                                                              FILED
                                                               APPEALS ON I
                                                     C,50,1" OF VIAStiltIGIOg
                                                      STATE OF
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                                                       nit ttl'it




      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                V.                               UNPUBLISHED OPINION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
No. 75704-1-1/2

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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No. 75704-1-1/3

        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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No. 75704-1-1/4

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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No. 75704-1-1/5

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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No, 75704-1-1/6

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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No. 75704-1-1/7

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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No. 75704-1-1/9

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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No. 75704-1-1/10

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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No. 75704-1-1/11

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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No. 75704-1-1/12

      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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