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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, APR 1 3 2817 Filed - - ----- Petitioner.
STEPHENS, J.-In the summer of2011, David Earl Woodlyn cashed a series
of blank checks written by Dora Kjellerson, an elderly woman suffering from
dementia. In total, 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" instruction required the jury to 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" For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Woodlyn (David Earl), 91577-6
Kjellerson's property or instead (2) "obtained control" over Kjellerson's property
"by color or aid of deception." !d. The jury returned a general verdict of guilty.
Woodlyn appealed, arguing the general verdict violated his right to jury
unanimity under article I, section 21 of the state constitution insofar as the evidence
was insufficient to support conviction under the "wrongfully obtained" alternative.
The Court of Appeals agreed that the evidence of this means was insufficient, but
nonetheless affirmed, holding that any error was harmless. The court reasoned that
the absence of evidence of the theft by taking 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 of Appeals 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 of theft 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
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stealing from Kjellerson, maintaining that he cashed the checks on her behalf, gave her
some of the cash, and kept the rest as payment for cutting Kjellerson's lawn. The
following facts were offered at trial:
In the summerof2011, Woodlyn was 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 other yard work three to five times that summer. Woodlyn testified that each
time, Kjellerson paid him by signing an otherwise blank check, leaving Woodlyn to
write in the payee and amount.
On August 27,2011, Woodlyn accompanied Kjellerson to her bank. Kjellerson
indicated that Woodlyn needed money to cut the grass, but did not appear to know how
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 by the responding officer. Noting that
the grass in Kjellerson's yard was roughly one foot high and "kind of over grown," the
officer asked Kjellerson how much money she paid for yard work. VRP (Nov. 18,
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2013) at 688-89. Kjellerson estimated that she paid Woodlyn $60 during the month of
August. According to the bank, Woodlyn in fact 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 the jury set out two alternative means of committing the crime: (1) that
Woodlyn "wrongfully obtained" Kjellerson's property or (2) that Woodlyn "obtained
control" over Kjellerson's property "by color or aid of deception." CP at 72. The trial
court instructed the jurors that while they must agree unanimously as to Woodlyn's
guilt or innocence, they could find Woodlyn guilty without 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 of guilty. 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 of theft by taking was presented to the jury,"' but argued
that the absence of evidence of theft by taking rendered any error harmless. I d. at 6-7
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(alteration in original). On this basis, the Court of Appeals affirmed, reasoning that
because "deception was the only basis for the jury 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 of committing theft.
ISSUES
( 1) When a trial court erroneously instructs the jury it need not unanimously
agree on the means by which the defendant committed a crime, is this error harmless
based on a determination that no evidence supported one of the 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 only when a general verdict raises due process concerns, i.e., when one or more
alternatives presented to the jury 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 other grounds by State v. Sandholm, 184
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Wn.2d 726,736, 364 P.3d 87 (2015); State v. Whitney, 108 Wn.2d 506,511,739 P.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 of Appeals found that the State had not proved the theft by taking
alternative, Woodlyn, slip op. at 10, a review of the record shows sufficient evidence
supports this means of committing second degree theft. Because sufficient evidence
supported each alternative means, we uphold the jury's general verdict. In doing so,
however, we reject the harmless error approach adopted by the Court of Appeals. When
one alternative means of committing a crime has evidentiary support and another does
not, courts may not assume the jury relied unanimously on the supported means.
A. Jury Unanimity in Alternate Means Cases in Washington
The Washington Constitution guarantees criminal defendants the right to a
unanimous jury verdict. WASI-L CoNST. art. I, § 21; see Ortega-Martinez, 124 Wn.2d
at 707. However, when a crime may be committed in different ways (i.e., via alternative
means), the exact requirements of this rule are not always clear. In enacting criminal
statutes, the legislature may articulate a set of prohibited behaviors as ( 1) a list of distinct
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
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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. The purpose of unanimity is to secure the integrity and reliability
of jury deliberations and verdicts. See, e.g., Richardson v. United States, 526 U.S. 813,
819, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999) (discussing unanimity in the federal
Sixth Amendment context). Asking the jury for nothing beyond a general verdict-a
simple up or down vote on guilt or innocence-may mask "wide disagreement among
the jurors about just what the defendant did, or did not, do." Id. at 819. 1 On the other
hand, if a jury must specifically articulate its unanimous agreement as to each element,
subelement, and relevant fact before it can convict, a defendant might go free even
though the jury unanimously agrees that he or she behaved criminally.
In this case, Woodlyn asserts that the "[state] constitutional right to jury
unanimity applies to alternative means of committing the crime." Suppl. Br. ofPet'r at
5. Our precedent 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.
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We have never recognized a categorical right to express unanimity (i.e.,
unanimity as to means) in alternative means convictions. See Arndt, 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
cases have adopted an analysis that turns on the sufficiency of evidence as a due process
concern: if the jury is instructed on one or more alternative means that is not supported
by sufficient evidence, a "particularized expression" of jury unanimity as to the
supported means is required. I d. The purpose of this requirement is to ensure that 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 if it is "impossible
to rule out the possibility the jury relied on a charge unsupported by sufficient
evidence").
When there is sufficient evidence to 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 rational jury 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 "every fact necessary to constitute the crime" and the jury to 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).
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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 of jury unanimity is not required provided each
alternative means presented to the jury is supported by sufficient evidence." 184 Wn.2d
at 732.
B. The Court of Appeals Incorrectly Reasoned That a Complete Lack of Evidence for One Alternative Renders Any Unanimity Error Harmless
Before the Court of Appeals, Woodlyn argued that the jury's general verdict
must be reversed because the State failed to present sufficient evidence to support both
alternative means of the crime charged. The State conceded that it had presented no
evidence of one alternative-theft by taking-and instead focused entirely on theft by
deception. Nevertheless, the State maintained that any error was harmless because the
court could safely conclude that the jury, though instructed on two alternative means,
relied solely on the means supported by sufficient evidence. The Court of Appeals
agreed, finding that when one alternative is adequately supported and the other is
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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. If there is insufficient
evidence to support any of the 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, 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." Wright,
165 Wn.2d at 803 n.12.
In essence, the approach adopted by the Court of Appeals asserts that a complete
lack of evidence for one alternative allows courts to "rule out" the possibility that any
member of the jury relied on the factually unsupported means. Woodlyn, slip op. at 1
(suggesting that any error is harmless because the court "can determine from the record
that the jury'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 if insufficient
evidence of the alternative both gives rise to the error and renders it harmless." Pet. for
3 The Court of Appeals decision followed the reasoning of previous published Court of Appeals 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 decision today, we expressly disapprove of this reasoning.
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Review at 9. A post hoc review of the record does not allow an appellate court to see
into the minds ofjurors. This exercise does not dispel the possibility that the jury might
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. of Pet'r at 15 ("'If the judge tells a jury that they may find the
defendant guilty on a theory that is factually unsupported ... , the jurors understandably
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 of colloquy or explicit instruction, we cannot assume that every member of
the jury relied solely on the supported alternative.
The approach adopted by the Court of Appeals is also impractical. In effect, the
rule would recognize that a defendant is entitled to express jury unanimity when the
evidence is insufficient to support one of the means charged, but not when the 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
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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:
[The petitioner's] novel theory posits two different degrees of failure of proof- a 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 of practical difficulty.
!d. (second emphasis added); see also People v. Guiton, 4 Cal. 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 Ortega-
Martinez by asserting that Washington's constitution affords criminal defendants
additional due process protections, we did not reject the reasoning quoted above, and it
retains persuasive force. We decline to adopt a rule that relies on a complete evidentiary
failure as proof of harmless error.
While we r~ject the Court of Appeals harmless error analysis, we nevertheless
affirm Woodlyn's conviction because our review of the record confirms that sufficient
evidence was presented to support both alternative means of committing second degree
theft.
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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 of the evidence of theft by taking. 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 of facts, we affirm on this basis. See Arndt, 87
Wn.2d at 376.
Woodlyn concedes that the State presented sufficient evidence to support the first
alternative-that a reasonable jury could have found Woodlyn "obtained control" over
Kjellerson's property "by color or aid of deception." 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 of Appeals concurred, finding that
'"[n]o evidence of theft by taking was presented to the jury.'" Woodlyn, slip op. at 6,
10 (alteration in original). We cannot agree. Based on the record, a rational jury could
have concluded beyond a reasonable doubt that Woodlyn "wrongfully obtained"
4 The State also asks this court to adopt the Court of Appeals analysis as a fallback position. See Suppl. Br. ofResp't at 15.
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control ofKjellerson's property. See, e.g., State v. Green, 94 Wn.2d216, 230,616 P.2d
628 (1980) (plurality opinion) (stating the sufficiency of evidence standard).
To support conviction based on theft by taking in the second degree, the State
was required to prove three things: that Woodlyn, with intent to deprive, (1) wrongfully
obtained control over (2) Kjellerson's property, and (3) that the value of said property
exceeded $750. RCW 9A.56.020(1)(a), .040(1)(a); CP at 72. To "wrongfully obtain[]"
means to take without consent. RCW 9A.56.010(22). Woodlyn argues the jury 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 of permitted use
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 the jury to conclude that
Woodlyn did not have Kjellerson's consent to withdraw $1,865 from her account.
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Woodlyn cashed Kjellerson's first check ($60) on July 25, 2011. VRP (Nov. 18,
2013) at 746. Kjellerson apparently approved the withdrawal when a bank employee
called to confirm. VRP (Nov. 14, 2013) at 609-11. The next month, Kjellerson agreed
to pay Woodlyn 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 of July, 5 Woodlyn had consent
to withdraw no 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 In total, 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 inconsistently testified that the 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 the jury 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 in the month of August).
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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 of Appeals
conclusion, the record in this case provides sufficient evidentiary support for the
alternative means of theft by taking. Because both instructed alternative means were
adequately supported, the jury's general verdict of guilt may be upheld. See Arndt, 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 by the Court of Appeals. We reject this approach and
decline to burden trial courts with the task of distinguishing 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 of both theft by deception and theft by taking to
support the jury's general verdict of guilty on charges of second degree theft.
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WE CONCUR:
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