                                                                                                         l " C_ 3

                                                                                                  D1I! IS IO,,q TI
                                                                                                FEB i !      AM 3 40
                                                                                                    CI       SH      T034
                                                                                           0
                                                                                                            rY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II


STATE OF WASHINGTON,                                                         No. 44565 -4 -II


                                  Respondent,


         v.



SEAN RAY VICKERS,                                                      UNPUBLISHED OPINION


                                  Appellant,


LARRY DEAN DOW,


                                   Defendant.


         Johanson, A.C. J. —           Sean Ray Vickers appeals his second.-degree theft. conviction

claiming that the State offered insufficient evidence at trial to prove that the two stolen VISA
credit   cards   recovered    from him    were "   access   devices"     as defined in RCW 9A.56. 010( 1).


Consequently, he argues that the State did not establish all of the elements to satisfy former

RCW 9A.56. 040( 1)(    c) (   2009),   second   degree theft ( access device).     Because the State offered


sufficient evidence at trial from which a reasonable jury could infer that the recovered credit

cards were " access   devices," we affirm Vickers' conviction.


                                                     FACTS


         On April 12, 2012, Oleg Tkachuk and his cousin, Victoriya Statnik, noticed an older,

green van parked near     Tkachuk'     s car.   Tkachuk   saw   his   car' s passenger window was   broken     and
       No. 44565 -4 -II



       a man standing by his car' s passenger door; the man then got into the van and drove away.

       Tkachuk got into his car, followed the van, and called 911.


                Vancouver Police Corporal Jeff Sundby, the first responding officer, pulled over the

       green van. Corporal Sundby learned the driver and passenger of the van were Vickers and Larry

       Dow, and when Tkachuk and Statnik arrived, they recognized Dow as the man taking things out

       of Tkachuk' s car.


                Corporal Sundby found a backpack and a purse in the van, which Tkachuk and Statnik

       identified    as   theirs.   Dow told Corporal Sundby that he had dumped some items a short distance

       away, and Vancouver Police Officer Brian Viles was able to locate those items, which Tkachuk
       and    Statnik     also   identified.         Two credit cards and a Washington State driver' s license in


       Tkachuk' s name were among these recovered items.

                The State charged Vickers with one count of second degree theft of an access device, one
                                                                                                                                  1
       count    of   third degree     malicious        mischief, and   one    count of second      degree   vehicle   prowling.


       Former RCW 9A. 56. 040( 1)(             c);   RCW 9A.48. 090( 1)(     a);   former RCW 9A.52. 100 ( 2011).       At trial,


I- -   Tkachuk identified the two recovered credit cards as his.- A jury found Vickers guilty as charged.* -

                                                               ANALYSIS


                 Vickers argues that there was insufficient evidence to convict him of second degree theft

       because the State did           not   establish     that Tkachuk' s     credit   cards   were " access   devices."    But


       Tkachuk' s testimony and the context of the discovery of the cards would allow any reasonable

       juror to conclude that the credit cards were " access devices."




        1
            Dow was also charged with second degree theft of an access device, malicious mischief, and
        second degree vehicle prowling. This appeal involves only Vickers.

                                                                       2
No. 44565 -4 -II



          The appropriate test for an insufficient evidence claim is whether, after viewing the

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

beyond     a reasonable         doubt. State      v.   Salinas, 119 Wn. 2d 192, 201, 829 P. 2d 1068 ( 1992).                    All


reasonable inferences from the evidence are drawn in favor of the State and interpreted strongly

against   the defendant. Salinas, 119 Wn.2d                    at   201.     An insufficiency claim admits the truth of the

State'   s evidence and all        inferences reasonably drawn from the                  evidence.   Salinas,. 119 Wn.2d at


201.     We do not reweigh the evidence and substitute our judgment for that of the jury. See State

v. Kilburn, 151 Wn.2d 36, 57, 84 P. 3d 1215 ( 2004).


          An " access device" is


          any card, plate, code, account number, or other means `of account access that can"
          be used alone or in conjunction with another access device to obtain money,
          goods, services, or anything else of value, or that can be used to initiate a transfer
          of funds, other than a transfer originated solely by paper instrument.

RCW 9A. 56. 010( 1).


          Asserting his insufficiency claim, Vickers relies on State v. Rose, 175 Wn.2d .10, 282

P. 3d 1087 ( 2012).            He argues that Rose creates a presumption that without affirmative evidence


that                                            credit    cards      are not access    devices.    Rose, however, does not
        they    are   active    and usable,




establish such a presumption.                  Rose holds that a defendant may prevail by demonstrating that

trial   evidence proves         that   a credit card     is   not an " access     device "; when a defendant affirmatively


establishes that the credit card was neither activated nor linked to an active account, the

defendant        can   show     that the card lacked the ability to                obtain "   something   of value."        See 175


Wn.2d      at   17 -18 & n. 1.


           In Rose, authorities arrested Rose shortly after he visited the victim' s home and he

possessed what appeared                to be   a credit card        in the   victim' s name.   175 Wn.2d    at   12 - 13.   At trial,




                                                                       91
No. 44565 -4 -II



the victim testified that she had received a credit card offer .that included an unactivated credit

card.   Rose, 175 Wn.2d            at   14 -15.    Trial evidence showed that the card was never activated, there

                                                                                                 2
was no account associated with               the    card.    Rose, 175 Wn.2d      at   17 -18.       Accordingly, our Supreme

Court held that the State had              not    demonstrated that the        card constituted an access        device. Rose,


175 Wn.2d       at   18.    It is incorrect to say that Rose created a presumption that credit cards are not

access devices unless the State presents affirmative evidence that the cards are active and usable.


          Unlike the defendant in Rose, here Vickers did not demonstrate that the two credit cards


were not activated or linked to an active account. Therefore, Rose does not apply here.

          Ultimately, the State offered evidence that the recovered credit cards were access devices.

At trial, the State offered the testimony of Corporal Sundby and Tkachuk to identify the

recovered credit cards as               Tkachuk'    s.   The State introduced photographs that Corporal Sundby

took of the two credit cards and a Washington State driver' s license issued to Tkachuk. Dow had

taken those items from Tkachuk' s car, where Tkachuk had kept them in either a backpack or his

wallet.    Any rational juror, upon hearing that the credit cards belonged to Tkachuk and that he

carried them with him in his wallet or backpack, -could reasonably infer that they were access _ _
                                                                                   -

devices.




2
    Like Rose, State         v.   Schloredt, 97 Wn.         App. 789,    987 P. 2d 647 ( 1999),          and State v. Clay, 144
 Wn.    App.   894, 184 P. 3d 674 ( 2008),                  review   denied, 165 Wn. 2d 1014 ( 2009), both involved
 credit cards as access           devices. In neither case did the defendant demonstrate that the cards were
 inactive,   unusable, or unlinked            to   active accounts.      In Schloredt, Division One of this court held
that the State makes a sufficient showing of an " access device" if a reasonable inference could be
 made    from the     witness      testimony       that the   cards were active, absent evidence             to the contrary.   97
 Wn.    App.   at   794.    Similarly, Division One held in Clay that RCW 9A.56. 010( 1) does not require
 the   device to be        activated, and     the   statute   focuses    on   the capacity   of      the device to be   used.   144

 Wn.    App.   at    898 -99.      Like Clay and Schloredt, Vickers presented no evidence that the credit
 cards were inactive, unusable, or unlinked to active accounts.
                                                                     4
No. 44565 -4 -II


        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                   HANSON, A. C. J.
