State Of Wa v. Keovilayvanh Rinthalukay Aka Ricky K. Moore

• Court: Court of Appeals of Washington
• Decided: February 5, 2019
• Docket: 77668-1
• Status: Unpublished

Opinion

C•OU$fl OF %PPtALS DIV I STATE OF WASHINGTON 2019FE8—5 AHIO:31

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 77668-1-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) KEOVILAYVANH RINTHALUKAY, a.k.a. RICKY K. MOORE, ) Appellant. ) FILED: February 5, 2019

ANDRUS, J. — Keovilayvanh Rinthalukay (a.k.a. Ricky K. Moore) appeals

his conviction for identity thefi, contending his out-of-court statement should have

been excluded under the corpus delicti rule. He also challenges his convictions

for unlawful fish accounting and unlawful possession or sale of shellfish. We

reverse his identity theft conviction and affirm the other two convictions.

FACTS

Rinthalukay owns Sea Native USA Ltd., a company that processes and

sells fish and shellfish. Any company engaged in the wholesale buying, selling,

or processing of fish and shellfish in Washington must obtain a wholesale

dealer’s license issued by the Washington Department of Fish & Wildlife

(WDFW). Once a company obtains a dealer’s license, a company representative No. 77668-1-1/2

must acquire a wholesale fish buyer’s card, a permit required to buy directly at

the dock from the person who caught the fish. A person cannot obtain a buyer

license without being affiliated with a company holding a wholesale dealer

license. Sea Native was licensed as a wholesale dealer, and Rinthalukay was

licensed as the company’s fish buyer.

When a wholesale fish buyer purchases fish or shellfish directly from a

fisher, he must fill out a “fish receiving ticket” or “fish ticket” to document the sale.

WDFW and the Northwest Indian Fisheries Commission (NWIFC) use these

tickets to track commercial harvesting throughout Washington State. The fish

tickets document the identities of the buyer and fisher, date of the sale, location

of the catch, type of species harvested, quantity harvested, price per pound for

each species, and total cost of the product.

The fish receiving ticket is a quintuplicate carbon copy form typically filled

out by the buyer by hand, but part of the form is completed by using an “imprinter

card.” Fishers and dealers are issued license cards, which have raised type like

credit cards. If it is a wholesale buyer card, it identifies the wholesale dealer’s

name and number, while individual buyer cards have an additional line identifying

the fish buyer’s number. The information from these cards is transferred to the

receiving tickets by rubbing a credit-card imprinting machine across the raised

surface of the cards. An imprint of the fisher’s card transfers the fisher’s name,

tribal affiliation (if applicable), and his or her identifying serial number onto the

fish receiving tickets. There are two sections at the top of each fish ticket—the

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left side is used to imprint the fisher’s card; the right side is used to imprint the

dealer’s or buyer’s card.

A wholesale fish buyer who is the “original receiver” of fish or shellfish1 is

legally required to complete the fish ticket and distribute copies to the appropriate

parties. WAC 220-352-090, -130. The buyer must retain the top copy and

distribute the second copy to WDFW, the third copy to NWIFC, the fourth copy to

the tribe, and the last copy to the fisher. The buyer must mail WDFW’s copy no

later than six business days after completing the ticket.2 WDFW gives dealers

some leniency to account for potential mail slowdowns and considers tickets late

if they are received on the ninth business day after they were completed. Failing

to document purchases with fish receiving tickets or failing to submit copies of

the fish tickets to WDFW is a gross misdemeanor. RCW 77.15.630.

WDFW began investigating Rinthalukay after receiving a referral from the

National Marine Fishery Service, a subdivision of the National Oceanic and

Atmospheric Administration (NOAA). WDFW Detective Wendy Willette obtained

a warrant to search both Sea Native’s packing facility and Rinthalukay’s home.

WDFW found 50 fish receiving tickets bearing Rinthalukay’s name as buyer and

documenting fish or shellfish purchases, none of which had been reported to

WDFW.

l The “original receiver” is the person who holds a wholesale fish buyer endorsement and is the first person in possession of fish or shellfish in the state of Washington who is acting in the capacity of a buyer. WAC 220-352-010(12). 2 For a treaty Indian fish receiving ticket, WDFW’s copy is sent to NWIFC, which then sends WDFW its copy.

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WDFW learned that Sea Native stored frozen fish and shellfish at Rainier

Cold Storage. A search of Rainier Cold Storage led to the discovery of five

boxes, or approximately 200 pounds, of frozen geoduck. Although WAC 246-

282-080 requires shellfish for human consumption be packed in approved

containers and stamped with a Washington State Department of Health

certification ticket, only one box of geoduck had the certification ticket attached.

Under RCW 69.30.110(1) and 69.30.140, possession of a commercial quantity of

shellfish packed without the approved Department of Health tag is a gross

misdemeanor.

During the search of Rinthalukay’s home, WDFW also found fish receiving

tickets purporting to document May 2014 sales of Dungeness crab from Jean

Leon Torres, a member of the Skokomish Indian Tribe, to Rinthalukay. These

tickets bore an imprint of Torres’s fisher card and what looked like her signature.

All the tickets had the WDFW, NWIFC, tribal, and fisher’s copies still attached.

The State contended at trial that when Detective Willette interviewed

Rinthalukay, he admitted using Torres’s imprinter card, signing Torres’s name on

the tickets, and creating the tickets to document fake sales to reach the required

threshold to pass an inspection for a NOAA overseas export certificate.

Rinthalukay admitted he created the tickets to mislead the NOAA inspector.

The State charged Rinthalukay with one count of unlicensed first degree

fish dealing in violation of RCW 77.15.620,~ one count of first degree unlawful

~ This charge was based on the fact that Sea Native’s and Rinthalukay’s wholesale icenses lapsed for a short period of time during which the State alleged they continued to purchase fish.

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fish and shellfish catch accounting in violation of RCW 77.15.630(2), one count of

unlawful possession or sale of shellfish in violation of ROW 69.30.110(1) and

69.30.140, and one count of identity theft in the second degree, in violation of

ROW 9.35.020(1) and (3).

The jury acquitted Rinthalukay of unlicensed fish dealing but found him

guilty of the other three charges. The trial court sentenced Rinthalukay to 60

days for the unlawful accounting conviction concurrent with 2 months for the

identity theft conviction, each to be served on work release. The court deferred

for 12 months a sentence of unsupervised probation for the misdemeanor of

unlawfully possessing geoduck. Rinthalukay appeals his judgment and sentence.

ANALYSIS

Rinthalukay raises four arguments on appeal. First, he challenges the

evidentiary basis for the identity theft conviction under the corpus delicti rule. He

also contends his conviction for unlawful fish accounting should be reversed

because the evidence was insufficient to prove he was the “original receiver” of

the fish. Rinthalukay also challenges the unlawful possession of geoduck

conviction, arguing there was insufficient evidence to prove that he, rather than

his company, possessed the product. Finally, Rinthalukay contends that RCW

77.15.630 and ROW 69.30.119 are unconstitutionally vague.

A. Identity Theft

Rinthalukay argues the trial court erred in admitting his statement to

investigators, that he forged Torres’s signature to mislead the NOAA inspector,

under the corpus delicti rule. We agree.

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In Count 4, the State alleged:

[Tjhe defendant . did knowingly obtain, possess, use or . .

transfer a means of identification or financial information, to-wit: the name and tribal affiliation of another person, living or dead, to-wit: Jean Leon Torres, knowing that the means of identification or financial information belonged to another person, with the intent to commit, or to aid or abet, any crime and obtained an aggregate total credit, money, goods, services, or anything else of value that was less than $1500 or obtained no credit, money, goods, services, or anything of value. The State alleged Rinthalukay created fish tickets using Torres’s imprint card and

forged her signature because he was applying for a NOAA export certificate to

send the products overseas, and he needed to document a certain amount of

purchases or sales of product to pass a NOAA inspection. The State contended

he used Torres’s identification for the purpose and the intent to commit a crime,

specifically to commit forgery or to make a false or misleading statement to a

public servant.4

Rinthalukay argued at trial any statements he gave to WDFW

investigators were inadmissible, under the corpus delicti rule, to prove identity

theft unless Torres appeared to testify at trial because the State had no

independent evidence of an intent to commit forgery or make false statements to

NOAA. The State contended the fish tickets themselves were evidence of a

crime for three reasons. First, the tickets purported to document sales of

Dungeness crab in May 2014, and a Skokomish tribal biologist, Jonathan Wolf,

would testify that there was no tribal crab fishery open in May 2014. Second, the

The trial court instructed the jury on the elements of forgery and making a false or misleading statement to a public servant.

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State contended the fish tickets established a crime had been committed

because it was a crime for a fish dealer to purchase crab out of season, although

he was not charged with that crime. Third, the State contended the fish tickets,

with all five copies intact, also evidenced the crime of unlawful fish accounting.

The trial court ruled that the evidence of fish receiving tickets found in

Rinthalukay’s house, each bearing the imprint of Torres’s card and Rinthalukay’s

signature, and that the evidence that no copies of the tickets had been distributed

to anyone as required by regulation was sufficient to satisfy the corpus delicti rule

and allow the State to introduce at trial his statements to Detective Willette.

We review de novo the trial court’s ruling as to whether sufficient

corroborating evidence exists to satisfy the corpus delicti rule. State v.

Hotchkiss, 1 Wn. App. 2d 275, 279, 404 P.3d 629 (2017), review denied, 190

Wn.2d 1005, 413 P.3d 9 (2018). We assume the truth of the State’s evidence

and all reasonable inferences from that evidence in a light most favorable to the

State. State v. Cardenas-Flores, 189 Wn.2d 243, 264, 401 P.3d 19 (2017)

(internal quotation marks omitted) (quoting State v. Aten, 130 Wn.2d 640, 658,

927 P.2d 210 (1996)).

“Corpus delicti means the body of the crime and must be proved by

evidence sufficient to support the inference that there has been a criminal act.”

State v. Brockob, 159 Wn.2d 311, 327, 150 P.3d 59 (2006) (internal quotation

marks omitted). A defendant’s incriminating statement alone is not sufficient to

establish that a crime took place. Id. at 328. The State must present “evidence

independent of the incriminating statement that the crime a defendant described

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in the statement actually occurred.” ki. While the independent evidence need

not be sufficient to support a conviction, it “must provide prima facie

corroboration of the crime described in a defendant’s incriminating statement.”

Id.

We start our analysis with the crime the State contends was described by

Rinthalukay in his statement. During WDFW’s investigation, Detective Willette

asked Rinthalukay about his association with Torres. Rinthalukay told Detective

Willette he made a copy of Torres’s Bureau of Indian Affairs imprint card because

he did not “trust [her] character.” He initially denied ever purchasing fish or

shellfish from Torres.

When Detective Willette showed Rinthalukay the fish tickets bearing

Torres’s name found in a briefcase in Rinthalukay’s car, he stated he used the

records to pass a NOAA inspection. He stated he asked Torres “to do me favor

to generate these record.” Rinthalukay told Detective Willette he used the fish

tickets during a NOAA audit to show that his company, Sea Native, had

processed Dungeness crab through its plant. He admitted he had arranged with

Torres to create the fish tickets to show to the NOAA inspector even though there

was no actual purchase. After initially denying he signed Torres’s name to the

tickets, Rinthalukay eventually admitted he signed her name to all five tickets

without her knowledge.

Rinthalukay contends the State had no independent evidence he intended

to forge Torres’s signature or to mislead NOAA. We agree.

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A person commits forgery when, with the intent to injure or defraud, he

possesses a written instrument which he knows to be forged. RCW 9A.60.020.

In addition, knowingly making a false or material misleading statement to a public

servant is a gross misdemeanor. RCW 9A.76.175. Both crimes require

evidence of intent—intent to injure or defraud either Torres or NOAA, or intent to

mislead NOAA.

As it did at trial, the State relies on the fish tickets themselves as evidence

of Rinthalukay’s intent to commit a crime. The five copies of the tickets were

intact, meaning Rinthalukay had not forwarded the sales documentation to

WDFW as required by law. The fish tickets could be evidence of the crime of

unlawful fish accounting under RCW 77.16.630, but that crime is not the crime

Rinthalukay described to Detective Willette. Under Brockob, the evidence must

corroborate “not just a crime but the specific crime with which the defendant has

been charged.” 159 Wn.2d at 329. Evidence of unlawful fish accounting does

not corroborate an intent to defraud Torres or NOAA, or to mislead NOAA.

Moreover, the State had no evidence the crab purchases reflected in the

tickets actually occurred. If no fish or shellfish were landed, there is no violation

of the fish accounting statute. As Rinthalukay stated at trial, “[nb crime could be

committed by filling out fish receiving tickets and then never using them.” The

evidence supports the inference Rinthalukay filled out fish tickets, but without

Rinthalukay’s statements to Detective Willette, it is pure speculation as to his

intent in doing so.

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The case is thus analogous to Brockob. In that case, the Supreme Court

reversed Brockob’s conviction for possession of ephedrine with intent to

manufacture methamphetamine. ki. at 319-20. It concluded the evidence

against Brockob supported the inference he intended to steal Sudafed but did not

support an inference he intended to manufacture methamphetamine, the crime

with which he had been charged. j~ at 331-32. Similarly, the fish tickets here

may support the inference that Rinthalukay filled out the fish tickets using

Torres’s imprint card, but they do not by themselves corroborate the allegation

that Rinthalukay used Torres’s imprint card with the intent to commit a forgery or

to mislead NOAA.

The State also relies on evidence that the date on the fish tickets, May

2014, was outside of any tribal crab season. The State argues that this evidence

supports only one logical inference—that Torres would not have fished for crab

during the season closure, thereby establishing Rinthalukay’s intent to commit

the crime of forgery. But, the State had no admissible evidence that Torres did

not use her imprint card on the fish tickets or sign them herself. “Intent may not

be inferred from evidence that is patently equivocal.” State v. Vasciuez, 178

Wn.2d 1, 8, 309 P.3d 318 (2013) (internal quotation marks omitted) (quoting

State v. Woods, 63 Wn. App. 588, 592, 821 P.2d 1235 (1991)). The mere

possession of fish tickets purporting to bear Torres’s signature and an impression

of her card is insufficient to infer intent to commit forgery.

We know nothing about Torres and whether she would or would not poach

crab, or whether she would or would not sign fish tickets for Rinthalukay outside

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of a tribal crab season. Prima facie corroboration exists if the independent

evidence supports a reasonable and logical inference of the facts the State seeks

to prove. Brockob, 159 Wn.2d at 328. The trial court inquired of the State if it

had any independent evidence from someone familiar with Torres’s signature

that the handwriting on the form was not hers. The State conceded it had no

such evidence. Without some evidence Torres did not sign the fish tickets

herself or did not give Rinthalukay permission to use her imprinter card, we

cannot infer Rinthalukay intended to commit forgery.

The State proffered evidence that Torres reported to the Skokomish Tribe

she did not sell fish or shellfish to Rinthalukay, she did not use her imprinter on

any fish tickets for him, and she did not sign the forms. However, Torres did not

testify at trial. Her statements to third parties were, therefore, inadmissible

hearsay, insufficient to corroborate Rinthalukay’s incriminating statement. ~

State v. Ryan, 103 Wn.2d 165, 178, 691 P.2d 197 (1984) (reversing conviction

because corpus delicti not established when hearsay statements were only

evidence other than defendant’s confession); cL State v. Ackerman, 90 Wn. App.

477, 485 953 P.2d 816 (1998) (Admissible hearsay statements are sufficient to

corroborate a confession.”) (emphasis added); State v. Biles, 73 Wn. App. 281,

285, 871 P.2d 159 (1994) (same). We, thus, cannot consider this proffer in our

assessment of the sufficiency of the State’s corroborating evidence.

We reverse Rinthalukay’s identity theft conviction because the

independent evidence was insufficient to corroborate his incriminating statements

to investigators.

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B. Unlawful Fish Accounting

Rinthalukay argues the State did not prove he was the original receiver”

of the fish because Sea Native was the entity that took possession of the fish. As

a result, he argues there was insufficient evidence that he was responsible for

submitting the fish tickets. We disagree.

In a sufficiency of the evidence challenge, this court draws all inferences

from the evidence in favor of the State and against the defendant. State v.

Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). We uphold a conviction and

find sufficient evidence where a rational trier of fact could find that all elements of

the crime were proved beyond a reasonable doubt. ki.

The jury was instructed that a person is guilty of unlawful fish and shellfish

catch accounting in the first degree:

when he or she is licensed as a wholesale fish dealer or fish buyer, or is not so licensed but is acting in such a capacity, receives fish or shellfish for a commercial purpose, intentionally fails to submit the fish receiving ticket to the Department of Fish and Wildlife as required by statute or Department of Fish and Wildlife rule, and the value of the fish or shellfish involved is $250 or more.

(emphasis added); see RCW77.15.630.

The regulations require that the ‘original receiver’ of the fish has the

obligation to properly distribute the fish receiving tickets to all entities, including

WDFW. See WAC 220-352-090, 220-69-240. The original receiver is defined as

“the first person in possession of fish or shellfish who is acting in the capacity of a

buyer.” WAC 220-352-010(12).

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At trial, Marjorie Morningstar, the commercial harvest data manager for

WDFW testified that Detective Willette gave her a list of 50 fish receiving tickets

seized from Rinthalukay’s home and Sea Native’s offices to see if WDFW had

received its copy of those tickets. Morningstar searched both by Sea Native’s

company name—including its previous name, Sea Ltd.—and by the 50 individual

ticket numbers, confirming WDFW had not received its copy of any of the 50

tickets.5

Detective Willette testified that her investigators discovered several fish

receiving tickets in Rinthalukay’s truck that showed Rinthalukay was the fish

buyer. These tickets were intact, meaning each still had copies intended for the

appropriate regulatory agency affixed to them. Detective Willette also found

other improperly processed fish receiving tickets, showing Rinthalukay as the

buyer with the State’s and NWIFC’s copies still attached, in several locations—

including the trash can in the office at the Sea Native plant, on the main desk at

the Sea Native plant, in the portable container in the garage at Rinthalukay’s

home, and on a desk in Rinthalukay’s home office. Each of the tickets not

properly submitted to WDFW identified Rinthalukay as the buyer, and each bore

both his signature and buyer’s card number.

Finally, the State presented witnesses who testified they caught fish or

shellfish and sold it directly to Rinthalukay at the dock.

This evidence is more than sufficient to prove that Rinthalukay was acting

in the capacity of a fish buyer, even if he was buying on behalf of Sea Native. He

~ Ultimately1 the State only prosecuted 12 of the 50 tickets.

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went to the docks and bought fish directly from the fishers. He took possession

of the fish he purchased. He documented the purchases by filling out the fish

tickets with his fish buyer card number, identifying himself as the buyer, and

signing each ticket. The evidence also showed that Rinthalukay was almost

solely responsible for all corporate actions taken in Sea Native’s name. Some of

the fish tickets in question were found at Rinthalukay’s home, further blurring the

line between Rinthalukay and Sea Native. A rational trier of fact could find that

Rinthalukay was the original receiver of the fish and that he failed to distribute the

receiving tickets to the regulatory agencies per the regulations. Therefore, we

affirm the jury’s finding that Rinthalukay was guilty of unlawful fish accounting.

C. Unlawful Possession or Sale of Shellfish

Next, Rinthalukay argues that he cannot be criminally liable for possessing

untagged geoduck because it was Sea Native, and not he, who possessed the

untagged geoduck. He also argues that he cannot be guilty under the

accomplice liability statute. Neither of these arguments is supported by the facts

or the law.

Washington State regulations incorporate the US Food and Drug

Administration’s National Shellfish Sanitation Program (NSSP) requirements that

harvested shellfish be identified by an approved certification tag with permanent

marking. WAC 246-282-080(2). Robin Banes, a shellfish inspector with the

Washington State Department of Health, testified that the certification tags, which

must always be affixed to the container, identify where the shellfish was

harvested, the date it was harvested, the amount that was harvested, and the

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company that harvested it. Banes explained another purpose of the certification

tags is to identify the conditions that were present for that particular lot of

shellfish because the biotoxin levels6 in a particular area can change from day to

day.

Randall Klein, plant manager for Rainier Cold Storage, testified that the

company received six cases of unfrozen geoduck from Sea Native. Sergeant

Erik Olson, with WDFW police, testified that of the six boxes, only one bore the

required Department of Health certification tag. Even that box’s label, however,

was incomplete as it was missing the quantity and the original shipper

information.

The jury instruction required either that Rinthalukay knowingly possessed

a commercial quantity of untagged geoduck or that Sea Native possessed the

geoduck and that Rinthalukay was legally accountable for Sea Native’s actions.

RCW 69.30.110(1); WAC 246-282-080. Because the jury was instructed on

both theories, each must be supported by adequate evidence to survive a

sufficiency challenge. State v. Collins, 76 Wn. App. 496, 501, 886 P.2d 243

(1995).

Rinthalukay does not dispute that the geoduck was improperly tagged. He

argues, however, that the State presented no evidence that he, rather than Sea

Native, possessed this shellfish. But, Rinthalukay presented this missing

evidence himself. Rinthalukay testified he did not know how the untagged

6 Shellfish companies in Washington must follow food and safety regulations established

by the NSSP and incorporated into Washington law through WAC 246-282-005.

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geoduck was shipped to Rainier Cold Storage. Rinthalukay admitted, however,

that “I told my either driver or person who in charge of the house, ‘Hey, this has

been long time from our warehouse. Get rid of it. I don’t care where it go.”

Although RCW chapter 69.30, which governs sanitary control of shellfish, does

not define “possess” or “possession,” courts have recognized the concept in

criminal cases as requiring proof of either actual physical possession or

constructive possession through dominion and control. See State v. Shumaker,

142 Wn. App. 330, 334, 174 P.3d 1214 (2007) (constructive possession means

no actual physical possession but dominion and control over substance or over

the premises on which the substance was found). Rinthaukay had sufficient

dominion or control over the geoduck to instruct a driver to dispose of it. Based

on this evidence, a rational trier of fact could conclude that Rinthalukay did

knowingly “possess” the improperly tagged geoduck.

There was also sufficient evidence to convict Rinthalukay for Sea Native’s

possession of the untagged geoduck under the accomplice liability statute.

Washington’s general accomplice liability statute provides that a “person is guilty

of a crime if it is committed by the conduct of another person for which he or she

is legally accountable.” RCW 9A.08.020(1). A “person is legally accountable for

the conduct of another person when . . . he or she is made accountable for the

conduct of such other person by [Title 9A.08j or by the law defining the crime.”

RCW 9A.08.020(2)(b).

The State relied on two separate provisions of Title 9A.08 to argue

Rinthalukay was liable for Sea Native’s possession of geoduck. Under RCW

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9A.08.030(3), a person is liable for conduct he performs or causes to be

performed in the name of or on behalf of a corporation to the same extent as if

such conduct were performed in his own name or behalf. And under ROW

9A.08.030(4), if a corporation has a duty to act, any agent who knows he shares

primary responsibility for discharging that duty is liable for recklessly omitting that

act to the same extent as if the duty were imposed directly upon the agent. If the

agent is a high managerial agent, he is liable for negligently omitting the act.

Despite any legal distinction between Rinthalukay and Sea Native,

evidence established Rinthalukay acted as a high managerial agent of Sea

Native. Rinthalukay was the owner of Sea Native and was listed with the

Washington Secretary of State as its president, chairman, and registered agent.

Sea Native had no other full time employees, and Rinthalukay operated the

business at least in part from his personal residence, an address he listed with

the Secretary of State as an alternative address for the corporation.

In addition, the State produced evidence that as owner of Sea Native,

Rinthalukay’s job duties included, among other things, managing the plant,

overseeing governmental required recordkeeping activities, supervising inventory

control, working with tribal fisheries and partners, preparing invoices for

customers, and traveling to meet with tribal fishers to receive product. It was

Rinthalukay who signed Sea Native applications for its wholesale dealer license

and Rinthalukay’s buyer license. It was Rinthalukay who telephonically provided

Detective Willette with the locked gate code to enter Sea Native’s plant to

execute the search warrant.

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Detective Willette also testified Rinthalukay was responsible for ensuring

compliance with Sea Native’s recordkeeping obligations. Letters from WDFW—

warning Rinthalukay of his failure to comply with fish ticket requirements—were

found in an office at Sea Native’s plant. Additional warning letters from WDFW

were found in Rinthalukay’s garage.

According to Department of Health inspector Rob Banes, whenever he

conducted an inspection of Sea Native’s plant, Rinthalukay was the only person

who accompanied him through the plant. He never had interactions with any

other managerial employees other than Rinthalukay. Additionally, when Banes

conducted an inspection in March 2013, he notified Rinthalukay of the

information the Department of Health required him to include on shellfish

certification tags and when a certification tag was needed.

This evidence is sufficient to lead a rational jury to find Rinthalukay was

legally accountable for Sea Native’s failure to properly tag the containers holding

geoduck. Thus, we conclude that there was sufficient evidence for the jury to

find both that Rinthalukay himself knowingly possessed the improperly tagged

geoduck or that Sea Native possessed the improperly tagged geoduck and

Rinthalukay was legally accountable for this conduct.

D. Constitutionality of RCW 77.15.630 and RCW 69.30.110

Finally, Rinthalukay contends his convictions for unlawful fish sales

accounting and unlawful possession of geoduck should be reversed because the

regulations do not sufficiently define who is responsible for the violations—the

corporation engaged in commercial fish processing or the individual working for

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that corporation. He contends that the statutes at issue, RCW 77.15.630 and

RCW 69.30.110, are unconstitutionally vague under the due process clause of

the Fourteenth Amendment.

The due process clause of the Fourteenth Amendment requires that

citizens be afforded fair warning of proscribed conduct.” City of Spokane v.

Douglass, 115 Wn.2d 171, 178, 795 P.2d 693 (1990). A statute is void for

vagueness if either “(1) the statute does not define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is

proscribed; or (2) the statute does not provide ascertainable standards of guilt to

protect against arbitrary enforcement.” State v. Watson, 160 Wn.2d 1, 6, 154

P.3d 909 (2007) (internal quotation marks omitted) (quoting State v. Williams,

144 Wn.2d 197, 203, 26 P.3d 890 (2001)). A statute is unconstitutional if it fails

under either prong of this test. Williams, 144 Wn.2d at 204.

We presume statutes are constitutional. State v. Jacobson, 92 Wn. App.

958, 967, 965 P.2d 1140 (1998). Rinthalukay bears the burden of proving

beyond a reasonable doubt that a statute is unconstitutionally vague. ith A vagueness challenge not involving rights protected by the First Amendment must

be evaluated in light of the particular facts of each case. Watson, 160 Wn.2d at

6.

The State argues that the regulations and statutes administering

commercial fisheries are complicated, but this complexity does not make the

laws unconstitutionally vague. We agree. Rinthalukay does not argue that the

regulatory complexity makes it impossible to determine what conduct is

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prohibited. Instead, he contends the statutory scheme makes it unclear whether

only a corporation or its owner can be criminally liable. This argument is not well-

founded.

RCW 77.15.630(1)(c) makes it illegal for a licensed wholesale fish buyer

to buy or deliver fish or shellfish without delivering a fish receiving ticket to the

appropriate regulatory agencies. RCW 69.30.110 makes it unlawful for any

person” to possess a commercial quantity of shellfish when not packed in

accordance with that chapter. The general criminal laws explain when an

individual will be criminally liable for corporate violations of these two provisions.

RCW 9A.08.030(3) provides:

A person is criminally liable for conduct constituting an offense which he or she performs or causes to be performed in the name of or on behalf of a corporation to the same extent as if such conduct were performed in his or her own name or behalf. Jury instruction No. 35 reflected this statutory provision. The statutory language

is quite clear. If a person buys fish on behalf of a corporation or in the name of

the corporation, and then fails to deliver the requisite fish ticket, he can be held

criminally liable for this act under RCW 77.15.630(1)(c). Similarly, under RCW

69.30.110, if a person takes possession of a commercial quantity of fish on

behalf of or in the name of a corporation, and fails to ensure it is properly tagged,

he can be held criminally liable for this act.

RCW 9A.08.030(4) provides:

Whenever a duty to act is imposed by law upon a corporation, any agent of the corporation who knows he or she has or shares primary responsibility for the discharge of the duty is criminally liable for a reckless or, if a high managerial agent, criminally

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negligent omission to perform the required act to the same extent as if the duty were by law imposed directly upon such agent.

Instruction Nos. 39 through 41 advised the jury on this statutory provision and

provided definitions of “agent,” “high managerial agent,” recklessness, and

criminal negligence. This provision is also clear—if an agent of a corporation

knows he has primary responsibility for discharging the corporation’s duty to

send fish tickets to WDFW or to verify accurate tagging of geoduck, and is

reckless in discharging this duty, he can be liable. If the person holds a “high

managerial” position within the corporation, a criminally negligent failure to act

suffices to impose liability.

We conclude that by reading RCW 9A.08.030 in conjunction with RCW

77.15.630 and RCW 69.30.110, the statutes define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is

proscribed. As a result, the statutes provide ascertainable standards of guilt to

protect against arbitrary enforcement and are not unconstitutionally vague.

We reverse Rinthalukays identity theft conviction and affirm his

convictions for unlawful fish sales accounting and unlawful possession of

geoduck.

WE CONCUR: /

4 I I