People v. Bensen, 2017 IL App (2d) 150085

Beverly Bensen was employed by ~80-year-old John Cuneo as personal secretary/office manager and had access to company and personal accounts; Cuneo provided an American Express card for corporate use.
American Express account listed both Bensen and Cuneo/corporation; the physical card used by Bensen identified her as the cardholder and bore a number tied to her.
Investigation showed thousands of dollars in personal charges (electronics, clothing, groceries, tuition, etc.) on the American Express account and evidence of missing lease documents and unpaid rent/utilities.
Bensen testified Cuneo authorized charges and forgave rent; Cuneo denied authorizing many of the charges.
Bensen was convicted by a jury of aggravated identity theft, theft, and financial exploitation of an elderly person; trial instructions for identity theft omitted the statutory mental-state wording.
The appellate court reversed the aggravated-identity-theft conviction, directed reinstatement and sentencing on the theft and financial-exploitation convictions, and remanded; it declined to reach the jury-instruction claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether use of a credit card that identified defendant as cardholder constituted "use of personal identifying information of another person" for identity theft	The State argued Bensen exceeded authority by using a corporate card tied to Cuneo and thus used Cuneo's identifying information	Bensen argued the card and number identified her (not Cuneo), so she did not use another person's identifying information	Reversed aggravated-identity-theft conviction: card identified defendant, so State failed to prove use of "another person"'s identifying information under the theory tried at trial
Whether appellate court may accept alternative theory (use of Cuneo's checking account numbers) not argued to jury	State urged on appeal that checks/ account numbers could support identity theft	Bensen noted due-process limits on changing prosecution theory on appeal	Court refused to consider the alternative theory because it was not presented to the jury; reversal stands

People v. Collins, 214 Ill. 2d 206 (discusses sufficiency-of-evidence standard)
People v. Montoya, 373 Ill. App. 3d 78 (misrepresenting oneself as another supports identity-theft liability)
State v. Zibulsky, 338 P.3d 750 (Or. Ct. App. 2014) (use of one’s own identifying information does not constitute identity theft)
State v. Ritter, 380 P.3d 1160 (Or. Ct. App. 2016) (possession/control of another’s identification is required for identity theft)
State v. Cotton, 194 So. 3d 69 (La. Ct. App. 2016) (company card that uniquely identified employee as cardholder did not support identity theft against employer)
People v. Crespo, 203 Ill. 2d 335 (prohibits State from changing theory of prosecution on appeal)