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# ~~ .fu,. SUSAN L. CARLSON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OFWASHINGTON
STATE OF WASHINGTON, ) ) No. 93119-4 Respondent, ) ) v. ) EnBanc ) DENNIS EARL ARMSTRONG, ) ) 

## MAY 1 1

## 2017 Petitioner. ) Filed

MADSEN, J.-In alternative means cases where substantial evidence supports both alternatives submittedto thejury,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 orderbecausethe trial courtinstructedthejurythat it need notbe unanimous as to which ofthe two means itrelied on, so long as it was unanimous as to the conviction. Becausethis is a correct statement ofthe law, we find no error. Armstrong further contends thatpolice violated his rightto due process because they did notretrieve certainvideo surveillance tapes, butArmstrong has not shown the required bad faith. Thus, his due process claim fails. We affirm. FACTS A no-contact order existedprohibitingArmstrong from contactinghis former partner, Nadia Karavan. Nonetheless, onApril 20, 2014, Karavan learnedthatNo. 93119-4 Armstrong was at a bus stop about a block away from where Karavan was staying. Because she hadbelongings 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 ofthe bus stop shelter. Armstrong then hit Karavan twice in the face with an open fist. After a briefstruggle, 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 QuindeliaMartin and Albert Elliot went to the AMPM and interviewed Karavan. Officer Martin noticedthat Karavan had a slightly swollen, red abrasion on the side ofher face. OfficerMiltonRodrigue located Armstrong ablock or two away from the AMPM. After OfficerElliot arrived, he and OfficerRodrigue interviewedArmstrong. Thepatrol car's camera capturedthe audio ofthe interview. During the interview, Armstrong denied spending time inside the AMPM. In response, the officers told Armstrong that surveillance video from the AMPMwould show what really happened. The officers repeatedly emphasizedthe video and told Armstrong thathe should "tell the truth" because they had the "wholething on video." At trial, Hawkins testified that there were about 16 cameras around the store: a few of

2No. 93119-4 which covered the gas pumps and one that may have shown a slight, low view shot ofthe bus stop. Although Hawkins testified that police had requested surveillancevideo from AMPM in the past, no officer requested footage from the night ofthis incident. Hawkins hadpreviously reviewed the video from thatnight and testified that it showed whathe described in his testimony, butper AMPMpolicy, the video had since been destroyed. Attrial, the officers gave various reasons why they never collected the video. OfficerMartin testified that she heard Officer Elliot ask about the video, but she assumed it was the responsibility ofsomeone else at the scene to investigate the video. Officer Rodrigue testified that he never viewed the video. He simply followed OfficerElliot's lead when the two were questioning Armstrong. OfficerElliotwas unavailable to testify at trial. Detective Rande Christiansen, who had been assigned to do the follow-up investigation onthe 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 ofa 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 ofhis reasons was that counsel failed to give him the surveillance video as he requested. Theprosecutortold the court thatthe State had neverpossessedthe video. The court denied Armstrong's motions. Relevant to Armstrong's unanimity challenge, the court instructed thejury: To convict the defendant ofthe crime ofviolation ofa court order, each ofthe following five elements ofthe crime must be proved beyond a reasonable doubt:

3No.93119-4 (1) That on or aboutApril 20, 2014, there existed a no-contact order applicable to the defendant; (2) That the defendant knew ofthe existence ofthis order; (3) That on or about said date, the defendantknowingly violated a provision ofthis order; (4) That: (a) the defendant's conduct was an assault or (b) the defendant has twice beenpreviously convicted for violating the provisions ofa court order; and (5) Thatthe defendant's act occurred in the State ofWashington. Ifyou find from the evidence that elements (1), (2), (3) and (5), and either ofthe alternative elements (4)(a), or (4)(b), have beenproved beyond a reasonable doubt, then it will be your duty to return a verdict ofguilty. To return a verdict ofguilty, thejuryneed notbe unanimous as to which of alternatives ( 4)(a), or ( 4)(b), has beenproved beyond a reasonable doubt, as long as eachjuror finds that at least one alternative has beenproved beyond a reasonable doubt. Onthe otherhand, if, after weighing all the evidence, you have a reasonable doubt as to any one ofthe five elements, then it will beyour duty to return a verdict ofnot guilty. CP at 28-29. Armstrong did not objectto this instruction. During closing argument, the prosecutor further explainedthis instruction: The fourth element is in the alternative. So maybe everybody got this right away, butwhatthis means is thatthere is [sic] two ways to committhis crime
.... Butthe kind ofsecondaryparagraph, the following paragraph that says, speaks about unanimity, so whether or notyouhave to be unanimous-that's a hard word to say-it's essentially instructingyou that ifsix ofyou believe that: Hey look, we don'tknow ifyou'vebeentwice previously convictedbutwe believe you assaulted her and six ofyou say: We thinkhe's been twice previously convicted but we don'tknow ifhe assaultedherbutwe do believe he violatedthe no-contact order by going to herresidence, then that's guilty. So you don'thave to be unanimous as to which ofthe alternative means were present; youjusthave to be unanimous that all four ofthe elements have been satisfied. VerbatimReport ofProceedings (July 31, 2014) at 17-18. Armstrong did not objectto this argument.
4No. 93119-4 Thejuryreturned a general guilty verdict. The Court ofAppeals 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 thejuryrelies, so long as sufficient evidence supports each charged means Armstrong argues that his right to a unanimousjuryverdict was violated when the court instructed thejurythat it did nothave to be unanimous as to whetherthe conviction rested on two prior violations or an assault. Armstrong did not objectto this instruction below, but we will consider errorraised for first time on appeal when "giving or failure to give an instruction invades a fundamental constitutional right ofthe accused, such as the right to ajurytrial." 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 145,150,312P.3d 960 (2013) (citingState v. Sieyes, 168 Wn.2d 276, 281, 255 P.2d 995 (2010)).

5No. 93119-4
Criminal defendants have aright to aunanimousjuryverdict in Washington. WASH. CONST. art. I,§ 21; 1State v. Whitney, 108 Wn.2d 506,511, 739 P.2d 1150 (1987) Uury must unanimously concludethatthe defendant committed the crime charged in the information). But in alternative means cases, where substantial evidence supports both alternative means submitted to thejury, unanimity as to the means is notrequired. 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 ("InArndt,
we held that ifsubstantial evidence supports each ofthe alternate means ofcommitting the single crime charged, and the alternate means are notrepugnant to one another,jury unanimity as to the mode ofcommission 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) (citingArndt, 87 Wn.2d at 377-78), abrogatedon othergrounds by State v. Sandholm, 184 Wn.2d 726, 736, 364 P.3d 87 (2015). For more than 75 years, we have upheld unanimousjuryverdicts based on alternative means where thejury did not specify which alternative provided the basis for the verdict. See State v. Stuhr, 1Wn.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 ofthose principles.2

1The Sixth Amendmentto the federal constitution does notrequirejuryunanimity in state court criminal trials. Apodaca v. Oregon, 406 U.S. 404, 406, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972). 2 Forthis court to reject ourprevious holdings, the party seeking thatrejection must showthat 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).

6No. 93119-4
An alternative means crime is one where the legislature has provided that the State may prove theproscribed criminal conduct in a variety ofways. 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 ofa court order. CP at 1-2; RCW 26.50.110. Although generally a gross misdemeanor, a violation ofRCW 26.50.110 is a class C felony ifcommitted in either of two ways: (1) the violation ofthe order is also an assault or (2) the offenderhas at least two previous convictions for violating aprotection order. RCW 26.50.110(4), (5). The parties agree that a felony violation ofa court order is an alternative means crime. 3 Sufficient evidence is that whichjustifies a rational trier offact finding guilt beyond a reasonable doubt. Ortega-Martinez, 124 Wn.2d at 708 (citing Green, 94 Wn.2d at 220 (citingJackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979))). "The evidence is sufficient if'afterviewing the evidence in a light most favorable to the State, any rational trier offact 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 ofassault, Karavan testified thatArmstrong struck her twice in the face with an open fist. Responding officers corroboratedthis claim, testifying that Karavan had red abrasions on her face. As to the means oftwo priorviolations,

3 Suppl. Br. ofPet'r at 4-6; Suppl. Br. ofResp't at 6; see alsoArmstrong, slip op. at 4.

7No.93119-4 Detective Christiansen testified that Armstrong had two previous convictions for violating a court order, and the court admitted thejudgment and sentences from those convictions as exhibits. Viewingthe evidence in the light most favorable to the State, a rational trier offact could have found guiltbeyond a reasonable doubt for both alternative means, which Armstrong does not dispute. Armstrong does not argue that there was insufficient evidence on either ofthe charged means. Rather, he asserts that sufficient evidence cannotbe a basis to affirm in this particular case because the court committed affirmative constitutional error by instructing thejurythat it need not be unanimous. Armstrong bases his argument that unanimity as to each charged means is required on this court's language in OrtegaMartinez, 124 Wn.2d at 708. In dicta, the court said, "In certain situations, the rightto a unanimousjurytrial also includes the right to expressjuryunanimity onthe means by which the defendant is found to have committedthe crime." Id. at 707. The court suggestedthat the lack ofexpress 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 aright to unanimity as to means where sufficient evidence supported both alternatives.

8No. 93119-4
In Ortega-Martinez, the courtheld, consistent with long-settled case law, thatjury 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 aboutwhen unanimity might be required as to each means was unnecessary. Further, the cases cited for the propositionthat unanimity as to means mightbe 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 ofthe means. In such a circumstance, the court had no assurance that the juryrested its verdict on a valid means. Id. at 233. And any dicta in Green to supportthe proposition thatunanimity would be required in "other situations," such as ifthe alternative means were distinct crimes, was disavowed in Whitney, 108 Wn.2d at 511. The Ortega-Martinez majority also cited Whitney. Butthat case also emphasized thatjuryunanimity 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 juryunanimity does not entail the danger

...that any ofthejurymembers may have based their finding ofguilt 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 requiresjuryunanimity only as to guilt ofthe 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 inferjuryunanimity for alternative means

9No. 93119-4
crimes becausethey 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 mustprove the essential elements ofthe 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 offact could have found the essential elements beyond a reasonable doubt. Id. at 319. Similarly, the right tojury unanimity requires that each member ofthejury find thatthe State has proved each element beyond a reasonable doubt. When one element ofthe crime can be satisfied by alternative means,juryunanimity is satisfied ifthejuryunanimously agrees the State proved that elementbeyond a reasonable doubt and the evidence was sufficient for each alternative means ofcommitting that element. When there is insufficient evidence to support one ofthe alternative means charged and thejury does not specifythat itunanimously agreed onthe other alternative,
we are faced with the danger thatthejuryrested its verdict on an invalid ground. In those situations, the conviction cannot stand. Thus, as we have said before, an instruction on juryunanimity as to the alternative method found is preferable. 

### Whitney, l08 Wn.2d at 511. Giving such an instruction eliminates potentialproblems that may arise when sufficient evidence does not support one ofthe alternatives. Id. But an instruction being

10No. 93119-4 preferable does not make it a requirement. Because sufficient evidence supported the alternative means in this case, Armstrong's right tojury unanimity was preserved. 2. Dueprocess is not violated when the police fail to preserve potentially useful evidence in the absence ofshowing 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 Amendmentto the federal constitution, criminal prosecutions must conform with prevailing notions of fundamental fairness, and criminal defendants musthave 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 (citingBrady v. Maryland, 373, U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). The state due process clause extends the sameprotection 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), overruledon othergrounds by State v. Condon, 182 Wn.2d 307, 343 P.3d 357 (2015). Althoughthe State is required to preserve all potentially material and favorable evidence, this rule does not require police to search for exculpatory evidence. State v. 11No. 93119-4 Judge, 100 Wn.2d 706, 717, 675 P.2d 219 (1984). The United States Supreme Courthas thus been unwilling to impose on police '"an undifferentiated and absolute duty to retain and to preserve all material that mightbe ofconceivable evidentiary significance in a particularprosecution."' 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 ofsuch 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 "'potentiallyuseful' evidence," on the other hand, failure to preserve by the police is not a denial ofdue process unless the suspect can show bad faith by the State. Id. at 477 (quoting Youngblood, 488 U.S. at 58); see also Cunningham v. City ofWenatchee, 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). "'Thepresence or absence ofbad faith
... turn[s] on the police's knowledge ofthe exculpatory value ofthe 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 establishedpolicy 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 plaintiffmust "put forward specific, nonconclusory factual allegations that establish

12No.93119-4 improper motive." Cunningham, 345 F.3d at 812 (quotingJeffers 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. Accordingto Armstrong, the police acted in bad faith because they told him duringthe interviewthat they were going to collectthe video butthey never actually collected it. Armstrong describes this as the police acting with an "extreme cavalier attitude" towardpreserving potentially useful evidence. Beyondthis failure to collect the video, Armstrong offers no evidence ofbad 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 collectthe surveillance video from the AMPM. The testimony ofthe officers indicates that the video went uncollected due to mere oversight. Armstrong has presented no evidence that thepolice had an improper motive. Atmost, Armstronghas shownthat the investigation was incomplete orperhaps negligently conducted, butthat is not enoughto show bad faith. Further, although Hawkins testified thatpolice had requested surveillance video in the past, Armstrong has presented no evidence thatpolice acted in violation ofan establishedpolicy. He, in fact, concedes that no writtenpolicy required the police to collectthe video. This result is consistent withthe Ninth Circuit's application ofthe Youngbloodbad faith standard. In Cunningham, the Ninth Circuit found thatthe police officer's failure to collectphysical evidence, such as bed sheets or clothing, was not in bad faith. 345 F.3d

13No.93119-4
at 812. In reaching that conclusion, the court emphasized thatthe value ofuntested 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 plaintiffhad shown bad faith. Id. (citingMiller, 868 F.2d 1116). In that case, the officerreferred to the plaintiffusing an expletive, lied about his knowledge ofthe potentially exculpatory evidence, and tried to dissuade witnesses from testifying in favor ofthe plaintiff. Id. (citingMiller, 868 F.2d at 1121). The failure ofthe officer in Cunningham to collectphysical evidence did not rise to that level ofbad faith. Similarly, Armstrong has failed to show that police acted in bad faith here when they did not collectthe surveillance video. CONCLUSION We have held for more than 75 years thatjuryunanimity as to means is not required in alternative means cases where substantial evidence supports both alternatives. Armstrong's case is a straightforward application ofthis long-standingprinciple. Further, Armstronghas 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.

14No.93119-4



### WE CONCUR:

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



### No. 93119-4 GORDONMcCLOUD, J. (

### dissenting)-Themajorityis correctthatthis court does not require jury unanimity as to "alternative means," so long as there is sufficientevidenceto supporteachofthemeans alleged. Majorityat 6. Themajority is also correct that Dennis Armstrong concedes he was charged with an alternative
means crime-inotherwords, he agrees thatviolating aprotectionorder (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 RCW26.50.110(4), (5)). Andif 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, suchunanimityis not required. 1State v. Armstrong (Dennis), No. 93119-4 (Gordon McCloud, J., dissenting)



### Irespectfullydissent, however, becauseIdo notbelievethatthis an alternative
means case. In a true alternative means case, the prosecution pleads alternatives that all support one fundamentally coherent theory ofa 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 ofa 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 offorce 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 ofsingle transaction). In such cases, thejury can split as to the precise means the defendant used to accomplish the crime (premeditated intent to kill or

### rob; threat or

### use offorce), 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.

2State 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 ofthe 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 Armstronghitherandtestimonybyresponding officersthatthe victimhadabrasions
on her face when they arrived at the scene. Majority at 7. According to the other theory, Armstronghad specificpriorconvictions atthetime ofthe chargedviolation. This theory depended on testimony and written documentation regarding Armstrong's crimiμal history. 

### Id. at 7-8. Ajurythat splits onthese means does not agree on a fundamentally coherent theory ofthe crime. Ifthe right to a unanimous juryverdictis to have any meaning at all, itmustprotect againstthatoutcome-both this court andthe United States Supreme Courthave recognized as much. I would therefore reject Armstrong's concession1 

### that this is an alternative
means case that is controlledby our existingprecedent on article I, section 21 ofthe Washington Constitution. Instead, I would call for briefing on a different question: whether Armstrong's conviction must be reversed under state or federal law

1See State v. Coley, 180 Wn.2d 543, 557 n.3, 326 P.3d 702 (2014) (rejecting State's concession on dispositive burden ofproofissue). 3State 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 thejury instructions in this case, which allowed thejury to convict Armstrong ofa single felony even if they disagreed about which ofthose two acts he committed. Majority at 4, 7. In an analogous context, the United States Supreme Courthas recognizedthat when ajury 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 

### (l999); 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 ofthe

### 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" ofcommitting a crime. 

### Schadv. Arizona, 501 U.S. 624, 636-39, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) (plurality opinion); U.S. 4State v. Armstrong (Dennis), No. 93119-4 

### (Gordon McCloud, J., 

### dissenting)

CONST. amend. XIV. Butwhenthose facts relate to actual "elements" ofthe crime,
a conviction cannot stand unless thejury unanimously agrees that the prosecution has provedthose 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 ajury must be unanimous. 

### Id. at 633 (plurality opinion) ("nothing in ourhistory suggests thatthe 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 ofjury 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 injudgment) ("one can conceive of novel 'umbrella' crimes ( a felony consisting ofeither 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, ifthe legislature intended to create "mere means" (as to which the 5State v. Armstrong (Dennis), No. 93119-4 (GordonMcCloud, J., dissenting)


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

### Richardson, 526 U.S. at 818-20. Ifthe answerto eitherquestionis no, thenthe right tojuryunanimity 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 ajury 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 ofthe federal due process clause3 (

### and although we discussed it as primarily a question oflegislative intent),4 

### we drew a line similar to

2 In the context ofthejury 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 unconstitutionalbecause ittreatedtmeelements as "meremeans." However, that Court has relied on the canon of constitutional avoidance to conclude that Congress intendedto create elements as opposedto means. InRichardson, the Court interpretedthe federal "'continuingcriminalenterprise' (CCE)" "statute'sphrase 'series ofviolations' [to]

... create several elements," such that thejury had to be unanimous as to which alleged CCE "violations" infact 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 "simplyas alternative means." Richardson, 526U.S. at 819. 

### Itthereforeheld that each violation was an element, concluding that there was no evidence Congress intendedthe statute to "test
... constitutional limits." Id. at 820.
3Arndt, 87 Wn.2d at 377 (citing State v. Carothers, 9 Wn. App. 691, 694 n.2, 514 P.2d 170 (1973)). 4Id. at378 ("HowcanitbedeterminedifRCW74.08.331 describes a single offense committable in more than one way, or describes multiple offenses? What must be ascertained is the legislature's intent
...."). 6State v. Armstrong (Dennis), No. 93119-4 (Gordon McCloud, J., dissenting)



### the United States Supreme Court's. We heldthat a statute creates alternative crimes, triggering the right to a unanimousjury, 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 ofthe acts prohibitedunder a statute: "'[(l)] whetherthere is a readily perceivable connection between the various acts set forth [in the statute]; [(2)] whetherthe acts are consistentwith andnotrepugnantto one another; [(3)] and whetherthe acts may inhere in the sametransaction."' 

### 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 ofcommitting 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 aboutthe various '"fraudulentdevice[s]'"prohibitedin RCW 74.08.331, a statute criminalizing the '"obtaining
... [of] public assistance to which one is not entitled
... "bymeans 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 7State v. Armstrong (Dennis), No. 93119-4 (Gordon McCloud, J., dissenting)


### affecting eligibility or need for assistance
....'" Arndt, 87 Wn.2d at 381 (quoting State v. Walters, 8Wn. App. 706, 707-08, 508 P.2d 1390 (1973)). We reasonedthat 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 intentto sell, barter, exchange, give away, use, furnish, or otherwise dispose ofthe same; or to buy, accept or receive the same; or ... to ... possess[] more than [certain specified amounts ofliquor]." Id. at 382 (quoting City ofSeattlev. 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 thejury need not be unanimous (as opposed to alternative crimes on which thejury must be unanimous) only where ajuror can logically determine beyond a reasonable doubt that the defendant committed the general crime charged, without also determining which ofseveral acts he or she did
8State v. Armstrong (Dennis), No. 93119-4 (Gordon McCloud, J., dissenting)



### to committhat general crime. In other words, the constitution does not demandjury unanimity as to means when those means differ as to preliminary factual issues but do not differ as to the bottom line definition ofthe crime.5 

### On the otherhand, where those alternativesreally describe different bottom line crimes-whereajurorcannot determine that the defendant in .fact 

### committed the crime charged without also

5 See Schad, 501 U.S. at 631-32 ("'differentjurors may be persuaded by different pieces ofevidence, even when they agree on the bottom line [and]
... there is no general requirement that thejuryreach 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 thejudgment) ("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 sixjurors 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 statuteprohibiting sexual intercourse accomplished by either threat or use offorce described alternative means, not alternative crimes or elements, where evidence showed defendant forced victim to have sexbypunchingher, chokingher, and threateningher with death, all in the course ofsingle 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 arobbery, orfleeing an attemptedorcompleted robbery, "eachjurorstill 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"), overruledinparton othergrounds byState v. Jenks, 61 Ohio St. 3d259, 282, 574 N.E.2d492 (1991); State v. James, 698 P.2d 1161, 1167 (Alaska 1985) Qury unanimity right is notviolated where "case
... does notpresent a situation in whichjurors mighthave 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). 9State 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 ofcommitting 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 thatthis case falls into the second category. The two modes ofcommission alleged in this case-violation ofa 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 ofwhat occurred
.. One describes the severity ofthe 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 unanimousjury is meaningless unless it guarantees "substantial agreement as tojustwhat a defendant did"; defendanttherefore entitledtojury unanimity as to means ofcommitting 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 murderhas been provedbeyond a reasonable doubt"). 10State v. Armstrong (Dennis), No. 93119-4 (Gordon McCloud, J., dissenting)


### multiple, different criminal acts occurring at distincttimes7

### -andthis courthas long required expressjuryunanimity in such multiple acts cases. 8 

### CONCLUSION The State advanced two fundamentally different theories ofguilt inthis case. By allowing the jury to convict even ifit did not agree on which theory the State actually proved, thejury instructionsjeopardized 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 ofsomething-"that where there is smoke there must be fire." 

### Richardwn, 526 U.S. at 819. Armstrong challengedthe legality ofhis convictionbecause ofthe

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 somejurors may have relied on one act or incident and some another, resulting in a lackofunanimity on all ofthe elements necessary for a valid conviction"), abrogated in part on other grounds by In re Pers. RestraintofStockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014); UnitedStates v. Beras, 833 F.2d 455, 460-61 (3d Cir. 1987) (Gipson's reasoning-thatunanimity 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 ofwhich could constitute one ofthe acts proscribed by the charged statutes" (quoting Gipson, 553 F.2d at 457-58)). 8See State v. Carson, 184 Wn.2d 207,227,357 P.3d 1064 (2015) (where State fails to elect which ofseveral 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)). 11State v. Armstrong (Dennis), No. 93119-4 (Gordon McCloud, J., dissenting)



### lack ofjury 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 errorwas harmless in this case. For all ofthese reasons, I respectfully dissent.

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

13