; IN THE COURT OF APPEALS FOR THE
Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out
Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>

IN THE COURT OF APPEALS FOR THE

VIEWS: 6 PAGES: 9

  • pg 1
									     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                               No. 62337-1-I
                    Respondent,
      v.                                       DIVISION ONE

SHANNON R. CULBERTSON,                         UNPUBLISHED OPINION

                    Appellant.                 FILED: November 16, 2009


      J. Leach — Shannon Culbertson challenges her conviction of second

degree identity theft, arguing that insufficient evidence supports the conviction.

She claims that proof of use of an account number only without evidence of use

or possession of any other personal or identifying information does not prove the

crime of second degree identity theft. Because evidence of use of a single piece

of another’s financial information with the requisite unlawful intent proves this

crime, sufficient evidence supports the conviction. We affirm.

                                  Background

      On December 3, 2007, Fashion Bug employees Danielle Weaver and

Emily McDonald called 911 to report that two females were attempting to

purchase about $430 worth of clothing with a fraudulent Visa gift card. The two
No. 62337-1-I / 2



women entered the store shortly before closing, began hurriedly selecting a

large amount of clothing without trying any garments on, and brought the items

up to the counter. McDonald recognized the women from the previous month

when they made purchases at the store with a suspected fraudulent gift card.

Culbertson’s card failed to scan, and she asked that the number be entered

manually. Culbertson explained that she had just received the gift card from her

father with a $1,000 credit balance. The Visa gift card bore an account number

ending in 1013.

      Auburn Police Officers Adamski and Powell responded to the call. They

contacted both of the women and took possession of the gift card. Culbertson

told the police that she received the card from her uncle in Arizona with a $1,000

balance and that she had just used the card at a local Shell gas station where

the card numbers were manually entered. Upon inspection, the Visa gift card

appeared to have a plastic laminate on the front that was peeling at one corner,

and a nick was noticeable under the plastic. Additionally, the original account

number was scratched off the card itself, and an account number and expiration

date were printed on the plastic laminate.        No name or other identifying

information was printed on the card.

      The officers detained both of the women and read them their Miranda1
      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
                                        -2-
No. 62337-1-I / 3



rights. Culbertson identified herself as Sarah J. Laramore and gave a date of

birth as well as the last four digits of a social security number. Officer Powell

believed Culbertson to be older than she claimed to be and later discovered that

the name and information she gave to him were false.

      While in custody at the Auburn jail, Culbertson provided a written and oral

statement to Detective Tom Dynes. In her statement, Culbertson explained that

she traveled from Puyallup to Auburn with Daniele Christman and rented hotel

room #132 at the Auburn Days Inn in order to be present for a medical

procedure her daughter was undergoing the next day. Culbertson stated that

Christman’s friend, “Tommy,” drove them to Walgreens to buy medication for

Culbertson’s daughter. They also stopped at a gas station so Tommy could buy

cigarettes. He then gave both women the Visa gift card in order to buy a change

of clothes, instructing them not to spend more than $500.

      Detective Dynes visited the Days Inn, Chevron gas station, and

Walgreens identified by Culbertson. He obtained a copy of the registration and

signed credit receipt for Days Inn room #132, paid for with the Visa gift card. A

Days Inn employee working at the front desk, Chris Mackay, remembered having

to manually enter the gift card number to complete the transaction. Detective

Dynes also obtained surveillance videos, in which Culbertson appears, and

sales receipts with the same gift card number used at both the Chevron gas

                                       -3-
No. 62337-1-I / 4



station and Walgreens. The electronic record from Walgreens indicates that the

transaction was manually keyed in rather than swiped. Contrary to Culbertson’s

statement, the items purchased at Walgreens did not include medication.

       Detective Dynes contacted the owner of the account number used on the

Visa gift card, Daniel Charpentier of Manitoba, Canada, and verified that he was

the sole owner of the Visa account number used by Culbertson. Charpentier

had been in the Seattle area on December 3, 2007, and used his Visa credit

card several places, including Kent. He verified that he did not give anybody,

including Culbertson, permission to use his credit card information.

                                      Analysis

       Culbertson challenges the sufficiency of the evidence supporting her

conviction, arguing that proof of use of an account number only without evidence

of use or possession of any other personal or identifying information does not

prove the crime of second degree identity theft.

       The State must prove each element of the charged crime beyond a

reasonable doubt.2 Evidence is sufficient to support a conviction if, when viewed

in the light most favorable to the State, any rational trier of fact could have found

the essential elements of the charged crime proved beyond a reasonable doubt.3



       2
           State v. Alvarez, 128 Wn.2d 1, 13, 904 P.2d 754 (1995).
       3
           State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006).
                                          -4-
No. 62337-1-I / 5



Circumstantial evidence and direct evidence are equally reliable.4              An

insufficiency claim admits the truth of the State’s evidence, and we defer to the

trier of fact on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.5

       In order to prove second degree identity theft, the State was required to

show that Culbertson knowingly used a means of identification or financial

information of Charpentier, with the intent to commit a crime, and obtained

money or goods less than $1,500 in value.6          RCW 9.35.005 provides the

relevant definition of “financial information”:

       (1) “Financial information” means any of the following information
       identifiable to the individual that concerns the amount and
       conditions of an individual's assets, liabilities, or credit:
       (a) Account numbers and balances;
       (b) Transactional information concerning an account; and

       4
         State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
       5
         State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
       6
         Former RCW 9.35.020 (2004) provides:
       (1) No person may knowingly obtain, possess, use, or transfer 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.
       ....
       (3) Violation of this section when the accused or an accomplice
       uses the victim's means of identification or financial information
       and obtains an aggregate total of credit, money, goods, services,
       or anything else of value that is less than one thousand five
       hundred dollars in value, or when no credit, money, goods,
       services, or anything of value is obtained shall constitute identity
       theft in the second degree. Identity theft in the second degree is a
       class C felony punishable according to chapter 9A.20 RCW.
                                       -5-
No. 62337-1-I / 6


       (c) Codes, passwords, social security numbers, tax identification
       numbers, driver’s license or permit numbers, state identicard
       numbers issued by the department of licensing, and other
       information held for the purpose of account access or transaction
       initiation.

The plain language of RCW 9.35.005(1)(a) defines account numbers identifiable

to an individual as “financial information.” Culbertson cites State v. Berry7 as her

only authority for the proposition that the State must prove she used personal

information in addition to Charpentier’s account number to convict her of identity

theft. She claims that the language “Berry simply used an account number that

matched Paulson’s account number. He did not use Paulson’s name or other

examples of identity”8 mandates that personal information in addition to account

information for a real person must be used by a defendant in order to commit

identity theft.

       In Berry, the defendant used a driver’s license with the name Timothy J.

Davis in an attempt to cash a check.9 The account number on the check was a

valid account number for an account owned by Herb Paulson.10             The State

charged Berry with second degree identity theft, alleging that he used a driver’s

license belonging to “Tim Davis” with the intent to commit a crime.11      The trial

court accepted Berry’s Alford12 plea and subsequently denied his motion to

       7
         129 Wn. App. 59, 117 P.3d 1162 (2005).
       8
         Berry, 129 Wn. App. at 67.
       9
         Berry, 129 Wn. App. at 63.
       10
          Berry, 129 Wn. App. at 63.
       11
          Berry, 129 Wn. App. at 62.
                                     -6-
No. 62337-1-I / 7



withdraw this guilty plea.13 The certification relied upon by the trial court to

establish a factual basis for Berry’s plea contained no evidence that Tim Davis

was a real as opposed to a fictitious person.14

       Berry appealed, and this court held that “[b]ecause Berry was not charged

with stealing the identity of a specific, real person, the certification did not (and

could not) provide a factual basis for the plea. Without that factual basis, the

plea was not truly voluntary.”15 Thus, Berry holds that one does not commit the

crime of identity theft under former RCW 9.35.020 by using financial information

for a fictitious person. Berry was not charged with possessing or using the

financial information of Paulson. Had the State charged Berry with using the

financial information of Herb Paulson, the certification would have provided a

sufficient factual basis for his plea.

       In State v. Leyda,16 the court addressed the unit of prosecution under

former RCW 9.35.020. It concluded “that the language of RCW 9.35.020 and its

legislative history indicate that the legislature intended that the prosecution unit

be any one act of either knowingly ‘obtain[ing], possess[ing], us[ing], or transfer

[ring]’ a single piece of another's identification or financial information with the

       12
            North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970).
       13
          Berry, 129 Wn. App. at 63-64.
       14
          Berry, 129 Wn. App. at 66-67.
       15
          Berry, 129 Wn. App. at 68.
       16
          157 Wn.2d 335, 138 P.3d 610 (2006).
                                        -7-
No. 62337-1-I / 8



requisite unlawful intent.”17 Therefore, contrary to Culbertson’s contention, the

State was not required to prove that Culbertson possessed or used more than

one piece of Charpentier’s financial information to convict Culbertson.

      In this case, the State charged Culbertson with second degree identity

theft, alleging that she knowingly used the account number of Charpentier.

Culbertson stipulated that the number on the gift card belonged to Charpentier’s

account and that she never received permission to use it. The State presented

overwhelming evidence of Culbertson’s use of the number. This evidence was

sufficient to support Culbertson’s conviction of identity theft in the second

degree.

                                    Conclusion

      We hold that the State presented sufficient evidence at trial to convict

Culbertson of identity theft in the second degree.

      Affirmed.




WE CONCUR:




      17
           Leyda, 157 Wn.2d at 345 (emphasis added) (alterations in original).
                                      -8-
No. 62337-1-I / 9




                    -9-

								
To top