478
Submitted July 29; conviction on Count 2 reversed, remanded for resentencing,
otherwise affirmed August 31, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHAWN MICHAEL SIMMONS,
Defendant-Appellant.
Washington County Circuit Court
C151548CR; A175188
516 P3d 1203
Defendant appeals his convictions for one count of identity theft, ORS 165.800
(Count 1), and one count of theft of services, ORS 164.125 (Count 2). Both convictions relate to defendant opening a Comcast account in his ex-wife’s name. As to
each count, defendant argues that the trial court erred in denying his motion for
judgment of acquittal, because the evidence was legally insufficient to prove a
necessary element of the crime. Held: The evidence was legally sufficient to prove
the elements of identity theft, so the trial court did not err in denying defendant’s motion as to that count. The court erred in denying the motion as to theft
of services, however, because the evidence was legally insufficient to prove that
defendant opened the account with the intent to avoid payment for the services,
which is the required intent under ORS 164.125(1). On this record, such a finding
would depend on speculation, rather than a reasonable inference.
Conviction on Count 2 reversed; remanded for resentencing; otherwise
affirmed.
Janelle F. Wipper, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
AOYAGI, J.
Conviction on Count 2 reversed; remanded for resentencing; otherwise affirmed.
Cite as 321 Or App 478 (2022) 479
AOYAGI, J.
Defendant was convicted of one count of identity
theft, a Class C felony, ORS 165.800 (Count 1), and one
count of theft of services valued at $100 or more and less
than $1,000, a Class A misdemeanor, ORS 164.125(5)(b)
(Count 2), in connection with his opening a Comcast account
in his ex-wife’s maiden name. On appeal, as to the identitytheft count, defendant contends that the trial court erred
by denying his motion for judgment of acquittal. As to the
theft-of-services count, defendant contends that the trial
court erred by denying his motion for judgment of acquittal
and, alternatively, by accepting the jury’s nonunanimous
guilty verdict. We conclude that the evidence was legally sufficient to prove the elements of identity theft, but that it was
legally insufficient to prove the elements of theft of services.
We therefore reverse defendant’s conviction on Count 2,
remand for resentencing, and otherwise affirm.1
FACTS
We review a trial court’s denial of a motion for a
judgment of acquittal to determine whether, viewing the
facts in the light most favorable to the state, a rational factfinder could have found the essential elements of the crime
beyond a reasonable doubt. State v. Cervantes, 319 Or 121,
125,
873 P2d 316 (1994). We therefore describe the evidence
in the light most favorable to the state. Although defendant
moved at the close of the state’s case, we “must consider all
of the evidence and affirm the trial court if the record as
a whole contains sufficient evidence to support a verdict
against the defendant.” State v. Nix,
7 Or App 383, 384-85,
491 P2d 635 (1971); see also State v. Bilsborrow,
230 Or App
413, 418-19,
215 P3d 914 (2009) (stating same principle).
Defendant and C married in 2010. They bought a
house together on Heiser Street. C already had a Comcast
1
Given the nonunanimous guilty verdict on Count 2, defendant would be
entitled, at the least, to a new trial on Count 2 in light of Ramos v. Louisiana, 590
US ___,
140 S Ct 1390, 1394, 1397,
206 L Ed 2d 583 (2020) (holding that, under
the Sixth Amendment, a criminal defendant may be convicted of a serious offense
only by unanimous verdict). However, because defendant’s second assignment
of error provides more complete relief, we address it first and do not reach the
nonunanimous-verdict issue.
480 State v. Simmons
account in her maiden name, which she brought with her to
the Heiser Street house. She added defendant as an authorized user on the account.
Defendant and C divorced in 2013. They sold the
Heiser Street house in March 2013, and both moved out.
C terminated Comcast services at the house, personally
returned the Comcast equipment, and closed the account
entirely because she did not need Comcast services where
she was moving. The divorce became final in August 2013,
and C had limited contact with defendant thereafter.
Defendant has a history of prescription opioid addiction,
went to a detox center for two weeks around the time of
the divorce, and admits to relapsing after a car accident on
December 27, 2013.2
In December 2013, defendant was living in an
apartment on Teal Boulevard. He was employed until “right
before Christmas,” when he left his job at an engineering
firm. On December 21, defendant opened a Comcast account
to obtain services at his Teal Boulevard apartment, and he
picked up the Comcast equipment. Unbeknownst to C, the
account was opened in C’s maiden name.
On March 1, 2014, defendant moved, and Comcast
services were transferred from the Teal Boulevard apartment to his new residence on Midlake Lane.
On July 25, 2014, defendant was taken into custody
on charges unrelated to this case. According to defendant, he
had been paying the Comcast bill regularly until that point,
except that one time he lost service due to a late payment
and immediately called Comcast to make the payment.
On September 8, 2014, Comcast disconnected services to the Midlake Lane address. It is reasonable to infer
that the termination was for nonpayment.
In December 2014, Comcast attempted to collect
$798 from C, which was how C learned of the account. C
eventually connected the account to defendant, when she
obtained his Midlake Lane address from one of his family
2
We mention defendant’s addiction history because the state suggests that it
has some significance to what reasonable inferences may be drawn.
Cite as 321 Or App 478 (2022) 481
members, and she made a police report. According to C,
defendant is “very good with numbers,” and he knew C’s
date of birth, social security number, and driver’s license
number.
Defendant was charged with identity theft and
theft of services. The above historical facts were admitted into evidence at trial. Additionally, a Comcast security manager testified to the normal process for opening a
Comcast account, with the caveat that she had no personal
knowledge of how this particular account was opened. The
security manager explained that a person can sign up for
Comcast services online, over the phone, or at a retail location. All three options require providing one’s name. If it has
been more than 30 days since the person has had a Comcast
account, the person must also provide their date of birth and
social security number so that Comcast can run a credit
check. It does not matter if the person is or was an authorized
user on someone else’s account, as that is not a substitute
for providing the necessary information to open one’s own
account. The person would still have to provide their date of
birth and social security number so that Comcast can run a
credit check. It is not permitted to open a Comcast account
“under somebody else’s name or using someone else’s credit.”
The “only way” that the security manager could conceive of
a former authorized user being able to open an account in
the former primary account holder’s name “would be if the
authorized user provided the personal information of the
former primary account holder … [s]uch as the social security [number], date of birth, and name.”
As for paying on the account, the security manager
testified that bills would have been addressed in C’s name
and mailed to the service address, i.e., the Teal Boulevard
address and then the Midlake Lane address. The state did
not put on any direct evidence of the payment history on this
particular account. The only direct evidence on that point
was defendant’s testimony that he paid regularly on the
account until July 2014 when he was taken into custody, at
which point (implicitly) he stopped paying. As indirect evidence, the security manager testified regarding Comcast’s
normal practices around billing and nonpayment. In the
event of nonpayment, she believed that Comcast typically
482 State v. Simmons
would disconnect service within “two or three months.”
When asked whether Comcast would allow a person who
had not paid on an account for “three or four months” to
transfer service to a different address, the manager testified
“probably not.”
Defendant moved for judgment of acquittal on both
counts. Defendant argued that the evidence was legally
insufficient to prove his intent on either charge—the intent
to deceive or defraud (identity theft), or the intent to avoid
payment for Comcast services (theft of services)—because it
required the jury to engage in speculation. The court denied
the motion, pointing to the evidence that the account was
opened in C’s maiden name, that it was associated with
defendant’s two addresses, and that defendant had access
to the specific personal information necessary to open the
account.
The jury found defendant guilty on both counts,
returning a 12-0 verdict on Count 1 and an 11-1 verdict
on Count 2. Defendant appeals the resulting judgment of
conviction.
ANALYSIS
The question before us is whether the evidence,
viewed in the light most favorable to the state, was sufficient
to allow a rational factfinder to find the essential elements
of each crime beyond a reasonable doubt. Cervantes, 319 Or
at 125. In making that assessment, we must allow for “reasonable inferences,” while also recognizing that a jury may
not engage in “speculation and guesswork.” State v. Bivins,
191 Or App 460, 467,
83 P3d 379 (2004). The line between
reasonable inference and impermissible speculation is not
always clear, but it is one “drawn by the laws of logic. If
there is an experience of logical probability that an ultimate
fact will follow a stated narrative or historical fact, then the
jury is given the opportunity to draw a conclusion because
there is a reasonable probability that the conclusion flows
from the proven facts.”
Id. (internal quotation marks omitted). Conversely, if the conclusion that needs to be drawn
from the evidence to prove a necessary element requires
“too great an inferential leap,” or “if it requires the stacking
of inferences to the point of speculation,” then the evidence
Cite as
321 Or App 478 (2022) 483
is insufficient. Id. at 468 (internal quotation marks omitted).
Ultimately, whether circumstantial evidence is sufficient to
support a given inference is a question of law. Id. at 467.
We begin with Count 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.” ORS 165.800(1). That statute
encompasses both using someone else’s identity for financial
gain (intent to defraud) and using someone else’s identity to
obtain an unwarranted advantage (intent to deceive). See
State v. Medina, 357 Or 254, 264,
355 P3d 108 (2015) (discussing the language and legislative intent of ORS 165.800,
particularly the addition of the “intent to deceive” language
in 2001).
Defendant argues that the evidence was legally
insufficient to establish that he used C’s identity to open
a Comcast account in December 2013 (as opposed to the
account somehow accidentally ending up in her name). The
state disagrees, as do we. Given the totality of the state’s
evidence, including the Comcast security manager’s testimony, a rational factfinder could find that defendant used
C’s name, date of birth, and social security number to open
the account in December 2013, and that he did so with the
intent to deceive Comcast. The evidence is circumstantial,
and reasonable inferences must be made, but speculation is
not required to so find. The trial court therefore did not err
in denying defendant’s motion for judgment of acquittal on
Count 1.
We reach a different conclusion on Count 2. “A person commits the crime of theft of services if: (a) With intent
to avoid payment therefor, the person obtains services that
are available only for compensation, by force, threat, deception or other means to avoid payment for the services.” ORS
164.125(1) (emphases added).
Defendant argues that, even if the evidence was sufficient to prove that he used deception to open the Comcast
account, it was insufficient to prove that he did so with the
intent to avoid payment for the services. The state counters that the evidence allowed a reasonable inference that
484 State v. Simmons
defendant opened the account in C’s name to avoid payment.
We agree with defendant that reaching that conclusion on
this record would require going beyond reasonable inference
into the realm of impermissible speculation.
There are a variety of reasons that a person might
open a Comcast account in a recent ex-spouse’s name. It
could be to get services without paying for them (for however
long that might last until they are shut off). It could be to
avoid a credit check, if the person is unemployed or has poor
credit or is otherwise concerned about being able to open
an account in their own name. Or it could be for another
reason. There must be some evidence to allow a reasonable
inference that the defendant’s intent was to avoid payment.
Here, there is simply nothing in this record that permits a
reasonable inference that, when defendant used deception
in December 2013 to obtain Comcast services, he did so with
the intent to avoid payment for those services.
The absence of evidence of a history of nonpayment
on the account is particularly notable. Viewed in the light
most favorable to the state, the record would allow a finding that defendant stopped paying on the account in July
2014, but it would not allow a finding of nonpayment prior
to July 2014. Depending on what one views as most favorable to the state, either the record is silent on defendant’s
payment history prior to July 2014, allowing no findings, or
it allows only one possible finding, which is that defendant
had generally been paying on the account until July 2014,
at least with enough regularity to obtain a service transfer
in March 2014 and to keep services until September 2014.3
3
At trial, the state appears to have taken the position that, absent definitive
proof of payment, the jury could assume nonpayment. The prosecutor argued in
closing:
“How much he paid is really—the only person that really knows that—
the truth of that—is [defendant]. He told you his story on the stand yesterday
that he paid the bill every month. That’s not true. We have no proof of that at
all. All we have is the word of this man coming in here and trying to essentially sell you a bill of goods on that point.”
The state does not reprise that argument on appeal, which is prudent, given that
it seems to misplace the state’s burden of proof onto defendant. If the jury disbelieved defendant’s testimony regarding his payment history, then there was
simply no evidence on the issue. The jury could not rely on no evidence to find
that defendant had a long history of nonpayment, as circumstantial evidence of
defendant’s intent in December 2013.
Cite as 321 Or App 478 (2022) 485
We note that nothing can reasonably be inferred (and the
state does not argue that anything can be inferred) from the
amount that Comcast sought to collect in December 2014—
$798—because there is no evidence of the monthly cost of
services provided to defendant’s residences, nor is there any
evidence as to whether the $798 included late fees or the
like.
The fact that defendant stopped paying in July 2014
does not allow a reasonable inference that, when defendant
used deception to obtain the services in December 2013, he
did so with the intent to avoid payment. On this record, it
would require impermissible speculation to find that defendant obtained Comcast services by deception “to avoid payment for the services.” ORS 164.125(1)(a). The trial court
therefore erred in denying defendant’s motion for judgment
of acquittal on Count 2, and we reverse the conviction on
Count 2.
Conviction on Count 2 reversed; remanded for
resentencing; otherwise affirmed.
