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Washington Appeals Court Reverses Conviction For Lack of Unanimous Jury Verdict

For a Washington criminal defendant to be convicted, both the U.S. and Washington constitutions require a unanimous jury to find the charged criminal act has been committed.  A unanimous jury can be an issue where the state charges only a single count but presents evidence of multiple criminal acts.  If the state does not choose a single act, then the jurors should be instructed that they must unanimously find the same criminal act was proved beyond a reasonable doubt in order to convict.  A defendant recently challenged his conviction on the grounds he was denied his right to a unanimous jury verdict after the trial court failed to provide a unanimity instruction.

The state charged the defendant with one count of felony harassment of “[alleged male victim] and/or [alleged female victim].”  The appeals court noted that harassing each of the alleged victims would be two distinct crimes that could have been charged as separate counts.  The jury was not given a unanimous verdict instruction.

To prove felony harassment under RCW 9A.46.020(2)(b)(ii), the state had to prove the defendant threatened the alleged victim by “threatening to kill the person threatened or any other person,” and that the threatened person reasonably feared the threat would be carried out.  The Washington Supreme Court has held that the “person threatened” is the person who is the target of the coercion or intimidation.  A person may be threatened by a threat against another person.  To prove felony harassment, the state must show that the threatened person had a reasonable fear the threat would be carried out.

The appeals court noted it was possible the jury would not have convicted the defendant if the crimes had been charged separately.  Some of the jurors could have found him guilty based on a belief he threatened the alleged male victim, while others could have believed he threatened the female victim.  The jury instructions did not require all of the jurors to find him guilty based on the same crime.  The appeals court noted the state should have elected a single crime or the court should have provided a unanimity instruction.

Because there was no unanimous jury verdict, the appeals court did not give the state the benefit of disputed evidence, but instead gave the benefit to the defendant.  There were factual disputes at trial as to whether the defendant’s threat was directed only at the alleged male victim and whether the alleged male victim felt threatened.  The defendant raised questions of the credibility of both alleged victims.  The appeals court therefore could not conclude the error had been harmless.

The state argued that felony harassment under RCW 9A.46.020(2)(b)(ii) is an alternative means crime so it did not have to elect a victim.  The appeals court found, however that the state had not charged one alternative means crime but had instead charged two separate crimes as a single count.

A crime is an alternative means crime if the criminal conduct “may be proved in a variety of ways.”  State v. Smith. The jury does not have to be unanimous about which means was involved in the commission of an alternative means crime if there is sufficient evidence to support each means.

The appeals court found that there were four alternate means under RCW 9A.46.020(2)(b) to commit class C felony harassment.  These means were separated into subsections (i), (ii), (iii), and (iv).  The language within section (2)(b)(ii) (“by threatening to kill the person threatened or any other person”), however, constitutes sub-alternatives, so the alternative means doctrine does not apply.  If the legislature had intended to create distinct alternatives, it could have separated them into separate subsections instead of including them together under (2)(b)(ii).  RCW 9A.46.020(2)(b)(ii) is not an alternative means crime in itself.  The appeals court further found that identifying two victims did not create an alternative means crime.

The appeals court reversed the conviction and remanded the case.

If you may be charged with a crime, the experienced Washington criminal defense attorneys at Blair & Kim, PLLC, can help you protect your rights.  Call us at (206) 622-6562 to schedule an appointment.

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