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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )
                                            )     No. 66458-1-I
                      Respondent,           )
                                            )     DIVISION ONE
              v.                            )
                                            )
DEMETRIA LUCILLE ZIMMERMAN,                 )   UNPUBLISHED OPINION
                                            )       
                      Appellant.            )    FILED:  June 11, 2012    
________________________________)

       Becker, J.  --  Demetria Zimmerman appeals her conviction for first degree 

identity theft contending that the "to-convict" instruction omitted an essential 

element.  We conclude that because Zimmerman requested a to-convict 

instruction that contains the same alleged error as the one given by the trial 

court, the invited error doctrine bars her claim.

       The State alleged Zimmerman committed identity theft by using another 

person's name during two visits to Harborview Hospital.  The person whose 

name Zimmerman used received bills from Harborview totaling about $4,500.  

Zimmerman, who had been escorted to the hospital by police, testified she used 

a different name so that the police would not discover outstanding arrest 

warrants in her name. 

No. 66458-1-I/2

       A person commits first degree identity theft by knowingly obtaining, 

possessing, using, or transferring 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 and obtains credit, money, goods, services, or anything else 

of value in excess of one thousand five hundred dollars.  RCW 9.35.020(1), (2). 

At trial, the State argued that the "any crime" element was satisfied because 

Zimmerman had used the identification of another person with intent to commit 

theft or to obstruct a law enforcement officer.  

       The to-convict instruction given by the court required the jury to find that 

the defendant had "intent to commit any crime" rather than the specific crimes of 

theft or obstructing a law enforcement officer.  On appeal, Zimmerman argues 

that because the instruction did not identify the underlying crimes, the instruction 

did not include all the essential elements.

       Zimmerman did not make this argument to the trial court.  Below, the 

State did argue that it had no burden to prove precisely which crime Zimmerman 

intended to commit when she used another person's name.  But Zimmerman did 

not contest this argument.  Instead, she argued that the jury should not hear 

argument or be instructed on the crime of obstructing a law enforcement officer.  

Alternatively, Zimmerman wanted an instruction requiring the jury be unanimous 

about the predicate crime.  The court rejected Zimmerman's arguments.  

       That Zimmerman did not raise the issue below does not necessarily 

preclude her from raising it on appeal.  See RAP 2.5(a) (allowing a party to raise 

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No. 66458-1-I/3

a manifest error affecting a constitutional right for the first time on appeal).  

However, under the invited error rule, a party may not request an instruction and 

later complain on appeal that the requested instruction was given.  State v. 

Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999).  The invited error doctrine 

applies even to cases where the to-convict instruction omitted an essential

element of the crime.  See State v. Henderson, 114 Wn.2d 867, 869, 792 P.2d 

514 (1990); State v. Summers, 107 Wn. App. 373, 380-82, 28 P.3d 780 (2001), 

modified on other grounds, 43 P.3d 526 (2002).  Here, Zimmerman proposed a 

to-convict instruction with the same "any crime" language. Thus, regardless of 

the merit of Zimmerman's argument on the essential elements of identity theft, 

the invited error doctrine precludes relief.  

       Affirmed.

WE CONCUR:

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