      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON s                             c^c
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THE STATE OF WASHINGTON,                                                       cr
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                                                 DIVISION ONE
                     Respondent,
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                                                 No. 73564-1-1
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                                                                               •   •   £') '-J"1
                                                 PUBLISHED OPINION             en      <d>~
ROBERT LEE TYLER,

                     Appellant.                  FILED: August 15, 2016


      Dwyer, J. — The strictures of the Fourteenth Amendment, enacted in

1868, have applied to the state ofWashington since its admittance into the Union
on November 11, 1889. The standard of proof guaranteed by the Fourteenth

Amendment's due process clause provides the sole basis upon which

Washington courts review criminal convictions for evidentiary sufficiency.
Recently, the United States Supreme Court clarified this federal constitutional
standard as it applies to assessing the government's proof of "additional

elements" set forth in a to-convict instruction—those that are not essential

elements of the charged crime. The Court instructs that these "additional

elements" are to be disregarded and that the evidentiary sufficiency of the

government's proof must be assessed solely against the essential elements of
the charged crime.

       In this case, Robert Tyler was charged with possession of a stolen vehicle.

The trial court's to-convict instruction unnecessarily included definitional terms
No 73564-1-1/2



that are not essential elements of that crime. Tyler contends on appeal that the

to-convict instruction thereby created alternative means of committing the offense

and that (given Washington's requirement of jury unanimity) the charges against

him must be dismissed with prejudice unless the State proved each of the "false

alternative means" beyond a reasonable doubt.

      The United States Supreme Court is the paramount authority on the

federal constitution. Given that Court's explication on the interplay between the

due process clause's reasonable doubt requirement and trial court-created
"additional elements" of crimes, it is apparent that prior Washington case

authority on this subject no longer properly states the law. Instead, as the United
States Supreme Court and the Fourteenth Amendment's due process clause
command, the government's proof must be assessed against the essential
elements of the charged crime, not against "additional elements" or "false
alternative means" created by a trial judge and inserted into a to-convict

instruction. Pursuant to this understanding, the State adduced sufficient

evidence to support Tyler's conviction and that conviction was reached by a
unanimous jury. Accordingly, we affirm.

                                          I


       Bruce Champagne found that his car, a white Honda Accord sedan, was
stolen from his driveway. Around 2:30 a.m. the following early winter morning,
Deputy Sheriff Scott Stich was patrolling near a service road surrounded by deep
forest near Darrington, Washington. About one-half mile up a gravel roadway,
the deputy encountered two vehicles parked 20 feet apart, a white Honda sedan
No 73564-1-1/3



and a pick-up truck. The deputy saw that the sedan was lifted up on a jack such

that its driver's side wheels were in the air.

         Upon approaching the pick-up truck, the deputy found four people located

thusly: Robert Tyler and Rebekah Nicholson were inside the truck's passenger

cabin; Tyson Whitt was partially covered by a tarp in the bed of the pick-up; and

Anthony Coleman was standing outside of the truck.

         The deputy, from outside the truck, spoke with Tyler, who was inside the

passenger cabin. Tyler stated that he owned the truck and produced a

corresponding bill of sale. Looking inside the truck's passenger cabin, the deputy
observed what appeared to be parts stripped from a car (a disconnected car

stereo and disconnected speakers). Upon an inquiry by the deputy, Tyler stated

that he did not know anything about the items, neither how they happened to be

in his truck nor to whom they belonged. Tyler further stated that he was there

helping a friend, but did not specify who he was helping or where the friend was
located. Additionally, when asked who owned the Honda, Tyler stated that he

did not know.

         Upon inspection ofthe sedan, the deputy observed that it appeared as if it
was being stripped ofparts. The bolts on the suspended wheels were partially
loosened. Looking inside the sedan's passenger cabin, the deputy noticed that it
was missing its stereo and front door speakers. In the sedan's ignition, the
deputy found a key with a Chrysler manufacturer's logo thereon and noted that
the key had been "shaved," a modification commonly associated with vehicle

theft.




                                                 -3-
No 73564-1-1/4



       The deputy then conducted a computer search of the sedan's license

plate number. He learned that the sedan had been reported stolen. He then
contacted Champagne, the vehicle's owner. During their discussion, the deputy

determined that the brand of car stereo that Champagne said had been in his

sedan matched that of the disconnected car stereo now located in the passenger

cabin of Tyler's truck.

        The deputy again spoke with Tyler. When Tyler failed to give the deputy
direct answers regarding the items in his truck's cabin, the deputy arrested him.
        During a subsequent interrogation, Tyler explained that he had followed
Whitt to the service road as a favor to Whitt's parents. Tyler also said that he

saw Whitt taking parts out of the sedan. From this, Tyler reasoned that the
sedan Whitt was driving had been stolen.1 Tyler reiterated, however, that he
himself did not steal the vehicle.

        Tyler was charged with one count of possession of a stolen vehicle.2
        The trial court's to-convict instruction read, in part, as follows:

                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 ofJanuary, 2014, the
        defendant knowingly received, retained, possessed, concealed,
        disposed of a stolen motor vehicle.

Jury Instruction 4.




         1Whitt was subsequently arrested, charged, and convicted ofstealing the sedan.
         2"A person is guilty of possession of a stolen vehicle if he or she possess [possesses] a
 stolen motor vehicle." RCW 9A.56.068(1) (alteration in original).
No 73564-1-1/5



      The jury found Tyler guilty. He was sentenced to 45 days of confinement.

The court also imposed the mandatory $100 DNA fee and $500 victim penalty

assessment.

                                          II


                                          A


       The due process clause ofthe Fourteenth Amendment mandates that no
state shall "deprive any person of life, liberty, or property, without due process of
law." U.S. Const, amend. XIV, § 1. In a criminal prosecution, "the Due Process

Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is
charged." InReWinship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368
(1970). On an appeal from a criminal conviction, due process further guarantees
a defendant the right to challenge the sufficiency of the evidence proffered by the
government. Jackson v. Virginia, 443 U.S. 307, 314-16, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979).

       Washington's constitution has never been interpreted to include a proof
beyond a reasonable doubt guarantee. Instead, prior to Winship, "[t]he
requirement of proof beyond a reasonable doubt ha[d]. . . only common law and
statutory origins." State v. Odom, 83 Wn.2d 541, 546, 520 P.2d 152 (1974); see
former RCW 9A.04.100(1) (1975) ("No person may be convicted of a crime
 unless each element of such crime is proved by competent evidence beyond a
 reasonable doubt."); Rem. &Bal. Code § 2308 (1910) ("Every person charged




                                               -5-
No 73564-1-1/6



with the commission of a crime shall be presumed innocent until the contrary is

proved by competent evidence beyond a reasonable doubt.").3
       Washington courts apply the federal constitutional standard for appellate
review of the evidentiary sufficiency of the government's proof in a criminal case.

This is best evidenced by our Supreme Court's alteration of its evidentiary

sufficiency analysis in State v. Green, 91 Wn.2d 431, 588 P.2d 1370 (1979)
(Green I), as reconsidered in State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980)

(Green II).

        In Green I, the court reviewed a challenge to the sufficiency of the

evidence ofthe element of kidnapping necessary to support a conviction for
aggravated murder in the first degree. 91 Wn.2d at 442-43. In assessing the
sufficiency of the evidence, the court applied the then-prevailing "substantial
evidence" test, limiting its review "to a determination of whether the State has
produced substantial evidence tending to establish circumstances from which a
jury could reasonably infer the fact to be proved." Green I, 91 Wn.2d at 442.
The court concluded that there existed "substantial evidence from which the jury
could infer appellant killed while in the course of or in furtherance of the
 statutorily defined offense of kidnapping." Green I, 91 Wn.2d at 444.
        Soon after the filing of the Green Idecision, the United States Supreme
 Court issued its opinion in Jackson.




         3See also State v. Donckers. 200 Wash. 45, 50, 93 P.2d 355 (1939) ("'It is sufficient if
 the evidence produce moral certainty, to the exclusion of every reasonable doubt.'" (quoting 8
 Ruling Case law Criminal Law § 222, at 227 (1915))).
No 73564-1-1/7



      Priorto Jackson, the applicable federal standard was the then-prevailing

"no evidence" criterion of Thompson v. City of Louisville. 362 U.S. 199, 80 S. Ct.

624, 4 L. Ed. 2d 654 (1960), which held that "a conviction based upon a record

wholly devoid of any relevant evidence ofa crucial element ofthe offense
charged is constitutionally infirm." Jackson. 443 U.S. at 314.
       In Jackson, the Court's task was to decide whether the Fourteenth

Amendment due process standard recognized in Winship "constitutionally
protects an accused against conviction except upon evidence that is sufficient
fairly to support a conclusion that every element of the crime has been
established beyond a reasonable doubt." Jackson. 443 U.S. at 313-14.
       The Court held that "an essential of the due process guaranteed by the

Fourteenth Amendment" is that "no person shall be made to suffer the onus of a
criminal conviction except upon sufficient proof—defined as evidence necessary

to convince a trier offact beyond a reasonable doubt ofthe existence ofevery
element of the offense." Jackson. 443 U.S. at 316. The Court emphasized that
the inquiry on an evidentiary sufficiency review "must be not simply to determine
whether the jury was properly instructed, but to determine whether the record
evidence could reasonably support a finding of guilt beyond a reasonable doubt."
Jackson, 443 U.S. at 318. This inquiry, "imping[ing] upon [the fact-finder's]
discretion only to the extent necessary to guarantee the fundamental protection
 of due process of law," focuses on "whether, after viewing the evidence in the
 light most favorable to the prosecution, any rational trier of fact could have found
No 73564-1-1/8



the essential elements of the crime beyond a reasonable doubt." Jackson, 443

U.S. at 319.

      Where sufficient evidence does not support a conviction, the judgment of

guilt must be vacated, as such a conviction "cannot constitutionally stand."

Jackson, 443 U.S. at 318.

       In response to Jackson, our Supreme Court granted reconsideration of

Green I. In its reconsidered opinion, the court felt compelled to abandon the

"substantial evidence" standard previously applied by Washington courts. Green

II, 94 Wn.2d at 221. Instead, following Jackson, the court acknowledged the

applicability ofthe federal constitutional standard, holding that the proper inquiry
in an evidentiary sufficiency review "is whether, afterviewing the evidence most
favorable to the State, anyrational trier of fact could have found the essential
elements of kidnapping beyond a reasonable doubt." Green II. 94 Wn.2d at 221-
22 (citing Jackson. 443 U.S. at 319).

       In every such case since Green II. our Supreme Court has applied only
the federal constitutional standard announced in Jackson when reviewing

whether a conviction is supported by sufficient evidence. See, e.g., State v.

Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015); State v. Bencivenga, 137

Wn.2d 703, 706, 974 P.2d 832 (1999); State v. Luvene. 127 Wn.2d 690, 712,

903 P.2d 960 (1995).

       Thus, on appellate review ofa criminal conviction, Washington's sole
evidentiary sufficiency standard is that which the Fourteenth Amendment

requires.




                                             -8-
No 73564-1-1/9



                                         B


       Flowing from the principles discussed in Jackson, earlier this year the

United States Supreme Court decided Musacchio v. United States. 577 U.S.            ,

136 S. Ct. 709, 193 L. Ed. 2d 639 (2016), which clarified the proper elements

against which a court assesses a conviction's evidentiary sufficiency pursuant to

the Fourteenth Amendment.

       The Supreme Court had granted review to determine whether "the

sufficiency ofthe evidence in a criminal case should be measured against the
elements described in the jury instructions where those instructions, without

objection, require the Government to prove more elements than do the statute
and indictment." Musacchio. 136 S. Ct. at 714. Musacchio's trial judge

erroneously added an element to the to-convict instruction that was not part of
the charged crime and the jury returned a guilty verdict. Musacchio. 136 S. Ct. at
714.

       The Supreme Court held that, "when a jury instruction sets forth all the
elements ofthe charged crime but incorrectly adds one more element, a
sufficiency challenge should be assessed against the elements of the charged
crime, not against the erroneously heightened command in the jury instruction."
Musacchio, 136 S. Ct. at 715 (emphasis added). In reaching its holding, the
Court explained that, "[a] reviewing court's limited determination on sufficiency
review thus does not rest on how the jury was instructed." Musacchio, 136 S. Ct.
at 715. Rather, "[sufficiency review essentially addresses whether 'the
government's case was so lacking that it should not have even been submitted to


                                             -9-
No 73564-1-1/10



the jury.'" Musacchio. 136 S. Ct. at 715 (quoting Burks v. United States. 437
U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978)). Citing to Jackson, the Court

reaffirmed that "[a]ll that a defendant is entitled to on a sufficiency challenge is for

the court to make a 'legal' determination whether the evidence was strong

enough to reach a jury at all." Musacchio, 136 S. Ct. at 715 (citing Jackson. 443
U.S. at 319).

       The law-of-the-case doctrine does not apply to change this result, the

Court held, because an evidentiary sufficiency challenge is not properly

influenced by how the jury was instructed. Musacchio. 136 S. Ct. at 715.
Indeed, the law-of-the-case doctrine "does not bear on how to assess a

sufficiency challenge when a jury convicts a defendant after being instructed—
without an objection by the Government—on all charged elements of a crime
plus an additional element." Musacchio. 136 S. Ct. at 716.
        Rather, a reviewing court conducting an evidentiary sufficiency inquiry
must consider "'whether, afterviewing the evidence in the light mostfavorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'" Musacchio, 136 S. Ct. at 715 (quoting
Jackson. 443 U.S. at 319). "The Government's failure to introduce evidence of
an additional element does not implicate the principles that sufficiency review

 protects." Musacchio. 136 S. Ct. at 715.
                                            C


        Tyler asserts that Musacchio is inapplicable to the issues herein. This is
 so, he contends, because Washington's law-of-the-case doctrine requires the


                                                -10-
No 73564-1-1/11



reviewing court to assess the evidentiary sufficiency of the government's proof

against the elements set forth in the to-convict instruction, notwithstanding that

one or more of the elements set out are not essential elements of the charged

crime. For this proposition, Tyler relies on State v. Hickman. 135 Wn.2d 97, 954

P.2d 900 (1998), and State v. Haves, 164 Wn. App. 459, 262 P.3d 538 (2011).

Both decisions support his point of view. Neither now correctly states the law.

                                          1


       In Hickman, our Supreme Court considered whether it should assess the

evidentiary sufficiency of the prosecution's proof against an additional element
(therein venue) because the trial court's to-convict instruction mistakenly included
venue as an element, even though venue was not an essential element of the

charged crime ofinsurance fraud. 135 Wn.2d at 101-03. The court resorted to
Washington's law-of-the-case doctrine for the proposition that not-objected-to
jury instructions become the law of the case and that the prosecution "assumes
the burden of proving otherwise unnecessary elements of the offense." Hickman,
135 Wn.2d at 101-02. Then, in setting out the applicable standard of review, the

court quoted the federal constitutional standard articulated in Jackson and
applied in Green II. Hickman, 135 Wn.2d at 103.
       Combining these premises, the court then analyzed whether the
prosecution adduced sufficient evidence of the additional element of venue to
support the insurance fraud conviction. Hickman. 135 Wn.2d at 104-06. Finding




                                              -11-
No 73564-1-1/12



that it had not done so, the court reversed the conviction and ordered that the

charge be dismissed with prejudice.4 Hickman. 135 Wn.2d at 105-06.

          In light of Musacchio. Hickman's evidentiary sufficiency analysis no longer

properly states the law, nor does its analytical pairing of the federal due process

appellate evidentiary sufficiency test with the law-of-the-case doctrine. Indeed,

the reasoning and result in Hickman are directly at odds with the Fourteenth

Amendment's evidentiary sufficiency standard, as articulated in Musacchio.5
Because Washington courts apply the federal constitutional standard for

evidentiary sufficiency review, decisions of the United States Supreme Court are
the paramount authority on the standard's proper application. N. Pac. Rv. Co. v.
Longmire. 104 Wash. 121, 125, 176 P. 150 (1918). "The United States Supreme

Court is, of course, the ultimate authority concerning interpretation ofthe federal
constitution." State v. Hess, 12 Wn. App. 787, 792, 532 P.2d 1173, affd, 86

Wn.2d51,541 P.2d 1972 (1975V accord S.S. v. Alexander. 143 Wn. App. 75,

92, 177 P.3d 724 (2008) (United States Supreme Court is the ultimate authority
concerning the interpretation of federal law). Accordingly, Musacchio
supersedes all inconsistent interpretations by the courts of this state.6


          4"The double jeopardy clause ofthe Fifth Amendment to the U.S. Constitution protects
against a second prosecution for the same offense, after acquittal, conviction, or a reversal for
lack of sufficient evidence." State v. Hardestv. 129Wn.2d303, 309, 915P.2d 1080(1996). Our
state constitutional double jeopardy clause, Wash. Const., art. I, § 9, "is interpreted in the same
manner as thefederal provision." State v. Pascal. 108 Wn.2d 125, 131 n.1, 736 P.2d 1065
(1987).
          5Our Supreme Court was not alone in having decisional authority superseded in this
manner See, e.g.. United States v. Musacchio. 590 F. Appx. 359, 361 (5th Cir. 2014); United
States v. Romero. 136 F.3d 1268, 1271-72 (10th Cir. 1998) (applying the Jackson standard to
additional elements per the law-of-the-case doctrine).
          6When the Washington Supreme Court has announced a rule ofstate law, that
 pronouncement will be altered only when the rule announced is shown to be both incorrect and
 harmful. In re Determination of Stranger Creek, 77 Wn.2d 649, 466 P.2d 508 (1970). This test


                                                    -12-
No 73564-1-1/13




       In Haves, we extended the rule in Hickman to purported alternative means

of committing an offense that were erroneously included in a to-convict

instruction. Haves addressed the same issue as is now before us—whether, in a

prosecution for possession of a stolen vehicle, the evidentiary sufficiency of the

state's proof is properly assessed against the elements set out in a to-convict
instruction when the to-convict instruction erroneously included a five-item

definitional list that collectively defines an element (possession) but do not, as to

each term, constitute separate elements of the charged crime.7 164 Wn. App. at
480-81. We then applied the analytical construct set forth in Hickman. Compare

Haves, 164 Wn. App at 480-81. with Hickman, 135Wn.2d at 102.

        Pursuant to Hickman's coupled application of the federal due process

evidentiary standard of review and the law-of-the-case doctrine, we assessed the
sufficiency of the evidence against the to-convict instruction's definitional list,
treating each definitional term as an alternative means that the prosecution was
required to prove. Haves, 164 Wn. App. at 481. We emphasized that we were
treating the definitional terms as alternative means, "not because they
necessarily are alternative means, but because they were listed in the to-convict
instruction[]."8 Haves. 164 Wn. App. at 481. Finding that the State failed to meet
its burden of proving that the defendant had "disposed of the vehicle, we



does not apply to a state Supreme Court pronouncement of federal law that is at odds with a
ruling of the United States Supreme Court.
         7The same mistake was made by the trial court herein. The list of terms is set forth and
discussed in section III, infra.
        8 We use the term "false alternative means" to describe this circumstance.


                                                    -13-
No 73564-1-1/14



reversed the conviction and dismissed the charge. Haves. 164 Wn. App. at 481.

As with Hickman, our analysis in Haves no longer properly states the law.

        The cases upon which Tyler relies for his Fourteenth Amendment

evidentiary sufficiency claim have been superseded by the United States

Supreme Court's decision in Musacchio. Accordingly, we reject Tyler's assertion

that Musacchio is inapplicable to the issues herein.

                                                D


        In light of Musacchio, then, Washington courts have previously

misinterpreted the scope of the Fourteenth Amendment's due process

protections pertaining to evidentiary sufficiency review. Our courts have
erroneously reviewed the State's proof for evidentiary sufficiency measured
against additional elements or means set out in a to-convict instruction when
those additional elements or means were not provided for in the charged crime.

        Musacchio makes it clear that a reviewing court is to disregard "additional

elements" and "false alternative means" set out in a to-convict instruction and,

instead, must evaluate the sufficiency ofthe evidence based on the essential
elements of the charged crime as enacted by the legislature.9
        This framework is in accordance with the understanding that it is the

legislature, and not the trial court, that possesses the constitutional authority to
create a crime. See, e.g.. State v. Feilen. 70 Wash. 65, 70, 126 P. 75 (1912)


        9This does not change Washington's evidentiary sufficiency analysis when the charged
crime actually sets forth alternative means by which it may be committed. See, e.g., State v.
Sweanv, 174 Wn.2d 909, 914, 281 P.3d 305 (2012) ("When a defendant challenges the
sufficiency of the evidence in an alternative means case, appellate review focuses on whether
 'sufficient evidence supports each alternative means.'" (quoting State v. Kintz. 169 Wn.2d 537,
 552, 238 P.3d 470 (2010))).


                                                    -14-
No 73564-1-1/15



(legislature has "'the inherent powerto prohibit and punish any act as a crime'"

(internal quotation marks omitted) (quoting State v. Woodward. 69 S.E. 385, 387

(1910))); State v. Danis. 64 Wn. App. 814, 820, 826 P.2d 1096 (1992) ("The

Legislature has extremely broad, almost plenary authority to define crimes.").
The guarantee ofthe Fourteenth Amendment applies only to actual crimes, duly
enacted. It does not apply to crimes created by mistake in an erroneous jury

instruction.

                                              Ill


       Tyler was charged pursuant to RCW 9A.56.068, which reads, "(1) A
person is guilty of possession of a stolen vehicle if he or she possess
[possesses] a stolen motor vehicle. (2) Possession of a stolen motor vehicle is a
class B felony." (Alteration in original.)

       The trial court's to-convict instruction reads as follows:

               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 ofJanuary, 2014, the
        defendant knowingly received, retained, possessed, concealed,
        disposed of a stolen motor vehicle;
               (2) That the defendant acted with knowledge that the motor
        vehicle had been stolen;
               (3) That the defendant withheld or appropriated the motor
        vehicle to the use of someone other than the true owner or person
        entitled thereto;
               (4) That any of these acts occurred in the State of
        Washington.
              If you find from the evidence that each ofthese elements
        has been proved beyond a reasonable doubt, then it will be your
        duty to return a verdict of guilty.
               On the other hand, if, after weighing all the evidence, you
        have a reasonable doubt as to any one of these elements, then it
        will be your duty to return a verdict of not guilty.



                                                    -15-
No 73564-1-1/16



Jury Instruction 4 (emphasis added).

       In Haves, we stated that the five-item definitional list included in the to-

convict instruction obligated the State to prove each of the items as alternative

means. 164 Wn. App. at 481. Importantly, however, we noted that the means

set forth therein were not "necessarily" alternative means. Haves, 164 Wn. App.

at 481. Rather, we understood that the crime of possession of a stolen vehicle

is, in actuality, a single means crime.10
        Recent authority supports this view. In State v. Sandholm. 184Wn.2d
726, 364 P.3d 87 (2015), and State v. Owens, 180 Wn.2d 90, 323 P.3d 1030
(2014), our Supreme Court explicated on the concept of alternative means.
"[T]he alternative means doctrine does not apply to mere definitional instructions;
a statutory definition does not create a 'means within a means.'" Owens, 180
Wn.2d at 96 (quoting State v. Smith, 159 Wn.2d 778, 787, 154 P.3d 873 (2007)).
        The language of the statute is clear. "A person is guilty of possession of a
stolen vehicle if he or she possess [possesses] a stolen motor vehicle." RCW
9A.56.068(1) (alteration in original). Thus, the single means of committing the
offense is to "possess" a stolen vehicle.

        "Possession" is defined by use of the definition of"possessing stolen

property," which reads,

        "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.


         10 Although our evidentiary sufficiency analysis in Haves is no longer sound, our
 underlying interpretation ofRCW 9A.56.068(1) remains sound.

                                                    -16-
No 73564-1-1/17



RCW 9A.56.140(1) (emphasis added).

       Indeed, our Supreme Court recently ruled that the language of RCW

9A.56.140(1) is merely definitional and does not set forth essential elements of

the offense of possession of a stolen vehicle. State v. Porter. No. 92060-5, 2016

WL 3910995, at *3 (Wash. July 14, 2016). Thus, the definitional alternatives set

forth in RCW 9A.56.140(1) are not alternative means of committing the crime

established in RCW 9A.56.068(1). Rather, they are merely definitional

alternatives.

       Herein, ample evidence was adduced at trial that Tyler "possessed" a
stolen vehicle, per RCW 9A.56.068(1), as defined by RCW 9A.56.140(1).
Indeed, no party contests this.

                                         IV

       Tyler next claims that, due to the wording of the to-convict instruction, the
jury may not have been unanimous in its verdict. We disagree.
       In Washington, a criminal defendant is entitled to a unanimous jury verdict.
Wash. Const, art. I, § 21: State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304
(1980) (citing State v. Badda, 63 Wn.2d 176, 385 P.2d 859 (1963)). Tyler was
charged with one count of possession of a stolen vehicle under RCW
9A.56.068(1). Properly understood, this statute creates a single means crime. A
 unanimous jury convicted Tyler as charged. Accordingly, the jury's verdict as to
the single means crime of possession of a stolen vehicle was necessarily
 unanimous as to the means by which it was committed.




                                              -17-
No 73564-1-1/18



                                            V


       One final note. In his attempt to divorce his claim for relief from the

guarantees of the federal constitution, Tyler completely undercuts his argument

that the proper form of appellate relief is dismissal with prejudice.

       When the State does not present a constitutionally sufficient quantum of

evidence to support a conviction (as measured by the Fourteenth Amendment's

due process clause), the Fifth Amendment's double jeopardy clause bars retrial.

State v. Hardestv, 129 Wn.2d 303, 309, 915 P.2d 1080 (1996).

       When the quantum of evidence specified by the Fourteenth Amendment is

presented, however, retrial is not constitutionally barred. Indeed, this state of
affairs describes the vast majority of reversals arising from trial court error in

criminal cases.

       In his attempt to tie his law-of-the-case argument to Washington's
common law, Tyler necessarily condemns to failure his questfor dismissal with
prejudice. We say this because, at common law, a reversal based on the
prosecution's failure to prove the crime beyond a reasonable doubt resulted in
the grant of a new trial—not dismissal with prejudice. This rule is articulated in
two ancient cases.

       The law presumes the innocence of the appellant until his guilt is
       established beyond a reasonable doubt. We do not feel that we are
       invading the province ofthe jury in holding the evidence before us
        insufficient to warrant a conviction. . . .

               The judgment of the superior court is reversed, and the
        cause is remanded for a new trial.

State v. Pienick, 46 Wash. 522, 529, 90 P. 645 (1907).



                                                -18-
No 73564-1-1/19



                While we are [loath] to disturb the verdict of a jury on the
       ground of insufficiency of the evidence to justify the verdict, yet
       where the evidence as disclosed by the record is palpably
       insufficient to warrant the verdict, as we deem it to be in this case, it
       is our duty to say so and to award a new trial.

State v. Payne. 6 Wash. 563, 574, 34 P. 317 (1893).

       Thus, were Tyler to be presenting a common law insufficiency of the

evidence claim, the best result he could obtain would be a new trial.

       But a new trial would be a futile endeavor. Upon a retrial, a proper to-

convict instruction would surely be given. And both parties agree that the

evidence already presented was sufficient to sustain a guilty verdict, as
measured against the essential elements ofthe charged offense.
        When a new trial would invariably result in an identical decision, it can

safely be said either that the appellant has established no prejudice or that the
claimed errorwas harmless. This, at best, would be the fate ofTyler's revised
contention that he is entitled to relief based on Washington's common law (a

contention that we do not deem to be established on its merits).11


        11 Tyler also assigns constitutional and statutory error to the trial court's imposition of
mandatory assessments at his sentencing. The assessment of a mandatory assessment at
sentencing, standing alone, is not enough to raise constitutional concerns. State v. Curry, 118
Wn 2d 911 917 n 3 829 P.2d 166 (1992) (rejecting as premature a challenge to the imposition of
a victim penalty assessment); State v. Sheiton, No. 72848-2-I, 2016 WL 3461164, at*6 (Wash.
Ct App June 20, 2016) (rejecting as not ripe a challenge to an assessment of a DNA fee).
Rather "'[i]t is at the point of enforced collection ..., where an indigent may be faced with the
alternatives of payment or imprisonment, that he may assert a constitutional objection on the
ground of his indigency.'" Curry. 118 Wn.2d at 917 (emphasis added) (alteration in original)
(internal quotation marks omitted) (quoting State v. Curry, 62 Wn. App. 676, 681-82, 814 P.2d
1252 (199m Sheiton. 2016 WL 3461164, at *5.
         Tyler also contends that the sentencing court erred by assessing mandatory legal
financial obligations without considering, pursuant to RCW 10.01.130(3), his ability to pay.
However RCW 10 01 130(3) only requires an inquiry into a defendant's ability to pay
discretionary legal financial obligations. Sheiton. 2016 WL 3461164, at*6 (citing State v. Blazina,
 182 Wn 2d 827 837-38, 344 P.3d 680 (2015)). The assessments herein are mandatory.
 Sheiton 2016 WL 3461164, at *6 (pursuant to RCW 43.43.7541, the DNA fee is mandatory);
 Curry. 118 Wn.2d at 917 (pursuant to RCW 7.68.035(1), the victim penalty assessment is

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      Affirmed.




We concur:



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mandatory) The legislature unequivocally requires imposition of these assessments at
sentencing "without regard to finding the ability to pay." Sheiton. 2016 WL 3461164, at*6.
        Tyler has not established an entitlement to appellate relief.

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