State v. Fedorov, 69743–9–I.

• Citation: 324 P.3d 784,181 Wash.App. 187
• Decision Date: 12 May 2014
• Docket Number: No. 69743–9–I.,69743–9–I.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Vadim FEDOROV, Appellant.

181 Wash.App. 187

324 P.3d 784

STATE of Washington, Respondent,

v.Vadim FEDOROV, Appellant.

No. 69743–9–I.

Court of Appeals of Washington,

Division 1.

May 12, 2014.

Washington Appellate Project, Lila Jane Silverstein, David L. Donnan, Washington Appellate Project, Seattle, WA, for Appellant/Cross–Respondent.

Seth Aaron Fine, Attorney at Law, Mary Kathleen Webber, Snohomish County Prosecutors Office, Everett, WA, for Respondent/Cross–Appellant.

LAU, J.

¶ 1 Vadim Fedorov appeals from the judgment and sentence entered after a Snohomish County jury found him guilty of second degree identity theft. Because (1) the passage of time and change of circumstances did not render the Miranda¹ warnings stale, (2) the evidence sufficiently established that Fedorov used the name of a specific, real person with intent to commit a crime, (3) the court was not required to instruct the jury as to the specific crime Fedorov intended to commit, and (4) the court's reasonable doubt instruction properly stated the law, we affirm.

FACTS

¶ 2 On October 7, 2012, Everett Police Officer Christopher Reid stopped Fedorov for speeding. Fedorov had no driver's license. Officer Reid asked him for his name and date of birth. He identified himself as Zachary Anderson with an August 31, 1984 birth date. A computer search showed multiple arrest warrants for an individual named Zachary Anderson, born on August 30, 1984. Officer Reid decided the match was sufficiently close and arrested Fedorov on the warrants. Officer Shane Nelson read Fedorov his Miranda rights in Officer Reid's presence. Fedorov said he understood those rights and was willing to talk to the officers.

¶ 3 Still not convinced that Fedorov was who he claimed to be, officers took his fingerprints and compared them to the known prints for Zachary Anderson. ² Officers determined Fedorov's true name was Vadim Fedorov. At trial, Sergeant George Hughes testified that he contacted Fedorov in the booking area after learning about the fingerprint results:

Q. ... You took that information. You went out to that area?

A. Yes. And I walked up by one of the deputy stations and I called for, I think it was a Zachary and then an Anderson. And then finally I called for Fedorov, and Mr. Fedorov raised his hand.

I motioned him to come up to me, and he came up. And I said, “You know, it really pisses me off. You waste our time like this. Why didn't you just tell me who you were?” I said, “Do you think we're stupid?” And he says, “Yeah.” I said, “Go sit down.”

Q. Okay. And when you called out the name for Zachary Anderson, did the defendant have any kind of, did he display any kind of physical—anything?

A. He was just looking around the room. Yeah.

Q. Any other statements the defendant made at that point?

A. I didn't talk to him any further.

Report of Proceedings (RP) (Dec. 18, 2012) at 137–38.

¶ 4 The State charged Fedorov with second degree identity theft, alleging he used the identity of Zachary Anderson, born on August 30, 1984, to mislead a public servant. A jury found Fedorov guilty as charged. Fedorov appeals.

ANALYSIS

Voluntariness of Statements

¶ 5 Fedorov first contends the trial court erroneously denied his CrR 3.5 motion to suppress the above-quoted statements he made at the jail to Sergeant Hughes, who questioned Fedorov about his identity. He argues the passage of time and changed circumstances rendered the Miranda warnings “stale.” Br. of Appellant at 2. According to Fedorov, fresh Miranda warnings were required before Sergeant Hughes questioned him. The parties agree the questioning constituted custodial interrogation for Miranda purposes. The issue here is whether Sergeant Hughes's failure to issue fresh Miranda warnings before questioning Fedorov rendered Fedorov's responses involuntary and, thus, inadmissible.

¶ 6 The United States Supreme Court “has eschewed per se rules mandating that a suspect be re-advised of his rights in certain fixed situations in favor of a more flexible approach focusing on the totality of the circumstances.” United States v. Rodriguez–Preciado, 399 F.3d 1118, 1128 (9th Cir.2005). Generally, “[w]here a defendant has been adequately and effectively warned of his constitutional rights, it is unnecessary to give repeated recitations of such warnings prior to the taking of each separate in-custody statement.” State v. Duhaime, 29 Wash.App. 842, 852, 631 P.2d 964 (1981) (fresh warnings held unnecessary where the defendant signed a written waiver of constitutional rights less than two hours before the challenged questioning occurred).

¶ 7 Fedorov argues fresh warnings were necessary partly because three and a half ³ hours passed between the initial advice of rights and the challenged questioning. But courts have upheld confessions in the face of far lengthier delays. See2 Wayne R. LaFave et al., Criminal Procedure § 6.8(b) at 805 (3d ed.2007) (collecting cases supporting proposition that fresh warnings are generally unnecessary “after the passage of just a few hours”). In Rodriguez–Preciado, for example, the court held fresh warnings were unnecessary even though the police resumed questioning 16 hours after advising the defendant of his rights. Rodriguez–Preciado, 399 F.3d at 1129. And in United States ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir.1977), cited by the State, the court held fresh warnings were unnecessary despite a nine hour interval. Fike, 563 F.2d at 814. The interval here—three and a half hours—was brief by comparison.

¶ 8 Fedorov also contends fresh warnings were necessary due to the “change in personnel.” Br. of Appellant at 11. He relies on Zappulla v. New York, 391 F.3d 462 (2d Cir.2004), but that case is distinguishable. In Zappulla, the court concluded the defendant's confession violated due process where

(1) 24–hours had lapsed between the giving of Miranda warnings and the questioning of Zappulla about [the victim's] murder; (2) Zappulla was not in continuous police custody between the initial giving of Miranda warnings and the subsequent interrogation; and (3) the second interrogation concerned a crime unrelated to that for which he was initially arrested.

Zappulla, 391 F.3d at 474. Here, the “lapse” was relatively short, and Fedorov remained in police custody after the issuance of Miranda warnings. Finally, although Sergeant Hughes questioned Fedorov about a crime arguably unrelated to the arrest warrants, significantly, both Officer Reid and Sergeant Hughes asked questions for the same purpose—to determine Fedorov's true identity. The mere lapse of time and change of interrogator does not render Miranda warnings “stale” necessitating repetition of rights before a voluntary statement may be made. Wvrick v. Fields. 459 U.S. 42, 48–49, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982); United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.1995).

¶ 9 Fedorov also argues that “the securing of the fingerprint comparisons” constituted a change in circumstances necessitating fresh warnings. Br. of Appellant at 11. On this point, he cites no authority. Argument unsupported by citation to authority need not be considered. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992). In any event, the police may actively deceive a suspect without destroying the voluntariness of a confession. See State v. Burkins, 94 Wash.App. 677, 695, 973 P.2d 15 (1999) (“Deception alone does not make a statement inadmissible as a matter of law; rather, the inquiry is whether the deception made the waiver of constitutional rights involuntary.”); see also Commonwealth v. Martinez, 458 Mass. 684, 693, 940 N.E.2d 422 (2011) (“If the making of false or incriminating statements and being confronted by them were to undermine and render ineffective an otherwise valid Miranda waiver, police would be obliged to repeat Miranda warnings whenever a defendant in an interrogation moves toward inculpating himself. This is not the law.”). Considering the totality of the circumstances discussed above, we conclude “the securing of the fingerprint comparisons” was not an intervening circumstance necessitating fresh warnings.

¶ 10 We conclude the trial court properly admitted Fedorov's challenged statements.

Sufficiency of the Evidence

¶ 11 Fedorov next challenges the sufficiency of the evidence supporting his second degree identity theft conviction. He contends the State failed to prove (1) that he used the identity of a “specific real person or corporation” and (2) that he used the identity “with the intent to effectuate any specific crime.” Br. of Appellant at 14–15.

¶ 12 “A sufficiency challenge admits the truth of the State's evidence and accepts the reasonable inferences to be made from it.” State v. O'Neal, 159 Wash.2d 500, 505, 150 P.3d 1121 (2007). We will reverse a conviction “only where no rational trier of fact could find that all elements of the crime were proved beyond a reasonable doubt.” State v. Smith, 155 Wash.2d 496, 501, 120 P.3d 559 (2005). An identity theft conviction requires proof that the defendant knowingly obtained, possessed, used, or transferred a means of identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.⁴RCW 9.35.020(1). The victim must be a “specific, real person.” State v. Berry, 129 Wash.App. 59, 67, 117 P.3d 1162 (2005).

¶ 13 Fedorov first argues, “The State failed to prove that Mr. Fedorov misused the identity of a person in light of his dogged insistence on a date of birth that did not match any of the more than 26 individuals with similar names found just within the Judicial Information System (JIS).” Br. of Appellant at 14. We are not persuaded.

¶ 14 It is undisputed that Zachary Anderson, born on August 30, 1984, is a “specific, real person.” ⁵Berry, 129 Wash.App. at 67, 117 P.3d 1162. Fedorov acknowledges he used the name “Zachary Anderson” but claims that the August 31, 1984 birth date he used belonged to none of the...