Domestic violence violation of a protection order is generally a gross misdemeanor under Washington law, but it can be a class C felony if a violation of the order is also an assault or if the defendant has at least two prior convictions for violating a protection order. RCW 26.50.110. The Washington Supreme Court considered whether a jury has to reach a unanimous decision as to which of these alternatives forms the basis of the verdict in a recent case.
At the time of the incident, there was a no-contact order prohibiting the defendant from contacting his former partner. When the defendant’s former partner learned that he was at a nearby bus, she went there to address some items she had to return to him. She testified that the defendant got angry and struck her twice. She then ran to a gas station, and the defendant followed her. The store clerk testified that the defendant followed the woman around the store for several minutes. The defendant left the store when the clerk called the police.
The jury was instructed that there were five elements that must be proved beyond a reasonable doubt. One of those elements was that either the defendant’s conduct was an assault, or the defendant had been convicted of violating a court order twice previously. The court instructed that these were alternative elements, and the jury did not have to be unanimous as to which of the two alternatives had been proved, as long as each juror found that one of the alternatives was proved. The defendant did not object to the instruction or to the prosecutor’s discussion of the instruction in the closing argument.
The jury returned a guilty verdict, and the appeals court affirmed it. The defendant then petitioned the Washington Supreme Court for review, arguing that his right to a unanimous verdict was denied due to the instruction.
Under Washington law, criminal defendants are entitled to a unanimous jury verdict. Washington case law, however, holds that when substantial evidence supports both alternative means, the jury does not have to reach unanimity as to the means. A crime is an alternative means crime if the law allows the prosecution to prove the criminal conduct in more than one way. The parties to this case agreed that the charged crime is an alternative means crime.
The Court noted that it had upheld unanimous jury verdicts based on alternative means when the jury did not specify which of the means formed the basis for the verdict for more than 75 years. To succeed in overturning that precedent, the defendant would have to show that the rule was incorrect and harmful or that the prior decision was so problematic that the Court had to reject it.
The Washington Supreme Court found sufficient evidence to support either alternative. Evidence is sufficient if a rational trier of fact could find the defendant guilty beyond a reasonable doubt. The woman had testified that the defendant struck her twice, and the officers testified that she had abrasions. This evidence supported a finding of assault. A finding of two prior convictions was supported by the detective’s testimony that the defendant had two previous convictions for violating a court order and the judgments and sentences from those convictions.
The defendant argued that the trial court committed an affirmative constitutional error when it instructed the jury that it did not have to be unanimous. The defendant based his argument on language in Ortega-Martinez that stated that in some situations, the right to a unanimous jury trial includes the right to unanimity on the means. In that case, the court also suggested that a lack of express unanimity is acceptable in some cases because the court infers unanimity. The current court found this language was unnecessary and unsupported by the cited cases. Ortega-Martinez held that unanimity was not required in the case before it because there was sufficient evidence to support both of the alternative means.
The court here noted that if there was insufficient evidence to support one of the alternative means, and the jury did not specify that it had unanimously agreed on the other, the conviction could not stand. Since there was sufficient evidence to support each alternative, there was no issue with the defendant’s right to unanimity.
The defendant also argued that the police violated his due process right by failing to obtain surveillance video after using the existence of the video as a tool in the defendant’s interview. The defendant argued that the evidence was “potentially useful.” A failure to preserve potentially useful evidence is only a denial of due process if the defendant can show bad faith by making specific factual allegations that show an improper motive by the state.
The defendant argued the police acted in bad faith because they told him they would collect the video but did not do so. The Washington Supreme Court found the defendant had not shown bad faith. He did not present evidence of an improper motive, and the officers’ testimony indicated the failure to obtain the video was an oversight. Additionally, the defendant conceded there was no written policy that required the police to obtain the video.
The Washington Supreme Court affirmed the defendant’s conviction. Justice McCloud dissented, however, taking the position that this was not an alternative means case but was instead an alternative crimes case that required unanimity. He stated that he would call for briefing on this issue.
This case shows two potential arguments for defendants in felony domestic violence violation of a court order cases. First, a defendant may consider raising the argument identified by Justice McCloud in his dissent. If a defendant successfully argues that the alternatives are alternative crimes rather than alternative means, he or she would be entitled to unanimity in the jury’s verdict as to which alternative forms the basis of the conviction. Since the defendant in this case conceded that it was an alternative means crime, the court did not have to decide that issue.
Additionally, if the charged crime is determined to be an alternative means crime, a defendant may also challenge the sufficiency of the evidence as to the alternatives. As noted by the court, if there is not sufficient evidence to support one of the alternatives, a verdict that does not specify which alternative formed the basis of the conviction cannot stand.
The Washington civil protection order attorneys at Blair & Kim, PLLC, aggressively defend our clients. If a protection order is being pursued against you, or you are facing criminal charges related to an alleged violation of an order, call us at (206) 622-6562 to discuss your case.
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