State v. Bowen

Under ORS 165.800(1), a “transfer” means the selling or giving possession or control of another person’s personal identification to a third person for fraudulent or deceptive purposes, and is distinct from appropriation of another’s credit card for one’s own use.

Defendant appealed two judgements of conviction, raising assignments of error related to denial of his motions for judgment of acquittal on two counts of identity theft. Defendant, along with an accomplice, was accused of breaking into the victim’s home and stealing belongings including a credit card. Defendant used the victim’s credit card himself at a store, and also gave the credit card to his accomplice to use at a separate store. Counts 3 and 4 alleged Defendant unlawfully “transferred” the victim’s personal identification at each stores. Defendant argued at trial that “transfers,” as used in ORS 165.800(1), did not include swiping the victim’s credit card. The trial court denied Defendant’s motion for judgment of acquittal because “a person commits the crime of identity theft if that person transfers to the person’s own use” the credit card of another person. A jury convicted Defendant on all charges. On appeal, after an extensive discussion of the statutory interpretation of the 165.800(1), the Court held that a “transfer” in this context means the selling or giving possession or control of another person’s personal identification to a third person for fraudulent or deceptive purposes, and is distinct from appropriation of another’s credit card for one’s own use. Reversed and remanded.