                                                                This opinion was filed for record

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       CHIEF JUSTICS
                                                                .fu,. SUSAN L. CARLSON
                                                                  SUPREME COURT CLERK


             IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                               )
                                                   )      No. 93119-4
                            Respondent,            )
                                                   )
        v.                                         )      En Banc
                                                   )
DENNIS EARL ARMSTRONG,                             )
                                                   )
                            Petitioner.            )      Filed      MAY 1 1 2017


        MADSEN, J.-In alternative means cases where substantial evidence supports

both alternatives submitted to the jury, jury unanimity as to the means is not required. In

this case, Dennis Armstrong asks us to reverse his felony domestic violence conviction

for violating a court order because the trial court instructed the jury that it need not be

unanimous as to which of the two means it relied on, so long as it was unanimous as to

the conviction. Because this is a correct statement of the law, we find no error.

Armstrong further contends that police violated his right to due process because they did

not retrieve certain video surveillance tapes, but Armstrong has not shown the required

bad faith. Thus, his due process claim fails. We affirm.

                                           FACTS

        A no-contact order existed prohibiting Armstrong from contacting his former

partner, Nadia Karavan. Nonetheless, on April 20, 2014, Karavan learned that
No. 93119-4


Armstrong was at a bus stop about a block away from where Karavan was staying.

Because she had belongings that she wished to return to Armstrong, Karavan walked to

the bus stop.

       As the two talked, Armstrong became angry; according to Karavan, Armstrong

yelled and hit the glass wall of the bus stop shelter. Armstrong then hit Karavan twice in

the face with an open fist. After a brief struggle, Karavan ran to a nearby AMPM gas

station, and Armstrong followed her. According to the store clerk, Todd Hawkins, the

two exchanged words, Armstrong followed Karavan around the store for several minutes,

and Karavan asked Hawkins to call the police several times. When Hawkins finally

called the police, Armstrong left the store.

       Three officers responded to the 911 call. Officers Quindelia Martin and Albert

Elliot went to the AMPM and interviewed Karavan. Officer Martin noticed that Karavan

had a slightly swollen, red abrasion on the side of her face. Officer Milton Rodrigue

located Armstrong a block or two away from the AMPM. After Officer Elliot arrived, he

and Officer Rodrigue interviewed Armstrong. The patrol car's camera captured the audio

of the interview.

       During the interview, Armstrong denied spending time inside the AMPM. In

response, the officers told Armstrong that surveillance video from the AMPM would

show what really happened. The officers repeatedly emphasized the video and told

Armstrong that he should "tell the truth" because they had the "whole thing on video."

At trial, Hawkins testified that there were about 16 cameras around the store: a few of




                                               2
No. 93119-4


which covered the gas pumps and one that may have shown a slight, low view shot of the

bus stop. Although Hawkins testified that police had requested surveillance video from

AMPM in the past, no officer requested footage from the night of this incident. Hawkins

had previously reviewed the video from that night and testified that it showed what he

described in his testimony, but per AMPM policy, the video had since been destroyed.

       At trial, the officers gave various reasons why they never collected the video.

Officer Martin testified that she heard Officer Elliot ask about the video, but she assumed

it was the responsibility of someone else at the scene to investigate the video. Officer

Rodrigue testified that he never viewed the video. He simply followed Officer Elliot's

lead when the two were questioning Armstrong. Officer Elliot was unavailable to testify

at trial. Detective Rande Christiansen, who had been assigned to do the follow-up

investigation on the case, testified that he did not investigate any video from the AMPM

because he did not know such video existed.

      The State charged Armstrong with a domestic violence felony violation of a court

order. Clerk's Papers (CP) at 1; see also RCW 26.50.110. Before trial and again during

trial, Armstrong moved to discharge his counsel. One of his reasons was that counsel

failed to give him the surveillance video as he requested. The prosecutor told the court

that the State had never possessed the video. The court denied Armstrong's motions.

       Relevant to Armstrong's unanimity challenge, the court instructed the jury:

            To convict the defendant of the crime of violation of a court order,
      each of the following five elements of the crime must be proved beyond a
      reasonable doubt:




                                              3
No.93119-4


              (1) That on or about April 20, 2014, there existed a no-contact order
       applicable to the defendant;
              (2) That the defendant knew of the existence of this order;
              (3) That on or about said date, the defendant knowingly violated a
       provision of this order;
              (4) That:
                      (a) the defendant's conduct was an assault or
                      (b) the defendant has twice been previously convicted for
       violating the provisions of a court order; and
              (5) That the defendant's act occurred in the State of Washington.
              If you find from the evidence that elements (1), (2), (3) and (5), and
       either of the alternative elements (4)(a), or (4)(b), have been proved beyond
       a reasonable doubt, then it will be your duty to return a verdict of guilty.
       To return a verdict of guilty, the jury need not be unanimous as to which of
       alternatives (4 )(a), or (4)(b ), has been proved beyond a reasonable doubt, as
       long as each juror finds that at least one alternative has been proved beyond
       a reasonable doubt.
              On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to any one of the five elements, then it will be your
       duty to return a verdict of not guilty.

CP at 28-29. Armstrong did not object to this instruction. During closing argument, the

prosecutor further explained this instruction:

       The fourth element is in the alternative. So maybe everybody got this right
       away, but what this means is that there is [sic] two ways to commit this
       crime ....

               But the kind of secondary paragraph, the following paragraph that
       says, speaks about unanimity, so whether or not you have to be
       unanimous-that's a hard word to say-it's essentially instructing you that
       if six of you believe that: Hey look, we don't know if you've been twice
       previously convicted but we believe you assaulted her and six of you say:
       We think he's been twice previously convicted but we don't know ifhe
       assaulted her but we do believe he violated the no-contact order by going to
       her residence, then that's guilty. So you don't have to be unanimous as to
       which of the alternative means were present; you just have to be unanimous
       that all four of the elements have been satisfied.

Verbatim Report of Proceedings (July 31, 2014) at 17-18. Armstrong did not object to

this argument.


                                                 4
No. 93119-4


          The jury returned a general guilty verdict. The Court of Appeals affirmed the

verdict in an unpublished opinion. State v. Armstrong, No. 72331-6-I, slip op. at 1

(Wash. Ct. App. Feb. 29, 2016) (unpublished),

http://www.courts.wa.gov/opinions/pdf/723316.pdf. We granted Armstrong's petition

for review, State v. Armstrong, 186 Wn.2d 1002, 380 P.3d 451 (2016), and we now

affirm.

                                         ANALYSIS

             1. Jury unanimity does not require unanimity on which alternative
             means the jury relies, so long as sufficient evidence supports each
             charged means

          Armstrong argues that his right to a unanimous jury verdict was violated when the

court instructed the jury that it did not have to be unanimous as to whether the conviction

rested on two prior violations or an assault. Armstrong did not object to this instruction

below, but we will consider error raised for first time on appeal when "giving or failure to

give an instruction invades a fundamental constitutional right of the accused, such as the

right to a jury trial." State v. Green, 94 Wn.2d 216, 231, 616 P.2d 628 (1980) (plurality

opinion); see also RAP 2.5(a)(3) (party may raise a "manifest error affecting a

constitutional right" for the first time on appeal). We review constitutional issues de

novo. State v. Jorgenson, 179 Wn.2d 145,150,312 P.3d 960 (2013) (citing State v.

Sieyes, 168 Wn.2d 276, 281, 255 P.2d 995 (2010)).




                                               5
No. 93119-4


       Criminal defendants have a right to a unanimous jury verdict in Washington.

WASH. CONST. art. I,§ 21; 1 State v. Whitney, 108 Wn.2d 506,511, 739 P.2d 1150 (1987)

Uury must unanimously conclude that the defendant committed the crime charged in the

information). But in alternative means cases, where substantial evidence supports both

alternative means submitted to the jury, unanimity as to the means is not required. State

v. Sandholm, 184 Wn.2d 726,732,364 P.3d 87 (2015); State v. Ortega-Martinez, 124

Wn.2d 702,705,881 P.2d 231 (1994); see also Whitney, 108 Wn.2d at 508 ("In Arndt,

we held that if substantial evidence supports each of the alternate means of committing

the single crime charged, and the alternate means are not repugnant to one another, jury

unanimity as to the mode of commission is not required" (citing State v. Arndt, 87 Wn.2d

374, 376-77, 553 P.2d 1328 (1976))); State v. Franco, 96 Wn.2d 816,823,639 P.2d 1320

(1982) (citing Arndt, 87 Wn.2d at 377-78), abrogated on other grounds by State v.

Sandholm, 184 Wn.2d 726, 736, 364 P.3d 87 (2015). For more than 75 years, we have

upheld unanimous jury verdicts based on alternative means where the jury did not specify

which alternative provided the basis for the verdict. See State v. Stuhr, 1 Wn.2d 521,

529, 96 P.2d 479 (1939) (citing State v. Talbott, 199 Wash. 431, 91 P.2d 1020 (1939)).

This case presents a straightforward application of those principles. 2




1
  The Sixth Amendment to the federal constitution does not require jury unanimity in state court
criminal trials. Apodaca v. Oregon, 406 U.S. 404, 406, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972).
2
  For this court to reject our previous holdings, the party seeking that rejection must show that
the established rule is incorrect and harmful or a prior decision is so problematic that we must
reject it. State v. Otton, 185 Wn.2d 673,678,374 P.3d 1108 (2016).



                                                6
No. 93119-4


          An alternative means crime is one where the legislature has provided that the State

may prove the proscribed criminal conduct in a variety of ways. State v. Peterson, 168

Wn.2d 763,769,230 P.3d 588 (2010) (quoting State v. Smith, 159 Wn.2d 778, 784, 154

P.3d 873 (2007)). In this case, the State charged Armstrong with domestic violence

felony violation of a court order. CP at 1-2; RCW 26.50.110. Although generally a gross

misdemeanor, a violation of RCW 26.50.110 is a class C felony if committed in either of

two ways: (1) the violation of the order is also an assault or (2) the offender has at least

two previous convictions for violating a protection order. RCW 26.50.110(4), (5). The

parties agree that a felony violation of a court order is an alternative means crime. 3

          Sufficient evidence is that which justifies a rational trier of fact finding guilt

beyond a reasonable doubt. Ortega-Martinez, 124 Wn.2d at 708 ( citing Green, 94 Wn.2d

at 220 (citing Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979))). "The evidence is sufficient if 'after viewing the evidence in a light most

favorable to the State, any rational trier of fact could have found the essential elements of

the charged crime beyond a reasonable doubt'." Id. (quoting State v. Rempel, 114 Wn.2d

77, 82, 785 P.2d 1134 (1990)). Here, Armstrong does not argue that there was

insufficient evidence to support both alternative means. Nor could he.

          As to the means of assault, Karavan testified that Armstrong struck her twice in

the face with an open fist. Responding officers corroborated this claim, testifying that

Karavan had red abrasions on her face. As to the means of two prior violations,


3
    Suppl. Br. of Pet'r at 4-6; Suppl. Br. of Resp't at 6; see also Armstrong, slip op. at 4.



                                                     7
No.93119-4


Detective Christiansen testified that Armstrong had two previous convictions for

violating a court order, and the court admitted the judgment and sentences from those

convictions as exhibits. Viewing the evidence in the light most favorable to the State, a

rational trier of fact could have found guilt beyond a reasonable doubt for both alternative

means, which Armstrong does not dispute.

       Armstrong does not argue that there was insufficient evidence on either of the

charged means. Rather, he asserts that sufficient evidence cannot be a basis to affirm in

this particular case because the court committed affirmative constitutional error by

instructing the jury that it need not be unanimous. Armstrong bases his argument that

unanimity as to each charged means is required on this court's language in Ortega-

Martinez, 124 Wn.2d at 708. In dicta, the court said, "In certain situations, the right to a

unanimous jury trial also includes the right to express jury unanimity on the means by

which the defendant is found to have committed the crime." Id. at 707. The court

suggested that the lack of express unanimity is acceptable in other cases because that

unanimity is "infer[red]" by the reviewing court. Id. at 707-08. 4 This language,

however, was both unnecessary to the holding in Ortega-Martinez and unsupported by

the cases it cited.




4
  We have repeated this language from Ortega-Martinez subsequently. See State v. Randhawa,
133 Wn.2d 67, 74,941 P.2d 661 (1997); State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030
(2014). But in neither case did the holding rely on the language in Ortega-Martinez, and no case
has established a right to unanimity as to means where sufficient evidence supported both
alternatives.



                                               8
No. 93119-4


       In Ortega-Martinez, the court held, consistent with long-settled case law, that jury

unanimity as to the means by which Ortega-Martinez committed the crime was not

required because sufficient evidence supported both means. Id. at 705. Thus, any

discussion about when unanimity might be required as to each means was unnecessary.

Further, the cases cited for the proposition that unanimity as to means might be required

in certain situations or is "inferred" do not support such a statement. First, the majority

cited Green, 94 Wn.2d 216. But in that case, the court found insufficient evidence to

support one of the means. In such a circumstance, the court had no assurance that the

jury rested its verdict on a valid means. Id. at 233. And any dicta in Green to support the

proposition that unanimity would be required in "other situations," such as if the

alternative means were distinct crimes, was disavowed in Whitney, 108 Wn.2d at 511.

       The Ortega-Martinez majority also cited Whitney. But that case also emphasized

that jury unanimity as to means is not required so long as sufficient evidence supports

each alternative. Id. Whitney explained that when "constitutionally sufficient evidence

supports both charged alternatives, the lack of jury unanimity does not entail the danger

... that any of the jury members may have based their finding of guilt on an invalid

ground." Id. Finally, the Ortega-Martinez majority cited Franco, 96 Wn.2d 816. That

case too reiterated that where a single offense can be committed in more than one way,

the constitution requires jury unanimity only as to guilt of the crime charged, so long as

there is substantial evidence to support each charged alternative. Id. at 823. These cases

simply do not support the notion that we infer jury unanimity for alternative means




                                              9
No. 93119-4


crimes because they all correctly state that such unanimity is not required. We would not

infer that which we do not require.

       Consistent with In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970), the State must prove the essential elements of the crime charged beyond a

reasonable doubt. Jackson, 443 U.S. at 318-19. When a defendant challenges a

conviction for sufficiency, a reviewing court considers whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements beyond a reasonable doubt. Id. at 319. Similarly, the right

to jury unanimity requires that each member of the jury find that the State has proved

each element beyond a reasonable doubt. When one element of the crime can be satisfied

by alternative means, jury unanimity is satisfied if the jury unanimously agrees the State

proved that element beyond a reasonable doubt and the evidence was sufficient for each

alternative means of committing that element.

       When there is insufficient evidence to support one of the alternative means

charged and the jury does not specify that it unanimously agreed on the other alternative,

we are faced with the danger that the jury rested its verdict on an invalid ground. In those

situations, the conviction cannot stand. Thus, as we have said before, an instruction on

jury unanimity as to the alternative method found is preferable. Whitney, l 08 Wn.2d at

511. Giving such an instruction eliminates potential problems that may arise when

sufficient evidence does not support one of the alternatives. Id. But an instruction being




                                              10
No. 93119-4


preferable does not make it a requirement. Because sufficient evidence supported the

alternative means in this case, Armstrong's right to jury unanimity was preserved.

          2. Due process is not violated when the police fail to preserve
          potentially useful evidence in the absence of showing that they acted in
          bad faith

       Armstrong next claims that the police violated his right to due process because

they failed to collect video surveillance from the AMPM after using that video as a tool

when interviewing Armstrong at the scene. Under the Fourteenth Amendment to the

federal constitution, criminal prosecutions must conform with prevailing notions of

fundamental fairness, and criminal defendants must have a meaningful opportunity to

present a complete defense. State v. Wittenbarger, 124 Wn.2d 467, 474-75, 880 P.2d 517

(1994) (citing California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413

(1984)). "To comport with due process, the prosecution has a duty to disclose material

exculpatory evidence to the defense and a related duty to preserve such evidence for use

by the defense." Id. at 475 (citing Brady v. Maryland, 373, U.S. 83, 83 S. Ct. 1194, 10 L.

Ed. 2d 215 (1963)). The state due process clause extends the same protection regarding

this right as does its federal counterpart. Id. at 474; see also State v. Ortiz, 119 Wn.2d

294,305, 831 P.2d 1060 (1992) (Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333,

102 L. Ed. 2d 281 (1988), provides the proper standard for the preservation of

exculpatory evidence), overruled on other grounds by State v. Condon, 182 Wn.2d 307,

343 P.3d 357 (2015).

       Although the State is required to preserve all potentially material and favorable

evidence, this rule does not require police to search for exculpatory evidence. State v.


                                              11
No. 93119-4


Judge, 100 Wn.2d 706, 717, 675 P.2d 219 (1984). The United States Supreme Court has

thus been unwilling to impose on police '" an undifferentiated and absolute duty to retain

and to preserve all material that might be of conceivable evidentiary significance in a

particular prosecution."' Wittenbarger, 124 Wn.2d at 475 (quoting Youngblood, 488

U.S. at 58).

       To be material exculpatory evidence, "the evidence must both possess an

exculpatory value that was apparent before it was destroyed and be of such a nature that

the defendant would be unable to obtain comparable evidence by other reasonably

available means." Id. (citing Trombetta, 467 U.S. at 489). For "'potentially useful'

evidence," on the other hand, failure to preserve by the police is not a denial of due

process unless the suspect can show bad faith by the State. Id. at 4 77 (quoting

Youngblood, 488 U.S. at 58); see also Cunningham v. City of Wenatchee, 345 F.3d 802,

812 (9th Cir. 2003) (citing Youngblood, 488 U.S. at 58); Miller v. Vasquez, 868 F.2d

1116, 1120 (9th Cir. 1989).

       "'The presence or absence of bad faith ... turn[s] on the police's knowledge of the

exculpatory value of the evidence at the time it was lost or destroyed."' Cunningham,

345 F.3d at 812 (alterations in original) (quoting Youngblood, 488 U.S. at 57). Acting in

compliance with its established policy regarding the evidence at issue is determinative of

the State's good faith. Wittenbarger, 124 Wn.2d at 477 (citing Ortiz, 119 Wn.2d at 302).

A plaintiff must "put forward specific, nonconclusory factual allegations that establish




                                             12
No.93119-4


improper motive." Cunningham, 345 F.3d at 812 (quoting Jeffers v. Gomez, 267 F.3d

895, 907 (9th Cir. 2001)).

       Armstrong asserts that the video surveillance was potentially useful evidence.

Therefore, he must show that the police acted in bad faith. According to Armstrong, the

police acted in bad faith because they told him during the interview that they were going

to collect the video but they never actually collected it. Armstrong describes this as the

police acting with an "extreme cavalier attitude" toward preserving potentially useful

evidence. Beyond this failure to collect the video, Armstrong offers no evidence of bad

faith, such as improper motive. See Whittenbarger, 124 Wn.2d at 478.

       Armstrong has failed to show that the police acted in bad faith when they failed to

collect the surveillance video from the AMPM. The testimony of the officers indicates

that the video went uncollected due to mere oversight. Armstrong has presented no

evidence that the police had an improper motive. At most, Armstrong has shown that the

investigation was incomplete or perhaps negligently conducted, but that is not enough to

show bad faith. Further, although Hawkins testified that police had requested

surveillance video in the past, Armstrong has presented no evidence that police acted in

violation of an established policy. He, in fact, concedes that no written policy required

the police to collect the video.

       This result is consistent with the Ninth Circuit's application of the Youngblood bad

faith standard. In Cunningham, the Ninth Circuit found that the police officer's failure to

collect physical evidence, such as bed sheets or clothing, was not in bad faith. 345 F.3d




                                             13
No.93119-4


at 812. In reaching that conclusion, the court emphasized that the value of untested

evidence is speculative, and while the officer's investigation may have been negligent or

incomplete, it was not done in bad faith. Id. The court compared Cunningham's claim to

that in Miller, where the plaintiff had shown bad faith. Id. (citing Miller, 868 F.2d 1116).

In that case, the officer referred to the plaintiff using an expletive, lied about his

knowledge of the potentially exculpatory evidence, and tried to dissuade witnesses from

testifying in favor of the plaintiff. Id. (citing Miller, 868 F.2d at 1121). The failure of the

officer in Cunningham to collect physical evidence did not rise to that level of bad faith.

Similarly, Armstrong has failed to show that police acted in bad faith here when they did

not collect the surveillance video.

                                       CONCLUSION

       We have held for more than 75 years that jury unanimity as to means is not

required in alternative means cases where substantial evidence supports both alternatives.

Armstrong's case is a straightforward application of this long-standing principle.

Further, Armstrong has failed to show that the police acted in bad faith when they did not

collect video surveillance that was only potentially useful evidence. Finding no error, we

affirm Armstrong's conviction.




                                               14
No.93119-4




WE CONCUR:




             15
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




                                    No. 93119-4

      GORDON McCLOUD, J. (dissenting)-The majority is correct that this court

does not require jury unanimity as to "alternative means," so long as there is

sufficient evidence to support each of the means alleged. Majority at 6. The majority

is also correct that Dennis Armstrong concedes he was charged with an alternative

means crime-in other words, he agrees that violating a protection order ( 1) through

conduct that "is also an assault" or (2) while having "at least two previous

convictions for violating a protection order" are just two alternative means of

committing a single felony offense. Id. at 7 (citing RCW 26.50.110(4), (5)). And if

this concession were proper, I would join the majority's analysis in full.       The

majority properly rejects Armstrong's argument that his state article I, section 21

constitutional protections were violated because the jury may have been

nonunanimous as to means. CONST. art. I,§ 21. Where sufficient evidence supports

each alternative means alleged, as it did in Armstrong's case, such unanimity is not

required.

                                           1
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




      I respectfully dissent, however, because I do not believe that this an alternative

means case.

      In a true alternative means case, the prosecution pleads alternatives that all

support one fundamentally coherent theory of a crime. A typical example is a case

where the prosecution charges intentional and felony murder in the alternative, and

argues that the defendant killed the victim either with premeditation in order to

obtain money in a robbery or incidentally in the course of a robbery. E.g., State v.

Fortune, 128 Wn.2d 464, 466-67, 909 P.2d 930 (1996) (evidence showed defendant

beat victim to death with sledgehammer and later used victim's bank card to empty

victim's account). Another is a rape prosecution alleging that the defendant used

either the threat of force or actual force to compel sexual intercourse. E.g., State v.

Tucker, 226 Conn. 618, 644-50, 629 A.2d 1067 (1993) (evidence showed defendant

forced victim to have sex by punching her, choking her, and threatening her with

death, all in the course of single transaction). In such cases, the jury can split as to

the precise means the defendant used to accomplish the crime (premeditated intent

to kill or rob; threat or use of force), while still agreeing on the bottom line-i.e.,

that the defendant killed the victim with a requisite mental state or compelled the

victim to have nonconsensual sex.



                                           2
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




      This case is different. The evidence supporting each alleged means is entirely

distinct because the two means alleged constitute entirely different theories of the

State's case. According to one theory, Armstrong committed an assault at the time

of the charged violation.     This theory depended on the victim's testimony that

Armstrong hit her and testimony by responding officers that the victim had abrasions

on her face when they arrived at the scene. Majority at 7. According to the other

theory, Armstrong had specific prior convictions at the time of the charged violation.

This theory depended on testimony and written documentation regarding

Armstrong's crimiµal history. Id. at 7-8. A jury that splits on these means does not

agree on a fundamentally coherent theory of the crime. If the right to a unanimous

jury verdict is to have any meaning at all, it must protect against that outcome-both

this court and the United States Supreme Court have recognized as much.

      I would therefore reject Armstrong's concession 1 that this is an alternative

means case that is controlled by our existing precedent on article I, section 21 of the

Washington Constitution. Instead, I would call for briefing on a different question:

whether Armstrong's conviction must be reversed under state or federal law




       1
        See State v. Coley, 180 Wn.2d 543, 557 n.3, 326 P.3d 702 (2014) (rejecting State's
concession on dispositive burden of proof issue).
                                            3
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




addressing "alternative acts" (also called "alternative crimes") as opposed to

"alternative means."

                                    ANALYSIS

      This case requires us to interpret a statute, RCW 26.50.110(4) and (5), that

describes two prohibited acts. That statute formed the basis for the jury instructions

in this case, which allowed the jury to convict Armstrong of a single felony even if

they disagreed about which of those two acts he committed. Majority at 4, 7.

      In an analogous context, the United States Supreme Court has recognized that

when a jury instruction describes various alternative acts, treating them as different

(specific) ways of committing the same (general) crime, it poses a risk to due

process. Richardson v. United States, 526 U.S. 813,819, 119 S. Ct. 1707, 143 L.

Ed. 2d 985 (l 999); U.S. CONST. amend. XIV. Specifically, it poses the risk that

jurors, unless instructed otherwise, will convict not because they unanimously find

that the defendant committed any of the particular acts alleged, but because they

agree the defendant must be guilty of something--as the Court put it, "That where

there is smoke there must be fire." Richardson, 526 U.S. at 819. That risk does not

violate Fourteenth Amendment due process protections when the alternative acts

alleged relate to "mere means" of committing a crime. Schad v. Arizona, 501 U.S.

624, 636-39, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) (plurality opinion); U.S.

                                           4
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)



CONST. amend. XIV. But when those facts relate to actual "elements" of the crime,

a conviction cannot stand unless the jury unanimously agrees that the prosecution

has proved those facts beyond a reasonable doubt. Schad, 501 U.S. at 636-39.

      While legislatures have the authority to define crimes and their constituent

elements, this authority is not unlimited. Id. at 638. At some point, alternative

theories of a crime become so different from one another that-regardless of

legislative intent-they must be treated as different elements necessary to

conviction, as to which a jury must be unanimous. Id. at 633 (plurality opinion)

("nothing in our history suggests that the Due Process Clause[, U.S. CONST. amend.

VI,] would permit a State to convict anyone under a charge of 'Crime' so generic

that any combination of jury findings of embezzlement, reckless driving, murder,

burglary, tax evasion, or littering, for example, would suffice for conviction."), 650

(Scalia, J., concurring in part and concurring in judgment) ("one can conceive of

novel 'umbrella' crimes ( a felony consisting of either robbery or failing to file a tax

return) where permitting a 6-to-6 verdict would seem contrary to due process").

Thus, the United States Supreme Court has articulated a two-part inquiry for

determining whether a factual allegation underlying a criminal charge is a "mere

means" or a true element defining a different crime. First, which did the legislature

intend? Second, if the legislature intended to create "mere means" (as to which the

                                           5
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




Jury need not be unanimous), does this satisfy due process requirements?

Richardson, 526 U.S. at 818-20. If the answer to either question is no, then the right

to jury unanimity attaches. Id. 2

       This court has also addressed the distinction between "alternative means"--

as to which a jury need not be unanimous-and alternative elements defining

"alternative crimes"-as to which a jury must be unanimous. State v. Arndt, 87

Wn.2d 374, 553 P.2d 1328 (1976). Although we addressed this distinction under

our state constitution, instead of the federal due process clause3 ( and although we

discussed it as primarily a question of legislative intent), 4 we drew a line similar to


       2
          In the context of the jury unanimity right, the United States Supreme Court has
never found a conflict between the first and second questions--that is, it has never found
a stah1te unconstitutional because it treated tme elements as "mere means." However, that
Court has relied on the canon of constitutional avoidance to conclude that Congress
intended to create elements as opposed to means. In Richardson, the Court interpreted the
federal "'continuing criminal enterprise' (CCE)" "statute's phrase 'series of violations' [to]
... create several elements," such that the jury had to be unanimous as to which alleged
CCE "violations" in fact occurred. 526 U.S. at 815, 817-18; 21 U.S.C. § 848(c). The Court
reasoned that "[t]he CCE statute's breadth"-that is, the wide variety of behaviors it
defined as "violations"-would create due process concerns if these distinct violations
were treated "simply as alternative means." Richardson, 526 U.S. at 819. It therefore held
that each violation was an element, concluding that there was no evidence Congress
intended the statute to "test ... constitutional limits." Id. at 820.

       3
        Arndt, 87 Wn.2d at 377 (citing State v. Carothers, 9 Wn. App. 691, 694 n.2, 514
P.2d 170 (1973)).

       4 Id.
           at 378 ("How can it be determined ifRCW 74.08.331 describes a single offense
committable in more than one way, or describes multiple offenses? What must be
ascertained is the legislature's intent .... ").
                                              6
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




the United States Supreme Court's. We held that a statute creates alternative crimes,

triggering the right to a unanimous jury, when the alternatives it lists are inherently

discrete and disconnected. Id. at 379.

      To determine whether that condition was met, we considered three factors

relating to the nature of the acts prohibited under a statute: "'[(l)] whether there is a

readily perceivable connection between the various acts set forth [in the statute];

[(2)] whether the acts are consistent with and not repugnant to one another; [(3)] and

whether the acts may inhere in the same transaction."' Id. (quoting State v. Kosanke,

23 Wn.2d 211,213, 160 P.2d 541 (1945)).

      Applying those factors, we have held that kidnapping and use of a deadly

weapon are alternative means of committing first degree rape because they "'could

inhere in the same incident,"' simultaneously serving the single purpose of

accomplishing the rape. State v. Whitney, 108 Wn.2d 506, 510-11, 739 P.2d 1150

(1987) (quoting State v. Whitney, 44 Wn. App. 17, 25, 720 P.2d 853 (1986)). We

reached a similar conclusion about the various '"fraudulent device[s]'" prohibited in

RCW 74.08.331, a statute criminalizing the '"obtaining ... [of] public assistance to

which one is not entitled ... "by means of" ... (l) willfully false statement ... ; (2)

willful failure to reveal any material fact ... ; [or] (3) willful failure to promptly

notify the department as required by law of ... any ... change in circumstances

                                            7
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




affecting eligibility or need for assistance .... '" Arndt, 87 Wn.2d at 3 81 (quoting

State v. Walters, 8 Wn. App. 706, 707-08, 508 P.2d 1390 (1973)). We reasoned that

these were all "closely related, connected acts" that may "inhere in the same

transaction." Id. at 382-84 (italics omitted).

       By contrast, we have said that an ordinance creates alternative crimes, as

opposed to mere alternative "means," by making it unlawful to

      · "manufacture, sell, barter, exchange, give away, furnish or otherwise
        dispose of any intoxicating liquor; or to buy, receive or keep any
        intoxicating liquor with intent to sell, barter, exchange, give away, use,
        furnish, or otherwise dispose of the same; or to buy, accept or receive
        the same; or ... to ... possess[] more than [certain specified amounts
        of liquor]."

Id. at 382 (quoting City ofSeattle v. Molin, 99 Wash. 210,213, 169 P. 318 (1917)).

We explained that this ordinance prohibited "a number of disconnected,

independent, and miscellaneous acts which could not constitute a single offense."

Id.

       These cases produce the following rule: acts listed in a single statute may be

treated as alternative means on which the jury need not be unanimous (as opposed

to alternative crimes on which the jury must be unanimous) only where a juror can

logically determine beyond a reasonable doubt that the defendant committed the

general crime charged, without also determining which of several acts he or she did


                                            8
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




to commit that general crime. In other words, the constitution does not demand jury

unanimity as to means when those means differ as to preliminary factual issues but

do not differ as to the bottom line definition of the crime. 5 On the other hand, where

those alternatives really describe different bottom line crimes-where a juror cannot

determine that the defendant in .fact committed the crime charged without also




       5
          See Schad, 501 U.S. at 631-32 ("'different jurors may be persuaded by different
pieces of evidence, even when they agree on the bottom line [and] ... there is no general
requirement that the jury reach agreement on the preliminary factual issues which underlie
the verdict"' (quoting McKay v. North Carolina, 494 U.S. 433, 449, 110 S. Ct. 1227, 108
L. Ed. 2d 369 (1990) (Blackmun, J., concurring))), 650 (Scalia, J., concurring in part and
concurring in the judgment) ("When a woman's charred body has been found in a burned
house, and there is ample evidence that the defendant set out to kill her, it would be absurd
to set him free because six jurors believed he strangled her to death (and caused the fire
accidentally in his hasty escape), while six others believed he left her unconscious and set
the fire to kill her."); Tucker, 226 Conn. at 644-50 (sexual assault statute prohibiting sexual
intercourse accomplished by either threat or use of force described alternative means, not
alternative crimes or elements, where evidence showed defendant forced victim to have
sex by punching her, choking her, and threatening her with death, all in the course of single
transaction; under those facts, "the two methods of compulsion are not conceptually
distinct"); State v. Johnson, 46 Ohio St. 3d 96,105,545 N.E.2d 636 (1989) (assumingjury
split on question of whether defendant murdered victim while attempting a robbery,
completing a robbery, or fleeing an attempted or completed robbery, "each juror still would
have agreed that [he] had murdered [the victim] in conjunction with at least attempting to
commit aggravated robbery, and this alone would have been adequate to sustain the
conviction"), overruled in part on other grounds by State v. Jenks, 61 Ohio St. 3d 259, 282,
574 N.E.2d 492 (1991); State v. James, 698 P.2d 1161, 1167 (Alaska 1985) Qury unanimity
right is not violated where "case ... does not present a situation in which jurors might have
split over whether the defendant committed a single criminal act"; thus, where statute
defined first degree assault as committable by either intent or extreme indifference, jury
need not agree as to mental state underlying sole alleged act).
                                              9
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




determining how he or she committed it-the constitution requires unanimity as to

this "how." 6

       Obviously, this is not always an easy line to draw. We know that certain

conduct (e.g., different ways of committing a rape, Tucker, 226 Conn. at 644-50;

Whitney, 108 Wn.2d at 510-11; or murder, Fortune, 128 Wn.2d at 467; Schad, 501

U.S. at 631-32) clearly fit into the first category. See also supra note 5 above. But

I believe that this case falls into the second category. The two modes of commission

alleged in this case-violation of a no contact order via a contemporaneous assault

versus violation of a no contact order even in a peaceful manner but following a

history of similar prior convictions--support two fundamentally distinct

descriptions of what occurred .. One describes the severity of the current conduct.

The other does not; it describes the defendant's status. As a practical matter, this

situation is more like a "multiple acts" case-in which the government alleges



       6
         United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir. 1977) (the right to a
unanimous jury is meaningless unless it guarantees "substantial agreement as to just what
a defendant did"; defendant therefore entitled to jury unanimity as to means of committing
offense that are too conceptually distinct to inhere in the same act); State v. Boots, 308 Or.
371, 374-75, 780 P.2d 725 (1989) (defendant entitled to unanimity instruction where state
alleged that murder occurred either in furtherance of first degree robbery or to conceal
identity of robbery's perpetrators; failure to give instruction "relieves the jury from
seriously confronting the question whether they agree that any factual requirement of
aggravated murder has been proved beyond a reasonable doubt").


                                             10
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




multiple, different criminal acts occurring at distinct times 7-and this court has long

required express jury unanimity in such multiple acts cases. 8

                                     CONCLUSION

       The State advanced two fundamentally different theories of guilt in this case.

By allowing the jury to convict even if it did not agree on which theory the State

actually proved, the jury instructions jeopardized constitutional protections. They

posed the risk that the jury would convict not because it agreed that Armstrong

committed a particular criminal act, but instead because it agreed that he must be

guilty of something-"that where there is smoke there must be fire." Richardwn,

526 U.S. at 819. Armstrong challenged the legality of his conviction because of the




       7 See State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988) (when State fails
to elect which of several alleged acts it intends to rely on for conviction, there is
constitutional error "stem[ming] from the possibility that some jurors may have relied on
one act or incident and some another, resulting in a lack of unanimity on all of the elements
necessary for a valid conviction"), abrogated in part on other grounds by In re Pers.
Restraint ofStockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014); United States v. Beras, 833
F.2d 455, 460-61 (3d Cir. 1987) (Gipson's reasoning-that unanimity right is meaningless
unless "'jurors [are in] substantial agreement as to just what a defendant did'"--applies
with equal force where single criminal charge alleges "several transactions or occurrences,
any of which could constitute one of the acts proscribed by the charged statutes" (quoting
Gipson, 553 F.2d at 457-58)).

       8
         See State v. Carson, 184 Wn.2d 207,227,357 P.3d 1064 (2015) (where State fails
to elect which of several distinct criminal acts it will rely on for conviction, defendant is
entitled to jury unanimity instruction as to underlying act (citing State v. Petrich, 101
Wn.2d 566, 572, 683 P.2d 173 (1984)).
                                             11
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




lack of jury unanimity on the State's theory. But he did not raise the specific

"alternative crimes" argument addressed here, so the State has not had the

opportunity to address it. I would therefore call for briefing on the "alternative

crimes" issue, including whether any error was harmless in this case. For all of these

reasons, I respectfully dissent.




                                           12
State v. Armstrong (Dennis), No. 93119-4
(Gordon McCloud, J., dissenting)




                                           13
