Opinion
Nos. 25925-1-III; 26351-7-III.
June 5, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-03703-3, Jerome J. Leveque, J., entered January 24, 2007, together with a petition for relief from personal restraint.
Judgment affirmed in part, petition denied, and case remanded by unpublished opinion per Thompson, J. Pro Tem., concurred in by Kulik, A.C.J., and Sweeney, J.
Shawn Anderson was convicted of five counts of forgery, one count of unlawful possession of a personal identification device, and one count of second degree possession of stolen property. On appeal, he challenges the sufficiency of the evidence to support the second degree possession of stolen property conviction. He also claims trial counsel was ineffective for failing to object to the trial court's offender score calculation. In his statement of additional grounds, Mr. Anderson contends his offender score was improperly calculated and insufficient evidence supports a forgery conviction and the conviction for unlawful possession of a personal identification device. In his personal restraint petition, Mr. Anderson contends he was inadequately represented and again argues that his offender score was improperly calculated. We affirm the convictions, but conclude that Mr. Anderson's offender score was improperly calculated. We therefore remand for resentencing.
FACTS
In January 2007, Mr. Anderson was charged by amended information with one count of leading organized crime, five counts of forgery, one count of unlawful possession of a personal identification device, and one count of second degree possession of stolen property. The State believed that Mr. Anderson's home was a hub for a forgery operation in which Mr. Anderson was receiving a percentage of the proceeds from forged checks in exchange for the use of his computer to alter stolen checks and make false identification cards.
At trial, the State presented the testimony of several people who had been involved in forgeries at Mr. Anderson's house. They testified that they used Mr. Anderson's home office and computer to alter stolen checks and identification cards and others used Mr. Anderson's computer for the same purposes. They claimed Mr. Anderson had no knowledge of these activities. One witness testified that there was a "don't ask, don't tell" policy regarding these activities. 2 Report of Proceedings (RP) at 209. They denied giving Mr. Anderson any portion of the proceeds.
However, one of these witnesses was impeached with her July 2005 written statement to law enforcement, which stated:
Shawn Anderson supplied me with two IDs. . . . He, also, gave me two payroll checks in each of those names to be cashed. Twenty percent of cash was to be given to him as payment. Also, over the last year, I have been given numerous personal checkbooks in various names by Shawn and have used them to commit forgery and fraud in retail stores.
2 RP at 204.
Officer Tammy Fausti's testimony impeached the credibility of two other witnesses who had denied at trial that Mr. Anderson was involved in the forgeries. She testified that one of these witnesses told her that Mr. Anderson printed checks and identification cards and gave them to her in exchange for gift cards. Mr. Anderson then used the gift cards to buy items that could be exchanged for cash. The other witness told the officer that he had seen Mr. Anderson print false identification cards and checks and that Mr. Anderson had given him a false identification card. Officer Fausti also testified that Mr. Anderson admitted during an interview to scanning identification cards into his computer and that he was aware people were printing checks at his house.
Melissa Lickteig described an incident where she approached Mr. Anderson for financial help. She said after their discussion Mr. Anderson left the room, but a stolen check later appeared on his kitchen counter. She was arrested after trying to cash it. Detective Steven Barbieri testified that Ms. Lickteig told him during a July 2005 interview that she had arranged to give Mr. Anderson 10 percent of the proceeds from the check. Ms. Lickteig also told the detective that she had witnessed Mr. Anderson altering checks.
Police officers testified that on July 12, 2005, they executed a search warrant at Mr. Anderson's home. They recovered stolen checks, identification cards, Qwest cards (food stamps), and a VISA card. They also recovered stolen credit cards from Cory Evans' truck, which was parked at Mr. Anderson's house. The officers talked to Mr. Evans, who was present during the search. Mr. Evans told one of the detectives that the Qwest cards and credit cards belonged to Mr. Anderson and that he had stolen them for Mr. Anderson in exchange for rent. However, at trial, Mr. Evans denied providing Mr. Anderson with stolen credit or identification cards.
At the close of the State's case, Mr. Anderson moved to dismiss all the charges. The trial court dismissed the leading organized crime charge, but ruled that whether Mr. Anderson was liable for the other charges was a question for the jury. Mr. Anderson took the stand and denied any knowledge of the stolen credit cards found in Mr. Evans' truck. He also denied making false checks or allowing other people to use his computer for this purpose. He could not recall telling Officer Fausti that he provided stolen checks to people. He also expressed surprise that false identification cards had been found in his computer files.
A jury convicted Mr. Anderson on all counts. At sentencing, the trial court calculated Mr. Anderson's offender score as a 9+ and imposed standard range sentences on all counts. Mr. Anderson appeals.
ANALYSIS
Mr. Anderson first argues that the trial court erred in denying his motion to dismiss the second degree possession of stolen property charge. He contends the evidence is insufficient to support the State's theory of accomplice liability because there is no evidence that Mr. Anderson "solicited, commanded, encouraged or requested Mr. Evans to steal a credit card" or that "Mr. Anderson demanded a stolen credit card as a form of payment for rent." Br. of Appellant at 11-12.
At the outset, it should be noted that Mr. Anderson has waived any challenge to the trial court's refusal to dismiss the charge. It is well settled that presentation of a defense case waives a defendant's appeal of the court's denial of a dismissal motion. State v. Jackson, 82 Wn. App. 594, 918 P.2d 945 (1996). But as the Jackson court noted, "[t]his does not mean that a defendant is barred from claiming insufficiency at a late[r] stage of the proceedings, . . . it does mean, however, that the claim will be analyzed using the most complete factual basis available at the time the claim is made." Id. at 608-09. Therefore, because the jury has rendered its verdict, we review the entire record under the sufficiency of the evidence standard.
In reviewing a sufficiency of the evidence challenge, we ask whether any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Credibility determinations are within the sole province of the jury and are not subject to review." State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997). Assessing discrepancies in trial testimony and weighing the evidence are also within the sole province of the fact finder. State v. Longuskie, 59 Wn. App. 838, 844, 801 P.2d 1004 (1990).
A person is guilty of possessing stolen property in the second degree if he or she knowingly possesses stolen property, in this case a stolen access device. RCW 9A.56.160(1)(c); State v. Plank, 46 Wn. App. 728, 731, 731 P.2d 1170 (1987). The credit card in question was found in Mr. Evans' truck. At trial, both Mr. Anderson and Mr. Evans denied that Mr. Anderson had any knowledge of the stolen credit cards in the truck. But Detective Christopher Thompson testified that Mr. Evans told him during an interview that he was getting the cards for Mr. Anderson and that they "belonged to [the defendant]." RP (Jan. 18, 2007) at 178. According to Detective Thompson, Mr. Evans explained that he had an agreement with Mr. Anderson to exchange stolen credit cards for rent. Despite this evidence, Mr. Anderson argues that "[i]t is more likely than not that Mr. Anderson had no idea that the stolen credit card existed." Br. of Appellant at 12. But this is not the standard.
Viewing the evidence in a light most favorable to the State and deferring credibility determinations to the jury, the jury could have reasonably concluded that Mr. Anderson was guilty of second degree possession of stolen property. If the jury chose to believe Detective Thompson and disregard Mr. Evans' trial testimony, there was ample evidence to support the conviction.
Next, Mr. Anderson challenges the calculation of his offender score. He contends that four of his forgery convictions were the same criminal conduct and trial counsel was ineffective for failing to point this out at sentencing. Citing State v. Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000), the State responds that by failing to raise the issue below, Mr. Anderson waived the right to appeal it here. Nonetheless, we may still address Mr. Anderson's argument in the context of his ineffective assistance claim.
To establish ineffective assistance of counsel, Mr. Anderson must show that (1) his trial counsel's performance was deficient and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). We presume counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
A same criminal conduct determination is reviewed for abuse of discretion or misapplication of the law. State v. Grantham, 84 Wn. App. 854, 857, 932 P.2d 657 (1997). We assume that the trial court's offender score calculation implicitly determined that Mr. Anderson's offenses did not encompass the same criminal conduct. The standard range for a conviction is determined by a defendant's offender score and the seriousness level of the current offense. State v. Haddock, 141 Wn.2d 103, 108, 3 P.3d 733 (2000). The offender score is generally one point for each previous conviction and one point for every other current offense. RCW 9.94A.525, .589(1)(a). If the court finds that all or some of the current offenses encompass the "same criminal conduct," then those offenses may be counted as one crime. RCW 9.94A.589(1)(a); State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994).
"Same criminal conduct" is defined as "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 of these elements is missing, the offenses must be individually counted toward the offender score. State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993) (quoting State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992)).
In determining whether separate crimes constitute the same criminal conduct, the court is directed to "`focus on the extent to which the criminal intent, objectively viewed, changed from one crime to the next.'" Id. at 46 (quoting State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160 (1987)). This analysis may include whether the crimes were part of the same scheme or plan and whether the criminal objectives changed. State v. Calvert, 79 Wn. App. 569, 578, 903 P.2d 1003 (1995). Separate incidents may satisfy the same time element of the test when they occur as part of a continuous transaction or in a single, uninterrupted criminal episode over a short period of time. State v. Porter, 133 Wn.2d 177, 183, 942 P.2d 974 (1997). In Calvert, we affirmed a sentencing court's decision to consider as the same criminal conduct two forgery counts where the checks were presented to the bank on the same day. Calvert, 79 Wn. App. at 578.
Mr. Anderson argues that counts II, III, VI, and VII should be treated as the same criminal conduct because they involve sequential checks numbered 1530, 1531, 1532, and 1533; were from the same account holder; the same bank; and were never cashed. He argues: "The unavoidable inference is that the checks were all obtained at the same time, and the plan was to alter the checks in order to defraud." Br. of Appellant at 15-16.
We agree. Mr. Anderson's criminal intent did not change from one crime to the next. His scheme was to alter checks. The checks were all found in the same place on the same date. They were from the same account holder and bank. They were not presented or negotiated. Therefore, the victims are the same. In view of these unique facts, the trial court should have counted the four forgery counts as one point for purposes of calculating Mr. Anderson's offender score.
Accordingly, we also conclude that defense counsel was deficient in failing to raise this issue. And Mr. Anderson was prejudiced by this failure. If the four counts had been counted as one point, Mr. Anderson's offender score would have been an "8" rather than "9+," resulting in a lower sentence. In view of our calculation, we remand for resentencing.
Statement of Additional Grounds
Pro se, Mr. Anderson alleges two additional grounds for review. In the first, he argues that insufficient evidence supports his convictions for count V (forgery) and count VIII (unlawful possession of a personal identification device). We address each challenge in turn. A person is guilty of forgery if he "falsely makes, completes, or alters a written instrument." RCW 9A.60.020(1)(a). We determine whether any rational trier of fact could have found guilt beyond a reasonable doubt based on the evidence at trial. Salinas, 119 Wn.2d at 201.
In challenging the forgery conviction, Mr. Anderson simply argues that he had nothing to do with it and the check was never in his possession. But the evidence contradicts his claim. Count V involves the check cashed by Ms. Lickteig. The evidence shows that the check in question was stolen from Drew Lehinger, that Mr. Lehinger's checks were found at Mr. Anderson's house, that Mr. Anderson altered checks, that Mr. Anderson gave Ms. Lickteig one of the stolen checks, and that she agreed to give Mr. Anderson a share of the proceeds. Ample evidence supports count V.
Next, to establish that a person is guilty of unlawful possession of a personal identification device, the State must show that "the person possesses a personal identification device with intent to use such device to commit theft, forgery, or identity theft." RCW 9A.56.320(3). A personal identification device is defined as "any machine or instrument whose purpose is to manufacture or print any driver's license or identification card . . . or any credit or debit card." Id.
Mr. Anderson argues that he had no knowledge of any identification cards. But the evidence shows that his laptop computer contained pictures of people connected to the case, a false Washington State identification card with Mr. Anderson's photograph, but a different name, and a template for a Washington identification card with the photo missing. Further, there was evidence that a witness had seen Mr. Anderson printing false identification cards as well as Mr. Anderson's admission to Officer Fausti that he scanned identification cards into his computer. A rational trier of fact viewing these facts together and in the light most favorable to the State could find, beyond a reasonable doubt, that Mr. Anderson unlawfully possessed a personal identification device with intent to commit a forgery.
Next, Mr. Anderson claims that the trial court miscalculated his offender score. He contends that four of the forgeries should have been counted as the same criminal conduct and that his other convictions should have "washed" after five years, resulting in an offender score of 4. We have addressed the first part of Mr. Anderson's argument and determined that four of the forgeries are properly characterized as the same criminal conduct.
However, we reject Mr. Anderson's latter argument. Under RCW 9.94A.525(2), class C felonies, except for sex offenses, are not included in the offender score if the offender spends five consecutive years in the community without committing a crime that results in a conviction. We have reviewed Mr. Anderson's criminal history and conclude that none of his prior convictions wash because he failed to satisfy the requisite five years without intervening criminal convictions.
Personal Restraint Petition
In his personal restraint petition, Mr. Anderson argues that he was not fairly represented, that trial counsel inadequately investigated the case due to insufficient funds, and that trial counsel failed to appear for sentencing. He also argues that the court and counsel miscalculated his offender score by including unranked and washed felonies. Finally, he complains that the jury did not follow jury instructions, arguing that some of the charges should have been "thrown out due to witness statements." Reply to Br. from Prosecuting Att'y on the Pers. Restraint Pet., at 1.
A personal restraint petition is a civil matter. In re Pers. Restraint of Lord, 123 Wn.2d 737, 739 n. 2, 870 P.2d 964 (1994). The petitioner must demonstrate by a preponderance of the evidence that the claimed error caused him actual and substantial prejudice. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992). If the petitioner does not demonstrate actual prejudice, the petition will be dismissed. In re Pers. Restraint of Grisby, 121 Wn.2d 419, 423, 853 P.2d 901 (1993).
Mr. Anderson's claims are difficult to evaluate. His claim that counsel was not competent, possibly due to money issues, is not supported by the record. Mr. Anderson suggests that counsel should have called other witnesses, but he does not explain how counsel's failure to do so actually prejudiced his case. He also complains that counsel was not present for sentencing. But the record shows that co-counsel was present during the trial and at sentencing.
As to Mr. Anderson's claims that the jury failed to follow instructions and the State failed to prove its case, Mr. Anderson simply names the errors, but provides no argument. Without more, we cannot evaluate his claims. As noted in In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992), a petitioner "must demonstrate that he has competent, admissible evidence to establish facts that entitle him to relief." Mr. Anderson fails to do so.
Finally, we have already concluded that Mr. Anderson's offender score was improperly calculated. Therefore, we remand for resentencing.
CONCLUSION
We hold that the evidence is sufficient to support the convictions and therefore affirm in part. However, we remand for resentencing based on the correct offender score.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and KULIK, A.C.J., concur.