           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON                                No. 77798-0-I

                                Appellant,          DIVISION ONE

                  V.
                                                   UNPUBLISHED OPINION
 HALL, JESSE PATRICK,
 DOB: 08/05/1980,

                               Respondent.         FILED: September 30, 2019

       SCHINDLER,   J.   —   The State charged Jesse Patrick Hall with identity theft in the

second degree committed while on community custody. The to-convict jury instruction

required the State to prove beyond a reasonable doubt that Hall knowingly used the

identification of another person to commit any crime. Consistent with the amended

information and at the request of the prosecutor, the court instructed the jury only on the

crime of obstructing a law enforcement officer in the discharge of official duties. The

trial court granted the defense motion to arrest judgment, vacated the jury verdict, and

dismissed on the grounds of insufficient evidence. We affirm.

                                             FACTS

       Lake Stevens Police Officer Michael Hingtgen was on patrol the night of

February 2, 2017. At approximately 10:36 p.m., Officer Hingtgen noticed a vehicle with

an inoperable brake light traveling in excess of the posted 35 mph. speed limit. Officer
No. 77798-0-112

Hingtgen activated his emergency lights and pulled over the vehicle for speeding. The

car “immediately” pulled over to the side of the road and stopped.

       As Officer Hingtgen approached the car, a man, later identified as Jesse Patrick

Hall, rolled down the window. Officer Hingtgen asked Hall for his driver’s license,

registration, and proof of insurance. Hall told Officer Hingtgen that he “didn’t have his

license on him.” When Officer Hingtgen asked Hall for other information “to confirm

identity,” Hall identified himself as “Mitch C. Stamey” and gave a birth date of January

17, 1972. Hall was unable to provide Officer Hingtgen with the last four digits of his

social security number. After several seconds of Hall “kind of holding his head into his

hands,” he gave Officer Hingtgen an address in Everett.

       Officer Hingtgen returned to his patrol car and “ran Mitch Stamey’s information”

using the police database. Officer Hingtgen discovered Stamey had an “active

misdemeanor warrant.” The warrant described Stamey as having numerous tattoos. A

Washington State Department of Licensing (DOL) photograph of Stamey showed a

tattoo on the right side of his neck.

       Because Officer Hingtgen was not confident that Hall was Stamey, he asked Hall

to show him the neck tattoo. Hall acknowledged he had an outstanding arrest warrant

and gave Officer Hingtgen his “full and correct name” of Jesse Patrick Hall. Officer

Hingtgen confirmed there was an outstanding warrant and placed Hall under arrest.

       The State charged Hall with criminal impersonation in the first degree committed

while on community custody. On July 20, 2017, the State filed an amended information

charging Hall with identity theft in the second degree committed while on community




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No. 77798-0-113

custody by using another person’s identification to commit the crime of obstructing a law

enforcement officer. The amended information alleged:

       COUNT 1:        SECOND DEGREE IDENTITY THEFT (crimes on or after
                       7/22/01) CRIME COMMITTED WHILE ON COMMUNITY
                       CUSTODY, committed as follows:
       That the defendant, on or about the 2nd day of February, 2017, did
       knowingly obtain, possess, use and transfer a means of identification and
       financial information of a person, to-wit: Mitch Stamey, with the intent to
       commit, aid and abet a crime, to-wit: Obstructing a Law Enforcement
       Officer, in violation of RCW 9A.76.020; proscribed by RCW 9.35.020(1)
       and (3), a felony; and the crime was committed while the defendant was
       under community custody, as provided by RCW 9.94A.525(1 9).[hi

       Only two witnesses testified at trial: Officer Hingtgen and Snohomish County

Prosecutor’s Office legal assistant Rebecca Orr. The court admitted two exhibits into

evidence: a DOL photograph of Stamey, exhibit 1; and a DOL photograph of Hall,

exhibit 2. Orr testified that she coordinates witnesses for trial and met with Stamey to

arrange his testimony for the trial. Orr identified exhibit 1 as an accurate photograph of

Mitch Stamey.

       During cross-examination, Officer Hingtgen testified that Hall waited in the car

and did not try to flee when Officer Hingtgen used the police database to obtain

information. Officer Hingtgen testified that immediately after he confronted Hall about

the neck tattoo, Hall told him he had an outstanding warrant and gave Officer Hingtgen

his correct name.

             Q.      You told him that Mitch has tattoos and the driver of the
      vehicle didn’t try to describe all the tattoos they had to try to show they
      were that person; correct?
             A.      No. No, there was nothing showing at all.
             Q.      And he didn’t change the topic at all away from the topic of
      tattoos?
             A.      No, he did not.


        Most emphasis added.


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No. 77798-0-1/4

                Q.     He didn’t try to look through the car to find any paperwork or
       justification to claim that he might be Mr. Stamey; correct?
                A.     No, he did not.
                Q.     Even after you confronted him in a way to show that you
       didn’t believe he was Mr. Stamey, he didn’t attempt to get out of [the]
       vehicle at that time?
               A.      No, he did not.
                Q.     He didn’t try to change your mind?
               A.      No.
               Q.      And he didn’t continue to state he was Mr. Stamey?
               A.      No, he did not.

       Officer Hingtgen also testified that Hall was cooperative, obeyed commands, and

did not attempt to resist arrest.

             Q.    And you didn’t note there were any incidents or problem with
       removing him from the vehicle?
             A.    No, he was cooperative.

               Q.     You didn’t have to tell him multiple times to exit the vehicle?
              A.      No, I only told him once.
               Q.     So he followed your instructions at that point?
              A.      Correct.
               Q.    And you were able to subsequently restrain him without any
       further incident?
              A.     Yes, ma’am.
              Q.      Okay. You handcuffed him?
              A.     Yes.

              Q.     And after you arrested him, he identified himself; correct?
              A.     Yes, ma’am.

             Q.      And he didn’t try to talk you out of arresting him?
             A.      No.
             Q.      He didn’t move around a lot to avoid getting in the back of
      the car?
             A.      No, he didn’t fight at all.
             Q.      He didn’t try to run away?
             A.      No.
             Q.      Didn’t kick his legs out when getting into the vehicle?
             A.      No.
             Q.      Didn’t scream or yell on his way to jail?
             A.      No.




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 No. 77798-0-1/5

       At the conclusion of trial, the court instructed the jury on the elements of identity

theft and the crime of obstructing a law enforcement officer. During closing argument,

the prosecutor told the jury that Hall used Stamey’s identification “to obstruct a law

enforcement officer” by “trying to avoid being arrested on his warrant” but “failed and got

caught.”

                 This is what you have to decide today, so it is a good place to start
       when figuring out how you are going to go through your deliberations.
       What do I have to prove to you for you to return a verdict of guilty? The
       first is that on or about the 2nd day of February 2017, you heard that on
       that date that the Defendant knowingly used a means of identification of
       another person.   .


                So information that we have in this case is that the Defendant used
       Mitch Stamey’s name full name      —     well, middle initial and said, Mitch G.
       Stamey. He gave his date of birth, which is the same date of birth listed
       on Mitch Stamey’s driver’s license, and he gave an address in
       Everett
                Element No. 2 on your to convict instruction, that the Defendant did
       this with the intent to commit any crime. So why was he doing this is the
       question here, and what I told you is he is doing this to avoid arrest on his
       warrant. More technical legal terms. He was doing it to obstruct a law
       enforcement officer, which is Instruction No. 10, obstructing a law
       enforcement officer, who is Officer Hingtgen, from performing his duties to
       arrest people on warrants or give citations for speeding. You heard the
       officer testify that this is part of his duties as an officer. So that is what he
       was doing when he was trying to avoid being arrested on his warrant.

                  He was hoping that he looked enough like Mitch Stamey that he
      could get off scott free. What he didn’t bank on was Officer Hingtgen and
      his attention to detail, noticing there is a neck tattoo on that photo. He
      wasn’t banking on Mitch Stamey having a warrant. That was probably the
      last thing he wanted to have happen. That’s some bad luck, but don’t fall
      for the bate-and-switch. This is not a trial about obstruction. There is an
      instruction in there on what obstruction means, what obstructing a law
      enforcement officer means, because it is helpful to deciding whether or not
      the Defendant intended to commit that crime.

      After the court submitted the case to the jury, Hall filed a motion to dismiss.

Defense counsel argued that because Hall used only speech to provide a false identity

to Officer Hingtgen, the State did not prove beyond a reasonable doubt his “intent to


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No, 77798-0-1/6


obstruct” and commit the crime of identity theft in the second degree. The prosecutor

argued the State did not “have to prove that [Hall] completed that crime, just what his

intent was” to commit the crime of obstructing a law enforcement officer. During a

recess to consider the briefing, the jury returned a verdict finding Hall guilty of identity

theft in the second degree as charged.

          The court then considered the motion to dismiss as a motion to arrest judgment

under CrR 7.4(a)(3) (“Judgment may be arrested on the motion of the defendant for.

insufficiency of the proof of a material element of the crime.”). The court granted the

motion, vacated the jury verdict, and dismissed the charge with prejudice under CrR

7.4(c).2 The court ruled, in pertinent part:

       The case law regarding identity theft in the second degree establishes that
       the State must prove that the Defendant intended to commit any
       crime.    . [T]he State is not required to elect a crime but also may not put
                     .   .


       the jury in a position that it has to guess which crime the Defendant
       committed.
               Here the State approached this obligation by choosing obstructing
       the law enforcement officer as the crime the Defendant intended to
       commit.
                   [T]he crime of obstructing a law enforcement officer requires
       more than speech, it also requires conduct.

              Here defense counsel through careful questioning of the State’s law
      enforcement witness established that there was nothing in Defendant’s
      conduct that could have held him culpable for the crime of obstructing
      under RCW 9A.76.020, which is the obstruction statute. Thus, the
      question here is whether the Defendant’s motion to dismiss the charge of
      identity theft in the second degree, or challenge to the sufficiency of the
      evidence if it should be cast in that light, should be granted and the verdict
      set aside because, one, the State chose to identify obstructing a law
      enforcement officer as the crime that Mr. Hall intended to commit; and

      2   CrR 7.4(c) states:
      New Charges After Arrest of Judgments. When judgment is arrested and there is
      reasonable ground to believe that the defendant can be convicted of an offense properly
      charged, the court may order the defendant to be recommitted or released to answer a
      new indictment or information. If judgment was arrested because there was no proof of a
      material element of the crime the defendant shall be dismissed.


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 No. 77798-0-1/7

       two, there is no evidence from which a rational trier of fact could find Mr.
       Hall committed the crime of obstructing a law enforcement officer, that
       conclusion being supported by the evidence that Mr. Hall’s misconduct
       was limited to speech and did not involve any physical conduct; and three,
       therefore, there is no evidence that he intended to commit the crime of
       obstructing.

       The court entered an “Order Arresting Judgment and Dismissing Cause.” The

order incorporates the court’s oral ruling that insufficient evidence supports finding “a

material element of the crime.”

                                         ANALYSIS

       The State appeals the order arresting judgment and dismissing the charge of

identify theft in the second degree. The State contends the court erred when it arrested

judgment and dismissed the charge against Hall. The State argues sufficient evidence

supports the conviction for identity theft in the second degree.

       “A motion in arrest of judgment challenges the sufficiency of the evidence to take

the case to the jury.” State v. Randecker, 79 Wn.2d 512, 515, 487 P.2d 1295 (1971).

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the

State, any rational trier of fact may find the essential elements of the crime beyond a

reasonable doubt. Statev. 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.

      The State has the burden to prove every element of the crime charged beyond a

reasonable doubt. U.S. CONST. amend. XIV; WASH. CONST. art. I,       § 3; In re Winship,
397 U.S. 358, 364, 90 5. Ct. 1068, 25 L. Ed. 2d 368 (1970) ([T]he Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which he is charged.”). Sufficiency


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No. 77798-0-l18

of the evidence is a question of constitutional law that we review de novo. State v. Rich,

184 Wn.2d 897, 903, 365 P.3d 746 (2016).

       To convict Hall of identity theft in the second degree, the State had the burden of

proving beyond a reasonable doubt that Hall knowingly used the identification of

another person with the “intent to commit, or to aid or abet, any crime.” RCW 9.35.020.

       The State charged Hall by amended information with identity theft in the second

degree, alleging he committed the crime of obstructing a law enforcement officer. The

to-convict jury instruction states, in pertinent part:

               To convict the defendant of the crime 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 2nd day of February, 2017, the defendant
       knowingly obtained, possessed, or used a means of identification or
       financial information of another person;[31
              (2) That the defendant did so with the intent to commit any crime;
              (3) That the defendant knew that the means of identification or
       financial information belonged to another person; and
              (4) That any of these acts occurred in the State of Washington.{41

       Consistent with the amended information, the prosecutor asked the court to

instruct the jury on the crime of obstructing a law enforcement officer. The jury

instruction defining the crime states:

                A person commits the crime of obstructing a law enforcement
       officer when he or she willfully hinders, delays, or obstructs any law
       enforcement officer in the discharge of the law enforcement officer’s
       official powers or duties.

       ~ The court instructed the jury on the definition of “means of identification” as follows:
                “Means of identification” means information or an item that is not describing
      finances or credit, but is personal to or identifiable with an individual or other person,
      including: a current or former name of the person, telephone number, an electronic
      address, or identifier of the individual or a member of his or her family, including the
      ancestor of the person; a social security, driver’s license, or tax identification number of
      the individual or a member of his or her family; and other information that could be used
      to identify the person, including unique biometric data.
      ~ Emphasis added.


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 No. 77798-0-119

        In Washington, speech in the absence of additional conduct is insufficient to

establish the crime of obstructing law enforcement. State v. Williams, 171 Wn.2d 474,

484-85, 251 P.3d 877 (2011). In Williams, when asked to identify himself by a police

officer, the defendant provided the name of his brother instead of his own. Williams,

171 Wn.2d at 476. A jury convicted the defendant of obstructing a law enforcement

officer. Williams, 171 Wn.2d at 476. On appeal, the State argued, “[O]nce a person

does speak to a law enforcement officer, a person may not willfully make false

statements with the intent to hinder or delay.” Williams, 171 Wn.2d at 484. In rejecting

this argument, our Supreme Court held, in pertinent part:

       We hew to our jurisprudential history of requiring conduct in addition to
       pure speech in order to establish obstruction of an officer. The legislature
       made it a separate crime to knowingly make a false or misleading
       statement to a public officer. ~ RCW 9A.76.175. The legislature was
       aware that, in order to find obstruction statutes constitutional, appellate
       courts of this state have long required conduct. See [State v.1 Bobic, 140
       Wn.2d [250,] 264[, 966 P.2d 610 (2000)].

Williams, 171 Wn.2d at 485; see State v. E.J.J., 183 Wn.2d 497, 503, 354 P.3d 815

(2015) (As our history makes clear, conduct is prerequisite of an obstruction charge.”).

       The State argues sufficient evidence supports the conviction because the

evidence shows intentionally giving Officer Hingtgen false identification information

delayed the investigation.

       Below and on appeal, the State relies on State v. Presba, 131 Wn. App. 47, 126

P.3d 1280 (2005), to argue sufficient evidence supports the conviction. Presba is

distinguishable. In Presba, we concluded sufficient evidence supported the conviction

of identity theft because the evidence supported the inference that Presba used the

false identification information “to facilitate both the offense of RCW 9A.76.020,



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 No. 77798-0-1110

 obstructing a police officer, and ROW 46.61 .020, giving false information.” Presba, 131

 Wn. App. at 55-56. In Presba, Melissa Presba was driving without a license. Presba,

 131 Wn. App. at 55. When the state trooper stopped Presba for speeding, she gave the

trooper “[Shyla] Dashiell’s name, Social Security number, former address, and date of

birth.” Presba, 131 Wn. App. at 55, 50. After checking the information she provided,

the trooper asked Presba why her social security number was “one digit off from what

the Department had for the license record.” Presba, 131 Wn. App. at 51. Presba told

the trooper DOL “always had an incorrect number.” Presba, 131 Wn. App. at 51.

“[A]fter a half hour of continued discussion,” Presba persuaded the trooper she was in

fact Dashiell. Presba, 131 Wn. App. at 51. The trooper “cited her for the infract[on of

driving without her license on her person.” Presba, 131 Wn. App. at 51.

       Unlike in Presba, the court instructed the jury on only the crime of obstructing a

law enforcement officer, and there is no evidence that Hall engaged in conduct that

resulted in delay. After Officer Hingtgen checked the police database and asked Hall to

show him the neck tattoo, Hall immediately acknowledged his true identity and told

Officer Hingtgen he had an outstanding warrant. The undisputed record supports the

conclusion that Hall’s conduct was limited to speech only. Officer Hingtgen testified that

Hall was “cooperative” throughout the traffic stop, investigation, and arrest.

       For the first time in the reply brief, the State argues that under the “law of the

case doctrine,” the State was required to prove only that Hall intended to commit “any

crime” when he used Stamey’s identity. Specifically, that “[b]ecause the ‘to convict’

instruction listed the elements as ‘intent to commit any crime[,]’ that is what the jury had

to find in order to convict the defendant.” We do not consider arguments raised for the



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No. 7779 8-0-1/1 1

first time in the reply brief. State v. Chen, 178 Wn.2d 350, 358 nil, 309 P.3d 410

(2013); State v. Hudson, 124 Wn.2d 107, 120, 874 P.2d 160 (1994). Nonetheless, as

previously noted, the prosecutor asked the court to instruct the jury only on the crime of

obstructing a law enforcement officer. The jury instructions make clear that obstructing

a law enforcement officer was the only crime the State alleged Hall intended to commit.

See State v. Federov, 181 Wn. App. 187, 199, 324 P.3d 784 (2014).

       We affirm the court’s order arresting judgment and dismissing the charge of

identity theft in the second degree.




WE CONCUR:




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