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

## No. 69962-8-1 ?f I DIVISION ONE v. ] MUHAMMED ZBEIDA TILLISY, UNPUBLISHED OPINION Appellant. i FILED: September22, 2014 ~ 

### Trickey, J. —In the earlymorning of May31, 2012, CorporalJosh McClure of the Edmonds Police Department arrested Muhammed Tillisy on an outstanding arrest 

### warrant.1 Corporal McClure searched Tillisy incidentto the arrest and discovered seven differentbankchecks.2 The checks were identical intheirformat and contained the same 

### account androuting numbers.3 Some of thechecks identified Tillisy as the payeeand HondaofFife as the accountholder; other checksidentifiedTillisyas the accountholder.4 

### After obtaining a warrant to search Tillisy's vehicle, police officers located two additional bank checks that were similar to those previously seized.5 The officers also 

### found apiece ofscratch paper, onwhichthebusiness name "HondaofFife" was written, as well as the same account and routing numbers as those printed on the previously discovered checks.6 The officers additionally found a checkbook for the Chase Bank account of OkKyung Yang.7

1Report of Proceedings (RP) (Nov. 26, 2013)at 77, 83-84. 2 RP at 86. 3RP at 86, 87. 4 RP at 86. 5 RP at 89, 93. 6 RP at 93-94. 7 RP at 144-45.No. 69962-8-1 / 2 

### The State charged Tillisy, by second amended information, with three counts of second degree identity theft, in violation of RCW 9.35.020(1) and (3) (counts I, II, and V); two counts offorgery, in violation of RCW 9A.60.020(1 )(b) (counts III and IV); and one count of unlawful possession of payment instruments, in violation of RCW 9A.56.320(1) 

### and (2) (countVI).8 A jury found Tillisy guilty on all counts.9 The trial court determined that counts I, II, and III encompassed the same criminal 

### conductand counted as one crime forpurposes of determining the offenderscore.10 The court also found that counts V and VI were the same criminal conduct for purposes of 

### determining the offender score.11 The court sentenced Tillisy to 49 months on counts I, II, and V; 25 months on counts III and VI; and 22 months on count IV.12 Counts I, II, and 

### III were to run concurrently but consecutive to count IV.13 Counts V and VI were also to


### runconcurrently.14 The trial court imposed a total confinement of 120 months.15 Tillisy appeals thejudgment and sentence. 

### Tillisy contends that his two convictions for second degree identity theft violate doublejeopardybecause, undercounts Iand II, he wastwice convicted ofsecond degree identify theft forpossession ofHonda of Fife's financial information. The State concedes this point, and we accept its concession. The proper remedy is to vacate one of the 

### underlying convictions for count Ior count II. See In re Strandv, 171 Wn.2d 817, 819,

8Clerk's Papers (CP) at 278-79. Counts Iand II alleged Tillisy committed second degree identity theft for checks drawn on the account of Honda of Fife. CP at 278. Count V alleged Tillisy committed identity theft forchecks drawn on the account of OK Kyung Yang. CP at 278-79. 9 CP at 220-25. 10CPat4. 11 CPat4. 12CP at 6. 13CP at 6. 14CP at 6. 15CP at 6.No. 69962-8-1 / 3 256 P.3d 1159 (2011) ("When a conviction violates doublejeopardy principles, itmust be wholly vacated."). Tillisy next asserts that the trial court erred by denying his request to represent himself pro se. But as the State correctly points out, Tillisy did not bring a motion to represent himself inthe present case. Instead, Tillisyrequested to proceed pro se in a 

### separate case in which he was being prosecutedin Snohomish County SuperiorCourt.16 At a hearing on that superior court case, held on November 8, 2012, the only reference to the present case was when the State told the trial court that Tillisyhad another case 

### pending and informed the court of the trial date for that matter.17 The record before us on the current case reveals no motion to proceed pro se on 

### behalf of Tillisy. A request to proceed pro se must be made timely and stated unequivocally. State v. Stenson, 132Wn.2d 668, 737, 940 P.2d 1239 (1997). Notimely requestwas made here. Accordingly, this claim of error fails. 

### Tillisy nextcontends that the trial courtabused its discretion by denying hismotion 

### to dismiss the charges against him, which he raised at the conclusion of the State's 

### opening statement. Tillisy argues the State's opening statement did notassert that the alleged crimes took place inthe state ofWashington. A trial court has broad discretion to control the content of the parties' opening statements. State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976). "The opening



### 16 In this appeal, Tillisy filed a motion to supplement the recordwith the transcript of a November 8, 2012 hearing that took place in the separate superior courtcase (No. 12-1-01574-5). That case is linked to this appeal (State v. Tillisy. No. 70654-3-I). Supplemental (Supp.) RP at 1. A commissioner of this court granted Tillisy's motion to supplement the record. Both parties cite to 

### the supplemental report of proceedings in theirbriefs and we consider it for purposes of this appeal. 17 Supp. RP at 27.No. 69962-8-1 / 4
statement is based upon the anticipated evidence and the reasonable inferences which
can be drawn therefrom." Kroll, 87 Wn.2d at 835 (citing State v. Aiken, 72 Wn.2d 306, 351, 434 P.2d 10 (1967)). The purpose ofan opening statement is merely "to outline the material evidence the State intends to introduce." Kroll, 87 Wn.2d at 834. "Charges frame the issues; statements of counsel do not." State v. Gallagher, 15 Wn. App. 267, 270-71, 549 P.2d 499 (1976). Tillisy contends on appeal, as he did at trial, that under Gallagher, the prosecutor
was required to state in opening statements that the charged crimes took place in Washington, and the failure to do so mandated dismissal ofthe charges. InGallagher, the CourtofAppeals affirmed the trial court's dismissal of two counts 

### alleged in the information, concluding that "it is clear beyond doubt that the special prosecutor's [opening] statementaffirmatively includes factual matters whichconstitute a 

### complete defense to counts 2 through 6 of the information." 15 Wn. App. at 275. The court held that a trial court has authority to dismiss charges after the State's opening 

### statement "only when it is clear beyond doubt that the statement affirmatively includes fact matterwhich constitutes a complete defense to the charge orexpressly excludesfact matter essential to a conviction." Gallagher, 15 Wn. App. at 270. The court explained 

### that "when some fact is clearly stated or admission is expressly made, leaving only an isolated and determinative issue of law, the court may resolve that issue." Gallagher, 15 

### Wn. App. at 270. Contrary to Tillisy's assertion, Gallagher does not support the 

### proposition that a prosecutor's failure to mention the state of Washington in an opening statement mandates dismissal of the charges. Tillisy's reliance on Gallagher is unavailing.No. 69962-8-1 / 5 We remand with instructions to vacate one ofthe underlying convictions for count Ior II, and for resentencing. We otherwise affirm thejudgment and sentence.


# "TV* c^gy, ^

WE CONCUR:



## iOd^U>X 

# & <e X,