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.
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.
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.
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.
OF THE EVIDENCE
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.
process requires the State to prove, beyond a reasonable
doubt, every element of the crime charged. "A
sufficiency challenge admits the truth of the State's
evidence and accepts the reasonable inferences to be made
from it.""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
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,
information is defined to include "account numbers ...
[and] other information held for the purpose of account
access or transaction initiation."
review de novo questions of statutory
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.
start with the oft-repeated principles guiding our efforts to
interpret the word "use" in the identity theft
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.
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.
American Heritage Dictionary defines "use" as
"[t]o put into service or apply for a
purpose." Black's Law Dictionary contains
similar definitions: "To employ for the accomplishment
of a purpose; to avail oneself of <they use
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 ...