IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

No. 75031-3-1

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STATE OF WASHINGTON,

Respondent,

v.

BOBBY ARLEND NORMAN,

Appellant.

UNPUBLISHED OPINION

Si

FILED: June 6, 2016

Dwyer, J. — Following a jury trial, Bobby Norman was convicted of

second degree identity theft and forgery. He now appeals, contending that (1)

the court violated his right to counsel, (2) his multiple convictions violate double

jeopardy prohibitions, (3) his identity theft conviction was obtained in violation of

his right to a unanimous jury verdict, and (4) the identity theft statute is

unconstitutionally overbroad, in violation of the First Amendment. We affirm both

convictions.

On November 4, 2014, Norman entered a Timberland Bank branch and

approached a teller. He presented her with a check for $150. The check was

drawn on the account of Linda Loeck and showed Norman as the payee.

However, the payee line appeared to have been changed and written over with

Norman's name.

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The check was stolen. Loeck had originally written and mailed it to Capitol

One. She did not know who had written Norman's name on the check. Loeck

had never met Norman, much less given him permission to use her personal

information.

Norman was charged with one count of identity theft in the second degree,

pursuant to RCW 9.35.020(3), and one count of forgery, pursuant to RCW

9A.60.020(1)(a)(b). The case proceeded to trial. Because Norman was indigent,

he was assigned a court appointed lawyer.

Trial began on May 21, 2015, on a Thursday afternoon. The court held a

CrR 3.5 hearing and ruled on numerous pretrial motions, then held jury selection.

Once a jury was selected, the court recessed.

Court reconvened on Tuesday morning, following the Memorial Day

holiday. When the court inquired whether the parties were ready for the jury to

be brought into the courtroom, Norman responded, "Your Honor, Iwould like to

fire my attorney. ... Idon't believe he has my best interest." Norman then

elaborated:

The other day he told me, "Have you ever heard the saying, 'death

by gun'? Well, you're doing death by trial." There have been many

times that I've tried to contact him and he told me that if I wasn't

going to take the deal, don't call him because I'm wasting histime.

I'm just fed up with him. I asked him to bring this to the Court's

attention and he said that's not my job to do that, it's his job. So I

would rather have a different attorney, please.

The court then commenced a colloquy with Norman, during which it

addressed this allegation and others of Norman's concerns, including whether:

(1) he could have a continuance if he were to represent himself, (2) whether his
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prior criminal convictions would be admissible, and (3) whether he would have to

take the stand.

The court asked Norman ifthere was anything he specifically wanted to

discuss. During the ensuing conversation, the court learned that Norman's

dissatisfaction with his attorney stemmed from Norman's confusion about the

admissibility of his prior convictions.

MR. JORDAN: Your Honor, he wants to talk about ER 609

and what's admissible, and I told him that that was my call and that

I knew what was admissible and what wasn't. So I don't know. He

thinks he can keep out his entire criminal history and I explained to

him that you will decide what part of his criminal history will come in

if he testifies, and that's when he said he wanted a new attorney.

Does that pretty much summarize it?

THE DEFENDANT: Yeah. That was the last straw.

The court then explained to Norman which of his prior convictions could

be admitted into evidence, and under what circumstances. At the conclusion of

this discussion, Norman indicated that he had no further questions or concerns

and was ready for the jury. During the rest ofthe proceedings, Norman made no

further attempt to discharge his attorney.

At the conclusion of the trial, a juryfound Norman guilty of both second

degree identity theft and forgery.

II

Norman contends that the trial court violated both his right to counsel and

his right to self-representation by forcing him to accept representation from a

court appointed lawyer against hiswill. This is so, he asserts, because the court
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improperly denied his request to fire his attorney and have new counsel

appointed, as well as his request to proceed pro se. We disagree.

The federal and state constitutions guarantee a criminal defendant both

the right to counsel and the right to self-representation. U.S. Const, amends. VI

and XIV; Wash. Const, art. 1, § 22; Faretta v. California. 422 U.S. 806, 819, 95

S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Luvene, 127 Wn.2d 690, 698, 903

P.2d 960 (1995). A trial court has discretion to grant or deny both an indigent

criminal defendant's request for reappointment of counsel and a request to

proceed pro se. See State v. Stenson, 132 Wn.2d 668, 733-34, 940 P.2d 1239

(1997); State v. Modica, 136Wn. App. 434, 443, 149 P.3d 446 (2006), affd, 164

Wn.2d 83, 186 P.3d 1062 (2008). This discretion "lies along a continuum that

corresponds with the timeliness ofthe requests]," as "[t]he burdens imposed

upon the trial court, the jurors, the witnesses, and the integrity ofthe criminal

justice system increase as trial approaches or when trial has already

commenced." Modica, 136 Wn. App. at 443. The court possesses the most

discretion when a defendant makes these requests after a trial has begun.

Modica, 136Wn. App. at 443-44. A court abuses its discretion if its decision is

manifestly unreasonable, relies on unsupported facts, or applies an incorrect

legal standard. State v. Colev, 180Wn.2d 543, 559, 326 P.3d 702 (2014).

A

Norman first challenges the trial court's refusal to appoint him new

counsel. A defendant's loss of trust or confidence in his attorney is not alone

sufficient to warrant a substitution of counsel. Stenson, 132 Wn.2d at 734.
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Rather, "[a] criminal defendant who is dissatisfied with appointed counsel must

show good cause to warrant substitution of counsel, such as a conflict of interest,

an irreconcilable conflict, or a complete breakdown in communication between

the attorney and the defendant." Stenson, 132 Wn.2d at 734. When a defendant

requests new counsel at such a time that a continuance is necessary, courts

cannot apply mechanical tests, but must decide to deny or grant such requests

based on the circumstances present. State v. Hampton, 184 Wn.2d 656, 669,

361 P.3d 734 (2015).

Herein, Norman did not establish the existence of either an irreconcilable

conflict or a complete breakdown in communication between him and his

attorney.1 Following Norman's request that a newattorney be appointed, the

court inquired as to his concerns regarding his current attorney. The court

learned that Norman's dissatisfaction stemmed from his confusion about the

admissibility of his prior convictions. Thereafter, the court explained to Norman

which of his convictions were admissible, and under what circumstances they

could be admitted. Following this colloquy, Norman made no further requests to

discharge the attorney but, instead, indicated that he was ready to proceed to

trial. Such an indication suggests that, to the extent that there had previously

existed any conflict between Norman and his attorney, it was then resolved.2

Because Norman did not show good cause to warrant substitution of counsel, the

1Norman does not assert that there existed a conflictof interest between him and his

attorney.

2Contrary to Norman's contentions, this was a specific and targeted colloquy when the

court twice asked Norman to specifically explain his dissatisfaction with hislawyer and then

proceeded to resolve the issue, as well as Norman's other questions and concerns.
No. 75031-3-1/6

trial court did not abuse its discretion when it denied his request for appointment

of substitute counsel.

B

Norman next challenges the trial court's refusal to allow him to proceed

prose. The right to self-representation is not self-executing. State v. Woods,

143 Wn.2d 561, 586, 23 P.3d 1046 (2001). Rather, "[a] criminal defendant who

desires to waive the right to counsel and proceed pro se must make an

affirmative demand." Modica, 136 Wn. App. at 441. Specifically, the request

must have been knowing, voluntary, intelligent, timely, and unequivocal. Woods,

143 Wn.2d at 586; City of Bellevue v. Acrev. 103 Wn.2d 203, 208-09, 691 P.2d

957 (1984). The context in which a self-representation request is made,

particularly where it is made in conjunction with a continuance motion, may also

be properly considered. See Woods, 143 Wn.2d at 586; Luvene, 127 Wn.2d at

698-99. "[T]he preferred procedure for determining the validity of a waiver

involves the trial court's colloquy with the defendant, conducted on the record."

Modica, 136 Wn. App. at 441.

Norman's request to proceed pro se was untimely. Norman initially

requested to proceed pro se during the colloquy thatensued after he indicated

his desire to fire his attorney. This request was made after the trial had

commenced, with the jury impaneled and sworn and jeopardy having attached.

He then specifically requested a continuance, should he proceed pro se.3 To

have allowed Norman to proceed pro se at this time—and especially to have

3Norman does not challenge the trial court's denial of his request for a continuance.
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granted him a continuance—would have imposed a significant burden on the

court, witnesses, and jurors, who were all prepared to begin trial. Thus, his

request was untimely.

Furthermore, his request was equivocal. Following the trial court's

discussion with Norman regarding the admissibility of his prior convictions,

Norman indicated that he was ready for the trial to begin. Indeed, after this

discussion, he made no further requests to proceed pro se. His only mention of

going pro se was a conditional mention, premised upon obtaining a continuance.

He never made an unequivocal request.

Norman's request to proceed pro se was both untimely and equivocal.

Thus, the trial court did notabuse its discretion in denying Norman's request.4

III

Norman next contends that the trial court violated the prohibition against

double jeopardy by entering judgment on his convictions for both second degree

identity theft and forgery based on his presentation ofa single check. We

disagree.

4Contrary to Norman's contentions, the trial court did not rely onan incorrect legal

standardwhen itdenied Norman's request to proceed pro se. The courttold Norman: "If you

want to represent yourself, then we need to have a discussion about that, what you understand

about the law. Ican't allow you to dothat unless you demonstrate thatyou understand the law

and the Rules of Evidence." While this offthe cuffstatement was perhaps unartful, the judge's

point was to inform Norman that, before he would be permitted to proceed pro se, the court would

first have toengage in a colloquy with him to confirm that his request wasmade intelligently, knowingly, and voluntarily. During this colloquy, the court would have informed Norman that,

were he to represent himself, hewould be bound by the rules ofevidence throughout the course

of the trial, just as any attorney would beso bound. The court was thus acting in accord with

precedent, which requires a court to "assur[e] that decisions regarding self-representation are

made with at least minimal knowledge ofwhat the task entails", including assuring that the

defendant is "aware of the existence of technical rules and that presenting a defense is not just a

matter of telling one's story." Acrev. 103 Wn.2d at 210-11.
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Both the federal and state constitutions prohibit double jeopardy. U.S.

Const, amend. V; Wash. Const, art. 1, § 9. Within this constraint, the legislature

is free to define criminal conduct and specify its punishment. State v. Baldwin,

150 Wn.2d 448, 454, 78 P.3d 1005 (2003); State v. Calle, 125 Wn.2d 769, 776,

888 P.2d 155 (1995). "Where ... an act or transaction violates more than one

criminal statute, the double jeopardy question turns on whether the legislature

intended to impose punishment under both statutes for the same act or

transaction." Baldwin, 150 Wn.2d at 454.

This presents a question of statutory interpretation, which we review de

novo. Cannabis Action Coal, v. City of Kent, 180 Wn. App. 455, 469, 322 P.3d

1246(2014), affd, 183 Wn.2d 219, 351 P.3d 151 (2015). The goal of statutory

interpretation is to discern and give effect to legislative intent. Cannabis Action

Coal., 180 Wn. App. at 469. "If the statute's meaning is plain on its face, we give

effect to that plain meaning asthe expression of what was intended." TracFone

Wireless. Inc. v. Dep't of Revenue, 170Wn.2d 273, 281, 242 P.3d 810 (2010).

We first examine whetherthe language ofthe relevant statutes expressly

allows for convictions under both statutesfor the same act ortransaction. Calle,

125Wn.2d at 776. The identity theft statute provides, in pertinent part:

Every person who, in the commission of identity theft, shall commit

any other crime may be punished therefor as well asfor the identity

theft, and may be prosecuted for each crime separately.

RCW 9.35.020(6).

Thus, it is clear that the legislature sought to allow convictions for multiple

offenses where identity theft is one of the offenses. We will follow this legislative

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intent so long as proof of the elements of forgery do not also constitute proof of

the elements of identity theft. State v. Lynch, 93 Wn. App. 716, 724-26, 970 P.2d

769 (1999). In other words, was it necessary to prove the forgery in order to

prove the identity theft? If itwas not, the anti-merger statute controls our

analysis.5

To prove identity theft, the State presented evidence that Norman

transferred Loeck's check—which contained a means of identifying Loeck—to

Timberland Bank. This evidence does not support the forgery charge. In

contrast, to prove forgery, the State presented evidence that Norman had written

in his name as the payee on the check. Likewise, this evidence does not support

the identity theft charge. That the crimes had different victims—Loeck was the

victim of identity theft, while Timberland Bankwas the victim of the forgeryfurther supports a finding that it was not necessary for the prosecution to

establish the elements of the forgery charge in order to establish the elements of

the identity theft charge. Thus, the anti-merger statute controls our analysis, see

State v. Timothy K„ 107 Wn. App. 784, 790-92, 27 P.3d 1263 (2001), and

Norman's claim of error fails.6

IV

Norman additionally contends that his second degree identity theft

conviction violated his right to a unanimous jury verdict. This is so, he asserts,

5The legislature clearly envisioned prosecutions alleging both identity theft and forgery.

In the forgery statute, it commands, "[i]n a proceeding under this section that isrelated to an

identity theft under RCW 9.35.020, the crime will be considered to have been committed in any locality where the person whose means ofidentification orfinancial information was appropriated

resides." RCW 9A.60.020(2).

6This holding isin accord with the Supreme Court's decision in State v. Baldwin, 150

Wn.2d 448.
No. 75031-3-1/10

because, as set forth in RCW 9.35.020, identity theft is an alternative means

crime and the State failed to present sufficient evidence of each alternative

means. We disagree.

Norman's claim presents a question of statutory interpretation. As stated

previously, we review questions of statutory interpretation de novo. Cannabis

Action Coal., 180 Wn. App. at 469.

The pertinent statute provides: "No person may knowingly obtain,

possess, use, or transfer a means of identification orfinancial information of

another person, living or dead, with the intent to commit, or to aid or abet, any

crime." RCW 9.35.020(1).

While each statute must be individually analyzed, our Supreme Court has

established some principles to guide a determination of whether a criminal

statute sets forth alternative means of committing a crime.

One guiding principle is that the use of a disjunctive "or" in a

list of methods of committing the crime does not necessarily create

alternative means of committing the crime. State v. Peterson, 168

Wn.2d 763, 769, 770, 230 P.3d 588 (2010). Another principle

provides that the alternative means doctrine does not applyto mere

definitional instructions; a statutory definition does not create a

"means within a means." State v. Smith, 159 Wn.2d 778, 787, 154

P.3d 873 (2007).

State v. Owens, 180 Wn.2d 90, 96, 323 P.3d 1030 (2014).

Our Supreme Court's analysis in Owens is instructive in this case.

Therein, the court considered whether trafficking in stolen property is an

alternative means crime. The pertinent statute provided: "A person who

knowingly initiates, organizes, plans, finances, directs, manages, orsupervises

the theft of property for sale to others, or who knowingly traffics in stolen

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property, is guilty of trafficking in stolen property in the first degree." RCW

9A.82.050(1).

The defendant in Owens argued, much as Norman argues here, that the

verbs listed in the statute supported the conclusion that the legislature had set

forth eight alternative means of committing first degree trafficking in stolen

property. See Owens, 180 Wn.2d at 95-99. The Supreme Court rejected this

interpretation. Owens, 180 Wn.2d at 98-99. It concluded instead that the statute

created only two alternative means. Owens. 180 Wn.2d at 98-99.

In determining that each listed verb did not constitute an alternative

means, the court explained:

[l]t would be hard to imagine a single act of stealing whereby a

person "organizes" the theft but does not "plan" it. Likewise, it

would 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 of these terms. Thus, these terms are

merely different ways of committing one act, specifically stealing.

. . . [A]n individual's conduct under [this statute] does not vary

significantly between the seven terms listed.

Owens, 180 Wn.2d at 99. Stated differently, the verbs listed were so closely

related thatthey did not address distinct acts. Instead, these verbs all defined

variations of the same act.

The language ofthe identity theft statute at issue herein is, in relevant

respects, similar to that ofthe statute interpreted in Owens. As in Owens, the

disjunctive list ofacts contained within this statute describes a continuum of

related activity, rather than various distinct acts. For example, it is difficult to

imagine a situation whereby a person transfers a means ofidentification, but

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No. 75031-3-1/12

does not first possess it. Thus, the identity theft statute sets forth only one—not

four—means of committing the crime.

Because identity theft is not an alternative means crime, Norman's second

degree identity theft conviction was not obtained in violation of his right to a

unanimous jury verdict. There was no error.

V

Norman next contends that RCW 9.35.020 violates the First Amendment

of the United States Constitution. This is so, he asserts, because it is so

overbroad that it prohibits constitutionally protected expression. We disagree.

"A law is overbroad if itsweeps within its prohibitions constitutionally

protected free speech activities." Citv of Tacoma v. Luvene, 118 Wn.2d 826,

839, 827 P.2d 1374 (1992). Speech integral to criminal conduct is not

constitutionally protected, United States v. Stevens, 559 U.S. 460, 468, 130 S.

Ct. 1577, 176 L. Ed. 2d 435 (2010), nor is untruthful speech protected for its own

sake. Va. State Bd. of Pharmacy v. Va. Citizens ConsumerCouncil. Inc., 425

U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976).

An ordinance that regulates behavior, but not pure speech, will not be

overturned unless the overbreadth is real and substantial in relation to the

ordinance's plainly legitimate sweep. Citv of Tacoma. 118 Wn.2d at 839-40.

Indeed, "[although it is possible to conceive of circumstances in which

application of [a] statute would be unreasonable, that alone will not render it

unconstitutional. Unless there is a realistic dangerthat [a] statute will

significantly compromise recognized First Amendment protections of parties not

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No. 75031-3-1/13

before the court, [it will not be] declare[d]. .. facially invalid on overbreadth

grounds." State v. Stephenson. 89 Wn. App. 794, 804, 950 P.2d 38 (1998)

(emphasis added) (citation omitted) (citing Members of Citv Council v.

Taxpayers. 466 U.S. 789, 801, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)); see

also State v. Knowles, 91 Wn. App. 367, 380, 957 P.2d 797 (1998).

In deference to the legislature's constitutional role as the definer of crimes,

we interpret statutes with the presumption that they are constitutional. State v.

Pauling. 149 Wn.2d 381, 386, 69 P.3d 331 (2003).

RCW 9.35.020 states that "[n]o person may knowingly obtain, possess,

use, or transfer a means of identification orfinancial information of another

person, living or dead, with the intent to commit, or to aid or abet, any crime."

This statute specifically regulates behavior, as evidenced in the legislative

purpose. "The legislature intends to penalize for each unlawful act of improperly

obtaining, possessing, using, or transferring means of identification or financial

information ofan individual person." RCW 9.35.001. The statute by its terms

prohibits such conduct only when committed with the requisite mens rea—intent

to commit a crime—as defined therein. Contrary to Norman's arguments, this

language does not create thought crimes. An individual cannot violate the

statute unless he or she both possesses the requisite mens rea and commits the

proscribed violative action.

Because an individual violates the identitytheft statute only under these

conditions, it is not overbroad. Indeed, there is no real dangerthat the statute

will compromise the expression of constitutionally protected behavior. The only

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"speech" truly proscribed here is that which is untruthful and integral to criminal

conduct, which the First Amendment does not protect. Thus, the identity theft

statute is not overbroad. It does not violate the First Amendment.

Affirmed.7

We concur:

7Norman filed a supplemental brief pursuant to RAP 10.1(h), in which he asked thatwe

deny any appellate costs the State may request in this case, should it prevail. The State did not

respond to this request. Accordingly, even though the State is the prevailing party, we grant

Norman's request. No costs shall be awarded.

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