                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 24, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

 STATE OF WASHINGTON,                                                No. 51623-3-II

                                Respondent.                   UNPUBLISHED OPINION

        v.

 TRACEY BAILEY,

                                Appellant.

       GLASGOW, J. — Tracey Bailey was convicted of criminal impersonation after a jury trial.

During a traffic stop she gave the trooper the name and birth date of her sister (Stracey Jones), a

false social security number, and various street addresses. Also, while still pretending to be Jones,

she told the trooper that Bailey had previously used her identity.

       Bailey appeals, arguing that the criminal impersonation statute requires an act and that the

jury did not have sufficient evidence to convict her because simply giving false information

regarding her identity was not an act. She also challenges the imposition of the criminal filing fee,

a warrant service fee, and the DNA collection fee.

       We hold that there was sufficient evidence to support Bailey’s conviction because she

assumed the false identity and then provided additional information regarding that false identity in

an attempt to mislead the trooper, acts which satisfied the elements of criminal impersonation. We

remand to strike the criminal filing fee, warrant service fee, and DNA collection fee.
No. 51623-3- II


                                               FACTS

         Trooper Jason Roe pulled over Bailey because she was driving a vehicle with a broken

middle brake light. Bailey told the trooper that her name was Stracey Jones. Jones is actually

Bailey’s younger sister. The trooper thought she said “Tracey,” and Bailey corrected him and told

him again her name was Stracey Jones. Verbatim Report of Proceedings (VRP) at 47. Bailey then

proceeded to spell the name she gave him. Bailey also gave the trooper Jones’s date of birth. The

trooper noted that the photo for Jones in his database did not match Bailey. The trooper asked her

again to confirm who she was. Bailey then gave the trooper a social security number, but it did

not match Jones’s social security number. The trooper asked for the address on her license, and

Bailey gave multiple streets. None of the streets matched the trooper’s records for Jones.

         Bailey maintained that she was Jones for more than 30 minutes. While maintaining that

she was Jones, Bailey told the trooper that her sister, Bailey, had used her identity in 2003 in Pierce

County. Bailey also claimed her sister had been arrested for using her identity and that she took

her sister to court as a result. The trooper pulled up Bailey’s information and learned that Bailey’s

driving status was suspended. Additionally, the records showed that Bailey was also known as

Jones.

         The trooper talked to Bailey about warrants out for Jones, and Bailey still insisted that she

was Jones. The trooper then arrested Bailey for the warrants out on Jones. After the arrest Bailey

admitted that she was Tracey Bailey.




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No. 51623-3- II


                                            ANALYSIS

                                 I. SUFFICIENCY OF THE EVIDENCE

       The trial court instructed the jury that first degree criminal impersonation occurs when the

defendant “assumes a false identity and does an act in her assumed character with intent to defraud

another or for any other unlawful purpose.” VRP at 132. This instruction was consistent with

RCW 9A.60.040(1)(a). Bailey argues that the State failed to present sufficient evidence to convict

her of first degree criminal impersonation. She contends that she only assumed a false identity

and did not commit an act as required by the statute. She reasons that anything she said to the

trooper was not a separate act because speech is not an act. We disagree.

       There is sufficient evidence “to support a conviction if, viewing the evidence in the light

most favorable to the State, any rational trier of fact could find the essential elements of the crime

beyond a reasonable doubt.” State v. Imokawa, 4 Wn. App. 2d 545, 560, 422 P.3d 502 (2018),

review granted, 192 Wn.2d 1016 (2019). A defendant’s “claim of insufficiency admits the truth

of the State’s evidence.” Id. We draw all reasonable inferences in favor of the State and interpret

them most strongly against the defendant. Id. Circumstantial evidence and direct evidence carry

equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We defer to the trier

of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       Bailey argues that she only assumed a false identity. She reasons that the statute requires

an action with the necessary intent in addition to her statements regarding her identity. Bailey

relies on State v. Williamson, 84 Wn. App. 37, 924 P.2d 960 (1996), arguing in that case, the court

rejected the State’s argument that giving a false name was conduct instead of speech.


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No. 51623-3- II


       The State responds that Bailey committed multiple acts when she continued to give false

information beyond just giving a false name. This included providing Jones’s date of birth, giving

an incorrect social security number, blaming her sister for warrants out for Jones, and providing

multiple addresses. Additionally, the State argues Bailey did this so the trooper would not know

she was driving on a suspended license.

       In Williamson, a defendant was convicted for obstructing a public servant after telling an

officer his name was Christopher Columbus and confirming that was his name. 84 Wn. App. at

40-41. He did not further pretend that he was in fact Mr. Columbus. Id. at 40. Williamson was

convicted under a statute that prohibited obstructing a police officer, which prior decisions had

interpreted to require conduct beyond giving a false name. Id. at 40-41.1 Ultimately, we reasoned

that when the defendant provided a false name, that was speech, not conduct. Id. at 45. Because

there was no evidence that Williamson did any act, other than declaring his name as Christopher

Columbus, we concluded the State could not prove the charged offense because the statute required

conduct. Id.

       Williamson is distinguishable because unlike Bailey, Williamson only gave a false name.

Id. at 40-41. Here, Bailey gave a false name, but over the course of more than 30 minutes, she




1
  The Washington Supreme Court has since confirmed that the obstruction statute has a
jurisprudential history of requiring conduct in addition to speech. State v. Williams, 171 Wn.2d
474, 485, 251 P.3d 877 (2011).

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No. 51623-3- II


also gave a false birthdate, a false social security number, and multiple incorrect streets for her

address, as well as confirming the false name multiple times and spelling it for the trooper. She

also talked about past events involving Bailey and Jones, while acting as Jones. These were acts

performed to assume Jones’s identity. In contrast, Williamson never took on the identity of

Christopher Columbus or pretended to be him.

       Bailey argues that the legislature’s use of the word “act” requires something more than

statements made to mislead the officer. But there is no indication that the legislature intended an

“act” as used in the criminal impersonation statute to exclude additional false statements. If Bailey

performed at least one “act” in her assumed identity, including making further false statements to

avoid discovery that she was driving with a suspended license, that is sufficient under the statute.

       Bailey gave false information beyond just a name so the trooper would believe she was

actually her sister and would not discover that she was driving on a suspended license. Given that

we must take the evidence in the light most favorable to the State, we conclude there was sufficient

evidence for the jury to decide Bailey acted under an assumed identity.

                                II. LEGAL FINANCIAL OBLIGATIONS

       Bailey challenges three legal financial obligations. She argues the criminal filing fee, the

DNA collection fee, and the warrant service fee should be stricken. The State concedes that these

fees should be stricken.




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No. 51623-3- II


       In 2018, the legislature amended RCW 36.18.020(h) to prohibit the imposition of the

criminal filing fee if a defendant is indigent as defined in RCW 10.101.010(3)(a) through (c).

LAWS OF 2018, ch. 269, § 17. Additionally, a warrant service fee is a discretionary fee that cannot be

imposed if the defendant is indigent. RCW 9.94A.760(1); RCW 10.01.160. The legislature also

amended RCW 43.43.7541 to authorize the imposition of a DNA collection fee only if the State

has not “previously collected the offender’s DNA as a result of a prior conviction.” LAWS OF 2018,

ch. 269, § 18. Our Supreme Court has held that the 2018 amendments to the legal financial

obligation statutes apply to cases pending on direct review and not final when the amendments

were enacted. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).

       The 2018 amendments apply here. The State concedes that the court found Bailey indigent

and there is evidence in the record to support that concession. The State also concedes that the

record shows Bailey has been convicted of multiple prior felonies that would have required DNA

collection.

       Therefore, we remand for the trial court to strike the criminal filing fee, the warrant service

fee, and the DNA collection fee.

                                          CONCLUSION

       We affirm the conviction for criminal impersonation and remand to the trial court to strike

the criminal filing fee, the warrant service fee, and the DNA collection fee.




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No. 51623-3- II


        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.



                                                    Glasgow, J.
 We concur:



 Maxa, C.J.




 Melnick, J.




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