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State v. Walker

September 30, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
ERNEST SCOTT WALKER, APPELLANT. IN RE PERSONAL RESTRAINT PETITION OF ERNEST S. WALKER, PETITIONER.



Appeal from Superior Court of King County. Docket No: 93-1-03563-9. Date filed: 05/17/94. Judge signing: Hon. Norma S. Huggins.

Authored by Ann L. Ellington. Concurring: H. Joseph Coleman, Mary K. Becker

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- This case requires us to decide whether three counts of theft were so closely related to two previous criminal charges that joinder of all charges was mandatory, and whether two of the three theft counts constituted the same criminal conduct, where each count was based on numerous discrete acts in overlapping time periods and overlapping geographic locations. Finding that joinder was not mandatory, and that the trial court correctly treated two charges as the same criminal conduct for sentencing purposes, we affirm.

Facts/Background

Ernest Walker persuaded Jerome Nezart to permit him to use Nezart's credit cards for expenses related to a political project. Nezart specifically limited the use of the cards to project expenses under a certain amount. Ignoring those limitations, Walker ran up thousands of dollars in charges. He was found guilty of three counts of theft in the first degree.

Walker argues that the theft charges should have been dismissed for failure to join them with other charges for which he was previously tried (unlawful issuance of a bank draft on the account of a travel agency, and violating an anti-harassment order that protected Nezart and his wife). Joinder is only mandatory when the charges are brought in the same venue and are "related." Because the harassment charge was not brought in the same venue, and the unlawful issuance offense involved a different victim, joinder was not required. Walker also argues that the evidence was insufficient to show that he exercised unauthorized control over Nezart's credit cards. Nezart's testimony provided sufficient evidence, however, from which a reasonable jury could have found Walker guilty. Walker also claims a variety of other errors in his personal restraint petition. We address and reject these claims below.

The State cross-appeals, arguing that the court erred by ruling that two of the convictions constituted the "same criminal conduct" for sentencing purposes. We reject this argument because the crimes were perpetrated against the same victim, involved the same criminal intent, and took place during overlapping time periods and in overlapping geographical areas.

This opinion has no precedential value and will be filed according to the rules of the court. See RCW 2.06.040; RAP 10.4(h). The facts are known to the parties and will only be mentioned as is necessary for an understanding of this opinion.

Joinder

The first issue is whether the court erred by failing to dismiss for lack of joinder with charges previously tried. We review this question as a matter of law. See State v. Lee, 81 Wash. App. 609, 610-11, 915 P.2d 1119 (1996). Former CrR 4.3(c) *fn1 generally requires dismissal of charges that could have been brought with previously litigated related offenses. *fn2 The rule defines related offenses as those that are based on the same conduct and brought within the same jurisdiction and venue. State v. Dallas, 126 Wash. 2d 324, 329, 892 P.2d 1082 (1995); CrR 4.3(c)(1)).

Here, Walker argues that the King County prosecutor should have joined the current theft charges with a previous unlawful issuance of a bank check charge, and with a charge of violation of an anti-harassment order. The unlawful issuance charge was also brought in King County, but the harassment charge was prosecuted in Pierce County. The trial court denied dismissal, ruling that the offenses were not "based on the same conduct." As to the harassment offense, because it was tried in Pierce County, the rule does not require joinder, and the court correctly refused dismissal on this ground. See CrR 4.3(c)(1).

To determine whether the current charges must have been joined with the unlawful issuance charge, we must evaluate the meaning of the rule's "based on the same conduct" wording. The Supreme Court has interpreted this phrase to mean "based on the same physical act or omission." State v. Dunaway, 109 Wash. 2d 207, 214 n.4, 743 P.2d 1237 (1987) (citing State v. Bradley, 38 Wash. App. 597, 599, 687 P.2d 856, rev. denied, 102 Wash. 2d 1024 (1984) (citing 2 ABA, Standards for Criminal Justice, Std. 13-1.2, at 13.9 (2d ed. 1980))); see also State v. Thompson, 36 Wash. App. 249, 254, 673 P.2d 630 (1983), rev. denied, 101 Wash. 2d 1002 (1984) (also citing ABA standards: "a course of conduct involving a series of the same physical actions"); see also State v. Pelkey, 109 Wash. 2d 484, 491, 745 P.2d 854 (1987) (different charges based on identical act must be joined); cf. State v. Anderson, 96 Wash. 2d 739, 741, 638 P.2d 1205, cert. denied, 459 U.S. 842, 103 S. Ct. 93, 74 L. Ed. 2d 85 (1982).

Determining what constitutes the same act or omission is problematic in cases where, as here, the charge aggregates a number of discrete acts over an extended time period. We find the existing case law helpful but not conclusive. For example, this court has implicitly held that temporal distinctions between offenses could render them "unrelated." Thompson, 36 Wash. App. at 254 ("four counts of delivery and possession are not 'related offenses' to the [earlier tried possession] charges since they were not based on the same conduct"). But mere temporal distinctiveness cannot be conclusive where there is not a single discrete criminal act, but rather ongoing conduct, which is aggregated to elevate the crime's degree.

Another division of this court has held that offenses must be joined when "they share an intimate relationship or are intimately connected." State v. Holt, 36 Wash. App. 224, 227, 673 P.2d 627 (1983). But the question of what constitutes an "intimate relationship" is not easily answered. Nor do we believe that a bright line test can be fashioned. Instead, we believe that determining when joinder is mandated must be resolved on a case-by-case basis. Proper considerations include whether the offenses comprise one or more physical acts, are temporally ...


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