Opinion
No. 36417-4-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00207-6, F. Mark McCauley, J., entered June 11, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Armstrong, JJ.
Jon T. Meske appeals his bench trial conviction for second degree identity theft. He argues that (1) the State did not provide sufficient evidence to convict him, (2) the trial court erred in finding that the presented check was a means of identification, (3) the record does not support the trial court's finding that there were no disputed facts, and (4) the trial court's delay in entering written findings of fact and conclusions of law violated his due process rights. We affirm.
Facts I. Identity Theft
On April 2, 2007, Jon Meske presented a check for cashing along with his photo identification at the Bank of America in Aberdeen. The check was written on the payroll account of ATS Northwest, Incorporated (ATS Northwest), payable to Meske in the amount of $823. The check bore the correct name, address, and number for ATS Northwest's payroll account. And the check appeared to have been signed by Robert Martin Turner, the signer for ATS Northwest's payroll account and the company's founder and president. But a digit in the check's bank routing number was missing.
Louise Dunjic, the bank's assistant manager, compared the check to other checks posted to the same account to verify Turner's signature, numerical sequences, and other information about checks for ATS Northwest's account, such as whether the checks are typed or handwritten. She found that a previous ATS Northwest check bearing a numerical sequence similar to the one on the check that Meske presented had been "reversed." She contacted ATS Northwest, learned that the company had never issued the check, and called the police.
When the police arrived, Meske told them that a person named "Matthew Dustin" had given him the check as payment for towing a car from Portland to Aberdeen. Meske said Dustin had paid him $500 for the car and $100 for incidentals, but Meske could not explain the remaining $200.
ATS Northwest employment records showed that Meske had never worked for the company. And Turner, the only authorized signer of ATS Northwest payroll checks, did not sign the check bearing his purported signature that Meske had presented.
II. Procedure
The State charged Meske with second degree identity theft. The first amended information stated that Meske "did knowingly use or transfer a means of identification to another person . . . ATS Northwest Incorporated, with the intent to commit or aid the commission of any crime." Clerk's Papers (CP) at 6. (Emphasis added.)
On the first day of trial, May 22, 2007, the State moved to amend the information a second time to add an alternate way that Meske violated RCW 9.35.020 — by knowing use or transfer of financial information to commit or aid in the commission of a crime. The trial court denied the State's motion to amend.
A. Bench Trial
Meske waived his right to a jury trial. Turner testified that (1) the check Meske had presented to the bank included ATS Northwest's correct business name, address, and account number; (2) but the check's routing number was incorrect; (3) he (Turner) could tell that the check was not a genuine ATS Northwest check because of its color and because the check was handwritten instead of typed like all other ATS Northwest checks.
After the State rested its case in chief, Meske moved to dismiss for a failure to present evidence that he had used a "means of identification" to commit or to aid in any crime under RCW 9.35.005(3). The trial court denied Meske's motion, ruling that the check included information that was both a "means of identification" and "financial information." The trial court ruled:
The name on the check, ATS Northwest, and the address of ATS Northwest are a means of identification or an item that is not describing finances or credit but is personal to, or identifiable with the individual or other person.
CP at 19 (emphasis added). Meske presented no defense witnesses.
The trial court found Meske guilty as charged. But it did not file written findings of fact and conclusions of law.
B. Appeal
On November 30, 2007, Meske appealed. Both parties requested remand to the trial court to enter findings of fact and conclusions of law.
We remanded to the trial court, which entered written findings of fact and conclusions of law on March 3, 2008. On March 18, Meske filed a supplemental appellate brief.
Analysis I. Sufficiency of Evidence
Meske argues that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of second degree identity theft. We disagree.
A. Standard of Review
A challenge to the sufficiency of the evidence presented at a bench trial requires us to review the trial court's findings of fact and conclusions of law to determine whether substantial evidence supports the challenged findings and whether the findings support the conclusions. State v. Madarash, 116 Wn. App. 500, 509, 66 P.3d 682 (2003). We review challenges to a trial court's conclusions of law de novo. State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008).
B. Identity Theft
Meske argues that the trial court erred, in its second conclusion of law, when it characterized the check itself as a "means of identification" under RCW 9.35.005(3). This argument fails.
Meske submitted his opening brief before we remanded to the trial court for the entry of findings of fact and conclusions of law. In that brief, he argued more generally that the evidence was insufficient to prove beyond a reasonable doubt that he committed second degree identity theft. Meske specifically argued that the check he presented for cashing was not a "means of identification." Because this argument is substantially the same as his post-remand challenge to the trial court's second conclusion of law, we review the argument only in terms of the challenge to the conclusion of law.
Contrary to Meske's argument, the trial court did not characterize the check itself as a "means of identification." Instead, the trial court ruled:
The name on the check, ATS Northwest, and the address of ATS Northwest are a means of identification or an item that is not describing finances or credit but is personal to, or identifiable with the individual or other person.
CP at 19. Thus, the trial court considered only the name and address on the check to be "means of identification" under RCW 9.35.005(3) and not, as Meske contends, the check itself. Agreeing with the trial court, we hold that the name and address on the check were "means of identification."
1. ATS Northwest is a "person" protected by the identity theft statutes
When construing a statute, our objective is to determine the legislature's intent. State v. Kolesnik, 146 Wn. App. 790, 803-04, 192 P.3d 937 (2008). If a statute's meaning is plain on its face, then we must give effect to that plain meaning as an expression of legislative intent. Id. at 804. We adopt this approach here.
RCW 9.35.020(1) provides: "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." (Emphasis added.) A "means of identification" is:
information or an item that is not describing finances or credit but is personal to or identifiable with an individual or other person, including: [a] current or former name of the person, . . . information relating to a change in name, address, telephone number, or electronic address.
RCW 9.35.005(3) (emphasis added).
RCW 9.35.005(4) defines "person" as "a person as defined in RCW 9A.04.110." RCW 9A.04.110 includes a corporation as a "person." Therefore, ATS Northwest, a corporation, is a "person" and a victim the statute seeks to protect from identity theft. Thus, the plain language of RCW 9.35.005(3) demonstrates the legislature's intent to protect business entities, as well as individuals, from identity theft. Accordingly, we review the record in light of ATS Northwest's business entity circumstances.
RCW 9A.04.110(17) provides: "`Person', `he', and `actor' include any natural person and, where relevant, a corporation, joint stock association, or an unincorporated association."
2. ATS Northwest's business entity circumstances
A business entity is a legal fiction that can act only through its human agents. Biomed Comm, Inc. v. State Dep't of Health Bd. of Pharmacy, 146 Wn. App. 929, 934, 193 P.3d 1093 (2008). Unlike a human individual, who has unique physical characteristics such as a finger print, height, weight, eye color, and other "biometric data," RCW 9.35.005(3), a business entity's unique identity is tied to its name (or logo), address (place of registration or incorporation), and the human agents who act on its behalf. Here, Meske used ATS Northwest's most recognizable means of identification — the corporation's name and address printed on a formal instrument, when he presented the payroll check for cashing.
Meske does not dispute the trial court's findings of fact that (1) he never worked for ATS Northwest; (2) he presented ATS Northwest's correct identifying name and business address in an attempt to cash its payroll check; and (3) Turner, the only person authorized to sign ATS Northwest checks, did not authorize the check Meske presented for cashing. Thus, under the plain language of RCW 9.35.020(1), the trial court's findings of fact support its legal conclusion that Meske knowingly transferred a "means of identification" with the intent to commit a crime.
C. Finances Exclusion
Meske further argues that (1) the statutory definition of "means of identification" excludes items that describe finances; and (2) because the check contains ATS Northwest's proper account number, which is explicitly included within the definition of "financial information" under RCW 9.35.005(1)(a), this financial information brought the check within the "describing finances" exclusion from the definition of a "means of identification."
RCW 9.35.005(3) provides: "`Means of identification' means information or an item that is not describing finances or credit."
RCW 9.35.005 provides:
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(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.
At oral argument, Meske argued that our holding in State v. Allenbach, 136 Wn. App. 95, 147 P.3d 644 (2006), requires us to find that a check falls within the "describing finances" exclusion. We disagree. In Allenbach, we held only that the identity theft statute is not unconstitutionally vague because "a reasonable person of ordinary intelligence would understand that a blank check, which bears the account number and owner's name, qualifies as `financial information.'" Id. at 102-03. In the published portion of our decision, we did not, however, address or decide whether the check itself constitutes "financial information" for purposes of the "describing finances" exclusion from the statutory definition of a "means of identification." Thus, in Allenbach, we left that issue to decide in some future case.
That future case now presents itself. We hold that the trial court here properly concluded that (1) ATS Northwest's name and address on the check were independent of the check itself; (2) the name and address did not describe finances; and (3) Meske thus committed identity theft when he used the corporation's name and address in attempt to cash its payroll check. Our holding here is not inconsistent with Allenbach because of the limited nature of our holding Allenbach.
Consistent with our holding here, Division I of our court recently held that the account numbers on a check are properly considered independent of the paper check itself. State v. Chang, 147 Wn. App. 490, 195 P.3d 1008 (2008). Division I affirmed Chang's conviction for possession of stolen access devices, holding that the State proved the account numbers on the checks, rather than the check themselves, satisfied the statutory definition of an "access device" because a person could use the account numbers to access an account through a computer without the check. Id. at 503-04. Similar to possessing the account numbers in Chang, Meske used ATS Northwest's name and address on the check as a "means of identification" in attempting to access the corporation's payroll account monies.
The State convicted Chang for possession of stolen access devices after police found several blank checks with account numbers on them for accounts that Chang did not have permission to access. Chang, 147 Wn. App. at 494. Chang appealed his conviction, arguing that a check falls within the statutory exclusion for those access devices used to initiate a transfer of funds "solely by paper instrument" under RCW 9A.56.010(1). Chang, 147 Wn. App. at 498.
We hold, therefore, that Meske's challenge to the sufficiency of the evidence fails.
II. Issues Raised After Remand A. Undisputed Facts
In his supplemental brief, Meske challenges the trial court's finding that there were no disputed facts. He contends that whether the check he tried to cash was a "means of identification" is a disputed fact because the parties reached no agreement on this issue. Meske also lists no other facts allegedly in dispute. This argument fails.
Regardless of how Meske characterizes this issue, whether ATS Northwest's name and address on the check are "means of identification" is a question of law. Therefore, we agree with the trial court that there were no disputed facts.
B. Delayed Entry of Findings and Conclusions
Meske also argues in his supplemental brief that the trial court's delayed entry and its subsequent alleged tailoring of findings of fact and conclusions of law denied his constitutional right to a timely and meaningful appeal, warranting reversal of his conviction and dismissal of the charge. Again, we disagree.
1. Standard of Review
"A delay in filing findings of fact and conclusions of law is reversible only if the delay prejudiced a defendant or the findings of fact and conclusions of law were `tailored to meet the issues presented in [the defendant's] appellate brief.'" State v. Brockob, 159 Wn.2d 311, 343, 150 P.3d 59 (2006) (quoting State v. Gaddy, 114 Wn. App. 702, 705, 60 P.3d 116 (2002), aff'd on other grounds, 152 Wn.2d 64 (2004)) (emphasis added). The defendant has the burden of proving any such prejudice. State v. Head, 136 Wn.2d 619, 625, 964 P.2d 1187 (1998). Meske fails to meet this burden.
2. Delay and Tailoring
Meske's circumstances do not describe a due process violation. Both parties requested remand to the trial court for entry of written findings and conclusions of law. The resultant two-month delay — far from extreme — is not on its face unreasonable. Furthermore, Meske demonstrates no prejudice from this delay.
Meske also fails to show that the trial court's subsequent written conclusions of law were tailored to meet the issues he raised on appeal. Meske argues that written Conclusion of Law No. 2 was tailored to fit the elements for a "means of identification" after he submitted a brief arguing that a check cannot be a "means of identification" if it contains "financial information" such as an account number. The record shows, however, that in its oral ruling, long before entry of its written findings of fact and conclusions of law, the trial court stated that a check contains both a means of identification and financial information.
Here, the trial court's written findings of fact and conclusions of law do not contain unanticipated information; and there is no hint of "tailoring." See Brockob, 159 Wn.2d at 344 (no prejudice to defendant where the delayed findings of fact and conclusions of law do not contain unanticipated information and they do not appear to be tailored). On the contrary, the written findings of fact and conclusions of law directly address facts and issues discussed at trial. Furthermore, the report of proceedings support the trial court's findings of fact, and the findings of fact support its conclusions of law.
Meske fails to show that the delay in the trial court's entering written findings of fact and conclusions of law prejudiced him or that the trial court improperly tailored its written conclusions of law. Therefore, we hold that such delay did not violate his due process rights.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., concur: