SUSAN -.cARLSON SUPREME COURT CLERK



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 91577-6 Respondent,


### v. ENBANC DAVID EARL WOODLYN, Filed 

### APR 

## 13 

## 2817

------- Petitioner.
STEPHENS, J.-Inthe summer of2011, DavidEarl Woodlyn cashed a series of blank checks written by Dora Kjellerson, an elderly woman suffering from dementia. Intotal, Woodlyn withdrew $1,865 from Kjellerson's account. The State charged Woodlyn with theft in the second degree, an alternative means crime. The jury's "to convict" instructionrequired thejuryto unanimously agree on Woodlyn's guilt-but not on 

### how he committed the crime. Clerk's Papers (CP) at 72. In other words, the jury could return a guilty verdict even if individual jurors disagreed whether Woodlyn committed theft because he (1) "wrongfully obtained"State v. Woodlyn (DavidEarl), 91577-6


### Kjellerson's property or instead (2) "obtained control" over Kjellerson's property "by color or aid ofdeception." 

### !d. Thejuryreturned a general verdict ofguilty. Woodlyn appealed, arguing the general verdict violated his right to jury unanimity under article I, section 21 ofthe state constitution insofar as the evidence
was insufficient to support conviction under the "wrongfully obtained" alternative. The Court ofAppeals agreed that the evidence ofthis means was insufficient, but nonetheless affirmed, holding that any error was harmless. The court reasoned that the absence ofevidence ofthe theft bytaking alternative reasonably showed that the jury's verdict rested on the theft by deception alternative. We reject the Court of Appeals reasoning. A determination on appeal that the State failed to support one
or more alternative means does not establish that the jury relied unanimously on another, supported alternative. We nevertheless affirm the Court ofAppeals in result because we conclude the evidence before the jury was sufficient to support both alternative means of second degree theft. We affirm on this basis. FACTS AND PROCEDURAL HISTORY Woodlyn was charged, tried, and convicted oftheft in the second degree. The State alleged that Woodlyn wrote and cashed checks totaling $1,865 from the account of Kjellerson. CP at 4-5. Woodlyn acknowledged cashing the checks but denied

-2-State v. Woodlyn (DavidEarl), 91577-6
stealing from Kjellerson, maintaining that he cashedthe checks on herbehalf, gave her
some of the cash, and kept the rest as payment for cutting Kjellerson's lawn. The following facts were offered at trial: Inthe summerof2011,Woodlynwas unemployed save for occasional lawn care work. Woodlyn first met Kjellerson when he knocked on her door and offered to cut her lawn for $60. Kjellerson was elderly, lived alone, and was later found to be suffering from "moderate to severe dementia." Verbatim Report ofProceeding (VRP) (Nov. 13, 2013) at 538. According to Woodlyn, he cut Kjellerson's grass and performed otheryard workthreeto five timesthat summer. Woodlyntestifiedthat each time, Kjellerson paid him by signing an otherwise blank check, leaving Woodlyn to write inthe payee and amount. On August 27,2011, Woodlyn accompanied Kjellerson to herbank. Kjellerson indicatedthat Woodlyn needed moneyto cutthe grass, but did not appearto knowhow much. When the teller asked Woodlyn how much Kjellerson needed to withdraw, Woodlyn responded by asking how much she had. Alarmed, the teller refused to dispense any funds, and a bank employee called the police. Woodlyn left the bank alone, and Kjellerson was accompanied home bythe responding officer. Noting that the grass in Kjellerson's yard was roughly one foot high and "kind ofover grown," the officer asked Kjellerson how much money she paid for yard work. VRP (Nov. 18,

-3-State v. Woodlyn (DavidEarl), 91577-6

2013) at 688-89. Kjellerson estimated that shepaidWoodlyn $60 during the month of August. Accordingtothebank, Woodlyninfact cashed seven checks from Kjellerson's account between July 25, 2011 and August 12, 2011. The checks ranged from $60 to $440, totaling $1,865. Id. at 746-51. The State charged Woodlyn with theft in the second degree. The "to convict" instruction to thejury set out two alternative means ofcommitting the crime: (1) that Woodlyn "wrongfully obtained" Kjellerson's property or (2) that Woodlyn "obtained control" over Kjellerson's property "bycolor or aid ofdeception." CP at 72. The trial court instructed thejurors that while they must agree unanimously as to Woodlyn's guilt orinnocence, they could find Woodlyn guiltywithout agreeing unanimously as to the means. See 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 70.06 (4th ed. 2016); CP at 72-73. The jury returned a general verdict ofguilty. CP at 87. Woodlyn appealed, claiming a violation of his right to a unanimous verdict because the State failed to present sufficient evidence to support the theft by taking alternative. State v. Woodlyn, No. 71311-6-1, slip op. at 5 (Wash. Ct. App. Mar. 9, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/713116.pdf. The State conceded that "'[ n]o evidence oftheftbytaking was presentedto thejury,"'but argued that the absence ofevidence oftheft bytaking rendered any error harmless. I

### d. at 6-7

-4-State v. Woodlyn (DavidEarl), 91577-6

(alteration in original). On this basis, the Court ofAppeals affirmed, reasoning that because "deception was the only basis for thejury to have concluded that Woodlyn's acceptance of Kjellerson's checks
... was 'wrongful,"' the jury must have relied unanimously on the theft by deception alternative. Id. at 10. This court granted Woodlyn's petition for review. State v. Woodlyn, 185 Wn.2d 1024, 369 P.3d 502 (20 16). The State then withdrew its concession. The State now argues that sufficient evidence supports both alternative means ofcommitting theft. ISSUES (1) When a trial court erroneously instructs thejuryit need notunanimously agree on the means bywhich the defendant committed a crime, is this error harmless based on a determination that no evidence supported one ofthe alternative means? (2) Was there sufficient evidence at trial to support Woodlyn's second degree theft conviction based on either alternative means? ANALYSIS Our precedent addressing alternative means crimes requires unanimity as to
means onlywhen a general verdict raises due process concerns, i.e., when one ormore alternatives presented to thejury are not supported by sufficient evidence. See State v. Arndt, 87 Wn.2d 374, 377-378, 553 P.2d 1328 (1976); State v. Franco, 96 Wn.2d 816, 823, 639 P.2d 1320 (1982), distinguished on othergrounds by State v. Sandholm, 184

-5-State v. Woodlyn (DavidEarl), 91577-6

Wn.2d 726,736, 364 P.3d 87 (2015); State v. Whitney, 108 Wn.2d 506,511,739P.2d 1150 (1987); State v. Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994); State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014); State v. Wright, 165 Wn.2d 783, 802, 203 P.3d 1027 (2009). This principle is sufficient to resolve the case. Although the Court ofAppeals found that the State had not proved the theft bytaking alternative, Woodlyn, slip op. at 10, a review ofthe record shows sufficient evidence supports this means ofcommitting second degree theft. Because sufficient evidence supported each alternative means, we uphold thejury's general verdict. In doing so, however,werejecttheharmless errorapproach adoptedbytheCourtofAppeals. When
one alternative means ofcommitting a crime has evidentiary support and another does not, courts maynot assume thejuryrelied unanimously onthe supported means. A. Jury Unanimity in Alternate Means Cases in Washington The Washington Constitution guarantees criminal defendants the right to a unanimousjuryverdict. WASI-L CoNST. art. I, 

### § 21; see Ortega-Martinez, 124 Wn.2d at707. However, when a crimemaybecommittedindifferent ways (i.e., viaalternative means), the exact requirements ofthis rule are not always clear. In enacting criminal statutes, thelegislaturemayarticulatea set of prohibitedbehaviors as (1) alistofdistinct offenses or (2) a single offense with one or more alternative means. See, e.g., State v. Peterson, 168 Wn.2d 763, 769, 230 P.3d 588 (2010). The criminal act charged in this

-6-State v. Woodlyn (DavidEarl), 91577-6

case, theft in the second degree, is an alternative means crime. See, e.g., State v. Linehan, 147 Wn.2d 638, 644-45, 56 P.3d 542 (2002) (noting that theft by wrongful obtainment and theft by deception are alternate means). Courts analyzing unanimity in alternative means cases are confronted with competing concerns. Thepurpose ofunanimity is to secure the integrity andreliability of jurydeliberations and verdicts. See, e.g., Richardson v. UnitedStates, 526 U.S. 813, 819, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999) (discussing unanimity in the federal Sixth Amendment context). Asking thejury for nothing beyond a general verdict-a simple up or down vote on guilt orinnocence-maymask "wide disagreement among thejurors aboutjust what the defendant did, or did not, do." 

### I d. at 819. 1 Onthe other hand, ifajurymust specifically articulate its unanimous agreement as to each element, subelement, and relevant fact before it can convict, a defendant might go free even though thejuryunanimously agrees that he or she behaved criminally. In this case, Woodlyn asserts that the "[state] constitutional right to jury unanimity applies to alternative means ofcommitting the crime." Suppl. Br. ofPet'rat 5. Ourprecedent does not support so broad a proposition.

1 The United States Supreme Court cautioned in Richardson that "jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding from testimony, say, of bad reputation, that where there is smoke there must be fire." Richardson, 526 U.S. at 819. -7-State v. Woodlyn (DavidEarl), 91577-6

We have never recognized a categorical right to express unanimity (i.e., unanimity as to means) in alternative means convictions. 

### SeeArndt, 87 Wn.2d at 377- 78; 

### Franco, 96 Wn.2d at 823; 

### Whitney, 108 Wn.2d at 511. Rather, there are particular situations when express unanimity is required, specifically when at least one means lacks sufficient evidentiary support. 

### See, e.g., Owens, 180 Wn.2d at 95. Washington
caseshave adopted an analysis thatturns onthe sufficiencyofevidence as a dueprocess
concern: ifthejuryis instructed on one ormore alternative means that is not supported by sufficient evidence, a "particularized expression" ofjury unanimity as to the supportedmeans is required. 

### Id. Thepurpose ofthisrequirementis to ensurethat when
a verdict might be based on more than one alternative, the verdict is adequately supported.2 

### See Wright, 165 Wn.2d at 803 n.l2 (requiring reversal ifit is "impossible 

### to rule out the possibility the jury relied on a charge unsupported by sufficient evidence"). Whenthere is sufficientevidenceto support each alternative means, Washington defendants do not enjoy a recognized right to express unanimity. In

### Arndt, this court

2 "Adequately supported" in this context means that a rationaljury could find that each element is supported beyond a reasonable doubt. See, e.g., State v. Green, 94 Wn.2d 216, 230, 616 P.2d 628 (1980). Constitutional due process requires the prosecution to present evidence on "everyfact necessary to constitute the crime" and thejuryto find each element satisfied beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). -8-State v. Woodlyn (DavidEarl), 91577-6

declared that defendants have no right to unanimity as to means so long as all means alleged are (1) supported by sufficient evidence and (2) '"not repugnant'" to one another. 87 Wn.2d at 378-79 (quoting State v. Kosanke, 23 Wn.2d 211,213, 160 P.2d 541 (1945)). Sandholm most recently restated this general rule: "In alternative means cases, where the criminal offense can be committed in more than one way, we have announced a rule that an expression ofjury unanimity is not required provided each alternativemeanspresentedto thejuryis supportedby sufficient evidence." 184 Wn.2d at 732.B. The Court of Appeals Incorrectly Reasoned That a Complete Lack of Evidence for One Alternative Renders AnyUnanimityError Harmless Before the Court ofAppeals, Woodlyn argued that the jury's general verdict must be reversed because the State failed to present sufficient evidence to support both alternative means ofthe crime charged. The State conceded that it had presented no evidence ofone alternative-theftbytaking-and instead focused entirely on theft by deception. Nevertheless, the State maintained that any error was harmless because the court could safely conclude that thejury, though instructed on two alternative means, relied solely on the means supported by sufficient evidence. The Court ofAppeals agreed, finding that when one alternative is adequately supported and the other is

-9-State v. Woodlyn (DavidEarl), 91577-6


### entirely unsupported, courts may assume the jury relied on the supported means.3 Woodlyn, 

### slip op. at 7, 10. We disagree. A general verdict satisfies due process only so long as each alternative means is supported by sufficient evidence. Arndt, 

### 87 Wn.2d at 377-378. Ifthere is insufficient evidence to support any 

### ofthe means, a "particularized expression" of jury unanimity is required. Owens, 

### 180 Wn.2d at 95 (citing Ortega-Martinez, 

### 124 Wn.2d at 707-08). Thus, areviewing court is compelledto reverse a general verdictunless it can "rule out thepossibility

### thejuryrelied on a charge unsupported by sufficient evidence." Wright, 

### 165 Wn.2d at 803 n.12. In essence, the approach adoptedbythe Court ofAppeals asserts that acomplete lack 

### ofevidence for one alternative allows courts to "rule out" the possibility that any member ofthejury relied on the factually unsupported means. Woodlyn, 

### slip op. at 1 (suggesting that any erroris harmless because the court "can determine from the record that thejury's verdict was based on only one means"); Wright, 

### 165 Wn.2d at 803 n.12. This defies logic. As Woodlyn observes, "It 

### would be a curious rule ifinsufficient evidence ofthe alternative both gives rise to the error and renders it harmless." Pet. for

3 The Court ofAppeals decision followed thereasoning ofprevious published Court ofAppeals decisions. See State v. Witherspoon, 171 Wn. App. 271,285-87,286 P.3d 996 (2012) (plurality opinion); State v. Rivas, 97 Wn. App. 349, 354-55, 984 P.2d 432 (1999). By our decisiontoday, we expressly disapprove ofthis reasoning. -10-State v. Woodlyn (DavidEarl), 91577-6

Review at 9. A post hoc review ofthe record does not allow an appellate court to see into theminds of jurors. This exercise does not dispel thepossibilitythatthejurymight have convicted based on insufficient evidence. Indeed, given that the trial court instructed the jury in this case on two alternative means, CP at 72-73, it would be reasonable for the jurors to think that either alternative represented a viable path to conviction. Suppl. Br. ofPet'r at 15 ("'Ifthejudge tells ajurythat they may find the defendant guiltyona theorythatis factually unsupported
... ,thejurorsunderstandably might believe that there must be**evidenc~** to support that theory."' (quoting Commonwealth v. Plunkett, 422 Mass. 634, 639-40, 664 N.E.2d 833 (1996))). Absent
some form ofcolloquy or explicit instruction, we cannot assume that every member of thejuryrelied solelyonthe supported alternative. The approach adoptedbythe Court ofAppeals is also impractical. In effect, the rule would recognize that a defendant is entitled to expressjury unanimity when the evidence is insufficientto support one ofthemeans charged, butnotwhenthe evidence supporting that means is entirely lacking. Thus, it burdens the appellate courts with distinguishing between evidence that is merely insufficient and evidence that is totally insufficient. The United States Supreme Court in Griffin 

### v. United States was asked to adopt
a similar rule: that due process is satisfied only "when the prosecution presents no
-11-State v. Woodlyn (DavidEarl), 91577-6

evidence whatever 

### to support the insufficient [means, and not when] the prosecution offers some, 

### but insufficient, evidence." 502 U.S. 46, 58, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991). The court soundly rejected this proposed distinction: [Thepetitioner's] novel theoryposits two different degrees offailure ofproofa failure that is stifficiently insufficient, [which will be deemed harmless,] and one that is instifficiently insufficient[, which will not be deemed harmless]. Besides producing an odd system in which the greater failure of proof is rewarded, the rule seems to us full ofpractical difficulty. !d. 

### (second emphasis added); seealsoPeoplev. Guiton, 

### 4Cal. 4th 1116, 1127,847 P.2d 45, 17 Cal. Rptr. 2d 365 (1993) ("[w]e agree with the [Griffin] 

### court in rejecting the distinction between evidence that is sufficiently insufficient and evidence that is insufficiently insufficient"). Although this court departed from Griffin 

### in OrtegaMartinez 

### by asserting that Washington's constitution affords criminal defendants additional due process protections, we did not reject the reasoning quoted above, and it retains persuasiveforce. We declineto adopt arulethatrelies on acomplete evidentiary failure as proofofharmless error. While we**r~ject** 

### the Court ofAppeals harmless error analysis, we nevertheless affirm Woodlyn's conviction because our review ofthe record confirms that sufficient evidence was presentedto supportboth alternative means ofcommitting second degree theft.

-12-State v. Woodlyn (DavidEarl), 

### 91577-6

C. Applying Arndt, 

### the State Presented Sufficient Evidence To Affirm Woodlyn's Conviction As noted, in its briefing to this court the State withdrew its factual concession concerning the sufficiency ofthe evidence oftheft bytaking. The State now primarily argues that sufficient evidence supports both alternative means, as "[a] rational juror could find that Woodlyn both used deception and wrongfully obtained more than $750 from Kjellerson." Suppl. Br. ofResp't at 9.4 

### Because both alternative means in this
case are supported by a common set offacts, we affirm on this basis. SeeArndt, 

### 87 Wn.2d at 376. Woodlyn concedes thatthe Statepresented sufficientevidenceto supportthe first alternative-that areasonablejury could have found Woodlyn "obtained control" over Kjellerson's property "by color or aid ofdeception." Suppl. Br. ofPet'r at 16-17; CP at 72. However, Woodlyn argues that the State did not present sufficient evidence to support the theft by taking alternative. The Court ofAppeals concurred, finding that '"[n]o evidence oftheft by taking was presented to thejury.'" Woodlyn, 

### slip op. at 6, 10 (alteration in original). We cannot agree. Based on the record, arationaljurycould have concluded beyond a reasonable doubt that Woodlyn "wrongfully obtained"

4 

### The State also asks this court to adopt the Court ofAppeals analysis as a fallback position. See 

### Suppl. Br. 

### ofResp't at 15. -13-State v. Woodlyn (DavidEarl), 91577-6

control ofKjellerson'sproperty. See, e.g., State v. Green, 94 Wn.2d216, 230,616P.2d 628 (1980) (plurality opinion) (stating the sufficiency ofevidence standard). To support conviction based on theft by taking in the second degree, the State
was requiredto provethreethings: thatWoodlyn, withintentto deprive, (1) wrongfully obtained control over (2) Kjellerson's property, and (3) that the value ofsaid property exceeded $750. RCW9A.56.020(1)(a), .040(1)(a); CP at 72. To "wrongfullyobtain[]"
means to take without consent. RCW 9A.56.010(22). Woodlyn argues thejury could not have found he "wrongfully obtained" Kjellerson's property because "Kjellerson gave Woodlyn permission to cash the checks, that is, she consented to the taking." Suppl. Br. ofPet'r at 3. This argument rests on a misreading ofRCW 9A.56.020. There is no dispute that Kjellerson voluntarily gave Woodlyn checks to cash. However, the implication of Woodlyn's consent argument-that property, once voluntarily given, cannot be stolen-is inconsistent with our case law. See State v. Clark, 96 Wn.2d 686, 691, 638 P.2d 572 (1982) (exceeding the scope ofpermitteduse may constitute theft). Importantly, Kjellerson's checks are not the property at issue, so whether she gave them to Woodlyn voluntarily is irrelevant. Instead, Woodlyn is charged with obtaining Kjellerson's money without consent. He did so by altering the checks she gave him. On this record, it was reasonable for thejuryto conclude that Woodlyn did not have Kjellerson's consent to withdraw $1,865 from her account.
-14-State v. Woodlyn (DavidEarl), 91577-6

Woodlyn cashedKjellerson's first check ($60) onJuly25, 2011. VRP (Nov. 18, 2013) at 746. Kjellerson apparently approved the withdrawal when a bank employee calledto confirm. VRP (Nov. 14, 2013) at 609-11. The nextmonth, Kjellerson agreed to payWoodlyn an additional $60 for yard work. VRP (Nov. 18, 2013) at 687 (witness testimony that Kjellerson told police she had paid Woodlyn $60 during the month of August). Even assuming that Kjellerson accurately distinguished between the $60 she agreed to pay in August and $60 paid in the last week ofJuly,5 Woodlyn had consent to withdrawno more than $120 ofKjellerson's money. Yet, Woodlyn cashed a second check on July 26, 2011 ($60), and five checks in August: August 3 ($260), August 4 ($260), August 8 ($360), August 11 ($440), and August 12 ($425). VRP (Nov. 13, 2013) at 453-56; VRP (Nov. 18, 2013) at 746-51. 6 Intotal, Woodlyn withdrew $1,865 from Kjellerson's account. Because Kjellerson had agreed to pay Woodlyn at most $120, he obtained the difference ($1,745) without consent. Based on this evidence, a

5 Kjellerson suffered from dementia; her niece testified that she could not discern the date or month. VRP (Nov. 13, 2013) at 500. 6 Woodlyn testified that the money was not meant for him, claiming that he cashed the checks for Kjellerson as a favor and gave her the money. VRP (Nov. 18, 2013) at 746- 51,752. However, he inconsistentlytestifiedthatthe money was repayment for yard work (the exact amount is unclear) and other chores. Id. at 722. Given the evidence that Kjellerson's grass was roughly one foot tall on August 27, 2013, id. at 688-89, it would be reasonable for thejury to view Woodlyn's claim that he earned the money doing yard work with skepticism, and to reject his explanation. See id. at 722 (Woodlyn testifying that he cut Kjellerson's grass three, "maybe even five," times inthe month ofAugust). -15-State v. Woodlyn (DavidEarl), 91577-6

rational jury could reasonably conclude that Woodlyn "wrongfully obtained" (took without consent) Kjellerson's property (her money) exceeding $750 in value. See CP at 72. Therefore, contrary to the State's earlier concession and the Court ofAppeals conclusion, the record in this case provides sufficient evidentiary support for the alternative means oftheft by taking. Because both instructed alternative means were adequately supported, thejury's general verdict ofguilt maybeupheld. SeeArndt, 87 Wn.2d at 376. We affirm Woodlyn's conviction. CONCLUSION The constitutional right to jury unanimity cannot be interpreted to permit the harmless error analysis adopted bythe Court ofAppeals. We reject this approach and decline to burden trial courts with the task ofdistinguishing between evidence that is sufficiently insufficient and that which is insufficiently insufficient. Applying the settled principle that there is no right to express jury unanimity so long as each alternative means is supported, we nonetheless affirm Woodlyn's conviction. The record contains sufficient evidence ofboth theft by deception and theft by taking to support thejury's general verdict ofguilty on charges ofsecond degree theft.

-16-State v. Woodlyn (DavidEarl), 91577-6



### WE CONCUR:

-17-