State of Washington v. Dominic Luis Cudmore ( 2018 )


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  •                                                                           FILED
    JULY 10, 2018
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                         )
    )         No. 35079-7-III (consolidated
    Respondent,             )         with 35080-1-III)
    )
    v.                                    )
    )
    DOMINIC LUIS CUDMORE,                        )
    )         UNPUBLISHED OPINION
    Appellant.              )
    FEARING, J. — The trial court, after a bench trial, convicted Dominic Cudmore
    with second degree possession of stolen property, second degree identity theft, and first
    degree trafficking in stolen property. The trial court also convicted Cudmore of two
    counts of trafficking of stolen property in the first degree under case No. 35080-1-III. On
    appeal, Cudmore only challenges his sentence. He contends the trial court erroneously
    calculated his offender score when refusing to deem the convictions for possession of
    stolen property and identity theft as the same criminal misconduct. He also posits that the
    trial court mistakenly imposed a community custody condition that he refrain from
    association with known drug offenders. We affirm the trial court.
    FACTS
    On a spring day in 2013, Brittani Urann returned from softball practice, at Saint
    No. 35079-7-III (cons. w/35080-1-III)
    State v. Cudmore
    Michael’s Academy, to discover her Wells Fargo debit card missing from her locker.
    During the practice, at least twenty bags from the girls’ locker room at the academy went
    missing. Two hours after Urann noticed the missing card, an individual attempted to
    purchase Coors Light from a Zip Trip using Urann’s debit card, and the store clerk
    declined the transaction. Law enforcement reviewed surveillance footage, which
    revealed the card user to be Dominic Cudmore.
    PROCEDURE
    The State of Washington charged Dominic Cudmore with first degree theft other
    than a firearm, second degree possession of stolen property, identity theft in the second
    degree, and trafficking in stolen property in the first degree. Months later Cudmore
    signed a drug court waiver and agreement. The State dropped Cudmore’s first degree
    theft charge, and Cudmore entered an agreement with the State on the remaining three
    counts. Pursuant to the agreement, the State conditionally released Cudmore so long as
    he abstained from drug and alcohol use, among other conditions.
    Four months later, Dominic Cudmore agreed to remove his case from drug court
    to mental health court. Cudmore nonetheless struggled to comply with the terms of his
    agreement while his case remained in mental health court. Cudmore did not attend court
    hearings, missed mental health counseling appointments, and incurred positive urinalysis
    and breath analysis tests. The trial court terminated Cudmore’s mental health court
    agreement.
    2
    No. 35079-7-III (cons. w/35080-1-III)
    State v. Cudmore
    After trial, the trial court convicted Dominic Cudmore of second degree
    possession of stolen property, identity theft in the second degree, and trafficking in stolen
    property in the first degree. Before sentencing, Cudmore stipulated to his prior criminal
    history apart from the current convictions.
    At sentencing, Dominic Cudmore argued he deserved an offender score of eight
    instead of nine because the identity theft and possession of stolen property charges
    constituted the same criminal conduct. Cudmore emphasized that each crime involved
    possession of the debit card at the same time and place. In response, the State
    distinguished between the two crimes. According to the State, Cudmore completed the
    crime of possession of stolen property when he first held Brittani Urann’s debit card.
    Cudmore would be guilty of this first crime regardless of whether he attempted to
    purchase any goods with the card. Cudmore committed the crime of identity theft only
    when he later entered the convenience store and attempted to purchase the beer. By
    attempting to charge the purchase to the card, Cudmore falsely represented himself as
    Urann.
    The trial court determined each charge did not constitute the same criminal
    conduct and sentenced Dominic Cudmore based on an offender score of nine. Dominic
    Cudmore’s sentencing court determined that Dominic Cudmore has a chemical
    dependency that contributed to his offenses. Cudmore received community custody
    3
    No. 35079-7-III (cons. w/35080-1-III)
    State v. Cudmore
    conditions as part of his sentence, which conditions included the prohibition: “No contact
    with DOC ID’d drug offenders except in treatment setting.” Clerk’s Papers at 41.
    LAW AND ANALYSIS
    Same Criminal Conduct
    On appeal, Dominic Cudmore challenges two features of his sentence: the
    offender score and a community custody condition. We review a trial court’s
    determination of what constitutes the same criminal conduct, for purposes of calculating
    the offender score, for abuse of discretion or a misapplication of the law. State v. Aldana
    Graciano, 
    176 Wash. 2d 531
    , 536-37, 
    295 P.3d 219
    (2013); State v. Mutch, 
    171 Wash. 2d 646
    ,
    653, 
    254 P.3d 803
    (2011). A trial court abuses its discretion if it renders a manifestly
    unreasonable decision based on untenable grounds or for untenable reasons. State ex rel.
    Carroll v. Junker, 
    79 Wash. 2d 12
    , 26, 
    482 P.2d 775
    (1971).
    “Same criminal conduct” means two or more crimes that require the same criminal
    intent, are committed at the same time and place, and involve the same victim. RCW
    9.94A.589(1)(a). The absence of any one of these prongs prevents a finding of same
    criminal conduct. State v. Vike, 
    125 Wash. 2d 407
    , 410, 
    885 P.2d 824
    (1994).
    In the context of “same criminal conduct,” “intent” is not the mens rea required for
    the crime, but rather, it means the defendant’s “‘objective criminal purpose in
    committing the crime.’” State v. Davis, 
    174 Wash. App. 623
    , 642, 
    300 P.3d 465
    (2013)
    (quoting State v. Adame, 
    56 Wash. App. 803
    , 811, 
    785 P.2d 1144
    (1990)). “[I]n construing
    4
    No. 35079-7-III (cons. w/35080-1-III)
    State v. Cudmore
    the ‘same criminal intent’ prong, the standard is the extent to which the criminal intent,
    objectively viewed, changed from one crime to the next.” State v. 
    Vike, 125 Wash. 2d at 411
    .
    Dominic Cudmore’s criminal intent differed when he attempted to use the debit
    card as opposed to when he merely possessed the card. RCW 9A.56.140(1), the
    possession of stolen property statute, defines the crime as:
    “Possessing stolen property” means knowingly to receive, retain,
    possess, conceal, or dispose of stolen property knowing that it has been
    stolen and to withhold or appropriate the same to the use of any person
    other than the true owner or person entitled thereto.
    The identify theft statute, RCW 9.35.020(1) reads:
    No person may knowingly obtain, possess, use, or transfer a means
    of identification or financial information of another person, living or dead,
    with the intent to commit, or to aid or abet, any crime.
    We agree with the trial court that the possession of stolen property charge and the
    identity theft charge are distinct crimes. Dominic Cudmore possessed stolen property
    when he first acquired the debit card with the intent to withhold it from Britanni Urann.
    The identity theft occurred at a later time when he approached the convenience store
    counter with the alcohol. Cudmore’s intent differed when he committed identity theft
    because he intended to commit theft at the Zip Trip. The crime of identity theft also
    gained the added victim of the convenience store.
    5
    No. 35079-7-III (cons. w/35080-1-III)
    State v. Cudmore
    Community Custody Condition
    A court reviews community custody conditions for an abuse of discretion and will
    reverse them only if they are “manifestly unreasonable.” State v. Valencia, 
    169 Wash. 2d 782
    , 791-92, 
    239 P.3d 1059
    (2010). Dominic Cudmore challenges his community
    custody condition prohibiting contact with Department of Corrections identified drug
    offenders except in a treatment setting. He contends the condition infringes his freedom
    to associate and is vague.
    The due process vagueness doctrine under the Fourteenth Amendment to the
    Unites States Constitution and article I, section 3 of the Washington State Constitution
    “requires that citizens have fair warning of proscribed conduct.” State v. Bahl, 
    164 Wash. 2d 739
    , 752, 
    193 P.3d 678
    (2008). The doctrine assures that ordinary people can
    discern the prohibited conduct and gain protection against arbitrary enforcement of the
    laws. State v. 
    Valencia, 169 Wash. 2d at 791
    ; State v. 
    Bahl, 164 Wash. 2d at 752
    . If persons
    of ordinary intelligence can understand what the law proscribes, notwithstanding some
    possible areas of disagreement, the law is sufficiently definite. State v. 
    Bahl, 164 Wash. 2d at 754
    ; City of Spokane v. Douglass, 
    115 Wash. 2d 171
    , 179, 
    795 P.2d 693
    (1990).
    Limitations on fundamental rights are permissible, provided they are imposed
    sensitively. State v. Riley, 
    121 Wash. 2d 22
    , 37, 
    846 P.2d 1365
    (1993). An offender’s
    freedom of association may be restricted if reasonably necessary to accomplish the
    essential needs of the state and public order. State v. 
    Riley, 121 Wash. 2d at 37-38
    .
    6
    No. 35079-7-III (cons. w/35080-1-III)
    State v. Cudmore
    In State v. Hearn, 
    131 Wash. App. 601
    , 
    128 P.3d 139
    (2006), Tami Hearn argued
    that a community custody condition demanding that she refrain from associating with
    known drug offenders violated her freedom to associate. The jury had convicted Hearn
    of drug possession at the trial court level. This court affirmed Hearn’s community
    custody condition, noting “[r]ecurring illegal drug use is a problem that logically can be
    discouraged by limiting contact with other known drug offenders.” State v. 
    Hearn, 131 Wash. App. at 609
    .
    Dominic Cudmore’s sentencing court found that Dominic Cudmore suffered from
    a chemical dependency that contributed to his offenses. Cudmore exhibited a
    dependency disorder when he breached the terms of his drug court agreement. Therefore,
    as in Hearn, the court reasonably imposed a prohibition from associating with
    Department of Corrections identified offenders, outside of treatment settings. This
    condition aids Cudmore in remaining sober. Discouraging further criminal conduct is a
    goal of community placement. State v. 
    Riley, 121 Wash. 2d at 38
    .
    An individual of ordinary intelligence can plainly understand the association with
    drug offender’s condition prohibits Cudmore from associating with individuals the
    Department of Corrections labels as offenders. The offender can readily gain a list of
    those offenders. The trial court did not abuse its discretion in imposing this condition.
    7
    No. 35079-7-III (cons. w/35080-1-III)
    State v. Cudmore
    CONCLUSION
    We affirm Dominic Cudmore' s sentence.
    A majority of the panel has determined this opinion will not be printed in the
    Washington Appellate Reports, but it will be filed for public record pursuant to RCW
    2.06.040.
    Fearing, J.      er· (
    WE CONCUR:
    Pennell, A.CJ.
    8