State v. Barboza-Cortes
| Decision Date | 30 August 2018 |
| Docket Number | No. 34356-1-III,34356-1-III |
| Citation | 425 P.3d 856 |
| Parties | STATE of Washington, Respondent, v. Jose G. BARBOZA-CORTES Appellant. |
| Court | Washington Court of Appeals |
Kristina M. Nichols, Jill Shumaker Reuter, Eastern Washington Appellate Law, Po Box 8302, Spokane, WA, 99203-0302, for Appellant
Douglas J. Shae, Attorney at Law, PO Box 2596, Wenatchee, WA, 98807-2596, Conor Carl Johnson, Chelan County Prosecuting Attorney, 401 Washington St. Fl. 5, Wenatchee, WA, 98801-2899, for Respondent
OPINION PUBLISHED IN PART
¶ 1 An alternative means crime is an offense that can be committed and proved in more than one way. When a defendant is charged with an alternative means crime, our constitution requires that the jury make an express, unanimous finding as to which alternative means forms the basis of a conviction, unless the State presents sufficient evidence in support of each alternative means.
¶ 2 Jose Barboza-Cortes claims that the rule governing alternative means crimes was violated in his case and that, as a result, his convictions for second degree unlawful possession of a firearm and second degree identity theft must be reversed. Mr. Barboza-Cortes’s contentions result in a split outcome by a split panel.
¶ 3 A majority of the panel disagrees with Mr. Barboza-Cortes’s argument with respect to second degree unlawful possession of a firearm. Although the firearm statute prohibits owning, possessing or controlling a firearm, these three descriptors are not alternate ways of violating the same statute. They are instead (as indicated by the name of the crime) manners of proving the singular criminal act of unlawful possession.
¶ 4 When it comes to the identity theft conviction, a separate majority of the panel agrees with Mr. Barboza-Cortes’s analysis. Washington’s identity theft statute prohibits illegal activity involving either a "means of identification" or "financial information." These two concepts do not overlap and, therefore, constitute alternative means. Because one of Mr. Barboza-Cortes’s identity theft convictions was not supported by evidence of both a means of identification and financial information, and because the court’s instructions did not require express jury unanimity, that conviction must be reversed.
¶ 5 On January 16, 2015, Juliana Garcia’s backpack went missing from her car while it was parked overnight at her residence. The backpack contained money Ms. Garcia had collected for a school fundraiser, including several checks. Ms. Garcia reported the stolen backpack to police.
¶ 6 Eleven days later, Mr. Barboza-Cortes used an automatic teller machine (ATM) to deposit four checks into his bank account. Video from the ATM showed Mr. Barboza-Cortes making the deposit. Three of the deposited checks were ones that had been taken from Ms. Garcia’s backpack. The stolen checks were not endorsed, but two of the checks had altered payee information. The fourth deposited check identified Dava Construction as the payor and Francisco Villa as the payee. Although Dava Construction is a real company, the financial information listed on the Dava Construction check was fictitious.
¶ 7 After locating Mr. Barboza-Cortes’s banking information and home address, law enforcement obtained a search warrant for Mr. Barboza-Cortes’s residence. The warrant was dated February 5, 2015, and executed that same day.
¶ 8 Mr. Barboza-Cortes was the sole occupant of his residence and was present at the time of the search. During the course of the search, officers twice obtained amended warrants after first finding methamphetamine and then a firearm. The firearm was a Stevens model pump-action shotgun. It was hidden between two bedroom mattresses. The gun was not fingerprinted and, other than a test fire, no further information was obtained about the weapon.
¶ 9 Mr. Barboza-Cortes was charged with various crimes as a result of the theft investigation and search warrant execution. A jury ultimately convicted Mr. Barboza-Cortes of possession of methamphetamine, unlawful possession of a firearm, three counts of third degree possession of stolen property, and four counts of identity theft. The stolen property counts pertained to the three stolen checks that had been deposited by Mr. Barboza-Cortes on January 27, 2015. The four identity theft counts pertained to each of the four checks deposited on January 27, including the three checks stolen from Ms. Garcia’s backpack and the fictitious Dava Construction check.
¶ 10 At sentencing, the court imposed 43 months’ imprisonment, 12 months’ community custody, and several legal financial obligations.
¶ 11 Mr. Barboza-Cortes appeals.
Alternative means crimes and lack of jury unanimity
¶ 12 Mr. Barboza-Cortes contends his firearm conviction and one of the four identity theft convictions were imposed in violation of his constitutional right to a unanimous jury verdict. WASH. CONST. art I, § 21. His argument rests on the claim that unlawful possession of a firearm and identity theft are both alternative means crimes, and that the trial court’s instructions left open the possibility of an improper, nonunanimous jury verdict. Mr. Barboza-Cortes’s constitutional claims are ones that may be raised for the first time on appeal. RAP 2.5(a).
¶ 13 An alternative means crime is one that presents multiple ways of committing and proving the same offense. State v. Owens , 180 Wash.2d 90, 96, 323 P.3d 1030 (2014). When a criminal statute creates an alternative means crime, a defendant is entitled to an express unanimous jury determination as to which means forms the basis of the guilty verdict unless the State presents sufficient evidence to support each of the alternative means. Id. at 95, 323 P.3d 1030.
¶ 14 Whether a given statute creates an alternative means crime is a question of statutory interpretation. State v. Bunker , 169 Wash.2d 571, 577-78, 238 P.3d 487 (2010). When engaging in statutory interpretation, our "fundamental objective is to ascertain and carry out the Legislature’s intent." Dep’t of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002). The primary source of legislative intent is the language used by the legislature. If the wording and context used by the legislature render a statute plain on its face, then we "must give effect to that plain meaning as an expression of legislative intent." Id .
¶ 15 Having reviewed the statutory language applicable to Mr. Barboza-Cortes’s arguments, a majority of our court partially agrees with Mr. Barboza-Cortes’s contentions. We disagree with his arguments with respect to second degree unlawful possession of a firearm. However, we agree that one of Mr. Barboza-Cortes’s convictions for second degree identity theft must be reversed under an alternative means analysis.
Unlawful possession of a firearm
¶ 16 Under RCW 9.41.040(2)(a), a person "is guilty of the crime of unlawful possession of a firearm in the second degree, if ... the person owns, has in his or her possession, or has in his or her control any firearm" after suffering one of several forms of disenfranchisement outlined by statute. The trial court instructed the jury pursuant to the foregoing terms of the statute and the jury convicted.
¶ 17 On appeal, Mr. Barboza-Cortes claims RCW 9.41.040(2)(a) encompasses three distinctive means of committing the same crime.
He focuses on the use of the word "or" and argues the legislature contemplated that an individual can be convicted under the statute by one of the distinct acts of owning, possessing, or controlling a firearm. Because Mr. Barboza-Cortes was the sole occupant of the residence where the firearm was found, the State plainly presented sufficient evidence of possession and control. State v. Chakos , 74 Wash.2d 154, 157-58, 443 P.2d 815 (1968). However, Mr. Barboza-Cortes argues the record lacked any evidence of ownership. Because the jury was not provided a unanimity instruction, Mr. Barboza-Cortes claims some of the jurors might have voted to convict him for a charge that lacked sufficient facts. Accordingly, Mr. Barboza-Cortes contends his conviction must be reversed.
¶ 18 We disagree with Mr. Barboza-Cortes’s analysis. The word "or" is not, by itself, a strong indicator of an alternative means crime. State v. Peterson , 168 Wash.2d 763, 770, 230 P.3d 588 (2010). Instead, we look at the other statutory language, as well as context. Here, the legislature preceded the three-verb phrase noted by Mr. Barboza-Cortes with the statement that it was designating "the crime of unlawful possession of a firearm in the second degree." RCW 9.41.040(2)(a). Then the legislature listed three methods in which unlawful possession can occur: ownership, possession, or control. Ownership and control are part of the dictionary definition of possession.1 In addition, the concept of control is a method of proving constructive possession. State v. Callahan , 77 Wash.2d 27, 29, 459 P.2d 400 (1969). And ownership of an item can be evidence of constructive possession. Id. at 31, 459 P.2d 400. The fact that the concepts of ownership and control are inherent in the very act of possession indicates the legislature did not intend to create separate crimes. State v. Sandholm , 184 Wash.2d 726, 734-35, 364 P.3d 87 (2015).
¶ 19 Our review of RCW 9.41.040(2)(a) indicates the legislature plainly intended to prohibit one type of activity, unlawful possession of a firearm. Ownership and control are terms that merely serve to "elaborate upon and clarify" manners in which possession can occur. State v. Smith , 159 Wash.2d 778, 785-86, 154 P.3d 873 (2007). They constitute " ‘means within a means.’ " Id. at 787, 154 P.3d 873. They do not create alternative means. To the extent State v. Holt , 119 Wash. App. 712, 82 P.3d 688 (2004) indicates otherwise,2 we respectfully disagree with that decision.
Second degree identity theft
¶ 20 RCW 9.35.020(1) creates the crime of second degree identity theft. The statute declares:
No person may knowingly...
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State v. Barboza-Cortes
...did not support both alternative means and the trial court's instructions did not require express unanimity. State v. Barboza-Cortes, 5 Wash. App. 2d 86, 88-89, 425 P.3d 856 (2018). Defendant petitioned for review of the noted affirmed conviction, and the State petitioned for review of the ......