State v. Jensen, 041216 WACA, 32607-1-III

Docket Nº:32607-1-III
Opinion Judge:Lawrence-Berrey, J.
Party Name:STATE OF WASHINGTON, Respondent, v. KAMMIE J. JENSEN, Appellant.
Judge Panel:WE CONCUR: Siddoway, J. Korsmo, J.
Case Date:April 12, 2016
Court:Court of Appeals of Washington
 
FREE EXCERPT

STATE OF WASHINGTON, Respondent,

v.

KAMMIE J. JENSEN, Appellant.

No. 32607-1-III

Court of Appeals of Washington, Division 3

April 12, 2016

UNPUBLISHED OPINION

Lawrence-Berrey, J.

Kammie Jensen appeals her convictions for second degree identity theft, second degree possession of stolen property, and third degree theft. She argues the State's evidence was insufficient to sustain her convictions. In addition, she argues the trial court erred when it included two prior out-of-state convictions in her offender score. We conclude that the State presented sufficient evidence to support her convictions. However, we remand for a new sentencing hearing because the record is insufficient to determine whether her conduct underlying one of her two Oregon fraudulent use of a credit card convictions would have violated a comparable Washington statute.

FACTS

On November 20, 2013, Lowell Compton purchased some items at a Bi-Mart store. After he paid for his items, Mr. Compton inadvertently left his wallet on the checkout counter. Shortly after Mr. Compton left the store, Jeffrey Stevens and his roommate Ms. Jensen went through the same cashier's lane that Mr. Compton had used. Mr. Stevens saw the wallet lying on the counter, looked around, and slid the wallet away from the cashier. Mr. Stevens paid the cashier and picked up Mr. Compton's wallet on his way out of the store. Mr. Stevens and Ms. Jensen then walked to Mr. Stevens' pickup truck in the parking lot.

Once in the pickup truck, Mr. Stevens told Ms. Jensen he took the wallet and put the wallet on the dash. Mr. Stevens and Ms. Jensen then drove to a local skate park. While Mr. Stevens and Ms. Jensen sat in the pickup truck at the skate park, Mr. Stevens took the wallet off the dash and laid its contents on the seat between himself and Ms. Jensen. The wallet contained $22.00, a driver's license, a debit card, a small piece of paper with the debit card's personal identification number (PIN) written on it, a health insurance card, and several other cards. Ms. Jensen watched Mr. Stevens but did not dig through the wallet or handle its contents.

Mr. Stevens and Ms. Jensen drove to Walmart. Before walking into the store, the two discussed using the debit card Mr. Stevens had found in the wallet to purchase items. Mr. Stevens and Ms. Jensen then walked into Walmart. In order to see if the debit card worked, the two went through the register together and purchased soda, a candy bar, a Frappuccino, bronzer, hair color, and fragrance. Mr. Stevens ran the card as debit, entered the PIN, and withdrew $60.00 cash back for a total purchase of $135.63. After this test run of the card the two briefly returned to Mr. Stevens' truck.

Ms. Jensen left Mr. Stevens' truck and went back into the Walmart. Twenty minutes later, Mr. Stevens followed. Roughly 90 minutes later, Ms. Jensen went through the check-out lane. The cashier rang up her items, which totaled $334.16. Ms. Jensen swiped Mr. Compton's credit card, typed in the PIN, and attempted to get $100.00 cash back. The register declined the transaction. Ms. Jensen swiped the card again and typed in the PIN. The register declined the transaction again. Ms. Jensen then ran the card as credit, and the card worked. Ms. Jensen scribbled on the register's signature pad. Ms. Jensen then left the Walmart with her items and unloaded her shopping cart into the pickup truck. Ms. Jensen then took her shopping cart back inside and remained there for several minutes.

Several minutes later, Mr. Stevens used Mr. Compton's debit card to purchase $302.51 worth of items at a different register. Mr. Stevens tried to run the card as debit two times, and the register declined both transactions. Mr. Stevens then ran the card as credit, and the card worked. Mr. Stevens then left the Walmart, and he and Ms. Jensen drove away in his pickup truck. They later dumped the debit card in a dumpster in Pullman, Washington.

Mr. Compton reported the card stolen and his bank shut the card off. Mr. Compton also called the police. Detective Brock Germer called Ms. Jensen and asked her to come to the police department for an interview. During the interview, Ms. Jensen stated that Mr. Stevens let her use his debit card to purchase items at Walmart because Mr. Stevens owed her money, and that Mr. Stevens had instructed her to scribble on the credit card receipt when she paid. Ms. Jensen denied knowing the card was stolen.

The State charged Ms. Jensen with second degree identity theft, second degree possession of stolen property, and third degree theft.1 At trial, Ms. Jensen's defense was that she did not know the debit card was stolen. Mr. Stevens testified for the State. He testified that he told Ms. Jensen he had stolen the wallet, that Ms. Jensen watched him go through the wallet's contents at the skate park, and that the two discussed using the card to buy items in Walmart. Mr. Stevens testified that he never owed Ms. Jensen any money nor did he lend Ms. Jensen his card.

The jury convicted Ms. Jensen on all three counts. At sentencing, the State argued that Ms. Jensen's offender score was 6. Ms. Jensen agreed that 4 of the 6 points in her offender score were appropriate. However, Ms. Jensen asked the trial court not to include her two prior Oregon convictions for fraudulent use of a credit card under ORS 165.055, arguing that ORS 165.055 is broader than comparable Washington felonies. The State presented certified judgments from both of Ms. Jensen's prior fraudulent use of a credit card convictions, but presented the complaint from only one of those cases. The trial court agreed with the State's calculation of Ms. Jensen's offender score based on its review of the certified judgments. The trial court did not conduct a comparability analysis. The trial court sentenced Ms. Jensen to 20 months' incarceration. This appeal followed.

ANALYSIS

1. Whether the State's evidence was sufficient to support the convictions.

In a criminal case, the State must provide sufficient evidence to prove each element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). When a defendant challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." Id. Furthermore, "[a] claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id. In a challenge to the sufficiency of the evidence, circumstantial evidence and direct evidence carry equal weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).

A person commits second degree identity theft when that person knowingly obtains, possesses, transfers, or uses a means of identification or financial information with the intent to commit or to aid and abet any crime. RCW 9.35.020(1), (3). A person commits...

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