                                                                          FILED 

                                                                        MAY 21, 2013 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )        No. 30786-7-111
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
DAVID MICHAEL LUST,                           )        PUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, J. - David Michael Lust appeals his six second degree theft convictions.

He contends the trial court violated double jeopardy principles by (1) convicting him

based on his guilty plea of third degree theft for stealing a purse, and (2) convicting him

following a bench trial of second degree thefts for stealing six credit and debit cards

contained in the purse. We disagree, and affirm.

                                          FACTS

       In October 2011, Mr. Lust took a tavern patron's purse without her permission

and removed six credit and debit cards from a wallet inside. For stealing the purse, the

State charged him under RCW 9A.56.050(1 )(a) with one count of third degree theft of

property valued under $750. For stealing the credit and debit cards, the State charged

him under former RCW 9A.56.040(1)(c) (2009) with six counts of second degree theft of
No. 30786-7-111
State v. Lust

an access device. He pleaded guilty to the third degree theft at arraignment and the

trial court found him guilty of the second degree thefts at a bench trial. He appealed.

                                       ANALYSIS

      The issue is whether, considering the above facts, Mr. Lust's second degree theft

convictions violate double jeopardy principles. 1 He contends the third degree theft and

second degree thefts are legally and factually identical because access devices are

generic property and proving he stole the purse necessarily proves he stole the credit

and debit cards inside. We review alleged double jeopardy violations de novo. State v.

Jackman, 156 Wn.2d 736, 746,132 P.3d 136 (2006).

      The federal double jeopardy clause provides, "No person shall ... be subject for

the same offense to be twice put in jeopardy of life or limb ...." U.S. CONST. amend.

V. 2 This provision bars "multiple punishments for the same offense," North Carolina v.

Pearce, 395 U.S. 711,717,89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other

grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989),

absent contrary "clearly expressed legislative intent," Missouri v. Hunter, 459 U.S. 359,

368, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983) (clarifying Whalen v. United States, 445

U.S. 684, 100 S. Ct. 1432,63 L. Ed. 2d 715 (1980); Albemaz v. United States, 450 U.S.

333,101 S. Ct. 1137,67 L. Ed. 2d 275 (1981)).



       1Considering our holding, we do not address the appropriate remedy for a
doublejeopardy violation under these facts.
        The state double jeopardy clause provides, "No person shall ... be twice put in
jeopardy for the same offense." CONST. art. I, § 9. We interpret the state provision the
same as the federal provision because they "are identical in thought, substance, and
purpose." State v. Schoel, 54 Wn.2d 388,391,341 P.2d 481 (1959).

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No. 30786-7-111
State v. Lust

       The trial court convicted Mr. Lust of one act violating two statutes. 3 See former

RCW 9A.56.040(1)(c); RCW 9A.56.050(1)(a). The statutes do not expressly authorize

multiple punishments for one act. See former RCW 9A.56.040(1 )(c); RCW

9A.56.050(1)(a); State v. Calle, 125 Wn.2d 769,776-77,888 P.2d 155 (1995) (citing

Whalen, 445 U.S. at 688-89; Albemaz, 450 U.S. at 336-37). Conversely, the statutes

contain no indicia of legislative intent to preclude multiple punishments for one act. See

former RCW 9A.56.040(1)(c); RCW 9A.56.050(1)(a); State v. Baldwin, 150 Wn.2d 448,

455-56,78 P.3d 1005 (2003) (citing Calle, 125 Wn.2d at 778-80). Therefore, we must

apply the "same evidence" rule of statutory construction to determine whether the

statutes really proscribe the same offense. Blockburger v. United States, 284 U.S. 299,

304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

       The same evidence rule considers "whether each provision requires proof of a

fact which the other does not." Id. Offenses are the same if they are "identical both in

fact and in law." State v. Reiff, 14 Wash. 664, 667, 45 P. 318 (1896); see State v.

Roybal, 82 Wn.2d 577, 581,512 P.2d 718 (1973). But they are different "[iJf there is an

element in each offense which is not included in the other, and proof of one offense

would not necessarily also prove the other." State v. VIado vic, 99 Wn.2d 413, 423, 662

P.2d 853 (1983) (citing Roybal, 82 Wn.2d at 581). This requires viewing the elements




       3 Therefore, we reject the State's request to utilize the "unit of prosecution" test,
which applies solely where the trial court convicts a defendant of one act violating one
statute multiple times simultaneously. See State v. Adel, 136 Wn.2d 629, 633-34, 965
P.2d 1072 (1998) (citing Bell v. United States, 349 U.S. 81,83,75 S. Ct. 620,99 L. Ed.
905 (1955».

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State v. Lust

"as charged and proved," not abstractly. State v. Freeman, 153 Wn.2d 765, 777, 108

P.3d 753 (2005).

      A person commits theft if he or she "wrongfully obtain[s] or exert[sJ unauthorized

control over the property ... of another ... with intent to deprive him or her of such

property." RCW 9A.56.020(1)(a); accord Clerk's Papers (CP) at 23,55-58,70. Third

degree theft applies if a person "commits theft of property ... which ... does not

exceed seven hundred fifty dollars in value." RCW 9A.56.050(1)(a); accord CP at 23,

56. Value is "the market value of the property ... at the time and in the approximate

area of the criminal act." RCW 9A.56.010(21)(a). Second degree theft applies if a

person "commits theft of ... [aJn access device." Former RCW 9A.56.040(1)(c); accord

CP at 55-58, 70. An access device is "any card, plate, code, account number, or other

means of account access that can be used ... to obtain money, goods, services, or

anything else of value." RCW 9A.56.010(1).

       Here, the theft statute required proof Mr. Lust intended to deprive the tavern

patron of the purse when he took it without her permission and he separately intended

to deprive her of the credit and debit cards when he removed them from the wallet

inside. While the third degree theft statute required proof the purse was valued under

$750, the second degree theft statute did not require this valuation for the credit and

debit cards. And, while the second degree theft statute required proof the credit and

debit cards were access devices, the third degree theft statute did not require this

characteristic for the purse. Thus, as charged, each offense contains an element not

included in the other and proving one offense does not necessarily prove the other.


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No. 30786-7-111
State v. Lust

Theft of property valued under $750 and theft of an access device are neither legally

nor factually identical here. It follows that Mr. Lust's convictions for both under RCW

9A.56.050(1)(a) and former RCW 9A.56.040(1)(c) did not violate the double jeopardy

prohibition.

       In one sentence of his reply brief, Mr. Lust appears to argue for the first time that

theft of the credit and debit cards merged with theft of the purse. While we could reject

his merger argument because he did not raise it in his opening brief, we consider it to

the extent it aids in determining legislative intent and to the extent it is intertwined with

the same evidence rule analysis. See RAP 10.3(c); Cowiche Canyon Conservancy v.

Bosley, 118 Wn.2d 801, 809,828 P.2d 549 (1992) ("An issue raised and argued for the

first time in a reply brief is too late to warrant consideration."); Freeman, 153 Wn.2d at

772 ("[I]f applicable, the merger doctrine is another aid in determining legislative intent,

even when two crimes have formally different elements.").

       Mr. Lust relies on Senelus v. State, 994 SO.2d 493 (Fla. Dist. Ct. App. 2008),

which cites Gorday v. State, 907 SO.2d 640 (Fla. Dist. Ct. App. 2005). The latter case·

held convictions for both robbery of a purse and theft of the credit cards inside violated

a statutorily codified double jeopardy .prohibition because the defendant committed each

offense "in one swift action" and they were "merely degree variants of the same core

offense." Gorday, 907 So.2d at 644-45 (applying FLA. STAT. § 775.021 (4)(b)(2);

Johnson v. State, 597 So.2d 798 (Fla. 1992». But our Supreme Court "has repeatedly

rejected the notion that offenses committed during a single transaction are necessarily

the same offense." Vladovic, 99 Wn.2d at 423 (internal quotation marks omitted).


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No. 30786-7-111
State v. Lust

Further, our merger doctrine applies solely where the legislature has clearly indicated

the degree of one offense will be elevated if accompanied by conduct constituting a

separate offense. Jd. at 420-21. The degree for theft of property valued under $750 is

not elevated if accompanied by a separate theft of an access device. RCW

9A.56.050(1)(a). Similarly, the degree for theft of an access device is not elevated if

accompanied by a separate theft of property valued under $750. Former RCW

9A.56.040(1)(c). Mr. Lust's merger argument is unpersuasive.

       Given our analysis, we conclude Mr. Lust's second degree theft convictions do

not violate the double jeopardy prohibition even though he previously pleaded guilty to

third degree theft.

       Affirmed.



                                                 Brown, J.

WE CONCUR:



 orsmo, C.J.                                     Kulik, J.              I   I~'



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