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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

DANIEL BATEMAN,Appellant. No. 70261-1- DIVISION ONE

UNPUBLISHED OPINION FILED: August 11, 2014 

### Becker, J. — Daniel Bateman appeals from his convictions for two counts 

### of identity theft in the second degree, violation ofthe uniform controlled substances act, and possession ofstolen property inthe second degree. On appeal, he makes two arguments: (1) the trialcourterred when itadmitted 

### recordings of his phone calls from jailand (2) substantial evidence did not support each alternative means of committing identity theft. We affirm. The charges of identity theft arose from the use of "cloned" or 

### remagnetized credit cards on three occasions in August 2012. The name of Melissa Matera, Bateman's girl friend, was on the cards. The magnetic strip information belonged to a couple whose home had recently been burglarized.No. 70261-1-1/2
On August4, 2012, a stolen Capital One credit card was used at a convenience store inthe Greenwood neighborhood ofSeattle. A video showed Bateman and Matera in the store. Matera made a purchase, left the store, returned, and made another purchase. 

### Laterthat day, a stolen American Express card was used to make a purchase at a mall department store in north Seattle. A surveillance video showed Bateman purchasing two pairs ofmen'sjeans. 

### On August 5, 2012, the same card was used to make a purchase at a Ballard drugstore. The store's security cameras showed Bateman and Matera 

### getting out of a car. They spoke for a moment, and Matera went intothe store. Afew minutes later, she ran backto the car, then went back into the store, paid 

### for several items including giftcards, and returned to the car. 

### Bateman was charged withthree counts of identity theft inthe second 

### degree forthese incidents along withthe othertwo charges. A jury convicted him of allcharges exceptthe identity theft count arising out ofthe convenience store incident. Bateman appeals. 

### Bateman first argues that admission ofrecordings of hisjailhouse phone calls violated article I, section 7 ofthe Washington Constitution. He did not 

### object to their admission at trial. Bateman argues admission was error because he had a privacy interest in his phone calls and no warrantwas obtained to 

### record them. Hisarguments fail under State v. Modica. 164Wn.2d 83, 186 P.3d 1062 (2008), and State v. Archie. 148 Wn. App. 198, 199 P.3d 1005, review denied. 166 Wn.2d 1016 (2009).No. 70261-1-1/3
Bateman next argues thatthe crime of identity theft has four alternative means, some ofwhich were not supported by substantial evidence. This argument implicates the right to a unanimousjury verdict provided by article I, section 21 ofthe Washington State Constitution. State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). The crime of identity theft is defined as follows: "No person may 

### knowingly obtain, possess, use, or transfer a means ofidentification or financial information ofanother person, livingordead, with the intentto commit, orto aid
or abet, any crime." RCW 9.35.020(1). The crime is identity theft inthe first 

### degree, a class B felony, ifthe offenderobtains $1,500 or more invalue. Otherwise, the crime is identity theft inthe second degree, a class C felony. RCW 9.35.020 (2-3). The to-convict instructions for counts 2 and 3 read: "the defendant 

### knowinglyobtained, possessed, ortransferred or used a means of identification

or financial information." An alternative means crime is one that provides that the proscribed 

### criminal conduct may be proved in a variety ofways. State v. Peterson, 168 Wn.2d 763, 767, 230 P.3d 588 (2010). 

### The Supreme Court has articulated four factors that help to determine whether, in a particular statute, the legislature intended to define multiple 

### offenses or a single offense committable in more than one way: (1)the title ofthe act, (2) whetherthere is a readily perceivable connection between the various acts setforth, (3)whetherthe acts are consistentwithand not repugnantto eachNo. 70261-1-1/4 other; and (4) whetherthe acts inhere inthe same transaction. State v. Arndt. 87 

### Wn.2d 374, 378-84, 553 P.2d 1328 (1976). In Arndt. the defendant had been convicted ofgrand larceny forfraudulent receipt of public assistance. The statute criminalized various acts by which a person might obtain public assistance to 

### which he was not entitled, such as making a willfully false statement and willfully failing to reveal a material fact concerning eligibility. Applyingthe factors, the court concluded thatthe statute did not define multiple offenses. Rather, it 

### defined a single offense that could be committed by several different means. This conclusion defeated the defendant's argumentthatthejury had to agree unanimously as to each means ofcommitting the crime thatwas mentioned in 

### the to-convict instruction. Thejurors only had to agree unanimously thatthe defendant committed grand larceny. Although both the State and Bateman contend thatthe Arndtfactors 

### supporttheir respective positions, neither argues thatthe identitytheft statute defines more than one crime. Ifthe four verbs in the statute defined four distinct crimes, there would be no basis on which to argue that any ofthe four crimes could be committed by alternate means. Because the parties agree that RCW 9.35.020 describes a single offense, the Arndtfactors are not relevant. The question is whetherthe single offense ofidentity theft can be committed by only

one means or by several.
Bateman contends that the four different verbs used in the statute— obtain, possess, transfer, and use—define four alternative means ofcommitting the crime ofidentitytheft. Where a single crime can be committed in more thanNo. 70261-1-1/5

one way, there must bejuror unanimity as to guilt for the single crime charged, butthejurors need not be unanimous as to the means by which the crime was committed so long as substantial evidence supports each alternative means presented. State v. Kitchen. 110 Wn.2d 403, 410, 756 P.2d 105 (1988) (explaining the distinction between an alternative means case and a multiple acts case). Ifthe four verbs inthe identity theft statute comprise only a single means 

### ofcommitting identity theft, then the issue ofjuror unanimity does not arise. There is no bright line rule by which the courts can determine whetherthe legislature intended to provide alternate means ofcommitting a particularcrime. Peterson, 168 Wn.2d at 769. Each case must be evaluated on its own merits. Peterson, 168 Wn.2d at 769. Bateman contends the use offour different verbs establishes that the crime is committable in more than one way. He argues there is no substantial evidence proving that he knowingly obtained ortransferred the credit card used at the department store or that he knowingly obtained or used the credit card at the drugstore. A defendant may not simply pointto an instruction or statute that is 

### phrased inthe disjunctive inorderto trigger a substantial evidence review. State

v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007); Peterson, 168 Wn.2d at 770. A definition that states methods ofcommitting a crime inthe disjunctive 

### does not require a conclusion thatthe definition creates alternative means of committing the crime. State v. Laico, 97 Wn. App. 759, 762, 987 P.2d 638 (1999).No. 70261-1-1/6


### Where the word "knowingly" clearly relates to a series ofverbs, its placement suggests only one means is intended. State v. Lindsev, 177 Wn. App. 233,241,311 P.3d61 (2013). review denied, P.3d (2014). That is the


### case here. RCW 9.35.020(1) states that no person "may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person." Bateman points to the comments to the pattern instruction on identity theft. Practitioners are advised to omitthe phrase "obtained, possessed, or transferred" when the defendant is charged only with "use": The phrase "obtained, possessed, ortransferred" is separately bracketed from the word "used." The separate bracketing is intended to emphasize that, for cases inwhich the defendant is charged only with "use" ofthe designated items, jurors should not also be instructed with the other statutory terms. 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 131.06 note on use at 560 (3d ed. 2008). Bateman contends the comment 

### indicates that "use" is one "means" while possession is another "means." Butthe comment does not referto "means," and itdoes not cite cases. We regard the comment not as a legal analysis but rather as practical advice intended to help practitioners avoid confusing a jury. 

### Bateman's argument is similarto one the Supreme Court rejected in State v. Owens. 180 Wn.2d 90, 323 P.3d 1030 (2014). The statute addressed in Owens provides that a person who "knowingly initiates, organizes, plans, 

### finances, directs, manages, or supervises the theft ofpropertyfor sale to others, 

### or who knowingly traffics instolen property, is guilty of trafficking instolenNo. 70261-1-1/7 

### property inthe first degree." RCW 9A.82.050(1). The defendant argued thatthe eight different verbs articulated eight alternative means for committing the crime of first degree trafficking in stolen property. He argued that his conviction had to 

### be reversed because the State charged all eight and there was not substantial evidence to supporteach means charged. Relying on the placement ofthe word "knowingly" in two different positions inthe list ofverbs, the court concluded that the statute articulated only two alternative means, not eight. The court also pointed outthatthe first seven verbs were so closely related they did not really address distinct acts: 

### For example, it would be hard to imagine a single act ofstealing whereby a person "organizes" the theft but does not "plan" it. Likewise, itwould be difficult to imagine a situation whereby a person "directs" the theft but does not "manage" it. Any one act of stealing often involves more than one ofthese terms. Thus, these terms are merely differentways ofcommitting one act, specifically 

### stealing. Consistentwith Peterson, where the various acts of moving without giving proper notice were too similarto constitute distinct alternative means, an individual's conduct under RCW 9A.82.050(1) does notvary significantly between the seven terms listed inthe first clause, but does vary significantly between the two clauses. We hold that RCW 9A.82.050(1) describes only two alternative means oftrafficking in stolen property. 

### Owens, 180Wn.2d at 99, citing Peterson, 168 Wn.2d 763. Because substantial evidence supported each ofthe two alternative means, the court affirmed the conviction. The four verbs that describe identify theft are like the seven verbs that describe the first alternative means oftrafficking in stolen property. They do not 

### really address distinct acts. The State accurately characterizes them as "stages 

### along a continuum of activity." For example, it would be hard to imagine theNo. 70261-1-1/8 

### crime of identity theft being committed by a single act of using a credit card that did not also involve obtaining and possessing the card. Itdoes not matterwhich 

### ofthe four verbs most accurately describes the way Bateman involved himself with anotherperson's creditcard. What matters is that thejury unanimously found he did so knowingly and with the intentto commit a crime. In a statementof supplemental authority, Bateman calls attention to State

v. Levda, 157 Wn.2d 335, 138 P.3d 610 (2006), and its abrogation in 2008 by 

### legislative amendmentto chapter 9.35 RCW. Levda, a unit ofprosecution case, held thatthe defendant's convictions on four counts of identitytheftviolated 

### constitutional prohibitions againstdoublejeopardy. The court held itwas improperfor the State to charge Leyda with four counts of identity theftwhen he 

### only had a single creditcard of a single individual, even though the card was involved in at least four of his transactions. The court said common sense 

### suggested that a victim"has only one identity that can be unlawfully appropriated." Levda, 157 Wn.2d at 347. The act now articulates the legislature's intent "to penalize for each unlawful act ofimproperly obtaining, possessing, using, or transferring means of identification or financial information ofan individual person." RCW 9.35.001. 

### The amendment changed the statute to permitwhat occurred in this case, the charging ofBateman with more than one count of identity theft though each transaction involved the same credit card ofthe same person. It is not self-evident how the amendment and the new intent language 

### mightbearon Bateman's argumentthat identity theft is an alternative means

8No. 70261-1-1/9


### crime. Bateman admitted at oral argumentthat he has not located any authority explaining how a doublejeopardy unit ofprosecution analysis overlaps, if at all, with an alternative meansjuror unanimity analysis. We decline the invitation to incorporate the supplemental authority into our analysis. Such "'naked castings 

### into the constitutional sea are not sufficientto commandjudicial consideration and discussion.'" In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986), quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970). We conclude Bateman has failed to establish thatthe crime ofidentity theft has alternative means. Bateman filed a pro se statement ofadditional grounds for review pursuantto RAP 10.10. His statement outlines a number of instances of allegedly deficient performance ofcounsel and prosecutorial misconduct. He claims there was a speedy trial violation. And he faults the courtfor refusing his 

### requestto appoint new counsel and for allowing Matera to testify in jail clothes. The statement of additional grounds suffers generally from misunderstanding of applicable law. None ofthe grounds stated by Bateman warrantfurther review. The reply briefof appellant prepared by appellant's counsel endorses and advocates one ofthe claims ofineffective assistance ofcounsel identified in Bateman's statement ofadditional grounds. Appellant's counsel also attempted to include the ineffective assistance issue in his oral argument before this court. Counsel's conduct demonstrates a misunderstanding ofthe rules of 

### appellate procedure. An appellate case isframed by the briefofappellant, which 

### assigns errorand identifies the issues the court is being asked to review. RAPNo. 70261-1-1/10 

### 10.3(a). The brief ofrespondent answers the brief ofappellant. RAP 10.3(b). The reply briefofappellant is limited to a response to the issue inthe brief to which the reply briefis directed. RAP 10.3(c). A pro se statement ofadditional grounds as allowed by RAP 10.10 is not a 

### supplemental brief ofappellant. Indeed, it is not a brief at all. It is an opportunity for an appellantto call the court's attention to matters that the appellant believes
were not adequately addressed inthe brieffiled by appellant's counsel. RAP 10.10(a). The rule provides that the court may, in its discretion, request additional briefing from counsel to address issues raised pro se by the appellant. RAP 10.10(f). The rule does not provide discretion to counsel to supply additional briefing thatthe court has not requested. Here, the briefofappellant did not raise ineffective assistance as an issue. Counsel did not obtain permission from the courtto file a supplemental 

### assignment oferroror a supplemental brief. The courtdid not request additional briefing from counsel to address the issue ofineffective assistance. Counsel's inclusion ofthe issue inthe reply briefofappellant was improper and violated 

### RAP 10.7. In written and oral advocacy before this court, appellate counsel should stay within the confines oferrors and issues identified incompliance with the rules of appellate procedure. Affirmed.

10No. 70261-1-1/11 

# 'Brckeip.

WE CONCUR: 

# il

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