State of Washington v. Dennis Wayne Jussila , 197 Wash. App. 908 ( 2017 )

FILED
FEBRUARY 28, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32684-5-111
Respondent, )
)
V. )
)
DENNIS WAYNE JUSSILA, ) PUBLISHED OPINION
)
Appellant. )
FEARING, CJ. -Dennis Jussila appeals his convictions for burglary and theft on
the ground of insufficiency of evidence. His appeal requires us to address the continued
validity of State v. Hickman, 135 Wash. 2d 97, 954 P.2d 900 (1998) and the law of the case
doctrine in the context of jury instructions that add elements to a crime beyond the
elements contained in a statute. We conclude that, if State v. Hickman is to be overruled,
the Washington Supreme Court, not the Court of Appeals, should readdress the decision's
validity. We reverse Dennis Wayne Jussila's theft and possession of firearm convictions
because the jury instructions listed the serial numbers of the firearms and the State
provided no proof of the numbers. We reverse a conviction of theft in the second degree
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because of insufficient evidence of the value of stolen property. We affirm other
convictions.
FACTS
This prosecution for burglary, theft of firearms, and unlawful possession of
firearms arises from the burglary of Joseph Craven's Goldendale home. Appellant
Dennis Wayne Jussila is the twenty-one-year-old son of the neighbor of Craven.
Between 11 :00 a.m. and 3:00 p.m., on March 21, 2014, someone entered Joseph
Craven's residence, while Craven drove to and from Rufus, Oregon. Craven forgot to
lock his home's door. The thief purloined various items, including a safe, gold watch,
knife sharpener, seven guns, a laptop computer, and a bag of coins.
PROCEDURE
In an amended information, the State of Washington charged Dennis Jussila with
seven counts of theft of a firearm, seven counts of unlawful possession of a firearm,
burglary in the first degree, theft in the second degree, and manufacturing marijuana. All
charges, except the marijuana manufacturing charge, stem from the March 21, 2014,
entry of Joseph Craven's abode. The amended information based the second degree theft
charge on Jussila's alleged taking of a laptop computer and a bag of coins exceeding
$750 in value.
At trial, the State presented limited evidence regarding the stolen firearms. The
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State introduced as exhibits five photographs of the weapons. Those photos do not
picture the make, model, or serial number of any of the weapons. Joseph Craven testified
that those pictures depicted his rifles. Craven also testified to his missing personal
property:
Q . . . But I want to ask you about-you came home-
A Uh-huh.
Q- that time, say, two, three o'clock that afternoon-
A Yes. That's correct.
Q Noticed some items missing.
A Right.
Q Were rifles missing?
A There were seven rifles in cases in the bedroom, the back
bedroom. And I-Yeah. I noticed those missing right away.
Q Okay.
A Also the .45 that was in the desk drawer.
Q Okay.
And I want to show you-I want to show you what's been marked
State's Exhibit No. 11.
A Yes. That's a Browning-
Q I don't want you to identify it-
A -that is my shotgun, that's correct.
Also above is a 30/30 rifle that was in the case with some
ammunition.
Q You do recognize what's in that-
A I do, yes, sir-
Q All right. And does that photo accurately depict how your-the
item in that exhibit looked on March the 21st.
A Correct.
Q All right.
I want to show you Exhibit-State's Exhibit No. 7. And again,
without identifying it, just tell me, do you recognize what's in State's
Exhibit No. 7.
A Yes, I do.
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Q Okay. And does that accurately depict how that item looked on
March 21st this year.
A That's correct.
Q State's Exhibit No. 8. Recognize it?
A Yes, I do.
Q Okay. And again, does that accurately depict how State's Exhibit
8 looked-on March the 21st.
A That's correct.
Q All right. State's Exhibit 9, same question. Do you recognize it
and does it accurately depict how that item looked on March the 21st.
A That's correct.
Q And finally, State's Exhibit No. 10.
A Yes, that's correct.
Q All right.
Now, I don't know if you were present or not when these
photographs were taken but were you present when these photographs were
taken?
A No, sir. These items-Not when the photos were taken. These
items were later found next door and returned to me. And then-the-we
had serial numbers on all of those rifles, and the police took them as
evidence and then later returned-.
Q Looking through those, those exhibits that I just presented to you,
those are your rifles?
A That's correct.
Q Okay. And on March 21st are those the items, those rifles, that
were missing from your home when you got home on March 21st?
A That's correct.
Q All right. Did you ever give anybody permission to have those
weapons in their possession.
A No, sir.
Q ... Now, those-those exhibits there are not the totality of the
weapons or firearms that were missing from your house on the 21st, are
they?
A That's correct.
Q What else was missing on the 21st?
A I had a .45 automatic pistol that was loaded and in the desk. Also
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a .357 magnum that was under some clothes in the chest of drawers.
Report of Proceedings at 75-79.
During trial, Joseph Craven testified to a missing gold watch and knife sharpener.
He did not know the value of the watch. He averred the value of the sharpener to be $50.
Finally, Craven testified to a missing satchel of coins worth $250 to $300.
At the close of evidence, the trial court, in jury instructions 24 through 30, listed
the elements the State needed to prove for counts III through IX, the seven counts of
firearm theft. One of the elements for each of the crimes included language identifying
the stolen gun's make, model and serial number. Jury instruction 24 read:
To convict the defendant of the crime of theft of a firearm as charged
in Count III, each of the following elements of the crime must be proved
beyond a reasonable doubt:
( 1) That on or about March 21, 2014, the defendant wrongfully
obtained a firearm, a .357 caliber revolver, serial number 8002032,
belonging to another;
(2) That the defendant intended to deprive the other person of the
firearm; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.
Clerk's Papers (CP) at 49. Jury instructions 25 to 30 respectively changed the second
paragraph, or the paragraph identified with 1 in parenthesis, of jury instruction 24 to the
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following:
That on or about March 21, 2014, the defendant wrongfully obtained
a firearm, a Ruger .223 caliber rifle, serial number 195-37396, belonging to
another.
CP at 50.
That on or about March 21, 2014, the defendant wrongfully obtained
a firearm, a Marlin 30-30 lever action rifle, serial number 11015584,
belonging to another.
CP at 51.
That on or about March 21, 2014, the defendant wrongfully obtained
a firearm, a Browning 12-guage shotgun, serial number 4509S, belonging
to another.
CP at 52.
That on or about March 21, 2014, the defendant wrongfully obtained
a firearm, a Ruger 10/22 semi-automatic .22 caliber carbine rifle, serial
number 232-2943, belonging to another.
CP at 53.
That on or about March 21, 2014, the defendant wrongfully obtained
a firearm, a Colt semi-automatic handgun, serial number DR09167,
belonging to another.
CP at 54.
That on or about March 21, 2014, the defendant wrongfully obtained
a firearm, a Ruger lever-action .17 caliber rifle, serial number 620-55751,
belonging to another.
CP at 55.
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The trial court, in jury instructions 32 through 38, similarly listed the elements the
State needed to prove for counts X through XVI, the seven counts of unlawful possession
of a firearm in the first degree. Again, one of the elements of the crime listed the gun's
make, model and serial number. Jury instruction 32 read:
To convict the defendant of the crime of unlawful possession of a
firearm in the first degree as charged in Count X, each of the following
elements of the crime must be proved beyond a reasonable doubt:
( 1) That on or about March 21, 2014, the defendant knowingly had a
firearm, a .357 caliber revolver, serial number 8002032, in his possession
or control;
(2) That the defendant had previously been convicted of a serious
offense; and
(3) That the possession of the firearm occurred in the State of
Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.
CP at 57. Jury instructions 33 to 38 respectively changed the second paragraph, or the
paragraph with 1 in parenthesis, of jury instruction 32 to the following:
That on or about March 21, 2014, the defendant knowingly had a
firearm, a Ruger .223 caliber rifle, serial number 195-37396, in his
possession or control.
CP at 58.
That on or about March 21, 2014, the defendant knowingly had a
firearm, a Marlin 30-30 lever action rifle, serial number 11015584, in his
possession or control.
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I
{
l.i
.f
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I'
1,;
l
i
f CP at 59.
II That on or about March 21, 2014, the defendant knowingly had a
I firearm, a Browning 12-guage shotgun, serial number 4509S, in his
possession or control.
I
I
i
CP at 60.
I
That on or about March 21, 2014, the defendant knowingly had a
firearm, a Ruger I 0/22 semi-automatic .22 caliber carbine rifle, in his
possession or control.
CP at 61.
That on or about March 21, 2014, the defendant knowingly had a
firearm, a Colt semi-automatic handgun, serial number DR09I67, in his
possession or control.
CP at 62.
That on or about March 21, 2014, the defendant knowingly had a
firearm, a Ruger lever-action .17 caliber rifle, serial number 620-55751, in
his possession or control.
CP at 63.
The jury returned a verdict finding Dennis Jussila guilty of burglary in the first
degree, theft in the second degree, five counts of theft of a firearm, five counts of
unlawful possession of a firearm in the first degree, and manufacture of marijuana. The
jury found Jussila not guilty of two counts of unlawful possession of a firearm. The jury
hung on two counts of theft of a firearm.
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The statutory minimum sentence for these convictions, with Dennis Jussila's
offender score, was 620 months. The trial court, nonetheless, ruled that an extraordinary
sentence downward was appropriate because all thefts of a firearm and all unlawful
possessions of a firearm were the same course of conduct. The trial court imposed 164
months in prison. The trial court based the 164-month sentence on the following
calculation: 75 months total for all five theft of a firearm convictions to run consecutive
to 89 months total for all five unlawful possession of a firearm convictions, with 116
months on the burglary in the first degree, 29 months on the theft second, and 24 months
on the marijuana manufacturing convictions all running concurrent to the firearm
charges.
The trial court imposed a $500 victim assessment fee, a $200 criminal filing fee,
reimbursement of $1,500 in court appointed attorney fees, and $1,420 in restitution. The
trial court did not inquire into Dennis Jussila's present or future ability to pay any legal
financial obligations.
LAW AND ANALYSIS
Insufficiency of Evidence
Theft and Unlawful Possession of Firearms
Dennis Wayne Jussila contends that, by including the make, model, and serial
number of the firearms in the "to convict" instructions for the theft and unlawful
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possession charges, the State added those facts as elements of the crimes and failed to
prove them at trial. The State responds that the jury instructions did not add a description
of the guns as an essential element. Instead, according to the State, it included
information in the jury instructions that described the firearms so as to distinguish one
firearm from all others and one criminal count from all others.
The State also argues that, under a recent United States Supreme Court decision,
Musacchio v. United States, 577 U.S._, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016) and a
recent decision of Division One of this court, State v. Tyler, 195 Wash. App. 385, 382 P.3d
699 (2016), the law of the case doctrine no longer applies to jury instructions that add an
element to a crime. We agree with Dennis Jussila and reverse all theft of a firearm and
unlawful possession of a firearm convictions. In so agreeing, we depart from our
companion division's ruling in State v. Tyler.
Evidence is sufficient if a rational trier of fact could find each element of the crime
beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216, 221-22, 616 P.2d 628 (1980).
Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.
App. 824, 826, 727 P .2d 988 ( 1986). This court draws all reasonable inferences in favor
of the State. State v. Partin, 88 Wash. 2d 899, 906-07, 567 P.2d 1136 (1977).
The make, model, and serial numbers of a gun are not elements of theft of a
firearm, under RCW 9A.56.300, or unlawful possession of a firearm, under RCW
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9.41.040. The trial court need not have placed these identifying features of Joseph
Craven's guns in any of the jury instructions. Inserting the description of the firearms in
the instructions made sense, however. The State charged Dennis Jussila with seven
counts of theft of a firearm and seven counts of unlawful possession of a firearm and
failing to distinguish one gun from another gun in the respective jury instructions could
have become confusing to the jury. We must decide whether the inclusion of the
identifying information of a gun imposed an obligation on the State to prove the accuracy
of the information beyond a reasonable doubt.
Under the law of the case doctrine, jury instructions not objected to become the
law of the case. State v. Hickman, 135 Wash. 2d at 102 (1998). A defendant may assign
error to the sufficiency of the evidence of an element added to the crime in the
instruction. State v. Hickman, 135 Wash. 2d at 102. When the sufficiency of the evidence
is challenged, the reviewing court must consider the sufficiency in light of the
instructions. State v. Munoz-Rivera, 190 Wash. App. 870, 882, 361 P.3d 182 (2015). Ifthe
reviewing court finds insufficient evidence to prove the added element, reversal is
required. State v. Hickman, 135 Wash. 2d at 103.
Sta'te v. Hickman, 135 Wash. 2d 97 (1998) remains Washington's principal decision
on the question of elements added, beyond statutory elements of a crime, in jury
instructions. The State added the county in which the crime occurred as an element to the
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"to convict" instruction. The instruction read:
To convict the defendant of the crime of Insurance Fraud, each of
the following elements of the crime must be proved beyond a reasonable
doubt:
( 1) That the defendant, James Hickman, on or about the 1st day of
July, 1992, to the 31st of August, 1992, did knowingly present or cause to
be presented a false or fraudulent claim or any proof in support of such a
claim, for the payment of a loss under a contract of insurance; and
(2) That the false or fraudulent claim was made in the excess of One
Thousand Five Hundred Dollars ($1,500); and
(3) That the act occurred in Snohomish County, Washington.
State v. Hickman, 135 Wash. 2d at 101 (emphasis added) (boldface omitted). The State
presented no evidence regarding the locus of the crime.
In State v. Hickman, the Washington Supreme Court held that, by adding the
county of the crime in the jury instruction, the State bore the burden of proving the
offense's location beyond a reasonable doubt. The court reasoned that the law of the case
doctrine applied. The court wrote:
[W]e note the law of the case doctrine benefits the system by
encouraging trial counsel to review all jury instructions to ensure their
propriety before the instructions are given to the jury. Moreover the ·
doctrine is well established by multiple precedent and is encapsulated in
criminal rule CrR 6.15( c), which requires all objections to jury instructions
be made before the instructions are given to the jury.
Hickman, 135 Wash. 2d at 105. The court reversed Hickman's conviction due to the lack of
evidence of the crime's county.
In this appeal, the State seeks to distinguish State v. Hickman and argues that
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Hickman has been overruled. We address each contention in such order.
The State attempts to distinguish this appeal from State v. Hickman by arguing that
the make, model, and serial number of Joseph Craven' s firearms were descriptions and
not elements of the charged crimes. The State observes that the descriptions were not
separated into their own numbered elements or paragraphs within the respective jury
instructions, but rather inserted directly after the word "firearm" to conveniently
distinguish for the jury which firearm was referenced for each instruction. The State
emphasizes that the location of the crime was its own separate element in the Hickman
jury instruction.
A decision with an outcome opposite of State v. Hickman is this court's recent
decision in State v. Munoz-Rivera, 190 Wash. App. 870 (2015). Adrian Munoz-Rivera
lived with Maria Tamayo and nine-year-old K.T. The State charged Munoz-Rivera with,
among other crimes, assault in the second degree against K.T. and felony harassment
against K.T. At trial, K.T. testified and stated her full name and age. She also declared
that she recently had a birthday. Nevertheless, the State presented no evidence of her
date of birth. The "to convict" jury instruction for second degree assault read, in part:
To convict the defendant of the crime of Assault in the Second
Degree, as charged in Count I, each of the following two elements of the
crime must be proved beyond a reasonable doubt:
(1) That on or about November 3, 2013, the defendant assaulted K. T.
(DOB: 11/27/03) with a deadly weapon;
(2) That this act occurred in the State of Washington.
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State v. Munoz-Rivera, 190 Wash. App. at 878-79 (2015) (emphasis added). The jury
instruction for felony harassment also identified K.T. as the victim and placed her date of
birth in parenthesis after her initials. A jury found Munoz-Rivera guilty of both crimes.
On appeal, Adrian Munoz-Rivera argued that, under the law of the case doctrine,
the State needed to prove K.T.'s date of birth beyond a reasonable doubt. The State
contended that use of the date of birth correlated with its attempt to protect K.T.'s privacy
by using her initials. We rejected Munoz-Rivera's argument. This court reasoned:
By placing K.T. 's date of birth in parentheticals, the State did not
add her date of birth as an additional and otherwise unnecessary element.
Rather, the parenthetical date of birth information was given to identify
K.T. and thus distinguish her from any other person whose name might
have been mentioned during the trial. To hold otherwise would place form
over substance and manufacture an ambiguity on appeal that certainly never
entered the jurors' minds.
Munoz-Rivera, 190 Wash. App. at 883. The State provided some evidence tending to
support the birthdate such as the child's age and a recent birthday.
We must decide whether to follow State v. Hickman or State v. Munoz-Rivera.
The resolution of this question includes a determination of whether we consider the
identifying information regarding Joseph Craven's firearms as form rather than
substance, or as merely an incidental description and not an element.
We consider use of parenthesis in State v. Munoz-Rivera dispositive. This court
emphasized that the jury instruction placed the date of birth in parenthesis. Employment
t
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of parenthesis informed the jury that the information in parenthesis is different, if not
insignificant, from other language explaining the elements of the crimes. The English
Oxford Dictionary defines "parenthesis" as "[a] word or phrase inserted as an explanation
or afterthought into a passage which is grammatically complete without it, in writing
usually marked off by brackets, dashes, or commas." OXFORD DICTIONARY ONLINE.
https://en.oxforddictionaries.com/definition/parenthesis (last visited Feb. 15, 2017).
Thus, the jury instruction was complete without the afterthought of the date of birth.
No brackets or parentheses surrounded the make, model and serial number of the
guns mentioned in Dennis Jussila's jury instructions. Nothing in the language of the jury
instructions infonned the jury that it was to treat the identifying features of the firearms
any different from other factual propositions that the jury instructions instructed them the
State must prove beyond a reasonable doubt. A literal reading of the jury instructions
required proof beyond a reasonable doubt of the make, model and serial number of each
gun. The instructions mentioned the make, model and serial number as being an element
of the crimes.
In the case on appeal, the State presented scant evidence to distinguish one gun
from another. The pictures of the firearms are confusing because of redundancy and lack
of identifying characteristics for the guns. One cannot tell how many of the seven
firearms are pictured in the six photographs. The State presented little testimony
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identifying the stolen guns. The State's counsel often asked the victim to refrain from
identifying the guns.
We find no case that addresses whether the State must prove beyond a reasonable
doubt the make, model or serial number of firearms if jury instructions contain such data.
We find cases from other jurisdictions, wherein to convict jury instructions also listed
such information with regard to stolen property as an element of the crime. See United
States v. Montoya-Gaxiola, 796 F.3d 1118, 1123-24 (9th Cir. 2015); State v. Caldwell,
140 Idaho 740, 101 P.3d 233, 234 (2004).
The State also argues that, because the jury instructions did not place the make,
model, and serial numbers in separate paragraphs or under separate numbered elements,
the identifying information did not become an element of the crimes. We disagree. No
Washington court has adopted an element-by-numbering theory for determining the law
of the case. Ifwe agreed, the State could prevent the law of the case doctrine from ever
applying by failing to number paragraphs in a to convict jury instruction.
We have determined that State v. Hickman holds relevance to Dennis Jussila's
appeal. We must now decide whether State v. Hickman remains good law.
The State cites to Musacchio v. United States, 577 U.S. , 136 S. Ct. 709 (2016)
and State v. Tyler, 195 Wn. App at 385 (2016) for the proposition that the law of the case
doctrine no longer applies to elements added to the law in a jury instruction. In
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Musacchio, the United States Supreme Court held that when a jury instruction lists all the
elements of the charged crime but incorrectly adds one element, a sufficiency challenge
should be assessed against the elements of the charged crime, not against the erroneously
heightened command in the jury instruction. The Court rejected the application of the
law of the case doctrine in circumstances when the reviewing court reviews whether the
jury heard evidence sufficient to convict the defendant of a crime. The Court's holding
conflicts with the Washington Supreme Court's enduring jurisprudence as articulated in
State v. Hickman.
Unclear is whether the United States Supreme Court based its Musacchio decision
on a reading of the United States Constitution's due process clause, on an application of
federal rules of appellate review, or both. Assuming the Supreme Court grounded its
decision on the due process clause, the United States Supreme Court sets a floor for
constitutional requirements, not a ceiling. Washington can provide more protection
under its constitution.
Our dissenting brother identifies the question on appeal as what does due process
require? After Musacchio v. United States, the United States Constitution's Fifth
Amendment and Fourteenth Amendment no longer require appellate review of all of the
language in a jury instruction, when the appellant questions sufficiency of evidence to
convict him or her. But contrary to the dissent's assumption, Musacchio does not
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preclude states from interpreting their respective due process clauses from requiring
consideration of all language in the jury instruction when assessing the sufficiency of
evidence. A state may interpret broader a state's analog constitutional provision.
PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d
741 (1980); see Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570
(1975); State v. Gunwall, 106 Wash. 2d 54, 59, 720 P.2d 808 (1986).
More importantly, Musacchio does not preclude a state from applying the law of
the case doctrine to jury instructions regardless of any constitutional considerations. The
dissent' s analysis ends at a false finishing line and fails to recognize the existence of law
beyond the United States' Constitution's due process clauses. State v. Hickman did not
ground its decision on the United States' due process clause. Despite being the highest
court in the land, the United States Supreme Court has no authority in limiting a state's
law of the case doctrine. Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S. Ct. 3469, 77
L. Ed. 2d 1201 (1983); State v. Chrisman, 100 Wn.2d 814,816,676 P.2d 419 (1984).
The State next relies on Division One of this court's recent case, State v. Tyler,
195 Wash. App. 385 (2016), wherein this court determined that the law of the case doctrine
derives from the due process clause of the Fourteenth Amendment. In so deciding, the
court determined that Musacchio v. United States, 577 U.S._, 136 S. Ct. 709, 193 L.
Ed. 2d 639 (2016) abrogated the lawofthe case doctrine and a century of precedent
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established by the Washington Supreme Court. Our sister division wrote:
In light of Musacchio, then, Washington courts have previously
misinterpreted the scope of the Fourteenth Amendment's due process
protections pertaining to evidentiary sufficiency review. Our courts have
erroneously reviewed the State's proof for evidentiary sufficiency measured
against additional elements or means set out in a to-convict instruction
when those additional elements or means were not provided for in the
charged crime.
Musacchio makes it clear that a reviewing court is to disregard
"additional elements" ... set out in a to-convict instruction and, instead,
must evaluate the sufficiency of the evidence based on the essential
elements of the charged crime as enacted by the legislature .
. . . The guarantee of the Fourteenth Amendment applies only to
actual crimes, duly enacted. It does not apply to crimes created by mistake
in an erroneous jury instruction.
State v. Tyler, 195 Wash. App. at 399-400 (footnote omitted).
The Tyler court considered the standard of proof guaranteed by the Fourteenth
Amendment's due process clause to provide the sole basis on which Washington courts
review criminal convictions for evidentiary sufficiency. We agree with this observation,
but the observation has limited application to the law of the case doctrine. The
observation is accurate as to the due process clause requiring that elements of a crime
must be established beyond a reasonable doubt and that, on review, sufficient evidence
I
must show proof beyond a reasonable doubt. Nevertheless, the observation does not
directly address whether the State must prove beyond a reasonable doubt elements of a
crime as outlined in a jury instruction as opposed to encapsulated in a statute.
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We believe that the Tyler court misunderstood the basis for the law of the case
doctrine. Under the Washington Constitution and Washington criminal rules, a jury
applies only the law provided by the court. We hope that the law provided by the court
coincides with the law in Washington statutes and decisions, but sometimes the
instructions contain error. Under court rules and decisional law, parties must register
exceptions or objections to mistaken jury instructions before the end of trial. These court
rules, not the Fourteenth Amendment, form the basis for Washington's law of the case
doctrine.
CrR 6.15( c), a current criminal rule, includes the following language regarding
objecting to jury instructions:
Before instructing the jury, the court shall supply counsel with
copies of the proposed numbered instructions, verdict and special funding
forms. The court shall afford to counsel an opportunity in the absence of
the jury to object to the giving of any instructions and the refusal to give a
requested instruction or submission of a verdict or special finding form.
The party objecting shall state the reasons for the objection, specifying the
number, paragraph, and particular part of the instruction to be given or
refused. The c.ourt shall provide counsel for each party with a copy of the
instructions in their final form.
The rule implies that a party is bound by the language of the jury instruction unless it
registers a timely objection.
As early as 1896, the Washington Supreme Court recognized the law of the case
doctrine as applied to jury instructions. In Pepperall v. City Park Transit Co., 15 Wash.
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176, 181, 45 P. 743 (1896), overruled on other grounds by Thornton v. Dow, 60 Wash.
622, 111 P. 899 (1910), abrogated by Davis v. Baugh Indus. Contractors, Inc., 159
Wash. 2d 413, 150 P.3d 545 (2007), the court ruled that a verdict of a jury, in disobedience
to an instruction of the court that was incorrect in a point oflaw, is a verdict "against
law." Pepperall cited to the Washington Constitution to support the law of the case
doctrine. The pertinent section of the Washington Constitution reads: "Judges shall not
charge juries with respect to matters of fact, nor comment thereon, but shall declare the
law." WASH. CONST. art. IV§ 16 (emphasis added).
In 1910, the Washington Supreme Court purported to overrule itself holding "in
conformity with the general principles announced by this court that, where we find that
the verdict of the jury is sustained by the law, the verdict cures the erroneous instruction."
Thornton v. Dow, 60 Wash. at 629. Nevertheless, a month later, the Supreme Court said
"[t]hese instructions were not excepted to and have become the law of the case, so that
we are not called upon to determine whether any other or higher duty devolved upon the
respondent." Sexsmith v. Brown, 61 Wash. 164, 166, 112 P. 337 (1910). By 1917,
according to the Supreme Court, the law of the case doctrine was "so well established
that the assembling of the cases is unnecessary." Peters v. Union Gap Irrigation District,
98 Wash. 412,413, 167 P. 1085 (1917).
In 1959 the Washington Supreme Court explained:
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In January 1927, the court, under the rule-making power, abrogated
the statute which permitted exceptions to instructions up to the time of
argument on a motion for a new trial, and required all exceptions to
instructions to be taken before the cause was submitted to the jury. The
purpose was to enable the court to correct any mistake in the instructions in
time to prevent the unnecessary expense of a second trial. It is now
familiar law that, unless timely exceptions are taken, the instructions
become the law of the case. The prime objective of all procedural law is
the just, speedy, economical and final determination of litigation.
Agranoffv. Morton, 54 Wash. 2d 341, 345, 340 P.2d 811 (1959) (footnotes omitted). By the
1960s the law of the case doctrine was well accepted throughout the state. See, e.g., State
v. Hames, 74 Wn.2d 721,725,446 P.2d 344 (1968); State v. Reid, 74 Wn.2d 250,252,
444 P.2d 155 (1968); State v. Queen, 73 Wn.2d 706,707,440 P.2d 461 (1968); State v.
Leohner, 69 Wash. 2d 131, 134, 417 P .2d 368 (1966); State v. Holbrook, 66 Wash. 2d 278,
281,401 P.2d 971 (1965); State v. Sayward, 63 Wn.2d 485,494,387 P.2d 746 (1963).
The Washington Supreme Court continued to apply the law of the case doctrine in
numerous cases over the ensuing decades. State v. France, 180 Wash. 2d 809, 814, 329
P.3d 864 (2014); State v. Salas, 127 Wn.2d 173,182,897 P.2d 1246 (1995); State v. Ng,
110 Wash. 2d 32, 39, 750 P.2d 632 (1988).
In 2005, the Washington Supreme Court discussed the history and application of
the law of the case doctrine by observing:
Law of the case is a doctrine that derives from both RAP 2.5(c)(2)
and common law. This multifaceted doctrine means different things in
different circumstances and is often confused with other closely related
doctrines, including collateral estoppel, res judicata, and stare decisis.
I
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In its most common form, the law of the case doctrine stands for the
proposition that once there is an appellate holding enunciating a principle
of law, that holding will be followed in subsequent stages of the same
litigation. In addition, law of the case also refers to the principle that jury
instructions that are not objected to are treated as the properly applicable
law for purposes of appeal. In all of its various formulations the doctrine
seeks to promote finality and efficiency in the judicial process.
Roberson v. Perez, 156 Wash. 2d 33, 41, 123 P.3d 844 (2005) (citations and
footnotes omitted).
This abridged jaunt through history teaches that the law of the case doctrine does
not derive from a constitutional due process analysis, but from common law and our
court rules. In State v. Hickman, 135 Wash. 2d 97 (1998), the Supreme Court never
suggested that imposing the burden of proving elements added in a jury instruction was a
constitutional rule or a rule based on due process. Because the doctrine derives solely
from Washington law and it does not fail constitutional muster, the United States .
Supreme Court's holding in Musacchio does not abrogate our application of the law of
the case doctrine in Washington criminal appeals.
We particularly refuse to abandon State v. Hickman and its application of the law
of the case doctrine to jury instructions because such abandonment is the prerogative of
the state Supreme Court, not the Court of Appeals. This appellate court remains bound
by a decision of the Washington Supreme Court. State v. Hairston, 133 Wash. 2d 534, 539,
946 P.2d 397 (1997); State v. Gore, 101 Wash. 2d 481, 486-87, 681 P.2d 227 (1984). We
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must follow Supreme Court precedence, regardless of any personal disagreement with its
premise or correctness. 1000 Virginia Ltd. Partnership v. Vertecs Corp., 158 Wash. 2d 566,
578, 146 PJd 423 (2006); State v. Gore, 101 Wash. 2d at 487. When the Court of Appeals
fails to follow directly controlling authority by this court, it errs. 1000 Virginia Ltd.
Partnership v. Vertecs Corp., 158 Wash. 2d at 578 (2006); State v. Gore, 101 Wash. 2d at 487.
The dissent may suggest that Dennis Jussila may not raise the sufficiency of
evidence on appeal because he failed to challenge the sufficiency of evidence before the
trial court. The law says otherwise. Under RAP 2.5(a)(2), an appellant may raise for the
first time on appeal a failure to establish facts on which relief may be granted. Based on
this rule, a criminal defendant may challenge the sufficiency of evidence used to convict
him for the first time on appeal. State v. Colquitt, 133 Wash. App. 789, 795-96, 137 PJd
892 (2006). The State does not contend that Dennis Jussila waived his right to argue the
insufficiency of evidence on appeal.
If the reviewing court finds insufficient evidence to prove an added element,
reversal is required. Retrial following reversal for insufficient evidence is unequivocally
prohibited and dismissal is the remedy. State v. Hickman, 135 Wash. 2d at 103. Because
the State presented no evidence of the serial numbers and extremely limited evidence of
make and model of the firearms, insufficient evidence supported Dennis Jussila's firearm
convictions. Therefore, we reverse the five counts of theft of a firearm and five counts of
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No. 32684-5-III
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unlawful possession of a firearm in the first degree on which the jury convicted Jussila.
Insufficiency of Evidence
Burglary in the First Degree
Dennis Jussila also contends that the State presented insufficient evidence the guns
were "firearms" under the definition ofRCW 9.41.010(9). He emphasizes that the
limited testimony provided no detailed descriptions from which a factfinder could
conclude beyond a reasonable doubt that guns depicted in the exhibits were real guns.
Since we have already vacated Jussila's convictions for theft of and unlawful possession
of a firearm, this argument only relates to Jussila's conviction for burglary in the first
degree. The State responds that the evidence was sufficient to prove that the pictured
guns were real and operational, and, therefore, this court should not impinge on the jury's
verdict. We agree with the State.
To repeat, evidence is sufficient if a rational trier of fact could find each element
of the crime beyond a reasonable doubt. State v. Green, 94 Wash. 2d at 221-22 (1980).
Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.
App. at 826 (1986). This court draws all reasonable inferences in favor of the State.
State v. Partin, 88 Wash. 2d at 906-07 (1977).
Under RCW 9A.52.020(1 ), burglary in the first degree comprises:
A person is guilty of burglary in the first degree if, with intent to
commit a crime against a person or property therein, he or she enters or
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No. 32684-5-III
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remains unlawfully in a building and if, in entering or while in the building
or in immediate flight therefrom, the actor or another participant in the
crime (a) is armed with a deadly weapon, or (b) assaults any person.
Deadly weapon includes firearms. RCW 9A.04.110(6). Under RCW 9.41.010(9), a
firearm is a
weapon or device from which a projectile or projectiles may be fired
by an explosive such as gunpowder.
A gun-like object incapable of being fired is not a "firearm." State v. Pam, 98 Wash. 2d
748, 7 54, 659 P .2d 454 ( 1983 ), overruled in part on other grounds by State v. Brown, 111
Wash. 2d 124, 761 P.2d 588 (1988), adhered to on recons., 113 Wash. 2d 520, 782 P.2d 1013
(1989). For example, a nondeadly toy gun is not a firearm per the definition. State v.
Pam, 98 Wash. 2d at 753; State v. Tongate, 93 Wn.2d 751,755,613 P.2d 121 (1980).
Nevertheless, an unloaded firearm that can be loaded or a malfunctioning firearm that can
be fixed are both firearms under the statutes. State v. Faust, 93 Wash. App. 373, 381, 967
P.2d 1284 (1998).
The jury found Dennis Jussila guilty of burglary in the first degree under the
deadly weapon prong. For this conviction to stand, the State must have proven that one
of the guns stolen from Joseph Craven's home met the statutory definition of "firearm."
We conclude the evidence is sufficient. A law enforcement officer testified that, in
Jussila's father's garage, he found soft rifle cases with rifles inside. Craven testified that
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No. 32684-5-III
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he recognized the guns and the guns had previously been inside his home. The State
presented evidence that some of the guns were loaded with ammunition. During the
testimony, witnesses repeatedly referred to the various missing items as guns, shotguns,
firearms, weapons, and rifles. No one explicitly declared that a gun was real or operable,
both those facts can be inferred from the testimony and pictures presented. No witness
hinted that any firearm was a toy.
Insufficiency of Evidence
Theft in the Second Degree
Dennis Jussila challenges his conviction for theft in the second degree on the
ground that the State presented insufficient evidence of the value of the property stolen.
We agree.
RCW 9A.56.040 creates the crime of theft in the second degree. The statute reads,
in relevant part:
(1) A person is guilty of theft in the second degree if he or she
commits theft of:
(a) Property or services which exceed(s) seven hundred fifty dollars
in value but does not exceed five thousand dollars in value, other than a
firearm as defined in RCW 9.41.010 or a motor vehicle.
A guilty verdict of second degree theft requires finding both a taking and the value of the
goods exceeding $750. State v. Kleist, 126 Wash. 2d 432, 433, 895 P.2d 398 (1995).
"Value" means "the market value of the property or services at the time and in the
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approximate area of the criminal act." RCW 9A.56.010(21). Market value is the price a
well-informed buyer would pay to a well-informed seller, when neither is obliged to enter
the transaction. State v. Kleist, 126 Wash. 2d at 435. A property owner may testify as to the
property's market value without being qualified as an expert. State v. McPhee, 156 Wn.
App. 44, 65, 230 P.3d 284 (2010). Admissible evidence of price paid is entitled to great
weight but must not be too remote in time. State v. Melrose, 2 Wash. App. 824, 831, 470
P.2d 552 (1970). Direct evidence is not necessary to prove value, and a jury may draw
reasonable inferences from the evidence, including changes in the condition of the
property that affect its value. State v. Ehrhardt, 167 Wash. App. 934, 944, 276 P.3d 332
(2012).
We must first determine what evidence to consider when determining whether the
State proved beyond a reasonable doubt that stolen property, other than firearms,
exceeded $750. Dennis Jussila argues that evidence of stolen items not listed in the
charging information cannot be used to calculate value. The information listed a laptop
computer and a bag of coins, but not a safe, car keys, knife sharpener, or gold watch. ·The
State responds that a specific list of property is not an essential element of theft in the
second degree, and, therefore, an exhaustive list was not necessary in the information.
We decline to resolve this dispute because either way we agree with Dennis Jussila that
the State did not prove value of stolen property exceeding $750.
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No. 32684-5-III
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Joseph Craven was the only witness who presented testimony as to the value of the
stolen goods. Craven testified that the burglar took a laptop computer, but Craven uttered
no opinion as to the computer's value. Craven testified that the culprit took a safe, in
which lay car keys, a $50 knife sharpener, and $250 to $300 in coins. Craven testified he
lost a valuable gold watch, but he placed no value on the watch. In sum, the jury only
heard evidence of goods taken in an amount approximating $350. We recognize that the
other stolen personal property had value, but we would speculate if we placed a value on
the other goods. Therefore, we hold the evidence insufficient to support Jussila's theft in
the second degree conviction and reverse.
Legal Financial Obligations
Dennis Jussila finally argues that the trial court erred in imposing discretionary
legal financial obligations without inquiring into his present and future ability to pay.
The State concedes that the inquiry was not done and the case should be remanded for the
superior court to conduct an inquiry as to Jussila's ability to pay. Because we are already
remanding for resentencing, we also remand for an individual determination of whether
Dennis Jussila can pay legal financial obligations.
CONCLUSIONS
We vacate Dennis Jussila's five convictions for theft of a firearm, five convictions
for unlawful possession of a firearm in the first degree, and one conviction for theft in the
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second degree. We remand for resentencing on the remaining convictions and direct the
trial court to conduct a hearing on whether Jussila has the present or future ability to pay
discretionary legal financial obligations.
Dennis Jussila moves this court to deny the State an award of appeals costs. Since
we rule in favor of Jussila on the merits, the motion is moot.
Fearing, C.J.
I CONCUR:
Pennell, J.
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32684-5-111
KoRSMO, J. (dissenting in part)- While I agree with much of the outcome of the
majority's opinion, I part company with the discussion concerning the continued validity
of State v. Hickman, 135 Wash. 2d 97, 954 P.2d 900 (1998), in light of Musacchio v. United
States, 577 U.S._, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016). The question is not
whether this court is overruling Hickman, something we have no power to do. Rather,
the question is whether we follow Musacchio, something we are required to do. The
majority sets up a false argument instead of addressing the actual question. Rather than
asking whether the law of the case doctrine still has play in a sufficiency of the evidence
review, the true question to be asked is: what does due process require? Division One
correctly answered this question in State v. Tyler, 195 Wash. App. 385, 382 P.3d 699
(2016). 1 I agree with that analysis and would affirm on this issue.
The basic principles at play in this case are quite clear. The United States
Supreme Court is the final arbiter of the meaning of the Constitution of the United States.
Arizona v. Evans, 514 U.S. l, 8-9, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995). The inferior
1
The Washington Supreme Court recently accepted review of this issue in an
earlier Division One case, State v. Johnson, No. 93453-3 (Dec. 8, 2016). Since Johnson
is unpublished and presents a less developed discussion of the issue than does Tyler, I
will refer to Tyler rather than Johnson in my discussion.
No. 32684-5-III
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federal courts, as well as state courts, may issue their own interpretation of that document
in the absence of controlling precedent. Id. However, "a State may not impose such
greater restrictions as a matter offederal constitutional law when this Court specifically
refrains from imposing them." Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L.
Ed. 2d 570 (1975).
Whether or not sufficient evidence has been produced to support a criminal
conviction presents a question of law under the due process clause of the Fourteenth
Amendment to the Constitution of the United States. Jackson v. Virginia, 443 U.S. 307,
317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Specifically, Jackson stated the test for
evidentiary sufficiency under the federal constitution to be "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt." Id. at 319.
Washington altered its test for evidentiary sufficiency to comply with Jackson in State v.
Green, 94 Wash. 2d 216, 221-22, 616 P.2d 628 (1980) (plurality); Id. at 235 (concurrence of
Utter, C.J.). 2 Washington continues to analyze this issue under the Green and Jackson
standard. E.g., State v. Farnsworth, 185 Wn.2d 768,775,374 P.3d 1152 (2016).
2
The history of the two decisions in Green and the change in evidentiary review
standards between those decisions is discussed in Tyler and need not be repeated here.
See 195 Wash. App. at 393-94.
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Against this uncontested backdrop of federal constitutional law comes
Washington's law of the case doctrine. The majority nicely traces some of the history of
that doctrine back to the earliest days of Washington statehood, culminating in the case at
issue, Hickman. I do not disagree with the basic analysis of that case. Hickman applied
the law of the case doctrine and dismissed a conviction due to lack of evidence to prove
an extraneous venue element imported into the decision by an overly inclusive jury
instruction. 135 Wash. 2d at 99.
The United States Supreme Court subsequently faced the same scenario in
Musacchio. There, as in Hickman, an extraneous element was added for the jury's
consideration due to an instruction. 193 L. Ed. 2d at 646. Defendant agreed that the
evidence did support a jury finding on the charged offense. Id. at 64 7. Unlike Hickman,
the United States Supreme Court concluded that the surplusage did not matter. The due
process requirements in this context apply to require only proof of the elements of the
charged offense and did not extend to the additional element:
We hold that, when a jury instruction sets forth all the elements of the
charged crime but incorrectly adds one more element, a sufficiency
challenge should be assessed against the elements of the charged crime, not
against the erroneously heightened command in the jury instruction.
Id. This result was dictated by the nature of due process review for evidentiary
sufficiency. The purpose of that review is to reach those cases where the evidence was so
lacking that it should never have been submitted to the jury. Id. To that end, "a
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No. 32684-5-111
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reviewing court makes a limited inquiry tailored to ensure that a defendant receives the
minimum that due process requires: a 'meaningful opportunity to defend' against the
charge against him and a jury finding of guilt 'beyond a reasonable doubt.'" Id. at 64 7-
48 (quoting Jackson, 443 U.S. at 314-15). Accordingly, the "failure to introduce
evidence of an additional element does not implicate the principles that sufficiency
review protects." Id. at 648.
Musacchio, thus, read the law of the case doctrine out of due process evidentiary
review. The law of the case is a common law doctrine rather than a constitutional
doctrine. That distinction is absolutely critical. It explains both why Hickman no longer
applies to this situation and why we cannot review the Hickman claim for the first time
on appeal. Hickman no longer applies because its (largely unarticulated) constitutional
underpinning has been supplanted by Musacchio. As Hass demonstrates, Washington
now has no ability to articulate a different federal due process standard than that set forth
by the United States Supreme Court. Because Hickman no longer has any constitutional
basis, there is no ability to consider a Hickman-type argument for the first time on appeal
in the absence of a timely objection. RAP 2.5(a). Understandably, counsel for Mr.
Jussila had no reason to object to the extra identification elements in the weapons
charges.
As the majority notes, Washington's due process protection found in art. I, § 3
could perhaps provide greater protection in this context. However, for several reasons, it
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does not. First, Mr. Jussila does not argue that the state constitution provides greater
protection in this context. No attempt has been made to comply with the state
constitutional analysis required in State v. Gunwall, 106 Wash. 2d 54, 61-63, 720 P.2d 808
( 1986). In the absence of a Gunwall analysis, Washington courts cannot interpret the
state constitution due to insufficient argument. E.g., Sofie v. Fibreboard Corp., 112
Wash. 2d 636, 663, 771 P.2d 711, 780 P.2d 260 (1989); State v. Wethered, 110 Wash. 2d 466,
472, 755 P.2d 797 (1988). Second, as the history in Green shows, Washington has
always applied federal due process standards to evidentiary sufficiency. Moreover,
Division One of this court once undertook a Gunwall analysis of the state due process
clause and concluded there was no basis for giving that provision a broader reading. See
State v. Turner, 145 Wash. App. 899, 906-09, 187 P.3d 835 (2008). Third, once Hickman
is stripped of its due process ties, there is no basis for relief. Tyler nicely shows that
Washington's common law treatment of evidentiary sufficiency challenges resulted only
in a new trial, not dismissal of charges, in those instances where the evidence was
insufficient. 195 Wash. App. at 403-04. This history strongly suggests there is no basis for
applying broader state protections in this context. Even if Mr. Jussila had argued the
point, he could not have prevailed.
The unarticulated premise of the majority opinion appears to be that since state
law defines crimes and Washington uses the law of the case doctrine to define offenses
(by occasionally adding additional elements in jury instructions), this situation presents a
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question of federal constitutional law. It does not. That approach expressly runs afoul of
both Hass and Musacchio. The question here is what this court has the power to review,
not whether the same offense is defined differently in different cases. Due process
permits review only of the charged offense and does not include review of the extraneous
elements given to the jury.
Mr. Jussila did not challenge the jury instruction at trial and thus cannot do so here
because due process sufficiency review does not extend to the additional elements. The
only argument he can make is the due process claim permitted by Musacchio, but he does
not make that claim. The only argument he does make is a Hickman claim, but that
argument is not preserved for our review since it does not implicate a constitutional right.
RAP 2.5(a)(3). Since the majority ignores our obligation under the supremacy clause to
follow Mussachio instead of the superseded analysis of Hickman, I respectfully dissent
from that portion of the majority's analysis.
6