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The “Single Taking” Rule

About a year since the COVID-19 pandemic began, an increasing number of businesses have transitioned to touchless and contactless payments, with the use of cash taking a backseat to debit and credit cards. Not coincidentally, with increased use of financial cards comes increased financial card theft.

Credit card theft

G.S. 14-113.9(a)(1) provides that a person is guilty of financial transaction card theft when the person

takes, obtains or withholds a financial transaction card from the person, possession, custody or control of another without the cardholder’s consent and with the intent to use it; or who, with knowledge that it has been so taken, obtained or withheld, receives the financial transaction card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder.

This is arguably the most common way we see credit or debit card theft occur—someone steals a purse or wallet that contains the victim’s cards and heads to the nearest Wal-Mart or Best Buy to purchase whatever their heart desires. As typical as the crime itself may seem, you may be surprised to learn how the crime is charged. If a perpetrator takes and uses a single card from a single victim, he is charged with one count of financial transaction card (and financial card fraud under G.S. 14-113.13, should perpetrator use the card). Let’s change the facts: what happens if the perpetrator takes several cards from one victim? What happens when the perpetrator takes one card from several victims? What happens when the perpetrator takes several cards from several victims?

Single taking and credit card theft

Defendants have argued that when several cards are taken from one victim, courts should apply the “single taking” rule, regardless of how many cards are taken. The “single taking” rule prevents a defendant from being charged or convicted multiple times for a single continuous act or transaction. State v. Adams, 331 N.C. 317, 333 (1992). In larceny cases, the single taking rule works to punish a defendant for only one count of larceny regardless of how many items were taken at one time, rather than charging the defendant for each item that was taken in a single sitting. However, our courts have consistently declined to apply the single taking rule to financial transaction card theft cases based on the language of G.S. 14–113.9(a)(1).

In State v. Rawlins, 166 N.C. App. 160 (2004), the defendant used the credit cards of two victims to purchase items from Wal-Mart in three separate transactions and was later convicted of three counts of financial transaction card theft. The defendant argued on appeal that the single taking rule applicable in larceny cases should be applicable to financial transaction card theft. The Court declined to apply the rule in this instance, reasoning:

[T]he statute explicitly uses the word “a” and references “card” in the singular. Thus, the taking, obtaining or withholding of a single card—without the cardholder’s consent and with the intent to use that card—could give rise to a single count of financial transaction card theft in violation of the statute. Accordingly, the single taking rule does not apply to financial transaction card theft. Id. at 165.

The Court came to a similar conclusion in State v. Bright, 209 N.C. App. 754 (2011), when a defendant stole twelve credit cards from three individuals. The defendant broke into one victim’s car at a gas station and stole her purse, which contained four credit cards. The following day, the defendant broke into another victim’s car and stole her purse, which contained seven of her own credit cards and one of her husband’s credit cards. The defendant argued on appeal that the evidence only showed two separate takings and therefore, the trial court erred in failing to dismiss all but two of the counts of credit card theft. The Court upheld the convictions of all twelve counts, declining to apply the single taking rule.

Single taking rule in other contexts

As the law stands, our courts have declined to apply the single taking rule only in the context of financial transaction card theft. The rule has been upheld in other contexts, such as larceny and obtaining property by false pretenses. Consider the following cases:

In State v. Froneberger, 81 N.C. App. 398 (1986), the defendant was convicted of four counts of felonious larceny for taking several items of silver belonging to his mother and pawning it on four separate occasions. The Court of Appeals held that there was no evidence that the silver was stolen on more than one occasion, and thus the defendant could be convicted of only one count of larceny. Id. at 401.

In State v. Mettler, 255 N.C. App. 215 (2017), the defendant entered the victims’ home through a window, taking $150 from the wife’s purse and taking the keys to the husband’s truck and driving off in it. The defendant was found guilty of both felonious larceny after breaking or entering and larceny of a motor vehicle. The Court of Appeals held that the evidence showed that both larcenies were part of a single, continuous transaction, and that the trial court erred in sentencing the defendant for two separate larcenies.

Conversely, in cases where there is a temporal break in the thefts committed by the defendant, the courts are less likely to apply the single taking rule. See State v. Robinson, 342 N.C. 74 (1995) (takings of the wallet and car were separate where the defendant shot the victim and took the victim’s wallet; left the murder, went to a park, and walked around the neighborhood; and then later returned and took the victim’s car); State v. Barton, 335 N.C. 741 (1994) (armed robbery of the victim—resulting in the taking of his wallet and automobile—and the subsequent taking of the victim’s firearm from his automobile constituted separate takings).

The application of the rule is similar in false pretenses cases. In State v. Buchanan, 262 N.C. App. 303 (2018), the defendant was indicted for two counts of false pretenses for signing a “Check Fraud/Forgery Affidavit” with his bank, disputing three checks written off his account totaling $900. The evidence showed that the defendant had pre-signed the three checks, gave them to the mother of his daughter, and authorized her to use them in the care of their daughter. Based on the defendant’s representation in the affidavit, the bank gave the defendant temporary credit for one of the three checks, a $600 check, but denied him credit for two other checks, a $200 check and a $100 check. The defendant was tried and convicted of obtaining property by false pretenses for a $600 provisional credit placed in his bank account and separately of attempting to obtain property by false pretenses for $100 and $200 checks. The defendant argued on appeal that the jury instructions violated the single taking rule. The Court agreed, noting that the defendant submitted one affidavit, disputing three checks, and that the submission of the one affidavit is the one act, or one false representation, for which the defendant was charged. Thus, the Court held, there was only a single act or taking under the single taking rule. Id. at 306. Note that the defendant benefitted here because he signed only one affidavit, so there was only one false representation within the meaning of the statute. If this defendant had instead signed a separate affidavit for each dispute, the separate convictions would have likely been upheld.

A defendant facing financial card theft charges won’t get the benefit of the single taking rule and will be charged on a separate count for each financial card taken, obtained, or withheld without consent. It is worth mentioning that financial transaction card theft is a Class I felony, and a defendant with no prior felonies who takes three financial cards will have that quickly racked up three felonies. Credit card theft seems to be quite literally more trouble than it’s worth.

As always, if you have questions about the application of this rule, please feel free to email me at bwilliams@sog.unc.edu.

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