    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

STATE OF WASHINGTON,                             No. 70325-1-1

                    Respondent,



JUAN CARLOS AGUAYO
a/k/a JUAN AGUAYO RAMIREZ,                       UNPUBLISHED OPINION

                    Appellant.                   FILED: October 27, 2014


      Per Curiam — Juan Aguayo-Ramirez challenges the sufficiency of the evidence

supporting his convictions for two counts ofsecond degree identity theft. He contends

the State failed to prove beyond a reasonable doubt that he possessed the driver's

licenses and checkbook of the victims with the intent to commit or assist the

commission of a crime. We agree and reverse.

      On December 5, 2012, King County Sheriffs Deputy Michael McDonald stopped

Aguayo-Ramirez for running a red light. He then arrested Aguayo-Ramirez for

outstanding matters and performed a search incident to arrest.1 He found California
driver's licenses belonging to Gary Stille and Frederick Sombrano, a checkbook bearing

both of their names, a calling card, a sim card, some coins, and a .22 caliber bullet in

Aguayo-Ramirez's pockets. The State charged Aguayo-Ramirez with three counts of




        The jury did not hear the evidence about the reason for the arrest.
No. 70325-1-1/2

identity theft in the second degree - one count for each driver's license and one for the

checkbook.


       At trial, Deputy McDonald testified that Aguayo-Ramirez acted "[v]ery nervous"

during the stop. He acknowledged, however, that it is "typical for someone to be

nervous" when they are stopped by law enforcement.

       When Deputy McDonald asked Aguayo-Ramirez about the licenses and

checkbook, he said "they belong to friends of mine." Deputy McDonald testified that the

licenses were hole-punched, and that, in Washington State, a hole-punched driver's

license is "either no longer valid . . . or just can't be used." He also testified that the

checkbook was for a bank account that was no longer valid.

       Stille and Sombrano testified that they did not know Aguayo-Ramirez or give him

permission to possess the items found in the search. Sombrano testified that the

licenses, checkbook, sim card and coins were in a backpack that was stolen from his

car in October 2012. Stille and Sombrano testified that, to their knowledge, no one had

used their licenses or checkbook in a fraudulent manner. The defense called no

witnesses. The jury found Aguayo-Ramirez guilty as charged. He appeals.

                                          DECISION


       Aguayo-Ramirez contends his identity theft convictions are not supported by

sufficient evidence. Specifically, he contends the State failed to prove that he

possessed the licenses and check book with intent to commit or assist the commission

of a crime. We agree.

                                              -2-
No. 70325-1-1/3

       Evidence is sufficient if any rational trier of fact viewing the evidence in a light

most favorable to the State could find the elements of the offense proven beyond a

reasonable doubt.2 A defendant challenging the sufficiency of the evidence admits the

truth of the State's evidence and all reasonable inferences that may be drawn

therefrom.3 Circumstantial evidence and direct evidence are equally reliable.4

Inferences drawn from circumstantial evidence, however, "must be reasonable and

cannot be based on speculation."5 "Intent may not be inferred from conduct that is

patently equivocal,"6 but a jury may properly infer intent "where it is plainly indicated as

a matter of logical probability."7 Where "the inferences and underlying evidence are

strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt, a

conviction may be properly based on pyramiding inferences."8

       To convict Aguayo-Ramirez of identity theft under the instructions given in this

case, the State had to prove that he knowingly possessed the driver's licenses and

checkbook "with the intent to commit or to aid or abet any crime ."9 Relying primarily on

Vasauez. Aguayo-Ramirez contends the State failed to carry that burden.

       2 State v. Vasquez, 178 Wn.2d 1, 6, 309 P.3d 318 (2013).
       3 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       4 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
       5 Vasquez. 178 Wn.2d at 16.
       6 State v. Bergeron. 105 Wn.2d 1, 20, 711 P.2d 1000 (1985).
       7 Delmarter, 94 Wn.2d at 638.
       8 State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999) (internal
quotation marks omitted).
       9 Clerk's Papers at 134-36.
                                              -3-
No. 70325-1-1/4

       In Vasquez, the State had to prove that Vasquez possessed forged social

security and permanent resident cards with intent to injure or defraud.10 The Vasquez

court noted that while possession plus slight corroborating evidence is sometimes

sufficient to infer such intent, intent cannot be inferred from evidence that is patently

equivocal. The court also noted that mere possession of items typically used in

committing a crime is often not sufficient. For example, possession of a large quantity of

drugs, though commonly associated with drug dealing, is nevertheless insufficient,

without more, to show possession with intent to deliver.11 Likewise, possession of

stolen pseudoephedrine - a substance known to be used in manufacturing

methamphetamine - is insufficient to infer intent to manufacture methamphetamine.12

The Vasquez court emphasized that "inferences of intent may be drawn only 'from

conduct that plainly indicates such intent as a matter of logical probability.'"13

       In holding that the facts before it did not allow an inference of intent to injure or

defraud, the Vasquez court distinguished cases where the defendants "actually

presented their forged documents in hopes of defrauding law enforcement officers or

employers."14 By contrast, there was no evidence before the Vasquez court that

Vasquez "had sought work, was working, or planned to work in the area. Neither did

       10 Vasquez, 178 Wn.2d at 7.
       11 State v. O'Connor. 155 Wn. App. 282, 290, 229 P.3d 880 (2010).
       12 State v. Brockob. 159 Wn.2d 311, 318, 330-31, 150 P.3d 59 (2006).
       13 Vasquez. 178 Wn.2d at 14 (emphasis added) (quoting State v. Bergeron. 105
Wn.2d 1, 20, 711 P.2d 1000 (1985)).
       14 Vasquez. 178 Wn.2d at 12.
                                             -4-
No. 70325-1-1/5

the State offer any evidence suggesting that Vasquez had used the forged social

security and permanent resident cards to obtain employment or for any other

purpose."15

      This case is similar to Vasquez. Like Vasquez, Aguayo-Ramirez possessed

items commonly associated with the charged crime. But the circumstances did not

"plainly indicate" his intent to use them to commit that crime. Although several months

had passed since the licenses and checkbook were stolen, the checkbook had not been

used and there was no evidence that the licenses, which were hole-punched and likely

invalid, had been used for any purpose. Contrary to the State's assertions, Aguyao-

Ramirez's nervousness at the time of his arrest was patently equivocal and does not

support an inference of intent. His nervousness was attributable to many things,

including the unrelated matter for which he was arrested as well as the traffic infraction.

Courts have long recognized that it is not unusual for "persons stopped by law

enforcement officers to display some signs of nervousness."16 Deputy McDonald went

even further, stating that it is "typicalTor someone to be nervous" when stopped by law

enforcement.17

       Aguayo-Ramirez's statement that the driver's licenses and checkbook "belong to

friends of mine" was also insufficient to support an inference of intent to commit a crime.


       15 Vasquez. 178 Wn.2d at 17.
     16 State v. Henry. 80 Wn. App. 544, 552, 910 P.2d 1290 (citing State v. Barwick.
66 Wn. App. 706, 710, 833 P.2d 421 (1992) (reversed on other grounds)).
       17 (Emphasis added.)
                                            -5-
   No. 70325-1-1/6

  The statement was ambiguous as to whether Aguayo-Ramirez was claiming to be

   friends with the true owners or whether he claimed only that his friends gave him the

   items. And given Aguayo-Ramirez's need to explain his possession of items apparently

   belonging to someone else, his statement, like his nervousness, was at best equivocal

   evidence of any intent to commit a future crime.18

                          In short, while Aguayo-Ramirez may have considered using the licenses and

   checkbook to commit or assist the commission of a crime, the evidence did not plainly

   indicate that he formed an intent to do so. The State thus failed to prove the requisite

   intent beyond a reasonable doubt.

                          Reversed and remanded with instructions to vacate the convictions.


                                                           FOR THE COURT:




        „
                        \n
            -'-.        CM
(."-.       --          ^,.
 C-                     —-



  —         —'.          f.---

                         c-*.
\~^
•. ••>'>. • '*",          ,    i,

  *C-
            ;.^*              e>J

             -O
                              <J>
               '••:>•         a>
            "'.»>"             ^r
            •-"v.—                  C=3
            C3 0 -J                 c->




          18 See Vasquez. 178 Wn.2d at 14-15 (concluding that Vasquez's statements to
   security guard were patently ambiguous and did not support inference of intent to injure
   or defraud).
                                                             -6-
