Summary
The Washington Supreme Court held that value is not an essential element of second degree identity theft or third degree theft and therefore need not be alleged in the charging document. It further held that the unit of prosecution for identity theft is a single proscribed act involving a particular person’s means of identification or financial information, rather than each subsequent use of that information. The court reversed three of Steven Leyda’s four identity theft convictions and remanded for resentencing, while affirming the third degree theft convictions.
Topics
Practice areas
Questions Presented
- Whether multiple second degree identity-theft convictions based on four uses of one victim's credit card violated double-jeopardy protections because the statutory unit of prosecution was a single act involving one victim's means of identification or financial information.
- Whether value of the property, goods, services, or credit obtained was an essential element of second degree identity theft and third degree theft that had to be alleged in the charging document.
- Whether issues raised for the first time in a supplemental brief after review was accepted should be considered.
Holdings
- The unit of prosecution under RCW 9.35.020 is any one act of knowingly obtaining, possessing, using, or transferring a single means of identification or item of financial information belonging to another person with the requisite criminal intent. Multiple subsequent uses of the same victim's credit card during one course of conduct do not constitute separate identity-theft offenses.
- Value of the goods, services, credit, or other property obtained is not an essential element of second degree identity theft and need not be alleged in the charging document.
- Value is not an essential element of third degree theft and need not be alleged in the charging document.
- The court generally will not consider issues raised for the first time in a supplemental brief filed after review has been accepted, and the court struck or declined to address Leyda's additional merger and jury-instruction arguments.
Key quotations
“We conclude that the unit of prosecution for identity theft is any one act of either knowingly “obtaining], possess [ing], us[ing], or transfer[ring] a means of identification or financial information of another person . . . with the intent to commit, or to aid or abet, any crime.”” (157 Wn.2d at 338)
“Therefore, we hold that the challenged charging information is not constitutionally infirm.” (157 Wn.2d at 351)
“He did not violate the statute each of the four times the stolen card was subsequently presented to make a purchase.” (157 Wn.2d at 351)
“Under RCW 9.35.020(2)(b), Leyda’s single course of illegal conduct amounted to one count of second degree identity theft.” (157 Wn.2d at 351)
Factual background
Leyda possessed a Bon Marché credit card belonging to Cynthia Austin without permission. Over several visits to the store, Leyda and Nikkoleen Cooley used or attempted to use the card four times, making three purchases before police arrested them. The aggregate value of the goods obtained was less than $1,500.
Procedural history
Leyda was charged in King County Superior Court with four counts of second degree identity theft, one count of second degree theft, two counts of third degree theft, and one count of second degree possession of stolen property. A jury convicted him on all counts, and the Court of Appeals affirmed. The Washington Supreme Court granted direct review, addressed only the unit-of-prosecution and charging-document issues, reversed three of the four identity-theft convictions, and remanded for resentencing.
Remand instructions
Reverse the portion of the Court of Appeals' decision affirming four separate second degree identity-theft convictions and remand for resentencing based on one conviction for second degree identity theft. The third degree theft convictions were affirmed.