[Nos. 54986-3-I; 54987-1-I. Division One. July 9, 2007.]
[1] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — What Constitutes — Unit of Prosecution — Determination.When a defendant is convicted of multiple violations of the same statute, double jeopardy analysis focuses on what the legislature intends as the "unit of prosecution" under the statute. To determine the legislature's intent, a court first considers the plain meaning of the words used in the statute. The court may employ other aids of construction, such as legislative history, or may apply the rule of lenity, but only if the statute is ambiguous. [2] Criminal Law — Former Jeopardy — Multiple Convictions — Same Offense — What Constitutes — Unit of Prosecution — Review — Standard of Review. The construction of a criminal statute to determine its unit of prosecution is reviewed by an appellate court de novo. [3] Theft — Identity Theft — Unit of Prosecution — Multiple Victims. The unit of prosecution of the crime of identity theft under former RCW 9.35.020 (2002) is any one act of either knowingly obtaining, possessing, using, or transferring a victim's means of identification or financial information with the intent to commit a crime. Identity theft is a crime committed against each victim whose identity has been stolen. Each victim represents a separate unit of prosecution for which the defendant may be separately prosecuted and convicted without being placed in double jeopardy. [4] Criminal Law — Punishment — Sentence — Criminal History — "Same Criminal Conduct" — Test. In order for two or more crimes to encompass the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a), the crimes must (1) involve the same criminal intent, (2) have been committed at the same time and place, and (3) involve the same victim. All three prongs must be satisfied in order for multiple offenses to be counted as one offense when calculating a defendant's offender score. If any one of these elements is missing, the offenses must be individually counted toward the offender score. [5] Criminal Law — Punishment — Sentence — Criminal History — "Same Criminal Conduct" — Review — Standard of Review. A trial court's ruling that two or more crimes do not constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a) is reviewed for a clear abuse of discretion or a misapplication of the law. [6] Criminal Law — Punishment — Sentence — Criminal History — "Same Criminal Conduct" — Bail Jumping — Months Apart. Two counts of bail jumping do not constitute the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a) if each is based on a failure to appear occurring months apart. The fact that the same cause number and the same bond are used is not relevant for purposes of the same criminal conduct test. Nature of Action: Prosecutions for unlawful possession of methamphetamine, two counts of bail jumping, and two counts of second degree identity theft. Superior Court: The Superior Court for King County, Nos. 03-1-05697-5 and 03-1-08775-7, Richard A. Jones, J., on August 30, 2004, entered judgments based on the defendant's plea of guilty to two counts of second degree identity theft and a verdict finding the defendant guilty of unlawful possession of methamphetamine and two counts of bail jumping. Court of Appeals: Holding that the defendant committed more than one unit of prosecution of identity theft and could be punished for each without being placed in double jeopardy and that the two bail jumping convictions did not constitute the same criminal conduct for sentencing purposes, the court reverses the sentence and remands the case for resentencing. Daniel T. Satterberg-, Interim Prosecuting Attorney, and James M. Whisman-, Deputy, for appellant. Cheryl D. Aza-, (of Washington Appellate Project), for respondent. [Reporter's Note: This opinion superseded a previous opinion in the same cause reported at 131 Wn. App. 125-34, which was withdrawn by footnote 2 of this opinion.] ¶1 COX, J. — The primary issue that we decide here is what act or course of conduct the legislature has defined as punishable for identify theft—the "unit of prosecution." ¶2 Here, the "unit of prosecution" is Fisher's possession, with the requisite intent, of a means of identification or financial information of each victim. Furthermore, Fisher's two separate acts of bail jumping, separated by four months, do not constitute the same criminal conduct for purposes of sentencing. Finally, the determination whether Fisher was on community placement at the relevant time was properly determined by the sentencing judge. ¶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. ¶4 In May 2003, Fisher was arrested for driving with a suspended license. A search incident to arrest revealed multiple pieces of identification, checks, and account numbers, belonging to several different people in his possession. The State charged Fisher with one count of second degree identity theft of Josiah Erickson and one count of second degree identity theft of Ryan Dubois for possession of each victim's means of identification or financial information. (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.) ¶5 Additional charges against Fisher included numerous counts of possessing stolen property in the first and second degree and forgery. Fisher pleaded guilty to the two counts of second degree identity theft in exchange for the State dropping the remaining six counts. ¶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. ¶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. (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. (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 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 means of identification or financial information of another person, with the requisite intent, as one of several punishable acts. The other prohibited acts include obtaining, using, or transferring, with the requisite intent, either a means of identification or financial information of another. ¶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. ¶13 Fisher argues that under State v. Leyda ¶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 resulted in its erroneous scoring of Fisher's two identity theft convictions as one point rather than two. Proper scoring requires the two convictions to be scored separately at resentencing following remand. ¶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. 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. ¶19 We need only address 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. A jury convicted him of two counts of bail jumping based on these failures to appear. ¶22 Fisher relies on State v. Porter ¶23 In Porter, the court held that two drug sales that occurred 10 minutes apart satisfied the "same time" element of same criminal conduct. ¶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, pursuant to RCW 2.06.040, the remainder of this opinion is unpublished. APPELWICK, C.J., and ELLINGTON, J., concur.