State Of Washington v. Thomas Allen Christian, 75536-6

Thomas Christian used a stolen U.S. Bank debit card at a Burlington Coat Factory on July 20, 2015; three swipes occurred in close succession.
The bank authorized the first transaction ($109.06) and declined the next two ($213.39 and $113.39).
The card owner testified the card was missing and she did not make the transactions; bank records matched the store receipts.
Store security video identified Christian at the register; he initially denied but later admitted using the card.
Christian was convicted after a bench trial of one count second-degree theft and three counts second-degree identity theft; the court imposed an exceptional sentence and a $125 jury demand fee.
On appeal, Christian challenged sufficiency of evidence for two identity-theft convictions (based on declined transactions) and the legality of the jury demand fee.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "use" in RCW 9.35.020(1) requires successful completion of the intended underlying crime	State: "Use" means employing financial information; completed underlying crime is not an element	Christian: Declined transactions are only attempts, so convictions for completed identity theft cannot stand	Court: "Use" means employ/put into service; swiping the card constituted "use" even though bank declined transactions; convictions affirmed
Whether declined transactions are only "attempt" rather than "use"	State: Actual employment of the card (swipe) is sufficient	Christian: Failed authorizations are unsuccessful, so only attempt occurred	Court: Declined authorizations do not negate that defendant used the card; identity theft completed upon use
Whether imposition of a $125 jury demand fee as a cost was authorized	State conceded fee was improperly imposed	Christian requested reversal of that cost	Court: Agreed with State; reversed and remanded to strike the jury demand fee
Whether appellate costs should be awarded to State	State waived seeking costs	Christian asked court to deny State costs	Court: No appellate costs awarded to State

In re Winship, 397 U.S. 358 (establishes due process requirement that prosecution prove every element beyond a reasonable doubt)
State v. Baldwin, 150 Wn.2d 448 (identity theft requires use of a means of identification with intent to commit an unlawful act)
State v. Milam, 155 Wn. App. 365 (affirming separate convictions for theft and identity theft where a stolen card was used)
State v. Fedorov, 181 Wn. App. 187 (providing that giving another's identifying information to officials constituted "use")
State v. Veliz, 176 Wn.2d 849 (discussing statutory interpretation and standards of review)