State Of Washington, V. Guang Zheng & Dan Yu

Filed
Washington State
Court of Appeals
Division Two
July 7, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 54103-3-II
Respondent, consolidated with
v.
GUANG NONE ZHENG,
Appellant.
STATE OF WASHINGTON, No. 54106-8-II
Respondent,
v.
DAN YU, PUBLISHED OPINION
Appellant.
GLASGOW, A.C.J.Guang None Zheng and Dan Yu were convicted as accomplices of
practicing massage without licenses, a gross misdemeanor for the first offense, and a felony for
additional offenses. Zheng and Yu appeal their convictions, arguing that the trial court should have
granted their motion to dismiss. They contend that the general gross misdemeanor/felony statute
making it a crime to practice a licensed profession without a license, under which they were
charged, was concurrent with a specific misdemeanor statute that applies to business owners who
permit their employees to give unlicensed massages. Where two statutes are concurrent, Zheng
and Yu argue, Washington law requires the State to charge the specific offense. They further claim
Nos. 54103-3-II and 54106-8-II
that even if the statutes here are not concurrent, they conflict with each other, which meant the
State should have charged them under the more specific misdemeanor statute.
We affirm. The statutes are not concurrent, nor do they conflict. The State properly charged
Zheng and Yu under the gross misdemeanor/felony statute.
FACTS
Zheng and his wife Yu owned and operated a massage business, Treat Your Feet, in
Lakewood, which employed about 20 people.
Between October 2015 and March 2018, the Lakewood Police Department conducted an
undercover investigation into Treat Your Feet. When the officers visited the business, Zheng or
Yu would greet them at the front counter, “escort the officer to a private massage room, direct the
officer to undress, then leave the room, and shortly thereafter an employee would enter the room
and perform the body massage on the officer.” Clerk’s Papers (CP) at 109. The officers then paid
Zheng or Yu for the massage and tipped the employee. During the investigation, multiple
employees gave two massages each to undercover officers.
The Lakewood Police Department also tracked the defendants and employees through
surveillance. Zheng and Yu frequently picked up the employees from apartments leased under
Zheng’s name, drove them to work, and brought them back home at the end of the day. The officers
obtained a warrant and searched Zheng and Yu’s house, the employees’ apartments, and Treat
Your Feet. They did not find any employment records, tax documents, time cards, pay stubs, or
massage licenses in any of the locations searched.
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The officers then arrested seven Treat Your Feet employees. Four employees agreed to an
interview after being informed of their Miranda1 rights. Each of these four employees admitted
she was not licensed to practice massage in Washington and said that “the ‘boss’ or ‘bosses’ knew
she did not have a valid massage license.” CP at 224. The employees also told the officers they
learned about employment at Treat Your Feet through an advertisement online, and two of the
employees moved to Washington to work there.
The employees said that “they were only paid for the massages they did, by percentage of
the total cost, and that they each had to wash laundry and perform cleaning duties that were not
compensated.” CP at 109. They also told the officers that Zheng and Yu deducted “‘rent’” from
their wages for the apartments they stayed in. Id.
Yu held a valid license to practice massage in Washington, but the officers verified that
none of the four employees who gave massages to the undercover officers had licenses. When
customers came into the business, Zheng or Yu would “assign[] a specific employee to conduct a
body massage on the paying customers” and “require[]” that employee to conduct the massage.
CP at 110-11.
The State originally charged Zheng and Yu with 14 counts of the unlawful practice of a
profession without a license under RCW 18.130.190(7). The information alleged that Zheng and
Yu were liable as accomplices for the conduct of their employees who gave unlicensed massages.
Under the statute, a first violation is a gross misdemeanor and every subsequent violation is a
felony. RCW 18.130.190(7)(a), (b). Because seven unlicensed employees each gave two massages
during the undercover investigation, the State initially charged Zheng and Yu with seven gross
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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misdemeanors for each employee’s first massage and seven felonies for each employee’s second
massage.
Zheng and Yu moved to dismiss all charges, arguing that the State should have charged
them under RCW 18.108.035, a misdemeanor offense that applies to owners or operators of
massage businesses who allow or permit the unlicensed practice of massage. The trial court denied
Zheng and Yu’s motion to dismiss.
The parties then agreed to a bench trial based on stipulated facts. The State reduced the
charges for both Zheng and Yu to four counts under the gross misdemeanor prong and four counts
under the felony prong of RCW 18.130.190(7). The trial court found them guilty of all counts.
Zheng and Yu appeal their convictions.
ANALYSIS
A. Statutory Concurrency
The central issue in this case is whether RCW 18.130.190(7) (unlawful practice of a
profession without a license) and RCW 18.108.035 (permitting an unlicensed employee to practice
massage) are concurrent statutes for purposes of the “general-specific” rule. “‘The general-specific
rule is a well established rule of statutory construction.’” State v. Numrich, 197 Wn.2d 1, 13, 480
P.3d 376 (2021) (quoting State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984)). Under this
rule, “‘[if] a special statute punishes the same conduct [that] is punished under a general statute,
the special statute applies and the accused can be charged only under that statute.’” Id. (alterations
in original) (internal quotation marks omitted) (quoting Shriner, 101 Wn.2d at 580). Put another
way, whenever two concurrent statutes govern the same subject matter and cannot be harmonized,
the specific statute prevails “‘unless it appears that the legislature intended to make the general act
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Nos. 54103-3-II and 54106-8-II
controlling.’” Id. (internal quotation marks omitted) (quoting State v. Conte, 159 Wn.2d 797, 803,
154 P.3d 194 (2007)).
The general-specific rule applies only when two statutes are concurrent. Id. Statutes are
concurrent when “‘the general statute will be violated in each instance where the special statute
has been violated.’” Id. (quoting Shriner, 101 Wn.2d at 580). “‘The determinative factor is whether
it is possible to commit the specific crime without also committing the general crime.’” State v.
Ou, 156 Wn. App. 899, 902-03, 234 P.3d 1186 (2010) (quoting State v. Crider, 72 Wn. App. 815,
818, 866 P.2d 75 (1994)). For purposes of the general-specific test, “‘[i]t is not relevant that the
special statute may contain additional elements not contained in the general statute.’” Numrich,
197 Wn.2d at 13 (quoting Shriner, 101 Wn.2d at 580).
“Statutes are concurrent if all of the elements to convict under the general statute are also
elements that must be proved for conviction under the specific statute.” Ou, 156 Wn. App. at 903.
And because we consider the elements that must be proved for a conviction under each statute in
the abstract, we look at “the elements of the statutes, not the facts of the particular case.” Id. In
sum, if there is any possible way for a person to violate the specific statute but not the general
statute, the two statutes cannot be concurrent. See id. at 902. We review this question de novo.
Numrich, 197 Wn.2d at 13.
B. Whether the Statutes Are Concurrent
Zheng and Yu argue that the general gross misdemeanor/felony offense for practicing a
profession without a license and the specific misdemeanor offense for business owners who allow
the unlicensed practice of massage are concurrent. They propose we should not consider
accomplice liability requirements when analyzing concurrency. Without considering accomplice
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Nos. 54103-3-II and 54106-8-II
liability, they explain, any violation of the specific misdemeanor statute, which has a mens rea
element of knowledge or criminal negligence, must be a violation of the gross misdemeanor/felony
statute, which has no mens rea element. We disagree.
Under the specific misdemeanor statute, “[a]ny person who with knowledge or criminal
negligence allows or permits the unlicensed practice of massage therapy . . . to be committed within
his or her massage business is guilty of a misdemeanor for a single violation.” RCW 18.108.035(1).
Each subsequent violation is a gross misdemeanor. RCW 18.108.035(2). To prove a violation of
this statute, the State must meet a mens rea element of either knowledge or criminal negligence.
RCW 18.108.035(1).
Under RCW 9A.08.010(b), “[a] person . . . acts . . . with knowledge when . . . [they are]
aware of a fact . . . or circumstances or result described by a statute defining an offense; or . . .
[have] information which would lead a reasonable person in the same situation to believe that
[such] facts exist.” A person acts with criminal negligence when they “fail[] to be aware of a
substantial risk that a wrongful act may occur and [their] failure to be aware of such substantial
risk constitutes a gross deviation from the standard of care that a reasonable person would exercise
in the same situation.” RCW 9A.08.010(d).
Under the general statute, any person who engages in the “[u]nlicensed practice of a
profession or operating a business for which a license is required” is guilty of a gross misdemeanor
for a single violation and a felony for each subsequent violation. RCW 18.130.190(7)(a), (b).
Massage therapy requires a license. RCW 18.130.040(2)(a)(iv). Because RCW 18.130.190(7) has
no mens rea element, the unlawful practice of a licensed profession is a strict liability offense.
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Nos. 54103-3-II and 54106-8-II
Under RCW 9A.08.020(3)(a), an accomplice is a person who acts with the “knowledge
that [their conduct] will promote or facilitate the commission of the crime” and who “[s]olicits,
commands, encourages, or requests [another] person to commit [the crime]” or who “[a]ids or
agrees to aid [another] person in planning or committing” the crime. See also 11 WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.51 (5th ed. 2021).
As an initial matter, we reject Zheng and Yu’s contention that we do not consider the
requirements of accomplice liability in determining what elements the State would need to show
in this case to obtain a conviction under the gross misdemeanor/felony statute. Rather, we follow
Division One’s approach in State v. Elliott, 54 Wn. App. 532, 534-35, 774 P.2d 530 (1989). There,
Division One applied the general-specific concurrency test and included the elements of
accomplice liability in assessing what the State needed to prove to convict the defendant of being
an accomplice to prostitution. Id.The State could have proven that Zheng and Yu violated the specific misdemeanor statute
by showing that they allowed or permitted their employees to practice unlicensed massage while
acting with a mental state of either “knowledge or criminal negligence.” RCW 18.108.035(1)
(emphasis added). Under the criminal negligence prong, the State would need to establish only
that Zheng and Yu “fail[ed] to be aware of a substantial risk” that unlicensed massage could occur
in their business and that this failure was “a gross deviation from the standard of care that a
reasonable person would exercise in the same situation.” RCW 9A.08.010(d).
To obtain a conviction under the general gross misdemeanor/felony statute, the State must
prove the defendant practiced a profession without a license as either a principal or an accomplice.
See RCW 18.130.190(7); see also RCW 9A.08.020(3)(a). Here, only accomplice liability was at
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Nos. 54103-3-II and 54106-8-II
issue. To prove that Zheng and Yu were accomplices to the unlicensed practice of massage, the
State had to show they knew that their actions would facilitate practicing massage without a license
and that they solicited, commanded, encouraged, requested, or aided another person in committing
that offense. RCW 9A.08.020(3)(a).
Here, the two statutes are not concurrent because the general gross misdemeanor/felony of
practicing massage without a license as an accomplice will not “‘be violated in each instance where
the special statute has been violated.’” Numrich, 197 Wn.2d at 13 (quoting Shriner, 101 Wn.2d at
580)). Proving that Zheng and Yu allowed or permitted their employees to practice unlicensed
massage while acting with criminal negligence would not meet the elements of practicing massage
without a license as accomplices. First, criminal negligence is unequivocally a lower mental state
than knowledge, which is required for accomplice liability. RCW 9A.08.010(1)(b), (d); see also
State v. Koch, 157 Wn. App. 20, 39, 237 P.3d 287 (2010). Second, an owner of a massage business
who allows or permits an employee to practice massage without a license has not necessarily
solicited, commanded, encouraged, requested, or aided another person in committing the crime of
unlicensed massage. RCW 9A.08.020(3)(a). For both reasons, it is possible to violate RCW
18.108.035, the specific misdemeanor statute, without also violating the general gross
misdemeanor/felony statute, RCW 18.130.190(7). The two statutes are not concurrent. See
Numrich, 197 Wn.2d at 13; Ou, 156 Wn. App. at 902.2
2
Even if we were to consider the general gross misdemeanor/felony statute without looking to
accomplice liability, the State must prove that the defendant practiced without a license, not just
that they allowed someone else to do so. The statute also makes it illegal to operate a business
without a required license, but there has been no allegation that Treat Your Feet lacked appropriate
business licenses, only that individual masseuses were unlicensed.
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C. Whether the Statutes Otherwise Conflict
Zheng and Yu argue that even if the statutes are not concurrent, the State nonetheless
charged them incorrectly. The defendants contend that the two statutes are in “apparent conflict[]”
with each other and when this occurs, “courts generally give preference to the more specific and
more recently enacted statute.” Opening Br. of Appellant (Zheng) at 16. We reject Zheng and Yu’s
argument.
Zheng and Yu are correct that a “well-established principle of statutory construction
provides that apparently conflicting statutes must be reconciled to give effect to each of them.”
Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000). It is also correct that courts
“generally give preference to the more specific and more recently enacted statute” when resolving
statutory conflicts. Id. We review questions of statutory construction de novo. Gronquist v. Dep’t
of Corr., 196 Wn.2d 564, 568, 475 P.3d 497 (2020).
We disagree, however, that the statutes conflict. By its plain language, the gross
misdemeanor/felony statute criminalizes unlicensed massage by people who themselves give
unlicensed massages or those who are so closely involved in the practice of unlicensed massage
that they can be convicted as accomplices because they knowingly facilitated the offense. RCW
18.130.190(7); RCW 9A.08.020(3). By contrast, the misdemeanor applies to owners of massage
businesses who merely knew or should have known their employees were unlicensed and allowed
or permitted the employees to give massages. RCW 18.108.035. These statutes generally address
different conduct. But even if some conduct is covered by both statutes, the Supreme Court
recently explained in Numrich that “it is not unusual in criminal law that multiple statutes can be
violated by the same set of facts.” 197 Wn.2d at 17. This alone does not create an irreconcilable
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conflict between the statutes. We hold that the statutes do not otherwise conflict and that the State
properly charged Zheng and Yu under RCW 18.130.190(7).
CONCLUSION
We hold that a person can violate RCW 18.108.035 without necessarily violating RCW
18.130.190(7). The two statutes therefore are not concurrent, nor do they otherwise conflict.
Because the State properly charged Zheng and Yu under RCW 18.130.190(7), we affirm their
convictions.
Glasgow, A.C.J.
We concur:
Sutton, J.
Veljacic, J.
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