State v. Kinneman

• Decision Date: 29 December 2003
• Docket Number: No. 50101-1-I.,50101-1-I.
• Citation: 120 Wash. App. 327,84 P.3d 882,120 Wn. App. 327
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent/Cross-Appellant, v. Zachary A. KINNEMAN, Appellant/Cross-Respondent.

84 P.3d 882

120 Wn. App. 327

120 Wash. App. 327

STATE of Washington, Respondent/Cross-Appellant, v. Zachary A. KINNEMAN, Appellant/Cross-Respondent.

No. 50101-1-I.

Court of Appeals of Washington, Division 1.

December 29, 2003.

Publication Ordered February 20, 2004.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

John Christopher Carver, King Co. Pros. Atty. Office/Fraud Division, Seattle, WA, for Respondent.

APPELWICK, J.

Zachary Kinneman, an attorney, made multiple unauthorized withdrawals from his Interest on Lawyer Trust Account (IOLTA) over 16 months. He was convicted of 28 counts of first degree theft and 39 counts of second degree theft. He appeals, asserting that (1) because the multiple counts were not aggregated into one first degree theft count he was subject to double jeopardy, and (2) the State had insufficient evidence to charge him with multiple counts. The State cross-appeals the court's imposition of an exceptional sentence downward. We affirm Kinneman's conviction, reverse the imposition of an exceptional sentence downward, and remand for resentencing.

FACTS

In June 1997, Zachary Kinneman, an attorney licensed to practice in the state of Washington, was hired to act as an escrow and closing agent for five separate real estate refinancings. The borrower for all five transactions was Rodney R. Brown, and the lender was Option One Mortgage Company (Option One) of California. The five properties were all located in Seattle, Washington.

In four separate wirings on June 17, 1997, and one wiring on June 27, 1997, Option One wired a total of $499,506.96 to Kinneman's IOLTA account at Washington Mutual Bank. In its closing instructions, Option One directed Kinneman to obtain a title insurance policy for each of the five properties, have the borrower sign all the necessary paperwork, record the deeds of trust, and pay off all prior lien holders on the properties and other intended disbursees, such as the loan broker. Shortly after the funds were deposited in his IOLTA account, Kinneman falsely notified Option One that he had complied with all of its escrow and closing instructions. At the time Kinneman made those representations to Option One, he had not in fact paid off any of the prior lien holders, and had failed to purchase title insurance on one property as dictated in the escrow and closing instructions.

Between June 17, 1997, and October 22, 1998, Kinneman made 67 separate unauthorized withdrawals from his IOLTA account, diverting over $200,000 to his own use. These unauthorized uses of escrow funds consisted of cash withdrawals, checks made payable to Kinneman, checks payable to Kinneman's other clients, and checks made payable to other individuals unrelated to the transactions for which Kinneman received the funds. Although Kinneman did not pay off any of the prior lien holders for the five properties in July 1997, as he had informed Option One, he did pay some of the lien holders later as originally instructed. In February 1998, Kinneman removed $69,850 from the IOLTA account to pay off one prior lien holder shortly before a scheduled foreclosure. In July 1998, he removed $56,489.67 from the account to pay off a prior lien holder for a second of the five properties just prior to its scheduled foreclosure.

Federal Bureau of Investigation (FBI) agents interviewed Kinneman on December 30, 1998. Kinneman told the agents that because of financial difficulties related to his divorce, he was unable to pay his bills, and used the Option One funds deposits to pay some of them. On June 20, 2000, the State filed an Information charging Kinneman with theft in the first degree under RCW 9A.56.020(1)(a), and theft in the second degree under RCW 9A.56.030(1)(a). The State charged Kinneman separately for each withdrawal—28 counts of first degree theft and 39 counts of second degree theft.¹ On November 27, 2000, Kinneman filed a motion to dismiss all but one of the charges of theft filed against him. After hearing oral arguments, the trial court denied the motion. In April 2001, this court denied Kinneman's motion for discretionary review of the trial court's decision refusing to dismiss the multiple counts. Kinneman waived his right to a trial by jury and agreed to a bench trial on stipulated facts.

The trial court found Kinneman guilty of 28 counts of first degree theft, and 39 counts of second degree theft as charged. His offender score was 66. With an offender score of 66, his standard sentence range was 43 to 57 months on each of the first degree theft counts, and 22 to 29 months on each of the second degree counts, to run concurrently. A standard sentence range for one count of first degree theft with an offender score of zero is 0 to 90 days. Although Kinneman was eligible for a first-time offender waiver, the court declined to sentence him under that provision.² The trial judge departed downward from the standard sentencing range, imposing a 14-month sentence for each count, to run concurrently.

Kinneman had paid the amount he had stolen, slightly over $200,000, in restitution by the date of his sentencing hearing. At a later restitution hearing, the court found that Brown's losses as a primary victim totaled $246,770.10 including interest. The court also found that Old Republic, Option One's insurer, as a secondary victim had suffered a loss of $308.616.73 including interest, due to foreclosures on Brown's properties.

Kinneman appeals. The State cross-appeals the trial court's downward departure from the standard sentencing range.

ANALYSIS

I. Double Jeopardy

Kinneman asserts that his multiple withdrawals from his IOLTA account constitute a single count of first degree theft and, therefore, the State's division of his theft of the funds into multiple counts subjects him to double jeopardy.

The double jeopardy clause of the Fifth Amendment offers three separate constitutional protections. The state constitutional rule against double jeopardy, Const. art. I, § 9, offers the same scope of protection as its federal counterpart. One aspect of double jeopardy protects a defendant from being punished multiple times for the same offense.

State v. Adel, 136 Wash.2d 629, 632, 965 P.2d 1072 (1998) (citations omitted).

A. Unit of Prosecution Analysis

Kinnemann was convicted of 28 counts of first degree theft under RCW 9A.56.030(1)(a) and 39 counts of second degree theft under RCW 9A.56.040. When a double jeopardy challenge relates to multiple convictions under the same statute, the proper inquiry is what "unit of prosecution" the Legislature intended as the punishable act when enacting the criminal statute. State v. Bobic, 140 Wash.2d 250, 261, 996 P.2d 610 (2000). The unit of prosecution refers to the scope of the criminal act. Adel, 136 Wash.2d at 634, 965 P.2d 1072. "When the Legislature defines the scope of a criminal act (the unit of prosecution), double jeopardy protects a defendant from being convicted twice under the same statute for committing just one unit of the crime." Adel, 136 Wash.2d at 634, 965 P.2d 1072. If the Legislature's intent regarding the unit of prosecution is unclear, the rule of lenity requires the court to construe the ambiguity in the defendant's favor. Bobic, 140 Wash.2d at 261-62, 996 P.2d 610.

Kinneman argues that the theft statutes under which he was charged are ambiguous as to the unit of prosecution. Kinneman therefore contends the rule of lenity requires that he be charged with one count of theft instead of 67 counts.

The first step in unit of prosecution analysis is to examine the statute in question. State v. Turner, 102 Wash.App. 202, 209, 6 P.3d 1226 (2000). Here, the State charged Kinneman under RCW 9A.56.020(1)(a), under which it is a theft "[t]o wrongfully obtain or exert unauthorized control over the property or services of another or the value thereof, with intent to deprive him of such property or services." RCW 9A.56.020(1)(a). A party "wrongfully obtain[s]" or "exert[s] unauthorized control" over another's property when he or she, having that property in their possession, custody, or control as an attorney or agent, "secrete[s], withhold[s], or appropriate[s] the same to his or her own use or to the use of any person other than the true owner or person entitled thereto." RCW 9A.56.010(19)(b). The secreting, withholding, or appropriating of property to one's own use, as an attorney or agent, worth over $1,500, constitutes first degree theft. RCW 9A.56.030(1)(a). The theft of property worth over $250 constitutes second degree theft. RCW 9A.56.040(1)(a).

Kinneman argues that another case analyzing the theft statutes, Turner, 102 Wash. App. 202, 6 P.3d 1226, supports his position that "[t]here is no language in these controlling statutes which suggests the Legislature intended to punish a person multiple times based on a series of takings from the same victim."

The focus of Turner was on the operation of the aggregation statute, former RCW 9A.56.010(17)(c).³ In Turner, the defendant appealed his three convictions for first degree theft on the grounds that multiple convictions for violation of the same statute subjected him to double jeopardy. Turner, 102 Wash.App. at 203,6 P.3d 1226. Turner was a financial director who, in 72 individual acts of theft over a 10-month period, embezzled money from his employer. Turner employed four different ways or "schemes" to embezzle the money. Turner, 102 Wash.App. at 204,6 P.3d 1226. Turner (1) made a series of unauthorized payments in varying amounts to himself from his employer's payroll accounts, (2) made unauthorized payments to a third party from the payroll accounts, (3) made unauthorized payments to himself from a non-payroll account, and (4) made unauthorized purchases on his employer's credit card. Turner, 102 Wash.App. at 204,6 P.3d 1226. These four schemes were not successive; rather, they were concurrent within the 10 months during which Turner embezzled the funds....