State v. Smith

433 P.3d 821
CourtCourt of Appeals of Washington
DecidedJanuary 23, 2019
DocketNo. 50397-2-II
StatusPublished
Cited by7 cases

This text of 433 P.3d 821 (State v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Smith, 433 P.3d 821 (Wash. Ct. App. 2019).

Opinion

Melnick, J.

*305¶ 1 Albert Smith appeals his convictions of theft in the first degree and identity theft in the first degree. In the published part of this opinion, we conclude the trial court did not err in applying the free crimes aggravating factor. In the unpublished portion, we conclude the court did not abuse its discretion in denying a mistrial motion and it did not commit reversible error in sentencing Smith. We also reject Smith's assertions in his statement of *306additional grounds (SAG) and supplemental SAG. We affirm Smith's convictions and sentence.

FACTS1

¶ 2 Smith's convictions are based on a series of checks he cashed at the expense of his wife's employer, Spaeth Transfer, a moving *822and storage company that operated out of Bremerton. Smith's wife, Sharyl Smith,2 worked as the company's bookkeeper between October 2012 and October 2015. Ultimately, Smith cashed 176 checks totaling $264,500 between December 2014 and November 2015. A jury found Smith guilty of both identity theft in the first degree and theft in the first degree. It also found that both crimes were major economic offenses.

¶ 3 The State submitted a sentencing memorandum where it calculated Smith's offender score as 21. It requested an exceptional sentence above the standard range of 100 months on both counts and that the sentences on each count be served consecutively. The State cited the jury's finding of the major economic offense aggravator as well as an additional aggravator that, because of Smith's high offender score, some of the current offenses would go unpunished. RCW 9.94A.535(2)(c). The court determined Smith had an offender score in excess of 9.3

¶ 4 The trial court sentenced Smith to the statutory maximum on each conviction count, 120 months, to be served consecutively. The trial court also orally found that Smith's current offenses did not constitute the same criminal conduct. It cited the State's sentencing memorandum, which argued that the crimes did not occur at the same time or place.

*307¶ 5 The trial court entered written findings of fact supporting its exceptional sentence:

(1) The offenses do not constitute same criminal conduct.
(2) The jury found that the crimes were major economic offenses.
(3) The defendant's high offender score results in some crimes going unpunished if sentenced concurrently.

Clerk's Papers (CP) at 193. Based on those findings, the court entered a conclusion of law that an exceptional sentence was appropriate. Smith appeals.

ANALYSIS

I. FREE CRIMES AGGRAVATING FACTOR

¶ 6 Smith argues that the trial court erred in applying the free crimes aggravator,4 which applies when some of the current offenses would otherwise go unpunished. He contends that the aggravator does not apply in cases like this one, where only one conviction would go unpunished. We disagree.

A. Principles of Statutory Interpretation

¶ 7 The interpretation of a statute involves a question of law we review de novo. State v. Evans , 177 Wash.2d 186, 191, 298 P.3d 724 (2013). The primary goal of statutory interpretation is to determine and give effect to the legislature's intent. State v. Larson , 184 Wash.2d 843, 848, 365 P.3d 740 (2015). To determine legislative intent, we first look to the plain language of the statute. Larson , 184 Wash.2d at 848, 365 P.3d 740. We consider the language of the provision in question, " 'the context of the statute in which the provision is found, related provisions, and the statutory scheme as a whole.' " Larson , 184 Wash.2d at 848, 365 P.3d 740 (internal quotation marks omitted) (quoting State v. Ervin , 169 Wash.2d 815, 820, 239 P.3d 354 (2010) ).

*308¶ 8 If the plain meaning of a statute is unambiguous, we apply that plain meaning as an expression of legislative intent. Larson , 184 Wash.2d at 848, 365 P.3d 740. To determine the plain meaning of an undefined statutory term, we may look to the term's dictionary definition. State v. Monfort , 179 Wash.2d 122, 130, 312 P.3d 637 (2013).

¶ 9 A statute is ambiguous when it is subject to more than one reasonable interpretation. Evans , 177 Wash.2d at 192-93, 298 P.3d 724. When a statute is ambiguous, we first attempt to resolve any ambiguity and determine the legislature's intent by considering principles of statutory construction, legislative history, and relevant case law. State v. Reeves

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Bluebook (online)
433 P.3d 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-washctapp-2019.