Filed
Washington State
Court of Appeals
Division Two
September 24, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51623-3-II
Respondent. UNPUBLISHED OPINION
v.
TRACEY BAILEY,
Appellant.
GLASGOW, J. — Tracey Bailey was convicted of criminal impersonation after a jury trial.
During a traffic stop she gave the trooper the name and birth date of her sister (Stracey Jones), a
false social security number, and various street addresses. Also, while still pretending to be Jones,
she told the trooper that Bailey had previously used her identity.
Bailey appeals, arguing that the criminal impersonation statute requires an act and that the
jury did not have sufficient evidence to convict her because simply giving false information
regarding her identity was not an act. She also challenges the imposition of the criminal filing fee,
a warrant service fee, and the DNA collection fee.
We hold that there was sufficient evidence to support Bailey’s conviction because she
assumed the false identity and then provided additional information regarding that false identity in
an attempt to mislead the trooper, acts which satisfied the elements of criminal impersonation. We
remand to strike the criminal filing fee, warrant service fee, and DNA collection fee.
No. 51623-3- II
FACTS
Trooper Jason Roe pulled over Bailey because she was driving a vehicle with a broken
middle brake light. Bailey told the trooper that her name was Stracey Jones. Jones is actually
Bailey’s younger sister. The trooper thought she said “Tracey,” and Bailey corrected him and told
him again her name was Stracey Jones. Verbatim Report of Proceedings (VRP) at 47. Bailey then
proceeded to spell the name she gave him. Bailey also gave the trooper Jones’s date of birth. The
trooper noted that the photo for Jones in his database did not match Bailey. The trooper asked her
again to confirm who she was. Bailey then gave the trooper a social security number, but it did
not match Jones’s social security number. The trooper asked for the address on her license, and
Bailey gave multiple streets. None of the streets matched the trooper’s records for Jones.
Bailey maintained that she was Jones for more than 30 minutes. While maintaining that
she was Jones, Bailey told the trooper that her sister, Bailey, had used her identity in 2003 in Pierce
County. Bailey also claimed her sister had been arrested for using her identity and that she took
her sister to court as a result. The trooper pulled up Bailey’s information and learned that Bailey’s
driving status was suspended. Additionally, the records showed that Bailey was also known as
Jones.
The trooper talked to Bailey about warrants out for Jones, and Bailey still insisted that she
was Jones. The trooper then arrested Bailey for the warrants out on Jones. After the arrest Bailey
admitted that she was Tracey Bailey.
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No. 51623-3- II
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
The trial court instructed the jury that first degree criminal impersonation occurs when the
defendant “assumes a false identity and does an act in her assumed character with intent to defraud
another or for any other unlawful purpose.” VRP at 132. This instruction was consistent with
RCW 9A.60.040(1)(a). Bailey argues that the State failed to present sufficient evidence to convict
her of first degree criminal impersonation. She contends that she only assumed a false identity
and did not commit an act as required by the statute. She reasons that anything she said to the
trooper was not a separate act because speech is not an act. We disagree.
There is sufficient evidence “to support a conviction if, viewing the evidence in the light
most favorable to the State, any rational trier of fact could find the essential elements of the crime
beyond a reasonable doubt.” State v. Imokawa, 4 Wn. App. 2d 545, 560, 422 P.3d 502 (2018),
review granted, 192 Wn.2d 1016 (2019). A defendant’s “claim of insufficiency admits the truth
of the State’s evidence.” Id. We draw all reasonable inferences in favor of the State and interpret
them most strongly against the defendant. Id. Circumstantial evidence and direct evidence carry
equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We defer to the trier
of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Bailey argues that she only assumed a false identity. She reasons that the statute requires
an action with the necessary intent in addition to her statements regarding her identity. Bailey
relies on State v. Williamson, 84 Wn. App. 37, 924 P.2d 960 (1996), arguing in that case, the court
rejected the State’s argument that giving a false name was conduct instead of speech.
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No. 51623-3- II
The State responds that Bailey committed multiple acts when she continued to give false
information beyond just giving a false name. This included providing Jones’s date of birth, giving
an incorrect social security number, blaming her sister for warrants out for Jones, and providing
multiple addresses. Additionally, the State argues Bailey did this so the trooper would not know
she was driving on a suspended license.
In Williamson, a defendant was convicted for obstructing a public servant after telling an
officer his name was Christopher Columbus and confirming that was his name. 84 Wn. App. at
40-41. He did not further pretend that he was in fact Mr. Columbus. Id. at 40. Williamson was
convicted under a statute that prohibited obstructing a police officer, which prior decisions had
interpreted to require conduct beyond giving a false name. Id. at 40-41.1 Ultimately, we reasoned
that when the defendant provided a false name, that was speech, not conduct. Id. at 45. Because
there was no evidence that Williamson did any act, other than declaring his name as Christopher
Columbus, we concluded the State could not prove the charged offense because the statute required
conduct. Id.
Williamson is distinguishable because unlike Bailey, Williamson only gave a false name.
Id. at 40-41. Here, Bailey gave a false name, but over the course of more than 30 minutes, she
1
The Washington Supreme Court has since confirmed that the obstruction statute has a
jurisprudential history of requiring conduct in addition to speech. State v. Williams, 171 Wn.2d
474, 485, 251 P.3d 877 (2011).
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No. 51623-3- II
also gave a false birthdate, a false social security number, and multiple incorrect streets for her
address, as well as confirming the false name multiple times and spelling it for the trooper. She
also talked about past events involving Bailey and Jones, while acting as Jones. These were acts
performed to assume Jones’s identity. In contrast, Williamson never took on the identity of
Christopher Columbus or pretended to be him.
Bailey argues that the legislature’s use of the word “act” requires something more than
statements made to mislead the officer. But there is no indication that the legislature intended an
“act” as used in the criminal impersonation statute to exclude additional false statements. If Bailey
performed at least one “act” in her assumed identity, including making further false statements to
avoid discovery that she was driving with a suspended license, that is sufficient under the statute.
Bailey gave false information beyond just a name so the trooper would believe she was
actually her sister and would not discover that she was driving on a suspended license. Given that
we must take the evidence in the light most favorable to the State, we conclude there was sufficient
evidence for the jury to decide Bailey acted under an assumed identity.
II. LEGAL FINANCIAL OBLIGATIONS
Bailey challenges three legal financial obligations. She argues the criminal filing fee, the
DNA collection fee, and the warrant service fee should be stricken. The State concedes that these
fees should be stricken.
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No. 51623-3- II
In 2018, the legislature amended RCW 36.18.020(h) to prohibit the imposition of the
criminal filing fee if a defendant is indigent as defined in RCW 10.101.010(3)(a) through (c).
LAWS OF 2018, ch. 269, § 17. Additionally, a warrant service fee is a discretionary fee that cannot be
imposed if the defendant is indigent. RCW 9.94A.760(1); RCW 10.01.160. The legislature also
amended RCW 43.43.7541 to authorize the imposition of a DNA collection fee only if the State
has not “previously collected the offender’s DNA as a result of a prior conviction.” LAWS OF 2018,
ch. 269, § 18. Our Supreme Court has held that the 2018 amendments to the legal financial
obligation statutes apply to cases pending on direct review and not final when the amendments
were enacted. State v. Ramirez, 191 Wn.2d 732, 747, 426 P.3d 714 (2018).
The 2018 amendments apply here. The State concedes that the court found Bailey indigent
and there is evidence in the record to support that concession. The State also concedes that the
record shows Bailey has been convicted of multiple prior felonies that would have required DNA
collection.
Therefore, we remand for the trial court to strike the criminal filing fee, the warrant service
fee, and the DNA collection fee.
CONCLUSION
We affirm the conviction for criminal impersonation and remand to the trial court to strike
the criminal filing fee, the warrant service fee, and the DNA collection fee.
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No. 51623-3- II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, J.
We concur:
Maxa, C.J.
Melnick, J.
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