State v. Evans

177 Wash.2d 186

298 P.3d 724

STATE of Washington, Respondent,

v.Derrick Robert EVANS, Petitioner.

No. 86772–1.

Supreme Court of Washington, En Banc.

Argued Sept. 11, 2012.

Decided April 11, 2013.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Petitioner.

Katherine Lee Svoboda, Grays Harbor Co. Prosecutor's Office, Attorney at Law Montesano, WA, for Respondent.

GONZÁLEZ, J.

[177 Wash.2d 190]¶ 1 Petitioner Derrick Robert Evans stole a business check from the small business where he worked, made the check out to himself for $500, then forged a signature on the check and cashed it. Evans was charged with identity theft and convicted after a bench trial. SeeRCW 9.35.020 (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 ... any crime.”); see alsoRCW 9.35.005(4) (citing RCW 9A.04.110); RCW 9A.04.110(17) (defining “person” to include “any natural person and, where relevant, a corporation”). Evans now challenges his conviction on the ground that RCW 9.35.020 (the identity theft statute) criminalizes theft of a natural person's identity but does not criminalize theft of a corporate identity—or in the alternative, that the statute is unconstitutionally vague.

¶ 2 We reject Evans's arguments and affirm the Court of Appeals. The plain language and legislative history of the identity theft statute demonstrate that theft of a corporate identity is a crime. The identity theft statute provided fair warning to Evans and other persons and contains sufficientlyobjective standards for purposes of enforcement. We thus affirm Evans's conviction.

I. FACTS AND PROCEDURAL HISTORY

¶ 3 In October 2009, Evans stole a business check from his employer, a small company called Allube Inc. that was engaged in the business of automobile maintenance and repair in Grays Harbor County, Washington. Evans forged a name on the stolen check and cashed it for $500. He was charged with second degree identity theft in violation of RCW 9.35.020(3). Evans was convicted after a bench trial and sentenced to 6 months in jail, followed by 12 months of community custody.

¶ 4 Evans appealed, arguing that the identity theft statute either does not proscribe theft of a corporate identity or is unconstitutionally vague. The Court of Appeals upheld Evans's conviction in a published opinion, holding that RCW 9.35.020 proscribes theft of a corporate identity, provides fair warning that theft of a corporate identity is a crime, and establishes sufficient standards for enforcement. State v. Evans, 164 Wash.App. 629, 265 P.3d 179 (2011). We granted discretionary review.

II. STANDARD OF REVIEW

¶ 5 Issues of statutory construction and constitutionality are questions of law subject to de novo review. State v. Bradshaw, 152 Wash.2d 528, 531, 98 P.3d 1190 (2004).

III. ANALYSIS

¶ 6 We reject Evans's arguments. First, the plain language and legislative history of the identity theft statute establish that the statute protects both individual and corporate identities. The legislature intended to protect small businesses and other corporations as well as natural persons from the substantial harms caused by identity theft, whether in the form of stolen checks, fraudulent loans, or the myriad other ways identity theft can occur.

¶ 7 Second, as a matter of due process, the identity theft statute is not unconstitutionally vague. The statute provides fair warning to Evans and others that theft of a corporate identity can be punished as a crime. The mere fact that a term or phrase requires interpretation is not sufficient to render a criminal statute void for vagueness. Further, application of the statute to theft of corporate identities is not inherently subjective. The relevant standards are clear and workable, and there is no substantial risk of arbitrary enforcement. We affirm Evans's conviction for these reasons.

1. Statutory Interpretation

¶ 8 We must determine, according to our established principles of statutory interpretation, whether the identity theft statute is intended to protect corporations from theft of the corporate identity. The purpose of statutory interpretation is “to determine and give effect to the intent of the legislature.” State v. Sweany, 174 Wash.2d 909, 914, 281 P.3d 305 (2012); State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003); In re Pers. Restraint of Williams, 121 Wash.2d 655, 663, 853 P.2d 444 (1993).

¶ 9 When possible, we derive legislative intent solely from the plain language enacted by the legislature, considering the text of the provision in question, the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole. State v. Ervin, 169 Wash.2d 815, 820, 239 P.3d 354 (2010); Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002). Plain language that is not ambiguous does not require construction. State v. Delgado, 148 Wash.2d 723, 727, 63 P.3d 792 (2003); State v. Wilson, 125 Wash.2d 212, 217, 883 P.2d 320 (1994).

¶ 10 If more than one interpretation of the plain language is reasonable, the statute is ambiguous, and we must then engage in statutory construction. City of Seattle v. Winebrenner, 167 Wash.2d 451, 456, 219 P.3d 686 (2009); State v. Jacobs, 154 Wash.2d 596, 600–01, 115 P.3d 281 (2005). We may then look to legislative history for assistance in discerning legislative intent. Ervin, 169 Wash.2d at 820, 239 P.3d 354;State v. Bash, 130 Wash.2d 594, 601, 925 P.2d 978 (1996).

¶ 11 If a penal statute is ambiguous and thus subject to statutory construction, it will be “strictly construed” in favor of the defendant. State v. Hornaday, 105 Wash.2d 120, 127, 713 P.2d 71 (1986); Wilson, 125 Wash.2d at 216–17, 883 P.2d 320;Jacobs, 154 Wash.2d at 601, 115 P.3d 281. This means that we will interpret an ambiguous penal statute adversely to the defendant only if statutory construction “clearly establishes” that the legislature intended such an interpretation. Winebrenner, 167 Wash.2d at 462, 219 P.3d 686. Otherwise, if the indications of legislative intent are “insufficient to clarify the ambiguity,” we will then interpret the statute in favor of the defendant. In re Post Sentencing Review of Charles, 135 Wash.2d 239, 250 & n. 4, 252–53, 955 P.2d 798 (1998). This is known as “the rule of lenity.” Id. at 250 n. 4, 955 P.2d 798;Jacobs, 154 Wash.2d at 601, 115 P.3d 281. Requiring a relatively greater degree of confidence when resolving ambiguities within penal statutes against criminal defendants helps further the separation of powers doctrine and guarantees that the legislature has independently prohibited particular conduct prior to any criminal law enforcement. See United States v. Bass, 404 U.S. 336, 348–49, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Wiltberger, 18 U.S. (5 Wheat) 76, 95, 5 L.Ed. 37 (1820); cf. State v. Rice, 174 Wash.2d 884, 901, 279 P.3d 849 (2012) (noting “the substantial liberty interests at stake” within the criminal justice system, the “awesome consequences” of criminal prosecution, and thus “the need for numerous checks against corruption, abuses of power, and other injustices” (internal quotation marks omitted) (quoting State v. Pettitt, 93 Wash.2d 288, 294–95, 609 P.2d 1364 (1980))).

¶ 12 In sum, our interpretation of a penal statute will be either the only reasonable interpretation of the plain language;or, if there is no single reasonable interpretation of the plain language, then whichever interpretation is clearly established by statutory construction; or, if there is no such clearly established interpretation, then whichever reasonable and justifiable interpretation is most favorable to the defendant. As explained below, although the plain language of the identity theft statute is ambiguous on its own, the relevant legislative history clearly establishes that the legislature intended to protect small businesses and other corporations from identity theft. Thus, the rule of lenity does not apply and we interpret the statute adversely to Evans.

a. Plain Language

¶ 13 The plain language of RCW 9.35.020 does not resolve whether corporations are included within the class of potential direct victims of identity theft. The statute prohibits any “person” from obtaining or using a “means of identification” or “financial information” of “another person, living or dead,” with the intent to commit a crime. Although “person” often refers to an individual human being, “its meaning varies within the RCW” in distinct legal contexts and for particular purposes. Segaline v. Dep't of Labor & Indus., 169 Wash.2d 467, 473, 238 P.3d 1107 (2010). For purposes of chapter 9.35 RCW, “person” is defined by reference to RCW 9A.04.110, which defines “person” as “any natural person and, where relevant, a corporation, joint stock association, or an unincorporated association.” RCW 9A.04.110(17); seeRCW 9.35.005(4). Although corporations, “by their very nature as artificial creatures, are impersonal, possessing neither emotions nor sentiments,” Grayson v. Curtis Pub'g Co., 72 Wash.2d 999, 1014, 436 P.2d 756 (1967) (Hale, J., dissenting), the “ ‘corporate personality is a fiction’ ” sometimes “ ‘intended to be acted upon as though it were a fact,’ ” Tyee Constr. Co. v. Dulien Steel Prods., Inc., 62 Wash.2d 106, 112, 381 P.2d 245 (1963) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). Because the legislature for purposes of the identity theft statute has specifically defined the term “person” to include corporations “where relevant,” we must adhere to that definition for purposes of statutory interpretation and consider whether corporations are relevant in the context of identity theft. See State v. Sullivan, 143 Wash.2d 162, 175, 19 P.3d 1012 (2001); State v. Yancy, 92 Wash.2d 153, 156, 594 P.2d 1342 (1979); cf. J.L. Cooper & Co. v. Anchor Sec. Co., 9 Wash.2d...