Opinion
No. 35346-6-II.
April 1, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-00822-7, John P. Wulle, J., entered September 8, 2006.
Reversed and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Penoyar, J.; Quinn-Brintnall, J., concurring in the result only.
Nicole Tyrer asks us to vacate her first degree criminal impersonation conviction because it violates her constitutional protection against double jeopardy, arguing that, under the facts of her case, her conviction for first degree criminal impersonation was a lesser included offense of second degree identity theft. We agree and vacate Tyrer's conviction for first degree criminal impersonation and, thus, remand for resentencing.
FACTS
On January 9, 2006, when Washington State Patrol Trooper Richard Bettger pulled over the vehicle in which Tyrer was riding, he issued her a citation because she was not wearing a seat belt. Tyrer told Bettger that she did not have identification with her, but that her name was Meagan Campbell. She also provided Bettger with Campbell's proper date of birth and told him that she had a California driver's license. He checked the information and found that Campbell had a valid California driver's license. Believing that Campbell's physical description fairly matched Tyrer's appearance, Bettger issued her the citation, which she signed as Campbell.
On March 22, 2006, Vancouver Police Officer Neil Martin stopped Tyrer because the vehicle she was driving had expired license plates. Tyrer again used Campbell's name and provided Martin with a California address, a partial driver's license number, and a date of birth. Tyrer also told Martin that she had changed her name so he might locate the driver's license number under Campbell's former last name, Stevens. Martin released Tyrer with a warning. Later that day, a confidential informant told Martin that Tyrer had been using Campbell's name. Martin located a picture of Tyrer and realized that she was the woman he had pulled over.
Tyrer subsequently admitted to Martin that she had used Campbell's name on January 9, March 22, and also on February 4, 2006, when she received and signed for another traffic citation. Tyrer admitted that she gave Campbell's name to the officers because she did not want to be arrested on her outstanding warrant.
Campbell, a California resident who had never lived in, or traveled to, Washington, discovered that Tyrer had been using her name after the Washington State Department of Licensing notified her that it was suspending her license. Campbell attended elementary and junior high school with Tyrer, but she did not give Tyrer permission to use her name or personal information.
A jury convicted Tyrer of second degree identity theft, first degree criminal impersonation, and two counts of forgery. The State asked for an exceptional sentence because Tyrer had committed multiple offenses and because she had a high offender score, which would result in some of her current offenses going unpunished.
In its sentencing memorandum, the State contended "that when scoring the Identity Theft conviction, the other three current offenses merge as `same criminal conduct.' RCW 9.94A.589." Clerk's Papers (CP) at 79. The State argued that the trial court should score Tyrer's offenses as follows:
[T]here are no "other current offenses" that go unpunished — all counts merge under the Identity Theft conviction, so the defendant's offender score remains a "10." . . .
However, when scoring the Criminal Impersonation conviction, the conduct is separate from the two Forgery convictions. The defendant's offender score is a "12" when scoring the Criminal Impersonation conviction. The defendant's offender score is so high that it results in the Forgery convictions going unpunished.
The same is true when scoring each Forgery conviction: When scoring count 3, count 2 (Criminal Impersonation) and count 4 (Forgery — different date) do not merge. Ditto for count 4 (it does not merge with counts 2 or 3). Thus, the defendant's offender score is "12" when scoring each conviction for Forgery. Again, the defendant's offender score is so high that it results in one of the Forgery convictions and the Criminal Impersonation conviction going unpunished.
CP at 79-80.
The trial court agreed with the State and sentenced Tyrer to an exceptional sentence. It noted on Tyrer's judgment and sentence that "[c]urrent offenses encompassing the same criminal conduct and counting as one crime in determining the offender score are Count(s) 1 [second degree identity theft] (merges with counts 2, 3, 4 [first degree criminal impersonation, forgery, and forgery]). RCW 9.94A.589. Counts 2, 3 4 do not merge." CP at 99. Thus, her offender score was 10 for her second degree identity theft conviction and 12 on her other three convictions. The trial court sentenced Tyrer to 57 months imprisonment for her second degree identity theft conviction, 12 months imprisonment for her first degree criminal impersonation conviction, and 29 months each for her forgery convictions. It ordered her to serve her first degree criminal impersonation and forgery sentences consecutively, and to serve her second degree identity theft conviction concurrently with those sentences for a total of 70 months' incarceration.
Tyrer appeals.
ANALYSIS
Tyrer argues that the trial court violated her constitutional protection against double jeopardy because it punished her for second degree identity theft and first degree criminal impersonation. She argues that, under the circumstances here, criminal impersonation is a lesser included offense of second degree identity theft. The State argues that Tyrer was not subject to double jeopardy because the trial court merged the crimes for sentencing purposes. We agree with Tyrer.
I. Merger
"[M]erger is not simply a creation of the Sentencing Reform Act." State v. Johnson, 113 Wn. App. 482, 488, 54 P.3d 155 (2003). "The double jeopardy clauses of the United States and Washington constitutions are the foundation for the merger doctrine." State v. Parmelee, 108 Wn. App. 702, 710, 32 P.3d 1029 (2001). Moreover, the merger doctrine is not identical to the same criminal conduct provision in RCW 9.94A.589. The merger doctrine avoids double punishment by merging a lesser offense "into the greater offense when one offense raises the degree of another offense," and RCW 9.94A.589 ensures that sentences cannot be enhanced when multiple offenses encompass the same criminal conduct. State v. Collicott, 118 Wn.2d 649, 668, 827 P.2d 263 (1992) (relying on State v. Dunaway, 109 Wn.2d 207, 749 P.2d 160 (1987) and former RCW 9.94A.400 (1987 Supp. 1988), recodified as RCW 9.94A.589); see also Johnson, 113 Wn. App. at 488-89.
RCW 9.94A.589(1)(a) provides:
Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. . . . "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim.
Despite the trial court's use of the term "merge" when it treated multiple current convictions as one crime to reduce Tyrer's offender score for second degree identify theft, it addressed her same criminal conduct but did not merge her second degree identity theft and first degree criminal impersonation convictions.
"The merger doctrine is relevant only when a crime is elevated to a higher degree by proof of another crime proscribed elsewhere in the criminal code." Parmelee, 108 Wn. App. at 710.
[T]he merger doctrine is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime ( e.g., first degree rape) the State must prove not only that a defendant committed that crime ( e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes ( e.g., assault or kidnapping).
State v. Vladovic, 99 Wn.2d 413, 420-21, 662 P.2d 853 (1983); see also State v. Louis, 155 Wn.2d 563, 570-71, 120 P.3d 936 (2005). When two crimes merge, the trial court convicts the defendant only of the one offense into which the other offenses merge. See Parmelee, 108 Wn. App at 711.
Here, the trial court punished Tyrer for both second degree identity theft and first degree criminal impersonation and did not apply the merger doctrine. Therefore, we consider Tyrer's double jeopardy arguments.
II. Double Jeopardy
Tyrer argues that her convictions for both second degree identity theft and first degree criminal impersonation violate her constitutional guarantee against double jeopardy. Tyrer may raise the double jeopardy issue for the first time on appeal. State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006).
The United States Constitution provides that a person may not be "subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Washington State Constitution similarly provides that a person may not "be twice put in jeopardy for the same offense." Wash. Const. art. I, § 9. The constitutional guarantee against double jeopardy protects a person from receiving multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995).
"Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004). "Washington courts look first to the statutory language to determine if it expressly permits multiple punishments for the applicable statutes." Jackman, 156 Wn.2d at 746. Such is not the case here. See RCW 9.35.020; RCW 9A.60.040(1)(a).
RCW 9.35.020 provides:
(1) No person may knowingly obtain, possess, use, or transfer 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. . . .
(3) Violation of this section when the accused . . . uses the victim's means of identification or financial information and . . . no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree.
And RCW 9A.60.040(1)(a) provides: "A person is guilty of criminal impersonation in the first degree if the person . . . [a]ssumes a false identity and does an act in his or her assumed character with intent to defraud another or for any other unlawful purpose."
Because the second degree identity theft statute and the criminal impersonation statute do not expressly allow for multiple punishments, we turn to the same evidence test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); see Jackman, 156 Wn.2d at 746-47; Louis, 155 Wn.2d at 569; State v. Freeman, 153 Wn.2d 765, 772, 108 P.3d 753 (2005); Calle, 125 Wn.2d at 777. "Under the same evidence test, double jeopardy is deemed violated if a defendant is `convicted of offenses that are identical both in fact and in law.'" Louis, 155 Wn.2d at 569 (quoting Calle, 125 Wn.2d at 777). "`[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.'" Orange, 152 Wn.2d at 817 (emphasis omitted) (quoting Blockburger, 284 U.S. at 304).
"In addition, if a statute constitutes a lesser included offense of another statute, convictions for both offenses would violate double jeopardy." Jackman, 156 Wn.2d at 749. Even if one statute is not invariably a lesser included offense of the other, under the same evidence test, "if a court concludes that the facts the State must prove to convict the defendant under the two statutes are the same, the convictions violate double jeopardy and the analysis ends." Jackman, 156 Wn.2d at 750.
The Washington Supreme Court has established a two-part test for determining whether an offense is a lesser included offense of another. State v. Berlin, 133 Wn.2d 541, 545, 947 P.2d 700 (1997). "First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed." Berlin, 133 Wn.2d at 545-46. "[I]f it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime." State v. Frazier, 99 Wn.2d 180, 191, 661 P.2d 126 (1983) (quoting State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 (1973)). We apply the lesser included offense analysis "to the offenses as charged and prosecuted, rather than to the offenses as they broadly appear in statute." Berlin, 133 Wn.2d at 548.
Washington courts have not squarely addressed whether first degree criminal impersonation is a lesser included offense of second degree identity theft. In State v. Presba, Division One of this court considered whether the State was required to charge Melissa Presba with first degree criminal impersonation in addition to second degree identity theft to avoid violating her constitutional right to equal protection. 131 Wn. App. 47, 50, 126 P.3d 1280 (2005), review denied, 158 Wn.2d 1008 (2006). When it compared the second degree identity theft statute with the first degree criminal impersonation statute on their face, the court held:
The facts in Presba are similar to those here. Presba used a former friend and neighbor's maiden name, birth date, former address, and social security number when a Washington State Patrol Trooper stopped her vehicle because Presba's own license was suspended. The State charged Presba with second degree identity theft, forgery, and third degree driving with a suspended license. Presba, 131 Wn. App. at 50-51.
[T]here is no equal protection violation if the elements of the two crimes in question are not the same. Presba contends that equal protection is offended because she was not charged with a violation of former RCW 9A.60.040(1), the former misdemeanor offense of criminal impersonation. . . .
But this court has held that assuming a "false identity" under this statute is not the same as using a "false name." And even if those terms were taken to be coextensive, as the trial court reasoned in rejecting Presba's claim that criminal impersonation was an included offense, neither use of a false name nor a false identity requires assuming the identity of an actual person, which is necessary to commit identity theft.
Presba, 131 Wn. App. at 54-55 (footnotes omitted).
Here, we apply the lesser included offense analysis to the current charges and prosecution instead of focusing on their broader statutory definitions. Berlin, 133 Wn.2d at 548. The State charged Tyrer with second degree identity theft, specifically, that she, "between January 9, 2006 and March 22, 2006, did knowingly obtain, possess, use or transfer a means of identification or financial information of another person, to wit: Meagan Campbell, with the intent to commit or to aid the commission of any crime." CP at 9. The State also charged Tyrer with first degree criminal impersonation, specifically, that she, "on or about March 22, 2006, did assume a false identity, to wit: Meagan Campbell, and did an act in such assumed character with the intent to defraud another or for any other unlawful purpose." CP at 9.
Although the State included the statute's "financial information" language in the charging document, the State presented no evidence that Tyrer used any of Campbell's financial information. CP at 9. And in the State's closing argument, it argued that Tyrer committed identity theft by using Campbell's means of identification, not her financial information.
To establish second degree identity theft as charged and prosecuted in this case, the State had to prove that Tyrer knowingly used Campbell's means of identification with the intent to commit a crime. RCW 9.35.020(1). Moreover, to prove first degree criminal impersonation, the State had to prove that Tyrer assumed Campbell's character with the intent to defraud the officer for any other unlawful purpose. RCW 9A.60.040(1)(a). Tyrer assumed Campbell's character by using her means of identification, in particular her name, birth date and part of her driver's license number. Tyrer's intent was to both defraud the officer and to avoid arrest on her outstanding warrant. Thus, it was impossible for Tyrer to commit second degree identity theft, the greater offense, without having committed the lesser offense, first degree criminal impersonation. See Frazier, 99 Wn.2d at 191.
Under the facts of this case, first degree criminal impersonation was a lesser included offense of second degree identity theft and, therefore, the convictions violate Tyrer's constitutional protection against double jeopardy. See Jackman, 156 Wn.2d at 750; Berlin, 133 Wn.2d at 548.
We emphasize that our holding is limited only to the parties and facts in this case and we do not hold that first degree criminal impersonation is always a lesser included offense of second degree identity theft.
We vacate Tyrer's conviction for first degree criminal impersonation and remand for resentencing.
Although double jeopardy is not offended by convictions of both a greater and lesser offense when the State relies on two separate acts to prove the charges, such is not the case here. See State v. Godsey, 131 Wn. App. 278, 289-90, 127 P.3d 11, review denied, 158 Wn.2d 1022 (2006). The unit of prosecution for identity theft includes any subsequent proscribed conduct against the same victim. State v. Leyda, 157 Wn.2d 335, 345, 138 P.3d 610 (2006). Thus, the State's unit of prosecution for one count of second degree identity theft against Campbell was from January 9, 2006 to March 22, 2006, as charged.
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.
PENOYAR, J. concur.
QUINN-BRINTNALL, J. concur in the result only.