IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON

STATE OFWASHINGTON No. 77798-0-I Appellant, DIVISION ONE

V. UNPUBLISHED OPINION HALL, JESSE PATRICK, DOB: 08/05/1980, Respondent. FILED: September 30, 2019 SCHINDLER, J.

—The State charged Jesse Patrick Hall with identitytheft in the second degree committed while on community custody. The to-convictjury instruction required the State to prove beyond a reasonable doubt that Hall knowingly used the identification ofanother person to commit any crime. Consistentwith the amended information and atthe request ofthe prosecutor, the court instructed thejury only on the crime ofobstructing a law enforcement officer in the discharge ofofficial duties. The trial court granted the defense motion to arrestjudgment, vacated thejuryverdict, and dismissed on the grounds of insufficient evidence. We affirm. FACTS Lake Stevens Police Officer Michael Hingtgen was on patrol the night of February 2, 2017. At approximately 10:36 p.m., Officer Hingtgen noticed a vehicle with

an inoperable brake lighttraveling in excess ofthe posted 35 mph. speed limit. OfficerNo. 77798-0-112

Hingtgen activated his emergency lights and pulled overthe vehicle forspeeding. The

car“immediately” pulled overto the side ofthe road and stopped. As Officer Hingtgen approached the car, a man, later identified as Jesse Patrick Hall, rolled down the window. Officer Hingtgen asked Hall for his driver’s license, registration, and proofof insurance. Hall told Officer Hingtgen that he “didn’t have his license on him.” When Officer Hingtgen asked Hall for other information “to confirm identity,” Hall identified himselfas “Mitch C. Stamey” and gave a birth date ofJanuary 17, 1972. Hall was unable to provide Officer Hingtgen with the lastfourdigits of his social security number. Afterseveral seconds of Hall “kind of holding his head into his hands,” he gave Officer Hingtgen an address in Everett. Officer Hingtgen returned to his patrol carand “ran Mitch Stamey’s information” using the police database. Officer Hingtgen discovered Stamey had an “active misdemeanorwarrant.” The warrant described Stamey as having numerous tattoos. A Washington State Department of Licensing (DOL) photograph of Stamey showed a tattoo on the right side of his neck. Because Officer Hingtgen was not confidentthat Hall was Stamey, he asked Hall to show him the necktattoo. Hall acknowledged he had an outstanding arrestwarrant and gave Officer Hingtgen his “full and correct name” ofJesse Patrick Hall. Officer Hingtgen confirmed there was an outstanding warrant and placed Hall underarrest. The State charged Hall with criminal impersonation in the first degree committed while on community custody. On July20, 2017, the State filed an amended information charging Hall with identitytheft in the second degree committed while on community

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custody by using another person’s identification to committhe crime of obstructing a law enforcement officer. The amended information alleged: COUNT 1: SECOND DEGREE IDENTITYTHEFT (crimes on or after

7/22/01) CRIME COMMITTED WHILE ON COMMUNITY CUSTODY, committed as follows: That the defendant, on oraboutthe 2nd day of February, 2017, did knowingly obtain, possess, use and transfer a means of identification and financial information ofa person, to-wit: Mitch Stamey, with the intent to commit, aid and abet a crime, to-wit: Obstructing a Law Enforcement Officer, in violation of RCW 9A.76.020; proscribed by RCW 9.35.020(1) and (3), a felony; and the crime was committed while the defendantwas undercommunity custody, as provided by RCW 9.94A.525(1 9).[hi Onlytwo witnesses testified attrial: Officer Hingtgen and Snohomish County Prosecutor’s Office legal assistant Rebecca Orr. The court admitted two exhibits into evidence: a DOL photograph ofStamey, exhibit 1; and a DOL photograph of Hall, exhibit 2. Orrtestified that she coordinateswitnesses fortrial and metwith Stameyto arrange his testimonyforthe trial. Orr identified exhibit 1 as an accurate photograph of Mitch Stamey. During cross-examination, Officer Hingtgen testified that Hall waited in the car and did nottry to flee when Officer Hingtgen used the police database to obtain information. Officer Hingtgen testified that immediately after he confronted Hall about the necktattoo, Hall told him he had an outstanding warrant and gave Officer Hingtgen his correct name.

Q. You told him that Mitch has tattoos and the driverofthe vehicle didn’ttryto describe all the tattoos they had to tryto showthey were that person; correct? A. No. No, there was nothing showing at all. Q. And he didn’t change the topic at all awayfrom the topic of tattoos? A. No, he did not.

Most emphasis added. 3No. 77798-0-1/4 Q. He didn’t tryto lookthrough the carto find any paperwork or justification to claim that he might be Mr. Stamey; correct? A. No, he did not. Q. Even afteryou confronted him in a wayto showthat you didn’t believe he was Mr. Stamey, he didn’t attemptto get out of [the] vehicle atthattime? A. No, he did not. Q. He didn’ttryto change your mind? A. No. Q. And he didn’t continue to state he was Mr. Stamey? A. No, he did not. Officer Hingtgen also testified that Hall was cooperative, obeyed commands, and did not attemptto resist arrest.

Q. And you didn’t note there were any incidents or problem with removing him from the vehicle? A. No, he was cooperative. Q. You didn’t have to tell him multiple times to exitthe vehicle? A. No, I onlytold him once. Q. So he followed your instructions atthat point? A. Correct. Q. And you were able to subsequently restrain him without any further incident? A. Yes, ma’am. Q. Okay. You handcuffed him? A. Yes. Q. And afteryou arrested him, he identified himself; correct? A. Yes, ma’am. Q. And he didn’ttryto talkyou out ofarresting him? A. No. Q. He didn’t move around a lotto avoid getting in the back of the car? A. No, he didn’tfight at all. Q. He didn’t tryto run away? A. No. Q. Didn’t kick his legs outwhen getting into the vehicle? A. No. Q. Didn’t scream oryell on his waytojail? A. No.

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Atthe conclusion oftrial, the court instructed thejury on the elements of identity theft and the crime ofobstructing a law enforcement officer. During closing argument, the prosecutortold thejurythat Hall used Stamey’s identification “to obstruct a law enforcement officer” by “trying to avoid being arrested on his warrant” but “failed and got caught.” This is whatyou have to decide today, so it is a good place to start when figuring out howyou are going to go through yourdeliberations. What do I have to prove to you foryou to return a verdict ofguilty? The first is that on oraboutthe 2nd day of February2017, you heard that on that date thatthe Defendant knowingly used a means of identification of another person.

. So information thatwe have in this case is thatthe Defendant used Mitch Stamey’s name full name

—well, middle initial and said, Mitch G. Stamey. He gave his date of birth, which is the same date of birth listed on Mitch Stamey’s driver’s license, and he gave an address in EverettElement No. 2 on yourto convict instruction, thatthe Defendant did this with the intentto commit any crime. So whywas he doing this is the question here, and what I told you is he is doing this to avoid arrest on his warrant. More technical legal terms. He was doing itto obstruct a law enforcement officer, which is Instruction No. 10, obstructing a law enforcement officer, who is Officer Hingtgen, from performing his duties to arrest people on warrants or give citations for speeding. You heard the officertestifythatthis is part of his duties as an officer. So that is what he was doing when he was trying to avoid being arrested on his warrant.

He was hoping that he looked enough like Mitch Stameythat he could get offscottfree. What he didn’t bank on was Officer Hingtgen and his attention to detail, noticing there is a necktattoo on that photo. He wasn’t banking on Mitch Stamey having a warrant. That was probablythe lastthing he wanted to have happen. That’s some bad luck, but don’tfall forthe bate-and-switch. This is not a trial about obstruction. There is an instruction in there on what obstruction means, what obstructing a law enforcement officer means, because it is helpful to deciding whetheror not the Defendant intended to committhat crime. Afterthe court submitted the case to thejury, Hall filed a motion to dismiss. Defense counsel argued that because Hall used only speech to provide a false identity to Officer Hingtgen, the State did not prove beyond a reasonable doubt his “intentto

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obstruct” and committhe crime of identitytheft in the second degree. The prosecutor argued the State did not “have to prove that [Hall] completed that crime, just what his intentwas” to committhe crime ofobstructing a law enforcement officer. During a recess to considerthe briefing, thejury returned a verdict finding Hall guilty of identity theft in the second degree as charged. The courtthen considered the motion to dismiss as a motion to arrestjudgment under CrR 7.4(a)(3) (“Judgment may be arrested on the motion ofthe defendant for. insufficiency ofthe proof ofa material element ofthe crime.”). The court granted the motion, vacated thejuryverdict, and dismissed the charge with prejudice under CrR 7.4(c).2 The court ruled, in pertinent part: The case law regarding identitytheft in the second degree establishes that the State must prove thatthe Defendant intended to commit any crime.

. . . [T]he State is not required to elect a crime but also may not put thejury in a position that it has to guess which crime the Defendant committed. Here the State approached this obligation by choosing obstructing the law enforcement officeras the crime the Defendant intended to commit. [T]he crime ofobstructing a law enforcement officer requires more than speech, it also requires conduct. Here defense counsel through careful questioning ofthe State’s law enforcement witness established thatthere was nothing in Defendant’s conductthat could have held him culpable forthe crime ofobstructing under RCW 9A.76.020, which is the obstruction statute. Thus, the question here is whetherthe Defendant’s motion to dismiss the charge of identitytheft in the second degree, or challenge to the sufficiency ofthe evidence if it should be cast in that light, should be granted and the verdict set aside because, one, the State chose to identify obstructing a law enforcement officeras the crime that Mr. Hall intended to commit; and

2 CrR 7.4(c) states: New Charges AfterArrest ofJudgments. Whenjudgment is arrested and there is reasonable ground to believe thatthe defendant can be convicted ofan offense properly charged, the court may orderthe defendant to be recommitted or released to answer a new indictment or information. Ifjudgmentwas arrested because there was no proofofa material element ofthe crime the defendant shall be dismissed.

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two, there is no evidence from which a rational trier offact could find Mr. Hall committed the crime of obstructing a law enforcement officer, that conclusion being supported bythe evidence that Mr. Hall’s misconduct was limited to speech and did not involve any physical conduct; and three, therefore, there is no evidence that he intended to commit the crime of obstructing. The court entered an “OrderArresting Judgment and Dismissing Cause.” The order incorporates the court’s oral ruling that insufficient evidence supports finding “a material element ofthe crime.” ANALYSIS The State appeals the orderarresting judgment and dismissing the charge of identifytheft in the second degree. The State contends the court erred when it arrested judgment and dismissed the charge against Hall. The State argues sufficient evidence supports the conviction for identitytheft in the second degree. “A motion in arrest ofjudgment challenges the sufficiency ofthe evidence to take the case to thejury.” State v. Randecker, 79 Wn.2d 512, 515, 487 P.2d 1295 (1971). Evidence is sufficientto support a conviction if, viewed in the light mostfavorable to the State, any rational trieroffact mayfind the essential elements ofthe crime beyond a reasonable doubt. Statev. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth ofthe State’s evidence and all inferences that reasonably can be drawn therefrom.” Salinas, 119 Wn.2d at 201. The State has the burden to prove every element ofthe crime charged beyond a reasonable doubt. U.S. CONST. amend. XIV; WASH. CONST. art. I, 

### § 3; In re Winship, 397 U.S. 358, 364, 90 5. Ct. 1068, 25 L. Ed. 2d 368 (1970) ([T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt ofeveryfact necessaryto constitute the crime with which he is charged.”). Sufficiency

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ofthe evidence is a question of constitutional lawthatwe review de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016). To convict Hall of identitytheft in the second degree, the State had the burden of proving beyond a reasonable doubt that Hall knowingly used the identification of another person with the “intentto commit, orto aid or abet, any crime.” RCW 9.35.020. The State charged Hall by amended information with identitytheft in the second degree, alleging he committed the crime ofobstructing a law enforcement officer. The to-convictjury instruction states, in pertinent part:

To convictthe defendant ofthe crime of identitytheft in the second degree, the following elements ofthe crime must be proved beyond a reasonable doubt: (1) That on orabout 2nd day of February, 2017, the defendant knowingly obtained, possessed, or used a means of identification or financial information ofanother person;[31 (2) Thatthe defendant did so with the intentto commit any crime; (3) Thatthe defendant knewthatthe means of identification or financial information belonged to another person; and (4) That any ofthese acts occurred in the State ofWashington.{41 Consistentwith the amended information, the prosecutor asked the courtto instructthejury on the crime ofobstructing a law enforcement officer. Thejury instruction defining the crime states:

A person commits the crime ofobstructing a law enforcement officerwhen he orshe willfully hinders, delays, orobstructs any law enforcement officer in the discharge ofthe law enforcement officer’s official powers orduties.

~ The court instructed thejury on the definition of“means of identification” as follows: “Means of identification” means information oran item that is not describing finances orcredit, but is personal to or identifiable with an individual orother person, including: a current orformer name ofthe person, telephone number, an electronic address, or identifier ofthe individual or a member of his or herfamily, including the ancestorofthe person; a social security, driver’s license, ortax identification numberof the individual ora memberof his or herfamily; and other information that could be used to identify the person, including unique biometric data.

~ Emphasis added.
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In Washington, speech in the absence ofadditional conduct is insufficient to establish the crime ofobstructing law enforcement. State v. Williams, 171 Wn.2d 474, 484-85, 251 P.3d 877 (2011). In Williams, when asked to identify himself by a police officer, the defendant provided the name of his brother instead of his own. Williams, 171 Wn.2d at 476. Ajury convicted the defendant ofobstructing a law enforcement officer. Williams, 171 Wn.2d at 476. On appeal, the State argued, “[O]nce a person does speakto a law enforcement officer, a person may notwillfully make false statements with the intentto hinderordelay.” Williams, 171 Wn.2d at 484. In rejecting this argument, our Supreme Court held, in pertinent part: We hewto ourjurisprudential history of requiring conduct in addition to pure speech in orderto establish obstruction of an officer. The legislature made it a separate crime to knowingly make a false or misleading statementto a public officer. ~ RCW 9A.76.175. The legislature was aware that, in orderto find obstruction statutes constitutional, appellate courts ofthis state have long required conduct. See [State v.1 Bobic, 140 Wn.2d [250,] 264[, 966 P.2d 610 (2000)]. Williams, 171 Wn.2d at485; see State v. E.J.J., 183 Wn.2d 497, 503, 354 P.3d 815 (2015) (As our history makes clear, conduct is prerequisite ofan obstruction charge.”). The State argues sufficient evidence supports the conviction because the evidence shows intentionally giving Officer Hingtgen false identification information delayed the investigation. Below and on appeal, the State relies on State v. Presba, 131 Wn. App. 47, 126 P.3d 1280 (2005), to argue sufficient evidence supports the conviction. Presba is distinguishable. In Presba, we concluded sufficient evidence supported the conviction of identitytheft because the evidence supported the inference that Presba used the false identification information “to facilitate both the offense of RCW 9A.76.020,

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obstructing a police officer, and ROW46.61 .020, giving false information.” Presba, 131 Wn. App. at 55-56. In Presba, Melissa Presba was driving without a license. Presba, 131 Wn. App. at 55. When the state trooperstopped Presba forspeeding, she gave the trooper“[Shyla] Dashiell’s name, Social Security number, formeraddress, and date of birth.” Presba, 131 Wn. App. at 55, 50. Afterchecking the information she provided, the trooper asked Presba why hersocial security numberwas “one digit offfrom what the Department had forthe license record.” Presba, 131 Wn. App. at 51. Presba told the trooper DOL “always had an incorrect number.” Presba, 131 Wn. App. at 51. “[A]fter a half hourofcontinued discussion,” Presba persuaded the trooper she was in fact Dashiell. Presba, 131 Wn. App. at 51. The trooper “cited herforthe infract[on of driving without her license on her person.” Presba, 131 Wn. App. at 51. Unlike in Presba, the court instructed thejury on onlythe crime ofobstructing a law enforcement officer, and there is no evidence that Hall engaged in conductthat resulted in delay. AfterOfficer Hingtgen checked the police database and asked Hall to show him the necktattoo, Hall immediately acknowledged his true identity and told Officer Hingtgen he had an outstanding warrant. The undisputed record supports the conclusion that Hall’s conductwas limited to speech only. Officer Hingtgen testified that Hall was “cooperative” throughoutthe traffic stop, investigation, and arrest. Forthe firsttime in the reply brief, the State argues that underthe “law ofthe

case doctrine,” the State was required to prove onlythat Hall intended to commit “any crime” when he used Stamey’s identity. Specifically, that “[b]ecause the ‘to convict’ instruction listed the elements as ‘intentto commit any crime[,]’ that is whatthejury had to find in orderto convictthe defendant.” We do not consider arguments raised forthe

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firsttime in the reply brief. State v. Chen, 178 Wn.2d 350, 358 nil, 309 P.3d 410 (2013); State v. Hudson, 124 Wn.2d 107, 120, 874 P.2d 160 (1994). Nonetheless, as previously noted, the prosecutorasked the courtto instruct thejury only on the crime of obstructing a law enforcement officer. Thejury instructions make clearthat obstructing

a law enforcement officerwas the only crime the State alleged Hall intended to commit. See State v. Federov, 181 Wn. App. 187, 199, 324 P.3d 784 (2014). We affirm the court’s orderarresting judgment and dismissing the charge of identitytheft in the second degree.

WE CONCUR:

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