Oral Argument Date, September 11, 2014
Appeal from King County Superior Court. Docket No: 08-1-07534-2. Judge signing: Honorable Mary I Yu. Judgment or order under review. Date filed: 12/07/2012.
Christopher Gibson (of Nielsen Broman & Koch PLLC ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Scott A. Peterson, Deputy, for respondent.
Authored by Mary Kay Becker. Concurring: Linda Lau, Stephen J. Dwyer.
Mary Kay Becker, J.
[184 Wn.App. 94] [¶1] In a securities fraud case, the defrauding of an individual investor is a separate unit of prosecution even if the fraud is perpetrated through a group presentation or through a single document signed by more than one investor. We reverse the trial court's decision to dismiss three out of eight counts as multiplicitous. We reject appellant's challenge to the sufficiency of the evidence.
[¶2] After working in the construction business for 17 years, Anthone left the trade to become a developer of real estate near the end of 2002. Because he had poor credit, Anthone was unable to obtain traditional financing. He solicited development funds personally from individual investors. At informational meetings held at his office in Tukwila, Anthone promised potential investors that he had a number of real estate projects in development that would yield substantial returns within a few months. As time went on, the projects remained undeveloped and Anthone's promises were not kept.
[¶3] The State charged Anthone with numerous counts of securities fraud under RCW 21.20.010. Each count related to a different individual allegedly victimized by Anthone's fraudulent conduct. Five counts were dismissed before or during trial. Of 10 counts that went to the jury, 8 resulted in guilty verdicts. The trial court then granted Anthone's motion to dismiss counts 4, 5, and 6 as multiplicitous of count 3. Anthone was sentenced to concurrent 16 month sentences on the remaining 5 counts and was ordered to pay $208,000 in restitution. His appeal challenges the sufficiency of the evidence to support all but the conviction on [184 Wn.App. 95] count 8. The State's cross appeal challenges the dismissal of counts 4, 5, and 6.
[¶4] We first address the State's cross appeal. Multiplicity is the charging of a single offense in several counts. State v. Noltie, 116 Wn.2d 831, 847, 809 P.2d 190 (1991). A multiplicitous indictment may implicate double jeopardy if it results in the defendant receiving more than one sentence for the same offense. As well, it may improperly prejudice a jury by suggesting that a defendant has committed several crimes, not one. United States v. Langford, 946 F.2d 798, 802 (11th Cir. 1991), cert. denied, 503 U.S. 960 (1992).
[¶5] " 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." State v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072 (1998). Thus, the issue here is what unit of prosecution the legislature intended as the punishable act under RCW 21.20.010. The inquiry is necessary to assure that the prosecutor has not been arbitrary in
dividing ongoing criminal conduct into units in order to facilitate separate charges. Adel, 136 Wn.2d at 635. " If the Legislature has failed to denote the unit of prosecution in a criminal statute, the United States Supreme Court has declared the ambiguity should be construed in favor of lenity." Adel, 136 Wn.2d at 634-35, citing Bell v. United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955).
[¶6] In this case, Anthone was charged and convicted of numerous violations of the same statute, RCW 21.20.010. The statute criminalizes securities fraud in the following terms:
It is unlawful for any person, in connection with the offer, sale or purchase of any ...