Sandoval appeals her convictions for possession of stolen
property in the second degree and possession of a controlled
substance. She argues that insufficient evidence
supports the jury's finding that the credit card found in
her possession was an "access device," and that the
jury instruction defining "access device" misstated
the law and constituted an improper comment on the evidence.
Sandoval also argues that she received ineffective assistance
of counsel when her attorney failed to request an
"unwitting possession" jury instruction. Finally,
Sandoval argues that we should remand for the trial court to
inquire into her ability to pay legal financial obligations
affirm the convictions but remand for the trial court to
reconsider the imposition of LFOs.
March 6, Sandoval entered into an agreement with a car
dealership. The agreement allowed Sandoval to take home and
use a vehicle for three days to determine whether she wanted
to purchase it.
three days, the dealership lost contact with Sandoval and
made unsuccessful attempts to retrieve the vehicle. The
dealership reported the vehicle stolen.
April 2, the police found Sandoval and her husband in the
stolen vehicle at the address listed in the agreement. The
police arrested Sandoval for possession of a stolen vehicle
and searched her incident to that arrest. In Sandoval's
purse, the police found a credit card with somebody
else's name on it, Sandoval's sister's birth
certificate, and a pipe with methamphetamine residue.
credit card had been stolen in early February. At that time,
the card was active and could have been used to buy goods.
Shortly thereafter, the card's owner cancelled the card.
State charged Sandoval with possession of a stolen vehicle,
possession of stolen property in the second degree, identity
theft in the second degree, and possession of a controlled
Trial and Sentencing
relevant here, the court instructed the jury on the elements
of possession of stolen property in the second degree. The
court told the jury that the State had to prove beyond a
reasonable doubt that the stolen property was an access
court defined an access device as, "any card, plate,
code, account number, or other means of account access that
can be used alone or in conjunction with another access
device to obtain money, goods, services, or anything else of
value." Clerk's Papers (CP) at 47. In the same
instruction, the court stated, "The phrase 'can be
used' refers to the status of the access device when it
was last in possession of its lawful owner, regardless of its
status at a later time." CP at 47.
jury convicted Sandoval on all charges except identity theft
in the second degree. The State dismissed that charge.
sentencing, the court imposed numerous LFOs, including a $250
jury-demand fee. Sandoval appeals.
Access Device Defined
makes three assignments of error which are premised on her
argument that the court incorrectly instructed the jury on
the definition of the term "access device."
According to Sandoval, an access device must be able to
obtain something of value at the time it is found on a
defendant, not at the time it was last in the possession of
its lawful owner. Sandoval argues that insufficient evidence
supports her conviction for possession of stolen property in
the second degree, that the trial court erroneously
instructed the jury on the definition of access device, and
that the court impermissibly commented on the evidence with
the instruction. We disagree with Sandoval.
9A.56.010(1) defines "access device." The
definition contains the phrase "can be used."
"Can be used" is not statutorily defined. Sandoval
argues that the court's jury instruction contained an
erroneous definition for the phrase "can be used."
Sandoval's argument is two-fold. First, Sandoval argues
that we should not follow State v. Schloredt, 97
Wn.App. 789, 987 P.2d 647 (1999),  which interpreted the phrase
"can be used," because it is not supported by sound
reasoning. Sandoval argues in the alternative that State
v. Rose, 175 Wn.2d 10, 282 P.3d 1087 (2012), effectively
overruled Schloredt. We disagree with both
review questions of statutory interpretation de novo.
State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282
(2003). Our primary duty in interpreting statutes is to
determine and implement the legislature's intent.
State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318
(2003). If the statute's plain language and ordinary
meaning is clear, we look only to the statute's language
to determine intent. Wentz, 149 Wn.2d at 346.
"[W]e discern plain meaning from 'all that the
Legislature has said in the statute and related statutes
which disclose legislative intent about the provision in
question.'" State v. Sanchez, 177 Wn.2d
835, 843, 306 P.3d 935 (2013) (quoting Dep't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,
43 P.3d 4 (2002)). We consider "'all the terms and
provisions of the act in relation to the subject of the
legislation, the nature of the act, the general object to be
accomplished and consequences that would result from
construing the particular statute in one way or
another.'" State v. Krall, 125 Wn.2d 146,
148, 881 P.2d 1040 (1994) (quoting State v.
Huntzinger, 92 Wn.2d 128, 133, 594 P.2d 917 (1979)).
"[W]e presume the legislature does not intend absurd
results and, where possible, interpret ambiguous language to
avoid such absurdity." State v. Ervin, 169
Wn.2d 815, 823-24, 239 P.3d 354 (2010).
inaction following a judicial decision interpreting a statute
is often deemed to indicate legislative acquiescence in or
acceptance of the decision." State v. Stalker,
152 Wn.App. 805, 813, 219 P.3d 722 (2009).
"'[E]vidence of legislative acquiescence is not
conclusive, but is merely one factor to consider.'"
Fast v. Kennewick Pub. Hosp. Dist., 187 Wn.2d 27,
39, 384 P.3d 232 (2016) (quoting Safeco Ins. Cos. v.
Meyering, 102 Wn.2d 385, 392, 687 P.2d 195 (1984)).
9A.56.010(1) defines "access device" as
any card, plate, code, account number, or other means of
account access that can be used alone or in
conjunction with another access device to obtain money,
goods, services, or anything else of value, or that can be
used to initiate a transfer of funds, ...