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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70261-1-
Respondent,
DIVISION ONE
DANIEL BATEMAN, UNPUBLISHED OPINION
Appellant. FILED: August 11, 2014
Becker, J. — Daniel Bateman appeals from his convictions for two counts
of identity theft in the second degree, violation of the uniform controlled
substances act, and possession of stolen property in the second degree. On
appeal, he makes two arguments: (1) the trial court erred when it admitted
recordings of his phone calls from jail and (2) substantial evidence did not
support each alternative means of committing identity theft. We affirm.
The charges of identity theft arose from the use of "cloned" or
remagnetized credit cards on three occasions in August 2012. The name of
Melissa Matera, Bateman's girl friend, was on the cards. The magnetic strip
information belonged to a couple whose home had recently been burglarized.
No. 70261-1-1/2
On August 4, 2012, a stolen Capital One credit card was used at a
convenience store in the Greenwood neighborhood of Seattle. A video showed
Bateman and Matera in the store. Matera made a purchase, left the store,
returned, and made another purchase.
Later that day, a stolen American Express card was used to make a
purchase at a mall department store in north Seattle. A surveillance video
showed Bateman purchasing two pairs of men's jeans.
On August 5, 2012, the same card was used to make a purchase at a
Ballard drugstore. The store's security cameras showed Bateman and Matera
getting out of a car. They spoke for a moment, and Matera went into the store.
A few minutes later, she ran back to the car, then went back into the store, paid
for several items including gift cards, and returned to the car.
Bateman was charged with three counts of identity theft in the second
degree for these incidents along with the other two charges. A jury convicted him
of all charges except the identity theft count arising out of the convenience store
incident. Bateman appeals.
Bateman first argues that admission of recordings of his jailhouse phone
calls violated article I, section 7 of the Washington Constitution. He did not
object to their admission at trial. Bateman argues admission was error because
he had a privacy interest in his phone calls and no warrant was obtained to
record them. His arguments fail under State v. Modica. 164 Wn.2d 83, 186 P.3d
1062 (2008), and State v. Archie. 148 Wn. App. 198, 199 P.3d 1005, review
denied. 166 Wn.2d 1016 (2009).
No. 70261-1-1/3
Bateman next argues that the crime of identity theft has four alternative
means, some of which were not supported by substantial evidence. This
argument implicates the right to a unanimous jury verdict provided by article I,
section 21 of the Washington State Constitution. State v. Ortega-Martinez, 124
Wn.2d 702, 707, 881 P.2d 231 (1994).
The crime of identity theft is defined as follows: "No person may
knowingly obtain, possess, use, or transfer a means of identification or financial
information of another person, living or dead, with the intent to commit, or to aid
or abet, any crime." RCW 9.35.020(1). The crime is identity theft in the first
degree, a class B felony, if the offender obtains $1,500 or more in value.
Otherwise, the crime is identity theft in the second degree, a class C felony.
RCW 9.35.020 (2-3).
The to-convict instructions for counts 2 and 3 read: "the defendant
knowingly obtained, possessed, or transferred or used a means of identification
or financial information."
An alternative means crime is one that provides that the proscribed
criminal conduct may be proved in a variety of ways. State v. Peterson, 168
Wn.2d 763, 767, 230 P.3d 588 (2010).
The Supreme Court has articulated four factors that help to determine
whether, in a particular statute, the legislature intended to define multiple
offenses or a single offense committable in more than one way: (1) the title of the
act, (2) whether there is a readily perceivable connection between the various
acts set forth, (3) whether the acts are consistent with and not repugnant to each
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other; and (4) whether the acts inhere in the same transaction. State v. Arndt. 87
Wn.2d 374, 378-84, 553 P.2d 1328 (1976). In Arndt. the defendant had been
convicted of grand larceny for fraudulent receipt of public assistance. The statute
criminalized various acts by which a person might obtain public assistance to
which he was not entitled, such as making a willfully false statement and willfully
failing to reveal a material fact concerning eligibility. Applying the factors, the
court concluded that the statute did not define multiple offenses. Rather, it
defined a single offense that could be committed by several different means.
This conclusion defeated the defendant's argument that the jury had to agree
unanimously as to each means of committing the crime that was mentioned in
the to-convict instruction. The jurors only had to agree unanimously that the
defendant committed grand larceny.
Although both the State and Bateman contend that the Arndt factors
support their respective positions, neither argues that the identity theft statute
defines more than one crime. If the four verbs in the statute defined four distinct
crimes, there would be no basis on which to argue that any of the four crimes
could be committed by alternate means. Because the parties agree that RCW
9.35.020 describes a single offense, the Arndt factors are not relevant. The
question is whether the single offense of identity theft can be committed by only
one means or by several.
Bateman contends that the four different verbs used in the statute—
obtain, possess, transfer, and use—define four alternative means of committing
the crime of identity theft. Where a single crime can be committed in more than
No. 70261-1-1/5
one way, there must be juror unanimity as to guilt for the single crime charged,
but the jurors need not be unanimous as to the means by which the crime was
committed so long as substantial evidence supports each alternative means
presented. State v. Kitchen. 110 Wn.2d 403, 410, 756 P.2d 105 (1988)
(explaining the distinction between an alternative means case and a multiple acts
case). If the four verbs in the identity theft statute comprise only a single means
of committing identity theft, then the issue of juror unanimity does not arise.
There is no bright line rule by which the courts can determine whether the
legislature intended to provide alternate means of committing a particular crime.
Peterson, 168 Wn.2d at 769. Each case must be evaluated on its own merits.
Peterson, 168 Wn.2d at 769.
Bateman contends the use of four different verbs establishes that the
crime is committable in more than one way. He argues there is no substantial
evidence proving that he knowingly obtained or transferred the credit card used
at the department store or that he knowingly obtained or used the credit card at
the drugstore.
A defendant may not simply point to an instruction or statute that is
phrased in the disjunctive in order to trigger a substantial evidence review. State
v. Smith, 159 Wn.2d 778, 783, 154 P.3d 873 (2007); Peterson, 168 Wn.2d at
770. A definition that states methods of committing a crime in the disjunctive
does not require a conclusion that the definition creates alternative means of
committing the crime. State v. Laico, 97 Wn. App. 759, 762, 987 P.2d 638
(1999).
No. 70261-1-1/6
Where the word "knowingly" clearly relates to a series of verbs, its
placement suggests only one means is intended. State v. Lindsev, 177 Wn. App.
233,241,311 P.3d61 (2013). review denied, P.3d (2014). That is the
case here. RCW 9.35.020(1) states that no person "may knowingly obtain,
possess, use, or transfer a means of identification or financial information of
another person."
Bateman points to the comments to the pattern instruction on identity theft.
Practitioners are advised to omit the phrase "obtained, possessed, or transferred"
when the defendant is charged only with "use":
The phrase "obtained, possessed, or transferred" is separately
bracketed from the word "used." The separate bracketing is
intended to emphasize that, for cases in which the defendant is
charged only with "use" of the designated items, jurors should not
also be instructed with the other statutory terms.
11A Washington Practice: Washington Pattern Jury Instructions: Criminal
131.06 note on use at 560 (3d ed. 2008). Bateman contends the comment
indicates that "use" is one "means" while possession is another "means." But the
comment does not refer to "means," and it does not cite cases. We regard the
comment not as a legal analysis but rather as practical advice intended to help
practitioners avoid confusing a jury.
Bateman's argument is similar to one the Supreme Court rejected in
State v. Owens. 180 Wn.2d 90, 323 P.3d 1030 (2014). The statute addressed in
Owens provides that a person who "knowingly initiates, organizes, plans,
finances, directs, manages, or supervises the theft of property for sale to others,
or who knowingly traffics in stolen property, is guilty of trafficking in stolen
No. 70261-1-1/7
property in the first degree." RCW 9A.82.050(1). The defendant argued that the
eight different verbs articulated eight alternative means for committing the crime
of first degree trafficking in stolen property. He argued that his conviction had to
be reversed because the State charged all eight and there was not substantial
evidence to support each means charged. Relying on the placement of the word
"knowingly" in two different positions in the list of verbs, the court concluded that
the statute articulated only two alternative means, not eight. The court also
pointed out that the first seven verbs were so closely related they did not really
address distinct acts:
For example, it 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. Consistent with Peterson, where the various acts of
moving without giving proper notice were too similar to constitute
distinct alternative means, an individual's conduct under RCW
9A.82.050(1) does not vary significantly between the seven terms
listed in the first clause, but does vary significantly between the two
clauses. We hold that RCW 9A.82.050(1) describes only two
alternative means of trafficking in stolen property.
Owens, 180 Wn.2d at 99, citing Peterson, 168 Wn.2d 763. Because substantial
evidence supported each of the two alternative means, the court affirmed the
conviction.
The four verbs that describe identify theft are like the seven verbs that
describe the first alternative means of trafficking in stolen property. They do not
really address distinct acts. The State accurately characterizes them as "stages
along a continuum of activity." For example, it would be hard to imagine the
No. 70261-1-1/8
crime of identity theft being committed by a single act of using a credit card that
did not also involve obtaining and possessing the card. It does not matter which
of the four verbs most accurately describes the way Bateman involved himself
with another person's credit card. What matters is that the jury unanimously
found he did so knowingly and with the intent to commit a crime.
In a statement of supplemental authority, Bateman calls attention to State
v. Levda, 157 Wn.2d 335, 138 P.3d 610 (2006), and its abrogation in 2008 by
legislative amendment to chapter 9.35 RCW. Levda, a unit of prosecution case,
held that the defendant's convictions on four counts of identity theft violated
constitutional prohibitions against double jeopardy. The court held it was
improper for the State to charge Leyda with four counts of identity theft when he
only had a single credit card of a single individual, even though the card was
involved in at least four of his transactions. The court said common sense
suggested that a victim "has only one identity that can be unlawfully
appropriated." Levda, 157 Wn.2d at 347.
The act now articulates the legislature's intent "to penalize for each
unlawful act of improperly obtaining, possessing, using, or transferring means of
identification or financial information of an individual person." RCW 9.35.001.
The amendment changed the statute to permit what occurred in this case, the
charging of Bateman with more than one count of identity theft though each
transaction involved the same credit card of the same person.
It is not self-evident how the amendment and the new intent language
might bear on Bateman's argument that identity theft is an alternative means
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No. 70261-1-1/9
crime. Bateman admitted at oral argument that he has not located any authority
explaining how a double jeopardy unit of prosecution analysis overlaps, if at all,
with an alternative means juror unanimity analysis. We decline the invitation to
incorporate the supplemental authority into our analysis. Such "'naked castings
into the constitutional sea are not sufficient to command judicial consideration
and discussion.'" In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986),
quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970).
We conclude Bateman has failed to establish that the crime of identity
theft has alternative means.
Bateman filed a pro se statement of additional grounds for review
pursuant to RAP 10.10. His statement outlines a number of instances of
allegedly deficient performance of counsel and prosecutorial misconduct. He
claims there was a speedy trial violation. And he faults the court for refusing his
request to appoint new counsel and for allowing Matera to testify in jail clothes.
The statement of additional grounds suffers generally from misunderstanding of
applicable law. None of the grounds stated by Bateman warrant further review.
The reply brief of appellant prepared by appellant's counsel endorses and
advocates one of the claims of ineffective assistance of counsel identified in
Bateman's statement of additional grounds. Appellant's counsel also attempted
to include the ineffective assistance issue in his oral argument before this court.
Counsel's conduct demonstrates a misunderstanding of the rules of
appellate procedure. An appellate case is framed by the brief of appellant, which
assigns error and identifies the issues the court is being asked to review. RAP
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10.3(a). The brief of respondent answers the brief of appellant. RAP 10.3(b).
The reply brief of appellant is limited to a response to the issue in the brief to
which the reply brief is directed. RAP 10.3(c).
A pro se statement of additional grounds as allowed by RAP 10.10 is not a
supplemental brief of appellant. Indeed, it is not a brief at all. It is an opportunity
for an appellant to call the court's attention to matters that the appellant believes
were not adequately addressed in the brief filed by appellant's counsel. RAP
10.10(a). The rule provides that the court may, in its discretion, request
additional briefing from counsel to address issues raised pro se by the appellant.
RAP 10.10(f). The rule does not provide discretion to counsel to supply
additional briefing that the court has not requested.
Here, the brief of appellant did not raise ineffective assistance as an issue.
Counsel did not obtain permission from the court to file a supplemental
assignment of error or a supplemental brief. The court did not request additional
briefing from counsel to address the issue of ineffective assistance. Counsel's
inclusion of the issue in the reply brief of appellant was improper and violated
RAP 10.7. In written and oral advocacy before this court, appellate counsel
should stay within the confines of errors and issues identified in compliance with
the rules of appellate procedure.
Affirmed.
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No. 70261-1-1/11
'Brckeip.
WE CONCUR:
il
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