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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                    No. 69649-1-
                      Respondent,
                                                    DIVISION ONE
              v.



FELIPE ZEFERINO-LOPEZ,                              PUBLISHED OPINION

                      Appellant.                    FILED:    February 24, 2014


       Becker, J. — Appellant was convicted of identity theft in the second

degree for using a Social Security number belonging to someone else.

Knowledge that the number belonged to another person is an element of the

crime. Because there was no evidence of that element, we reverse with

instructions to dismiss for insufficiency of the evidence.

       On March 9, 2010, appellant Felipe Zeferino-Lopez1 used a Social
Security card with his name on it to open a bank account at a bank in Burlington

in Skagit County.




       1Although the State charged the appellant as "Felipe Zeferino-Lopez," he does
not sign his name with a hyphen. It is commonplace for people of Latin-American origin
or descent to use two last names without hyphenating them. Appellant and defense trial
counsel referred to his last name during trial as simply "Zeferino." See, e.g., Report of
Proceedings at 51, 103. Hereafter, we refer to the appellant as Zeferino. See Flores-
Fiaueroa v. United States, 556 U.S. 646, 649, 129 S. Ct. 1886, 173 L Ed. 2d 853 (2009)
(court refers to appellant as "Flores").
No. 69649-1-1/2



        On April 30, 2012, local police were informed that a minor in California had

attempted to set up her first bank account and learned that someone had already

used her Social Security number to open a bank account. Investigation led to

Zeferino.

        The State charged Zeferino with second degree identity theft. A jury

convicted him in November 2012. He appeals.

        At trial, a bank investigator testified that she had searched the bank's

records by Social Security number and discovered that the number in question

was on a signature card issued when the account was opened in Mount Vernon.

The person who opened the account was Zeferino. The bank had video images

of Zeferino accessing the account.

        A district manager of the Social Security administration gave testimony to

establish that the Social Security number was assigned to another person. The

witness testified that Social Security numbers are now assigned randomly,

although until recently the first part of the number was assigned based upon the

area where the person was applying. She said that a person who is not in the

United States legally is not eligible for a Social Security number. The police

officer who interviewed Zeferino testified that he admitted being in the country

illegally.

        Zeferino testified that he entered the United States from Mexico in 1995

when he was around nine years old. He said friends told him he needed a Social

Security card to work, so he bought one with his name on it for $100. He said he
had presented the card when he obtained employment at various restaurant jobs
No. 69649-1-1/3



and most recently at a recreational vehicle dealership. He testified that he did

not know the number on the card belonged to someone else until the police

contacted him about his use of the card to open a bank account.

       In closing, the prosecutor argued that the testimony by the Social Security

district manager proved that the number was assigned to an actual person and

was "not just a random number." The prosecutor then argued that the State had

proved the element of knowledge by showing that Zeferino knew that he was

possessing and using the Social Security number:

            And then we have to establish that the defendant knowingly
      possessed the Social Security number. Instruction Number 6
      defines knowingly for you. It's actually rather a lengthy instruction
      for such a small word. But basically knowingly means that you are
       aware of a fact that exists. So when we ask ourselves did the
      defendant know that he was possessing the Social Security
      number, of course he did. He knew he possessed it. He bought it.
      He used it. He possessed it. He knew he possessed it. And so we
      can kind of check that off. So we, through these means, we've
      established the defendant knowingly possessed a means of
      identification that belonged to another person.

       Zeferino responded by arguing that the State failed to meet its burden of

proving he knew the Social Security number belonged to another person.

       In rebuttal, the prosecutor argued that the State had no burden to prove

Zeferino knew the number belonged to another person:

              The final thing I want to address is counsel's argument that
       the State needs to prove beyond a reasonable doubt that the
       defendant knew that the number belonged to someone else. What
       I would submit to you is that this is an inaccurate reading of the
       instruction. First of all, it's just common sense. We would never be
       able to prove a case like this if we had to prove that the defendant
       knew the number belonged to someone else. . . . [Wje'd have to
       prove he broke into someone's house and stole their Social
       Security card. We're not going to have that case. Does it make
       sense that the law would require that? And it doesn't.
No. 69649-1-1/4



               So my next argument focuses on grammar, if there's any
      English majors in here you'll understand what I'm talking about.
      The requirement is that the defendant knowingly possessed
      identification of another person. Knowingly is an adverb. It applies
      to the verb that follows, which is possession or use. Knowing
      applies and refers to possession or use. The phrase that comes
      after it is the object. And knowingly does not apply to that
      grammatically speaking. ... He didn't have to know that that
      number was specifically assigned to another individual. He didn't.
      He had to know that he was in possession of it and the number. He
      had to know he was using the number and clearly he did.

Defense counsel did not object to the State's arguments.

      On appeal, Zeferino claims the prosecutor committed misconduct by

misrepresenting what the State was required to prove. Alternatively, Zeferino

claims defense counsel rendered ineffective assistance by failing to object to the

argument. Both claims depend on whether, to prove the crime of second degree

identity theft, the State must prove the defendant knew the means of

identification he used belongs to another person. The State maintains that it

does not bear any such burden. The issue is one of statutory interpretation. Our

review is de novo. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000).


       Identity theft in the second degree is defined by RCW 9.35.020(1) to

include a mens rea of knowledge:

               (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.
              (2) Violation of this section when the accused or an
       accomplice violates subsection (1) of this section and obtains
       credit, money, goods, services, or anything else of value in excess
       of one thousand five hundred dollars in value shall constitute
       identity theft in the first degree. Identity theft in the first degree is a
       class B felony punishable according to chapter 9A.20 RCW.
No. 69649-1-1/5



              (3) A person is guilty of identity theft in the second degree
       when he or she violates subsection (1) of this section under
       circumstances not amounting to identity theft in the first degree.
       Identity theft in the second degree is a class C felony punishable
       according to chapter 9A.20 RCW.

RCW 9.35.020(1)-(3). The to-convict instruction mirrored the statutory language:

             To convict the defendant of identity theft in the second
       degree, the following elements of the crime must be proved beyond
       a reasonable doubt:
       (1) That on or about March 9, 2010, the defendant knowingly
       possessed or used a means of identification of another person,
       living or dead;
       (2) That the defendant acted with the intent to commit any crime;
       (3) That any of these acts occurred in the State of Washington.
              If you find from the evidence that each of these elements
      have been proved beyond a reasonable doubt, then it will be your
      duty to return a verdict of guilty.
              On the other hand, if after weighing all the evidence, you
      have a reasonable doubt as to any one of these elements, then it
      will be your duty to return a verdict of not guilty.

      The United States Supreme Court confronted a similar issue on similar

facts in Flores-Fiqueroa v. United States, 556 U.S. 646, 129 S. Ct. 1886, 173 L.

Ed. 2d 853 (2009). The defendant, a Mexican citizen, secured employment in

the United States by giving his employer a false name, birth date, and Social

Security number, along with a counterfeit alien registration card.

             The Social Security number and the number on the alien
      registration card were not those of a real person. In 2006, Flores
      presented his employer with new counterfeit Social Security and
      alien registration cards; these cards (unlike Flores' old alien
      registration card) used his real name. But this time the numbers on
      both cards were in fact numbers assigned to other people.
              Flores' employer reported his request to U.S. Immigration
      and Customs Enforcement. Customs discovered that the numbers
      on Flores' new documents belonged to other people. The United
      States then charged Flores with two predicate crimes, namely,
      entering the United States without inspection, 8 U.S.C. § 1325(a),
      and misusing immigration documents, 18 U.S.C. § 1546(a). And it
No. 69649-1-1/6



       charged him with aggravated identity theft, 18 U.S.C. §
       1028A(a)(1), the crime at issue here.

Flores-Fiqueroa. 556 U.S. at 649.

      The defendant was convicted of aggravated identity theft. A conviction

under the federal statute lengthens the sentence of an offender convicted of

certain other crimes if, during the commission of those predicate crimes, the

offender "knowingly transfers, possesses, or uses, without lawful authority, a

means of identification of another person." 18 U.S.C. § 1028(a)(7); Flores-

Fiqueroa, 556 U.S. at 647. The issue on appeal was whether the government

had to show the defendant knew the numbers on the counterfeit documents

belonged to another person. Upon examination of the statutory term "knowingly"

in context, the Court held the government had to prove the defendant knew the

"'means of identification'" he or she unlawfully transferred, possessed, or used, in

fact belonged to another person. Flores-Fiqueroa, 556 U.S. at 647. The Court

found that, "as a matter of ordinary English grammar," the adverb "knowingly"

applies to both the verbs and the object of the sentence. Flores-Fiqueroa. 556

U.S. at 650, 657.

       Similar to the prosecutor's closing argument against Zeferino, the

government argued in Flores-Fiqueroa that the difficulty inherent in proving a

defendant knew the means of identification belonged to another should compel

an interpretation which does not require it to do so. Flores-Fiqueroa. 556 U.S. at

655-57. The Court rejected this argument, observing that the element should not

be difficult to prove in the classic case of identity theft committed by "dumpster

diving" or "computer hacking." Flores-Fiqueroa, 556 U.S. at 656. For example,
No. 69649-1-1/7



where a defendant rummaged through a residential garbage can to find
discarded bank statements or pretended to be calling from the victim's bank to

get the victim's personal financial information, a jury would be permitted to infer

that the defendant knew the means of identification belonged to another. Flores-

Fiqueroa. 556 U.S. at 656.

       The State contends Flores-Fiqueroa is not on point because the Court

was interpreting a federal statute. But the State does not show there is a

material difference between our rules of statutory construction and the rules

employed by the United States Supreme Court.

       And Flores-Fiqueroa is consistent with State v. Killinqsworth. 166 Wn.

App. 283, 269 P.3d 1064. review denied. 174 Wn.2d 1007 (2012). There, the

issue was a to-convict instruction under RCW 9A.82.050 which required the jury

to find that the defendant "'knowingly trafficked in stolen property.'" Killinqsworth.

166 Wn. App. at 289. This court held that the most natural reading of the

sentence was that "knowingly" modified both "trafficked" and "stolen property."

Killinqsworth. 166 Wn. App. at 289.

       The State attempts to distinguish the two cases on the basis that under

the Washington statute, there must also be proof the defendant acted with intent

to commit a crime. RCW 9.35.020(1). The fact that our statute requires proof of

both knowledge and intent is irrelevant. The issue here concerns only the

element of knowledge. Flores-Fiqueroa is persuasive authority that the statutory

term "knowingly" in this context refers to the defendant's knowledge that the

means of identification belonged to another person.
No. 69649-1-1/8



       In keeping with the above authorities, we conclude that the element of

knowledge in second degree identity theft does not refer only to the defendant's

knowledge that he is using or possessing a means of identification or financial

information. It also refers to his knowledge that it was "a means of identification

or financial information of another person, living or dead." RCW 9.35.020.

       Due process requires the State to prove every element of a crime beyond

a reasonable doubt. State v. Baeza. 100 Wn.2d 487, 488, 670 P.2d 646 (1983).

Sufficiency of the evidence is a question of constitutional magnitude. State v.

Alvarez. 128 Wn.2d 1,10, 904 P.2d 754 (1995). We will reach the issue of

sufficiency even though Zeferino framed his appeal in terms of prosecutorial

misconduct and ineffective assistance of counsel. See State v. Aho, 137 Wn.2d

736, 741, 975 P.2d 512 (1999).

       The statute required the State to prove that Zeferino knew the Social

Security number he was using actually belonged to someone else. Zeferino was

using a Social Security number assigned to a minor in California. The Social

Security card on which it appeared listed his name, not the owner's. The only

evidence about how and when Zeferino obtained the card was his own testimony

that he bought it from someone for $100 in order to be able to work in the United

States. He used it openly for a number of years for that purpose and then to

open a bank account. His testimony does not support an inference that he knew

the number on it belonged to another person.

       We reverse with instructions to dismiss for insufficiency of the evidence.




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No. 69649-1-1/9




WE CONCUR:




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