State Of Washington v. Muhammed Zbeida Tillisy

• Court: Court of Appeals of Washington
• Decided: September 22, 2014
• Docket: 69962-8
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ] No. 69962-8-1 ?f Respondent, ] I DIVISION ONE v. ] UNPUBLISHED OPINION MUHAMMED ZBEIDA TILLISY,

Appellant. i FILED: September 22, 2014 ~

Trickey, J. — In the early morning of May 31, 2012, Corporal Josh McClure of the

Edmonds Police Department arrested Muhammed Tillisy on an outstanding arrest

warrant.1 Corporal McClure searched Tillisy incident to the arrest and discovered seven

different bank checks.2 The checks were identical in their format and contained the same

account and routing numbers.3 Some of the checks identified Tillisy as the payee and Honda of Fife as the account holder; other checks identified Tillisy as the account holder.4 After obtaining a warrant to search Tillisy's vehicle, police officers located two additional bank checks that were similar to those previously seized.5 The officers also

found a piece of scratch paper, on which the business name "Honda of Fife" was written, as well as the same account and routing numbers as those printed on the previously

discovered checks.6 The officers additionally found a checkbook for the Chase Bank

account of Ok Kyung Yang.7

1 Report of Proceedings (RP) (Nov. 26, 2013) at 77, 83-84. 2 RP at 86. 3 RP at 86, 87. 4 RP at 86. 5 RP at 89, 93. 6 RP at 93-94. 7 RP at 144-45. No. 69962-8-1 / 2

The State charged Tillisy, by second amended information, with three counts of

second degree identity theft, in violation of RCW 9.35.020(1) and (3) (counts I, II, and V);

two counts of forgery, in violation of RCW 9A.60.020(1 )(b) (counts III and IV); and one

count of unlawful possession of payment instruments, in violation of RCW 9A.56.320(1)

and (2) (count VI).8 A jury found Tillisy guilty on all counts.9

The trial court determined that counts I, II, and III encompassed the same criminal

conduct and counted as one crime for purposes of determining the offender score.10 The

court also found that counts V and VI were the same criminal conduct for purposes of

determining the offender score.11 The court sentenced Tillisy to 49 months on counts I,

II, and V; 25 months on counts III and VI; and 22 months on count IV.12 Counts I, II, and

III were to run concurrently but consecutive to count IV.13 Counts V and VI were also to

run concurrently.14 The trial court imposed a total confinement of 120 months.15 Tillisy

appeals the judgment and sentence.

Tillisy contends that his two convictions for second degree identity theft violate

double jeopardy because, under counts I and II, he was twice convicted of second degree

identify theft for possession of Honda of Fife's financial information. The State concedes

this point, and we accept its concession. The proper remedy is to vacate one of the

underlying convictions for count I or count II. See In re Strandv, 171 Wn.2d 817, 819,

8 Clerk's Papers (CP) at 278-79. Counts I and II alleged Tillisy committed second degree identity theft for checks drawn on the account of Honda of Fife. CP at 278. Count V alleged Tillisy committed identity theft for checks drawn on the account of OK Kyung Yang. CP at 278-79. 9 CP at 220-25. 10CPat4. 11 CPat4. 12 CP at 6. 13 CP at 6. 14 CP at 6. 15 CP at 6. No. 69962-8-1 / 3

256 P.3d 1159 (2011) ("When a conviction violates double jeopardy principles, it must be

wholly vacated.").

Tillisy next asserts that the trial court erred by denying his request to represent

himself pro se. But as the State correctly points out, Tillisy did not bring a motion to

represent himself in the present case. Instead, Tillisy requested to proceed pro se in a

separate case in which he was being prosecuted in Snohomish County Superior Court.16

At a hearing on that superior court case, held on November 8, 2012, the only reference

to the present case was when the State told the trial court that Tillisy had another case

pending and informed the court of the trial date for that matter.17

The record before us on the current case reveals no motion to proceed pro se on

behalf of Tillisy. A request to proceed pro se must be made timely and stated

unequivocally. State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997). No timely

request was made here. Accordingly, this claim of error fails.

Tillisy next contends that the trial court abused its discretion by denying his motion

to dismiss the charges against him, which he raised at the conclusion of the State's

opening statement. Tillisy argues the State's opening statement did not assert that the

alleged crimes took place in the state of Washington.

A trial court has broad discretion to control the content of the parties' opening

statements. State v. Kroll, 87 Wn.2d 829, 835, 558 P.2d 173 (1976). "The opening

16 In this appeal, Tillisy filed a motion to supplement the record with the transcript of a November 8, 2012 hearing that took place in the separate superior court case (No. 12-1-01574-5). That case is linked to this appeal (State v. Tillisy. No. 70654-3-I). Supplemental (Supp.) RP at 1. A commissioner of this court granted Tillisy's motion to supplement the record. Both parties cite to the supplemental report of proceedings in their briefs and we consider it for purposes of this appeal. 17 Supp. RP at 27. No. 69962-8-1 / 4

statement is based upon the anticipated evidence and the reasonable inferences which

can be drawn therefrom." Kroll, 87 Wn.2d at 835 (citing State v. Aiken, 72 Wn.2d 306,

351, 434 P.2d 10 (1967)). The purpose of an opening statement is merely "to outline the

material evidence the State intends to introduce." Kroll, 87 Wn.2d at 834. "Charges

frame the issues; statements of counsel do not." State v. Gallagher, 15 Wn. App. 267,

270-71, 549 P.2d 499 (1976).

Tillisy contends on appeal, as he did at trial, that under Gallagher, the prosecutor

was required to state in opening statements that the charged crimes took place in

Washington, and the failure to do so mandated dismissal of the charges.

In Gallagher, the Court of Appeals affirmed the trial court's dismissal of two counts

alleged in the information, concluding that "it is clear beyond doubt that the special

prosecutor's [opening] statement affirmatively includes factual matters which constitute a

complete defense to counts 2 through 6 of the information." 15 Wn. App. at 275. The

court held that a trial court has authority to dismiss charges after the State's opening

statement "only when it is clear beyond doubt that the statement affirmatively includes

fact matter which constitutes a complete defense to the charge or expressly excludes fact

matter essential to a conviction." Gallagher, 15 Wn. App. at 270. The court explained

that "when some fact is clearly stated or admission is expressly made, leaving only an

isolated and determinative issue of law, the court may resolve that issue." Gallagher, 15

Wn. App. at 270. Contrary to Tillisy's assertion, Gallagher does not support the

proposition that a prosecutor's failure to mention the state of Washington in an opening

statement mandates dismissal of the charges. Tillisy's reliance on Gallagher is

unavailing. No. 69962-8-1 / 5

We remand with instructions to vacate one of the underlying convictions for count

I or II, and for resentencing. We otherwise affirm the judgment and sentence.

"TV* c^gy, ^

WE CONCUR:

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