Opinion
No. 55627-4-I.
May 1, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-01406-3, Stephen J. Dwyer, J., entered December 30, 2004.
Counsel for Appellant/Cross-Respondent, Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Cheryl D. Aza, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
A Monroe — Informational only (Appearing Pro Se), Doc # 739077, Wash. Corrections Ctr, P.O.BOX 900, Shelton, WA 98584.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Affirmed by unpublished per curiam opinion.
In order for statutes to be deemed concurrent, the general statute must be violated every time the special statute has been violated. Because a person could violate RCW 9A.76.175, the offense of making a false statement to a public servant, without violating RCW 9.35.020(1) and (3), the offense of identity theft in the second degree, the statutes are not concurrent and the State was not prohibited from charging Antonial Monroe with violating RCW 9.35.020(1) and (3) instead of RCW 9A.76.175. We affirm.
FACTS
On June 11, 2004, Officer James Hoffman of the Lynnwood Police Department observed the vehicle Antonial Monroe was driving make three sudden stops in traffic. Officer Hoffman initiated a traffic stop and requested Monroe's driver's license, registration and proof of insurance. Monroe gave Hoffman a driver's license bearing the name of Morthain Borders. Monroe informed Hoffman he did not have insurance with him. Monroe also explained he was demonstrating a problem with his brakes to a mechanic who was riding with him in the car. His passenger confirmed Monroe's version of events.
After checking the validity of the license provided to him, Officer Hoffman decided not to cite Monroe. He returned the driver's license bearing Border's name and told Monroe he was free to go. Monroe then opened his wallet to replace his license. The primary focus of Officer Hoffman was on Monroe's hands for safety reasons and Hoffman observed in Monroe's wallet a small green plastic baggie containing what he recognized, based on his training and experience, to appear to be methamphetamine. Monroe immediately put the wallet down and continued to make movements around where he had placed the wallet. Monroe was ordered to place his hands on the dashboard of the car, but refused to comply. Monroe was eventually subdued with pepper spray and placed under arrest. A search incident to arrest yielded contraband.
At the jail, Monroe was identified from his fingerprints as Antonial Monroe. By amended information, the State charged Monroe with one count of possession of a controlled substance, in violation of RCW 69.50.4013 and with one count of identity theft in the second degree, in violation of RCW 9.35.020(1) and (3). A jury convicted Monroe of possession of a controlled substance but did not reach a verdict on the identity theft count. After the State filed the identity theft charge again, Monroe agreed to a bench trial based on stipulated evidence. The court found Monroe guilty of identity theft in the second degree. Monroe appeals.
ANALYSIS
Monroe was charged and convicted of identity theft in the second degree in violation of RCW 9.35.020(1) and (3) for providing a police officer with another person's driver's license during a traffic stop. RCW 9.35.020(1) and (3) state:
9.35.020 Identity theft
(1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.
. . . .
(3) Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony punishable according to chapter 9A.20 RCW.
Monroe's conviction was predicated on his intent to "commit, or to aid or abet" the misdemeanor offense of making a false statement to a public servant, proscribed by RCW 9A.76.175. RCW 9A.76.175 states:
9A.76.175 Making a false or misleading statement to a public servant A person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor. "Material statement" means a written or oral statement reasonably likely to be relied upon by a public servant in the discharge of his or her official powers or duties.
Monroe contends RCW 9.35.020(1) and (3) is a concurrent offense with RCW 9A.76.175 and that the State was required to charge him with the latter offense because it is more specific. We hold that the statutes are not concurrent.
When a specific statute punishes the same conduct punished under a general statute, they are concurrent statutes and the State must charge only under the specific statute. "In order for statutes to be deemed concurrent, the general statute must be violated every time the special statute has been violated." Or put another way, "`[a]ll of the elements required to be proved for a conviction of [the general statute] are also elements that must be proved for conviction of [the specific statute].'"
State v. Presba, 131 Wn. App. 47, 126 P.3d 1280 (2005) (citing State v. Shriner, 101 Wn.2d 576, 681 P.2d 237 (1984)).
Presba, 131 Wn. App. at 52 (citing Shriner, 101 Wn.2d at 580).
Presba, 131 Wn. App. at 52 (quoting Shriner, 101 Wn.2d at 579-80).
Here, the statute prohibiting the making of a false statement to a public servant is not limited to the use of a false name or other means of identification. Therefore, a person could commit the offense of making a false statement to a public servant (the purported specific statute) without committing the offense of identity theft (the purported general statute). Furthermore, the crime of making a false statement to a public servant does not require any proof that the defendant used another person's means of identification. Therefore, the State's decision to charge Monroe under the identity theft statute was not improper.
For the same reasons, we reject Monroe's equal protection argument because the elements of the two statues at issue are not identical.
Presba, 131 Wn. App. at 54 (`there is no equal protection violation if the elements of the two crimes in question are not the same').
Monroe also challenges the sufficiency of the evidence. Identity theft as applied here requires proof only that Monroe used "a means of identification . . . of another person . . . with the intent to commit, or to aid or abet, any crime." Monroe was stopped for driving erratically and offered the police officer a driver's license of another person in an effort to thwart the officer's attempt to ascertain his correct identity and enforce the traffic laws. The information Monroe used constitutes a "means of identification" and the evidence supports an inference that he did so to facilitate the offense of making a false statement to a public servant. The evidence was sufficient.
RCW 9.35.020(1) (emphasis added).
Yet Monroe argues the State's charging decision creates an absurd result that offends common sense and violates the spirit of the identity theft law. He suggests the identity theft law should only be used when a person uses another's identification to violate that person's privacy or financial security. In support, he points to the statement of intent found in RCW 9.35.001. However, Monroe's arguments were recently considered and rejected by this court in State v. Presba, and we are constrained to again reject them here.
Presba, 131 Wn. App. 47.
Finally, as an additional ground for review, Monroe challenges the trial court's credibility determination in believing Officer Hoffman when he testified that during the traffic stop he immediately recognized the substance contained in the baggie as appearing to be methamphetamine. Monroe implies that if Officer Hoffman had not immediately recognized the substance in the baggie as being a controlled substance, he would not have had probable cause to arrest Monroe.
In support, Monroe points to the testimony of Officer William Koonce who arrived at the scene after Monroe had been pepper sprayed and who testified that Officer Hoffman told him that "[h]e thought he had seen some sort of contraband. Obviously, without getting a good look at it, he wasn't sure what it was." The trial court found that any inconsistencies between the testimony of Officers Koonce and Hoffman "are most likely due to the fact the Officer Koonce's participation in the arrest was minimal and he would therefore be less likely to accurately recall details months later" and found Officer Hoffman's testimony "more reliable on the issue of his knowledge at the time of the arrest."
"Credibility determinations are for the trier of fact and are not subject to review." Furthermore, "[w]e defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." As such, we defer to the trial court in its determination that Officer Hoffman's testimony was credible. There was no error.
State v. Summers, 107 Wn. App. 373, 388, 28 P.3d 780 (2001) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).
Summers, 107 Wn. App. at 388-89.
For the above reasons, the judgment and sentence is affirmed.
GROSSE, COLEMAN and APPELWICK, JJ.