163
Submitted April 6, 2021, affirmed April 20, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
ATIYEH MEISHA TOWNSEND,
Defendant-Appellant.
Clackamas County Circuit Court
17CR22078; A171681
509 P3d 679
Defendant appeals from a judgment of conviction for two counts of identity
theft (ORS 165.800(1)). She argues that the trial court erred in denying her
motion for judgment of acquittal (MJOA) as to each count because she did not
“utter” the personal identification of another person by using a false name on her
hospital intake forms and writing down a false social security number. Held: A
rational factfinder could have concluded that defendant did “utter” the personal
identification of another for the purpose of obtaining medical services for herself
under a false name. The trial court did not err in denying the MJOA.
Affirmed.
Ann M. Lininger, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.
MOONEY, P. J.
Affirmed.
164 State v. Townsend
MOONEY, P. J.
Defendant appeals from a judgment convicting her
of two counts of identity theft, ORS 165.800(1).1 She assigns
error to the trial court’s order denying her motion for judgment of acquittal (MJOA) on each count of identity theft,
arguing that she did not “utter” the personal identification
of another person. She also assigns error to the trial court’s
instruction to the jury that it could return a nonunanimous guilty verdict. We conclude that defendant uttered
the personal identity of another within the meaning of ORS
165.800(1). And, because the jury returned unanimous verdicts on both counts, any instructional error was harmless;
therefore, we reject the second assignment without further
discussion. State v. Kincheloe, 367 Or 335, 339,
478 P3d
507 (2020), cert den, ___ US ___,
141 S Ct 2837 (2021) (concluding that a nonunanimous verdict jury instruction is
harmless where the jury returns a unanimous verdict). We
affirm.
When we review a trial court’s ruling on an MJOA,
we view the evidence and all reasonable inferences in the
light most favorable to the state. State v. Hedgpeth, 365 Or
724, 730,
452 P3d 948 (2019). We determine only whether
a rational factfinder could find that the state had proved
every element of the offense beyond a reasonable doubt.
Id.
If the issue “turns on the meaning of a statute,” we review a
denial of an MJOA for legal error. State v. Bordeaux,
220 Or
App 165, 170,
185 P3d 524 (2008).
1
ORS 165.800 provides, in relevant part:
“(1) A person commits the crime of identity theft if the person, with the
intent to deceive or to defraud, obtains, possesses, transfers, creates, utters
or converts to the person’s own use the personal identification of another
person.
“…
“(4) As used in this section:
“(a) ‘Another person’ means an individual, whether living or deceased,
an imaginary person ….
“(b) ‘Personal identification’ includes … any written document or electronic data that does, or purports to, provide information concerning:
“(A) A person’s name, address or telephone number;
“…
“(C) A person’s Social Security number or tax identification number[.]”
Cite as 319 Or App 163 (2022) 165
Defendant sought medical care from the Willamette
Falls Hospital emergency room on two occasions and, on
each of those occasions, she provided staff with the false
name “Sandra Jenner” when they asked her for identifying
information. On the first occasion, she signed intake forms
with a false name beginning with the initials “S” and “J.”
Defendant did not receive treatment on that first occasion,
but she returned the following day seeking medical care and
using the same false name. Hospital staff became suspicious that defendant was providing false information when
she hesitated when giving her birthdate and said that she
did not know her phone number, address, or emergency contact information. She again signed intake documents authorizing service and, at the request of staff, wrote her social
security number on a separate piece of paper. The staff then
called the police to report defendant. The police determined
defendant’s real name and an officer confronted her about
that in her hospital room. Defendant admitted that she had
provided a false name, explaining that she believed she
needed medical treatment but did not have insurance. Upon
entering her true name into the system, hospital staff discovered that defendant did have insurance.
The state charged defendant with two counts of
identity theft under ORS 165.800(1) on the theory that she
“uttered” the personal identification of another. The question on appeal is whether defendant “uttered” the personal
identification of another when she signed the intake documents and again when she provided a false social security
number by writing it on a separate piece of paper. Utter is
not defined in the statute. However, the Oregon Supreme
Court concluded that the legislature “used the word ‘utter’
in the same sense that it had used it in the forgery statute.”
State v. Medina, 357 Or 254, 266,
355 P3d 108 (2015).
Medina involved a defendant who, when arrested,
signed a fingerprint card and a property receipt with a false
name. Id. at 256. Both documents had been presented to
him by a police officer.
Id. After concluding that the identity
theft statute “applies to misrepresenting a person’s identity to an officer to gain an unwarranted advantage[,]”
id.
at 264, the court next examined the ordinary meaning of
“utter” and concluded that the legislature used that word
166 State v. Townsend
to mean “ ‘to put (as notes or currency) into circulation;
specif: to circulate (as a forged or counterfeit note) as if legal
or genuine.’ ”
Id. at 265 (quoting Webster’s Third New Int’l
Dictionary 2526 (unabridged ed 2002) (italics in original)).
The court then considered the context within which the
identity theft statute had been enacted and concluded that
“utter” was used by the legislature in the same way that it
was used in the forgery statute.
Id. at 266. A person commits second-degree forgery when, “with intent to injure or
defraud, the person … [u]tters a written instrument which
the person knows to be forged[,]” ORS 165.007(1)(b), and in
that context, “utter” means “to issue, deliver, publish, circulate, disseminate, transfer or tender a written instrument
or other object to another,” ORS 165.002(7). The court concluded that the defendant had not uttered false documents
when he signed the fingerprint card and property receipt,
explaining:
“In this case, all that the stipulated record reveals is
that, after defendant was arrested and taken to the police
station, he ‘was fingerprinted,’ the officer ‘asked him to
sign the fingerprint card,’ and defendant did so. There is no
evidence that defendant filled out the fingerprint card or
the property receipt or that he offered or tendered either of
those documents to the police. Rather, all the record shows
is that defendant falsely signed two documents that government officials created for their own use and that they
tendered to defendant for his signature.
“The fact that defendant falsely signed the two documents does not mean that he uttered them. The law has
long distinguished between forging a document by falsely
signing it and uttering a forged document. Nor does the
context in which these documents were created and signed
give rise to a reasonable inference that defendant uttered
them. In reaching that conclusion, we do not foreclose the
possibility that a defendant could ‘utter’ a document that
he or she asked another person to create and disseminate.
A defendant, for example, might ask a bank teller to draw
a counter check on an account. The defendant might then
forge the account holder’s name on the check and expressly
or impliedly direct the teller to circulate the signed check.
In that instance, a trial court reasonably could infer that
the defendant, in asking the bank teller to draw and circulate the check, had ‘uttered’ it through an agent.”
Cite as 319 Or App 163 (2022) 167
Id. at 266-67. And because there was no evidence from
which it could be inferred that the officer was acting as the
defendant’s agent, the court reversed defendant’s conviction
for identity theft. Id. at 271-72.
Returning to the present case, we begin with the
first count of identity theft, which implicates defendant’s
act of signing the intake documents with a false name.
Defendant argues that Medina requires reversal of that conviction because, as with the defendant in Medina, she did not
create or provide the documents that she signed. She simply signed documents that were maintained by the hospital
and presented to her in the ordinary course of business. But
the origin of the documents was not the deciding factor in
Medina. The question then is whether defendant expected
that hospital staff would disseminate the information provided on the intake forms on her behalf so that she could
obtain medical services under a false name. In contrast to
Medina, defendant here was affirmatively seeking medical
services when she voluntarily presented herself to the hospital for that purpose, and she signed the hospital-provided
forms with a false name as a necessary step toward obtaining those services. A rational jury could infer that defendant signed the forms with a false name, expecting staff to
disseminate the information she provided on the forms to
others so she could benefit from the use of a false identity.
As for the second count which involves defendant’s
act of writing down a false social security number, our
analysis is essentially the same. Defendant wrote down a
false social security number so that hospital staff would
disseminate and use that information as a necessary step
to achieve her purpose—to obtain medical services under
someone else’s name. Again, a rational jury could infer that
defendant, with the intent to deceive or defraud, expected
hospital staff to disseminate the false identifying information in her behalf so that she could obtain medical services.
A rational factfinder could have concluded, on this
record, that defendant “uttered” the personal identification
of another when she signed the intake documents with a
false name and when she wrote down a false social security
number, both for the purpose of obtaining medical services
168 State v. Townsend
for herself using the name of another. Therefore, the trial
court did not err in denying defendant’s MJOA.
Affirmed.
