Opinion
No. 59824-4-I.
June 16, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-00193-4, Ira Uhrig, J., entered April 4, 2007.
Affirmed by unpublished per curiam opinion.
Deann Bonner used a check bearing her name but someone else's account number to buy items at Walgreens. A jury found her guilty of identity theft and forgery. The only question is whether the two offenses constituted the same criminal conduct. Because there were separate victims, the crimes were not the same criminal conduct. We affirm.
BACKGROUND
Deann Bonner used a check to purchase some items at a Walgreens. The check bore her name, address and signature, but the check's routing and account numbers corresponded to Darrell Van Weerdhuisen's account at People's Bank. A jury convicted Bonner of one count of identity theft and one count of forgery.
The court determined that the crimes were not the same criminal conduct for sentencing purposes because they had two victims, Van Weerdhuisen and People's Bank. Bonner appeals.
ANALYSIS
Bonner contends that the court miscalculated her offender score because the two crimes were the same criminal conduct.
To determine the offender score, the court counts all other current offenses as prior offenses, unless the other current offenses encompass the same criminal conduct. RCW 9.94A.589(1)(a). Same criminal conduct is conduct that involves the same victim, the same objective intent, and occurs at the same time and place. Id.; State v. Tili, 139 Wn.2d 107, 123, 985 P.2d 365 (1999). A victim includes any person or entity who has sustained financial injury as a direct result of the crime charged. RCW 9.94A.030. The absence of any one of these factors precludes a finding of same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). We review decisions regarding same criminal conduct for abuse of discretion. Tili, 139 Wn.2d at 122. A trial court abuses its discretion when its decision or order is manifestly unreasonable, or discretion is based on untenable grounds or untenable reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
At sentencing, Bonner and the State agreed Bonner's objective intent while carrying out the identity theft and the forgery was the same and that the crimes occurred simultaneously. They disputed only whether the two crimes had the same victim. The State argued that Walgreens and the bank were separate victims, and represented that the bank had filed a restitution request. The court ruled that the bank was a victim of the forgery because it suffered a financial loss, and that the crimes were therefore not the same criminal conduct. The court made no finding as to Walgreens.
On appeal, the State concedes the record does not support a finding that the bank suffered any loss. Van Weerdhuisen did not testify that the bank reimbursed him, and the bank never submitted a restitution claim.
The State urges us to affirm on the alternative ground that Walgreens was a victim of the forgery. The State points out that the forgery was complete when the check was presented with intent to defraud. RCW 9A.60.020; State v. Esquivel, 71 Wn. App. 868, 872, 863 P.2d 113 (1993). It is clear that Bonner intended to defraud Walgreens when she presented the check. Walgreens was therefore a victim of the forgery.
The two crimes had separate victims and were not the same criminal conduct.
Affirmed.