SEATTLE (LN) — The Washington Supreme Court on Thursday resolved a division split by holding that the crime of interfering with the reporting of domestic violence is a single offense, not an alternative means crime, and affirmed the conviction of Leif Buck.
Justice Barbara Madsen, serving as justice pro tempore, wrote for the court that the statute criminalizes the defendant’s conduct—preventing a victim from calling 911, obtaining medical assistance, or making a report to law enforcement—rather than the distinct acts of the victim or witness.
The court’s decision expressly overturns Division One’s 2008 ruling in State v. Nonog, which had classified interference as an alternative means crime. Division Three of the Court of Appeals had reached the opposite conclusion in Buck’s case, creating a conflict the high court agreed to resolve.
Buck was convicted of interfering with the reporting of domestic violence after he lunged at his partner, A.H., held her on the couch, dragged her by her legs across the floor, and took her cell phone when she said she was going to call the sheriff. A.H. later drove to the sheriff’s office to report the incident and went to the emergency room for treatment for bruises and swelling.
At trial, the to-convict instruction listed three ways Buck could have committed the crime: preventing A.H. from calling 911, obtaining medical assistance, or making a report to law enforcement. Buck argued on appeal that because the State presented no evidence he prevented her from seeking medical assistance or making a report, the conviction violated his constitutional right to a unanimous jury verdict.
The State conceded that if interference were an alternative means crime, Buck’s right to unanimity was violated because evidence was not presented to support the alternative means of committing interference. The State disclaimed reliance on an election argument and focused the appeal on whether the statute creates alternative means.
The court began its analysis by noting that determining whether a statutory offense constitutes an alternative means crime is a matter of statutory interpretation reviewed de novo. Washington law requires a unanimous jury conclusion that the defendant committed the charged crime, but unanimity is not required if each alternative means presented is supported by sufficient evidence.
The court emphasized that the focus of the alternative means analysis is the distinctiveness of the criminal conduct, not the conduct of the victim or witness. In this case, the only proscribed conduct is the defendant’s interference. The purported alternative means concern the actions of the victim, which are not criminal.
“Only the interference with the listed types of reporting is criminalized,” Madsen wrote. “The interfering conduct by the defendant may be the same regardless of which method the victim uses to report domestic violence. The critical conduct is the interference itself.”
The court rejected Division One’s reasoning in Nonog, which had relied on the concept of “essential terms” and compared interference to witness tampering. The court found Nonog’s reliance on witness tampering misplaced, noting that prior analysis of the witness tampering statute offered no deep examination of the alternative means question.
The court also noted that Division One had later expressed doubt about Nonog’s efficacy in light of subsequent Supreme Court precedent focusing on criminal conduct rather than victim actions.
“We hold that RCW 9A.36.150(1)(b) defines a single crime of interfering with reporting domestic violence and not three alternative means of committing three separate crimes,” Madsen wrote.
The court declined to apply the traditional Arndt factors, which are used to distinguish distinct acts from minor nuances in statutes criminalizing a defendant’s conduct, because the alleged alternative acts here concern the conduct of a victim or witness.
Buck was also convicted of failure to register as a sex offender, but that conviction is not at issue in this case.