Summary
In State v. Smith, 17 Wn.App. 2d 146, 150, 157, 484 P.3d 550, review denied, 198 Wn.2d 1005, 493 P.3d 747 (2021), Division Two of this court held that the phrase "enters or remains unlawfully" in RCW 9A.52.025(1), which defines residential burglary, "identifies a single means of committing residential burglary: entering or remaining unlawfully in a dwelling."
Summary of this case from State v. RadavichOpinion
No. 53443-6-II C/w No. 54156-4-II
04-14-2021
STATE of Washington, Respondent, v. Michael Allen SMITH, Appellant. In the Matter of the Personal Restraint of Michael Allen Smith, Petitioner.
Mary Swift, Nielsen Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant. Michael Allen Smith (Appearing Pro Se), Doc #414998, Coyote Ridge Corrections Center, P.O. Box 769, Connell, WA, 99326, for Petitioner. Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
Mary Swift, Nielsen Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
Michael Allen Smith (Appearing Pro Se), Doc #414998, Coyote Ridge Corrections Center, P.O. Box 769, Connell, WA, 99326, for Petitioner.
Prosecuting Attorney Clark County, Clark County Prosecuting Attorney, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA, 98666-5000, Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
PART PUBLISHED OPINION
Maxa, J.
¶ 1 Michael Smith appeals his convictions of residential burglary with sexual motivation and indecent liberties with forcible compulsion. These convictions arose from an incident in which Smith lawfully entered the home of an acquaintance, HK, but then sexually assaulted her.
¶ 2 Smith argues based on several Court of Appeals cases that residential burglary is an offense with two alternative means – unlawfully entering and unlawfully remaining in a residence – and that his constitutional right to a unanimous jury verdict was violated because there was insufficient evidence to support a finding that he unlawfully entered HK's house. The State argues that we should not follow previous Court of Appeals cases and instead hold that residential burglary is not an alternative means offense, meaning that there is no unanimity issue. In the alternative, the State argues that Smith's right to a unanimous verdict was not violated because the State elected to rely only on the "remains unlawfully" means of residential burglary and sufficient evidence supported that means.
¶ 3 In the published portion of this opinion, we hold that (1) notwithstanding previous Court of Appeals cases, residential burglary is not an alternative means offense under the analytical framework of more recent Supreme Court alternative means cases; and (2) even if residential burglary was an alternative means offense, the right to a unanimous verdict was not violated because the prosecutor elected the "remains unlawfully" means and there was substantial evidence of that means. In the unpublished portion, we reject Smith's other arguments as well as his claim in a personal restraint petition (PRP) but remand for the trial court to strike the interest accrual provision for legal financial obligations (LFOs).
¶ 4 Accordingly, we affirm Smith's convictions, but we remand for the trial court to strike the interest accrual provision from his judgment and sentence.
FACTS
Background
¶ 5 HK lived in Vancouver with her boyfriend Corey Jones. Smith and Jones were coworkers and close friends. The two men would hang out almost daily and it was normal for Smith to show up at the home unannounced to visit Jones.
¶ 6 Around 8:00 PM on November 17, 2017, Smith visited HK and Jones's house. Smith entered without knocking, which was common for him to do. HK was home alone. Smith appeared intoxicated and did not leave when he learned Jones was not there.
¶ 7 Smith playfully started to wrestle with HK. HK told Smith to stop, but he became angry and tackled her to the ground. While HK tried to fight Smith off, he straddled HK's body, grabbed her breasts and vagina, and tried to penetrate her vagina with his fingers. HK screamed for Smith to get off her and told him to get out of her house. Smith continued to grab at HK, but HK eventually broke free. HK again yelled at Smith to leave her house. Smith left.
¶ 8 The State charged Smith with residential burglary with sexual motivation and indecent liberties with forcible compulsion.
¶ 9 At trial, the trial court issued a to-convict instruction stating that the State was required to prove that Smith "entered or remained unlawfully in a dwelling." Clerk's Papers (CP) at 26. During closing argument, the prosecutor emphasized that the State was arguing only that Smith remained in HK's home unlawfully, not that he entered unlawfully. The prosecutor noted that it was undisputed that Smith entered HK's house lawfully, but once HK told him to leave he was required to leave.
¶ 10 The jury found Smith guilty of residential burglary with sexual motivation and indecent liberties with forcible compulsion. Smith appeals his convictions and the LFO interest accrual provision in his judgment and sentence.
ANALYSIS
¶ 11 The parties dispute whether residential burglary is an alternative means offense. We conclude that under the analytical framework of more recent Supreme Court cases, residential burglary is not an alternative means offense.
A. LEGAL PRINCIPLES
¶ 12 An alternative means offense is one where the statute defining the offense provides that the proscribed criminal conduct can be proved in multiple ways. State v. Barboza-Cortes , 194 Wash.2d 639, 643, 451 P.3d 707 (2019). Determining whether a statute provides alternative means of committing an offense is a matter of judicial interpretation. Id.
¶ 13 In general, a statute that describes an offense in terms of distinct acts will be interpreted as identifying an alternative means offense. State v. Sandholm , 184 Wash.2d 726, 734, 364 P.3d 87 (2015). But a statute that describes an offense in terms of closely related acts that are aspects of one type of conduct will be interpreted as not identifying an alternative means offense. Id.
The more varied the criminal conduct, the more likely the statute describes alternative means. But when the statute describes minor nuances inhering in the same act, the more likely the various "alternatives" are merely facets of the same criminal conduct.
Id.
¶ 14 The alternative means determination relates to the required unanimous jury verdict under article I, section 21 of the Washington Constitution. State v. Owens , 180 Wash.2d 90, 95, 323 P.3d 1030 (2014). For an alternative means offense, a defendant is entitled to a unanimous jury determination as to the specific means by which he or she committed the offense. Id. If the jury is not instructed to make an express statement of jury unanimity, the State must present sufficient evidence to support each of the alternative means. Id. But if the statute identifies only a single means of committing an offense, no unanimity instruction is required. Barboza-Cortes , 194 Wash.2d at 649, 451 P.3d 707.
B. RESIDENTIAL BURGLARY AS AN ALTERNATIVE MEANS OFFENSE
1. Statutory Language
¶ 15 The starting point of the alternative means analysis is the language of the criminal statute at issue. Barboza-Cortes , 194 Wash.2d at 643, 451 P.3d 707. RCW 9A.52.025(1) states, "A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle." (Emphasis added.) The statutes defining first degree burglary and second degree burglary contain the same "enters or remains unlawfully" language. RCW 9A.52.020(1) ; RCW 9A.52.030(1).
¶ 16 9A.52.010(2) contains a definition of the term "enters or remains unlawfully": "A person ‘enters or remains unlawfully’ in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain."
2. Existing Law
¶ 17 In State v. Klimes , Division One of this court addressed RCW 9A.52.030(1), which states that a person is guilty of second degree burglary if the person enters or remains unlawfully in a building other than a vehicle or a dwelling with intent to commit a crime. 117 Wash. App. 758, 764, 73 P.3d 416 (2003). The court concluded that "enters unlawfully" and "remains unlawfully" constituted alternative means of committing burglary. Id. at 768, 73 P.3d 416. The court noted that " ‘enters unlawfully’ and ‘remains unlawfully’ are separate acts, and that a person can enter lawfully but remain unlawfully in some factual circumstances." Id. at 767, 73 P.3d 416.
¶ 18 Division One has applied the rule that burglary is an alternative means offense without any additional analysis in multiple cases. E.g. , State v. Sony , 184 Wash. App. 496, 500, 337 P.3d 397 (2014) ; State v. Allen , 127 Wash. App. 125, 131, 110 P.3d 849 (2005). This court applied this rule without analysis 15 years ago. State v. Johnson , 132 Wash. App. 400, 409-10, 132 P.3d 737 (2006). Division Three also has applied the rule without analysis. State v. Cordero , 170 Wash. App. 351, 366, 284 P.3d 773 (2012).
¶ 19 We give respectful consideration to the decisions of other divisions of the Court of Appeals, but we are not bound by those decisions. In re Pers. Restraint of Arnold , 190 Wash.2d 136, 147-49, 154, 410 P.3d 1133 (2018). And we are not even bound by decisions by different panels within our own division. In re Marriage of Snider , 6 Wash. App. 2d 310, 315, 430 P.3d 726 (2018). Therefore, we are free to disregard previous Court of Appeals cases if, for example, we believe that the law has changed.
3. Development of Alternative Means Analysis
¶ 20 In recent years, the Supreme Court has refined the alternative means analysis in a series of cases, including: State v. Peterson , 168 Wash.2d 763, 768-69, 230 P.3d 588 (2010) ; Owens , 180 Wash.2d 90, 323 P.3d 1030 ; Sandholm , 184 Wash.2d 726, 364 P.3d 87 ; and Barboza-Cortes , 194 Wash.2d 639, 451 P.3d 707. Significantly, these cases do not agree with the apparent basis for the holding in Klimes – that a description in the statute of separate acts necessarily establishes an alternative means offense. See Klimes , 117 Wash. App. at 765-67, 73 P.3d 416.
¶ 21 In Peterson , the court addressed whether the failure to register as a sex offender statute created an alternative means offense. 168 Wash.2d at 768-71, 230 P.3d 588. The statute described the offense as failing to register (1) after becoming homeless, (2) after moving between fixed residences within a county, and (3) after moving from one county to another. Id . at 770, 230 P.3d 588. The court held that the three different ways of violating the statute did not create an alternative means offense because they merely described the same single act: failure to register as a sex offender after moving. Id.
¶ 22 In Owens , the court addressed whether the statute that prohibited trafficking in stolen property created an alternative means offense. 180 Wash.2d at 96-99, 323 P.3d 1030. The statute provided that a person was guilty of trafficking if he or she "knowingly initiates, organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others." RCW 9A.82.050(1). The court emphasized that this group of terms together " ‘relate to different aspects of a single category of criminal conduct – facilitating or participating in the theft of property so that it can be sold.’ " Owens , 180 Wash.2d at 98, 323 P.3d 1030 (quoting State v. Lindsey , 177 Wash. App. 233, 241-42, 311 P.3d 61 (2013) ). Similarly, the court stated that "these terms are merely different ways of committing one act, specifically stealing." Owens , 180 Wash.2d at 99, 323 P.3d 1030. Therefore, the court concluded that this list of terms constituted a single means, not alternative means. Id.
¶ 23 In Sandholm , the court addressed whether the statute that prohibited driving under the influence ( DUI) created an alternative means offense. 184 Wash.2d at 732-36, 364 P.3d 87. The statute provided that a person is guilty of driving under the influence if he or she drives a vehicle and one of three subsections is satisfied: the person: "within two hours after driving, [has] an alcohol concentration of 0.08 or higher"; is "under the influence of or affected by intoxicating liquor or any drug"; or is "under the combined influence of or affected by intoxicating liquor and any drug." Former RCW 46.61.502(1) (2008). The court stated:
[T]he DUI statute's "affected by" clauses do not describe multiple, distinct types of conduct that can reasonably be interpreted as creating alternative means. Rather, those portions of the DUI statute contemplate only one type of conduct: driving a vehicle under the "influence of" or while "affected by" certain substances that may impair the driver. Former RCW 46.61.502 (2008). These statutory subsections describe facets of the same conduct, not distinct criminal acts. Whether the defendant is driving under the influence of alcohol, or drugs, or marijuana, or some combination thereof, the defendant's conduct is the same – operating a vehicle while under the influence of certain substances.
Sandholm , 184 Wash.2d at 735, 364 P.3d 87.
¶ 24 In Barboza-Cortes , the court addressed whether the statute prohibiting the unlawful possession of a firearm created an alternative means offense. 194 Wash.2d at 643-46, 451 P.3d 707. The statute provided that a person is guilty of second degree possession of a firearm if the person "owns, has in his or her possession, or has in his or her control any firearm" after having been previously convicted of certain felonies. RCW 9.41.040(2)(a)(i) . The court stated, "While there may be subtle distinctions in aspects of ownership, possession, and control that may be material in other contexts, in the present circumstances they all describe ways of accessing guns." Barboza-Cortes , 194 Wash.2d at 646, 451 P.3d 707. The terms were merely " ‘nuances inhering in the same [prohibited] act’ – accessing guns" and " ‘facets of the same criminal conduct.’ " Id . (quoting Sandholm , 184 Wash.2d at 734, 364 P.3d 87 ). Therefore, the court held that this statute did not establish an alternative means crime. Id .
RCW 9.41.040 has been amended since the events of this case transpired. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute.
Significantly, the court disapproved of this court's decision in State v. Holt , 119 Wash. App. 712, 718, 82 P.3d 688 (2004), which stated without analysis that second degree unlawful possession of a firearm was an alternative means offense. Barboza-Cortes , 194 Wash.2d at 646 n.2, 451 P.3d 707.
¶ 25 This court applied the analytical framework set forth in those cases to the animal cruelty statute in State v. Roy , 12 Wash. App. 2d 968, 466 P.3d 1142, review denied , 196 Wash.2d 1004, 471 P.3d 220 (2020). That statute stated that a person was guilty of second degree animal cruelty if that person "[f]ails to provide the animal with necessary shelter, rest, sanitation, space, or medical attention" and thereby causes unnecessary pain. RCW 16.52.207(2)(a). The court stated:
Here, shelter, rest, sanitation, space, and medical attention represent different aspects of the basic necessities for an animal's comfortable life. They are not independent, essential elements of the crime. Instead, they are "minor nuances inhering in the same act" and "facets of the same criminal conduct." Sandholm , 184 Wash.2d at 734, 364 P.3d 87. Read together , the listed terms criminalize failing to provide an animal with basic necessities.
Roy , 12 Wash. App. 2d at 975, 466 P.3d 1142. The court concluded that there was "a single means of committing second degree animal cruelty: failing to provide an animal with the basic necessities of life and thereby causing unnecessary or unjustifiable physical pain." Id.
4. Updated Analysis
¶ 26 The State argues that the phrase "enters or remains unlawfully" in RCW 9A.52.025(1) does not create an alternative means offense. We agree.
¶ 27 In Klimes , the court suggested that entering and remaining unlawfully in a building were alternative means because they were "separate acts." 117 Wash. App. at 767, 73 P.3d 416. But under Owens , Sandholm , and Barboza-Cortes , that is not the relevant inquiry.
¶ 28 In each of those cases, the applicable statutes described separate acts. Barboza-Cortes , 194 Wash.2d at 646, 451 P.3d 707 (owning, possessing, and controlling a firearm); Sandholm , 184 Wash.2d at 735, 364 P.3d 87 (driving while under the influence of three different kinds of intoxicating substances); Owens , 180 Wash.2d at 98, 323 P.3d 1030 (multiple ways of assisting in the theft of property). The Supreme Court has made it clear that an alternative means offense is not created if those separate acts simply represent different aspects of a single type of criminal conduct. E.g. , Barboza-Cortes , 194 Wash.2d at 646, 451 P.3d 707. The focus is on the actual conduct that the applicable statute prohibits. Id. (accessing guns); Sandholm , 184 Wash.2d at 735, 364 P.3d 87 (operating a vehicle while under the influence of certain substances); Owens , 180 Wash.2d at 98, 323 P.3d 1030 (facilitating or participating in the theft of property).
¶ 29 Here, RCW 9A.52.025(1) identifies two separate acts: entering and remaining in a dwelling. But the focus of the statute is the unlawfulness of the defendant's conduct. The actual conduct the statute prohibits is being present in a dwelling unlawfully . Entering and remaining are merely " ‘nuances inhering in the same [prohibited] act’ " and " ‘facets of the same criminal conduct.’ " Barboza-Cortes , 194 Wash.2d at 646, 451 P.3d 707 (quoting Sandholm , 184 Wash.2d at 734, 364 P.3d 87 ).
¶ 30 This conclusion is consistent with the language of RCW 9A.52.025(1). A person is guilty of residential burglary if the person "enters or remains unlawfully." RCW 9A.52.025(1). This language treats entering and remaining as a single unit, suggesting that they be read together. If the legislature had intended to create an alternative means statute, it presumably would have changed the language to "enters unlawfully or remains unlawfully." See Owens , 180 Wash.2d at 97-98, 323 P.3d 1030 (relying on the placement of the word "knowingly" in the applicable statute to support a finding of no alternative means). ¶ 31 Similarly, RCW 9A.52.010(2) does not contain separate definitions for "enters unlawfully" and "remains unlawfully." It includes those two acts under a definition of a single term: "enters or remains unlawfully." RCW 9A.52.010(2).
¶ 32 We conclude that RCW 9A.52.025 identifies a single means of committing residential burglary: entering or remaining unlawfully in a dwelling. Therefore, the State was not required to present sufficient evidence to support both unlawfully entering and unlawfully remaining in HK's home. And because it is undisputed that the State provided sufficient evidence that Smith remained unlawfully in HK's home, we reject Smith's unanimity argument.
C. ELECTION OF MEANS
¶ 33 The State alternatively argues that even if residential burglary was an alternative means offense, Smith's right to a unanimous verdict was not violated here because the State elected to rely only on the "remains unlawfully" means of residential burglary and sufficient evidence supported that means. Smith argues that election does not apply in the context of alternative means offenses. We agree with the State.
1. Legal Principles
¶ 34 The State relies on State v. Kitchen , which stated that to avoid unanimity issues "[w]hen the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act." 110 Wash.2d 403, 409, 756 P.2d 105 (1988) (emphasis added). However, Kitchen addressed the situation where multiple acts could constitute the charged offense, not where the offense could be committed by alternative mans. See id. at 410-11, 756 P.2d 105.
¶ 35 Smith argues that alternative means cases are different because those means are incorporated in the to-convict instruction. But if election can prevent a unanimity problem in a multiple acts case, we see no reason that election also should not prevent a unanimity problem in an alternative means case.
¶ 36 The State also relies on State v. Woodlyn , where the court stated that when sufficient evidence does not support all of the alternative means, "a reviewing court is compelled to reverse a general verdict unless it can ‘rule out the possibility the jury relied on a charge unsupported by sufficient evidence.’ " 188 Wash.2d 157, 165, 392 P.3d 1062 (2017) (quoting State v. Wright , 165 Wash.2d 783, 803 n.12, 203 P.3d 1027 (2009) ). However, Woodlyn did not expressly address election by the State.
¶ 37 Smith argues that Woodlyn requires some type of formal action by the trial court before a reviewing court can rule out the possibility that the jury relied on some other means. He relies on the statement in Woodlyn that "[a]bsent some form of colloquy or explicit instruction, we cannot assume that every member of the jury relied solely on the supported alternative." Id. at 166, 392 P.3d 1062. But the court made this statement in the context of holding that a complete lack of evidence regarding an unsupported means does not solve a unanimity problem. Id. at 165-67, 392 P.3d 1062. And a clear election by the State that it was relying on only one of the alternative means would allow a reviewing court to rule out the possibility that the jury relied on some other means.
¶ 38 Although the Supreme Court has not addressed election in the alternative means context, Court of Appeals cases have recognized that when sufficient evidence does not support one of the alternatives, the right to a unanimous verdict is implicated only if the State does not elect the means on which it is relying. In State v. Gonzales , Division One of this court stated this principle after recognizing previous cases holding that second degree burglary was an alternative means crime: "If the evidence is insufficient to support both means, either the prosecutor must elect the means supported by the evidence , or the court must instruct the jury to rely on that means during deliberations." 133 Wash. App. 236, 243, 148 P.3d 1046 (2006) (emphasis added). The court made a similar statement in Klimes . 117 Wash. App. at 770, 73 P.3d 416. ¶ 39 Division Three also has acknowledged this role for election in the context of alternative means offenses:
When the State fails to elect between alternative means , instructions that do not require unanimity on the same means of committing the criminal act are not required if there is substantial evidence supporting each alternative means presented to the jury.
State v. Boiko , 131 Wash. App. 595, 599, 128 P.3d 143 (2006) (emphasis added).
¶ 40 We conclude that if the State expressly elects to rely on only one alternative means to obtain a conviction, the State need not present sufficient evidence of all alternative means in order to avoid violating the defendant's right to a unanimous verdict.
Despite this holding, we emphasize that the better course of action is for the State to remove the alternative means that it is not relying on from the to-convict instruction.
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2. Analysis
¶ 41 An election by the State need not be formally pled or incorporated into the information. State v. Carson , 184 Wash.2d 207, 227, 357 P.3d 1064 (2015). As long as the election clearly identifies the particular acts on which charges are based, verbally telling the jury of the election during closing argument is sufficient. Id . Whether a sufficient election has been made depends upon the facts of each particular case.
¶ 42 Here, the prosecutor made a clear election as to the acts constituting residential burglary. During closing argument, the prosecutor specifically stated:
The first element is that on November 17, 2017 the defendant entered or remained unlawfully in her house. And here the issue is that he remained unlawfully. It wasn't his entry that was unlawful . He'd come over like that before. But it was his remaining after she told him to leave. That's the part that's unlawful .
The second element is that the entering or remaining was with the intent to commit a crime against a person or property inside.
So remaining unlawfully , your instructions 13 tells you about that. When someone is not invited -- not invited to stay, that is enough . The defendant was not invited. She repeatedly told him to leave. He was remaining unlawfully .
Report of Proceedings (RP) at 330-31 (emphasis added).
¶ 43 In addition, during rebuttal the prosecutor stated:
Now, Defense raises this issue of residential burglary that he came in, and she offered him a drink. That's undisputed. That's all good and fine . But guess what, whether she invited him in with open arms or he just walked right in, it doesn't matter. She gets to revoke his invitation at any point.
He doesn't just get to stay because he got in there successfully, legally initially . The law recognizes that, that people might be invited into a home, things go sideways, and the law protects people. People have the right to be safe in their homes. [HK] had the right to have this safe space, to tell the defendant to leave, and the law required him to leave .
RP at 355 (emphasis added).
¶ 44 We conclude that the prosecutor's closing and rebuttal arguments expressly elected unlawful remaining as the means for which the jury should convict Smith. As stated above, it is undisputed that the State provided sufficient evidence that Smith remained unlawfully in HK's home. Because the State elected the "remains unlawfully" means and that particular means is supported by sufficient evidence, we hold that Smith's right to a unanimous verdict was not violated even if residential burglary was an alternative means offense.
CONCLUSION
¶ 45 We affirm Smith's convictions, but we remand for the trial court to strike the interest accrual provision for nonrestitution LFOs from Smith's judgment and sentence.
¶ 46 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
SUTTON, A.C.J.
GLASGOW, J.