so in the present case. Whereas in Medley , proof of one act necessarily included proof of another, in the present case proof of one act does not include proof of any of the other *390 acts charged. If the jury is to find the defendant guilty, it must, at the very least, agree that the defendant did one of the acts charged.

The majority also refers to State v. Metcalf, 14 Wn. App. 232 , 540 P.2d 459 (1975), to support its rule. The majority fails to note, however, that the court held that proof of one alternative act necessarily included the other alternative. Not so here.

Most of the cases relied upon by the majority from other jurisdictions involve a charge of murder. For example, in People v. Chavez, 37 Cal. 2d 656 , 234 P.2d 632 (1951), the court held that it was unnecessary to have the jury agree that the murder was premeditated or done in the course of a felony so long as they were convinced that the defendant had committed murder as defined by statute. This is the extent of the analysis and reasoning to be found in these cases. In the murder cases, there is a specific act established, the killing. In the present case there is no crime unless and until the defendant is proved to have committed one or more of the acts prohibited by statute. In other words, there is no generalized crime of welfare fraud, it can be committed only in one of the specified methods.

More helpful is the rationale of State v. Hazelett, 8 Ore. App. 44, 47 , 492 P.2d 501 (1972):

In some cases it would be error to permit a jury to convict based on part of their number finding one set of facts to be true and part believing another set of facts to be true. For example, in State v. Ewing, 174 Or 487 , 149 P2d 765 (1944), a sodomy prosecution in which the state’s case included evidence of numerous acts of sodomy, the court said:

“* * * We are of the opinion that error was committed in the failure of the court to require a specific election at some time prior to the final rebuttal argument of the prosecution and that the instructions of the court erroneously failed to impose the necessary limitations upon the jury and did, in fact, permit them to consider any of the alleged prohibited acts as being the act charged in the indictment. As a result, it is entirely possible that some of the jurors may have found the *391 defendant guilty of one of the prohibited acts, while others relied upon some other and different alleged act.” 174 Or at 496 .

This is not such a case. Here, there was only one act charged and proved—the act of taking the life of the victim. Whether this was done with premeditation or while attempting rape related to the defendant’s mental state, and did not relate in any way to the act charged. Since the legal effect of committing the act is the same whether done with premeditation or while attempting rape, there is no reason to require the jury to unanimously agree on which of the two possible mental states, both equally culpable, defendant possessed at the time of the murder charged.

In support of its argument that the statute defines but a single crime, the majority relies on the title of the act under which defendant was charged to show legislative intent. The legislature, however, has nothing to do with the title of published law. The title is provided by the code reviser. More importantly, the bill, as introduced, contained no such reference. The bill was merely denominated as an act relating to public assistance, adding a new section to a specified chapter and providing penalties. House Bill No. 264 (1965). The most relevant inquiry must be into how the bill was construed by the legislature. The House Committee on Social Security and Public Assistance reported it as “House Bill No. 264, setting forth crimes for fraudulently obtaining public assistance . . .” (Italics mine.) House Journal, 39th Legislature (1965) at 235. Three more journal entries referred to the bill as setting forth crimes. House Journal, 39th Legislature (1965) at 314, 646, 1039. The Senate viewed it exactly the same, referring to it as a bill setting forth crimes. Senate Journal, 39th Legislature (1965) at 601, 996. It is similarly listed in the Journal index. House Journal, 39th Legislature (1965) at 2095; Senate Journal, 39th Legislature (1965) at 1723. In the code the statute is headed as “Unlawful practices.” RCW 74.08.331. Under the majority’s own reasoning, use of the plural instead of the singular implies the legislature intended to define several and distinct crimes. Further, if in *392 fact, the statute does describe separate crimes, the majority would hold that the jury must be unanimous in its decision as to each criminal act committed.

Such constrained logic only serves to emphasize the shortcomings of the majority’s approach to the issue. Substantial and more persuasive authority exists contrary to the holdings of the majority. In People v. Failla, 64 Cal. 2d 560 , 414 P.2d 39 , 51 Cal. Rptr. 103 (1966), the court noted that California has several lines of cases depending upon the violation charged.

[I]n a third line of decisions [citations omitted] the defendant has been prosecuted for violation of a statute under which any one of several different acts is sufficient to constitute the offense; in such circumstances the jurors must be instructed that in order to return a verdict of guilty they must all agree on at least one of the unlawful acts assertedly committed by the defendant.

(Footnote omitted.) People v. Failla, supra at 567-68 . The court continues in People v. Failla, supra at 569:

It follows that in prosecutions for burglary, as in murder and theft cases, the jurors need not be instructed that to return a verdict of guilty they must all agree on the specific “theory” of the entry—i.e., what particular felony or felonies the defendant intended at the time—provided they are told they must be unanimous in finding that a felonious entry took place.

Here there is no initial crime which can be proved. Conviction must rest entirely upon proof of the commission of one or more of the acts alleged.

In People v. Scofield, 203 Cal. 703 , 265 P. 914 (1928), the defendant was charged with manslaughter by motor vehicle which could be committed in one of five ways. The court held it was error not to instruct the jury that they must be unanimous on at least one of the acts charged.

In People v. Dutra, 75 Cal. App. 2d 311, 322 , 171 P.2d 41 (1946), the court stated:

[T]he instruction in this connection left the jury free to convict on this count although the jurors may not have been in agreement with respect to the commission of any particular act or omission, as being calculated to cause or *393 tend to cause the result in question. There is evidence here of a number of different acts which might be responsible for such a result, and there is nothing to show that some of the jurors did not base their verdict on some of these acts and other jurors on other acts. Under such circumstances, it can neither be held that error does not appear nor that it was not prejudicial. [Citations omitted.]

Accord, People v. Thompson, 144 Cal. App. 2d 854 , 301 P.2d 313 (App. Dep’t Super. Ct. 1956); State v. Washington, 242 Mo. 401 , 146 S.W. 1164 (1912); State v. Oswald, 306 S.W.2d 559 (Mo. 1957). This is precisely the situation presently before the court. “An accused is entitled to the concurrence of twelve jurors upon one definite charge of crime.” State v. Oswald, supra at 563 .

The jury should have been instructed that they must be unanimous in finding beyond a reasonable doubt that the defendant committed one or more of the acts charged. I would reverse and order a new trial.

Hunter and Utter, JJ., concur with Brachtenbach, J.