IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON o too —-i (_-'• STATE OF WASHINGTON, DIVISION ONE c:. o -m„,. -jz Respondent, i
No. 75031-3-1 v. Si UNPUBLISHED OPINION vO C"' •J>
BOBBY ARLEND NORMAN,
Appellant. 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. 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 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 his time. 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 No. 75031-3-1/3
prior criminal convictions would be admissible, and (3) whether he would have to
take the stand.
The court asked Norman if there 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 jury found 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 his will. This is so, he asserts, because the court No. 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 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, 136 Wn. 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 of the requests]," as "[t]he burdens imposed
upon the trial court, the jurors, the witnesses, and the integrity of the 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, 136 Wn. 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. 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 of either an irreconcilable
conflict or a complete breakdown in communication between him and his
attorney.1 Following Norman's request that a new attorney 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
1 Norman does not assert that there existed a conflict of 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 his lawyer 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 that ensued 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
3 Norman 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, 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 not abuse 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 on an incorrect legal standard when 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 do that unless you demonstrate that you understand the law and the Rules of Evidence." While this off the cuff statement 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 to engage in a colloquy with him to confirm that his request was made intelligently, knowingly, and voluntarily. During this colloquy, the court would have informed Norman that, were he to represent himself, he would 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 of what 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. No. 75031-3-1/8
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 as the expression of what was intended." TracFone Wireless. Inc. v. Dep't of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010). We first examine whether the language of the relevant statutes expressly
allows for convictions under both statutes for the same act or transaction. Calle, 125 Wn.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 as for 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 it was 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 forgery-
further 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 is related 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 is in 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 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).
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 apply to 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, or supervises 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 that they did not address distinct acts. Instead, these verbs all defined
variations of the same act.
The language of the identity theft statute at issue herein is, in relevant
respects, similar to that ofthe statute interpreted in Owens. As in Owens, the disjunctive list of acts 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 of identification, but
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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 it sweeps 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 Consumer Council. 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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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 or financial 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 of an 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 identity theft statute only under these
conditions, it is not overbroad. Indeed, there is no real danger that 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 that we 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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