    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                              )       No. 71311-6-1                    .2.
                      Respondent,            ]                                 GS     .—'. C"


                                                      DIVISION ONE             ^      nv
               V.


                                                      UNPUBLISHED OPINION^ *g;
DAVID EARL WOODLYN,                           j
                      Appellant.             ]        FILED: March 9, 2015          -.-.- ££

         Appelwick, J. — Woodlyn appeals his conviction for theft in the second degree.

The State charged and the trial court instructed the jury on two alternative means of

committing theft. He claims the evidence was insufficient to support one of the means

so his conviction should be reversed. We can determine from the record that the jury's

verdict was based on only one means and it is undisputed that substantial evidence

supports that means. We affirm.

                                         FACTS


         In the summer of 2011, Dora Kjellerson was in her mid-70s and living in her

home in the White Center neighborhood in Seattle where she had resided for many

years.    A niece was staying with Kjellerson off and on during that summer.        Family

members were increasingly concerned about the decline in Kjellerson's mental status.

For instance, Kjellerson would sometimes forget who her sister was or would get lost on

walks around her neighborhood.

         Kjellerson did her banking at the White Center branch of the Bank of America,

which was walking distance from her house. Cynthia Cleary worked at the branch since

1998.     In the summer of 2011, Cleary was the assistant branch manager and had

noticed that Kjellerson was finding it increasingly difficult to remember things.
No. 71311-6-1/2




According to Cleary, Kjellerson had always been "very on top of her banking," but by

2011, she no longer knew how much money she had in the bank and appeared to be

confused by changes in her balance amount.

       David Woodlyn performed yard work around Kjellerson's neighborhood in the

summer months to supplement his social security income. Woodlyn did not have a

bank account at the White Center Bank of America branch, but he went there on

occasion to cash checks written to him as payment for yard work. The amount of the

checks generally ranged between $40 and $60.            Sometime around August 2011,

Woodlyn went to the White Center branch to cash a check written by Kjellerson. The

amount of the check was less than $100. Because Kjellerson's signature on the check

looked a "little off," Cleary called Kjellerson to verify that she wrote the check. Based on

her conversation with Kjellerson, Cleary cashed the check.

       On August 27, 2011, Woodlyn and Kjellerson came to the bank together.

Although they approached a different teller window, Cleary saw them and stepped in to

assist them.   Woodlyn, speaking for Kjellerson, told Cleary they wanted to make a

withdrawal from Kjellerson's account. When Cleary asked how much they needed to

withdraw, Woodlyn responded, "How much does she have[?]" Cleary asked to speak to

Woodlyn and Kjellerson in the lobby and told Woodlyn she would not provide that

information. Woodlyn became agitated and appeared to want to leave with Kjellerson.

To prevent him from doing so, Cleary took Kjellerson to the manager's office and called

the police. Woodlyn left the bank. Cleary asked Kjellerson what the withdrawal was for,

and Kjellerson said Woodlyn needed money to cut the grass. Kjellerson could not tell

Cleary how much Woodlyn needed or how much she had already paid him.
No. 71311-6-1/3




        King County Sheriff's Deputy Michael McDonald responded to the call from the

bank.    Kjellerson also told the deputy that she was withdrawing money that day so

Woodlyn could mow her grass.        When the deputy asked how much Kjellerson had

already paid Woodlyn in the month of August, she said, "about $60."               Deputy

MacDonald drove Kjellerson home and noticed that the grass in her yard was

overgrown and about a foot high.

        After this incident, Bank of America investigated Kjellerson's account and

discovered that during an approximately three week period in July and August 2011,

Woodlyn cashed seven checks written from Kjellerson's account. The amounts of the

initial checks were less than $100, but gradually rose to figures above $400 and the

total amount of the checks exceeded $1,800.

        Also following this incident, Kjellerson's sister obtained power of attorney over

Kjellerson's accounts. And on September 9, 2011, geriatric mental health specialist

Judith Newman evaluated Kjellerson. Newman concluded that Kjellerson was suffering

from moderate to severe dementia. Newman determined that Kjellerson had "[n]o short

term memory" and needed supervision.         Newman described Kjellerson's deficits as

obvious and said that "by about the second or third sentence somebody would know

something was wrong."

        Also in September 2011, a detective from the King County Sheriff's office and an

investigator from Adult Protective Services attempted to interview Kjellerson about the

money paid to Woodlyn in the previous two months. Kjellerson, however, was not able

to answer their questions or even basic background questions.
No. 71311-6-1/4




      The State charged Woodlyn with theft in the second degree alleging that he "did

wrongfully obtain and exert unauthorized control" over property belonging to Kjellerson

and did obtain control over such property by "color and aid of deception." See RCW

9A.56.020.


      Woodlyn testified at trial that he met Kjellerson when he knocked at her door in

2011 and offered to mow her lawn. He said Kjellerson accepted his offer, he charged

her $60 because her yard was large, and she paid him in cash.1 Woodlyn said he

returned to Kjellerson's home a few weeks later and spoke to a woman he assumed to

be Kjellerson's daughter who paid him $90 to do additional yard work. Woodlyn said

that on August 27, the yard needed to be mowed again, but Kjellerson did not have the

money.   Because Kjellerson said she could not remember where her bank was, he

offered to take her.    Woodlyn said he had cut Kjellerson's grass three to five times

before that date.      According to Kjellerson's niece, however, Kjellerson's yard was

unmaintained and overgrown during that period in the summer of 2011.

      With regard to the checks, Woodlyn testified that he cashed them as a favor to

Kjellerson and gave the cash to her. Woodlyn admitted that he filled in his name and

the amounts of the checks.        He said he did other favors for Kjellerson, including

purchasing cigarettes and groceries for her, and cleaning up her house on a couple of

occasions. Kjellerman did not testify.




      1 Two other lawn customers who testified on Woodlyn's behalf said they paid him
approximately half that amount to mow their yards.
No. 71311-6-1/5




       The jury found Woodlyn guilty as charged.2

                                        ANALYSIS


       Woodlyn alleges a violation of his right to a unanimous verdict, because the State

failed to present sufficient evidence to support both of the charged alternative means of

committing theft.

       In Washington, criminal defendants have a constitutional right to a unanimous

jury verdict. Wash. Const, art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707,

881 P.2d 231 (1994).        "This right may also include the right to a unanimous jury

determination as to the means by which the defendant committed the crime when the

defendant is charged with (and the jury is instructed on) an alternative means crime."

State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014).

       Alternative means statutes identify a single crime and provide more than one

means of committing that crime. State v. Williams, 136 Wn. App. 486, 497, 150 P.3d

111 (2007). Theft is an alternative means crime. State v. Linehan, 147 Wn.2d 638,

644-45, 647, 56 P.3d 542 (2002); RCW 9A.56.020. With respect to each alternative

means of committing theft set forth in the statute, the prohibited conduct varies

significantly. State v. Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 (2010).

       Consistent with the information, the trial court's instructions required the jury to

find that that Woodlyn committed the crime of theft by two alternative means:           (1)

wrongfully obtaining the property of another or (2) obtaining control over the property of



       2 A jury convicted Woodlyn following a second trial. The first trial ended in a
mistrial after a juror disclosed personal knowledge of one of the State's witnesses
midway through the trial.
No. 71311-6-1/6




another by color or aid of deception.3 These two means are commonly referred to as

"theft by taking" and "theft by deception." State v. Smith. 115 Wn.2d 434, 438, 798 P.2d

1146 (1990).      The instructions also informed the jury that it did not need to be

unanimous as to the means relied upon.

      When there is sufficient evidence to support each of the charged alternative

means of committing the crime, express jury unanimity as to which means is not

required.   Owens, 180 Wn.2d at 95.        "If, however, there is insufficient evidence to

support any means, a particularized expression of jury unanimity is required." Owens,

180Wn.2dat95.

       In this case, the parties do not dispute the insufficiency of the evidence to

establish that Woodlyn committed theft by "wrongfully obtaining" Kjellerman's property.

The State expressly concedes "[n]o evidence of theft by taking was presented to the

jury." And, indeed, the State did not allege that Kjelleman did not give the checks to

Woodlyn or that she did not sign them.      Instead, the State advanced only the theory

that, taking advantage of Kjellerman's compromised memory and diminished mental

capacity, Woodlyn deceived her into believing she owed him payment for work.




       3 RCW 9A.56.020 defines the crime of theft and provides, in relevant part:

       (1) "Theft" means:

            (a) To wrongfully obtain or exert unauthorized control over the property
       or services of another or the value thereof, with intent to deprive him or
       her of such property or services; or

          (b) By color or aid of deception to obtain control over the property or
       services of another or the value thereof, with intent to deprive him or her of
       such property or services.
No. 71311-6-1/7




       But, the State argues that the defendant's constitutional right to a unanimous

verdict is protected when, as here, the State presented argument and evidence as to

only one means. State v. Witherspoon. 171 Wn. App. 271, 285, 286 P.3d 996 (2012),

aff'd, 180 Wn.2d 875, 329 P.3d 888 (2014); see ajso State v. Johnson. 132 Wn. App.

400, 410, 132 P.3d 737 (2006) (general verdict on burglary will generally stand "[s]o

long as there is sufficient evidence as to each means or so long as a reviewing court

can tell that the verdict was based on only one means which was supported by

substantial evidence"). Essentially, the State argues that the absence of express jury

unanimity is harmless when the reviewing court can be assured that the verdict was not

based on an unsupported alternative means.4

       Error in the "to convict" instruction may be subject to a harmless error analysis.

State v. DeRvke. 149 Wn.2d 906, 912, 73 P.3d 1000 (2003) (failure of to convict

instruction to specify the degree of rape attempted was harmless because another

instruction did so; therefore, the State was not relieved of its burden of proof).    Even

constitutional error related to a to convict instruction, such as the omission of an

essential element, is harmless error if it is clear beyond a reasonable doubt that the

error did not contribute to the verdict. Neder v. United States, 527 U.S. 1, 15, 119 S. Ct.

1827, 144 L. Ed. 2d 35 (1999); State v. Thomas. 150 Wn.2d 821, 844, 83 P.3d 970

(2004), abrogated in part on other grounds bv Crawford v. Wasington, 541 U.S. 36, 124

S. Ct. 1354, 158 L. Ed. 2d 177 (2004).



       4 In Owens, our Supreme Court recently declined to "articulate a harmless error
standard in the context of alternative means cases" finding no need to do so because in
that case, sufficient evidence supported both means of trafficking in stolen property.
Owens. 180Wn.2dat101.
No. 71311-6-1/8



      This court has affirmed convictions in analogous cases where there was

insufficient evidence to support a charged alternative means but the State did not argue

or otherwise attempt to prove that means. For example, in State v. Rivas. 97 Wn. App.

349, 352, 984 P.2d 432 (1999), disapproved on other grounds by State v. Smith. 159

Wn.2d 778, 154 P.3d 873 (2007), the State charged the defendant with assault in the

second degree. Because "assault" is not defined by the criminal code, courts use the

common law to define the crime, jd. The trial court instructed the jury on three common

law means of committing assault: (1) battery; (2) attempted battery; and (3) assault.5 Jd.

at 352-53. Rivas argued and we agreed that no evidence was offered at trial to support

battery or attempted battery. Id. at 351-52. However, the charging document alleged

only that Rivas "held a knife to the [victim's] throat." jd. at 353. And, during argument,

the State "focused only" on the third common law definition of assault.      Id. On that

record, we determined that the jury verdict was based entirely on one alternative means

of committing assault, of which there was substantial evidence in the record. Id. at 354-

55. We affirmed the conviction because "there was no danger that the jury's verdict

rested on an unsupported alternative means." jd. at 355.

      More recently, Division Two of this court considered a similar case where the jury

was instructed on an unsupported means of committing the crime. Witherspoon, 171




      5 The Supreme Court disapproved of our decision in Rivas to the extent that it
"can be read as endorsing a hard and fast rule that the common law definitions of
assault constituted alternative means of committing assault, thereby requiring
substantial evidence to support each of the alternative means charged or instructed."
Smith, 159Wn.2dat787.
No. 71311-6-1/9




Wn. App. at 286-87.6 In that case, the State charged the defendant with all three

alternative means of witness tampering and the jury was instructed as to all three

means. Id. at 285. The parties conceded that the State did not argue or attempt to

prove one of the charged means, but there was substantial evidence to support the

other two alternative means.    Id. at 286-87. Based upon its determination that there

was no danger the jury's verdict was based on the single unsupported alternative

means, the court affirmed Witherspoon's conviction. Id. at 287.

       Here also, the trial record shows that the State focused on proving only the "theft

by deception" alternative. The prosecution's examination of witnesses during its case in

chief developed facts related to Kjellerman's mental state, her apparent belief that she

was paying Woodlyn for lawn maintenance work, and her lack of awareness as to how

much she had already paid him.         In closing argument, the prosecutor omitted the

reference to the "theft by taking" alternative means when she read the to convict

instruction to the jury and discussed only "theft by deception."

       Nevertheless, Woodlyn argues that this court cannot tell whether the jury's

verdict rested on the unsupported alternative means. Woodlyn points out that theft by

wrongfully obtaining property of another requires proof of nonconsent.      See State v.

D.H., 31 Wn. App. 454, 458, 643 P.2d 457 (1982) ("[njonconsent of the owner is an

element of the crime of theft"). But, the court's instructions did not specifically inform

the jury that Woodlyn could not wrongfully obtain Kjellerman's property unless he took

her property without her consent. Accordingly, Woodlyn maintains that although the

      6 The Supreme Court's grant of review in Witherspoon did not encompass any
issue specifically pertaining to his witness tampering conviction. Witherspoon, 180
Wn.2d at 882.
No. 71311-6-1/10



State did not seek to prove theft by taking, the instructions allowed the jury to rely on

this alternative means. But, deception was the only basis for the jury to have concluded

that Woodlyn's acceptance of Kjellerman's checks she voluntarily gave him was

"wrongful." And as explained, alternative means are "distinct acts" that constitute the

same crime. Peterson. 168 Wn.2d at 770. According to Woodlyn's argument, the jury

would have to interpret theft by taking as indistinct from theft by deception.

       The record amply demonstrates that the State's case against Woodlyn and the

jury's verdict rested solely on proof that he obtained control of her property by color or

aid of deception. And, because, as Woodlyn acknowledges, this alternative means was

supported by sufficient evidence, any error was harmless.

       We affirm.




WE CONCUR:



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