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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. PHUONG VAN NGUYEN, Appellant. No. 73756-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: October 3, 2016 

### Becker, J. — Phuong Van Nguyen appeals his conviction for one countof 

### firstdegree trafficking in fish, shellfish, orwildlife, claiming he was deprived of his right to a unanimousjury. We agree and reverse. FACTS 

### Nguyen was charged with one count of firstdegree trafficking based upon three separate incidents occurring between January 4, 2013, and August 3, 

### 2013. RCW77.15.260(2). At trial, twowitnesses testified on behalfof the State. Julie Cook, an investigatorwith the Washington Departmentof Fish and 

### Wildlife, testified as to the regulatoryrequirements for the commercial sale of Dungeness crab, including the requirement that a purchaserbe a licensed 

### wholesale dealer. Cook testified that alongwith Detective ChrisClemenson,1 she contacted Nguyen inJanuary 2013 about purchasing some crab.
'Clemenson is alternatively spelled as "Clementson" in the record.No. 73756-2-1/2


### Clemenson was unavailable by the time of trial, and Cook could only testify as to what she observed on January 4, 2013; she was prohibited from suggesting what happened outside of her presence. Clemenson and Cook arrived atthe back alley of Diamond Nails salon, which was owned by Nguyen. Clemenson telephoned Nguyen, who metthem in the back alley. Clemenson unloaded a garbage can containing 88 Dungeness crabs, and he and Nguyen carried them inthrough the back door ofthe salon. Cook stayed inthe car, playing the role ofClemenson's wife or girlfriend,
so she could do future transactions by herself. When Clemenson and Nguyen 

### emerged, Nguyen tried to grab a second garbage can ofcrabs, but Clemenson told him those crabs were for another customer. Nguyen asked Clemenson if he 

### could get more crab. Cook did not see Nguyen give Clemenson any money, but Clemenson handed her $140.00. Cooktestified that assuming the payment was for the crab, itwould amountto a price of$2.00 percrab with rounding down because some ofthe crabs were small and others had died in transit. 

### In2013, the wholesale price forcrab was between $3.50 and $6.00 per pound. Each crab weighs between 1.5 to 2 pounds, and thus, the wholesale 

### price of 60 crabs weighing 1.5 pounds each, even at the low point of $3.50 per pound, would be $315.00. Cooktestified that a purchase ofthis size requires the buyerto be a 

### licensed wholesale dealer and Nguyen did not have such a license. Nguyen's 

### purchase was not authorized by the Departmentof Fish and Wildlife.No. 73756-2-1/3
On March 29, 2013, Cook called Nguyen, reminded him that she had been 

### with Clemenson, and asked if he wanted to buy more crab. Nguyen had to check with a friend, but called back about 20 minutes later and told Cookto bring the crab to Diamond Nails. Cook met Nguyen inthe back alley of Diamond Nails with about 70 crabs, and she and Nguyen tookthem inthrough the back door of the salon. Nguyen asked about Clemenson, and Cook said he had gotten into trouble for selling crab. When Nguyen asked ifshe was Clemenson's wife, she said she was his girlfriend. Cook told Nguyen that itwas illegal to sell crab and not to say anything because she did not want to get introuble. Nguyen said he did not know itwas illegal, but he did not care. He told Cook he boughtfrom Native Americans all the time and that Chris is Native American. Nguyen paid Cook $120.00 incash, 

### $2.00 per crab, butfor only 60 crabs because some were small or dead. Cook contacted Nguyen again on August 3, 2013, and Nguyen called her back and said he wanted to buy crab. Cook brought 84 crabs to Diamond Nails. She videotaped this transaction with Nguyen. The crabs were in a cooler and 

### weighed over 100 pounds. Cook agreed to leave the coolerfor Nguyen to return the nexttime Cook came to sell him crab. Nguyen paid Cook $160 in cash for 

### the crab. Nguyen called Cookthree times afterthe Augusttransaction seeking to buy more crab, but she never spoke to him and never sold him more crab. John Ludwig, a Department Fish and Wildlifeenforcement officer, testified


### as to his interview with Nguyen on January 7, 2014. Afteradvising Nguyen of hisNo. 73756-2-1/4 

### Miranda2 rights, Nguyen toldLudwig that he had purchased crabfrom Chris3 and then admitted he bought45 crabs from "Jack" but did not get a receipt. Nguyen told Ludwig these were his only purchases, but when Ludwig 

### asked him if he had purchased crabs from Chris' wife, he admitted making two purchases from her. He said he started buying crabs in2012 and boughtthem five times. Nguyen told Ludwig that neither Chris nor Cook evertold him that purchasing crab was illegal and Chris had told him itwas legal because Chris
was Native American. Ludwig informed Nguyen ofthe legal requirements for purchasing crabs from tribal members. Ludwig testified that he had no trouble understanding Nguyen, and they had an intelligent conversation. On cross-examination, Ludwig admitted that Nguyen had told him that he did not understand his rights, and in response, Ludwigjust reread the statements he had already read to Nguyen from the standard form. Nguyen testified on his own behalfthrough an interpreter. He had emigrated from Vietnam about 16 years earlier, butdid not speak English until arriving and was only able to write a few English words. He said thatthere were


### no limitations on buying crab inVietnam. He testified that he believed his purchases were legal because he boughtfrom Native Americans, Clemenson had reassured him that his purchases were legal, and Cook nevertold him that it


### was illegal to buy crabs. Specifically, he stated thatthese people "said thatthey

2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

### 3Nguyen often called Clemenson "Chris" during his testimony.No. 73756-2-1/5



### were Native Americans, and they said thatthey had the rightto—to catch all 

### different kinds [ofseafood], and they gave me their telephone number and said if Ineeded it, to call them, not to get itanywhere else." He said that he never would have boughtthe crab had he known itwas illegal. Nguyen also testified that Cook had told him she was Chris' wife, that he 

### had bought crab a lot oftimes, including twice from Cook, and that he and Cook had made appointments for othertimes when she did not come. He denied 

### buying crab from Cook and Clemenson on January 4, 2013, but admitted buying from Cook "and the other man as well" on March 29, 2013. On crossexamination, he admitted buying crabs from a man named Jack. Nguyen said that he and Cook used everyday words when speaking about the crabs. Cooktestified in rebuttal that her conversations with Nguyen involved
more than everyday words; they spoke aboutwhere Chris was, that Chris got in trouble for the crabs, and that Cook said she was Chris' girlfriend, not his wife. She testified that Nguyen had called her once to tell her he had paid too much money. She also said she had never agreed to meet him without showing up. She denied telling Nguyen that she was Native American. Thejury was instructed on entrapment and the defense's burden to establish it by a preponderance ofthe evidence. Thejury convicted Nguyen as charged. He appeals. ANALYSIS Nguyen contends that because the State was charging and prosecuting him for one count oftrafficking based on three separate and distinct incidents,No. 73756-2-1/6 

### the trial courterred infailing to instruct the jury on the need to be unanimous. We agree. 

### "Criminal defendants in Washington have a right to a unanimousjury verdict." State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231 (1994). 

### When the State presents evidence of several acts, any one ofwhich is allegedly sufficient to constitute the crimecharged, the jury must unanimously agree on which act constituted the crime. State v. Kitchen. 110Wn.2d 403, 411, 756 P.2d 105 (1988). To ensure a uniform verdict when the State introduces evidence of 

### multiple acts, the State must electthe act it is relying on for the conviction or the 

### trial court must instruct thejurythat itmust unanimously agree thatthe State proved one particular act beyond a reasonable doubt. Kitchen, 110 Wn.2d at 411. The absence ofeither an election or instruction constitutes a constitutional
error because it is possible that all ofthejurors did not rely on the same criminal 

### act when convicting the defendant, "resulting in a lack ofunanimity on all 

### elements necessary for a conviction." State v. Greathouse. 113 Wn. App. 889, 916, 56 P.3d 569 (2002), review denied, 149Wn.2d 1014(2003). Nguyen did not propose a unanimity instruction at trial, but he may raise a uniformity challenge forthe firsttime on appeal because itconcerns an alleged manifest constitutional error. State v. Bobenhouse, 166 Wn.2d 881, 892 n.4, 214 P.3d 907 (2009). Thejury was instructed that in orderto convict Nguyen of first degree unlawful trafficking in fish, shellfish, or wildlife, the following elements ofNo. 73756-2-1/7


### the crime had to be proven beyond a reasonable doubt: 

### (1)That on orbetween January 4, 2013 and August 3, 2013, the defendanttrafficked in shellfish; and (2) The fish is classified as shellfish; and 

### (3) The trafficking is not authorized by statute or rule ofthe department; and 

### (4) The shellfish had a value of two hundred fifty dollars or more; and 

### (5) That any ofthese acts occurred inthe State ofWashington. Thejurywas not instructed that it had to be unanimous as to any particular incident ortransaction. See State v. Moultrie, 143 Wn. App. 387, 394, 177 P.3d 776 (stating that a unanimity instruction is adequate if"the ordinary jurorwould interpret it to mean thatthejury must be unanimous on the act underlying the conviction"), review denied, 164Wn.2d 1035 (2008). To the contrary, the State urged thejurors to consider allthree incidents when assessing Nguyen's guilt. In light ofthe State's failure to make an election and 

### the trialcourt's failure to instructthejurythat itmust unanimously agree as to which act constituted the crime, a constitutional error arose because not all ofthe jurors may have relied on the same criminal actto convict Nguyen. See Greathouse, 113 Wn. App. at 916. The State argues that its failure to make an election and the lack of a unanimity instruction does not warrant reversal because itwas harmless error. We disagree. The error is not harmless if a rational trier offact could have a reasonable doubt "'as to whether each incidentestablished the crime beyond a reasonable doubt.'" Kitchen, 110Wn.2d at 411 (emphasis added), quoting State
v. Loehner, 42 Wn. App. 408, 411, 711 P.2d 377 (1985) (Scholfield, A.C.J., concurring).
7No. 73756-2-1/8


### We are unpersuaded thateach incident established the crime beyond a reasonable doubt because the evidence supporting the January 4, 2013, incident is significantly different, and weaker, than the evidence supporting the othertwo incidents. Nguyen denied making the purchase on January 4, 2013, there was
no evidence as to the conversation between Clemenson and Nguyen when they
were inside, and Cook did not see the money change hands. The State relies on Nguyen's response when he was asked aboutthe March 29, 2013, purchase and testified, "I think on that day there was [Cook] and the other man as well." The State claims Nguyen must have been confused aboutthe dates because January 4, 2013, was the only day Cookwas accompanied by a man, so Nguyen must have purchased from Clemenson on that day. However, a reasonablejurorcould disbelieve the State's explanation that Nguyen was merely confused aboutthe dates. Moreover, although the State claims that Nguyen admitted the January 4, 2013, purchase when speaking to Ludwig, the record shows only that Nguyen admitted buying from Chris at some point, but not on this date. A reasonablejurorcould have had a reasonable doubt as to whether Nguyen purchased the crab on January 4, 2013. Even if a reasonablejuror could not have a reasonable doubt that the January 4, 2013, incident supported the crime beyond a reasonable doubt, there was additional evidence that could lead a reasonablejurorto believe thatthe January 4, 2013, purchase was a result ofentrapment. See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 18.05, at 280 (3d ed. 2008) (entrapment is a defense "ifthe criminal design originated inthe mind

8No. 73756-2-1/9
of law enforcement officials
. . . and the defendant was lured or induced to 

### commit a crime [he] had not otherwise intended to commit"). Nguyen testified that Chris told him that he was a Native American and 

### that purchasing the crab was legal and he neverwould have broken the law had 

### he known the sale was illegal. In closing, the State noted that "regardless of Chris's status, Detective Cooksaid, no, it's illegal," butdespite what Cook said, Nguyen may have believed his purchasefrom Clemenson was legal before he was informeddifferently by Cook on March 29, 2013. (Emphasis added.) Accordingly, even ifthe evidence established that Nguyenmade a purchase on 

### January4, 2013, a juror could reasonably find that he was entrapped into doing

so. 

### Accordingly, the State has failed to meet its burden to prove harmless

error because a "rational trier offact could have entertained a reasonable doubt" 

### that Nguyen was guilty of firstdegree seafood trafficking on January4, 2013. State v. Crane, 116 Wn.2d 315, 325, 804 P.2d 10, cert, denied, 501 U.S. 1237 (1991).

### Finally, the State argues that unanimity is not required because the 

### trafficking statute provides foraggregation. Nguyen was prosecuted pursuantto former RCW 77.15.260 (2012), which provides in part: (1) A person is guilty of unlawful trafficking in fish, shellfish, or wildlife inthe second degree ifthe person traffics in fish, shellfish, 

### or wildlife with a wholesale value ofless than two hundred fifty dollars and: (a) The fish or wildlife is classified as game, food fish, shellfish, game fish, or protected wildlifeand the trafficking is not authorized by statute or department rule; orNo. 73756-2-1/10 (b) The fish, shellfish, or wildlife is unclassified and the trafficking violates any department rule. (2)(a) A person is guilty of unlawful trafficking in fish, shellfish, or wildlife inthe first degree ifthe person commits the act described by subsection (1) ofthis section and: (i)The fish, shellfish, or wildlife has a value oftwo hundred fiftydollars ormore . . . 

### (b) Forpurposes ofthissubsection (2), wheneverany series oftransactions thatconstitute unlawfultrafficking would, when 

### considered separately, constitute unlawfultrafficking in the second 

### degree due to the value ofthe fish, [or] shellfish, . . . and the series oftransactions are partofa common scheme or plan, then the 

### transactions may be aggregatedinone count and the sum ofthe value ofall the transactions considered when determining the 

### degree ofunlawfultrafficking involved. (Emphasis added.) 

### When interpreting a statute that is plain on itsface, we will "'give effectto 

### that plain meaning.'" State v. Ervin," 169 Wn.2d 815, 820, 239 P.3d 354 (2010) 

### (internal quotation marks omitted), quoting State v. Jacobs, 154Wn.2d 596, 600, 115 P.3d 281 (2005). The aggregation language insection 2(b) does not negate the need for unanimity because the plain meaning ofthatprovision indicates only that if a number oftransactions ofless than $250 are proven, they may be 

### aggregated to constitute one count offirst degreetrafficking—over$250. Here, the State prosecuted Nguyen forone count of firstdegree trafficking based on three incidents, each of which, ifproved, met the $250 threshold. Thus, the jury 

### could convict Nguyen of firstdegree trafficking based on anyof the three incidents, not allof them, and the aggregation provision does not negate the need for unanimity.

10No. 73756-2-1/11
We reverse Nguyen's conviction and remand for a new trial.

WE CONCUR: 

# Se^feff, 

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