Soule, J.
— Defendant was charged with a violation of RCW 69.50.403(a)(3)(iv)1 by an information alleging
That he, the said Curtis L. Bundy, in Grays Harbor County, state of Washington, on or about the 5th day of August, 1975, did wilfully, unlawfully, and feloniously attempt to obtain a controlled substance by the use of a false name or the giving of a false address.
The State appeals from an order of dismissal entered February 6, 1976. We dismiss the appeal.
At the trial, evidence was produced that the defendant had, on August 5, 1975, presented a pharmacist with a prescription for Preludin Endurettes, a Class II controlled substance. The prescription order was on the form of Dr. C. Timothy Smith issued to a patient named Ted Coddington whose residence was given as 145 East Spruce St., Monte-sano, Washington. The prescription was dated August 5, 1975.
Because of past information received from the Aberdeen police, the pharmacist was suspicious of the name Cod-dington. She called the police who arrived within a very few [699]*699minutes. On seeing the police, defendant attempted to leave the pharmacy, but was arrested and the prescription form was turned over to the arresting officers.
Lieutenant Gerald Chancellor of the Aberdeen Police Department, testified that he knew Ted Coddington and knew that Coddington was in California during the week preceding August 5, 1975. The witness also testified that his investigation revealed that there is no such address as 145 East Spruce St., Montesano. He further testified that he had known the defendant from previous contacts and knew that for some time prior to August 5 the defendant had resided at 304 West Curtis, Apt. No. 1, Aberdeen, Washington.
After his arrest, defendant gave a written statement to the police which was admitted into evidence. In that statement, he confessed that he had used the name of Ted Cod-dington ever since he had been going to Dr. Smith, a period of about 4 months, and had also used the Spruce Street address, but the statement does not specify the street number on Spruce Street.
At the close of the State's evidence, defendant challenged the sufficiency of the evidence by moving to dismiss. Defendant argued that there was no proof that the name of Ted Coddington was not a legally assumed name rather than a "false" name, and that there was no testimony that the defendant gave a "false" name or a false address for the purpose of obtaining a prescription.
The State responded by urging that it had put on a prima facie case that, as to Curtis Bundy, the name of Ted Coddington was false and that the State should not be required to anticipate defensive matters. The court then denied the motion pending consideration of authorities cited by the parties. Thereupon, defendant elected to rest without putting on any additional evidence and the court took the matter under advisement.
The trial judge issued a memorandum opinion in which he expressed the view that under RCW 69.50.403(a)(3)(iv), an intent to perpetrate a fraud must be shown. He further [700]*700found that the evidence in this case disclosed untruth, but did not disclose an act designedly untrue and deceitful, or done with an intent to defraud. The closing sentence of the opinion states:
I find the statute to be constitutional, but the evidence insufficient to sustain a conviction. The motion to dismiss is granted.
That the insufficiency of the evidence was the basis for the motion for dismissal and the order granting it is made even more clear from the following excerpt from the order of February 6, 1976, in which the court stated:
[A]nd the defendant having made a motion to dismiss upon insufficiency of evidence to sustain a conviction, and the Court having heard the argument of counsel and in all things being fully advised, now, therefore, it is hereby
Ordered, that the Information in the above entitled matter charging the defendant with the crime of Attempting to Obtain a Controlled Substance by the Use of a False Name or the Giving of a False Address is hereby dismissed with prejudice and the . . .
Two questions are presented by this appeal. One, did the trial court correctly construe RCW 69.50.403? Two, is the order of dismissal after the defense has rested, the legal equivalent of an acquittal so that an appeal by the State is barred by the double jeopardy clause of the fifth amendment to the United States Constitution2 and article 1, section 9 of the Washington State Constitution?
Because our answer to the second question is yes, we find it unnecessary to consider the first. However, we will assume, for the purpose of this decision, that the trial court's construction of the statute was indeed erroneous.
The mere fact the final action was denominated an order of dismissal does not prevent it from being the legal equivalent of an acquittal. A trial judge's characterization of his own action cannot control the classification of that [701]*701action. United States v. Scott, 437 U.S. 82, 97, 57 L. Ed. 2d 65, 98 S. Ct. 2187, 2196-97 (1978).
Scott further defines an acquittal as occurring when
"the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged." Martin Linen, supra, at 571.[3]
In making its ruling, the court stated that the evidence was insufficient to sustain a conviction. To reach such a conclusion, the trial judge necessarily had to weigh the evidence, unless, perchance, he overlooked it, because the record contains several pieces of evidence which could have supported an inference of guilty intent.
The defendant's attempted flight when the police arrived at the pharmacy is evidence of consciousness of guilt and thus of guilt itself. State v. Baxter, 68 Wn.2d 416, 413 P.2d 638 (1966); State v. Nichols, 5 Wn. App. 657, 491 P.2d 677 (1971); 2 J. Wigmore, Evidence § 276, at 111 (3d ed. 1940). The effort to flee need be no more than a few steps taken on the approach of the police. State v. Garcia, 83 N.J. Super. 345, 199 A.2d 860 (1964).
The use of a false name by the defendant could also have been used to infer the guilty knowledge. United States v. Sutton, 446 F.2d 916 (9th Cir. 1971), cert. denied, 404 U.S. 1025, 30 L. Ed. 2d 675, 92 S. Ct. 699 (1972). 2 J. Wigmore, Evidence, supra.
Free access — add to your briefcase to read the full text and ask questions with AI
Soule, J.
— Defendant was charged with a violation of RCW 69.50.403(a)(3)(iv)1 by an information alleging
That he, the said Curtis L. Bundy, in Grays Harbor County, state of Washington, on or about the 5th day of August, 1975, did wilfully, unlawfully, and feloniously attempt to obtain a controlled substance by the use of a false name or the giving of a false address.
The State appeals from an order of dismissal entered February 6, 1976. We dismiss the appeal.
At the trial, evidence was produced that the defendant had, on August 5, 1975, presented a pharmacist with a prescription for Preludin Endurettes, a Class II controlled substance. The prescription order was on the form of Dr. C. Timothy Smith issued to a patient named Ted Coddington whose residence was given as 145 East Spruce St., Monte-sano, Washington. The prescription was dated August 5, 1975.
Because of past information received from the Aberdeen police, the pharmacist was suspicious of the name Cod-dington. She called the police who arrived within a very few [699]*699minutes. On seeing the police, defendant attempted to leave the pharmacy, but was arrested and the prescription form was turned over to the arresting officers.
Lieutenant Gerald Chancellor of the Aberdeen Police Department, testified that he knew Ted Coddington and knew that Coddington was in California during the week preceding August 5, 1975. The witness also testified that his investigation revealed that there is no such address as 145 East Spruce St., Montesano. He further testified that he had known the defendant from previous contacts and knew that for some time prior to August 5 the defendant had resided at 304 West Curtis, Apt. No. 1, Aberdeen, Washington.
After his arrest, defendant gave a written statement to the police which was admitted into evidence. In that statement, he confessed that he had used the name of Ted Cod-dington ever since he had been going to Dr. Smith, a period of about 4 months, and had also used the Spruce Street address, but the statement does not specify the street number on Spruce Street.
At the close of the State's evidence, defendant challenged the sufficiency of the evidence by moving to dismiss. Defendant argued that there was no proof that the name of Ted Coddington was not a legally assumed name rather than a "false" name, and that there was no testimony that the defendant gave a "false" name or a false address for the purpose of obtaining a prescription.
The State responded by urging that it had put on a prima facie case that, as to Curtis Bundy, the name of Ted Coddington was false and that the State should not be required to anticipate defensive matters. The court then denied the motion pending consideration of authorities cited by the parties. Thereupon, defendant elected to rest without putting on any additional evidence and the court took the matter under advisement.
The trial judge issued a memorandum opinion in which he expressed the view that under RCW 69.50.403(a)(3)(iv), an intent to perpetrate a fraud must be shown. He further [700]*700found that the evidence in this case disclosed untruth, but did not disclose an act designedly untrue and deceitful, or done with an intent to defraud. The closing sentence of the opinion states:
I find the statute to be constitutional, but the evidence insufficient to sustain a conviction. The motion to dismiss is granted.
That the insufficiency of the evidence was the basis for the motion for dismissal and the order granting it is made even more clear from the following excerpt from the order of February 6, 1976, in which the court stated:
[A]nd the defendant having made a motion to dismiss upon insufficiency of evidence to sustain a conviction, and the Court having heard the argument of counsel and in all things being fully advised, now, therefore, it is hereby
Ordered, that the Information in the above entitled matter charging the defendant with the crime of Attempting to Obtain a Controlled Substance by the Use of a False Name or the Giving of a False Address is hereby dismissed with prejudice and the . . .
Two questions are presented by this appeal. One, did the trial court correctly construe RCW 69.50.403? Two, is the order of dismissal after the defense has rested, the legal equivalent of an acquittal so that an appeal by the State is barred by the double jeopardy clause of the fifth amendment to the United States Constitution2 and article 1, section 9 of the Washington State Constitution?
Because our answer to the second question is yes, we find it unnecessary to consider the first. However, we will assume, for the purpose of this decision, that the trial court's construction of the statute was indeed erroneous.
The mere fact the final action was denominated an order of dismissal does not prevent it from being the legal equivalent of an acquittal. A trial judge's characterization of his own action cannot control the classification of that [701]*701action. United States v. Scott, 437 U.S. 82, 97, 57 L. Ed. 2d 65, 98 S. Ct. 2187, 2196-97 (1978).
Scott further defines an acquittal as occurring when
"the ruling of the judge, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged." Martin Linen, supra, at 571.[3]
In making its ruling, the court stated that the evidence was insufficient to sustain a conviction. To reach such a conclusion, the trial judge necessarily had to weigh the evidence, unless, perchance, he overlooked it, because the record contains several pieces of evidence which could have supported an inference of guilty intent.
The defendant's attempted flight when the police arrived at the pharmacy is evidence of consciousness of guilt and thus of guilt itself. State v. Baxter, 68 Wn.2d 416, 413 P.2d 638 (1966); State v. Nichols, 5 Wn. App. 657, 491 P.2d 677 (1971); 2 J. Wigmore, Evidence § 276, at 111 (3d ed. 1940). The effort to flee need be no more than a few steps taken on the approach of the police. State v. Garcia, 83 N.J. Super. 345, 199 A.2d 860 (1964).
The use of a false name by the defendant could also have been used to infer the guilty knowledge. United States v. Sutton, 446 F.2d 916 (9th Cir. 1971), cert. denied, 404 U.S. 1025, 30 L. Ed. 2d 675, 92 S. Ct. 699 (1972). 2 J. Wigmore, Evidence, supra. See also State v. Miller, 164 Wash. 441, 2 P.2d 738 (1931).
Moreover, the defendant's own written statement (admitted into evidence) asserted that he had at one time rented an apartment at the Spruce Street address. However, Lt. Chancellor testified that no such address existed in Montesano. Certainly, evidence of the use of such a false address in connection with the use of a false name, would support, though not compel, an inference of guilty knowledge, i.e., an intent to defraud.
[702]*702Such an inference of guilty knowledge was particularly permissible when considered with the additional testimony of the pharmacist who stated that when she was presented with the prescription order, she verified the address with the defendant. She asked him if it was a current address. Thus, although the address conceivably, under defendant's theory, could have been his legitimate address of record 4 months previously when he first visited Dr. Smith, it clearly was not his address on August 5. Even under the trial court's interpretation of RCW 69.50.403(a)(3)(iv), defendant's statement to the pharmacist that it was correct was a false statement at that time which would support an inference that it was made intentionally for the purpose of obtaining the drugs through deceitful means and in violation of the law.
These pieces of evidence, if viewed in the light most favorable to the State,4 would support a finding of the intent to defraud which the trial court felt was required by the statute and would have been sufficient to make out a prima facie case for the prosecution even under the court's interpretation of the statute. As a result, the trial court's order of dismissal could only have been based upon a factual resolution of the merits of the case.
Since a factual resolution was made, the order of dismissal is the legal equivalent of an acquittal and the double jeopardy clause of the United States Constitution and also of the Constitution of the State of Washington bars this appeal under the authority not only of United States v. Scott, supra, but of State v. Ridgley, 70 Wn.2d 555, 424 P.2d 632 (1967).
It makes no difference that the ruling of the court may have resulted from an erroneous interpretation of governing legal principles. Such an error affects the accuracy of a determination, but it does not alter its essential character [703]*703as a judgment of acquittal. United States v. Scott, supra; Sanabria v. United States, 437 U.S. 54, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978).
The appeal is dismissed.
Pearson, C.J., concurs.