Opinion
No. 40618-7-II.
Filed: May 10, 2011.
Appeal from a judgment of the Superior Court for Clark County, No. 09-1-01166-4, John P. Wulle, J., entered April 16, 2010.
Reversed and remanded with instructions by unpublished opinion per Van Deren, J., concurred in by Worswick, A.C.J., and Hunt, J.
UNPUBLISHED OPINION
Andre Maurice Adams appeals his Clark County conviction of second degree possession of stolen property. The charge was based on his possession of a First Premier Bank credit card in the name of David Windrick. He argues that the evidence was insufficient to establish that the card was an access device as defined by former RCW 9A.56.160(1)(c) (2007). We agree and reverse the conviction for second degree possession of stolen property because the evidence was insufficient to support it. We remand for dismissal of the charge and resentencing if necessary.
FACTS
In March 2010, by second amended information, the State charged Adams with two counts of first degree identity theft, first degree attempted theft, forgery, first degree theft, and second degree possession of stolen property. Darrel Funn, Adams's accomplice, testified that, in June 2009, Adams approached him about a "low risk" opportunity to make some money. Report of Proceedings at 72. This offer allegedly came from a woman named Stacy. Funn agreed to participate, and he and Adams provided Stacy with photographs of themselves. In late June, they flew with her from Los Angeles, California, to Portland, Oregon; then rented a car and drove to Vancouver, Washington. Stacy gave Adams a Texas driver's license bearing his picture, but the name and physical information of David Windrick. She gave Funn a second Texas driver's license bearing his picture and the name and physical information of Terry Stalford. She also gave them bank account information for Windrick and Stalford.
Using that information and the falsified driver's licenses, Funn and Adams attempted to withdraw cash from three Bank of America branches in the area. When Adams attempted a withdrawal at a branch in Hazel Dell, the teller consulted with her supervisor because of the dollar amount and the Texas identification. In the case of out of state withdrawals, Bank of America requires two pieces of identification, and Adams did not have a second piece of identification with him. The supervisor checked the signature on the signature card that they had on file against the signature on the withdrawal slip. Because they did not match, she also pulled up David Windrick's photograph that was on file. Again, there was no match. Accordingly, she refused the transaction and called Bank of America's customer service center to flag the account. She also emailed other banking centers in Clark County to alert them to the problem, and she contacted David Windrick to notify him that someone had compromised his account.
Later that day, Adams attempted another withdrawal at a Bank of America branch in Battle Ground. This time he had two pieces of identification. Because the teller had received the alert from the Hazel Dell branch, she refused the transaction and notified her supervisor. The supervisor contacted the police and followed Adams in order to obtain a description of his vehicle. At that point, she came into contact with Battle Ground Police Detectives Kim Armstrong and Sean Hendrickson. They had seen Adams enter a red minivan and they contacted Adams and Funn in the vehicle.
At trial, the teller testified that she could not remember whether the other form of identification was the First Premier Bank credit card that the State introduced as evidence. However, that was the only other card bearing Windrick's name that police found when they searched the defendants' minivan.
The woman identified as Stacy was allegedly at the grocery store at the time, and she did not return.
The detectives asked Adams to exit the vehicle and, with Funn's permission, they briefly searched the van, finding a withdrawal slip containing Windrick's information. They arrested Adams, but allowed Funn to leave. Funn hid his falsified license in the trash can at a nearby restaurant, but one of the officers found it and arrested him. After the arrests, the detectives obtained a warrant and again searched the minivan. That search turned up the false driver's license bearing Windrick's name and a credit card in Windrick's name. The cards were between seat cushions, where Detective Hendrickson had seen Adams put them when he was told to exit the van.
At trial, David Windrick testified that the bank had notified him about the attempts to access his account and advised him to close his accounts. He did not testify regarding the First Premier Bank credit card.
The jury found Adams guilty of one count of attempted first degree theft, forgery, and second degree possession of stolen property. The jury also returned special verdicts, finding that Adams knew or should have known that the offenses involved multiple victims or multiple incidents per victim and that the offenses involved a high degree of sophistication or planning. Despite the special verdict findings of aggravating factors, the trial court imposed concurrent standard range sentences.
ANALYSIS
Adams challenges only the conviction of second degree possession of stolen property, based on the First Premier Bank credit card, contending that sufficient evidence does not support the conviction. The information alleged that the stolen property possessed was an access device, "to wit: a credit card, issued to David L. Windrick." Clerk's Papers at 11; see former RCW 9A.56.160(1)(c). 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." RCW 9A.56.010(1). Adams argues that the record does not show that the card belonged to David Windrick or that the card was capable of being used in the manner described in the statute.
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, and determine whether any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. We give circumstantial evidence the same weight as direct evidence. State v. Clay, 144 Wn. App. 894, 897-98, 184 P.3d 674 (2008), review denied, 165 Wn.2d 1014 (2009). We interpret the evidence most strongly against the defendant and draw all reasonable inferences in favor of the State. Clay, 144 Wn. App. at 897-98. In order to find that the necessary quantum of proof exists, we must find substantial evidence to support the State's case without relying upon guess, speculation or conjecture. State v. Prestegard, 108 Wn. App. 14, 23, 28 P.3d 817 (2001).
Washington appellate courts have rejected sufficiency challenges to convictions for possession of a stolen access device under a variety of circumstances. See State v. Rose, ___ Wn. App. ___, 246 P.3d 1277, 1279-80 (2011) (evidence that the defendant had taken an unactivated credit card from the victim's garbage was sufficient to support the conviction); State v. Chang, 147 Wn. App. 490, 498-99, 195 P.3d 1008 (2008), review denied, 166 Wn.2d 1002 (2009) (testimony from three witnesses that the account numbers on checks wrongfully possessed by the defendant corresponded to accounts that belonged to them sufficed to uphold the conviction); Clay, 144 Wn. App. at 898-99 (evidence that the credit card company had assigned a new account number and issued a card with that account number to the victim, although it never reached her, was sufficient for conviction); State v. Askham, 120 Wn. App. 872, 885, 86 P.3d 1224 (2004) (wrongful possession of the victim's credit card number was sufficient to support a theft conviction when coupled with evidence that the defendant had taken that number from the victim's garbage); State v. Schloredt, 97 Wn. App. 789, 794, 987 P.2d 647 (1999) (the victims' testimony that their cards had been stolen was sufficient to support the convictions, without regard to whether the accounts had been cancelled).
The information in Chang identified the access device possessed as the bank account numbers, themselves, not the checks. 147 Wn. App. at 499.
Here, the State showed only that Adams possessed what appeared to be a credit card bearing David Windrick's name. It failed to elicit testimony from Windrick concerning a First Premier Bank credit card. Nor did it call any other witness to confirm that the number on the card corresponded to an actual account number, making it capable of obtaining anything of value or transferring funds. Absent this evidence, the record is insufficient to prove that Adams committed the charged offense.
Possession of the card might have constituted other crimes, such as possession of a stolen credit card account number, or forgery. Here, the State did not charge Adams with either crime. And on this record, it is only speculation that Adams committed the crime of possessing a stolen First Premier Bank credit card belonging to Windrick. Accordingly, we reverse his conviction of second degree possession of stolen property and remand for dismissal of the charge, and resentencing, if necessary.
If Adams or an accomplice created a new card using Windrick's account information, the offense was either possession of a stolen account number, or forgery. See State v. Esquivel, 71 Wn. App. 868, 869-71, 863 P.2d 113 (1993) (holding that the manufacture or possession of a false document is forgery — Esquivel possessed a falsified social security card and a falsified alien registration card); see also RCW 9A.60.020(1)(b). Credit card theft and credit card forgery are two different crimes. State v. Newton, 42 Wn. App. 718, 727, 714 P.2d 684 (1986), reversed on other grounds, 109 Wn.2d 69, 743 P.2d 254 (1987).
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and WORSWICK, A.C.J., concur.