IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
AVERY CARTRELL WILLIAMS,
FILED: January 17, 2012
Ellington, J. â Avery Williams appeals his conviction and sentence of one count
second degree identity theft and four counts of second degree theft. He argues, pro se,
that there was insufficient evidence to support his identity theft conviction. We agree.
We also accept the Stateâs concession that Williamsâ offender score was erroneously
calculated. Accordingly, we reverse and remand for resentencing.
Williams took a wallet from Nona Munroeâs purse, which he found unattended at
the Faith Assembly Church in Lacey, Washington. Munroe and her daughter soon
discovered the theft and chased after Williams, who stopped and denied taking the wallet.
When police arrived, Williams ran into a nearby housing development, threw the wallet
onto a roof, and hid in a backyard. A witness observed Williamsâ conduct, retrieved the
wallet, and turned it over to police. Munroe indicated nothing was missing from the wallet.
After the police found and arrested Williams, he admitted taking the wallet. The
State charged Williams with one count of second degree identity theft and four counts of
second degree theft. It alleged Williams stole the wallet and thereby knowingly obtained
Munroeâs identification with intent to use that information to illegally obtain goods,
services, cash, or credit of less than $1,500, and also intentionally deprived Munroe of
four access devices.
A jury convicted Williams as charged, and the court sentenced him to 55 months of
We first address Williamsâ pro se challenge to the sufficiency of the evidence of
second degree identity theft. Evidence is sufficient to support a conviction if, viewed in
the light most favorable to the State, it permits a rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt.1 âA claim of insufficiency admits the
truth of the Stateâs evidence and all inferences that reasonably can be drawn therefrom.â2
To convict Williams of identity theft in the second degree, the State had to prove,
among other things, that Williams took Munroeâs means of identification or financial
information âwith intent to commit or aid or abet any crime.â3 Williams contends the State
failed to prove he intended to use Munroeâs identity information to commit a crime. We
State v. Montgomery, 163 Wn.2d 577, 586, 183 P.3d 267 (2008).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The jury was instructed that â[a] person commits the crime of identity theft in the
second degree when, with intent to commit or aid or abet any crime, he or she knowingly
obtains, possesses, uses, or transfers a means of identification or financial information of
another person.â Clerkâs Papers at 18; see also RCW 9.35.020(1), (3).
The prosecutor presented evidence that Munroeâs wallet contained financial and
identifying information. He argued it was reasonable to infer that Williams knew such
information would be found in the wallet, âespecially [when its owner is] a woman,
obviously middle ageâ and the wallet is âstuffed quite to the brim.â4 The prosecutor argued
Williams intended to commit or aid or abet another crime, ânamely, the theft of that
The Stateâs theory that a person commits identity theft simply by stealing another
personâs means of identification or financial information is untenable. The statute requires
proof that the defendant possessed anotherâs information in order to commit, aid, or abet
a crime.6 Williamsâ knowing possession of Munroeâs information alone does not support a
finding that he intended to use the information to commit another crime.
On appeal, the State argues the jury could reasonably infer that âwhen a person
takes another personâs credit/debit cards without permission, the intent is to use the cards
in future financial transactions for personal gain.â7 In some circumstances, that might be
true. But here, Williams did not take Munroeâs identification and financial information
alone. Rather, he took a wallet containing over $200 in cash. To establish that Williams
intended to commit some crime beyond this, the State must produce evidence. It did not.
Accordingly, we reverse Williamsâ conviction for second degree identity theft.8
Report of Proceedings (RP) (Aug. 19, 2010) at 253.
Id. at 242.
Supplemental Br. of Respât at 6.
Given this disposition, we do not reach Williamsâ argument that his trial counsel
Williams was convicted of one count of second degree identity theft and four
counts of second degree theft for the single act of taking Munroeâs wallet. He contends
the court erred by counting each conviction as a separate offense in calculating his
When a person is sentenced for two or more current offenses that involve the same
criminal conduct, the offenses are counted as a single offense for purposes of calculating
the offender score.9 âSame criminal conductâ means crimes that require the same intent,
were committed at the same time and place, and involved the same victim.10
We accept the Stateâs concession that the four counts of theft in the second degree
here constitute the same criminal conduct and should have been counted in Williamsâ
offender score as one offense. Accordingly, we remand for resentencing.11
Additional Grounds for Review
Williams asserts the court made several other errors during his trial in his pro se
statement of additional grounds for review. Most of his allegations center on hearings
concerning his physical and mental health, which the court undertook to determine
whether Williams should be restrained during trial. Williams contends that allowing jail
personnel to testify about his health without first providing notice to the defense violated
was ineffective for failing to propose an instruction on third degree theft as a lesser
included offense of second degree identity theft.
The parties dispute whether the court on remand should also consider Williamsâ
conviction for identity theft in the second degree part of that same criminal conduct.
Because we reverse the identity theft conviction, that issue is moot.
his right to privacy and the rules of discovery. As this information was not presented to
the jury or used as evidence of Williamsâ guilt, we find no error.
Williams also argues his confession was inadmissible because it was elicited while
he lacked âthe right mental capacity.â12 Williams did not raise this issue before trial, and
his attorney agreed that Williams received the appropriate warnings before confessing.
Further, the trial record supports that conclusion. Officer Adam Seig testified that he
informed Williams of his Miranda rights after detaining him. Although Williams was
complaining of difficulty breathing and believed he was going to have a seizure, he
indicated he understood his rights and agreed to speak with law enforcement. Williams
initially denied his involvement in the theft, but after witnesses identified him in a streetside showup, he admitted taking the wallet. On these facts, we see no constitutional
infirmity in Williamsâ confession.
For the reasons set forth above, we reverse Williamsâ conviction for second degree
identity theft and remand for resentencing on the remaining counts.
Statement of Additional Grounds at 4.