State Of Washington, Respondent V. David Earl Woodlyn, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent, 	]
) 	No. 71311-6-1 	.2.
GS 	.—'. C"
DIVISION ONE 	^ 	nv
V.
DAVID EARL WOODLYN, 	j UNPUBLISHED OPINION^ 	*g;
Appellant. 	] 	FILED: March 9, 2015 	-.-.- 	££
Appelwick, J. — Woodlyn appeals his conviction for theft in the second degree.
The State charged and the trial court instructed the jury on two alternative means of
committing theft. 	He claims the evidence was insufficient to support one of the means
so his conviction should be reversed. 	We can determine from the record that the jury's
verdict was based on only one means and it is undisputed that substantial evidence
supports that means. 	We affirm.
FACTS
In the summer of 2011, Dora Kjellerson was in her mid-70s and living in her
home in the White Center neighborhood in Seattle where she had resided for many
years. 	A niece was staying with Kjellerson off and on during that summer. 	Family
members were increasingly concerned about the decline in Kjellerson's mental status.
For instance, Kjellerson would sometimes forget who her sister was or would get lost on
walks around her neighborhood.
Kjellerson did her banking at the White Center branch of the Bank of America,
which was walking distance from her house. 	Cynthia Cleary worked at the branch since
1998. 	In the summer of 2011, Cleary was the assistant branch manager and had
noticed 	that 	Kjellerson 	was 	finding 	it 	increasingly 	difficult 	to 	remember 	things.

No. 71311-6-1/2
According to Cleary, Kjellerson had always been "very on top of her banking," but by
2011, she no longer knew how much money she had in the bank and appeared to be
confused by changes in her balance amount.
David Woodlyn performed yard work around Kjellerson's neighborhood in the
summer months to supplement his social security income. 	Woodlyn did not have a
bank account at the White Center Bank of America branch, 	but he went there on
occasion to cash checks written to him as payment for yard work. 	The amount of the
checks generally 	ranged 	between 	$40 and 	$60. 	Sometime around 	August 2011,
Woodlyn went to the White Center branch to cash a check written by Kjellerson. 	The
amount of the check was less than $100. 	Because Kjellerson's signature on the check
looked a "little off," Cleary called Kjellerson to verify that she wrote the check. 	Based on
her conversation with Kjellerson, Cleary cashed the check.
On 	August 	27, 	2011, 	Woodlyn 	and 	Kjellerson 	came 	to 	the 	bank together.
Although they approached a different teller window, Cleary saw them and stepped in to
assist them. 	Woodlyn, speaking for Kjellerson, told Cleary they wanted to make a
withdrawal from Kjellerson's account. 	When Cleary asked how much they needed to
withdraw, Woodlyn responded, "How much does she have[?]" 	Cleary asked to speak to
Woodlyn and 	Kjellerson 	in the lobby and told Woodlyn she would 	not provide that
information. 	Woodlyn became agitated and appeared to want to leave with Kjellerson.
To prevent him from doing so, Cleary took Kjellerson to the manager's office and called
the police. Woodlyn left the bank. 	Cleary asked Kjellerson what the withdrawal was for,
and Kjellerson said Woodlyn needed money to cut the grass. 	Kjellerson could not tell
Cleary how much Woodlyn needed or how much she had already paid him.

No. 71311-6-1/3
King County Sheriff's Deputy Michael McDonald responded to the call from the
bank. 	Kjellerson also told the deputy that she was withdrawing money that day so
Woodlyn could mow her grass. 	When the deputy asked 	how much 	Kjellerson had
already 	paid 	Woodlyn 	in the 	month 	of August, 	she 	said, 	"about 	$60." 	Deputy
MacDonald 	drove 	Kjellerson 	home 	and 	noticed 	that 	the 	grass 	in 	her 	yard 	was
overgrown and about a foot high.
After 	this 	incident, 	Bank 	of 	America 	investigated 	Kjellerson's 	account 	and
discovered that during an approximately three week period in July and August 2011,
Woodlyn cashed seven checks written from Kjellerson's account. 	The amounts of the
initial checks were less than $100, but gradually rose to figures above $400 and the
total amount of the checks exceeded $1,800.
Also following this incident, Kjellerson's sister obtained power of attorney over
Kjellerson's accounts. 	And on September 9, 2011, geriatric mental health specialist
Judith Newman evaluated Kjellerson. 	Newman concluded that Kjellerson was suffering
from moderate to severe dementia. 	Newman determined that Kjellerson had "[n]o short
term memory" and needed supervision. 	Newman described 	Kjellerson's deficits as
obvious and said that "by about the second or third sentence somebody would know
something was wrong."
Also in September 2011, a detective from the King County Sheriff's office and an
investigator from Adult Protective Services attempted to interview Kjellerson about the
money paid to Woodlyn in the previous two months. 	Kjellerson, however, was not able
to answer their questions or even basic background questions.

No. 71311-6-1/4
The State charged Woodlyn with theft in the second degree alleging that he "did
wrongfully obtain and exert unauthorized control" over property belonging to Kjellerson
and did obtain control over such property by "color and aid of deception." 	See RCW
9A.56.020.
Woodlyn testified at trial that he met Kjellerson when he knocked at her door in
2011 and offered to mow her lawn. 	He said Kjellerson accepted his offer, he charged
her $60 because her yard was large, and she paid him in cash.1 	Woodlyn said 	he
returned to Kjellerson's home a few weeks later and spoke to a woman he assumed to
be Kjellerson's daughter who paid him $90 to do additional yard work. 	Woodlyn said
that on August 27, the yard needed to be mowed again, but Kjellerson did not have the
money. 	Because Kjellerson said she could not remember where her bank was, he
offered to take her. 	Woodlyn said he had cut Kjellerson's grass three to five times
before that date. 	According to 	Kjellerson's 	niece, 	however, 	Kjellerson's yard 	was
unmaintained and overgrown during that period in the summer of 2011.
With regard to the checks, Woodlyn testified that he cashed them as a favor to
Kjellerson and gave the cash to her. 	Woodlyn admitted that he filled in his name and
the amounts of the checks. 	He 	said 	he did 	other favors for 	Kjellerson, 	including
purchasing cigarettes and groceries for her, and cleaning up her house on a couple of
occasions. 	Kjellerman did not testify.
1 Two other lawn customers who testified on Woodlyn's behalf said they paid him
approximately half that amount to mow their yards.

No. 71311-6-1/5
The jury found Woodlyn guilty as charged.2
ANALYSIS
Woodlyn alleges a violation of his right to a unanimous verdict, because the State
failed to present sufficient evidence to support both of the charged alternative means of
committing theft.
In Washington, criminal defendants have a constitutional right to a unanimous
jury verdict. 	Wash. Const, art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707,
881 	P.2d 231 	(1994). 	"This 	right may also 	include the 	right to a 	unanimous jury
determination as to the means by which the defendant committed the crime when the
defendant is charged with (and the jury is instructed on) an alternative means crime."
State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030 (2014).
Alternative means statutes identify a single crime and provide more than one
means of committing that crime. 	State v. Williams, 136 Wn. App. 486, 497, 150 P.3d
111 (2007). 	Theft is an alternative means crime. 	State v. Linehan, 147 Wn.2d 638,
644-45, 647, 56 P.3d 542 (2002); RCW 9A.56.020. 	With respect to each alternative
means 	of committing 	theft 	set forth 	in the 	statute, 	the 	prohibited 	conduct 	varies
significantly. 	State v. Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 (2010).
Consistent with the information, the trial court's instructions required the jury to
find that that Woodlyn committed the crime of theft by two alternative means: 	(1)
wrongfully obtaining the property of another or (2) obtaining control over the property of
2 A jury convicted Woodlyn following a second trial. 	The first trial ended in a
mistrial after a juror disclosed 	personal knowledge of one of the State's witnesses
midway through the trial.

No. 71311-6-1/6
another by color or aid of deception.3 	These two means are commonly referred to as
"theft by taking" and "theft by deception." 	State v. Smith. 115 Wn.2d 434, 438, 798 P.2d
1146 	(1990). 	The 	instructions 	also 	informed 	the jury that 	it did 	not 	need 	to 	be
unanimous as to the means relied upon.
When there is sufficient evidence to support each of the charged alternative
means of committing the crime, 	express jury 	unanimity as to which 	means 	is not
required. 	Owens, 	180 Wn.2d at 95. 	"If, however, there is insufficient evidence to
support any means, a particularized expression of jury unanimity is required." 	Owens,
180Wn.2dat95.
In this case, 	the 	parties do 	not dispute the 	insufficiency of the evidence to
establish that Woodlyn committed theft by "wrongfully obtaining" Kjellerman's property.
The State expressly concedes "[n]o evidence of theft by taking was presented to the
jury." 	And, indeed, the State did not allege that Kjelleman did not give the checks to
Woodlyn or that she did not sign them. 	Instead, the State advanced only the theory
that, taking advantage of Kjellerman's compromised memory and diminished mental
capacity, Woodlyn deceived her into believing she owed him payment for work.
3 RCW 9A.56.020 defines the crime of theft and provides, in relevant part:
(1) "Theft" means:
(a) To wrongfully obtain or exert unauthorized control over the property
or services of another or the value thereof, with intent to deprive him or
her of such property or services; or
(b) By color or aid of deception to obtain control over the property or
services of another or the value thereof, with intent to deprive him or her of
such property or services.

No. 71311-6-1/7
But, the State argues that the defendant's constitutional right to a unanimous
verdict is protected when, as here, the State presented argument and evidence as to
only one means. 	State v. Witherspoon. 171 Wn. App. 271, 285, 286 P.3d 996 (2012),
aff'd, 180 Wn.2d 875, 329 P.3d 888 (2014); 	see ajso 	State v. Johnson. 132 Wn. App.
400, 410, 	132 P.3d 737 (2006) (general verdict on burglary will generally stand "[s]o
long as there is sufficient evidence as to each means or so long as a reviewing court
can tell that the verdict was 	based 	on 	only one 	means which 	was supported 	by
substantial evidence"). 	Essentially, the State argues that the absence of express jury
unanimity is harmless when the reviewing court can be assured that the verdict was not
based on an unsupported alternative means.4
Error in the "to convict" instruction may be subject to a harmless error analysis.
State v. 	DeRvke. 	149 Wn.2d 906, 912, 	73 P.3d 	1000 (2003) (failure of to convict
instruction to specify the degree of rape attempted was harmless because another
instruction did so; therefore, the State was not relieved of its burden of proof). 	Even
constitutional error related 	to 	a 	to convict instruction, 	such 	as the omission of an
essential element, is harmless error if it is clear beyond a reasonable doubt that the
error did not contribute to the verdict. 	Neder v. United States, 527 U.S. 1, 15, 119 S. Ct.
1827, 144 L. Ed. 2d 35 (1999); State v. Thomas. 150 Wn.2d 821, 844, 83 P.3d 970
(2004), abrogated in part on other grounds bv Crawford v. Wasington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
4 In Owens, our Supreme Court recently declined to "articulate a harmless error
standard in the context of alternative means cases" finding no need to do so because in
that case, sufficient evidence supported both 	means of trafficking in stolen property.
Owens. 180Wn.2dat101.

No. 71311-6-1/8
This 	court 	has 	affirmed convictions 	in analogous 	cases 	where 	there 	was
insufficient evidence to support a charged alternative means but the State did not argue
or otherwise attempt to prove that means. 	For example, in State v. Rivas. 97 Wn. App.
349, 352, 984 P.2d 432 (1999), disapproved on other grounds by State v. Smith. 159
Wn.2d 778, 154 P.3d 873 (2007), the State charged the defendant with assault in the
second degree. 	Because "assault" is not defined by the criminal code, courts use the
common law to define the crime, 	jd. 	The trial court instructed the jury on three common
law means of committing assault: (1) battery; (2) attempted battery; and (3) assault.5 Jd.
at 352-53. 	Rivas argued and we agreed that no evidence was offered at trial to support
battery or attempted battery. 	Id. at 351-52. 	However, the charging document alleged
only that Rivas "held a knife to the [victim's] throat." 	jd. at 353. 	And, during argument,
the State "focused only" on the third common law definition of assault. 	Id. 	On that
record, we determined that the jury verdict was based entirely on one alternative means
of committing assault, of which there was substantial evidence in the record. 	Id. at 354-
55. 	We affirmed the conviction because "there was no danger that the jury's verdict
rested on an unsupported alternative means." jd. at 355.
More recently, Division Two of this court considered a similar case where the jury
was instructed on an unsupported means of committing the crime. 	Witherspoon, 171
5 The Supreme Court disapproved of our decision in Rivas to the extent that it
"can be read as endorsing a hard and fast rule that the common law definitions of
assault 	constituted 	alternative 	means 	of 	committing 	assault, 	thereby 	requiring
substantial evidence to support each of the alternative means charged or instructed."
Smith, 159Wn.2dat787.

No. 71311-6-1/9
Wn. App. at 286-87.6 	In that case, the State charged the defendant with all three
alternative means of witness tampering and the jury was instructed as to all three
means. 	Id. at 285. 	The parties conceded that the State did not argue or attempt to
prove one of the charged means, but there was substantial evidence to support the
other two alternative means. 	Id. at 286-87. 	Based upon its determination that there
was no danger the jury's verdict was 	based 	on 	the single unsupported alternative
means, the court affirmed Witherspoon's conviction. 	Id. at 287.
Here also, the trial record shows that the State focused on proving only the "theft
by deception" alternative. 	The prosecution's examination of witnesses during its case in
chief developed facts related to Kjellerman's mental state, her apparent belief that she
was paying Woodlyn for lawn maintenance work, and her lack of awareness as to how
much she had already paid 	him. 	In closing argument, 	the 	prosecutor omitted the
reference to the "theft by taking" alternative means when 	she 	read the to 	convict
instruction to the jury and discussed only "theft by deception."
Nevertheless, 	Woodlyn 	argues that this 	court cannot tell whether the jury's
verdict rested on the unsupported alternative means. 	Woodlyn points out that theft by
wrongfully obtaining property of another requires proof of nonconsent. 	See State v.
D.H., 31 Wn. App. 454, 458, 643 P.2d 457 (1982) ("[njonconsent of the owner is an
element of the crime of theft"). 	But, the court's instructions did not specifically inform
the jury that Woodlyn could not wrongfully obtain Kjellerman's property unless he took
her property without her consent. 	Accordingly, Woodlyn maintains that although the
6 The Supreme Court's grant of review in Witherspoon did not encompass any
issue specifically pertaining to his witness tampering conviction. 	Witherspoon, 	180
Wn.2d at 882.

No. 71311-6-1/10
State did not seek to prove theft by taking, the instructions allowed the jury to rely on
this alternative means. 	But, deception was the only basis for the jury to have concluded
that 	Woodlyn's 	acceptance 	of 	Kjellerman's 	checks 	she 	voluntarily gave 	him was
"wrongful." 	And as explained, alternative means are "distinct acts" that constitute the
same crime. 	Peterson. 168 Wn.2d at 770. 	According to Woodlyn's argument, the jury
would have to interpret theft by taking as indistinct from theft by deception.
The record amply demonstrates that the State's case against Woodlyn and the
jury's verdict rested solely on proof that he obtained control of her property by color or
aid of deception. 	And, because, as Woodlyn acknowledges, this alternative means was
supported by sufficient evidence, any error was harmless.
We affirm.
WE CONCUR:
X
10