State Of Wa v. Keovilayvanh Rinthalukay Aka Ricky K. Moore ( 2019 )

C•OU$fl OF %PPtALS DIV I
STATE OF WASHINGTON
2019FE8—5 AHIO:31
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 77668-1-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
KEOVILAYVANH RINTHALUKAY,
a.k.a. RICKY K. MOORE,
)
Appellant. ) FILED: February 5, 2019
ANDRUS, J. — Keovilayvanh Rinthalukay (a.k.a. Ricky K. Moore) appeals
his conviction for identity thefi, contending his out-of-court statement should have
been excluded under the corpus delicti rule. He also challenges his convictions
for unlawful fish accounting and unlawful possession or sale of shellfish. We
reverse his identity theft conviction and affirm the other two convictions.
FACTS
Rinthalukay owns Sea Native USA Ltd., a company that processes and
sells fish and shellfish. Any company engaged in the wholesale buying, selling,
or processing of fish and shellfish in Washington must obtain a wholesale
dealer’s license issued by the Washington Department of Fish & Wildlife
(WDFW). Once a company obtains a dealer’s license, a company representative
No. 77668-1-1/2
must acquire a wholesale fish buyer’s card, a permit required to buy directly at
the dock from the person who caught the fish. A person cannot obtain a buyer
license without being affiliated with a company holding a wholesale dealer
license. Sea Native was licensed as a wholesale dealer, and Rinthalukay was
licensed as the company’s fish buyer.
When a wholesale fish buyer purchases fish or shellfish directly from a
fisher, he must fill out a “fish receiving ticket” or “fish ticket” to document the sale.
WDFW and the Northwest Indian Fisheries Commission (NWIFC) use these
tickets to track commercial harvesting throughout Washington State. The fish
tickets document the identities of the buyer and fisher, date of the sale, location
of the catch, type of species harvested, quantity harvested, price per pound for
each species, and total cost of the product.
The fish receiving ticket is a quintuplicate carbon copy form typically filled
out by the buyer by hand, but part of the form is completed by using an “imprinter
card.” Fishers and dealers are issued license cards, which have raised type like
credit cards. If it is a wholesale buyer card, it identifies the wholesale dealer’s
name and number, while individual buyer cards have an additional line identifying
the fish buyer’s number. The information from these cards is transferred to the
receiving tickets by rubbing a credit-card imprinting machine across the raised
surface of the cards. An imprint of the fisher’s card transfers the fisher’s name,
tribal affiliation (if applicable), and his or her identifying serial number onto the
fish receiving tickets. There are two sections at the top of each fish ticket—the
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left side is used to imprint the fisher’s card; the right side is used to imprint the
dealer’s or buyer’s card.
A wholesale fish buyer who is the “original receiver” of fish or shellfish1 is
legally required to complete the fish ticket and distribute copies to the appropriate
parties. WAC 220-352-090, -130. The buyer must retain the top copy and
distribute the second copy to WDFW, the third copy to NWIFC, the fourth copy to
the tribe, and the last copy to the fisher. The buyer must mail WDFW’s copy no
later than six business days after completing the ticket.2 WDFW gives dealers
some leniency to account for potential mail slowdowns and considers tickets late
if they are received on the ninth business day after they were completed. Failing
to document purchases with fish receiving tickets or failing to submit copies of
the fish tickets to WDFW is a gross misdemeanor. RCW 77.15.630.
WDFW began investigating Rinthalukay after receiving a referral from the
National Marine Fishery Service, a subdivision of the National Oceanic and
Atmospheric Administration (NOAA). WDFW Detective Wendy Willette obtained
a warrant to search both Sea Native’s packing facility and Rinthalukay’s home.
WDFW found 50 fish receiving tickets bearing Rinthalukay’s name as buyer and
documenting fish or shellfish purchases, none of which had been reported to
WDFW.
l The “original receiver” is the person who holds a wholesale fish buyer endorsement and
is the first person in possession of fish or shellfish in the state of Washington who is acting in the
capacity of a buyer. WAC 220-352-010(12).
2 For a treaty Indian fish receiving ticket, WDFW’s copy is sent to NWIFC, which then
sends WDFW its copy.
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WDFW learned that Sea Native stored frozen fish and shellfish at Rainier
Cold Storage. A search of Rainier Cold Storage led to the discovery of five
boxes, or approximately 200 pounds, of frozen geoduck. Although WAC 246-
282-080 requires shellfish for human consumption be packed in approved
containers and stamped with a Washington State Department of Health
certification ticket, only one box of geoduck had the certification ticket attached.
Under RCW 69.30.110(1) and 69.30.140, possession of a commercial quantity of
shellfish packed without the approved Department of Health tag is a gross
misdemeanor.
During the search of Rinthalukay’s home, WDFW also found fish receiving
tickets purporting to document May 2014 sales of Dungeness crab from Jean
Leon Torres, a member of the Skokomish Indian Tribe, to Rinthalukay. These
tickets bore an imprint of Torres’s fisher card and what looked like her signature.
All the tickets had the WDFW, NWIFC, tribal, and fisher’s copies still attached.
The State contended at trial that when Detective Willette interviewed
Rinthalukay, he admitted using Torres’s imprinter card, signing Torres’s name on
the tickets, and creating the tickets to document fake sales to reach the required
threshold to pass an inspection for a NOAA overseas export certificate.
Rinthalukay admitted he created the tickets to mislead the NOAA inspector.
The State charged Rinthalukay with one count of unlicensed first degree
fish dealing in violation of RCW 77.15.620,~ one count of first degree unlawful
~ This charge was based on the fact that Sea Native’s and Rinthalukay’s wholesale
icenses lapsed for a short period of time during which the State alleged they continued to
purchase fish.
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No. 77668-1-1/5
fish and shellfish catch accounting in violation of RCW 77.15.630(2), one count of
unlawful possession or sale of shellfish in violation of ROW 69.30.110(1) and
69.30.140, and one count of identity theft in the second degree, in violation of
ROW 9.35.020(1) and (3).
The jury acquitted Rinthalukay of unlicensed fish dealing but found him
guilty of the other three charges. The trial court sentenced Rinthalukay to 60
days for the unlawful accounting conviction concurrent with 2 months for the
identity theft conviction, each to be served on work release. The court deferred
for 12 months a sentence of unsupervised probation for the misdemeanor of
unlawfully possessing geoduck. Rinthalukay appeals his judgment and sentence.
ANALYSIS
Rinthalukay raises four arguments on appeal. First, he challenges the
evidentiary basis for the identity theft conviction under the corpus delicti rule. He
also contends his conviction for unlawful fish accounting should be reversed
because the evidence was insufficient to prove he was the “original receiver” of
the fish. Rinthalukay also challenges the unlawful possession of geoduck
conviction, arguing there was insufficient evidence to prove that he, rather than
his company, possessed the product. Finally, Rinthalukay contends that RCW
77.15.630 and ROW 69.30.119 are unconstitutionally vague.
A. Identity Theft
Rinthalukay argues the trial court erred in admitting his statement to
investigators, that he forged Torres’s signature to mislead the NOAA inspector,
under the corpus delicti rule. We agree.
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In Count 4, the State alleged:
[Tjhe defendant . did knowingly obtain, possess, use or
. .
transfer a means of identification or financial information, to-wit: the
name and tribal affiliation of another person, living or dead, to-wit:
Jean Leon Torres, knowing that the means of identification or
financial information belonged to another person, with the intent to
commit, or to aid or abet, any crime and obtained an aggregate
total credit, money, goods, services, or anything else of value that
was less than $1500 or obtained no credit, money, goods, services,
or anything of value.
The State alleged Rinthalukay created fish tickets using Torres’s imprint card and
forged her signature because he was applying for a NOAA export certificate to
send the products overseas, and he needed to document a certain amount of
purchases or sales of product to pass a NOAA inspection. The State contended
he used Torres’s identification for the purpose and the intent to commit a crime,
specifically to commit forgery or to make a false or misleading statement to a
public servant.4
Rinthalukay argued at trial any statements he gave to WDFW
investigators were inadmissible, under the corpus delicti rule, to prove identity
theft unless Torres appeared to testify at trial because the State had no
independent evidence of an intent to commit forgery or make false statements to
NOAA. The State contended the fish tickets themselves were evidence of a
crime for three reasons. First, the tickets purported to document sales of
Dungeness crab in May 2014, and a Skokomish tribal biologist, Jonathan Wolf,
would testify that there was no tribal crab fishery open in May 2014. Second, the
The trial court instructed the jury on the elements of forgery and making a false or
misleading statement to a public servant.
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No. 77668-1-1/7
State contended the fish tickets established a crime had been committed
because it was a crime for a fish dealer to purchase crab out of season, although
he was not charged with that crime. Third, the State contended the fish tickets,
with all five copies intact, also evidenced the crime of unlawful fish accounting.
The trial court ruled that the evidence of fish receiving tickets found in
Rinthalukay’s house, each bearing the imprint of Torres’s card and Rinthalukay’s
signature, and that the evidence that no copies of the tickets had been distributed
to anyone as required by regulation was sufficient to satisfy the corpus delicti rule
and allow the State to introduce at trial his statements to Detective Willette.
We review de novo the trial court’s ruling as to whether sufficient
corroborating evidence exists to satisfy the corpus delicti rule. State v.
Hotchkiss, 1 Wash. App. 2d 275, 279, 404 P.3d 629 (2017), review denied, 190
Wash. 2d 1005, 413 P.3d 9 (2018). We assume the truth of the State’s evidence
and all reasonable inferences from that evidence in a light most favorable to the
State. State v. Cardenas-Flores, 189 Wash. 2d 243, 264, 401 P.3d 19 (2017)
(internal quotation marks omitted) (quoting State v. Aten, 130 Wash. 2d 640, 658,
927 P.2d 210 (1996)).
“Corpus delicti means the body of the crime and must be proved by
evidence sufficient to support the inference that there has been a criminal act.”
State v. Brockob, 159 Wash. 2d 311, 327, 150 P.3d 59 (2006) (internal quotation
marks omitted). A defendant’s incriminating statement alone is not sufficient to
establish that a crime took place. Id. at 328. The State must present “evidence
independent of the incriminating statement that the crime a defendant described
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No. 77668-1-1/8
in the statement actually occurred.” ki. While the independent evidence need
not be sufficient to support a conviction, it “must provide prima facie
corroboration of the crime described in a defendant’s incriminating statement.”
Id.
We start our analysis with the crime the State contends was described by
Rinthalukay in his statement. During WDFW’s investigation, Detective Willette
asked Rinthalukay about his association with Torres. Rinthalukay told Detective
Willette he made a copy of Torres’s Bureau of Indian Affairs imprint card because
he did not “trust [her] character.” He initially denied ever purchasing fish or
shellfish from Torres.
When Detective Willette showed Rinthalukay the fish tickets bearing
Torres’s name found in a briefcase in Rinthalukay’s car, he stated he used the
records to pass a NOAA inspection. He stated he asked Torres “to do me favor
to generate these record.” Rinthalukay told Detective Willette he used the fish
tickets during a NOAA audit to show that his company, Sea Native, had
processed Dungeness crab through its plant. He admitted he had arranged with
Torres to create the fish tickets to show to the NOAA inspector even though there
was no actual purchase. After initially denying he signed Torres’s name to the
tickets, Rinthalukay eventually admitted he signed her name to all five tickets
without her knowledge.
Rinthalukay contends the State had no independent evidence he intended
to forge Torres’s signature or to mislead NOAA. We agree.
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No. 77668-1-1/9
A person commits forgery when, with the intent to injure or defraud, he
possesses a written instrument which he knows to be forged. RCW 9A.60.020.
In addition, knowingly making a false or material misleading statement to a public
servant is a gross misdemeanor. RCW 9A.76.175. Both crimes require
evidence of intent—intent to injure or defraud either Torres or NOAA, or intent to
mislead NOAA.
As it did at trial, the State relies on the fish tickets themselves as evidence
of Rinthalukay’s intent to commit a crime. The five copies of the tickets were
intact, meaning Rinthalukay had not forwarded the sales documentation to
WDFW as required by law. The fish tickets could be evidence of the crime of
unlawful fish accounting under RCW 77.16.630, but that crime is not the crime
Rinthalukay described to Detective Willette. Under Brockob, the evidence must
corroborate “not just a crime but the specific crime with which the defendant has
been charged.” 159 Wash. 2d at 329. Evidence of unlawful fish accounting does
not corroborate an intent to defraud Torres or NOAA, or to mislead NOAA.
Moreover, the State had no evidence the crab purchases reflected in the
tickets actually occurred. If no fish or shellfish were landed, there is no violation
of the fish accounting statute. As Rinthalukay stated at trial, “[nb crime could be
committed by filling out fish receiving tickets and then never using them.” The
evidence supports the inference Rinthalukay filled out fish tickets, but without
Rinthalukay’s statements to Detective Willette, it is pure speculation as to his
intent in doing so.
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No. 77668-1-1/10
The case is thus analogous to Brockob. In that case, the Supreme Court
reversed Brockob’s conviction for possession of ephedrine with intent to
manufacture methamphetamine. ki. at 319-20. It concluded the evidence
against Brockob supported the inference he intended to steal Sudafed but did not
support an inference he intended to manufacture methamphetamine, the crime
with which he had been charged. j~ at 331-32. Similarly, the fish tickets here
may support the inference that Rinthalukay filled out the fish tickets using
Torres’s imprint card, but they do not by themselves corroborate the allegation
that Rinthalukay used Torres’s imprint card with the intent to commit a forgery or
to mislead NOAA.
The State also relies on evidence that the date on the fish tickets, May
2014, was outside of any tribal crab season. The State argues that this evidence
supports only one logical inference—that Torres would not have fished for crab
during the season closure, thereby establishing Rinthalukay’s intent to commit
the crime of forgery. But, the State had no admissible evidence that Torres did
not use her imprint card on the fish tickets or sign them herself. “Intent may not
be inferred from evidence that is patently equivocal.” State v. Vasciuez, 178
Wash. 2d 1, 8, 309 P.3d 318 (2013) (internal quotation marks omitted) (quoting
State v. Woods, 63 Wash. App. 588, 592, 821 P.2d 1235 (1991)). The mere
possession of fish tickets purporting to bear Torres’s signature and an impression
of her card is insufficient to infer intent to commit forgery.
We know nothing about Torres and whether she would or would not poach
crab, or whether she would or would not sign fish tickets for Rinthalukay outside
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No. 77668-1-I/Il
of a tribal crab season. Prima facie corroboration exists if the independent
evidence supports a reasonable and logical inference of the facts the State seeks
to prove. Brockob, 159 Wash. 2d at 328. The trial court inquired of the State if it
had any independent evidence from someone familiar with Torres’s signature
that the handwriting on the form was not hers. The State conceded it had no
such evidence. Without some evidence Torres did not sign the fish tickets
herself or did not give Rinthalukay permission to use her imprinter card, we
cannot infer Rinthalukay intended to commit forgery.
The State proffered evidence that Torres reported to the Skokomish Tribe
she did not sell fish or shellfish to Rinthalukay, she did not use her imprinter on
any fish tickets for him, and she did not sign the forms. However, Torres did not
testify at trial. Her statements to third parties were, therefore, inadmissible
hearsay, insufficient to corroborate Rinthalukay’s incriminating statement. ~
State v. Ryan, 103 Wash. 2d 165, 178, 691 P.2d 197 (1984) (reversing conviction
because corpus delicti not established when hearsay statements were only
evidence other than defendant’s confession); cL State v. Ackerman, 90 Wash. App.
477, 485 953 P.2d 816 (1998) (Admissible hearsay statements are sufficient to
corroborate a confession.”) (emphasis added); State v. Biles, 73 Wash. App. 281,
285, 871 P.2d 159 (1994) (same). We, thus, cannot consider this proffer in our
assessment of the sufficiency of the State’s corroborating evidence.
We reverse Rinthalukay’s identity theft conviction because the
independent evidence was insufficient to corroborate his incriminating statements
to investigators.
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B. Unlawful Fish Accounting
Rinthalukay argues the State did not prove he was the original receiver”
of the fish because Sea Native was the entity that took possession of the fish. As
a result, he argues there was insufficient evidence that he was responsible for
submitting the fish tickets. We disagree.
In a sufficiency of the evidence challenge, this court draws all inferences
from the evidence in favor of the State and against the defendant. State v.
Smith, 155 Wash. 2d 496, 501, 120 P.3d 559 (2005). We uphold a conviction and
find sufficient evidence where a rational trier of fact could find that all elements of
the crime were proved beyond a reasonable doubt. ki.
The jury was instructed that a person is guilty of unlawful fish and shellfish
catch accounting in the first degree:
when he or she is licensed as a wholesale fish dealer or fish buyer,
or is not so licensed but is acting in such a capacity, receives fish or
shellfish for a commercial purpose, intentionally fails to submit the
fish receiving ticket to the Department of Fish and Wildlife as
required by statute or Department of Fish and Wildlife rule, and the
value of the fish or shellfish involved is $250 or more.
(emphasis added); see RCW77.15.630.
The regulations require that the ‘original receiver’ of the fish has the
obligation to properly distribute the fish receiving tickets to all entities, including
WDFW. See WAC 220-352-090, 220-69-240. The original receiver is defined as
“the first person in possession of fish or shellfish who is acting in the capacity of a
buyer.” WAC 220-352-010(12).
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No. 77668-1-1/13
At trial, Marjorie Morningstar, the commercial harvest data manager for
WDFW testified that Detective Willette gave her a list of 50 fish receiving tickets
seized from Rinthalukay’s home and Sea Native’s offices to see if WDFW had
received its copy of those tickets. Morningstar searched both by Sea Native’s
company name—including its previous name, Sea Ltd.—and by the 50 individual
ticket numbers, confirming WDFW had not received its copy of any of the 50
tickets.5
Detective Willette testified that her investigators discovered several fish
receiving tickets in Rinthalukay’s truck that showed Rinthalukay was the fish
buyer. These tickets were intact, meaning each still had copies intended for the
appropriate regulatory agency affixed to them. Detective Willette also found
other improperly processed fish receiving tickets, showing Rinthalukay as the
buyer with the State’s and NWIFC’s copies still attached, in several locations—
including the trash can in the office at the Sea Native plant, on the main desk at
the Sea Native plant, in the portable container in the garage at Rinthalukay’s
home, and on a desk in Rinthalukay’s home office. Each of the tickets not
properly submitted to WDFW identified Rinthalukay as the buyer, and each bore
both his signature and buyer’s card number.
Finally, the State presented witnesses who testified they caught fish or
shellfish and sold it directly to Rinthalukay at the dock.
This evidence is more than sufficient to prove that Rinthalukay was acting
in the capacity of a fish buyer, even if he was buying on behalf of Sea Native. He
~ Ultimately1 the State only prosecuted 12 of the 50 tickets.
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No. 77668-1-1/14
went to the docks and bought fish directly from the fishers. He took possession
of the fish he purchased. He documented the purchases by filling out the fish
tickets with his fish buyer card number, identifying himself as the buyer, and
signing each ticket. The evidence also showed that Rinthalukay was almost
solely responsible for all corporate actions taken in Sea Native’s name. Some of
the fish tickets in question were found at Rinthalukay’s home, further blurring the
line between Rinthalukay and Sea Native. A rational trier of fact could find that
Rinthalukay was the original receiver of the fish and that he failed to distribute the
receiving tickets to the regulatory agencies per the regulations. Therefore, we
affirm the jury’s finding that Rinthalukay was guilty of unlawful fish accounting.
C. Unlawful Possession or Sale of Shellfish
Next, Rinthalukay argues that he cannot be criminally liable for possessing
untagged geoduck because it was Sea Native, and not he, who possessed the
untagged geoduck. He also argues that he cannot be guilty under the
accomplice liability statute. Neither of these arguments is supported by the facts
or the law.
Washington State regulations incorporate the US Food and Drug
Administration’s National Shellfish Sanitation Program (NSSP) requirements that
harvested shellfish be identified by an approved certification tag with permanent
marking. WAC 246-282-080(2). Robin Banes, a shellfish inspector with the
Washington State Department of Health, testified that the certification tags, which
must always be affixed to the container, identify where the shellfish was
harvested, the date it was harvested, the amount that was harvested, and the
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No. 77668-1-1/15
company that harvested it. Banes explained another purpose of the certification
tags is to identify the conditions that were present for that particular lot of
shellfish because the biotoxin levels6 in a particular area can change from day to
day.
Randall Klein, plant manager for Rainier Cold Storage, testified that the
company received six cases of unfrozen geoduck from Sea Native. Sergeant
Erik Olson, with WDFW police, testified that of the six boxes, only one bore the
required Department of Health certification tag. Even that box’s label, however,
was incomplete as it was missing the quantity and the original shipper
information.
The jury instruction required either that Rinthalukay knowingly possessed
a commercial quantity of untagged geoduck or that Sea Native possessed the
geoduck and that Rinthalukay was legally accountable for Sea Native’s actions.
RCW 69.30.110(1); WAC 246-282-080. Because the jury was instructed on
both theories, each must be supported by adequate evidence to survive a
sufficiency challenge. State v. Collins, 76 Wash. App. 496, 501, 886 P.2d 243
(1995).
Rinthalukay does not dispute that the geoduck was improperly tagged. He
argues, however, that the State presented no evidence that he, rather than Sea
Native, possessed this shellfish. But, Rinthalukay presented this missing
evidence himself. Rinthalukay testified he did not know how the untagged
6 Shellfish companies in Washington must follow food and safety regulations established
by the NSSP and incorporated into Washington law through WAC 246-282-005.
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No. 77668-1-1/16
geoduck was shipped to Rainier Cold Storage. Rinthalukay admitted, however,
that “I told my either driver or person who in charge of the house, ‘Hey, this has
been long time from our warehouse. Get rid of it. I don’t care where it go.”
Although RCW chapter 69.30, which governs sanitary control of shellfish, does
not define “possess” or “possession,” courts have recognized the concept in
criminal cases as requiring proof of either actual physical possession or
constructive possession through dominion and control. See State v. Shumaker,
142 Wash. App. 330, 334, 174 P.3d 1214 (2007) (constructive possession means
no actual physical possession but dominion and control over substance or over
the premises on which the substance was found). Rinthaukay had sufficient
dominion or control over the geoduck to instruct a driver to dispose of it. Based
on this evidence, a rational trier of fact could conclude that Rinthalukay did
knowingly “possess” the improperly tagged geoduck.
There was also sufficient evidence to convict Rinthalukay for Sea Native’s
possession of the untagged geoduck under the accomplice liability statute.
Washington’s general accomplice liability statute provides that a “person is guilty
of a crime if it is committed by the conduct of another person for which he or she
is legally accountable.” RCW 9A.08.020(1). A “person is legally accountable for
the conduct of another person when . . . he or she is made accountable for the
conduct of such other person by [Title 9A.08j or by the law defining the crime.”
RCW 9A.08.020(2)(b).
The State relied on two separate provisions of Title 9A.08 to argue
Rinthalukay was liable for Sea Native’s possession of geoduck. Under RCW
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No. 77668-1-1/17
9A.08.030(3), a person is liable for conduct he performs or causes to be
performed in the name of or on behalf of a corporation to the same extent as if
such conduct were performed in his own name or behalf. And under ROW
9A.08.030(4), if a corporation has a duty to act, any agent who knows he shares
primary responsibility for discharging that duty is liable for recklessly omitting that
act to the same extent as if the duty were imposed directly upon the agent. If the
agent is a high managerial agent, he is liable for negligently omitting the act.
Despite any legal distinction between Rinthalukay and Sea Native,
evidence established Rinthalukay acted as a high managerial agent of Sea
Native. Rinthalukay was the owner of Sea Native and was listed with the
Washington Secretary of State as its president, chairman, and registered agent.
Sea Native had no other full time employees, and Rinthalukay operated the
business at least in part from his personal residence, an address he listed with
the Secretary of State as an alternative address for the corporation.
In addition, the State produced evidence that as owner of Sea Native,
Rinthalukay’s job duties included, among other things, managing the plant,
overseeing governmental required recordkeeping activities, supervising inventory
control, working with tribal fisheries and partners, preparing invoices for
customers, and traveling to meet with tribal fishers to receive product. It was
Rinthalukay who signed Sea Native applications for its wholesale dealer license
and Rinthalukay’s buyer license. It was Rinthalukay who telephonically provided
Detective Willette with the locked gate code to enter Sea Native’s plant to
execute the search warrant.
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No. 77668-1-1/18
Detective Willette also testified Rinthalukay was responsible for ensuring
compliance with Sea Native’s recordkeeping obligations. Letters from WDFW—
warning Rinthalukay of his failure to comply with fish ticket requirements—were
found in an office at Sea Native’s plant. Additional warning letters from WDFW
were found in Rinthalukay’s garage.
According to Department of Health inspector Rob Banes, whenever he
conducted an inspection of Sea Native’s plant, Rinthalukay was the only person
who accompanied him through the plant. He never had interactions with any
other managerial employees other than Rinthalukay. Additionally, when Banes
conducted an inspection in March 2013, he notified Rinthalukay of the
information the Department of Health required him to include on shellfish
certification tags and when a certification tag was needed.
This evidence is sufficient to lead a rational jury to find Rinthalukay was
legally accountable for Sea Native’s failure to properly tag the containers holding
geoduck. Thus, we conclude that there was sufficient evidence for the jury to
find both that Rinthalukay himself knowingly possessed the improperly tagged
geoduck or that Sea Native possessed the improperly tagged geoduck and
Rinthalukay was legally accountable for this conduct.
D. Constitutionality of RCW 77.15.630 and RCW 69.30.110
Finally, Rinthalukay contends his convictions for unlawful fish sales
accounting and unlawful possession of geoduck should be reversed because the
regulations do not sufficiently define who is responsible for the violations—the
corporation engaged in commercial fish processing or the individual working for
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No. 77668-1-1/19
that corporation. He contends that the statutes at issue, RCW 77.15.630 and
RCW 69.30.110, are unconstitutionally vague under the due process clause of
the Fourteenth Amendment.
The due process clause of the Fourteenth Amendment requires that
citizens be afforded fair warning of proscribed conduct.” City of Spokane v.
Douglass, 115 Wash. 2d 171, 178, 795 P.2d 693 (1990). A statute is void for
vagueness if either “(1) the statute does not define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
proscribed; or (2) the statute does not provide ascertainable standards of guilt to
protect against arbitrary enforcement.” State v. Watson, 160 Wash. 2d 1, 6, 154
P.3d 909 (2007) (internal quotation marks omitted) (quoting State v. Williams,
144 Wash. 2d 197, 203, 26 P.3d 890 (2001)). A statute is unconstitutional if it fails
under either prong of this test. Williams, 144 Wash. 2d at 204.
We presume statutes are constitutional. State v. Jacobson, 92 Wash. App.
958, 967, 965 P.2d 1140 (1998). Rinthalukay bears the burden of proving
beyond a reasonable doubt that a statute is unconstitutionally vague. ith A
vagueness challenge not involving rights protected by the First Amendment must
be evaluated in light of the particular facts of each case. Watson, 160 Wash. 2d at
6.
The State argues that the regulations and statutes administering
commercial fisheries are complicated, but this complexity does not make the
laws unconstitutionally vague. We agree. Rinthalukay does not argue that the
regulatory complexity makes it impossible to determine what conduct is
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prohibited. Instead, he contends the statutory scheme makes it unclear whether
only a corporation or its owner can be criminally liable. This argument is not well-
founded.
RCW 77.15.630(1)(c) makes it illegal for a licensed wholesale fish buyer
to buy or deliver fish or shellfish without delivering a fish receiving ticket to the
appropriate regulatory agencies. RCW 69.30.110 makes it unlawful for any
person” to possess a commercial quantity of shellfish when not packed in
accordance with that chapter. The general criminal laws explain when an
individual will be criminally liable for corporate violations of these two provisions.
RCW 9A.08.030(3) provides:
A person is criminally liable for conduct constituting an offense
which he or she performs or causes to be performed in the name of
or on behalf of a corporation to the same extent as if such conduct
were performed in his or her own name or behalf.
Jury instruction No. 35 reflected this statutory provision. The statutory language
is quite clear. If a person buys fish on behalf of a corporation or in the name of
the corporation, and then fails to deliver the requisite fish ticket, he can be held
criminally liable for this act under RCW 77.15.630(1)(c). Similarly, under RCW
69.30.110, if a person takes possession of a commercial quantity of fish on
behalf of or in the name of a corporation, and fails to ensure it is properly tagged,
he can be held criminally liable for this act.
RCW 9A.08.030(4) provides:
Whenever a duty to act is imposed by law upon a corporation, any
agent of the corporation who knows he or she has or shares
primary responsibility for the discharge of the duty is criminally
liable for a reckless or, if a high managerial agent, criminally
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negligent omission to perform the required act to the same extent
as if the duty were by law imposed directly upon such agent.
Instruction Nos. 39 through 41 advised the jury on this statutory provision and
provided definitions of “agent,” “high managerial agent,” recklessness, and
criminal negligence. This provision is also clear—if an agent of a corporation
knows he has primary responsibility for discharging the corporation’s duty to
send fish tickets to WDFW or to verify accurate tagging of geoduck, and is
reckless in discharging this duty, he can be liable. If the person holds a “high
managerial” position within the corporation, a criminally negligent failure to act
suffices to impose liability.
We conclude that by reading RCW 9A.08.030 in conjunction with RCW
77.15.630 and RCW 69.30.110, the statutes define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
proscribed. As a result, the statutes provide ascertainable standards of guilt to
protect against arbitrary enforcement and are not unconstitutionally vague.
We reverse Rinthalukays identity theft conviction and affirm his
convictions for unlawful fish sales accounting and unlawful possession of
geoduck.
WE CONCUR: /
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