                                                                                                                FILED
                                                                                                         COURT OF APPEALS
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO WISM ' SI

                                                                                                        2015 APR 28   AM 8: 37
                                                   DIVISION' II
                                                                                                        ST °      dASH1NGT0N
 STATE OF WASHINGTON,                                                              No. 45827 -6 -II
                                                                                                        BY
                                       Respondent,


          v.




 AMBER D. ROBBINS,                                                         UNPUBLISHED OPINION


                                       Appellant.


         MELNICK, J. —           Amber Robbins appeals four convictions of identity theft in the second

degree, arguing that the trial court commented on the evidence and misstated the law in instructing

the   jury.    She further   argues    that insufficient     evidence   supports   the   convictions.   Because the


instructions at issue did not convey the court' s personal opinion about the case or resolve a factual

issue, the trial   court   did   not comment on      the   evidence.   And, because the instructions as a whole


adequately explained the law regarding identity theft, the trial court did not misstate the law.

Sufficient evidence existed to prove that Robbins possessed stolen pieces of identification with

criminal intent. We affirm her convictions.

                                                           FACTS


         Puyallup Police Sergeant Joseph Pihl and Officer Dylan Rice were clearing a traffic stop

when they noticed a woman pumping gas at a nearby gas station. The woman seemed very nervous

and avoided eye contact with          the   officers.   After Pihl ran her car' s license plate, he found that an


arrest warrant     existed   for the    registered      owner,   Cynthia Robbins.        Pihl thought that Cynthia


Robbins' s photograph matched the woman he saw, so he contacted her and asked if she was

Cynthia Robbins.
45827 -6 -I1



          The woman identified herself as Amber Robbins and stated that her mother Cynthia was

the registered owner of the car. When Pihl asked for identification, Robbins reached into the back

seat of   the   car, grabbed a purse, put     it   on   her   lap,   and searched   through   it. When she did not find


any identification in her purse, she reached into her pants pocket and presented Pihl with a driver' s

license identifying herself as Amber Robbins.

          Robbins volunteered that she had an arrest warrant, which Pihl confirmed. Pihl then asked


Robbins to exit the car and obtained her consent to search it. During the search, Rice looked into

the purse. Robbins acknowledged that the purse was hers and that it contained heroin. When Rice

couldn' t find any drugs, Robbins reached into the purse and pulled out a film canister containing

a substance that later tested positive for heroin.

          The purse also contained 22 pieces of identification and financial information in the names

of eight other people.          This information included driver' s licenses, social security cards, a credit

card, checks, and deposit slips. Robbins told the officers that she found these items in a dumpster

behind a residence, that she did not know any of the people they belonged to, and that the drugs

belonged to       a   friend.   Robbins could not provide any information about the residence with the

dumpster.


          The State charged Robbins by amended information with one count of unlawful possession

of a controlled substance and          four   counts of        identity   theft in the   second   degree.   The trial court


denied her motion to suppress her pretrial statements about her warrant and the drugs in her purse'.

          At trial, Sergeant Pihl and Officer Rice testified consistently with the facts previously cited.

Pihl   added    that Robbins identified the        purse      in her   car as " mine."   2 Report of Proceedings ( RP) at


 155. Four women then testified that their wallets or personal items had been stolen within the past




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several months, and they identified various forms of identification and financial information found

in Robbins' s purse as their own. None of them knew Robbins, except for one woman who believed

that she had met her once.


        Robbins testified that the purse belonged to a friend who had forgotten to take it when

Robbins dropped her off shortly before stopping for gas. Robbins added that she told the officers

that the purse might contain drugs, but only because she knew her friend was a drug user. Robbins

also testified that she did not look into the purse for her identification, that she did not know what

was inside the purse, and that she did not take drugs out of the purse. She denied telling the officers

that she found the pieces of identification and financial information in a dumpster and stated that

she consented to a search of her car because she did not think it contained anything illegal.

        The jury found Robbins guilty as charged and the trial court imposed concurrent sentences

of 12 months and 1 day in prison. Robbins now seeks the reversal of her identity theft convictions.
                                                     ANALYSIS


I.      SUFFICIENCY OF THE EVIDENCE


        Robbins argues that the evidence was insufficient to convict her of identity theft. Evidence

is sufficient if, when viewed in the light most favorable to the State, it permits any rational trier of

fact to find the   essential elements of         the crime beyond     a reasonable      doubt. State v. Salinas, 119


Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "            A claim of insufficiency admits the truth of the State' s

evidence and all    inferences that reasonably        can   be drawn therefrom." Salinas, 119 Wn.2d at 201.


We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P. 2d 623 ( 1997).

Circumstantial     evidence   is   not   to be   considered     any less   reliable   than direct   evidence.   State v.


Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980).




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          The identity theft statute prohibits a person from knowingly obtaining, possessing, or using

a means of identification or financial information of another person with the intent to commit " any

crime."    RCW 9. 35. 020( 1);      State    v.   Sells, 166 Wn. App. 918, 923, 271 P. 3d 952 ( 2012),   review




denied, 176 Wn.2d 1001 ( 2013). Actual use of the means of identification is not required in order


to convict. Sells, 166 Wn. App. at 924. Nor does the State need to prove the specific crime that

the defendant intended to         commit.         State v. Fedorov, 181 Wn. App. 187, 197 -98, 324 P. 3d 784,

review    denied, 181 Wn.2d 1009 ( 2014).                Some proof of intent to commit a crime is required,


however, and Robbins argues that the evidence was insufficient to show that she possessed the

means of identification at issue with any such intent.

          As our supreme court recently pointed out, possession alone does not support an inference

of   intent. State   v.   Vasquez, 178 Wn.2d 1, 8, 309 P. 3d 318 ( 2013). When intent is an element of a


crime,    it may be inferred "`     if the defendant' s conduct and surrounding facts and circumstances

                                 intent as                   logical probability. '   Vasquez, 178 Wn.2d at 8
plainly indicate      such an                 a matter of




                          Woods, 63 Wn.       App.     588, 591, 821 P. 2d 1235 ( 1991)).    Although intent is
 quoting State       v.




typically proved from circumstantial evidence, it may not be inferred from evidence that is

  patently    equivocal. '        Vasquez,        178 Wn.2d    at   8 ( quoting Woods, 63 Wn.    App.   at 592).


Possession together         with "` slight   corroborating    evidence '   may be sufficient, however, and such

corroboration may consist of the giving of a false explanation or one that is improbable or difficult
to verify.    Vasquez, 178 Wn.2d at 8 ( quoting State v. Esquivel, 71 Wn. App. 868, 870, 863 P. 2d

113 ( 1993));   State v. Ladely, 82 Wn.2d 172, 175, 509 P. 2d 658 ( 1973).




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          In Vasquez, the issue was whether the evidence was sufficient to show the intent to injure

or   defraud that is   needed   to   prove   forgery.    178 Wn.2d   at   13. The court held that the defendant' s


possession of forged identification cards alone was not sufficient to prove the necessary intent, and

noted that the defendant' s ready admission to a security guard that the cards were forged belied

any intent that he intended to defraud the guard. Vasquez, 178 Wn.2d at 14 -16.

          Here, the State was required to prove that Robbins possessed another person' s means of

identification    with   the intent to   commit    any   crime.   Both officers testified that she told them that


the purse containing the 22 items of identification and financial information in other names

belonged    to her. They also testified that she said she found the items in a dumpster behind a

residence and     that   she could not       describe the location   of   the   residence.   At trial, Robbins denied


claiming ownership of the purse, and she also denied making any reference to finding the items in

a    dumpster.   Instead, she testified that the purse belonged to a friend whom she had dropped off


shortly before stopping for gas.

          We agree with the State that this evidence was sufficient for a reasonable jury to find that

Robbins possessed the items of identification and financial information with the intent to commit

a crime.       She possessed 22 items belonging to other people, offered an explanation for their

possession on the day of her arrest that the officers could not verify, and at trial offered a

completely different       explanation.        Her improbable and contradictory statements, as well as the

number of stolen items in her purse, provide sufficient corroborating evidence of criminal intent.

We hold that the evidence was sufficient to prove Robbins' s four convictions of identity theft in

the second degree.




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II.       COMMENT ON THE EVIDENCE


          Robbins argues here that the trial court improperly commented on the evidence by

instructing the jury that her intent to commit " any crime" could include the crime of theft and by

instructing the jury on the definition of theft. 3 RP at 242.

          Article 4,       section   16   of   the Washington Constitution         provides: "       Judges shall not charge


juries   with respect        to   matters      of   fact,   nor   comment   thereon,   but   shall   declare the law."   This


provision prohibits a judge from " conveying to the jury his or her personal attitudes toward the

merits of the case" or instructing a jury that " matters of fact have been established as a matter of

law." State     v.   Becker, 132 Wn.2d 54, 64, 935 P. 2d 1321 ( 1997).                   Any remark that might suggest

that the jury need not consider an element of an offense may qualify as judicial comment. State v.

Levy,    156 Wn.2d 709, 721, 132 P. 3d 1076 ( 2006).                     Because the constitution prohibits any judicial

comment        on    the   evidence,      a claimed error based on such a comment involves a manifest


constitutional error that may be challenged for the first time on appeal. Levy, 156 Wn.2d at 719-

20.


          The instructions at issue are as follows:


                                                            Instruction No. 14


                 A person commits the crime of identity theft in the second degree when,
          with intent to commit any crime, such as theft, he or she knowingly obtains,
          possesses, uses, or transfers a means of identification or financial information of
          another person, living or dead, and obtains credit, money, goods, services or
          anything else that is $ 1500 or less in value or does not obtain anything of value.


Clerk' s Papers at 51.




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45827 -6 -II



                                                   Instruction No. 16


           Theft means:
                       to wrongfully obtain or exert unauthorized control over the property or
                     services of another, or the value thereof, with intent to deprive that person
                     of such property or services; or
                       to appropriate lost or misdelivered property or services of another, or the
                     value thereof, with intent to deprive that person of such property or services.

CP   at   53.   The " to convict" instructions on identity theft stated that the crime required proof of

Robbins' s intent to commit " any crime" and did not refer to the crime of theft.

           The court proposed instruction 16 after the defense moved for a directed verdict on the


identity    theft   counts.      Defense counsel cited Vasquez in arguing that Robbins' s possession of the

items of identification was not sufficient to show her intent to commit a crime and that the State

had failed to prove identity theft. The trial court reasoned that Robbins' s possession of the items

raised an inference of her intent to commit theft. After finding sufficient evidence to support the

identity theft charges, the court proposed an instruction defining theft.

           The State objected to instruction 16 because it would heighten its burden and require it to

prove     the   specific crime      that Robbins intended to       commit.   The State later agreed to include the


instruction and suggested inserting " such as theft" after the reference to " any crime" in instruction

14, the definitional instruction for identity theft. 3 RP 242. The court adopted this suggestion.

           The defense objected on the ground that it had not prepared a defense to rebut the theory

that Robbins intended to commit theft. After the court permitted the defense to reopen its case so

that Robbins could testify, the defense argued that instructions 14 and 16 could confuse the jury

about the law regarding identity theft.

           Washington courts have held that instructions relating to the reliability of eyewitness

testimony and alibi evidence are comments on the evidence in violation of the constitutional

prohibition.        State   v.   Allen, 161 Wn.   App.   727, 742, 255 P. 3d 784 ( 2011),   aff'd on other grounds,


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176 Wn.2d 611, 294 P. 3d 679 ( 2013). These holdings reflect the principle that when an instruction


assumes as true something that is in dispute, it is a comment on the evidence. State v. Haack, 88

Wn.     App.   423, 430, 958 P. 2d 1001 ( 1997);            see also State v. Francisco, 148 Wn. App. 168, 179,

199 P. 3d 478 ( 2009) (" touchstone                of error '   is "'   whether the feeling of the trial court as to the

truth   value of   the   testimony       of a witness    has been       communicated       to the   jury ' ( quoting State v.

Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995)).


          The instructions at issue neither assumed as true something that was in dispute nor

communicated to the jury the court' s belief concerning the truth of certain testimony. Rather, the

instructions offered an example of a crime that Robbins could have intended to commit and defined

that crime for the jury. The instructions did not limit the jury to finding that she intended to commit
the   crime of     theft so    did   not resolve an       issue   of    fact.    We reject Robbins' s argument that the


instructions at issue constituted an unlawful comment on the evidence.


          We     also    reject    her   related    argument       that the       instructions   misstated   the   law.   Jury

instructions must be considered in their entirety to determine if there is reversible error in a specific

instruction. State       v.   Schulze, 116 Wn.2d 154, 167, 804 P. 2d 566 ( 1991).                    There is no error if the


instructions, when viewed as a whole, adequately explain the law and enable the parties to argue

their theories of the case. Schulze, 116 Wn.2d at 168.


          As explained, the " to convict" instructions accurately informed the jury that it needed to

find that Robbins acted with the intent to commit " any crime" to return guilty verdicts on the four

identity   theft   counts.        Instruction 14 provided an example of a crime that Robbins might have

intended to      commit        and   instruction 16 defined that                crime.   When viewed as a whole, these


instructions did not misstate the law or prevent the parties from arguing their theories of the case.

During closing argument, the State asserted that Robbins could have acted with the intent to


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commit theft. The defense responded that because Robbins' s possession of her friend' s purse was

unwitting, the State had failed to show that she possessed the means of identification in the purse

with the intent to commit any crime. We reject Robbins' s claim of instructional error and affirm

her convictions.


        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We   concur:
