IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE No. 75031-3-1 c:. -jz

i o too —-i (_-'•

o -m„,. 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 UNPUBLISHED OPINION Si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 theftconviction was obtained in violation of his right to a unanimous jury verdict, and (4) the identity theft statute is unconstitutionally overbroad, inviolation 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 lineappeared to have been changed and written over with
Norman's name. vO C"' •J>No. 75031-3-1/2
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 inthe 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 courtheld a CrR 3.5 hearing and ruled on numerous pretrial motions, then heldjury selection. Once a jurywas selected, the court recessed. Court reconvened on Tuesday morning, following the Memorial Day 

### holiday. When the court inquired whether the parties wereready for thejury to be brought into the courtroom, Norman responded, "Your Honor, Iwould like to fire my attorney. ... Idon'tbelieve 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'redoing death bytrial." There have been many times that I've tried to contact him and he told me that ifIwasn't 

### going to take the deal, don'tcall him because I'm wasting histime. I'mjust fed upwith him. Iasked 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 ofNorman's concerns, including whether: 

### (1) hecould have a continuance ifhewere torepresent himself, (2) whether hisNo. 75031-3-1/3 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 Itold 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 Iexplained to 

### him that you will decide what part of his criminal history will come in ifhe 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 hisprior 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 thejury. During the rest ofthe proceedings, Norman made no further attempt to discharge his attorney. 

### At the conclusion of the trial, a juryfound Normanguilty 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 acceptrepresentation from a court appointed lawyer against hiswill. This is so, he asserts, because the courtNo. 75031-3-1/4 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 ofcounsel 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 

### correspondswith the timeliness ofthe requests]," as "[t]he burdens imposed 

### upon thetrial court, thejurors, thewitnesses, and the integrity ofthe criminal justice system increase as trial approaches or whentrial 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. at443-44. A courtabuses itsdiscretion ifitsdecision is 

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

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

### Norman firstchallenges the trial court's refusal to appoint him new counsel. A defendant's loss oftrust or confidence in his attorney is not alone sufficient to warrant a substitution of counsel. Stenson, 132 Wn.2d at 734.No. 75031-3-1/5 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 ofeither 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 courtinquired as to his concerns regarding his currentattorney. The court learned that Norman's dissatisfaction stemmed from his confusion about the 

### admissibility ofhis 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 nofurther requests to 

### discharge the attorney but, instead, indicated that he was ready toproceed to trial. Such an indication suggests that, to the extent that there had previously 

### existed any conflict between Norman and his attorney, itwas then resolved.2 Because Norman did not show good cause to warrant substitution of counsel, the

1 Norman 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 courttwice asked Norman to specifically explain hisdissatisfaction with hislawyer and then proceeded toresolve theissue, as well as Norman's other questions and concerns.No. 75031-3-1/6
trial court did not abuse its discretion when itdenied 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; Cityof 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 beproperly considered. SeeWoods, 143 Wn.2d at586; 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 toproceed pro se during thecolloquy thatensuedafter heindicated his desire tofire his attorney. This request was made after the trial had 

### commenced, with thejury impaneled and sworn and jeopardyhaving attached. 

### He then specifically requested acontinuance, 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.No. 75031-3-1/7 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, premisedupon obtaining a continuance. He never made an unequivocal request. 

### Norman's request to proceed pro se was bothuntimely and equivocal. 

### Thus, thetrial court did notabuse its discretion in denying Norman's request.4
III Norman next contends that the trial court violated the prohibition against 

### doublejeopardy by enteringjudgment on his convictions for both second degree identity theft andforgery based onhis presentation ofa single check. We disagree.

4Contrary toNorman's contentions, thetrial court did not rely onanincorrect legal standardwhen itdeniedNorman's request toproceed pro se. The courttold Norman: "Ifyou wanttorepresent yourself, then we need to have adiscussion about that, what you understand aboutthelaw. Ican'tallow you to dothatunless you demonstrate thatyou understand thelaw and the Rules of Evidence." While this offthe cuffstatementwas perhaps unartful, the judge's 

### pointwas to inform Norman that, before he would be permitted to proceed pro se,the courtwould first have toengage in acolloquy with him to confirm that his requestwasmade intelligently, knowingly, and voluntarily. During this colloquy, the courtwould have informed Norman that, were heto represent himself, hewould bebound by therules ofevidence throughoutthecourse 

### ofthe trial, justas any attorney would besobound. The courtwas thus acting in accord with precedent, which requires acourtto "assur[e] that decisions regarding self-representation are madewith 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 oftelling one's story." Acrev. 103 Wn.2d at 210-11.No. 75031-3-1/8 Both the federal and state constitutions prohibitdoublejeopardy. 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 aquestion ofstatutory interpretation, which we review de
novo. Cannabis Action Coal, v. City ofKent, 180Wn. App. 455, 469, 322 P.3d 

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

### interpretation is to discern and give effectto legislative intent. Cannabis Action Coal., 180Wn. App. at469. "Ifthe statute's meaning is plain on its face, we give 

### effectto that plain meaning asthe expression ofwhatwas intended." TracFone Wireless. Inc. v. Dep'tof Revenue, 170Wn.2d 273, 281, 242 P.3d 810 (2010). 

### Wefirst examine whetherthe language ofthe relevant statutes expressly 

### allows for convictions underboth statutes for the same act ortransaction. Calle, 125Wn.2d at 776. The identity theft statute provides, in pertinent part: 

### Every person who, in the commission ofidentity theft, shall commit any othercrime may be punished therefor aswell asforthe identity theft, and may be prosecutedfor each crime separately. RCW 9.35.020(6). 

### Thus, it is clearthatthe legislature soughtto allow convictions for multiple offenses where identity theft is one ofthe offenses. We will follow this legislative

-8-No. 75031-3-1/9
intent so long as proof ofthe elements offorgery do not also constitute proofof 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 proveforgery, 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 ofidentity 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 statutecontrols ouranalysis, see State v. TimothyK„ 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 andforgery. In theforgery statute, it commands, "[i]n a proceeding under this section that isrelated to an identity theft under RCW 9.35.020, thecrime will beconsidered tohave 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 theSupreme Court's decision in Statev. 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 ofstatutory interpretation de novo. Cannabis Action Coal., 180 Wn. App. at 469. The pertinent statute provides: "Noperson may knowingly obtain, 

### possess, use, or transfer a means ofidentification 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 ofmethods of committing the crime does not necessarily create 

### alternative means ofcommitting 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 ofproperty for sale to others, orwho knowingly traffics in stolen

•10-No. 75031-3-1/11 property, is guilty of trafficking in stolen property inthe 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 firstdegree trafficking instolen 

### 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. Anyone act of stealing often involves more than one ofthese terms. Thus, these terms are 

### merely different ways ofcommitting 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, similarto that ofthe statuteinterpreted in Owens. As in Owens, the disjunctive list ofacts contained within this statutedescribes a continuum of related activity, rather than various distinct acts. For example, it isdifficultto 

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

-11-No. 75031-3-1/12 

### does notfirst possess it. Thus, the identity theft statute sets forth onlyone—not four—means of committing the crime. 

### Because identity theft is not an alternative means crime, Norman's second degree identity theftconviction was not obtainedin 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 ofthe 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 ofTacoma v. Luvene, 118 Wn.2d 826, 839, 827 P.2d 1374 (1992). Speech integral to criminal conduct isnot 

### 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. ofPharmacy v. Va. Citizens ConsumerCouncil. Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976). 

### An ordinance thatregulates 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 ofTacoma. 118Wn.2d at839-40. Indeed, "[although it is possible to conceive ofcircumstances 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 FirstAmendment protections ofparties not

-12-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 ofCitv 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, 

### weinterpret statutes with the presumption that they are constitutional. Statev. 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 ofidentification orfinancial information of another 

### person, living ordead, with the intentto commit, orto aid orabet, any crime." This statute specifically regulates behavior, as evidenced in thelegislative 

## purpose. "The legislature intends to penalizefor each unlawful actofimproperly obtaining, possessing, using, ortransferring means ofidentification orfinancial information ofan individual person." RCW 9.35.001. The statute byits terms 

### prohibits such conductonly 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 cannotviolate the statute unless he or she both possesses the requisite mens rea andcommits the proscribed violative action. 

### Because an individual violates the identitytheft statute only under these 

### conditions, it isnot overbroad. Indeed, there isno realdangerthat the statute 

### will compromise the expression ofconstitutionally protected behavior. The only

-13-No. 75031-3-1/14 "speech" trulyproscribed 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 briefpursuantto 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. Nocosts shall be awarded.

-14-