State v. Evans ( 2013 )

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APR 11 2013
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\,. Ronald R. Carpcni:ar . .0 .~
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 86772-1
Respondent, )
)
v. ) EnBanc
)
DERRICK ROBERT EVANS, )
)
Petitioner. ) .APR 11 2013
Filed - - - - - - -
_________________________)
GONZALEZ, I.-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. See RCW 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 also
RCW 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.
State v. Evans, No. 86772-1
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 sufficiently objective standards for purposes of
enforcement. We thus affirm Evans's conviction.
I. FACTS AND PROCEDURAL HISTORY
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 ofRCW 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.
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 Wn. App. 629, 265 P.3d 179 (2011). We granted discretionary review.
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State v. Evans, No. 86772-1
II. STANDARD OF REVIEW
Issues of statutory construction and constitutionality are questions of law
subject to de novo review. State v. Bradshaw, 152 Wn.2d 528, 531,98 P.3d 1190(2004).
III. ANALYSIS
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.
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.
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State v. Evans, No. 86772-1
1. Statutory Interpretation
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 Wn.2d
909,914,281 P.3d 305 (2012); State v. J.P., 149 Wn.2d 444,450,69 P.3d 318(2003); In re Pers. Restraint of Williams, 121 Wn.2d 655, 663, 853 P.2d 444 (1993).
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 Wn.2d 815, 820, 239 P.3d 354(2010); Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10,43 P.3d 4(2002). Plain language that is not ambiguous does not require construction. State v.
Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003); State v. Wilson, 125 Wn.2d 212,
217,883 P.2d 320 (1994).
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 Wn.2d 451, 456,219 P.3d 686 (2009); State v. Jacobs, 154 Wn.2d
596,600-01, 115 P.3d 281 (2005). We may then look to legislative history for
assistance in discerning legislative intent. Ervin, 169 Wn.2d at 820; State v. Bash,
130 Wn.2d 594, 601, 925 P.2d 978 (1996).
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State v. Evans, No. 86772-1
If a penal statute is ambiguous and thus subject to statutory construction, it will
be "strictly construed" in favor ofthe defendant. State v. Hornaday, 105 Wn.2d 120,
127, 713 P.2d 71 (1986); Wilson, 125 Wn.2d at 216-17; Jacobs, 154 Wn.2d at 601.
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 Wn.2d at 462. 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 Wn.2d 239, 250 & n.4, 252-53, 955 P.2d 798 (1998). This is lmown as
"the rule of lenity." !d. at 250 n.4; Jacobs, 154 Wn.2d at 601. 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 Wn.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 Wn.2d 288, 294-95, 609 P.2d 1364(1980))).
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State v. Evans, No. 86772-1
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
The plain language ofRCW 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 ofLabor & Indus., 169 Wn.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); see
RCW 9.35.005(4). Although corporations, "by their very nature as artificial creatures,
6
State v. Evans, No. 86772-1
are impersonal, possessing neither emotions nor sentiments," Grayson v. Curtis Pub 'g
Co., 72 Wn.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 Wn.2d 106, 112, 381 P.2d 245(1963) (quotinglnt'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 Wn.2d 162, 175, 19 P.3d 1012 (2001); State v. Yancy, 92 Wn.2d 153,
156, 594 P.2d 1342 (1979); cf J.L. Cooper & Co. v. Anchor Sec. Co., 9 Wn.2d 45, 69,
113 P .2d 845 ( 1941) ("'All fictions of law have been introduced for the purpose of
convenience and to sub serve the ends of justice.'" (quoting State ex rel. Attorney
General v. Standard Oil Co., 49 Ohio St. 137, 30 N.E. 279 (1892))).
Corporations, especially small businesses, are clearly relevant in this context as
potential direct victims of identity theft. A third party's use of a corporation's "means
of identification" or "financial information" easily could "result in significant harm to
[the corporation's] privacy, financial security, and other interests"-precisely the type
ofharm that the identity theft statute is intended to prevent. RCW 9.35.001; see, e.g.,
United States v. Hilton, No. 5:10CR2, 2010 WL 2926055, at *3 (W.D.N.C. July 23,
2010) (unpublished) ("[C]orporate identity theft is no less damaging than personal
7
State v. Evans, No. 86772-1
identity theft, as this case illustrates. The alleged theft of the Woodsmiths Company
name in this case is claimed to have led to the ruin of the company and the loss ofjobs
for all of its employees."); State v. McVay, noted at 157 Wn. App. 1004, 2010 WL
2904148, at *1, 2 (unpublished) 1 (corporation was direct victim of identity theft);
State v. Meske, noted at 149 Wn. App. 1002, 2009 WL 449071, at* 1 (unpublished)
(same); cf Steele v. State, 85 Wn.2d 585, 592-93, 537 P.2d 782 (1975) (noting that
corporations are afforded a limited '"right to privacy"' under the law (quoting United
States v. Morton Salt Co., 338 U.S. 632, 652, 70S. Ct. 357, 94 L. Ed. 401 (1950))).
Indeed, both "financial information" and "means of identification" are defined to
include items that would be considered personal and sensitive information for a
corporation as a legal person. See RCW 9.35.005(1) ("[fJinancial information"
includes "[a]ccount numbers and balances[,] [c]odes, passwords, ... tax identification
numbers, ... and other information held for the purpose of account access or
transaction initiation"); RCW 9.35.005(3) ("[m]eans of identification" includes "[a]
current or former name of the person, telephone number, an electronic address, ... or
tax identification number"); see also RCW 9.35.001 (legislature intended to prevent
misuse of "personal and sensitive information").
1
Consistent with OR 14.1(a), which prohibits parties from citing an unpublished
opinion of the Court of Appeals as an authority, we are citing to such opinions in this
instance not as precedent but only to show that, in actual practice, identity theft has
been known to cause harm to corporations. Cf Dahl-Smyth, Inc. v. City of Walla
Walla, 148 Wn.2d 835, 839 & n.4, 64 P.3d 15 (2003) (citing to unpublished opinion
not as precedent but instead because it had influenced the proceedings below).
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State v. Evans, No. 86772-1
Under RCW 9.35.020, a victim of identity theft must be "another person, living
or dead," and corporations can qualify in one of two ways. First, all corporations
simply can be considered dead in at least one sense of the term. See WEBSTER's
THIRD NEW INTERNATIONAL DICTIONARY 579 (2002) (defining "dead" as "incapable
of feeling or of being stirred emotionally or intellectually" or instead as "not naturally
endowed with life: inanimate, inert"). Second, in the alternative, a corporation
considered a "person" also can be considered "living or dead" depending on whether
it remains in operation or instead has been dissolved. See, e.g., Weymouth v. Oudin,
56 Wash. 315,315, 105 P. 1027 (1909) ("[A] corporation ... was dissolved by decree
. . . . But though the legal entity is dead, the present action goes to show that its
discordant elements still live."). In this sense, "living" can be defined as "active,
effective, [and] functioning," while "dead" can be defined as "lacking power or
effect," as in "a dead law" or a dead human being. WEBSTER'S, supra, at 579, 1324.
On numerous occasions, Washington courts have referred to corporations as living or
dead in this manner. See Ballard Square Condo. Owners Ass 'n v. Dynasty Constr.
Co., 158 Wn.2d 603, 621, 146 P.3d 914 (2006) (J.M. Johnson, J., concurring)
(acknowledging the "common law notion that a corporation died at dissolution");
Pacesetter Real Estate, Inc. v. Fasules, 53 Wn. App. 463, 468, 767 P.2d 961 (1989)
(noting that "once [the] reinstatement period passes, [a] corporation is 'dead"'
(quoting Globe Constr. Co. v. Yost, 173 Wash. 522, 527, 23 P.2d 892 (1933))); Clark
v. Groger, 102 Wash. 188, 192, 172 P. 1164 ( 1918) (argument regarding a "dead
9
State v. Evans, No. 86772-1
corporation's debts"); State ex rel. Dyer v. Middle Kittitas Irrigation Dist., 56 Wash.
488,495, 106 P. 203 (1910) ("The real defendant is the corporation, which still lives
and which must act through agents."); Hawley v. Bonanza Queen Mining Co., 61
Wash. 90, 91, 111 P. 1073 (1910) ("The complete dissolution of a corporation
destroys its capacity to be sued at law because a judgment can no more be rendered
against a dead corporation than against a dead man."); Oilure Mfg. Co. v. Pidduck-
Ross Co., 38 Wash. 137, 143, 80 P. 276 (1905) (denoting where the "plaintiff
company lives and does business"); Sherron Assocs. Loan Fund V v. Galaxy Gaming
Corp., noted at 140 Wn. App. 1013, 2007 WL 2358592, at *3 (unpublished)2 ("Dead
corporations may have successors just as dead people do."); cf, e.g., Wachovia Sec.,
LLC v. Banco Panamericano, Inc., 674 F.3d 743, 753 (7th Cir. 2012) ("Loop's
counsel also represented that Loop was a 'dead company."'); Amalgamated Sugar Co.
v. Vilsacl~, 563 F.3d 822, 836 (9th Cir. 2009) (transaction "was attempting to resurrect
a dead company"); Allee v. Medrano, 416 U.S. 802, 811, 94 S. Ct. 2191, 40 L. Ed. 2d
566 (1974) (noting "appellee union remains very much a live organization"); In re
United Sec. Trust Co., 321 Pa. 276, 285, 184 A. 106 (1936) ("[D]esirable uniformity
of administration will be attained by applying the Bankruptcy Rule in all cases of the
distribution of the assets of insolvents whether living or dead, individual or corporate,
and ... the Bankruptcy Rule should hereafter be considered of general application."
2
We are citing to an unpublished opinion in this instance not as legal precedent but
only to show that, in actual fact, the terms "living" and "dead" have been used
regularly and reasonably to describe corporations. See supra p. 8 note 1.
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State v. Evans, No. 86772-1
(emphasis added)). Under either of these reasonable interpretations, a corporation
considered a "person" also can be considered "living or dead," and thus, a corporation
can be a victim of identity theft under RCW 9.35.020. Cf Popular Merch. Co. v.
"21" Club, Inc., 343 F.2d 1011, 1015 (C.C.P.A. 1965) (holding that corporations
were included within statutory phrase "persons living or dead").
An alternative interpretation, excluding corporations as potential victims, is
also reasonable based on the plain language of the identity theft statute. "Living or
dead" can refer specifically to biologically active or previously biologically active
beings, which would apply only to natural persons and not corporations. See
WEBSTER'S, supra, at 579, 1324 (defining "living" as "not dead" and "exhibiting the
life or motion of nature," and defining "dead" as "having ended existence as a living
or growing thing- used of organisms"). Related provisions do lend support to this
interpretation. The statutory definition of "means of identification" provides some
examples relevant only to natural persons, although the list is not exclusive or
exhaustive, and as noted above, it includes some examples applicable to corporations
as well. See RCW 9.35.005(3) ("means of identification" includes "a social security
[number]" and "unique biometric data"). Likewise, "financial information" is defined
as "information identifiable to the individual," RCW 9.35.005(1) (emphasis added),
and "individual" ordinarily refers to an individual human being, see, e.g., RCW
19.215.010(3), but that is not always the case, see, e.g., Clinton v. City ofNew York,
524 U.S. 417, 428-29 & n.l3, 118 S. Ct. 2091, 141 L. Ed. 2d 393 (1998) ("[I]n the
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State v. Evans, No. 86772-1
context of the entire section Congress undoubtedly intended the word 'individual' to
be construed as synonymous with the word 'person."'). Adding to the potential
confusion, "means of identification" is defined as information "personal to or
identifiable with an individual or other person ...." RCW 9.35.005(3) (emphasis
added). Although interpreting "living or dead" to exclude corporations as potential
victims of identity theft would be relatively contrary to the apparent purposes of the
identity theft statute, this interpretation does appear to be at least reasonable. Thus,
we must turn to legislative history to resolve the ambiguity.
b. Legislative History
The legislative history of the identity theft statute clearly indicates that the
legislature intended to protect small businesses and other corporations from identity
theft. The crime of identity theft was first established in 1999, LAws OF 1999, ch.
368, § 3, and then amended in relevant part in 2001, LAWS OF 2001, ch. 217, §§ 1, 7,
9. The legislative history also includes various relevant and probative committee
hearings and floor debates concerning these enactments. Cf Cosmopolitan Eng 'g
Group, Inc. v. Ondeo Degremont, Inc., 159 Wn.2d 292, 304, 149 P.3d 666 (2006)
(relying on relevant recordings of committee hearings and floor debates to discern
legislative intent); Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 104-05,
829 P.2d 746 (1992) (court will consider all materials that are "sufficiently probative"
of legislative intent). This legislative history clearly establishes the legislature's intent
to prevent harm to small businesses and other corporations caused by identity theft.
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State v. Evans, No. 86772-1
As originally enacted, the crime of identity theft included corporations as
potential victims. The crime consisted of the "use" or "transfer" of any "means of
identification" of "another person," and the phrase "living or dead" was absent. LAws
OF 1999, ch. 368, § 3(1). Although the term "person" was not defined, a related
provision of the same section made clear that businesses were included. See id. § 3(4)
("If the person violating this section is a business that repeatedly violates this section,
that person also violates the consumer protection act, chapter 19.86 RCW." (emphasis
added)); see also id. § 3(1) (prohibiting any "person" from stealing the identity of
"another person"); cf Medcalfv. Dep't of Licensing, 133 Wn.2d 290,301,944 P.2d
10 14 ( 1997) ("We are bound to construe the word ... as having the same meaning in
each subsection of the same statutory section."). 3 Leading up to this initial enactment,
the legislature had been presented with testimony from a small number of actual
victims of identity theft. See Hearing on HB. 1250 Before the H. Fin. Insts. & Ins.
Comm. (Feb. 9, 1999), recording by TVW, Washington State's Public Affairs
Network, available at http://www.tvw.org; see also Hearing on S.B. 1250 Before the
S. Commerce, Trade, Hous., & Fin. Insts. Comm. (Mar. 23, 1999). 4 The primary and
most vocal witness testified that a large bundle of her checks had been stolen and then
distributed among a large number of people and used at various commercial
3
Evans's counsel incorrectly asserts that "person" was explicitly defined to include
"an individual, partnership, corporation, or association," but that definition was
directed to another section ofthe bill. See LAWS OF 1999, ch. 368, § 2(3).
4
Recordings of all committee hearings and floor debates cited herein are available at
http://www.tvw.org.
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State v. Evans, No. 86772-1
establishments; this created an administrative nightmare and damaged the victim's
credit rating. H. Fin. Insts. & Ins. Comm., supra, at 4 min., 52 sec. The same harms
could easily befall a small business; indeed, the same victim testified that her
investigation uncovered numerous other victims of identity theft, including one person
she identified as a merchant. S. Commerce, Trade, Hous., & Fin. Insts. Comm.,
supra, at 1 hr., 11 min., 15 sec. Although the focus clearly was on natural persons as
victims, small businesses and other corporations were also relevant and there was no
reason to exclude them from the protection of the statute-and as noted above, the
plain language of the bill demonstrates that they were indeed included. The bill
moved through committee easily and was passed unanimously and without substantial
discussion or debate before the House or Senate. LAWS OF 1999, ch. 368; see H.
Floor Debate on Substitute H.B. 1250 (Mar. 4, 1999), at 1 hr., 9 min., 36 sec.; S. Floor
Debate on Substitute H.B. 1250 (Apr. 14, 1999, 1:30 p.m.), at 2 hr., 54 min., 53 sec.;
H. Floor Debate on Substitute H.B. 1250 (Apr. 23, 1999, 1:30 p.m.), at 2 min., 45 sec.
In 200 1, the legislature sought to broaden and strengthen the identity theft
provisions and related statutory provisions-not to exclude small businesses from the
ambit of the statute. The 2001 amendments in part expanded (1) the type of
underlying activity prohibited, to include "obtaining" and "possessing" in addition to
"using" or "transferring;" (2) the information and items protected, to include
"financial information" in addition to "means of identification;" and (3) the necessary
mens rea, from the intent to unlawfully harm or commit a felony to the intent to
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State v. Evans, No. 86772-1
commit any crime. See LAWS OF 2001, ch. 217, § 9(1). Accordingly, the bill was
described to the legislature as strengthening the identity theft provisions. See, e.g., H.
Floor Debate on Engrossed Substitute S.B. 5449 (Apr. 11,2001, 10:00 a.m.), at 51
min., 54 sec. Testimony to the legislature in support of the 2001 amendments
identified various potential forms of identity theft, including credit card fraud, theft of
communication services, banking fraud, and loan fraud-forms of identity theft that
clearly and directly threaten small businesses and other corporations as well as natural
persons. See Hearing on S.B. 5449 Before the S. Labor, Commerce, & Fin. Insts.
Comm. (Jan. 29, 2001), at 41 min., 22 sec.-43 min., 40 sec. One witness in support
of the amendments emphasized that strengthening the identity theft provisions was
important for those who rely on "revolving lines of credit," such as "ranchers and
farmers," noting that "in the farming and ranching business, we can ill-afford any
more losses." !d. at 32 min., 39 sec.-33 min., 44 sec. Further, a representative from
the Association of Washington Businesses noted that one of its member businesses
had been a victim of identity theft. !d. at 1 hr., 4 min., 12 sec. The initial proponent
of the bill in the House even opened his remarks by noting that identity theft is "a
crime that victimizes both consumers and businesses" and that it was "a growing
crime." H. Floor Debate on Substitute H.B. 1250 (Apr. 11,2001, 10:00 a.m.), at 51
min., 38 sec.; cf In reMarriage of Kovacs, 121 Wn.2d 795, 807-08, 854 P.2d 629( 1993) (noting that the "remarks of ... a prime sponsor and drafter of the bill" can
assist in determining legislative intent). The 2001 amendments were passed
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State v. Evans, No. 86772-1
unanimously in the House and Senate. LAws OF 2001, ch. 217. The legislature
clearly did not intend to exclude small businesses and other corporations from the
protections of the identity theft statute.
The phrase "living or dead" was also added by the 200 1 enactment but that
phrase was not mentioned or discussed before any committee or on the floor of the
House or the Senate. SeeS. Labor, Commerce, & Fin. Inst. Comm., supra, at 1 sec.;
Hearing on Engrossed Substitute S.B. 5449 Before the H. Fin. Insts.& Ins. Comm.
(Mar. 28, 2001), at 26 min., 17 sec.; S. Floor Debate (Mar. 13, 2001, 4:00p.m.), at 1
hr., 50 min., 42 sec.; H. Floor Debate on Engrossed Substitute H.B. 5449 (Apr. 11,
2001, 10:00 a.m.), at 51 min., 19 sec.; S. Floor Debate (Apr. 16, 2001), at 2 hr., 14
min., 45 sec. The addition of the phrase obviously was meant to clarify that the class
of potential victims under the statute was broader than what otherwise might have
been thought. Numerous federal courts have had to address whether dead persons can
be victims under the federal identity theft statute precisely because of the absence of
any such clarification. See United States v. Zuniga-Arteaga, 681 F.3d 1220 (11th Cir.
2012); United States v. Maciel-Alcala, 612 F.3d 1092 (9th Cir. 2010); United States v.
Kowal, 527 F.3d 741 (8th Cir. 2008); United States v. Jimenez, 507 F.3d 13 (1st Cir.
2007). The legislative history shows that the legislature intended to broaden and
strengthen the identity theft provisions, in part to protect small businesses and other
corporations, and the phrase "living or dead" was meant to ensure a broad rather than
a narrow reading of the identity theft statute. It would be unjustifiable in light of the
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State v. Evans, No. 86772-1
legislative history to interpret the phrase "living or dead" as narrowing the class of
potential victims of identity theft by excluding corporations.
Given the testimony and remarks before the legislature, the types of harms the
legislature was seeking to prevent, the context of the prior version of the statute
protecting corporations as victims, and the apparent motivation underlying the 2001
amendments, the legislative history clearly establishes that the "living or dead"
provision was intended only to ensure a broad scope to the identity theft statute, not to
exclude corporations as potential victims. Thus, "living or dead" must be interpreted
to describe corporations as well as natural persons, both of which are classes of
potential victims of identity theft under RCW 9.35.020. The rule oflenity does not
apply.
2. Vagueness
The identity theft statute is not unconstitutionally vague. The mere need for
statutory construction does not render a statute unconstitutional. To the contrary, "no
more than a reasonable degree of certainty can be demanded," and "one who
deliberately goes perilously close to an area of proscribed conduct shall take the risk
that he may cross the line." Boyce Motor Lines, Inc. v. United States, 342 U.S. 337,
340, 72 S. Ct. 329, 96 L. Ed. 367 (1952). The identity theft statute gives fair warning
that misappropriation of a corporate check with the intent to commit a crime is
criminal conduct subject to prosecution, and the statute provides sufficiently objective
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State v. Evans, No. 86772-1
standards for purposes of enforcement. Thus, the identity theft statute is not
unconstitutionally vague.
a. Fair Warning
The identity theft statute provides the "fair warning" that is required by the due
process clause in order to enforce criminal laws. Fair warning is required "so citizens
'may plan their activity accordingly and freely enjoy those activities which are not
expressly illegal."' Sullivan, 143 Wn.2d at 181 (quoting State v. Crediford, 130
Wn.2d 747, 766, 927 P.2d 1129 (1996) (Sanders, J., concurring)). Although no
citizen is likely to review all penal statutes, requiring that penal statutes give fair
warning in advance allows for criminal laws to be subjected to general public scrutiny
and allows each person to investigate if he or she is unsure about the legality of
certain conduct. Thus, a penal statute must "define the criminal offense with
sufficient definiteness that ordinary persons can understand what conduct is
proscribed," but this test "does not require impossible standards of specificity or
absolute agreement because some measure of vagueness is inherent in the use of our
language." Jd. at 181-82.
We have found statutes to be unconstitutionally vague for failure to provide fair
warning only in "exceptional cases," City ofSeattle v. Eze, 111 Wn.2d 22, 28, 759
P.2d 366 (1988), such as when important statutory ter~s were extremely hazy and
remained entirely undefined, see State v. Williams, 144 Wn.2d 197, 204-06, 26 P.3d
890 (2001) ("mental health"); City ofBellevue v. Lorang, 140 Wn.2d 19, 30,992 P.2d
18State v. Evans, No. 86772-1
496 (2000) ("legitimate communication"); State v. Richmond, 102 Wn.2d 242, 244,
683 P.2d 1093 (1984) ("lawful excuse"); City of Seattle v. Pullman, 82 Wn.2d 794,
798, 514 P.2d 1059 (1973) ("loitering"), or when prohibited conduct was defined by
reference to an ever-changing federal publication not readily available to the public,
see State v. Dougall, 89 Wn.2d 118, 121-22, 570 P.2d 135 (1977) ("It is unreasonable
to expect an average person to continually research the Federal Register to determine
what drugs are controlled substances .... "),or when an important term involved too
many variables and its application would be uncertain in any given case, City of
Seattle v. Rice, 93 Wn.2d 728, 731-32, 612 P.2d 792 (1980) ("lawful order"). In
contrast, we have not found statutes to be unconstitutionally vague simply because of
the presence of ambiguity and the need for statutory construction. See In re Contested
Election ofSchoessler, 140 Wn.2d 368, 388-91, 998 P.2d 818 (2000); State v. Grisby,
97 Wn.2d 493, 500-02, 647 P.2d 6 (1982); Yancy, 92 Wn.2d at 156-57; Bash, 130
Wn.2d at 601.
Evans complains about the definition of "person" including corporations only
"where relevant," and the need to interpret the phrase "living or dead," and argues that
the identity theft statute is unconstitutionally vague as a result. This argument fails
because "[t]he fact that a statute requires interpretation does not make it void for
vagueness." Seven Gables Corp. v. MGMIUA Entm 't Co., 106 Wn.2d 1, 12, 721 P.2d
1 (1986). "Few statutes could withstand a test so strict." !d.
19
State v. Evans, No. 86772-1
The legislature is free to define the term "person" to include corporations
"where relevant." The meaning of any given term is allowed to depend on context,
including related statutes and underlying legislative purposes. See State v. Watson,
160 Wn.2d 1, 8, 11, 154 P.3d 909 (2007); Haley v. Med. Disciplinary Bd., 117 Wn.2d
720,741, 818 P.2d 1062 (1991) ("If a statute can be interpreted so as to have as a
whole the required degree of specificity, then it can withstand a vagueness challenge
despite its use of a term which, when considered in isolation, has no determinate
meaning."). Further, the concept of relevance is easily understood and applied. See
In re Pers. Restraint ofAdolph, 170 Wn.2d 5 56, 569 n.1, 243 P .3d 540 (20 10)
(applying statute allowing the admission of certain records into evidence only "where
relevant"). Defining the term "person" to include corporations where relevant
provides the "sufficiently definite warning" that due process requires, even if the
relevance of corporations may sometimes be relatively uncertain in particular
contexts. Jordan v. De George, 341 U.S. 223,231,71 S. Ct. 703,95 L. Ed. 886(1951 ); see Eze, 111 Wn.2d at 27 ('" [I]f men of ordinary intelligence can understand a
penal statute, notwithstanding some possible areas of disagreement, it is not wanting
in certainty."' (quoting State v. Maciolek, 101 Wn.2d 259, 265, 676 P.2d 996(1984))); Watson, 160 Wn.2d at 11 (statute is not unconstitutionally vague so long as
"[o]rdinary people need not guess blindly at [its] meaning"); Maciolek, 101 Wn.2d at
266 (statute is not unconstitutionally vague "if the general area of conduct against
which it is directed is made plain").
20
State v. Evans, No. 86772-1
Likewise, the need to interpret the phrase "living or dead" does not render the
identity theft statute so vague as to be unconstitutional. A statute that is facially
ambiguous often still provides fair warning of a broad, reasonable interpretation of the
statute. That is why the rule of lenity is applied in favor of the defendant only after
considering both plain language and legislative history to resolve apparent
ambiguities. See State v. Hirschfelder, 170 Wn.2d 536, 546, 242 P.3d 876 (2010);
Charles, 135 Wn.2d at 250 n.4; Winebrenner, 167 Wn.2d at 462. The average person
is not expected to research legislative history to determine the meaning of a penal
statute, but the statute need only give fair warning. The identity theft statute defines
the term "person" to include corporations and then denotes potential victims of
identity theft as any persons "living or dead," which reasonably could include
corporations. Thus, the identity theft statute provides fair warning that corporations
are potential victims of identity theft.
The doctrine of unconstitutional vagueness is concerned with inherently hazy
or variable (as opposed to merely ambiguous) terms. In this case, the identity theft
statute protects any "person, living or dead," and the term "person" includes
corporations insofar as they are relevant. The statute makes clear the general area of
conduct that is prohibited and the plain language also clearly suggests, even if not
definitively, that theft of a corporate identity is included within that prohibition. The
mere fact that there are two reasonable interpretations of the statute's plain
language-including or excluding corporations as victims-does not render the
21
State v. Evans, No. 86772-1
statute void for vagueness. In sum, the statute provides fair warning that obtaining or
using a corporate check with the intent to commit fraud, theft, or any other crime is
itself punishable as a crime.
b. Arbitrary Enforcement
The identity theft statute also provides sufficiently objective standards for
purposes of enforcement. The mere fact that statutory construction is necessary to
determine whether corporations are included in the class of victims does not render
the statute unconstitutional due to a risk of arbitrary enforcement.
Due process requires criminal statutes to establish workable standards that
ensure the law will be enforced "in a nonarbitrary, nondiscriminatory manner." City
of Spokane v. Neff, 152 Wn.2d 85, 89, 93 P.3d 158 (2004). A lack of objective
standards allows "police officers, judge, and jury to subjectively decide what conduct
the statute proscribes ... in any given case." Maciolek, 101 Wn.2d at 267. We have
found statutes unconstitutionally vague in this regard when they have relied upon
"inherently subjective terms" that are amenable to numerous varying and arbitrary
interpretations from one case to another. Id. (citing cases); see also, e.g., Neff, 152
Wn.2d at 91 ("known prostitute"); Pullman, 82 Wn.2d at 799 ("loitering").
The identity theft statute does not rely on any such inherently subjective
terms-it simply involves a phrase that is ambiguous on its face as between two
discrete alternatives but which is resolved by the legislative history of the statute. The
statute is limited in its ambiguity prior to construction, establishes objective standards
22
State v. Evans, No. 86772-1
by which a defendant's guilt can be measured, and once properly construed, is
straightforward and unambiguous. The identity theft statute is not unconstitutionally
vague.
IV. CONCLUSION
We affirm the Court of Appeals and uphold Evans's conviction. The identity
theft statute includes corporations as potential victims of identity theft. The statute
provides fair warning and establishes objective standards to determine guilt.
23
State v. Evans, No. 86772-1
WE CONCUR:
24
State v. Evans (Derrick Robert)
No. 86772-1
WIGGINS, J. (dissenting)-The legislature appropriately limited victims of
identity theft to natural persons by using the language "another person, living or
dead" in RCW 9.35.020(1) to refer to identity theft victims. Corporations do not live
or die but come in and out of existence through the statutorily defined means of
incorporation and dissolution. Other statutes that define aspects of life or death refer
consistently to natural processes, illustrating that the legislature cannot realistically
be said to speak of corporations in metaphors of life or death. Also, several other
provisions of the statutory scheme governing identity crimes and pertinent legislative
history demonstrate a sustained focus on natural persons, not corporations, as
victims of identity theft. Even if the legislature did intend to include corporate victims
of identity theft, it did not express that intent clearly. At the very least, the identity
theft statute is ambiguous in this regard and requires the application of the rule of
lenity in Derrick Robert Evans's favor. This court should reverse the Court of Appeals
and vacate Evans's conviction of identity theft for stealing, forging a name on, and
cashing a corporate check. I dissent.
DISCUSSION
I. The phrase "person, living or dead" in RCW 9.35.020(1) is meant to exclude
corporations
The definition of "person" for the purpose of the identity theft statutes includes
corporations only "where relevant." RCW 9A.04.110(17); RCW 9.35.005(4). The
No. 86772-1 (Wiggins, J., dissenting)
legislature's inclusion of the phrase "another person, living or dead" in RCW
9.35.020(1) in the pertinent provision of the identity theft statute expresses an intent
to exclude corporations as not relevant because corporations are neither living nor
dead. Life and death are natural processes that do not apply to corporations,
irrespective of the occasional analogy or colloquialism present in our case law. This
court should reject a reading of RCW 9.35.020(1) that supports the inclusion of
corporations as "person[s], living or dead" whose identities are stolen.
A. The statutes governing corporations do not refer to corporations in terms of
being alive or dead
Corporations exist in Washington only by virtue of the statutes that govern
them, whether title 23B RCW, the Washington Business Corporation Act (WBCA),
chapter 24.03 RCW, the Washington Nonprofit Corporation Act (WNPCA), or title 35
RCW regarding municipal corporations. These enactments are thus the most
appropriate places to determine whether corporations should ever be considered
living or dead. Not once in the WBCA, WNPCA, or title 35 RCW are corporations
referred to as alive, living, having life, dead, deceased, or having died. Rather,
corporations come into existence by incorporation and cease to exist through
dissolution. 1 Therefore, they should not be considered living or dead persons under
RCW 9.35.020(1 ).
Business corporations begin their existence by becoming incorporated. RCW
23B.02.030(1) provides that "the corporate existence begins when the articles of
incorporation are filed" with the secretary of state. The same is true of nonprofit
1
Municipal corporations cease to exist through disincorporation. See RCW 35.07.01 0, .020.
2
No. 86772-1 (Wiggins, J., dissenting)
corporations. See RCW 24.03.150. Unless the articles of incorporation provide
otherwise, for-profit and nonprofit corporations have "perpetual existence and
succession in [their] corporate name." RCW 238.02.020(3)(c); RCW 238.03.020(1 );
see a/so RCW 24.03.035(1 ). Thus, corporations remain incorporated, not living.
They come into existence not by being alive, but upon the filing of a specific
document with the secretary of state.
During their existence, corporations do not possess the independence of
living beings. Rather, "[a]ll corporate powers [are] exercised by or under the authority
of the corporation's board of directors." RCW 238.08.01 0(2)(a); see a/so RCW
24.03.095 ("The affairs of a [nonprofit] corporation shall be managed by a board of
directors."). Similarly, corporate affairs are "managed under the direction of [a
corporation's] board of directors, which [has] exclusive authority as to substantive
decisions concerning management of the corporation's business." RCW
238.08.01 0(2)(b). A corporation is entirely controlled by its board of directors rather
than by its own choices or instincts. In this way, corporations are also distinct from
living persons.
Given their perpetual existence, corporations do not die. Instead, someone
must dissolve them. Dissolution of business corporations typically occurs in one of
two ways. First, the corporation's board of directors "may propose dissolution for
submission to the shareholders." RCW 238.14.020(1 ). Two-thirds of the authorized
shareholders then must approve the proposed dissolution. RCW 238.14.020(5).
Second, the secretary of state has the power to administratively dissolve
corporations for failure to pay license fees, to deliver the initial or annual report to
3
No. 86772-1 (Wiggins, J., dissenting)
the secretary of state, or to maintain a registered agent. RCW 238.14.200(1 )-(3).
Similarly, nonprofit corporations are dissolved voluntarily by a vote of the members
or resolution of the board of directors, RCW 24.03.220(1 )-(2), or involuntarily by
decree of the superior court, RCW 24.03.250, .266. Corporate dissolution that
occurs at the vote of shareholders or directors, or by the hand of the secretary of
state or a superior court judge, does not remotely resemble death. After all, even
upon dissolution, a corporation "continues its corporate existence ... to wind up and
liquidate its business and affairs." RCW 238.14.050(1 ); see also RCW 24.03.245. 2
This can hardly be said of living beings after they die.
Neither can municipal corporations be conceived of as living or dead.
Municipal corporations are incorporated when a majority of the votes cast by
residents favor incorporation. RCW 35.02.120. During its existence, a municipal
corporation is run by a commission consisting of a mayor, a commissioner of finance
and accounting, and a commissioner of streets and public improvements, RCW
35.17.01 0, that "determine[s] what powers and duties are to be performed in each
department, ... prescribe[s] the powers and duties of the various officers and
employees and make[s] such rules and regulations for the efficient and economical
conduct of the business of the city .... " RCW 35.17.090. "Cities and towns may
disincorporate," RCW 35.07.01 0, upon a petition for disincorporation signed by a
majority of registered voters, RCW 35.07.020. A receiver is then appointed to wind
2
Various other corporate entities exist under title 24 RCW, such as corporations sole,
fraternal societies, and granges. But it is unnecessary to discuss each different type of
corporation because these entities, like for-profit and nonprofit corporations, are formed
through the signing of incorporation documents. They are not born, they are not living, and
they do not die.
4
No. 86772-1 (Wiggins, J., dissenting)
up affairs. RCW 35.07.150. Like business and nonprofit corporations, municipal
corporations cannot under any stretch of the imagination be considered living or
dead.
The majority grasps at straws to demonstrate that corporations may be
considered living or dead for the purpose of the identity theft statute, devoting some
two pages of its opinion to citing instances where this court and other courts have
metaphorically referred to corporations as such. See majority at 9-10. While courts
might use analogies to describe business organizations on occasion, the fact that
the statutes governing corporations do not speak in terms of life or death
undermines the majority's reading of RCW 9.35.020(1) to include corporations within
a class of "person[s], living or dead." The more appropriate reading of RCW
9.35.020(1) limits the victims of identity theft to natural beings.
B. Where the legislature elsewhere defines life or death, it refers to the natural
processes of natural beings
In other statutes, the legislature has defined words such as "living" or "dead"
to refer solely to the functions of natural beings. For the purposes of the criminal
mistreatment chapter, chapter 9A.42 RCW, the legislature has defined the '"[b]asic
necessities of life"' as "food, water, shelter, clothing, and medically necessary health
care .... " RCW 9A.42.01 0(1 ). This definition of life's necessities only contemplates
that natural beings are alive and clearly excludes corporations. Similarly, statutes
regarding indigent defense services provide that "'[b]asic living costs' means the
average monthly amount spent by the defendant for reasonable payments toward
living costs, such as shelter, food, utilities, health care, transportation, clothing, loan
5
No. 86772-1 (Wiggins, J., dissenting)
payments, support payments, and court-imposed obligations." RCW
10.101.01 0(2)(d). This reference to "living costs" demonstrates a legislative
understanding that only natural beings, not business organizations, are alive.
Other statutes clarify that death too is intended to refer to the natural
occurrence experienced by living beings. In the personal property statutes, an
"[i]ndividual" is defined as a "natural person, living or dead," RCW 63.60.020(4), and
a "'[d]eceased individual' means any individual ... who has died within ten years
before January 1, 1998, or thereafter," RCW 63.60.020(1 ). The term "fetal death" is
defined in the vital statistics chapter as "any product of conception that shows no
evidence of life after complete expulsion or extraction from its mother." RCW
70.58.150. "'Evidence of life,"' by contrast, "include[s] breathing, beating of the heart,
pulsation of the umbilical cord, or definite movement of voluntary muscles." /d.
These statutes employing death in definitions provisions refer only to living beings
that experience the natural, inevitable process of death.
These examples illustrate that the legislature does not tend to use metaphors
of life or death to refer to inanimate objects or organizations. Rather, its uses of
words like "living" or "dead" refer to the natural processes of living organisms. These
references call into serious doubt any interpretation of "person, living or dead" in
RCW 9.35.020(1) that includes nonliving, inanimate objects such as corporations.
6
No. 86772-1 (Wiggins, J., dissenting)
II. Several other sections of the identity theft chapter indicate the legislature's
intent to exclude corporations as victims of identity theft
In addition to the phrase "living or dead" in RCW 9.35.020(1 ), other provisions
of the identity crimes scheme of chapter 9.35 RCW strongly suggest that the
legislature did not intend to make corporations the direct victims of identity theft.
RCW 9.35.030(1) makes it "unlawful for any person to knowingly use a means
of identification or financial information of another person to solicit undesired mail
with the intent to annoy, harass, intimidate, torment, or embarrass that person."
Corporations, being inanimate and unfeeling, are incapable of being annoyed,
harassed, intimidated, tormented, or embarrassed. It seems odd that the legislature
would have included corporations in the definition of "another person, living or dead"
to make them victims of identity theft but would have excluded them in the very next
section of chapter 9.35 RCW from being victims of undesired mail solicitation.
The legislature has also defined "victim" for the purposes of the identity
crimes chapter and has provided victims with a way to obtain information from
3
businesses who may have entered a transaction with a perpetrator of identity theft.
But in order for victims to obtain this information, the statute requires victims to
provide "proof of positive identification," including "[t]he showing of a government-
issued photo identification card . . . . " RCW 9.35.040(2)(a). Victims must also
provide a "written statement from the state patrol showing that the state patrol has
3
RCW 9.35.005(5) defines "'victim"' as "a person whose means of identification or financial
· information has been used or transferred with the intent to commit, or to aid or abet, any
unlawful activity." RCW 9.35.040(1) requires persons or businesses "possessing information
relating to an actual or potential violation of this chapter, and who may have entered into a
transaction ... with a person who has used the victim's means of identification" to "provide
[to the victim] copies of all . . . transaction information related to the transaction being
alleged as a potential or actual violation of this chapter."
7
No. 86772-1 (Wiggins, J., dissenting)
on file documentation of the victim's identity pursuant to the personal identification
procedures in RCW 43.43.760." RCW 9.35.040(2)(c). RCW 43.43.760(1) and (2)
contain procedures for victims to request and obtain "an impression of [their]
fingerprints." (Emphasis added.) Needless to say, corporations have no fingerprints
or government-issued photo identification cards. Had the legislature intended
corporations to be victims of identity theft, it would not have excluded corporations
from the only provision of chapter 9.35 RCW that assists victims in investigating and
preventing occurrences of identity theft.
In short, other provisions of chapter 9.35 RCW demonstrate that the
legislature intended only natural beings to be victims of identity theft.
Ill. The statutory and legislative history also point to the exclusion of corporate
victims of identity theft
The various amendments to chapter 9.35 RCW and related legislative history
support the exclusion of corporate victims of identity theft. When the legislature
enacted these statutes, and each time it has revisited them, it has remained focused
on natural persons, not business associations, as the victims of identity theft.
A. 1999 Statute
Under the original identity theft statute enacted in 1999, it appears that the
legislature did intend to include businesses in the definition of person, at least as
persons capable of perpetrating the crime of identity left. See LAWS OF 1999, ch.
368, § 2 ("If the person violating this section is a business that repeatedly violates
this section, that person also violates the consumer protection act, chapter 19.86
RCW." (emphasis added)); see also 1999 FINAL LEGISLATIVE REPORT, 56th Wash.
8
No. 86772-1 (Wiggins, J., dissenting)
Leg., at 49. But while businesses may have qualified as perpetrators of identity theft,
there is no indication that they qualified as victims. The original statute prohibited a
person from "knowingly us[ing] or knowingly transfer[ring] a means of identification
of another person with the intent to commit ... any felony." LAWS OF 1999, ch. 368, §
3. In defining the '"means of identification"' of a person, the legislature included the
"electronic address or identifier of the individual or any member of his or her family,
including the ancestor of such person." /d. (emphasis added). These references to
an individual's family and ancestors suggest that the legislature did not consider
corporations when it defined "means of identification."
In the House bill report on Substitute H.B. 1250, the summary of the
testimony supporting the bill noted that "[i]t is important that identity theft be defined
as a separate crime; often the merchant or the financial institution suffers the loss
and the person whose identity is stolen to commit these acts is not considered a
victim by law enforcement." H.B. REP. on Substitute H.B. 1250, 56 Leg., Reg. Sess.,
at 2 (Wash. 1999). This portion of the report acknowledges that businesses are
harmed by identity theft but seems to consider the interests of businesses
separately from the interests of direct victims whose identities are stolen.
In sum, the 1999 statute and accompanying legislative history may
contemplate businesses as persons who perpetrate the crime of identity theft, but
not as direct identity theft victims. The 1999 enactment and legislative history thus
cannot be read as clearly including corporations as identity theft victims.
9
No. 86772-1 (Wiggins, J., dissenting)
B. 2001 Amendments
In 2001, the legislature revamped the identity theft statutes, inserting new
provisions in the identity crimes chapter, chapter 9.35 RCW, that included definitions
of "person" and "victim." LAWS OF 2001, ch. 217, § 1(4 )-(5). As discussed above,
these definitions were accompanied by provisions that suggested an intent to limit
the victims of identity theft to natural persons. The legislative history confirms that
the legislature appeared concerned only about consumer victims, not corporate
victims, of identity theft.
The 2001 amendments resulted from a consumer privacy task force formed
by the Washington State Attorney General. See 2001 FINAL LEGISLATIVE REPORT,
57th Wash. Leg., at 198; S.B. REP. on Engrossed Substitute S.B. 5449, 57th Leg.,
Reg. Sess., at 1 (Wash. 2001 ). The Attorney General task force concluded that
incidences of identity theft were growing so quickly that "victims need[ed] help in
obtaining information to reestablish their identity, deal with creditors, and help assist
law enforcement." 2001 FINAL LEGISLATIVE REPORT, supra, at 198.
With this focus in mind, the legislature enacted several provisions involving
fingerprints and photo identifications, discussed above, that provided a way for
identity theft victims to obtain information and gain protection from businesses who
had transacted with perpetrators of identity theft. This concern prompted the
legislature to clearly place "victims" of identity theft on one side of a transaction and
"businesses" on the other. For example, the House bill report notes that "business
was quite sensitive to the needs and concerns of victims and the bill strikes a
balance between the interests of the two groups. Both victims and businesses are
10
No. 86772-1 (Wiggins, J., dissenting)
protected." H.B. REP. on Engrossed Substitute S.B. 5449, 57th Leg., Reg. Sess., at
5 (Wash. 2001 ). Similarly, opponents of the bill noted concerns that it "creates
disproportionate and inappropriate penalties for one of the other victims of identity
theft-businesses." S.B. REP. on Engrossed Substitute S.B. 5449, 57th Leg., Reg.
Sess., at 3 (Wash. 2001) (emphasis added). These portions of the legislative history
strongly demonstrate that the legislature was concerned with protecting natural
persons as direct victims of identity theft and with protecting businesses as indirect
victims, but that these were two distinct groups in need of distinct protections.
The majority contends that the "living or dead" language added to the identity
theft statute should support a broad reading of the new amendments that includes
corporations. See majority at 16-17. But the insertion of "living or dead" in RCW
9.35.020(1) is consistent with the legislative history that shows that the legislature
was focused on natural persons only as identity theft victims. The fact that the
legislature distinguished between businesses and victims in its internal reports and
memoranda indicates that the legislature was making a similar distinction in the text
of the statute.
The majority also unconvincingly relies on witnesses who testified in support
of the 2001 amendments, as well as on comments of the "initial proponent" of the
bill. See majority at 15-16. Such testimony and comments are simply not good
indicators of legislative intent. As the United State Supreme Court has admonished,
relying on such testimony gives "unrepresentative committee members-or, worse
yet, unelected staffers and lobbyists-both the power and the incentive to attempt
strategic manipulations of legislative history to secure results they were unable to
11
No. 86772-1 (Wiggins, J., dissenting)
achieve through the statutory text." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 568, 125 S. Ct. 2611, 162 L. Ed. 2d 502 (2005); cf. Snow's Mobile Homes,
Inc. v. Morgan, 80 Wn.2d 283, 291, 494 P.2d 216 (1972) ("While statements and
opinions of individual legislators generally are not considered by the courts in
construing legislation, statements made in answer to questions on the floor by the
chairman of the committee in charge of the bill may be taken as the opinion of the
committee as to the meaning of the bill."). The majority's reliance on lay testimony
and the comments of certain legislators does not sufficiently demonstrate the
legislature's clear intent to include corporations as victims of identity theft.
Contrary to the majority's assertion that the 2001 amendments demonstrate
legislative intent to include corporations as potential victims of identity theft, majority
at 17, the 2001 legislation points in the other direction. The 2001 amendments and
connected legislative history do not support a reading of the identity theft statute that
includes corporate victims of identity theft, as discussed above.
C. 2004 and 2008 Amendments
4
The legislature again revised the identity theft statutes in 2004 and 2008. On
both occasions, the legislature added language that appears inconsistent with the
inclusion of corporations as victims of identity theft.
In 2004, the legislature enacted a biometric matching system to reduce
fraudulent issuances of driver's licenses and state identification cards. LAWS OF
2004, ch. 273, § 1. The legislature indicated that "[t]he most common method of
4
The legislature also amended the identity theft statutes in 2003, but only "to reorganize
criminal provisions ... to clarify and simplify the identification and referencing of crimes."
LAWS OF 2003, ch. 53, § 1.
12
No. 86772-1 (Wiggins, J., dissenting)
accomplishing identity theft ... is by securing a fraudulently issued driver's license."
/d. In light of this concern, the legislature ordered the Department of Licensing to
create a biometric matching system to "allow every person applying for an original,
renewal, or duplicate driver's license or identicard the option of submitting a
biometric identifier." 2004 FINAL LEGISLATIVE REPORT, 58th Wash. Leg., at 120. Given
the focus on biometric data to prevent identity theft, the legislature was again
concerned only with natural persons as victims of identity theft.
In 2008, the legislature again revised the identity theft statutes to allow a
"person who has learned or reasonably suspects that his or her financial information
or means of identification has been unlawfully obtained" to obtain a police incident
report. LAWS OF 2008, ch. 207, § 2. The final legislative report pointed out that
"identity theft victims must have police reports to freeze their credit, to place long-
term fraud alerts on credit reports, and to obtain records of fraudulent accounts from
merchants." 2008 FINAL LEGISLATIVE REPORT, 60th Wash. Leg., at 171. The
legislative history also discloses that the amendment requiring a police report was
partially responsive to a Federal Trade Commission survey showing that 19 percent
of persons surveyed indicated that police refused to take their report of identity theft.
/d. The focus on consumers obtaining a police report again demonstrates that the
legislature viewed natural persons, not corporations, as the direct victims of identity
theft.
From 1999 to 2008, the legislature enacted or amended identity theft laws
with a focus on everyday consumers-i.e., natural persons-who were victimized by
identity theft. This belies the majority's holding that the legislature intended to
13
No. 86772-1 (Wiggins, J., dissenting)
include corporations as identity theft victims. We should interpret RCW 9.35.020(1)
as excluding corporations from the class of persons victimized by identity theft.
IV. At the very least, the identity theft statute is ambiguous, requiring the
application of the rule of lenity
Even if the legislature did intend to include corporations as victims of identity
theft, it did not do so clearly enough to support criminal liability in this case. '"[W]hen
choice has to be made between two readings of what conduct Congress has made a
crime, it is appropriate, before we choose the harsher alternative, to require that
Congress should have spoken in language that is clear and definite. We should not
derive criminal outlawry from some ambiguous implication."' State v. Tvedt, 153
Wn.2d 705, 711, 107 P.3d 728 (2005) (quoting United States v. Universal C./. T.
Credit Corp., 344 U.S., 218, 221-22, 73 S. Ct. 227, 97 L. Ed. 260 (1952)). If a
criminal statute "is susceptible to more than one reasonable interpretation, it is
ambiguous and, absent legislative intent to the contrary, the rule of lenity requires us
to interpret the statute in favor of the defendant." State v. Coucil, 170 Wn.2d 704,
706-07, 245 P.3d 222 (2010) (citing State v. Jacobs, 154 Wn.2d 596, 600-01, 115
P.3d 281 (2005)).
Assuming for the sake of argument that it is reasonable to interpret the
identity theft statute as including corporations within the class of victims, the statute
is susceptible to two reasonable interpretations-one that includes corporate victims
and one that does not. This renders the statute ambiguous. The rule of lenity would
thus apply, requiring that we interpret the identity theft statute in Evans's favor. For
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No. 86772-1 (Wiggins, J., dissenting)
this reason as well, RCW 9.35.020 must be interpreted to exclude corporations as
victims of identity theft.
CONCLUSION
The text of RCW 9.35.020(1) and of other provisions of the identity crimes
statutes of chapter 9.35 RCW supports a conclusion that the legislature did not
intend to include corporations as identity theft victims. Tracking the amendments to
the identity theft statutes and related legislative history indicates that corporations
were excluded from identity theft victimhood. And even if the legislature did intend to
include corporations, both interpretations of the statute would be reasonable making
the statute ambiguous and the rule of lenity applicable in Evans's favor. I would
reverse the Court of Appeals and vacate Evans's conviction.
15
No. 86772-1
I dissent.
16