Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           MAR 27, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No. 30493-1-III 
                                                )
                      Respondent,               )
                                                )         Division Three
              v.                                )
                                                )
CHARLES L. ROBINSON,                            )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )
                                                )

       Brown, J. ? Charles L. Robinson appeals his forgery and second degree theft 

convictions after a jury trial.  He contends the convictions violate double jeopardy.  

Alternatively, he contends the trial court erred in failing to consider the convictions were

the same criminal conduct when sentencing.  We reject his contentions, and affirm.

                                            FACTS

       Matthew Staerk arranged to sell his laptop computer over Craigslist to a man he 

later identified as Mr. Robinson.  Mr. Robinson gave Mr. Staerk 15 counterfeit $100 bills

for the computer.  Mr. Robinson raises no error concerning his convictions for forgery 

and second degree theft except double jeopardy, so we omit the unrelated facts  

No. 30493-1-III 
State v. Robinson   

concerning his apprehension and trial.  During sentencing, the court found different 

intents for each crime, rejecting Mr. Robinson's double jeopardy arguments.  It noted Mr. 

Robinson "ought not to get the benefit of just stealing when he's actually done two bad 

things."  Record of Proceedings (RP) at 168.  The court calculated his offender score as

seven and imposed 18-month concurrent sentences.  Mr. Robinson appealed.  

                                         ANALYSIS

                                     A.  Double Jeopardy

       The issue is whether Mr. Robinson's forgery and second degree theft convictions 

violate double jeopardy principles.  Mr. Robinson contends the forgery and second 

degree theft charges arise out of the same facts.

       Both the United States Constitution and the Washington Constitution protect a 

person from twice being placed in jeopardy for the same offense.  U.S. Const. amend. V; 

Const. art. I, § 9; In re Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P.3d 1106 

(2007).  Both provisions prohibit multiple punishments imposed for the same act unless 

the legislature intended to authorize multiple punishments for the crimes in question. 

State v. Baldwin, 150 Wn.2d 448, 454, 78 P.3d 1005 (2003).  Where a defendant is 

convicted under multiple criminal statutes for the same act, we must determine if the 

legislature intended multiple punishments, first by looking to the language of the statutes 

and alternatively by employing the "same evidence" test. Borrero, 161 Wn.2d at 536-37

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State v. Robinson   

(citing Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 

(1932)).  Here, the statutory language does not disclose any legislative intent, so we apply

the same evidence test?whether the offenses are identical in fact and in law. Borrero,

161 Wn.2d at 537.  If each offense contains an element not contained in the other 

requiring proof of a fact that the other does not, the offenses are not the same.  Id.

       Under the same evidence test, the two crimes of forgery and second degree theft 

do not violate double jeopardy because each requires proof of facts that the other does 

not.  Forgery requires that a defendant has made or put off as true a forged written 

instrument.  RCW 9A.60.020(1).  This element is unnecessary for second degree theft, 

which requires that a defendant obtain control over property or services of another.  This 

element is wholly unnecessary for proving forgery.  RCW 9A.56.020. Thus, both crimes

have distinct elements that the other does not contain.

       And, the two offenses in this case have distinct factual elements. Mr. Staerk 

testified that he gave Mr. Robinson his laptop as part of the exchange. He did not realize 

until shortly thereafter that Mr. Robinson had deceived him and unlawfully took 

possession of the laptop. Mr. Robinson took possession of Mr. Staerk's laptop through 

deception; taking possession of the property of another, although a necessary element of 

theft has no bearing on the charge of forgery.  Similarly, Mr. Staerk testified that Mr. 

Robinson gave him 15 $100 bills, passing them as legitimate currency.  All 15 $100 bills 

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No. 30493-1-III 
State v. Robinson   

were counterfeit.  Although the State must demonstrate the defendant attempted to use a 

forged instrument as an essential element in proving the crime of forgery, those facts bear 

no relevance to proving the crime of theft. Our Supreme Court, using the "same 

evidence" analysis of Blockburger, held that identity theft and forgery do not implicate 

double jeopardy principles.  Baldwin, 150 Wn.2d at 454-55.

       In sum, because each crime requires proof of facts not required by the other, Mr. 

Robinson's double jeopardy rights were not violated.

                                 B.  Same Criminal Conduct

       Mr. Robinson's alternative issue is whether the trial court erred in denying Mr.

Robinson's request to count his forgery and second degree theft convictions as the "same

criminal conduct" for sentencing purposes.   

       We review a trial court's same criminal conduct determination for abuse of 

discretion or misapplication of the law. State v. Dolen, 83 Wn. App. 361, 364, 921 P.2d 

590 (1996). A defendant's offender score may be reduced if the court finds two or more 

of the criminal offenses constitute same criminal conduct. RCW 9.94A.589(1)(a). Same 

criminal conduct "means two or more crimes that require the same criminal intent, are 

committed at the same time and place, and involve the same victim." Id. The State has 

the burden to prove the crimes did not occur as part of a single incident.  See Dolen, 83 

Wn. App. at 365 ("If the time an offense was committed affects the seriousness of the 

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State v. Robinson   

sentence, the State must prove the relevant time.").

       The same criminal intent element is determined by looking at whether the 

defendant's objective intent changed from one act to the next.  Dolen, 83 Wn. App. at 

364-65.  

       Mr. Robinson contends the two convictions had the same intent and were 

committed at the same time and place, and involved the same victim.  The State argued 

with respect to forgery the intent was to injure or defraud.  And, in contrast, the State 

argued theft involved the intent to take property. The court correctly agreed.  The court 

partly reasoned in utilizing the counterfeit currency, Mr. Robinson introduced the 

"instrumentality into the stream of commerce," potentially injuring, vexing, and 

disturbing others.  RP at 172.  The crime of forgery targets more people than just the

victim of the theft. Because second degree theft and forgery have different intents and 

because Mr. Robinson's convictions involve different victims, the trial court had tenable 

grounds to conclude they did not involve the same criminal conduct for sentencing 

purposes.  The court properly counted both convictions in calculating Mr. Robinson's 

offender score.  

       Lastly, Mr. Robinson contends the sentencing court violated the separation of 

powers doctrine by commenting that Mr. Robinson should not benefit from committing 

two crimes at the same time.  Washington courts have recognized the separation of 

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State v. Robinson   

powers doctrine as a founding, implicit principle of our state and federal constitutions.  

State v. Blilie, 132 Wn.2d 484, 489, 939 P.2d 691 (1997).  The doctrine ensures that the 

fundamental functions of each government branch remain inviolate.  Carrick v. Locke,

125 Wn.2d 129, 135, 882 P.2d 173 (1994).  The legislature defines crimes and sets

punishments.  State v. Wadsworth, 139 Wn.2d 724, 734, 991 P.2d 80 (2000).  But, "the 

three branches are not hermetically sealed and some overlap must exist." City of Fircrest 

v. Jensen, 158 Wn.2d 384, 393-94, 143 P.3d 776 (2006).

       Here, the court's challenged comment does impair its correct finding that the two 

crimes did not constitute the same criminal conduct.  And, the court's comment does not 

undermine legislative sentencing authority. Accordingly, Mr. Robinson fails to show a

separation of powers violation.    

       Affirmed.     

       A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                    _______________________________
                                                    Brown, J.

WE CONCUR:

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State v. Robinson   

______________________________                      ________________________________
Kulik, C.J.                                         Siddoway, J.

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