The state charged defendant with various crimes arising from her involvement in her elderly father’s financial affairs, including first-degree theft, first-degree criminal mistreatment, and identity theft. She appeals the resulting judgment of conviction, asserting that the trial court erred in denying her motions for a judgment of acquittal (M JOAs) on three of the identity-theft counts for which a jury ultimately convicted her. See ORS 165.800 (stating crime of identity theft). Two of those counts were premised on the state’s contention that defendant had unlawfully appropriated her father’s identity when she withdrew money from two bank accounts that she and her father owned jointly and that, accordingly, were maintained in both of their names.
“We review the denial of an MJOA to determine whether, after viewing the facts in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.” State v. Rennells,
Defendant is the daughter of the victim, Sims. In the months after Sims’s wife passed
The three identity-theft counts at issue in this appeal involve transactions that defendant made on those three bank accounts (Counts 7, 22, and 24). In September 2008, defendant withdrew all funds from the Sun account and closed it (Count 7). In June 2009, defendant purchased airline tickets using a debit card tied to the Chase account (Count 22). In September 2009, defendant drafted a check on the Union account, payable to herself, and withdrew additional funds from that account using an ATM (Count 24). Referring to those transactions, the state’s indictment alleged, in each of the three separate identity-theft counts, that defendant “did unlawfully, with intent to deceive and defraud, obtain, possess, transfer, create, utter and convert to defendant’s own use [the] personal identification of [Sims].”
Defendant moved for a judgment of acquittal on those three counts, among others, at the end of the state’s case in chief. The trial court denied the motions, stating, “I believe that there is sufficient evidence from which a jury could return a verdict in favor of the State in the — viewing the evidence in the light most favorable to the State, and that the identity theft statute can be and should be interpreted to apply to the facts of this case.” A jury convicted defendant of the three identity-theft counts at issue on appeal, as well as additional crimes that defendant does not challenge on appeal.
Defendant presents two distinct arguments for why the trial court erred in denying her MJOAs on the three identity-theft counts. First, with respect to Counts 7 and 22 — those involving the transactions on the joint bank accounts — she contends that, as a matter of legislative intent, the identity-theft statute does not encompass a person’s use of bank-account information that the person shares with another. Second, defendant contends that the power of attorney granted her the authority to make each of the transactions in question.
The trial court’s denial of defendant’s MJOAs involved a question of statutory interpretation, which we review for legal error. State v. Bordeaux,
We begin with defendant’s first argument, which pertains only to the denial of her MJOAs on Counts 7 and 22. The identity-theft statute provides, in pertinent part:
“(1) A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person’s own use the personal identification of another person.
“(4) As used in this section:
“(a) ‘Another person’ means a real person, whether living or deceased, or an imaginary person.
“(b) ‘Personal identification’ includes, but is not limited to, any written document or electronic data that does, or purports to, provide information concerning:
“(H) The identifying number of a person’s depository account at a ‘financial institution’ or ‘trust company,’ as those terms are defined in ORS 706.008, or a credit card account;
“(M) A person’s personal identification number.”
ORS 165.800 (2011).
Thus, the parties cast their arguments in terms of conflicting interpretations of the term “another person” as it is used in ORS 165.800. But we perceive, in those arguments, no meaningful difference in the parties’ understandings about what those words mean. That is, both agree that Sims was “another person,” and that the statute criminalizes the use of “another person [’s]” “personal information” but not one’s own “personal information.” Instead, the crux of the parties’ dispute lies in their competing characterizations of defendant’s acts. The state is correct when it points out that — so far as the evidence reveals — the bank-identification information for the Sun and Chase accounts belonged as much to Sims (“another person”) as it did to defendant and that she therefore necessarily used the “personal information” of “another person” when she drew off the account. When characterized that way, defendant’s acts fall within the proscription of the statute. But defendant is equally correct when she points out that the “personal identification” at issue was as much hers as it was Sims’s and that nothing in the statute proscribes a person from using his or her own personal information, as opposed to that of “another person.” When characterized that way, defendant’s acts do not fall within the statute.
We need not explore that abstract dispute about whose bank-account information defendant used, however, because, as both parties acknowledge, the gravamen of the crime of “identity theft” is the improper use by one
The state also attempts to cast the distinction in characterizations as a factual one — i.e., whether, as a matter of historical fact, defendant was using her personal information or Sims’s personal information when she made the transactions using the shared accounts — and argues that the record includes evidence sufficient to support a finding that she had used Sims’s personal information. To be sure, we do not announce a rule that a person may never violate ORS 165.800 by using “personal information” related to a joint bank account. If there were some evidence, say, that two holders of the same account maintained separate “identifying number [s]” or separate “personal identification number [s],” and that a defendant had used the “personal information” of his fellow account holder in a prohibited manner, that act would seem to fall squarely within the prohibition of the statute. The difficulty for the state in this case, however, is that the record includes no relevant evidence about the transactions other than that defendant and Sims were both named on the bank accounts and that the transactions were made. That is, nothing indicates that defendant used “personal information” — the bank-account information — other than that which she had a legal right to use or that she represented, in any way, that she was someone other than who she was. From that state of the evidence, no reasonable juror could find that defendant had used Sims’s “personal information” in violation of ORS 165.800. We conclude that the trial court erred in denying defendant’s MJOAs on Counts 7 and 22.
That leaves the trial court’s denial of defendant’s MJOA on Count 24, concerning defendant’s draws on the Union account. As noted, defendant contends that the power of attorney authorized her to make those transactions and that criminal liability under ORS 165.800 could not attach for that reason. Our review of the record, however, reveals that defendant did not make that argument to the trial court as a basis for granting any
Convictions on Counts 7 and 22 reversed; remanded for resentencing; otherwise affirmed.
Notes
The parties both describe those two accounts as “joint” accounts and we accordingly do likewise, without implying any comment on whether the accounts met the legal definition of “joint account” set out in ORS 708A.455(3).
At trial, that account was referred to as both a Washington Mutual account and a Chase Bank account. We refer to it as the Chase account for simplicity’s sake.
Although there were two transactions in September 2009 that appeared to fit within the charging terms of Count 24, neither party asserts any need, in this appeal, to discern the precise factual basis for the conviction on Count 24.
In 2013, after the conclusion of the trial, the legislature amended the definition of “another person” in OES 165.800(4)(a): “‘Another person’ means an individual, whether living or deceased, an imaginary person or a firm, association, organization, partnership, business trust, company, corporation, limited liability company, professional corporation or other private or public entity.” See Or Laws 2013, ch 158, § 34. Neither party suggests that the amendment affects the analysis in this case. We cite the version of the statute that was in effect as of the time that the offenses were alleged to have been committed. See State v. Flowers,
We employ, here and throughout this opinion, the word “use” as shorthand for the statutory list of prohibited acts (“obtains, possesses, transfers, creates, utters or converts”).
The state argues that the broad nature of the list of “personal information” in ORS 165.800(4)(b) indicates — through the very fact of its breadth — that the legislature was aware that certain types of the listed personal information would be shared, and yet did not create an exception for such shared information in the statute. Contrary to the state’s position, however, we perceive that the breadth of the statute’s definition of “personal information” militates in favor of our conclusion. We see no reason why, for instance, under the state’s theory, a person who submitted a fraudulent loan application with her valid home address on it would not have committed identity theft by, say, “utter [ing] ” the shared “personal identification” of her roommate. See ORS 165.800(4)(A) (“‘[p]ersonal identification’” includes a “person’s address!.]”). Where the fraudulent applicant has not purported to be anyone other than who she is, the fact that she happens to share an address with another person is a circumstance so far on the periphery of the fraudulent activity that we cannot conclude that the legislature intended to criminalize such conduct as “identity theft.”