State v. Zibulsky
266 Or. App. 633
Or. Ct. App.2014Background
- Defendant, the victim Sims's daughter, assumed care responsibilities and received a power of attorney after Sims's wife died.
- Defendant’s name was added to Sims’s Sun account and a Chase account; both were titled in Sims’s and defendant’s names.
- Sims maintained a Union Bank account in his own name only.
- Counts 7, 22, and 24 charged identity theft based on transactions on the Sun, Chase, and Union accounts respectively.
- Defendant moved for judgments of acquittal at the end of the State’s case; the court denied the motions and a jury convicted on those counts.
- The court later reversed Counts 7 and 22, but upheld Count 24, and the case proceeded to sentencing on the remaining convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ORS 165.800 apply to transactions on joint accounts by a joint holder? | State: sharing account info still violates identity theft statute. | Defendant: using joint-account information is not ‘another person’s’ personal information. | Counts 7 and 22 reversed; statute not satisfied for joint-account use. |
| Was the power of attorney argument preserved for Count 24, allowing reversal there? | State: no issue; Count 24 properly proven. | Defendant: POA authorized the withdrawal; should negate liability. | Issue not preserved; not considered on appeal. |
| Overall standard for ruling on MJOAs and sufficiency of evidence for identity theft elements. | State: evidence supports identity-theft elements. | Defendant: no evidence of using another person’s personal information. | Court applied proper standard; concluded no rational basis to convict on Counts 7 and 22. |
Key Cases Cited
- State v. Rennells, 213 Or App 423 (2007) (standard for reviewing MJOA sufficiency)
- State v. Bilsborrow, 230 Or App 413 (2009) (MJOA deference to state's case at end of evidence)
- State v. Gardner, 231 Or 193 (1962) (early MJOA timing and review)
- State v. Jackson, 212 Or App 51 (2007) (standard for affirming MJOA denial after State's case)
- State v. Wyatt, 331 Or 335 (2000) (preservation of objections at trial)
- State v. Lavadores, 230 Or App 163 (2009) (preservation and specificity of appellate arguments)
- State v. Flowers, 136 Or App 555 (1995) (time-of-offense rules for applying statutes)