Identify theft and State of Oregon v. Kevin Martin

The Court of Appeals of the State of Oregon just issued a ruling that relates to identify theft. If seems that when Kevin Martin was arrested for burglary he had an Oregon DMV identification card for someone else in his pocket. He was subsequently convicted of both burglary and identity theft, but the Court of Appeals reversed the conviction for identity theft.

As the Court noted, a person commits the crime of identity theft under ORS 165.800(1) when the person, "with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person's own use the personal identification of another person." And the Court ruled that just having someone else's identification card in your possession isn't enough to establish that you had planned to use it for identity theft. Here's how the Court described their reasoning:

The state's argument fails to withstand scrutiny under the above legal principles. Generally, proof of a defendant's mental state focuses on inferences drawn from evidence concerning the acts of the defendant as they relate to the "action" element of the offense. State v. Beason, 170 Or App 414, 425-26, 12 P3d 560 (2000), rev den, 331 Or 692 (2001). Here, the "action" element of the offense with which defendant is charged is his possession of the card at the time of his arrest. Defendant's mere possession of the card is not by itself probative of an intent to use the card to deceive or defraud. Moreover, defendant was under no legal obligation to explain further his possession of another person's identification card to the police, and his disclosure that he had found the card in a wallet that had been lost implies no criminal wrongdoing on his part. The state also points to the fact that the card was loose in his pocket rather than in a wallet and to the fact that he had refused to disclose the whereabouts of the wallet. In addition, the state relies on the fact that the picture of the person on the identification card is of a white male about the approximate age and height as defendant. However, those facts, whether considered individually or together with all the other circumstances in this case, do not rise to the level of an inference beyond a reasonable doubt that defendant intended to use the card to deceive or defraud another at the time that he possessed it. Rather, they require a factfinder to speculate as to what action, if any, that defendant might take with the card in the future. It follows that the trial court erred when it denied defendant's motion for a judgment of acquittal on the identity theft charge.

Some people are saying how this ruling is going to make it much more difficult to convict people for identity theft. There will probably need to be some additional investigation done to verify that a suspect actually used someone else's identification to commit identity theft, but that's probably a good thing. Convicting someone of what they might do in the future is something that really belongs in one of the failed communist states of the twentieth century, not in a modern democracy.

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