  FILE
  IN CLERKI OFFICE                                       This opinion was filed for reCord
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   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                   )
                                       )      No. 88905-8
                     Petitioner,       )
                                       )
      v.                               )      EnBanc
                                       )
JERAMIE DAVID OWENS,                   )
                                       )
                     Respondent.       )
----·-                                 )      Filed           MAR 2 7 2014


      C. JOHNSON, J.--This case involves whether RCW 9A.82.050(1) describes

alternative means of committing first degree trafficking in stolen property, and if

so, whether substantial evidence supports each of the alternative means in this

case. The Court of Appeals, Division One, held that RCW 9A.82.050 describes

eight alternative means of committing the crime, and because there was

insufficient evidence to support at least one of those eight means, the court

reversed the defendant's conviction. We reverse the Court of Appeals, reinstate the

conviction, and hold that RCW 9A.82.050 describes only two alternative means,

and in this case, each is supported by sufficient evidence.
State v. Owens (.Jeramie David), No. 88905-8


                           FACTS AND PROCEDURAL HISTORY

       On July 2, 2010, Jeramie Owens and a friend went to the Motor City car

dealership in Mount Vern on, \Vashington, and inspected a 1967 Volkswagen (VW)

Beetle with a high-performance engine and a roof rack with a surfboard on top.

They took it out for a test drive, and Owens told the salesman he restored and

worked on VW s and had a VW tattoo on his back. They left without purchasing

the car or leaving their names. The next day, Saturday, July 3, 2010, the salesman

opened the dealership and discovered that the back gate to the car lot was open and

the padlock securing it had been cut off. The same 1967 VW Beetle that Owens

test drove the day before had been stolen off the lot, and one of the dealer's keys
       . .
was rmssmg.

       The next business day, Tuesday, July 6, 2010, Owens registered a 1971 VW

Beetle, the registration for which had expired in 1993. On July 28, 2010, in

response to a Craigslist advertisement posted by Owens, Craig Sauvageau

purchased the 1971 VW Beetle from Owens. Claiming he had lost the title, Owens

provided Sauvageau with an affidavit in lieu of title. Sauvageau took the car to an

auto shop to have it inspected and worked on. The mechanic discovered that parts

for a 1971 VW Beetle did not fit in the car and that a vehicle identification number

(VIN) plate on the car (matching the VIN for the 1971 Beetle registered by Owens



                                               2
State v. Owens (.feramie David), No. 88905-8


on July 6) appeared to be brand new and recently reinstalled with rivets. The

mechanic informed Sauvageau of these discrepancies, and Sauvageau called the

police to report the car as potentially stolen.

       When the officers arrived, they identified the confidential VIN on the car.

Confidential VINs are usually engraved on a car's frame in an area known only to

police. This confidential VIN did not match the newly installed VIN plate, but did

match the VIN for the 1967 VW Beetle reported stolen from Motor City on July 3,

2010. The vehicle was returned to Motor City, and Motor City employees noted

that it was missing the roof rack and surfboard, was painted a different color, and

had a different, more inferior engine than the original high-performance engine.

Sauvageau was able to identify Owens from a picture lineup, and the police

confirmed that Owens had a VW tattoo on his back. An officer drove by Owens's

residence and observed a yellow VW Beetle with a roof rack. Another officer

located another Craigslist post by Owens advertising a yellow "Baja" style VW

Beetle with a high-performance engine of the same model as the high-performance

engine in the stolen 1967 VW Beetle. This officer contacted Owens, posing as a

potential buyer for the yellow Beetle, and set up a meeting to see the car at

Owens's residence. At the meeting, Owens was arrested, and a search warrant was

executed on his residence.



                                               3
State v. Owens (Jeramie David), No. 88905-8


       During the search, the police recovered the stolen surfboard and a rivet gun.

The police also impounded the yellow Beetle, which contained an engine of the

same make and model and with the same aftermarket addition as the engine from

the originall967 Beetle stolen from Motor City. 1 Owens was advised of his rights

and he told the police that he had test driven the 1967 Beetle at Motor City on July

2, 2010, and ultimately purchased it from someone off of Craigslist, but could

provide no details regarding the purchase.

       Owens was charged with first degree taking a motor vehicle without

permission, first degree trafficking in stolen property, possession of a stolen

vehicle, and bail jumping (for missing a court date). The jury was instructed that it

must be unanimous as to Owens's guilt and to fill out the general verdict form. The

jury convicted Owens of trafficking in stolen property, possession of a stolen

vehicle, and bail jumping but acquitted him of taking a motor vehicle without

permission. On appeal, Division One affirmed the possession and bail jumping

convictions but held that there was insufficient evidence to support at least one of

the means by which Owens could have committed trafficking in stolen property.

As a result, the Court of Appeals reversed his trafficking conviction. State v.

Owens, noted at 174 Wn. App. 1052, 2013 WL 4018534 (2013). The State

        1
          The police were tinable to confirm that it was the same engine because they could not
locate a serial number on the engine.


                                                4
State v.· Owetzs (Jeramte David), No. 88905-8


petitioned for review, which this court granted. State v. Owens, 178 Wn.2d 1010,

311 P.3d 27 (2013).

                                           ANALYSIS

                    a. Jury Unanimity and Alternative Means Crimes

       Under article I, section 21 of the Washington Constitution, criminal

defendants have a right to a unanimous jury verdict. 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. In reviewing this type of challenge, courts apply

the rule that when 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. If, however, there is insufficient evidence to support any means, a

particularized expression of jury unanimity is required. State v. Ortega-Martinez,

124 Wn.2d 702, 707--08, 881 P.2d 231 (1994). 2 Owens argues, and the Court of


        2
          The State asks us to modify our approach to alternative means crimes to be parallel to
the federal standard. Under federal law, jury unanimity is not required as to the means by which
a defendant commits a crime, regardless of whether there is sufficient evidence to support each
of the alternative means. See Gr(ffin v. United States, 502 U.S. 46, 56, 1 12 S. Ct. 466, 116 L. Ed.
2d 371 (1991) ("Petitioner cites no case, and we are aware of none, in which we have set aside a
general verdict because one of the possible bases of conviction was ... merely unsupported by
suffi<;ient evidence."). J?ut the right to a unanimous jury verdict in criminal trials in Washington
is rooted in article I, section 21 of our state constitution and not the federal constitution. Thus, a
modification of our jury unanimity doctrine in reviewing an alternative means challenge would
be inconsistent with the state constitution, as well as many of our cases from at least the past 30
years. Thus, we reject the State's argument.


                                                   5
State v. Owens (Jerafnie David), No. 88905-8


Appeals agreed, that his conviction is invalid because there was no particularized

expression of jury unanimitY,· as to the means by which he trafficked in stolen

property and there was. insufficient evidence supporting at least one of the

alternative mcans. 3   ·


                                b. Statutory Interpretation

       The first issue is whether RCW 9A.82.050 is an alternative means crime

and, if so, what those alternative means are. This presents an issue of statutory

interpretation. Generally, an alternative means crime is one by which the criminal

con duet may be proved in a variety of ways. The legislature has not defined what

constitutes an alternative means crime or designated which crimes are alternative

means crimes. We have       determint;~d   that each case must be determined on its own

merits, but our few cases on the subject have established some guiding principles.

       One guiding principle is that the use of a disjunctive "or" in a list of methods

of committing the crime does not necessarily create alternative means of

committing the crime. State v. Peterson, 168 Wn.2d 763, 769,770,230 P.3d 588

(20 10). Another principle provides that the alternative means doctrine does not

apply to mere definitional instructions; a statutory definition does not create a

"means within a means." State v. Smith, 159 Wn.2d 778, 787, 154 P.3d 873 (2007).

        3
        Owens never objected to the charging information for the trafficking charge at trial,
moved for more specificity, objected to the jury instructions, or proposed new instructions.


                                                6
State v. Owens   ~feramie   David), No. 88905-8


       Both sides agree that RCW 9A.82.050 is an alternative means crime. At

issue is what those alternative means are. The statute provides that

       [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). The analysis our cases have applied focuses on the different

underlying acts that could constitute the same crime. In Peterson, for example, the

defendant was convicted for failing to register as a sex offender. On appeal, he

argued that the failure to register statute created an alternative means crime

because the crime cah be committed by failing to register after ( 1) becoming

homeless, (2) moving between residences in one county, or (3) moving between

counties. This court held, however, that the statute did not create alternative means

because an individual's conduct in each of the three scenarios did not vary

significantly; the statute prohibited the single act of moving without providing the

proper notice. Peterson, 168 Wn.2d at 770. Thus, alternative means should be

distinguished based on how varied the actions are that could constitute the crime.

       The Court of Appeals here 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




                                                  7
State v. Owens (Jeramie David), No. 88905-8


sale to others, or (8) knowingly trafficking in stolen property." Owens, noted at

174 Wn. App. 1052,2013 WL 4018534, at *2.

       In contrast, Division Two of the Court of Appeals recently decided State v.

Lind-:ey, 177 Wn. App. 233,311 P.3d 61 (2013). In Lindsey, the defendant

challenged his conviction for trafficking in stolen property, claiming there was

insufficient evidence to support all eight alternative means of committing the

crime. Analyzing the statute as a whole, the court held that RCW 9A.82.050(1)

describes only two alternative means of trafficking in stolen property. Lindsey, 177

·wn. App. at 241.
        [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 ..
        . . Si-milarly, the phrase "the theft of property for sale to others" relates
        to th~ 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 relate 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].




                                              8
State v. Owens (Jeramie David), No. 88905-8 .


Lindsey, 177 .Wn~   App~   at 241-42. We agree with the analysis and conclusion in

Lindsey. and conclude that the statutory language dictates only two alternative

means.

         The court of appeals in this case relied on State v. Strohm, 75 Wn. App. 301,

879 P.2d 962 (1994). We disagree with that approach. As the court in Lindsey

found,

         the issue in [Strohm] was not the number of alternative means
         described in former RCW 9A.82.050(2) [(1984)]. Instead, Strohm
         argued that former RCW 9A.82.020(10) (1994), which defined
         "traffic", listed several alternative means of trafficking in stolen
         property in addition to the means stated in former RCW 9A.82.050(2).

               At the beghming of its discussion, Division One stated without
        analysis or comment that former RCW 9A.82.050(2) had eight
        alternative means. Strohm, 75 Wn. App. at 307 .... Years later,
      · Division One repeated without analysis its statement in Strohm that
        RCW 9A.82.050 identifies eight alternative means. State v. Hayes,
        164 Wn. App. 459,476, 262 P.3d 538 (2011). However, the issue of
        whether RCW 9A.82.050 identifies two or eight alternative means
        was not before the court in either Strohm or Hayes. And the court did
        not actually discuss in either case the alternative means issue with
        respect to RC\V 9A.82.050.

177 Wn. App. at 243 (footnote omitted). As the court in Lindsey correctly

recognized, the discussion in Strohm does not resolve the statutory analysis here. 4

Further, we disagree with Strohm's characterization ofthe statute.



         4
        At oral argument, counsel for Owens conceded that Lindsey, rather than Strohm,
provided the proper interpretation of the statute.


                                                9
State v. Owens (Jeramie David), No. 88905-8


       Our conclusion that RCW 9A.82.050(1) describes only two alternative

means is consistent with Peterson. The State points out that the words listed in the

first clause ofRCW 9A.82.050 do not address distinct acts because of how closely

related those terms are. For example, it would be hard to imagine a single act of

stealing whereby a person "organizes" the theft but does not "plan" it. Likewise, it

would be difficult to imagine a situation whereby a person "directs" the theft but

·does not "manage" it. Any one act of stealing often involves more than one of

these terms. Thus, these terms are merely different ways of committing one act,

specific~lly   stealing. Consistent with Peterson, where the various acts of moving

without giving proper notice were too similar to constitute distinct alternative

means, an individual's conduct under RCW 9A.82.050(1) does not vary

significantly between the seven terms listed in the first clause, but does vary

significantly between the two clauses. We hold that RCW 9A.82.050(1) describes

only two alternative means of trafficking in stolen property.

                                  c. Sufficient Evidence

       Because the jury was not instructed that it must be unanimous as to the

means by which Owens committed the crime, we must determine whether




                                              10
State v. Owens (Jeramie David), No. 88905-8


sufficient evidence 5 supports each of these two alternative means. Evidence is

sufficient if, viewing the evidence in a light most favorable to the State, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. State v. Franco, 96 Wn.2d 816,823,639 P.2d 1320 (1982).

       Owens does not dispute that there is sufficient evidence to support the last

alternative: that he was trafficking in stolen property. He argues, though, that even

·'if there are only two alternative means of trafficking in stolen property, insufficient

evidence supports the alternative that he facilitated or participated in the theft in

one of the seven we1ys listed in the first clause of the statute.

       Owens points out that because he was acquitted of taking the car without

permission, there is no evidence he is the individual who stole the car. We

disagree. The statute does not require that the defendant personally steal the car.

An individual can still participate in or facilitate the theft of property without

actually being the individual who physically took it. Owens also argued at oral

argument that there was insufficient evidence to support the first means because all

of the seven words listed require the participation of another person and there was




       5
          Some cases state that alternative means must be supported by "substantial evidence,"
but the test consistently applied has been the sufficiency of the evidence standard. State v.
Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012).


                                               11
    State v. Owens (Jeramie David), No. 88905-8


    no proof that anyone else other than Owens initiated, organized, planned, financed,

    directed, managed, or supervised the theft of the car.

                His argument, however, is not supported by the statutory language. Under

    the statute, a single person can "plan" or "initiate" under the plain meaning of

    those words. Owens told investigators that he had purchased the car from another

    individual after responding to a Craigslist ad. But he could provide no details or

f   documentation from the sale. The daimed circumstances of Owens acquiring the

    only car that was stolen off ofMotor City's lot on July 3, 2010, with no real

    explanation of how he did so, removing the roof rack and surfboard, replacing the

    hig~1-performance       engine with a different engine, repainting the car, and

    reregistering the car un?er a different year in such a short period of time is

    · sut1icient evidence to    ~upport    the conclusion that he initiated or participated in the

    theft of the car for sale to others. Thus, viewing the case in the light most favorable

     to   ~he   State, sufficient evidence exists to support the alternative means that he

     knowingly initiated, organized, planned, financed, directed, managed, or

     supervised the theft of property for sale to others. 6




                6
              Interestingly, tlie State points out that the trial court's instructions to the jury differed
     from the statute. Unlike the statute, the jury instructions connected the first two clauses with a
     conjunctive "and" rather than a disjunctive "or" so that the instructions read,



                                                        12
State v. Owens (Jeramie David), No. 88905-8


       Lastly, the State argu~s that any error was harmless and that this court

should articulate a harmless error standard in the context of alternative means

cases. We do not reach this issue, however, because we find no error.




        "To convict the defendant of the crime of Trafficking in Stolen Property in the First
Degree ... each of the following elements of the crime must be proved beyond a reasonable
doubt:
        "(1) That on or about the 28th day of July, 2010, the defendant did knowingly initiate,
organize, plan, finance, direct, manage or supervise the theft of a motor vehicle for sale to others;
        "(2) That the defendant did knowingly traffic in stolen property; and,
        "(3) That any of these acts occurred in Snohomish County."
Clerk's Papers at 99. Because the defendant did not object to this instruction, it became the law
ofthe case. See State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). In closing, the
prosecutor stated that with regard to the trafficking charge, there were "three separate elements
[he had] to prove." Verbatim Report of Proceedings (Aug. 10, 2011) at 21. As a result, the State
ultimately had to prove (and the jury had to find) that Owens both participated in the theft of the
car for sale to others and was trafficking the car. Thus, regardless of how the statute is
interpreted, the jury in this case was ultimately not instructed on an alternative means crime, and
we can infer jury unanimity as to the means by which Owens committed the crime as there were
no other alternatives, but rather elements of the crime. Because there is sufficient evidence
supporting each element of the charged crime in this case, as discussed above, there is evidence
to support the jury's verdict and the conviction would still stand.


                                                 13
State v. Owens (Jeramie David), No. 88905-8


       We hold that RCW 9A.82.050 describes two means of trafficking in stolen

property, and in this case, sufficient evidence supported both means. We therefore

reverse the Court of Appeals and reinstate the conviction.




WE CONCUR:




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