State v. Mayze

622 S.E.2d 836, 280 Ga. 5, 2005 Fulton County D. Rep. 3521, 2005 Ga. LEXIS 825

• Court: Supreme Court of Georgia
• Decided: November 21, 2005
• Docket: S05A1225
• Status: Published

Opinions

CARLEY, Justice.

In 2003, Owanna Lloyd, who resides in Clayton County, misplaced his wallet in Fulton County. Using information contained in the wallet, Willie Mayze allegedly accessed Mr. Lloyd’s credit history in DeKalb County. Eventually, Mayze was arrested and charged in Clayton County with two counts of identity fraud in violation of OCGA§ 16-9-121. In accordance with OCGA§ 16-9-125, venue of the prosecution was predicated on Mr. Lloyd’s residence in Clayton County.

Mayze filed a demurrer to the indictment, asserting that OCGA § 16-9-125 was unconstitutional insofar as it authorized venue of an identity fraud prosecution in the county where the victim “resides or is found,... regardless of whether the defendant was ever actually in such county.” After a hearing, the trial court sustained the demurrer, and the State brings this appeal from that order.

We note at the outset that, in creating the crime of identity fraud and providing for venue of the prosecution in the county where the victim resides or is found, Georgia is not alone. A growing number of other states have enacted comparable provisions, including the following: Alabama (Ala. Code § 13A-8-196); Connecticut (C.G.S.A. § 54-1d (c)); District of Columbia (DC Code § 22-3227.06 (1)); Florida (West’s F.S.A. § 817.568 (15), (16)); Illinois (720ILCS 5/1-6 (s)); Iowa (I.C.A. § 715A.8 (5)); Kentucky (KRS § 514.160 (5)); Maryland (MD Code, Criminal Law, § 8-301 (m) (2)); Michigan (M.C.L.A. § 762.10c (1) (c)); Minnesota (M.S.A. § 609.527, Subd. 6 (1)); Missouri (V.A.M.S. § 541.033 (2)); Nevada (2005 Nevada Laws Ch. 485 (S.B. 347), § 13 (2) (effective October 1,2005)); New Hampshire (N.H. Rev. Stat. § 638:27); New Mexico (N.M.S.A. 1978, § 30-16-24.1 (G)); North Carolina (NC Sess. Laws 2005-414, § 2 (effective December 1,2005)); North Dakota (NDCC § 12.1-23-12); Pennsylvania (18 Pa.C.S.A. § 4120 (e.l)); Utah (U.C.A. 1953 § 76-1-201 (7)); Virginia (Va. Code Ann. § 18.2-186.3 (D)); Washington (West’s RCWA § 9.35.020 (5)). The precise issue presented for resolution in this case is the constitutionality of the venue provision of our statute. “[A] 11 criminal cases shall be tried in the county where the crime was committed ....” Art. VI, Sec. II, Par. VI of the Georgia Constitution of 1983. The General Assembly is certainly bound by this provision, and cannot enact a law providing for the prosecution of a crime in any county other than that wherein it was committed. Nevertheless, it is equally clear that “ ‘[t]he power to create crimes and to prescribe punishment therefor is legislative.’ [Cit.]” (Emphasis omitted.) Knight v. State, 243 Ga. 770, 771 (1) (257 SE2d 182) (1979). Thus, if the offense of “identity fraud,” as defined by the General Assembly, is one which occurred in the county where the victim resides or is found, then there is no constitutional impediment to trying the defendant there.

Art. VI, Sec. II, Par. VI of our Constitution does not limit venue in a criminal case to one county. It provides for trial in whatever county the offense was committed. A crime may be ongoing or continuing, in which case venue would be appropriate in any county wherein the offense occurred. See State v. Kell, 276 Ga. 423 (577 SE2d 551) (2003). Mayze contends that the continuing crime theory does not apply because identity fraud, as defined by OCGA§ 16-9-121, can be committed only in a county wherein the defendant obtained or recorded identifying information of the victim or accessed or attempted to access the resources of the victim. That interpretation of the limited scope of the offense presumably is based on the so-called “verb test,” whereby the verbs which appear in a criminal statute and relate to the proscribed conduct are the determinative factor in identifying the substantive nature of the offense. It is true that “[studying ‘the key verbs which define the criminal offense in the statute is helpful in determining venue in doubtful cases.’ [Cit.]” State v. Kell, supra at 425. However, this Court, like the Supreme Court of the United States, has

never before held... that verbs are the sole consideration in identifying the conduct that constitutes an offense. While the “verb test” certainly has value as an interpretative tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.

United States v. Rodriguez-Moreno, 526 U. S. 275, 280 (II) (119 SC 1239, 143 LE2d 388) (1999) (interpreting Art. Ill, Sec. 2, Cl. 3 of the Federal Constitution, which provides that “[t]he Trial of all Crimes... shall be held in the State where the said Crimes shall have been committed” and which is, therefore, virtually identical to our comparable state constitutional provision). Thus, exclusive reliance on the “verb test” when considering the constitutionality of a venue provision enacted by the General Assembly is inappropriate. “[0]ther relevant statutory language” must be considered in determining the scope of the prohibition imposed by OCGA § 16-9-121 and, consequently, the location of permissible venues for a prosecution under that statute.

OCGA §§ 16-9-121 and 16-9-125 are in pari materia and must, therefore, be construed together. See generally State v. Griffin, 268 Ga. 540, 542 (491 SE2d 340) (1997). Looking beyond the verbs contained in OCGA § 16-9-121 and giving consideration to the additional language contained in OCGA § 16-9-125, the General Assembly has clearly defined the crime of identity fraud as a continuing offense which extends into the county where the victim resides or is located. OCGA § 16-9-125 expressly states:

The General Assembly finds that identity fraud involves the use of identifying information which is uniquely personal to the consumer or business victim of that identity fraud and which information is considered to be in the lawful possession of the consumer or business victim wherever the consumer or business victim currently resides or is found. Accordingly, the fraudulent use of that information involves the fraudulent use of information that is, for purposes of this article, found within the county where the consumer or business victim of the identity fraud resides or is found.

This “other relevant statutory language” clearly indicates that, regardless of where the victim’s records may be physically located, the nature of the offense of identity fraud is the protection of the personal information contained therein. Moreover, that information is deemed to be in the lawful possession of the victim, so that when a defendant violates OCGA § 16-9-121 by engaging in an unauthorized access to the records, he thereby engages in the fraudulent use of information located in the county where the victim resides or is found. Since the crime of identity fraud, as thus defined by OCGA §§ 16-9-121 and 16-9-125 when read in pari materia, takes place in the county where the victim and his or her personal information are located, there is no constitutional bar to trying the defendant in that county.

Therefore, the “act” which constitutes the crime of “identity fraud” does occur in the county of the victim’s residence, because that act is the unauthorized use of the victim’s personal information. There is a valid connection between the act of accessing records and the use of information contained therein. Regardless of where the records were accessed, the use of the information obtained therefrom is consummated in the county where the victim lives. There is not any constitutional impediment to the authority of the General Assembly to define a crime in such a manner as to provide that a defendant’s conduct which takes place in one jurisdiction culminates in an unauthorized act or, as in this case, an unauthorized use occurring in another. As another example of the breadth of the constitutional power to legislate in this context, we note that the General Assembly could provide that the venue of a murder case is in the county where the death occurred, regardless of where the fatal act took place. Roach v. State, 34 Ga. 78, 82 (1864) (holding that “at common law the jurisdiction attached in the county where the death occurred; by statute, the jurisdiction attaches in the county where the mortal blow was given.”). This shows that the General Assembly is not constitutionally bound by the “verb test,” and can establish legislatively whether the crime of murder occurred where the defendant committed the act or where the victim died. If the “verb test” is not a limit on the General Assembly’s authority to define the crime of murder so as to compel a prosecution where the accused’s act occurred, it cannot constitute a limit on legislative authority to define the crime of “identity fraud” so as to provide that an unauthorized use of information can be prosecuted in the county of residence of the victim whose privacy was invaded.

The conclusion that OCGA§ 16-9-125 passes constitutional muster is further supported by a recent Alabama decision. Art. I, Sec. VI of the Alabama Constitution is virtually identical to the comparable provision in our Constitution, and provides that criminal prosecutions in that state are to be held in “the county or district in which the offense was committed . . . .” The relevant provision of the Alabama “identity theft” statute is also comparable to our “identity fraud” law, and provides that the crime is committed if a defendant,

without the authorization, consent, or permission of the victim, and with the intent to defraud for his or her own benefit or the benefit of a third person,... [o]btains, records, or accesses identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of the victim.

Ala. Code § 13A-8-192 (a) (1). In accordance with a legislative enactment that is analogous to our OCGA § 16-9-125, venue of a prosecution for violating the Alabama identity theft statute is

in any county in which any part of the crime took place, regardless of whether the defendant was ever actually present in that county, or in the county of residence of the person who is the subject of the identification documents or identifying information.

Ala. Code § 13A-8-196. As against the assertion that this venue provision was unconstitutional, the Court of Criminal Appeals of Alabama held that

we believe that the Legislature . . . defined the crime of identity theft as a continuing offense. [Cit.] . . . “Venue in a criminal case, though a constitutional matter, requires an inquiry into what conduct the statute proscribes.” [Cit.] “(A) review of relevant authorities demonstrates that there is no single defined policy or mechanical test to determine constitutional venue. Rather, the test is best described as a substantial contacts rule that takes into account a number of factors — the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate factfinding .... Places that suffer the effects of a crime are entitled to consideration for venue purposes. Such districts have an obvious contact with the litigation in their interest in preventing such effects from occurring. To some extent this factor overlaps with the definition and nature of the crime____” [Cits.] Section 13A-8-190, et seq., Ala. Code 1975, entitled, “The Consumer Identity Protection Act,” by its very name was enacted to protect Alabama citizens from defendants seeking to steal their identities. Section 13A-8-196 specifically provides that venue is proper where the victim resides. [Cit.] This issue has no merit.

Ex parte Egbuonu, 911 S2d 748 (Ala. Crim. App. 2004).

This analysis by the Alabama court is compelling and, although not controlling, is persuasive authority for the construction of our own analogous constitutional and statutory provisions. A contrary holding based upon rigid adherence to the “verb test” would have the unfortunate effect of depriving the residents of Georgia of the protection which the General Assembly sought to provide them as against those who seek to steal their identities. A victim of identity fraud in this state would not have any protection against one who stole his or her identity by unauthorized access to records located outside of Georgia. Even when the records are located in this state, the victim would be put to the time and expense of traveling to the county where his or her records were maintained to testify in the prosecution. It is undisputed that this Court has the duty to safeguard the defendant’s constitutional right of prosecution in the county where the crime was committed. However, we also have the responsibility of upholding the General Assembly when it passes constitutional legislation to protect the citizens of this state by authorizing a criminal prosecution in their counties of residence as against those who would make fraudulent use of the personal information located in those counties.

Notwithstanding the dissent’s protestations to the contrary, today’s decision is actually an extremely narrow one. The extent of our holding is that, when exercising its constitutional power to create crimes, the General Assembly is authorized to define identity fraud in such a way that, regardless of where the defendant may have accessed the records, the offense actually constitutes an unauthorized use of the personal information contained therein, which proscribed conduct occurs in the county where the information and the individual who is the subject thereof, rather than the underlying records themselves, are located. Thus, the dissent misrepresents our holding by asserting on page 16 that we have “overlooked] the undisputed fact that no element of the offense of identity fraud as set forth in OCGA § 16-9-121 actually occurred in the county where the defendant was tried in this case.” The truth is that, in resolving this appeal, we have not erroneously limited our consideration to OCGA § 16-9-121, but we have instead properly taken into account that statute and all other provisions which are in pari materia. What is overlooked by the dissent is that OCGA § 16-9-125 clearly provides that an element of the offense is the unauthorized use of personal information, which element occurs in the county where the victim lives. The fact that the language denoting identity fraud as an offense involving the victim’s possessory interest in his or her own personal information appears in OCGA § 16-9-125, rather than OCGA § 16-9-121, does not have any constitutional significance.

Essentially, the dissent fails to acknowledge the fundamental distinction between the location where a defendant commits an act and the site where a crime occurs. The Constitution does not require that the General Assembly provide that venue of a prosecution shall be only in the county where the accused committed a physical act. So long as venue is set in the county where the crime occurred, as that crime is defined by the General Assembly, the constitutional mandate is satisfied. The dissent does not suggest any reason why, for purposes of protecting the citizens of this state from unauthorized use of their personal information, the General Assembly cannot constitutionally determine that the locus of the crime is where the victim resides or is found, regardless of the fortuitous location where the defendant accessed the records containing the information. Unlike homicide or other crimes against the person, identity fraud is an offense against the victim’s possessory interest in his or her personal information. Establishing the victim’s residence as the venue of a prosecution for a crime committed through the invasion of that possessory interest certainly is not “based completely on fictional concepts.” Dissent, p. 15. Personal information is an intangible commodity. Therefore, as evidenced by the numerous statutes from other jurisdictions which are analogous to ours, it is entirely reasonable to provide that, personal information is deemed to be located in whatever county the owner of that information resides.

The dissent apparently believes that its analysis is predicated upon a strict construction of our Constitution. However, the holding that it proposes would violate the principle of the separation of powers, invade the constitutional authority of the General Assembly to create crimes, and substitute the judiciary’s determination as to proper venue for the legislative decision. The principle of strict construction cannot be used as a tool to achieve an unconstitutional result.

Accordingly, we hold that OCGA § 16-9-125 complies with the constitutional mandate that the venue of a criminal case be set in the county where the crime was committed. Because it is alleged that Mayze committed the crime of identity fraud in Clayton County by using personal information which was in the lawful possession of a resident of that county, venue of the prosecution was proper. Therefore, the trial court erred in sustaining his demurrer to the indictment.

Judgment reversed.

All the Justices concur, except Sears, C. J., Hines and Melton, JJ., who dissent.