Opinion
No. 35054-8-II.
November 20, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-06263-2, Kathryn J. Nelson, J., entered June 30, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Armstrong, J., concurred in by Hunt and Quinn-Brintnall, JJ.
Laura Susan Archer appeals four of her six convictions of second degree identity theft, arguing that the State failed to prove the charges. In addition, Archer argues that the trial court miscalculated her offender score because it failed to find that five of the convictions, which related to a single victim, encompassed the same criminal conduct. We find the evidence sufficient to support Archer's convictions, but we agree with Archer, and the State concedes, that the trial court should have ruled that Archer's single use of multiple pieces of the victim's identification and financial information was the same criminal conduct. Accordingly, we affirm Archer's convictions but vacate her sentence and remand for resentencing.
FACTS
Laura Archer and Paul Halvorson presented Erlene Harju's credit card and driver's license to a cashier at Chips Casino in an attempt to receive a cash advance from the credit card. Lakewood Police Officer Karen Herritt responded to a dispatch call from a Chips Casino employee that Archer was using a stolen credit card and driver's license.
When Herritt approached Archer, Archer identified herself as Erlene. Herritt then compared the physical descriptions on Harju's driver's license with Archer's physical appearance and concluded that Archer was not Harju. Herritt arrested Archer and put her in Herritt's patrol car. When Herritt searched Archer's wallet, she discovered several credit cards and insurance cards in Harju's name. Herritt then transported Archer and Halvorson to the jail.
While driving to the jail, Herritt saw Archer and Halvorson "contorting their bodies in sort of an unusual way and . . . whispering together." Report of Proceedings (RP) (June 8, 2006) at 69. Herritt believed they were hiding something in the back of her car. After booking Archer and Halvorson, Herritt searched her vehicle and discovered more cards underneath the back seat. Several of the cards belonged to Harju and one bore Kathleen Rensberger's name.
Rensberger testified that she never applied for the card bearing her name that Herritt found under her patrol car's back seat, but stated that someone used her social security number to obtain the card and that her credit record had been flagged because someone fraudulently opened a card using her identity.
The State charged Archer with six counts of second degree identity theft, one count for each piece of identification or financial information the police discovered. The jury convicted Archer on each count.
At sentencing, Archer argued that the five counts relating to Harju's cards constituted the same criminal conduct for sentencing purposes and that, accordingly, she had an offender score of three. The court disagreed, ruling that each piece of identification or financial information counted as a separate point in calculating her offender score. The court assigned Archer an offender score of seven and sentenced her to the low end of the statutory range.
ANALYSIS I. Sufficiency of the Evidence
Archer maintains that the State failed to prove that she ever possessed, knew about, or assisted Halvorson in taking or possessing the four cards that Herritt found in the police car.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence. Salinas, 119 Wn.2d at 201. And, in reviewing a challenge to the sufficiency of the evidence, we draw all reasonable inferences from the evidence in the State's favor and interpret them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
To prove second degree identity theft with respect to the four cards Herritt found in her patrol car, the State had to prove that Archer "knowingly obtain[ed], possess[ed], use[d], or transfer[red those cards] . . . with the intent to commit, or to aid or abet, any crime." RCW 9.35.020(1). During closing argument, the State argued that Archer intended to commit-or aid or abet Halvorson in committing-the crime of possession of stolen property.
A violation of RCW 9.35.020(1) where nothing of value is obtained as a result constitutes second degree theft. RCW 9.35.020(3).
An accomplice and a principal share the same criminal liability. State v. Carter, 154 Wn.2d 71, 78, 109 P.3d 823 (2005) (quoting State v. Graham, 68 Wn. App. 878, 881, 846 P.2d 578 (1993)). A person is an accomplice if, "[w]ith knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it." RCW 9A.08.020(3)(a). But mere presence at the scene of a crime, even if coupled with knowledge of another's criminal conduct, is not sufficient to prove complicity. State v. Luna, 71 Wn. App. 755, 759, 862 P.2d 620 (1993). Rather, the State must prove that the accomplice acted with knowledge that his or her action promoted or facilitated the commission of the charged crime. State v. Cronin, 142 Wn.2d 568, 579, 14 P.3d 752 (2000).
Here, the court instructed the jury on accomplice liability, and the evidence was sufficient to prove Archer's criminal liability as an accomplice. Halvorson lived with Harju. Archer and Halvorson went to Halvorson's and Harju's house at about 11:00 pm so that Halvorson could get money. Harju testified that she spoke to Archer and Halvorson while they were at her house and that when they left, she left her purse-which contained her driver's license and several credit cards-in her car for the night. She testified that her purse was not in her car the next morning.
Archer testified that at about 2:00 or 3:00 am, she and Halvorson returned to Harju's house because Halvorson said he needed more money. Archer parked in a neighbor's driveway and Halvorson entered the house, returning in about 10 minutes. Halvorson told her that the casino allowed customers to receive cash advances from credit cards and that Harju gave him permission to use her credit cards to get cash. Archer said she did not realize that he did not have permission. When Archer and Halvorson arrived at Chips Casino, he told her "you even almost look like [Harju]. . . . You could do it. All you got to do is give them that, and it's already set up. You might have to sign a piece of paper . . . but then . . . I'll pay [Harju] back." RP (June 8, 2006) at 179. Archer left her own driver's license in her vehicle, and she and Halvorson entered the casino and attempted to obtain $500 with two of Harju's cards and Harju's driver's license.
Officer Herritt testified that Archer had a black wallet containing Harju's driver's license and a credit card when she arrested her. Before transporting Archer and Halvorson to the jail, Herritt confirmed that nothing was under the back seat of her patrol car. While transporting Archer and Halvorson to the jail, Herritt saw Archer and Halvorson whispering to each other and contorting their bodies as if they were working together to conceal something in the back seat. When Herritt searched her patrol car after the booking, she found three of Harju's cards and one card bearing Kathleen Rensberger's name. Herritt did not see who put the cards under the seat, but "it looked like they were working together to put them there." RP (June 8, 2006) at 82.
Viewed in the light most favorable to the State, this evidence was sufficient for a reasonable juror to find that Archer acted as an accomplice to Halvorson in possessing or transferring someone else's financial information with the intent to commit a crime.
II. Offender Score Calculation-Same Criminal Conduct
Archer argues that each of the five counts relating to Harju's driver's license and credit cards constituted the same criminal conduct for sentencing purposes. She does not challenge the court's decision to count the charge relating to Rensberger as one point in her offender score.
We review a sentencing court's calculation of an offender score de novo. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003) (citing State v. McCraw, 127 Wn.2d 281, 289, 898 P.2d 838 (1995)).
If concurrent offenses encompass the same criminal conduct, the sentencing court treats them as one crime for purposes of calculating the defendant's offender score. RCW 9.94A.589(1)(a). "`Same criminal conduct' . . . means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." RCW 9.94A.589(1)(a). If any one of the three elements is missing, multiple offenses do not encompass the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992).
The State concedes, correctly, that counts I and VIII-relating to Harju's driver's license and credit card that Archer used at the casino-encompass the same criminal conduct for purposes of determining her offender score. Because Archer committed the crimes charged in counts I and VIII at the same time and place, and because the crimes involved the same criminal intent and the same victim, we accept the State's concession.
The State also concedes that counts IX, X, and XI-relating to Harju's cards that Herritt found in her patrol car-encompass the same criminal conduct. Again, because Archer committed the crimes charged in counts IX, X, and XI at the same time and place, and because the crimes involved the same criminal intent and the same victim, we accept the State's concession.
Contrary to Archer's assertion, however, the State argues that counts I and VIII should count as one point in calculating Archer's offender score and that counts IX, X, and XI should count as a separate point.
Neither party disputes that Harju was the victim of each of the five charged crimes. Thus we address the remaining two requirements for a finding of same criminal conduct.
1. Same Time and Place
The State argues that since Herritt found the cards giving rise to counts IX, X, and XI in her patrol car, the criminal conduct giving rise to those charges did not occur at the same time and place as Archer's criminal conduct in using Harju's driver's license and credit cards in the casino.
For purposes of determining whether several crimes constituted the same criminal conduct, "same time" does not mean "exact same moment in time" or "simultaneous." State v. Porter, 133 Wn.2d 177, 182, 942 P.2d 974 (1997) (series of drug deliveries within 10-minute period satisfied the "same time" element of same criminal conduct). For instance, in State v. Calvert, 79 Wn. App. 569, 578, 903 P.2d 1003 (1995), the court held that two check forgeries occurring at the same bank, on the same day, and as part of the same scheme, constituted same criminal conduct even though the court did not know whether the defendant forged the checks at the same time.
We can infer that either Archer or Halvorson had Harju's cards when they entered the casino. And although Herritt confiscated Harju's driver's license and credit card that Archer used at the casino, either Archer or Halvorson had the remaining cards when the officers placed them in Herritt's patrol car. The State argues that the conduct giving rise to counts IX, X, and XI did not occur at the same time and place as counts I and VIII because Archer did not attempt to use the cards found in the patrol car in the casino. But a defendant can commit identity theft by knowingly obtaining, possessing, or using another person's means of identification or financial information. RCW 9.35.020(1). Because Archer and Halvorson used several means of Harju's identification and financial information does not necessarily mean that they were not committing identity theft at the same time by possessing several separate means of Harju's financial information. Their attempt to hide the cards in the police car did not give rise to the charges relating to those cards; rather, the fact that they possessed them did. Archer's and Halvorson's possession of Harju's cards was a "continuing, uninterrupted sequence of conduct." See State v. Price, 103 Wn. App. 845, 856, 14 P.3d 841 (2000) (quoting Porter, 133 Wn.2d at 186). Their possession occurred at the casino, even though Herritt found the cards later in her car.
2. Same Criminal Intent
To determine if two crimes share a criminal intent, we focus on whether the defendant's intent, viewed objectively, changed from one crime to the next. State v. Vike, 125 Wn.2d 407, 411, 885 P.2d 824 (1994) (citing State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237 (1987)). We test for same intent by considering whether one crime furthered the other. Lessley, 118 Wn.2d at 778. If so, the defendant likely possessed the same criminal intent in committing both crimes.
Intent, in the "same criminal conduct" context, is not the particular crime's mens rea element, but rather the defendant's objective criminal purpose in committing the crime. State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990). "Thus, for example, the intent of robbery is to acquire property, . . . the intent of attempted murder is to kill someone," and the criminal intent of possessing cocaine is to use or sell it. Adame, 56 Wn. App. at 811.
Here, Archer possessed and used Harju's driver's license and credit cards in attempting to fraudulently obtain money. Although the State agrees that Archer and Halvorson intended to use Harju's identification and financial information to obtain money, the State argues that while Archer used several cards at the casino, she intended to use the remaining cards at a later date. Thus, the State maintains, she did not have the same criminal intent as to the later found cards as she did with the cards used in the casino.
In State v. Burns, 114 Wn.2d 314, 316, 788 P.2d 531 (1990), the State charged the defendant with delivery of a controlled substance and with possession of a controlled substance with the intent to deliver. In Burns, the defendant delivered some cocaine but also kept some cocaine with the intent to deliver it in the future. Burns, 114 Wn.2d at 318. Thus, the defendant did not have the same criminal intent for the retained cocaine as the delivered cocaine. Accordingly, his same criminal conduct argument failed. Burns, 114 Wn.2d at 319-20.
In State v. Garza-Villarreal, 123 Wn.2d 42, 44, 864 P.2d 1378 (1993), the State charged the defendant with possession of two substances-heroin and cocaine-with intent to deliver. Unlike the defendant in Burns, the defendant had not yet delivered either drug. See Garza-Villarreal, 123 Wn.2d at 44. Because the defendant intended to deliver both drugs in the future, he had the same objective criminal intent for both. Garza-Villarreal, 123 Wn.2d at 49.
Here, Archer used several pieces of Harju's identification and financial information at the casino, but she and Halvorson possessed other pieces of Harju's identification and financial information that they did not use at the casino. This evidence supports the inference that Archer and Halvorson intended to use those cards to obtain money later. Thus, because Archer intended to use several of Harju's cards in the present, and intended to use the remaining cards in the future, she did not possess the same criminal intent when committing the crimes alleged in counts I and VIII as she did when committing the crimes alleged in counts IX, X, XI.
The crimes charged in counts I and VIII do not constitute the same criminal conduct, for purposes of calculating an offender score, as the crimes charged in counts IX, X, and XI.
We affirm Archer's conviction but vacate her sentence and remand for resentencing with instructions to count the convictions on counts I and VIII as one point and to count the convictions on counts IX, X, and XI as one point.
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 pursuant to RCW 2.06.040, it is so ordered.
We concur:
Hunt, J.
Quinn-Brintnall, J.