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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                             Co)
                                                                                         C.4



THE STATE OF WASHINGTON,                  )       No. 73563-2-1
                                          )
                     Respondent,          )
                                          )       DIVISION ONE
                     v.                   )
                                          )
TIFFANY L. MARTIN,                        )       UNPUBLISHED OPINION
                                          )
                     Appellant.           )       FILED: February 27, 2017
                                          )

       MANN, J. --- Tiffany Martin appeals her conviction for identity theft assigning error

to the trial court's use of an alternative means jury instruction without providing a

corresponding unanimity instruction. Martin also appeals the trial court's order denying

her motion to suppress the evidence obtained after the police seized the vehicle she

was using at the time of her arrest. Because identity theft is not an alternative means

crime and the police had probable cause to believe that the vehicle contained evidence

of a crime, we affirm.

                                          FACTS

       On April 4, 2014, shortly before 1:00 a.m., Bellevue police officers were

dispatched to a suspicious circumstances call from a Shell gas station. A witness

reported that a dark colored sedan backed up to a garbage can on the side of the gas
No. 73563-2-1/2


station. The witness reported that a male and female were going through purses and

putting some of the contents into a clear plastic bin and other items into the garbage

can. The witness later told the police that when the man saw the officers arriving he

placed the plastic bin in the trunk and tried unsuccessfully to close the trunk.

       Bellevue Police Officer Jacob Childers responded first. When he initially drove

by the gas station he saw two people digging around in the back seat of a dark sedan.

When Childers approached the car, he saw a man standing at the back of the car with

the trunk open and a woman sitting in the back seat. Childers noticed several purses

and wallets inside the trunk, stacked on top of a plastic bin. Childers saw three or four

cell phones, flashlights, screwdrivers, wallets, an empty purse, and a laptop bag inside

the cab of the car. He also saw several knives inside the car, including one within the

woman's reach, which he seized for safety purposes. Childers reported that

screwdrivers, flashlights, and knives are commonly found in cars of people engaged in

vehicle prowling or burglary.

       Bellevue Police Officer Brian Schaffer arrived shortly after Childers. As he

approached the car, he could see two or three purses and a backpack in the trunk. He

saw screwdrivers, flashlights, an empty laptop case, four cell phones, two wallets, and

an empty black purse in the cab of the car. Schaffer believed the cell phones, wallets,

bags, and purses might have been stolen in vehicle prowls. He also reported that

screwdrivers were often used to pry open windows and car doors. Schaffer believed

the car likely contained stolen property and the items in the car were consistent with

vehicle prowl or identity theft.



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No. 73563-2-1/3


       When approached by officers, the male identified himself as Jontel Jackson. The

woman in the back seat claimed her name was Alicia Staton but was later identified as

Tiffany Martin. Childers recognized Jackson from a previous contact about two years

prior. Childers served a search warrant on the car Jackson and Martin were using and

found a large plastic tub of stolen mail in the trunk, along with stolen credit cards and

financial information. Jackson was later convicted of identity theft. Childers believed

that the woman in the car was actually Tiffany Martin, but he was not sure.

       Jackson declined to allow a search of the car. The officers released Martin and

Jackson; but had the car impounded so they could obtain a search warrant. Schaffer

obtained the warrant later that day and searched the car. The search revealed a

screwdriver, flashlight, pry bar, cell phones, wallets containing Jackson's and Martin's

information, credit cards in other people's names, receipts for gift cards and other

purchases using various credit cards, purses and bags, and a binder and ledger

containing other people's names, addresses, social security numbers, account

numbers, birth dates, checks, and credit cards.

       Martin was charged with eight counts of second degree identity theft under RCW

9.35.020. Before trial, Martin moved to suppress the evidence found in the car, arguing

that the search and seizure of the car was unconstitutional because the police did not

have probable cause. The court denied the motion. At the conclusion of trial, the trial

court provided the following instruction to the jury:

              A person commits the crime of identity theft in the second degree
       when, with intent to commit or aid or abet any crime, he or she knowingly
       obtains, possesses, uses or transfers a means of identification or financial
       information of another person, living or dead, knowing that the means of
       identification or financial information belongs to another person.

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No. 73563-2-1/4



The to-convict instructions for each of the eight counts stated in relevant part: "(1) What

on or about April 4, 2014, the defendant knowingly obtained, possessed, or transferred

a means of identification or financial information" of each named victim. The

instructions defined "possession," but did not provide definitions for "obtain" or

"transfer."

       The jury found Martin guilty of all eight counts as charged.

                                        ANALYSIS

                                                 I

       Martin argues first that her state constitutional right to jury unanimity was violated

because the jury was instructed on alternative means of committing identity theft without

including a unanimity instruction requiring the jury to find which of the alternative means

it relied upon in reaching the conviction. We disagree.

       The alternative means determination relates to the constitutionally protected right

of jury unanimity required under article I, section 21 of the Washington Constitution.

State v. Owens, 180 Wn.2d 90, 95, 323 P.2d 1030 (2014). An alternative means crime

is one where there are multiple means of proving the charge. Owens, 180 Wn.2d at 96.

When there are multiple means of proving the crime, a defendant is entitled to an

express unanimous jury determination as to which particular means he or she is guilty

of committing, unless there is sufficient evidence to support each of the alternative

means. Owens, 180 Wn.2d at 95 (citing State v. Ortega-Martinez, 124 Wn.2d 702, 707-

08, 881 P.2d 231 (1994)).




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No. 73563-2-1/5


       The legislature has not defined what constitutes an alternative means crime or

designated which crimes are alternative means crimes. Owens, 180 Wn.2d at 96.

Therefore, it is up to the courts to determine whether the crime is an alternative means

crime by reviewing each case on its own merits. Owens, 180 Wn.2d at 96. We review

questions of statutory interpretation de novo and interpret statutes to give effect to the

legislature's intentions. State v. Bunker, 169 Wn.2d 571, 577-78, 238 P.3d 487(2010).

       Use of a disjunctive "or" in a list of methods for committing the crime does not

necessarily create alternative means of committing the crime. State v. Peterson, 168

Wn.2d 763, 770, 230 P.3d 588(2010). The analysis places less weight on the use of

the disjunctive "or" and more weight on the distinctiveness of the criminal conduct.

State v. Sandholm, 184 Wn.2d 726, 735, 364 P.3d 87(2015). "The more varied the

criminal conduct, the more likely the statute describes alternative means. But when the

statute describes minor nuances inhering in the same act, the more likely the various

'alternatives' are merely facets of the same criminal conduct." Sandholm, 184 Wn.2d at

734.

       We begin our review by analyzing the language of the criminal statute at issue.

Owens, 180 Wn.2d at 96. RCW 9.35.020(1) provides:

              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.

(Emphasis added.) Martin contends that the use of four different verbs in the statute—

obtain, possess, use, or transfer—establishes that there are four alternative means of

committing the crime. And because the State was unable to prove that she



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No. 73563-2-1/6


"transferred" any of the identification or financial information, the conviction must be

overturned.

       Our Supreme Court rejected a similar argument in Owens. In Owens, the court

considered RCW 9A.82.050, which provides that laj person who knowingly initiates,

organizes, plans, finances, directs, manages, or supervises the theft of property for sale

to others, or who knowingly traffics in stolen property, is guilty of trafficking in stolen

property in the first degree." (Emphasis added.) The court held that the first seven

alleged alternatives, "initiates, organizes, plans, finances, directs, manages, or

supervises," represented multiple facets of a single means, while the eighth alternative,

"traffics" was a true alternative because it described a separate category of conduct,

namely the act of moving and selling the product as opposed to the act of stealing the

product. Owens, 180 Wn.2d at 97-98.

       The court further reasoned that the first seven verbs were so closely related that

they could not be viewed as distinct acts:

       [lit would be hard to imagine a single act of stealing whereby a person
       'organizes' the theft but does not 'plan' it. Likewise, it would be difficult to
       imagine a situation whereby a person 'directs' the theft but does not
       'manage' it. Any one act of stealing often involves more than one of these
       terms. Thus, these terms are merely different ways of committing one act,
       specifically stealing.

Owens, 180 Wn.2d at 99.

       Relying on Owens, this court recently analyzed the identity theft statute at issue

in this case and concluded that RCW 9.35.020 is not an alternative means statute.

State v. Butler, 194 Wn. App. 525, 529, 374 P.3d 1232(2016). Butler compared the

four verbs used to describe identity theft to the seven verbs in Owens, holding:


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No. 73563-2-1/7


      [t]he verbs here are not distinct means by which to commit identity theft,
      but rather are multiple facets of a single means. For instance, following
      the analysis in Owens, it would be hard to imagine the crime of identity
      theft being committed by a single act of "using" a check that did not also
      involve "obtaining" and "possessing" the check. Likewise, one could not
      "transfer" financial information without also "obtaining" and "possessing"
      that information.

Butler, 194 Wn. App. at 530. In contrast, a defendant can be guilty of "trafficking" stolen

goods without having participated in stealing those goods.

       The Butler court went on to reject the argument that these terms were different

because not all of the terms interconnected, for instance, "one could 'obtain' financial

information without 'using' or 'transferring' it." Butler, 194 Wn. App. at 530. The court

pointed out that the same argument existed regarding the terms in Owens. Butler, 194

Wn. App. at 530. A person might "finance" or "initiate" a theft without then "managing"

or "supervising" it. Butler, 194 Wn. App. at 530. The court reasoned that every verb

need not correspond with every other verb in order to be considered a single means,

holding that lbjecause no single action in the statute could be completed without

simultaneously completing at least one other action, the various acts are too similar to

constitute distinct alternative means." Butler, 194 Wn. App. at 530.

       The distinction between the act of trafficking and committing the theft as found in

Owens, is that the eventual trafficker could be uninvolved in the theft itself. Here, a

defendant cannot "transfer" or "use" information that was never "obtained" or

"possessed." Moreover, a person who "obtains" and "possesses" the legal or financial

information of another generally does so with the objective of "using" or "transferring"

that information. The fundamental nature does not vary significantly between these



                                          -7-
No. 73563-2-1/8


terms, as they are merely different stages of committing the same act—

misappropriating the identity of another person. See Owens, 180 Wn.2d at 99.

        Martin argues next that the legislature's intent that identify theft be an alternative

means crime is apparent from the legislature's statement of intent which provides, in

part:

        The legislature intends to penalize for each unlawful act of improperly
        obtaining, possessing, using, or transferring means of identification or
        financial information of an individual person. The unit of prosecution for
        identity theft by use of a means of identification or financial information is
        each individual unlawful use of any one person's means of identification or
        financial information. Unlawfully obtaining, possessing, or transferring
        each means of identification or financial information of any individual
        person, with the requisite intent, is a separate unit of prosecution for each
        victim and for each act of obtaining, possessing, or transferring of the
        individual person's means of identification or financial information.

RCW 9.35.001.

        Martin maintains that by creating separate "units of prosecution" for each

unlawful act involving a person's identification of financial information, the legislature

intended that identify theft be an alternative means crime. While the legislature

amended the identity theft statute in 2008 to clarify that the statute created separate

"units of prosecution," Martin provides no authority for the proposition that having

separate units of prosecution equates to alternate means of committing that crime.'

        We agree with Butler, and find that the statutory language in RCW 9.35.020 does

not dictate alternative means, but simply describes facets of the same type of conduct.

         1 The legislature amended the intent statement in RCW 9.35.001 in response to our Supreme
Court's determination that double jeopardy provisions of the United States and Washington State
Constitutions precluded "convicting a defendant more than once under the same criminal statute if only
one 'unit' of the crime has been committed." State v. Levda, 157 Wn.2d 335, 138 P.3d 610(2006).
Based on the amended language, a defendant can be charged for "each individual unlawful use" and for
"each act of obtaining, possessing, or transferring" an individual person's means of identification or
financial information. See RCW 9.35.001.
                                               -8-
No. 73563-2-1/9


                                             11

       Martin argues alternatively that the State assumed the burden of proving that

Martin knowingly obtained, possessed, and transferred a means of identification or

financial information because all three terms were included in the "to-convict"

instruction. Martin bases this assertion on the "law of the case doctrine." We disagree

for two reasons.

       First, even if the law of the case doctrine was consistent with current law, the

doctrine would not be applicable in this case. The law of the case doctrine concerned

the State's burden of proof when the to-convict instruction includes additional

nonessential elements of the charged crime. State v. Hickman, 135 Wn.2d 97, 102, 954

P.2d 900(1998); State v. Tyler, 195 Wn. App. 385, 388-89, 382 P.3d 699(2016).

Under the law of the case doctrine, "[i]n criminal cases, the State assumes the burden

of proving otherwise unnecessary elements of the offense when such added elements

are included without objection in the "to convict" instruction." Hickman, 135 Wn.2d at

102. Here, consistent with RCW 9.35.020(1), the to-convict instruction provided that the

State must prove Martin "knowingly obtained, possessed, or transferred" a means of

identification or financial information for each named victim. The to-convict instruction

did not contain added or unnecessary elements.

       Second, in Tyler, this court reviewed the law of the case doctrine in light of the

U.S. Supreme Court's recent decision in Musacchio v. United States, 577 U.S.          , 136

S. Ct. 709, 193 L. Ed. 2d 639(2016), and concluded that Hickman and State v. Hayes,

135 Wn. App. 459, 262 P.3d 538 (2011), no longer correctly stated the law. Tyler, 195

Wn. App. at 396-400. As we explained,"Musacchio makes it clear that a reviewing

                                          -9-
No. 73563-2-1/10


court is to disregard 'additional elements' and 'false alternative means' set out in a to-

convict instruction and, instead, must evaluate the sufficiency of the evidence based on

the essential elements of the charged crime as enacted by the legislature." Tyler, 195

Wn. App. at 400.

        While Musacchio does not change Washington's evidentiary sufficiency analysis

when the charged crime actually sets forth alternative means, it does mean that the law

of the case doctrine does not require the State to prove additional or alternate elements

for a crime based on the language of the to-convict instructions. Tyler, 195 Wn. App. at

400, n.9. When a jury reaches a verdict for a single means crime, even if the to-convict

instruction includes definitional alternatives, the verdict is "necessarily unanimous as to

the means by which it was committed." Tyler, 195 Wn. App. at 403.

                                                    Ill

        Martin asserts finally that the seizure of the car was unlawful because it was not

supported by probable cause. We disagree.

        Martin does not challenge the search warrant obtained by police after seizing the

vehicle, but instead challenges whether the police had probable cause to impound, or

seize, the car prior to obtaining the search warrant.2 We review the denial of a motion

to suppress to determine whether substantial evidence supports the challenged findings

of fact. State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009).

        Police may lawfully impound a vehicle as evidence of a crime when the police

have probable cause to believe the vehicle was stolen or was used in the commission of


        2 To the extent Martin challenges the validity of the search warrant that argument is waived as it
was not raised at trial. Martin's CrR 3.6 motion to suppress challenged the "warrantless search and
seizure of the occupants of the black 2000 Audi, and subsequent impoundment of the car."
                                                 -10-
No. 73563-2-1/1 1


a felony offense. State v. Tyler, 177 Wn.2d 690, 698, 302 P.3d 165 (2013). "[W]hen an

officer has probable cause to believe that a car contains contraband or evidence of

crime, he or she may seize and hold the car for the time reasonably needed to obtain a

search warrant and conduct the subsequent search." State v. Huff, 64 Wn. App. 641,

653, 826 P.2d 698 (1992). A car may be seized by either placing a guard on the car at

the scene or by towing it elsewhere. Huff 64 Wn. App. at 653. Seizing the vehicle in

order to obtain a warrant, rather than searching immediately, is "a course of action that

the law prefers." Huff, 64 Wn. App. at 649.

       Probable cause exists if facts and circumstances support a reasonable inference

that the defendant is probably involved in criminal activity and that evidence of the crime

can be found at the place to be searched. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d

658 (2008). Probable cause determinations come from looking at the totality of the

facts and circumstances known to the officer, including the defendant's prior convictions

that are of the same general nature as the crime under investigation. See State v.

Clark, 143 Wn.2d 731, 749, 24 P.3d 1006 (2001); Bokor v. Dep't of Licensing, 74 Wn.

App. 523, 526, 874 P.2d 168(1994). Probable cause requires "more than mere

suspicion or personal belief that evidence of a crime will be found on the premises

searched." Neth, 165 Wn.2d at 182. However, "probable cause is not negated merely

because it is possible to imagine an innocent explanation for observed activities." State

v. Fore, 56 Wn. App. 339, 344, 783 P.2d 626 (1989).

       The evidence here supports that there was probable cause to seize the car

Martin and Jackson were using. The witnesses specifically called the police to report

seeing Martin and Jackson going through purses and wallets outside of the car the

                                          -11-
No. 73563-2-1/12 .


police impounded. The officers saw several purses, wallets, and bags inside the car

and trunk, as well as screwdrivers, knives, and flashlights. Based on the officers'

experience and expertise, they recognized these items as being commonly used in car

prowls and identity theft. Further, one of the officers recognized Jackson from a prior

contact where Jackson had worked with Martin to commit identity theft. The evidence

presented was substantial enough to support a reasonable inference that, upon

searching the vehicle, the police would find evidence of vehicle prowling or identity theft.

       We affirm.




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