State v. Solway

88 P.3d 784, 139 Idaho 965, 2004 Ida. App. LEXIS 30
CourtIdaho Court of Appeals
DecidedMarch 19, 2004
DocketNo. 28912
StatusPublished
Cited by3 cases

This text of 88 P.3d 784 (State v. Solway) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Solway, 88 P.3d 784, 139 Idaho 965, 2004 Ida. App. LEXIS 30 (Idaho Ct. App. 2004).

Opinion

LANSING, Chief Judge.

Dennis E. Solway appeals from his conviction of two counts of grand theft by unauthorized control of credit cards. He challenges the sufficiency of the trial evidence to prove that the objects he stole were valid credit cards and to prove that he knowingly possessed the credit cards.

I.

FACTUAL & PROCEDURAL BACKGROUND

On January 9, 2002, while shopping for groceries, Mary Carlisle left her purse in her shopping cart. Solway grabbed the purse and left the store with it. A store employee observed this occurrence and notified the manager, who followed Solway out of the store. The manager saw Solway drive away in a white pickup and noted the pickup’s license plate number. Police were notified, and they apprehended Solway. Before Sol-way’s arrest, two junior high school students saw someone throw a purse from the pickup as the pickup went past their school. The purse was given to the police, who returned it to Mary Carlisle. Its contents, including credit cards, were intact.

Solway was charged with two counts of grand theft by unauthorized control of credit cards under Idaho Code § 18-2403(3)1 and former § 18-2407(l)(b)(3).2 At trial, after the State rested, Solway moved pursuant to Idaho Criminal Rule 29 for a judgment of acquittal, asserting that the State was required to prove, and had not proved, that the credit cards in Carlisle’s purse were valid at the time of the theft, i.e., that they had not [967]*967expired or been cancelled. The district court denied the motion. The jury found Solway guilty on both counts, and the district court imposed concurrent unified sentences of nine years, with six years determinate.

On appeal, Solway contends that the State was required to prove the validity of Car-lisle’s credit cards at trial and that the State failed to produce sufficient evidence on that element. Solway further contends that the State produced insufficient evidence to show that he knowingly took or exercised control over the credit cards, and he asserts that the sentence imposed is excessive.

II.

ANALYSIS

A. Proof of Validity of Credit Cards

Solway’s first contention is that the district court erred in denying his motion for acquittal because the State was required to prove that the stolen cards were not expired or revoked and thus could actually be used to obtain credit. The State, relying upon People v. Thompson, 99 N.Y.2d 38, 751 N.Y.S.2d 162, 780 N.E.2d 973 (2002), and People v. Winfield, 145 A.D.2d 449, 535 N.Y.S.2d 619, 620 (N.Y.App.Div.1988), takes issue with this contention that the theft of a credit card constitutes grand theft under I.C. § 18-2407(l)(b)(3) only if the card is valid. We need not resolve this issue of the interpretation of a statute that has since been amended because we conclude that, even assuming that proof of validity of the cards was necessary, the State’s evidence here was sufficient.

Appellate review of the sufficiency of the evidence is limited in scope. A jury verdict will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of the charged crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099, 1101 (Ct.App.1998); State v. Willard, 129 Idaho 827, 828, 933 P.2d 116, 117 (Ct.App.1997); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.App.1991). In making this assessment, we consider the evidence in the light most supportive of the verdict. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001. We do not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct.App.1985).

In this case, there is evidence from which it can be inferred that the stolen credit cards were valid. The State placed in evidence photocopies of the cards. The copy of a Visa card shows that it had an expiration date of October 2002, so it had not expired at the time of the offense in January 2002. Another, a department store credit card, shows no expiration date, thereby indicating that it could not have expired before the theft. The victim, Carlisle, testified as follows concerning the credit cards:

Q Now these cards, when you say credit cards, are you able to go into a store and charge either goods or services and be billed later?
A. Yes.
Q. What do you mean by a credit card?
A. It’s a card that I have signed and applied for from wherever and I go into a store and I make purchases and I give them my card and they — I charge on it.
Q. How do you make payments on these cards?
A. Well, usually we pay it off immediately, but you can make it monthly.
Q. When do you receive bills for this?
A. Anywhere from the first of the month to, I believe, one is I’m being billed the tenth of the month.
Q. Where does the money come from to pay on these particular three cards?3
[968]*968A. My Horizon card, which is actually a debit/credit card, comes from my checking account and when I make payments on the others, I write a check for it out of my checking account.

All of these questions were asked and answered in the present tense, indicating that as of the time of trial, Carlisle was still placing charges on the credit cards. Finally, the circumstances of the theft showed that Carlisle was carrying the credit cards in her purse at the time of the theft, which implies that the cards were usable at that time. All of this evidence supports a reasonable inference that the cards were in fact valid and subject to use as credit cards when they were taken.

B. Sufficiency of Evidence That Solway Knowingly Exercised Control Over the Credit Cards

Solway’s next argument is based on the provisions of I.C. § 18-2403(3) specifying that theft is committed when an individual “knowingly” exercises unauthorized control over, or makes an unauthorized transfer of property belonging to another. Solway contends that there was no evidence that he knowingly took the credit cards. The State, he avers, showed only that he knowingly stole a purse, but not that he knew, at any time before he discarded it, that there were credit cards within a closed wallet inside the purse.

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Bluebook (online)
88 P.3d 784, 139 Idaho 965, 2004 Ida. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-solway-idahoctapp-2004.