State v. Leyda
| Decision Date | 20 July 2006 |
| Docket Number | No. 75866-2.,75866-2. |
| Citation | 138 P.3d 610,157 Wn.2d 335 |
| Parties | STATE of Washington, Respondent, v. Steven Edward LEYDA, Petitioner. |
| Court | Washington Supreme Court |
Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, for Petitioner.
Brian Martin McDonald, King County Prosecutor's Office, Seattle, for Respondent.
¶ 1 Steven Leyda was convicted of four counts of second degree identity theft, one count of second degree theft, two counts of third degree theft, and one count of second degree possession of stolen property. The Court of Appeals affirmed all eight convictions. On appeal here, Leyda claims that his multiple second degree identity theft convictions under RCW 9.35.020 violate constitutional prohibitions against double jeopardy because he committed only one offense when he unlawfully obtained another person's credit card and subsequently used it four times. He contends, additionally, that the charging document was constitutionally deficient because it did not include an essential element of second degree identity theft and third degree theft—namely the value of the items unlawfully obtained.
¶ 2 We agree with the Court of Appeals that value is not an essential element of either second degree identity theft or third degree theft. We determine, however, that the Court of Appeals employed the wrong unit of prosecution when it held that each use of a victim's means of identification or financial information constitutes a separate punishable act under RCW 9.35.020. We conclude that the unit of prosecution for identity theft is any one act of either knowingly "obtain[ing], possess[ing], us[ing], or transfer[ring] a means of identification or financial information of another person . . . with the intent to commit, or to aid or abet, any crime." RCW 9.35.020(1). Applying this unit of prosecution to the facts of this case, we hold that Leyda's single course of proscribed criminal conduct should not have been divided into multiple offenses by the State and that doing so violated double jeopardy principles. Thus, we reverse three of the four second degree identity theft convictions and remand for resentencing. We, however, affirm both third degree theft convictions.
¶ 3 On October 21, 2002, Leyda and his girlfriend, Nikkoleen Cooley, visited the Bon Marché store at the SeaTac Mall. At that time, Leyda had in his possession a Bon Marché credit card belonging to Cynthia Austin. Leyda gave Austin's card to Cooley, who used it at the store to purchase several items. Austin testified at trial that she was not acquainted with Leyda and had not given him or Cooley permission to use her credit card.
¶ 4 Five days after their October 21, 2002, visit to the SeaTac Bon Marché, Leyda and Cooley returned to that store. Using Austin's card, Cooley purchased a watch at the jewelry department. A few minutes later, Leyda and Cooley jointly used Austin's card to purchase items in another department of the Bon Marché.
¶ 5 On November 2, Leyda and Cooley again returned to the SeaTac Bon Marché. On this occasion, Cooley presented Austin's credit card to a cashier who, suspecting that the card was stolen, called the Bon Marché's Loss Prevention Department to verify the card's use. The cashier also asked Cooley for her address, Social Security number, and identification. Cooley responded that she needed to go to a car to get identification. Leyda and Cooley then exited the store with Austin's card.
¶ 6 While the cashier was questioning Cooley, a loss prevention employee at the Bon Marché telephoned Cynthia Austin. Austin informed the employee that she had not provided her credit card to anyone. Although the loss prevention employee subsequently tried to stop Cooley and Leyda from entering their car, Leyda was able to drive away. As Leyda did so, he threw Austin's credit card out the window. Federal Way police officers stopped the car a short time later and arrested Leyda and Cooley.
¶ 7 Leyda was charged in King County Superior Court with a separate count of identity theft for each of the four uses or attempted uses of Austin's credit card. He was charged, additionally, with two counts of third degree theft and one count of second degree theft based upon the three purchases that were made with Austin's card. Only the second degree theft charge specified the value of the property unlawfully obtained. Leyda was also charged with possession of stolen property based upon his possession of Austin's credit card.1 Cooley pleaded guilty to possession of stolen property in the third degree, a gross misdemeanor. Leyda went to trial, and a jury found him guilty on all counts. The Court of Appeals affirmed all of Leyda's convictions. State v. Leyda, 122 Wash.App. 633, 94 P.3d 397 (2004). Leyda then petitioned this court for direct review and we granted his petition at 153 Wash.2d 1023, 110 P.3d 755 (2005).
¶ 8 Leyda challenges his four identity theft convictions here, arguing that the unit of prosecution was the act of obtaining the identity information rather than its subsequent use. Leyda also challenges his second degree identity theft and the third degree theft convictions on a separate ground, contending that the charging document was constitutionally deficient because it did not list the value of the items unlawfully obtained.2
¶ 9 Pending review here, the State moved to strike issues three and four from Leyda's supplemental brief. In those portions of his brief, Leyda argued for the first time to this court that the second degree identity theft and second degree possession of stolen property charges should have merged and that the "to-convict" jury instructions relating to the third degree theft and second degree identity theft charges were constitutionally deficient.3 See Suppl. Br. of Pet'r at 16-19. The State correctly observes that Leyda sought review only of the unit of prosecution and the sufficiency of the charging information issues. See Respt's Mot. to Strike at 2. Leyda has not presented any substantive argument in response to the State's motion. This court will generally not consider issues raised for the first time in a supplemental brief filed after review has been accepted. Douglas v. Freeman, 117 Wash.2d 242, 258, 814 P.2d 1160 (1991); RAP 13.7(b). We are inclined to follow the general rule and grant the motion to strike. We, therefore, address only the issues Leyda raised in his petition for review.
¶ 10 Leyda claims that the information violated both the federal and Washington State Constitutions4 because it did not include all essential elements of the charges of second degree identity theft and third degree theft.5 See Pet. for Review at 15-19. Specifically, he argues that the value of the goods, services, credit, etc. obtained through the theft is an essential element of the crimes and, therefore, should have been set forth in the information. The Court of Appeals rejected this argument, holding that the reference to value in each of the challenged statutory provisions establishes "a ceiling above which the offense is elevated to a higher degree, not a floor that must exist to support the charge or conviction." Leyda, 122 Wash.App. at 640, 94 P.3d 397.
¶ 11 We recently addressed this issue insofar as it related to a charge of third degree theft. In State v. Tinker, 155 Wash.2d 219, 222, 118 P.3d 885 (2005), we held that value is not an essential element of third degree theft, reasoning that value is only an essential element of the first and second degree theft statutes because these charging statutes explicitly state a "minimum value threshold." We are not inclined to depart from the holding we reached in that case and affirm Leyda's third degree theft convictions.
¶ 12 Turning to the challenges made to the identity theft charges, we hold that value is not an essential element of second degree identity theft and need not be alleged in the charging document. An "essential element is one whose specification is necessary to establish the very illegality of the behavior." State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992) (citing United States v. Cina, 699 F.2d 853, 859 (7th Cir.1983)). Applying the analysis we set forth in Tinker, we conclude that value cannot be an essential element of second degree identity theft given that the statute provides that the crime occurs even "when no credit, money, goods, services, or anything of value is obtained." Former RCW 9.35.020(2)(b) (2001).6 By its very terms, the statute obviates value as an element of the crime of second degree identity theft and, thus, specification of the value is not necessary to establish the illegality of the behavior. However, similar to the higher degree theft statutes, value is an essential element that needs to be included when charging first degree identity theft because the statute provides a minimum value threshold of $1,500. Former RCW 9.350.020(2)(a). Because Leyda was charged with second, not first degree, identity theft, we hold that the challenged charging information is not constitutionally infirm.
¶ 13 Leyda's principal claim is that he should have been convicted of only one count of second degree identity theft. Specifically, he asserts that the Court of Appeals misidentified the applicable unit of prosecution and that his multiple convictions under RCW 9.35.020 violate double jeopardy by punishing him multiple times for the same offense. This is an issue of first impression.
¶ 14 The double jeopardy provisions of the United States and Washington State Constitutions preclude convicting a defendant more than once under the same criminal statute if only one "unit" of the crime has been committed. See U.S. CONST. amend. V; CONST. ART. I, § 9; State v. Tvedt, 153 Wash.2d 705, 710, 107 P.3d 728 (2005) (citing State v. Westling, 145 Wash.2d 607, 610, 40 P.3d 669 (2002)). Thus, when a defendant is convicted of multiple violations of a...
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