State Of Washington, Res. v. Nelson Dean Strunk, App. ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON oo
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STATE OF WASHINGTON, —Jkb
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No. 69935-1-1 S9
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Respondent, CO
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DIVISION ONE
v.
NELSON DEAN STRUNK, UNPUBLISHED OPINION
Appellant. FILED: April 28, 2014
Becker, J. — The right to jury unanimity in a residential burglary case
does not include unanimous agreement as to the means of committing a crime
where sufficient evidence supports both alternatives. The prosecutor in this case
stated the law correctly when he told the jury they did not have to be unanimous
as to the means.
Appellant Nelson Dean Strunk was charged with one count of second TATE URT
degree burglary arising out of an incident that occurred on October 26, 2011. A
jury convicted him as charged on January 23, 2012. On appeal, Strunk contends
the prosecutor committed misconduct by misstating the jury unanimity
requirement in his closing argument:
See, the jury instructions tell you that a person commits the crime
of residential burglary if they either enter or remain with the intent
to commit a crime. And, in fact, six of you can come back guilty
No. 69935-1-1/2
that he intended to enter the house to commit a crime. Six of you
can come back and believe that he remained with the intent to
commit... a crime. That's fine. It's either/or.
Defense counsel objected. The objection was overruled.
Jury verdicts in criminal cases must be unanimous as to the crime
charged. State v. Ortega-Martinez. 124 Wash. 2d 702, 707, 881 P.2d 231 (1994),
citing Wash. Const, art 1, § 21. Strunk relies on State v. Kitchen. 110 Wash. 2d
403, 756 P.2d 105 (1988), and State v. Petrich. 101 Wash. 2d 566, 683 P.2d 173
(1984). But Kitchen and Petrich are multiple acts cases, not alternative means
cases. In a multiple acts case, all 12 jurors must agree on the particular act the
defendant committed. Kitchen, 110 Wash. 2d at 409. In contrast, unanimity is not
required in an alternative means case where all alternative means are supported
by sufficient evidence:
The threshold test governing whether unanimity is required
on an underlying means of committing a crime is whether sufficient
evidence exists to support each of the alternative means presented
to the jury. Ifthe evidence is sufficient to support each of the
alternative means submitted to the jury, a particularized expression
of unanimity as to the means by which the defendant committed the
crime is unnecessary to affirm a conviction because we infer that
the jury rested its decision on a unanimous finding as to the means.
Ortega-Martinez. 124 Wash. 2d at 707-08.
Residential burglary is an alternative means crime—it can be committed
by entering unlawfully with intent to commit a crime or remaining unlawfully with
intent to commit a crime. RCW 9A.52.030(1); State v. Allen, 127 Wash. App. 125,
131, 110 P.3d 849 (2005). Where sufficient evidence supports each alternative
means, the jury need not unanimously decide on one. Ortega-Martinez, 124
No. 69935-1-1/3
Wn.2d at 707-08: State v. Spencer. 128 Wash. App. 132, 141-44, 114 P.3d 1222
(2005) (applying this rule to residential burglary).
Strunk did not argue below, and does not argue now, that the evidence
was insufficient to support one of the alternative means. The prosecutor did not
misstate the law.
Affirmed.
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WE CONCUR: Cj