State v. Lucas-Vicente

• Decision Date: 31 May 2022
• Citation: State v. Lucas-Vicente, 510 P.3d 1006 (Wash. App. 2022)
• Docket Number: No. 82239-0-I
• Parties: The STATE of Washington, Respondent, v. Geronimo LUCAS-VICENTE aka Maynor Willy Ramirez Lopez aka Maynor Alexis Montero, Appellant.
• Court: Washington Court of Appeals

510 P.3d 1006

The STATE of Washington, Respondent,

v.Geronimo LUCAS-VICENTE aka Maynor Willy Ramirez Lopez aka Maynor Alexis Montero, Appellant.

No. 82239-0-I

Court of Appeals of Washington, Division 1.

FILED May 31, 2022

Richard Wayne Lechich, Sara Sofia Taboada, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Elaine S. Lee, Stephanie Finn Guthrie, King County Prosecuting Attorney's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, Respondent.

PUBLISHED OPINION

Bowman, J.

¶1Geronimo Lucas-Vicente appeals his jury convictions for domestic violence assault in the second degree, felony harassment, and tampering with a witness.He argues that witness tampering is an alternative means crime and that the trial court violated his right to a unanimous verdict by failing to instruct the jury properly.Lucas-Vicente also claims the prosecutor engaged in prejudicial misconduct during closing argument.We hold that witness tampering is an alternative means crime.But because sufficient evidence at trial supported each charged alternative, the trial court did not err by failing to instruct the jury as to unanimity.We also reject Lucas-Vicente's claims of prosecutorial misconduct, and affirm.

FACTS

¶2 On February 9, 2020, Lucas-Vicente and his girlfriend Amalfi Samol¹ argued about her friend, Melvin Arteaga Ramos.²Lucas-Vicente punched, bit, and pushed Samol to the ground, then started strangling her.Arteaga Ramos watched the assault and believed Lucas-Vicente might kill Samol, so he called 911 for help.³When officers arrived, they found Samol lying on her back in the street with Lucas-Vicente "on top of" her.An officer told Lucas-Vicente to back away and wait by the patrol car, which he did.

¶3 Samol was crying and "trying to catch her breath."In a "raspy" voice, Samol told officers that Lucas-Vicente was " ‘trying to kill me’ while pointing to a belt" on the ground next to her.Officers saw blood on Samol's face; scratches on her face, neck, arms, and hands; what looked like human bite marks on her lip and neck; and "elongated red marks" on her neck consistent with strangulation by an object other than human hands.

¶4 Police arrested Lucas-Vicente and booked him into the King County jail.Lucas-Vicente then called Samol from jail.⁴During the recorded call, Lucas-Vicente told Samol, "Just don't bring charges" and, "Don't come [to court] tomorrow."Samol was concerned that her car was about to be towed, so she asked Lucas-Vicente, "Where are my keys."He said he would tell Samol where the keys were, but only if she agreed not to "go forward with anything" and not "go tomorrow."Samol rejected Lucas-Vicente's "blackmail" and said she was "going to present all of [the] evidence" showing he tried to "kill" her, "bite" her, and "pick up the belt and grab [her] by the neck."Lucas-Vicente told her repeatedly, "Don't do it. ...Don't do anything."

¶5The State charged Lucas-Vicente with second degree assault, felony harassment, and witness tampering, each with a domestic violence aggravator.A jury convicted Lucas-Vicente of all three crimes, including the domestic violence aggravators.

¶6 Lucas-Vicente appeals.

ANALYSIS

Unanimity Instruction

¶7 Lucas-Vicente claims that witness tampering is an alternative means crime and that the trial court erred in failing to instruct the jury on unanimity.The State argues that witness tampering is not an alternative means crime.⁵In the alternative, the State contends the trial court did not need to instruct the jury on unanimity because sufficient evidence satisfied each statutory alternative.

¶8We review the sufficiency of jury instructions de novo.State v. Clark-El, 196 Wash. App. 614, 619, 384 P.3d 627(2016)(citingState v. Brooks, 142 Wash. App. 842, 848, 176 P.3d 549(2008) ).Instructions are sufficient if they permit each party to argue its theory of the case, do not mislead the jury, and when read as a whole, properly inform the jury of the applicable law.State v. Mark, 94 Wash.2d 520, 526, 618 P.2d 73(1980);State v. Dana, 73 Wash.2d 533, 536, 439 P.2d 403(1968)("instructions must be read as a whole").The to-convict instruction carries special weight because it gives the jury a " ‘yardstick’ " to measure guilt or innocence.State v. Mills, 154 Wash.2d 1, 6, 109 P.3d 415(2005).

A.Alternative Means

¶9 Article I, section 21 of the Washington Constitution guarantees criminal defendants the right to a unanimous jury verdict.State v. Ortega-Martinez, 124 Wash.2d 702, 707, 881 P.2d 231(1994).This may also include the right to express jury unanimity on the means by which the defendant committed the crime.Id.When a defendant"is charged with (and the jury is instructed on) an alternative means crime, ... a particularized expression of jury unanimity is required" if there is insufficient evidence to support each of the means.State v. Owens, 180 Wash.2d 90, 95, 323 P.3d 1030(2014).

¶10 An alternative means crime is proscribed criminal conduct that the State may prove in various ways.State v. Smith, 159 Wash.2d 778, 784, 154 P.3d 873(2007).Because the legislature has not defined what constitutes an alternative means crime, we must evaluate each case on its own merits to determine whether a statute provides alternative means for committing a particular crime.State v. Peterson, 168 Wash.2d 763, 769, 230 P.3d 588(2010).Though there is no bright-line rule for making this determination, three main principles guide us.SeeOwens, 180 Wash.2d at 96, 323 P.3d 1030. ¶11 First, "a statute divided into subparts is more likely to be found to designate alternative means."State v. Lindsey, 177 Wash. App. 233, 241, 311 P.3d 61(2013)(citingState v. Al-Hamdani, 109 Wash. App. 599, 607, 36 P.3d 1103(2001) ).But using the disjunctive "or" in a list of ways to commit the crime does not necessarily mean that they are alternative means.Owens, 180 Wash.2d at 96, 323 P.3d 1030.Second, the statutory definitions of the elements of a crime seldom create alternative means for that crime.Id.Third, we focus on whether each alleged alternative describes distinct acts that amount to the same crime.State v. Sandholm, 184 Wash.2d 726, 734, 364 P.3d 87(2015).The more varied the criminal conduct, the more likely the statute describes alternative means.Id.;seealsoOwens, 180 Wash.2d at 97, 323 P.3d 1030("[A]lternative means should be distinguished based on how varied the actions are that could constitute the crime.").When the statute describes only minor nuances of the same act, it is more likely that the various "alternatives" are merely facets of the same criminal conduct.Sandholm, 184 Wash.2d at 734, 364 P.3d 87.

¶12 Under RCW 9A.72.120(1), a person commits the crime of witness tampering if he or she tries to induce a witness in an official proceeding to:

(a) Testify falsely or, without right or privilege to do so, to withhold any testimony; or

(b) Absent himself or herself from such proceedings; or

(c) Withhold from a law enforcement agency information which he or she has relevant to a criminal investigation.

¶13 Applying the principles discussed above, we conclude that witness tampering is an alternative means crime.First, the statute uses the disjunctive "or" between each subsection to distinguish conduct, suggesting the legislature intended alternative means.Second, the "alternatives" amount to more than mere definitions of essential terms of the crime.And third, each subsection is itself an essential element describing a distinct way that the defendant commits the crime—attempting to induce a witness’ testimony, appearance at an official proceeding, or cooperation with law enforcement's investigation.RCW 9A.72.120(1)(a)-(c).

¶14We reached the same conclusion for a similarly structured statute, interfering with the reporting of domestic violence.SeeState v. Nonog, 145 Wash. App. 802, 812-13, 187 P.3d 335(2008), aff'd, 169 Wash.2d 220, 237 P.3d 250(2010);RCW 9A.36.150.Under RCW 9A.36.150(1), a person commits the crime of interfering with the reporting of domestic violence if the person:

(a) Commits a crime of domestic violence, as defined in RCW 10.99.020; and

(b) Prevents or attempts to prevent the victim of or a witness to that domestic violence crime from calling a 911 emergency communication system, obtaining medical assistance, or making a report to any law enforcement official.

In concluding that the offense is an alternative means crime, we determined:

The variations [in RCW 9A.36.150(1) ] are themselves essential terms. ...Interfering with reporting of a crime of domestic violence .... does not criminalize all acts that might appear to constitute interfering with the reporting of domestic violence.Interference is culpable only when a victim or witness is trying to report the crime to a particular entity.

Nonog, 145 Wash. App. at 813, 187 P.3d 335.

¶15 Here, too, the variations in a witness’ conduct are themselves essential terms of the crime of tampering with a witness.Attempts to induce a witness are criminal only if they relate to the witness’ testimony in an official proceeding, appearance at an official proceeding, or willingness to provide information in a criminal investigation.⁶RCW 9A.72.120(1)(a)-(c).We agree with Lucas-Vicente that witness tampering is an alternative means crime.

B. To-Convict Jury Instruction

¶16 Lucas-Vicente next contends the court instructed the jury as to three alternative means of witness tampering: (1) inducing Samol to testify falsely, (2) inducing Samol to withhold testimony, and (3) inducing Samol to absent herself from an official proceeding.We disagree.

¶17 The alternative means analysis does not apply to subalternatives.State v. Christian, 18 Wash. App. 2d 185, 202, 489 P.3d 657, review denied, 198 Wash.2d 1024, 497 P.3d 394(2021).When a statute provides alternative ways to satisfy each alternative means (i.e., "a ‘means within [a] means’ "), the alternative means...