State v. Sandholm

&1llLl(E\.
, / ' :. CLI- oPPICI """
. . . . . CCIUR1'~0FWAIUISIIBI-..
etmnCNMI
I 0 3 20~
DATE
~rn(J r:J4e/M,
Ut.l.

CHIEF JUSTICE
I a\~ ~ .

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 90246-1
Petitioner, )
)
v. ) EnBanc
)
KENNETH WAYNE SANDHOLM, )
)
Respondent. )
) Filed DEC 0 3 2015

JOHNSON, J.-This case involves an interpretation of former RCW

46.61.502 (2008), driving under the influence (DUI), and a determination of the

number of alternative means of committing an offense established by the statute.

Depending on that determination, we decide whether sufficient evidence supports

the conviction. Also, this case involves how offender scores for prior convictions

are calculated under former RCW 9.94A.525 (2008).

The Court of Appeals held that the statute established three alternative

means and that the jury instructions were error but harmless in this case. The

Court of Appeals vacated the sentence and concluded that RCW 9.94A.525(2)(e)

creates an exclusive scoring provision when the conviction is for felony DUI. We
State v. Sandholm (Kenneth Wayne), No. 90246-1

affirm the conviction and hold that former RCW 46.61.502 (2008) creates two

alternative means of committing DUI. We reverse the Court of Appeals and

reinstate the trial court's sentencing calculation.

FACTS AND PROCEDURAL HISTORY

In October 2009, a Washington State Patrol trooper observed a truck, driven

by Kenneth Wayne Sandholm, drifting back and forth outside of driving lanes and

moving at an erratic speed. After pulling the truck over, the trooper noticed that

Sandholm had watery, bloodshot eyes and smelled of alcohol. Sandholm also

slurred his speech and displayed poor coordination. He displayed six out of six

signs of possible intoxication during his field sobriety test. The trooper arrested

Sandholm. Breath alcohol tests, taken approximately two hours later, showed that

Sandholm had a blood alcohol content (BAC) of .079 and .080.

The State charged Sandholm with felony DUI, former RCW 46.61.502(6)(a)

(2008), based on Sandholm having four or more prior DUI offenses within 10

years. Specifically, the State charged Sandholm under former RCW 46.61.502

(2008) 1 with driving while "under the influence of or affected by intoxicating

liquor or any drug; and while under the combined influence of or affected by

intoxicating liquor and any drug; having at least four prior offenses, as defined

1
The "per se" subsection ofthe statute, RCW 46.61.502(1)(a), is not at issue in this case.

2
State v. ~andholm (Kenneth Wayne), No. 90246-1

under [former] RCW 46.61.5055(14)(a) [(2008)] within ten years ofthe arrest for

the current o±Iense." Clerk's Papers at 329. At trial, the State presented evidence of

Sandholm's physical condition, his failed field sobriety tests, his BAC level, and

his own admission that he had drunk whiskey earlier in the night. It did not present

evidence that Sandholm was under the influence of any drug or advance such a

theory of the case. Sandholm himself, however, testified that earlier on the day of

his arrest, he had taken Orajel and ibuprofen to soothe a toothache, and that when

those remedies failed, he turned to whiskey. The "to convict" instructions provided

to the jury presented two alternative statutory means to commit DUI: either that

Sandholm was under the influence of alcohol or drugs, or that Sandholm was

under the combined influence of alcohol and drugs. 11A WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 92.02, at 274-75 (3d ed.

2008) (WPIC). The trial judge also instructed the jury that it did not need to be

unanimous as to the means by which it returned a guilty verdict. Sandholm

objected to inclusion of the combined influence of alcohol and drugs instruction,

argui~g that there was "absolutely zero testimony anywhere in the record that any

of these things can impair an individual to the slightest degree or their driving."

Verbatim Report of Proceedings (Feb. 9, 2012) at 100. During closing argument,

the State exclusively discussed evidence of Sandholm' s drinking, never

3
/)tate v. Sandholm (Kenneth Wayne), No. 90246-1

mentioning the use of ibuprofen or Orajel. The jury convicted Sandholm. At

sentencing, the trial court calculated his offender score as 8: six prior DUI

convictions (1998, 1999, 2000, 2005, 2007, 2008), plus two drug convictions

(1997, 2000).

Sandholm appealed, arguing that his conviction violated his right to a

unanimous verdict and that the trial court miscalculated his offender score. The

Court of Appeals affirmed his conviction. It held that the jury instruction was

erroneous, and that there was no evidence to support a conviction on the combined

influence of alcohol and drugs alternative means. However, following its holdings

in State v. Bland, 71 Wn. App. 345, 860 P.2d 1046 (1993), and State v. Rivas, 97

Wn. App. 349, 984 P.2d 432 (1999), the Court of Appeals held that the error was

harmless: although the jury was instructed on two alternative means, no evidence

(in contrast to simply insufficient evidence) was presented on one of those means,

i.e., the combined influence of alcohol and drugs. Therefore, it concluded that a

rational jury could not have found for a means supported by no evidence and could

have found Sandholm guilty only if it had unanimously agreed that he drove under

the influence of alcohol or drugs:. in essence, a harmlessness analysis. The parties

did not add~·ess whether former RCW 46.61.502 (2008) creates alternative means

to commit the crime. Rather, the parties and the Court of Appeals appear to have

4
State v. Sandholm (Kenneth Wayne), No. 90246-1

relied on WPIC 92.02, which in turn relies on State v. Franco, 96 Wn.2d 816, 639

P.2d 1320 (1982). Franco observed that former RCW 46.61.502 (1979) created

three alternative means to commit the crime ofDUI.

The Court of Appeals also concluded that the trial court's calculation of

Sandholm's offender score was erroneous. Relying on its opinion in State v.

Morales, 168 Wn. App. 489, 278 P.3d 668 (2012), it reasoned that the Sentencing

Reform Act of 1981 (SRA), chapter 9.94A RCW, provision for calculating an

offender score for a felony DUI conviction, former RCW 9.94A.525(2)(e) (2008),

set out an exclusive list of relevant prior offenses and concluded that prior drug

convictions were not among that list. The Court of Appeals remanded for

resentencing with an offender score of 6. The State was granted review on t11e

offender score issue and Sandholm on the jury unanimity issue. State v. Sandholm,

noted at 179 Wn. App. 1030, reviewgrantedinpart, 180 Wn.2d 1027,331 P.3d

11 73 (20 14). After the case was argued, we called for additional briefing on

whether in light of the reasoning of State v. Peterson, 168 Wn.2d 763, 230 P.3d

588 (2010), and State v. Owens, 180 Wn.2d 90, 323 P.3d 1030 (2014), the

interpretation of former RCW 46.61.502(1) (1979) under Franco, 96 Wn.2d 816,

remains valid or should be overruled as incorrect and harmful. The supplemental

briefs were filed on October 15.

5
State v. Sandholm (Kenneth Wayne), No. 90246-1

ANALYSIS

Criminal defendants have the right to a unanimous jury verdict. WASH.

CONST. art. I, § 21:. In alternative means cases, where the criminal offense can be

committed in more than one way, we have announced a rule that an expression of

jury unanimity is not required provided each alternative means presented to the

jury is supported by sufficient evidence. But when insufficient evidence supports

one or more of the alternative means presented to the jury, the conviction will not

be affirmed. State v. Ortega-Martinez, 124 Wn.2d 702,707-08, 881 P.2d 231

(1994).

I. ALTERNATNE MEANS ANALYSIS AND FORMER RCW 46.51.502 (2008)

Determining which statutes create alternative means crimes is left to judicial

interpretation. Peterson, 168 Wn.2d at 769. This review begins by analyzing the

language of the criminal statute at issue. See Owens, 180 Wn.2d at 96. Only if the

statute creates alternative means do we then proceed to analyze an alleged

una~imity issue .

.This court said in Franco that the then-existing statute, former RCW

46.61.502 (1979), created three alternative means to commit the offense ofDUI.

~Franco, 96 Wn.2d at 821. The question we must resolve first in this case is

6
State v. Sandholm (Kenneth Wayne), No. 90246-1

whether the analytical framework Franco applied is consistent with our current

cases involving alternative means.

The DUI statute, RCW 46.61.502, has been revised since Franco, and as it

was applicable at the time of Sandholm's conviction, read:

(1) A person is guilty of driving while under the influence of
intoxicating liquor or any drug if the person drives a vehicle within
this state:
(a) And the person has, within two hours after driving, an
alcohol concentration of0.08 or higher as shown by analysis of the
person's breath or blood made under RCW 46.61.506; or
(b) While the person is under the influence of or affected by
intoxicating liquor or any dn1g; or
(c) While the person is under the combined influence of or
affected by intoxicating liquor and any drug.

Former RCW 46.61.502 (2008). Franco held that the former statute, which is

nearly identical to the statute applicable to Sandholm, 2 created three alternative

means, one for each subsection (a), (b), and (c). The court in Franco found the "or"

between the subsections in the statute highly persuasive. Franco, 96 Wn.2d at 821.

Respondent also now focuses on the use of the disjunctive "or" in subsection (b)

and conjunctive "and" in subsection (c) and asserts that the State cannot present

evidence of the presence of both drugs and alcohol and argue that the person's

driving was affected without establishing which caused impairment; to do so

2
The only substantive difference between former RCW 46.61.502 (1979) and former
RCW 46.61.502 (2008) is that the alcohol concentration level in RCW 46.61.502(1)(a) changed
from 0.1 to 0.08.

7
State v. Sandholm (Kenneth Wayne), No. 90246-1

would improperly render subsection (c) superfluous. This argument is similar to

another made by the respondent, that the "in violation" language used in the

affirmative defense subsection followed by reference to specific subsections

suggests that the former 2008 statute describes three distinct alternatives.

But under our current case law, we have disapproved of recognizing

alternative means crimes simply by the use of the disjunctive "or." Owens, 180

Wn.2d at 96. Nor has it been found that structuring the statute into subsections is

dispositive or that definitional statutes create alternative means. State v. Lindsey,

177 \Vn. App. 233,241,31-1 P.3d 61 (2013), review denied, 180 Wn.2d 1022,328

P.3d 903 (2014). Rather, the statutory analysis focuses on whether each alleged

alternative describes "distinct acts that amount to the same crime." Peterson, 168

Wn.2d at 770. The more varied the criminal conduct, the more likely the statute

describes alternative means. But when the statute describes minor nuances inhering

in the same act, the more likely the various "alternatives" are merely facets of the

same criminal conduct.

For example, in Peterson we applied this interpretive analysis to the failure

to register as a sex offender statute, former RCW 9A.44.130 (2003). The defendant

had argued that the statute created three different alternative means to commit the

C-'ffEmse of failing to register as a sex offender: ( ~) failing to register after becoming

8
State v. Sandholm (Kenneth Wayne), No. 90246-1

homeless, (2) failing to register after moving between fixed residences within a

county, and (3) failing to register after moving from one county to another. We
• I , ' , •

found this reading too simplistic. R~ther than describing distinct acts, we

~oncluded the alleged "alternatives" each described the same single act: failure to

register as a sex offender without alerting the appropriate authorities. Thus, the

statute created a single means to commit the crime. Peterson, 168 Wn.2d at 770.

Similarly, in Owens, we held that the trafficking in stolen property statute, RCW

9A.82.050, 3 describes two--not eight-·alternative means to commit the offense.

The first seven alleged "alternatives" represented multiple facets of a single means,

while the eighth alternative was a true alternative because it described a separate

category of conduct. Owens, 180 Wn.2d at 97-98. In other words, only two

statutory means existed because only two distinct types of conduct were

established in the trafficking statute: participating in the theft of stolen property

and transferring stolen property.

As noted, we begin our review by analyzing the language of the criminal

statute and making a determination of the alternative means created by the statute

before analyzing an alleged unanimity error. In conducting this analysis, less

3
"(1) A person who knowingly initiates, organizes, plans, finances, directs, manages, or
supervises the theft of property for sale to others, or who knowingly traffics in stolen property, is
guilty of trafficking in stole~1 property in the first degree."

9
State v. Sandholrn (Kenneth Wayne), No. 90246-1

weight is placed on the use of the disjunctive "or" and more weight on the

distinctiveness of the criminal conduct. Thus, in order to decide whether an error

exists in this case, we must first determine whether former RCW 46.61.502 (2008)

creates alternative means to commit the offense ofDUI under its various "affected

by" clauses. We conclude it does not.

As we reasoned in Peterson, the distinctiveness of the conduct is more

dispositive than use of the disjunctive "or" and the structuring ofthe statute into

subsections. Peterson, 168 Wn.2d at 770. Under this analysis, the DUI statute's

"affected by" clauses do not describe multiple, distinct types of conduct that can

reasonably be interpreted as creating alternative means. Rather, those portions of

the DUI statute contemplate only one type of conduct: driving a vehicle under the

''influence" of or while "affected by" certain substances that may impair the driver.

Former RCW 46.61.502 (2008). These statutory subsections describe facets of the

same conduct, not distinct criminal acts. Whether the defendant is driving under

the influence of alcohol, or drugs, or marijuana, or some combination thereof, the

defendant's conduct is the same-operating a vehicle while under the influence of

certain substances. The fact that one substance or multiple substances may have

caused that influence does not change the fundamental nature of the "influence of'

or "affected by" criminal act. Former RCW 46.61.502 (2008).

10
State v. 5'andholm (Kenneth Wayne), No. 90246-1

We agree with the State that Franco need not be overruled, in that applying

the above analysis to the facts of Franco, the result is correct. We disavow the

discussion and statement in Franco that three alternative means exist under the

statute. In reaching this conclusion, we hold that former RCW 46.61.502 (2008)

does not create alternative means to commit th~ offense ofDUI under its "affected

by" provisions on the basis of distinct criminal conduct. In this case, because the

DUI statute does not create alternative means, and because Sandholm's conviction

is supported by sufficient evidence that he drove under the influence of alcohol, we

find no enor. Sandholm's conviction is affirmed.

II. OFFENDER SCORE

The trial court included two prior drug convictions from 1997 and 2000 in

addition to Sandholm's six prior DUis, resulting in an offender score of 8.

Sandholm, however, argues that under former RCW 9.94A.525(2)(e) (2008),

which applies when the present conviction is for felony DUI, only the prior

offenses listed in that subsection may be counted. The Court of Appeals agreed,

concluding that former subsection (2)( e) provides the exclusive provision for

calculating an offender score when the present conviction is for felony DUI, to the

11
State v. Sandholm (Kenneth Wayne), No. 90246-1

total exclusion of subsection (2)( c), 4 which provides the scoring provisions for

class C felonies such as Sandholm's drug convictions.

Statutory interpretation is a question of law that we review de novo. State v.

Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). In relevant part, the SRA

provision for calculating an offender score applicable at Sandholm's sentencing

reads:

(c) Except as provided in (e) of this subsection, class C prior
felony convictions other than sex offenses shall not be included in the
offender score if, since the last date of release from confinement
(including full-time residential treatment) pursuant to a felony
. cor~viction, if any, or entry of judgment and sentence, the offender had
spent five consecutive years in the community without committing
any c.rime that subsequently results in a conviction.

(e) If the present conviction is felony driving while under the
influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or
felony physical control of a vehicle while under the influence of
intoxicating liquor or any drug (RCW 46.61.504(6)), prior convictions
of felony driving while under the influence of intoxicating liquor or
any drug, felony physical control of a vehicle while under the
influence of intoxicating liquor or any drug, and serious traffic
offenses shall be included in the offender score if: (i) The prior
convictions were committed within five years since the last date of
release from confinement (including full-time residential treatment) or
entry of judgment and sentence; or (ii) the prior convictions would be
considered "prior offenses within ten years" as defined in RCW
46.61.5055.

4
Subsection (2)( c)'s language is still current.

12
State v. Sandholm (Kenneth Wayne), No. 90246-1

Former RCW 9.94A.525(2)(c), (e).

Sandholm argues that the phrase "[ e]xcept as provided in (e)" in subsection

(2)(c) means that only former subsection (2)(e)'s provisions apply when the present

conviction is for felony DUI. Thus, subsection (2)(c)'s provisions for class C

felonies do not apply at all. We disagree.

Sandholm's reading is overbroad. The "[e]xcept as provided in (e)" language

cannot be read in isolation. On the contrary, subsection (2)( c) explicitly says it is to

be read in light of former subsection (2)(e). Although Sandholm points to other

examples in the SRA where such language makes a provision exclusive, "[e]xcept

as provided in (e)" must be read in light of the subsection it references. Former

subsection (2)( e) contains no express language that indicates that it is an exclusive

scoring provision when the present conviction is for felony DUI. Sandholm's

reading is also contradictory to the statutory scheme because, following this logic,

subsection (2)(a)'s strongly worded mandate that class A and prior felony sex

convictions "shall always be included" would similarly not count when the present

conviction is for felony DUI. RCW 9.94A.525(2)(a).

In coming to the contrary conclusion, the Court of Appeals relied on lower

court opinions in Morales and State v. Jacob, 176 Wn. App. 351, 308 P.3d 800

(2013). In A1orales, Division One of the Court of Appeals concluded that former

13
State v. Sandholrn (Kenneth Wayne), No. 90246-1

subsection (2)( e) was an exclusive scoring provision when the present conviction is

for felony DUI, reasoning that the washout procedures set out in former subsection

(2)(e)(i) would be rendered superfluous because of their similarity to the washout

procedures in subsection (2)( c) unless former subsection (2)( e) was exclusive.

Morales, 168 Wn. App. at 497. Division Two adopted this reasoning in Jacob.

Subsequent to oral argument in this case, Division Three rejected Morales and

'Jacob, holding as we do today that former subsection (2)(e) does not create an

exclusive scoring provision. State v. Hernandez, 185 Wn. App. 680, 342 P .3d 820

(2015).

We disagree with both Morales and Jacob and overrule them. This

reasoning ignores that the offenses listed under former subsection (2)( e) include

both felonies and nonfelonies, and therefore add prior convictions to the offender

score that would not normally be included. Although the analysis under former

subsection (2)( e)(i) would seemsuperfl.uous to some offenses listed in former

subsection (2)( e) that could also be counted under subsection (2)( c), "serious

traffic offenses,'' 5 for example, would not be analyzed under subsection (2)( c)

5
'"Serious traffic offense' means:
"(a) Nonfelony driving while under the influence of intoxicating liquor or any drug
(RCW 46.61.502), nonfelony actual physical control while under the influence of intoxicating
liquor or any drug (RCW 46.61.504), reckless driving (RCW 46.61.500), or hit-and-run an
attended vehicle (RCW 46.52.020(5)); or

14
 State v. Sandholm (Kenneth Wayne), No. 90246-1

because they include misdemeanors and subsection (2)( c) applies only to felonies.

In other words, former subsection (2)( e)(i) is not rendered superfluous, but rather

sets out an approach that is similar to subsection (2)( c), but applies to "serious

traffic offenses'~ that would not otherwise be scored under subsection (2)( c).

We also disagree with Sandholm'sreading ofthe statute because it directly

conflicts with the approach we established in State v. Moeurn, 170 Wn.2d 169, 240

~or· P .3d 1158 (20 10). Under that approach, calculation of an offender score has three

steps: first, identifY all prior convictions; second, eliminate those that wash out;

and third, count the prior convictions that remain. Moeurn, 170 Wn.2d at 175. We

reas.oned that the legislature intended this procedure because the statute itself is

struetured to apply its provisions in the order in which they appear. Step one under

Moeurnis to count all prior offenses: this includes Sandholm's two drug

convictions. Under Sandholm's reading, rather than counting all prior offenses,

step one would be to determine the present conviction and then jump to that

specific section. This contradicts our holding in lvfoeurn that the provisions are

meant to be analyzed sequentially.

. "(b) Any federal, out-of-state, county, or municipal conviction for an offense that under
the laws of this state would be classified as a serious traffic offense under (a) of this subsection."
RCW 9.94A.030(45).

15
State v. Sandholm (Kenneth Wayne), No. 90246~1

We hold that former subsection (2)(e) sets out certain additional provisions

for calculating an offender score when the present conviction is for felony DUI.

This subsection expresses the legislature's intent that repeat DUI offenders not

benefit from the washout provisions contained in the previous subsections of the

SRA for prior traffic and driving offenses. Former subsection (2)( e) adds to the list

of offenses that shall be included in an offender score; it does not narrow it. That

means all other offenses, such as Sandholm's prior drug offenses, are to be scored

as they would otherwise. We reverse the Court of Appeals on this issue and affirm

the trial court's sentencing decision.

CONCLUSION

Because former RCW 46.61.502 (2008) does not create alternative means to

commit the offense of driving under the influence, we find no unanimity error in

this case. We affirm Sandholm' s conviction. We reverse the Court of Appeals'

construction of former RCW 9.94A.525(2)(e) (2008) and affirm the

16
State v. Sandholm (Kenneth Wayne), No. 90246-1

sentence imposed by the trial court.

WE CONCUR:

~
I

~~-·-·-
StJ~__,
-. -~~--~;T----
CJ

17