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State v. Zeferino-Lopez

Court of Appeals of Washington, Division 1

February 24, 2014

The State of Washington, Respondent,
v.
Felipe Zeferino-Lopez, Appellant

Superior Court County: Skagit. Superior Court Cause No: 12-1-00637-6. Date filed in Superior Court: 11/8/12. Superior Court Judge Signing: Susan Cook.

Jennifer L. Dobson ; and Dana M. Nelson (of Nielsen Broman & Koch PLLC ), for appellant.

Richard A. Weyrich, Prosecuting Attorney, and Rosemary H. Kaholokula and Erik Pedersen, Deputies, for respondent.

AUTHOR: Becker, J. WE CONCUR: Lau, J., Cox, J.

OPINION

Becker, J.

[179 Wn.App. 593] ¶ 1 Appellant was convicted of identity theft in the second degree for using a Social Security number belonging to someone else. Knowledge that the number belonged to another person is an element of the crime. Because there was no evidence of that element, we reverse with instructions to dismiss for insufficiency of the evidence.

¶ 2 On March 9, 2010, appellant Felipe Zeferino-Lopez [1] used a Social Security card

Page 95

with his name on it to open a bank account at a bank in Burlington in Skagit County.

¶ 3 On April 30, 2012, local police were informed that a minor in California had attempted to set up her first bank [179 Wn.App. 594] account and learned that someone had already used her Social Security number to open a bank account. Investigation led to Zeferino.

¶ 4 The State charged Zeferino with second degree identity theft. A jury convicted him in November 2012. He appeals.

¶ 5 At trial, a bank investigator testified that she had searched the bank's records by Social Security number and discovered that the number in question was on a signature card issued when the account was opened in Mount Vernon. The person who opened the account was Zeferino. The bank had video images of Zeferino accessing the account.

¶ 6 A district manager of the Social Security administration gave testimony to establish that the Social Security number was assigned to another person. The witness testified that Social Security numbers are now assigned randomly, although until recently the first part of the number was assigned based upon the area where the person was applying. She said that a person who is not in the United States legally is not eligible for a Social Security number. The police officer who interviewed Zeferino testified that he admitted being in the country illegally.

¶ 7 Zeferino testified that he entered the United States from Mexico in 1995 when he was around nine years old. He said friends told him he needed a Social Security card to work, so he bought one with his name on it for $100. He said he had presented the card when he obtained employment at various restaurant jobs and most recently at a recreational vehicle dealership. He testified that he did not know the number on the card belonged to someone else until the police contacted him about his use of the card to open a bank account.

¶ 8 In closing, the prosecutor argued that the testimony by the Social Security district manager proved that the number was assigned to an actual person and was " not just a random number." The prosecutor then argued that the [179 Wn.App. 595] State had proved the element of knowledge by showing that Zeferino knew that he was possessing and using the Social Security number:

And then we have to establish that the defendant knowingly possessed the Social Security number. Instruction Number 6 defines knowingly for you. It's actually rather a lengthy instruction for such a small word. But basically knowingly means that you are aware of a fact that exists. So when we ask ourselves did the defendant know that he was possessing the Social Security number, of course he did. He knew he possessed it. He bought it. He used it. He possessed it. He knew he possessed it. And so we can kind of check that off. So ...

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