State v.Zibulsky

Named account holders of joint bank accounts are not culpable for identity theft under ORS 185.800 for using accounts within their legal rights as joint bank account holders.

Defendant was a joint bank account holder on several bank accounts with the victim, her father, by a power of attorney executed in favor of Defendant, as well as joint control passing to Defendant when Defendant’s mother died. Defendant was charged with various crimes related to her involvement in her father’s financial affairs. Defendant moved for judgment of acquittal (MJA) on three charges of identity theft. The trial court denied Defendant’s motion, and Defendant appealed arguing that as a matter of law her actions did not fall within the identity theft statute, which states that identity theft uses personal information of an account holder in a prohibited manner. On accounts which she was named as a joint account holder, the Court reversed and remanded for resentencing, holding that no reasonable juror could find that she used those accounts in any way which she was not legally entitled to. On the accounts which she accessed as power of attorney, the Court affirmed the trial court's decision because Defendant did not preserve her argument for appeal. Reversed and remanded for resentencing in part, otherwise affirmed.