IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 54103-3-II

 Respondent, consolidated with

v.

GUANG NONE ZHENG,

 Appellant.

STATE OF WASHINGTON, No. 54106-8-II

 Respondent,

v.

DAN YU, PUBLISHED OPINION

 Appellant.

GLASGOW, A.C.J.Guang None Zheng and Dan Yu were convicted as accomplices of 

practicing massage without licenses, a gross misdemeanor for the first offense, and a felony for 

additional offenses. Zheng and Yu appeal their convictions, arguing that the trial court should have 

granted their motion to dismiss. They contend that the general gross misdemeanor/felony statute

making it a crime to practice a licensed profession without a license, under which they were 

charged, was concurrent with a specific misdemeanor statute that applies to business owners who 

permit their employees to give unlicensed massages. Where two statutes are concurrent, Zheng 

and Yu argue, Washington law requires the State to charge the specific offense. They further claim 

Filed

Washington State

Court of Appeals

Division Two

July 7, 2021
Nos. 54103-3-II and 54106-8-II

2

that even if the statutes here are not concurrent, they conflict with each other, which meant the 

State should have charged them under the more specific misdemeanor statute. 

We affirm. The statutes are not concurrent, nor do they conflict. The State properly charged 

Zheng and Yu under the gross misdemeanor/felony statute.

FACTS

Zheng and his wife Yu owned and operated a massage business, Treat Your Feet, in 

Lakewood, which employed about 20 people. 

Between October 2015 and March 2018, the Lakewood Police Department conducted an 

undercover investigation into Treat Your Feet. When the officers visited the business, Zheng or 

Yu would greet them at the front counter, “escort the officer to a private massage room, direct the 

officer to undress, then leave the room, and shortly thereafter an employee would enter the room 

and perform the body massage on the officer.” Clerk’s Papers (CP) at 109. The officers then paid 

Zheng or Yu for the massage and tipped the employee. During the investigation, multiple

employees gave two massages each to undercover officers. 

The Lakewood Police Department also tracked the defendants and employees through 

surveillance. Zheng and Yu frequently picked up the employees from apartments leased under 

Zheng’s name, drove them to work, and brought them back home at the end of the day. The officers 

obtained a warrant and searched Zheng and Yu’s house, the employees’ apartments, and Treat 

Your Feet. They did not find any employment records, tax documents, time cards, pay stubs, or 

massage licenses in any of the locations searched. 
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The officers then arrested seven Treat Your Feet employees. Four employees agreed to an 

interview after being informed of their Miranda1rights. Each of these four employees admitted 

she was not licensed to practice massage in Washington and said that “the ‘boss’ or ‘bosses’ knew 

she did not have a valid massage license.” CP at 224. The employees also told the officers they 

learned about employment at Treat Your Feet through an advertisement online, and two of the 

employees moved to Washington to work there. 

The employees said that “they were only paid for the massages they did, by percentage of 

the total cost, and that they each had to wash laundry and perform cleaning duties that were not 

compensated.” CP at 109. They also told the officers that Zheng and Yu deducted “‘rent’” from 

their wages for the apartments they stayed in. Id.

Yu held a valid license to practice massage in Washington, but the officers verified that 

none of the four employees who gave massages to the undercover officers had licenses. When 

customers came into the business, Zheng or Yu would “assign[] a specific employee to conduct a 

body massage on the paying customers” and “require[]” that employee to conduct the massage. 

CP at 110-11. 

The State originally charged Zheng and Yu with 14 counts of the unlawful practice of a 

profession without a license under RCW 18.130.190(7). The information alleged that Zheng and 

Yu were liable as accomplices for the conduct of their employees who gave unlicensed massages. 

Under the statute, a first violation is a gross misdemeanor and every subsequent violation is a 

felony. RCW 18.130.190(7)(a), (b). Because seven unlicensed employees each gave two massages 

during the undercover investigation, the State initially charged Zheng and Yu with seven gross 

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Nos. 54103-3-II and 54106-8-II

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misdemeanors for each employee’s first massage and seven felonies for each employee’s second 

massage. 

Zheng and Yu moved to dismiss all charges, arguing that the State should have charged 

them under RCW 18.108.035, a misdemeanor offense that applies to owners or operators of 

massage businesses who allow or permit the unlicensed practice of massage. The trial court denied 

Zheng and Yu’s motion to dismiss. 

The parties then agreed to a bench trial based on stipulated facts. The State reduced the 

charges for both Zheng and Yu to four counts under the gross misdemeanor prong and four counts 

under the felony prong of RCW 18.130.190(7). The trial court found them guilty of all counts. 

Zheng and Yu appeal their convictions. 

ANALYSIS

A. Statutory Concurrency 

The central issue in this case is whether RCW 18.130.190(7) (unlawful practice of a 

profession without a license) and RCW 18.108.035 (permitting an unlicensed employee to practice 

massage) are concurrent statutes for purposes of the “general-specific” rule. “‘The general-specific 

rule is a well established rule of statutory construction.’” State v. Numrich, 197 Wn.2d 1, 13, 480 

P.3d 376 (2021) (quoting State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984)). Under this 

rule, “‘[if] a special statute punishes the same conduct [that] is punished under a general statute, 

the special statute applies and the accused can be charged only under that statute.’” Id. (alterations 

in original) (internal quotation marks omitted) (quoting Shriner, 101 Wn.2d at 580). Put another 

way, whenever two concurrent statutes govern the same subject matter and cannot be harmonized, 

the specific statute prevails “‘unless it appears that the legislature intended to make the general act 
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controlling.’” Id. (internal quotation marks omitted) (quoting State v. Conte, 159 Wn.2d 797, 803, 

154 P.3d 194 (2007)).

The general-specific rule applies only when two statutes are concurrent. Id. Statutes are 

concurrent when “‘the general statute will be violated in each instance where the special statute 

has been violated.’” Id. (quoting Shriner, 101 Wn.2d at 580). “‘The determinative factor is whether 

it is possible to commit the specific crime without also committing the general crime.’” State v. 

Ou, 156 Wn. App. 899, 902-03, 234 P.3d 1186 (2010) (quoting State v. Crider, 72 Wn. App. 815, 

818, 866 P.2d 75 (1994)). For purposes of the general-specific test, “‘[i]t is not relevant that the 

special statute may contain additional elements not contained in the general statute.’” Numrich, 

197 Wn.2d at 13 (quoting Shriner, 101 Wn.2d at 580).

“Statutes are concurrent if all of the elements to convict under the general statute are also 

elements that must be proved for conviction under the specific statute.” Ou, 156 Wn. App. at 903. 

And because we consider the elements that must be proved for a conviction under each statute in 

the abstract, we look at “the elements of the statutes, not the facts of the particular case.” Id. In 

sum, if there is any possible way for a person to violate the specific statute but not the general 

statute, the two statutes cannot be concurrent. See id. at 902. We review this question de novo.

Numrich, 197 Wn.2d at 13.

B. Whether the Statutes Are Concurrent

Zheng and Yu argue that the general gross misdemeanor/felony offense for practicing a 

profession without a license and the specific misdemeanor offense for business owners who allow 

the unlicensed practice of massage are concurrent. They propose we should not consider 

accomplice liability requirements when analyzing concurrency. Without considering accomplice 
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liability, they explain, any violation of the specific misdemeanor statute, which has a mens rea 

element of knowledge or criminal negligence, must be a violation of the gross misdemeanor/felony 

statute, which has no mens rea element. We disagree. 

Under the specific misdemeanor statute, “[a]ny person who with knowledge or criminal 

negligence allows or permits the unlicensed practice of massage therapy . . . to be committed within 

his or her massage business is guilty of a misdemeanor for a single violation.” RCW 18.108.035(1). 

Each subsequent violation is a gross misdemeanor. RCW 18.108.035(2). To prove a violation of 

this statute, the State must meet a mens rea element of either knowledge or criminal negligence. 

RCW 18.108.035(1). 

Under RCW 9A.08.010(b), “[a] person . . . acts . . . with knowledge when . . . [they are] 

aware of a fact . . . or circumstances or result described by a statute defining an offense; or . . . 

[have] information which would lead a reasonable person in the same situation to believe that 

[such] facts exist.” A person acts with criminal negligence when they “fail[] to be aware of a 

substantial risk that a wrongful act may occur and [their] failure to be aware of such substantial 

risk constitutes a gross deviation from the standard of care that a reasonable person would exercise 

in the same situation.” RCW 9A.08.010(d). 

Under the general statute, any person who engages in the “[u]nlicensed practice of a 

profession or operating a business for which a license is required” is guilty of a gross misdemeanor 

for a single violation and a felony for each subsequent violation. RCW 18.130.190(7)(a), (b). 

Massage therapy requires a license. RCW 18.130.040(2)(a)(iv). Because RCW 18.130.190(7) has 

no mens rea element, the unlawful practice of a licensed profession is a strict liability offense. 
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Under RCW 9A.08.020(3)(a), an accomplice is a person who acts with the “knowledge 

that [their conduct] will promote or facilitate the commission of the crime” and who “[s]olicits, 

commands, encourages, or requests [another] person to commit [the crime]” or who “[a]ids or 

agrees to aid [another] person in planning or committing” the crime. See also 11 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.51 (5th ed. 2021).

As an initial matter, we reject Zheng and Yu’s contention that we do not consider the 

requirements of accomplice liability in determining what elements the State would need to show 

in this case to obtain a conviction under the gross misdemeanor/felony statute. Rather, we follow 

Division One’s approach in State v. Elliott, 54 Wn. App. 532, 534-35, 774 P.2d 530 (1989). There, 

Division One applied the general-specific concurrency test and included the elements of 

accomplice liability in assessing what the State needed to prove to convict the defendant of being 

an accomplice to prostitution. Id.

The State could have proven that Zheng and Yu violated the specific misdemeanor statute 

by showing that they allowed or permitted their employees to practice unlicensed massage while 

acting with a mental state of either “knowledge or criminal negligence.” RCW 18.108.035(1)

(emphasis added). Under the criminal negligence prong, the State would need to establish only 

that Zheng and Yu “fail[ed] to be aware of a substantial risk” that unlicensed massage could occur 

in their business and that this failure was “a gross deviation from the standard of care that a 

reasonable person would exercise in the same situation.” RCW 9A.08.010(d).

To obtain a conviction under the general gross misdemeanor/felony statute, the State must 

prove the defendant practiced a profession without a license as either a principal or an accomplice. 

See RCW 18.130.190(7); see also RCW 9A.08.020(3)(a). Here, only accomplice liability was at 
Nos. 54103-3-II and 54106-8-II

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issue. To prove that Zheng and Yu were accomplices to the unlicensed practice of massage, the 

State had to show they knew that their actions would facilitate practicing massage without a license 

and that they solicited, commanded, encouraged, requested, or aided another person in committing 

that offense. RCW 9A.08.020(3)(a). 

Here, the two statutes are not concurrent because the general gross misdemeanor/felony of 

practicing massage without a license as an accomplice will not “‘be violated in each instance where 

the special statute has been violated.’” Numrich, 197 Wn.2d at 13 (quoting Shriner, 101 Wn.2d at 

580)). Proving that Zheng and Yu allowed or permitted their employees to practice unlicensed 

massage while acting with criminal negligence would not meet the elements of practicing massage

without a license as accomplices. First, criminal negligence is unequivocally a lower mental state 

than knowledge, which is required for accomplice liability. RCW 9A.08.010(1)(b), (d); see also 

State v. Koch, 157 Wn. App. 20, 39, 237 P.3d 287 (2010). Second, an owner of a massage business 

who allows or permits an employee to practice massage without a license has not necessarily 

solicited, commanded, encouraged, requested, or aided another person in committing the crime of 

unlicensed massage. RCW 9A.08.020(3)(a). For both reasons, it is possible to violate RCW 

18.108.035, the specific misdemeanor statute, without also violating the general gross 

misdemeanor/felony statute, RCW 18.130.190(7). The two statutes are not concurrent. See

Numrich, 197 Wn.2d at 13; Ou, 156 Wn. App. at 902.2

 

2 Even if we were to consider the general gross misdemeanor/felony statute without looking to 

accomplice liability, the State must prove that the defendant practiced without a license, not just 

that they allowed someone else to do so. The statute also makes it illegal to operate a business 

without a required license, but there has been no allegation that Treat Your Feet lacked appropriate 

business licenses, only that individual masseuses were unlicensed. 
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C. Whether the Statutes Otherwise Conflict

Zheng and Yu argue that even if the statutes are not concurrent, the State nonetheless 

charged them incorrectly. The defendants contend that the two statutes are in “apparent conflict[]” 

with each other and when this occurs, “courts generally give preference to the more specific and 

more recently enacted statute.” Opening Br. of Appellant (Zheng) at 16. We reject Zheng and Yu’s

argument.

Zheng and Yu are correct that a “well-established principle of statutory construction 

provides that apparently conflicting statutes must be reconciled to give effect to each of them.” 

Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000). It is also correct that courts 

“generally give preference to the more specific and more recently enacted statute” when resolving 

statutory conflicts. Id. We review questions of statutory construction de novo. Gronquist v. Dep’t 

of Corr., 196 Wn.2d 564, 568, 475 P.3d 497 (2020). 

We disagree, however, that the statutes conflict. By its plain language, the gross 

misdemeanor/felony statute criminalizes unlicensed massage by people who themselves give 

unlicensed massages or those who are so closely involved in the practice of unlicensed massage 

that they can be convicted as accomplices because they knowingly facilitated the offense. RCW 

18.130.190(7); RCW 9A.08.020(3). By contrast, the misdemeanor applies to owners of massage 

businesses who merely knew or should have known their employees were unlicensed and allowed 

or permitted the employees to give massages. RCW 18.108.035. These statutes generally address 

different conduct. But even if some conduct is covered by both statutes, the Supreme Court 

recently explained in Numrich that “it is not unusual in criminal law that multiple statutes can be 

violated by the same set of facts.” 197 Wn.2d at 17. This alone does not create an irreconcilable 
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conflict between the statutes. We hold that the statutes do not otherwise conflict and that the State 

properly charged Zheng and Yu under RCW 18.130.190(7).

CONCLUSION

We hold that a person can violate RCW 18.108.035 without necessarily violating RCW 

18.130.190(7). The two statutes therefore are not concurrent, nor do they otherwise conflict. 

Because the State properly charged Zheng and Yu under RCW 18.130.190(7), we affirm their 

convictions.

Glasgow, A.C.J.

We concur:

Sutton, J.

Veljacic, J.