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Identity Theft

Every year the Federal Trade Commission releases a list of top consumer complaints received by the agency. In 2012–for the 12th year in a row–identity theft complaints topped the list. The North Carolina Department of Justice reports that in this state, about 300,000 people are victimized annually by identity theft. In fact, five North Carolina cities rank in the top 50 U.S. metropolitan areas for identity theft complaints: Thomasville-Lexington (number 2), Dunn (number 4), New Bern (number 35), Rocky Mount (number 45) and Goldsboro (number 46).

G.S. 14-113.20 provides that a person commits the offense of identity theft when he or she:

(1) knowingly

(2)

(a) obtains,

(b) possesses, or

(c) uses

(3) identifying information of another person, living or dead,

(4) with the intent to fraudulently represent the person is the other person

(5) for the purpose of

(a) making financial or credit transactions in the other person’s name,

(b) avoiding legal consequences, or

(c) obtaining anything of value, benefit, or advantage.

The covered identifying information includes social security and driver license numbers, bank account numbers and the like. Few cases have interpreted the statute. One recent case, State v. Sexton, helps us better understand what it means to possess or use such information.

In Sexton, the defendant was detained by a store manager on suspicion of shoplifting and then interviewed by an officer who was called to the scene. The defendant, who didn’t have any identification on him, falsely told the officer that his name was Roy Lamar Ward and provided Mr. Ward’s employer, date of birth, and address. Although the record was a little unclear on this point, it appears that the officer then used this information to obtain Mr. Ward’s social security number from her squad car’s computer. The officer put Ward’s name and social security number on a citation and issued the citation to the defendant. The defendant neither signed the citation nor confirmed the social security number written on it. After the real Roy Lamar Ward was arrested in connection with the incident, the defendant was charged with and convicted of identity theft.

On appeal, the defendant argued that there was insufficient evidence that he provided the officer with any identifying information. He asserted that there was no evidence that he provided the officer with the social security number that the officer wrote on the citation. [Editor’s note: The court focused on the social security number and did not address whether Mr. Ward’s name itself, which the defendant unquestionably used, was “identifying information” under the statute. I previously discussed whether a name counts as identifying information here.]  The court disagreed, concluding that under the statute, the pertinent question was not whether the defendant “provided” the officer with Ward’s social security number but rather whether he obtained, possessed, or used that information. The court noted that in State v. Barron, 202 N.C. App. 686 (2010), it had interpreted the term “uses” in connection with a charge of identity theft. In that case, the defendant was charged after using his brother’s information to identify himself to police. Specifically, when an arresting officer asked the defendant if he knew his social security number, the defendant said no. The officer then took the name and birth date provided by the defendant and found a matching social security number, which he wrote on the arrest sheet. When the officer asked the defendant if the last four digits of the social security number were correct, the defendant replied affirmatively. The defendant was convicted of identity theft and he appealed. The court affirmed, rejecting the defendant’s argument that agreeing with the police officer’s recitation of the last four digits of his brother’s social security number did not constitute “use” of that information. The court concluded that the defendant’s “active acknowledgment” to the officer that the last four digits of his social security number were correct constituted use of another’s identifying information.

The Sexton court noted that unlike the defendant in Barron, the defendant in the case at hand did not sign the criminal process nor did he confirm Ward’s social security number as his own. Nevertheless, the court concluded that the evidence was sufficient to sustain the conviction, stating: “Notwithstanding the distinction between the present case and Barron, we conclude that, by Mr. Ward’s social security number being written on the citation issued to Defendant, the jury could conclude that Defendant ‘used’ or ‘possessed’ the social security number to avoid legal consequences.”

With this case we see a broad construction of the terms “possesses” and “uses.” One final point is worth noting. This crime is a felony. At a minimum, it’s a Class G felony. If—as in Sexton–the victim suffers arrest, detention, or conviction as a proximate result of the offense, it’s a Class F felony. It’s also a Class F felony if the defendant is in possession of identifying information pertaining to three or more people.