State v. Owens, No. 88905-8 (Mar. 27, 2014)

How many alternative means does RCW 9A.82.050 (trafficking in stolen property in the first degree) create?  Does the jury have to unanimously agree to which means were used in order to convict?  In this case the Washington Supreme Court held the statute has only two alternative means and, because there was sufficient evidence to show Owens committed the crime by one of those two means, the jury did not have to unanimously agree on which means he used. However, it declined to adopt the federal jury unanimity standard for alternative means crimes.

Criminal defendants have a right to a unanimous jury verdict under article I, section 21 of the Washington Constitution.  When the crime charged is an alternative means crime, and the jury is so instructed, a defendant may also have a right to a unanimous jury determination as to the means by which it was committed.

However, if there is sufficient evidence to support each of the alternative means of committing the crime, express jury unanimity as to which means is not required. The jury must particularize unanimity as to the means only if there is insufficient evidence to support any means.  State v. Ortega-Martinez, 124 Wn.2d 702, 707–08, 881 P.2d 231 (1994). The state asked the court to adopt the federal standard, which does not require unanimity as to the means regardless of whether there is sufficient evidence to support each of the alternative means.  See Griffin v. United States, 502 U.S. 46, 56, 1 12 S. Ct. 466, 116 L. Ed. 2d 3 71 (1991).  However, the right to a unanimous jury verdict comes from the Washington constitution, not the federal constitution, so the court rejected that argument.

In this case, Owens was convicted of first degree trafficking in stolen property, among other charges.  On appeal, he argued the conviction should be reversed because RCW 9A.82.050 describes eight alternative means of committing the crime and there was insufficient evidence to support at least one of those eight means.

Both sides agreed that RCW 9A.82.050 is an alternative means crime, but disagreed about what those alternative means are.

The statute provides:

[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 of trafficking in stolen property in the first degree. RCW 9A.82.050(1).

When analyzing alternative means crime cases courts have focused on the different underlying acts that could constitute the same crime. This court held, in State v. Peterson, 168 Wn.2d 763, 769,770,230 P.3d 588 (2010), that alternative means should be distinguished based on how varied the actions are that could constitute the crime. Id. at 770.

In this case, the Division I of the Court of Appeals held that RCW 9A.82.050(1) describes eight alternative means: “knowingly (1) initiating, (2) organizing, (3) planning, ( 4) financing, (5) directing, (6) managing, or (7) supervising the theft of property for sale to others, or (8) knowingly trafficking in stolen property.”  State v. Owens, noted at 174 Wn. App. 1052, 2013 WL 4018534, at *2 (2013).

In contrast, Division Two of the Court of Appeals analyzed the same statute, in State v. Lindsey, 177 Wn. App. 233,311 P.3d 61 (2013), and held that it describes only two alternative means of trafficking in stolen property. Id. at 241. It interpreted the statute as follows:

[T]he placement and repetition of the word “knowingly” suggests that the legislature intended two means. The first “knowingly” clearly relates to all seven terms in the first part of the statute … as a group … Similarly, the phrase “the theft of property for sale to others” relates to the entire group. Treating these terms as a group indicates that they represent multiple facets of a single means of committing the crime … If the statute described eight means, there would be no need to use the word “knowingly” again.

[Further], the first group of seven terms relates to different aspects of a single category of criminal conduct – facilitating or participating in the theft of property so that it can be sold. As a result, these terms appear to be definitional. They are examples of such facilitation or participation. And trafficking in stolen property involves a second, separate category – transferring possession of property known to be stolen – defined separately in [the definitional section of the statute]. Id. at 241-42.

 The WA Supreme Court agreed with Division II, partly because Division I only relied on its previous statement in State v. Strohm, 75 Wn. App. 301, 879 P.2d 962 (1994) that RCW 9A.82.050(2) had 8 alternative means, but it did not provide any comment or analysis.

The court further agreed with the State that the words listed in the first clause of RCW 9A.82.050 do not address distinct acts because of how closely related those terms are. Instead, they are merely different ways of committing one act, specifically stealing.