IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

DAVID TLUNG ZA THANG,

Appellant.

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No. 36027-0-III

UNPUBLISHED OPINION

SIDDOWAY, J. — David Thang appeals his convictions for multiple counts of 

identity theft, forgery, and possession of stolen property. He assigns error to a jury 

instruction, an evidentiary ruling, the trial court’s imposition of discretionary legal 

financial obligations (LFOs), and its finding that he used a motor vehicle to commit the

felonies. We affirm the convictions but remand with directions to the trial court to strike 

FILED

December 3, 2019

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36027-0-III

State v. Thang

2

the discretionary LFOs and the use of a motor vehicle finding from Mr. Thang’s 

judgment and sentence. 

FACTS AND PROCEDURAL BACKGROUND

In October 2017, David Barragan stole five checks from the mailbox of his 

neighbor, Robert Clements. Mr. Barragan altered the stolen checks to make them 

payable to himself, and increased the value of two checks. He asked his college 

roommate, David Thang, to cash the checks for him, explaining that he did not have a 

bank account in Washington State. 

Mr. Thang was willing, and over the period of a week used the drive-up ATM1at 

his bank to deposit four of the checks. After depositing the checks, Mr. Thang would 

immediately withdraw their value or the $500 maximum daily allowance for ATM 

withdrawals and turn the funds over to Mr. Barragan.

Within a week of Mr. Thang depositing and withdrawing funds from the first 

check, his bank was notified that one of the checks appeared to be altered and had a 

flawed endorsement. Mr. Thang’s bank responded by putting a hold on his account and 

later by withdrawing the full amount of the apparently altered or forged checks from Mr. 

Thang’s account, in order to restore the funds to Mr. Clements. 

 

1 Automatic teller machine.
No. 36027-0-III

State v. Thang

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Mr. Barragan originally claimed that he received the checks for work he had done, 

but later admitted that he had taken them from Mr. Clements’s mailbox. He agreed to 

plead guilty to criminal charges.

Mr. Thang was charged with four counts of second degree identity theft, four 

counts of forgery, two counts of second degree possession of stolen property, and two 

counts of third degree possession of stolen property. 

During Mr. Thang’s two-day jury trial, one of the State’s witnesses was Deputy 

Nicholas English, who had conducted a recorded interview of Mr. Thang. In the course 

of direct examination, the prosecutor asked the deputy about some of the statements Mr. 

Thang had made when interviewed. When given the opportunity to cross-examine the 

deputy, Mr. Thang’s defense counsel ran into objections from the prosecutor when he 

asked the deputy about statements made by his client that would be helpful to the 

defense. Defense counsel then requested the opportunity to play the entire recording for 

the jury. 

Outside the presence of the jury, the trial court heard argument from defense 

counsel, who expressed frustration that the State had not provided a transcript of the 

recorded interview or played it for the jury. The trial court had previously granted a State 

motion in limine prohibiting defense counsel from “eliciting from witnesses hearsay 

statements of his client.” Clerk’s Papers (CP) at 25. Defense counsel had not objected to 

the motion in limine when it was ruled on before trial, but now argued that it was unfair. 
No. 36027-0-III

State v. Thang

4

The following is as clear an explanation as defense counsel offered of why he should be 

allowed to play the recorded interview:

I feel the State’s hiding evidence or trying to hide evidence and they’re 

trying to eliminate—eliminate the evidence that is in favor of my client by 

their allowing to ask hearsay questions and I’m not allowed to do the same 

thing based on the statements which seems, I think—if in the judicial realm, 

it seems to me not to be proper to allow one party to do that and not the 

other party.

We have a recording. I don’t have a transcript, or I would show him 

the transcript and go over that with him. That’s not been provided to me 

like it normally is. So I think the recording is the best way, and we do 

have—and I think we should play that, your Honor, so that this jury has a 

full view of the evidence.

Report of Proceedings (RP)2at 76. The prosecutor responded that the State did not 

intend to play the recorded interview, which it characterized as “multiple layers of 

hearsay,” and asserted that the hearsay exception for admissions by a party opponent 

provided by ER 801(d)(2) intentionally operates on a one-way basis. Id. at 76-77.

After recessing and reviewing case law the State had cited in support of its motion 

in limine, the trial court sustained the State’s objection to playing the recording. 

The trial court’s instructions to the jury included the Washington pattern jury 

instruction on accomplice liability. Mr. Thang raised no objection to any of the court’s

instructions. In closing argument, the prosecutor argued that while Mr. Thang was not 

the mastermind of the crimes, he was guilty as an accomplice. He identified evidence 

 

2 All references to the report of proceedings are to the verbatim report of the trial 

proceedings.
No. 36027-0-III

State v. Thang

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from which he argued jurors could infer that Mr. Thang was aware that the checks were 

not legitimate: their apparent alterations, their unexplained drawer (Clements Farms, 

Inc.), the fact that the first check was made payable to Verizon, and the fact that Mr. 

Barragan had never needed Mr. Thang to cash checks he received from work study or 

financial aid—only these four checks from Clements Farms, all of which he asked to be 

cashed over a period of about a week.

The jury found Mr. Thang guilty as charged. The trial court imposed a first-time 

offender waiver and sentenced Mr. Thang to 120 days’ confinement. Mr. Thang appeals. 

ANALYSIS

Mr. Thang makes four assignments of error, one of which—a challenge to the 

imposition of discretionary LFOs—the State concedes, in light of State v. Ramirez, 191 

Wn.2d 732, 426 P.3d 714 (2018) (holding that LFO relief enacted in 2018 applies 

prospectively to cases on direct appeal). We will remand with instructions to strike the 

discretionary LFOs. We address the remaining errors in the order presented by Mr. 

Thang.

I. INSTRUCTIONAL ERROR

Mr. Thang’s first assignment of error is to the elements instructions for the second 

degree identity theft charges, which he contends diminished the State’s burden of proof. 

The State’s threshold response is that Mr. Thang raised no objection to the instruction in 
No. 36027-0-III

State v. Thang

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the trial court, so any error was not preserved. See RAP 2.5(a). The State is correct, but 

the challenge is a simple one to address and reject, so we exercise our discretion to 

review it.

The trial court’s elements instructions for the second degree identity theft charges 

were based on the Washington Pattern jury instruction. Its instruction 15, for the crime 

charged in count I is representative, and provided the following statement of the 

elements:

To convict the defendant of the crime of Identity Theft in the Second 

Degree as charged in Count I of the information, each of the following 

elements of the crime must be proved beyond a reasonable doubt:

1. That on or about the 11th day of October, 2017, the defendant 

knowingly obtained, possessed, or transferred or used a 

means of identification or financial information of another 

person, living or dead;

2. That the defendant did so with the intent to commit or aid or 

abet any crime;

3. That the defendant knew that the means of identification or 

financial information belonged to another person; and

4. That the acts occurred in the State of Washington.

CP at 50; see 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY 

INSTRUCTIONS: CRIMINAL 131.06, at 616 (4th ed. 2016). 

The trial court’s instructions conform to RCW 9.35.020(1) and (3), which define 

the elements of identity theft in the second degree. Subsection (1) of the statute makes it 

a crime to “knowingly obtain, possess, use, or transfer a means of identification or 
No. 36027-0-III

State v. Thang

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financial information of another person, living or dead, with the intent to commit, or to 

aid or abet, any crime.” Subsection (2) of the statute limits first degree identity theft to 

situations involving the obtaining of something of value in excess of $1,500 or where the 

accused knowingly targets a senior or vulnerable individual. Subsection (3) provides that 

a person is guilty of second degree identity theft if he or she violates subsection (1) of the 

statute under circumstances not amounting to first degree identity theft.

Mr. Thang argues that the instruction was in error because the State relied on 

accomplice liability under RCW 9A.08.020(3)(a), which provides that “[a] person is an 

accomplice of another person in the commission of a crime if: (a) With knowledge that it 

will promote or facilitate the commission of the crime, he or she: (i) Solicits, commands, 

encourages, or requests such other person to commit it; or (ii) Aids or agrees to aid such 

other person in planning or committing it.” (Emphasis added.) He contrasts RCW 

9A.08.020(3)(a)’s requirement that the accomplice know he or she is facilitating “the

crime” with instruction 15’s reference to obtaining, possessing, transferring or using 

another person’s identification or financial information with the intent to commit or aid 

or abet “any crime.”

Mr. Thang’s error is in conflating what the legislature has provided amounts to 

identity theft with what it has required to establish accomplice liability. “It is the job of 

the legislature to define crimes.” State v. Pinkham, 2 Wn. App. 2d 411, 414, 409 P.3d 

1103, review denied, 190 Wn.2d 1027, 421 P.3d 455 (2018). The legislature chose to 
No. 36027-0-III

State v. Thang

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make it an element of identity theft that the accused acted with the intent to commit or aid 

or abet “any” crime. It chose to impose liability as an accomplice only where the 

accomplice acts with knowledge that his or her actions will promote or facilitate the 

commission of “the” crime. Mr. Thang’s jury was properly instructed on that different 

requirement.3 RCW 9A.08.020(3)(a). 

Read together, the instructions told the jury that to be guilty of second degree 

identity theft, Mr. Thang must have had knowledge that his actions would promote or 

facilitate the commission of identity theft, which itself required proof that obtaining, 

possessing, transferring or using another person’s identification or financial information 

was with the intent of committing or aiding or abetting any crime. There was no error in 

the instructions.

II. REFUSING REQUEST TO PLAY RECORDED INTERVIEW

Mr. Thang next argues that the trial court erred in sustaining the State’s objection 

to his request that his entire recorded interview be played, after the State elicited some of 

 

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Instruction 9 provided in relevant part:

A person is an accomplice in the commission of a crime if, with 

knowledge that it will promote or facilitate the commission of the crime, he 

or she either:

(1) solicits, commands, encourages, or requests another person to 

commit the crime; or

(2) aids or agrees to aid another person in planning or committing 

the crime.

CP at 44 (emphasis added).
No. 36027-0-III

State v. Thang

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Mr. Thang’s statements in its direct examination of Deputy English. For the first time on 

appeal, he argues that the entire interview was admissible under the rule of completeness 

provided by ER 106. That rule states:

When a writing or recorded statement or part thereof is introduced 

by a party, an adverse party may require the party at that time to introduce 

any other part, or any other writing or recorded statement, which ought in 

fairness to be considered contemporaneously with it.

Mr. Thang argues that “[a]lthough defense counsel did not cite ER 106 on the fly 

during the trial, his argument . . . [was] adequate to alert the court to the basis for [his]

argument.” Appellant’s Br. at 12. Setting aside whether the rule even applies where the 

State did not offer any part of the recording but only questioned Deputy English, the 

objection was not adequate. Not only was ER 106 not cited, but there was no reference 

to the rule of completeness. Based on the trial court’s ruling, it clearly understood that it 

was being asked to rule only on the State’s hearsay objection.4 

 

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In sustaining the objection, the trial court said, “I think State v. Finch is on point 

. . . and also . . . Tegland Section 801:16 on the 2017/2018 Handbook.” RP at 80. The 

latter was a clear reference to 5D Karl D. Tegland, Washington Practice: Courtroom 

Handbook on Washington Evidence (2017-2018 ed.). Section 801:16, which deals with 

admissions by a party-opponent, includes the following discussion:

Statements by a party are admissible only when offered against that 

party. The rule does not allow a party to introduce his or her own out-ofcourt statements through the testimony of other witnesses. If the rule were 

otherwise, a party could simply tell his or her story out of court, and then 

present it through the testimony of other witnesses without taking an oath 

and without facing cross-examination. State v. Finch, 137 [Wn.]2d 792, 
No. 36027-0-III

State v. Thang

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Had defense counsel cited ER 106, his challenge on appeal would still fail because 

he made no offer of proof. The rule does not say that if part of a recorded statement is 

offered by one party, the remainder is automatically admissible on the request of the 

other party. Admissibility turns on whether some other part of the recording “ought in 

fairness to be considered contemporaneously.” Some showing must be made of what else 

should be admitted and why. Defense counsel did not ask the trial court to listen to the 

20 minute recorded statement or excerpts from it, nor did he provide any other offer of 

proof enabling the trial court to make a ruling. 

For both reasons, any argument based on ER 106 was not preserved.

III. “USE OF A MOTOR VEHICLE” FINDING

Finally, Mr. Thang argues the trial court erred when it included a finding in the 

judgment and sentence that he used a motor vehicle during the commission of the crimes. 

Under RCW 46.20.285, the Washington Department of Licensing “shall revoke the 

license of any driver for the period of one calendar year” for “[a]ny felony in the 

commission of which a motor vehicle is used.” RCW 46.20.285(4).

The statute does not define “used” but Washington courts have interpreted the 

word in this context to mean “‘employed in accomplishing something.’” State v. Batten, 

 

975 P.2d 967 (1999) (defendant not allowed to call witness to recount 

exculpatory out-of-court statement by defendant).

5D TEGLAND, supra, at 385.
No. 36027-0-III

State v. Thang

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95 Wn. App. 127, 129, 974 P.2d 879 (1999), aff’d, 140 Wn.2d 362, 997 P.2d 350 (2000) 

(quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2524 (3d ed. 1966)). 

The Washington Supreme Court has “affirmed the relevant test for ‘use’ as whether the 

felony has some reasonable relation to the operation of a motor vehicle, or whether the 

use of the motor vehicle contributes in some reasonable degree to the commission of the 

felony.” State v. B.E.K., 141 Wn. App. 742, 746, 172 P.3d 365 (2007) (emphasis added). 

There must be a relationship between the vehicle and the commission or accomplishment 

of the crime. State v. Alcantar-Maldonado, 184 Wn. App. 215, 228, 340 P.3d 859 

(2014). A vehicle is not used in the commission of a crime where it was incidental to the

commission of the crime. Id. We review the statute’s application to a specific set of 

facts de novo. State v. Dupuis, 168 Wn. App. 672, 674, 278 P.3d 683 (2012). 

There was no discussion at sentencing about whether the finding should be made 

in Mr. Thang’s case. Evidence was offered during trial that Mr. Thang had deposited the 

four checks at a drive-up ATM; at issue is whether the forgery, identity theft, and 

possession of stolen property charged had some reasonable, nonincidental relationship to 

Mr. Thang’s operation of his car.

We find this case to be similar to Alcantar-Maldonado, in which this court found 

that for the defendant to use his vehicle solely to transport himself to and from the 

location of an assault was not a sufficient nexus. 184 Wn. App. at 229-30. The 
No. 36027-0-III

State v. Thang

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defendant had not used his vehicle to assault the victim, he did not assault the victim 

inside the vehicle, and the vehicle was not the subject of the crime charged. Id. at 230. 

The vehicle’s use was merely incidental, for transportation. Id. at 229-30; see also State 

v. Hearn, 131 Wn. App. 601, 610-11, 128 P.3d 139 (2006) (holding that drugs found in a 

purse and basket inside a vehicle did not qualify as “use” of a vehicle because the vehicle 

was not used to conceal the drugs); State v. Wayne, 134 Wn. App. 873, 875-76, 142 P.3d 

1125 (2006) (holding that there was no reasonable connection between drugs found in the 

defendant’s pocket and the operation of his vehicle). 

The State argues on appeal that Mr. Thang made a “calculated decision to commit 

his crimes by using the drive-up ATM,” Br. of Resp’t at 28, but it offers no evidence that 

for Mr. Thang to use his car, as distinguished from using an ATM, was calculated. Using 

an ATM contributed to the commission of the felonies, since there was evidence that the 

checks’ alterations would have been apparent to a teller. But there was no evidence that 

the bank did not have walk-up ATMs that could have been used, and even drive-up 

ATMs can be used by bank customers who are traveling on foot or by bicycle. The State 

argues that “[s]eeing a person using a drive-up ATM on foot or on a bicycle could have 

easily aroused suspicion and a 9-1-1 call,” Br. of Resp’t at 30, but it points to no 

supporting evidence. We will not rely on the State’s speculation to find that Mr. Thang’s 

use of his car was more than incidental.
No. 36027-0-III 

State v. Thang 

We affirm the convictions and remand with instructions to strike the discretionary 

LFOs (the criminal filing fee, court-appointed attorney fee, and jury demand fee) and the 

use of a motor vehicle finding. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

Pennell, J. 

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