State v. Sandholm
| Decision Date | 03 December 2015 |
| Docket Number | No. 90246–1.,90246–1. |
| Citation | 184 Wash.2d 726,364 P.3d 87 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Kenneth Wayne SANDHOLM, Respondent. |
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Amy R. Meckling, King County Prosecutor's Office, Seattle, WA, Counsel for Petitioner.
Washington Appellate Project, David L. Donnan, Gregory Charles Link, Washington Appellate Project, Seattle, WA, Counsel for Respondent.
¶ 1 This case involves an interpretation of former RCW 46.61.502 (2008), driving under the influence (DUI), and a determination of the number of alternative means of committing an offense established by the statute. Depending on that determination, we decide whether sufficient evidence supports the conviction. Also, this case involves how offender scores for prior convictions are calculated under former RCW 9.94A.525 (2008).
¶ 2 The Court of Appeals held that the statute established three alternative means and that the jury instructions were error but harmless in this case. The Court of Appeals vacated the sentence and concluded that RCW 9.94A.525(2)(e) creates an exclusive scoring provision when the conviction is for felony DUI. We affirm the conviction and hold that former RCW 46.61.502 (2008) creates two alternative means of committing DUI. We reverse the Court of Appeals and reinstate the trial court's sentencing calculation.
¶ 3 In October 2009, a Washington State Patrol trooper observed a truck, driven by Kenneth Wayne Sandholm, drifting back and forth outside of driving lanes and moving at an erratic speed. After pulling the truck over, the trooper noticed that Sandholm had watery, bloodshot eyes and smelled of alcohol. Sandholm also slurred his speech and displayed poor coordination. He displayed six out of six signs of possible intoxication during his field sobriety test. The trooper arrested Sandholm. Breath alcohol tests, taken approximately two hours later, showed that Sandholm had a blood alcohol content (BAC) of .079 and .080.
¶ 4 The State charged Sandholm with felony DUI, former RCW 46.61.502(6)(a) (2008), based on Sandholm having four or more prior DUI offenses within 10 years. Specifically, the State charged Sandholm under former RCW 46.61.502 (2008)1 with driving while "under the influence of or affected by intoxicating liquor or any drug; and while under the combined influence of or affected by intoxicating liquor and any drug; having at least four prior offenses, as defined under [former] RCW 46.61.5055(14)(a) [ (2008) ] within ten years of the arrest for the current offense." Clerk's Papers at 329. At trial, the State presented evidence of Sandholm's physical condition, his failed field sobriety tests, his BAC level, and his own admission that he had drunk whiskey earlier in the night. It did not present evidence that Sandholm was under the influence of any drug or advance such a theory of the case. Sandholm himself, however, testified that earlier on the day of his arrest, he had taken Orajel and ibuprofen to soothe a toothache, and that when those remedies failed, he turned to whiskey. The "to convict" instructions provided to the jury presented two alternative statutory means to commit DUI: either that Sandholm was under the influence of alcohol or drugs, or that Sandholm was under the combined influence of alcohol and drugs. 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 92.02, at 274–75 (3d ed. 2008) (WPIC). The trial judge also instructed the jury that it did not need to be unanimous as to the means by which it returned a guilty verdict. Sandholm objected to inclusion of the combined influence of alcohol and drugs instruction, arguing that there was "absolutely zero testimony anywhere in the record that any of these things can impair an individual to the slightest degree or their driving." Verbatim Report of Proceedings (Feb. 9, 2012) at 100. During closing argument, the State exclusively discussed evidence of Sandholm's drinking, never mentioning the use of ibuprofen or Orajel. The jury convicted Sandholm. At sentencing, the trial court calculated his offender score as 8: six prior DUI convictions (1998, 1999, 2000, 2005, 2007, 2008), plus two drug convictions (1997, 2000).
¶ 5 Sandholm appealed, arguing that his conviction violated his right to a unanimous verdict and that the trial court miscalculated his offender score. The Court of Appeals affirmed his conviction. It held that the jury instruction was erroneous, and that there was no evidence to support a conviction on the combined influence of alcohol and drugs alternative means. However, following its holdings in State v. Bland, 71 Wash.App. 345, 860 P.2d 1046 (1993), and State v. Rivas, 97 Wash.App. 349, 984 P.2d 432 (1999), the Court of Appeals held that the error was harmless: although the jury was instructed on two alternative means, no evidence (in contrast to simply insufficient evidence) was presented on one of those means, i.e., the combined influence of alcohol and drugs. Therefore, it concluded that a rational jury could not have found for a means supported by no evidence and could have found Sandholm guilty only if it had unanimously agreed that he drove under the influence of alcohol or drugs: in essence, a harmlessness analysis. The parties did not address whether former RCW 46.61.502 (2008) creates alternative means to commit the crime. Rather, the parties and the Court of Appeals appear to have relied on WPIC 92.02, which in turn relies on State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982). Franco observed that former RCW 46.61.502 (1979) created three alternative means to commit the crime of DUI.
¶ 6 The Court of Appeals also concluded that the trial court's calculation of Sandholm's offender score was erroneous. Relying on its opinion in State v. Morales, 168 Wash.App. 489, 278 P.3d 668 (2012), it reasoned that the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, provision for calculating an offender score for a felony DUI conviction, former RCW 9.94A.525(2)(e) (2008), set out an exclusive list of relevant prior offenses and concluded that prior drug convictions were not among that list. The Court of Appeals remanded for resentencing with an offender score of 6. The State was granted review on the offender score issue and Sandholm on the jury unanimity issue. State v. Sandholm, noted at 179 Wash.App. 1030, 2014 WL 645031, review granted in part, 180 Wash.2d 1027, 331 P.3d 1173 (2014). After the case was argued, we called for additional briefing on whether in light of the reasoning of State v. Peterson, 168 Wash.2d 763, 230 P.3d 588 (2010), and State v. Owens, 180 Wash.2d 90, 323 P.3d 1030 (2014), the interpretation of former RCW 46.61.502(1) (1979) under Franco, 96 Wash.2d 816, 639 P.2d 1320, remains valid or should be overruled as incorrect and harmful. The supplemental briefs were filed on October 15.
¶ 7 Criminal defendants have the right to a unanimous jury verdict. WASH. CONST. art. I, § 21. In alternative means cases, where the criminal offense can be committed in more than one way, we have announced a rule that an expression of jury unanimity is not required provided each alternative means presented to the jury is supported by sufficient evidence. But when insufficient evidence supports one or more of the alternative means presented to the jury, the conviction will not be affirmed. State v. Ortega–Martinez, 124 Wash.2d 702, 707–08, 881 P.2d 231 (1994).
¶ 8 Determining which statutes create alternative means crimes is left to judicial interpretation. Peterson, 168 Wash.2d at 769, 230 P.3d 588. This review begins by analyzing the language of the criminal statute at issue. See Owens, 180 Wash.2d at 96, 323 P.3d 1030. Only if the statute creates alternative means do we then proceed to analyze an alleged unanimity issue.
¶ 9 This court said in Franco that the then-existing statute, former RCW 46.61.502 (1979), created three alternative means to commit the offense of DUI.
Franco, 96 Wash.2d at 821, 639 P.2d 1320. The question we must resolve first in this case is whether the analytical framework Franco applied is consistent with our current cases involving alternative means.
¶ 10 The DUI statute, RCW 46.61.502, has been revised since Franco, and as it was applicable at the time of Sandholm's conviction, read:
Former RCW 46.61.502 (2008). Franco held that the former statute, which is nearly identical to the statute applicable to Sandholm,2 created three alternative means, one for each subsection (a), (b), and (c). The court in Franco found the "or" between the subsections in the statute highly persuasive. Franco, 96 Wash.2d at 821, 639 P.2d 1320. Respondent also now focuses on the use of the disjunctive "or" in subsection (b) and conjunctive "and" in subsection (c) and asserts that the State cannot present evidence of the presence of both drugs and alcohol and argue that the person's driving was affected without establishing which caused impairment; to do so would improperly render subsection (c) superfluous. This argument is similar to another made by the respondent, that the "in violation" language used in the affirmative defense subsection followed by reference to specific subsections suggests that the former 2008 statute describes three distinct alternatives.
¶ 11 But under our...
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