State v. Baldwin

• Decision Date: 06 November 2003
• Docket Number: No. 72710-4.,72710-4.
• Parties: STATE of Washington, Respondent, v. Jeanne Pearl BALDWIN, Petitioner.
• Court: Washington Supreme Court

78 P.3d 1005

150 Wash.2d 448

STATE of Washington, Respondent, v. Jeanne Pearl BALDWIN, Petitioner.

No. 72710-4.

Supreme Court of Washington, En Banc.

Argued March 27, 2003.

Decided November 6, 2003.

Washington Appellate Project, Shannon Marsh, Gregory Link, Seattle, for Petitioner.

Janice Ellis, Snohomish County Prosecutor, Seth Fine, Charles Blackman, Deputy County Prosecutors, for Respondent.

ALEXANDER, C.J.

A Snohomish County Superior Court jury found Jeanne Pearl Baldwin guilty of three counts of identity theft and two counts of forgery. The trial judge thereafter imposed concurrent exceptional sentences of 36 months on all counts. The Court of Appeals affirmed Baldwin's convictions and sentences, concluding, in part, that her separate convictions for identity theft (count 1) and forgery (counts 4 and 6) did not twice expose her to jeopardy and that the statutory factors upon which her exceptional sentences were based are not vague. Baldwin obtained review by this court, contending here, as she did at the Court of Appeals, that her convictions on counts 1, 4, and 6 violate double jeopardy prohibitions of the Washington and United States Constitutions and that the statutory factors upon which her exceptional sentences were based are unconstitutionally vague and serve to deny her of her right to appeal. We affirm the Court of Appeals.

I

Jeanne Baldwin purchased real property in Granite Falls, Washington. In doing so, she represented herself as "Kaytie Allshouse," an actual person who was not known to Baldwin. Clerk's Papers (CP) at 64. To carry out her scheme, Baldwin forged Allshouse's name to two deeds of trust. The first deed of trust secured a loan from Global Holdings, a mortgage company, for $45,500. The second deed of trust was in favor of the sellers of the real estate, Diane Masin and David Swadberg, and secured an obligation to pay them $6,500.

A search by Snohomish County Sheriff's officers of the house located on the Granite Falls property yielded a wallet containing a Washington state driver's license in the name of "Kaytie Allshouse." CP at 63. The license contained Baldwin's picture. The search also turned up various items, including credit cards and vehicle titles, in the name of "Kaytie Allshouse" and two other persons, "Carol Hopey" and "Monica Schulz." See Id.

Baldwin was charged with six crimes, four of which related to the purchase of the Granite Falls property, to wit: (1) theft of Kaytie Allshouse's identity, count 1; (2) forgery of Allshouse's name on the deed of trust given to Global Holdings, count 4; (3) forgery of Allshouse's name on the second deed of trust given to Masin and Swadberg, count 6; and (4) forgery of Allshouse's name on an "Adjustable Rate Rider" given to Global Holdings, count 5. CP at 64. Baldwin was also charged with theft of the identities of Monica Schulz, count 2, and Carol Hopey, count 3.

At trial, Kaytie Allshouse testified that she did not sign her name to the trust deeds. When asked how she felt about finding out that someone had used her name to buy a house, she stated, "I don't want [the house and property] in my name. It's not mine, I do not own it.... I just can't afford it, I don't want it." 2 Verbatim Report of Proceedings (VRP) at 148.

The jury found Baldwin guilty on all charges except count 5. Baldwin contended at sentencing that counts 1, 4, and 6 should be deemed the "same criminal conduct" and that the sentencing court's failure to do so resulted in her being twice punished for the same crime. VRP (sentencing) at 10. The trial court imposed an exceptional sentence of 36 months on each count,¹ ordering that the sentences run concurrently. The trial court premised the sentences on its conclusion that all of the crimes were "major economic offenses." CP at 26. This conclusion was based on a finding that all counts were committed with a "high degree of sophistication [and planning]" and that the "degree of sophistication was greater than that typical of theft of identity." Id. It found, additionally, that counts 1, 4, and 6 involved an "attempted monetary loss substantially greater than typical for the theft of identity." Id.

Baldwin appealed her convictions and the sentences to the Court of Appeals, Division One. There she raised numerous assignments of error, including a contention that: (1) separate convictions and punishments for counts 1, 4, and 6 twice exposed her to jeopardy; and (2) the statutes that the statutory factors upon which the exceptional sentences were based are unconstitutionally vague as applied to the identity theft counts.

The Court of Appeals rejected Baldwin's double jeopardy argument, concluding that the offenses charged in counts 1, 4, and 6, forgery and theft of identity, were not the same in law or fact. It also rejected Baldwin's contention that the statutes upon which the trial court relied in imposing the exceptional sentences were vague as applied. State v. Baldwin, 111 Wash.App. 631, 45 P.3d 1093 (2002).

Baldwin sought review by this court, contending here as she did at the Court of Appeals that (1) her separate convictions and punishments for counts 1, 4, and 6 placed her in jeopardy twice for the same offense; and (2) the statutes upon which her exceptional sentences were based are unconstitutionally vague and thus violative of due process. We granted her petition at 148 Wash.2d 1001, 60 P.3d 1211 (2003).

II

A. Double Jeopardy

Baldwin contends that her theft of Allshouse's identity (count I), the forgery in Allshouse's name of the deed of trust to Global Holdings (count 4), and the forgery of the second deed of trust to Masin and Swadberg (count 6) all constitute the same offense, and, thus, her convictions for those offenses violate the double jeopardy provisions of the federal and state constitutions.

The double jeopardy clause of the United States Constitution guarantees that no "person [shall] be subject for the same offense to be twice put in jeopardy of life or limb." U.S. CONST., amend. V. Article I, section 9 of the Washington Constitution similarly indicates that "[n]o person shall be ... twice put in jeopardy for the same offense." Essentially, these provisions prohibit multiple prosecutions or punishments for the same offense. Within this constraint, however, the legislature is free to define criminal conduct and specify its punishment. State v. Calle, 125 Wash.2d 769, 776, 888 P.2d 155 (1995). Where, as here, an act or transaction violates more than one criminal statute, the double jeopardy question turns on whether the legislature intended to impose punishment under both statutes for the same act or transaction. Id.

Our initial inquiry is whether the language of the statute expressly allows convictions under both statutes for the same act or transaction. Id. If the statutes are silent on this point, the court is to turn to principles of statutory construction. Id. at 777, 888 P.2d 155. The first rule of construction is the "same evidence" test. Under this test, two statutory offenses are the "same" for double jeopardy purposes if the offenses "are identical both in fact and in law." Id.; see State v. Adel, 136 Wash.2d 629, 633, 965 P.2d 1072 (1998). If each offense includes an element not included in the other, and proof of one would not necessarily prove the other, the offenses are not constitutionally the same under this test. As we said in State v. Vladovic, 99 Wash.2d 413, 423, 662 P.2d 853 (1983):

In order to be the "same offense" for purposes of double jeopardy the offenses must be the same in law and in fact. If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.

Washington's "same evidence" test bears a similarity to the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), where the court said:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the latest to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Here, the theft of identity and forgery statutes do not expressly allow punishment under both statutes for the same act or transaction. But neither do they satisfy the "same evidence" test since each offense contains an element not contained in the other. See State v. Gocken, 127 Wash.2d 95, 896 P.2d 1267 (1995). As the Court of Appeals observed, "[f]orgery requires the making, completion, or alteration of a written instrument,"² whereas identity theft only "requires use of a means of identification with the intent to commit an unlawful act."³ Baldwin, 111 Wash.App. at 641, 45 P.3d 1093.

But, even if two statutes do not satisfy the "same evidence" test, they nonetheless will be considered the same if the legislature has otherwise clearly indicated its intent that the same conduct or transaction will not be punished under both statutes. Calle, 125 Wash.2d at 778-80, 888 P.2d 155.

Baldwin urges that under State v. Potter, 31 Wash.App. 883, 888, 645 P.2d 60 (1982), the Court of Appeals should have compared the elements in light of what actually occurred, and that proof of identity theft through forgery would always establish forgery. Thus, Baldwin reasons, her "use" of Allshouse's identity was the completion of the written document with intent to defraud. This sort of "subtle distinction[ ]" prompted the Court of Appeals in Potter to reject the results of the "same evidence" and Blockburger tests when assessing a double jeopardy challenge. Id. This court seemingly approved of the Potter approach in Calle, 125 Wash.2d 769,888 P.2d 155, when we said the Blockburger and "same evidence" tests, while significant indicators of legislative...