Monsurat Adetoro Ogunlana v. State

Opinion

Opinion issued November 21, 2012.

In The Court of Appeals For The First District of Texas

NO. 01-11-00573-CR

MONSURAT ADETORO OGUNLANA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 434th District Court Fort Bend County, Texas Trial Court Cause No. 07-DCR-047443

MEMORANDUM OPINION

A jury convicted Monsurat Ogunlana of fraudulent use or possession of

identifying information, and the trial court assessed punishment at two years’ confinement, which it probated to three years. See TEX. PENAL CODE ANN.

§ 32.51(b) (West Supp. 2012). Ogunlana challenges the legal and factual

sufficiency of the evidence, specifically contending that no evidence produced

shows that she fraudulently used or possessed the identifying information. We

affirm.

Background

In September 2006, Ogunlana called Dell Inc. to purchase two computers for

her home business. During that call, she gave her correct name, address, telephone

number, and tax identification number to the sales agent, Traci Tucker, who filled

out an inquiry for a quote. However, Dell never created an actual order with this

information for a purchase.

On the same day, Dell employee Traci Tucker opened another account in the

name of Roger Lochridge. This account included Lochridge’s name and address

for purposes of opening a business financing account. When Dell received a

subsequent purchase order for two computers under Lochridge’s financing

information, the account indicated that the computers would be shipped to

Ogunlana’s address and named Ogunlana as administrator of the account. Dell

sent the bills to Lochridge.

The State produced evidence in the form of Dell’s account documents and

testimony of Officer Williams, the investigating law enforcement officer and a

2 Dell fraud investigator. The documents included the packing lists, shipped with

the computers received by Ogunlana, which showed Lochridge’s name and address

under the “bill to” section and Ogunlana’s address under the “ship to” section.

The State also produced records from Dell’s call center containing telephone

logs for calls made about the Lochridge/Ogunlana accounts. Shortly after she

received the two computers, Ogunlana called Dell and made arrangements to

return one of them. The notes regarding this call do not mention a request to

remove Lochridge as the financially responsible party for the account. But, in

December 2006—several days after Officer Williams, approached Ogunlana on the

pretext of investigating a different matter—Dell’s records show that Ogunlana

called to remove Lochridge’s name.

Rebecca Rocha, a fraud investigator and Dell’s custodian of records,

testified to Dell’s general policies and practices and to certain aspects of Dell’s

computer systems. She explained that when a caller applies for business credit,

they provide a name and address. The company then sends that information to the

credit bureau for approval, which responds immediately. Rocha admitted that

mistakes in credit profiles occur, but they are generally the fault of the credit

bureau, not the caller or employee. Furthermore, similar names, business names,

or addresses usually trigger those mistakes. Ogunlana and Lochridge do not share

any similar identifying information.

3 Rocha testified that a sales associate manually types in the fields for the

credit application. Because of privacy concerns, the computer system that controls

the credit application information is not the same system that houses other client

information, and thus, it does not automatically complete the application’s fields

with previously obtained account information. Rocha further explained that,

according to company procedure, a sales associate must verify the information by

phone before sending it to the credit bureau. Rocha conceded, however, that she

had no personal knowledge of what transpired during the Ogunlana transaction.

Ogunlana testified in her defense. She told the jury that she called Dell only

once, on the day she ordered the computers. During that call, she provided her

personal information; she believed that she had placed a complete order for the two

computers. When the computers arrived, Ogunlana called sales agent Tucker on

her direct line and told her that Lochridge’s name had appeared on the packing list.

Ogunlana recounted that Tucker told her the information would be changed before

she received her bill. Ogunlana next told Tucker that she did not need the second

computer, so Tucker transferred Ogunlana to speak to someone in a different

department. Ogunlana later returned the second computer, explaining that it was

too costly for her new business.

4 Ogunlana was not concerned that she had not received a bill by December,

because she thought she had ninety days to pay rather than the sixty days that was

indicated on the contract. According to Ogunlana, Tucker explained that she

would have ninety days to pay the balance. Ogunlana testified that after speaking

to Officer Williams, she called Dell in December to verify that Dell had received

the returned computer, confirm that she had been credited for it, inquire about her

bill, and request that Dell remove Lochridge’s name from the account.

Both Lochridge and Ogunlana had previously purchased computers through

Dell, and Dell maintained computer records for each of them. Lochridge paid for

the computers he purchased by credit card; he did not use a business financing

account. Dell’s telephone records show that Lochridge called Dell to dispute the

charges associated with Ogunlana’s transaction when he received the bill in

September 2006. Ogunlana never paid Dell for the computer that she retained.

Evidentiary Sufficiency

Standard of Review

We review evidentiary sufficiency challenges under the Jackson standard.

See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson

v. Virginia legal-sufficiency standard is the only standard that a reviewing court

should apply in determining whether the evidence is sufficient to support each

element of a criminal offense that the State is required to prove beyond a

5 reasonable doubt.”) (referring to Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.

Ct. 2781, 2788–89 (1979)). Under this standard, evidence is insufficient to support

a conviction if, considering all the record evidence in the light most favorable to

the verdict, no rational fact finder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Viewed in the light most favorable to the verdict, the evidence is insufficient

when either: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense; or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.11, 320, 99 S.

Ct. at 2786, 2789 n.11; see also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d

at 750. This standard applies equally to both direct and circumstantial evidence.

King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995); Ervin v. State, 331

S.W. 3d 49, 55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

We do not weigh any evidence or evaluate the credibility of any witnesses,

as this was the function of the fact finder. Williams, 235 S.W.3d at 750. Instead,

we determine whether both the explicit and implicit findings of the fact finder are

6 rational by viewing all the evidence admitted at trial in the light most favorable to

the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992).

Analysis

Ogunlana claims that the evidence is insufficient to prove that she

fraudulently used or possessed identifying information, because no evidence exists

that Ogunlana ever obtained or possessed Lochridge’s identifying information. A

person is guilty of fraudulent use or possession of identifying information “if the

person. with the intent to harm or defraud another, obtains, possesses, transfers, or

uses an item of identifying information of another person without the other

person’s consent.” TEX. PENAL CODE ANN § 32.51(b)(1). “Identifying

information” includes, among other things, an individual’s name, social security

number, date of birth, government-issued identification number, and

telecommunications identifying information or access device. See id. § 32.51(a)(1).

Although the statute lists four types of illegal conduct—“obtain[ing], possess[ing],

transfer[ring], or us[ing]”—it defines only “possession.” See id. § 1.07(a)(39)

(defining “possession” as “actual care, custody, control, or management”). In

construing the rest, we apply their everyday usage. Clinton v. State, 354 S.W. 3d

795, 800, 801 n.4 (Tex. Crim. App. 2011).

The State alleged that Ogunlana “obtain[ed], possess[ed], or use[d]”

Lochridge’s information with the intent to harm or defraud another. Ogunlana

7 correctly points out the lack of evidence to support a finding that Ogunlana either

obtained or possessed the information. The State did not provide any direct

evidence that Ogunlana supplied Lochridge’s name to Dell in connection with her

order. Rocha, the Dell fraud investigator, could not confirm that Ogunlana was the

person who provided Lochridge’s information. We conclude, however, that the

State provided sufficient evidence such that a reasonable jury could determine that

Ogunlana “used” Lochridge’s information without his consent when she ordered a

computer, did not pay for it, and did not attempt to correct Dell’s billing error

within the time period for payment.

Applying the ordinary meaning of “use” as “to avail oneself of” or “apply to

one’s own purposes,” the record contains evidence that supports a finding that

Ogunlana used Lochridge’s information without his consent. See Clinton v. State,

354 S.W.3d 795, 801 (Tex. Crim. App. 2011) (consulting Webster’s Third New

International Dictionary and observing that the word “‘use’ is “susceptible to

multiple interpretations”). Ogunlana took no action when she discovered

Lochridge’s name as the person financially responsible for the computers on the

packing list that accompanied her order. She accepted one of the computers

without inquiring as to billing within the sixty-day window for payment. She

never paid for the computer. A jury reasonably could have concluded the type of

inaction shown here—that is, failure to correct a false impression of law or fact—

8 constitutes criminal use of the information. See, e.g., TEX. PENAL CODE ANN.

§ 31.01(2)(B) (West Supp. 2012) (“‘Deception’ means failing to correct a false

impression of law or fact that is likely to affect the judgment of another in the

transaction, that the actor previously created or confirmed by words or conduct,

and that the actor does not now believe to be true”).

The State demonstrated that Ogunlana did not ask Dell to remove

Lochridge’s name from the account until after an officer spoke to Ogunlana

regarding the returned computer. Other calls made to Dell were appropriately

documented according to Dell’s policy. Viewed together with the fact that she

made no attempt to pay for the computer she kept, this evidence creates a

reasonable inference that Ogunlana accepted the computers aware that she was

using Lochridge’s account information. The jury reasonably could have rejected

Ogunlana’s testimony that she phoned Tucker to correct the error, given that no

record of that conversation appeared in Dell’s telephone logs. See Adelman, 828

S.W.2d at 421–22 (appellate courts must defer to jury in resolving conflicting

evidence and in choosing to accept or deny different versions of facts). We hold

that a rational jury could find beyond a reasonable doubt that Ogunlana used

Lochridge’s name for the purpose of using his credit to defraud him or Dell.

9 Conclusion

We hold that legally sufficient evidence supports the jury’s finding of

fraudulent use or possession of identifying information. We therefore affirm the

judgment of the trial court.

Jane Bland Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).