Opinion
No. 62337-1-I.
November 16, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-11464-1, James D. Cayce, J., entered September 4, 2008.
Affirmed by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Cox, J.
Shannon Culbertson challenges her conviction of second degree identity theft, arguing that insufficient evidence supports the conviction. She claims that proof of use of an account number only without evidence of use or possession of any other personal or identifying information does not prove the crime of second degree identity theft. Because evidence of use of a single piece of another's financial information with the requisite unlawful intent proves this crime, sufficient evidence supports the conviction. We affirm.
Background
On December 3, 2007, Fashion Bug employees Danielle Weaver and Emily McDonald called 911 to report that two females were attempting to purchase about $430 worth of clothing with a fraudulent Visa gift card. The two women entered the store shortly before closing, began hurriedly selecting a large amount of clothing without trying any garments on, and brought the items up to the counter. McDonald recognized the women from the previous month when they made purchases at the store with a suspected fraudulent gift card. Culbertson's card failed to scan, and she asked that the number be entered manually. Culbertson explained that she had just received the gift card from her father with a $1,000 credit balance. The Visa gift card bore an account number ending in 1013.
Auburn Police Officers Adamski and Powell responded to the call. They contacted both of the women and took possession of the gift card. Culbertson told the police that she received the card from her uncle in Arizona with a $1,000 balance and that she had just used the card at a local Shell gas station where the card numbers were manually entered. Upon inspection, the Visa gift card appeared to have a plastic laminate on the front that was peeling at one corner, and a nick was noticeable under the plastic. Additionally, the original account number was scratched off the card itself, and an account number and expiration date were printed on the plastic laminate. No name or other identifying information was printed on the card.
The officers detained both of the women and read them their Miranda rights. Culbertson identified herself as Sarah J. Laramore and gave a date of birth as well as the last four digits of a social security number. Officer Powell believed Culbertson to be older than she claimed to be and later discovered that the name and information she gave to him were false.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
While in custody at the Auburn jail, Culbertson provided a written and oral statement to Detective Tom Dynes. In her statement, Culbertson explained that she traveled from Puyallup to Auburn with Daniele Christman and rented hotel room #132 at the Auburn Days Inn in order to be present for a medical procedure her daughter was undergoing the next day. Culbertson stated that Christman's friend, "Tommy," drove them to Walgreens to buy medication for Culbertson's daughter. They also stopped at a gas station so Tommy could buy cigarettes. He then gave both women the Visa gift card in order to buy a change of clothes, instructing them not to spend more than $500.
Detective Dynes visited the Days Inn, Chevron gas station, and Walgreens identified by Culbertson. He obtained a copy of the registration and signed credit receipt for Days Inn room #132, paid for with the Visa gift card. A Days Inn employee working at the front desk, Chris Mackay, remembered having to manually enter the gift card number to complete the transaction. Detective Dynes also obtained surveillance videos, in which Culbertson appears, and sales receipts with the same gift card number used at both the Chevron gas station and Walgreens. The electronic record from Walgreens indicates that the transaction was manually keyed in rather than swiped. Contrary to Culbertson's statement, the items purchased at Walgreens did not include medication.
Detective Dynes contacted the owner of the account number used on the Visa gift card, Daniel Charpentier of Manitoba, Canada, and verified that he was the sole owner of the Visa account number used by Culbertson. Charpentier had been in the Seattle area on December 3, 2007, and used his Visa credit card several places, including Kent. He verified that he did not give anybody, including Culbertson, permission to use his credit card information.
Analysis
Culbertson challenges the sufficiency of the evidence supporting her conviction, arguing that proof of use of an account number only without evidence of use or possession of any other personal or identifying information does not prove the crime of second degree identity theft.
The State must prove each element of the charged crime beyond a reasonable doubt. Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime proved beyond a reasonable doubt. Circumstantial evidence and direct evidence are equally reliable. An insufficiency claim admits the truth of the State's evidence, and we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.
State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995).
State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
In order to prove second degree identity theft, the State was required to show that Culbertson knowingly used a means of identification or financial information of Charpentier, with the intent to commit a crime, and obtained money or goods less than $1,500 in value. RCW 9.35.005 provides the relevant definition of "financial information":
Former RCW 9.35.020 (2004) provides:
(1) 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.
. . . .
(3) Violation of this section when the accused or an accomplice uses the victim's means of identification or financial information and obtains an aggregate total of credit, money, goods, services, or anything else of value that is less than one thousand five hundred dollars in value, or when no credit, money, goods, services, or anything of value is obtained shall constitute identity theft in the second degree. Identity theft in the second degree is a class C felony punishable according to chapter 9A.20 RCW.
(1) "Financial information" means any of the following information identifiable to the individual that concerns the amount and conditions of an individual's assets, liabilities, or credit:
(a) Account numbers and balances;
(b) Transactional information concerning an account; and
(c) Codes, passwords, social security numbers, tax identification numbers, driver's license or permit numbers, state identicard numbers issued by the department of licensing, and other information held for the purpose of account access or transaction initiation.
The plain language of RCW 9.35.005(1)(a) defines account numbers identifiable to an individual as "financial information." Culbertson cites State v. Berry as her only authority for the proposition that the State must prove she used personal information in addition to Charpentier's account number to convict her of identity theft. She claims that the language "Berry simply used an account number that matched Paulson's account number. He did not use Paulson's name or other examples of identity" mandates that personal information in addition to account information for a real person must be used by a defendant in order to commit identity theft.
129 Wn. App. 59, 117 P.3d 1162 (2005).
Berry, 129 Wn. App. at 67.
In Berry, the defendant used a driver's license with the name Timothy J. Davis in an attempt to cash a check. The account number on the check was a valid account number for an account owned by Herb Paulson. The State charged Berry with second degree identity theft, alleging that he used a driver's license belonging to "Tim Davis" with the intent to commit a crime. The trial court accepted Berry's Alford plea and subsequently denied his motion to withdraw this guilty plea. The certification relied upon by the trial court to establish a factual basis for Berry's plea contained no evidence that Tim Davis was a real as opposed to a fictitious person.
Berry, 129 Wn. App. at 63.
Berry, 129 Wn. App. at 63.
Berry, 129 Wn. App. at 62.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Berry, 129 Wn. App. at 63-64.
Berry, 129 Wn. App. at 66-67.
Berry appealed, and this court held that "[b]ecause Berry was not charged with stealing the identity of a specific, real person, the certification did not (and could not) provide a factual basis for the plea. Without that factual basis, the plea was not truly voluntary." Thus, Berry holds that one does not commit the crime of identity theft under former RCW 9.35.020 by using financial information for a fictitious person. Berry was not charged with possessing or using the financial information of Paulson. Had the State charged Berry with using the financial information of Herb Paulson, the certification would have provided a sufficient factual basis for his plea.
Berry, 129 Wn. App. at 68.
In State v. Leyda, the court addressed the unit of prosecution under former RCW 9.35.020. It concluded "that the language of RCW 9.35.020 and its legislative history indicate that the legislature intended that the prosecution unit be any one act of either knowingly `obtain[ing], possess[ing], us[ing], or transfer [ring]' a single piece of another's identification or financial information with the requisite unlawful intent." Therefore, contrary to Culbertson's contention, the State was not required to prove that Culbertson possessed or used more than one piece of Charpentier's financial information to convict Culbertson.
157 Wn.2d 335, 138 P.3d 610 (2006).
Leyda, 157 Wn.2d at 345 (emphasis added) (alterations in original).
In this case, the State charged Culbertson with second degree identity theft, alleging that she knowingly used the account number of Charpentier. Culbertson stipulated that the number on the gift card belonged to Charpentier's account and that she never received permission to use it. The State presented overwhelming evidence of Culbertson's use of the number. This evidence was sufficient to support Culbertson's conviction of identity theft in the second degree.
Conclusion
We hold that the State presented sufficient evidence at trial to convict Culbertson of identity theft in the second degree.
Affirmed.