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State v. Christian

Court of Appeals of Washington, Division 1

October 16, 2017

STATE OF WASHINGTON, Respondent,
v.
THOMAS ALLEN CHRISTIAN, Appellant.

          Cox, J.

         Thomas Christian appeals his convictions for two counts of second degree identity theft. Because the evidence is sufficient to prove that he twice "used" a stolen debit card at a retail store, we affirm his convictions. The State properly concedes that the trial court's imposition of a $125.00 jury demand fee as a cost was incorrect. Thus, we reverse the imposition of that cost and remand with directions for the trial court to strike it.

         The material facts are undisputed. Christian went to a Burlington Coat Factory retail store with a stolen debit card issued by U.S. Bank. According to bank records and testimony from a loss prevention officer of the store, Christian presented the stolen debit card to the store three times, in close succession. The bank authorized the first transaction for a $109.06 purchase. A second purchase for $213.39, which Christian attempted six minutes later, was declined by the bank. The bank also declined a third purchase for $113.39, which Christian attempted one minute later. It is also undisputed that the owner of the debit card did not authorize Christian to have it.

         The State charged Christian with two counts of theft, based on unrelated activities. It also charged him with four counts of identity theft. The trial court dismissed one count of theft and one count of identity theft.

         After a bench trial, the trial court convicted Christian of one count of second degree theft and three counts of second degree identity theft. The trial court imposed an exceptional sentence of 60 months on the identity theft convictions and 29 months on the theft in the second degree count. The court also imposed a jury demand fee of $125.00 as a cost.

         Christian appeals.

         SUFFICIENCY OF THE EVIDENCE

         Christian primarily argues on appeal that there is insufficient evidence to support his convictions for two of the three counts of second degree identify theft. He claims that the evidence is insufficient because two of these transactions were not completed-the bank declined both. According to him, this means that he could only be convicted of attempted identify theft, not the completed crime. Because this argument is based on a flawed reading of the identity theft statute, we disagree.

         Due process requires the State to prove, beyond a reasonable doubt, every element of the crime charged.[1] "A sufficiency challenge admits the truth of the State's evidence and accepts the reasonable inferences to be made from it."[2]"We will reverse a conviction 'only where no rational trier of fact could find that all elements of the crime were proved beyond a reasonable doubt.'"[3]

         "An identity theft conviction requires proof that the defendant knowingly obtained, possessed, used, or transferred 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."[4]

         Financial information is defined to include "account numbers ... [and] other information held for the purpose of account access or transaction initiation."[5]

         We review de novo questions of statutory interpretation.[6]

         Here, there is no dispute over the sufficiency of the evidence that Christian intended to commit the crime of theft when he twice "swiped" the stolen debit card through the terminal at the Burlington Coat Factory retail store. The narrow question is whether Christian's actions fall within the term "use" of "a means of identification or financial information of another person"---the stolen debit card in this case.

         We start with the oft-repeated principles guiding our efforts to interpret the word "use" in the identity theft statute:

In construing a statute, [our] primary goal is to ascertain and give effect to the legislative intent. If a statute is unambiguous, its meaning ... is to be derived from the language used in the statute itself. The fact that a word is not defined in a statute does not mean the statute is ambiguous. Rather, an undefined term should be given its plain and ordinary meaning unless a contrary legislative intent is indicated.[7]

         The identity theft statute does not define the term "use." Thus, we may look to the dictionary for a definition of the term's ordinary meaning.[8]

         The American Heritage Dictionary defines "use" as "[t]o put into service or apply for a purpose."[9] Black's Law Dictionary contains similar definitions: "To employ for the accomplishment of a purpose; to avail oneself of <they use formbooks>."[10]

         Applying these definitions to the identity theft statute, we conclude that the State was required to prove that Christian either "put into service" or "employed for the accomplishment of a purpose" a "means of identification or financial information of another person"-the stolen debit card in this case. Completion of a transaction in which a ...


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