State of Washington v. Jose G. Barboza-Cortes , 425 P.3d 856 ( 2018 )

FILED
AUGUST 30, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34356-1-III
)
Respondent, )
)
v. ) OPINION PUBLISHED IN PART
)
JOSE G. BARBOZA-CORTES )
)
Appellant. )
PENNELL, A.C.J. — An alternative means crime is an offense that can be
committed and proved in more than one way. When a defendant is charged with an
alternative means crime, our constitution requires that the jury make an express,
unanimous finding as to which alternative means forms the basis of a conviction, unless
the State presents sufficient evidence in support of each alternative means.
Jose Barboza-Cortes claims that the rule governing alternative means crimes was
violated in his case and that, as a result, his convictions for second degree unlawful
possession of a firearm and second degree identity theft must be reversed. Mr. Barboza-
Cortes’s contentions result in a split outcome by a split panel.
No. 34356-1-III
State v. Barboza-Cortes
A majority of the panel disagrees with Mr. Barboza-Cortes’s argument with
respect to second degree unlawful possession of a firearm. Although the firearm statute
prohibits owning, possessing or controlling a firearm, these three descriptors are not
alternate ways of violating the same statute. They are instead (as indicated by the name of
the crime) manners of proving the singular criminal act of unlawful possession.
When it comes to the identity theft conviction, a separate majority of the panel
agrees with Mr. Barboza-Cortes’s analysis. Washington’s identity theft statute prohibits
illegal activity involving either a “means of identification” or “financial information.”
These two concepts do not overlap and, therefore, constitute alternative means. Because
one of Mr. Barboza-Cortes’s identity theft convictions was not supported by evidence of
both a means of identification and financial information, and because the court’s
instructions did not require express jury unanimity, that conviction must be reversed.
BACKGROUND
On January 16, 2015, Juliana Garcia’s backpack went missing from her car while it
was parked overnight at her residence. The backpack contained money Ms. Garcia had
collected for a school fundraiser, including several checks. Ms. Garcia reported the
stolen backpack to police.
2
No. 34356-1-III
State v. Barboza-Cortes
Eleven days later, Mr. Barboza-Cortes used an automatic teller machine (ATM) to
deposit four checks into his bank account. Video from the ATM showed Mr. Barboza-
Cortes making the deposit. Three of the deposited checks were ones that had been taken
from Ms. Garcia’s backpack. The stolen checks were not endorsed, but two of the checks
had altered payee information. The fourth deposited check identified Dava Construction
as the payor and Francisco Villa as the payee. Although Dava Construction is a real
company, the financial information listed on the Dava Construction check was fictitious.
After locating Mr. Barboza-Cortes’s banking information and home address, law
enforcement obtained a search warrant for Mr. Barboza-Cortes’s residence. The warrant
was dated February 5, 2015, and executed that same day.
Mr. Barboza-Cortes was the sole occupant of his residence and was present at the
time of the search. During the course of the search, officers twice obtained amended
warrants after first finding methamphetamine and then a firearm. The firearm was a
Stevens model pump-action shotgun. It was hidden between two bedroom mattresses.
The gun was not fingerprinted and, other than a test fire, no further information was
obtained about the weapon.
Mr. Barboza-Cortes was charged with various crimes as a result of the theft
investigation and search warrant execution. A jury ultimately convicted Mr. Barboza-
3
No. 34356-1-III
State v. Barboza-Cortes
Cortes of possession of methamphetamine, unlawful possession of a firearm, three counts
of third degree possession of stolen property, and four counts of identity theft. The stolen
property counts pertained to the three stolen checks that had been deposited by Mr.
Barboza-Cortes on January 27, 2015. The four identity theft counts pertained to each of
the four checks deposited on January 27, including the three checks stolen from Ms.
Garcia’s backpack and the fictitious Dava Construction check.
At sentencing, the court imposed 43 months’ imprisonment, 12 months’
community custody, and several legal financial obligations.
Mr. Barboza-Cortes appeals.
ANALYSIS
Alternative means crimes and lack of jury unanimity
Mr. Barboza-Cortes contends his firearm conviction and one of the four identity
theft convictions were imposed in violation of his constitutional right to a unanimous jury
verdict. WASH. CONST. art I, § 21. His argument rests on the claim that unlawful
possession of a firearm and identity theft are both alternative means crimes, and that the
trial court’s instructions left open the possibility of an improper, nonunanimous jury
verdict. Mr. Barboza-Cortes’s constitutional claims are ones that may be raised for the
first time on appeal. RAP 2.5(a).
4
No. 34356-1-III
State v. Barboza-Cortes
An alternative means crime is one that presents multiple ways of committing and
proving the same offense. State v. Owens, 180 Wash. 2d 90, 96, 323 P.3d 1030 (2014).
When a criminal statute creates an alternative means crime, a defendant is entitled to an
express unanimous jury determination as to which means forms the basis of the guilty
verdict unless the State presents sufficient evidence to support each of the alternative
means. Id. at 95.
Whether a given statute creates an alternative means crime is a question of
statutory interpretation. State v. Bunker, 169 Wash. 2d 571, 577-78, 283 P.3d 487 (2010).
When engaging in statutory interpretation, our “fundamental objective is to ascertain and
carry out the Legislature’s intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146
Wash. 2d 1, 9-10, 43 P.3d 4 (2002). The primary source of legislative intent is the language
used by the legislature. If the wording and context used by the legislature render a statute
plain on its face, then we “must give effect to that plain meaning as an expression of
legislative intent.” Id.
Having reviewed the statutory language applicable to Mr. Barboza-Cortes’s
arguments, a majority of our court partially agrees with Mr. Barboza-Cortes’s
contentions. We disagree with his arguments with respect to second degree unlawful
possession of a firearm. However, we agree that one of Mr. Barboza-Cortes’s
5
No. 34356-1-III
State v. Barboza-Cortes
convictions for second degree identity theft must be reversed under an alternative means
analysis.
Unlawful possession of a firearm
Under RCW 9.41.040(2)(a), a person “is guilty of the crime of unlawful
possession of a firearm in the second degree, if . . . the person owns, has in his or her
possession, or has in his or her control any firearm” after suffering one of several forms
of disenfranchisement outlined by statute. The trial court instructed the jury pursuant to
the foregoing terms of the statute and the jury convicted.
On appeal, Mr. Barboza-Cortes claims RCW 9.41.040(2)(a) encompasses three
distinctive means of committing the same crime. He focuses on the use of the word “or”
and argues the legislature contemplated that an individual can be convicted under the
statute by one of the distinct acts of owning, possessing, or controlling a firearm.
Because Mr. Barboza-Cortes was the sole occupant of the residence where the firearm
was found, the State plainly presented sufficient evidence of possession and control.
State v. Chakos, 74 Wash. 2d 154, 157-58, 443 P.2d 815 (1968). However, Mr. Barboza-
Cortes argues the record lacked any evidence of ownership. Because the jury was not
provided a unanimity instruction, Mr. Barboza-Cortes claims some of the jurors might
6
No. 34356-1-III
State v. Barboza-Cortes
have voted to convict him for a charge that lacked sufficient facts. Accordingly, Mr.
Barboza-Cortes contends his conviction must be reversed.
We disagree with Mr. Barboza-Cortes’s analysis. The word “or” is not, by itself, a
strong indicator of an alternative means crime. State v. Peterson, 168 Wash. 2d 763, 770,
230 P.3d 588 (2010). Instead, we look at the other statutory language, as well as context.
Here, the legislature preceded the three-verb phrase noted by Mr. Barboza-Cortes with
the statement that it was designating “the crime of unlawful possession of a firearm in the
second degree.” RCW 9.41.040(2)(a). Then the legislature listed three methods in
which unlawful possession can occur: ownership, possession, or control. Ownership and
control are part of the dictionary definition of possession. 1 In addition, the concept of
control is a method of proving constructive possession. State v. Callahan, 77 Wash. 2d 27,
29, 459 P.2d 400 (1969). And ownership of an item can be evidence of constructive
1
“Possession” is defined as “[1 a] : the act or condition of having in or taking into
one’s control . . . [b :] actual physical control or occupancy of property . . . without
regard to . . . ownership . . . [d :] control of the playing piece (as a ball or puck) . . . [2 :] something owned, occupied,
or controlled : a thing possessed . . . [3 :] the condition or fact of being possessed by
something . . . [a :] the condition of being dominated by something (as an extraneous
personality, demon, passion, idea, or purpose) . . . [b :] a psychological state in which an
individual’s normal personality is replaced by another [c :] the fact or condition of being
self-controlled.” Webster’s Third New International Dictionary 1770 (1993) (emphasis
added).
7
No. 34356-1-III
State v. Barboza-Cortes
possession. Id. at 31. The fact that the concepts of ownership and control are inherent in
the very act of possession indicates the legislature did not intend to create separate crimes.
State v. Sandholm, 184 Wash. 2d 726, 734-35, 364 P.3d 87 (2015).
Our review of RCW 9.41.040(2)(a) indicates the legislature plainly intended to
prohibit one type of activity, unlawful possession of a firearm. Ownership and control are
terms that merely serve to “elaborate upon and clarify” manners in which possession can
occur. State v. Smith, 159 Wash. 2d 778, 785-86, 154 P.3d 873 (2007). They constitute
“‘means within a means.’” Id. at 787. They do not create alternative means. To the
extent State v. Holt, 119 Wash. App. 712, 82 P.3d 688 (2004) indicates otherwise, 2 we
respectfully disagree with that decision.
Second degree identity theft
RCW 9.35.020(1) creates the crime of second degree identity theft. The statute
declares:
No person may knowingly obtain, possess, use, or transfer a means of
identification or financial information of another person, living or dead,
with the intent to commit, or to aid or abet, any crime.
(Emphasis added.) The trial court’s identity theft instructions were consistent with this
2
While the Holt court characterized RCW 9.41.040 as an alternative means crime,
119 Wash. App. at 718, the decision did not provide any analysis of his claim and ultimately
denied Mr. Holt relief.
8
No. 34356-1-III
State v. Barboza-Cortes
language.
Mr. Barboza-Cortes contends the use of the disjunctive nouns “means of
identification or financial information” within the identity theft statute establishes two
alternative means of committing the crime. In addition, Mr. Barboza-Cortes claims that
because the State was unable to prove that he obtained, possessed, used, or transferred
any “financial information” of Dava Construction (as opposed to Dava Construction’s
“means of identification”) his conviction pertaining to the Dava Construction check must
be overturned. Mr. Barboza-Cortes does not challenge the fact that his other identity theft
convictions were based on checks that bore both a means of identification and financial
information. As a consequence, those convictions are not vulnerable to a unanimity
challenge.
We previously addressed whether identity theft was an alternative means crime in
State v. Butler, 194 Wash. App. 525, 374 P.3d 1232 (2016). In Butler, Division Two of our
court held that identity theft is not an alternative means crime. However, Butler did not
address the argument raised by Mr. Barboza-Cortes. Butler addressed only the four
disjunctive verbs set forth in RCW 9.35.020, “obtain, possess, use, or transfer.” The
Butler court held that these four verbs did not create alternative means of committing
9
No. 34356-1-III
State v. Barboza-Cortes
identity theft. 194 Wash. App. at 529-30. Mr. Barboza-Cortes’s argument regarding the
alternative nouns set forth in the statute is an issue never considered in Butler.
Our analysis of whether the identity theft statute constitutes an alternative means
crime, as argued by Mr. Barboza-Cortes, turns on the meaning of the terms “means of
identification” and “financial information.” The legislature has defined the two terms as
follows:
“Financial information” means any of the following information
identifiable to the individual that concerns the amount and conditions of an
individual’s assets, liabilities, or credit:
(a) Account numbers and balances;
(b) Transactional information concerning an account; and
(c) Codes, passwords, social security numbers, tax identification
numbers, driver's license or permit numbers, state identicard numbers issued
by the department of licensing, and other information held for the purpose
of account access or transaction initiation.
....
“Means of identification” means information or an item that is not
describing finances or credit but is personal to or identifiable with an
individual or other person, including: A current or former name of the
person, telephone number, an electronic address, or identifier of the
individual or a member of his or her family, including the ancestor of the
person; information relating to a change in name, address, telephone
number, or electronic address or identifier of the individual or his or her
family; a social security, driver’s license, or tax identification number of the
individual or a member of his or her family; and other information that
could be used to identify the person, including unique biometric data.
RCW 9.35.005(1), (3).
10
No. 34356-1-III
State v. Barboza-Cortes
A close read of the statute reveals the definitions of “means of identification” and
“financial information” do not overlap. By excluding information or items “describing
finances or credit” from the definition of a “means of identification,” the legislature
indicated its intent to outline two separate manners of committing identity theft. Cf.
Butler, 194 Wash. App. at 528 (statute divided into subparts more likely to designate an
alternative means); State v. Lindsey, 177 Wash. App. 233, 241, 311 P.3d 61 (2013) (same).
While the definitions of “means of identification” and “financial information” both list
social security numbers, tax identification numbers, and driver’s license numbers as
qualifying types of information, this is not an indication of overlap. Social security
numbers, tax identification numbers, and driver’s license numbers can be used by
financial institutions to identify specific accounts. In such circumstances, the numbers
are used for “account access or transaction initiation” and therefore qualify as financial
information. RCW 9.35.005(1). But outside the financial context, the definitional statute
makes clear that the numbers constitute means of identification.
We recognize that definitional statutes do not create alternative means crimes.
Smith, 159 Wash. 2d at 785; State v. Linehan, 147 Wash. 2d 638, 646, 56 P.3d 542 (2002).
But here, the alternative means for identity theft are not hidden away in a definitional
statute. Instead, the two means are listed as part of the substantive offense. The
11
No. 34356-1-III
State v. Barboza-Cortes
definitional statute merely serves to articulate the distinct nature of the two terms listed in
the substantive crime.
Based on the wording of substantive text chosen by the legislature, one commits
the crime of identity theft either by obtaining/possessing/using/transferring financial
information or by obtaining/possessing/using/transferring a means of identification. It is
possible, if not common, for one to commit both acts at the same time, such as what
occurs when a defendant fraudulently passes a check bearing another person’s name
(means of identification) and account number (financial information). But the two acts
do not inhere in each other. By using a document bearing another’s name or address, one
is not presenting financial information. And by presenting a document bearing an
account number, one is not presenting another person’s means of identification. Because
the identity theft statute contemplates two very distinct types of actions, it qualifies as an
alternative means crime. Cf. Owens, 180 Wash. 2d at 99 (statute does not create alternative
means when many of the alternate methods listed by statute are not severable).
Having concluded that identity theft is an alternative means crime and that the jury
was not provided a unanimity instruction, we must examine whether the State presented
sufficient evidence of each alternative means. With respect to the Dava Construction
check, the State’s evidence was that the check deposited by Mr. Barboza-Cortes
12
No. 34356-1-III
State v. Barboza-Cortes
contained an existing company name and address. However, the check did not bear any
accurate financial information. Given these circumstances, the State only submitted
sufficient evidence as to one of the two alternative means of the crime charged. Although
the State satisfied its burden of producing evidence that the Dava Construction check
constituted a means of identification, there was no evidence that the check qualified as
financial information.
The State recognizes it failed to present evidence that the Dava Construction
offense involved any financial information. Nevertheless, the State claims the absolute
lack of evidence means the jury must have based its verdict on the alternative means of
obtaining, possessing, or using the construction company’s means of identification. This
argument is inconsistent with standards set by the Supreme Court regarding alternative
means crimes. “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.” State v. Woodlyn, 188 Wash. 2d 157, 162, 392 P.3d 1062 (2017). The
complete lack of evidence as to one of the alternative means is what requires reversal. Id.
at 165-66. It does not allow us to “‘rule out’” the possibility that a juror may have
convicted the defendant on an unsupported alternative means. Id.
13
No. 34356-1-III
State v. Barboza-Cortes
Given that a conviction for identity theft can be obtained in two distinct ways and
that the State failed to present evidence with respect to one of the two ways, the lack of an
express unanimity instruction means Mr. Barboza-Cortes is entitled to reversal of this
conviction without prejudice. 3
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
having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it
is so ordered.
Remaining claims
Search warrant
Mr. Barboza-Cortes challenges the search of his residence, arguing that the
affidavit in support of the search warrant failed to establish a nexus between any seizable
items and his home. State v. Thein, 138 Wash. 2d 133, 147, 977 P.2d 582 (1999). We
review this legal argument de novo, State v. Chamberlin, 161 Wash. 2d 30, 40, 162 P.3d 389
(2007), and hold that the affidavit provided adequate nonconclusory facts indicating that
evidence of alleged crimes would be found at Mr. Barboza-Cortes’s home.
3
The applicable conviction was contained in count 12 of the fifth amended
information. Clerk’s Papers at 203.
14
No. 34356-1-III
State v. Barboza-Cortes
Probable cause to believe a person committed a crime does not necessarily support
probable cause to search that person’s home. Thein, 138 Wash. 2d at 148; State v. Dunn,
186 Wash. App. 889, 897, 348 P.3d 791 (2015). Conclusory generalizations about criminal
activity are inadequate to establish probable cause. Thein, 138 Wash. 2d at 147-48.
However, a court may infer that law enforcement will find stolen property at a
perpetrator’s residence if the perpetrator had an opportunity to return home before his
apprehension by the police. Dunn, 186 Wash. App. at 897.
Here, the timing of the warrant and the nature of the items sought supported
probable cause for issuance of the warrant. By the time the police sought the warrant, 20
days had passed since the original theft and over a week had passed since Mr. Barboza-
Cortes had deposited stolen checks into his bank account. Mr. Barboza-Cortes thus had
sufficient time to secrete evidence related to stolen property at his residence. Yet not too
much time had passed to raise staleness concerns. In addition, the nature of the items
sought (a stolen backpack, indicia of residence, a pair of shoes) 4 are the types of items
likely stored at a home. Based on the allegations set forth in the warrant affidavit, there
was a sufficient basis to believe that evidence outlined in the affidavit would be found at
4
Fresh shoeprints were found in the snow near Ms. Garcia’s car after the backpack
was stolen from it.
15
No. 34356-1-III
State v. Barboza-Cortes
Mr. Barboza-Cortes’s home.
Sufficiency of evidence
Mr. Barboza-Cortes contends the State’s evidence was insufficient to convict him
of unlawful firearm possession, identity theft, and possession of stolen property. His
challenge goes to the State’s proof of mens rea. With respect to the firearm charge, Mr.
Barboza-Cortes claims there was insufficient evidence to show knowing possession of the
shotgun, which was hidden between two mattresses. As for the other charges, Mr.
Barboza-Cortes claims the State lacked evidence to show he knew the checks deposited to
his bank account had been stolen. Viewing the evidence in the light most favorable to the
State, State v. Green, 94 Wash. 2d 216, 221-22, 616 P.2d 628 (1980), we find the evidence
sufficient as to all charges.
As explained above, the fact that Mr. Barboza-Cortes was the sole occupant of the
residence where the shotgun was found provided the State with sufficient evidence of
knowledge to support the firearm conviction. Chakos, 74 Wash. 2d at 157-58. With respect
to the remaining charges, the ATM video surveillance shows Mr. Barboza-Cortes
possessed and deposited checks that were not made out to him and contained financial
information that was not his. This was sufficient to satisfy the mens rea requirements of
his stolen property and identity theft convictions. RCW 9.35.020(1); RCW 9A.56.170.
16
No. 34356-1-III
State v. Barboza-Cortes
Double jeopardy
Mr. Barboza-Cortes argues that his three convictions for possession of stolen
property (stemming from the three checks stolen from the backpack) encompass the same
offense for double jeopardy purposes. Relying on State v. McReynolds, 117 Wash. App.
309, 340, 71 P.3d 663 (2003), he contends that simultaneous possession of various items
of property stolen from multiple owners constitutes one unit of prosecution of the crime
of possession of stolen property.
While the State does not fully agree with Mr. Barboza-Cortes’s factual analysis, it
nevertheless concedes error and agrees that Mr. Barboza-Cortes should only be convicted
of one count of possession of stolen property. The remaining counts should be dismissed.
We accept the State’s concession and direct that two of Mr. Barboza-Cortes’s three
convictions for possession of stolen property be reversed and dismissed.
Sentencing
Mr. Barboza-Cortes claims the trial court committed several errors at sentencing,
including a miscalculation of his offender score based on washed out offenses; imposition
of a noncrime-related community custody condition, prohibiting Mr. Barboza-Cortes
from frequenting places whose principal source of income is the sale of alcoholic
17
No. 34356-1-111
State v. Barboza-Cortes
beverages; 5 imposition of a $250 drug enforcement fee that was included on the judgment
and sentence, but not mentioned at sentencing; and imposition of a $250 jury demand fee,
despite Mr. Barboza-Cortes's inability to pay. 6 Because we are reversing a portion of Mr.
Barboza-Cortes's convictions, his sentence must be reversed. Mr. Barboza-Cortes may
raise the aforementioned claims of error at resentencing.
CONCLUSION
Mr. Barboza-Cortes's conviction for one count of second degree identity theft
(count 12) is reversed without prejudice. Two of Mr. Barboza-Cortes's convictions for
possession of stolen property are dismissed with prejudice, pursuant to Mr. Barboza-
Cortes's double jeopardy argument. Mr. Barboza-Cortes's sentence is reversed and this
matter is remanded for further proceedings consistent with the terms of this opinion.
Because Mr. Barboza-Cortes has partially prevailed on appeal, the State shall not be
awarded appellate costs.
Pennell, A.C.J.
5 We have previously stricken similar conditions imposed in drug cases as not
crime related. State v. Davis, No. 34766-4-111 (Wash. Ct. App. Sept. 28, 2017)
(unpublished), http://www.courts.wa.gov/opinions/pdf/347644.pdf.
6
As of June 7, 2018, a jury demand fee is a discretionary cost that may not be
imposed against a defendant who is found to be indigent at the time of sentencing. RCW
10.46.190. LAWS OF 2018, ch. 269, § 9.
18
No. 34356-1-III
KORSMO, J. — (concurring and dissenting) – I join all of the excellent lead opinion
except its discussion of whether identity theft is an alternative means offense. We have
already answered that question in State v. Butler, 194 Wash. App. 525, 374 P.3d 1232
(2016). Moreover, even if it were an alternative means offense, we should still be
affirming the conviction on count 12 because the prosecutor elected the means he was
asking the jury to consider. The election doctrine should be just as availing in alternative
means cases as it is in multiple acts prosecutions. For both of those reasons, I dissent in
part from the reversal of that charge.
Identity Theft Is Not an Alternative Means Offense
In order to ensure the state constitutional right to a jury trial under Art. I, § 21 is
satisfied, Washington requires that a jury verdict in a criminal case be unanimous. State
v. Owens, 180 Wash. 2d 90, 95, 323 P.3d 1030 (2014). That right extends to unanimity of
means if the charge includes alternative means of committing the offense. Id. An
alternative means offense is one “by which the criminal conduct may be proved in a
variety of ways.” Id. at 96. That right to unanimity is satisfied if there is sufficient
evidence to support each means of the offense or if there is an express verdict on a
specific means. Id. at 95. If the evidence is insufficient on one of the means of
No. 34356-1-III
State v. Barboza-Cortes
committing the offense, a general verdict must be reversed and the case remanded for a
new trial. State v. Woodlyn, 188 Wash. 2d 157, 165, 392 P.3d 1062 (2017); State v. Ortega-
Martinez, 124 Wash. 2d 702, 708, 881 P.2d 231 (1994).
Determining whether a crime consists of alternate means is an issue that has
revived in recent years, fueled perhaps, by the adoption of new and more complex
criminal statutes. At its heart, the basic inquiry is one of legislative intent. State v. Arndt,
87 Wash. 2d 374, 377-378, 553 P.2d 1328 (1976). In the absence of express legislative
intent, courts consider four factors: (1) the title of the act, (2) whether there is a
connection between the various acts set out, (3) whether the acts are consistent with and
not repugnant to each other, and (4) whether the acts inhere in the same transaction. Id.
at 378-384. Various principles of statutory construction also provide aid. Owens, 180
Wash. 2d at 96; Arndt, 87 Wash. 2d at 384-385.
Owens involved the first degree trafficking in stolen property statute:
A person who knowingly initiates, organizes, plans, finances, directs,
manages, or supervises the theft of property for sale to others, or who
knowingly traffics in stolen property, is guilty of trafficking in stolen
property in the first degree.
RCW 9A.82.050(1) (emphasis added). The court concluded that the first seven verbs
addressed related behaviors constituting one form of trafficking, while the italicized
clause constituted a second means of committing the crime. Owens, 180 Wash. 2d at 98-99.
In reaching that decision, the court emphasized the similarities of the first seven verbs
2
No. 34356-1-III
State v. Barboza-Cortes
and noted that all were just forms of stealing property. Id. at 99. In that regard, it noted
that when considering the failure to register statute, the court had determined that the
three asserted alternative means (failing to register after becoming homeless, changing
residences within county, moving between counties) were too similar to constitute
distinct means. Id. at 97, 99 (discussing State v. Peterson, 168 Wash. 2d 763, 230 P.3d 588
(2010)). Instead, they were all simply forms of failing to register. Owens, 180 Wash. 2d at
99.
Identity theft is defined in RCW 9.35.020(1):
No person may knowingly obtain, possess, use, or transfer a means of
identification or financial information of another person, living or dead,
with the intent to commit, or to aid or abet, any crime.
(Emphasis added.) This statute was authoritatively construed in this context in Butler.
There the appellant argued that the four verbs (italicized above) created four alternative
methods of committing identity theft. 194 Wash. App. at 529. Applying the Owens
analysis of the four verbs, Butler noted that each described similar actions. Id. at 529-
530. They were not “distinct means” of committing identity theft, but were “multiple
facets of a single means.” Id. at 530. The words did not require a complete overlap in
meaning to constitute the same conduct. Id. “Because no single action in the statute
could be completed without simultaneously completing at least one other action, the
various acts are too similar to constitute distinct alternative means.” Id. Accordingly, the
court held that “identity theft is not an alternative means crime.” Id.
3
No. 34356-1-III
State v. Barboza-Cortes
Appreciating that Butler otherwise dooms his position, Mr. Barboza-Cortes
argues, and the majority agrees, that identity theft constitutes an alternative means
offense because the objects of the four verbs—financial information or personal
identification 1—are different. Although this is an interesting question, I think the Owens
approach compels the same answer that Butler gave.
The focus of Owens was on the practical meaning of the verbs before it and the
acknowledgement that the behaviors listed “overlapped” (in the language of the majority)
in the practical sense that it was difficult, if not impossible, to commit the act in one
manner without violating other statutory prohibitions. Understandably, Butler reached
the same result when construing the verbs at issue in this statute. While the majority
distinguishes this case by focusing, as Mr. Barboza-Cortes argues, on the two objects of
the verbs (financial information and personal identification) being discrete, I think that is
the wrong focus. The criminal law prohibits actions that are contrary to the good of
society. The statute’s verbs are its action words, just as they are for any sentence
constructed using English or any other romance language. Those are the words that
define the actions that the legislature seeks to prohibit. They are the proper focus of an
alternative means analysis.
1
See the underlined emphasis in the statute above.
4
No. 34356-1-III
State v. Barboza-Cortes
The same result occurred in Peterson. At issue there was only a single verb phrase
(failure to register), and at least three different ways of failing to register. Nonetheless,
the court found that those three ways of violating the registration requirement were all the
same conduct because there was only a single prohibited action—failing to register. 168
Wash. 2d at 770. The focus was on the verb rather than on the objects of the verb. 2 I think
the same thing should happen here. The essence of this offense is wrongly exploiting the
personal information of another, whether it be financial information or personal identity
information, by one of the methods listed in the statute. Although both financial and
personal identity information are protected, the statute does not make mere knowledge of
another person’s information a crime. It is the misuse of that information that is
actionable. Together, the personal identification and financial information language
broadly protects an individual’s most sensitive and valuable information. The protection
of that sensitive information is the true object of the statute. In many instances, the
financial information and identity information will overlap—the checks at issue in the
other counts of identity theft in this case contained both types of information. There
frequently will be an overlap in proof.
2
Appellant has not identified a single statute where a court has engaged in an
alternative means analysis of anything other than a verb. This case appears to be unique
in that regard.
5
No. 34356-1-III
State v. Barboza-Cortes
As a practical matter, the unanimity problem is seldom genuinely at issue in
circumstances like this. The behavior at issue in count 12 involved a single check
allegedly passed by the defendant. The question for the jury was whether or not he
passed the check, not whether the check involved personal identity information as
opposed to financial information. The nature of personal information is unlikely to be at
issue in a trial.
By focusing on the objects instead of the verbs, I believe the majority has reversed
the alternative means analysis. As Butler recognized, identity theft is not an alternative
means statute.
This conclusion also is consistent with the unit of prosecution for identity theft.
Construing the various methods of committing identity theft, our court declared that the
unit of prosecution for identity theft is each identification or information of a victim that
is used, transferred, obtained or possessed, not each action taken against the victim. State
v. Leyda, 157 Wash. 2d 335, 345, 138 P.3d 610 (2006). Once the action is taken against the
victim, repeated uses (or transfers, etc.) are part of the same continuing course of
conduct. Id. at 342-350. This unit of prosecution strongly confirms my view that it is the
verbs that are at issue when construing criminal behavior, not the objects of those actions.
For the noted reasons, I respectfully disagree with the majority’s construction of
the identity theft statute.
6
No. 34356-1-III
State v. Barboza-Cortes
Jury Unanimity Was Assured by the Prosecutor’s Election
Moreover, if this was in fact an alternative means case, then an additional problem
presents itself. Here, the prosecutor elected the means by which the jury should reach its
verdict. He expressly told the jury that this was an identification case and that there was
no evidence of financial records since that information was known to be false. In the like
circumstances involving multiple acts cases, the prosecutor’s election of the evidence on
which he is relying serves to guarantee jury unanimity. I do not see the alternative means
cases as being any different. If election of acts suffices to ensure unanimity, election of
means should do the same.
In “multiple acts” cases where more different criminal actions were proven than
were alleged, the constitution requires that the jury either be instructed on the need to
agree on the specific act proved or the State must elect the specific act it is relying on in
order to ensure that a unanimous verdict was returned. This type of error requires a new
trial unless shown to be harmless beyond a reasonable doubt. State v. Camarillo, 115
Wash. 2d 60, 64, 794 P.2d 850 (1990); State v. Kitchen, 110 Wash. 2d 403, 405-406, 414, 756
P.2d 105 (1988). 3
3
Similarly, when a jury considers an alternative means that was not supported by
the evidence, the remedy is to reverse the conviction and remand for a new trial on the
alternative means that was supported by the record. State v. Green, 94 Wash. 2d 216, 235,
616 P.2d 628 (1980).
7
No. 34356-1-III
State v. Barboza-Cortes
Here, there was no error because the prosecutor expressly told the jury his theory
during closing argument. He expressly eschewed reliance on the financial information
prong of the statute because the information on the fraudulent check clearly was false.
The majority dismisses this argument on the basis that it is inconsistent with
Woodlyn. It is not. In Woodlyn, as in numerous other failed alternative means
prosecutions such as Green, the question of election was not presented. Instead, the
problem was whether sufficient evidence supported all of the means presented to the jury.
Whether any of those means was successfully withdrawn from jury consideration by the
prosecutor’s election of means was never at issue.
The issue was raised in State v. Lobe, 140 Wash. App. 897, 167 P.3d 627 (2007). At
issue there were multiple counts of witness tampering; the State conceded on two counts
that insufficient evidence was presented about one of the alternative means of committing
the crime, but argued that the prosecutor had elected for the jury a means of committing
the crime that were supported by sufficient evidence. Id. at 902. The majority opinion
determined that the election of means was inadequate in each instance. Id. at 906. In
contrast, the dissenting judge found the elections sufficient. Id. at 907 et seq. (Hunt, J.,
dissenting).
Similarly, the Washington Supreme Court has at least twice recognized that an
alternative means problem does not arise if the jury was not presented with alternative
means for consideration. Peterson, 168 Wash. 2d at 771 n.6; State v. Smith, 159 Wash. 2d
8
No. 34356-1-111
State v. Barboza-Cortes
778, 790, 154 P.3d 873 (2007). The prosecutor's selection of the means he was relying
on here effectively withdrew the other alternative from the jury's consideration, just as an
election does in the context of a multiple acts case.
If the prosecutor's selection of which act he was relying on is sufficient to
preserve unanimity in a multiple acts case such as Kitchen, it is equally effective in an
alternative means case. Here, the prosecutor told the jury that only one means was at
issue in count 12. That election sufficed.
For both reasons, I respectfully dissent from the majority's reversal of count 12. I
concur in all other aspects of the lead opinion.
9
No. 34356-1-III
FEARING, J. (concur in part/dissent in part) — I concur in part and dissent in part
with the majority. I agree with my two colleagues to uphold the search of Jose Barboza-
Cortes’ premises and to affirm Barboza-Cortes’ conviction for unlawful possession of
methamphetamine with intent to deliver and three convictions of possession of stolen
property. I am part of the majority that holds that second degree identity theft constitutes
a partial alternative means crime with regards to the object of the theft. With the writer
of the lead opinion, I reverse Jose Barboza-Cortes’ conviction for second degree identity
theft with regard to an imitation Dava Construction check. I dissent from the majority’s
ruling that unlawful possession of a firearm does not pose an alternative means crime. I
would also reverse the conviction for unlawful possession of a firearm.
SOME FACTS
Wenatchee police officers executed a search warrant to gather banking
information and shoes at Jose Barboza-Cortes’ residence. Barboza-Cortes, but no one
else, was present at the time. Police officers found methamphetamine. On discovery of
the methamphetamine, law enforcement ceased the search until Corporal Nathan Hahn
procured an amended search warrant to include seizure of methamphetamine.
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
During the reinstated search, Sergeant Richard Johnson recovered a Stevens model
pump-action shotgun between two mattresses in the bedroom. Officers needed to pull the
mattresses apart. Sergeant Johnson found no shotgun shells. Corporal Nathan Hahn then
sought and obtained a second amended search warrant to allow seizure of firearms. Law
enforcement took the shotgun but never tested it for fingerprints. The officers never saw
Jose Barboza-Cortes holding the shotgun and never knew who brought the shotgun into
the residence.
SOME PROCEDURE
During trial, the State presented no testimony that Jose Barboza-Cortes owned the
firearm found in his residence. Thereafter defense counsel proposed a jury instruction,
for the second degree unlawful possession of a firearm charge, which read that, in order
to convict Barboza-Cortes of the charge, the jury must find the following elements
beyond a reasonable doubt:
(1) That on or about the second day of February, 2015, the defendant
knowingly had a firearm in his possession or control;
(2) That the defendant had previously been convicted of a felony;
and
(3) That the possession or control of the firearm occurred in the State
of Washington.
Clerk’s Papers (CP) at 195-96. The trial court declined to deliver Jose Barboza-Cortes’
proposed instruction and instead instructed the jury that, in order to convict Barboza-
2
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
Cortes of second degree unlawful possession of a firearm, the jury must find the
following elements beyond a reasonable doubt:
(1) That on or about the 5th day of February, 2015, the defendant
knowingly owned, possessed or had in his control a firearm;
(2) That prior to owning, possessing, or having the firearm under his
control, the defendant had been convicted of a felony; and
(3) That the acts occurred in the State of Washington.
CP at 207, 225 (emphasis added).
In closing argument, the State argued that the only evidence presented showed that
Jose Barboza-Cortes possessed no financial information about Dava Construction. The
prosecution stated:
On the Dava Construction check, the bank—Ms. Cochran, from
Cashmere Valley Bank, indicated, well that check, actually, wasn’t even
legitimate, to begin with. You are not being asked if that check was a
stolen check or not.
Report of Proceedings (RP) (Feb. 25, 2016) at 402. The State’s attorney added:
[t]he checks—except for the Dava construction check—also have
financial information on them. And, as, probably many of you know, you
have an account number and a routing number, on the bottom of those
checks. That’s financial information.
RP (Feb. 25, 2016) at 424-25. The State argued that the checks, other than the Dava
Construction check, contained both identifying information and financial information.
During closing argument, the State argued that Jose Barboza-Cortes possessed and
controlled dominion over the Stevens model shotgun. The State did not argue that
Barboza-Cortes owned the firearm.
3
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
SECOND DEGREE UNLAWFUL POSSESSION OF A FIREARM
Jose Barboza-Cortes argues that the trial court committed error when failing to
deliver a unanimity jury instruction for the charge of unlawful possession of a firearm in
the second degree. He seeks reversal of his conviction for this crime. To address
whether the trial court should have given a unanimity instruction, I must first determine if
unlawful possession of a firearm is an alternative means crime. I later address whether
evidence sufficed to convict Jose Barboza-Cortes on each of the alternative means of
committing unlawful possession of a firearm.
The trial court instructed the jury that Jose Barboza-Cortes committed the crime, if
“on or about the 5th day of February, 2015, the defendant knowingly owned, possessed
or had in his control a firearm.” CP at 207 (emphasis added). The trial court did not
instruct the jury it must be unanimous in its verdict as to whether Barboza-Cortes owned
the firearm, possessed the firearm, or controlled the firearm. Barboza-Cortes contends
that he was entitled to a unanimity jury instruction on the charge of second degree
unlawful possession of a firearm because of the alternate means of committing the crime.
The State answers that the trial court did not err when failing to render a unanimity
instruction for unlawful possession of a firearm in the second degree because RCW
9.41.040(2)(a) does not create alternate means to commit the crime.
The alternative means determination relates to the constitutionally protected right
of jury unanimity required under article I, section 21 of the Washington Constitution.
4
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
State v. Owens, 180 Wash. 2d 90, 95, 323 P.3d 1030 (2014). An alternative means crime
results from multiple means of proving the charge. State v. Owens, 180 Wash. 2d at 96.
When the State may present compound means of proving the crime, the trial court must
instruct the jury that it must be unanimous as to the particular means on which it convicts,
unless sufficient evidence supports each of the alternative means. State v. Owens, 180
Wash. 2d at 95.
The legislature has not defined what constitutes an alternative means crime or
designated which crimes comprise alternative means crimes. State v. Owens, 180 Wash. 2d
at 96. Therefore, the courts must determine whether a crime constitutes an alternative
means crime by reviewing each statute on its own merits. State v. Owens, 180 Wash. 2d at
96. We must review the nature of the language employed with regard to differing
methods to commit the crime.
In one sense, any statute that lists more than one action when defining the crime
creates an alternative means crime. Nevertheless, the law does not deem any such statute
to construct an alternative means crime if the actions, be they described by verbs, nouns,
or prepositional phrases, vary inconsequentially in meaning. Alternative means should
be probed based on how varied the actions are that could constitute the crime. State v.
Owens, 180 Wash. 2d at 97. If no single action expressed in the statute can be completed
without simultaneously completing at least one other action, the various acts are too
similar to constitute distinct alternative means. State v. Butler, 194 Wash. App. 525, 530,
5
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
374 P.3d 1232 (2016). Because some differing ways of committing a crime may be close
in nature and some not close in nature, a crime may be a limited alternative means crime.
Jose Barboza-Cortes principally relies on State v. Holt, 119 Wash. App. 712, 82 P.3d
688 (2004). The State agrees that State v. Holt, 119 Wash. App. 712 holds that second
degree unlawful possession of a firearm is an alternative means offense committed when
a convicted felon (1) owns, (2) possesses, or (3) controls a firearm. The State, however,
criticizes the decision and asks that we issue a contrary ruling.
In State v. Holt, Division Two of this court wrote:
Second degree unlawful possession of a firearm is an alternative
means offense committed when a convicted felon (1) owns, (2) possesses,
or (3) controls a firearm. RCW 9.41.040(1)(b).
State v. Holt, 119 Wash. App. at 718. I consider the Holt ruling to be dicta. The court
engaged in no analysis before holding unlawful possession of a firearm to be an
alternative methods crime. The court eventually held that it need not address Bobby
Holt’s assignment that the trial court erred for withholding a unanimity instruction
because Holt proposed the jury instruction delivered by the trial court. Holt also has the
distinguishing feature that the trial court only instructed the jury that it could convict Holt
of unlawful possession of a firearm if he possessed or controlled a firearm. The
instructions did not place into issue any ownership of the firearm. Therefore, I perform
an independent analysis of whether second degree unlawful possession of a firearm
constitutes an alternative means crime.
6
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
The controlling statute, RCW 9.41.040, declares, in portion:
(2)(a) A person . . . is guilty of the crime of unlawful possession of a
firearm in the second degree, if the person . . . owns, has in his or her
possession, or has in his or her control any firearm:
(i) After having previously been convicted . . . in this state or
elsewhere of any felony not specifically listed as prohibiting firearm
possession under subsection (1) of this section. . . .
(Emphasis added.) Note that the disjunctive “or” separates the verbs “owns,”
“possesses,” and “controls.” The court’s jury instruction followed this language.
Employment of English grammar rules about the disjunctive conjunction should lead one
to conclude that unlawful possession of a firearm constitutes an alternative means crime
with three alternate means, but sometimes law does not follow grammar perhaps because
legislators are not grammarians.
Use of the disjunctive “or” in a list of methods for committing the crime does not
necessarily create alternative means of committing the crime. State v. Peterson, 168
Wash. 2d 763, 770, 230 P.3d 588 (2010). An alternative means analysis places less weight
on the use of the disjunctive “or” and more weight on the distinctiveness of the verbs or
nouns that form the criminal conduct. State v. Sandholm, 184 Wash. 2d 726, 735, 364 P.3d
87 (2015). The more varied the criminal conduct, the more likely the statute describes
alternative means. State v. Sandholm, 184 Wash. 2d at 734. 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. State v. Sandholm, 184 Wash. 2d at 734.
7
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
The State emphasizes State v. Owens, 180 Wash. 2d 90 (2014) and State v. Butler,
194 Wash. App. 525 (2016). In Owens, the state Supreme Court addressed whether RCW
9A.82.050, the trafficking in stolen property statute, creates an alternative means crime.
The court held the crime to encompass two alternative methods rather than the eight
methods declared by this court. RCW 9A.82.050(1) reads:
[a] person who knowingly initiates, organizes, plans, finances,
directs, manages, or supervises the theft of property for sale to others, or
who knowingly traffics in stolen property, is guilty of trafficking in stolen
property in the first degree.
Division One of the Court of Appeals held that RCW 9A.82.050(1) describes eight
alternative means: knowingly (1) initiating, (2) organizing, (3) planning, (4) financing,
(5) directing, (6) managing, or (7) supervising the theft of property for sale to others, or
(8) knowingly trafficking in stolen property. The Supreme Court disagreed and adopted
the approach taken by Division Two in State v. Lindsey, 177 Wash. App. 233, 311 P.3d 61
(2013). Analyzing the statute as a whole, RCW 9A.82.050(1) describes only two
alternative means of trafficking in stolen property. The placement and repetition of the
word “knowingly” suggests that the legislature intended two means. The first
“knowingly” relates to all seven terms in the first part of the statute as a group. Similarly,
the phrase “the theft of property for sale to others” relates to the entire group. Treating
these terms as a group indicates that they represent multiple facets of a single means of
committing the crime. If the statute described eight means, there would be no need to use
8
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
the word “knowingly” again.
The Supreme Court in State v. Owens also reasoned that the first group of seven
terms relates to different aspects of a single category of criminal conduct, facilitating or
participating in the theft of property so that the purloined materials can be sold. As a
result, the seven verbs acted as definitions of “facilitating” or “participating.” Trafficking
in stolen property involves a second, separate category, of transferring possession of
property known to be stolen, defined separately in the definitional section of the statute.
In State v. Butler, 194 Wash. App. 525 (2016), this court recently analyzed the
identity theft statute at issue in this case and discussed later. The court concluded that
RCW 9.35.020 is not an alternative means statute. The statute declares:
(1) No person may knowingly obtain, possess, use, or transfer a
means of identification or financial information of another person, living or
dead, with the intent to commit, or to aid or abet, any crime.
....
(3) A person is guilty of identity theft in the second degree when he
or she violates subsection (1) of this section under circumstances not
amounting to identity theft in the first degree. . . .
The Butler court compared the four verbs used to describe identity theft to the seven
verbs in State v. Owens, holding:
[t]he verbs here are not distinct means by which to commit identity
theft, but rather are multiple facets of a single means. For instance,
following the analysis in Owens, it would be hard to imagine the crime of
identity theft being committed by a single act of “using” a check that did
not also involve “obtaining” and “possessing” the check. Likewise, one
could not “transfer” financial information without also “obtaining” and
“possessing” that information.
9
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
State v. Butler, 194 Wash. App. at 530. The court rejected the argument that the four verbs
differed because not all of the terms interconnected. Karon Butler underscored that one
could “obtain” financial information without “using” or “transferring” the information.
The court answered that the same argument existed regarding the terms in Owens. A
person might “finance” or “initiate” a theft without “managing” or “supervising” the
crime. The Butler court reasoned that every verb need not correspond with every other
verb in order to be considered a single means. The court concluded:
[b]ecause no single action in the statute could be completed without
simultaneously completing at least one other action, the various acts are too
similar to constitute distinct alternative means.
State v. Butler, 194 Wash. App. at 530.
In Jose Barboza-Cortes’ appeal, I must determine the proximity in thought and
action of the three verbs “own,” “possess,” and “control” in relation to a firearm as found
in RCW 9.41.040(2)(a). I find the words “possess” and “control” similar in nature such
that, if the statute contained only the two verbs, RCW 9.41.040(2)(a) would not constitute
an alternative means crime. If one possesses the firearm, one necessarily exercises some
control over the weapon. If one controls the firearm, one generally actually or
constructively possesses the weapon. The law often equates control with possession.
State v. Callahan, 77 Wash. 2d 27, 29, 459 P.2d 400 (1969); State v. Summers, 107 Wn.
App. 373, 383-84, 28 P.3d 780, 785, 43 P.3d 526 (2001).
10
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
But RCW 9.41.040(2)(a) contains a third verb, “own.” The act of ownership is
significantly different from possession or control. Four months ago, I lent my car jack to
a stranded motorist. Despite providing the motorist with my name and phone number,
the motorist has never returned the jack. I remain the owner of the car jack, but I lack
possession or control over the instrument. Because of the distinct nature of ownership
from possession, the motorist could be prosecuted for a crime. The landlord of rental
premises lacks possession over the property and holds little control over the property’s
use. The law shields the landlord from criminal liability for the crimes of the tenant
except in circumcised circumstances. State v. Roberts, 80 Wash. App. 342, 356, 908 P.2d
892 (1996). The lessor of a rental car lacks possession and control over the operation of
the car. Therefore, I conclude second degree unlawful possession of a firearm, under
RCW 9.41.040(2)(a), constitutes a limited alternative means crime with ownership being
a distinct means.
One impediment in resolving the question of whether unlawful possession of a
firearm under RCW 9.41.040(2)(a) constitutes an alternative means crime is the lack of
foreign and Washington law to assist. In many Washington reported decisions, the trial
court instructed the jury that the defendant committed the crime if he or she possessed or
controlled the weapon but omitted from the instruction ownership of the firearm. State v.
Releford, 148 Wash. App. 478, 495, 200 P.3d 729 (2009); State v. Holt, 119 Wash. App. 712
(2004); State v. Shouse, 119 Wash. App. 793, 796, 83 P.3d 453 (2004). Many foreign
11
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
statutes only prohibit the possession of a firearm by a felon. N.Y. PENAL Law § 265.02
(New York); 720 ILL. COMP. Stat. 5/24-1.1 (Illinois); TEX. PENAL CODE ANN. § 46.04
(Texas). A federal statute that prohibits movement of firearms in interstate commerce by
one convicted of a crime, punishable by imprisonment exceeding one year, prohibits
possession, but not ownership, of a firearm. 18 U.S.C. § 922(g)(1) (statute declared
unconstitutional as applied in Binderup v. Attorney General United States, 836 F.3d 336
(3d Cir. 2016), cert. denied, 137 S. Ct. 2323 (2017). The fact that other states and the
United States Congress only prohibit possession suggests that ownership is distinct from
possession.
In United States v. Casterline, 103 F.3d 76 (9th Cir. 1996), the circuit court of
appeals noted that 18 U.S.C. § 922(g)(1) does not ban ownership and ownership does not
equate with possession. The court suggested that one could transfer possession of a
firearm, such as to a pawnshop, during the period of a felon’s disability without violating
the law when the statute does not prohibit ownership of the firearm.
In Jackson v. State, 1 Kan. App. 2d 744, 573 P.2d 637 (1977), the Kansas
intermediate appellate court denied the accused’s application for a new trial on charges
that he unlawfully possessed a firearm. The accused presented purportedly newly
discovered evidence that someone else owned the weapon. The court reasoned that, even
assuming such evidence to be true, ownership of the gun lacks relevance because the
accused was convicted only of possession.
12
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
Because I conclude that unlawful possession of a firearm is in part an alternative
means crime, I must now review whether sufficient evidence supports each alternate
means. In alternative means cases, when substantial evidence supports all alternative
means submitted to the jury, unanimity as to the means is not required. State v.
Armstrong, 188 Wash. 2d 333, 340, 394 P.3d 373 (2017); State v. Woodlyn, 188 Wash. 2d 157,
164, 392 P.3d 1062 (2017). Conversely, if insufficient evidence supports any of the
means, the constitution demands a particularized expression of juror unanimity. State v.
Woodlyn, 188 Wash. 2d at 165. When insufficient evidence supports one of the alternative
means charged and the jury does not specify that it unanimously agreed on the other
alternative, we face the danger that the jury rested its verdict on an invalid ground. State
v. Armstrong, 188 Wash. 2d at 343-44.
I note two anomalies regarding the alternative means crime rule of sufficient or
substantial evidence. First, the constitution demands that one be convicted of a crime
beyond a reasonable doubt. In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed.
2d 368 (1970). One might conclude then that, on review before an appellate court, the
State must provide overwhelming evidence or proof beyond a reasonable doubt of guilt
for each alternative means so that we do not face a compromise of jury unanimity. No
decision forwards such a proposition. Second, one might reason that, if the State
provides overwhelming evidence of guilt on one of the alternative means, harmless error
saves the verdict from reversal. After all, a unanimous jury could convict the accused of
13
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
the crime if the evidence supports only one alternative means beyond a reasonable doubt.
No decision supports this proposition.
I agree that the State provided sufficient evidence that Jose Barboza-Cortes
possessed and controlled the Stevens model shotgun. I conclude, however, that the State
provided insufficient or insubstantial evidence of ownership of the shotgun. Some of the
reasons previously listed for why second degree unlawful possession of a firearm
constitutes an alternative means crime supports a conclusion that the State provided
insufficient evidence to convict of ownership of the shotgun. Possession and control
comprise different concepts from ownership.
The State contends that substantial circumstantial evidence supports a finding that
Jose Barboza-Cortes owned the embedded shotgun. The State emphasizes that Barboza-
Cortes must have owned all possessions in his basement apartment, particularly any
personal property between mattresses. But common experience does not link possession
with ownership. The law also declares that possession is not ownership. Hartford
Accident & Indemnity Co. v. Goossen, 84 Cal. App. 3d 649, 653, 148 Cal. Rptr. 784
(1978); Cook v. Revenue Division of Michigan Department of Treasury, 396 Mich. 176,
240 N.W.2d 247, 251 (1976); Godwin v. McGehee, 19 Ala. 468, 471 (1851).
The State highlights that law enforcement found the firearm between two
mattresses and that Barboza-Cortes was the only tenant in the basement. Nevertheless,
even if Barboza-Cortes inserted the gun between the mattresses, it does not follow that he
14
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
owned the firearm. He could have hidden the firearm for a friend. The State underscores
that Jose Barboza-Cortes conceded that he owned the methamphetamine found in the
apartment. If anything, this emphasis harms the State’s position, since Barboza-Cortes
never conceded he owned the firearm.
In the civil context of the family car doctrine, the Washington Supreme Court
adopted the following factors in determining who owns an automobile: (a) who paid for
the car, (b) who had the right to control the use of the car, (c) the intent of the parties who
bought and sold the car, (d) the intent of the parents and the child relative to ownership,
(e) to whom did the seller make delivery of the car, (f) who exercised property rights in
the car from the date of its purchase to the date of the accident, and (g) any other
circumstantial evidence that may tend to establish the fact of ownership. Coffman v.
McFadden, 68 Wash. 2d 954, 958-59, 416 P.2d 99 (1966). In Jose Barboza-Cortes’
prosecution, the State presented no testimony concerning the registration of the firearm,
the purchaser of the shotgun, who had the right to control the gun, who placed the gun
between the mattresses, how long the firearm had been present in the mattresses, who
handled the gun, or who used the gun. The State never even argued to the jury that Jose
Barboza-Cortes owned the shotgun.
I would vacate Jose Barboza-Cortes’ conviction of unlawful possession of a
firearm and remand for a new trial on the charge.
15
No. 34356-1-III
State v. Barboza-Cortes (concur in part/dissent in part)
SECOND DEGREE IDENTITY THEFT
I agree with the lead author’s analysis with regard to second degree identity theft
being an alternative means crime when distinguishing between financial information and
means of identification. I add the following comments.
A statute divided into subparts is more likely to designate alternative means. State
v. Butler, 194 Wash. App. at 528 (2016); State v. Lindsey, 177 Wash. App. at 241 (2013).
Similarly a statute that defines terms separately is more likely to create an alternative
means crime. The separate definitions define distinct acts or, in our appeal, distinct
subject matters to which a criminal act adheres. Some cases hold that definitional
statutes do not create additional alternative means for a crime. State v. Smith, 159 Wash. 2d
778, 785, 154 P.3d 873 (2007); State v. Linehan, 147 Wash. 2d 638, 646, 56 P.3d 542
(2002). Nevertheless, in each case the statute gave definition to one word not separate
definitions for distinct words or phrases.
The State argues that, since it presented no evidence of Jose Barboza-Cortes’ use
of Dava Construction’s financial information, the jury must have based its verdict only on
the alternative means of obtaining, possessing, or using the construction company’s
means of identification. The State even conceded during oral argument that no evidence
supported the taking of financial information of Dava Construction. Therefore, the State
asks us to uphold the jury verdict. The State cites no case supporting its argument. The
State does not contend the jury was bound by its concession. The State’s contention
16
No. 34356-1-111
State v. Barboza-Cortes (concur in part/dissent in part)
would probably nullify the requirement of jury unanimity in an alternative means crime,
since the State can always argue, in prosecutions when it failed to provide insufficient
evidence ·of one of the alternate methods, that the jury must have based its decision on the
means on which it presented substantial evidence.
Fearing, J.
17