State v. Tyler

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IN euRKt omei X This opinion was filed for record
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SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, NO. 93770-2

EN BANC
ROBERT LEE TYLER,

Petitioner. Filed 02

STEPHENS, J.—^Robert Tyler challenges his conviction for possession of a

stolen vehicle. Relying on State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998),

he contends that the State was required to prove he engaged in all the actions that

constitute "possession" ofa stolen vehicle because these were listed in the to-convict

jury instruction. Further arguing that the evidence is insufficient to prove he

"disposed of a stolen vehicle, Tyler argues that his conviction must be reversed and

the case dismissed with prejudice.

We affirm Tyler's conviction, although on different grounds than those relied

on by the Court of Appeals below. That court viewed the jury instructions as setting
State V. Tyler (Robert Lee), 93770-2

forth alternative means of possessing stolen property, which became the "law ofthe

case" under Hickman. However, it concluded that Hickman was abrogated by

Musacchio v. United States, U.S. , 136 S. Ct. 709,193 L.Ed.2d 639(2016).

This was error in light of our recent decision in State v. Johnson, 188 Wn.2d 742,

747,399 P.3d 507(2017), which confirmed that Hickman remains good law and the

State is generally required to prove all elements set forth in a to-convict jury

instruction. However, Hickman's law of the case rule is inapplicable here because

possession of a stolen motor vehicle is a single means crime, and the given

instructions did not alter that fact. Accordingly,the State was not required to prove

that Tyler "disposed of a stolen vehicle but only that he "possessed it" in one ofthe

defined ways under RCW 9A.56.140(1). Because it is undisputed that the evidence

established possession, the jury's verdict stands, and we affirm Tyler's conviction.

BACKGROUND AND PROCEDURAL HISTORY

A Snohomish County deputy sheriff discovered a white Honda sedan and a

pickup truck parked 20 feet apart on a remote, forested service road. The deputy

observed that the sedan was lifted up on a jack with the driver's side wheels elevated

in the air. Upon approaching the pickup truck, the deputy encountered four

individuals: Robert Tyler and Rebekah Nicholson sat in the truck's passenger

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State V. Tyler (Robert Lee), 93770-2

compartment, Tyson Whitt was partially covered by a tarp in the bed of the truck,'

and Anthony Coleman stood outside the truck.

Tyler informed the deputy that he owned the truck and produced a bill ofsale.

Looking into the truck's passenger cabin, the deputy observed what appeared to be

stripped car parts, including a disconnected car stereo and speakers. Upon further

inquiry by the deputy, Tyler claimed not to know anything about these items, neither

how they came to be in his truck nor to whom they belonged. When asked who

owned the Honda, Tyler replied that he did not know. Upon inspecting the sedan,

the deputy observed that it seemed as if it was being stripped of its parts: bolts on

the suspended wheels were partially loosened, and the stereo and front door speakers

were missing. The deputy found in the sedan's ignition a key with a Chrysler brand

logo and noticed that the key had been "shaved," suggesting potential vehicle theft.

The deputy ran a computer search of the sedan's license plate number and

learned that the sedan had been reported stolen the prior day. He then contacted the

vehicle's owner and confirmed that the brand ofcar stereo that had been in the sedan

matched that ofthe disconnected car stereo in the passenger compartment of Tyler's

truck.

'Whitt was arrested, charged, and convicted of stealing the Honda sedan. State v.
Tyler, 195 Wn. App. 385, 391 n.l, 382 P.3d 699(2016).

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State V. Tyler (Robert Lee), 93770-2

Following further questioning, the deputy placed Tyler under arrest. During

a subsequent interrogation, Tyler stated that he had observed Whitt taking parts out

ofthe sedan, and that he deduced the sedan Whitt had been driving was stolen. Tyler

denied stealing the vehicle. The State charged Tyler with one count of possession

of a stolen vehicle.

At trial, the court's to-convict jury instruction read, in relevant part, "To

convict the defendant ofthe crime of possessing a stolen motor vehicle, each ofthe

following elements ofthe crime must be proved beyond a reasonable doubt:(1)That

on or about the 10th day of January, 2014, the defendant knowingly received,

retained, possessed, concealed, disposed of a stolen motor vehicle." Clerk's Papers

(CP) at 27 (jury instruction 4). A separate jury instruction stated, in relevant part,

"Possessing a stolen motor vehicle means knowingly to receive, retain, possess,

conceal, or dispose ofa stolen motor vehicle." CP at 26(jury instruction 3). Neither

party objected to these instructions. The jury found Tyler guilty of possession of a

stolen vehicle.

On appeal, Tyler argued inter alia that the '"to convict'" jury instruction

"listed as alternative means that defendant received, retained, possessed, concealed,

or disposed ofthe stolen vehicle." Br. of Appellant at 1. Relying on the law ofthe

case doctrine as set forth in Hickman, 135 Wn.2d 97, under which the State must

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State V. Tyler (RobertLee), 93770-2

prove all elements listed in to-convict instructions, Tyler urged that his conviction

must be reversed and the case dismissed with prejudice because the evidence was

insufficient to show he "disposed of a stolen vehicle. Suppl. Br. of Pet'r at 5-6,

12-13.

The Court of Appeals requested additional briefing from the parties regarding

the relevance of an intervening case, Musacchio, 136 S. Ct. 709. There, the United

States Supreme Court rejected application ofthe law ofthe case doctrine in a similar

context and held that a sufficiency challenge should be assessed against the statutory

elements of the crime charged, regardless of any heightened command in the jury

instructions. /J. at 715. Concluding that Musacchio superseded Washington case

law and effectively abrogated Hickman, the Court of Appeals affirmed Tyler's

conviction. State v. Tyler, 195 Wn. App. 385, 399-400, 382 P.3d 699(2016).

At about the same time as this case. Division One ofthe Court of Appeals had

reached a similar conclusion in State v. Johnson, No. 73113-1-1, slip op.(Wash. Ct.

App. June 6, 2016) (unpublished) https://www.courts.wa.gov/opinions/

pdfr731131.pdf. We granted review in Johnson to consider Musacchio''s import on

Washington's law ofthe case doctrine, recognizing that Division Three had taken a

contrary view. See State v. Jussila, 197 Wn. App. 908, 912-13, 392 P.3d 1108

(2017). We disagreed with the Court of Appeals' reliance on Musacchio, holding

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State V. Tyler (Robert Lee), 93770-2

that "our long standing 'law ofthe case' doctrine continues to apply," Johnson, 188

Wn.2d at 756. Furthering the goals offinality, efficiency, and fairness in the judicial

process, we concluded that the law ofthe case doctrine helps avoid prejudice to the

parties and ensures that appellate courts review cases under the same rules

considered by juries. Id. at 757. Nonetheless, we affirmed Johnson's conviction,

finding the evidence sufficient when measured against the to-convict instruction.

We stayed consideration of Tyler's petition for review pending the final

decision in Johnson. Following issuance ofthe Johnson opinion, we granted partial

review. State v. Tyler, 189 Wn.2d 1016,404 P.3d 497(2017).

ANALYSIS

Tyler makes a number ofcascading and alternative arguments, but they are all

premised on the view that the jury instructions required proof that he engaged in

each ofthe listed means ofpossessing a stolen motor vehicle. His main argument is

that the to-convict instruction set forth several alternative means of committing

possession of a stolen motor vehicle—"received, retained, possessed, concealed,

disposed of." CP at 27; see Pet. for Review at 5-6; Br. of Appellant at 8; Suppl. Br.

of Pet'r at 8. In his supplemental brief, he additionally argues that the instruction

should be read as mandating proof of all the listed actions to establish possession of

a stolen vehicle. Suppl. Br. of Pet'r at 7-8. In either case, under his argument the

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State V. Tyler (Robert Lee), 93770-2

State would need to demonstrate sufficient evidence of all means of possession

because the State did not elect a specific means and no unanimity instruction was

given to the jury on alternative means. See State v. Woodlyn, 188 Wn.2d 157, 164,

392 P.3d 1062 (2017). Because the evidence is insufficient to show he "disposed

of a stolen motor vehicle, concludes Tyler, his conviction must be reversed.^

The State counters that the list of ways one can possess a stolen motor vehicle

(including the "disposed of provision) is merely definitional. See RCW

9A.56.140(1) ('"Possessing stolen property' means knowingly to receive, retain,

possess, conceal, or dispose of stolen property knowing that it has been stolen and

to withhold or appropriate the same to the use ofany person other than the true owner

or person entitled thereto."). It reads the to-convict instruction in the context of the

definitional instruction immediately preceding it and argues that the sole element the

State had to prove was Tyler's "possession" of a stolen motor vehicle. See Suppl.

Br. ofResp't at 3-11;see also RCW 9A.56.068(1)("A person is guilty ofpossession

ofa stolen vehicle ifhe or she possess [possesses] a stolen motor vehicle."(alteration

in original)). Accordingly, the State concludes that "[t]he law of the case doctrine

^ Tyler's sufficiency of the evidence argument is limited to the "disposed of
provision. Br. of Appellant at 8-9.

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State V. Tyler (Robert Lee), 93770-2

does not apply in this case" to require proofthat Tyler "disposed of a stolen motor

vehicle. Suppl. Br. of Resp't at 11.^

We agree with the State. Possession of a stolen vehicle is not an "alternative

means" or "all means" crime, and the jury instructions in this case did not make it

so. Because the instructions did not obligate the State to prove Tyler "disposed of

a stolen motor vehicle and the evidence was otherwise sufficient, we affirm Tyler's

conviction. Given our resolution ofthe case on this basis, it is unnecessary to address

the law ofthe case doctrine and related issues.

I. The Jury Instructions Did Not Require the Jury To Find That Tyler "Disposed
of a Stolen Vehicle To Convict Him of Possession of a Stolen Vehicle

Tyler acknowledges, as he must,that possession of stolen property is a single

means crime. See Br. of Appellant at 7; Suppl. Br. of Pet'r at 7. The relevant

statutory provisions state that "[a] person is guilty of possession of a stolen vehicle

if he or she possess [possesses] a stolen motor vehicle." RCW 9A.56.068(1)

(alteration in original). '"Possessing stolen property' means knowingly to receive,

retain, possess, conceal, or dispose ofstolen property knowing that it has been stolen

^ Altematively, the State argues that the evidence was sufficient to prove Tyler
"disposed of the motor vehicle and his conviction should be affirmed on that basis. Suppl.
Br. of Resp't at 12-17. While we do not disagree with the State's assessment of the
evidence, when viewed in a light most favorable to the verdict, our resolution of this case
makes it unnecessary to reach that issue.

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State V. Tyler (Robert Lee), 93770-2

and to withhold or appropriate the same to the use of any person other than the true

owner or person entitled thereto." RCW 9A.56.140(1). The multifaceted

description of the ways in which one may possess stolen property is properly

regarded as definitional, enhancing the understanding ofthe single means crime. See

State V. Hayes, 164 Wn. App. 459, All, 262 P.3d 538 (2011)(RCW 9A.56.140(1)

merely defines possession, and "does not create alternative means ofa crime"); State

V. Linehan, 147 Wn.2d 638, 646, 56 P.3d 542 (2002)("Definition statutes do not

create additional alternative means ofcommitting an offense."); State v. Owens, 180

Wn.2d 90,96,323 P.3d 1030(2014)("the alternative means doctrine does not apply

to mere definitional instructions; a statutory definition does not create a 'means

within a means'"); State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87 (2015)

("Nor has it been found that . . . definitional statutes create alternative means.");

State V. Porter, 186 Wn.2d 85, 91, 375 P.3d 664(2016)(definitional terms may be

read as defining or limiting essential elements).'^

^ Though the parties do not discuss our decision in Porter, there we considered the
latter clause of RCW 9A.56.140(1) in the context of a challenge to a charging document.
We concluded that the information did not need to allege that "the defendant withheld or
appropriated the vehicle for the use of a person other than the true owner" because the
definition of "possess" merely "defines and limits the scope of the essential elements of
the crime of unlawful possession of a stolen motor vehicle." Porter, 186 Wn.2d at 87, 91.

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State V. Tyler (Robert Lee), 93770-2

Tyler nonetheless insists that the jury instructions given in this case, which

included the definitional descriptions in the to-convict instruction, created either an

"alternative means" crime or an "all means" crime. We disagree. We find

persuasive the reasoning ofthe Court of Appeals in State v. Makekau, 194 Wn. App.

407,414,378 P.3d 577(2016), which addressed a similar to-convict instruction that

set forth the statutory definition of possession of a stolen vehicle in listing the

essential elements.^ The court in Makekau concluded that the to-convict instruction

could not reasonably be read as altering the nature of the crime charged, which is a

single means offense. Indeed, "the only purpose of RCW 9A.56.140(1) is

definitional—^to provide a better understanding ofthe single element stated in RCW

9A.56.068(1)." Makekau, 194 Wn. App. at 414. Taking a common sense approach,

the court recognized that"the five terms in RCW 9A.56.140(1)are so closely related

that they do not describe distinct acts apart from actually possessing the stolen

vehicle, but are 'merely facets ofthe same criminal conduct.' Sandholm, 184 Wn.2d

at 734. For example,it would be hard to imagine a situation where a person receives.

^ The instruction required the State to prove Makekau "'knowingly received,
possessed, concealed, or disposed of a stolen motor vehicle." 194 Wn. App. at 414 & n.1.
One notable difference between the instruction in Makekau and the to-convict instruction
here is that the Makekau instruction repeated the disjunctive term "or"from the definitional
instruction, while the to-convict instruction in Tyler's case omitted it. As discussed further
in Part II below, we do not find that distinction dispositive when the instructions are
considered as a whole.

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State V. Tyler (Robert Lee), 93770-2

retains, conceals, or disposes of a stolen vehicle without also possessing it at some

time." Id. (citing Owens, 180 Wn.2d at 99). Our prior decisions provide "no

indication that including a list of disjunctive terms that did not constitute alternative

means in the to-convict instruction transformed those terms into alternative means."

Id. at 420.

Makekau is persuasive in recognizing that the mere repetition of the

definitional list of "possession" in the to-convict instruction does not create

alternative means. See id. at 419 ("If definitions in a separate instruction do not

create alternative means, there is no reason that including the definitions in the to-

convict instruction should change the result."). Even if the to-convict instruction is

read in isolation, the four-paragraph list of the elements does not suggest that

"received, retained, possessed, concealed, disposed of are alternative means. CP at

27. The terms in the statutory definition are closely related, in that one may not

retain, conceal, or dispose of a stolen vehicle without first receiving and possessing

the vehicle. Tyler argues that one may possess stolen property without knowledge

that it is stolen but later discard it upon learning that it is stolen, thereby upending

Makekau's interpretation. Suppl. Br. ofPet'r at 10 n.9. But Tyler fails to recognize

that even this scenario supports the reasoning in Makekau, because the hypothetical

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State V. Tyler (Robert Lee), 93770-2

defendant will possess and retain the stolen property, however briefly, between the

time the theft is learned of and the time the property is disposed of.

Tyler cites State v. Lillard, 122 Wn, App. 422, 93 P.3d 969 (2004), for the

proposition that possession of a stolen vehicle is an alternative means crime. Br. of

Appellant at 6-8. Lillard, citing Hickman as authority, assumed that by listing within

the to-convict instruction "the alternative definitions of 'possession' as alternative

means ofthe offense to be proved by the State, there must be sufficient evidence to

support each alternative, unless we can determine that the verdict was based on only

one alternative means and that substantial evidence supports that means." 122 Wn.

App. at 434-35. This reading ofHickman exceeds its application, which was limited

to the inclusion of an additional element(venue) in a to-convict instruction. 135

Wn.2d at 105. It also ignores our admonition against converting definitional statutes

into alternative means through inclusion in to-convict instructions. We have rejected

"the notion that multiple definitions of statutory terms necessarily create either new

elements or alternate means of committing a crime." State v. France, 180 Wn.2d

809, 818,329 P.3d 864(2014)(citing State v. Smith, 159 Wn.2d 778, 785, 154 P.3d

873 (2007); Linehan, 147 Wn.2d at 646); see also Makekau, 194 Wn. App. at 419

{('Lillard and Hayes are not persuasive because the statements in those cases about

the to-convict instructions creating additional alternative means were not based on

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any meaningful analysis or discussion ofthe issue. The courts in both cases basically

assumed that including the definitional terms in the to-convict instruction created

alternative means. Therefore, we do not follow the holdings in those cases.").

Consistent with the Court of Appeals' reasoning in Makekau, we reject

Tyler's argument that the inclusion of definitional language in the to-convict

instruction changed the nature of the single means crime of possession of a stolen

motor vehicle. The to-convict instruction is properly read as consistent with the

governing statutes, under which the definitional list ofhow one obtains "possession"

in RCW 9A.56.140(1) enhances understanding of the single means crime in RCW

9A.56.068(1).

II. Omission ofthe Disjunctive "or" in the To-Convict Instructions' List ofHow
One Possesses a Stolen Motor Vehicle Does Not Distinguish this Case from
Makekau and Does Not Require Proof of All Means ofPossession

As noted, the to-convict instruction in this case set forth the definitional list

of possession without including any conjunctive ("and") or disjunctive ("or")

connecting language. A separate definitional instruction contained the exact list, but

with "or" inserted before the final clause,"disposed ofa stolen motor vehicle." Tyler

relies on the omission of the word "or" to conclude that the to-convict instruction

required the jury to find he committed all of the acts that constitute possession:

'"received, retained, possessed, concealed, [and] disposed of a stolen motor

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State V. Tyler (Robert Lee), 93770-2

vehicle.'" Suppl. Br, of Pet'r at 7-8 (quoting CP at 27 with "[and]" inserted by

petitioner). We reject this argument.

Initially, we read individual jury instructions '"in the context of the

instructions as a whole.'" Statev. Williams, 162 Wn.2d 177,182,170P.3d30(2007)

(quoting State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995)); see also State

V. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998)("The jury is presumed

to read the court's instructions as a whole, in light of all other instructions."). While

the to-convict instruction '"serves as a yardstick by which the jury measures the

evidence to determine guilt,"' France, 180 Wn.2d at 815 (quoting State v. Johnson,

180 Wn.2d 295, 306, 325 P.3d 135 (2014)), we do not read the instruction in

isolation.

"Due process requires the trial court to accurately instruct the jury on every

element required to convict a defendant ofthe crimes alleged." State v. Rivas, 168

Wn. App. 882, 891,278 P.3d 686(2012). All elements must be contained in the to-

convict instruction. See State v. Emmanuel, 42 Wn.2d 799, 816-17, 259 P.2d 845

(1953). The "reviewing court generally 'may not rely on other instructions to supply

the element missing from the "to convict" instruction.'" Williams, 162 Wn.2d at

182-83(quoting toe V. DeRyke, 149 Wn.2d 906,910,73 P.3d 1000(2003)). Unlike

in Emmanuel, there is no claim here that the to-convict instruction omitted any

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State V. Tyler (Robert Lee), 93770-2

element. The issue here is how to read the instruction's definitional list of how one

possesses stolen property. As in Williams, it is appropriate to consider the to-convict

instruction in the context of the instructions as a whole. See Williams, 162 Wn.2d

at 188 (viewing jury instructions as a whole to confirm sufficiency of to-convict

instruction, while rejecting classification ofunderlying crime as an essential element

of bail jumping).

Viewed in the context of the instructions as a whole, we agree with the State

that the to-convict instruction is ambiguous at worst.^ Jury instruction 3, which

immediately preceded the to-convict instruction, set forth clarifying definitional

language, using the disjunctive "or." CP at 26. Reading the sequential instructions

together would make clear that the listed definitions of possession are the same,

assuming jurors actually noticed the omission of the word "or." All essential

elements are contained in the to-convict instruction, and looking to related

^ At oral argument, Tyler argued that any ambiguity in to-convict instructions
requires a new trial under the rule of lenity (citing State v. Kier, 164 Wn.2d 798, 194 P.3d
212(2008)). See Wash. Supreme Court oral argument. State v. Tyler, No. 93770-2(Mar.
13,2018), at 6 min., 56 sec. through 7 min., 21 sec., video recording by TVW,Washington
State's Public Affairs Network, https://www.tvw.org/watch/ ?eventID=2018031094. Kier
is distinguishable, because it involved an ambiguous verdict resulting fiom merger of first
degree robbery and second degree assault, where it was unclear whether the jury found that
one ofthe victims was robbed as well as assaulted. 164 Wn.2d at 814. Here,any ambiguity
in the to-convict instruction may be resolved through reasonable construction and arises in
the context of one single means crime. The merger doctrine cases are inapposite.

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State V. Tyler (Robert Lee), 92)11^-2

instructions supplies only definitions□not an added element/ Reading the

to-convict instruction in context with the related definitional instruction is thus

consistent with our long-standing general rule. See State v. Peck, 146 Wash. 101,

106-07, 261 P. 779 (1927) (reading a definitional instruction in the context of the

jury instructions as a whole, to eliminate misunderstanding); France, 180 Wn.2d at

816 ('"[ejach instruction must be evaluated in the context of the instructions as a

whole'" (alteration in original) (quoting State v. Benn, 120 Wn.2d 631, 654-55, 845

P.2d 289 (1993))); State v. Teal, 117 Wn. App. 831, 837, 73 P.3d 402 (2003) ("The

rule is well established that instructions must be read together and viewed as a

whole." (citing State v. Haack, 88 Wn. App. 423, 427, 958 P.2d 1001 (1997))).

Tyler's argument that the to-convict instruction required proof of all the ways

one may possess stolen property suffers from another flaw: it reads the word "and"

^ The State points to our practice of considering the jury instmctions as a whole even
when considering ambiguity in self-defense instructions. Second Suppl. Br. of Resp't at 4
(citing Hutchinson, 135 Wn.2d at 885 (Read together, the instructions "adequately
conveyed the law of self-defense to the jury in this case. . . . Accordingly, we hold the
instructions, taken in their entirety, properly stated the law.")); see also State v. Teal, 152
Wn.2d 333, 339, 96 P.3d 974 (2004) ("The rule requiring that all elements of a crime be
listed in a single instruction is not violated when accomplice liability is described in a
separate instruction. Here, the Court of Appeals correctly determined that jury instructions
are sufficient when, read as a whole, they accurately state the law, do not mislead the jury,
and permit each party to argue its theory of the case. In reading the jury instructions as a
whole, including the court's erroneous accomplice liability instruction, the jury could
decide Teal's guilt or innocence as an accomplice to first degree robbery." (citation
omitted) (citing Emmanuel, 42 Wn.2d at 819)).

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State V. Tyler (Robert Lee), 93770-2

into the instruction. Tyler invokes a default rule of grammar whereby a serial list

will be read in the conjunctive in the absence of a coordinating disjunctive. See

Suppl. Br. of Pet'r at 7-8 (citing Antonin ScALiA & Bryan A. Garner,Reading

Law:The Interpretation of Legal Texts 119(2012)). While this default rule is

sometimes apt(e.g., "I came,I saw,I conquered"), it has limited reach. Indeed, the

authors Tyler cites note that a sentence omitting a conjunction may also be read as

disjunctive, depending on context. Scalia & Garner,supra, at 119. The authors

describe a statutory conjunctive list as prohibiting acts "A, B, and C," when

performed together. Id. In contrast, the disjunctive list prohibits any of the acts,

together or independently. Id. This latter construction aligns with RCW 9A.56.140

as enacted, prohibiting acts where one would knowingly "receive, retain, possess,

conceal, or dispose of stolen property."(Emphasis added.)

The State notes that when given a similar opportunity, one of the treatise's

authors. Justice Scalia, chose the disjunction construction when interpreting a

bankruptcy code amendment that erroneously omitted the disjunctive "or," joining

the majority opinion authored by Justice Kennedy. Second Suppl. Br. ofResp't at 2

(citinglamze v. U.S. Tr., 540 U.S. 526,124 S. Ct. 1023,157 L.Ed. 2d 1024(2004));

see Lamie at 534-35 ("The statute is awkward, and even ungrammatical; but that

does not make it ambiguous on the point at issue.... Here, the missing conjunction

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State V. Tyler (Robert Lee), 93770-2

neither alters the text's substance nor obscures its meaning. This is not a case where

a 'not' is missing or where an 'or' inadvertently substitutes for an 'and.' The

sentence may be awkward; yet it is straightforward."). The Court found plain

meaning in the amendment through an interpretation that was not "'repugnant to the

rest ofthe statute,'" or leading to absurd results requiring the Court "to treat the text

as if it were ambiguous."Id. at 536(quoting Chickasaw Nation v. United States, 534

U.S. 84, 94, 122 S. Ct. 528, 151 L. Ed. 2d 474(2001)).

Although the definitional statute we review here resides within a to-convict

instruction, the missing disjunctive "or" mirrors the apparent scrivener's error in

Lamie. We decline to accept Tyler's default rule and insert the word "and," as this

would lead to an interpretation that would alter the statute and force an inconsistency

between the definitional jury instruction 3 and the to-convict jury instruction 4. A

more natural reading flows from considering the to-convict instruction in light ofthe

instructions as a whole. Under such a reading, the to-convict instruction required

the jury to find beyond a reasonable doubt that Tyler "possessed" a stolen motor

vehicle, based on the defined meaning ofthat term. While the inclusion ofadditional

definitional language in the to-convict instruction may have been awkward and

generated debate (at least on appeal), the jury was adequately instructed, and its

verdict should stand.

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State V. Tyler (Robert Lee), 93770-2

CONCLUSION

Reading the instructions as a whole, the jury was properly instructed on

possession of a stolen motor vehicle as a single means crime. We reject Tyler's

argument that the to-convict instruction created either an "alternative means" or an

"all means" crime under the law ofthe case doctrine set forth in Hickman. We affirm

Tyler's conviction.

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State V. Tyler (Robert Lee), 93770-2

WE CONCUR:

7^^

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State V. Tyler (Robert Lee), No. 93770-2
(Gordon McCloud, J., concurring)

No. 93770-2

GORDON McCLOUD, J. (concurring)—I agree with the majority that the

statute criminalizing possession of a stolen vehicle, ROW 9A.56.068(1), describes a

single means crime. Majority at 2.

I also agree that the five different definitions of"possess" contained in ROW

9A.56.140(1), which defines the element of possession contained in that ROW

9A.56.068(1) crime, does not change this fact: those definitions do not change the

single means crime into an alternative means crime (or crimes). Majority at 8-9.

But I disagree with the majority's conclusion that the trial court's instructions

in this case made that clear to the jury. In fact, even the majority is forced to admit

that listing a series of five possible ways of defining the word "possess"—at least

one of which, "dispose," sounds like the opposite of "possess"—without the

disjunctive "or" that appears in the statutory definition is "ambiguous at

worst." Majority at 15 (citing Clerk's Papers at 26).
State V. Tyler (Robert Lee), No. 93770-2
(Gordon McCloud, J., concurring)

I would have stopped with that astute observation. It doesn't matter how long

we read the jury instruction containing the list without the conjunction (or

disjunction) "in the context of the instructions as a whole." Id. It remains

ambiguous.

The majority says that the fact that a separate definitional instruction included

the disjunctive, while the elements instruction lacked the disjunctive, shows that the

jury would have known that the elements instruction really meant to include the

omitted disjunctive. Majority at 15-16. But our interpretive rules compel just the

opposite conclusion: the fact that certain language is included in one place but

omitted from another place is generally read as evidence that the author knew how

to include the limiting language when it wanted to and his or her omission of such

language should be deemed intentional. E.g., State v. J.P., 149 Wn.2d 444, 450,69

P.3d 318 (2003); State v. Delgado, 148 Wn.2d 723, 727-28, 63 P.3d 792 (2003);

Jepson V. Dep't ofLabor & Indus., 89 Wn.2d 394, 403, 573 P.2d 10 (1977). It's

hard to believe that a jury would have sorted through such competing rules of

interpretation —^the ones that the majority goes through for several pages as well as

the competing one summarized above—and necessarily come up with the correct

result.
State V. Tyler (Robert Lee), No. 93770-2
(Gordon McCloud, J., concurring)

I would hold that the elements instruction is ambiguous. One could infer that

the proper final connector is "or" because that is the connector used in a similar list

in a different instruction; or one could infer that the proper final connector should

instead be "and" because the cormector used in the similar list from the different

instruction was omitted from the elements instruction.

For that reason, under the law of the case doctrine,^ which the majority

acknowledges survives in our state, we must evaluate whether the evidence

supported a conviction based on each of those listed factors. I believe that the

answer is yes: the evidence that the partially stripped stolen car was located in a

secluded area provides sufficient circumstantial evidence that Tyler not only

"possess[ed]" but also at some point "receive[d]," "retain[ed]," "conceal[ed]," and

"dispose[d]" of the property. One can certainly begin the process of disposing of

the car by stripping and secreting it.

For these reasons, I concur.

1 State V. Hickman, 135 Wn.2d 97, 102,954 P.2d 900(1998); State v. Johnson, 188
Wn.2d 742, 747, 399 P.3d 507(2017).
3
State V. Tyler (Robert Lee), No. 93770-2
(Gordon McCloud, J., concurring)