/F-ILEIN CLIRICI OFFICE _ . . . . COURr, ltATE OF WASHtm0N
~ IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Respondent, ) No. 87282-1 ) v. ) En Bane ) VIANNEY VASQUEZ, ) rJUL 2 5 ·2013 ) Filed Petitioner. ) )
WIGGINS, J.-This case squarely asks us to determine under what
circumstances we may infer an intent to injure or defraud under Washington's
forgery statute, RCW 9A.60.020(1 )(b). Vianney Vasquez had fake social security
and permanent resident cards, both in his own name. After a Safeway store security
guard found the cards in Vasquez's wallet following a search related to a shoplifting
incident, the security guard called the police. Vasquez was arrested and charged
with two counts of forgery under RCW 9A.60.020(1 )(b). A jury convicted him and the
Court of Appeals affirmed his convictions.
We hold that the State presented insufficient evidence that Vasquez
possessed the cards with an intent to injure or defraud, an essential element of the
forgery statute. We decline to infer that Vasquez intended to injure or defraud, as the
Court of Appeals did, because to do so would alleviate the State's burden of proving No. 87282-1
every element of the charged offense beyond a reasonable doubt. Accordingly, we
reverse the Court of Appeals and remand with instructions to vacate Vasquez's
conviction for forgery.
FACTS AND PROCEDURAL HISTORY
On July 28, 2010, Timothy Englund, a Yakima Safeway store security guard,
saw Vasquez take lotion off a shelf and squirt some onto his hands. Vasquez then
put the lotion bottle back on the shelf and went to the front of the store to browse the
movie selection. When Vasquez exited the store, Englund contacted him and asked
him to accompany Englund to the store's management office to fill out shoplifting
paperwork for using the lotion. Vasquez cooperated.
As part of the standard security procedure, Englund patted Vasquez down for
weapons and to look for a form of identification. During the pat-down, Englund found
Vasquez's wallet, which he removed from Vasquez's pocket and opened. Englund
found a social security card and a permanent resident card inside the wallet.
Englund asked Vasquez to recite the social security number on the social
security card; Vasquez was unable to do so. Englund also asked if the cards
belonged to Vasquez, to which Vasquez responded affirmatively. When Englund
asked where Vasquez obtained the cards, Vasquez said that he had purchased both
the social security and permanent resident cards from a friend in California for $50
each. Vasquez also told Englund that he came from California to Yakima to stay with
friends or family and might have told Englund that he was working in the area.
Englund proceeded to fill out paperwork pertinent to the shoplifting incident.
The paperwork included a statement that Englund had found a permanent resident
2 No. 87282-1
card and a social security card and that Vasquez had wrongly used the lotion. At
some point while he was filling out the paperwork, Englund sought the assistance of
a Spanish-speaking employee to ensure that Vasquez understood the forms, given
several confused responses from Vasquez. On the form Vasquez signed, Vasquez
indicated that he was not currently employed.
Because Englund could not verify Vasquez's identity, he called the police
department per standard store protocol. Police arrested Vasquez and the State
charged him with two counts of forgery.
In addition to Englund's testimony, the State presented witnesses from the
Social Security Administration and United States Immigration and Customs
Enforcement. These witnesses testified that Vasquez had never been issued a
social security card, that a social security card was necessary to obtain employment
in the United States, that a search in the legal permanent residents database under
Vasquez's name and date of birth disclosed no results, and that the permanent
resident card in Vasquez's possession did not contain the security features of
authentic cards. The trial court excluded any direct evidence of Vasquez's
immigration status.
At the close of the State's case, Vasquez moved to dismiss on sufficiency of
the evidence grounds, which the trial court denied. The defense then rested,
deciding not to present any testimony. A jury found Vasquez guilty of two counts of
forgery and Vasquez appealed.
The Court of Appeals affirmed Vasquez's conviction, reasoning that there was
enough evidence to infer that Vasquez possessed the cards with an intent to injure
3 No. 87282-1
or defraud, asking rhetorically, "why else would Mr. Vasquez have them." State v.
Vasquez, 166 Wn. App. 50, 53, 269 P.3d 370 (2012). In addition, the Court of
Appeals determined that the fact Vasquez might have told Englund that he had
worked in the area sufficed to demonstrate that Vasquez had used the cards to
injure or defraud an employer. We granted review. State v. Vasquez, 174 Wn.2d
1017, 282 P.3d 96 (2012).
ANALYSIS
We review the sufficiency of the evidence to prove the elements of an offense
by asking '""whether viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt."'" State v. Bencivenga, 137 Wn.2d 703, 706, 974
P.2d 832 (1999) (emphasis omitted) (quoting State v. Green, 94 Wn.2d 216, 221,
616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979))).
The Court of Appeals applied the incorrect standard of review when it stated
that "the evidence of intent to defraud [was] substantial when [it] consider[ed] the
reasonable inferences available to the jury." Vasquez, 166 Wn. App. at 52. We have
rejected a substantial evidence standard in determining the sufficiency of the
evidence because it does not require proof beyond a reasonable doubt. See Green,
94 Wn.2d at 221-22.
We conclude that the record before us discloses insufficient evidence to prove
Vasquez's intent to injure or defraud beyond a reasonable doubt. First, the Court of
Appeals' rhetorical question, "And here why else would Mr. Vasquez have them,"
4 No. 87282-1
Vasquez, 166 Wn. App. at 53, infers intent from mere possession. Such an inference
relieves the State of its burden to prove all elements of the crime of forgery beyond a
reasonable doubt. As various cases make clear, possession alone does not support
an inference of intent. Second, although Vasquez might have acknowledged
ownership of the forged cards, the evidence is equivocal as to whether Vasquez
intended to defraud Englund by convincing him that the cards were genuine.
Equivocal evidence cannot form the basis of an inference of intent to injure or
defraud. Finally, Englund's shaky recollection of Vasquez's statement from working
in the area does not support an inference that Vasquez used forged cards in
connection with employment. Beyond Englund's scant testimony, the State
presented no evidence that Vasquez had ever worked, was working, intended to
seek work in the area, or had ever used the forged cards in any way. Because the
evidence presented in this case is insufficient to demonstrate Vasquez's intent to
injure or defraud, we reverse the Court of Appeals and remand to vacate Vasquez's
conviction.
I. The State must prove intent to injure or defraud as an essential element of the crime of forgery-possession alone is not enough
Washington's forgery statute provides in pertinent part that "[a] person is guilty
of forgery if, with intent to injure or defraud: ... He or she possesses, utters, offers,
disposes of, or puts off as true a written instrument which he or she knows to be
forged." RCW 9A.60.020(1)(b). "Whenever an intent to defraud shall be made an
element of an offense, it shall be sufficient if an intent appears to defraud any
person, association or body politic or corporate whatsoever." RCW 10.58.040.
5 No. 87282-1
When intent is an element of the crime, "intent to commit a crime may be
inferred if the defendant's conduct and surrounding facts and circumstances plainly
indicate such an intent as a matter of logical probability." State v. Woods, 63 Wn.
App. 588, 591, 821 P.2d 1235 (1991). Though intent is typically proved through
circumstantial evidence, "[i]ntent may not be inferred from evidence that is 'patently
equivocal'." /d. at 592 (quoting State v. Bergeron, 105 Wn.2d 1, 20, 711 P.2d 1000
(1985); State v. Couch, 44 Wn. App. 26, 32, 720 P.2d 1387 (1986)). Possession
alone is not sufficient to infer intent to injure or defraud in forgery cases, but
possession together with "slight corroborating evidence" might be. State v. Esquivel,
71 Wn. App. 868, 870, 863 P.2d 113 (1993); see also State v. Ladely, 82 Wn.2d 172,
175, 509 P.2d 658 (1973); State v. Tinajero, 154 Wn. App. 745, 750, 228 P.3d 1282
(2009).
A. In possession-with-intent crimes, we do not draw inferences of intent based on mere possession
For other crimes where possession and intent are elements of the crime,
Washington courts do not permit inferences based on naked possession. Rather,
this court and the Court of Appeals have consistently required the State to prove
intent beyond a reasonable doubt. 1
Recently, in State v. Brockob, 159 Wn.2d 311, 318, 330-31, 150 P.3d 59
(2009), we considered whether a defendant who removed cold tablets containing
pseudoephedrine from packaging and placed the tablets into his pockets acted with
1 The legislature has defined inferences that may arise in some crimes, e.g., RCW 9A.46.11 0(4), 9A.52.040, 9A.52.060(1 ), 9A.56.096(1 ), 66.44.170, 77 .15.650(2), but has not established any inference of intent arising from the possession of forged documents.
6 No. 87282-1
the requisite intent to manufacture methamphetamine. We answered no,
determining that the State merely proved an intent to shoplift pseudoephedrine in
excess of the legal purchase limit. /d. at 331. In other words, we held that the "mere
assertion that [pseudoephedrine] is known to be used to manufacture
methamphetamine does not necessarily lead to the logical inference that Brockob
intended to do so, without more." /d. at 331-32.
The Court of Appeals has employed the same analysis in reviewing
convictions for possession of a controlled substance with intent to deliver,
consistently holding that bare possession of a controlled substance does not suffice
to support an inference of intent. For example, in State v. O'Connor, 155 Wn. App.
282, 290, 229 P.3d 880 (201 0), the Court of Appeals noted, "Mere possession of a
controlled substance, including quantities greater than needed for personal use, is
not sufficient to support an inference of intent to deliver"; rather, "[a]t least one
additional fact must exist, such as a large amount of cash or sale paraphernalia,
suggesting an intent to deliver." Because O'Connor had a large quantity of
marijuana, a sophisticated grow operation, and a scale, the court held that these
facts "support[ed] an intent-to-deliver inference to convict." /d. at 291.
Several other Court of Appeals cases support the rule that mere possession
of a controlled substance does not suffice, on its own, to support an inference of
intent to deliver. See, e.g., State v. Campos, 100 Wn. App. 218, 222, 998 P.2d 893
(2000) ("A police officer's opinion that a defendant possessed more drugs than
normal for personal use is insufficient to establish intent to deliver."); State v. Lopez,
79 Wn. App. 755, 768, 904 P.2d 1179 (1995) ("[E]ven possession of a large amount
7 No. 87282-1
of controlled substances, without some additional factor, is insufficient to establish
intent."), abrogated on other grounds by State v. Adel, 136 Wn.2d 629, 640, 965
P.2d 1072 (1998); State v. Davis, 79 Wn. App. 591, 594, 904 P.2d 306 (1995)
("[E]vidence of an intent to deliver must be sufficiently compelling that "'the specific
criminal intent of the accused may be inferred from the conduct where it is plainly
indicated as a matter of logical probability.""' (quoting State v. Kovac, 50 Wn. App.
117, 120,747 P.2d 484 (1987) (quoting State v. Delmarter, 94 Wn.2d 634,638,618
P.2d 99 (1980))).
Just as mere possession of a controlled substance does not support an
inference of an intent to deliver or manufacture, neither does mere possession of
forged identification cards support an inference of an intent to injure or defraud.
B. Both out-of-state and Washington authority requires evidence of intent to defraud beyond mere possession in the forgery context
Several non-Washington courts that have considered similar statutes have
refused to infer intent from mere possession of a forged instrument. These cases
hold that such inferences would conflate knowing possession with intent to defraud,
thus writing the intent-to-defraud element out of the criminal statute. These cases
support the proposition that the State must separately prove intent to injure or
defraud beyond a reasonable doubt.
Two New York cases are particularly helpful. In People v. Bailey, 13 N.Y.3d
67, 69, 915 N.Ed.2d 611, 886 N.Y.S.2d 666 (2009), the defendant was arrested for
attempting to pickpocket several patrons in midtown Manhattan restaurants. When
Bailey was searched following arrest, officers found three counterfeit $1 0 bills in his
8 No. 87282-1
pocket. /d. Bailey was subsequently charged with criminal possession of a forged
instrument, which required an intent to defraud. /d. at 69-70 (noting charge made
under McKINNEY's PENAL LAW § 170.30). The trial court found the evidence legally
sufficient, asking, '"[w]hy would Bailey, already embarked upon a brazen effort to
commit theft, carry currency in his pocket that he knew to be bogus unless his plan
was to pass it off to an unsuspecting storekeeper, newsvendor, or fast food
worker?"' Bailey, 13 N.Y.3d at 70 (alteration in original). The Court of Appeals
reversed, rejecting that an inference of intent to defraud could be drawn based on
Bailey's "presence in a shopping district, his possession of counterfeit bills, and his
larcenous intent." /d. at 72. Otherwise, noted the court, lower courts would
"effectively strip[] the element of intent from the statute and criminalize[] knowing
possession." /d.
Similarly, in People v. Brunson, 66 A.D.3d 594, 595, 888 N.Y.S.2d 22 (2009),
the "defendant possessed a state identity card on which a letter in defendant's name
and a digit in his identification number had been altered." The card was taken from
the defendant in a search by security guards following a shoplifting incident. /d. The
defendant was charged with criminal possession of a forged instrument in the
second degree, which required the State to prove intent to defraud. /d. Because the
card was only found in the defendant's possession, the court held that. the
"[d]efendant's knowing possession of the forged card was not sufficient to prove
intent, and he engaged in no conduct evincing an intent to use it." /d. The court also
refused to engage in speculation that the defendant intended to use the card to
misrepresent his identity in the event of his arrest. /d.
9 No. 87282-1
The Georgia Court of Appeals has come to the same conclusion. In
Velasquez v. State, 276 Ga. App. 527, 623 S.E.2d 721, 724 (2005), police arrested
the defendant for driving without a license. During a search incident to arrest,
officers found a forged North Carolina identification card. /d. The State charged
Velasquez with second degree forgery, a crime that specifically requires an intent to
defraud. /d. at 723. The court noted that "[i]ntent to defraud is most commonly
proved by showing delivery or use of the writing, or some other associated writing."
/d. Without such evidence, the court opined,
When stopped by the police, Velasquez did not present the North Carolina identification card; it was only found in a search of his person after his arrest. The State did not show that Velasquez had ever presented the identification card to anyone at any time; all that was shown was mere possession.
/d. at 724.
In People v. Miralda, 981 P.2d 676, 677 (Colo. Ct. App. 1999), an officer
making a traffic stop shone a light on a passenger's wallet as the passenger
rummaged through it, seeing a resident alien card. The officer pointed to the card
and stated "green card," to which the defendant responded by handing the officer
the card. /d. The card was forged and a later inventory search disclosed a forged
social security card. /d. The State charged the defendant with possessing and
uttering a forged document, arguing that the act of handing the card over to the
officer upon demand constituted an intent to defraud. /d. The court overturned the
defendant's conviction, noting that while intent may be established from
circumstantial evidence and reasonable inference, no circumstances established
more than mere possession. /d. at 679. Furthermore, the court stated,
10 No. 87282-1
There was no proof that defendant had ever used either of the cards for any purpose (such as support for a job application), nor was there any proof that defendant's status was such that it could be inferred that he would be required to use either instrument to misrepresent that status.
/d.
These out-of-state cases are consistent with Washington authority. In
Washington, where an intent to injure or defraud has been proved, the defendants
actually demonstrated intent to pass off their forged documents as authentic. In
Esquivel, the defendants presented false identification upon the request of police
officers, showing that they intended to defraud police officers by passing forged
documents off as true. 71 Wn. App. at 869. In State v. Tinajero, 154 Wn. App. 745,
748, 228 P.3d 1282 (2009), the defendant had presented his false identification to
his employer in order to obtain employment. Because the defendants in Tinajero and
Esquivel actually presented their forged documents in hopes of defrauding law
enforcement officers or employers, the Court of Appeals found satisfactory evidence
of intent to injure or defraud. Esquivel, 71 Wn. App. at 872; Tinajero, 154 Wn. App.
at 750. Like several of our sister states, Washington courts have never held that
bare possession suffices to support an inference of intent to injure or defraud.
C. Vasquez's possession of forged cards alone does not show an intent to injure or defraud
Consistent with both Washington and out-of-state law, the State did not
demonstrate that Vasquez acted with the requisite intent to injure or defraud. Here,
the forged cards were only found in Vasquez's possession. The fact that a security
officer pulled the cards out of Vasquez's wallet does not suffice to infer an intent to
injure or defraud. No rational juror could find otherwise.
11 No. 87282-1
The Court of Appeals affirmed Vasquez's conviction for forgery based on bare
possession. It believed that as a matter of logical probability, "the unexplained
possession of a forged instrument makes out a prima facie case of guilt against the
possessor .... " Vasquez, 166 Wn. App. at 53. The Court of Appeals went on to ask,
"And here why else would Mr. Vasquez have them," noting that "the only value of the
cards would be to falsely represent Mr. Vasquez's right to legally be in the country."
/d. This holding whisks away the State's burden to prove intent to injure or defraud
beyond a reasonable doubt, an essential element of the crime of forgery. RCW
9A.60.020(1 )(b). It presumes that persons who possess knowingly forged
documents, and particularly forged immigration documents, intend to injure or
defraud by virtue of possession alone. We reject the appellate court's reasoning and
hold that the mere possession of forged documents, without evidence of an intent to
injure or defraud, cannot sustain a forgery conviction.
Amicus Curiae Washington Association of Prosecuting Attorneys (WAPA)
contends that if we were to vacate Vasquez's conviction, we would be grafting a
"use" requirement onto the crime of forgery. See Br. of Amicus WAPA at 9-11. In
other words, amicus WAPA would not require Vasquez to actually use the forged
documents but only to intend to injure or defraud by possessing them. We agree
with amicus WAPA's general proposition that actual use of forged documents is not
required to demonstrate an intent to injure or defraud. But unexplained possession
of a forged document is not circumstantial evidence that supports an inference of
such intent. Rather, we hold that the State must set forth some evidence beyond
12 No. 87282-1
naked possession to prove a defendant's intent to injure or defraud beyond a
reasonable doubt. The State failed to do so in this case.
II. The evidence the State presented is patently equivocal as regards Vasquez's intent to injure or defraud
We do not infer criminal intent from evidence that is patently equivocal.
Bergeron, 105 Wn.2d at 20; Woods, 63 Wn. App. at 592. Rather, inferences of intent
may be drawn only "from conduct that plainly indicates such intent as a matter of
logical probability." Bergeron, 105 Wn.2d at 20. Vasquez's answers to Englund's
questions about the forged cards demonstrate ambiguity as to whether Vasquez
intended to defraud Englund. As such, they are patently equivocal and do not
support an inference of intent to injure or defraud.
From the record before us, it is unclear whether Vasquez intended to convince
Englund that the social security and permanent resident cards were genuine or
whether Vasquez was merely acknowledging his ownership of the cards. Englund's
testimony demonstrates this ambiguity:
Q. When you first took the cards out of the wallet and thought that were his 10, did the defendant make any comments about those 10?
A. Other than me asking if this is his identity. Once I pull something out of a wallet, I always ask if it's their identity or their social security card.
Q. And what did he respond?
A. He said, yes.
2 Verbatim Report of Proceedings at 48-49. From this testimony, Vasquez could
have been responding that the cards were his or that the cards properly identified
13 No. 87282-1
him by name; on the other hand, Vasquez could have been attempting to convince
Englund that the cards were genuine. It is not clear. The redirect examination of
Englund reveals similar ambiguities:
Q. Now, also you indicated before that at first he stated the cards were his cards when you first obtained the cards.
A Correct.
Q. How did he state that? What did he say to you?
A I asked the question if this is his identity or his card. He replied, yes.
Q. Did you-were you talking about both cards or just the social security card?
A Both cards, correct.
/d. at 76. Again, Englund's testimony is unclear as to whether Vasquez meant to
respond that he simply owned the cards or meant to persuade Englund that the
cards were his legitimate social security and permanent resident cards. Englund's
testimony does not indicate precisely what Vasquez meant. It is therefore patently
equivocal evidence and cannot serve as a basis for inferring Vasquez's intent to
injure or defraud.
The ambiguity of the exchange between Englund and Vasquez is exacerbated
by an apparent language barrier. Although Englund testified that Vasquez appeared
to understand his questions and responded in English, Englund also stated that
Vasquez had given several confused responses to his questions. Indeed, for this
reason, Englund believed it was necessary to involve a Spanish-speaking employee
14 No. 87282-1
in his communications with Vasquez. The language barrier between Vasquez and
Englund casts further doubt on whether Vasquez intended to defraud Englund.
Furthermore, Vasquez did not behave as someone who intended Englund to
be defrauded by the forged cards. When Englund asked where Vasquez obtained
the cards, Vasquez freely told Englund that he got the cards for $50 each from a
friend in California. Vasquez's ready admission that the cards were fakes belies an
inference that Vasquez intended to defraud Englund. In short, the record here is not
clear as to whether Vasquez intended to defraud Englund. Such patently equivocal
evidence cannot give rise to an inference of an intent to injure or defraud. Bergeron,
105 Wn.2d at 19-20. Accordingly, we hold that this evidence was insufficient to
convince a rational juror that Vasquez acted with intent to injure or defraud beyond a
reasonable doubt.
Ill. The tenuous evidence that Vasquez was working is insufficient to support the contention that Vasquez used forged documents to obtain work
The Court of Appeals held that since Vasquez might have mentioned to
Englund that he had worked in the area, the jury could infer that he possessed
forged documents with an intent to injure or defraud a third party. Vasquez, 166 Wn.
App. at 53. Such generalized intent to injure or defraud may be shown if "an intent
appears to defraud any person, association or body politic or corporate whatsoever,"
RCW 10.58.040, and may also be inferred by the facts and circumstances that
demonstrate intent as a matter of logical probability, see Bergeron, 105 Wn.2d at 4.
However, inferences based on circumstantial evidence must be reasonable and
cannot be based on speculation. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
15 No. 87282-1
Ct. 2781, 61 L. Ed. 2d 560 (1979) (holding that triers of fact may draw only
reasonable inferences); Bailey v. Alabama, 219 U.S. 219, 31 S. Ct. 145, 55 L. Ed.
191 (1911) ("To justify conviction, it was necessary that this intent [to injure or
defraud] should be established by competent evidence, aided only by such
inferences as might logically be derived from the facts proved, and should not be the
subject of mere surmise or arbitrary assumption."). We hold that there was
insufficient evidence to demonstrate Vasquez's intent to injure or defraud a third
party because the record discloses no evidence that Vasquez had worked in the
United States or that he had used the forged cards in connection with employment.
Though Englund testified that Vasquez said he had worked in the area,
Englund also indicated that he could not remember exactly what Vasquez said. On
the shoplifting forms, Vasquez specified that he was· not currently working. Aside
from Englund's equivocal comment that Vasquez mentioned he had worked, the
State presented no other evidence that Vasquez had sought work, was working, or
planned to work in the area. Neither did the State offer any evidence suggesting that
Vasquez had used the forged social security and permanent resident cards to obtain
employment or for any other purpose. Englund's uncertain memory of what Vasquez
stated with regard to working was insufficient to support a reasonable inference that
Vasquez intended to defraud an employer with the forged cards.
Even if we assume that Vasquez was employed in the United States, there is
no evidence that Vasquez used these specific forged cards to obtain employment.
Conjecture about how or whether Vasquez used the specific cards Englund found
does not support a reasonable inference that Vasquez possessed these cards with
16 No. 87282-1
an intent to injure or defraud. We conclude that this evidence was insufficient to
support the jury's finding that Vasquez acted with intent to injure or defraud beyond a
CONCLUSION
The Court of Appeals' holding assumes that the only reason a person
possesses forged documents is because he or she intends to injure or defraud
someone. But by requiring proof of intent to injure or defraud, the legislature has
determined that mere possession of forged documents is not enough to sustain a
forgery conviction. Rather, as courts both in- and outside Washington have held, the
State must prove intent to injure or defraud beyond a reasonable doubt. The
evidence that the State presented to demonstrate intent to injure or defraud was not
sufficient because it either was patently equivocal or based on rank speculation.
Thus, even when viewing the evidence in this case in the light most favorable to the
State, we conclude that no rational juror could have found an intent to injure or
defraud beyond a reasonable doubt. Accordingly, we reverse the Court of Appeals
and remand with instructions to vacate Vasquez's convictions for forgery.
17 No. 87282-1
WE CONCUR.