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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 75704-1-1
Respondent,
V. UNPUBLISHED OPINION
ALLAN SHERBURNE ZARTUCHE,
Appellant. FILED: April 16, 2018
SCHINDLER, J. — The State charged Allan Sherburne Zartuche in Skagit
County with three counts of identity theft in the second degree in Mount Vernon
on July 20, 2015; one count of identity theft in the second degree in Everett on
July 21, 2015; and possession of stolen property in the second degree. The jury
convicted Zartuche as charged. Zartuche seeks dismissal of identity theft in the
second degree in Everett on July 21 based on improper venue and reversal of
possession of stolen property in the second degree because the court did not
give a unanimity instruction. Zartuche also asserts, and the State concedes, that
his attorney provided ineffective assistance of counsel by failing to argue at
sentencing that the three counts of identity theft on July 20 constitute the same
criminal conduct. Because the identity theft statute, RCW 9.35.020(8), states the
crime is committed where the victim resides, the venue was proper in Skagit
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County. And because the record shows a continuing course of conduct, the
court did not err in failing to give a unanimity instruction for possession of stolen
property. We affirm the convictions but remand for resentencing.
Criminal Charges
Janetta Liddle lives in Anacortes in Skagit County. On July 19, 2015,
Liddle left in her car her wallet with a U.S. Bank debit card, driver's license, and
social security card. On July 21, Liddle discovered the car unlocked and the
wallet missing. Liddle called the police to report the stolen wallet and went to
U.S. Bank to report the debit card stolen.
U.S. Bank teller Jeff McInnis printed out a list of pending transactions.
The printout showed one purchase and two declined transactions at Burlington
Coat Factory in Mount Vernon and one purchase at the Wendy's restaurant in
Mount Vernon on July 20. On July 21, there was one purchase at the Goodwill in
Everett in Snohomish County and a declined transaction at Moonlight Smoke and
Grocery in Everett. Liddle filed a fraud claim for the unauthorized transactions.
The Anacortes Police Department obtained security videos from
Burlington Coat Factory and the Goodwill. The July 20 security video from
Burlington Coat Factory shows two men, later identified as Thomas Allen
Christian and Allan Sherburne Zartuche, standing at a cash register. Christian
and Zartuche use a debit card to make three different transactions. The July 21
security video from the Goodwill shows Zartuche taking a debit card out of his
wallet to purchase jeans and socks.
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Detective Corporal Terrence Clifford interviewed Christian. Detective
Clifford contacted the Island Country Sherriff's Office about Allan Zartuche.
Detective Clifford learned Zartuche had been released from the Island County jail
on July 20 at 6:24 a.m.
Detective Clifford interviewed Zartuche about the stolen debit card.
Zartuche admitted he went to the Burlington Coat Factory in Mount Vernon with
Christian on July 20 but denied going to the Goodwill in Everett on July 21.
The State charged Christian and Zartuche in Skagit County with four
counts of identity theft in the second degree and one count of theft in the second
degree. The court granted a motion to sever the trial on the charges against
Christian and Zartuche. The State amended the information to charge Zartuche
with three counts of identity theft in the second degree in Mount Vernon "on or
about July 20," one count of identity theft in the second degree in Everett "on or
about July 21," and one count of possession of stolen property in the second
degree "[o]n or about and between July 20, 2015 and July 21, 2015."
Zartuche pleaded not guilty. The defense asserted Zartuche did not know
Christian used a stolen debit card at Burlington Coat Factory on July 20.
Zartuche denied he was at the Goodwill in Everett on July 21.
Trial
The State called several witnesses to testify at trial, including Liddle,
Burlington Coat Factory loss prevention associate Cody Littlefield, Goodwill loss
prevention manager Patrick Courteau, and Detective Clifford. The court admitted
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into evidence over 30 exhibits, including the security videos from Burlington Coat
Factory and Goodwill, still photographs taken from the videos, and store receipts.
Liddle testified she lives in Anacortes. Liddle testified she did not make
any purchases at Burlington Coat Factory or the Wendy's in Mount Vernon on
July 20 and did not make any purchases at Goodwill or Moonlight Smoke and
Grocery in Everett on July 21. Liddle said she did not give anyone permission to
use her debit card.
The U.S. Bank records show the use of Liddle's card for one purchase
and two declined transactions at the Burlington Coat Factory in Mount Vernon.
Burlington Coat Factory loss prevention associate Littlefield described the still
photographs from the security video. The photographs on July 20 show Christian
and Zartuche at a cash register for more than 25 minutes. Christian and
Zartuche first approach the register at 11:39 a.m. and sort through items in the
cart to "choose what they do and do not want to purchase." The photographs
show Zartuche take a white hat off his head and put the hat on the counter as
part of the purchase. The purchase totaled $109.06. After the transaction,
Zartuche puts the white hat back on his head.
The photographs show Christian grabs a $100 gift card from a rack as part
of a second transaction. At 11:57 a.m., Christian "swipe[s] the card as payment"
for the second transaction for $213.39 but the card is declined. The store clerk
"remove[s]the gift card from the attempted purchase" and Christian tries again.
Christian "swipes the card again" but the transaction is declined. Christian then
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uses a "different card from his wallet" to make a purchase for $97.19 and
Zartuche and Christian leave the store.
Bank records showed a purchase with Liddle's debit card at the Wendy's
in Mount Vernon. Littlefield testified there is a Wendy's located "right across the
parking lot" from Burlington Coat Factory.
U.S. Bank records showed Liddle's debit card was used to make a
purchase at the Goodwill store in Everett on July 21. Goodwill loss prevention
manager Courteau described the still photographs from the July 21 security
video. The photographs show Zartuche enter the store at 9:18 a.m. Zartuche
selects two pairs of jeans and three pairs of socks. The photographs showed
Zartuche "pulled out his wallet, and then pulled out a card to swipe through the
payment system" and signed for the amount owed. After the purchase, Zartuche
"put[s] the card back into his wallet" and leaves the store.
Detective Clifford testified that in the security videos, Zartuche is wearing
a backpack with a "distinct design," gray shoes with "blue outlines," a watch with
a large "light-colored face," and a white hat "angled up to the side." Detective
Clifford described the "distinct design" on the backpack:
Some portions of it were black or another similar dark color. And
then there were also portions of the backpack that were gray.
On the halter strap, the little part that pops out the top and
you can carry it with, it appeared to be yellowish in color, and a
yellowish or gray strap that hung downward from the bottom center
portion of the backpack.
It also had white, black, and gray straps on either side of it,
towards the lower portion. It looked like maybe the straps were
used to secure the backpack around someone's waist area.
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Detective Clifford notes that in the Burlington Coat Factory security video,
Zartuche is "wearing the same white hat that he's wearing the next day; wearing
it in the same manner, pointing slightly upward,just like in the Goodwill."
Zartuche told Detective Clifford that he "didn't know a car was broken into,
and he didn't know anything was stolen." Zartuche said July 20"'was the only
day 1 was up in Mount Vernon.'"
Detective Clifford testified that when he showed Zartuche a still
photograph from the Burlington Coat Factory security video, Zartuche identified
himself as the person in the photograph. Zartuche said, "'I see me and
[Christian] going inside.'" Zartuche told Detective Clifford that Christian "'had
his mom's credit card'"and was going shopping. Zartuche later said Christian
used a gift card to purchase the items at Burlington Coat Factory. Zartuche told
Detective Clifford he was not with Christian "physically" when Christian
purchased the items, but he was "still at the store." Zartuche said he saw
Christian pay with "whatever card [Christian] had." Zartuche denied "ever getting
anything from Burlington Coat Factory." Zartuche told Detective Clifford that after
leaving Burlington Coat Factory, he went to the Department of Social and Health
Services office in Mount Vernon and then "went home" to Everett.
Zartuche told Detective Clifford that the Goodwill was "three hours away in
terms of walking distance"from where he lived. Detective Clifford testified that
when Zartuche told him about the Goodwill, he "had not mentioned Goodwill to
[Zartuche] yet." Zartuche later told Detective Clifford he "was sure he'd not been"
to Goodwill on July 21. When Detective Clifford showed Zartuche a still
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photograph from the Goodwill security video, Zartuche said it was not him and
"he did not have clothes like [that] person." Zartuche told Detective Clifford the
photograph showed "a random person that looked like him...[w]ith the victim's
credit card." When Detective Clifford asked Zartuche if he "ever had possession
of the card," Zartuche "appeared visibly nervous," "started touching his face and
playing with his facial hair," and eventually said, "[N]o." Zartuche did not testify.
The court instructed the jury that the State had the burden of proving
beyond a reasonable doubt that Zartuche acted as a principal or an accomplice
in the commission of the three counts of identity theft in the second degree in
Mount Vernon on July 20. By contrast, the court instructed the jury that the State
had the burden of proving beyond a reasonable doubt that Zartuche acted as the
principal for the crime of identity theft on July 21. During closing argument, the
State argued Zartuche was an accomplice to the three transactions at the
Burlington Coat Factory on July 20. The State argued Zartuche acted alone at
the Goodwill on July 21 and the evidence showed Zartuche was in possession of
the stolen debit card from July 20 to 21.
The jury found Zartuche guilty as charged. By special verdict, the jury
found Zartuche committed the crimes "shortly after being released from
incarceration."
Before sentencing, the State asserted the offender score "on each of
these convictions is [9]" because Zartuche "has five prior felony convictions and
was convicted of five additional felony charges in this case." With an offender
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No. 75704-1-1/8
score of 9, the court imposed a concurrent 51-month sentence for the four
identity theft convictions and possession of stolen property in the second degree.
Venue
Zartuche contends the court erred by denying his motion to dismiss the
charge of identity theft in the second degree at the Goodwill in Everett on July 21.
Zartuche argues venue was proper only in Snohomish County and not in Skagit
County.
Pretrial, defense counsel moved to dismiss the charge because "the
alleged act occurred in Everett." The prosecutor asserted that under the identity
theft statute, RCW 9.35.020(8), venue is proper in Skagit County "because of Ms.
Liddle's residing in Anacortes." The court denied the motion to dismiss the
charge.
Article 1, section 22 of the Washington Constitution provides, "In criminal
prosecutions the accused shall have the right. .. to have a speedy public trial by
an impartial jury of the county in which the offense is charged to have been
committed." CrR 5.1(a) states that an action shall be commenced either "(1)[i]n
the county where the offense was committed" or "(2)[i]n any county wherein an
element of the offense was committed or occurred." The identity theft statute
expressly states the crime of identity theft in the second degree is "committed in
any locality where the person whose means of identification or financial
information was appropriated resides." RCW 9.35.020(8).1 Because the
unrebutted evidence establishes Liddle resides in Anacortes, venue was proper
in Skagit County.
I Emphasis added.
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Unanimity Instruction
Zartuche contends the court violated his constitutional right to a
unanimous jury by failing to give a unanimity instruction on the charge of
possession of stolen property in the second degree. Zartuche argues the State
alleged that he possessed the debit card at different times and places and did not
elect which act constitutes possession of stolen property. The State argues the
court did not err in failing to give a unanimity instruction because the evidence
established a continuing course of conduct that Zartuche was in possession of
the debit card on July 20 and July 21.
Criminal defendants in Washington have a right to a unanimous jury
verdict. WASH. CONST. art. 1, § 21; State v. Ortega-Martinez, 124 Wn.2d 702,
707, 881 P.2d 231 (1994). When the State presents evidence of several acts
that could constitute the crime charged, the jury must unanimously agree on
which act constitutes the crime. State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d
105 (1988). To ensure jury unanimity, either the State must elect the act on
which it relies or the court must instruct the jury to agree unanimously that one
particular act has been proved beyond a reasonable doubt. Kitchen, 110 Wn.2d
at 411; see also State v. Petrich, 101 Wn.2d 566, 572,683 P.2d 173(1984).
However, no election or unanimity instruction is required if the evidence
establishes a "continuing course of conduct." Petrich, 101 Wn.2d at 571.
We review the facts in a commonsense manner to determine whether
criminal acts constitute a continuing course of conduct. Petrich, 101 Wn.2d at
571. Evidence that the defendant engaged "in a series of actions intended to
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secure the same objective supports the characterization of those actions as a
continuing course of conduct." State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899
P.2d 1294 (1995).
Zartuche cites State v. Brooks, 77 Wn. App. 516, 892 P.2d 1099(1995), to
argue the court erred by failing to give a unanimity instruction. In Brooks, the
stated charged the defendant with two counts of second degree burglary.
Brooks, 77 Wn. App. at 519. The jury found the defendant guilty of one count of
second degree burglary. The evidence showed multiple burglaries took place in
a pump house and a storage shed but the State "never elected which of the
alleged burglaries it was relying on to convict." Brooks, 77 Wn. App. at 520.
Here, the State charged Zartuche with possession of stolen property in the
second degree "[o]n or about and between July 20, 2015 and July 21, 2015."
Unlike in Brooks, the evidence showed Zartuche engaged in a continuing course
of conduct to secure the same objective. The July 20 security video from
Burlington Coat Factory showed Christian and Zartuche using a debit card until
approximately 12:00 p.m. to make purchases. After leaving Mount Vernon,
Zartuche went home to Everett. The July 21 Goodwill security video showed
Zartuche with a debit card on July 21. Zartuche takes the debit card out of his
wallet to make a purchase at 9:48 a.m. The bank records show Zartuche used
Liddle's debit card to make the purchase. The security videos, bank records, and
testimony establish Zartuche was in possession of the stolen debit card from
some time after 12:00 p.m. on July 20 and on July 21. The court did not err in
failing to give a unanimity instruction for possession of stolen property.
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Sentencing
Zartuche asserts that his attorney provided ineffective assistance of
counsel at sentencing by failing to argue the three counts of identity theft on July
20 constitute the same criminal conduct.
To establish a claim of ineffective assistance of counsel, Zartuche must
show counsel's performance was deficient and resulted in prejudice. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2Q52, 80 L. Ed. 2d 674 (1984).
"The failure to make a same criminal conduct argument is prejudicial if the
defendant shows that with the argument the sentence would have differed."
State v. Munoz-Rivera, 190 Wn. App. 870, 887, 361 P.3d 182(2015)(citing State
v. Beasley, 126 Wn. App. 670, 686, 109 P.3d 849(2005)).
We review a determination of same criminal conduct for abuse of
discretion or misapplication of the law. State v. Graciano, 176 Wn.2d 531, 536,
295 P.3d 219(2013). "[W]hen the record supports only one conclusion on
whether crimes constitute the 'same criminal conduct,' a sentencing court abuses
its discretion in arriving at a contrary result." Graciano, 176 Wn.2d at 537-38.
The identity theft statute states that each crime "shall be punished
separately... unless it is the same criminal conduct as any other crime, under
RCW 9.94A.589." RCW 9.35.020(4). Under RCW 9.94A.589(1)(a), offenses will
count as the "same criminal conduct" if there is the "same criminal intent" and the
crimes are "committed at the same time and place" and "involve the same
victim."
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The State concedes the three counts of identity theft on July 20 constitute
the same criminal conduct. We accept the State's concession as well taken and
conclude the failure to argue same criminal conduct was prejudicial.
We affirm the jury convictions but remand for resentencing.
WE CONCUR:
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