LAU, J.
¶ 1 Vadim Fedorov appeals from the judgment and sentence entered after a Snohomish County jury found him guilty of second degree identity theft. Because (1) the passage of time and change of circumstances did not render the Miranda
¶ 2 On October 7, 2012, Everett Police Officer Christopher Reid stopped Fedorov for speeding. Fedorov had no driver's license. Officer Reid asked him for his name and date of birth. He identified himself as Zachary Anderson with an August 31, 1984 birth date. A computer search showed multiple arrest warrants for an individual named Zachary Anderson, born on August 30, 1984. Officer Reid decided the match was sufficiently close and arrested Fedorov on the warrants. Officer Shane Nelson read Fedorov his Miranda rights in Officer Reid's presence. Fedorov said he understood those rights and was willing to talk to the officers.
¶ 3 Still not convinced that Fedorov was who he claimed to be, officers took his fingerprints and compared them to the known prints for Zachary Anderson.
Report of Proceedings (RP) (Dec. 18, 2012) at 137-38.
¶ 4 The State charged Fedorov with second degree identity theft, alleging he used the identity of Zachary Anderson, born on August 30, 1984, to mislead a public servant. A jury found Fedorov guilty as charged. Fedorov appeals.
¶ 5 Fedorov first contends the trial court erroneously denied his CrR 3.5 motion to suppress the above-quoted statements he made at the jail to Sergeant Hughes, who questioned Fedorov about his identity. He argues the passage of time and changed circumstances rendered the Miranda warnings "stale." Br. of Appellant at 2. According to Fedorov, fresh Miranda warnings were required before Sergeant Hughes questioned him. The parties agree the questioning constituted custodial interrogation for Miranda purposes. The issue here is whether Sergeant Hughes's failure to issue fresh Miranda warnings before questioning Fedorov rendered Fedorov's responses involuntary and, thus, inadmissible.
¶ 6 The United States Supreme Court "has eschewed per se rules mandating that a suspect be re-advised of his rights in certain fixed situations in favor of a more flexible approach focusing on the totality of the circumstances." United States v. Rodriguez-Preciado, 399 F.3d 1118, 1128 (9th Cir.2005). Generally, "[w]here a defendant has been adequately and effectively warned of his constitutional rights, it is unnecessary to give repeated recitations of such warnings prior to the taking of each separate in-custody statement." State v. Duhaime, 29 Wn.App. 842, 852, 631 P.2d 964 (1981) (fresh warnings held unnecessary where the defendant signed a written waiver of constitutional rights less than two hours before the challenged questioning occurred).
¶ 7 Fedorov argues fresh warnings were necessary partly because three and a half
¶ 8 Fedorov also contends fresh warnings were necessary due to the "change in personnel." Br. of Appellant at 11. He relies on Zappulla v. New York, 391 F.3d 462 (2d Cir.2004), but that case is distinguishable.
Zappulla, 391 F.3d at 474. Here, the "lapse" was relatively short, and Fedorov remained in police custody after the issuance of Miranda warnings. Finally, although Sergeant Hughes questioned Fedorov about a crime arguably unrelated to the arrest warrants, significantly, both Officer Reid and Sergeant Hughes asked questions for the same purpose — to determine Fedorov's true identity. The mere lapse of time and change of interrogator does not render Miranda warnings "stale" necessitating repetition of rights before a voluntary statement may be made. Wvrick v. Fields. 459 U.S. 42, 48-49, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982); United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.1995).
¶ 9 Fedorov also argues that "the securing of the fingerprint comparisons" constituted a change in circumstances necessitating fresh warnings. Br. of Appellant at 11. On this point, he cites no authority. Argument unsupported by citation to authority need not be considered. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). In any event, the police may actively deceive a suspect without destroying the voluntariness of a confession. See State v. Burkins, 94 Wn.App. 677, 695, 973 P.2d 15 (1999) ("Deception alone does not make a statement inadmissible as a matter of law; rather, the inquiry is whether the deception made the waiver of constitutional rights involuntary."); see also Commonwealth v. Martinez, 458 Mass. 684, 693, 940 N.E.2d 422 (2011) ("If the making of false or incriminating statements and being confronted by them were to undermine and render ineffective an otherwise valid Miranda waiver, police would be obliged to repeat Miranda warnings whenever a defendant in an interrogation moves toward inculpating himself. This is not the law."). Considering the totality of the circumstances discussed above, we conclude "the securing of the fingerprint comparisons" was not an intervening circumstance necessitating fresh warnings.
¶ 10 We conclude the trial court properly admitted Fedorov's challenged statements.
¶ 11 Fedorov next challenges the sufficiency of the evidence supporting his second degree identity theft conviction. He contends the State failed to prove (1) that he used the identity of a "specific real person or corporation" and (2) that he used the identity "with the intent to effectuate any specific crime." Br. of Appellant at 14-15.
¶ 12 "A sufficiency challenge admits the truth of the State's evidence and accepts the reasonable inferences to be made from it." State v. O'Neal, 159 Wn.2d 500, 505, 150 P.3d 1121 (2007). We will reverse a conviction "only where no rational trier of fact could find that all elements of the crime were proved beyond a reasonable doubt." State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005). An identity theft conviction requires proof that the defendant knowingly obtained, possessed, used, or transferred 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.
¶ 13 Fedorov first argues, "The State failed to prove that Mr. Fedorov misused the identity of a person in light of his dogged insistence on a date of birth that did not match any of the more than 26 individuals with similar names found just within the
¶ 14 It is undisputed that Zachary Anderson, born on August 30, 1984, is a "specific, real person."
¶ 15 Fedorov's argument ignores Officer Reid's testimony. According to Officer Reid, Fedorov initially insisted his birth date was August 31, 1984. He later used the actual date of Zachary Anderson's birth date — August 30, 1984:
RP (Dec. 18, 2012) at 109-12. Assuming the truth of this evidence, a rational trier of fact could find beyond a reasonable doubt that Fedorov used the name and birth date of a specific, real person — Zachary Anderson, born on August 30, 1984.
¶ 16 Fedorov also challenges the sufficiency of the evidence establishing that he used Zachary Anderson's identity "with the intent to commit, or to aid or abet, any crime." RCW 9.35.020(1). Under Washington law, "[a] person who knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor." RCW 9A.76.175. Here, assuming the truth of the State's evidence, we conclude that a rational trier of fact could infer that Fedorov acted with intent to commit the crime of knowingly making a false or misleading material statement to a public servant.
¶ 17 The record shows Fedorov repeatedly told Officer Reid his name was Zachary Anderson. These statements caused Officer Reid to arrest Fedorov on Anderson's outstanding warrants. At the jail, Fedorov also claimed Anderson's birth date. Officer Reid informed a booking officer that "some of the details were off and that [Fedorov] may have been lying about his name." RP (Dec. 18, 2012) at 111. Given the uncertainty of Fedorov's identity, jail staff performed a fingerprint analysis. A corrections deputy testified that because fingerprinting was not part of the standard booking process, it took "extra time" to book Fedorov into jail. RP (Dec. 18, 2012) at 135. At no point during the analysis did Fedorov reveal his true identity.
¶ 18 Sergeant Hughes confronted Fedorov after the fingerprinting analysis indicated his true name was Vadim Fedorov. Fedorov raised his hand when Sergeant Hughes called out "Fedorov" in the jail's booking area. When Sergeant Hughes asked if Fedorov thought the jail staff was "stupid," Fedorov responded, "Yeah." RP (Dec. 18, 2012) at 137. Fedorov planned to reveal his true identity during his booking interview. A booking officer testified, "He told one of our officers that he was going to admit to his identity after — during his interview process." RP (Dec. 18, 2012) at 130.
¶ 19 Given Fedorov's multiple acts of intentional deception, a rational trier of fact could infer that he intended to violate the false statement statute, RCW 9A.76.175.
¶ 20 Fedorov next challenges instruction 8, the WPIC
¶ 21 Washington courts have addressed similar issues in a line of cases beginning with State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985). In Bergeron, the appellant argued that "the particular crime which the defendant intended to commit inside the building or dwelling is an element of the crime of burglary, and that such crime must be specifically charged, instructed on (in a jury trial) and found as a fact (in a trial to the court)." Bergeron, 105 Wash.2d at 6, 711 P.2d 1000. The court disagreed, reasoning that burglary in Washington is modernly a statutory offense and that our burglary statutes plainly "require only an intent to commit any crime." Bergeron, 105 Wash.2d at 15, 711 P.2d 1000. It concluded:
Bergeron, 105 Wash.2d at 16 [711 P.2d 1000]. In so holding, the court expressly overruled State v. Johnson, 100 Wn.2d 607, 674 P.2d 145 (1983), to the extent that Johnson held the charging document and jury instructions must specify the defendant's intended crime "as an element of the offense." Bergeron, 105 Wash.2d at 8 [711 P.2d 1000].
¶ 22 The Supreme Court subsequently applied Bergeron in the context of aggravated first degree murder. In State v. Jeffries, 105 Wn.2d 398, 717 P.2d 722 (1986), the trial court instructed the jury that a conviction required a finding that "the defendant committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime." Jeffries, 105 Wash.2d at 419, 717 P.2d 722. On appeal, the defendant challenged the instruction on the basis that it omitted the particular crime he allegedly concealed. Relying on Bergeron, the court held, "The specific crime need not be stated, as the statute did not require it." Jeffries, 105 Wash.2d at 420, 717 P.2d 722.
¶ 23 Bergeron's rationale applies with equal force here. Like burglary (and aggravated first degree murder), identity theft is a statutory offense. The statute merely requires proof of intent to commit "any crime." RCW 9.35.020(1). Under Bergeron, the statute is plain on its face and thus does not support "reading the element of intent to commit a particular crime into the statutory offense...." Bergeron, 105 Wash.2d at 15, 711 P.2d 1000.
¶ 24 Fedorov relies on State v. Bryant, 65 Wn.App. 428, 438, 828 P.2d 1121 (1992). In Bryant, the defendant argued "the information charging him with second degree felony murder was constitutionally defective for failing to specify the prong of the statute on which the underlying charge of first degree assault was based." Bryant, 65 Wash.App. at 437, 828 P.2d 1121. In rejecting the defendant's argument, we noted that "the underlying crime is an element of felony murder...." Bryant, 65 Wash.App. at 438, 828 P.2d 1121.
¶ 25 Bryant is not controlling because it contained no discussion of jury instructions. The issue before us was the adequacy of the charging document, not the adequacy of the to-convict instruction. Despite Fedorov's suggestion, those issues are analytically distinct. See State v. Saunders, 177 Wn.App. 259, 269, 311 P.3d 601 (2013) (discussing "the different underlying purposes for including an essential element in a charging document and including such an element in a to-convict instruction.").
¶ 26 Further, cases discussing the elements of felony murder are of questionable relevance due to the felony murder statutes' unique language. Whereas the identity theft statute broadly requires intent to commit any crime, the second degree felony murder statute more narrowly requires commission or an attempt to commit "any felony, including assault, other than those enumerated in
¶ 27 Fedorov also cites State v. DeRyke, 149 Wn.2d 906, 73 P.3d 1000 (2003). In DeRyke, the court held "it was error to give the jury a `to convict' instruction for the charge of attempted first degree rape which did not specify the degree of the rape allegedly committed." DeRyke, 149 Wash.2d at 912, 73 P.3d 1000. Fedorov does not argue that instruction 8 contained a similar deficiency. Instead, he relies on DeRyke for the unremarkable proposition that "the `to convict' instruction must generally contain all elements of the charged crime." Br. of Appellant at 17. As discussed above, instruction 8 contained all essential elements of the charged crime.
¶ 28 As Fedorov acknowledges, the issue is ultimately one of due process. A to-convict instruction may violate due process if it leaves the jury guessing at the meaning of an element of the crime or relieves the State of the burden of proving an element. Saunders, 177 Wash.App. at 270, 311 P.3d 601. Fedorov does not claim the jury was left guessing as to which crime he intended to commit. His attorney conceded during closing arguments that her client was "guilty of making a false statement to a police officer...." RP (Dec. 18, 2012) at 166. Finally, under Bergeron, Fedorov's claim that the to-convict instruction omitted an essential element is contrary to the identity theft statute's plain language. The to-convict instruction properly states the law.
¶ 29 Fedorov lastly challenges the court's reasonable doubt instruction. He claims it was error to instruct the jury that "[i]f, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt."
¶ 30 We disagree. State v. Bennett, 161 Wn.2d 303, 165 P.3d 1241 (2007), and State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245 (1995), control. Fedorov relies on State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012), to challenge the "abiding belief" language. He claims this language is similar to the impermissible "speak the truth" remarks made by the State during closing. Emery, 174 Wash.2d at 751, 278 P.3d 653. Emery found the "speak the truth" argument improper because it misstated the jury's role. Here, read in context, the "belief in the truth" phrase accurately informs the jury its "job is to determine whether the State has proved the charged offenses beyond a reasonable doubt." Emery, 174 Wash.2d at 760, 278 P.3d 653. The reasonable doubt instruction accurately stated the law.
¶ 31 For the reasons discussed above, we affirm Fedorov's conviction.
WE CONCUR: LEACH and APPELWICK, JJ.
