Clark v. State

RODOWSKY, J. James Lewis Clark (Clark), appellant, is a lifelong thief and self-confessed heroin addict. On December 12, 2007, a jury in the Circuit Court for Montgomery County convicted him of multiple counts relating to the theft and use of credit cards stolen from a single victim. On March 13, 2008, he was sentenced to forty-five years in prison. His appeal presents the following questions: “1.

Was the evidence insufficient to sustain convictions for identity fraud, identity theft, and unauthorized disclosure of a credit card number? “2. Did the trial judge impose an improper sentence? a. Fundamental fairness and rule of lenity b. Single Larceny Rule c.

Cruel and Unusual [Punishment] “3. Should the conviction for theft over $500 merge into theft of a credit card under the circumstances of this case?” Background Facts On June 25, 2007, Dr. Kurt Schluntz, an orthopedic surgeon at Suburban Hospital Outpatient Center (the Hospital), re ¹⁸⁹ ported that his wallet containing cash and credit cards was removed from his locker without his permission or knowledge. Dr. Schluntz testified “the locker door had been jammed open[.]” 1 The State’s principal witness was Brian Kruse, the Executive Team Leader for Asset Protection for Target Corporation. He was employed at the Target store located at 20908 Frederick Road in Germantown, Maryland, where his responsibilities included protecting the store from theft and fraud offenses.

On June 25, 2007, Mr. Kruse, by means of monitors in the store’s security camera system room, observed a customer attempting to purchase a thirty-two inch Philips television set that retailed for $889. Mr. Kruse was alerted to the pending transaction when the customer attempted to use three different credit cards to pay for the TV, but all were declined. The customer next moved to an ATM machine located within the store and unsuccessfully attempted to withdraw cash. Then the customer went to the “Food Avenue” of the store where he made a cash purchase at Pizza Hut.

The customer thereafter exited the store to the parking lot. Once in the parking lot, the customer, who was still visible on the Target camera system, discarded the ATM receipt. 2 When he arrived at his vehicle, he dropped what appeared to be a black wallet on the pavement and kicked it under the adjacent car. After testifying to the above facts, Mr. Kruse made an in-court identification of Clark as the customer whom he had observed by video surveillance attempting the TV purchase and ATM withdrawal and making the Pizza Hut purchase. Store records demonstrated that all three credit cards used in the attempted TV purchase were issued to Kurt Schluntz.

While Mr. Kruse was observing Clark, he contacted Detective David Hill of the Montgomery County Police Department. Detective Hill responded to the parking lot in an unmarked ¹⁹⁰ car and, in conjunction with other police units, blocked Clark’s vehicle. Clark was in the driver’s seat of the vehicle, and another man was in the passenger seat; both were arrested. Clark possessed $280 in $20 bills. 3 By an inspection of the area surrounding the vehicle, the police recovered a black wallet.

In the vehicle, stuffed down between the driver’s seat and the center console, the police recovered credit cards issued to Kurt Schluntz by Sun Trust, American Express, Capital One Visa, and MBNA MasterCard. In the same location, the police found Dr. Schluntz’s Blockbuster membership card, CVS photo ID, Care First Blue Cross/Blue Shield member card, and an Eddie Bauer store charge card. Also in the vehicle, Detective Hill recovered four Play Station 3(PS3) video games, a new PS3 game system, and a Toys ‘R’ Us receipt dated June 25, 2007, bearing a serial number matching that of the particular PS3 game system in the car. A witness from the Toys ‘R’ Us store in Gaithersburg testified that when such items are purchased, the receipt will contain a serial number corresponding to that of the purchased item and that the product was valued at $599.99.

Kurt Schluntz testified that he received a Sun Trust credit card statement indicating purchases from Toys ‘R’ Us totaling $732.97. He further testified he did not make those purchases. Kyle Boorstein, the building engineer at the Hospital, testified that there are surveillance cameras at the front entrance of the Hospital that record people entering and exiting the building. Mr. Boorstein viewed the surveillance tapes for June 25, 2007, with Detective Hill.

The tapes show a man entering the Hospital and, later, the same man exiting the Hospital with items under his left arm. Detective Hill compared the Hospital’s video surveillance to that of Target. He was able to determine that Clark was the man represented in both. Subsequently, Detective Hill made an in-court identifi ¹⁹¹ cation of Clark as the person shown on the tapes and the person whom he had arrested in the parking lot.

In the subject criminal cause, Clark was charged with seven counts of theft and identity fraud and found guilty on six. 4 These six offenses were alleged to have occurred on June 25. They related to Dr. Schluntz. Count 1 charged that Clark did “with fraudulent intent possess and obtain personal identifying information of Kurt Schluntz,” in violation of Maryland Code (2002, 2006 Cum. Supp.), § 8-801(b) of the Criminal Law Article (Cr).

Count 2 charged that Clark “did knowingly and willfully assume the identity of Kurt Schluntz” in violation of Cr § 8-301(c). Count 3 charged that Clark did steal a Play Station 3 Game System and one game from Toys ‘R’ Us, Inc., valued at over $500, in violation of Cr § 7-104. Count 4 charged that Clark did steal Schluntz’s Sun Trust credit card, in violation of Cr § 8-204(a). Count 5 charged that Clark “did unlawfully use and disclose a credit card number” of Schluntz, namely, that of the Sun Trust issued credit card, in violation of Cr § 8-214.

Count 6 charged attempted theft from Target of the television set, valued at over $500. The court sentenced Clark on March 13, 2008, to five years on Count 1; to five years on Count 2, to be served concurrently with the sentence on Count 1; to fifteen years on Count 3, consecutive to the sentence on Count 2; to ten years on Count 4, consecutive to the sentence on Count 3; to fifteen years on Count 5, concurrent with the sentences on Counts 3 and 4; and to fifteen years on Count 6, to be served consecutively to ¹⁹² the sentences on Counts 1, 3, and 4. Thus, the sentences in the criminal cause before us total forty-five years. 5 From the judgment of conviction, Clark appealed to this Court. Additional facts will be stated as necessary to the analysis of the issues presented.

I Clark asserts that there was insufficient evidence to support convictions on Count 1 (Cr § 8—301(b)), Count 2 (Cr § 8-301(c)), and Count 5 (Cr § 8-214). He labels the sections respectively as “Identity Theft,” “Identity Fraud,” and “Unlawful Disclosure of a Credit Card Number.” He argues that the conduct proven should have been charged under Cr § 8-206(a)(1), which prohibits use of a stolen credit card. His theory is that the Identity Theft and Identity Fraud statutes, as well as Cr § 8-214, were enacted after the criminal proscription of using a stolen credit card and were intended to address conduct that was not reached by that pre-existing statute. Clark suggests, as examples of Identity Theft and Identity Fraud, using “the card to procure access to the victim’s accounts or to create new lines of credit in the victim’s name[.]” We shall address the none-too-clear interrelationship between the statutes, infra.

But, first, the State presents the argument that this issue has not been preserved. ¹⁹³ Although Clark characterizes his argument as based on insufficient evidence, the argument essentially is that the facts proved by the State do not satisfy the elements of the crimes charged. In this respect, the preservation issue here is much like that presented in Moosavi v. State, 355 Md. 651 , 736 A.2d 285 (1999). Moosavi was convicted for violating Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 151A, which criminalized circulating or transmitting a statement or rumor concerning the location or possible detonation of a bomb or other explosive device by one who knew the statement or rumor to be false and who intended that it be acted upon. Moosavi contended in the trial court that the appropriate charge was under Article 27, § 9, proscribing the threat to explode a destructive explosive device.

He did not renew this argument in this Court. Moosavi v. State, 118 Md.App. 683 , 703 A.2d 1302 (1998). This Court reasoned that Moosavi had been inappropriately charged, but affirmed because the issue had not been raised on appeal. The Court of Appeals considered the merits and reversed the conviction.

It reasoned that, if § 151A were clearly inapplicable to Moosavi’s conduct, then, even if counsel had not preserved the issue, Moosavi “would be entitled to relief in an appropriate post conviction proceeding collaterally attacking his conviction.” 355 Md. at 662 , 736 A.2d at 290 -91 (citing State v. Evans, 278 Md. 197, 211 , 362 A.2d 629, 637 (1976); Franklin v. State, 319 Md. 116, 122 , 571 A.2d 1208, 1210-11 (1990); Walczak v. State, 302 Md. 422, 427 , 488 A.2d 949, 951 (1985)). As a further reason for considering the argument, the Moosavi Court held that the conviction under an entirely inapplicable statute could be reviewed on the theory that the resulting sentence was illegal and therefore could be challenged at any time. Id. at 662, 736 A.2d at 291 (citing Campbell v. State, 325 Md. 488 , 601 A.2d 667 (1992)). See also Moore v. State, 163 Md.App. 305, 313-14 , 878 A.2d 678, 683 (2005).

Thus, the issue is preserved. In the case sub judice, the State, when addressing the merits, reviews the statutory language and the facts established at trial, and concludes that, under the rule of Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d ¹⁹⁴ 560 (1979), any rational juror could have found guilt. Actually, the merits present a question of statutory construction. The earliest of the statutes put in play by Clark’s argument is Cr § 8-206, enacted by Chapter 632 of the Acts of 1972 and codified in Maryland Code (1957, 1976 Repl.Vol.) as Article 27, § 142A(d).

Section 8-206, in relevant part, provides: “(a) Prohibited—Use of stolen or counterfeit card.—A person may not for the purpose of obtaining money, goods, services, or anything of value, and with the intent to defraud another, use: “(1) a credit card obtained or retained in violation of § 8-204 or § 8-205 of this subtitle.... “(a) Same—False representation.—A person may not, with the intent to defraud another, obtain money, goods, services, or anything of value by representing: “(1) without the consent of the cardholder, that the person is the holder of a specified credit card[.]” Section 8-204(a) provides, in relevant part: “(a) Taking credit card from another; receiving credit card taken from another with intent to sell.—(1) A person may not: “(i) take a credit card from another, or from the possession, custody, or control of another without the consent of the cardholder!)]” Credit card is defined in Cr § 8-201(c) for the purpose of Cr Title 8, “Fraud and Related Crimes,” Subtitle 2, “Credit Card Crimes.” That subsection provides: “(1) ‘Credit card’ means an instrument or device issued by an issuer for the use of a cardholder in obtaining money, goods, services, or anything of value on credit. “(2) ‘Credit card’ includes: “(i) a debit card, access card, or other device for use by a cardholder to effect a transfer of funds through an electronic terminal, telephone, or computer; ¹⁹⁵ “(ii) a magnetic tape that orders or authorizes a financial institution to debit or credit an account; and “(in) a code, account number, or other means of account access that is not encoded or truncated and can be used to: “1. obtain money, goods, services, or anything of value; or “2. initiate a transfer of funds. “(3) ‘Credit card’ does not include a check, draft, or similar paper instrument.” The core of Cr § 8-214 was enacted by Chapters 747 and 782 of the Acts of 1984, as part of then Article 27, § 145, a section renumbered by Chapter 849 of the Acts of 1978 from former § 142A. Section 8-214 is codified under Part II, “Credit Card Number Protection,” of Subtitle 2 of Cr Article 8. In relevant part, the section reads: “(a) In general; exceptions.—A person may not use or disclose any credit card number or other payment device number or holder’s signature unless: “(1) the person is the holder of the credit card number or payment device number; “(2) the disclosure is made to the holder or issuer of the credit card number or payment device number; “(3) the use or disclosure is: “(i) required under federal or State law; “(ii) at the direction of a governmental unit in accordance with law; or “(in) in response to the order of a court having jurisdiction to issue the order; or “(4) the disclosure is in connection with an authorization, processing, billing, collection, chargeback, insurance collection, fraud prevention, or credit card or payment device recovery that relates to the credit card number or payment device number, an account accessed by the credit card number or payment account number, a debt for which the holder or a person authorized by the holder ¹⁹⁶ gave the credit card number or payment device number for purposes of identification, or a debt or obligation arising, alone or in conjunction with another means of payment, from the use of the credit card number or payment device number[.]” Section 8-301 had its genesis in Chapters 331 and 332 of the Acts of 1999. It is codified under Subtitle 3, “Identity Fraud,” of Cr Article 8.

As of June 25, 2007, § 8-301, in relevant part, provided: “(a) Definitions.—(1) In this section the following words have the meanings indicated. “(2) ‘Payment device number’ has the meaning stated in § 8-213 of this title. “(3) ‘Personal identifying information’ means a name, address, telephone number, driver’s license number, Social Security number, place of employment, employee identification number, mother’s maiden name, bank or other financial institution account number, date of birth, personal identification number, credit card number, or other payment device number. “(b) Prohibited.—Obtaining personal identifying information without consent.—A person may not knowingly, willfully, and with fraudulent intent possess, obtain, or help another to possess or obtain any personal identifying information of an individual, without the consent of the individual, in order to use, sell, or transfer the information to get a benefit, credit, good, service, or other thing of value in the name of the individual. “(c) Same—Assuming identity of another.—A person may not knowingly and willfully assume the identity of another; “(2) with fraudulent intent to: “(i) get a benefit, credit, good, service, or other thing of ¹⁹⁷ value[.]” 6 A We shall first address Count 5. Cr § 8-214, subject to exceptions not relevant here, criminalizes the unauthorized use or disclosure of a credit card number. In this case, the conduct on which the State relied is not clear from the criminal information, other than that it relates to Dr. Schluntz’s Sun Trust credit card. In its opening summation, the State reviewed the information count by count, consecutively, but omitted Count 5 in that review.

The only reference in the State’s argument to the disclosure of a credit card number is in its discussion of the attempted purchase at Target, using a Sun Trust card. The State said, in part: “The same credit card number was used. That in and of itself is using somebody else’s credit card without permission. He presented it.

Enough said? He presented it, he used it. He disclosed these credit card number [sic ]. He had no permission to do that.” Thus, the theory of the State is that the presentation of a lost or stolen credit card in an attempted transaction discloses the credit card number and violates Cr § 8-214.

In each of the fourteen instances in Cr § 8-214 which use the term, “credit card,” it is immediately followed by the term, “number.” The plain language of the statute focuses on, and limits its concern to, credit card numbers. Further, presenting, for fraudulent purposes, a credit card (which would contain a credit card number) was conduct already criminalized by Code (1957,1982 Repl.Vol.), Art. 27, § 145, (now uncharged § 8-206) when the provisions now found in § 8-214 were first enacted. Thus, from the statute as a whole, it would appear that Clark’s conduct did not violate Cr § 8-214. ¹⁹⁸ In prosecutions under 15 U.S.C. 1644(a), generally prohibiting in interstate or foreign commerce the use of a stolen “credit card,” courts have divided over whether the fraudulent use of the credit card number, without presenting the card itself, violates the statute. Compare United States v. Callihan, 666 F.2d 422, 423 (9th Cir.1982) (“[CJredit card account numbers are not the same as credit cards”) with United States v. Bice-Bey, 701 F.2d 1086, 1092 (4th Cir.) (holding that the defendant’s reading of the statute, as making the same distinction, was “overliteralistic”), cert. denied, 464 U.S. 837 , 104 S.Ct. 126 , 78 L.Ed.2d 123 (1983) In State v. Leyda, 122 Wash.App. 633 , 94 P.3d 397, 400 (2004), rev’d in part on other grounds, 157 Wash.2d 335 , 138 P.3d 610 (2006), the court, rejecting a strict merger argument, said that “possession of a stolen credit card is not an element of identity theft; possession of a stolen credit card number would satisfy that statute.” If § 8-214 is ambiguous on whether the General Assembly intended by it to reach only unauthorized credit card number disclosures, which were made separately from use of the credit card itself, then we may consider the legislative history as an aid to construction.

See Ishola v. State, 404 Md. 155 , 945 A.2d 1273 (2008) (consulting legislative history of identity theft statute where it was unclear whether identity of “another” in Cr § 8-301(c) could include a fictitious person); Melton v. State, 379 Md. 471 , 842 A.2d 743 (2004). Cr § 8-214 was enacted in 1984 by Chapter 747 (Senate Bill 703) and Chapter 782 (House Bill 1590). Both bills added a new Subtitle 14, “Credit Card Number Protection Act,” to Title 14, “Miscellaneous Consumer Protection Provisions,” of the Commercial Law Article (CL). With one exception not here relevant, “the differences between chs. 747 and 782 are stylistic and consist of wording and labeling variances.” Editor’s Note to Maryland Code (2000 RepLVol.), § 14-1401 of the CL Article.

Both statutes contained a criminal provision, codified as § 14-1403, and providing: ¹⁹⁹ “A person may not possess, with unlawful or fraudulent intent, any credit card number or other payment device number belonging to another personf.]” In Chapter 747, the word, “number”, was inserted by amendment following “credit card” in this section. By Chapter 26 of the Acts of 2002, former CL § § 14-1401 through 14-1405 were repealed and reenacted as § § 8-213 through 8-217 of the Criminal Law Article, as part of the Code Revision Project. Portions of the analyses for both 1984 bills are the same. They point out that “[gjenerally, current law prohibits the fraudulent use of credit cards which have been lost or stolen!;.]” The “CHANGES MADE BY THE BILL[S]” are that they create “a new subtitle to address credit card number and payment device number protection.” The background for the legislation is described in the favorable report of the Senate Judicial Proceedings Committee on House Bill 1590.

The committee advised that, at its hearing, an assistant attorney general from the Consumer Protection Division “testified that the AG’s Office had recently been investigating ‘telemarketing’ firms. These firms would obtain a consumer’s credit card number by purchasing a list of numbers. The firm would then call the consumer and ask whether the consumer wished to purchase their service. When a consumer would refuse their service, the firm would place a charge on that consumer’s credit card account even though no service had been bought by the consumer. “According to Mr. Abbott the lists of credit card numbers are obtained by hooking into the computer of a credit bureau; the lists are then sold in an underground market.

However, the practice of selling the lists of numbers is not illegal; under Maryland law the credit card itself is protected (i.e.-laws prohibiting theft or forgery) but the card’s number is not.” Thus, § 8-214 was aimed at persons who came into possession of a credit card number(s) with a fraudulent intent or who came into possession of the number(s) lawfully, but thereafter ²⁰⁰ formed a fraudulent intent. In either case, it was the fraudulent possession of a credit card number, as a number, that the General Assembly intended to reach. There was no intent to duplicate the existing crimes of stealing and then using a credit card. We hold that Clark did not violate § 8-214.

B The State’s theory of the case on Count 1, violation of Cr § 8—301(b), is found in the final argument of the prosecutor where he said: “Count 1 is ‘the defendant did commit identity fraud by obtaining personal identification information without consent.’ Okay, certainly he obtained personal identification. Dr. Schluntz didn’t give him permission to do this. He had Dr. Schluntz’s credit card, no question. He even had his wallet, had the credit cards, was in Target using the credit cards. “So, Count 1 he’s in possession of somebody else’s identifying credit cards.

So, he did, in fact, commit identity fraud by obtaining personal identification information without consent. That’s Count 1.” Thus, the State considered that it had proven obtaining and possessing “personal identifying information,” because Clark had the credit cards that were in the wallet that he stole. As of June 2007, “personal identifying information” was defined by the limited types of information specified in § 8—301(a)(3). 7 With the exception of a person’s name, address, place of employment, mother’s maiden name and date ²⁰¹ of birth, each of the items of information specified in the statute is an identifying number of some kind. With respect to credit cards, the “personal identifying information” is not the credit card, it is the credit card number.

There is no evidence that Clark obtained or possessed any personal identifying information of Dr. Schluntz in order to obtain something of value, other than his obtaining and possessing the victim’s credit card, that contained a credit card number. 8 Thus, application of § 8—301(b) to the facts of the instant matter presents the same problem of construction of an ambiguous statute that we faced with respect to Cr § 8-214. Is presenting a credit card, embossed with a credit card number, the use of a stolen credit card under § 8-206, or is it the fraudulent use of a type of personal identifying information, ie., a credit card number, under § 8—301(b)? As we explain below, it is both. We again consult the legislative history.

Section 8-301 was enacted by Chapter 331 of the Acts of 1999 (Senate Bill 244) and Chapter 332 (House Bill 334). The statement of the legislative committee of the Maryland Chiefs of Police Association to the Senate Judicial Proceedings Committee on Senate Bill 244 clearly states the purpose of the legislation. “ ‘Identity theft’ is becoming a serious problem for Maryland residents. Identity thieves use another person’s personal identifiers such as name, address, Social Security ²⁰² number, date of birth, mother’s maiden name, financial account numbers, credit card numbers, and PIN numbers. This information is used to take over existing accounts or open new credit card or financial accounts.

These thieves obtain money, goods, and services and leave the victim to straighten out the mess as the thief moves to another victim. “... Current theft laws do not cover the theft of personal information as it has no set value and does not fit the definition of property as defined in Article 27, Crimes and Punishments, § 340.” Similarly, in written testimony on House Bill 334, the Maryland State’s Attorney’s Association advised as follows: “Members of the Association are receiving an ever-increasing number of complaints from citizens of unauthorized use of their personal identifying information by unscrupulous individuals who fraudulently use their identity to obtain credit, goods, and services and then not pay for it. The unsuspecting citizen whose identity has been used is the one who is sued or pressured for non-payment of the bill. “Many times, the victim doesn’t even find out about the problem—which can ruin their credit—until years later when they go to sell their house or engage in some other credit transaction that necessitates obtaining a copy of their credit report. Then, they discover to their horror that they owe money all over the State, for transactions they had nothing to do with. “Most of the time, we have to decline prosecution because there is no statute that criminalizes the fraudulent use of someone’s identity.

Although the crime of theft would apply if it is the merchant or bank that is complaining, there is no crime when it is the defrauded individual who complains. Many times, the merchant, bank or other business entity that has suffered a loss as a result of identity fraud, does not press charges or even report the crime. They ²⁰³ simply write it off