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### IN THE SUPREME COURT OF THE STATE OFWASHINGTON

STATE OF WASHINGTON, ) ) No. 88905-8 Petitioner, ) ) v. ) EnBanc ) JERAMIE DAVID OWENS, ) ) Respondent. ) 

### MAR 2 7 2014 ) Filed

----·- C. JOHNSON, J.--This case involves whether RCW 9A.82.050(1) describes alternative means ofcommitting first degree trafficking in stolenproperty, and if so, whether substantial evidence supports each ofthe alternative means in this
case. The Court ofAppeals, Division One, held that RCW 9A.82.050 describes eight alternative means ofcommitting the crime, and because there was insufficient evidenceto support at least one ofthose eight means, the court reversed the defendant's conviction. We reverse the Court ofAppeals, reinstate the conviction, and hold that RCW 9A.82.050 describes only two alternative means, and inthis 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 wentto the Motor City car dealership in MountVernon, \Vashington, and inspected a 1967 Volkswagen (VW) Beetle with a high-performance engine and a roofrack with a surfboard on top. They took it out for a test drive, and Owens told the salesman he restored and worked on VWs and had a VWtattoo on his back. They left withoutpurchasing 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 VWBeetle that Owens test drove the day before had been stolen offthe lot, and one ofthe dealer's keys



## . . was rmssmg. The nextbusiness 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 VWBeetle from Owens. Claiming he had lost the title, Owens provided Sauvageau with an affidavit in lieu oftitle. Sauvageau tookthe carto an auto shop to have it inspected and worked on. The mechanic discovered that parts for a 1971 VWBeetle did not fit in the car and that a vehicle identification number (VIN) plate onthe car (matching the VIN for the 1971 Beetle registered by Owens

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

on July 6) appeared to be brand new and recently reinstalled with rivets. The mechanic informed Sauvageau ofthese discrepancies, and Sauvageau calledthe police to report the car as potentially stolen. When the officers arrived, they identified the confidential VIN onthe 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 VINplate, 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 roofrack 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 confirmedthat Owens had a VWtattoo on his back. An officer drove by Owens's residence and observed a yellow VWBeetle with a roofrack. Another officer located another Craigslistpost by Owens advertising a yellow "Baja" style VW Beetle with a high-performance engine ofthe same model as the high-performance engine in the stolen 1967 VWBeetle. This officer contacted Owens, posing as a potential buyer for the yellowBeetle, and setup a meeting to see the car at Owens's residence. Atthe meeting, Owens was arrested, and a search warrant was executed on his residence.

3State v. Owens (Jeramie David), No. 88905-8 During the search, the police recovered the stolen surfboard and a rivet gun. The police also impoundedthe yellow Beetle, which contained an engine ofthe
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 ofhis rights and he told the police thathe had test driven the 1967 Beetle at Motor City on July 2, 2010, and ultimately purchased it from someone offofCraigslist, but could provide no details regarding the purchase. Owens was charged with first degree taking a motorvehicle without permission, first degree trafficking in stolen property, possession ofa stolen vehicle, and bailjumping (for missing a court date). Thejurywas instructedthat it must be unanimous as to Owens's guilt and to fill outthe general verdict form. The jury convicted Owens oftrafficking in stolen property, possession ofa stolen vehicle, and bailjumpingbut acquitted him oftaking a motor vehicle without permission. On appeal, Division One affirmed the possession and bailjumping convictions butheld that there was insufficient evidence to support at least one of the means by which Owens could have committedtrafficking in stolenproperty. As a result, the Court ofAppeals reversed his trafficking conviction. State v. Owens, noted at 174 Wn. App. 1052, 2013 WL 4018534 (2013). The State

1The police were tinable to confirm that it was the same engine because they could not locate a serial number on the engine. 4State 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 andAlternativeMeans Crimes Underarticle I, section 21 ofthe Washington Constitution, criminal defendants have a rightto a unanimousjury verdict. This right may also include the right to a unanimousjury determination as to the 

### means by which the defendant committedthe crime when the defendant is charged with (and thejuryis instructed on) an alternative means crime. In reviewing this type ofchallenge, courts apply the rule that when there is sufficient evidence to support each ofthe alternative
means ofcommitting the crime, expressjury unanimity as to which means is not required. If, however, there is insufficient evidence to support any means, a particularized expression of juryunanimity is required. 

### State v. Ortega-Martinez, 124 Wn.2d 702, 707--08, 881 P.2d 231 (1994).2 Owens argues, andthe 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,juryunanimity is not required as to the means by which a defendant commits a crime, regardless ofwhether there is sufficient evidence to support each ofthe alternative means. See Gr(ffin v. UnitedStates, 502 U.S. 46, 56, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991) ("Petitioner cites no case, and we are aware ofnone, in which we have set aside a general verdictbecause one ofthe possible bases ofconviction was ... merely unsupported by suffi<;ient evidence."). J?ut the right to a unanimousjuryverdict in criminal trials in Washington is rooted in article I, section 21 ofour state constitution and not the federal constitution. Thus, a modification ofourjury unanimity doctrine in reviewing an alternative means challenge would be inconsistent with the state constitution, as well as many ofour cases from at leastthe past 30 years. Thus, wereject the State's argument. 5State v. Owens (Jerafnie David), No. 88905-8 Appeals agreed, that his conviction is invalid because there was no particularized expression of juryunanimitY,·as to the means by which he trafficked in stolen property andthere was.insufficient evidence supporting at least one ofthe alternative mcans. 3 · 

### b. StatutoryInterpretation The first issue is whether RCW 9A.82.050 is an alternative means crime and, ifso, whatthose alternative means are. This presents an issue ofstatutory interpretation. Generally, an alternative means crime is one by which the criminal
conduet may be proved in a variety ofways. 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 mustbe determined on its own merits, but our few cases on the subjecthave established some guidingprinciples. One guiding principle is that the use ofa disjunctive "or" in a list ofmethods ofcommitting 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 (201 0). Another principleprovides thatthe 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, objectedto thejury instructions, orproposednew instructions. 6State 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 ofproperty for sale to others, or who knowingly traffics in stolenproperty, is guilty oftrafficking in stolen property inthe first degree. RCW 9A.82.050(1). The analysis our cases have applied focuses onthe 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 thatthe 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) movingbetween counties. This courtheld, however, thatthe statute did not create alternative means because an individual's conductineach ofthe three scenarios did not vary significantly; the statute prohibitedthe single act ofmoving withoutproviding 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 ofAppeals 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 ofproperty for

7State 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 ofthe Court ofAppeals recently decided State v. Lind-:ey, 177 Wn. App. 233,311 P.3d 61 (2013). InLindsey, the defendant challenged his conviction for trafficking in stolen property, claimingthere was insufficient evidence to support all eight alternative means ofcommittingthe crime. Analyzing the statute as a whole, the court held that RCW 9A.82.050(1) describes only two alternative means oftrafficking in stolenproperty. Lindsey, 177 

## ·wn. App. at 241. [T]he placement and repetition ofthe word "knowingly" suggests that the legislature intended two means. The first "knowingly" clearly relates to all seven terms in the first part ofthe statute ... as a group..

. . Si-milarly, the phrase "the theft ofproperty for sale to others" relates to**th~** entire group. Treating these terms as a group indicates thatthey represent multiple facets ofa single means ofcommittingthe crime
...

. Ifthe statute described eight means, there would be no need to use · the word "knowingly" again. [Further], the first group ofseventerms relate to different aspects ofa single category ofcriminal conduct

- facilitating or ·· participating in thetheft ofproperty so that it can be sold. As aresult, these terms appear to be definitional. They are examples ofsuch facilitation or participation
.... Andtrafficking in stolenproperty involves a second, separate category
- transferring possession of property known to be stolen-· defined separately in [the definitional section ofthe statute].

8State 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 ofappeals in this case relied onState 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 ofalternative 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 oftrafficking in stolen property in addition to the means stated in former RCW 9A.82.050(2). At the beghming ofits discussion, Division One stated without analysis or commentthat 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 notbefore the court in eitherStrohm orHayes. 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 inLindsey correctly recognized, the discussion in Strohm does not resolvethe statutory analysis here.4 Further, we disagree with Strohm's characterization ofthe statute.

4 At oral argument, counsel for Owens conceded thatLindsey, rather thanStrohm, provided the proper interpretation ofthe statute.9State v. Owens (Jeramie David), No. 88905-8 Our conclusion thatRCW 9A.82.050(1) describes only two alternative
means is consistent with

### Peterson. The State points out thatthe words listed in the first clause ofRCW9A.82.050 do not address distinct acts because ofhow closely related those terms are. For example, it would be hard to imagine a single act of stealing whereby aperson "organizes" the theft but does not "plan" it. Likewise, it would be difficult to imagine a situation whereby aperson "directs" the theft but ·does not "manage" it. Any one act ofstealing often involves more than one of these terms. Thus, these terms are merely different ways ofcommitting one act,**specific~lly** stealing. Consistent with

### Peterson, where the various acts ofmoving 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 betweenthe seventerms 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 oftrafficking in stolen property.


### c. SufficientEvidence Because thejurywas not instructed that it must be unanimous as to the
means by which Owens committed the crime, we must determine whether

10State v. Owens (Jeramie David), No. 88905-8 sufficient evidence5 supports each ofthese two alternative means. Evidence is sufficient if, viewing the evidence in a light most favorable to the State, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. 

### State v. Franco, 96 Wn.2d 816,823,639P.2d 1320 (1982). Owens does not dispute that there is sufficient evidence to supportthe last alternative: that he was trafficking in stolen property. He argues, though, that even 

### ·'ifthere are only two alternative means oftrafficking in stolen property, insufficient evidence supports the alternative that he facilitated or participated in the 

### theft in
one ofthe sevenwe1ys listed in the first clause ofthe statute. Owens points out that because he was acquitted oftaking the car without permission, there is no evidence he is the individual who stole the car. We disagree. The statute does notrequire thatthe defendantpersonally steal the car. An individual can still participate in or facilitate the theft ofproperty without actually being the individual who physically took it. Owens also argued at oral argument thatthere was insufficient evidence to support the first means because all ofthe seven words listed require the participation ofanother person and there was

5 Some cases state that alternative means mustbe supported by "substantial evidence," butthe test consistently applied has beenthe sufficiency ofthe evidence standard. State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012). 11State v. Owens (Jeramie David), No. 88905-8

no proofthat anyone else other than Owens initiated, organized, planned, financed, directed, managed, or supervised the theft ofthe 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 thathe had purchasedthe car from another individual afterresponding to a Craigslist ad. Buthe couldprovide no details or 

### f documentation from the sale. The daimed circumstances ofOwens acquiring the only car that was stolenoffofMotor City's lot on July 3, 2010, with no real explanation ofhowhe did so, removing the roofrack and surfboard, replacing the**hig~1-performance** engine with a different engine, repainting the car, and reregistering thecar un?er a differentyear in such a shortperiod oftime is

·sut1icient evidence to**~upport** theconclusionthat he initiated orparticipated in the

theft ofthe 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 knowinglyinitiated, organized, planned, financed, directed, managed, or supervised the theft ofproperty for sale to others. 6

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

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

### Lastly, the State**argu~s** 

### thatany error was harmless and that this court should articulate a harmless error standard in the context ofalternative means
cases. We do notreach this issue, however, because we find no error.

"To convict the defendant ofthe crime ofTrafficking in Stolen Property in the First Degree
... each ofthe following elements ofthe crime must be proved beyond a reasonable doubt: "(1) That on or about the 28th day ofJuly, 2010, the defendant did knowingly initiate, organize, plan, finance, direct, manage or supervise the theft ofa motor vehicle for sale to others; "(2) Thatthe defendant did knowingly traffic in stolenproperty; and, "(3) That any ofthese acts occurred in Snohomish County." Clerk's Papers at 99. Because the defendant did not object to this instruction, itbecame 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 ofProceedings (Aug. 10, 2011) at 21. As a result, the State ultimately had to prove (and thejuryhad to find) that Owens bothparticipated in the theft ofthe car for sale to others and was trafficking the car. Thus, regardless ofhowthe statute is interpreted, thejury in this case was ultimately not instructed on an alternative means crime, and we can inferjuryunanimity as to the means by which Owens committed the crime as there were no other alternatives, butrather elements ofthe crime. Because there is sufficient evidence supporting each element ofthe charged crime in this case, as discussed above, there is evidence to supportthejury's verdict and the convictionwould still stand. 13State v. Owens (Jeramie David), No. 88905-8 We hold that RCW 9A.82.050 describes two means oftrafficking in stolen property, and in this case, sufficient evidence supportedboth means. We therefore
reverse the Court ofAppeals and reinstate the conviction.

WE CONCUR:



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