In State v. Owens, the Washington Supreme Court interpreted the statute establishing the crime of first degree trafficking in stolen property as establishing only two ways of committing the crime: stealing property for sale to others or trafficking stolen property. In the case before the court, the jury verdict was deemed proper because there was sufficient evidence to prove that Owens both stole and trafficked the car.
Unlike federal law, Washington requires that a jury unanimously agree not only that a defendant committed a crime but also to agree how the defendant committed a crime. In order to ensure all twelve jurors agreed on the means by which a crime was committed, appeals courts in Washington look to see if the jury was given a special verdict form that required them to indicate how the defendant committed the crime. If the trial court failed to give the jury this form, the appellate court will review the case and only affirm the conviction if sufficient evidence supports every possible way of committing the crime under the statute.
In the case against Owens, the trial court did not give the jury a special verdict form requiring them to choose which means by which Owens committed the act of first degree trafficking. The lower court of appeals decided that the crime of trafficking stolen property could be committed eight ways: 1) initiating the theft of property or 2) organizing the theft of property or 3) planning the theft of property or 4) financing the theft of property or 5) directing the theft of property or 6) managing the theft of property or 7) supervising the theft of property or 8) trafficking stolen goods. Because the court did not see sufficient evidence for one of these eight ways, it reversed the conviction for lack of unanimity as to the means by which the crime was committed.
The Supreme Court unanimously rejected the lower appeals court analysis and instead held that the statutory phrase, “initiates, organizes, plans, finances, directs, manages or supervises the theft of property” together described one means of committing the crime: stealing goods so they can be sold. The court found that the first seven acts were so similar they were not alternative means or acts but “different ways of committing one act, specifically stealing.” The court declined to subject this one means of committing first degree trafficking to a “means within a means” analysis based on a list of words that together merely defined stealing for purposes of the trafficking statute. In so holding, the Court noted that the legislature’s use of the word “or” in the statute did not create alternative means of committing a crime where the words listed were too similar to describe conduct that varies significantly.
The State asked the Supreme Court to revisit the rule requiring jury unanimity as to means because this rule is inconsistent with federal criminal practice. The Court declined to do so. Instead, in a footnote, the Court affirmed that Washington’s rule was rooted in the state constitution and supported by 30 years of state case law.
The Supreme Court reaffirmed Washington’s strong independent basis for civil liberty protections by continuing to insist that a jury must be able to unanimously agree how a defendant committed a crime in order to convict him. In practice, this unanimity requirement is much tempered by the courts review of general verdicts for sufficient evidence rather than proof beyond a reasonable doubt to support each possible means of committing the crime. The Court’s decision to affirm Owens’ conviction was therefore an act of prudent statutory interpretation, allowing the legislature to define concepts through lists of near-synonyms without unintentionally creating separate means or elements of a crime. As the Court noted, it would be strange for a jury to convict someone of managing but not supervising or directing an act of theft.