                                                 This opinion Was filed fOr record
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         GMiBP ju&rica            j                   SUSAN L. CARLSON
                                                    SUPREME COURT CLERK




      IN THE SUPREME COURT OF THE STATE OF WASHINGTON




    STATE OF WASHINGTON,
                                                 No. 95105-5
                              Respondent,

           V.                                    En Banc


    GARY BRUCE FARNWORTHII,

                             Petitioner.
                                                                DEC 0 6 2018
                                                 Filed



           JOHNSON,J.—This case concerns whether a prosecutor properly

    aggregated numerous offenses that would, individually, constitute theft in the

    second degree into two counts oftheft in the first degree. Our common law

    standard for bringing multiple aggregated counts differs from that created under

    ROW 9A.56.010(21)(c). At issue here is whether the statutory standard or the

    common law standard for aggregating theft charges applies in this case and

    whether the State properly aggregated charges under that standard. The superior

    court allowed the State to aggregate charges against Gary Famworth II into two
State V. Farnworth, No. 95105-5




counts of theft in the first degree, but in a fractured opinion, the Court of Appeals

reversed and remanded to vacate one count and to resentence Mr. Farnworth. We

reverse the Court of Appeals and hold that, under the facts of this case, the State

acted within its discretion when it aggregated Mr. Farnworth's offenses into two

counts.


                                          FACTS

       In June 2015, the State of Washington charged Gary Farnworth II with three

counts oftheft in the first degree.' The prosecution alleged that Mr. Farnworth

defrauded the State by falsely reporting to the Department of Labor and Industries

that he was not working, in order to obtain workers' compensation checks. The

two counts oftheft at issue covered two time periods during which Mr.

Farnworth's acts occurred and that were separated by an almost monthlong period

when he was recovering from a back surgery and was entitled to workers'

compensation.

       Each check cashed during the periods when he was not eligible for benefits

would, individually, support only a charge of theft in the second degree, as they

exceeded $750, but not $5,000.^ See RCW 9A.56.040(l)(a). However,the State



      'Mr. Farnworth was acquitted of the first count, which involved only one check.

       ^ The value of the checks was generally between $1,600 and $1,700.
State V. Farnworth, No. 95105-5




aggregated the alleged thefts into two charges that each met the $5,000 threshold

for theft in the first degree. See RCW 9A.56.030(l)(a). In its second amended

information, the State explained this decision, stating that each ofthe counts was

"based on a series oftransactions which are part of a criminal episode or a

common scheme or plan, and which crimes were so closely connected in respect to

time, place, and occasion that it would be difficult to separate proof of one charge

from proof ofthe other." Clerk's Papers at 463.

       At trial, Mr. Farnworth moved to dismiss the two aggregated charges under

RCW 9A.56.010(21)(c), reljdng on State v. Hoyt,79 Wn. App. 494,904 P.2d 779

(1995). He claimed that when considered as daily losses, his actions constituted

only thefts in the third degree and that RCW 9A.56.010(21)(c)limited the

prosecutor to either bringing individual charges oftheft in the third degree or

aggregating the charges into a single count for each common scheme or plan. He

further asserted that his alleged crimes would constitute only one scheme or plan,

justifying only a single count. The trial court denied Mr. Farnworth's motion.

       The jury found Mr. Farnworth guilty ofthe two aggregated counts of theft in

the first degree. He moved for a new trial, asserting that the court erred when it

denied his motion to dismiss the aggregated charges. The court denied Mr.

Famworth's motion and sentenced him to two concurrent 12-month sentences with
State V. Farnworth, No. 95105-5




work release. Mr. Farnworth appealed and once again challenged the State's

authority to aggregate the charges into two separate counts oftheft in the first

degree. The Court of Appeals came to a three-way split on the issue, with two

judges in favor of reversing the trial court, but for different reasons. The court

reversed and remanded to vacate one of the convictions and for resentencing. State

V. Farnworth, 199 Wn. App. 185, 220, 398 P.3d 1172(2017). We granted review.

State V. Farnworth, 190 Wn.2d 1007, 413 P.3d 1033 (2018).

                                        ISSUE


       Whether the State properly aggregated the charges against Mr. Farnworth
into two counts oftheft in the first degree.

                                     ANALYSIS


      In the Revised Code of Washington, theft is divided into three separate

degrees of severity based on the value of the property or services appropriated. A

person is guilty of theft in the first degree if he or she commits theft of property or

services that exceed $5,000 in value; theft in the second degree for property or

services over $750 but not exceeding $5,000; and theft in the third degree for

property or services not exceeding $750. RCW 9A.56.030,.040,.050.

       Where an accused has committed a number ofthefts against a single person

or entity, our cases establish that prosecutors have a degree of discretion to treat

the crimes as a continuing offense and to aggregate the value ofthe property
State V. Farnworth, No. 95105-5




involved. See State v. Linden, 171 Wash. 92, 102-03, 17 P.2d 635 (1932)

(upholding prosecutor's aggregation of multiple underlying thefts); State v. Dix, 33

Wash. 405, 74 P. 570(1903)(allowing a single aggregated charge for an ongoing

embezzlement scheme). Thefts can be aggregated when "the successive takings

are the result of a single, continuing criminal impulse or intent and are pursuant to

the execution of a general larcenous scheme or plan." State v. Vining, 2 Wn. App.

802, 808, 472 P.2d 564(1970). But aggregation into a single count is not required;

the prosecutor can choose to bring individual charges or can aggregate the

underlying offenses into multiple counts.

       In Linden, relying exclusively on common law principles, this court upheld

the State's decision to charge the defendant with three aggregated counts of grand

larceny, each of which was based on separate periods of time during which he

appropriated funds from his place of employment. Linden argued that the court

"should have required the prosecuting attorney to elect upon which one ofthe three

counts" he should be tried,"based on the assumption that the appropriations . . .

constituted a continuous offense, and . . . could not be grouped in three separate

periods and a count based upon each period." Linden, 171 Wash, at 102. We

rejected this assertion and held,"'Where the periods covered by the two

indictments are entirely separate and distinct, a prosecution under one will not bar
State V. Farnworth, No. 95105-5




a prosecution under the other.'" Linden, 171 Wash, at 103 (emphasis added)

(quoting 16 C.J. Criminal Law § 446, at 268 (1918)).

       Since Linden, few cases have analyzed the propriety of bringing multiple

aggregated charges under the common law. In State v. Perkerewicz, the State

alleged that the defendant stole money from a cash register over the course of one

month, reset the cash register at the end of that month such that it appeared to

balance out, and then engaged in the same scheme for another month. 4 Wn. App.

937, 941-42, 486 P.2d 97(1971). The State charged her with two aggregated

counts of grand larceny, with each count covering one month of appropriations.

The defendant asserted that the State's decision to split the charges was arbitrary;

however, the Court of Appeals rejected this argument. The court, giving particular

weight to the fact that Perkerewicz had to reset the cash register back to zero at the

beginning of the second month, held the charges were supported by the analysis

applied in Linden because they covered separate and distinct time periods.

Perkerewicz, 4 Wn. App. at 942.

       In 1975, the legislature enacted what is now RCW 9A.56.010(2l)(c), which

statutorily authorizes prosecutors to aggregate offenses that would usually

constitute only theft in the third degree and use the combined value of the property

involved in the offenses to meet the threshold for second or first degree theft. In
State V. Farnworth,'Ho. 951^5-5




such instances, the prosecutor may aggregate only thefts that are part of a single

"criminal episode or common scheme or plan" into a single charge. See Hoyt, 79

Wn. App. at 497 (affirming the trial court's dismissal of multiple aggregated

counts oftheft in the first degree that were part of a single common scheme).

Importantly, this statute applies only for aggregating offenses that constitute theft

in the third degree. The question, then, becomes to what extent the common law

standard still remains for aggregating charges oftheft in the second degree.

       Washington is governed by the common law to the extent it is not

inconsistent either with the United States or Washington Constitutions, or with

federal or state law. RCW 4.04.010. The legislature maintains the power to

supersede, abrogate, or modify the common law by statute, but we have been

hesitant to recognize an abrogation "absent clear evidence ofthe legislature's

intent to deviate from the corhmon law." Potter v. Wash. State Patrol, 165 Wn.2d

67, 77, 196 P.3d 691 (2008). We have held that a statute abrogates the common

law only when "the provisions of a . . . statute are so inconsistent with and

repugnant to the prior common law that both cannot simultaneously be in force."

State ex rel. Madden v. Pub. Util. Dist. No. 1, 83 Wn.2d 219, 222, 517 P.2d 585

(1973). Any statute in derogation ofthe common law "must be strictly construed,"

and we will not find the legislature intended that the common law be changed
State V. Farnworth, No. 95105-5




unless such an intent "appears with clarity." McNeal v. Allen, 95 Wn.2d 265, 269,

621 P.2d 1285 (1980). The requirement under RCW 9A.56.010(21)(c) that

prosecutors bring only a single aggregated count for each common scheme or plan

conflicts with our holding in Linden allowing for multiple counts within "separate

and distinct" time periods. 171 Wash, at 102. However, because the statute only

expressly applies to aggregating charges oftheft in the third degree, it implicates

Linden to the extent the holding would have applied to such charges. The statute

makes no mention of charges oftheft in the second degree and we find no clear

indication of legislative intent that the statute extends beyond its express terms.

Thus, under our rule of strict construction, RCW 9A.56.010(21)(c) does not

abrogate the common law standard with regard to aggregating charges oftheft in

the second degree.^

         The State treated Mr. Farnworth's underlying offenses as instances oftheft

in the second degree based on the value of the checks he wrongfully obtained. Mr.

Farnworth argues that the charges must be based on daily losses, rather than the

value of each check, such that his underlying offenses would constitute theft in the



         ^ Judge Korsmo reached a similar conclusion in his dissent; however, he focused on the
fact that theft (then referred to as larceny) has been codified in Washington since at least 1909,
thus countering Judge Pennell's assertion that the codification of theft completely abrogated
Linden. Farnworth, 199 Wn. App. at 228 n.l 1 (Korsmo, J., dissenting); Laws of 1909, ch. 249,
§ 349.
State V. Farnworth, No. 95105-5




third degree and would be subject to the aggregation statute. Mr. Farnworth

provides no support for this assertion, and we see no reason why the State would

be required to treat his offenses in this manner. We hold that his underlying

offenses, on their own, would constitute theft in the second degree, and

aggregation of the charges is governed by the common law.

       Under the common law standard, as discussed above, a prosecutor can

aggregate the charges into multiple counts so long as they cover "separate and

distinct" periods of time. Linden, 171 Wash, at 102. However,this is not the only

limitation on the State's charging discretion; that discretion is also subject to

double jeopardy protections in the Fourteenth Amendment to the United States

Constitution and article I, section 9 of the Washington Constitution. Consistent

with these protections, an ongoing offense may not be arbitrarily divided up to

support separate charges such that a defendant is, for all intents and purposes,

punished twice for the same offense. In re Snow, 120 U.S. 274, 282, 7 S. Ct. 556,

30 L. Ed. 658 (1887); see also Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221,

53 L. Ed. 2d 187(1977)(holding that "[t]he Double Jeopardy Clause is not such a

fragile guarantee that prosecutors can avoid its limitations by the simple expedient

of dividing a single crime into a series oftemporal or spatial units"). Thus, where

the State has chosen to aggregate charges, treating a defendant's thefts as a
State V. Farnworth,1:^0.951^5-5




"general larcenous scheme or plan," Vining, 2 Wn. App. at 808, separating the

aggregated charges into multiple counts cannot be performed in an arbitrary

fashion. Some factual basis must justify the separate charges, such as in

Perkerewicz, where the defendant had to reset the cash register, forcing her to

begin her scheme anew. 4 Wn. App at 941-43.

       The facts of this case support the State's decision to bring two separate

counts. The underlying offenses occurred during two time periods, without any

overlap, with an almost monthlong intervening period. During that intervening

period, Mr. Famworth was not defrauding the State to obtain the benefits.

However, when he returned to work and his workers' compensation eligibility

ended, he once again engaged in false reporting to receive benefits to which he was

not entitled. This intervening period justifies the State's decision to split the

aggregated charges. The superior court correctly denied Mr. Farnworth's request

to dismiss the aggregated charges.

                                   CONCLUSION


       We reverse the Court of Appeals and hold, under the facts here, the State

acted within its discretion when it aggregated Mr. Farnworth's offenses into two




                                           10
State V. Farnworth, No. 95105-5




separate counts of theft in the first degree.




WE CONCUR:




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