¶28
Hunt, J.(dissenting) — I respectfully dissent from the majority’s reversal of counts III and IV, the two witness-tampering convictions that David Lobe challenges in this appeal. I would find the lack of an alternative-means unanimity instruction to be harmless error, and I would affirm.
¶29 As the majority acknowledges, the law is well settled that we may affirm a jury’s verdict if (1) we can determine that the verdict was based on only one of several alternative means, and (2) substantial evidence supports that one means, even if (3) substantial evidence does not support one or more other alternative means mentioned in the jury instructions, so long as (4) there is no danger that the jury based its guilty verdict on the unsupported alternative means. Where there was evidence of only one means, there is no such danger. State v. Johnson, 132 Wn. App. 400, 410, 132 P.3d 737 (2006) (reviewing court upheld burglary conviction where it could determine that jury’s verdict was based on only one means, supported by substantial evidence); State v. Rivas, 97 Wn. App. 349, 351-52, 984 P.2d 432 (1999), review denied, 140 Wn.2d 1013 (2000), overruled on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007) (reviewing court upheld assault conviction, finding no danger jury’s verdict rested on an unsupported alternative means).
¶30 The issue before us here, however, is whether we can extend this Johnson/Rivas rationale and affirm where there *908is substantial evidence of each of two alternative means of committing a crime and there was no evidence presented or argument made that the defendant committed the crime by a third alternative means, improperly included in the to-convict instruction, unaccompanied by an alternative-means unanimity instruction. I have found no published Washington cases addressing this apparent issue of first impression. I would extend the Johnson/Rivas rationale to the circumstances here.
I. No Risk of Lack of Jury Unanimity, Count III
f31 As the majority notes, (1) the State presented evidence of and argued two alternative means by which Lobe committed count III, witness tampering; (2) we do not know whether the jury based its count III conviction on one or both alternative means presented; (3) the trial court erred in failing to instruct the jury that in order to convict, they must be unanimous as to the means by which Lobe committed count III; and (4) we generally presume that such error was prejudicial. In my view, however, the existence of substantial uncontroverted evidence of both alternative means presented overcomes this presumption of prejudice because there is no danger that the jury was not unanimous about both means. Johnson, 132 Wn. App. 400. Therefore, as the State argues, we should hold that the instructional error was harmless.
A. Rivas and Johnson
¶32 The majority relies on cases, such as Rivas, finding harmless error and affirming convictions, even though substantial evidence was lacking on one or more alternative means, where it was clear that the juries based their verdicts on only one of the alternative means, which substantial evidence did support. The majority then distinguishes Lobe’s case by finding it significant that the State presented evidence of and argued two, instead of only one, of three charged alternative means by which Lobe intimi*909dated a witness. The majority finds this distinction to be dispositive. I respectfully disagree.
133 I acknowledge that the Rivas and Johnson cases affirmed convictions where there was substantial evidence of only one of several alternative means. Nevertheless, that the Rivas and Johnson opinions use language describing substantial evidence of a single means does not defeat their rationales’ applicability to cases involving substantial evidence of more than one alternative means. Thus, I see no reason not to extend the Rivas and Johnson rationales to the facts here, so long as the reviewing court can reach the same conclusion that the Rivas and Johnson courts reached: There is no danger that the jury based its guilty verdict on the unsupported alternative means where there is substantial, uncontroverted evidence of the charged alternative means (here, two of three), and where the State did not present the remaining charged means to the jury. Accordingly, I would hold that there is no danger the jury was not unanimous in its finding Lobe guilty based on the two presented and uncontroverted alternative means.
¶34 As Division One of our court noted in the majority’s cited case, State v. Rivas:
Jury verdicts in criminal cases must be unanimous as to the defendant’s guilt of the crime charged. When the crime charged can be established by alternative means, jury unanimity as to the means is assured as long as substantial evidence supports each alternative means.
97 Wn. App. at 351 (emphasis added) (footnote omitted). It is significant here that, even though in Rivas the State presented evidence of only one of three alternative means, the Rivas court did not limit its holding to single-alternative circumstances. On the contrary, the italicized language above invites application of the Rivas rationale and holding to cases involving verdicts based on more than one presented alternative means, so long as “substantial evidence supports each alternative means.” Id. (emphasis added).
¶35 Thus, rather than distinguishing Rivas and Johnson, as does the majority, I would apply their rationales to affirm *910Lobe’s witness-tampering conviction because there is substantial evidence to support each of the two alternative means presented to the jury and no real danger that the jury was not unanimous as to both of these means, especially since this evidence was uncontroverted.
B. Applicability of Rivas to Lobe’s To-Convict Instruction
¶36 In my view, extension of the Rivas rationale is even more compelling here because, although all three alternative means were included in the to-convict instruction, neither of the two alternative means presented to the jury was controverted in any way. The to-convict instruction, number 13, followed the statutory definition of “witness tampering,”2 as follows:
Instruction No. 13
To convict the defendant of the crime of tampering with a witness, as charged in count III, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 21st day of July, 2005, the defendant attempted to induce a person, Tara Pappas, to testify falsely or, without right or privilege to do so, withhold testimony or absent himself or herself from any official proceeding or withhold from a law enforcement agency information which he or she had relevant to a criminal investigation; and
(2) That the other person was a witness or a person the defendant had reason to believe was about to be called as a witness in any official proceedings or a person whom the defendant had reason to believe might have information relevant to a criminal investigation; and
(3) That the acts occurred in the State of Washington.
Clerk’s Papers (CP) at 86.
¶37 It is undisputed that the State presented no evidence whatsoever of the first alternative means in this to-convict instruction — that Lobe “attempted to induce a *911person, Tara Pappas, to testify falsely.” CP at 86. In contrast, the State presented ample uncontroverted evidence of the second means of committing witness tampering in the to-convict instruction — that Lobe attempted to induce Pappas to “withhold testimony or absent . . . herself from any official proceeding.” Pappas testified that Lobe repeatedly encouraged her not to appear in court until he was finally able to persuade her to agree not to testify. Pappas’s testimony on this point was uncontroverted.
¶38 As to the third means — that Lobe attempted to induce Pappas to “withhold from a law enforcement agency information which he or she had relevant to a criminal investigation” — there was also substantial testimony from Pappas that Lobe attempted to induce her to withhold her address and phone number from law enforcement. CP at 86. Pappas’s testimony on this point was also uncontroverted.
¶39 The evidence here was sufficient for a rational trier of fact to find both alternative means for committing count III proven beyond a reasonable doubt. As the majority notes, the State’s evidence and argument focused exclusively on only two means: Lobe’s persuading Pappas not to appear in court to testify about anything (as distinguished from trying to persuade her to testify falsely, the first means) and his attempts to persuade her to withhold information. In short, the State never argued or attempted to prove to the jury that Lobe tried to persuade Pappas to say anything false; instead, the State argued and proved beyond a reasonable doubt that Lobe wanted Pappas to say nothing that would incriminate him, in or out of court.
¶40 Under the circumstances of Lobe’s case, the jury could have based its guilty verdict on count III witness tampering only on the sufficient and uncontroverted evidence presented on the two alternative means of witness tampering: attempting to persuade a witness (1) to withhold information and (2) to refuse to testify at trial. Conversely, there was no danger that the jury based its verdict on the unsupported means of attempting to persuade the witness to testify falsely. See Rivas, 97 Wn. App. *912at 351-52. Thus, I would hold that the lack of unanimity instruction was harmless error and I would affirm Lobe’s conviction on count III.
II. Only One “Alternative Means,” Count IV
¶41 The majority reverses count IV on grounds of “probable jury confusion” and lack of unanimity, even though it acknowledges that the State presented evidence of only one means of witness tampering on this count — that Lobe repeatedly ordered Erika Attouf to withhold Pappas’s contact information from law enforcement. As with count III, I would hold that there is no danger of a lack of jury unanimity on the elements of count IV.
A. Substantial Evidence of Single Means
f 42 The State acknowledges it did not present evidence supporting each alternative means charged for count IV. Instead, the State submitted evidence of, and the prosecutor limited his closing argument to, a single charged means — that Lobe attempted to persuade witness Attouf to withhold information from the authorities. As was the case with the evidence supporting count III, this evidence of count IV was uncontroverted.
¶43 Because the State proved and argued only one means of committing count IV, there was no danger that the jury convicted Lobe on any other alternative means. Therefore, the trial court’s error in failing to instruct the jury that they must be unanimous as to the means Lobe employed to commit count IV was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985); see also Rivas, 97 Wn. App. 349; Johnson, 132 Wn. App. 400.
B. No Jury Confusion
¶44 The majority also raises the specter of “jury confusion.” As the majority notes, the prosecutor misspoke dur*913ing closing argument when he referred to Lobe’s “repeating] over and over again to Ericka [Attouf], You don’t show up in court. You don’t show up in court,’ ” Report of Proceedings at 193-94, when the prosecutor meant to say, “Tara [Pappas].” (Emphasis added.) Soon thereafter, however, the prosecutor recognized that he had inadvertently transposed the names of the two victims in counts III and IV, corrected himself, and correctly referred to “Tara” (Pappas) as the person Lobe had ordered to stay away from court.
¶45 I respectfully disagree with the majority that this inadvertent and quickly corrected comment would have confused the jury. I see no basis in the record for such speculation. Moreover, the trial court could have interjected a curative instruction had Lobe so requested or had the court deemed such instruction necessary to correct any possible jury confusion. Deferring to the wisdom and discretion of the trial court, I would hold this remark to have been inconsequential and, therefore, harmless. Thus, I would also affirm Lobe’s conviction on count IV.
RCW 9A.72.120(l)(a)-(c).