IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. MICHAEL J. REEDER, Appellant. NO. 69226-7-1 DIVISION ONE

PUBLISHED OPINION

FILED: June 23, 2014 

### Leach, J. — Michael Reeder appeals his conviction for 14 counts of £ 

### S2. in 

## securitiesfraud and 14countsoftheftinthefirstdegree. HechallengesthefEialPC court's denial of his motions to appoint new counsel, to suppress evider^e :|q<X obtainedwith aspecial inquiryjudge subpoena, and todismiss some orall oftrig. ^\>, State's charges as barred by the statute oflimitations. He also claims that hissentence formultiple counts of the same crimes violated the prohibition against 

### doublejeopardy. Because Reederfails to showthathis attorneyhad aconflictof interest, that the challenged subpoena violated his constitutional rights, or that the statute oflimitations expired before the State filed criminal charges against him and because he was not subject to doublejeopardy where each count was based on a discrete, fraudulenttransaction, we affirm.NO. 69226-7-1 / 2

FACTS William McAllister, a Seattle resident, met Reederthrough a companythat 

### provided nonbank real estate financing. Between March 2006 and June 2007, McAllistermade a series ofpayments to Reederfor two realestate investments. Reederfirst told McAllisterthat he had an option to purchase two parcels 

### of land in Lake Stevens, Washington. Reeder and McAllister formed a limited 

### liabilitycompany and opened a bank accountforthe purpose ofbuyingthese two 

### parcels ofland. McAllister wired $200,000 to Reeder on May 26, 2006, and wrote a check to Reeder for $150,000 on June 16, 2006, to use for the down 

### payment. Reeder andMcAllistersigned an agreementdocumenting these loans, which stated that Reeder had already entered into purchase and sale 

### agreements for the properties. Reeder never purchased the land in Lake Stevens, nor did he return the $350,000 to McAllister. 

### On March 7, 2006, Reeder told McAllister that he had an opportunity to 

### purchase property in Bellevue for $1.4 million. Reeder showed McAllister a fraudulent purchase and sale agreement and quitclaim deed for the property, as 

### well as an appraisalreport stating that thepropertywasworth $2million. Atthe time, Reederknew that the owners did not want to sell the property. Based upon 

### Reeder's representations, McAllister made a series of payments to Reeder totaling $1.4 million to use for its purchase. Reeder provided promissory notes
-2-NO. 69226-7-1 / 3


### formany, but notall, of these payments. Thepromissorynotes indicatedthat the loans were "exclusively for business and commercial purposes and not for 

### personal use." Reeder never purchased theproperty anddid not use any of the 

### fundstobuytheproperty. Hedid notreturn McAllister's money.1 The State obtained Reeder's bank and creditcard records with subpoenas 

### issuedby aspecial inquiryjudge underRCW 10.27.170. Theserecords showed that McAllister made payments to Reeder totaling $1,725,700. The bank and creditcard records also showed that Reederwithdrew McAllister's money incash 

### or useditto purchase cashier's checkspayabletoReeder. He used thefunds in casinos and for personal expenses. 

### OnApril 8, 2011,the State charged Reeder byinformation with 14 counts ofsecurities fraud and 15 counts of first degree theft by deception based upon 

### the 15 separate payments thatMcAllisterprovided. The Statefiled an amended information on June 15, 2012. 

### Before trial, Reeder moved to substitute counsel based on an alleged conflict ofinterest. The court denied this motion. 

### Before trial, Reeder also moved to suppress evidence obtained with the 

### special inquiryjudge subpoenas. He also moved todismiss thesecuritiesfraud
1 On May 12, 2009, McAllister obtained ajudgment against Reederfor $2,832,370.52. McAllister v. Reeder, No. 08-2-00063-2 (Skagit County Super. Ct, Wash. May 12, 2009). -3-NO. 69226-7-1 / 4



### counts, alleging that the statute of limitations barred these charges. The trial courtdenied the motions.2 Later, the courtgranted the State's motion to dismiss count29 charging first degree theft. 

### The jury found Reeder guilty of 14 counts of securities fraud and 14 counts of firstdegree theft and returned special verdicts finding that each crime 

### was a major economic offense or series of offenses. The court imposed an exceptional sentence above the standard range. Reederappeals.
ANALYSIS Reeder raises four issues. First, he claims that his trial attorney had a 

### conflict of interest that deprived Reeder of effective assistance of counsel. Second, he challenges the trialcourt's denial of his motion to suppress evidence obtained with a special inquiryjudge subpoena. Third, he asserts thatthe statute of limitations barred some or all ofthe charges against him. Finally, he argues that his sentence violated the prohibition against double jeopardy. We reject Reeder's contentions and affirm. Motion To Appoint New Counsel Reeder claims that his trial counsel had a conflict of interest that 

### prejudiced himthroughoutthe proceedings. We review forabuse of discretion a 2The court granted the State's motion to admit summaries of Reeder's bank records. -4-NO. 69226-7-1 / 5



### trial court's decision to deny a motion to substitute counsel.3 "Whether the circumstances demonstrate a conflict under ethical rules is a question of law, which is reviewed de novo."4 A defendant "'must show good cause'" before the trial court will allow substitution of counsel, '"such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the 

### attorney and the defendant.'"5 The Sixth Amendment right to counsel includes the right to conflict-free counsel.6 Reeder invokes several Rules of Professional Conduct to support his 

### claim. RPC 1.7(a) prohibits a lawyer from representing a client if the 

### representation involves a concurrent conflict of interest. Aconcurrent conflict of interest exists if "the representation of one client will be directly adverse to another client" or if"there is a significant risk that the representation of one or 

### more clients will be materially limited by the lawyer's responsibilities to another 

### client, a former client or athird person or by a personal interest of the lawyer."7

3State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997). 4 State v. Regan, 143 Wn. App. 419, 428, 177 P.3d 783 (2008) (citing State v. Vicuna, 119 Wn. App. 26, 30-31, 79 P.3d 1 (2003); State v. Ramos, 83 Wn. App. 622, 629, 922 P.2d 193 (1996)). 5 State v. Varqa, 151 Wn.2d 179, 200, 86 P.3d 139 (2004) (quoting Stenson, 132 Wn.2d at 734). 6State v. Davis, 141 Wn.2d 798, 860, 10 P.3d 977 (2000) (citing Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981)). 7RPC 1.7(a). -5-NO. 69226-7-1 / 6

RPC 1.10 prohibits lawyers associated in a firm from knowingly representing a 

### client "when any one of them practicing alone would be prohibited from doing so 

### by Rules 1.7 or 1.9."8 To establish that an actual conflict of interest deprived him of effective assistance ofcounsel, Reeder must show both that his attorney had a conflict of 

### interest and that the conflict adversely affected counsel's performance.9 We 

### presume prejudice if Reeder satisfies this two-part inquiry.10 Demonstrating a mere possibility of a conflict of interest does not entitlehim to relief.11 "[Ujntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance."12 Reeder claims that his attorney, Matthew Pang, had a conflict of interest because another attorney at Pang's law firm, David Roberson, previously gave 

### legal advice to Reeder's sister, Billy Jo Cuzak. Cuzakwas neithera witness nor 

### a party in this case. Here, the trial court allowed both parties, as well as

8RPC 1.10(a). 9Mickens v. Taylor, 535 U.S. 162, 174-75, 122 S. Ct. 1237, 152 L. Ed. 2d 

### 291 (2002); Statev. White, 80 Wn. App. 406, 411, 907 P.2d 310 (1995). 10 Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 

### 2d 674 (1984); Cuvler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); In re Pers. Restraintof Richardson, 100 Wn.2d 669, 679, 675 P.2d 209 (1983). 11 State v. Dhaliwal, 150Wn.2d 559, 573, 79 P.3d 432 (2003). 12 Sullivan, 446 U.S. at 350. -6-NO. 69226-7-1 / 7
Roberson, to address Reeder's motion to substitute counsel based upon this alleged conflictofinterest. Roberson told the courtthat before the Statefiled criminal charges against Reeder in this case and while Roberson was working at a different law firm, Cuzak called Roberson for legal advice "regarding a civil matterwhere Ithinkthe 

### subjectmatterwas eitherthe same or very similar." Roberson toldthe court that he created no file. He also notified his supervisor at his current firm and the 

### attorney originally assigned to Reeder's case about these events; his supervisor
decided that no conflict existed. The trial court denied Reeder's motion to substitute counsel. In its oral ruling, the court reasoned, 

### Ijustdon't see a conflict ofinterest here. Even ifthere is one, the Court will deem itresolvable by a Chinese wall, and Mr. Roberson is now ordered not to discuss this with anyone at all. Mr. Pang is ordered not to discuss with Roberson, Mr. Pang is ordered to 

### advise all—any investigators that they are not to discuss it withMr. Roberson. There's no file to warn off so that doesn't make any difference. 

### "The existence of an attorney/client relationship is a question of fact, the


### essence of which may be inferred from the parties' conduct or based upon the

-7-NO. 69226-7-1 / 8


### client's reasonable subjective beliefthat such a relationship exists."13 Even a shortconsultation may create anattorney-clientrelationship.14 Reeder argues that the conflict of interest "was real and legally 

### cognizable" and that "the trial court's retreat behind a 'Chinese Wall' was ineffectual in resolving the conflict." Reeder claims that this conflict prejudiced him because "defense counsel failed to understand the nature of the case, the 

### relevant evidentiarystandards and ultimatelypresented nodefense." 

### Reeder presents no facts or citations to the record to support his 

### contentions.15 Although he claims that"Mr. Roberson continues to owe a duty of 

### loyaltytoMs. Cuzak," Reeder citesinsufficientfacts to establish that Cuzak ever 

### reasonably believed an attorney-client relationship existed. Hefails to identify any interest Cuzak had that was adverse to hisown or anyresponsibilityowedto 13Teia v. Saran, 68 Wn. App. 793, 795, 846 P.2d 1375 (1993) (citing Bohn v. Cody, 119Wn.2d 357, 363, 832 P.2d 71 (1992)). 14Teja, 68 Wn. App. at 795-96. 

### 15 Reeder offers a number of arguments without citing to the record for 

### support. We do not address these arguments. RAP 10.3(a)(6); CowicheCanyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (noting that 

### an appellate court does not consider argument unsupported by citation to the record orauthority). First, Reeder asserts, "The prosecution has alleged she is a 

### witness, perhaps even an accomplice." The State disputes this claim and nothing in the record supports it. Second, although Reeder states that "the 

### parties returned to court in June, at which time Mr. Reeder expressed his continuing concerns regarding his representation," the record contains no transcriptfrom thecited date. Third, Reederstatesthat he "renewed hisrequest" to substitute counsel on July 2, 2012, but that "the trial court again denied his 

### prayer for relief." The trial transcript from July 2 contains no indication that Reederrequested substitute counsel on thatdate. -8-NO. 69226-7-1 / 9

Cuzak that materially limited his attorney's representation. Reeder identifies no facts showing thatthe attorneys did not impose a properChinesewall orthatthis 

### Chinese wall did not resolve any alleged conflict of interest.16 Reeder fails to show a conflict ofinterest or prejudice. Because he must demonstrate both, the trial courtdid not abuse its discretion indenying his requestto substitute counsel. Suppression ofEvidence Obtained through the Special Inguiry Judge 

### Reeder challenges the trial court's denial of his motion to suppress his bank and credit card records on three grounds. First, he claims, "[Obtaining these private records without a valid search warrant, orthe functional equivalent, violated the Fourth Amendment, Article 1, section 7 of the Washington Constitution, and Statev. Miles."17 Second, he alleges thatthe procedure used to 

### issue the subpoenas did not meet the requirements of chapter 10.27 RCW. 

### Finally, he claims, "The procedures of the special inquiry judge violate the constitutional guarantee ofopen administration ofjustice." 

### Preliminarily, we note that Reeder failed to present some of these 

### arguments to the trial court. Generally, a failure to present an issue in the trial

16 See State v. Stenger, 111 Wn.2d 516, 522-23, 760 P.2d 357 (1988) 

### ("[Wjhere a deputy prosecuting attorney is for any reason disqualified from a case, and is thereaftereffectively screened and separated from any participation or discussion of matters concerning which the deputy prosecuting attorney is 

### disqualified, then the disqualification of the entire prosecuting attorney's office is neither necessary norwise."). 17 160Wn.2d 236, 156 P.3d 864 (2007). -9-NO. 69226-7-1/10


### court waives the right to raise the issue on appeal.18 RAP 2.5(a)(3) allows a party to raise for the first time on appeal a "manifest error affecting a constitutional right." Thus, a court previews the merits of the constitutional 

### argumentfirstraised on appeal todetermine ifitislikelytosucceed.19 When presented with arguments under both the state and federal 

### constitutions, Washington courts start with the state constitution.20 Article I, section 7 of the Washington Constitution states, "Noperson shall be disturbed in 

### his private affairs, or his home invaded, without authority oflaw." This provision 

### prohibits the Statefrom unreasonably intruding upon a person's private affairs21 and places a greater emphasis on the right to privacy than the Fourth Amendmentto the United States Constitution does.22 Itprovides a broad privacy 

### rightand requireslegal authorizationtodisturb it.23 Although article I, section 7 is not grounded in notions ofreasonableness, reasonableness, along with history, 

### precedent, and common sense, plays a role in deciding the scope ofintrusion

18 RAP 2.5(a). 19 State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001) (citing State v. WWJ Corp., 138Wn.2d 595, 603, 980 P.2d 1257 (1999)). 20 State v. Athan, 160Wn.2d 354, 365, 158 P.3d 27 (2007) (citing State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004)). 

### 21 State v. White, 141 Wn. App. 128, 135, 168 P.3d 459 (2007) (citing State v. Jones, 146Wn.2d 328, 332, 45 P.3d 1062 (2002)). 22 State v. Young, 123 Wn.2d 173, 179, 867 P.2d 593 (1994) (citing State v. Stroud, 106 Wn.2d 144, 148, 720 P.2d 436 (1986); State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d 1199 (1980)). 23 State v. Chacon Arreola, 176Wn.2d 284, 291, 290 P.3d 983 (2012). -10-NO. 69226-7-1 /11 

### that may be authorized bylaw.24 Astatute can authorize state intrusion into this broad privacy right but only to the extent "reasonably necessary to further 

### substantial governmental interests thatjustifytheintrusion."25 A comparison of a bank customer's privacy rights in bank records under the federal and state constitutions illustrates the greater protection provided by 

### the Washington Constitution. The Fourth Amendment does not provide a bank 

### customerwith anyconstitutionallyprotected privacyinterestin bankrecords.26 In contrast, article I, section 7 protects bank records as part of an individual's 

### private affairs.27 Because the challenged subpoena disturbs Reeder's valid privacy interest in his bank records, we must determine if "'authority of law'" justifies thisintrusion.28 The legislature created the special inquiry judge proceeding in the 

### Criminal Investigatory Act of1971, chapter 10.27 RCW,29 "enacted on behalf of the people of the state of Washington to serve law enforcement in combating

24Chacon Arreola, 176 Wn.2d at 291. 25Chacon Arreola, 176 Wn.2d at 292. 26 United States v. Miller, 425 U.S. 435, 444, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). 27Miles, 160Wn.2dat244. 28 Miles, 160Wn.2dat244. 29 Laws of 1971, 1st Ex. Sess., ch. 67. -11-NO. 69226-7-1 /12 crime and corruption."30 The statute appears to have resulted from a study ofthe 

### Washington StateJudicialCouncil.31 The Judicial Council Reportstates, This added law enforcement aid is patterned after the one man 

### grand jury law ofMichigan.
. . . Special inquiryjudge proceedings are viewed by the Judicial Council as supplementary to a regular 

### grand jury which has the power to actively investigate evidence of crime and corruption, a power not granted to the special inquiry 

### judge. The special inquiryjudge does not have the power to issue indictments as does the grandjury, but can turn over any evidence 

### produced at the proceedings before him to any subsequent grand 

### juries called pursuant to the statute. Thus, although not actively participating in an investigative role himself, the special inquiry 

### judge provides the prosecutor an added investigatorytool. . . . This will aid the prosecutor in his fight against crime by providing him 

### information not generally otherwiseavailable.[32] A special inquiryjudge is "asuperiorcourt judge designated by a majority 

### of the superior courtjudges of a county to hear and receive evidence of crime and corruption."33 RCW 10.27.170 states, 

### When any public attorney, corporation counsel or city attorney has reason to suspectcrime or corruption, within the jurisdiction ofsuch 

### attorney, and there is reason to believe that there are persons who may be able to give material testimony or provide material evidence concerning such suspected crime or corruption, such attorney may 

### petition the judge designated as a special inquiryjudge pursuantto RCW 10.27.050 for an orderdirected to such persons commanding 

### them to appear at a designated time and place in said county and to then and there answer such questions concerning the suspected crime or corruption as the special inquiry judge may approve, or 

### provideevidence as directed by the special inquiryjudge.
30RCW 10.27.010. 31 State v. Manning. 86 Wn.2d 272, 273, 543 P.2d 632 (1975). 32 Judicial Council of State of Wash., The Twenty-Second Biennial Report 17-18 (Jan. 1, 1971). 33 RCW 10.27.020(7), .050. -12-NO. 69226-7-1/13
Although a special inquiry judge functions and has some powers similar to a grand jury, a special inquiry judge cannot initiate a special inquiry, actively 

### investigate criminal activity, or make a decision to prosecute.34 Special inquiry proceedings are secret.35 RCW 10.27.090(4) grants the public attorney access to all special inquiryjudge evidence and permits the public attorney to "introduce such evidence before any other grand jury or any trial in which the same may be relevant." RCW 10.27.090(5)(a) permits the court to, "upon properapplication and upon a showing ofgood cause, make available to a defendant in a subsequent criminal proceeding other testimony or evidence

. . . [wjhen given or presented before a special inquiryjudge, if doing so is inthe furtherance ofjustice." RCW 10.27.170 authorizes a special inquiry judge to issue a subpoena when the petitioner "has reason to suspect crime or corruption . . . , and there is

reason to believe that there are persons who may be able to give material testimony or provide material evidence concerning such suspected crime or corruption."36 Thus, the authorizing statute does not require that a petitioner establish probable causeto obtain a subpoenafrom a special inquiryjudge. 34 State v. Neslund, 103 Wn.2d 79, 87-88, 690 P.2d 1153 (1984); Manning, 86 Wn.2d at 274 (citing former RCW 10.27.150 (1971) (the only difference between the current and former version of this section is the substitution ofgender neutral language)). 35 RCW 10.27.090(3). 36 RCW 10.27.170 (emphasis added.) -13-NO. 69226-7-1 /14

Reeder contends RCW 10.27.170 can satisfy the "authority of law" 

### requirement of article I, section 7 of the Washington State Constitution only ifit requires thatprobable cause supporta special inquiryjudge's decision to issue a subpoena. We mustdecide the appropriate level of justification required for this state intrusion underarticle I, section 7—is itprobable cause or something less? 

### Washington cases recognize the general principle that a subpoena must 

### be issued by a neutral magistrate to satisfy article I, section 7's authority of law requirement.37 This neutral magistrate requirement limits government invasion into private affairs by ensuring "that some determination has been made which 

### supports the scope of the invasion."38 A special inquiry judge qualifies as a 

### neutral magistrate, evenforthose cases beforethe judgeonspecial inquiry.39 InState v. Miles, our Supreme Court considered a claimthatthe issuance 

### of an administrative subpoena for a defendant's bank records without prior 

### judicial review violated the defendant's privacy rights.40 The court held, "A search of personal banking records without a judicially issued warrant or 

### subpoenato the subject party violatesarticle I, section7."41 The courtvoidedthe subpoena because no judge determined ifthe State had satisfied any particular

37Miles, 160Wn.2dat247. 38Miles, 160Wn.2dat247. 39Neslund, 103 Wn.2d at 88. 40 Miles, 160Wn.2dat252. 41 Miles, 160Wn.2d at 252 (emphasis added). -14-NO. 69226-7-1/15 

### level of justification before the subpoena issued. Indeed, the statutory process under review allowed "the state to intrude into private affairs for little or no reason."42 

### The court noted specifically that both the warrant process and "the 

### opportunity to subject a subpoena to judicial review" ensure a determination 

### supporting the scope of anintrusion andreduce mistaken state intrusions.43 The court's opinionmakes clear that its identification of twoseparate procedures, the 

### warrantprocess and ajudicially reviewedsubpoena, was deliberate becausethe court names both procedures together in at least four separate sentences. 

### Therefore, a subpoena subjected to judicial review can satisfy article I, section 7's authority of law requirement. 

### Because no Washington case directlyaddresses the level ofjustification 

### required before a special inquiryjudge can issue a subpoena, we lookto grand 

### juryjurisprudence for guidance. In United States v. R. Enterprises, Inc.,44 the United States Supreme Court concluded, "[T]he Government cannot be required 

### tojustifythe issuance of a grandjury subpoena by presenting evidencesufficient

42Miles, 160Wn.2dat248. 43Miles, 160Wn.2dat247. 44 498 U.S. 292, 297, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991); see also 

### In reM.H., 648 F.3d 1067, 1071 (9th Cir. 2011) ("TheGovernmentis not required 

### tojustifythe issuance of a grandjury subpoena by presenting evidencesufficient to establish probablecause becausethe very purpose of itsinquiryis to establish whether probablecauseexists toaccusethe taxpayer ofviolating our taxlaws."). -15-NO. 69226-7-1/16 

### to establish probable cause because the very purpose of requesting the information is to ascertain whetherprobable cause exists." 

### Similarto a federal grandjury, a purpose of a special inquiry proceeding is to obtain evidence about suspected crimesfordetermining probable cause thata 

### crime has been committed.45 The general publichas a substantial interest in the effective enforcement of criminal statutes. Also, a special inquiry proceeding 

### cannot be used to gather evidence against a chargeddefendant.46 Therefore, the appropriate level ofjustification for state intrusion must be something less than probable cause. 

### RCW 10.27.170 requires showing a reasonable suspicion, a showing at 

### least as great as that required to satisfy the requirements for a grand jury subpoena under the Fourth Amendment.47 Here, a neutral magistrate determined that evidence presented by the petitioner established a reasonable 

### suspicion that Reederhad committed acrime andreason tobelieve therecords described in the subpoena would provide material evidence of that crime. Because reasonableness, along with history, precedent, and common sense, 

### plays a role in deciding the scope ofintrusion thatmay beauthorized by law, we conclude that the process used to obtainReeder's bank and credit card records
45Manning, 86 Wn.2d at 275. 46Manning, 86 Wn.2d at 275. 47 see Okla. Press Publ'g Co. v. Walling, 327 U.S. 186, 208-09, 66 S. Ct. 494, 90 L.Ed. 614(1946). -16-NO. 69226-7-1/17 

### did not violate his constitutional privacy right.48 The process provided judicial oversight over the decision to intrude and the scope of the intrusion. To support his argument that article I, section 7 requires probable cause, 

### Reeder relies upon State v. Garcia-Salgado.49 There, the defendant challenged a trial court order, entered after the defendant was charged, requiring him to 

### submit to a DNA (deoxyribonucleic acid) swab.50 The court concluded that the court's order could function as a warrant if it met the constitutional requirements of a search warrant but found the challenged order deficient because the record did not establish what evidence the State presented to the trial court before the 

### judge issued the order.51 Therefore, the record could not support thetrial court's determination of probable cause.52 Garcia-Salgado provides no guidance for the level ofjustification required to obtain a special inquiryjudge subpoena. Next, Reeder claims that the special inquiry judge did not issue the 

### subpoenas for Reeder's bank and credit card records in accordance with the

48 Reeder also alleges that the prosecutor "does notassert, even second hand, that the information provided to the magistrate was given under oath." But the cited document is the prosecutor's signed and sworn declaration. The 

### portion of this document that Reeder cites contains the trial court's findings in McAllister v. Reeder, No. 08-2-00063-2 (Skagit County Super. Ct., Wash. May 

### 12, 2009). Thus, Reeder's argument is baseless. Nothing in the statute specifies a particularformthata petitionmusttake. 49 170Wn.2d 176, 240 P.3d 153 (2010). 50Garcia-Salgado. 170 Wn.2d at 183. 51 Garcia-Salgado, 170 Wn.2d at 187. 52Garcia-Salgado, 170 Wn.2d at 187-88. -17-NO. 69226-7-1/18
requirements of chapter 10.27 RCW. Specifically, he alleges, "The county prosecutoronly serves as a 'public attorney' underthe statute where a grandjury is impaneled." Reedercites RCW 10.27.020(2), which defines a "public attorney"

as "the prosecuting attorney ofthe county in which a grandjury or special grand jury is impaneled." Because Reeder did not raise this issue inthe trialcourt and makes no claim that itinvolves manifesterror, we do not consider it. Reeder also argues, "The record fails to establish the subpoena was issued by a neutral magistrate selected in accordance with RCW 10.27.020(7)." He claims, "No subpoena has been produced
.. . , nor has a neutral magistrate been identified, eitherby name, numberor any otherdesignation." As discussed above, our Supreme Court has held that a special inquiry judge can act as a 

### neutral and detached magistrate.53 At trial, the parties discussed with the court Reeder's access to the subpoenas: THE COURT: Did I hear you say, Mr. Peterson, that when you are asked, you do provide copies of the inquiry judge's subpoena? MR. PETERSON: Yes.

53 Neslund, 103 Wn.2d at 88. Reeder presents no facts showing that the 

### special inquiryjudge did not manifestthe neutrality and detachmentrequired of a 

### judicial officer. Cf. Lo-Ji Sales. Inc.v. NewYork, 442 U.S. 319, 326-28, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979) Gudge who accompanied police on a raid of a pornographic bookstore, where he reviewed material for obscenity and added it 

### to a previously signed search warrant, did not manifest the neutrality and detachment required of ajudicial officer). -18-NO. 69226-7-1/19

them. THE COURT: So, that's been asked for. MR. PETERSON: Actually, we photocopied several of
MR. PANG: That's what Irequested because that was part of what I requested when I was able to go through some of the records. THE COURT: So, you do have that? MR. PANG: I don't know which ones I have because I was only able to go through two. . . . So, for example, the two boxes that I have gone through, I haven't read everything.
. . . THE COURT: Fair enough. I am going to take Mr. Peterson's representation at this time that those will be made available to you. Although Reeder's trialcounsel appears to have received copies of at least some ofthe challenged subpoenas, Reeder identifies nothing inthe record supporting his arguments on this claim. Therefore, we reject it. Finally, Reeder alleges thatthe secrecy ofthe special inquiry proceedings is "inconsistent with the constitutional dictate of open courts." He cites article I, section 10 of the Washington State Constitution, which states, "Justice in all

cases shall be administered openly, and withoutunnecessary delay." No Washington case has addressed the public's right to attend special inquiry proceedings. Washington has adopted the two-part experience and logic 

### testto determine ifa publictrial rightattaches to a particularproceeding.54 The

54 State v. Sublett, 176Wn.2d 58, 72-73, 292 P.3d 715 (2012). -19-NO. 69226-7-1 / 20 

### experience prong asks ifthe place and process have historically been open to the press and general public.55 The logic prong asks if public access plays a 

### significant positive role in thefunctioning ofthechallenged process.56 Applying this test, we conclude that denying publicaccess to special inquiry proceedings does notviolate article I, section 10 oftheWashington State Constitution. 

### For purposes of our analysis of this issue, we consider special inquiry 

### proceedings to be analogous to grand jury proceedings. Wefirst address the experience prong. Grandjury proceedings in Washington have been closed to the public continuously sinceterritorial days.57 The federal courts have "alongestablishedpolicythatmaintains the secrecy of the grandjuryproceedingsinthe federal courts."58 

### We next address the logic prong. The Washington Supreme Court has 

### agreed with the United States Supreme Court's description of a grand jury proceeding as the classic example of a government operation whose proper

55Sublett, 176Wn.2dat73. 56 Sublett, 176Wn.2dat73. 

### 57 See Lawsof 1854, § 57, at 111;Lawsof 1873, § 176,at 222; Code of 

### 1881, ch. LXXX, § 992; Rem. Rev. Stat. § 2040 (Supp. 1932); former RCW 

### 10.28.100 (Lawsof 1854, §57, at111), repealed byLawsof 1971,1stEx. Sess., ch. 67, §20; RCW 10.27.100. ss United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 2 L. Ed. 2d 1077(1958). -20-NO. 69226-7-1 / 21
functioning depends upon secrecy and "'would be totally frustrated ifconducted 

### openly.'"59 Thus, Reederhas failed to establish a violation of article I, section 10.
Statute of Limitations Reeder also claims that the statute of limitations expired before the State filedthe information.60 "Ifthe to-convict instruction permits thejury to convictthe defendant based solely on acts committed beyond the statutory limitation period, reversal is required."61 The State bears the burden ofestablishing that itcharged 

### Reederwithin the applicable limitationsperiod.62 On April 8, 2011, the State charged Reeder with 14 counts of securities fraud and 14 counts of first degree theft by deception based upon 14 separate investment transactions between McAllister and Reeder.63 On June 15, 2012, the State filed an amended information, which added no new counts.64 Counts 1

59 Tacoma News. Inc. v. Cavce, 172Wn.2d58, 76, 256 P.3d 1179(2011) 

### (quoting Press-Enter. Co. v. SuperiorCourt, 478 U.S. 1, 9, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). 

### 60 Although he moved to dismiss only the securities fraud counts at trial based upon the expiration of the statute of limitations, Reeder may also 

### challenge the firstdegree theft counts on appeal because the criminalstatute of limitations creates an absolute bar to prosecution. State v. Mehrabian, 175 Wn. 

### App. 678, 696, 308 P.3d 660 (2013) (quoting State v. Dash. 163 Wn. App. 63, 67, 259 P.3d 319 (2011)), review denied, No. 89103-6 (Wash. Nov. 6, 2013). 61 Mehrabian. 175 Wn. App. at 696 (citing Dash. 163 Wn. App. at 65). 62 State v. Walker. 153 Wn. App. 701, 707, 224 P.3d 814 (2009). 63 We do not include count 29, which the court ultimately dismissed. 64 Cf State v. Eilts. 23 Wn. App. 39, 42, 596 P.2d 1050 (1979) (statute of limitations barred counts added by amended information after period of limitations had run). -21-NO. 69226-7-1 / 22



### and 3 of the informationcharged Reederwithsecurities fraud during a period of time intervening between March 7, 2006, and June 20, 2007, and March 9, 2006, and June 20, 2007. The State based these counts upon checks that McAllister 

### wrote to Reederon March 7 and March 9, respectively. The remaining counts of securities fraud arose from 12 different investment transactions based upon checks that McAllisterwrote to Reederfrom May 4, 2006, untilJune 20, 2007. 

### The State also charged Reeder with 14 counts of first degree theft by 

### deception. In the amended information, the State charged counts 2, 4, 6, 8, 10, 12, and 14 as a continuing course of conduct beginning on various dates from March 7, 2006, to July 5, 2006, and ending on June 20, 2007. In the remaining counts, the State charged Reeder based upon seven separate transactions occurring from August 2, 2006, until June 20, 2007. The statute of limitations for securities fraud under The Securities Act of 

### Washington, chapter 21.20 RCW, isfive years after the violation or three years 

### after the actual discovery of the violation, whichever date is later.65 Reeder argues that the applicable statute of limitations is three years under the 

### Washington Criminal Code, chapter9A.04 RCW, which states, "No otherfelony 

### maybeprosecuted morethan three yearsafterits commission."66

65 RCW 21.20.400(3). 66RCW9A.04.080(1)(h). -22-NO. 69226-7-1 / 23

Reeder claims that the rule of lenity requires the courtto apply the shorter limitation period. He argues, "[T]wo separate statutes appearto setthe limits for prosecuting securities fraud. . . . Because they set very different periods of limitation, they cannot be reconciled and the shorter period should be applied and the charges dismissed." We apply the rule of lenity to construe an ambiguous statute; we must 

### apply the interpretation most favorable to the defendant.67 "The rule of lenity operates inthe absence of clear evidence of legislative intent. Itapplies only if 

### the statute is ambiguous."68 "'Itis a fundamental rule that where the general statute, ifstanding alone, would include the same matter as the special act and thus conflict with it, the special act will be considered as an exception to, or qualification of, the general statute.'"69 Here, both statutes provide a limitations period. Because these statutes are not ambiguous and they include the same matter and thus conflict, The Securities Act provision applies to the securities fraud counts as an exception to, or qualification of, the general provision.

67 State v. Datin, 45 Wn. App. 844, 845, 729 P.2d 61 (1986) (citing State v. Weltv, 44Wn. App. 281, 283, 726 P.2d 472 (1986)). 68 Datin, 45 Wn. App. at 845 (citing State v. Pentland, 43 Wn. App. 808, 811, 719 P.2d 605 (1986)). 69 Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, 165 Wn.2d 275, 309, 197 P.3d 1153 (2008) (quoting Wark v. Wash. Nat'l Guard, 87 Wn.2d 864, 867, 557 P.2d 844 (1976)). -23-NO. 69226-7-1 / 24

The statute of limitations for first degree theft by deception was three years until 2009, when the legislature extended the limitations period to six 

### years.70 "'When the Legislature extends a criminal statute oflimitation, the new period of limitation applies to offenses not already time barred when the new 

### enactment was adopted and became effective.'"71 Because none of the theft counts were time barred when the legislature extended the statute of limitation, the six-year limitation period applies to the theft counts. Reeder further alleges that insufficient evidence supported the jury's finding that he engaged in a "continuing criminal impulse." He asserts, "[T]he conduct of Mr. Reeder and the related criminal intent were each complete at the point he received the moneyfrom McAllisterand converted it to other uses." We 

### review a challenge to the sufficiency of the evidence for substantial evidence,72 viewing all evidence and reasonable inferences inthe lightmostfavorable to the State.73 Substantial evidence is evidence sufficient to persuade a fair-minded,

70 Seeformer RCW 9A.04.080(h) (2009); RCW9A.04.080(1)(d)(iv). 71 State v. Sutherland, 104 Wn. App. 122, 134, 15 P.3d 1051 (2001) (quoting State v. Hodgson. 108Wn.2d 662, 666-67, 740 P.2d 848 (1987)). 72 State v. Stevenson, 128Wn. App. 179, 193, 114 P.3d 699 (2005). 73 State v. Thomas. 150Wn.2d 821, 874, 83 P.3d 970 (2004) (citing State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068(1992)). -24-NO. 69226-7-1 / 25



### rational person that a finding is true.74 We defer to the trier of fact on issues of 

### conflicting testimony, witness credibility, and overall weight of the evidence.75 When successive takings are the result of a single and continuing criminal impulse and the defendant commits the takings as part of a single criminal plan, 

### the takings may constitute a single theft.76 Insuch a case, the defendant does not complete the crime until the criminal impulse terminates.77 "When a continuing criminal impulse exists, the statute oflimitations does not begin to run 

### until the crime is completed."78 The jury determines as a question of fact if a 

### criminal impulsecontinues into the statuteoflimitations period.79 Thejury instructions for all counts of securities fraud required thejury to findthatthe State proved beyond a reasonable doubtthat Reeder's acts charged

as securities fraud "were part of a continuing course of conduct and were

74 Inre Estate ofPalmer, 145 Wn. App. 249, 265-66, 187 P.3d 758 (2008) (citing Rogers Potato Serv.. LLC v. Countrywide Potato. LLC. 152 Wn.2d 387, 391, 97 P.3d 745 (2004)). 75 Thomas. 150 Wn.2d at 874-75 (quoting State v. Cord. 103 Wn.2d 361, 367, 693 P.2d 81 (1985)). 76 Mehrabian. 175 Wn. App. at 697 (citingDash. 163 Wn. App. at 68; State v. Reid. 74 Wn. App. 281, 290, 872 P.2d 1135 (1994); State v. Carrier. 36 Wn. 

### App. 755, 757, 677 P.2d 768 (1984); State v. Vining, 2 Wn. App. 802, 808-09, 472 P.2d 564 (1970)). 77 Mehrabian, 175Wn. App. at 697 (citing Dash, 163Wn. App. at68; Reid. 74Wn. App. at 290). 78 Mehrabian. 175Wn. App. at 697 (citing Dash. 163Wn. App. at68; Reid. 74Wn. App. at 290-91). 79 Mehrabian. 175 Wn. App. at 697 (quoting State v. Mermis. 105 Wn. App. 738, 746, 20 P.3d 1044 (2001)). -25-NO. 69226-7-1 / 26

committed under a continuing criminal impulse that did not terminate until after 

### April 7, 2006." The court instructed the jury that to convictReederof firstdegree theft, it had to find the State proved beyond a reasonable doubt "[tjhat the acts 

### were part of a continuing course of conduct." To find that Reeder's acts constituted a "continuing course of conduct," the jury had to find that the acts 

### "were part of an ongoing criminal enterprise with a single objective." To find a "continuing criminal impulse," the jury had tofind that Reeder's "criminal impulse

or intentcontinued unabated throughoutthe acts." 

### Here, Reeder continuously misrepresented to McAllister that he intended to use McAllister's funds to acquire and develop land. Instead, Reeder used the 

### money at casinos and forpersonal expenses. Throughout the charging period, Reeder continued to solicit investments from McAllister while maintaining no 

### intent to acquire the properties. Thus, each time that McAllister gave money to 

### Reeder as part of this fraudulent scheme, Reeder committed another act of securities fraud and theft and restarted the limitations period. Because the State 

### charged Reeder within five years of his last act in 2007, we conclude that the
statute oflimitations does not barthe securities fraud orthe theft counts. Double Jeopardy 

### Finally, Reeder claims that his sentence violated the prohibition against double jeopardy because the trial court imposed multiple punishments for the
-26-NO. 69226-7-1 / 27



### same offense. A double jeopardy claim presents a question of law that we review de novo.80 The guaranty against double jeopardy in the United States 

### and Washington State Constitutions protects against multiple punishments for the same offense.81 Adefendant may raise a doublejeopardy challenge for the first time on appeal.82 When the State charges a person with violating the same statutory 

### provision numerous times, multiple convictions survive a double jeopardy 

### challengeonly ifeach is a separate "unitofprosecution."83 To analyze a double jeopardy claim, we must determine what "unit of prosecution" the legislature 

### intends as a punishable act under the statute.84 To make thisdetermination, we 

### apply the rules ofstatutory construction to the statute at issue.85 Weconstrue any ambiguitiesinfavor oflenity.86 We begin by examining the statute in question. RCW 21.20.010 defines
securities fraud as follows: 

### It is unlawful for any person, in connection with the offer, sale or purchase ofany security, directly or indirectly: 80 State v. Frodert. 84 Wn. App. 20, 25, 924 P.2d 933 (1996). 81 State v. Calle. 125 Wn.2d 769, 776, 888 P.2d 155 (1995). 82 State v. Adel, 136Wn.2d 629, 631-32, 965 P.2d 1072 (1998). 83 State v. Turner. 102 Wn. App. 202, 206, 6 P.3d 1226 (2000) (citing Adel, 136Wn.2d at 633-34). 84 Turner. 102 Wn. App. at 206 (citing Adej, 136 Wn.2d at 634; State v. Bobic. 140Wn.2d 250, 261, 996 P.2d 610 (2000)). 

### 85 Turner, 102Wn. App. at 206-07 (citing Adel, 136Wn.2d at 634). 86Turner, 102 Wn. App. at 207 (quoting Adel, 136 Wn.2d at 634-35). -27-NO. 69226-7-1 / 28 (1) To employ any device, scheme, or artifice to defraud; (2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or 

### (3) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person. 

### "'Sale' or 'sell' includes every contractofsale of, contractto sell, or disposition of, 

### a security or interestin a security forvalue."87 The legislature's choice to prohibitfalse or misleading acts inconnection with the sale of "any" security, as well as its choice to define "sale" to include 

### "every"sale, indicates its intent foreach separate sale of a security or interest in
a security to constitute a separate crime. Thus, the statute's plain language indicates that each transaction between McAllister and Reeder constituted a separate crime. Reeder claims that the unit of prosecution for securities fraud is "the scheme itself and is represented by Count 1 which alleges these practices 

### stretched across the charging period as part of a singular criminal impulse. . . . The remaining counts must be vacated and dismissed." He cites State v. Mahmood88 to support his argument, but that case addressed only whether the State could charge the separate alternatives listed in RCW 21.20.010(2) as separate crimes: 87 RCW 21.20.005(14). 8845 Wn. App. 200, 206, 724 P.2d 1021 (1986). -28-NO. 69226-7-1 / 29

[F]or the purposes of RCW 21.20.010, making an untrue statement and omitting to make a material statement are not separate offenses: They are connected by the object ofdeceiving; they may inhere in the same transaction and they are consistent and not repugnant to each other. Such an analysis is consistent with the rule of lenity described above. RCW 21.20.010 is very similar to the public assistance frauds statute, RCW 74.08.331, which
. . . defines a single crime that can be committed in several differentways. Here, in contrast, the State based each count upon a separate transaction; the charged acts did not "inhere inthe sametransaction." Therefore, Mahmood does not support Reeder's claim that the legislature intended each 

### scheme to constitute a single unit of prosecution regardless of the number of securities sold as part ofthe scheme. The time periods alleged here reflect the time periodsfor which Reeder's criminal impulse continuedforthose counts. Reederalso asserts thatthejuryinstructions "neveradvised thejurythatit
was required to find 'separate and distinct acts' for each count of securities 

### fraud." Citing Statev. Borsheim,89 Reederargues, "[T]he court did notinformthe jury that they must unanimously agree aboutthe act alleged, nor that they cannot rely on the conduct to support conviction on different counts." The court instructed the jury: "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdicton any other count."

89 140 Wn. App. 357, 367-68, 165 P.3d417 (2007). -29-NO. 69226-7-1 / 30

InBorsheim. the State alleged thatthe defendant committed four counts of 

### rape within the same charging period.90 We held that the trialcourt's single "to convict" instruction for all four counts failed to properly inform the jury that it 

### needed to find a separate act of rape for each count.91 Here, in contrast, the court gave separate "to convict" instructions for each count. Each instruction included a distinct date and evidence of a separate transaction supporting the individual count. Further, the prosecutor explained during the State's closing argument that each check McAllister wrote to Reeder constituted a separate
count of securities fraud and theft: Each transaction, every check between Mr. Reeder and Mr. McAllister is two crimes. One is Securities Fraud and the other one is Theft by Deception inthe First Degree. You see in Count Iand Count II, for example, have the same date because it's the same check, the same transaction, same as III and IV. All the odd numbers counts are Securities Fraud, and all even counts are Theftby Deception. 

### The jury instructions, evidence of the transactions at issue, and the State's closing argument properly informed the jurythat the State did not seek multiple convictions for the same transaction. Reedercites State v. Turner92 inchallenging his conviction of 14 counts of first degree theft. He asserts, "Washington's first degree theft statute does not 90 Borsheim. 140Wn. App. at 363, 367. 91 Borsheim, 140Wn. App. at 367-68. 92 102Wn. App. 202, 209, 6 P.3d 1226 (2000). -30-NO. 69226-7-1 / 31
expressly define the unit of prosecution, but is ambiguous as to whether multiple theft schemes or plans overthe same period oftime and againstthe same victim may be punished separately." He argues that the court should construe this ambiguity in his favor. RCW 9A.56.020(1)(b) defines "theft" as "[b]y color or aid of deception to obtain control over the property or services of another or the value thereof, with intent to deprive him or her of such property or services." A party "'wrongfully obtains'" or "'exerts unauthorized control'" over another's property when he or she, having that property in their possession, custody, or control as an agent, "secrete[s], withhold[s], or appropriate^] the same to his or her own use or to the


### use of any person otherthan the true owner orperson entitled thereto."93 Former RCW 9A.56.030(1) states, "Aperson is guilty of theft in the first degree ifhe or she commits theft of.
. . [pjroperty or services which exceed(s) one thousand five hundred dollars in value."94 In Turner, Turner embezzled money from his employer in 72 individual 

### acts of theft over a 10-month period.95 He used four different methods or "schemes," which were concurrent during the 10-month period, to embezzle the money.96 The State charged Turner initially with one count of theft for all 72 93 Former RCW9A.56.010(19)(b) (2006). 94 Former RCW 9A.56.030(1)(a) (2005). 95 Turner, 102 Wn. App. at 204. 96Turner, 102 Wn. App. at 204. -31-NO. 69226-7-1 / 32

transactions but later amended the information to charge him with four counts of first degree theft by grouping the acts into the four schemes he used to steal the 

### money.97 A juryconvicted him onthree ofthefour counts.98 On appeal, the State argued that "its discretion under former RCW 9A.56.010(17)(c) (1998) to aggregate various third degree thefts to first degree theft demonstrates that the relevant unit of prosecution here is each of the 

### multipleschemes or plans underwhich Turner stole funds."99 Engaging in a unit of prosecution analysis, this court disagreed with the State and reversed two of the three convictions, explaining, The first degree theft statute makes no mention of schemes or plans in distinguishing the seriousness of the crime from other degrees of theft. And there is no wording in the statute that indicates any other relevant distinction between multiple acts of theft committed against the same person over the same period of time. We conclude that the lack of clarity creates ambiguity whether multiple schemes or plans constitute separate units of prosecution under the first degree theft statute. Thus, the rule of 

### lenitydictates thatwe construethis ambiguity in favor ofTurner.[100] This case does not involve multiple schemes as considered in Turner. Further, the court inTurner did not hold thatthe State is prohibited from charging multiple counts based on separate, unauthorized withdrawals: 

### 97Turner. 102Wn. App. at 204. 98Turner, 102Wn. App. at 204. 

### 99Turner. 102Wn. App. at 207 (footnote omitted). 100Turner. 102Wn. App. at 209 (footnote omitted). -32-NO. 69226-7-1 / 33
We do not address whetherthe State was free to charge 72 individual counts oftheft in this case. Because of our resolution of the double jeopardy issue, we need not reach the question of whether the court erred by determining that the multiple counts did not constitute the same criminal conduct.[101] Turner does not change the well-established rule that prosecutors have 

### considerable latitude either to aggregate charges or to bringmultiple charges.102 The unit ofprosecution under former RCW 9A.56.030(1)(a) for first degree theft

was $1,500 for each fraudulent transaction. Because the State had discretion to charge Reeder with a separate count of securities fraud and theft for each discretetransaction, he was not subjectto doublejeopardy. CONCLUSION Reederfails to allege facts showing that his trial attorney had a conflict of interest that deprived him of effective assistance of counsel. The State did not violate his privacy right by obtaining his bank and credit card records through the special inquiry proceedings. The statute of limitations periods did not expire

101 Turner, 102 Wn. App. at 212. 102 See, e.g.. State v. Lewis. 115 Wn.2d 294, 299, 797 P.2d 1141 (1990) (recognizing that prosecutors have wide discretion indetermining how and when to file criminal charges); State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984) ("Whether the incidents are to be charged separately or brought as one charge is a decision within prosecutorial discretion."), overruled on othergrounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988); State v. Pettitt, 93 Wn.2d 288, 295, 609 P.2d 1364 (1980) (acknowledging that prosecutorial discretion in charging assumes a prosecutor "will exercise [that discretion] after an analysis of all available relevant information"). -33-NO. 69226-7-1 / 34

before the State charged Reeder. The State acted within its discretion when it charged Reeder with separate counts for each discrete fraudulent transaction. Forthese reasons, we affirm.

WE CONCUR: 

# L^ P 

# U-Atr-eQQe.^

-34-