State v. K.R.

282 P.3d 1112, 169 Wash. App. 742
Court of Appeals of Washington·Decided July 30, 2012·No. No. 67102-2-I·Published·Cited by 2 cases

Opinion

Becker, J.

¶1 This case involves the “unit of prosecution” aspect of double jeopardy. KR, a juvenile, was con[744] victed of two counts of third degree malicious mischief for damaging property belonging to the Kent Police Department. One count was for carving an “S” into the wall of a holding cell, and the second was for damaging a door handle of a police car perhaps an hour later. We conclude the two convictions do not violate the prohibition against double jeopardy.

¶2 Kent police received a report of a disorderly person at a shopping center on the evening of November 14,2010. The responding officers encountered 17-year-old KR, who was intoxicated and combative. They took him into custody.

¶3 The officers learned there was an active warrant for KR from Grant County. Unable to obtain from KR any contact information for a parent, the officers put him in a holding cell at the police station. The officers made arrangements to transfer KR to the custody of Grant County authorities at Snoqualmie Pass. Meanwhile, in the holding cell, KR carved an “S,” the first letter of his nickname, into the wall.

¶4 Officers placed KR in the back of a police car. During the drive to Snoqualmie Pass, KR managed to break off the interior door handle.

¶5 The State charged KR with two counts of third degree malicious mischief under RCW 9A.48.090(l)(a). One count was for damaging the door handle, and the second count was for the physical damage to the wall. KR was adjudicated guilty as charged.

¶6 KR contends his two convictions for malicious mischief in the third degree violate the prohibition against double jeopardy. This is a question of law reviewed de novo. State v. Hall, 168 Wn.2d 726, 729, 230 P.3d 1048 (2010).

¶7 The double jeopardy clause of the Fifth Amendment forbids multiple punishments for the same offense. State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995). The state constitutional rule against double jeopardy, article I, section 9, offers the same scope of protection as its federal counterpart. Gocken, 127 Wn.2d at 107.

[745] ¶8 “Double jeopardy principles protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime.” State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002). In order to resolve whether double jeopardy principles are violated when a defendant is convicted of multiple violations of the same statute, a court must determine what “unit of prosecution” the legislature intends to be the punishable act under the statute. State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2005). “A unit of prosecution can be either an act or a course of conduct.” Hall, 168 Wn.2d at 731, citing Tvedt, 153 Wn.2d at 710, and In re Snow, 120 U.S. 274, 286, 7 S. Ct. 556, 30 L. Ed. 658 (1887). In some cases where the statute criminalizes a course of conduct, it will define what is “inherently! ] a continuous offence” rather than an offense consisting of an isolated act. Snow, 120 U.S. at 281; see also State v. Jensen, 164 Wn.2d 943, 957, 195 P.3d 512 (2008); Ebeling v. Morgan, 237 U.S. 625, 35 S. Ct. 710, 59 L. Ed. 1151 (1915). The general analytical approach begins with the statute in question. Hall, 168 Wn.2d at 730.

¶9 Here, the statute in question is RCW 9A.48.090(l)(a). It provides that a person is guilty of third degree malicious mischief, a misdemeanor, if he or she knowingly and maliciously “causes physical damage to the property of another” under circumstances not amounting to malicious mischief in the first or second degree.

¶10 KR argues that by using the phrase “the property of another,” the legislature defined the unit of prosecution according to the number of persons whose property the defendant damaged. He thus contends he was guilty of only one count of malicious mischief because each item of property he damaged belonged to the Kent Police Department. The State contends that the unit of prosecution is each discrete act of property destruction.

¶11 KR attempts an analogy to the identity theft statute, which uses the phrase “another person”: “No person may knowingly obtain, possess, use, or transfer a means of [746] identification or financial information of another person, living or dead, with the intent to commit, or to aid or abet, any crime.” RCW 9.35.020(1) (emphasis added). This statute was considered in State v. Leyda, 157 Wn.2d 335, 138 P.3d 610 (2006). The defendant in Leyda used, on four separate occasions, a credit card stolen from one person. Our Supreme Court reversed three of the defendant’s four convictions, concluding he had engaged in a single course of illegal conduct “against a particular victim” that amounted to one count of identity theft:

Once the accused has engaged in any one of the statutorily proscribed acts against a particular victim, and thereby committed the crime of identity theft, the unit of prosecution includes any subsequent proscribed conduct, such as using the victim’s information to purchase goods after first unlawfully obtaining such information.

Leyda, 157 Wn.2d at 345.1

¶12 KR argues that the malicious mischief statute similarly defines the unit of prosecution in terms of a particular victim. The analogy is not compelling. A person can own many items of property but has only one identity. Leyda, 157 Wn.2d at 347.

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State v. K.R., 282 P.3d 1112, 169 Wash. App. 742 (Wash. Ct. App. 2012).

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