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State v. Horton

Court of Appeals of Oregon

April 4, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL ANDREW HORTON, Defendant-Appellant.

          Submitted January 19, 2017.

          Klamath County Circuit Court 1401736CR; Rodger J. Isaacson, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura E. Coffn, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore.

         Case Summary: Defendant appeals a judgment of conviction for identity theft, ORS 165.800, assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant asserts that the evidence was insufficient to establish that he acted with the intent to defraud under ORS 165.800(1) because he did not interfere with a teacher's legal right or interest when he contacted her former students using information from her Facebook page. The state counters that the evidence was sufficient because it showed that defendant intended to cause reputational harm to the teacher, which is a legal right or interest under the statute. Held: The trial court erred by denying defendant's motion for a judgment of acquittal. Intent to defraud within the meaning of ORS 165.800(1) required proof that defendant acted with the specific intent to cause injury to another's legal right or interest. On this record, no reasonable faultfinder could infer that defendant had the specific intent to cause injury to a legal right or interest of either the teacher or her former students.

         [291 Or.App. 66] ORTEGA, P. J.

         Defendant appeals a conviction for identity theft, ORS 165.800, assigning error to the trial court's denial of his motion for judgment of acquittal. Defendant asserts that the evidence presented at trial was insufficient to establish that he acted with the "intent to defraud" under ORS 165.800(1). According to defendant, "intent to defraud" means the intent to interfere with another person's legal right or interest, and he asserts that the evidence established only that he received a social benefit. The state counters that "intend to defraud" includes intent to harm another person's reputation and, because defendant used the identity of a teacher to reach out to her former students with sexual and flirtatious messages, the evidence was sufficient to find that he intended to cause reputational harm to the teacher, and, therefore, to convict him under the statute. We conclude that the evidence was legally insufficient to support an inference that defendant acted with the "intent to defraud" within the meaning of ORS 165.800(1). Accordingly, we reverse.

         Defendant waived his right to a jury trial and proceeded to a stipulated facts bench trial. We state those facts in the light most favorable to the state. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995). Defendant created a Facebook account under the name of a teacher at Falcon Heights Academy, A. To create the profile, defendant took pictures from As Facebook page-which was a public profile-as well as her first name. Once the account was set up, defendant began contacting former students of A. The messages were sexual and flirtatious, and one of the former students reported the messages to A, who then reported the incident to local law enforcement. When A learned that defendant might be the culprit, she reported it to the police. An officer interviewed defendant, and he admitted to creating a fake profile using As images and her name. Defendant claimed that he had created the account in an effort to gain information about a woman he once dated and used As pictures because it gave him "greater access." Defendant was arrested and charged with identity theft based on intent to defraud under ORS 165.800.

         [291 Or.App. 67]We begin with the text of the relevant statute, which provides necessary context. ORS 165.800(1) provides that

"[a] person commits the crime of identity theft if 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."[1]

(Emphasis added.) In State v. Alvarez-Amador, 235 Or.App. 402, 407, 232 P.3d 989 (2010), we concluded that a person acts with the "intent to defraud" under ORS 165.800(1) when a person intends "to cause injury to another's legal rights or interests." In that case, the defendant provided a false Social Security number on his Form 1-9, and we determined that a jury could infer that the defendant intended to injure the legal interest of the federal government in enforcing its laws when he made misrepresentations on his form. Id. We also concluded that a factfinder could infer that the defendant intended to defraud his employer because he was able to secure a job that "he was not legally eligible to have." Id.

         In State v. Mullen, 245 Or.App. 671, 263 P.3d 1146 (2011), rev den, 352 Or. 25 (2012), on which the state relies, we did not address what is necessary to show intent to defraud; instead, in addressing who is considered a "victim" under ORS 165.800, we concluded that a risk of loss is protected under the statute even if it does not materialize. There, we were tasked with deciding whether three individuals whose personal information was possessed by the defendant, but not actually used to deceive or defraud, were "separate victims" under ors 161.067(2) for the purpose of justifying multiple convictions of identity theft. Id. at 674. To make that determination, we examined who is considered a "victim" under ORS 165.800. Id. at 675. We concluded that the three individuals were victims-"that a person whose identity is misappropriated is a 'victim' for purposes of identity theft." Id. We also reasoned that the person whose identity was misappropriated need not actually suffer economic harm but that it was sufficient that the persons whose personal information was taken were at "a risk of loss from the exposure of their identification to misuse, " including the risk [291 Or.App. 68] of "economic or reputational injury." Id. at 677-78 (emphasis added). We noted that such a victim

"is disadvantaged [by identity theft] because [her] personal identification could be used by another person for deceptive or fraudulent ends. It is immaterial whether that risk is realized or whether economic or reputational injury actually occurs. As noted, the text of the statute does not require a completed act of deception or fraud. That reflects the legislature's determination that the risk of loss is itself a harm that occurs when one's identification is possessed by someone with an intent to deceive or defraud."

Id. at 678.

         We return to the question at issue in this case. Defendant argues on appeal, as he did below, that the evidence was legally insufficient to establish that he acted with the "intent to defraud" as charged and therefore was insufficient to convict him of identity theft. He argues that, because he only contacted A's former students to get their attention, which he claims was a social benefit, his case is distinguishable from Alvarez-Amador-that is, he did not use A's information to create the fake Facebook profile with the intent to interfere with a legal right or interest, nor did he obtain a benefit that he was legally barred from having had he used his true identity.

         In response, the state argues that Mullen expanded our holding in Alvarez-Amador and asserts that we established in Mullen that a person's interest in her reputation is a legal right or interest protected under the statute. Accordingly, under the state's view, the evidence was legally sufficient to convict defendant under ORS 165.800(1). The state asserts that defendant admitted to using A's pictures and her name to send inappropriate messages to her former students and, because A was a teacher, ...


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