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State v. Morgan (9/3/99) ap-1646
State v. Morgan (9/3/99) ap-1646
NOTICE: The text of this opinion can be corrected
before the opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7040
Petitioner, ) Trial Court No. 4FA-S98-565CR
)
v. )
) O P I N I O N
ERWIN MORGAN, )
) [No. 1646 - September 3, 1999]
Respondent. )
)
Petition for Review from the Superior Court,
Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Lori M. Bodwell, Fairbanks, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
This petition presents us with a question of statutory
interpretation. The question before us is whether Morgan could be
convicted under AS 11.46.290(a) of obtaining a credit card by
fraudulent means when he only obtained the credit card number and
not the physical card. We conclude that, for these purposes, the
credit card number is the "credit card."
Karen Shields was romantically involved with Christopher
Wall, and she revealed her AT&T calling card number to him. After
the relationship ended, Wall gave Shields' calling card number to
Erwin Morgan, a fellow inmate at the Fairbanks Correctional Center.
(Wall revealed this information to Morgan to pay off a debt.)
Morgan used the calling card number to place $3,669.45 worth of
long-distance telephone calls without Shields' permission. As a
result, the state charged Morgan with three counts: theft in the
second degree, [Fn. 1] fraudulent use of a credit card, [Fn. 2] and
obtaining a credit card by fraudulent means. [Fn. 3] The first two
counts were merged at trial.
It was undisputed that Morgan never physically possessed
the plastic AT&T card at any time. At the close of the state's
case, Superior Court Judge Charles R. Pengilly ruled that
AS 11.46.290(a)(1) required proof of the defendant's possession of
a physical object, not just the credit card number. He therefore
granted Morgan's motion for judgment of acquittal on the charge of
obtaining a credit card by fraudulent means.
Morgan's case was submitted to the jury solely on the
remaining count of theft. The jury was ultimately unable to reach
a verdict on this charge, and Judge Pengilly declared a mistrial.
The state has petitioned us to review Judge Pengilly's
ruling dismissing the charge of obtaining a credit card by
fraudulent means. We conclude that possession of a credit card
number itself is sufficient to sustain a conviction for
fraudulently obtaining a credit card under AS 11.46.290(a)(1).
Morgan was charged under AS 11.46.290(a)(1), which states
(in pertinent part) that a person commits the crime of obtaining a
credit card by fraudulent means if the person "buys a credit card
from a person other than the issuer." In order to resolve the
question before us, we must determine whether the credit card
number itself constitutes a "credit card" as that term is used in
this statute.
Alaska Statute 11.81.900(b)(8) defines "credit card" as
any instrument or device, whether known
as a credit card, credit plate, courtesy card, or identification
card or by any other name, issued with or without fee by an issuer
for the use of the cardholder in obtaining property or services on
credit[.]
Thus, the question is whether a credit card number qualifies as an
"instrument or device ... for the use of the cardholder in
obtaining property or services on credit."
Turning to several dictionaries in common use, we find
that the word "device" is not limited to physical objects. For
example, Black's Law Dictionary defines "device" as "an[y]
invention or contrivance," as well as any "plan." [Fn. 4]
Similarly, Webster's Dictionary defines "device" as "a thing
devised", a "plan" or "scheme." [Fn. 5] And Merriam-Webster's
Collegiate Dictionary defines "device" as "[something] designed to
serve a special purpose or perform a special function." [Fn. 6]
Under these definitions, Shields' AT&T credit card number
constitutes a "device" for allowing long-distance telephone calls
to be made on credit.
Policy considerations and case law support the conclusion
that a credit card number is included in the definition of "credit
card." As the Arkansas Supreme Court recognized in Patterson v.
State, "[i]t is the use of the account numbers on a credit card
which gives the plastic card any credit value." [Fn. 7] Most
people are aware that once they memorize the number on their
plastic credit card, they no longer need the plastic card to make
long-distance telephone calls or to purchase other goods or
services over the telephone or across the Internet. In these
transactions, merchants and buyers do not meet face-to-face, and
merchants do not demand proof that the buyer is holding a plastic
card. Rather, the buyer's knowledge of the credit card number is
what allows the buyer to make these purchases on credit. Physical
possession of the plastic card is unnecessary, for the value of the
card resides in the number. In Patterson, the defendant was
convicted of the fraudulent use of a credit card when she used
someone else's credit card to obtain clothing from a department
store. [Fn. 8] Patterson appealed, arguing that the state failed
to prove that the physical credit card had ever been stolen from
the rightful owner's possession. The court concluded that it was
the account number that gives the credit card its value, not the
actual piece of plastic. It was therefore sufficient for the state
to show that Patterson, without authorization, used another
person's credit card account number to obtain merchandise. [Fn. 9]
The Supreme Court of Kansas reached the same result in
State v. Howard. [Fn. 10] In Howard, the defendant wrote down a
Sears credit card account number on a piece of paper, then used the
account number to purchase a television set. He argued on appeal
that he could not be convicted because there was no evidence that
he used the actual plastic card. The court concluded that the
statute covered unauthorized use of the account number. [Fn. 11]
Morgan argues that cases such as Patterson and Howard are
not on point because the defendants in those cases were charged
with fraudulent "use" of a credit card, not "obtaining" a credit
card. But the same statutory definition of "credit card" governs,
whether a defendant is charged with fraudulent use of a credit card
under AS 11.46.285(a) or with unlawfully obtaining a credit card
under AS 11.46.290(a). Thus, we conclude that Patterson and Howard
are pertinent to our decision.
Morgan also relies on People v. Tansey [Fn. 12] for the
proposition that a defendant must physically possess the plastic
card, not merely the account number. However, the defendant in
Tansey was charged with possession of stolen property, and the New
York court concluded that the statutory definition of this crime
required proof that the defendant possessed something "tangible."
Tansey turned on the specific language of the New York Penal Code,
and it therefore has little relevance to the question facing us
the proper construction of "credit card" as that term is used in
the Alaska statutes.
For the reasons explained above, we conclude that a
credit card account number is a "device" for obtaining goods or
services on credit. We therefore hold that the definition of
"credit card" contained in AS 11.81.900(b)(8) does not refer solely
to tangible physical objects, but rather includes credit card
account numbers. We accordingly conclude that Morgan obtained a
"credit card" when he obtained Shields' AT&T account number, even
though he never possessed the plastic card. Judge Pengilly was
wrong to grant Morgan a judgment of acquittal on this charge.
Morgan contends that, even if Judge Pengilly's ruling was
erroneous, that ruling the granting of a judgment of acquittal
nevertheless bars the state from renewing its prosecution of this
charge. Morgan argues that any renewal of the prosecution would
violate the double jeopardy provisions of the United States and
Alaska Constitutions.
Morgan raises a difficult legal issue. [Fn. 13] The
parties' briefs are of little assistance to us; each party devotes
hardly more than a page of argument to the double jeopardy
question. Morgan's brief, for example, assumes that Judge Pengilly
ruled in his favor on the factual elements of the offense; he does
not address the issue of whether double jeopardy would bar renewed
prosecution if Judge Pengilly's ruling amounted to a legal ruling
that, based on the indictment and the state's underlying case, the
state failed to allege a crime.
Fortunately, we conclude that we need not resolve
Morgan's double jeopardy claim because the issue is not yet ripe.
As noted above, Morgan's trial ended in a mistrial; the charges
against Morgan remain unresolved. If the state chooses to
prosecute Morgan only under the other statutes that criminalize his
conduct, then the double jeopardy issue presented in this appeal
will not arise. If the state does choose to reprosecute Morgan on
the charge of obtaining a credit card by fraudulent means, this
would give Judge Pengilly an opportunity to clarify the nature of
his ruling and, ultimately, this would give the parties the
opportunity to brief the double jeopardy issue in a more meaningful
fashion.
The superior court's ruling concerning the meaning of
"credit card" in AS 11.81.900(b)(8) is REVERSED. We express no
opinion as to whether Morgan can again be prosecuted for the
dismissed count of obtaining a credit card by fraudulent means.
FOOTNOTES
Footnote 1:
AS 11.46.130.
Footnote 2:
AS 11.46.285.
Footnote 3:
AS 11.46.290(a)(1).
Footnote 4:
Black's Law Dictionary 452 (6th ed. 1990).
Footnote 5:
Webster's New World Dictionary 377 (3rd College ed. 1988).
Footnote 6:
Merriam-Webster's Collegiate Dictionary 317 (10th ed. 1993).
Footnote 7:
935 S.W.2d 266, 267 (Ark. 1996).
Footnote 8:
See id.
Footnote 9:
See id.
Footnote 10:
557 P.2d 1280, 1282-83 (Kan. 1976).
Footnote 11:
See id. at 1283.
Footnote 12:
593 N.Y.S.2d 426 (N.Y. Sup. Ct. 1992).
Footnote 13:
Compare State v. Martushev, 846 P.2d 144, 148 (Alaska App. 1993)
with United States v. Scott, 437 U.S. 82, 94-99 (1978), for an
illustration of the complexity in distinguishing between an acquittal,
based upon a resolution of the factual elements of an offense,
and a dismissal, based upon solely legal grounds.
