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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                             NO. 69743-9-

                     Respondent,                 DIVISION ONE

                     v.



VADIM FEDOROV,                                   PUBLISHED OPINION

                     Appellant.                  FILED: May 12, 2014


       Lau, J. —Vadim Fedorov appeals from the judgment and sentence entered after

a Snohomish County jury found him guilty of second degree identity theft. Because

(1) the passage of time and change of circumstances did not render the Miranda1

warnings stale, (2) the evidence sufficiently established that Fedorov used the name of

a specific, real person with intent to commit a crime, (3) the court was not required to

instruct the jury as to the specific crime Fedorov intended to commit, and (4) the court's

reasonable doubt instruction properly stated the law, we affirm.

                                          FACTS


       On October 7, 2012, Everett Police Officer Christopher Reid stopped Fedorov for

speeding. Fedorov had no driver's license. Officer Reid asked him for his name and


        Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
69743-9-1/2



date of birth. He identified himself as Zachary Anderson with an August 31,1984 birth

date. A computer search showed multiple arrest warrants for an individual named

Zachary Anderson, born on August 30, 1984. Officer Reid decided the match was

sufficiently close and arrested Fedorov on the warrants. Officer Shane Nelson read

Fedorov his Miranda rights in Officer Reid's presence. Fedorov said he understood

those rights and was willing to talk to the officers.

       Still not convinced that Fedorov was who he claimed to be, officers took his

fingerprints and compared them to the known prints for Zachary Anderson.2 Officers

determined Fedorov's true name was Vadim Fedorov. At trial, Sergeant George

Hughes testified that he contacted Fedorov in the booking area after learning about the

fingerprint results:

               Q. ... You took that information. You went out to that area?
               A. Yes. And I walked up by one of the deputy stations and I called for, I
       think it was a Zachary and then an Anderson. And then finally I called for
       Fedorov, and Mr. Fedorov raised his hand.
               I motioned him to come up to me, and he came up. And I said, "You
       know, it really pisses me off. You waste our time like this. Why didn't you just
       tell me who you were?" I said, "Do you think we're stupid?" And he says,
       "Yeah." I said, "Go sit down."
              Q. Okay. And when you called out the name for Zachary Anderson, did
       the defendant have any kind of, did he display any kind of physical—anything?
              A. He was just looking around the room. Yeah.
              Q. Any other statements the defendant made at that point?
               A. I didn't talk to him any further.

Report of Proceedings (RP) (Dec. 18, 2012) at 137-38.

       The State charged Fedorov with second degree identity theft, alleging he used

the identity of Zachary Anderson, born on August 30, 1984, to mislead a public servant.

A jury found Fedorov guilty as charged. Fedorov appeals.

       2 Fingerprint comparison is not part of the general booking process.
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                                        ANALYSIS

      Voluntariness of Statements

       Fedorov first contends the trial court erroneously denied his CrR 3.5 motion to

suppress the above-quoted statements he made at the jail to Sergeant Hughes, who

questioned Fedorov about his identity. He argues the passage of time and changed

circumstances rendered the Miranda warnings "stale." Br. of Appellant at 2. According

to Fedorov, fresh Miranda warnings were required before Sergeant Hughes questioned

him. The parties agree the questioning constituted custodial interrogation for Miranda

purposes. The issue here is whether Sergeant Hughes's failure to issue fresh Miranda

warnings before questioning Fedorov rendered Fedorov's responses involuntary and,

thus, inadmissible.

       The United States Supreme Court "has eschewed per se rules mandating that a

suspect be re-advised of his rights in certain fixed situations in favor of a more flexible

approach focusing on the totality of the circumstances." United States v. Rodriauez-

Preciado. 399 F.3d 1118,1128 (9th Cir. 2005). Generally, "[wjhere a defendant has

been adequately and effectively warned of his constitutional rights, it is unnecessary to

give repeated recitations of such warnings prior to the taking of each separate in-

custody statement." State v. Duhaime, 29 Wn. App. 842, 852, 631 P.2d 964 (1981)

(fresh warnings held unnecessary where the defendant signed a written waiver of

constitutional rights less than two hours before the challenged questioning occurred).
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      Fedorov argues fresh warnings were necessary partly because three and a half3

hours passed between the initial advice of rights and the challenged questioning. But

courts have upheld confessions in the face of far lengthier delays. See 2 Wayne R.

LaFave et al, Criminal Procedure § 6.8(b) at 805 (3d ed. 2007) (collecting cases

supporting proposition that fresh warnings are generally unnecessary "after the passage

of just a few hours"). In Rodriguez-Preciado, for example, the court held fresh warnings

were unnecessary even though the police resumed questioning 16 hours after advising

the defendant of his rights. Rodriguez-Preciado. 399 F.3d at 1129. And in United

States ex rel. Henne v. Fike. 563 F.2d 809 (7th Cir. 1977), cited by the State, the court

held fresh warnings were unnecessary despite a nine hour interval. Fike, 563 F.2d at

814. The interval here—three and a half hours—was brief by comparison.

       Fedorov also contends fresh warnings were necessary due to the "change in

personnel." Br. of Appellant at 11. He relies on Zappulla v. New York. 391 F.3d 462

(2d Cir. 2004), but that case is distinguishable. In Zappulla, the court concluded the

defendant's confession violated due process where

       (1) 24-hours had lapsed between the giving of Miranda warnings and the
       questioning of Zappulla about [the victim's] murder; (2) Zappulla was not in
       continuous police custody between the initial giving of Miranda warnings and the
       subsequent interrogation; and (3) the second interrogation concerned a crime
       unrelated to that for which he was initially arrested.

Zappulla. 391 F.3d at 474. Here, the "lapse" was relatively short, and Fedorov

remained in police custody after the issuance of Miranda warnings. Finally, although

Sergeant Hughes questioned Fedorov about a crime arguably unrelated to the arrest


      3 Both parties agree the time lapse between Miranda warnings and the contested
statements to Sergeant Hughes was three to three and a half hours.
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warrants, significantly, both Officer Reid and Sergeant Hughes asked questions for the

same purpose—to determine Fedorov's true identity. The mere lapse of time and

change of interrogator does not render Miranda warnings "stale" necessitating repetition

of rights before a voluntary statement may be made. Wvrick v. Fields. 459 U.S. 42, 48-

49, 103 S. Ct. 394, 74 L. Ed. 2d 214 (1982); United States v. Andaverde. 64 F.3d 1305,

1312 (9th Cir. 1995).

      Fedorov also argues that "the securing of the fingerprint comparisons"

constituted a change in circumstances necessitating fresh warnings. Br. of Appellant

at 11. On this point, he cites no authority. Argument unsupported by citation to

authority need not be considered. RAP 10.3(a)(6); Cowiche Canyon Conservancy v.

Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992). In any event, the police may

actively deceive a suspect without destroying the voluntariness of a confession.

See State v. Burkins. 94 Wn. App. 677, 695, 973 P.2d 15 (1999) ("Deception alone

does not make a statement inadmissible as a matter of law; rather, the inquiry is

whether the deception made the waiver of constitutional rights involuntary."); see also

Commonwealth v. Martinez. 458 Mass. 684, 693, 940 N.E.2d 422 (2011) ("If the making

of false or incriminating statements and being confronted by them were to undermine

and render ineffective an otherwise valid Miranda waiver, police would be obliged to

repeat Miranda warnings whenever a defendant in an interrogation moves toward

inculpating himself. This is not the law."). Considering the totality of the circumstances

discussed above, we conclude "the securing of the fingerprint comparisons" was not an

intervening circumstance necessitating fresh warnings.

      We conclude the trial court properly admitted Fedorov's challenged statements.

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       Sufficiency of the Evidence

       Fedorov next challenges the sufficiency of the evidence supporting his second

degree identity theft conviction. He contends the State failed to prove (1) that he used

the identity of a "specific real person or corporation" and (2) that he used the identity

"with the intent to effectuate any specific crime." Br. of Appellant at 14-15.

       "A sufficiency challenge admits the truth of the State's evidence and accepts the

reasonable inferences to be made from it." State v. O'Neal. 159 Wn.2d 500, 505, 150

P.3d 1121 (2007). We will reverse a conviction "only where no rational trier of fact could

find that all elements of the crime were proved beyond a reasonable doubt." State v.

Smith. 155 Wn.2d 496, 501, 120 P.3d 559 (2005). An identity theft conviction requires

proof that the defendant knowingly obtained, possessed, used, or transferred 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.4 RCW 9.35.020(1). The victim must be a

"specific, real person." State v. Berry. 129 Wn. App. 59, 67, 117 P.3d 1162 (2005).

       Fedorov first argues, "The State failed to prove that Mr. Fedorov misused the

identity of a person in light of his dogged insistence on a date of birth that did not match

any of the more than 26 individuals with similar names found just within the Judicial

Information System (JIS)." Br. of Appellant at 14. We are not persuaded.




       4 First degree identity theft requires proof that the defendant obtained "credit,
money, goods, services, or anything else of value in excess of one thousand five
hundred dollars in value . ..." RCW 9.35.020(2). Second degree identity theft requires
a violation not amounting to first degree identity theft. RCW 9.35.020(3).
69743-9-1/7



       It is undisputed that Zachary Anderson, born on August 30, 1984, is a "specific,

real person."5 Berry. 129 Wn. App. at 67. Fedorov acknowledges he used the name

"Zachary Anderson" but claims that the August 31,1984 birth date he used belonged to

none of the Zachary Andersons of record.

       Fedorov's argument ignores Officer Reid's testimony. According to Officer Reid,

Fedorov initially insisted his birth date was August 31, 1984. He later used the actual

date of Zachary Anderson's birth date—August 30,1984:

              Q. So you asked him for his birth date and he gave the birthday of
       8/31/84; correct?
             A. Yes, sir.
              Q. And Dispatch came back to a Zachary Anderson 8/30/84?
              A. Yes, sir.

              Q. At any point while at the jail or on the traffic stop did the defendant
       ever admit that his birthday was 8/30/84?
              A. At the jail, Mr. Fedorov finally admitted that he was born on the 30th.

RP (Dec. 18, 2012) at 109-12. Assuming the truth of this evidence, a rational trier of

fact could find beyond a reasonable doubt that Fedorov used the name and birth date of

a specific, real person—Zachary Anderson, born on August 30, 1984.

       Fedorov also challenges the sufficiency of the evidence establishing that he used

Zachary Anderson's identity "with the intent to commit, or to aid or abet, any crime."

RCW 9.35.020(1). Under Washington law, "[a] person who knowingly makes a false or

misleading material statement to a public servant is guilty of a gross misdemeanor."

RCW 9A.76.175. Here, assuming the truth of the State's evidence, we conclude that a




     5 The court admitted Anderson's state identification card, which confirmed his
name and August 30,1984 birth date.
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69743-9-1/8



rational trier of fact could infer that Fedorov acted with intent to commit the crime of

knowingly making a false or misleading material statement to a public servant.

       The record shows Fedorov repeatedly told Officer Reid his name was Zachary

Anderson. These statements caused Officer Reid to arrest Fedorov on Anderson's

outstanding warrants. At the jail, Fedorov also claimed Anderson's birth date. Officer

Reid informed a booking officer that "some of the details were off and that [Fedorov]

may have been lying about his name." RP (Dec. 18, 2012) at 111. Given the

uncertainty of Fedorov's identity, jail staff performed a fingerprint analysis. A

corrections deputy testified that because fingerprinting was not part of the standard

booking process, it took "extra time" to book Fedorov into jail. RP (Dec. 18, 2012)

at 135. At no point during the analysis did Fedorov reveal his true identity.

       Sergeant Hughes confronted Fedorov after the fingerprinting analysis indicated

his true name was Vadim Fedorov. Fedorov raised his hand when Sergeant Hughes

called out "Fedorov" in the jail's booking area. When Sergeant Hughes asked if

Fedorov thought the jail staff was "stupid," Fedorov responded, "Yeah." RP (Dec. 18,

2012) at 137. Fedorov planned to reveal his true identity during his booking interview.

A booking officer testified, "He told one of our officers that he was going to admit to his

identity after—during his interview process." RP (Dec. 18, 2012) at 130.

       Given Fedorov's multiple acts of intentional deception, a rational trier of fact

could infer that he intended to violate the false statement statute, RCW 9A.76.175.




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69743-9-1/9



       To-Convict Instruction

       Fedorov next challenges instruction 8, the WPIC6 to-convict instruction directing

the jury to consider whether Fedorov used another person's identity "with the intent to

commit or aid or abet any crime." (Emphasis added.) Fedorov argues the instruction

must specify the crime he allegedly intended to commit—in this case, a violation of the

false statement statute. The parties agree that the sole issue is whether the particular

crime intended by a defendant charged with second degree identity theft is an essential

element that must appear in the trial court's to-convict instruction. We review this issue

de novo. State v. Mills. 154 Wn.2d 1, 7, 109 P.3d 415 (2005) (adequacy of to-convict

instructions reviewed de novo).

       Washington courts have addressed similar issues in a line of cases beginning

with State v. Bergeron. 105 Wn.2d 1, 711 P.2d 1000 (1985). In Bergeron, the appellant

argued that "the particular crime which the defendant intended to commit inside the

building or dwelling is an element of the crime of burglary, and that such crime must be

specifically charged, instructed on (in a jury trial) and found as a fact (in a trial to the

court)." Bergeron. 105 Wn.2d at 6. The court disagreed, reasoning that burglary in

Washington is modemly a statutory offense and that our burglary statutes plainly

"require only an intent to commit any crime." Bergeron. 105 Wn.2d at 15. It concluded:

       [W]e now hold that the specific crime or crimes intended to be committed inside
       burglarized premises is not an element of burglary that must be included in the
       information, jury instructions or in the trial court's findings and conclusions. It is
       sufficient if the jury is instructed (or that the court find and conclude, as it did in
       the present case) in the language of the burglary statutes.



       611A Washington Practice: Washington Pattern Jury Instructions:
Criminal 131.06, at 560 (3d ed. 2008).
69743-9-1/10



Bergeron. 105 Wn.2d at 16. In so holding, the court expressly overruled State v.

Johnson. 100 Wn.2d 607, 674 P.2d 145 (1983), to the extent that Johnson held the

charging document and jury instructions must specify the defendant's intended crime

"as an element of the offense." Bergeron. 105 Wn.2d at 8.

       The Supreme Court subsequently applied Bergeron in the context of aggravated

first degree murder. In State v. Jeffries. 105 Wn.2d 398, 717 P.2d 722 (1986), the trial

court instructed the jury that a conviction required a finding that "the defendant

committed the murder to conceal the commission of a crime or to protect or conceal the

identity of any person committing a crime." Jeffries. 105 Wn.2d at 419. On appeal, the

defendant challenged the instruction on the basis that it omitted the particular crime he

allegedly concealed. Relying on Bergeron, the court held, 'The specific crime need not

be stated, as the statute did not require it." Jeffries. 105 Wn.2d at 420.

       Bergeron's rationale applies with equal force here. Like burglary (and

aggravated first degree murder), identity theft is a statutory offense. The statute merely

requires proof of intent to commit "any crime." RCW 9.35.020(1). Under Bergeron, the

statute is plain on its face and thus does not support "reading the element of intent to

commit a particular crime into the statutory offense ...." Bergeron. 105 Wn.2d at 15.

       Fedorov relies on State v. Bryant. 65 Wn. App. 428, 438, 828 P.2d 1121 (1992).

In Bryant, the defendant argued "the information charging him with second degree

felony murder was constitutionally defective for failing to specify the prong of the statute

on which the underlying charge of first degree assault was based." Bryant. 65 Wn. App.

at 437. In rejecting the defendant's argument, we noted that "the underlying crime is an

element of felony murder. ..." Bryant. 65 Wn. App. at 438.

                                           -10-
69743-9-1/11



      Bryant is not controlling because it contained no discussion of jury instructions.

The issue before us was the adequacy of the charging document, not the adequacy of

the to-convict instruction. Despite Fedorov's suggestion, those issues are analytically

distinct. See State v. Saunders. 177 Wn. App. 259, 269, 311 P.3d 601 (2013)

(discussing "the different underlying purposes for including an essential element in a

charging document and including such an element in a to-convict instruction.").

       Further, cases discussing the elements of felony murder are of questionable

relevance due to the felony murder statutes' unique language. Whereas the identity

theft statute broadly requires intent to commit any crime, the second degree felony

murder statute more narrowly requires commission or an attempt to commit "any felony,

including assault, other than those enumerated in RCW 9A.32.030(1)(c)."

RCW 9A.32.050(1)(b).7 Commission of a felony listed in RCW 9A.32.030(1)(c) may

elevate the offense to first degree felony murder. In contrast, the identity theft statute

refers to "any crime" without qualification. According to Bergeron, this textual

consideration is legally significant. We are unpersuaded by Fedorov's analogy to

Bryant.

       Fedorov also cites State v. DeRvke. 149 Wn.2d 906, 73 P.3d 1000 (2003). In

DeRvke. the court held "it was error to give the jury a 'to convict' instruction for the

charge of attempted first degree rape which did not specify the degree of the rape

       7 At the time we decided Bryant, the statute required proof that the defendant
committed or attempted to commit "any felony other than those enumerated in
RCW 9A.32.030(1)(c)         " Laws of 1975-76, 2d Ex. Sess., ch. 38, § 4. Fedorov
asserts, "A person is guilty of murder in the second degree when he commits or
attempts to commit any felony, and, in the course of and in furtherance of such crime or
in immediate flight therefrom, he causes the death of another." Br. of Appellant at 18.
His statement of the law is incomplete.
                                           -11-
69743-9-1/12



allegedly committed." DeRvke. 149 Wn.2d at 912. Fedorov does not argue that

instruction 8 contained a similar deficiency. Instead, he relies on DeRvke for the

unremarkable proposition that "the 'to convict' instruction must generally contain all

elements of the charged crime." Br. of Appellant at 17. As discussed above,

instruction 8 contained all essential elements of the charged crime.

          As Fedorov acknowledges, the issue is ultimately one of due process. A

to-convict instruction may violate due process if it leaves the jury guessing at the

meaning of an element of the crime or relieves the State of the burden of proving an

element. Saunders. 177 Wn. App. at 270. Fedorov does not claim the jury was left

guessing as to which crime he intended to commit. His attorney conceded during

closing arguments that her client was "guilty of making a false statement to a police

officer       " RP (Dec. 18, 2012) at 166. Finally, under Bergeron. Fedorov's claim that

the to-convict instruction omitted an essential element is contrary to the identity theft

statute's plain language. The to-convict instruction properly states the law.8

          Reasonable Doubt Instruction

          Fedorov lastly challenges the court's reasonable doubt instruction. He claims it

was error to instruct the jury that "[i]f, from such consideration, you have an abiding

belief in the truth of the charge, you are satisfied beyond a reasonable doubt."9 Fedorov



       8 Fedorov argues, "The error in failing to include the underlying offenses in the 'to
convict' instruction was not a harmless error." Br. of Appellant at 20. Given our
analysis, we need not reach this issue.

          9 The trial court used 11A Washington Practice: Washington Pattern Jury
Instructions: Criminal 4.01, at 85 (3d ed. 2008), which includes the "abiding belief"
language.
                                            -12-
69743-9-1/13



argues, "The 'belief in the truth' language encourages the jury to undertake an

impermissible search for the truth." Br. of Appellant at 22.

      We disagree. State v. Bennett. 161 Wn.2d 303, 165 P.3d 1241 (2007), and State

v. Pirtle. 127 Wn.2d 628, 904 P.2d 245 (1995), control. Fedorov relies on State v.

Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012), to challenge the "abiding belief"

language. He claims this language is similar to the impermissible "speak the truth"

remarks made by the State during closing. Emery. 174 Wn.2d at 751. Emery found the

"speak the truth" argument improper because it misstated the jury's role. Here, read in

context, the "belief in the truth" phrase accurately informs the jury its "job is to determine

whether the State has proved the charged offenses beyond a reasonable doubt."

Emery. 174 Wn.2d at 760. The reasonable doubt instruction accurately stated the law.

                                       CONCLUSION

       For the reasons discussed above, we affirm Fedorov's conviction.




                                                         jjr&
WE CONCUR:




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