IN THE COURT OF APPEALS OF THE STATE OFWASHINGTON

STATE OFWASHINGTON, No. 78176-6-I

Respondent, DIVISION ONE V. UNPUBLISHED OPINION KAREYANN HINKSON, Appellant. FILED: September23, 2019

ANDRUS, J.

— KareyAnn Hinkson appeals her conviction forfirst degree identity theft. She contends the charging documentwas constitutionally deficientforomitting an essential element ofthat crime. She also challenges a community custodycondition that bars her from possessing identifying information of others, arguing that the condition exceedsthetrial court’s statutoryand constitutional authority. Finally, she challenges the imposition of a filing fee and DNA collection fee. We remand to the trial courtto clarify the community custody condition and to strike the filing fee and DNA collection fee. We otherwise affirm Hinkson’sjudgment and sentence. FACTS In May 2013, MacPherson’s Property Management, Inc. (MacPherson’s) contacted Bank ofAmerica to report that numerous fraudulent checks had posted to its account. An internal investigation revealed that between May 13 and May 18, 2013,
seven individuals had cashed a total of38 counterfeit MacPherson’s checks, primarily atNo. 78176-6-1/2

Bank ofAmerica branches located around the greater Everett area. The cashed checks ranged in value from $923.07to $1745.80, fora total of$49,052.77. Detective Jamie French of the Everett Police Department’s financial crimes unit began investigating the fraudulent MacPherson’s checks, and Hinkson’s possible involvement. On June 1, 2013, police served a search warrant on the residence Hinkson shared with Kenneth Beaman. They recovered laptop computers, data storage devices, printers, CDs, and materials for producing forged items. Hinkson denied producing or distributing forged checks atthattime. As a result of information gathered in the first search, police developed probable
causeto conducta second search ofthe residence on June 12, 2013 based on fraudulent check activity involving the Washington State Urology Society. When police entered the residence, theyfound Hinkson kneeling in front ofthefireplace burning blank checkstock and other items. Thatsearch yielded additional items including laptops, cell phones, and
a data storage card containing images of multiple driver’s licenses. Further forensic analysis of these items revealed evidence of attempts to make false driver’s licenses using other people’s information, including that of Rachel Ward. During a subsequent interview with police, Hinkson admitted using the stolen credit card and identification of Lindsay Mullettto shop at Macy’s. On December 13, 2013, police served a third search warrant at Hinkson and Beaman’s residence. They recovered more computers, hard drives, fake identifications, stolen mail belonging to other people, receipts corresponding to known fraudulent transactions, checks, and other indicia of financial crimes. In an interview, Hinkson admitted her involvement in a fraudulent check cashing ring involving multiple victims,

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including MacPherson’s and the Washington Urology Society. Hinkson asserted that Beaman directed herto create counterfeit checks made outtovarious named payees. At trial, the State presented testimony that Hinkson or Beaman drove payees to the bank, then waited in the car while the payee cashed the fraudulent check in exchange for a portion ofthe proceeds. On July 22, 2016, the State filed a third amended information charging Hinkson with the following five counts: (1) first degree identity theft relating to MacPherson’s, (2) first degree identity theft relating to the Washington State Urology Society, (3) forgery relating to MacPherson’s, (4) second degree identitytheft relating to Lindsay Mullett, and (5) second degree identitytheft relating to Rachel Ward. Thejury acquitted Hinkson on two ofthe identity theft charges, butfound her guilty on one count of identitytheft in the first degree relating to MacPherson’s, one count of identity theft in the second degree relating to Rachel Ward, and one count offorgery, also relating to MacPherson’s. The court imposed a standard range sentence of 84 months confinement plus 12 months of communitycustody. As a condition ofcommunitycustody, the courtordered that Hinkson “not possess identifying information of others.” Hinkson appeals only the conviction for identitytheft in thefirst degree and portions ofthe sentence. DISCUSSION 1. Sufficiency of Charging Document Forthefirsttime on appeal, Hinkson arguesthatthe amended information charging herwith firstdegree identitytheftwas constitutionallydeficient because itfailed to specify that she committed multiple acts of identity theft as part of a common scheme or plan.

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We reviewthe adequacy ofa charging document de novo. State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30(2007). Criminal defendants have a constitutional right to be informed of the nature and
cause ofthe charges against them. U.S. CONST. amend. VI; WASH. CONST. art. I, 

### § 22. To be constitutionallysufficient, a charging document must include all essential elements of a crime, both statutory and nonstatutory, so as to inform a criminal defendant ofthe charges and to allowthe defendant to prepare a defense. State v. Kiorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). “An ‘essential element’ is one whose specification is necessaryto establish the very illegality ofthe behaviorcharged.’ “State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013) (quoting State v. Ward, 148 Wn.2d 803, 811, 64 P.3d 640 (2003)). “The purpose ofthis essential elements rule is to sufficiently apprise the defendant of the charges against them so that he or she may prepare a defense.” Statev. Kosewicz, 174 Wn.2d 683, 691, 278 P.3d 184 (2012). When a defendant challenges the sufficiency ofa charging documentforthe first time on appeal, we liberally construe it in favor ofvalidity. Kjorsvik, 117 Wn.2d at 105. To determine the sufficiency of the information, we apply the two-prong Kiorsvik test: “(1) dothe necessaryfacts appear in anyform, or byfairconstruction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced bythe inartful language which caused a lack of notice?” Kiorsvik, 117 Wn.2d at 105—06. Ifthe necessary elements are not found or cannot be fairly implied on the face of the information, prejudice is presumed and the conviction must be reversed. State v. Brown, 169 Wn.2d 195, 198, 234 P.3d 212 (2010).

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The crime of identitytheft is defined as follows: ‘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.” RCW 9.35.020(1). The crime is identitytheft in the first degree ifthe offender “obtains credit, money, goods, services, or anything else of value in excess of [$1 500] in value

. RCW 9.35.020(2). Otherwise, the crime is identity theft in the second degree. RCW 9.35.020(3). In addition, the State may charge a defendant with identitytheft in the first degree byaggregating the value ofmultiple lessertransactionsto surpass the $1 500.00 threshold, as follows: Whenever any series oftransactions involving a single person’s means of identification or financial information which constitute identity theft would, when considered separately, constitute identitytheft in the second degree because of value, and the series oftransactions are a part ofa common scheme orplan, then the transactions may be aggregated in one countand the sum ofthevalue ofall ofthe transactions shall be the value considered in determining the degree of identitytheft involved. RCW 9.35.020(5) (emphasis added). Here, the third amended information alleged Hinkson committed identitytheft in the firstdegree as follows: Count 1: FIRST DEGREE IDENTITYTHEFTcommitted asfollows: Thatthe defendant, on or about the 13th day of May, 2013 through the 18th day of May, 2013, did knowingly obtain, possess, use and transfer a means of identification and financial information of a person, to wit: MacPherson’s Property Management Inc., with the intentto commit, aid, and abet a crime, to-wit: Forgery and Theft, and the defendant or an accomplice used such person’s means of identification and financial information to obtain credit, money, goods, services, and other things having an aggregate value totaling more than $1,500.00; proscribed by RCW 9.35.020(1) and (2), a felony. Hinkson, relying on State v. Rivas, 168 Wn. App. 882, 278 P.3d 686 (2012), contends that when the State aggregates the value of a series of lessertransactions to
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reach the $1 500threshold forfirstdegree identitytheft, a “series oftransactions” thatare “a part of a common scheme or plan” is an essential element ofthe crime that must be alleged in the information. In Rivas, the State charged the defendant with malicious mischief in the second degree for causing damage to two vehicles owned by the same individual. at885. RCW9A.48.lOO(2) allowsthe Statetoaggregate damagesto reach the $750threshold formalicious mischiefin the second degree ifthe defendant damaged
more than one item of property pursuant to a “common scheme or plan.” In that case, the State had to aggregate the value ofthe damage to each vehicle in orderto reach the $750 threshold necessary to prove the crime. Rivas at 889. The charging document, however, did not allege thatthe crimes were committed as part ofa “common scheme or plan.” ki. at 890. The court held that “a common scheme or plan is an essential element of second degree malicious mischiefwhere the State aggregates the value of damages to morethan one item of property.” ~ at 889. Because the charging documentfailed to allegethis essential element, reversal was required. ki. at 890—91. Hinkson points outthatthe identitytheft statute contains an aggregation provision similartothe malicious mischiefstatutethat increases multiple second degree crimes into
a first degree crime. ~ RCW 9.35.020(5). Hinkson therefore asserts that that the information charging her with identity theft in the first degree was deficient because it failed to allege thatshe conducted a “series oftransactions” thatwere “part ofa common scheme or plan” as required by RCW 9.35.020(5). Because those essential elements in question were entirely missing from the information, Hinkson asserts that prejudice is presumed and reversal is required.

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The State acknowledgesthat“common scheme or plan” is an essential element of the crime, butthatthe missing element may be implied from a common sense reading of the allegation that Hinkson used MacPherson’s “identification and financial information

. . . to obtain credit, money, goods, services, and other things having an aggregate value totaling more than $1,500.00.” According to the State, this language reasonably implies thatthe information charged~ Hinkson with committing multiple acts of identitytheft against a single victim throughoutthefive-day charging period pursuantto a common scheme or plan. Both parties appearto assume thatthe State had to aggregatethevalue ofthe 38 counterfeit MacPherson’s checks in order to reach the $1,500 threshold necessary to charge Hinkson with identity theft in the first degree. Had none of the MacPherson’s checks exceeded $1,500 in value, aggregation would indeed be required to prove the crime as charged. Butthe record shows thatthree ofthe 38 MacPherson’s checkswere written in an amount over$1500. These include: (1) check number30800 in the amount of$1,745.25; (2) check number30845 in the amountof$1,745.80; and (3) check number 30767 in the amount of$1 ,575.00. All three checks were introduced as evidence attrial. Because the State did not need to aggregate the value ofthe individual checks to reach the $1,500 threshold for first degree identity theft, it did not need to allege that the transactions were “part ofa common scheme or plan” under RCW 9.35.020(5). “[W]here unnecessarylanguage is included in an information, thesurplus language is not an element of the crime that must be proved unless it is repeated in the jury instructions.” State v. Tvedt, 153 Wn.2d 705, 718, 107 P.3d 728 (2005). “Nor is the information insufficient as a charging document ifthe defendant is not prejudiced bythe

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inclusion ofthe unnecessary language.” ~ at718 (citing State v. Stritmatter, 102 Wn.2d 516, 524, 688 P.2d 499 (1984). Surplusage is not prejudicial tothe defendant unless she is confused ormisled astowhatconduct isthe basis ofthe charge. Stritmatter, 102Wn.2d at 524.Here, the to-convictjury instructions state, in relevant part: To convict the defendant ofthe crime of identitytheft in the first degree as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 13th day of May, 2013, through the 18th day of May, 2013, thedefendantknowinglyobtained, possessed, ortransferred or used a means of identification or financial information of another person; (2) Thatthe defendant did so with the intentto commit orto aid orabetthe crimes offorgery ortheft; (3) That the defendant knew that the means of identification or financial information belonged to another person; (4) That the defendant or an accomplice obtained credit, money, goods, services, or anything else in excess of $1,500 in value from the acts described in element (1); and (5) That anyofthese acts occurred in the State ofWashington. Significantly, this instruction did not state that the State needed to prove that the transactions had an “aggregatevaluetotaling”over$1 ,500.1 Norwas Hinkson prejudiced by the inclusion of the surplus language. Hinkson’s defense at trial was that she was

1 During opening and closing argument, the prosecutor noted thatthe total lossfrom the MacPherson’s checks was in excess of $50,000. But the State did not expressly argue that it aggregated multiple second degree identitythefts to reach the threshold forfirst degree identity theft. The prosecutor’s argumentwas not inconsistentwith the evidence orwith the language in the information ortheto-convict instruction. 8No. 78176-6-1/9

merely presentwhile others madethe counterfeit checks and thatthewitnesseswere not credible. In sum, the State was not required to aggregate multiple second degree identity thefts to charge Hinkson with first degree identity theft. The surplus language in the information maybe disregarded. The information properly included all essential elements ofthe crime of identitytheft in thefirstdegree. 2. Community Custody Condition Hinkson argues that the community custody condition restricting her from “possess[ing} identifying information of others” exceeds the court’s statutory and constitutional authority and must be stricken. Although Hinkson did not object to this condition below, she may challenge it for the first time on appeal. State v. BahI, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). We review a trial court’s imposition of crimerelated prohibitions forabuse ofdiscretion. Statev. Cordero, 170Wn. App. 351, 373, 284 P.3d 773 (2012). A court abuses its discretion if its decision is manifestly unreasonable
or exercised on untenable grounds orfor untenable reasons. State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993). Courts may “impose and enforce crime-related prohibitions and affirmative conditions” as part of any sentence. RCW 9.94A.505(9). A “[c]rime-related prohibition’

. . . prohibit[sJ conduct that directly relates to the circumstances ofthe crime forwhich the offender has been convicted.” RCW 9.94A.030(10). There is no abuse of discretion if a “reasonable relationship” exists between the crime of conviction and community custody condition. State v. Nguyen, 191 Wn.2d 671, 684, 425 P.3d 847 (2018) (quoting State v. Irwin, 191 Wn. App. 644, 658-59, 364 P.3d 830 (2015). “So long

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as it is reasonableto conclude thatthere is asufficientconnection between the prohibition and the crime ofconviction, we will not disturb the sentencing court’s communitycustody conditions.” Nciuyen, 191 Wn.2d at 685-86. There is ample evidence that Hinkson used the identifying information ofothers to commit identity theft. She was found in possession of multiple items ofthe identifying information ofothers, including a data storage card containing images of multiple driver’s licenses and attempts to make false driver’s licenses using other’s information. And overwhelming evidence at trial showed that Hinkson used MacPherson’s information to make counterfeit checks, which she gave to others to cash. In addition, the trial court
was awarethat Hinkson had a lengthycriminal historywith multiple convictionsforidentity theftand forgery. Some restriction on Hinkson’s possession ofother people’s identifying information was plainly appropriate. Hinkson contends that the condition is not reasonably crime-related because it bars any possession of the information of others, rather than being limited to illegal possession or use. For the same reason, Hinkson further asserts that the condition is void forvagueness. “A community custody condition is unconstitutionally vague ifeither ‘(1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.” State v. WalImuller, 4 Wn. App.2d 698, 701, 423 P.3d 282 (2018) (quoting Statev. Padilla, 190Wn.2d 672, 677, 416 P.3d 712 (2018)). “The imposition of an unconstitutionally vague condition is an abuse ofthe trial court’s discretion.” State v. Johnson, 180 Wn. App. 318, 326, 327 P.3d 704 (2014).

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The State concedes that the phrase “identifying information” could encompass a wide range of information, some ofwhich the trial court may not have intended to restrict the defendant from possessing. We agree. The condition could allow Hinkson to be punished forotherwise lawful possession ofthe identifying information ofothers, such as holding a relative’s credit card, checkbook, or passport with their knowledge and permission. Wetherefore strikethe condition asvoid forvagueness and grantthe State’s requestto remand to the trial courtfor resentencing to correct the error by narrowing or clarifying the condition. 3. Legal Financial Obligations Hinkson seeks to strike the $100 DNA fee and $200 filing fee from thejudgment and sentence. The State concedes that, while these legal financial obligations were properly imposed atthe time ofsentencing, they should be stricken pursuantto recently amended RCW36.18.020, RCW43.43.7541, and Statev. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018). We acceptthe State’s concession and agree. We remand tothetrial courtto clarifythe communitycustodycondition and tostrike the $100 DNA fee and $200 filing fee. We otherwise affirm Hinkson’s convictions and sentence. Affirmed in part and remanded.

WE CONCUR:

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