State Of Washington v. Paul Noah Espinoza

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  DIVISION ONE
                      Respondent,
                                                  No. 79413-2-I
               v.
                                                  PUBLISHED OPINION
 PAUL NOAH ESPINOZA,

                      Appellant.


       DWYER, J. — Following a jury trial in San Juan County Superior Court,

Paul Noah Espinoza was convicted of a single count of felony harassment after

making threats to two different people. On appeal, he avers that he was denied

his right to a unanimous jury verdict because the State did not elect or designate

a victim for the count charged and the jury was given no unanimity instruction.

We agree that the trial court erred by not instructing on the need for jury

unanimity. Accordingly, we reverse the conviction and remand for a new trial.

                                          I

       For several years, Dennis Harshbarger employed Paul Noah Espinoza. In

March 2018, while the two men were driving in Harshbarger’s truck, Espinoza

told Harshbarger that his gun rights had been restored and that he would be

getting a gun. Espinoza then stated that when he obtained a gun, he would go to

the residence of Chris Wilson and Rina Tappan, and “put some caps in their

home.” Over the course of a 20 minute conversation, Espinoza also stated that
No. 79413-2-I /2


he would “go over and shoot Chris Wilson.” Harshbarger later testified that

Espinoza was not laughing, his tone was “matter of fact,” he made these

statements several times, and he repeated them at work the next day.

      Several days later, Harshbarger saw Wilson at Wilson’s workplace and

“mentioned something to him.” Wilson testified that Harshbarger told him that

Espinoza “was going to get a weapon and come shoot up [Wilson’s] house.”

Wilson felt intimidated. He repeated this information to his fiancée, Tappan,

when he got home that evening. Tappan was “[t]errified,” “went into panic

mode,” and “called the [police right] away.” Wilson and Tappan gave statements

to the police that evening and stayed in a hotel until the next day when they

learned that Espinoza had been arrested.

      Wilson, Tappan, and Espinoza had all known each other for many years.

Tappan is a close friend of Espinoza’s sister. In the past, she had lived with

Espinoza as roommates. Espinoza was at one point in a romantic relationship

with Tappan’s sister. In December 2016, her sister called her and told Tappan

that Espinoza had hit her and that she had left the house. She asked Tappan to

go to the house and collect some of her belongings. Wilson accompanied

Tappan to the house. Tappan and Espinoza argued and Espinoza assaulted

Wilson. After this incident, although their families remained close, Tappan

attempted to avoid Espinoza. Wilson had no further contact with Espinoza after

December 2016.

      Espinoza was charged by information with threatening to kill “Christopher

R Wilson and/or Rina Sue Tappan.” At trial, the State did not elect between the




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No. 79413-2-I /3


two victims on the harassment charge. No unanimity instruction was given. The

to-convict instruction listed the elements of the crime as follows:

       (1) That on or between 3/1/2018 - 3/7/2018, the defendant
       knowingly threatened to kill Chris Wilson and/or Rina Tappan
       immediately or in the future;
       (2) That the words or conduct of the defendant placed Chris Wilson
       and/or Rina Tappan in reasonable fear that the threat to kill would
       be carried out;
       (3) That the defendant acted without lawful authority; and
       (4) That the threat was made or received in the State of
       Washington.

       A jury convicted Espinoza as charged. He now appeals.

                                          II

       Espinoza contends that because the jury was not provided with a

unanimity instruction, and the State did not elect whether Rina Tappan or Chris

Wilson was the victim of the crime, he was denied his right to a unanimous jury

verdict. Given the manner in which the crime was charged, we agree.

                                         A

       Under both the United States and Washington constitutions, a defendant

may not be convicted unless a unanimous jury concludes that the criminal act

charged in the information has been committed. Ramos v. Louisiana, ___U.S.

___, 140 S. Ct. 1390, 1396-97, 206 L. Ed. 2d 583 (2020); State v. Petrich, 101

Wn.2d 566, 569, 683 P.2d 173 (1984), abrogated on other grounds by State v.

Kitchen, 110 Wn.2d 403, 411, 765 P.2d 105 (1998). When the State charges

one count of criminal conduct, and presents evidence of more than one criminal

act, there is a danger that a conviction may not be based on a unanimous jury

finding that the defendant committed any given single criminal act. Kitchen, 110




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No. 79413-2-I /4


Wn.2d at 756. To ensure that all 12 jurors agree that the same criminal act has

been proved beyond a reasonable doubt, either the State must elect a single act

or the jurors must be instructed that they must be unanimous in deciding that the

same underlying criminal act has been proved beyond a reasonable

doubt. Petrich, 101 Wn.2d at 572.

       When a trial court does not properly instruct on jury unanimity, the error is

harmless only when all rational triers of fact would find that each alleged act was

proved beyond a reasonable doubt. Kitchen, 110 Wn.2d at 405-06.

       Here, the State charged Espinoza with a single count of felony

harassment of “Christopher R Wilson and/or Rina Sue Tappan.” Harassing

Wilson and harassing Tappan are two distinct crimes that could have been

charged in separate counts. See State v. Vidales Morales, 174 Wn. App. 370,

387, 298 P.3d 791 (2013) (holding that the unit of prosecution for felony

harassment is determined by the number of victims, not the number of repeated

threats); cf. In re Pers. Restraint of France, 199 Wn. App. 822, 839, 401 P.3d 336

(2017) (multiple units of prosecution may exist when the same victim is subjected

to different types of threats of harm made at different times and places).

       To prove Espinoza guilty of harassing Wilson in violation of RCW

9A.46.020(2)(b)(ii), the State was required to prove (1) that Espinoza threatened

Wilson by threatening to kill Wilson or any other person, and (2) that Wilson was

placed in reasonable fear that the threat would be carried out. Similarly, to prove

Espinoza guilty of harassing Tappan in violation of RCW 9A.46.020(2)(b)(ii), the

State was required to prove (1) that Espinoza threatened Tappan by threatening




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No. 79413-2-I /5


to kill Tappan or any other person, and (2) that Tappan was placed in reasonable

fear that the threat would be carried out.

       Our Supreme Court has clarified that the words “person threatened,” as it

appears in the harassment statute, mean the person who is the target of the

coercion, intimidation, or humiliation against which the statute intends to

protect. State v. J.M., 144 Wn.2d 472, 488, 28 P.3d 720 (2001). The statute

contemplates that a person may be threatened by a threat to another—for

example, a parent might be threatened by a threat to his or her child. J.M, 144

Wn.2d at 488. For a threat to kill to constitute felony harassment pursuant to

RCW 9A.46.020(2)(b)(ii), it is the threatened person who must be placed in

reasonable fear that the threat will be carried out.

       Here, the State charged two crimes in a single count using “and/or” to

identify the victim. Unfortunately, the jury instructions permitted Espinoza to be

convicted by a jury that might not have found Espinoza guilty on either charge if

the two crimes had been charged separately. For example, the jury instructions

permitted the jury to find Espinoza guilty if six jurors believed that only Wilson

was threatened while the other six believed that only Tappan was threatened.

       Therefore, either an election or a unanimity instruction was required to

ensure that all 12 jurors agreed in finding beyond a reasonable doubt that (1)

Wilson was the person threatened and placed in reasonable fear, or (2) that

Tappan was the person threatened and placed in reasonable fear, or (3) that

both Wilson and Tappan were threatened and placed in reasonable fear. A




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No. 79413-2-I /6


unanimous jury finding on any of these options would comport with the

constitutional jury unanimity requirement.

       When a verdict is challenged on the basis of evidentiary insufficiency, we

employ the well-known standard articulated in Jackson v. Virginia, 443 U.S. 307,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and adopted by our Supreme Court

in State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980). This standard is that a

constitutionally sufficient quantum of evidence supports a conviction when “‘after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Green, 94 Wn.2d at 221 (emphasis omitted)

(quoting Jackson, 443 U.S. at 319).

       A predicate for resort to that standard, however, is the existence of a

unanimous jury verdict or trial court finding of guilt. Thus, we do not employ

the Jackson standard in determining whether the error herein described was

harmless. Indeed, in our analysis, we do not grant the State the benefit of

disputed evidence, disputed witness credibility, and the like.

       There was, at trial, a factual dispute as to whether Espinoza’s threat to kill

was directed only at Wilson. Likewise, it was disputed whether Wilson was

proved to have felt threatened, given that (unlike Tappan) he did not immediately

summon police assistance upon learning of the threat. Similarly, Espinoza’s

counsel raised questions of the credibility and bias of both Wilson and Tappan

given the disharmonious history of Espinoza’s prior dealings with the couple. In

assessing harmless error, it is the defendant—and not the government—who




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No. 79413-2-I /7


benefits from these contested matters. We cannot declare that the error was

harmless.

       Thus, reversal is required.

                                          B

       The State nevertheless asserts that it was not required to elect a victim

because felony harassment pursuant to RCW 9A.46.020(2)(b)(ii) is an alternative

means crime, and both the two ways of proving subsection (2)(b)(ii) and the two

possible victims constituted alternative means by which the crime could be

committed. In so contending, the State reveals its misapprehension of its own

action in charging Espinoza. It did not charge a single alternative means crime in

“count one.” Rather, it charged two separate crimes in that single count. It was

free to do so, but it cannot alter the constitutional imperative of jury unanimity

simply by employing an unusual approach to alleging the commission of crimes.

       When a defendant is charged with an alternative means crime, the jury

need not be unanimous as to the means by which the crime was committed, so

long as there is sufficient evidence to support each of the alternative

means. State v. Owens, 180 Wn.2d 90, 95-96, 323 P.3d 1030 (2014). If there is

not, in order to return a valid verdict, the jury must unanimously convict the

defendant of the crime by a means supported by a constitutionally sufficient

quantum of evidence. An alternative means crime is one “that provide[s] that the

proscribed criminal conduct may be proved in a variety of ways.” State v. Smith,

159 Wn.2d 778, 784, 154 P.3d 873 (2007). Absent an expression of legislative

intent to the contrary, the alternative means doctrine—as applied to a particular




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No. 79413-2-I /8


crime—is limited to those alternative means directly provided for by the statute

defining the crime. Smith, 159 Wn.2d at 789-90.

       Whether a statute creates an alternative means crime and what those

means are present questions of statutory interpretation. Owens, 180 Wn.2d at

96. Although each case must be determined on its own merits, Washington

courts have established several principles to guide this analysis. The use of a

disjunctive “or” in a list of methods of committing the crime does not necessarily

create alternative means of committing the crime, nor does the presence of

statutory subsections. State v. Barboza-Cortes, 194 Wn.2d 639, 643-44, 451

P.3d. 707 (2019) (citing State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87

(2015)).

       Alternative means describe “‘distinct acts that amount to the same

crime.’” Barboza-Cortes, 194 Wn.2d at 644 (internal quotation marks omitted)

(quoting Sandholm, 184 Wn.2d at 734). When the alleged alternatives are

“‘minor nuances inhering in the same act,’” these “alternatives” are more

accurately categorized as “‘facets of the same criminal conduct.’” Barboza-

Cortes, 194 Wn.2d at 644 (quoting Sandholm, 184 Wn.2d at 734). Our Supreme

Court has explained that the alternative means analysis does not apply to

“subalternatives”:

       Yet, a defendant may not simply point to an instruction or statute
       that is phrased in the disjunctive in order to trigger a substantial
       evidence review of her conviction. Likewise, where a disputed
       instruction involves alternatives that may be characterized as a
       “‘means within [a] means,’” the constitutional right to a unanimous
       jury verdict is not implicated and the alternative means doctrine
       does not apply. In re Pers. Restraint of Jeffries, 110 Wn.2d 326,
       339, 752 P.2d 1338 (1988) (refusing to accept defendant's claim



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No. 79413-2-I /9


      that the jury should be additionally instructed on the subalternatives
      of the statutory alternatives at issue).

Smith, 159 Wn. 2d at 783.

      Hence, a statutory provision “that provides a means within a means does

not identify an alternative means crime.” State v. Roy, 12 Wn. App. 2d 968, 974,

466 P.3d 1142, review denied, 471 P.3d 220 (2020).

      Here, the statute at issue is RCW 9A.46.020:

      (1) A person is guilty of harassment if:
              (a) Without lawful authority, the person knowingly threatens:
              (i) To cause bodily injury immediately or in the future to the
      person threatened or to any other person; or
              (ii) To cause physical damage to the property of a person
      other than the actor; or
              (iii) To subject the person threatened or any other person to
      physical confinement or restraint; or
              (iv) Maliciously to do any other act which is intended to
      substantially harm the person threatened or another with respect to
      his or her physical or mental health or safety; and
              (b) The person by words or conduct places the person
      threatened in reasonable fear that the threat will be carried out.
      “Words or conduct” includes, in addition to any other form of
      communication or conduct, the sending of an electronic
      communication.
              (2)(a) Except as provided in (b) of this subsection, a person
      who harasses another is guilty of a gross misdemeanor.
              (b) A person who harasses another is guilty of a class C
      felony if any of the following apply: (i) The person has previously
      been convicted in this or any other state of any crime of
      harassment, as defined in RCW 9A.46.060, of the same victim or
      members of the victim’s family or household or any person
      specifically named in a no-contact or no-harassment order; (ii) the
      person harasses another person under subsection (1)(a)(i) of this
      section by threatening to kill the person threatened or any other
      person; (iii) the person harasses a criminal justice participant who is
      performing his or her official duties at the time the threat is made; or
      (iv) the person harasses a criminal justice participant because of an
      action taken or decision made by the criminal justice participant
      during the performance of his or her official duties. For the
      purposes of (b)(iii) and (iv) of this subsection, the fear from the
      threat must be a fear that a reasonable criminal justice participant



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No. 79413-2-I /10


       would have under all the circumstances. Threatening words do not
       constitute harassment if it is apparent to the criminal justice
       participant that the person does not have the present and future
       ability to carry out the threat.
                (3) Any criminal justice participant who is a target for threats
       or harassment prohibited under subsection (2)(b)(iii) or (iv) of this
       section, and any family members residing with him or her, shall be
       eligible for the address confidentiality program created under RCW
       40.24.030.
                (4) For purposes of this section, a criminal justice participant
       includes any (a) federal, state, or local law enforcement agency
       employee; (b) federal, state, or local prosecuting attorney or deputy
       prosecuting attorney; (c) staff member of any adult corrections
       institution or local adult detention facility; (d) staff member of any
       juvenile corrections institution or local juvenile detention facility; (e)
       community corrections officer, probation, or parole officer; (f)
       member of the indeterminate sentence review board; (g) advocate
       from a crime victim/witness program; or (h) defense attorney.

       Subsection (2)(a) of RCW 9A.46.020 designates the base crime set forth

in subsection (1) as a gross misdemeanor. The gross misdemeanor crime is an

alternative means crime, with the four alternatives set forth in subsection (1)(a)(i)-

(iv). Vidales Morales, 174 Wn. App at 377. Subsection (2)(b) provides that in

four specific circumstances, the crime in subsection (1) can be elevated to a

class C felony. The plain language of the statute makes clear that subsection

(2)(b) sets forth the four alternate means of committing class C felony

harassment in (i), (ii), (iii), and (iv). The alternatives set forth within subsection

(2)(b)(ii) are, therefore, “subalternatives.” See Jeffries, 110 Wn.2d at

338; accord Smith, 159 Wn. 2d at 783. Because our jurisprudence does not

make special rules applicable to “means within a means” or “subalternatives,” the

alternative means doctrine does not apply to the subalternatives of subsection

(2)(b)(ii). See Jeffries, 110 Wn.2d at 338; accord Smith, 159 Wn.2d at 783.




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No. 79413-2-I /11


       Consistent with this plain reading analysis, we previously determined that

the similar language of RCW 9A.46.020(1)(a)(i), “To cause bodily injury

immediately or in the future to the person threatened or to any other person,”

created a single means of committing the crime, not two alternative

means. State v. G.S., 104 Wn. App. 643, 647-50, 17 P.3d 1221

(2001), abrogated on other grounds by State v. J.M., 144 Wn.2d 472, 28 P.3d

720 (2001). The G.S. court reasoned that because the legislature had set forth

four subsections describing alternative means of committing the base crime of

gross misdemeanor harassment, the first subsection did not create two separate

means:

                Had the Legislature intended the conduct described in
       subsection (i) to constitute two alternative means of committing
       harassment, it could have specifically set forth those alternatives in
       two separate subsections as it did in the remainder of section
       (1)(a). Because the Legislature chose not to do so, we conclude
       that it intended the threat to cause bodily injury to be one means,
       not two, of committing the offense.

G.S., 104 Wn. App. at 650.

       Similarly, here, had the legislature intended that subsection (2)(b)(ii)

create two distinct alternative means, it could have set forth those alternatives in

two different subsections, as it did in the rest of subsection (2)(b). It did not.

       Resort to the alternative means doctrine does not rescue the State from its

decision not to make an election or seek a unanimity instruction.

       Similarly, subsection (2)(b)(ii) does not create “distinct acts,” but, rather,

facets of the same criminal conduct. Whether a person threatens someone by

threatening to kill them, or by threatening to kill someone else, the conduct is




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No. 79413-2-I /12


fundamentally the same. Cf. Sandholm, 184 Wn.2d at 735 (holding that which

substance or substances cause a person to be under the influence does not

change the fundamental nature of the criminal act of driving under the influence).

        For these reasons, RCW 9A.46.020(2)(b)(ii), which elevates harassment

to a felony, does not itself describe an alternative means crime. The State’s

contentions to the contrary are without merit.

        Neither does the identification of two victims create an alternative means

crime. Harassing two individuals in violation of RCW 9A.46.020(2)(b)(ii) does not

constitute alternative means of committing a crime but, rather, constitutes the

commission of two distinct crimes. Thus, jury unanimity was required as to which

crime, if either, Espinoza was proved to have committed. The jury’s verdict does

not declare the answer to this most important question. 1

                                               C

        Espinoza also contends that our Supreme Court wrongly decided the case

of State v. Trey M., 186 Wn.2d 884, 383 P.3d 474 (2016). If that case had been

correctly decided, he avers, the evidence adduced at trial would have been

insufficient to support the jury’s verdict of guilt.

        It may be that Espinoza is not the first to find fault with a result of the

labors of our State’s highest court. As in all other such circumstances, however,

we remain bound to follow Supreme Court decisions. State v. Gore, 101 Wn.2d




        1 When the State presents evidence of a “continuing course of conduct” comprised of

several acts that could be the basis of a criminal charge, the jury need not be unanimous as to
which of the defendant’s specific acts constituted the crime. State v. Handran, 113 Wn.2d 11, 17,
775 P.2d 453 (1989). This doctrine encompasses the several threats made by Espinoza. His
appellate suggestions to the contrary are without merit.


                                               12
No. 79413-2-I /13


481, 487, 681 P.2d 227 (1984). Espinoza’s present lament does not establish an

entitlement to appellate relief.




                                     13
No. 79413-2-I /14


      Reversed and remanded.




WE CONCUR:




                               14
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