Opinion
No. 107,567.
2013-10-7
STATE of Kansas, Appellee, v. Michael B. MATHIA, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael B. Mathia appeals his convictions for identity theft and criminal use of a financial card. He argues his convictions are multiplicitous. But the elements of the two offenses are not identical, so the convictions are not multiplicitous. We therefore affirm the district court.
The State charged Mathia with individual counts of identity theft and criminal use of a financial card. At a bench trial, the parties stipulated to the following facts:
“The State would proffer that five witnesses, who are in the judge's chambers currently, would testify to the following: That on August 17th, or thereabouts, in 2010, at approximately 6:39, Mr. Todd Turner contacted the Derby Police Department to report a crime regarding his credit card being used at Quik Trip, in Derby, Sedgwick County, Kansas, at WalMart, also in Derby, Sedgwick County, Kansas, and Target, in Sedgwick County, Kansas. The card was used on August 13th, 2010 and Officer Derek Dunn took the report.
“Mr. Turner indicated to Officer Dunn that he had last seen his Solomon Bank Visa debit card, ending in numbers 3503, at the Marriott Hotel in Wichita, also in Sedgwick County, Kansas, on August 12th, 2010. He'd been at the bar counter at the Marriott, again located at 9100 Corporate Hills Drive, in Sedgwick County, Wichita, Kansas.
“Officer Dunn, following up, contacted WalMart loss prevention employee Priscilla Lyons and contacted her regarding a video, to see if there was a video from the transaction. The video showed the defendant wearing black pants and a light shirt, red tie, coming into the store and purchasing a Dell laptop computer, with a value of $644.64. The receipt of the transaction showed that it occurred at 1:19 a.m. and it shows that the card was used and the defendant signed the electronic register to make the purchase on Mr. Turner's credit card—or credit and debit card.
“Bank records also show that the same bank account previously stated, that had a transaction occur at Quik Trip, again, as previously stated, in Derby, Sedgwick County, Kansas at 12:54 a.m. on August 13th, 2010, in the amount of $47.46. Bank records also showed that, again, all on August 13, 2010 date, at approximately 5:04 p.m., in the amount of $238.22, an air conditioner was purchased at Target, again in Derby, Sedgwick County, Kansas.
“Detective Russell, and that is Brandon Russell, of the Derby Police Department, contacted the Marriott, again in Sedgwick County, Kansas, and made contact with Marti Martin, who, being shown the still photographs from the surveillance video provided from WalMart by Ms. Priscilla Lyons, agreed that the individual was that—or looked like the defendant Michael Mathia. And records did indicate that Mr. Mathia, the defendant in this case, had been working on August 12th, 2010, during the evening shift, at which time Mr. Turner—was the last time he'd seen his credit card.
“It's also indicated that he did not show up for work on August 13th, 2010. Mr. Mathia was then arrested in his home on October 27, 2010. And while being cuffed, Detective Russell noted there was a laptop on the chair in the kitchen. And on the basis of that, Your Honor, the State does believe that we have and it is stipulated to that the State has met the elements as necessary in the amended information, that in Sedgwick County, on August 13th, the defendant did unlawfully obtain, possess or transfer, use or sell, purchase personal identification information or documents containing such information belonging to another person, that being Todd Turner, with the intent to defraud the person—that person or anyone else in order to receive a benefit.
“As to count two, again, the State believes that we have shown that on August 13th, 2010, in Sedgwick County, the defendant did there and then, unlawfully and intentionally and knowingly, with the intent to defraud, for the purpose of obtaining money or goods, properties or service, did use a financial card, specifically the Solomon Bank Visa debit card, without the consent of the cardholder, that being Todd Turner, for a value of less than $1000.
“That is what I believe is stipulated to, that's what the State would proffer and that's what the evidence would show.”
In addition to the above stipulation, the parties entered an amended stipulation that Mathia signed his own name, not Turners, for the transactions that required a signature at WalMart and Target.
The issue now raised was presented to the district court. Defense counsel argued at the bench trial that the stipulated evidence established the crime of criminal use of a financial card but did not “establish that a separate offense of identity theft occurred here.” The prosecutor responded that the relevant statutes had different elements and that Mathia violated both statutes. The prosecutor argued that when Mathia possessed the credit card with the intent to defraud and did not return it to the hotel, he was guilty of identity theft under the statute. Then, Mathia's subsequent action of using the credit card established the separate crime of criminal use of a financial card. The court accepted the prosecutor's argument and found Mathia guilty of both crimes. The court sentenced Mathia to 10 months' incarceration for identity theft and a concurrent 12–month sentence for misdemeanor criminal use of a financial card. The court then granted 18 months of probation on both counts. Mathia appeals.
Mathia argues his convictions for identity theft and criminal use of a financial card are multiplicitous. The issue of whether convictions are multiplicitous is a question of law subject to unlimited review. State v. Schoonover, 281 Kan. 453, 462, 133 P .3d 48 (2006).
Multiplicity—the charging of a single offense in multiple counts of a complaint—creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009). Kansas appellate courts apply a two-part test to determine whether convictions under different statutes are multiplicitous: (1) Are the convictions based on the same conduct? and (2) If so, do the statutes contain “an identity of elements,” i.e., does one offense require proof of an element not necessary to prove the other offense? See State v. Colston, 290 Kan. 952, 971–72, 235 P.3d 1234 (2010); State v. Patten, 280 Kan. 385, 393, 122 P.3d 350 (2005) (multiplicity test is a strict elements analysis, so the facts proven at trial to establish those elements are not considered).
Mathia was convicted under two separate criminal statutes: K.S.A.2010 Supp. 21–4018(a)(c)(1)(A), for identity theft and K.S.A. 21–3729(a)(1), (d)(2) for criminal use of a financial card.
Identity theft is “obtaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to defraud that person, or anyone else, in order to receive any benefit.” K.S.A. 21–4108(a). Below a level of $100,000 in monetary loss, identity theft is a severity level 8 nonperson felony. K.S.A.2010 Supp. 4018(c)(1)(A).
Criminal use of a financial card is “any of the following acts done with intent to defraud and to obtain money, goods, property or services: (1) Using a financial card without the consent of the cardholder.” K.S.A. 21–3729(a)(1). Below $1,000 in monetary loss, criminal use of a financial card is a class A nonperson misdemeanor, but when the loss is between $1,000 and $25,000, the penalty is a severity level 9, nonperson felony. See K.S.A. 21–3729(d)(2), (3).
The parties discussed the applicability of two cases. In State v. Green, 38 Kan.App.2d 781, 172 P.3d 1213 (2007), rev. denied 286 Kan. 1182, cert. denied555 U.S. 1033 (2008). Green received from an associate another man's (Alan Kane) driver's license number, Social Security number, birth date, address, bank statements, a credit report printout, and other documents. Green intended to use the information to buy high-value goods and then sell them to a prearranged buyer. Using Kane's name and personal information, Green secured a driver's license bearing Kane's name but displaying Green's picture.
Armed with the false documents, Green opened credit accounts in Kane's name first at a Home Depot store in Missouri and then at a JCPenney store in Merriam, Kansas. He also filled out a credit card application for Wal–Mart using Kane's name. The illicit shopping spree came a day later. Green bought almost $1,000 worth of goods at the JCPenney store. On the same day, Green tried to buy about $5,500 in goods at the Merriam Home Depot but was arrested before completing the transaction.
Green was charged with one count of identity theft for using Kane's identity to open the JCPenney credit account. He was also charged with one count of identity theft for attempting to use the credit account already opened in Kane's name at the Home Depot. The third charge of identity theft arose from filling out the Wal–Mart credit account again using Kane's name. Green was also charged with one count of criminal use of a financial card of another, one count of theft (misdemeanor), and one count of unlawful use of a driver's license. The jury convicted Green on all counts.
On appeal, this court addressed Green's claims that his three convictions of identity theft were multiplicitous. The Green court first found that each of Green's convictions did not arise from the same conduct, “rather each use of the stolen identity led to the convictions.” 38 Kan.App.2d at 785. The court stated that Green's acts were separated by time, distance, and the business establishments that were hit. 38 Kan.App.2d at 785.
In addressing the continuing nature of an identity theft crime, the Green court rejected Green's reliance on State v. Meza, 38 Kan.App.2d. 245, 165 P.3d 298 (2007). The Meza court dealt with the 2–year statute of limitations period of K.S.A.2004 Supp. 21–3106(8) as applied to K.S.A.2004 Supp. 21–4018(a). Meza, using another woman's Social Security card, got a job with a company in Fort Scott and worked there for about 4 years before her discovery. On appeal, Meza argued the statute of limitations began to run when she first used the other woman's Social Security card to get a different job in 1998. The Meza court held: “The very nature of identity theft involves more than the surreptitious acquisition of a victim's personal information. It includes the multitude of injurious acts which flow from the acquisition of that information.” 38 Kan.App.2d at 251. The Meza court decided it was a continuing crime and therefore Meza's prosecution was not time barred. 38 Kan.App.2d at 251–52.
The Green court rejected Green's argument that Meza should be interpreted to mean that all conduct following the illegal obtaining of a person's identity information should be bulked into one charge of identity theft. The Green court found that every element of identity theft was fulfilled three times on different days and at different locations and included a fresh impulse to use the stolen identity. 38 Kan.App.2d at 786. The court stated: “Each use of a stolen identity is a blow to the body of credit established by an innocent person. Every use of the innocent's identity takes something away from that person in this modern age of credit histories and instantaneous commercial transactions. If the legislature did not intend that, it would not have employed the verb ‘use.’ “ 38 Kan.App.2d at 787.
Green and Meza would address the multiplicity claim of whether Mathia could be charged with one count of identity theft or three counts of identity theft based on his actions in this case. That question is not before us. However, under the fresh impulse rationale of Green, the State could have charged Mathia, but did not, with three counts of identity theft. See Green, 38 Kan.App.2d at 786 (three times on different days and different locations and a fresh impulse to use the stolen identity). Several principles from both Green and Meza are applicable in our analysis under Schoonover.
Regarding the first prong of Schoonover, Mathia's convictions for both identity theft and criminal use of a financial card arise from the same conduct. The district court disagreed and held that Mathia's possession with intent to defraud was separate from his use of the credit card. Although not referenced by either party, the court in State v. Bland, 33 Kan.App.2d 412, 103 P.3d 492 (2004), rev. denied 279 Kan. 1008 (2005), supports this theory. Bland and his female accomplice attempted to purchase a motorcycle using personal information documents from a purse they had stolen. They were unable to complete the purchase after the motorcycle business became suspicious of fraudulent insurance information necessary for the purchase. Bland was charged and convicted of identity theft, three counts of making a false information, and attempted theft. In rejecting Bland's multiplicity argument, the court held:
“First, we conclude that there is no multiplicity among the false information counts and the identity theft. The three counts of making a false information were based upon Bland's involvement in procuring the 30–day permit, submitting the credit application, and producing the insurance binder. Proof that these instruments were made and were false was not required in proving identity theft because identity theft was complete upon mere possession of Battle's identification instruments with intent to defraud and prior to actual use for any purpose.
“Next, we conclude that there is no multiplicity among the false information counts and the attempted theft by deception. Again, proof that the instruments were made and were false was not required in proving attempted theft because these were not the exclusive overt acts toward obtaining control over the motorcycle. As noted by the State, numerous other overt acts were sufficient to prove the attempted theft, including the dishonest actions in examining, selecting, and purporting to have the wherewithal to purchase the motorcycle, the submission of a false telephone number for an insurance agent, the presentation of erroneous insurance information to the store prior to the store's receipt of a fraudulent binder, and other direct participation by Bland.
“Finally, we conclude that there is no multiplicity between the identity theft and the attempted theft by deception. Proof of attempt to gain control of the motorcycle was not required in proving identity theft because, as we note above, identity theft was complete upon mere possession of Battle's identification instruments with intent to defraud and prior to actual use for any purpose.” (Emphasis added). 33 Kan.App.2d at 421–22.
Unlike the district court, we do not separate Mathia's conduct into one event of possessing the stolen credit card with the intent to defraud and then another event of using the stolen credit card with the intent to defraud. We rely on the Meza court's statement: “The very nature of identity theft involves more than the surreptitious acquisition of a victim's personal information. It includes the multitude of injurious acts which flow from the acquisition of that information.” Meza, 38 Kan.App.2d at 251. Consequently, Mathia's actions of stealing the credit card and using the credit card to obtain a benefit or goods is the same conduct giving rise to both his conviction for identity theft and criminal use of a financial card. As a result, we must continue our Schoonover analysis.
Under the second Schoonover prong, the elements of both crimes are examined to determine if the elements match up. “[T]he test to determine whether charges in a complaint or information under different statutes are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense; if so, the charges stemming from a single act are not multiplicitous.” 281 Kan. at 495. Under the elements test, to prove identity theft in this case, the State must prove the defendant: (1) obtained, possessed, transferred, used, sold, purchased any personal identification information belonging to Turner; and (2) had the intent to defraud in order to receive a benefit. See PIK Crim.3d 62.13.
Under the elements test to prove criminal use of a financial card, the State must prove: (1) the defendant used a credit financial card; (2) the cardholder (Turner) did not consent to the use of the credit card by Mathia; (3) the defendant used the credit card for the purpose of obtaining goods; (4) the defendant did so with intent to defraud; and (5) there was a monetary loss to the victim. See PIK Crim.3d 59.34.
The statutes at issue in this case have elements in each that are not present in the other. To establish criminal use of a financial card, the State must prove actual use of a financial card by the defendant. Identity theft does not require use of a financial card. In addition, to establish criminal use of a financial card, the State must prove a monetary loss to the victim, which is not an element of the identity theft charge. Similarly, identity theft applies to use of “any personal identifying information” and criminal use of a financial card only applies to financial cards. As we have already noted, under the elements portion of the multiplicity analysis, we do not look at the facts that proved the elements in this case; we compare only the elements themselves. See Patten, 280 Kan. at 393.Consequently, under the established rules for multiplicity analysis, the offenses of identity theft and criminal use of a financial card are not multiplicitous and Mathia's convictions must stand. We therefore affirm the district court's judgment.
Affirmed.