State v. Ou

156 Wash. App. 899
CourtCourt of Appeals of Washington
DecidedJuly 19, 2010
DocketNo. 63454-2-I
StatusPublished
Cited by6 cases

This text of 156 Wash. App. 899 (State v. Ou) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ou, 156 Wash. App. 899 (Wash. Ct. App. 2010).

Opinion

Schindler, J.

¶1 A jury convicted Sal Ou of knowingly making a false or misleading material statement to a police officer in violation of RCW 9A.76.175. Ou contends the State had to charge him with refusal to give a name or address, or giving a false name or address, under the specific statute of RCW 46.61.020, instead of charging him under what he describes as the concurrent general statute of RCW 9A.76.175. Because refusal to give a name and address, or giving a false name or address, in violation of RCW [901]*90146.61.020 is not a statute that is concurrent with knowingly making a false or misleading material statement to a police officer in violation of RCW 9A.76.175, we affirm.

¶2 On September 5, 2008, Whatcom County Deputy Sheriff Ryan Bonsen pulled over a vehicle after learning that the license of the registered owner of the car, Sal Ou, was revoked and that Ou was subject to an ignition interlock device requirement.

¶3 In response to the Deputy Bonsen’s request for his driver’s license, vehicle registration, and proof of insurance, the driver said he did not have any identification with him. When Deputy Bonsen asked the driver for his name, the driver said his name was “Samlaey An” and spelled his name for the Deputy.

¶4 Deputy Bonsen twice asked the driver for his date of birth and address. Each time, the driver told the Deputy that he did not have the registration but gave Deputy Bonsen the title to the vehicle. The title listed Sal Ou as the owner. When Deputy Bonsen asked the driver if he was Sal Ou, the driver admitted that he was in fact Sal Ou.

¶5 Deputy Bonsen arrested Ou. After waiving his Miranda1 rights, Ou told Deputy Bonsen that he gave him the name of a friend of his instead of his own name “because he knew his license was revoked and that he had warrants and he didn’t want to be arrested for these crimes.”

¶6 The State charged Ou with criminal impersonation in the first degree in violation of RCW 9A.60.040(l)(a), driving with a suspended license, and operating a vehicle without an ignition interlock device.

¶7 At the end of the State’s case, the court granted Ou’s motion to dismiss the felony charge of criminal impersonation. But the court allowed the State to amend the information to charge Ou with the gross misdemeanor of knowingly making a false or misleading material statement in violation of RCW 9A.76.175. The jury convicted Ou of [902]*902knowingly making a false or misleading material statement to Deputy Bonsen, driving with a revoked license, and operating a vehicle without an ignition interlock device.2

¶8 On appeal, Ou contends that the State had to charge him with the specific misdemeanor offense of giving a false name or address to an officer in violation of RCW 46.61.020, rather than the crime of knowingly making a false or misleading material statement to a police officer in violation of RCW 9A.76.175.3 Ou argues that RCW 46.61.020 is a specific statute that is concurrent with what he describes as the general statute of RCW 9A.76.175.

¶9 This court reviews the question of whether two statutes are concurrent de novo. State v. Chase, 134 Wn. App. 792, 800, 142 P.3d 630 (2006). When a specific statute and a general statute punish the same conduct, the statutes are concurrent and the State can only charge under the specific statute. State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984); State v. Presba, 131 Wn. App. 47, 52, 126 P.3d 1280 (2005). This rule gives effect to legislative intent and ensures charging decisions comport with that intent. State v. Conte, 159 Wn.2d 797, 803, 154 P.3d 194 (2007); State v. Greco, 57 Wn. App. 196, 204, 787 P.2d 940 (1990); State v. Danforth, 97 Wn.2d 255, 258, 643 P.2d 882 (1982).

¶10 If a person can violate the specific statute without violating the general statute, the statues are not concurrent. State v. Heffner, 126 Wn. App. 803, 808, 110 P.3d 219 (2005). Statutes are concurrent only when every violation of the specific statute would result in a violation of the general statute. Chase, 134 Wn. App. at 800. As explained in State v. Crider, 72 Wn. App. 815, 818, 866 P.2d 75 (1994),

[903]*903The determinative factor is whether it is possible to commit the specific crime without also committing the general crime; not whether in a given instance both crimes are committed by the defendant’s particular conduct.

¶11 In determining whether two statutes are concurrent, we examine the elements of each of the statutes to ascertain whether a person can violate the specific statute without necessarily violating the general statute. Heffner, 126 Wn. App. at 808. Statutes are concurrent if all of the elements to convict under the general statute are also elements that must be proved for conviction under the specific statute. Presba, 131 Wn. App. at 52. Whether statutes are concurrent involves examination of the elements of the statutes, not the facts of the particular case. Chase, 134 Wn. App. at 802-03.

¶12 In Chase, the defendant argued the State had to charge him under the theft of rental property statute because based on the facts of the case, that statute was concurrent with the general first degree theft statute. Chase, 134 Wn. App. at 795. In rejecting the defendant’s argument, we held that the underlying facts in a particular case had no bearing on whether statutes were concurrent:

Chase argues that under the facts of this case, it was impossible for him to violate the first degree theft of rental property statute without violating the first degree theft statue. That may be true, but the question is whether all violations of the first degree theft of leased property statute are necessarily violations of the first degree theft statute. Because they are not, the statutes are not concurrent.

Chase, 134 Wn. App. at 802-03.

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156 Wash. App. 899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ou-washctapp-2010.