State Of Washington v. Kyle Smith ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
February 11, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51788-4-II
Respondent,
v.
KYLE ALEXANDER SMITH, UNPUBLISHED OPINION
Appellant.
GLASGOW, J. — Kyle Alexander Smith sold three junk cars to Skylar Askay for $400. Two
of the cars were owned by Donald Guy and the third car was owned by Donald’s son, Maxwell
Guy.1 Smith did not have permission to sell the cars. As part of the sale, Smith signed Donald’s
name on three Department of Licensing affidavit of loss/release of interest documents.
The State charged Smith with three counts of motor vehicle theft, three counts of forgery,
and one count of trafficking in stolen property. A jury found Smith not guilty of the three counts
of motor vehicle theft, but it found him guilty of three counts of the lesser-included offense of third
degree theft. The jury also found Smith guilty of the three counts of forgery and one count of
trafficking in stolen property.
At sentencing, the trial court found that the two third degree theft convictions that were
related to the cars that Donald owned were the same offense for double jeopardy purposes. The
court therefore dismissed one of Smith’s third degree theft convictions. The trial court also found
1
Because Donald Guy and Maxwell Guy share the same last name, we use their first names for
clarity.
No. 51788-4-II
that the two convictions for forgery that were related to Donald’s cars were the same criminal
conduct for sentencing purposes. The trial court rejected Smith’s argument that the forgery and
trafficking in stolen property convictions encompassed the same criminal conduct.
Smith appeals from his sentence, asserting that the trial court erred by failing to find that
his forgery and trafficking in stolen property convictions encompassed the same criminal conduct.
Smith also requests that we remand to the trial court to correct a scrivener’s error on his judgment
and sentence that incorrectly lists his offender score as eight. Smith also contends that certain
legal financial obligations must be stricken from his judgment and sentence.
We conclude that the trial court did not abuse its discretion when it found that Smith’s
forgery and trafficking in stolen property convictions did not encompass the same criminal
conduct. We affirm the trial court’s calculation of Smith’s offender score. We accept the State’s
concession that Smith’s judgment and sentence contains a scrivener’s error and remand for a
correction of that error consistent with this opinion. We also accept the State’s concession that the
trial court improperly imposed a criminal filing fee, witness costs, sheriff service fees, and the jury
demand fees as part of Smith’s legal financial obligations and direct the trial court to strike these
fees and costs on remand. Finally, on remand, the trial court is also directed to strike Smith’s DNA
collection fee unless the State can show that his DNA has not been previously collected as a result
of a prior conviction.
FACTS
Donald owns property in Shelton where he stores junk cars, mobile homes, and camping
trailers. Donald befriended Smith, and the two men often worked on cars together. Smith agreed
to go to Donald’s property from time to time to keep an eye out for theft and vandalism.
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No. 51788-4-II
Smith asked his wife to place an advertisement on Craigslist offering to sell some of the
cars and parts on Donald’s property. Skylar Askay and Jean Fosnaugh are in a Subaru automobile
club where members swap parts and help each other rebuild cars. Askay responded to the
Craigslist advertisement.
Three days later, Askay and Fosnaugh met with Smith and went to Donald’s property to
view the vehicles. Smith told Askay that he had permission to sell the cars and car parts for Donald
to help Donald pay Smith for work he had done for him. Askay and Fosnaugh walked around the
property and looked at the cars for a few hours before going home.
The next day, Askay sent a text message to Smith telling Smith which cars he wanted to
purchase. The following weekend, Askay and Fosnaugh met Smith at Donald’s property. Askay
offered Smith $400 for a 1978 Subaru wagon, a 1980 Subaru Brat, and a 1987 Subaru RX. Smith
accepted the offer, and Askay gave him $400 in cash.
Askay asked Smith for paperwork releasing the owner’s interest in the cars to him. Smith
told Askay that he would get the paperwork from Donald. Smith left the property for a couple
hours while Askay and Fosnaugh worked on making the cars movable so they could place them
on a trailer to haul them away. When Smith returned, he gave Askay three Department of
Licensing affidavit of loss/release of interest documents. The signatures on each affidavit bore the
name “Donald A. Guy.” Exs. 1-3. Askay filled in the vehicle information on each affidavit.
Askay and Fosnaugh spent the next few days working on the cars to move them from
Donald’s property. They removed the 1980 Brat and 1987 RX from of the property. They also
dug the 1978 wagon out from where it had been wedged between trees and moved it near the
property entrance so they could pick it up later. Before they could pick up the wagon, the Mason
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County sheriff’s office contacted Askay and told him that he needed to return the vehicles to the
property. Askay returned the vehicles and identified Smith to law enforcement as the person who
had sold the vehicles to him. Smith had not obtained permission from Donald or Maxwell to sell
the cars.
The State charged Smith with three counts of motor vehicle theft, three counts of forgery,
and one count of first degree trafficking in stolen property. The matter proceeded to a jury trial
where witnesses testified consistently with the facts above.
Donald testified that he owned the 1980 Brat and 1978 wagon and that his son, Maxwell,
owned the 1987 RX. Donald said that he did not give Smith permission to sell the vehicles, he did
not sign the Department of Licensing affidavits, and Smith did not give him any money from the
sale of the vehicles.
Smith testified that Donald gave him permission to sell parts from some of his cars but not
the cars themselves. Smith said that his wife mistakenly placed an advertisement offering to sell
the cars. Smith said that he told Askay and Fosnaugh that only parts from some of the cars were
for sale and that parts from the 1987 RX and 1978 wagon were not for sale. According to Smith,
he told Askay and Fosnaugh to pull the parts they wanted, he would trust them not to steal anything,
and to contact him when they were done. Smith said that he met them at a tavern later that
afternoon and agreed to take $400 for the parts they took after checking that their truck did not
contain any other parts. Smith stated that he did not see Askay and Fosnaugh again.
Smith said he did not know that Askay and Fosnaugh returned to the property to haul away
the cars, and he denied providing Askay with the Department of Licensing affidavits. Smith said
that, after receiving $400 for the car parts, he went to a store with Donald to purchase $300 in
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products that Donald needed for a project. Donald told him to keep the remainder of the money
from the sale of the cars.
The jury returned verdicts finding Smith not guilty of the three counts of motor vehicle
theft but finding him guilty of the lesser-included offenses of third degree theft. The jury also
returned verdicts finding Smith guilty of all three counts of forgery and one count of first degree
trafficking in stolen property.
At sentencing, Smith argued that his three third degree theft convictions were one unit of
prosecution and moved to dismiss two of the convictions to avoid a double jeopardy violation. The
trial court found that the two third degree theft convictions related to Donald’s 1980 Brat and 1978
wagon were the same offense and dismissed one count of third degree theft. But the court did not
dismiss the remaining theft conviction because Maxwell was the victim of that theft.
Smith also argued at sentencing that his three forgery convictions and his first degree
trafficking in stolen property conviction were the same criminal conduct for purposes of
calculating his offender score. The trial court found that the two forgery convictions related to
Donald’s vehicles were the same criminal conduct but that the forgery related to Maxwell’s vehicle
was not. The trial court also found that the trafficking in stolen property conviction was not the
same criminal conduct as any of the forgery convictions because the intent necessary to commit
each crime was different. Forgery required an intent to injure or defraud while trafficking in stolen
property required an intent to sell or otherwise dispose of the property of another person.
Based on the trial court’s same criminal conduct findings, the parties agreed that Smith had
an offender score of seven, and the trial court imposed a sentence within the standard range for
that offender score. Although the parties agreed that Smith’s offender score was seven and the
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trial court sentenced him within the standard range for an offender score of seven, his judgment
and sentence reflects an offender score of eight. Clerk’s Papers (CP) at 117.
The trial court found that Smith had an ability to work after being released from
incarceration and imposed legal financial obligations that included a $200.00 criminal filing fee,
$373.97 for witness costs, $1,120.00 in sheriff service fees, a $250.00 jury demand fee, and a
$100.00 DNA collection fee. The trial court found Smith indigent for purposes of appeal. Smith
appeals his sentence.
ANALYSIS
I. SAME CRIMINAL CONDUCT
Smith contends that the trial court abused its discretion when it declined to find that his
three forgery convictions and his trafficking in stolen property conviction all encompassed the
same criminal conduct. In the alternative, Smith contends that the trial court abused its discretion
when it declined to find that his trafficking in stolen property conviction encompassed the same
criminal conduct as his forgery convictions that were related to Donald’s vehicles and also
separately encompassed the same criminal conduct as his forgery conviction related to Maxwell’s
vehicle. We disagree and conclude that the trial court acted within its discretion when it found
that Smith’s challenged offenses did not encompass the same criminal conduct.
RCW 9.94A.589(1)(a) provides that “if the court enters a finding that some or all of the
current offenses encompass the same criminal conduct then those current offenses shall be counted
as one crime.” Offenses encompass the same criminal conduct when they “require the same
criminal intent, are committed at the same time and place, and involve the same victim.”
Id. The absence of any of these elements precludes a same criminal conduct finding. State v.
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Porter, 133 Wash. 2d 177, 181, 942 P.2d 974 (1997). The defendant bears the burden of proving that
offenses encompass the same criminal conduct. State v. Aldana Graciano, 176 Wash. 2d 531, 539,
295 P.3d 219 (2013). The statute presumes separate criminal conduct, and its proviso is generally
construed narrowly, disfavoring claims of same criminal conduct. Porter, 133 Wash. 2d at 181.
We review a trial court’s same criminal conduct finding for abuse of discretion or
misapplication of law. Aldana Graciano, 176 Wash. 2d at 537. “Under this standard, when 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. But where the record
adequately supports either conclusion, the matter lies in the court’s discretion.” Id. at 537-38
(citation omitted).
The parties agreed that Smith’s crimes for forgery and trafficking in stolen property were
all committed at the same time and place. Accordingly, we address whether the crimes shared the
same victims and objective intent.
Smith argues that the same victim element is met here because his crimes of forgery and
trafficking in stolen property all involved the “same set of victims,” Askay, Donald, and Maxwell.
Br. of Appellant at 13. We disagree. Former RCW 9.94A.030(54) (2015) defined “victim” as
“any person who has sustained emotional, psychological, physical, or financial injury to person or
property as a direct result of the crime charged.” In State v. Walker, 143 Wash. App. 880, 891, 181
P.3d 31 (2008), we recognized that the victim of trafficking in stolen property is the person who
purchased the stolen property. Here, as the purchaser of stolen property, only Askay was a victim
of Smith’s trafficking in stolen property offense.
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No. 51788-4-II
In contrast, Askay, Donald, and Maxwell were all victims of Smith’s forgery offenses.
Askay was a victim of these offenses because he received the forged affidavits believing that
Donald had signed them and had released his interest in the property. Maxwell was a victim
because one of the forged affidavits purported to release ownership of his 1987 RX. Donald was
a victim because his name was forged on all three affidavits and because the affidavits purported
to release his interest in the 1980 Brat and 1978 wagon. Because Smith’s forgery offenses had
victims that were not victims of his trafficking in stolen property offense, the trial court properly
found that the crimes did not encompass the same criminal conduct. See State v. Davis, 90 Wn.
App. 776, 782, 954 P.2d 325 (1998) (offenses do not encompass the same criminal conduct when
both offenses share an identical victim but one offense had at least one additional victim).
When comparing Smith’s three forgery offenses with each other, it is also clear that
Maxwell was not a victim of the two forgery convictions relating to cars belonging to Donald.
Because the forgery offense related to Maxwell’s 1987 RX had Maxwell as a victim whereas the
two remaining forgery convictions relating to Donald’s cars did not, the trial court did not abuse
its discretion.
We affirm the trial court’s determinations with regard to same criminal conduct. Because
Smith’s challenged offenses do not satisfy the same victim element of the same criminal conduct
analysis, we do not address whether the offenses shared the same objective intent.
II. SCRIVENER’S ERROR
Smith next contends that his judgment and sentence contains a scrivener’s error incorrectly
listing his offender score at eight when it should list his offender score at seven. The State agrees
that Smith’s correct offender score is seven and agrees the error should be corrected.
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A scrivener’s error is one that, when amended, would correctly convey the intention of the
trial court, as expressed in the record at trial. State v. Davis, 160 Wash. App. 471, 478, 248 P.3d 121
(2011); see also Presidential Estates Apt. Assocs. v. Barrett, 129 Wash. 2d 320, 326, 917 P.2d 100
(1996). The remedy for a scrivener’s error in a judgment and sentence is to remand to the trial
court for correction. State v. Makekau, 194 Wash. App. 407, 421, 378 P.3d 577 (2016); CrR 7.8(a).
The trial court calculated Smith’s offender score as seven based on its same criminal
conduct analysis, and it sentenced Smith within the standard range for that offender score.
RCW 9.94A.510. But Smith’s judgment and sentence incorrectly lists his offender score as eight.
We accept the parties’ agreement that this is a scrivener’s error and direct the trial court to correct
the error on remand.
III. LEGAL FINANCIAL OBLIGATIONS
Finally, Smith contends that we must remand to the trial court to strike certain legal
financial obligations from his judgment and sentence, specifically a $200.00 criminal filing fee,
$373.97 in witness costs, $1,120.00 in sheriff service fees, a $250.00 jury demand fee, and a
$100.00 DNA collection fee. The State concedes that the criminal filing fee, witness costs, sheriff
service fees, and the jury demand fee are improper under recent legislative amendments and State
v. Ramirez, 191 Wash. 2d 732, 426 P.3d 714 (2018). Br. of Resp’t at 8-9. We accept the State’s
concession and remand to the trial court to strike these fees and costs from Smith’s judgment and
sentence.
The State argues that we should deny Smith relief from the $100 DNA collection fee
because the record does not definitively show that his DNA has been previously collected as a
result of a prior conviction. We disagree. In 2018, the legislature amended RCW 43.43.7541 to
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authorize the imposition of a DNA fee only if the State has not “previously collected the offender’s
DNA as a result of a prior conviction.” LAWS OF 2018, ch. 269, § 18.
RCW 43.43.754(1)(a) requires the State to collect a DNA sample from every adult or juvenile
convicted of a felony. Because Smith has prior felony convictions in Washington, there is a
presumption that the State has previously collected his DNA as statutorily required. State v.
Houck, 9 Wash. App. 2d 636, 651 n.4, 446 P.3d 646 (2019). But because the record is silent as to
whether Smith’s DNA has been previously collected, we remand for the trial court to make this
determination. On remand, the State bears the burden of showing that Smith’s DNA has not been
previously collected as a result of a prior conviction, and the trial court on remand must strike the
DNA collection fee unless the State meets its burden. Id. at 651.
CONCLUSION
We affirm the trial court’s calculation of Smith’s offender score based on its same criminal
conduct determination but remand to the trial court to correct the scrivener’s error incorrectly
listing Smith’s offender score as eight. On remand, the court must strike Smith’s criminal filing
fee, witness costs, sheriff service fees, and the jury demand fees. The trial court shall also strike
Smith’s DNA collection fee unless the State can show that his DNA has not been previously
collected as a result of a prior conviction.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Glasgow, J.
We concur:
Sutton, P.J.
Cruser, J.
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