STATE v. ALLENBACH (2006)

PUBLISHED IN PART OPINION

 ¶ 1 James Allenbach appeals his forgery and second degree identity theft convictions.   He argues that (1) the identity theft definition statute, RCW 9.35.005(1), is unconstitutionally vague in its definition of “financial information”;  (2) the trial court erred in admitting evidence of Allenbach's drug habit and drug debt as his reason for presenting the forged check;  (3) the trial court erred by instructing the jury on alternative means of committing identity theft;  (4) there was insufficient evidence to support both convictions;  and (5) he had ineffective assistance of counsel.   We affirm.

FACTS

I. Forgery and Identity Theft

¶ 2 James Allenbach presented a check for $450 at the Washington Mutual Bank in Clark County.   The check was drawn on the account of Charles Brown, payable to Allenbach.   Brown had never received his new checks in the mail, he had not written a previously cashed check from this new batch of checks, he did not know or authorize Allenbach to use his checks, and he had never written any check payable to Allenbach, including this one.   Along with the check, Allenbach presented two forms of identification-his driver's license and his credit card.

 ¶ 3 Because of the amount, the teller attempted to verify the maker's signature on the check against the account holder's signature on file with the bank, noticed that the signatures did not match, and informed Allenbach that she was going to call Brown to verify the check.   Allenbach appeared nervous.   According to Allenbach, he told the teller that the check maker was in a car in the parking lot and that he would retrieve him to clear up the situation.   While the teller was on the phone with Brown, Allenbach (1) left the bank;  (2) went outside to a parked car;  (3) began conversing with a person in the car, who, according to Allenbach, was a drug dealer named “Hector”;  and (4) left in the car shortly thereafter, without returning for the check, his driver's license, or his credit card, all of which he left behind with the teller in the bank.   The teller wrote down the license plate number.

¶ 4 Brown confirmed to the teller that he had not written the check to Allenbach, nor did he know Allenbach.   The teller phoned the police.   When Clark County Sheriff's Detective Sample and Deputy Kendall arrived, he collected the check, Allenbach's driver's license, and credit card from the teller, and the license plate number of the car in which Allenbach had driven away.   In addition to Brown's account number, the check contained his personal information, including his name and address.

¶ 5 Sample and Kendall went to Allenbach's home to talk to him about the incident.   Although he appeared nervous and “jittery,” Allenbach agreed to talk with them.   Allenbach admitted that he had been at the bank earlier that day and had left behind his credit card, his driver's license, and the check.   He explained that (1) he had received the check from “Hector,” an acquaintance and former co-employee;  (2) he was cashing the check for Hector;  (3) he had previously cashed a similar check for Hector at a different Washington Mutual Bank branch without incident;  (4) he was cashing the checks for Hector (a) because Hector had trouble with his identification (Allenbach's initial explanation), and (b) to pay off a drug debt he owed to Hector for his methamphetamine habit (Allenbach's later explanation); ¹  and (5) he did not know how to contact Hector, but Hector usually contacted him near the Wal-Mart on Highway 99.   The officers then left Allenbach's home ² to investigate Hector.

¶ 6 Unsuccessful in locating Hector, Sample and Kendall returned to Allenbach's home after learning that Allenbach had cashed a different check for $425, also drawn on Brown's account, at another Washington Mutual Bank branch.   Allenbach (1) met them at the door, (2) instantaneously stated that he and his wife wished to apologize and to repay Brown the $425 drawn from Brown's account with the earlier check, and (3) told the officers he did not know where Hector lived, but he had notified Hector that he (Allenbach) would no longer be purchasing drugs from Hector or communicating with him.

¶ 7 According to Allenbach's later trial testimony, after he left the bank (1) he had learned from Hector that the check was bad, (2) Hector had threatened him, and (3) he did not tell the officers where to find Hector because Hector was a drug dealer and he (Allenbach) feared for the safety of himself and his family.

II. Procedure

¶ 8 The State charged Allenbach with one count of forgery, RCW 9A.60.020(1)(a)(b), and one count of second degree identity theft, RCW 9.35.020(3).   The trial court denied Allenbach's motion to suppress.   Both attorneys took active roles in drafting the jury instructions.   Neither objected to any jury instruction that the trial court gave.   The jury convicted Allenbach as charged.   The trial court denied his motion for a new trial and arrest of judgment.

¶ 9 Allenbach appeals.

 ANALYSIS

I. Identity Theft Statutes

¶ 10 Allenbach argues that RCW 9.35.005's definition of “financial information” is unconstitutionally vague ³ as applied, because it does not apprise citizens with fair warning of what conduct is prohibited.⁴  We disagree.

A. Standard of Review

 ¶ 11 Construction of a statute is a question of law, which we review de novo under the error of law standard.  Pasco v. Pub. Employment Relations Comm., 119 Wash.2d 504, 507, 833 P.2d 381 (1992), Inland Empire Distrib. Sys., Inc. v. Utils. & Transp. Comm, 112 Wash.2d 278, 282, 770 P.2d 624 (1989).   The party asserting a vagueness challenge bears the heavy burden of proving the statute's unconstitutionality beyond a reasonable doubt.   City of Spokane v. Douglass, 115 Wash.2d 171, 177, 795 P.2d 693 (1990).   The challenger overcomes the presumption of the statute's constitutionality only in exceptional cases.  City of Seattle v. Eze, 111 Wash.2d 22, 28, 759 P.2d 366 (1988).

 ¶ 12 The due process vagueness doctrine serves two important purposes:  “first, to provide citizens with fair warning of what conduct they must avoid;  and second, to protect them from arbitrary, ad hoc, or discriminatory law enforcement.”  State v. Halstien, 122 Wash.2d 109, 117, 857 P.2d 270 (1993).   Under the due process clause,⁵ a criminal prohibition is void for vagueness if it fails either (1) to define the offense with sufficient definiteness such that  ordinary people can understand what conduct is prohibited, or (2) to provide ascertainable standards of guilt to protect against arbitrary enforcement.  Douglass, 115 Wash.2d at 178, 795 P.2d 693.

 ¶ 13 We do not look at the language of a challenged statute in a vacuum;  rather, we consider its entire context.   A statute is not unconstitutional if the general area of conduct against which it is directed is made plain.   Nonetheless, strict specificity is not required.   The exact point where actions cross the line into prohibited conduct need not be predicted so long as persons of ordinary intelligence can understand a penal statute, notwithstanding some possible areas of disagreement.  Seattle v. Webster, 115 Wash.2d 635, 643, 802 P.2d 1333 (1990), cert denied, 500 U.S. 908, 111 S.Ct. 1690, 114 L.Ed.2d 85 (1991).

B. RCW 9.35.005-Identity Theft

¶ 14 RCW 9.35.020 proscribes as identity theft:  knowingly obtaining, possessing, using, or transferring a means of another's identification or financial information with the intent to commit or to aid any crime.⁶  The challenged statute, RCW 9.35.005(1), defines “financial information” as follows:

(1) “Financial information” means any of the following information identifiable to the individual that concerns the amount and conditions of an individual's assets, liabilities, or credit:

(a) Account numbers and balances;

(b) Transactional information concerning an account;  and

(c) Codes, passwords, social security numbers, tax identification numbers, driver's license or permit numbers, state identicard numbers issued by the department of licensing, and other information held for the purpose of account access or transaction initiation.

RCW 9.35.005(1) thus provides a clear list of specific types of information that qualify as “financial information” for purposes of committing the crime of identity theft under RCW 9.35.020.

 ¶ 15 Allenbach argues that the RCW 9.35.005(1)(a) phrase “account numbers and balances” is insufficient to apprise citizens that a blank check qualifies as “financial information” for purposes of identity theft.⁷  We disagree.

¶ 16 First, in our view, reading the plain language of RCW 9.35.005(1) subsection (a), a reasonable person of ordinary intelligence would understand that a blank check,  which bears the account number and owner's name, qualifies as “financial information.”   Second, reading subsection (a) in context, we note that RCW 9.35.005(1) includes the following other definitions of “financial information”:  “[t]ransactional information concerning an account,” subsection (b), and “other information held for the purpose of account access,” listing multiple specific examples.   Thus, even in the unlikely event that a person would not understand the proscribed conduct from the subsection (a) alone, certainly a reasonable person would understand the proscribed conduct from reading all three RCW 9.35.005(1) definitions of “financial information” together with RCW 9.35.020, which defines the crime of identity theft with specific reference to possession or use of another's “financial information,”

¶ 17 Third, and most importantly, we adhere to the well-settled rule that we must construe the law to avoid an absurd result.  State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003).   In essence, Allenbach argues that in order to convict him under the RCW 9.35.005(1)(a) definition of “financial information,” the State had to prove that he criminally possessed both the account number and the bank account balance, not merely the account number on a blank check.   In our view, it would be an absurd construction of the statute and the Legislature's intent in criminalizing identity theft were we to read RCW 9.35.005(1)(a), as Allenbach suggests, such that a person is guilty of identity theft by possessing, obtaining, using, or transferring another's check with intent to commit a crime only if that person also has in his possession the account's balance.

¶ 18 We hold, therefore, that Allenbach has failed to meet his burden of proving beyond a reasonable doubt that RCW 9.35.005(1)(a) is unconstitutionally vague either as applied or otherwise.

¶ 19 Affirmed.

¶ 20 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder  shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

II. Jury Instructions

¶ 20 In a related argument, Allenbach argues that (1) the trial court erred by instructing the jury that financial information means any information that is identifiable to the individual that concerns account numbers only, when the statute defines “financial information” as any information that is identifiable to an individual that concerns “account numbers and balances ”;  (2) this instructional error removed an essential element from the proof required for conviction, resulting in a manifest constitutional error-violation of his due process rights;  and (3) therefore, CrR 6.15(c) does not preclude appellate review.8

¶ 21 Allenbach failed to challenge this instruction below.   And because we reject Allenbach's reading of the statute in a manner that would make it unconstitutional, his argument is not one of constitutional magnitude that we may address for the first time on appeal.   Thus, we do not further address the merits of this argument.

A. CrR 6.15(c)

¶ 22 The general rule is that in order to preserve a challenge to jury instructions, the party must object and state the reasons for objection on the record in the trial court.  CrR 6.15(c), State v. Salas, 127 Wash.2d 173, 181-82, 897 P.2d 1246 (1995).   Where the party fails to object, the jury instructions become the law of the case.  State v. Hickman, 135 Wash.2d 97, 102, 954 P.2d 900 (1998).   Allenbach's failure to object to the jury instructions at trial triggers the CrR 6.15(c) prohibition to his challenging the instructions for the first time on appeal, except in the context of his companion argument that his failure to challenge the instructions below was the result of ineffective assistance of counsel. 9  State v. Aho, 137 Wash.2d 736, 744-45, 975 P.2d 512 (1999).   Thus, we address the issue only in the ineffective assistance of counsel context.

B. Effective Assistance of Counsel.

¶ 23 Allenbach argues that his trial counsel was ineffective because he failed (1) to object to jury instruction number 6,10 and (2) to ask the trial court to give a limiting instruction to the jury about Allenbach's drug debt to Hector.   Again, we disagree.

1. Standard of Review

¶ 24 Both the federal and state constitutions guarantee an accused the effective assistance of counsel.   See U.S. Const. amend VI;  Wash. Const.. art.   I, § 22.   To prove ineffective assistance of counsel, the appellant must show both that (1) counsel's performance was deficient, and (2) that the deficient performance prejudiced him.  State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996), Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Counsel's performance is deficient when it falls below an objective standard of reasonableness.  State v. Stenson, 132 Wash.2d 668, 705, 940 P.2d 1239 (1997).   We give great judicial deference to trial counsel's performance, which we strongly presume was effective.  State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995).

¶ 25 The jury instructions here were not erroneous;  thus, there was no deficiency in counsel's performance for failing to object to them.  “Jury instructions are sufficient if they permit each party to argue his theory of the case and properly inform the jury of the applicable law.”  State v. Riley, 137 Wash.2d 904, 909, 976 P.2d 624 (1999) (quoting State v. Bowerman, 115 Wash.2d 794, 809, 802 P.2d 116 (1990)).   We review the adequacy of jury instructions de novo as a question of law.  State v. Pirtle, 127 Wash.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996).

2. No deficient performance

¶ 26 Our review begins with the plain language of the statute.  Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wash.2d 40, 53, 905 P.2d 338 (1995).   Where a statute is unambiguous, we determine legislative intent from the language of the statute alone.  Waste Mgmt. v. WUTC, 123 Wash.2d 621, 629, 869 P.2d 1034 (1994), Daniel William Eaton, 110 Wash.2d 892, 898, 757 P.2d 961 (1988).

¶ 27 A plain reading of RCW 9.35.005(1) shows that in subsections (a), (b), and (c), the Legislature intended to list three general categories of information that qualify as “financial information” for purposes of the identity theft crime proscribed under RCW 9.35.020.   Allenbach asserts that category (a), with its conjunctive “and” and no comma, requires both listed items, namely “account numbers and balances,” to be present, and therefore proved, to qualify as “financial information” for purposes of identity theft.   As we explain above, Allenbach misinterprets the statute.

¶ 28 RCW 9.35.005(1) provides that “ ‘[f]inancial information’ means any of the following information identifiable to the individual.”  (Emphasis added.)   The statute does not say or require that all listed forms of information must be charged and proved.   That some subsections use the conjunctive “and” in listing various types of information, with or without a comma, does not mean that all types listed in a particular subsection are required for an identity theft prosecution.   It would be an absurd reading of the definition statute to require that a defendant must be shown to have possessed both the account number and the account balance to support a conviction for identity theft using the RCW 9.35.005(1)(a) definition of “financial information.”   As we note above, we follow the principle that we construe the law to avoid absurd results.  J.P., 149 Wash.2d at 450, 69 P.3d 318.

¶ 29 Taken as a whole, it is clear from a plain reading of the statute 11 that the Legislature did not intend that a defendant must possess both “account numbers and balances” to be guilty of criminal possession of “financial information” for purposes of proving identity theft.   We hold, therefore, that (1) the jury instruction's defining “financial information” as only “account balances” was not in error, and (2) Allenbach has thus failed to show deficient performance by trial counsel based on counsel's “failure” to object to instruction number 6. Therefore, with respect to this instruction, we need not address the prejudice prong of the ineffective assistance of counsel test.

III. Sufficient Evidence

¶ 30 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.   State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992).

A. Identity Theft

¶ 31 Allenbach argues that there was insufficient evidence to support the jury's verdict that he possessed “financial information” because the evidence showed that he possessed only Mr. Brown's bank account numbers, not also Mr. Brown's bank account balance.   This argument builds on his previous argument that the jury instructions should have defined “financial information” as included both account numbers and balances.12  This argument fails.

¶ 32 The question here is whether a check bearing the payor's account number is a sufficient basis for a rational trier of fact to find beyond a reasonable doubt that Allenbach was in possession of an “account number.”   As explained earlier, we answer this question in the affirmative.   We hold, therefore, that there was sufficient evidence to convict Allenbach of identity theft.

B. Forgery

¶ 33 Additionally, Allenbach argues that there was insufficient evidence to support the element of knowledge, an essential element to prove forgery.   RCW 9A.60.020(1)(b) provides the third forgery element:  A defendant is guilty of forgery where he “possesses, utters, offers, disposes of, or puts off as true a written instrument which he knows to be forged.”  (Emphasis added.)   Asserting that “Hector” gave Allenbach the check and he did not know it was forged, Allenbach asserts that the State failed to prove that he acted with intent or had knowledge that the check he presented to the bank was forged.   This argument also fails.

¶ 34 Allenbach claimed he had received the check from Hector, not from Mr. Brown.   When asked by the bank teller why the payor's signature on the check did not match Mr. Brown's signature on file, Allenbach walked out of the bank, leaving behind his identification and the check.   Viewing the evidence in a light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to find that Allenbach had both intent to defraud and knowledge that the check was forged.

IV. Character Evidence

¶ 35 Allenbach next argues that the trial court abused its discretion and violated ER 404(b) by allowing evidence of his drug habit under ER 403-that he told police (1) he had a drug debt he owed to Hector, and (2) he believed that, if successfully cashed, the check would go toward paying off this debt.   Over Allenbach's objection, the trial court allowed this evidence to show that Allenbach knew the check was unauthorized and that he possessed and presented it to the bank with intent to commit, to aid, or to abet a crime-forgery and identity theft.   Allenbach also argues that his trial counsel was ineffective in failing to request a limiting instruction when this evidence came in.13

¶ 36 Assuming, without deciding, that allowing this drug debt evidence was error, we hold that both its admission and counsel's failure to request a limiting instruction were harmless.   Reversal is not required “ ‘unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.’ ” State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997) (citations omitted).   Noting that the prejudice test is central to both the test for ineffective assistance of counsel and for abuse of trial court discretion in evidentiary rulings, we apply these two tests concurrently.

¶ 37 Applying the above test, we find that, within reasonable probabilities, the outcome of Allenbach's trial would not have been materially affected without admission of Allenbach's statement to the officers about his drug debt to Hector.   Allenbach admitted presenting the check.   He was aware that the name on the check, Mr. Brown, was not the name of the person who allegedly gave him the check, “Hector,” for whom Allenbach claimed he had previously cashed other checks.   When the bank teller questioned him about the discrepancy between the signature on the check and the signature on file with the bank, and told him she was going to call the account owner for verification, Allenbach fled, leaving behind the check, his driver's license and his credit card.   Later, during the officers' second visit to his home, Allenbach voluntarily and spontaneously offered apologies and to repay Brown the $425 Allenbach had gotten from cashing a previous check.   In light of this other strong evidence, a reasonable jury could conclude that Allenbach had intent, knowledge, and motive to commit forgery and identity theft even without evidence of his drug debt and habit.   We hold, therefore, that admitting this evidence was not prejudicial, any error was harmless, and trial counsel's failure to request a limiting instruction was not ineffective assistance.

¶ 38 Affirmed.

FOOTNOTES

1.   The officers' and Allenbach's testimonies conflicted as to whether Allenbach admitted that his debt was for purchasing drugs from Hector or whether drug-dealer Hector had merely offered drugs to Allenbach.

2.   The officers did not arrest Allenbach at this time.

3.   Although Allenbach asserts generally that “RCW 9.35.005 is unconstitutionally vague as applied in this case,” his vagueness arguments in his brief and at oral argument focus exclusively on only one of several statutory definitions of “financial information”-“account numbers and balances,” RCW 9.35.005(1)(a)-the specific portion of the statute under which he was convicted.   Br. of Appellant at 20.

4.   Allenbach does not, however, assert that the charging statute, RCW 9.35.020, is also vague.

5.   U.S. Const. amend.   V.

6.   RCW 9.35.020 provides:(1) No person may knowingly obtain, possess, use, or transfer a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.(2) Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value shall constitute identity theft in the first degree. Identity theft in the first degree is a class B felony punishable according to chapter 9A.20 RCW.(3) Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree.   Identity theft in the second degree is a class C felony punishable according to chapter 9A.20 RCW.(4) A person who violates this section is liable for civil damages of one thousand dollars or actual damages, whichever is greater, including costs to repair the victim's credit record, and reasonable attorneys' fees as determined by the court.(5) In a proceeding under this section, the crime will be considered to have been committed in any locality where the person whose means of identification or financial information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in that locality.(6) The provisions of this section do not apply to any person who obtains another person's driver's license or other form of identification for the sole purpose of misrepresenting his or her age.(7) In a proceeding under this section in which a person's means of identification or financial information was used without that person's authorization, and when there has been a conviction, the sentencing court may issue such orders as are necessary to correct a public record that contains false information resulting from a violation of this section.

7.   Allenbach also argues that the statute is vague because (1) neither the trial court nor the attorneys could understand the statute, and (2) there are no clear, standard jury instructions associated with this statute.   These arguments fail because they do not prove the statute's vagueness beyond a reasonable doubt.

8.   Where an alleged error is a “manifest error affecting a constitutional right,” the issue may be raised for the first time on appeal.  RAP 2.5(a)(3).   But such is not the case here.

9.   Because the jury instructions here clearly stated the necessary requirements for conviction, there is no question of constitutional due process.   See State v. Allen, 101 Wash.2d 355, 678 P.2d 798 (1984);  State v. Johnson, 100 Wash.2d 607, 614, 674 P.2d 145 (1983).   Thus, Allenbach does not meet the RAP 2.5(a)(3) exception to the general rule.

10.   “The term ‘financial information’ means any information identifiable to the individual that concerns account numbers held for the purpose of account access or transaction initiation.”   Clerk's Papers at 12.

11.   See also part I of our Analysis, supra.

12.   Alternatively, Allenbach argues that the evidence was insufficient to support a finding that he possessed a “means of identification.”   This argument assumes that a bank check does not qualify as a “means of identification” under the statutory definition.   We need not address whether a check qualifies as “financial information” because, based on our reading of RCW 9.35.005(1)(a) that account numbers alone meet the statutory definition, infra, there is sufficient evidence to support a rational finding of fact that Allenbach possessed “financial information.”

13.   “[I]f the evidence is admitted, the court must limit the purpose for which it may be considered by the jury.”  State v. Bowen, 48 Wash.App. 187, 190, 738 P.2d 316 (1987).

HUNT, J.