State v. Johnson

This opinion was ·filed for record
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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 93453-3
Respondent,
V. EN BANC
JOHN HENRY JOHNSON,
Filed - - - - - - -
Petitioner.
STEPHENS, J.-This case comes to us as a sufficiency of the evidence
challenge to John Johnson's conviction for second degree theft of an access device.
Yet, resolving this challenge moves us beyond mere consideration of the evidence
in Johnson's case to broader consideration of how federal due process law and
Washington's "law of the case" doctrine intersect. Specifically, we must decide
whether the United States Supreme Court's recent decision in Musacchio v. United
States, _U.S._, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016), supersedes our decision
in State v. Hickman, 135 Wash. 2d 97, 954 P.2d 900 (1998). Under Hickman, the State
State v. Johnson (John Henry), 93453-3
must establish all elements it agrees to include in the to-convict instruction, even if not
required by statute, because unchallenged instructions become the "law of the case."
Id. at 102. In Musacchio, the Supreme Court rejected a "law of the case" argument and
held that due process requires only that evidentiary sufficiency claims "be assessed
against the elements of the charged crime, not against the erroneously heightened
command in the jury instruction." 136 S. Ct. at 715.
Here, the jury was instructed that an element of the theft charge included
Johnson's intent "to deprive the [victim] of the access device." Clerk's Papers (CP) at
157 (to-convict instruction). The jury convicted Johnson, and he appealed. The Court
of Appeals affirmed the conviction, holding that neither the statute nor the "law of the
case" doctrine placed the burden of proving the erroneously added element on the State.
That court concluded Musacchio supersedes Washington's "law of the case" doctrine
because Washington has adopted the federal due process standard for evidentiary
sufficiency and thus Supreme Court precedent interpreting that standard controls. 1
We disagree because our state "law of the case" doctrine does not rest on federal
due process principles. This long standing doctrine has developed through the common
1
The position of Division One of the Court of Appeals in this case is also reflected
in State v. Tyler, 195 Wash. App. 385, 382 P.3d 699 (2016). Division Three has taken a
contrary view. See State v. Jussi/a, 197 Wn. App. 908,392 P.3d 1108 (2017). As of this
writing, Division Two has not expressed a position, but has indicated the issue is for this
court to decide. See State v. Makekau, 194 Wn. App. 407,415 n.2, 378 P.3d 577 (2016).
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law and state procedural rules, and remains intact following Musacchio. Because the
State has not demonstrated that our "law of the case" doctrine is incorrect and harmful,
or that its legal underpinnings have been eroded, we adhere to the framework
established in Hickman. Accordingly, we hold that the State was required to prove
Johnson specifically intended to steal an access device. Because sufficient evidence
supports this element, we affirm Johnson's conviction.
FACTS AND PROCEDURAL HISTORY
Kendra Farmer was shopping with her family at the Pottery Barn store at
Alderwood Mall in Lynnwood. Her husband, Ryan, and one of their children were near
the front of the store; Kendra and another child were near a cash register in a different
part of the store. While speaking with a sales associate near the cash register, Kendra
left her Coach brand purse unattended on a display couch a few feet away. The purse
contained her wallet, credit cards, and debit cards, among other items.
The purse had a heavy metal chain that made a distinct sound when moved. Ryan
heard that sound and, expecting to see his wife, instead saw Johnson picking up the
purse and attempting to place it inside a plastic bag. Ryan confronted Johnson and told
him the purse did not belong to him. Johnson handed the purse to Ryan and then turned
around to walk in the opposite direction. Ryan handed the purse to Kendra, called the
police, and followed Johnson outside until the police arrived.
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Johnson was charged with one count of second degree theft of an access device
pursuant to RCW 9A.56.040(l)(d).2 That statute provides that "[a] person is guilty of
theft in the second degree ifhe or she commits theft of ... [a]n access device." RCW
9A.56.040(1 )(d). 3 "Theft" means "[t]o wrongfully obtain or exert unauthorized control
over the property or services of another or the value thereof, with intent to deprive him
or her ofsuch property or services." RCW 9A.56.020(l)(a) (emphasis added).
At trial, the to-convict instruction stated,
To convict the defendant of the crime of theft in the second degree, each
of the following four elements of the crime must be proved beyond a reasonable
doubt:
(1) That on or about the 22nd day of August, 2013, the defendant
wrongfully obtained or exerted unauthorized control over property of another;
(2) That the property was an access device;
2
The information stated Johnson
did wrongfully obtain or exert unauthorized control over an access device of
another, to-wit: a credit card belonging to Kendra Farmer, with intent to
deprive such other of such property; and the crime was committed while
[Johnson] was under community custody, as provided by
RCW 9.94A.525(19), proscribed by RCW 9A.56.040(1)(c).
CP at 193. As the Court of Appeals recognized, both the information and "[t]he judgment
and sentence incorrectly state[ d] that Johnson was convicted of second degree theft under
RCW 9A.56.040(1)(c), when he was actually convicted under RCW 9A.56.040(l)(d)."
State v. Johnson, No. 73113-1-1, slip op. at 9 n.9 (Wash. Ct. App. June 6, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/731131.pdf. The Court of Appeals remanded to the
trial court to correct the error. Id. at 9.
3
An "access device" is
any card, plate, code, account number, or other means of account access that can
be used alone or in conjunction with another access device to obtain money,
goods, services, or anything else of value, or that can be used to initiate a transfer
of funds, other than a transfer originated solely by paper instrument.
RCW 9A.56.010(1).
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State v. Johnson (John Henry), 93453-3
(3) That the defendant intended to deprive the other person ofthe access
device; and
(4) That this act occmTed in the State of Washington.
CP at 157 (emphasis added). After receiving this instruction, the jury found Johnson
guilty. Id. at 147.
Johnson timely appealed his conviction to Division One of the Court of Appeals.
Johnson contended that insufficient evidence supported the jury's verdict because under
both the theft statute and the to-convict instruction, the State was required, but failed,
to prove his specific intent to steal Kendra's access device. Appellant's Opening Br.
at 6. The Court of Appeals affirmed, holding that neither the theft statute nor the
to-convict instruction placed such a requirement on the State. State v. Johnson, No.
73113-1-I, slip op. at 4, 7 (Wash. Ct. App. June 6, 2016) (unpublished),
http://www.courts.wa.gov/opinions/pdf/73 l 13 l .pdf. With regard to the theft statute,
that court found there was sufficient evidence to sustain the conviction because the State
was required to prove only that Johnson intended to deprive Kendra of her purse and
its contents and, separately, that the contents included an access device. Id. at 4-5. With
regard to the to-convict instruction, that court held that although the instruction
erroneously included as an element the specific intent to deprive Kendra of an access
device, the Supreme Court's decision in Musacchio rendered the instruction irrelevant
in reviewing a claim for insufficient evidence. Id. at 6. Because Washington's
"sufficiency inquiry is based on the Fourteenth Amendment's due process clause and
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State v. Johnson (John Henry), 93453-3
the Jackson [v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]
standard," and because the Supreme Court "is the final arbiter on the meaning and
interpretation of the United States Constitution," its holding that a "Fourteenth
Amendment evidentiary sufficiency challenge must be assessed against the elements of
the charged crime, not against the erroneously heightened elements set forth in a jury
instruction ... supersedes all inconsistent interpretations by" Washington courts. Id. at
6-7. The Court of Appeals thus concluded the State need prove only the statutory
elements of the crime for which there was sufficient evidence. Id. at 7.
Johnson then filed a petition for review in this court, which we granted. State v.
Johnson, 186 Wash. 2d 1025, 385 P.3d 125 (2016).
ANALYSIS
Johnson contends there is insufficient evidence to support his conviction because
the State did not prove he specifically intended to steal any access device in Kendra's
purse. Sufficiency review secures the fundamental protection of due process of law.
Jackson, 443 U.S. at 319. Under both the federal and state constitutions, due process
requires that the State prove every element of a crime beyond a reasonable doubt. U.S.
CONST. amend. XIV; WASH. CONST. art. I,§ 3; In re Winship, 397 U.S. 358, 364, 90 S.
Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Rich, 184 Wn.2d 897,903,365 P.3d 746
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State v. Johnson (John Henry), 93453-3
(2016). 4 In reviewing a claim for insufficient evidence, we therefore consider
"'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."' State v. Green, 94 Wash. 2d 216, 221, 616 P .2d 628 (1980) (plurality
opinion) (emphasis omitted) (quoting Jackson, 443 U.S. at 319). Johnson contends this
standard is not met because both the theft statute and the "law of the case" doctrine
required the State to prove his specific intent to steal an access device, which it failed
to do. Pet. for Review at 12. To assess Johnson's sufficiency claim, we consider the
State's burden of proof under the theft statute and the "law of the case" doctrine, as well
as Musacchio' s effect on our "law of the case" doctrine.
I. Specific Intent To Steal an Access Device Is Not a Statutory Element
of Second Degree Theft of An Access Device
The statute at issue provides in relevant part, "A person is guilty of theft in the
second degree if he or she commits theft of . . . [a]n access device."
4
Although it appears "[t]he requirement of proof beyond a reasonable doubt ha[d]
... only common law and statutory origins" before the Winship decision, State v. Odom,
83 Wn.2d 541,546,520 P.2d 152 (1974), this court has since indicated that the requirement
also has a state constitutional component. See, e.g., Rich, 184 Wash. 2d at 903. This is
perhaps because "the text of CONST. art. I,§ 3 and the ... Fourteenth Amendment[] to the
Federal Constitution are identical." State v. Manussier, 129 Wn.2d 652,679, 921 P.2d 473
(1996); see also State v. Ridgley, 70 Wash. 2d 555, 556, 424 P.2d 632 (1967) ("When the
words used in the state constitution are similar to the words used in the Constitution of the
United States, the same interpretation will be given to the state constitution as is afforded
to the United States Constitution by the United States Supreme Court.").
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State v. Johnson (John Henry), 93453-3
RCW 9A.56.040(l)(d). "Theft" means "[t]o wrongfully obtain or exert unauthorized
control over the property or services of another or the value thereof, with intent to
deprive him or her of such property or services." RCW 9A.56.020(l)(a). A credit card
is an "access device." RCW 9A.56.010(1).
Johnson argues that when read side by side, the theft statute (RCW
9A.56.020(l)(a)) and the second degree theft statute (RCW 9A.56.040(l)(d)) required
the State to prove intent to steal Kendra's access device, rather than her property in
general. Appellant's Opening Br. at 6-7; Suppl. Br. of Pet'r at 5-6. The theft statute
requires '"intent to deprive [the other] of such property,"' which under the second
degree theft statute is an access device. Appellant's Opening Br. at 6-7 (quoting RCW
9A.56.020(l)(a)); Suppl. Br. of Pet'r at 5-6.
The State counters that Johnson misinterprets the theft statute, which includes
two separate elements: (1) intent to take the property and (2) the nature of the property
taken. Suppl. Br. of Resp't at 6. The State was therefore required to prove only that
Johnson intended to deprive Kendra of her property and that the property was an access
device. Br. ofResp't at 7.
Although our cases do not explicitly state the elements of second degree theft of
an access device, precedent discussing the elements of first and second degree theft of
property over a certain value suggest that the State is correct. "A person is guilty of
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State v. Johnson (John Henry), 93453-3
theft in the first degree" or "the second degree" if "he or she commits theft of . . .
[p]roperty or services which exceed(s)" a certain dollar amount.
RCW 9A.56.030(l)(a), .040(1)(a). These provisions rely on the same theft statute
above. RCW 9A.56.020(1)(a) ("[t]o wrongfully obtain or exert unauthorized control
over the property or services of another or the value thereof, with intent to deprive him
or her of such property or services"). Two cases are particularly helpful in interpreting
these provisions.
In State v. Holmes, this court rejected the defendants' argument that the welfare
fraud statute was invalid because the defendants had to refer to numerous regulations
to determine the amount of any overpayment. 98 Wash. 2d 590, 596, 657 P .2d 770 (1983):
In doing so, this court compared the requirements for welfare fraud and theft. Id. at
596-97. This court stated,
In a prosecution for theft under RCW 9A.56 it is not necessary that the defendant
either know the value of the property he has taken or intend to acquire a
particular dollar amount of property. Neither factor is an element of theft even
though "intent to deprive" is a necessary element.
Id. at 596. The court in Holmes relied on State v. Delmarter, 94 Wash. 2d 634, 618 P.2d
99 (1980), for this statement.
In Delmarter, this court affirmed the defendant's conviction for attempted first
degree theft because there was sufficient evidence to prove the essential elements of the
crime. Id. at 63 7-3 8. In discussing the essential elements of attempted first degree theft,
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this court rejected the defendant's argument that the State must prove he knew the value
of the property stolen. Id. at 637. This court stated that the theft statute and the statute
defining theft in the first degree did "not include as an element of the crime that
defendant must have knowledge of the value of the property." Id. Rather, the relevant
inquiry was whether the "defendant intended to steal from the camouflaged cash
drawer." Id.
These cases suggest that the State was required to prove, first, that Johnson
intended to steal an item and, second, that the item stolen was of the type required by
statute. See also State v. Kinneman, 120 Wash. App. 327, 338-39, 84 P.3d 882 (2003)
("[t]o carry its burden of proof for each charge, the State must prove the following
elements beyond a reasonable doubt: (1) that [the defendant] exerted unauthorized
control over [the] property and (2) that the value of the property exceeded" a certain
dollar amount). Johnson's argument that under the theft statute the State had the
burden of proving intent to deprive Kendra of her access device thus fails.
The main case on which Johnson relies, State v. Lust, 174 Wash. App. 887, 300
P.3d 846 (2013), does not change our view of the statute. In Lust, the Court of Appeals
held the defendant's second and third degree theft convictions did not violate double
jeopardy because they required proof of different elements. Id. at 890. In so holding,
that court reasoned that each crime had a different intent element. Id. at 892. We find
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Lust unpersuasive for two reasons. First, unlike in the present case, the defendant in
Lust was convicted for two separate acts: third degree theft of property under a certain
value (for stealing the purse) and second degree theft of an access device (for removing
credit and debit cards from the wallet inside the purse). Id. at 889. Second, the appeals
court in Lust inconsistently described the intent element for the different degrees of
theft. Id. at 892. The appeals court stated the third degree theft conviction required
intent "to deprive [the victim] of the purse," while the second degree theft conviction
required intent "to deprive [the victim] of the credit and debit cards." Id. (emphasis
added). While the intent requirement for the third degree theft conviction did not
reference the value of the property, the intent requirement for the second degree theft
conviction referenced the credit and debit cards, i.e., the access devices. It is unclear
why third degree theft would not contain an additional mens rea requirement for the
nature of the property taken, but second degree theft would. We therefore disapprove
of Lust to the extent it erroneously reads the second degree theft statute to require
specific intent to steal an access device. The statute does not impose this requirement.
II. Under Washington's "Law of the Case" Doctrine, the Unchallenged
To-Convict Instruction, Which Erroneously Required Proof of Specific
Intent To Steal an Access Device, Modified the State's Burden of Proof
Johnson next contends that even if the theft statute did not require the State to
prove his specific intent to steal an access device, the State still carried such a burden
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State v. Johnson (John Henry), 93453-3
because that element was included in the to-convict instruction, to which the State did
not object. Suppl. Br. ofPet'r at 11; CP at 157. Under Washington's "law of the case"
doctrine, the State must prove otherwise unnecessary elements included without
objection in the to-convict instruction. Suppl. Br. of Pet'r at 11-12. 5 Here, the "law of
the case" doctrine required the State to prove Johnson specifically intended to steal
Kendra's access device. Id. at 19-20. The State does not dispute this contention, and
Johnson is correct.
Washington's "law of the case" doctrine "derives from ... common law,"
Roberson v. Perez, 156 Wash. 2d 33, 41, 123 P.3d 844 (2005), and "is an established
doctrine with roots reaching back to the earliest days of statehood," Hickman, 135
Wash. 2d at 101. The doctrine is "multifaceted" and "means different things in different
circumstances." Roberson, 156 Wash. 2d at 41. Most commonly, the 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." Id. In
addition, and relevant here, the doctrine "refers to the principle that jury instructions
5
Although Musacchio and several of our cases discuss the "law of the case" doctrine
in the context of general jury instructions, we consider only the doctrine's application to
the to-convict instruction. See, e.g., State v. France, 180 Wash. 2d 809, 816, 329 P.3d 864
(2014) ("[T]he law of the case doctrine applies to all unchallenged instructions, not just the to-
convict instruction. But ' [eJach instruction must be evaluated in the context of the instructions
as a whole."' (second alteration in original) (citations omitted) (quoting State v. Benn, 120
Wash. 2d 631, 654-55, 845 P.2d 289 (1993))).
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State v. Johnson (John Henry), 93453-3
that are not objected to are treated as the properly applicable law for purposes of
appeal." Id.
This latter formulation of the "law of the case" doctrine has frequently been
invoked to delineate the parties' burdens of proof. See Millies v. LandAmerica
Transnation, 185 Wash. 2d 302, 313, 372 P.3d 111 (2016) ("Unless there is a proper
objection, jury instructions become the law of the case."); Tonkovich v. Dep 't of
Labor &Indus., 31 Wn.2d 220,225, 195 P.2d 638 (1948) ("[T]he parties are bound
by the law laid down by the court in its instructions where ... the charge is approved
by counsel for each party, no objections or exceptions thereto having been made at
any stage. In such case, the sufficiency of the evidence to sustain the verdict is to
be determined by the application of the instructions."); Pepperall v. City Park
Transit Co., 15 Wash. 176, 180, 45 P. 743 (1896) ("[W]hether the instruction in
question was rightfully or wrongfully given, it was binding and conclusive upon the
jury, and constitutes ... the law of the case.").
In criminal cases,
the State assumes the burden of proving otherwise unnecessary elements of
the offense when such added elements are included without objection in the
"to convict" instruction.
On appeal, a defendant may assign error to elements added under the
law of the case doctrine. Such assignments of error may include a challenge
to the sufficiency of the evidence of the added element.
Hickman, 135 Wash. 2d at 102 (citations omitted).
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Under our controlling precedent on the "law of the case" doctrine, the State was
obligated to prove Johnson's specific intent to steal an access device because that
element was included in the to-convict instruction and the State did not object. The
remaining question is whether the Supreme Court's decision in Musacchio changes this
result.
III. Washington's "Law of the Case" Doctrine Remains Intact Because It Is
Neither Incorrect and Harmful Nor Superseded by Musacchio
While recognizing that Washington follows the "law of the case" doctrine as
described above, the Court of Appeals held that Musacchio supersedes our precedent.
Johnson, slip op. at 7. The State embraces this position, arguing that Hickman "no
longer controls a challenge to the sufficiency of the evidence where additional elements
are included in the to-convict instruction." Suppl. Br. ofResp't at 5.
We disagree, and hold that our long standing "law of the case" doctrine continues
to apply. Stare decisis '"promotes the evenhanded, predictable, and consistent
development of legal principles, fosters reliance on judicial decisions, and contributes
to the actual and perceived integrity of the judicial process."' Keene v. Edie, 131 Wn.2d
822,831,935 P.2d 588 (1997) (quoting Payne v. Tennessee, 501 U.S. 808,827, 111 S.
Ct. 2597, 115 L. Ed. 2d 720 (1991)). We therefore "do not lightly set aside precedent."
State v. Kier, 164 Wash. 2d 798, 804, 194 P.3d 212 (2008). Instead, we require "a clear
showing that an established rule is incorrect and harmful before it is abandoned." In re
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State v. Johnson (John Henry), 93453-3
Rights to Waters ofStranger Creek, 77 Wn.2d 649,653,466 P.2d 508 (1970). We may
also abandon our precedent "when [its] legal underpinnings . . . have changed or
disappeared altogether." W.G. Clark Constr. Co. v. Pac. Nw. Reg'! Council of
Carpenters, 180 Wash. 2d 54, 66, 322 P.3d 1207 (2014). Neither of these circumstances
applies here.
A. The State Has Not Shown That Washington's "Law of the Case"
Doctrine Is Incorrect and Harmful
While we may set aside our precedent when it is both incorrect and harmful, the
"party seeking to overrule a decision" must make this showing. Kier, 164 Wash. 2d at
804; State v. Barber, 170 Wash. 2d 854, 864, 248 P.3d 494 (2011). The State does not
attempt to demonstrate that Hickman is incorrect and harmful.
Moreover, we will not "overrule prior decisions based on arguments that were
adequately considered and rejected in the original decisions themselves." Barber, 170
Wash. 2d at 864. The court in Hickman refused to abandon the "law of the case" doctrine
at the State's urging. 135 Wash. 2d at 105. The court noted that 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." Id. This is
consistent with the underlying goal of our "law of the case" doctrine "to promote
finality and efficiency in the judicial process," Roberson, 156 Wash. 2d at 41, as well as
encourage general notions of fairness. See, e.g., State v. Camarata, No. 32960-7-III,
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State v. Johnson (John Henry), 93453-3
slip op. at 13 (Wash. Ct. App. Jan. 19, 2017) (unpublished), http://www.
courts.wa.gov/opinions/pdf/329607_unp.pdf (the doctrine "serves to avoid prejudice to
the parties and ensure that the appellate courts review a case under the same law
considered by the jury. The common vantage point is particularly important ... where
the additional element ... was consciously believed by the State to be a required proof'
(citation omitted)). We thus decline to overrule Hickman on this basis.
B. The Legal Underpinnings of Washington's "Law of the Case"
Doctrine Have Not Changed or Been Eroded, and Musacchio Does
Not Supersede Our Doctrine
We have recently recognized that we may reconsider our precedent when its
legal underpinnings have changed or disappeared. W. G. Clark, 180 Wash. 2d at 66.
The State appears to urge the court to do so, contending our analysis must follow the
Supreme Court's interpretation of the federal standard for evidentiary sufficiency
challenges. Wash. Supreme Court oral argument, State v. Johnson, No. 93453-3 (Feb.
28, 2017), at 30 min., 42 sec. through 31 min., 10 sec., recording by TVW, Washington
State's Public Affairs Network, http://www.tvw.org. Although stare decisis does not
prevent us from "fully considering all United States Supreme Court guidance on federal
issues," we conclude the Supreme Court's holding in Musacchio does not call into
question the underpinnings of our "law of the case" doctrine. W. G. Clark, 180 Wash. 2d
at 66.
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State v. Johnson (John Henry), 93453-3
As mentioned above, Washington has adopted the federal standard for
sufficiency review. See Green, 94 Wash. 2d at 221. Washington, however, has its own
"law of the case" doctrine, independent of federal law. See, e.g., DAVID F. HERR,
ROGERS. HAYDOCK & JEFFREY W. STEMPEL, MOTION PRACTICE§ 16.06, at 16-47 (7th
ed. 2016) ("Federal law generally governs the application of the 'law of the case'
principle ... in federal courts; state doctrine governs state court litigation."). Rather
than follow federal law, Washington's doctrine relies on Washington common law and
procedural rules. See Roberson, 156 Wash. 2d at 41 (common law); Hickman, 135 Wash. 2d
at 105 (procedural rules). 6 This foundation leads us to conclude that Musacchio does
not supersede our "law of the case" doctrine.
Musacchio discusses sufficiency review only in the context of a federal statute
and the federal "law of the case" doctrine. Musacchio therefore resolves how federal
6
Johnson contends the doctrine is also based on the state constitution, Suppl. Br. of
Pet'r at 18-19, and relies onPepperall, where we stated,
[O]ur constitution provides that trial judges "shall declare the law." It is the duty
of the court in all cases to decide questions of law ... and it frequently becomes
a question oflaw ... to determine whether, in a given case, there is any evidence
to be submitted to the jury in support of an issue raised by the pleadings.
15 Wash. at 183 (citation omitted). Although the court in Pepperall did not cite a state
constitutional provision, Johnson cites article IV, section 16, which provides that "[j]udges
shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare
the law." WASH. CONST. art. IV,§ 16. Johnson again cites article IV as the source of this
court's "inherent rule making power." Suppl. Br. of Pet'r at 19. This provision therefore
suggests that "[u ]nder the Washington Constitution and Washington criminal rules, a jury
applies only the law provided by the court." Jussila, slip op. at 20.
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State v. Johnson (John Henry), 93453-3
courts are to determine the elements of a federal crime for purposes of sufficiency
review. The Supreme Court explained that the federal "law of the case" doctrine "does
not bear on how to assess a sufficiency challenge when a jury convicts a defendant after
being instructed-without an objection by the Government-on all charged elements
of a crime plus an additional element." Musacchio, 136 S. Ct. at 716. Indeed, it
described the doctrine as '"a misnomer"' in this context. Id. (quoting United States v.
Wells, 519 U.S. 482,487 n.4, 117 S. Ct. 921, 137 L. Ed. 2d 107 (1997)). The Supreme
Court therefore rejected the federal "law of the case" doctrine, and adopted the rule that
additional elements in jury instructions are not considered essential elements of federal
crimes. See id. at 715.
The Supreme Court's holding did not and could not govern state crimes. See,
e.g., Montana v. Wyoming, 563 U.S. 368, 378 n.5, 131 S. Ct. 1765, 179 L. Ed. 2d
799 (2011) (the "highest court of each State" is '"the final arbiter of what is state
law"' (quoting Westv. Am. Tel. & Tel. Co., 311 U.S. 223,236, 61 S. Ct. 179, 85 L.
Ed. 139 (1940))); see alw Federated Publ'ns, Inc. v. Kurtz, 94 Wash. 2d 51, 57, 615
P.2d 440 (1980). This is because the evidentiary sufficiency standard "is concerned
with the quantum of proof supporting a conviction, not with what acts must be proved."
State v. Rattana Keo Phuong, 174 Wash. App. 494, 535, 299 P.3d 37 (2013). That
"standard must be applied with explicit reference to the substantive elements of the
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State v. Johnson (John Henry), 93453-3
criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16 (emphasis
added); see also United States v. Lopez, 514 U.S. 549,561 n.3, 115 S. Ct. 1624, 131 L.
Ed. 2d 626 (1995) ("Under our federal system, the 'States possess primary authority for
defining and enforcing the criminal law."' (internal quotation marks omitted) (quoting
Brechtv. Abrahamson, 507 U.S. 619,635, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)));
Montana, 563 U.S. at 377 n.5; Kurtz, 94 Wash. 2d at 57. 7 In Washington, our "law of
the case" doctrine dictates the elements of a state crime for purposes of sufficiency
review. Hickman and cases following it are clear that unless the State objects, the to-
convict instruction defines the essential elements of a crime. See Hickman, 135 Wash. 2d
at 102 (the State must prove "otherwise unnecessary elements" included in the to-
convict instruction); State v. France, 180 Wash. 2d 809, 815, 329 P.3d 864 (2014)
(erroneous to-convict instructions "create[] a new element of the crime"); State v.
7
The Court of Appeals in Tyler suggested that following Musacchio would be "in
accordance with the understanding that it is the legislature, and not the trial court, that
possesses the authority to create a crime." Tyler, 195 Wash. App. at 400. But Musacchio cannot
be read as resting on any deference to legislative authority. See Musacchio, 136 S. Ct. at 715
n.2 ("[W]e express no view on the question whether sufficiency of the evidence at trial must
be judged by reference to the elements charged in the indictment, even if the indictment
charges one or more elements not required by statute." (emphasis added)). At any rate, this
remains a matter of state law, and our legislature has never rejected judicial reliance on the
"law of the case" doctrine to defme the essential elements of a crime. See, e.g., Snohomish
County v. Anderson, 123 Wash. 2d 151, 156, 868 P.2d 116 (1994) ("[T]he Legislature is
presumed to be familiar with [this court's] judicial decisions . . . construing existing statutes
and the state constitution."). In any event, judges hold the constitutional authority to "declare
the law." WASH. CONST. art. IV,§ 16.
-19-
State v. Johnson (John Henry), 93453-3
Makekau, 194 Wn. App. 407,415, 378 P.3d 577 (2016) (in Hickman, "venue became
a third element"); State v. Barringer, 32 Wash. App. 882, 888, 650 P.2d 1129 (1982)
(instruction stating the prescription was for a controlled substance became "a material
element of the charge"), overruled in part on other grounds by State v. Monson, 113
Wash. 2d 833, 849-50, 784 P.2d 485 (1989); cf. State v. McGary, 37 Wash. App. 856, 860,
683 P.2d 1125 (1984) (given that the vehicle identification number was included only
in the information, it did not become "an element of the crime"). 8 On appeal, a
defendant may challenge the sufficiency of the evidence of the added element.
Hickman, 135 Wash. 2d at 102.
Nothing in Musacchio forecloses the application of other state or federal
doctrines in this context. The Supreme Court explained that an appellate court's review
of "a matter on which a party failed to object below ... may well be constrained by
other doctrines such as waiver, forfeiture, and estoppel." Musacchio, 136 S. Ct. at 716.
Washington's "law of the case" doctrine falls within this category, as it derives from
"the nature and exigencies of appellate review." France, 180 Wash. 2d at 814; see also
8 Added elements become the law of the case only when they are included in
instructions to the jury in part because the to-convict instruction '"serves as a yardstick by
which the jury measures the evidence to determine guilt."' France, 180 Wash. 2d at 815
(quoting State v. Johnson, 180 Wash. 2d 295, 306, 325 P.3d 135 (2014)); see also State v.
Benitez, 175 Wash. App. 116, 124-25, 302 P.3d 877 (2013) (explaining that the "law of the
case" doctrine applies only to jury instructions, not to charging documents, because the
instructions and the information serve different purposes).
-20-
State v. Johnson (John Henry), 93453-3
Hickman, 135 Wash. 2d at 105. Specifically, the doctrine is premised on the procedural
rule that '" before error can be claimed on the basis of a jury instruction given by the
trial court, an appellant mustfirst show that an exception was taken to that instruction."'
State v. Salas, 127 Wash. 2d 173, 181, 897 P.2d 1246 (1995) (quoting State v. Bailey, 114
Wash. 2d 340, 345, 787 P.2d 1378 (1990)); see also Agranojfv. Morton, 54 Wash. 2d 341,
345,340 P.2d 811 (1959) ("[T]he court, under [its] rule-making power, ... required
all exceptions to instructions to be taken before the cause was submitted to the
jury."). In the context of criminal cases, this rule is contained in Criminal Rule (CrR)
6.15(c), which "'requires that timely and well stated objections be made to
instructions"' before they are given to the jury. Salas, 127 Wash. 2d at 182 (quoting State
v. Scott, 110 Wash. 2d 652, 685-86, 757 P.2d 492 (1988)); see also Hickman, 135 Wash. 2d
at 105. In describing this rule, the court in Hickman suggested that it is based on
principles of waiver, forfeiture, and estoppel. See Hickman, 13 5 Wash. 2d at 104 (the
"failure to request the desired instruction or object to those actually given waives any
objection on appeal" (emphasis added)), 105 ("the parties must object to jury
instructions ... on penalty offorfeiture of such objection" (emphasis added)). Our "law
of the case" doctrine is therefore unrestrained by Musacchio, which constrains only our
sufficiency review.
-21-
State v. Johnson (John Henry), 93453-3
Because Washington's "law of the case" doctrine is grounded in state common
law and procedural rules, its legal underpinnings have not changed or disappeared.
Musacchio therefore does not supersede our "law of the case" doctrine, which requires
the State to prove every element in the to-convict instruction beyond a reasonable doubt.
IV. The State Presented Sufficient Evidence To Support a Jury Finding
That Johnson Specifically Intended To Steal an Access Device
Having established the parameters for our sufficiency review, we address
whether sufficient evidence supports Johnson's conviction for second degree theft
of an access device. We consider '"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."' Green, 94 Wash. 2d at 221
(emphasis omitted) (quoting Jackson, 443 U.S. at 319). "When the sufficiency of the
evidence is challenged in a criminal case, all reasonable inferences from the evidence
must be drawn in favor of the State and interpreted most strongly against the defendant."
State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992). "A claim ofinsufficiency
admits the truth of the State's evidence and all inferences that reasonably can be drawn
therefrom." Id.
When "[s]pecific intent" is an element of the crime, it "cannot be presumed."
State v. Wilson, 125 Wash. 2d 212, 217, 883 P.2d 320 (1994). However, it "can be
inferred as a logical probability from all the facts and circumstances." Id. In proving
-22-
State v. Johnson (John Henry), 93453-3
intent, "[c]ircumstantial evidence and direct evidence are equally reliable." State v.
Thomas, 150 Wash. 2d 821, 874, 83 P.3d 970 (2004); see also State v. Vasquez, 178
Wash. 2d 1, 8,309 P.3d 318 (2013).
Johnson contends the State failed to prove his specific intent to steal an access
device because there is no evidence he looked inside the purse or otherwise knew it
contained an access device. Pet. for Review at 12, 15. Without evidence of actual
knowledge, a jury could not reasonably infer intent. Id. at 16-17; Suppl. Br. of Pet'r
at 9. The State counters that because Johnson picked up the purse, folded it, and
tried to conceal it inside a plastic bag, and then walked away, a jury could reasonably
conclude that Johnson intended to steal the purse and its contents, which a jury could
also reasonably infer included credit or debit cards. Suppl. Br. ofResp't at 7.
Undoubtedly, the State presented sufficient evidence from which a reasonable
jury could infer Johnson intended to steal Kendra's purse. Ryan testified that
Johnson grabbed the purse and attempted to put it inside a plastic bag. Verbatim
Report of Proceedings (VRP) (Jan. 26, 27 (morning only) & Feb. 11, 2015) at 78.
Once confronted, Johnson turned in the opposite direction and walked away, id. at
79, and he occasionally looked back as Ryan pursued him, id. at 104-05. In addition,
although Johnson testified that he picked up the purse intending to return it to its
rightful owner, id. at 154, the jury may have disbelieved him. See Thomas, 150
-23-
State v. Johnson (John Henry), 93453-3
Wn.2d at 874 ("Credibility determinations are for the trier of fact."). And there was
contradictory testimony about his reasons for entering Pottery Barn: Johnson
testified that he was walking through Pottery Barn to make a return in the mall, VRP
(Jan. 26, 27 (morning only) & Feb. 11, 2015) at 152, 180, but the reporting officer
testified that Johnson said he was shopping at Pottery Barn, not just walking through,
VRP (Jan. 27, 2015 (afternoon)) at 4.
We conclude that the State also presented sufficient evidence from which a
reasonable jury could infer Johnson intended to steal Kendra's purse because he
believed it contained a credit card. Although Johnson may not have looked inside
the purse, VRP (Jan. 26, 27 (morning only) & Feb. 11, 2015) at 66, 87, 153, the purse
was a designer purse, id. at 70, that likely belonged to an adult and therefore likely
contained credit cards that Johnson expected the owner would use to pay for
purchases. We acknowledge that a reasonable jury could find Johnson intended to
steal only Kendra's purse and not her credit cards. But whether a reasonable jury
could disagree with the inference that Johnson intended to steal a credit card when
he stole the purse is not the standard for finding insufficient evidence. The standard
is whether no reasonable jury could find beyond a reasonable doubt that Johnson
intended to steal Kendra's credit cards when he stole her purse. See Green, 94 Wash. 2d
at 221. Johnson's challenge does not overcome that significant hurdle.
-24-
State v. Johnson (John Henry), 93453-3
Because the evidence is sufficient to prove Johnson's specific intent to steal
an access device, we affirm his conviction.
CONCLUSION
We hold that Hickman remains good law. There has been no showing that
Hickman is incorrect and harmful or that its legal underpinnings have changed or
disappeared. The Supreme Court's holding in Musacchio that jury instructions do not
define the essential elements of a crime is limited to federal statutes and the federal "law
of the case" doctrine. Washington has developed its own "law of the case" doctrine in
common law and procedural rules such as CrR 6.15. Under this doctrine, to-convict
instructions define the elements of a crime and the State must prove every element in
the instructions beyond a reasonable doubt. 9
Applying this framework here, the State was required to prove beyond a
reasonable doubt that Johnson specifically intended to deprive Kendra of an access
device because that element was included in the to-convict instruction, to which the
State did not object. Because we find sufficient evidence of this element, we affirm the
conviction.
9Given our resolution above, we need not decide the proper remedy in a case in
which the State fails to prove any element in the to-convict instruction.
-25-
State v. Johnson (John Henry), 93453-3
WE CONCUR:
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