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                                                     STATE IT WASHIT7T!!

                                                   ,201700T 16       II: 54




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 STATE OF WASHINGTON,                                      No. 75536-6-1

                       Respondent,                         DIVISION ONE

                V.

 THOMAS ALLEN CHRISTIAN,                                   PUBLISHED

                       Appellant.                          FILED: October 16, 2017


       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
No. 75536-6-1/2

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.




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        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




        1   In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368
(1970).
        2 State   v. O'Neal, 159 Wn.2d 500, 505, 150 P.3d 1121 (2007).
              v. Fedorov, 181 Wn. App. 187, 194, 324 P.3d 784(2014)(quoting
        3 State
State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559(2005)).
        4   Id. (quoting RCW 9.35.020(1)).
        5 RCW     9.35.005.
        6 State   v. Veliz, 176 Wn.2d 849, 853-54, 298 P.3d 75 (2013).
No. 75536-6-1/4

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.m

       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 "R]o put into service or

apply for a purpose."8 Black's Law Dictionary contains similar definitions: "To

employ for the accomplishment of a purpose; to avail oneself of <they use

formbooks>.',io

       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



       Ravenscroft v. Washington Water Power Co., 136 Wn.2d 911, 920-21,
       7
969 P.2d 75(1998)(internal citations omitted).
       8   Greenhalqh v. Dep't of Corr., 180 Wn. App. 876, 884, 324 P.3d 771
(2014).
       9 THE AMERICAN    HERITAGE DICTIONARY 1966 (3rd ed. 1992).
       10   BLACK'S LAW DICTIONARY 1776 (10th ed. 2014).

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No. 75536-6-1/5

information of another person"---the stolen debit card in this case. Completion of

a transaction in which a stolen debit card is used is not an element of the crime

of identity theft.

       This reading of the statute is consistent with other provisions of the statute

and case law.

       First, the language of the statute implicitly recognizes that "use" of

financial information, in this case the stolen debit card, does not require

completion of the intended crime. RCW 9.35.020(6) provides that a person may

be punished separately for any other crime completed in the commission of the

identity theft.

       In State v. Milam, Michael Milam was convicted of second degree theft

and second degree identity theft when he used a stolen ATM card to withdraw

$360.11 He argued that his convictions for both crimes violated the prohibition

against double jeopardy because proof of the theft of the property was an

element of second degree identity theft.12 This court disagreed and affirmed

Milam's convictions for both crimes.13 The court noted that second degree theft

       required proof that the defendant wrongfully deprived another
       person of property. ..[but] second degree identity theft required
       proof that the defendant knowingly obtained, possessed, used or
       transferred a means of identification or financial information with
       intent to commit another crime. Commission of another crime was
       not an element of the identity theft statute."[141


       11   155 Wn. App. 365, 367, 228 P.3d 788(2010).
       12   Id. at 367-68.
       13   Id. at 371-75.
       14   Id. at 371 (emphasis in the original).

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       This court cited to the supreme court's holding in State v. Baldwin that

"[I]dentity theft only `requires use of a means of identification with the intent to

commit an unlawful act.'"15 Commission of the other crime is not an element of

identity theft.

       Other case law also supports our view that "use" does not require

successful commission of the intended crime. For example, in State v.

Fedorov,18 the State charged Vadim Fedorov with identity theft when he provided

an officer with a false name with the intent to commit the crime of knowingly

making a false or misleading statement to a public servant. This court affirmed

Fedorov's conviction and held that, by giving the police officer another man's

name and date of birth, Fedorov "used" the name of that person.17 Once that

element was established, the State only had to prove that Fedorov intended to

commit any crime. The crime did not have to be specified.18

        Christian argues that the two failed transactions reflect, at most, attempted

use of another's financial information, not use. Accordingly, he argues that the

two challenged convictions must be reversed and dismissed with prejudice. We

disagree.

        First, he too, cites dictionary definitions of the word "use," but those

citations do not help him. Citing to Webster's Third New International Dictionary,


        15   Id. at 372(quoting State v. Baldwin, 150 Wn.2d 448, 455, 78 P.3d 1005
(2003)).
        16   181 Wn. App. 187, 190-91, 324 P.3d 784 (2014).
        17   Id. at 196-97.
        18   Id. at 197-98.

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No. 75536-6-1/7

he correctly states two of its definitions of the word: "to put into action or service:

have recourse to or enjoyment of: EMPLOY" and "to carry out a purpose or

action by means of: make instrumental to an end or process: turn to account;

UTILIZE."19

       Whether we use "employ" or "utilize" for the word "use," the result is the

same. Christian both employed and utilized the stolen debit card when he

"swiped" the card at the terminal in the store. At that point, he both employed

and utilized the "means of identification or financial information of another

person"---the stolen debit card. The crime of identity theft was complete. It did

not matter that the bank declined these two transactions.

       Second, he argues that, if the legislature intended "use" to include

attempt, it would have included the latter term in the statute. We disagree.

       In making this argument, Christian cites to other Washington statutes that

include the term "attempt." But none of these other statutes include the term

"use."2° This is not helpful

       He also cites to identity theft statutes from other jurisdictions that include

the term "attempt." But this is not helpful because it tells us nothing about the

legislative intent of the legislature of the state of Washington.

       Finally, there is nothing in the legislative history of the identity theft statute

indicating that the legislature intended anything other than the ordinary plain



                   Opening Brief at 15 (quoting WEBSTER'S THIRD NEW
       19 Appellant's
INTERNATIONAL DICTIONARY 1577, 2523-24 (1993)).
       20 See, e.q., RCW   9A.72.120.
No. 75536-6-1/8

meaning of the term "use."21 Accordingly, we rely on the ordinary meaning of

that word in interpreting the legislature's intent.

       Having decided what the word "use" means in the identity theft statutes,

we next determine whether the evidence at trial was sufficient to support the two

challenged convictions for identity theft. We hold that the evidence was sufficient

to support both.

       The owner of the stolen debit card testified that she did not use her car on

July 20, 2015, but when she went to her car the next day, she noticed that her

wallet was missing. Her wallet contained the U.S. Bank debit card. She called

U.S. Bank and got a printout of the charges to her debit card. She had not made

any of the July 20, 2015 transactions listed on the printout.

       An employee of U.S. Bank testified that he spoke with the owner of the

card and reviewed her debit card transactions. A transaction at the Burlington

Coat Factory in Anacortes, Washington, was approved for $109.06 at 11:51 a.m.

on July 20, 2015. U.S. Bank declined the two additional transactions that

followed, one at 11:57 a.m. for $213.39, and one at 11:58 a.m. for $113.39.

       A loss prevention agent at the Burlington Coat Factory, testified that he

matched the store's receipt printout to its security videotapes, which showed all

of the July 20, 2015 transactions using the stolen debit card. The videotapes

were played at trial.

       An officer of the Anacortes Police Department testified that he had

previously arrested Christian on June 29, 2015. He identified Christian on the


       21   Ravenscroft, 136 Wn.2d at 920-21.

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No. 75536-6-1/9

Burlington Coat Factory security videos based on Christian's profile, tattoos, and

distinctive shoes.

       A detective examined the store videotapes and receipts as part of his

investigation into the unauthorized use of the stolen debit card. He had

interviewed Christian after his arrest on July 23, 2015, and testified to what

Christian told him. Christian initially denied being at the Burlington Coat Factory,

but then admitted he used the stolen debit card there.

       Considering the evidence in the light most favorable to the State,

substantial evidence supports the trial court's findings, beyond a reasonable

doubt, that Christian committed the second and third counts of second degree

identity theft.

                               JURY DEMAND FEE

       Christian argues that the trial court exceeded its statutory authority by

ordering him to pay a jury demand fee of $125. The State properly concedes

error in the imposition of this cost. Accordingly, we reverse and remand with

instructions to strike it.

                               APPELLATE COSTS

       Christian asks this court to deny the State its costs. The State has

responded that it is not seeking costs on appeal. Accordingly, no costs shall be

awarded to the State.




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No. 75536-6-1/10

       We affirm the convictions for identity theft, reverse the imposition of the

jury demand fee as a cost, and remand for the trial court to strike this cost only.




WE CONCUR:




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