State v. FisherState v. Fisher
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- Before:
- Cox
¶3 In March 2003, Fisher was arrested and charged with possession of methamphetamine. Fisher posted bail and was later charged with two additional counts of bail jumping when he failed to appear on two different occasions. A jury convicted Fisher of all three charges.
¶6 The plea agreement reflected the State’s calculation that Fisher’s offender score was seven. At Fisher’s sentencing hearing, he successfully argued that the “unit of prosecution” for identity theft is “use,” not “possession.” The trial court counted the two identity theft convictions as one for purposes of scoring.4 The trial court also ruled that Fisher’s two bail jumping convictions constituted the same criminal conduct. Finally, the court added one point to Fisher’s offender score based on Fisher’s stipulation that he was on community placement at the time of his crimes.
¶7 The State appeals the judgment and sentence scoring the two identity thefts as one point and the two bail jumping convictions as one point. Fisher cross-appeals the one point added for community placement.
UNIT OF PROSECUTION — IDENTITY THEFT
¶8 The State argues that the “unit of prosecution” for identity theft in this case is Fisher’s possession, with the requisite intent, of a victim’s means of identification or financial information. We agree.
¶9 “When a defendant is convicted of multiple violations of the same statute, the double jeopardy analysis focuses on what the legislature intends as the ‘unit of prosecution [.]’ . . . .”5 In order to determine the “unit of prosecution,” the first step is to look at the statute.6 The
¶10 Former
(1) No person may knowingly obtain, possess, use, or transfer a means of identificationor financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.
(2)(a) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value shall constitute identity theft in the first degree. Identity theft in the first degree is a class B felony.
(b) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony. [11]
¶11 Subsection (1) of the above statute defines the punishable acts that the legislature has prohibited. The plain words of that subsection include possession of either a
¶12 Subsections (2)(a) and (b) define the degrees of identity theft, respectively, as either in the first or second degree. But neither of these two subsections modifies the plain meaning of subsection (1), which defines the prohibited acts. Thus, under the facts of this case, the “unit of prosecution” is Fisher’s possession, with the requisite intent, of a means of identification or financial information of each victim.12
¶13 Fisher argues that under State v. Leyda13 and the identity theft statute, the “unit of prosecution” is “use,” not “possession.” Our state supreme court held that the unit of prosecution for identity theft “is any one act of either knowingly ‘obtain [ing], possess [ing], us [ing], or transfer[ring] a means of identification or financial information of another person . . . with the intent to commit, or to aid or abet, any crime.’ ”14 The court noted that identity theft is a crime committed against each person whose identity has been stolen.15 It further noted that had Leyda obtained, used, possessed, or transferred the stolen credit cards of two or more persons, he could have been properly charged
¶14 Here, Fisher possessed the financial information of several different victims. Thus, he was properly charged with and convicted of two counts of second degree identity theft for possessing the financial information of two different victims. The trial court’s conclusion that “use,” rather than “possession,” is the proper unit of prosecution
¶15 Fisher further asserts that if this court does not agree that “use” is the only “unit of prosecution,” then the rule of lenity applies. We reject this assertion.
¶16 The rule of lenity applies where a statute is ambiguous, and any ambiguity must be resolved in the criminal defendant’s favor.18 Former
SAME CRIMINAL CONDUCT
¶17 The State argues that Fisher’s two bail jumping convictions did not arise out of the same criminal conduct because the crimes occurred at different times. We agree.
¶18 If two current offenses encompass the same criminal conduct, then those current offenses will
¶19 We need address only the second prong of the test because it is dispositive. The question is whether the two bail jumping crimes occurred at different times.
¶20 It is undisputed that Fisher was out of jail on bond when he failed to appear in June 2003. He also failed to appear in October 2003. Ajury convicted him of two counts of bail jumping based on these failures to appear.
¶21 The two failures to appear, separated by almost four months, did not occur at the “same time.” The trial court appears to have based its ruling on the fact that “the defendant failed to appear for two related close-in-time proceedings and in the same case governed by the same bond.” Neither the same cause number of a case nor the same bond are relevant considerations for purposes of the controlling test. And the substantial time difference simply does not meet the test.
¶22 Fisher relies on State v. Porter24 to argue that the offenses do not need to be simultaneous and the trial court was within its discretion in determining that the bail jumping offenses arose out of the same criminal conduct. That case is distinguishable.
¶24 The trial court incorrectly ruled that the two bail jumping convictions were the same criminal conduct.
¶25 We reverse the sentence and remand for resentencing.
¶26 The remaining issues of this opinion are not of precedential importance. Accordingly,
Appelwick, C.J., and Ellington, J., concur.
Notes
State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998).
See State v. Jones, 159 Wn.2d 231, 234, 149 P.3d 636 (2006) (holding a sentencing judge may determine whether an offender was on community placement at the time of an offense). We withdraw the prior opinion in this case in light of the Supreme Court’s decision in State v. Jones and file this substitute opinion.
First and second degree identity theft defined by former ROW 9.35.020 (2002) states in relevant part:
(2)(a) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value in excess of one thousand five hundred dollars in value shall constitute identity theft in the first degree. Identity theft in the first degree is a class B felony.
(b) Violation of this section when the accused or an accomplice uses the victim’s means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony.
(Emphasis added.)
The trial court reduced Fisher’s offender score from six to five, apparently omitting the additional community placement point. The trial court further reduced Fisher’s offender score from five to four after finding the two bail jumping convictions constituted the same criminal conduct.
State v. Leyda, 122 Wn. App. 633, 636, 94 P.3d 397 (2004), rev’d on other grounds, 157 Wn.2d 335, 138 P.3d 610 (2006).
Adel, 136 Wn.2d at 634.
Ass’n of Wash. Bus. v. Dep’t of Revenue, 155 Wn.2d 430, 441, 120 P.3d 46 (2005).
Id. at 441 n.10.
Adel, 136 Wn.2d at 634-35.
State v. Berry, 129 Wn. App. 59, 69, 117 P.3d 1162 (2005).
11 (Emphasis added.)
See State v. Graham, 153 Wn.2d 400, 406, 103 P.3d 1238 (2005) (When the legislature prohibits conduct against “another person,” a separate offense is committed for each individual person that is placed in danger.).
122 Wn. App. 633, 94 P.3d 397 (2004), rev’d on other grounds, 157 Wn.2d 335, 337, 351, 138 P.3d 610 (2006) (Holding that the State violated Leyda’s constitutional right against double jeopardy for charging him with one count of identity theft for each “use” of the victim’s financial information, the court held that “Leyda committed the crime of identity theft the moment he ‘obtained’ a means of financial information... of [the victim] with the intent to commit, or to aid or abet, the crime of theft. He did not violate the statute each of the four times the stolen card was subsequently presented to make a purchase.”).
Leyda, 157 Wn.2d at 338 (alterations in original) (quoting
Id. at 346.
Id. at 346-47.
Id. at 338, 351.
In re Post Sentencing Review of Charles, 135 Wn.2d 239, 249-50, 955 P.2d 798 (1998).
Berry, 129 Wn. App. at 70.
Haddock, 141 Wn.2d at 109-10.
Id.
Id. at 110.
133 Wn.2d 177, 942 P.2d 974 (1997).
Id. at 183.