State v. Buck: RCW 9A.36.150 Is Not an Alternative-Means Crime—“Means” Must Track the Defendant’s Criminal Conduct

1. Introduction

State v. Buck resolves a long-standing split between the divisions of the Washington Court of Appeals on whether “interfering with the reporting of domestic violence,” RCW 9A.36.150(1)(b), is an “alternative means” crime. Division Three held it is not (State v. Buck, 34 Wn. App. 2d 188 (2025)), while Division One had held the opposite in State v. Nonog, 145 Wn. App. 802 (2008).

The underlying facts are straightforward: after an altercation at Buck’s residence, A.H. said she would call the sheriff; Buck took A.H.’s phone from her pocket, and A.H. later drove to report the incident and sought medical treatment. At trial, the “to-convict” instruction allowed the jury to convict if Buck prevented or attempted to prevent A.H. from (i) calling 911, (ii) obtaining medical assistance, or (iii) making a report to law enforcement. On appeal, Buck argued the instruction created a jury-unanimity problem—unless RCW 9A.36.150 is a single-means crime.

The State took a decisive posture: it urged that interference is not an alternative-means offense and expressly disclaimed reliance on “election” (i.e., the prosecution choosing one factual basis). The Supreme Court granted review to resolve the division split and clarify the proper focus of Washington’s alternative-means doctrine.

2. Summary of the Opinion

The Court’s key doctrinal move is to re-anchor alternative-means analysis in the defendant’s criminal conduct, not in the noncriminal actions of the victim or witness. Because the statute criminalizes the act of interference regardless of which reporting method is impeded, the listed reporting avenues are treated as descriptive “facets” of the same prohibited conduct—not distinct criminal means requiring independent evidentiary support for each.

3. Analysis

3.1. Precedents Cited (and How They Shape the Result)

• State v. Barboza-Cortes, 194 Wn.2d 639 (2019)
  Cited for de novo review and for the core Washington rule: if a crime is truly “alternative means,” jury unanimity on a particular means is not required only if each means presented is supported by sufficient evidence. The citation frames the stakes: classification of the statute determines whether Buck’s unanimity challenge even proceeds.
• State v. Mayorga DeSantiago, 149 Wn.2d 402 (2003)
  Cited through Barboza-Cortes to reinforce that alternative-means classification is statutory interpretation reviewed de novo.
• State v. Sandholm, 184 Wn.2d 726 (2015)
  This is the opinion’s central doctrinal engine. The Court quotes Sandholm to emphasize that less weight is placed on the disjunctive “or” and more on the “distinctiveness of the criminal conduct.” The Court adopts Division Three’s view that Sandholm—decided after Nonog— “refocused” the inquiry onto what the defendant did, not the narrative variety around it.
• State v. Owens, 180 Wn.2d 90 (2014)
  Used in two ways: (1) the Court repeats that the legislature has not defined alternative-means crimes and each statute must be evaluated on its merits; (2) via the discussion of federal law, Owens is cited (as in Barboza-Cortes’s concurrence) for Washington’s decision not to follow the federal approach from Griffin v. United States.
• State v. Ortega-Martinez, 124 Wn.2d 702 (1994) and Griffin v. United States, 502 U.S. 46 (1991)
  The Court notes that federal due process tolerates a general verdict even if one alternative theory lacks evidentiary support, so long as another is supported (Griffin). Washington has declined that approach (Ortega-Martinez, discussed through the opinion’s citations), making alternative-means classification especially consequential in Washington practice.
• State v. Shoop, 1 Wn.3d 532 (2023) and State v. Peterson, 168 Wn.2d 763 (2010)
  These cases provide the “distinct acts vs. definitions/descriptions of one act” framework. The Court uses them to ask whether RCW 9A.36.150(1)(b) describes distinct criminal acts or merely different descriptions of the same interference.
• State v. Smith, 159 Wn.2d 778 (2007)
  Reinforces the notion that where statutory “alternatives” are really definitions or descriptions of one criminal act, they are not alternative means.
• State v. Arndt, 87 Wn.2d 374 (1976)
  The Court reiterates the traditional multi-factor tool (title, connection between acts, consistency, and whether they can inhere in the same transaction) but then makes a significant move: it declines to apply the Arndt factors here because the purported alternatives are not distinct versions of the defendant’s criminal conduct; instead, they refer to noncriminal conduct by the victim/witness (the form of reporting).
• State v. Woodlyn, 188 Wn.2d 157 (2017), State v. Whitney, 108 Wn.2d 506 (1987), and Richardson v. United States, 526 U.S. 813 (1999)
  These authorities support the constitutional grounding of the doctrine: juries must unanimously agree on “what the defendant did,” i.e., the crime charged. Whitney is quoted for unanimity as to commission of the charged crime; Woodlyn (citing Richardson) highlights that the verdict concerns the defendant’s conduct—not ancillary details.
• State v. Nonog, 145 Wn. App. 802 (2008)
  The Court describes Nonog’s reasoning (essential terms; analogy to witness tampering; the State’s apparent concession) and rejects it as inconsistent with the Supreme Court’s later case law emphasizing criminal conduct. Nonog is expressly overruled on the alternative-means point.
• State v. Fleming, 140 Wn. App. 132 (2007) and State v. Lucas-Vicente, 22 Wn. App. 2d 212 (2022)
  These cases appear in the discussion of Nonog’s witness-tampering analogy. The Court notes Nonog’s reliance on Fleming was “misplaced” because Fleming provided no analysis. The opinion also notes Division One’s later decision in Lucas-Vicente holding witness tampering to be alternative means—highlighting that lower courts have continued to treat “or” and subsection structure as important, even as the Supreme Court reorients the inquiry toward criminal conduct. While Lucas-Vicente is not reviewed here, its mention underscores that analogical reasoning across statutes can mislead if it ignores the “what did the defendant do?” focus.
• State v. Holcomb, No. 75245-6-I (Wash. Ct. App. Aug. 7, 2017) (unpublished)
  The Court cites Holcomb to show Division One itself later questioned Nonog after the Supreme Court’s opinions in Owens and Peterson. The Supreme Court uses this to support the conclusion that Nonog is doctrinally outdated.

3.2. Legal Reasoning

(a) The statutory text and the object of the doctrine.
RCW 9A.36.150(1)(b) criminalizes preventing or attempting to prevent a victim/witness from (i) calling 911, (ii) obtaining medical assistance, or (iii) reporting to law enforcement. The defense position treated these as “means.” The Court rejects that framing because the constitutional unanimity right concerns agreement on the defendant’s criminal act. Here, the only criminal act is “interfering” (preventing/attempting to prevent reporting). The victim’s chosen avenue is not itself criminal conduct, and the defendant’s interference can be the same regardless of whether the victim would call 911, seek medical care, or go to law enforcement.

(b) “Distinctiveness of the criminal conduct” controls; “or” does not.
Echoing Sandholm, the Court declines to treat the disjunctive “or,” subsection formatting, or multiple phrasing choices as dispositive. Instead, it asks whether the statute describes “distinct acts” by the defendant or “minor nuances inhering in the same act.” Because each listed reporting route describes the same prohibited interference, the alternatives do not create separate crimes or separate means.

(c) A notable limitation: the Court declines to apply the Arndt factors.
This is a meaningful methodological clarification. The opinion does not abandon Arndt, but limits its usefulness where the supposed alternatives are not variants of criminal conduct by the defendant. Since the “alternatives” here are actions of a victim/witness, the Arndt factors are said to provide “little insight.” The Court thus centers the inquiry even more explicitly on the defendant’s conduct—treating the rest as contextual description, not “means.”

(d) Doctrinal cleanup: overruling Nonog.
The Court criticizes Nonog on several grounds: its unexplained reliance on “essential terms,” its questionable analogy to witness tampering via an opinion lacking analysis (Fleming), and its apparent dependence on party concession. Most importantly, Nonog is incompatible with the Supreme Court’s later emphasis on criminal conduct as the core of alternative-means analysis.

3.3. Impact

• Unanimity challenges under RCW 9A.36.150(1)(b) narrow substantially. Prosecutors may draft and try RCW 9A.36.150 counts without fearing an alternative-means reversal when evidence strongly supports interference with one reporting avenue but not another—so long as the jury is required to find the defendant interfered (prevented or attempted to prevent) reporting.
• Charging and instructions: reduced need for “means” tailoring. After Buck, a to-convict instruction listing 911/medical/law enforcement as illustrative objects of interference does not, by itself, create an alternative-means problem. Defense counsel, in turn, must focus on whether the State proved “prevented or attempted to prevent” within the statute, rather than demanding evidentiary support for each listed avenue.
• Doctrinal signal: “means” must be tied to criminal conduct, not contextual details. The opinion provides a template for analyzing other statutes that include multiple objects, circumstances, or victim-focused descriptors. Litigants should expect courts to ask: do the alternatives describe different kinds of prohibited defendant behavior, or merely different contexts/targets of a single kind of behavior?
• Inter-court harmonization. By explicitly overturning Nonog, the Supreme Court eliminates a split that had produced inconsistent unanimity outcomes statewide.

4. Complex Concepts Simplified

• “Alternative means” crime: A single charged offense that the legislature has defined as capable of being committed in multiple, distinct ways (means). In Washington, if multiple means are presented to the jury, each must be supported by sufficient evidence (otherwise the conviction is at risk), unless the State elects one means or the instructions confine the jury to one.
• Jury unanimity (Wash. Const. art. I, § 21): Jurors must agree that the defendant committed the crime charged. Alternative-means doctrine is a special application of unanimity concerns when one count can be proved in multiple ways.
• Why “or” is not decisive: Legislatures often use “or” to list examples, circumstances, or objects. Washington case law (as reaffirmed here through Sandholm) requires courts to look deeper: does each “or” clause represent different criminal conduct by the defendant?
• “Criminal conduct” vs. “victim conduct”: Buck draws a bright practical line: the alternative-means inquiry is about variations in what the defendant did that is criminal. The victim’s possible choices (call 911 vs. seek medical care vs. report to police) are not separate “means” if the defendant’s criminal act is the same—interference.
• “Election”: A prosecutorial choice to proceed on one factual basis/means when multiple are available, often used to avoid unanimity issues. The State expressly disclaimed reliance on election in the Court of Appeals, sharpening the case into a pure statutory-classification dispute.

5. Conclusion

State v. Buck establishes a clear rule for RCW 9A.36.150(1)(b): it is not an alternative-means crime. The listed reporting avenues (911, medical assistance, law enforcement report) do not define separate criminal means because they do not describe distinct criminal conduct by the defendant; they describe noncriminal actions the victim/witness might take that the defendant interferes with. The Supreme Court’s approach further crystallizes the modern Washington alternative-means analysis—centered on the “distinctiveness of the criminal conduct”—and it expressly overrules State v. Nonog to restore statewide uniformity.