Opinion
41701-4-II
01-29-2013
STATE OF WASHINGTON, Respondent, v. RODDY KENT KARTCHNER, Appellant.
UNPUBLISHED OPINION
Penoyar, J.
Roddy Kent Kartchner appeals his convictions for three counts of attempted theft, one count of theft, three counts of identity theft, one count of forgery, two counts of money laundering, and two counts of attempted tampering with physical evidence. He argues that (1) there was insufficient evidence to support his convictions; (2) the trial court erred when it denied his motion to sever; (3) the prosecutor committed misconduct during closing argument; (4) the trial court erred when it admitted recordings of his calls to his wife from jail; and (5) the trial court improperly calculated his offender score. He also includes a statement of additional grounds (SAG) reiterating his insufficient evidence arguments and arguing cumulative error.
The suspicious nature of the transactions involved was sufficient to show that Kartchner had the requisite criminal intent; thus, there was sufficient evidence to support all of his convictions. Further, (1) Kartchner waived his motion to sever by not renewing it before the close of evidence; (2) the prosecutor's remarks were not misconduct; (3) the trial court properly admitted the recorded calls because they were not privileged; (4) the offender score remains the same; and (5) Kartchner's SAG arguments have no merit. We affirm.
FACTS
I. $470,000 Fanzter Check
In early February 2009, Kartchner opened a business account in the name of his corporation, Covenant Construction and Consulting, Inc. (CCCI), at the Hazel Dell Bank of America. He opened the account at the request of John Moore, a purported London-based broker who agreed to fund Kartchner and his partner, Tom Goodwin's, "orbital engine" project.
A few days after opening the account, Kartchner received a FedEx package from London. The package contained two checks—one for $470,000 and one for $130,000—written from the account of a Connecticut corporation, Fanzter, and made out to CCCI. Per Moore's instructions, Kartchner deposited the $470,000 check in his newly opened Bank of America account on February 11, 2009. Before depositing the check, assistant bank manager Erin Sweatt verified that there were sufficient funds in Fanzter's account, matched the signature on the check to a signature card, and verified that the check number was roughly in sequence. The funds were immediately available, so Kartchner withdrew $12,000 in cash and purchased two $20,000 cashier's checks (one in the name of his corporation, CCCI, and one in the name of Goodwin's corporation, Forecast and Associates).
Later the same day, Kartchner received an e-mail from Moore instructing him to wire the majority of the money overseas. Kartchner returned to the bank and attempted to make two $200,000 wire transfers from his account: one to Shanghai Fortune Machinery Company in China and one to Trade Day, Inc. in Taiwan. Both companies are fictitious. Sweatt entered the wire transfers into the bank system—the first of two steps—and Kartchner left the bank. Before Sweatt could complete the wire transfers, she received a call from a bank associate on the east coast informing her that the $470,000 check Kartchner had deposited earlier that day was fraudulent. Someone had accessed Fanzter's accounts and moved money from Fanzter's certificate of deposit (CD) account to Fanzter's checking account, then forged the two checks to CCCI. Sweatt cancelled the wire transfers and contacted the police. The police advised her to call them if Kartchner returned to the bank.
The e-mail instructed Kartchner to make two transfers of $227,000 each, but Kartchner actually made the transfers for $200,000 each. He stated at trial that he thought the instructions said $200,000 and could not explain the different amount.
Kartchner returned to the bank on February 12 to negotiate the $20,000 cashier's check made out to CCCI. Sweatt asked him to wait in the lobby and then contacted the police. Detective James McClafferty arrived and, after questioning Kartchner and Sweatt, took Kartchner into custody for further questioning.
During questioning, Kartchner explained that the check was a loan for his and Goodwin's orbital engine project and that he did not have paperwork for the loan because "Tom [Goodwin] was in charge of getting the financing." 5A Report of Proceedings (RP) at 747. He told McClafferty that he had taken out loans in the past and acknowledged that loan documents are generally signed before the loan is funded. He admitted to opening the account, depositing the check, withdrawing $12,000 in cash, and purchasing two cashier's checks. He did not mention the wire transfers and told McClafferty that the rest of the $470,000 was still in the account. When McClafferty showed him copies of the wire transfers, he became pale and nervous and said, "I was just following instructions from Tom [Goodwin] and Mr. Moore." 5A RP at 753. At trial, Kartchner gave the vague explanation that the wire transfers were something Goodwin and Moore had negotiated "to handle some of the advance fees [for the loan] by buying some equipment." 7A RP at 1250.
II. $80,000 Alleyne Check
On February 11, 2009, the same day Kartchner deposited the $470,000 check at Bank of America, a man identified as Andrew Schneider deposited a forged $80,000 check in Kartchner and his wife's Washington Mutual account. The check was drawn from Neville and Marcia Alleyne's account. On February 17, the Alleynes' bank returned the check, and Washington Mutual put a hold on the Kartchners' account. On March 12, the Kartchners filed a fraud claim with Washington Mutual, stating that they did not know who had deposited the check in their account.
The police recovered several e-mails between Kartchner and Schneider. Kartchner sent Schneider two e-mails on February 10, 2009—the day before the check was deposited in his account—containing his address, account number, and his name as he wanted it to appear on the check. Schneider sent Kartchner an e-mail on February 11, stating that the Alleynes were investors who pledged $100,000 and had already deposited $80,000 in Kartchner's account. The e-mail suggested that Kartchner not contact the Alleynes until the transaction was completed.
On March 19, during an interview with McClafferty, Kartchner eventually admitted that he had been in contact with Schneider and that he had given Schneider his banking information to process a loan.
III. Phone Conversations
While Kartchner was in jail following his February 12 arrest, he made two phone calls to his wife regarding his briefcases. The briefcases contained information concerning all of the transactions Kartchner was working on, including the $470,000 check and several promissory notes related to other theft charges Kartchner was later acquitted of. On February 20, Kartchner called his wife and asked her if she "[found] a home for [his] cases." 5A RP at 791. She replied that she did not move his briefcases because the police had taken pictures of his home office—where the briefcases were located—and she did not want to arouse suspicion. On February 21, Kartchner called his wife again and asked her to move a box. She replied that the police had seized his briefcases and papers the day before. Kartchner became upset at the news.
At trial, Kartchner testified that he asked his wife to move the briefcases because they were a tripping hazard; they contained third parties' private information; and he was embarrassed by their contents, which included documentation of previous failed projects.
When a call is made from inside the jail, the recording system warns the caller that all calls are recorded and may be monitored. McClafferty monitored Kartchner's calls as part of an ongoing investigation. The recordings were later admitted at trial over Kartchner's objection. IV. Procedural History
The State initially charged Kartchner on February 18, 2009, for acts resulting from the $470,000 Fanzter check. Kartchner was charged at trial under the seventh amended information, which contained the following counts:
The first eight counts relate to loans Kartchner defaulted on and unauthorized transfers into his credit card account. These charges are not at issue in this appeal because they were either dismissed at the close of the State's case or the jury acquitted Kartchner of them.
· Count 9: Attempted first degree theft from Aaron LaBerge (owner of Fanzter) for the $470,000 Fanzter check.
· Count 10: First degree theft from Bank of America for the $12,000 cash withdrawal on February 11, 2009.
· Count 11: First degree identity theft against LaBerge for the $470,000 Fanzter check.
· Count 12: Forgery of the $470,000 Fanzter check.
· Count 13: Money laundering for the attempted $200,000 wire transfer to China.
· Count 14: Money laundering for the attempted $200,000 wire transfer to Taiwan.
· Count 15: Attempted first degree theft from Alleyne.
· Count 16: First degree identity theft against Alleyne.
· Count 17: Attempted first degree theft from Bank of America for presentation of the $20,000 cashier's check on February 12, 2009.
· Count 18: Second degree identity theft against LaBerge for possession of the $130,000 Fanzter check.
· Count 19: Attempted tampering with physical evidence for the February 20, 2009, phone call.
· Count 20: Attempted tampering with physical evidence for the February 21, 2009, phone call.
Before trial, Kartchner moved to sever the counts involving the Fanzter and Alleyne checks from the remaining counts. The trial court denied the motion.
At the close of the State's case, Kartchner moved to dismiss all counts based on insufficient evidence. The trial court denied Kartchner's motion to dismiss.
During closing argument, the prosecutor told the jury that it could infer Kartchner's intent from the circumstances, including his failure to question the legality of his actions. Kartchner did not object to the prosecutor's arguments at trial.
The jury found Kartchner guilty on counts 9 through 20. At sentencing, he argued that, for purposes of calculating the offender score, all convictions relating to the $470,000 Fanzter check (counts 9-14, 17, and 18) should be considered the same criminal conduct and all convictions relating to the $80,000 Alleyne check (counts 15 and 16) should be considered the same criminal conduct. The trial court disagreed, counting only the money laundering convictions (counts 13 and 14) as the same criminal conduct and the first degree theft conviction against Bank of America (count 10) and the forgery conviction (count 12) as the same criminal conduct to reach an offender score of seven. The trial court then sentenced Kartchner to 43 months of incarceration. Kartchner appeals.
ANALYSIS
I. Insufficient Evidence
Kartchner argues that the evidence is insufficient to support any of his convictions. We disagree.
A. Standard of Review
Evidence is legally sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in a light most favorable to the State, could find the elements of the charged crime beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). We interpret all reasonable inferences in the State's favor. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). Direct and circumstantial evidence carry the same weight. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). Credibility determinations are for the trier of fact and are not subject to review. State v. Cantu, 156 Wn.2d 819, 831, 132 P.3d 725 (2006).
B. Crimes Requiring Intent
Kartchner argues that there is insufficient evidence to support his theft, attempted theft, forgery, and identity theft convictions because the State failed to prove he had the requisite intent. He argues that the evidence merely shows that he acted "as a gullible dupe" of the real criminals who were manipulating him. Appellant's Br. at 23. Because the State proved that Kartchner accepted the money under circumstances indicating that it had been stolen, there is sufficient evidence to support Kartchner's convictions.
To convict on a theft charge, the State must show that (1) the defendant, by color or aid of deception, wrongfully obtained control over the property of another (2) with intent to deprive him of such property. RCW 9A.56.020(1)(b). A person is guilty of forgery if (1) with intent to injure or defraud, (2) he falsely makes, completed, or alters a written instrument or possesses, utters, offers, disposes of, or puts off as true a written instrument that he knows to be forged. RCW 9A.60.020(1). A person is guilty of identity theft if (1) he knowingly obtained, possessed, used, or transferred means of identification or financial information of another person (2) with intent to commit or aid or abet any crime. RCW 9.35.020(1). A person acts with intent when he acts with the objective or purpose to accomplish a result that constitutes a crime. RCW 9A.08.010(1)(a). Specific criminal intent may be inferred from the defendant's conduct, but only where it is plainly indicated as a matter of logical probability. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
A person is guilty of a crime committed by another if he is an accomplice in the commission of the crime. RCW 9A.08.020(1), (2)(c). A person is an accomplice to a crime if he solicits, commands, encourages, or requests another person to commit the crime or aids another person in planning or committing the crime with knowledge that he is promoting or facilitating the crime. RCW 9A.08.020(3)(a). The State argues that Kartchner knew the money was stolen. Once it has been established that a theft has occurred, as is the case here, "slight corroborative evidence" is all that is necessary to establish guilty knowledge. State v. Womble, 93 Wn.App. 599, 604, 969 P.2d 1097 (1999) (quoting State v. Couet, 71 Wn.2d 773, 776, 430 P.2d 974 (1967)).
Certainly the circumstances of these transactions are suspect, but Kartchner contends the evidence shows only that he was a gullible dupe. He had been looking for "non-conventional" funding and often entered into transactions that would make a reasonable person suspicious and that ended in him losing money. 7A RP at 1218. The e-mails between Kartchner and Schneider treat the Alleyne check transaction as a loan; there is no mention of a plot to steal the money. Kartchner deposited the Fanzter check at a local bank, opened an account in his own name, and returned to the same bank repeatedly.
Despite these indications that Kartchner believed the funds were a legitimate loan, or at worst the product of some attempt to conceal funds, the sudden unfettered access to large sums of money was a signal to Kartchner that whoever had sent the funds was making almost no attempt to protect them. This, in turn, was an indication that the senders were thieves risking someone else's money, not their own. This indication is enough to constitute the slight corroborative evidence necessary to establish that Kartchner knew the checks were stolen.
C. Money Laundering
Kartchner also argues that there is insufficient evidence to support his money laundering convictions because the State failed to prove that he had the requisite mens rea. Because there is sufficient evidence to prove that Kartchner knew the transfers were designed to conceal the source or location of the money and acted recklessly as to whether the money was proceeds of unlawful activity, we disagree.
A person is guilty of money laundering when he (1) conducts or attempts to conduct a financial transaction involving the proceeds of specified unlawful activity; (2) knows the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control over the proceeds; and (3) acts recklessly as to whether the property is proceeds of specified unlawful activity. RCW 9A.83.020(1). A person "knows" when he has information that would lead a reasonable person in the same situation to believe that facts exist. RCW 9A.08.010(1)(b). A person acts recklessly when "he . . . knows of and disregards a substantial risk that a wrongful act may occur and his . . . disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation." RCW 9A.08.010(1)(c). Recklessness involves both subjective and objective components: it depends on both what the defendant knew and how a reasonable person would have acted knowing those facts. State v. Keend, 140 Wn.App. 858, 869, 166 P.3d 1268 (2007). The jury is permitted to find the defendant had subjective knowledge if there is sufficient information that would lead a reasonable person to believe that a fact exists. Keend, 140 Wn.App. at 869.
There is sufficient evidence to show that Kartchner knew the transfers were designed to conceal the source of the money. Although Kartchner contends that the $470,000 Fanzter check was supposed to be a loan for the orbital engine project, he was instructed to wire $454,000 of it to two fictitious companies soon after he placed the money in his account. A reasonable person in that situation would believe that the transaction was designed to conceal the source of the money. Moreover, Kartchner became uneasy when McClafferty questioned him about the wire transfers. He was forthcoming about the other transactions involving the Fanzter check, but he failed to mention the wire transfers. When McClafferty showed him the transfer requests, he became pale and nervous. The circumstances of the transfers and Kartchner's reaction during questioning provide sufficient evidence of his knowledge.
Additionally, there is sufficient evidence that Kartchner acted recklessly as to whether the money was proceeds of a theft. It was unreasonable for him to believe that his "funders" would risk so much of their own money. He had sufficient information that would lead a reasonable person to conclude that there was a substantial risk the money was proceeds of illegal activity: he had completed no loan paperwork, yet he had immediate access to large sums of unearned money, and he was asked almost immediately to wire the majority of the money overseas. A reasonable person in the same situation would not disregard that risk.
D. Attempted Tampering with Physical Evidence
Kartchner further argues that there is insufficient evidence to support his convictions for attempted tampering with physical evidence because he was acting within his legal right and authority to move property within his home when he asked his wife to move his briefcases. We disagree.
Under RCW 9A.72.150(1), a defendant is guilty of tampering with physical evidence if (1) he destroys, mutilates, conceals, removes, or alters physical evidence with intent to impair its appearance, character, or availability in an official proceeding; (2) he has reason to believe that an official proceeding is pending; and (3) he acted without legal right or authority.
There is sufficient evidence to show that Kartchner attempted to conceal evidence and that he had reason to believe an official proceeding was pending. Kartchner asked his wife to move his briefcases knowing that they contained evidence of the financial transactions the police were investigating. Kartchner's contention at trial that he wanted the briefcases moved for safety and privacy reasons is questionable in light of his frustration upon hearing that the police seized his briefcases. Additionally, Kartchner had reason to believe that an official proceeding was pending because he was first charged on February 18 and he asked his wife to move his briefcases on February 20 and 21.
Kartchner contends that he had a legal right to move the briefcases because they were his property and did not constitute contraband. His argument is not persuasive. That the briefcases were not contraband does not mean that they were not evidence. Once Kartchner had reason to believe an official proceeding was pending, he lost his right to control the evidence. There is sufficient evidence to support Kartchner's attempted tampering convictions.
II. Severance
Kartchner next argues that the trial court erred when it denied his motion to sever the counts related to the Fanzter and Alleyne checks from the remaining counts.
CrR 4.4(a) states:
(1) A defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if the interests of justice require. Severance is waived if the motion is not made at the appropriate time.
(2) If a defendant's pretrial motion for severance was overruled he may renew the motion on the same ground before or at the close of all the evidence. Severance is waived by failure to renew the motion.
A defendant waives his motion to sever and cannot raise it on appeal if he fails to renew the motion before the close of the trial. State v. Ben-Neth, 34 Wn.App. 600, 606, 663 P.2d 156 (1983). Because Kartchner failed to renew his motion before the close of all the evidence, as CrR 4.4(a) requires, we hold that he waived his claim.
III. Prosecutorial Misconduct
Kartchner contends that the prosecutor's remarks during closing argument constituted misconduct because they encouraged the jury to convict even if it failed to find that he acted with the requisite intent. Because the remarks were not improper and the jury was properly instructed as to intent, we disagree.
If a defendant fails to object to an improper remark, then he waives his right to assert prosecutorial misconduct unless the remark was so flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). In determining whether the misconduct warrants reversal, we consider its prejudicial nature and cumulative effect. State v. Boehning, 127 Wn.App. 511, 518, 111 P.3d 899 (2005). A remark is considered prejudicial only where there is a substantial likelihood that the remark affected the jury's verdict. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). We review a prosecutor's remarks during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal, 150 Wn.2d at 578.
"Specific intent cannot be presumed, but it can be inferred as a logical probability from all the facts and circumstances." State v. Wilson, 125 Wn.2d 212, 217, 883 P.2d 320 (1994). It is not misconduct to argue that the evidence fails to support the defense's theory, and the prosecutor is entitled to make a fair response to the defense's arguments. Russell, 125 Wn.2d at 87.
Here, the prosecutor made two remarks during closing argument that Kartchner argues constitute misconduct:
The State's theory of the case is that willful, intentional ignorance surrounding multiple suspicious financial transactions is not a defense to charge [sic] of financial fraud. A person who intentionally does not inquire about the circumstances of multiple suspicious and probably criminal acts, can be inferred to be acting intentionally. And, you should make that inference.7B RP at 1490.
The Defendant. His theory? I had no idea because I always relied on somebody else. Well, what is the reality? The reality is that society requires you to accept responsibility for your actions. When it appears that you are about to do something illegal, you have an obligation to determine if that act is illegal. If you fail to do so it can be inferred that you intentionally engaged in illegal conduct.7B RP at 1518.
The prosecutor asked the jury to infer Kartchner's intent based on his failure to inquire about the circumstances of the transactions. The prosecutor did not tell the jury that it should presume intent. Further, his remarks were in response to the defense's theory that Kartchner was merely a dupe of the real criminals. The prosecutor's remarks taken alone were oversimplifications of the law, but the prosecutor did not urge the jury to disregard the instructions when considering the case. The jury was properly instructed that the law is contained in the jury instructions and that it must disregard any remark not supported by the instructions. The instructions included the mens rea required for each crime and properly defined intent. We presume that the jury follows the trial court's instructions. State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982).
IV. Privilege
Kartchner next argues that the trial court erred when it admitted his phone conversations with his wife from jail in violation of marital privilege. Because Kartchner knew that phone calls out of the jail were recorded and monitored, the calls were not confidential communications. Additionally, marital privilege only applies to the spouse's in-court testimony. We affirm the trial court's admission of the calls.
Former RCW 5.60.060(1) (2009) provides:
A spouse or domestic partner shall not be examined for or against his or her spouse or domestic partner, without the consent of the spouse or domestic partner; nor can either during marriage or during the domestic partnership or afterward, be without the consent of the other, examined as to any communication made by one to the other during the marriage or the domestic partnership.
There are two privileges within this statute: (1) testimonial privilege, which prevents a spouse from testifying against the other spouse without the other spouse's consent, and (2) confidential communications privilege, which prevents a spouse from being examined as to confidential communications made during the marriage. State v. Thorne, 43 Wn.2d 47, 55, 260 P.2d 331 (1953). Kartchner argues that confidential communications privilege applies here.
"[W]herever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential it is not a privileged communication." Wolfle v. United States, 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934). When spousal communication occurs in the presence of a third party, the communication is not privileged because it was not made in confidence. Wolfle, 291 U.S. at 14. For example, in State v. Smyth, the defendant wrote his wife a letter while in jail, and the trial court allowed the mother-in-law, who read the letter, to testify about its contents. 7 Wn.App. 50, 52, 499 P.2d 63 (1972). The appellate court held that the marital privilege did not apply to the letter because the defendant knew that the jail read all outgoing mail. Smyth, 7 Wn.App. at 53.
Similarly, Kartchner knew that all calls out of the jail were being recorded and possibly monitored. The recording system warned him of this before he placed his calls. Given the circumstances under which the communications occurred, the phone calls were not privileged under RCW 5.60.060(1).
Kartchner argues that his case is similar to State v. Gibson, 3 Wn.App. 596, 476 P.2d 727 (1970). In Gibson, the arresting officer took the defendant to a physician for treatment of severe burns. 3 Wn.App. at 597. With the officer present, the defendant told the physician when he had received the burns. Gibson, 3 Wn.App. at 597. At trial, the defendant argued that the officer could not testify regarding his conversation with the physician because it was privileged. Gibson, 3 Wn.App. at 597. Division One of this court agreed, holding that the officer was an agent of the physician and the physician-patient privilege precluded the officer from testifying. Gibson, 3 Wn.App. at 597, 599-600.
This case is distinguishable from Gibson. In Gibson, the officer was a necessary participant, present to protect the physician. In this case, the officer was not a necessary participant. He was not attempting to protect either Kartchner or his wife, he was conducting an investigation. Gibson is not applicable to these facts. The confidential communication privilege does not apply.
Further, Kartchner's wife did not testify about these conversations. The information came in through the tapes, which are akin to a third person testifying. The Supreme Court has construed the marital privilege to exclude only the spouse's in-court testimony. State v. Burden, 120 Wn.2d 371, 377, 841 P.2d 758 (1992). The trial court's decision to admit the tapes did not violate RCW 5.60.060(1).
V. Offender Score
Finally, Kartchner argues that the trial court incorrectly calculated his offender score because the offenses occurred at the same place over a short period of time, the victims were the same for many of the offenses, and he had only one intent—to steal money. Specifically, he argues that all of the offenses involving LaBerge should be considered the same criminal conduct, all offenses involving Bank of America should be considered the same criminal conduct, and all offenses involving Alleyne should be considered the same criminal conduct, making his offender score two rather than seven. Because only two of the identity theft charges and the two money laundering charges constitute the same criminal conduct, we disagree.
We review the sentencing court's determination of same criminal conduct for purposes of calculating an offender score to determine if the court misapplied the law or exercised its discretion in a manner that was manifestly unreasonable or based on untenable grounds. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011); State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). At sentencing, a defendant's current offenses shall be counted as one crime if the court finds that the offenses encompass the same criminal conduct. RCW 9.94A.589 (1)(a). "Same criminal conduct" is defined as crimes that (1) require the same criminal intent, (2) are committed at the same time and place, and (3) involve the same victim. RCW 9.94A.589(1)(a).
Beginning with the counts where LaBerge is the victim, there is one count of attempted theft (count 9), one count of forgery (count 12), and two counts of identity theft (counts 11 and 18). First, the State argues that the forgery count cannot be the same criminal conduct as the theft or identity theft counts because Bank of America is an additional victim of the forgery. Two crimes cannot be the same criminal conduct if one crime involves only one victim and the other involves multiple victims. State v. Davis, 90 Wn.App. 776, 782, 954 P.2d 325 (1998). Because LaBerge was the only victim of the attempted theft and identity theft counts, the trial court did not err by considering the forgery count a separate crime.
The State next argues that the two identity theft counts are not the same conduct because the information states that count 11 happened on or about February 11 and count 18 happened on or about February 12. However, Kartchner received the checks that are the subject of the identity theft counts at the same time, in the same FedEx package. A person is guilty of identity theft if he merely possesses another's financial information with intent to commit or aid a crime. RCW 9.35.020(1). Since Kartchner possessed both checks at the same time, the identity theft counts satisfy the time requirement for same criminal conduct. Additionally, LaBerge was the victim of both counts and the intent was the same—to commit theft. The trial court erred when it considered the two identity theft counts regarding LaBerge as two separate crimes for sentencing purposes.
Although the trial court erred, this does not change the result because the trial court also erred in considering the theft and forgery convictions as the same criminal conduct. These errors cancel each other, so the offender score remains at seven and remand is unnecessary.
The State also argues that the theft count cannot be considered the same conduct as the identity theft counts because RCW 9.35.020(6) states "[e]very person who, in the commission of identity theft, shall commit any other crime may be punished therefor as well as for the identity theft, and may be prosecuted for each crime separately." This language is identical to the language in the burglary statute, RCW 9A.52.050, and the Supreme Court has held that even if a burglary and another crime involve the same criminal conduct, the trial court has discretion to punish burglary separately from the other crime. State v. Lessley, 118 Wn.2d 773, 781, 827 P.2d 996 (1992). Based on the Supreme Court's interpretation of the antimerger language common to the burglary and identity theft statutes, the trial court properly exercised its discretion when it considered the identity theft count separately from the other counts. Of the four counts involving LaBerge, only the two identity theft counts may be considered the same criminal conduct.
Turning now to the counts where Bank of America is the victim, there is one count of theft on February 11 for withdrawing $12,000 (count 10) and one count of attempted theft on February 12 for attempting to exchange the cashier's check (count 17). The two theft counts occurred on separate days. Because they did not occur at the same time, they cannot be considered the same criminal conduct.
Kartchner also argues that Bank of America was the victim of the money laundering counts. He is incorrect. The State is the victim of the money laundering counts, so the money laundering counts cannot be the same criminal conduct as the theft counts because they involve a different victim. However, the trial court properly considered the two money laundering counts as the same criminal conduct because they occurred within minutes of each other at the same bank and involved the same criminal intent and victim.
Finally, there are two counts where Alleyne was the victim: attempted theft (count 15) and identity theft (count 16). As discussed above, the trial court has discretion to consider identity theft counts separately from other crimes, even if they involve the same criminal conduct. The trial court acted within its discretion when it considered the theft and identity theft counts involving Alleyne separately.
Accordingly, Kartchner's offender score should remain at seven. The two identity theft counts involving LaBerge and the two money laundering counts are the same criminal conduct. All other counts are separate.
VI. SAG
In his SAG, Kartchner argues that there is insufficient evidence of his criminal intent. Counsel addressed this issue and we discussed it above. We need not consider it again.
He further argues that cumulative error resulting from the trial court's denial of his motion to sever and the prosecutor's remarks during closing argument denied him a fair trial. We may reverse a defendant's conviction when the combined effect of errors during trial effectively denied the defendant his right to a fair trial, even if each error standing alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). The doctrine does not apply where the errors are few and have little or no effect on the trial's outcome. Weber, 159 Wn.2d at 279. As discussed above, Kartchner failed to show that the prosecutor's remarks were error, and, even if they were, they did not affect the trial's outcome. Additionally, Kartchner waived his severance argument. His cumulative error argument fails.
Affirmed.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Quinn-Brintnall, J., Worswick, C.J.