State Of Washington, Respondent V. Stephane A. Perry, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46866-2-II
Respondent,
v.
STEPHANE ALEXANDRE B PERRY, UNPUBLISHED OPINION
Appellant.
LEE, J. — Stephane Alexandre B Perry was found guilty of first degree criminal trespass
(count I), second degree identity theft (count II), possession of a stolen vehicle (count III), two
counts of third degree possession of stolen property (counts IV and V), and use of drug
paraphernalia (count VI). On appeal, Perry argues that (1) the charging document omitted essential
elements for the crimes of possession of a stolen vehicle (count III) and the latter third degree
possession of stolen property (count V); (2) the two convictions for third degree possession of
stolen property (counts IV and V) violate the prohibition against double jeopardy; (3) the
convictions for first degree criminal trespass (count I) and second degree identity theft (count II)
are alternative means crimes that the State failed to sufficiently prove; (4) his attorney was
ineffective for failing to request a jury instruction on accomplice testimony; (5) the sentencing
court erred in ordering a forfeiture of property as a sentencing condition; and (6) the sentencing
Filed
Washington State
Court of Appeals
Division Two
October 25, 2016

No. 46866-2-II
2
court erred in failing to inquire about Perry’s ability to pay before imposing legal financial
obligations (LFOs).1 In a statement of additional grounds (SAG), Perry argues (1) the trial court
erred in failing to suppress evidence as the fruit of an unlawful search; (2) the prosecution failed
to turn over exculpatory and impeachment evidence to the defense; and (3) a phone call from the
jail violated his right to confrontation.
We hold that (1) the charging document was sufficient as to possession of a stolen vehicle
(count III) and third degree possession of stolen property (count V); (2) Perry’s two convictions
for possession of stolen property (counts IV and V) subject him to double jeopardy; (3) a criminal
trespass (count I) jury instruction requiring the State to prove that the defendant knowingly
“entered or remained” unlawfully does not raise unanimity concerns and Perry fails to establish
that the crime of identity theft (count II) is an alternative means crime that required a unanimity
jury instruction; (4) Perry fails to show that the trial court would have given an accomplice liability
jury instruction had his attorney made the request, and thereby fails to establish that he was
prejudiced; (5) the sentencing court erred in ordering a forfeiture of property; (6) the sentencing
court erred in failing to inquire into Perry’s current and future ability to pay discretionary LFOs;
and (7) the arguments raised in Perry’s SAG fail. Accordingly, we dismiss with prejudice Perry’s
third degree possession of stolen property conviction (count V). Perry’s convictions for first
degree criminal trespass (count I), second degree identity theft (count II), possession of a stolen
1 Perry also argues there was insufficient evidence to convict him of second degree possession of
stolen property as charged in count IV. However, Perry was not convicted of second degree
possession of stolen property. Rather, Perry was convicted of the lesser degree crime of third
degree possession of stolen property. Therefore, we do not address this argument.

No. 46866-2-II
3
vehicle (count III); third degree possession of stolen property (lesser-included offense of count
IV), and use of drug paraphernalia (count VI) are affirmed. Also, we reverse the sentencing
conditions requiring forfeiture of Perry’s property and the imposition of discretionary LFOs, and
remand for further proceedings consistent with this opinion.
FACTS
On August 14, 2013, at approximately 1:48 p.m., Shenelle Williams, a front desk manager
at the Holiday Inn Express hotel, called police asking to have Perry removed from the hotel. The
reservation for the room Perry was occupying had a checkout time of noon on August 14. Williams
had contacted Perry after noon and informed him that he needed to leave or pay for another night.
Williams told Perry three to four times between noon and 1:48 p.m. that he needed to leave. Also,
during that time frame, Williams received a phone call at the front desk from a woman claiming
someone had used her credit card to book a room under the name Matthew Lane. The room Perry
was occupying had been reserved under the name Matthew Lane.
Tacoma Police Officers Graham and Kieszling responded to the hotel. The officers
contacted Williams at the front desk, and she identified the occupant of the room that had been
reserved under Matthew Lane as the person needing to be removed from the hotel. The officers
proceeded to the specified room, knocked, and identified themselves as police. They were told to
wait “just a minute,” and heard rustling in the room, before Perry opened the door. 2 Verbatim
Transcript of Proceedings (VTP) at 288.

No. 46866-2-II
4
Perry initially identified himself as Matthew Lane and consented to the officers entering
the room. Once inside, the officers observed the room was in disarray with hypodermic needles
strewn about, capped and uncapped. A woman came out of the bathroom, and she and Perry were
detained with wrist restraints. Perry was read his Miranda2 rights.
Perry told the officers that a friend had booked the room for him, but he had no way of
contacting the friend. Perry also told the officers that he had arrived at the hotel in a borrowed
vehicle. He acknowledged that the hotel employees had asked him to leave. Perry later admitted
to the officers that he and the woman had done heroin in the room together and that the syringe
with brown liquid in it was his.
Perry gave Officer Graham permission to retrieve a wallet from his back pocket, which
Perry said contained his ID. In the wallet, Officer Graham found Perry’s Washington ID card,
identifying him as Stephane Perry, not Matthew Lane. Officer Graham also found a social security
card for Matthew Donald Lane. A records check revealed that Perry had an outstanding warrant
and that Matthew Donald Lane was someone else.
Also in the room, the officers found a United States passport containing the name of
Matthew Donald Lane, a metal spoon in a cloth case, a small portable safe, and keys under the bed
on a key ring. This particular metal spoon had brown residue on it. The keys included a car key
for a blue Subaru in the hotel parking lot and a key to the safe.
Perry told the officers that he borrowed the Subaru from a friend. Upon further
investigation, the officers discovered that the license plates on the Subaru were not associated its
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

No. 46866-2-II
5
vehicle identification number (VIN). By researching the Subaru’s VIN, Officer Graham
determined that the Subaru belonged to Matthew Lane.
The Subaru was impounded and a forensics team was called to examine it. The forensic
team lifted six fingerprints and palm impressions from the rearview mirror and interior of the
driver’s side window. The fingerprints and palm impressions were matched to Perry.
Officer Kieszling contacted Matthew Lane. Lane accurately described the keys and safe
recovered from the room. Lane confirmed that his blue Subaru Legacy had been stolen, along
with his safe. Lane gave Officer Kieszling permission to open the safe. In the safe, Officer
Kieszling found many of the documents Lane had also described as missing, including social
security cards, passports, savings bonds, and his children’s birth certificates.
Perry was charged with first degree criminal trespass (count I), second degree identity theft
(count II), possession of a stolen vehicle (count III), second degree possession of stolen property
(count IV), third degree possession of stolen property (count V), and use of drug paraphernalia
(count VI).
Before trial, Perry moved to suppress identification of documents and other items found in
his wallet and in the hotel room at the time of his arrest. A suppression hearing under CrR 3.5 and
CrR 3.6 was held on July 14 and 15, 2014. At the hearing, Williams, Officer Kieszling, and Officer
Graham testified. Williams, Officer Kieszling, and Officer Graham provided testimony
substantially similar to that which they later provided at trial.
Before Officer Graham took the stand on the second morning of the suppression hearing,
the State revealed to the court and defense that it had learned earlier that morning that Officer
Graham had been charged with driving under the influence and had been placed on administrative

No. 46866-2-II
6
leave the day before. The State relayed that it had been informed that Officer Graham’s case was
pending before the county district court and that there were no Brady3 concerns. On the stand,
Officer Graham confirmed he had been charged with driving under the influence, stated that the
incident occurred on his day off while he was driving his personal vehicle, believed that his trial
was set for August 18, and understood he would be remaining on administrative leave until the
case was resolved.
When Officer Graham had been excused, the trial court observed that Officer Graham’s
driving under the influence charge was “pretty much irrelevant to any issue here.” Report of
Proceedings (RP) (July 14-15, 2014) at 150. Perry agreed. The State provided Perry with a copy
of the arrest report, in accord with the trial court’s direction.
After the hearing, the trial court concluded, in part, that law enforcement (1) lawfully
entered the hotel room when Perry consented to their entry; (2) were not required to give Ferrier4
warnings because they entered the room to discuss Perry’s failure to leave the hotel, not look for
evidence; (3) retrieved Perry’s ID from his wallet with his consent; (4) lawfully arrested Perry on
an outstanding warrant; and (5) performed a lawful inventory search of Perry’s wallet and the room
for safekeeping, during which it was reasonable to open the passport to further identify Perry.
Accordingly, the trial court found “that the evidence obtained from the inventory search in this
3 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
4 State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).

No. 46866-2-II
7
case is admissible and the motion to suppress is denied.” Clerk’s Papers (CP) at 106. The findings
of fact and conclusions of law were filed on August 1.5
At trial, a phone call from jail was introduced and transcribed into the record. The State
laid the foundation for the phone call’s admission through the testimony of a safety deputy at the
jail, Don Carn. Carn testified that each inmate has a unique personal identification number (PIN)
that must be used to make telephone calls. The PIN used to make the phone call in question was
assigned to Perry, and the call was made from the jail location in which Perry was housed. Carn
added that the PIN associated with Perry called this particular telephone number 31 times from the
jail location in which Perry was housed. Finally, Carn noted that when a call is initiated but before
the two parties are connected, the parties are “admonish[ed] that all calls are being recorded and
subject to being monitored.” 3 Verbatim Transcript of Proceedings (VTP) at 401.
Madison Morton, the woman in the hotel room with Perry when the officers arrived,
testified that Perry had picked her up from work in the Subaru, and then she drove the two of them
to the hotel. Morton also testified that Perry told her that his mother had left him money and that
5 Perry moved for reconsideration on August 14, citing “a copy of a Holiday Inn Express room
reservation” (reservation card) that the State disclosed for the first time on July 18. Clerk’s Papers
(CP) at 109. The State received the registration card on July 18, disclosed it to the defense on the
same day, and disclosed it to the defense a second time on July 25. Perry argued that the document
contradicted Williams’s testimony because it listed the reservation as going from August 13, 2013
through August 19, 2013, whereas Williams testified that Perry had been required to check out by
noon on August 14, 2013. Perry also requested reconsideration because the defense learned for
the first time before Officer Graham’s testimony at the hearing that Officer Graham had been
arrested for driving under the influence and the defense had since learned that Officer Graham had
been charged by the same prosecutor’s office that was prosecuting Perry. The record before this
court does not contain a disposition of Perry’s motion to reconsider.

No. 46866-2-II
8
he had purchased the Subaru at a car lot. Perry also told her he booked the room under a different
name because he had an outstanding warrant.
Thomas Thompson testified that on August 13, 2013, someone had opened his garage door
and stolen several items. Some of the items recovered from the hotel room were items stolen from
Thompson.
At the conclusion of Perry’s trial, the jury found him guilty of first degree criminal trespass
(count I), second degree identity theft (count II), possession of a stolen vehicle (count III), third
degree possession of stolen property (count V), and use of drug paraphernalia (count VI). On
count IV, the jury found him guilty of the lesser included offense of third degree possession of
stolen property.
Perry’s judgment and sentence required him to pay $500 for a crime victim assessment,
$100 for a DNA database fee, $1,500 for a court-appointed attorney fee, and $200 for a filing fee.
No inquiry into Perry’s ability to pay was made on the record. The judgment and sentence also
included a boilerplate provision that stated:
Property may have been taken into custody in conjunction with this case. Property
may be returned to the rightful owner. Any claim for return of such property must
be made within 90 days. After 90 days, if you do not make a claim, property may
be disposed of according to law.
CP at 262. Following this boilerplate language was a handwritten notation that said, “forfeit items
in property,” and a checked box next to printed text that said, “All property hereby forfeited.” CP
at 262-63. The sentencing court did not provide any statutory authority for its forfeiture orders.
Perry appeals.

No. 46866-2-II
9
ANALYSIS
A. INSUFFICIENT CHARGING DOCUMENT
Perry argues for the first time on appeal that the charging document was insufficient with
respect to count III, possession of a stolen vehicle, and count V, third degree possession of stolen
property. Specifically, Perry argues the charging document was insufficient with respect to these
two charges because neither charge alleged that Perry “with[e]ld or appropriate[d]” the vehicle.
Br. of Appellant at 35. Pursuant to our Supreme Court’s decision in State v. Porter, 186 Wn.2d
85, 375 P.3d 664 (2016), we hold the charging document was sufficient with respect to count III
and count V.
1. Legal Principles
We review a charging document’s sufficiency de novo. State v. Williams, 162 Wn.2d 177,
182, 170 P.3d 30 (2007). A constitutionally sound charging document includes all essential
elements of a crime, statutory or otherwise, so as to provide notice to the accused of the nature and
cause of the accusation against him or her. State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86
(1991). “‘An essential element is one whose specification is necessary to establish the very
illegality of the behavior charged.’” State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014)
(quoting State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013)). Mere citations to the
criminal code section and title of the offense do not satisfy the essential element requirement.
Zillyette, 178 Wn.2d at 162.

No. 46866-2-II
10
When the defendant challenges the charging document’s sufficiency for the first time on
appeal, we construe the document liberally in favor of validity. Porter, 186 Wn.2d at 89. The test
for the liberal interpretation of the document asks two questions:
(1) [D]o the necessary facts appear in any form, or by fair construction can they be
found, in the charging document; and, if so, (2) can the defendant show that he or
she was nonetheless actually prejudiced by the inartful language which caused a
lack of notice?
Kjorsvik, 117 Wn.2d at 105-06.
2. Possession of a Stolen Vehicle (Count III)
Perry argues that the omission of to “withhold or appropriate” from the State’s charge
against him for possession of a stolen vehicle renders the charge insufficient and requires reversal.6
Br. of Appellant at 35. In Porter, our Supreme Court rejected the same argument Perry now makes
when addressing language in Porter’s charging document that is identical to that used in Perry’s
charging document. 186 Wn.2d at 87. The court held that the charging document included all
essential elements of the crime of possession of a stolen motor vehicle and that the definitional
element of “possess” was not required to be included in the charging document. Id. Accordingly,
we follow Porter and hold that Perry’s charging document included all essential elements of the
crime of possession of a stolen motor vehicle.
6 Perry’s charging document for the crime of possession of a stolen vehicle (count III) stated, in
relevant part:
That STEPHANE ALEXANDRE B PERRY, in the State of Washington,
on or about the 14th day of August, 2013, did unlawfully and feloniously possess a
stolen motor vehicle, knowing that it had been stolen, contrary to RCW 9A.56.068
and 9A.56.140, and against the peace and dignity of the State of Washington.
CP at 134.

No. 46866-2-II
11
3. Third Degree Possession of Stolen Property (Count V)
Perry argues that the omission of to “withhold or appropriate” from the State’s charge
against him for third degree possession of stolen property renders the charge insufficient and
requires reversal.7 Br. of Appellant at 35. We disagree.
Our Supreme Court in Porter made clear that in a charge for possession of a stolen vehicle,
“the State was not required to include the definition of ‘possess,’” which includes the “to withhold
or appropriate” language that Perry now argues was omitted in error, because “the definition of
‘possess’ defines and limits the scope of the essential elements of the crime” but is not itself an
essential element. 186 Wn.2d at 91. But the law would be inequitable if “to withhold or
appropriate” is an essential element of possessing stolen property, yet when the stolen property is
a motor vehicle, then “to withhold or appropriate” would cease to be essential to the charged crime.
Accordingly, we hold that the definition of “possess” in the crime of “possessing stolen property,”
which includes the language “to withhold or appropriate,” is not an essential element of the crime
of possession of stolen property and that Perry’s charging document sufficiently articulated the
essential elements of that crime in count V. Id.
7 Perry’s charging document for the crime of possession of stolen in the third degree (count V)
stated, in relevant part:
That STEPHANE ALEXANDRE B PERRY, in the State of Washington,
on or about the 14th day of August, 2013, did unlawfully and knowingly receive,
retain, possess, conceal, or dispose of stolen property other than a firearm or a motor
vehicle, belonging to another, of a value that does not exceed $750. . . , contrary to
RCW 9A.56.140(1) and 9A.56.170(1)(2), and against the peace and dignity of the
State of Washington.
CP at 135.

No. 46866-2-II
12
B. DOUBLE JEOPARDY
Perry argues that his two convictions for third degree possession of stolen property violate
his right against double jeopardy.8 He did not raise this issue at trial, but a constitutional challenge
may be raised for the first time on appeal. State v. Adel, 136 Wn.2d 629, 631–32, 965 P.2d 1072
(1998). Our review is de novo. State v. Freeman, 153 Wn.2d 765, 770, 108 P.3d 753 (2005).
The double jeopardy clause of the United States Constitution provides that no person shall
“be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. CONST. amend.
V. The Washington State Constitution provides that “[n]o person shall be . . . twice put in jeopardy
for the same offense.” CONST. art. I, § 9. The two clauses provide the same protection. In re Pers.
Restraint of Davis, 142 Wn.2d 165, 171, 12 P.3d 603 (2000). Thus, the “‘double jeopardy doctrine
protects a criminal defendant from being (1) prosecuted a second time for the same offense after
acquittal, (2) prosecuted a second time for the same offense after conviction, and (3) punished
multiple times for the same offense.’” State v. Fuller, 185 Wn.2d 30, 33-34, 367 P.3d 1057 (2016)
(quoting State v. Linton, 156 Wn.2d 777, 783, 132 P.3d 127 (2006)).
Perry contends that his convictions for possession of stolen property must be dismissed
because they constitute the same offense for double jeopardy purposes. Relying primarily on State
v. McReynolds, 117 Wn. App. 309, 71 P.3d 663 (2003), Perry points out that simultaneous
possession of various items of property stolen from multiple owners constitutes one unit of
prosecution of the crime. Id. at 340. The State concedes that McReynolds is controlling.
8 Perry actually argues that he was convicted of one count of second degree possession of stolen
property (count IV) and one count of third degree possession of stolen property (count V), which
is not accurate. However, his confusion is irrelevant to our analysis.

No. 46866-2-II
13
In McReynolds, the defendants were convicted of multiple counts of possessing stolen
property based on their possession of various items of stolen property from different owners over
a period of 15 days. 117 Wn. App. at 332-34. Division Three of this court held that these multiple
convictions subjected the defendants to double jeopardy. Id. at 340. The court reasoned that the
identity of the property’s owner, the property’s location, or its connection to a specific theft or
burglary were not elements of the crime of possession of stolen property. Id. Division Three
ultimately held that the simultaneous possession of articles stolen at different times and from
different persons constitutes one offense. Id. at 339-40.
Here, we conclude that Perry’s two convictions for possessing stolen property belonging
to Lane and Thompson and found in the hotel room violate double jeopardy. The prosecutor cited
Lane’s safe, financial documents in the safe, social security card, passport, and car keys as the
stolen property to convict on count IV. The prosecutor stated that count V was based on the stolen
property belonging to both Lane and Thompson, but specifically cited only Thompson’s bag and
headset. Pursuant to McReynolds, the identity of the property’s owner, its location, and its
connection to a specific theft or burglary, do not allow independent convictions for possession of
stolen property, and Perry’s simultaneous possession of stolen property belonging to Lane and
Thompson constitutes one offense. 117 Wn. App. at 339-40. Accordingly, Perry can only be
convicted of one count of possession of stolen property, and the second count must be dismissed
with prejudice.
C. ALTERNATIVE MEANS AND SUFFICIENCY OF THE EVIDENCE
Perry argues that his convictions for first degree criminal trespass (count I) and second
degree identity theft (count II), must be reversed because they were charged as alternative means

No. 46866-2-II
14
crimes, no unanimity instruction was given, and the State failed to present substantial evidence to
prove each of the alternative means. We disagree because a unanimity instruction was not required
for the criminal trespass charge and identity theft is not an alternative means crime.
In a criminal trial, defendants have the right to a unanimous jury verdict under article I,
section 21 of the Washington Constitution. State v. Sandholm, 184 Wn.2d 726, 732, 364 P.3d 87
(2015). “This right may also include the right to a unanimous jury determination as to the means
by which the defendant committed the crime when the defendant is charged with (and the jury is
instructed on) an alternative means crime.” State v. Owens, 180 Wn.2d 90, 95, 323 P.3d 1030
(2014) (emphasis omitted). However, where there is sufficient evidence to support each of the
alternative means presented, an expression of jury unanimity as to which means is not required.
Sandholm, 184 Wn.2d at 732.
The first step in our review requires a determination of whether the statute in question
creates an alternative means crime. Id. We make this determination by analyzing the language of
the criminal statute in question. Id. The statutory analysis focuses on whether each of the alleged
alternatives describes “‘distinct acts that amount to the same crime.’” Id. at 734 (quoting State v.
Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 (2010)). “Only if the statute creates an alternative
means do we then proceed to analyze an alleged unanimity issue.” Id. at 732.
1. First Degree Criminal Trespass (Count I)
Perry argues that first degree criminal trespass (count I) is an alternative means crime
requiring jury unanimity to convict. Specifically, Perry argues that the State violated his right to

No. 46866-2-II
15
jury unanimity because “there was not proof beyond a reasonable doubt that [he] ‘entered’
unlawfully.” Br. of Appellant at 31-32. We disagree.
“A person is guilty of criminal trespass in the first degree if he or she knowingly enters or
remains unlawfully in a building.” RCW 9A.52.070(1). “A person ‘enters or remains unlawfully’
in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter
or remain.” Former RCW 9A.52.010(3) LAWS OF 2011, c. 336, § 369.
In State v. Allen, Division One of this court considered whether a defendant’s right to jury
unanimity was violated by the State’s failure “to establish both the ‘entered unlawfully’ and
‘remained unlawfully’ means of committing burglary.” 127 Wn. App. 125, 127, 110 P.3d 849
(2005). The court held, “a jury instruction requiring the State to prove the defendant entered or
remained unlawfully in a building raises no unanimity concerns, even if there is no evidence to
support one of the alternative means.” Id.
Here, Perry was charged with and convicted of first degree criminal trespass. The “to
convict” jury instruction on the criminal trespass charge required the State to prove that Perry
“knowingly entered or remained in a building” and that Perry “knew that the entry or remaining
was unlawful.” CP at 212 (emphasis added).9
9 The “to convict” jury instruction said:
To convict the defendant of the crime of criminal trespass in the first degree,
each of the following elements of the crime must be proved beyond a reasonable
doubt:
(1) That on or about the 14th day of August, 2013, the defendant knowingly
entered or remained in a building;
(2) That the defendant knew that the entry or remaining was unlawful; and

No. 46866-2-II
16
Perry does not argue that the jury lacked sufficient evidence to find him guilty for
unlawfully remaining in the hotel. Rather, Perry contends that his right to jury unanimity was
violated because “there was not proof beyond a reasonable doubt that [he] ‘entered’ unlawfully.”
Br. of Appellant at 31-32. Perry’s argument fails because unanimity concerns are not implicated.
The Allen court held that, as it relates to a burglary conviction, jury instructions that require the
State “to prove the defendant entered or remained unlawfully in a building raises no unanimity
concerns, even if there is no evidence to support one of the alternative means.” 127 Wn. App. at
127. The holding in Allen applies equally to criminal trespass convictions because criminal
trespass is a lesser included offense of burglary. State v. Sutherland, 109 Wn.2d 389, 390, 745
P.2d 33 (1987). Therefore, we hold that Perry’s conviction for first degree criminal trespass (count
I) did not violate his right to jury unanimity.
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty to return
a verdict of not guilty.
CP at 212; accord RCW 9A.52.070(1). A second jury instruction stated, “A person enters or
remains unlawfully in or upon premises when he or she is not then licensed, invited, or otherwise
privileged to so enter or remain.” CP at 214; accord former RCW 9A.52.010(3).

No. 46866-2-II
17
2. Second Degree Identity Theft (Count II)
Perry argues that second degree identity theft is an alternative means crime requiring jury
unanimity to convict. Specifically, Perry argues that the State violated his right to jury unanimity
because the State needed to prove each of the four verbs in the “to-convict” instruction—“obtained,
possessed, used or transferred”—described Perry’s conduct. Br. of Appellant at 30. We disagree.
We considered the same issue Perry now raises on appeal in State v. Butler, 194 Wn. App.
525, 374 P.3d 1232 (2016). There, Butler argued that the use of the four different verbs in RCW
9.35.020(1)—“obtain, possess, transfer, and use—establish that the crime is committable in more
than one way, and is therefore an alternative means crime.” Id. at 529. Relying on our Supreme
Court’s reasoning in Owens, 180 Wn.2d 96–97, we held in Butler that the verbs “are not distinct
means by which to commit identity theft, but rather are multiple facets of a single means.” 194
Wn. App. at 530. We reasoned that “it would be hard to imagine the crime of identity theft being
committed by a single act of ‘using’ a check that did not also involve ‘obtaining” and ‘possessing’
the check. Likewise, one could not ‘transfer’ financial information without also ‘obtaining’ and
‘possessing’ that information,” but that “not every verb must overlap in order to constitute a single
means.” Id. at 530. Accordingly, “[b]ecause no single action in the statute could be completed
without simultaneously completing at least one other action, the various acts are too similar to
constitute distinct alternative means,” and therefore, “identity theft is not an alternative means
crime.” Id.

No. 46866-2-II
18
Here, Perry challenges the portion of the “to convict” instruction that reads, “[t]hat on or
about August 14th, 2013, the defendant knowingly obtained, possessed, or transferred or used as
a means of identification or financial information of another person, living or dead.” CP at 217.10
As in Butler, it is hard to imagine the crime of identity theft being committed by a single act of
using a credit card or social security card that did not also involve obtaining and possessing the
cards. It does not matter which of the four verbs most accurately describes the way Perry involved
himself with Matthew Lane’s credit card and social security card. What matters is that the jury
unanimously found he did so knowingly and with the intent to commit a crime. Therefore, we
10 The “to convict” jury instruction said:
To convict the defendant of identity theft in the second degree, the following
elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about August 14th, 2013, the defendant knowingly obtained,
possessed, or transferred or used a means of identification or financial information
of another person, living or dead;
(2) That the defendant acted with the intent to commit any crime;
(3) That the defendant obtained credit, money, goods, services or anything else that
is $1500 or less in value from the acts described in element (1) or did not obtain
any credit, money, goods, services or other items of value; and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements have been proved beyond
a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if after weighing all the evidence, you have a reasonable doubt
as to any one of these elements, then it will be your duty to return a verdict of not
guilty.
CP at 217; accord RCW 9.35.020.

No. 46866-2-II
19
hold that Perry fails to establish that the crime of identity theft is an alternative means crime that
required a unanimity jury instruction.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Perry argues he was deprived of effective assistance of counsel when counsel failed to
request a cautionary jury instruction. Specifically, Perry argues his trial counsel was deficient in
failing to request 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.05,
at 184 (3d ed. 2008) (WPIC), which concerns the testimony of accomplices, and he was prejudiced
because his “entire defense” was built on trying to discredit Morton’s testimony. Br. of Appellant
at 27 (emphasis omitted). We disagree.
We review an ineffective assistance claim de novo, beginning with a strong presumption
that trial counsel’s performance was adequate and reasonable. Strickland v. Washington, 466 U.S.
668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
1260 (2011). To prevail on an ineffective assistance of counsel claim, a defendant must show both
deficient performance and resulting prejudice; failure to show either defeats an ineffective
assistance of counsel claim. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). To
establish deficient performance, a defendant must show that counsel’s performance fell below an
objective standard of reasonableness. Id. Prejudice is established when the defendant
demonstrates that there is a reasonable probability that, but for counsel’s deficient performance,
“the result of the proceeding would have been different.” State v. McFarland, 127 Wn.2d 322,

No. 46866-2-II
20
335, 899 P.2d 1251 (1995). If the defendant fails to satisfy either prong, the court need not inquire
further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Perry claims he was denied access to effective counsel because his attorney did not ask the
court to give the following standard cautionary instruction concerning accomplice testimony:
Testimony of an accomplice, given on behalf of the State, should be subjected to
careful examination in the light of other evidence in the case, and should be acted
upon with great caution. You should not find the defendant guilty upon such
testimony alone unless, after carefully considering the testimony, you are satisfied
beyond a reasonable doubt of its truth.
See WPIC 6.05, at 184.
WPIC 6.05 is mandatory only when the State’s case-in-chief rests solely upon
uncorroborated accomplice testimony. WPIC 6.05, cmt. at 184 (citing State v. Willoughby, 29
Wn. App. 828, 630 P.2d 1387, review denied, 96 Wn.2d 1018 (1981)). “[W]hether failure to give
this instruction constitutes reversible error when the accomplice testimony is corroborated by
independent evidence depends upon the extent of corroboration.” State v. Harris, 102 Wn.2d 148,
155, 685 P.2d 584 (1984), overruled on other grounds by State v. McKinsey, 116 Wn.2d 911, 914,
810 P.2d 907 (1991). “[F]ailure to give this instruction is always reversible error when the
prosecution relies solely on accomplice testimony.” Harris, 102 Wn.2d at 155.
Here, the State’s case in chief relied minimally on Morton’s testimony, and Morton’s
testimony was corroborated by independent evidence; thus, the instruction was not mandatory.
Morton’s testimony established that she was in the hotel when the officers arrived; that she drove
the Subaru Perry told her he had purchased; that Perry told her he used a different name because
of an outstanding warrant; and that they went to the hotel to do drugs because Perry owed her
money. At trial, Officers Graham and Kieszling testified that Morton was in the hotel when they

No. 46866-2-II
21
arrived; that Perry claimed the keys to the Subaru as his own; that the Subaru was stolen and
belonged to Matthew Lane; that Perry had claimed to be Matthew Lane; that Perry had Matthew
Lane’s social security card in his wallet; that Matthew Lane’s passport was in the room; that there
was drug paraphernalia in the room; and that Perry had admitted to using drugs in the room. The
hotel front desk manager, Williams, testified that the room Perry was staying in was registered to
Matthew Lane; that she had told Perry on more than one occasion after noon on August 14 that he
was no longer allowed to be at the hotel because his checkout time was at noon and he had not
paid for an additional night. Finally, police found Perry’s fingerprints and palm impressions on
the stolen Subaru.
The record demonstrates that the State’s case-in-chief did not rely solely on the
uncorroborated testimony of Morton as an accomplice. Instead, the majority of the State’s case-
in-chief was established by evidence other than Morton’s testimony, and Morton’s testimony was
corroborated by independent evidence at trial. Therefore, the accomplice testimony instruction
was not mandatory. Because Perry fails to show that the trial court would have exercised its
discretion and given the instruction had his attorney made the request, he fails to show prejudice.
Absent such showing, Perry’s argument that he received ineffective assistance of counsel fails.
E. SENTENCING CONDITIONS
Perry argues that the sentencing court erred in imposing a sentencing condition that
required him to “forfeit items in property” and that “[a]ll property is hereby forfeited.” CP at 262-
63. The State concedes that this was error and that State v. Roberts, 185 Wn. App. 94, 339 P.3d
995 (2014), controls. We accept the State’s concession and remand to strike the sentencing
condition requiring forfeiture of items in property from Perry’s judgment and sentence.

No. 46866-2-II
22
A sentencing court is required to provide statutory authority for its forfeiture orders. Id. at
96. Here, the sentencing court provided the following boilerplate language:
Property may have been taken into custody in conjunction with this case. Property
may be returned to the rightful owner. Any claim for return of such property must
be made within 90 days. After 90 days, if you do not make a claim, property may
be disposed of according to law.
CP at 262. Below this, the trial court wrote in: “forfeit items in property,” and checked a box
denoting, “All property is hereby forfeited.” CP at 262-63. The sentencing court did not provide
any statutory authority for its forfeiture orders. Therefore, we accept the State’s concession and
remand for the sentencing court to strike the condition requiring forfeiture of property from Perry’s
judgment and sentence.
F. LEGAL FINANCIAL OBLIGATIONS
Perry argues that the sentencing court erred in imposing LFOs without inquiring into
Perry’s present and future ability to pay on the record. The State concedes that the sentencing
court erred in failing to conduct such an inquiry. We accept the State’s concession.
In State v. Blazina, 182 Wn.2d 827, 837-38, 344 P.3d 680 (2015), our Supreme Court held
that “in order to impose discretionary LFOs under RCW 10.01.160(3), the sentencing judge must
consider the defendant’s individual financial circumstances and make an individualized inquiry
into the defendant’s current and future ability to pay,” and “the record must reflect this inquiry.”
Here, the sentencing court failed to conduct an individualized inquiry into Perry’s present and
future ability to pay the discretionary LFOs imposed. Therefore, we accept the State’s concession
and remand to the sentencing court to consider Perry’s current and future ability to pay before
imposing discretionary LFOs.

No. 46866-2-II
23
G. STATEMENT OF ADDITIONAL GROUNDS
1. Search and Seizure
Perry argues that the trial court erred in failing to suppress the social security card, the
passport, and the safe. Specifically, Perry assigns error to the trial court’s conclusion that the
officers’ search did not exceed the scope of an inventory search. We hold the trial court did not
err.
We review the denial of a suppression motion to determine whether substantial evidence
supports the challenged findings and whether these findings support the trial court’s conclusions
of law. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999), overruled on other grounds
by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007).
Officers may conduct a warrantless inventory search without violating section I,
article 7 or the Fourth Amendment. Unlike a probable cause search and search
incident to arrest, officers conducting an inventory search perform an
administrative or caretaking function.
Officers may conduct a warrantless inventory search (1) to protect the
arrestee’s property, (2) to protect the government from false claims of theft, and (3)
to protect police officers and the public from potential danger.
State v. VanNess, 186 Wn. App. 148, 162, 344 P.3d 713 (2015) (footnotes omitted).
Here, substantial evidence supports the trial court’s findings, and the findings supported
the trial court’s conclusions. The officers received consent from Perry to enter the hotel room;
Perry gave the officers permission to retrieve Perry’s wallet and look for his ID; Perry was then
validly arrested on an outstanding warrant; and Morton was allowed to gather her belongings and
leave. Once Perry had been placed under arrest, it was proper for the officers to inventory the
contents of Perry’s wallet to protect Perry’s property contained within and to protect the

No. 46866-2-II
24
government from potential false claims of theft. Id. at 162. For the same reasons, once Perry had
been arrested and Morton had left with her things, it was proper for the officers to collect the
passport and safe as part of the inventory search. Id. Opening the passport was proper to identify
to whom it belonged, and the safe was not opened until it was determined that Perry did not own
the safe and the officers were given permission to open it by its true owner. Therefore, we hold
that the trial court did not err in not suppressing the social security card, the passport, and the safe.
2. Exculpatory and Impeachment Evidence
Perry argues that the prosecution failed to turn over exculpatory and impeachment evidence
to the defense. Perry specifically argues that a registration card that showed the length of stay was
six nights would have contradicted Williams’s testimony at the CrR 3.6 hearing about the duration
of Perry’s reservation and should have been turned over to the defense. Perry also argues that the
defense should have received a more full disclosure regarding Officer Graham’s arrest for driving
under the influence. We hold Perry’s arguments fail.
a. Registration Card
Perry contends that because the registration card “was . . . available to the prosecution for
over a year . . . keeping it from the [CrR] 3.6 hearing and springing it after an unfavorable ruling
was unfair and prejudicial.” SAG at 3 (emphasis omitted). Perry requests that this court “overturn
the ruling of the [CrR] 3.6 hearing and suppress all evidence as fruit of the [poisonous] tree.” SAG
at 3. We decline Perry’s request.
The record shows that the State did not have the registration card until July 18, which was
after the CrR 3.6 hearing. The record also shows that the State disclosed the registration card to
the defense on the same day it was received and again the following week. Moreover, the record

No. 46866-2-II
25
does not indicate any reason the defense would not have been able to acquire the registration card
from the hotel on its own through a subpoena.
Finally, Williams testified extensively about the registration card during the State’s direct-
examination and Perry’s cross-examination at trial. Perry’s cross-examination of Williams at trial
began with the same alleged inconsistencies that Perry now raises in his SAG. Accordingly, we
hold that Perry fails to identify how he was prejudiced when he took advantage of the ample
opportunity to cross-examine Williams on the inconsistencies he now alleges. Perry’s challenge
fails.
b. Officer Graham’s Criminal Charge
Perry contends that “the defense should have received full disclosure on” Officer Graham’s
driving under the influence charge and that the trial court erred in determining that it was not
relevant to Perry’s case. SAG at 4. Instead, Perry asserts that this was a Brady violation that
requires his convictions be overturned. We disagree.
We review alleged Brady violations de novo. State v. Mullen, 171 Wn.2d 881, 894, 259
P.3d 158 (2011). Under Brady, the State violates a criminal defendant’s due process right if (1) it
suppresses evidence that is (2) favorable to the defense and (3) material to guilt or punishment.
Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); see Strickler v.
Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).
The State suppresses evidence by failing to disclose it, regardless of whether the defense
requests the evidence. Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S. Ct. 1555, 131 L. Ed. 2d 490
(1995); United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).
Evidence is favorable to the defense if it is exculpatory or impeaching. United States v. Bagley,

No. 46866-2-II
26
473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Evidence is material to guilt or
punishment “‘if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”’ Kyles, 514 U.S. at 433-34
(quoting Bagley, 473 U.S. at 682). A reasonable probability of a different result exists where the
State’s nondisclosure “‘undermines confidence in the outcome of the trial.”’ Id. at 434 (quoting
Bagley, 473 U.S. at 678). Materiality requires evaluating the State’s nondisclosure “in the context
of the entire record.” Agurs, 427 U.S. at 112. Thus, impeachment evidence “may not be material
if the . . . other evidence is strong enough to sustain confidence in the verdict.” Smith v. Cain, ___
U.S. ___, 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012).
Here, there is no exculpatory value to the evidence of Officer Graham’s charge for driving
under the influence, and Perry does not specify what impeachment value the evidence would have.
Driving under the influence is not inherently a crime involving dishonesty, and the record does not
contain any information regarding Officer Graham’s honesty about the charge. The record does,
however, show that the State was not aware of Officer Graham’s arrest and charge until the
morning of the second day of the hearing. The State informed Perry before the morning’s
proceedings began and informed the trial court as soon as the proceedings began. The State
asserted that it did not believe the charge against Officer Graham to be a Brady issue, and the trial
court and Perry’s counsel agreed. Also, the trial court ordered the State to provide the arrest report
of Officer Graham’s driving under influence charge, and the State complied. The trial court did
not order the State to provide any further documentation to the defense. Given the absence of
information in the record, and in Perry’s SAG, to suggest how confidence in the outcome of Perry’s

No. 46866-2-II
27
trial is undermined by the extent of the State’s disclosures regarding Officer Graham’s charge for
driving under the influence, Perry’s assertion of a Brady violation fails.
3. Confrontation Clause
Finally, Perry argues that the trial court erred in admitting the phone call from the jail
because it violated Perry’s right to confront the witnesses against him. We hold that the statements
made in the phone call were nontestimonial, and therefore, the confrontation clause does not
apply.11
Our Supreme Court recently addressed the confrontation clause as it relates to statements
made outside of the courtroom and presented at trial in State v. Wilcoxon, 185 Wn.2d 324, 329-30,
373 P.3d 224 (2016). In Wilcoxon, our Supreme Court stated:
[W]e first determine whether the out-of-court statements were testimonial. If they
were, we proceed to a confrontation clause analysis. If not, the confrontation clause
does not apply. As the United States Supreme Court has explained, a statement is
“testimonial” if it is the functional equivalent of in-court testimony. See Crawford
[v. Washington, 541 U.S. [36] at 51–52[, 124 S. Ct. 1354, 158 L. Ed 2d 177 (2004)].
A testimonial statement is designed to establish or prove some past fact, or is
essentially a weaker substitute for live testimony at trial. Davis [v. Washington,]
547 U.S. [813,] at 827–28[, 126 S. Ct. 2266, 165 L. Ed 2d 224 (2006)]. Where the
statement is effectively a substitute for live trial testimony, the statement is
testimonial. Id. at 828. Crawford listed some examples such as “‘ex parte in-court
testimony or its functional equivalent—that is, material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would reasonably expect to be used
prosecutorially.’” 541 U.S. at 51. “Statements taken by police officers in the
course of interrogations,” which was the case in Crawford, are also testimonial. Id.
at 52. However, a “casual remark to an acquaintance” is not testimonial. Id. at 51.
11 The State argues that Perry waived this argument by failing to object to its admission on
confrontation clause grounds below. However, the record shows that Perry did object on
confrontation clause grounds several times below. See, e.g., VRP (Sept. 15, 2014) at 74 (“[I]f the
State intends on introducing any statements that were made by anyone other than the inmate, then
the defense has some serious confrontation clause concerns.”).

No. 46866-2-II
28
Id. at 334-35.
Wilcoxon considered a co-defendant’s statements made to a third party at the third party’s
home. Id. at 327. Our Supreme Court held that the co-defendant’s statements to the third party
were nontestimonial, and therefore, the confrontation clause was not implicated. Id. at 335. The
court reasoned:
[The co-defendant’s] statements were that he and a friend had discussed burgling
Lancer Lanes and that his friend had called him while burgling Lancer Lanes. The
statements were not designed to establish or prove some past fact, nor were they a
weaker substitute for live testimony at trial; rather, [the co-defendant] was casually
confiding in a friend. [The co-defendant] would not have reasonably expected that
statement to his friend to be used prosecutorially. Those statements were merely
“casual remark[s] to an acquaintance.” Therefore, the statements were
nontestimonial. Since they were nontestimonial, they were outside the scope of the
confrontation clause. Therefore, Wilcoxon suffered no confrontation violation.
Id. (last alteration in original) (citations omitted).
Here, the same reasoning leads to the same conclusion. The phone call from jail presents
a conversation between an inmate alleged to be Perry and unidentified male and female voices.
None of the statements made by the unidentified voices were designed to establish or prove a fact
nor were they a weaker substitute for trial testimony. Instead, the conversation is one of friends
lamenting over the fact that Perry had been arrested and the evidence Perry believed the State had
against him. These statements were merely “casual remark[s] to . . . acquaintance[s].” Id. (quoting
Crawford, 541 U.S. at 51) (first alteration in original). Therefore, the statements made in the phone
call from the jail were nontestimonial, and Perry suffered no confrontation clause violation.

No. 46866-2-II
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CONCLUSION
We dismiss with prejudice Perry’s third degree possession of stolen property conviction
(count V). Perry’s convictions for first degree criminal trespass (count I), second degree identity
theft (count II), possession of a stolen vehicle (count III); third degree possession of stolen property
(lesser-included offense of count IV), and use of drug paraphernalia (count VI) are affirmed. Also,
we reverse the sentencing conditions requiring forfeiture of Perry’s property and the imposition of
discretionary LFOs, and remand for further proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Lee, J.
We concur:
Worswick, J.
Bjorgen, C.J.