Opinion
S05A1225
DECIDED: OCTOBER 3, 2005
This case requires us to determine whether the statutory venue provisions set forth for the crime of identity fraud in OCGA § 16-9-125 satisfy the mandate of the Georgia Constitution that a criminal case must be tried in the county where the crime was committed. We find, as more fully discussed below, that OCGA § 16-9-125 as it is currently drafted is unconstitutional to the limited extent that it provides that venue for identity fraud is proper in the county where the victim resides or is found, irrespective of whether the defendant obtains or records identifying information of the victim or accesses or attempts to access the resources of the victim in the county of the victim's residence.
The record shows that, sometime between November 22, 2003 and December 31, 2003, Owanna Lloyd, a resident of Clayton County, misplaced his wallet in Fulton County. Later, Mayze took Lloyd's wallet and, using the information it contained, accessed Lloyd's credit history at least once in DeKalb County. Mayze was subsequently arrested and charged in Clayton County with two counts of identity fraud. OCGA § 16-9-121. It is undisputed that Lloyd's residence is the sole nexus between Mayze's crimes and Clayton County. After being charged and indicted, Mayze filed a special and general demurrer to the indictment, contending that the statutory provision placing venue for the crime of identity fraud in the county where "the victim resides or is found" violated our constitution's venue mandate. After a hearing, the trial court granted Mayze's demurrer, and the State appeals.
Art. VI, Sec. 2, Par. VI of the Georgia Constitution provides: "[A]ll criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county." In criminal cases, venue requirements generally are for the benefit of the defendant, and "venue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt." Graves v. State, 269 Ga. 772, 773 (1) ( 504 SE2d 679) (1998). Addressing venue for the crime of identity fraud, OCGA § 16-9-125 states, in turn:
This constitutional mandate is codified at OCGA § 17-2-2 (a).
The General Assembly finds that identity fraud involves the use of identifying information which is uniquely personal to the consumer or business victim of that identity fraud and which information is considered to be in the lawful possession of the consumer or business victim wherever the consumer or business victim currently resides or is found. Accordingly, the fraudulent use of that information involves the fraudulent use of information that is, for the purposes of this article, found within the county where the consumer or business victim of the identity fraud resides or is found. Accordingly, in a proceeding under this article, the crime will be considered to have been committed in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county.
We must now determine whether OCGA § 16-9-125 satisfies the mandate of Art. VI, Sec. 2, Par. VI of the Georgia Constitution and accurately describes the places where identity fraud is committed.
The crime of identity fraud occurs when:
without the authorization or permission of a person with the intent unlawfully to appropriate resources of or cause physical harm to that person, or of any other person, to his or her own use or to the use of a third party he or she: (1) Obtains or records identifying information of a person which would assist in accessing the resources of that person or any other person; or (2) Accesses or attempts to access the resources of a person through the use of identifying information.
Each element of identity fraud will have some specific situs. With this in mind, Code Section 16-9-125 properly places venue "in any county in which any other part of the offense took place." In other words, this portion of the statute may properly be read to indicate that, due to identity fraud's nature as an ongoing crime, venue would be appropriate in any county in which an act in furtherance of the crime is committed. See, e.g., State v. Kell, 276 Ga. 423 ( 577 SE2d 551) (2003) (regarding venue for ongoing crime of medicaid fraud); Callaway v. State, 247 Ga. App. 310, 315 (2) ( 542 SE2d 596) (2000) (regarding venue for insurance fraud). In this way, venue is placed in any county where the crime has been committed.
To the extent, however, that OCGA § 16-9-125 places venue in the county where the victim resides or is found, irrespective of whether the defendant obtains or records identifying information of the victim or accesses or attempts to access the resources of the victim in the county of residence, the statute violates the constitutional mandate that a crime must be tried in the county where it is committed. As the specific facts of this case show, the crime of identity fraud will not always occur in the county of the victim's residence, as contemplated by the current language of OCGA § 16-9-125.
In considering these issues, one must not confuse the situs where an act of identity fraud is committed with the place that the results of the crime are most strongly manifested. Identity fraud can be committed in any county; its manifestations, however, will be strongest at the home county of the victim. Unless the manifestations precipitated by an act constitute a part of the crime itself, venue nonetheless must be placed where a crime occurs, not where its consequences are felt. Furthermore, although identity fraud may constitute a continuing crime, this classification does not automatically allow it to be tried in the county of the victim's residence. For a continuing offense, venue generally may be appropriate in any county where the crime was begun, continued, or completed. The beginning, middle, or end of the crime of identity fraud does not always occur in the county of the victim's residence, as in this case.
For example, some acts which criminally interfere with interstate commerce may be tried in the place where interstate commerce has actually been affected, as well as the place that the act causing the effect occurred. See, e.g., U.S.V. Craig, 573 F2d 513 (7th Cir. 1978) (violation of federal Hobbs Act properly tried in place where act of extortion impacted interstate commerce).
See, e.g., United States v. Muench, 153 F3d 1298 (11th Cir. 1998) (violation of federal Child Support Recovery Act by failure to pay child support may be tried in county and state where child resides, as that is the place where the act is completed).
Applying all of these rules and considerations to the case at hand, we hold that venue for Mayze's crimes of identity fraud does not lie in Clayton County, as Mayze did not obtain or record identifying information of the victim or access or attempt to access the resources of the victim there. Accordingly, we affirm the trial court's ruling on this issue.
Judgment affirmed. All the Justices concur.