FILED JUNE 22, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 37268-5-III Respondent, ) ) v. ) OPINION PUBLISHED IN PART ) IBRAHIM DEVEN TERAN ARNO, ) ) Appellant. )
STAAB, J. — Ibrahim Arno presented a forged check to a bank. He was charged
and convicted of forgery, possession of stolen property, and bail jumping.
He now appeals, arguing there is insufficient evidence to sustain a conviction for
possession of stolen property because a paper check does not qualify as an access device.
He also contends the State committed flagrant, ill-intentioned misconduct in closing
argument and his trial counsel was ineffective for failing to object to the improper
argument.1
In the published portion of this opinion, we hold that a paper check presented to a
bank is excluded from the definition of an access device as “a transfer originated solely
1 Mr. Arno’s opening brief also assigns error to a jury instruction, but he withdraws this assignment of error in his reply brief after conceding the instruction was correct. No. 37268-5-III State v. Arno
by paper instrument.” RCW 9A.56.010(1). Because the State relied on the check as the
sole access device, the evidence is insufficient to support Mr. Arno’s conviction for
possession of stolen property. In the unpublished portion of the opinion, we reject Mr.
Arno’s remaining arguments and affirm his convictions for bail jumping and forgery.
FACTS
Ibrahim Arno brought a forged check for $1,000 to a Wells Fargo Bank in May
2018. The check was nominally written and signed by Jesse Pinnow. Mr. Pinnow
testified that a box of checks had been stolen from his house in 2017 and that the check in
question was one of those that had been stolen. He denied writing the check, and the
signature on the check did not match the bank’s records. The account the check was
drawn on had been closed earlier after several of the stolen checks were fraudulently
cashed in the weeks after they were stolen.
Mr. Arno testified that he received the check as repayment for a debt from a
friend, Randolph Bill, who in turn was owed money by his cousin, who would give Mr.
Bill a check to give to Mr. Arno. Mr. Bill was not located by law enforcement and did
not testify at trial. Mr. Pinnow testified that he did not know Mr. Bill or Mr. Arno.
Mr. Arno told officers that he initially received the check with no signature, sent it
back, and received it again, this time with the signature. He testified at trial that he
attempted to cash the check as soon as he received it via “picture deposit,” but that this
had not worked. He testified that he only brought the check in to the bank to see if it was
2 No. 37268-5-III State v. Arno
good. Previously he had stated to officers that he brought the check to Wells Fargo
because they could cash it there immediately. Arno also told officers that he “didn’t
think something was right” about the check. Report of Proceedings (RP) at 243.
Mr. Arno stayed at the bank while law enforcement was called and was cordial
and cooperative. Mr. Arno had not endorsed the check. Mr. Arno worked at a 7-Eleven
and testified the debt Mr. Bill owed him was from store items Mr. Arno had given Mr.
Bill that were charged to Mr. Arno’s own employee account, which was ultimately
deducted from his paychecks.
While his charges were pending, Mr. Arno missed a court date. At trial, he
testified that he received a scheduling order with several dates crossed out and was
“confused.”
A jury found Mr. Arno guilty of forgery, possession of stolen property, and bail
jumping. On appeal, he challenges his convictions for possession of stolen property and
bail jumping but does not challenge his forgery conviction.
ANALYSIS
A. SUFFICIENCY OF EVIDENCE FOR POSSESSION OF STOLEN PROPERTY.
Mr. Arno contends that the evidence was insufficient to support his conviction for
possession of stolen property because the statutory definition of “access device”
specifically excludes paper checks from its definition.
3 No. 37268-5-III State v. Arno
This issue requires us to construe the statute and then apply the facts. Our
construction of the statute is reviewed de novo. State v. Pratt, 196 Wn.2d 849, 852, 479
P.3d 680 (2021). The facts will be viewed in a light most favorable to the State. State v.
Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).
When we consider the statute’s parameters, our primary duty is to ascertain and
carry out the legislative intent. Pratt, 196 Wn.2d at 853. In determining legislative
intent, the first step is to determine if the statute is ambiguous. A statute is ambiguous if
there is more than one reasonable interpretation. State v. Evans, 177 Wn.2d 186, 192-93,
298 P.3d 724 (2013).
A person is guilty of second degree possession of stolen property if he “possesses
a stolen access device.” RCW 9A.56.160(1)(c). “Access device” is defined as “any card,
plate, code, account number, or other means of account access that can be used . . . to
initiate a transfer of funds, other than a transfer originated solely by paper instrument.”
RCW 9A.56.010(1) (emphasis added).
Mr. Arno argues that the statute’s plain language excludes an attempt to transfer
funds by presenting a bad check for payment. We agree. If the exclusion is to mean
anything, it clearly applies to the presentation of a paper check at a bank.
In State v. Chang, Division One provided an in-depth analysis of this statutory
exclusion. 147 Wn. App. 490, 503, 195 P.3d 1008 (2008). Ultimately, the court
concluded that a person could be charged with possessing a stolen access device for
4 No. 37268-5-III State v. Arno
merely possessing bank account numbers. But “[w]here a defendant has actually used or
attempted to use a paper instrument to initiate a transfer of funds, the more traditional
charges like forgery or fraud remain available as charging options.” Id. at 504. The facts
in this case fit squarely within the statutory exception as interpreted by the court in
Chang.
The State argues that the conclusion in Chang was dicta because it was not
necessary to decide the issue in that case. Maybe so, but it is very persuasive dicta given
the clear language of the statute. Moreover, the State fails to suggest an alternative
interpretation of the exclusion that gives meaning to the statute’s plain language. If the
exclusion does not apply to presentment of a forged check, it is hard to imagine the
circumstances under which it would apply.
Finally, the State argues that it was prosecuting Mr. Arno for possessing an account
number, not for presenting a forged check. The record belies the State’s argument. In
closing, the State made it clear that it was prosecuting Mr. Arno for possessing a stolen
check.
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FILED JUNE 22, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 37268-5-III Respondent, ) ) v. ) OPINION PUBLISHED IN PART ) IBRAHIM DEVEN TERAN ARNO, ) ) Appellant. )
STAAB, J. — Ibrahim Arno presented a forged check to a bank. He was charged
and convicted of forgery, possession of stolen property, and bail jumping.
He now appeals, arguing there is insufficient evidence to sustain a conviction for
possession of stolen property because a paper check does not qualify as an access device.
He also contends the State committed flagrant, ill-intentioned misconduct in closing
argument and his trial counsel was ineffective for failing to object to the improper
argument.1
In the published portion of this opinion, we hold that a paper check presented to a
bank is excluded from the definition of an access device as “a transfer originated solely
1 Mr. Arno’s opening brief also assigns error to a jury instruction, but he withdraws this assignment of error in his reply brief after conceding the instruction was correct. No. 37268-5-III State v. Arno
by paper instrument.” RCW 9A.56.010(1). Because the State relied on the check as the
sole access device, the evidence is insufficient to support Mr. Arno’s conviction for
possession of stolen property. In the unpublished portion of the opinion, we reject Mr.
Arno’s remaining arguments and affirm his convictions for bail jumping and forgery.
FACTS
Ibrahim Arno brought a forged check for $1,000 to a Wells Fargo Bank in May
2018. The check was nominally written and signed by Jesse Pinnow. Mr. Pinnow
testified that a box of checks had been stolen from his house in 2017 and that the check in
question was one of those that had been stolen. He denied writing the check, and the
signature on the check did not match the bank’s records. The account the check was
drawn on had been closed earlier after several of the stolen checks were fraudulently
cashed in the weeks after they were stolen.
Mr. Arno testified that he received the check as repayment for a debt from a
friend, Randolph Bill, who in turn was owed money by his cousin, who would give Mr.
Bill a check to give to Mr. Arno. Mr. Bill was not located by law enforcement and did
not testify at trial. Mr. Pinnow testified that he did not know Mr. Bill or Mr. Arno.
Mr. Arno told officers that he initially received the check with no signature, sent it
back, and received it again, this time with the signature. He testified at trial that he
attempted to cash the check as soon as he received it via “picture deposit,” but that this
had not worked. He testified that he only brought the check in to the bank to see if it was
2 No. 37268-5-III State v. Arno
good. Previously he had stated to officers that he brought the check to Wells Fargo
because they could cash it there immediately. Arno also told officers that he “didn’t
think something was right” about the check. Report of Proceedings (RP) at 243.
Mr. Arno stayed at the bank while law enforcement was called and was cordial
and cooperative. Mr. Arno had not endorsed the check. Mr. Arno worked at a 7-Eleven
and testified the debt Mr. Bill owed him was from store items Mr. Arno had given Mr.
Bill that were charged to Mr. Arno’s own employee account, which was ultimately
deducted from his paychecks.
While his charges were pending, Mr. Arno missed a court date. At trial, he
testified that he received a scheduling order with several dates crossed out and was
“confused.”
A jury found Mr. Arno guilty of forgery, possession of stolen property, and bail
jumping. On appeal, he challenges his convictions for possession of stolen property and
bail jumping but does not challenge his forgery conviction.
ANALYSIS
A. SUFFICIENCY OF EVIDENCE FOR POSSESSION OF STOLEN PROPERTY.
Mr. Arno contends that the evidence was insufficient to support his conviction for
possession of stolen property because the statutory definition of “access device”
specifically excludes paper checks from its definition.
3 No. 37268-5-III State v. Arno
This issue requires us to construe the statute and then apply the facts. Our
construction of the statute is reviewed de novo. State v. Pratt, 196 Wn.2d 849, 852, 479
P.3d 680 (2021). The facts will be viewed in a light most favorable to the State. State v.
Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).
When we consider the statute’s parameters, our primary duty is to ascertain and
carry out the legislative intent. Pratt, 196 Wn.2d at 853. In determining legislative
intent, the first step is to determine if the statute is ambiguous. A statute is ambiguous if
there is more than one reasonable interpretation. State v. Evans, 177 Wn.2d 186, 192-93,
298 P.3d 724 (2013).
A person is guilty of second degree possession of stolen property if he “possesses
a stolen access device.” RCW 9A.56.160(1)(c). “Access device” is defined as “any card,
plate, code, account number, or other means of account access that can be used . . . to
initiate a transfer of funds, other than a transfer originated solely by paper instrument.”
RCW 9A.56.010(1) (emphasis added).
Mr. Arno argues that the statute’s plain language excludes an attempt to transfer
funds by presenting a bad check for payment. We agree. If the exclusion is to mean
anything, it clearly applies to the presentation of a paper check at a bank.
In State v. Chang, Division One provided an in-depth analysis of this statutory
exclusion. 147 Wn. App. 490, 503, 195 P.3d 1008 (2008). Ultimately, the court
concluded that a person could be charged with possessing a stolen access device for
4 No. 37268-5-III State v. Arno
merely possessing bank account numbers. But “[w]here a defendant has actually used or
attempted to use a paper instrument to initiate a transfer of funds, the more traditional
charges like forgery or fraud remain available as charging options.” Id. at 504. The facts
in this case fit squarely within the statutory exception as interpreted by the court in
Chang.
The State argues that the conclusion in Chang was dicta because it was not
necessary to decide the issue in that case. Maybe so, but it is very persuasive dicta given
the clear language of the statute. Moreover, the State fails to suggest an alternative
interpretation of the exclusion that gives meaning to the statute’s plain language. If the
exclusion does not apply to presentment of a forged check, it is hard to imagine the
circumstances under which it would apply.
Finally, the State argues that it was prosecuting Mr. Arno for possessing an account
number, not for presenting a forged check. The record belies the State’s argument. In
closing, the State made it clear that it was prosecuting Mr. Arno for possessing a stolen
check. “So, when we’re talking about access device, we’re talking about check 214. . . .
So it is an access device. In other words, check 214.” RP at 400-01. Later, the State
again reaffirms, “Again, we talked earlier about what the definition of access device is.
It’s a check. Check 214 is an access device.” RP at 404.
Nonetheless, the State points to its argument in closing where the prosecutor
explains that the bad check contained account numbers and a routing number that a
5 No. 37268-5-III State v. Arno
person could use to pay bills over the phone. As Mr. Arno points out, however, the
prosecutor’s arguments are not evidence. In other words, “[t]his may be a provable
proposition, but the State did not prove it.” State v. Rose, 175 Wn.2d 10, 17, 282 P.3d
1087 (2012). In addition, it is clear that the State was not charging Mr. Arno for
possessing bank account numbers; it was charging him with possession of a stolen check.
We hold that a paper check presented to a bank is excluded from the definition of
an access device as “a transfer originated solely by paper instrument.” RCW
9A.56.010(1). Thus, there is insufficient evidence to support Mr. Arno’s conviction for
second degree possession of stolen property.
The panel having determined that only the foregoing portion of this opinion will
be printed in the Washington Appellate Reports, and that the remainder having no
precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
B. DID THE STATE IMPROPERLY MISSTATE THE KNOWLEDGE ELEMENT DURING CLOSING?
Next, Mr. Arno argues the State repeatedly argued in closing that it only had to
prove constructive knowledge to prove the knowledge element for the charges of
possession of stolen property and bail jumping. Because we have reversed the conviction
for possession of stolen property on the ground of insufficient evidence, we will apply
6 No. 37268-5-III State v. Arno
this argument only to the bail jumping conviction. Mr. Arno does not challenge his
forgery conviction on appeal.
Mr. Arno did not object to the State’s closing argument, so any alleged
impropriety and prejudice must rise to the level of being “so flagrant and ill intentioned
that an instruction would not have cured the prejudice.” State v. Walker, 182 Wn.2d 463,
477-78, 341 P.3d 976 (2015). When considering whether arguments during closing are
improper, we assess the conduct in the context of the entire argument. State v.
Loughbom, 196 Wn.2d 64, 74-75, 470 P.3d 499 (2020).
To prove the charge of bail jumping, the State was required to prove that Mr. Arno
had been “released by court order with knowledge of the requirement of a subsequent
personal appearance before that court.” Clerk’s Papers at 54. During trial, Mr. Arno
testified that he signed and received a scheduling order that contained five court dates,
three of which were crossed out. He testified that he missed his court date because he
was confused. In closing, the State argued that confusion was an excuse, not a defense to
bail jumping.
Contrary to Mr. Arno’s assertion, the State’s argument did not diminish the
knowledge element for bail jumping. The State needed to prove that he had knowledge
of his next court date. Being confused about a court date does not equate with a lack of
knowledge.
7 No. 37268-5-III State v. Arno
Nor did the State argue or suggest that Mr. Arno “should have known” his court
date even if he did not actually know it. See State v. Allen, 182 Wn.2d 364, 376-79, 341
P.3d 268 (2015) (prosecutor repeatedly misstated the element of actual knowledge as
being met if the defendant “should have known.”) Instead, the State argued that he knew
his court date and failed to appear. We find no error as it pertains to the conviction for
The lack of error forecloses Mr. Arno’s final argument that his attorney was
ineffective for failing to object to the prosecutor’s closing argument.
Reverse conviction for second degree possession of stolen property and dismiss
with prejudice. Affirm convictions for forgery and bail jumping. Remand for
resentencing.
_________________________________ Staab, J.
WE CONCUR:
_________________________________ Siddoway, A.C.J.
_________________________________ Lawrence-Berrey, J.