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State v. Zibulsky

Court of Appeals of Oregon

October 29, 2014

STATE OF OREGON, Plaintiff-Respondent,
TERI LYNN ZIBULSKY, aka Terri Lynn Zibulsky, Defendant-Appellant

Submitted December 30, 2013

Multnomah County Circuit Court. 101134317. Jerry B. Hodson, Judge.

Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the brief for respondent.

Before Hadlock, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.


Page 751

[266 Or.App. 634] HADLOCK, P J.

The state charged defendant with various crimes arising from her involvement in her elderly father's financial affairs, including first-degree theft, first-degree criminal mistreatment, and identity theft. She appeals the resulting judgment of conviction, asserting that the trial court erred in denying her motions for a judgment of acquittal (MJOAs) on three of the identity-theft counts for which a jury ultimately convicted her. See ORS 165.800 (stating crime of identity theft). Two of those counts were premised on the state's contention that defendant had unlawfully appropriated her father's identity when she withdrew money from two bank accounts that she and her father owned jointly and that, accordingly, were maintained in both of their names.[1] Defendant's withdrawal of funds from a third bank account that was maintained only in her father's name formed the basis of the other count at issue here. With respect to two of the counts, defendant argues that the identity-theft statute does not contemplate criminal liability for a person who conducts transactions on a bank account that is held in his or her own name, even if another person is a joint owner of the account and therefore shares that same bank-account information. Defendant separately contends that her father executed a power of attorney that authorized her to make each of the transactions and that she was entitled to judgments of acquittal on all three counts as a result. Because we agree with the first of those arguments and, because it is unpreserved, do not consider the second, we reverse and remand with respect to two of the challenged counts of conviction and otherwise affirm.

" We review the denial of an MJOA to determine whether, after viewing the facts in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Rennells, 213 Or.App. 423, 425, 162 P.3d 1006 (2007). " [W]hen, as here, a defendant makes the MJOA at the close of the state's case, 'the appellate court must consider all the evidence and if it is sufficient to sustain the [266 Or.App. 635] conviction, the defendant cannot complain that his motion for acquittal made at the close of the state's case was denied.'" State v. Bilsborrow, 230 Or.App. 413, 418-19, 215 P.3d 914 (2009) (quoting State v. Gardner, 231 Or. 193, 195, 372 P.2d 783 (1962)). In accordance with that standard, the facts are as follows.

Defendant is the daughter of the victim, Sims. In the months after Sims's wife passed

Page 752

away in 2008, defendant assumed a degree of responsibility for his care, a process that included Sims executing a power of attorney in favor of defendant. At some point during that time period, defendant's name was added to a Sun Community Credit Union account (the Sun account) that had previously belonged to Sims's wife but that had passed to Sims at her death. Additionally, defendant opened a bank account at Chase Bank (the Chase account) for the ostensible purpose of helping to manage Sims's finances. [2] The Chase account, like the Sun account, was titled in both Sims's and defendant's names. Sims also maintained an individual account at Union Bank (the Union account) that was titled in his name only.

The three identity-theft counts at issue in this appeal involve transactions that defendant made on those three bank accounts (Counts 7, 22, and 24). In September 2008, defendant withdrew all funds from the Sun account and closed it (Count 7). In June 2009, defendant purchased airline tickets using a debit card tied to the Chase account (Count 22). In September 2009, defendant drafted a check on the Union account, payable to herself, and withdrew additional funds from that account using an ATM (Count 24). Referring to those transactions, the state's indictment alleged, in each of the three separate identity-theft counts, that defendant " did unlawfully, with intent to deceive and defraud, obtain, possess, transfer, create, utter and convert to defendant's own use [the] personal identification of [Sims]." [3]

[266 Or.App. 636] Defendant moved for a judgment of acquittal on those three counts, among others, at the end of the state's case in chief. The trial court denied the motions, stating, " I believe that there is sufficient evidence from which a jury could return a verdict in favor of the State in the--viewing the evidence in the light most favorable to the State, and that the identity theft statute can be and should be interpreted to apply to the facts of this case." A jury convicted defendant of the ...

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