Unanimity Instruction When Offense Has Alternative Means

Division 3 reverses a conviction for intimidating a witness. The offense (RCW 9A.72.110) includes using a threat against a current or prospective witness to attempt to influence the person's testimony, induce the person to elude legal process, induce the person to absent himself or herself, or induce the person not to report information relevant to a criminal investigation or information about the abuse of a minor.

Here, the Court of Appeals found that there was not sufficient evidence to justify a conviction on at least two of the alternative means. So did the jury convict on one of the others? Or did some jurors find the defendant guilty because of one, some another, and so on?

The Court of Appeals held that there should have been a unanimity instruction, to ensure that the jury was unanimous on whatever means it found.

State v. Boiko, 128 P.3d 143 (Wash. App. Feb. 9, 2006), Westlaw.

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