State v. Vasquez

• Decision Date: 25 July 2013
• Docket Number: No. 87282–1.,87282–1.
• Citation: 309 P.3d 318,178 Wash.2d 1
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Vianney VASQUEZ, Petitioner.

178 Wash.2d 1

309 P.3d 318

STATE of Washington, Respondent,

v.Vianney VASQUEZ, Petitioner.

No. 87282–1.

Supreme Court of Washington, En Banc.

Argued March 25, 2013.

Decided July 25, 2013.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.

James Patrick Hagarty, Yakima County Prosecuting Attorney's Off., Yakima, WA, David Brian Trefry, Attorney at Law, Spokane, WA, for Respondents.

Sarah A. Dunne, Vanessa Torres Hernandez, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Gary Manca, Manca Law, PLLC, Seattle, WA, Amicus Curiae on behalf of American Civil Liberties Union O.

Matthew Hyrum Adams, Seattle, WA, Amicus Curiae on behalf of Northwest Immigrant Rights Project.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Crimin.

Travis Stearns, Washington Defender Association, Seattle, WA, Amicus Curiae on behalf of Washington Defender Association.

Erin Hairopoulos Becker, King County Prosecutors Office, Seattle, WA, Amicus Curiae on behalf of Washington Association of Prosec.

WIGGINS, J.

[178 Wash.2d 4]¶ 1 This case squarely asks us to determine under what circumstances we may infer an intent to injure or defraud under Washington's forgery statute, RCW 9A.60.020(1)(b). Vianney Vasquez had fake social security and permanent resident cards, both in his own name. After a Safeway store security guard found the cards in Vasquez's wallet following a search related to a shoplifting incident, the security guard called the police. Vasquez was arrested and charged with two counts of forgery under RCW 9A.60.020(1)(b). A jury convicted him and the Court of Appeals affirmed his convictions.

¶ 2 We hold that the State presented insufficient evidence that Vasquez possessed the cards with an intent to injure or defraud, an essential element of the forgery statute. We decline to infer that Vasquez intended to injure or defraud, as the Court of Appeals did, because to do so would alleviate the State's burden of proving every element of the charged offense beyond a reasonable doubt. Accordingly, we reverse the Court of Appeals and remand with instructions to vacate Vasquez's conviction for forgery.

FACTS AND PROCEDURAL HISTORY

¶ 3 On July 28, 2010, Timothy Englund, a Yakima Safeway store security guard, saw Vasquez take lotion off a shelf and squirt some onto his hands. Vasquez then put the lotion bottle back on the shelf and went to the front of the store to browse the movie selection. When Vasquez exited the store, Englund contacted him and asked him to accompany Englund to the store's management office to fill out shoplifting paperwork for using the lotion. Vasquez cooperated.

¶ 4 As part of the standard security procedure, Englund patted Vasquez down for weapons and to look for a form of identification. During the pat-down, Englund found Vasquez's wallet, which he removed from Vasquez's pocket and opened. Englund found a social security card and a permanent resident card inside the wallet.

[178 Wash.2d 5]¶ 5 Englund asked Vasquez to recite the social security number on the social security card; Vasquez was unable to do so. Englund also asked if the cards belonged to Vasquez, to which Vasquez responded affirmatively. When Englund asked where Vasquez obtained the cards, Vasquez said that he had purchased both the social security and permanent resident cards from a friend in California for $50 each. Vasquez also told Englund that he came from California to Yakima to stay with friends or family and might have told Englund that he was working in the area.

¶ 6 Englund proceeded to fill out paperwork pertinent to the shoplifting incident. The paperwork included a statement that Englund had found a permanent resident card and a social security card and that Vasquez had wrongly used the lotion. At some point while he was filling out the paperwork, Englund sought the assistance of a Spanish-speaking employee to ensure that Vasquez understood the forms, given several confused responses from Vasquez. On the form Vasquez signed, Vasquez indicated that he was not currently employed.

¶ 7 Because Englund could not verify Vasquez's identity, he called the police department per standard store protocol. Police arrested Vasquez and the State charged him with two counts of forgery.

¶ 8 In addition to Englund's testimony, the State presented witnesses from the Social Security Administration and United States Immigration and Customs Enforcement. These witnesses testified that Vasquez had never been issued a social security card, that a social security card was necessary to obtain employment in the United States, that a search in the legal permanent residents database under Vasquez's name and date of birth disclosed no results, and that the permanent resident card in Vasquez's possession did not contain the security features of authentic cards. The trial court excluded any direct evidence of Vasquez's immigration status.

[178 Wash.2d 6]¶ 9 At the close of the State's case, Vasquez moved to dismiss on sufficiency of the evidence grounds, which the trial court denied. The defense then rested, deciding not to present any testimony. A jury found Vasquez guilty of two counts of forgery and Vasquez appealed.

¶ 10 The Court of Appeals affirmed Vasquez's conviction, reasoning that there was enough evidence to infer that Vasquez possessed the cards with an intent to injure or defraud, asking rhetorically, “why else would Mr. Vasquez have them.” State v. Vasquez, 166 Wash.App. 50, 53, 269 P.3d 370 (2012). In addition, the Court of Appeals determined that the fact Vasquez might have told Englund that he had worked in the area sufficed to demonstrate that Vasquez had used the cards to injure or defraud an employer. We granted review. State v. Vasquez, 174 Wash.2d 1017, 282 P.3d 96 (2012).

ANALYSIS

¶ 11 We review the sufficiency of the evidence to prove the elements of an offense by asking “ ‘ “whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” State v. Bencivenga, 137 Wash.2d 703, 706, 974 P.2d 832 (1999) (emphasis omitted) (quoting State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979))).

¶ 12 The Court of Appeals applied the incorrect standard of review when it stated that “the evidence of intent to defraud [was] substantial when [it] consider[ed] the reasonable inferences available to the jury.” Vasquez, 166 Wash.App. at 52, 269 P.3d 370. We have rejected a substantial evidence standard in determining the sufficiency of the evidence because it does not require proof beyond a reasonable doubt. See Green, 94 Wash.2d at 221–22, 616 P.2d 628.

[178 Wash.2d 7]¶ 13 We conclude that the record before us discloses insufficient evidence to prove Vasquez's intent to injure or defraud beyond a reasonable doubt. First, the Court of Appeals' rhetorical question, “And here why else would Mr. Vasquez have them,” Vasquez, 166 Wash.App. at 53, 269 P.3d 370, infers intent from mere possession. Such an inference relieves the State of its burden to prove all elements of the crime of forgery beyond a reasonable doubt. As various cases make clear, possession alone does not support an inference of intent. Second, although Vasquez might have acknowledged ownership of the forged cards, the evidence is equivocal as to whether Vasquez intended to defraud Englund by convincing him that the cards were genuine. Equivocal evidence cannot form the basis of an inference of intent to injure or defraud. Finally, Englund's shaky recollection of Vasquez's statement from working in the area does not support an inference that Vasquez used forged cards in connection with employment. Beyond Englund's scant testimony, the State presented no evidence that Vasquez had ever worked, was working, intended to seek work in the area, or had ever used the forged cards in any way. Because the evidence presented in this case is insufficient to demonstrate Vasquez's intent to injure or defraud, we reverse the Court of Appeals and remand to vacate Vasquez's conviction.

I. The State must prove intent to injure or defraud as an essential element of the crime of forgery—possession alone is not enough

¶ 14 Washington's forgery statute provides in pertinent part that “[a] person is guilty of forgery if, with intent to injure or defraud: ... He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged.” RCW 9A.60.020(1)(b). “Whenever an intent to defraud shall be made an element of an offense, it shall be sufficient if an intent appears to defraud any person, association or body politic or corporate whatsoever.” RCW 10.58.040.

[178 Wash.2d 8] ¶ 15 When intent is an element of the crime, “intent to commit a crime may be inferred if the defendant's conduct and surrounding facts and circumstances plainly indicate such an intent as a matter of logical probability.” State v. Woods, 63 Wash.App. 588, 591, 821 P.2d 1235 (1991). Though intent is typically proved through circumstantial evidence, “[i]ntent may not be inferred from evidence that is ‘patently equivocal’.” Id. at 592, 821 P.2d 1235 (quoting State v. Bergeron, 105 Wash.2d 1, 20, 711 P.2d 1000 (1985); State v. Couch, 44 Wash.App. 26, 32, 720 P.2d 1387 (1986)). Possession alone is not sufficient to infer intent to injure or defraud in forgery cases, but possession together with “slight corroborating evidence” might be. State v. Esquivel, 71 Wash.App. 868, 870, 863 P.2d 113 (1993); see also State v. Ladely, 82 Wash.2d 172, 175, 509 P.2d 658 (1973); State v. Tinajero, 154 Wash.App. 745, 750, 228 P.3d 1282 (2009).

A. In possession-with-intent crimes, we do not draw inferences of intent based on mere possession

¶ 16 For other crimes where possession and intent are elements of the...