Siddoway, J.

OPINION PUBLISHED IN PART

¶ 1 James Gearhard appeals his conviction for witness tampering on grounds that evidence of a telephone conversation recorded in violation of Washington's "Privacy Act," chapter 9.73 RCW, was admitted in error. The State cross appeals the trial court's entry of a directed verdict on a third degree child molestation charge after a mistrial was declared and the jury was discharged.

¶ 2 In the published portion of this opinion, we reverse the witness tampering conviction. In the unpublished portion, we hold that the State's appeal is barred by the double jeopardy clauses of the federal and state constitutions.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 In the spring of 2016, J.C., who turned 15 at around that time, revealed to a psychiatrist that on the prior July 3 he had been sexually molested by James Gearhard, the 56-year-old neighbor of his grandfather. J.C. reported that he was helping Mr. Gearhard with work on his rural property, had stayed overnight, and awakened to discover Mr. Gearhard standing next to him, with his hand down J.C.’s pants, touching his genitals. J.C. would later testify that he said to Mr. Gearhard, "[S]top, get off me," and Mr. Gearhard backed up and said, "[S]orry, I thought you'd like it." Report of Proceedings (RP) (Trial) at 61-62. The psychiatrist, a mandatory reporter, notified Child Protective Services. Sometime later, Detective Erik Anderson contacted J.C. and his mother.

¶ 4 The detective obtained J.C.’s agreement to participate in a pretext phone call to Mr. Gearhard. As later explained by the trial court, a pretext phone call is a "ruse[,] wherein the alleged victim of a crime would call a suspect ... to try and get the suspect to make incriminating statements ... while the suspect is talking to the alleged victim and while law enforcement is listening in." Clerk's Papers (CP) at 84-85. During the call, Detective Anderson sat next to J.C., close enough to hear through the phone's earpiece, and took notes. A recording device was placed on a table a couple of feet from J.C. and the detective. While allegedly not the detective's intention, the recording device captured not only J.C.’s side of the conversation, but also much of Mr. Gearhard's side of the conversation. Detective Anderson did not have a warrant to record Mr. Gearhard.

¶ 5 During the call, J.C. told Mr. Gearhard he had told a friend about what happened at Mr. Gearhard's house on July 3, the friend told the police, and the police were coming to speak with J.C. about it. J.C. told Mr. Gearhard he was not sure what to do and asked Mr. Gearhard for advice. Although Mr. Gearhard would not talk about what had happened on July 3, he made incriminating statements by asking J.C. to say he had lied to his friend, telling J.C. this could ruin Mr. Gearhard's life, and telling J.C. that if he did him the favor of saying nothing happened, Mr. Gearhard would make it worth his while later.

¶ 6 The State charged Mr. Gearhard with third degree child molestation and tampering with a witness. It later amended the information to add a count of indecent liberties.

¶ 7 Mr. Gearhard moved to suppress the recording and all testimony about the recorded conversation, arguing that the recording violated the Privacy Act. He moved to dismiss the witness tampering count because if the court granted his motion to suppress, there would be no evidence to support the charge.

¶ 8 At the conclusion of the hearing on the motions, the trial court found that the call was a private conversation or communication, the recording captured the voices of J.C. and Mr. Gearhard, and Detective Anderson violated the Privacy Act. The court nonetheless found that Mr. Gearhard's statements in the conversation fell within an exception to the recording prohibition for "communications or conversations ... which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands." RCW 9.73.030(2). It explained that Mr. Gearhard made "a request to essentially commit a crime to not report these acts to law enforcement in this case." RP (Suppression Hearing) at 26. In written findings and conclusions entered thereafter, the trial court concluded, "The defendant[’]s statements in this conversation were clearly an ‘unlawful request or demand’ when he requested [J.C.] not report the incident to police which would be the crime of Tampering with a Witness[,] a violation of RCW 9.72.120." CP at 75.

¶ 9 In the four-day jury trial that followed, the State did not offer the recording, but did question J.C. and Detective Anderson about statements Mr. Gearhard made during the recorded call. J.C. testified that during the call, Mr. Gearhard

told me, tell them that you were lying. Tell them you wanted attention. Tell them that

it didn't happen and you were just talking crap to your friend, and by the end of the call he even said that—he said, I'll make it worth your while later, which I don't know what that meant.

RP (Trial) at 66.

¶ 10 Detective Anderson provided the following answers to questioning about how Mr. Gearhard responded to J.C.’s report that he had told a friend:

A ... [F]irst he said, what was your friend's reaction and [J.C.] said, well, he was pissed and the defendant said, well, that's a really tough thing, especially for me. Hopefully you can deny it completely.

Q And did [J.C.] ask the defendant for direction on what he should do?

A Yeah, he said, what should I do and the defendant said, well, tell them it was stories. Can you just convince them that it didn't happen? Just tell him them you were telling stories.

Q And what did [J.C.] tell him?

A He said, okay, well, then after this call don't text me or call me or anything so that doesn't come up or anything, and the

defendant said, yeah, we shouldn't—we probably shouldn't call or email or anything at this point. I'm speechless, scared, please do this favor for me. It would ruin me. I would appreciate it if you said it never really happened, however you can say that. Please do this favor for me. They won't pursue it if you can convince them it didn't happen. I'm trying to think of how you could let me know. Do your best for me.

RP (Trial) at 94.

¶ 11 The jury found Mr. Gearhard not guilty of the indecent liberties count but could not reach verdicts on the counts charging third degree child molestation and tampering with a witness. The court accepted the not guilty verdict on the indecent liberties count and declared a mistrial as to the remaining two counts.

¶ 12 A week after the mistrial was declared and the jurors were excused, Mr. Gearhard moved for a directed verdict on the third degree child molestation charge. He pointed out that the jury's " ‘to convict’ " instruction required the jury to find "the defendant was at least forty-eight months younger than the defendant ." CP at 102 (emphasis added). Because the State did not submit evidence supporting that impossibility, Mr. Gearhard argued the court must enter a directed verdict of not guilty. The trial court agreed, ruling it was "constrained to grant the defendant's motion." CP at 118. A State motion for reconsideration was denied.

¶ 13 The parties agreed to a stipulated facts trial on the remaining witness tampering charge. The trial court was provided with a report of proceedings and the parties’ stipulation that because it had presided over the trial, it "[could] take credibility into account and give whatever weight the court deems fit to the testimony from this trial." CP at 81. A request by Mr. Gearhard that the court exclude evidence of the phone call was denied. The trial court found Mr. Gearhard guilty.

¶ 14 Mr. Gearhard appeals and the State cross appeals.

ANALYSIS

APPEAL

¶ 15 Mr. Gearhard appeals his conviction for witness tampering, arguing that the trial court erred by denying his motion to exclude evidence of the phone call. He argues that it was legal error to treat the recording of the call as coming within the "threats ... or other unlawful requests or demands" exception to the Privacy Act's requirement of all-party consent.

¶ 16 RCW 9.73.030(1)(a) prohibits the interception or recording of any private communication transmitted by telephone or other device between two or more individuals without the consent of all parties to the communication. Moreover, "[a]ny information obtained in violation of RCW 9.73.030 ... shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state." RCW 9.73.050. Our Supreme Court has held this means courts "must exclude any information obtained ... while ... violating the statute." State v. Fjermestad , 114 Wash.2d 828, 836, 791 P.2d 897 (1990). As the trial court recognized in ruling on Mr. Gearhard's motion to suppress, unless his conversation with J.C. fell within an exception, neither the recording nor any testimony about the recorded conversation was admissible evidence.

¶ 17 RCW 9.73.030(2) establishes three exceptions to the statutory prohibition for recordings made with one-party consent. The second of the three exceptions provides that with one party consent, a recording can be made of conversations "which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands." In State v. Williams , the Washington Supreme Court held that this second exception "must be interpreted as exempting from the act only communications or conversations ‘which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands,’ of a similar nature ," lest "an overbroad interpretation of the ‘catchall’ phrase ... negate the privacy act protections whenever a conversation relates in any way to unlawful matters." 94 Wash.2d 531, 548, 617 P.2d 1012 (1980) (quoting RCW 9.73.030(2)(b) ). The court observed that the legislature intended to require suppression of recordings "of even conversations relate[d] to unlawful matters if the recordings were obtained in violation of the statutory requirements." Id. The "threats ... or other unlawful requests or demands" exception therefore "must be strictly construed to give effect to this legislative intention." Id.

¶ 18 Discussion of the exception in Williams was mostly in the context of a defense argument that all three exceptions to the prohibition on recording should be construed to apply only in an emergency situation—an argument the court rejected. Williams involved threats of arson and murder and therefore bodily harm, so in its brief discussion of the need to strictly construe the exceptions, the court had no need to explain (and did not explain) the "similar nature" that would qualify conversations as "other unlawful requests or demands." In the 40 years since Williams was decided, no published Washington decision has articulated the "similar nature" that will bring unlawful requests or demands within the exception. When the issue presented is whether as a matter of statutory interpretation the facts are encompassed by the Privacy Act's protections, our review is de novo. State v. Kipp , 179 Wash.2d 718, 728, 317 P.3d 1029 (2014).

¶ 19 Mr. Gearhard characterizes the exception as requiring the unwittingly recorded speaker to have conveyed some type of threat—arguing that "what Williams ... essentially require[s] is an ‘or else’ for the ‘unlawful request or demand[ ]’ clause to apply." Appellant's Opening Br. at 8. The State responds that Williams was wrongly decided, because limiting the "unlawful request or demand" clause to acts similar to threats of extortion, blackmail or bodily harm "thwarts the plain meaning of the statute and is a misapplication of basic rules of statutory construction." Br. of Resp't at 6. The State conceded at oral argument that we are bound by Williams.

¶ 20 Once our Supreme Court has decided an issue of state law, that interpretation is binding on this court. State v. Gore , 101 Wash.2d 481, 487, 681 P.2d 227 (1984). It was the State's position, evidently accepted by the trial court, that it was enough that Mr. Gearhard made an unlawful request. No consideration was given to whether the request was of a similar nature to a threat of extortion, blackmail or bodily harm. We question Mr. Gearhard's position that a threat is required, given the plainly different terms "request" and "demand." We need not engage in a close examination of the "similar nature" required to conclude that Mr. Gearhard's statements during the conversation do not fall within the exception, however. He did ask J.C. to lie, but in the context of expressing fear and hinting at a reward—considered as a whole, it was in the nature of a request, or more aptly a plea, for a favor. It was not of a similar nature to a threat of extortion, blackmail, or bodily harm.

¶ 21 Mr. Gearhard's motion to suppress evidence of the recorded conversation should have been granted and his objection to its consideration in the stipulated facts trial should have been sustained. We reverse the witness tampering conviction and for reasons set forth below hold that the State's appeal is barred by constitutional protections against double jeopardy.

¶ 22 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished opinions.

I CONCUR:

Pennell, C.J.

Korsmo, J. (dissenting in part) ¶ 33 I agree with the majority's analysis of the Privacy Act and the disposition of the witness tampering charge.

¶ 34 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered

¶ 35 My disagreement with the majority's analysis of the cross appeal is based solely on the timing of the trial court's ruling. The trial court had already declared a mistrial due to a hung jury and discharged the jurors. At that point, the trial had concluded. Directing a verdict a week after the mistrial was not a judicial acquittal because the trial already had ended. Instead, as recognized by the United States Supreme Court authority relied on by the majority, this case presents a posttrial legal error that the State rightly could appeal.

¶ 36 There are a pair of preliminary matters to address before considering the double jeopardy claim. The first involves the mischaracterization of the instructional error. Contrary to defense counsel's argument to the trial court, the instructional mishap did not implicate State v. Hickman , 135 Wash.2d 97, 954 P.2d 900 (1998). That case requires the State to prove any additional elements that were (unnecessarily) included in the elements instruction. Id . at 102-03, 954 P.2d 900. Thus, if the State undertakes to prove a specific additional fact by way of the elements instruction, the evidence must support that factual determination even if the fact is not an element of the offense. Id . at 101-05, 954 P.2d 900.

¶ 37 However, this case did not involve the inclusion of an extraneous fact or new element in the elements instruction. Instead, this was a common case of an error in the elements instruction. The Washington Supreme Court has rejected applying Hickman in this context. State v. Teal , 152 Wash.2d 333, 96 P.3d 974 (2004). In Teal , the elements instruction was erroneous because it omitted the phrase "or accomplice" in a case of accomplice liability. Id . at 336, 96 P.3d 974. The defendant argued that Hickman therefore required proof that the defendant alone committed all of the actions involved in the conspiracy since he was the only actor identified by the elements instruction. Id . at 337, 96 P.3d 974. The court rejected the argument, distinguishing Hickman because there was no added element. Id . at 338, 96 P.3d 974. Hickman did not require dismissal. Id . at 337-38, 96 P.3d 974.

¶ 38 Error in an elements instruction can be harmless unless it relieves the State of its burden to prove each element. State v. Sloan , 149 Wash.App. 736, 742, 205 P.3d 172 (2009) (elements instruction naming an uncharged second victim harmless error). Even the omission of an element is subject to harmless error analysis. Neder v. United States , 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) ; State v. Brown , 147 Wash.2d 330, 340-41, 58 P.3d 889 (2002). I have belabored this point due to the uncritical acceptance of this argument below. Labeling something " Hickman error" does not make it so. Most errors involving the elements instruction do not involve the Hickman problem.

¶ 39 The second preliminary point also was not necessary for the majority to address, although it is for my analysis. The mistrial was effective at the point the judge publicly accepted the jury's inability to resolve the case and orally declared the mistrial and discharged the jury. E.g. , State v. Strine , 176 Wash.2d 742, 293 P.3d 1177 (2013) (mistrial ordered after jury polling established "not guilty" verdicts were not unanimous); State v. Burdette , 178 Wash. App. 183, 196, 313 P.3d 1235 (2013) (mistrial motions historically heard on record in courtroom); State v. Kirk , 64 Wash. App. 788, 793, 828 P.2d 1128 (1992) (discharge of jury triggers acquittal or mistrial). The parties do not challenge the court's declaration of a mistrial and the discharge of the jury in this appeal, nor did they do so at trial. The mistrial was properly declared—a week before the court considered the belated motion to direct a verdict.

¶ 40 The majority faults the prosecution for not finding any case law addressing the timeliness of a directed verdict. It should not. The cases relied on by the majority both arose from erroneous sufficiency of the evidence rulings by the trial judge while the cases were still being tried . Evans v. Michigan , 568 U.S. 313, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013) ; Fong Foo v. United States , 369 U.S. 141, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962). That procedural setting was actually the key to both cases, because double jeopardy does not bar a retrial after a proper mistrial has been declared. The seminal case on this aspect of double jeopardy is Green v. United States , 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957). There the jury did not return a verdict on the greater charge of first degree murder, but did find the defendant guilty of the lesser offense of second degree murder; the jury was discharged without inquiry into the first degree murder count. 355 U.S. at 190-91, 78 S.Ct. 221. The court noted that the verdict was both an implied acquittal and a discharge of the jury without the defendant's consent. Id . Each reason independently justified barring retrial due to double jeopardy. Id .

¶ 41 The latter rationale, derived from Wade v. Hunter , 336 U.S. 684, 688-90, 69 S. Ct. 834, 93 L. Ed. 974 (1949), governs whether a mistrial properly continues jeopardy or ends jeopardy. Evans , 568 U.S. at 319-20, 133 S.Ct. 1069 ; Strine , 176 Wash.2d at 753, 293 P.3d 1177. It effectuates the "defendant's valued right to have his trial completed by a particular tribunal." Wade , 336 U.S. at 689, 69 S.Ct. 834. It is this particular right that applies when a criminal trial is interrupted short of a jury verdict. Arizona v. Washington , 434 U.S. 497, 503-06, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). A hung jury is a valid basis for declaring a mistrial and discharging a jury without offending double jeopardy. Id . at 505-06, 98 S. Ct. 824 ; Green , 355 U.S. at 188, 78 S.Ct. 221 ; Strine , 176 Wash.2d at 753, 293 P.3d 1177.

¶ 42 With that overblown introduction, it is finally time to turn to Evans and explain why it supports the State's position rather than Gearhard's. Evans was the court's most recent discussion of the application of double jeopardy to a judge's dismissal of a case during trial due to insufficient evidence. At issue was a Michigan trial judge's decision to direct a verdict in favor of the defendant due to failure of the State to prove an element of the crime that was not actually an element. 568 U.S. at 315, 133 S.Ct. 1069. The Michigan appellate courts had distinguished Fong Foo and other cases on the basis that they had involved errors of fact rather than errors of law. Id . at 317, 133 S. Ct. 1069. The Evans majority favored a bright line rule based on substance rather than cloud its evidentiary insufficiency case law with distinctions based on "labels." Id . at 322, 133 S. Ct. 1069. Because the trial judge had believed the fictitious element had not been proved, his ruling was predicated on insufficient evidence rather than legal error. Id . at 324, 133 S. Ct. 1069.

¶ 43 There was nothing novel in Evans , and the court maintained the Wade distinction between trials terminated prematurely due to procedural problems and those with substantive problems:

Procedural dismissals include rulings on questions that "are unrelated to factual guilt or innocence," but "which serve other purposes," including "a legal judgment that a defendant, although criminally culpable, may not be punished" because of some problem like an error with the indictment.

Both procedural dismissals and substantive rulings result in an early end to trial, but we explained in Scott that the double jeopardy consequences of each differ. ... In contrast, a "termination of the proceedings against [a defendant] on a basis unrelated to factual guilt or innocence of the offense of which he is accused," ... i.e. , some procedural ground, does not pose the same concerns, because no expectation of finality attaches to a properly granted mistrial.

Id . at 319-20, 133 S.Ct. 1069 (citations omitted) (alteration in original).

¶ 44 That finally brings us to the timing question. There is no question that if the trial judge had ended the jury's deliberations by directing a verdict due to insufficient evidence, Evans and its predecessors would bar a second trial. But that is not what happened here. The court declared a mistrial due to the jury's inability to agree and discharged the jury. That was the proper action legally and factually. And the result of that ruling was to terminate jeopardy and authorize a second trial. Id . That should be the end of the matter.

¶ 45 Mr. Gearhard then brought a posttrial motion, styled a "directed verdict," as if the trial was still in progress. It was not. The case was still alive and pending retrial, with the mistrial ruling resolving the "prized right" to have the original jury decide the case. There was no jury to which the judge could have directed a verdict. Our rules permit a defendant to seek dismissal during trial, after verdict, or after judgment. CrR 7.4 ; CrR 7.5. Other than a pretrial motion to dismiss without prejudice per State v. Knapstad , 107 Wash.2d 346, 729 P.2d 48 (1986) and CrR 8.3(c), no rule contemplates dismissal for insufficient evidence for a case that is pending trial, and no rule applies absent a verdict or judgment to act upon. Entertaining the unauthorized motion was itself a mistake.

¶ 46 Even if we analogize the "directed verdict" to a proper posttrial motion under CrR 7.4 or CrR 7.5, the dismissal order is still one we review de novo because the trial court's ruling did not intrude on a pending jury deliberation. Posttrial motions based on insufficient evidence are permitted and can be appealed. State v. Ceglowski , 103 Wash. App. 346, 12 P.3d 160 (2000). This case was outside the Evans fact pattern—the trial judge did not discharge the jury due to his view of the sufficiency of the evidence. The judge dismissed the jury because it could not reach a verdict. The subsequent dismissal order did not deprive—and could not have deprived—Mr. Gearhard of his right to have the original jury resolve the case. It came too late.

¶ 47 As Evans itself teaches us, a procedural "dismissal" because of a hung jury is not the equivalent of a substantive dismissal due to insufficient evidence. The latter implicates the double jeopardy protection against retrial following acquittal, while the former involves the right to have the jury decide the case. The trial court's dismissal ruling did not infringe on the jury's function and did not trigger double jeopardy.

¶ 48 The order of dismissal should be reversed. Since the majority concludes otherwise, I respectfully dissent.