State v. Medina

254 May 14, 2015 No. 17
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
EMILIO JUNIOR MEDINA,
Petitioner on Review.
(CC CR100685; CA A147883; SC S062436)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 12, 2015.
Zachary Lovett Mazer, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Michael S. Shin, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
KISTLER, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court.
______________
*  Appeal from Yamhill County Circuit Court, Ronald W. Stone, Judge. 262
Or App 140, 324 P3d 526.
Cite as 357 Or 254 (2015) 255
256 State v. Medina
KISTLER, J.
The state charged defendant with identity theft
for signing two documents with another person’s name. At
trial, defendant moved for a judgment of acquittal on the
ground that no reasonable person could find that, in sign-
ing those documents, he had committed the charged acts.
Additionally, defendant argued that, if he had committed
those acts, no reasonable person could find that he had done
so with the requisite mental state. The trial court denied
defendant’s motion, convicted him of identity theft, as well
as three other charged offenses, and entered judgment
accordingly. The Court of Appeals affirmed the trial court’s
judgment. State v. Medina, 262 Or App 140, 148, 324 P3d
526 (2014). Having allowed defendant’s petition for review,
we now reverse the Court of Appeals decision and the trial
court’s judgment as to defendant’s conviction for identity
theft and remand this case to the trial court for further pro-
ceedings consistent with this decision.
The parties submitted this case to the trial court
on stipulated facts, which consisted primarily of the police
report, a signed fingerprint card, and a signed property
receipt. The following facts are taken from the police report.
After a police officer stopped defendant for speeding, defen-
dant identified himself as Sergio Molina, told the officer
his date of birth, and explained that he used to live in
Washington. Defendant, however, did not present a driver’s
license or other type of identification to the officer. The offi-
cer called the dispatcher, who could not locate any person
named Sergio Molina in either Oregon or Washington. The
officer arrested defendant for failure to present a driver’s
license and took defendant to the local police station.
At the police station, defendant signed two
documents—a fingerprint card and a property receipt—as
Sergio Molina. Regarding the fingerprint card, the police
report states that, after defendant was taken to the police
station, he “was fingerprinted.” It adds that, “[w]hen [the
officer] asked [defendant] to sign the fingerprint card,
[defendant] signed it with the name Sergio Molina.” Finally,
it states that, after defendant signed the card, the officer
“faxed [defendant’s] fingerprints to AFIS [the Automated
Cite as 357 Or 254 (2015) 257
Fingerprint Identification System].”1 The police report con-
tains no further discussion of the fingerprint card, and it
does not mention the property receipt.2
After checking the fingerprints on the card, AFIS
notified the police department that defendant’s name is
Emilio Medina, not Sergio Molina. On further questioning,
defendant admitted that the name and date of birth that he
had given the officer were fictitious. After learning defen-
dant’s real name, the officer also discovered that defendant
was on probation. He contacted defendant’s probation officer,
who explained that defendant might have given the officer
a fictitious name because he was aware of a warrant for his
arrest.
The indictment charged defendant with four
offenses, only one of which—identity theft—is at issue here.3
Regarding that offense, the indictment alleged that defen-
dant “did unlawfully, with the intent to deceive or defraud,
utter or convert to defendant’s own use personal identifica-
tion of ‘Sergio Molina.’ ”
Before this case was submitted to the trial court,
defendant moved for a judgment of acquittal on the charge
of identity theft. He argued that no reasonable trier of fact
could find that, in telling the officer his name was Sergio
Molina and in signing the fingerprint identification card
and property receipt, he had “uttered” or “converted to [his]
own use” another person’s personal identification. He also
argued that no reasonable trier of fact could find that, in
using a false name, he had intended to deceive the officer.
1
As noted, the fingerprint card is part of the stipulated record. In addition
to the signature “Sergio Molina” on the card, the name Sergio Molina, a date of
birth, and a Social Security number are printed on the card. The police report
does not state who printed the name and other information on the card; however,
the printing appears similar to the officer’s.
2
As noted, the property receipt is part of the stipulated record. The receipt
lists five items that the officer took from defendant. Although the police report
does not state who printed the items listed on the property receipt, the printing
appears similar to the officer’s. The signature “Sergio Molina” appears under-
neath the five listed items. Given the context, the trial court reasonably could
have found that defendant signed the property receipt as Sergio Molina.
3
In addition to identity theft, the indictment charged defendant with two
counts of giving false information to a police officer and one count of failing to
carry or present a driver’s license.
258 State v. Medina
The trial court denied defendant’s motion for judgment of
acquittal, convicted him of the four charged offenses, and
entered judgment accordingly. The Court of Appeals upheld
the challenged ruling and, having done so, affirmed the trial
court’s judgment. We allowed defendant’s petition for review.
Before turning to the issues that defendant raises
on review, we first set out the text of the identity theft stat-
ute, which provides, in part:
“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). The identity theft statute defines the
phrases “personal identification” and “another person.”
“ ‘Personal identification’ includes, but is not limited to, any
written document or electronic data that does, or purports
to, provide information concerning,” among other things, a
person’s name, address, telephone number, Social Security
number, or signature. ORS 165.800(4)(b). “ ‘Another person’
means an individual, whether living or deceased, [and] an
imaginary person * * *.” ORS 165.800(4)(a).
Given those statutory provisions, the parties agree
that the trial court reasonably could have found that the
fingerprint identification card and the property receipt con-
stituted the “personal identification of another person.” That
is, the trial court reasonably could have found that the fin-
gerprint identification card and the property receipt were
written documents that provided or purported to provide
the personal identification of another person.4 The parties
disagree whether the trial court reasonably could have
found either that defendant had the requisite mental state
or that, if he did, he committed the charged acts—namely,
that he uttered or converted to his own use the fingerprint
card or the property receipt.
4
In arguing that the evidence was sufficient to survive a motion for judg-
ment of acquittal, the only “personal identification” that the state has identified
are the two documents—the fingerprint card and the property receipt—that
defendant signed. It does not argue that some other form of personal infor-
mation could constitute “personal identification” within the meaning of ORS
165.800(4)(b).
Cite as 357 Or 254 (2015) 259
We begin with the issue on which defendant focuses
most of his attention on review—whether the trial court rea-
sonably could have found that he acted with “the intent to
deceive” when he used a false name to sign the fingerprint
card and the property receipt. As we understand defendant’s
argument on that issue, it runs as follows: When the legis-
lature first enacted the identity theft statute in 1999, that
statute did not prohibit giving a false name to a police offi-
cer. Defendant grounds that argument textually on the fact
that, in 1999, the identity theft statute prohibited engaging
in certain acts only with the “intent to defraud” and also on
the legislative history of the statute. Defendant argues that
an “intent to defraud” means an intent to obtain a financial
or material gain by means of a falsehood. He contends that,
because giving a false name to the officer was not likely to
result in any financial or material gain, the trial court could
not infer that he had an intent to defraud.
Defendant acknowledges that the legislature
amended the identity theft statute in 2001 to prohibit acting
with “intent to deceive,” as well as with “intent to defraud.”
However, he argues that neither the text nor the history of
the 2001 amendment necessarily implies that, in adding
“intent to deceive,” the legislature intended to prohibit giv-
ing a false name to an officer. Defendant’s argument turns
on a question of statutory interpretation, and we look to
the text, context, and history of the identity theft statute to
resolve his claim. See State v. Gaines, 346 Or 160, 171-72,
206 P3d 1042 (2009) (stating that order of analysis).
ORS 165.800 prohibits committing certain acts
“with the intent to deceive,” as well as the intent to defraud.
Because the identity theft statute does not define “deceive,”
we consider initially the ordinary meaning of that word. See
State v. Ziska/Garza, 355 Or 799, 804-05, 334 P3d 964 (2014)
(so stating). Webster’s Dictionary provides that “deceive”
means “to cause to believe the false : DELUDE .”
Webster’s Third New Int’l Dictionary 584 (unabridged ed
2002) (italics in original). The ordinary meaning of “deceive”
is at odds with defendant’s argument. The trial court rea-
sonably could have found that, in signing the fingerprint
card and property receipt with a fictitious name, defendant
260 State v. Medina
intended to deceive the officer; that is, the trial court rea-
sonably could have found that defendant intended “to cause
[the police officer] to believe [something that was] false”—
that his name was Sergio Molina.
Defendant argues, however, that the context leads
to a more restrictive understanding of the phrase “intent to
deceive.” He notes that the identity theft statute includes
affirmative defenses for underage persons who use someone
else’s personal identification either to purchase alcohol and
tobacco or to enter a place that, as a result of their age, is
off-limits.5 Defendant infers from those defenses and from
the gestalt of the identity theft statute that the deceptive
intent that the identity theft statute requires should not be
understood as “deception for the sake of deception itself.”
Rather, defendant argues, the identity theft statute should
be understood as prohibiting deception for the purpose of
gaining a benefit or advantage to which a person is not enti-
tled. Even if the interpretation that defendant urges is cor-
rect, that does not advance his position. In this case, the
trial court reasonably could have found that defendant used
a fictitious name to obtain an unwarranted advantage—
specifically, the court reasonably could have found that
defendant used a fictitious name to avoid being arrested on
a warrant.
Neither the text nor the context of the identity theft
statute supports defendant’s position, and we turn to the leg-
islative history of that statute, on which defendant’s argu-
ment primarly rests. As initially proposed in 1999, House
5
ORS 165.800(3) provides:
“It is an affirmative defense to violating [ORS 165.800(1)] that the person
charged with the offense:
“(a)  Was under 21 years of age at the time of committing the offense and
the person used the personal identification of another person solely for the
purpose of purchasing alcohol;
“(b)  Was under 18 years of age at the time of committing the offense and
the person used the personal identification of another person solely for the
purpose of purchasing tobacco products; or
“(c)  Used the personal identification of another person solely for the pur-
pose of misrepresenting the person’s age to gain access to a:
“(A)  Place the access to which is restricted based on age; or
“(B)  Benefit based on age.”
Cite as 357 Or 254 (2015) 261
Bill (HB) 2623 prohibited identity theft, but was relatively
narrow. See Bill File, HB 2623, Feb 12, 1999 (setting out
the bill). Specifically, HB 2623 provided that a person com-
mits the crime of identity theft if the person intentionally
(1) “[r]epresents that the person is another person” and
(2) “[u]ses or attempts to use” the other person’s “personal
identifying information or personal identification document
* * * to obtain anything of value.” Id.Approximately two months after HB 2623 was
introduced, the House Judiciary Criminal Law Committee
engaged in a practice that colloquially is known as “gut-
ting and stuffing.” The committee “gutted” another bill (HB
3057) and “stuffed” that bill with the substance of HB 2623.6
Tape Recording, House Judiciary Criminal Law Committee,
HB 3057, May 4, 1999, Tape 179, Side A (statement of com-
mittee counsel). HB 3057, as amended, provided, in part:
“(1)  A person commits the crime of identity theft if the
person, with the intent:
“(a)  To defraud, obtains, possesses, transfers, creates,
utters or converts to the person’s own use the personal
identification of another person; or
“(b)  Of representing to a peace officer lawfully per-
forming the officer’s duties or to a judge that the person
is another person, obtains, possesses, transfers, creates,
utters or converts to the person’s own use the personal
identification of another person.”
Bill File, HB 3057, May 13, 1999.
The text of HB 3057, as amended, differed from the
text of HB 2623 in two respects: the prohibited acts and
the prohibited mental state. Regarding the prohibited acts,
HB 2623 would have prohibited persons from “representing”
that they were someone else and “using” that person’s per-
sonal identification information and documents. HB 3057,
as amended, replaced “represent” and “use” with multiple
verbs. Specifically, HB 3057, as amended, made it a crime to
6
Frequently, gutting and stuffing occurs to take advantage of a favorable
relating clause in the gutted bill. This case was no exception. Tape Recording,
House Judiciary Criminal Law Committee, HB 3057, May 4, 1999, Tape 179, Side
A (statement of committee counsel) (explaining the procedure).
262 State v. Medina
“obtain,” “possess,” “transfer,” “create,” “utter,” and “convert
to the person’s own use” another person’s personal identifi-
cation. The legislative history contains no explanation for
that change or what the committee understood those differ-
ent terms would prohibit.
HB 3057, as amended, also added an additional
mental state to HB 2623. While HB 2623 had prohibited
misrepresenting a person’s identity “to obtain anything of
value,” HB 3057, as amended, prohibited engaging in the
acts listed above either with the intent “[t]o defraud” or
with the intent “[o]f representing to a peace officer lawfully
performing the officer’s duties or to a judge that the per-
son is another person.” The first mental state in HB 3057,
as amended, did not reflect a significant change from HB
2623. The intent to defraud in HB 3057, as amended, was
comparable to the intent in HB 2623 “to obtain [some]thing
of value” by misrepresenting a person’s identity. HB 3057,
as amended, however, would have added another prohibited
intent; it would have made it a crime to obtain, possess,
transfer, create, utter, or convert to the person’s own use
another person’s personal identification “with the intent * * *
[o]f representing to a peace officer * * * or to a judge that the
person is another person.”
As defendant notes, the House Judiciary Criminal
Law Committee voted to criminalize engaging in the listed
acts with either mental state. However, the Ways and Means
Subcommittee on Public Safety later amended HB 3057 to
omit the second mental state (the intent to misrepresent
the person’s identity to a police officer or judge), to reduce
the bill’s fiscal impact. Tape Recording, Ways and Means
Committee, Subcommittee on Public Safety, HB 3057, July 1,
1999, Tape 171, Side A. The House and the Senate con-
curred in the bill, as amended in Ways and Means, and the
Governor signed it.
As enacted in 1999, the identity theft statute
provided:
“A person commits the crime of identity theft if the person,
with the intent to defraud, obtains, possesses, transfers,
creates, utters or converts to the person’s own use the per-
sonal identification of another person.”
Cite as 357 Or 254 (2015) 263
Or Laws 1999, ch 1022, § 1. Defendant infers from the inclu-
sion of one mental state (an intent to defraud) in the 1999
statute and the omission of the other (an intent to misrep-
resent the person’s identity to a peace officer or judge) that
misrepresenting his identity to the police officer in this case
would not have constituted identity theft under the 1999
identity theft statute.
The state does not dispute that proposition. Rather,
it notes that the 2001 legislature made the listed acts crim-
inal if committed “with the intent to deceive,” as well as
“with the intent * * * to defraud.” See Or Laws 2001, ch 870,
§ 3. The state argues that the 2001 amendment broadened
the scope of the identity theft statute so that an intent to
misrepresent a person’s identity to a police officer could con-
stitute an “intent to deceive” within the meaning of the stat-
ute. Defendant responds that it does not necessarily follow
that, in adding the phrase, an “intent to deceive,” the 2001
legislature intended to depart from the 1999 legislature’s
understanding that the identity theft statute did not pro-
hibit giving a false name to a police officer. See Fifth Avenue
Corp. v. Washington Co., 282 Or 591, 597-98, 581 P2d 50
(1978) (observing that amendments that materially change
the terms of an earlier statute change the statute’s meaning
to the extent the change “is expressly declared or necessar-
ily implied”).
In our view, the state has the better of the argu-
ment. As explained above, the 2001 legislature added a
phrase—the intent to deceive—to the identity theft statute
that, by its plain terms, includes misrepresenting a per-
son’s identity to a police officer to obtain an unwarranted
advantage. Even if an “intent to defraud” would not have
included that misrepresentation, an “intent to deceive” does.
It necessarily follows, from the text of the 2001 amendment
alone, that the legislature intended the identity theft stat-
ute, as amended, to reach the sort of misrepresentation that
is at issue in this case. Cf. State v. Ofodrinwa, 353 Or 507,
529-30, 300 P3d 154 (2013) (adding an affirmative defense
based on the defendant and victim’s relative ages necessar-
ily implied that the legislature’s use of the phrase “does not
consent” in an earlier version of the statute included lack of
consent due to the victim’s age). We would have to disregard
264 State v. Medina
the ordinary meaning of the words that the 2001 legislature
added to reach a contrary conclusion.
The legislative history of the 2001 amendment
points in the same direction. The amendment originated
in the Senate Judiciary Committee. The committee added
the amendment to an omnibus crime bill, which had begun
in the House. See Bill File, HB 2918, May 31, 2001. Counsel
to the Senate Judiciary Committee explained the reason for
the amendment:
“Section 3 of the [A-Engrossed House] bill adds the lan-
guage ‘with the intent to deceive or defraud’ to the identity
theft statute. * * * This was done because—to make clear to
judges, prosecutors, and defense attorneys that there need
not be a deception with the use [of] identity theft, there
need not be a purpose to get pecuniary gain or financial
gain but any deception is enough to satisfy the intent on
that law.”
Tape Recording, Senate Judiciary Committee, HB 2918,
May 16, 2001, Tape 144, Side B. Later, Senator Brown
told the Ways and Means Committee that the amendment
“expands the crime of identity theft.” Tape Recording, Ways
and Means Committee, HB 2918, July 4, 2001, Tape 75, Side
A. She told the full Senate the same thing a day later, and
the Senate passed the bill, as amended. Tape Recording,
Senate Floor Debate, HB 2918, July 5, 2001, Tape 277,
Side B. The House concurred in the bill, as amended. Tape
Recording, House Floor Debate, HB 2918, July 5, 2001, Tape
240, Side A.
The legislative history of the 2001 amendment
makes clear that the legislature understood that, in adding
“intent to deceive,” it was expanding the reach of the iden-
tity theft statute. The statute, as amended, was not limited
to an intent to defraud (to obtain a “pecuniary gain or finan-
cial gain”) but applied to deception for the purpose of obtain-
ing any unwarranted advantage. It follows from both the
text of that amendment and its legislative history that the
statute, as amended, applies to misrepresenting a person’s
identity to an officer to gain an unwarranted advantage. In
this case, the trial court reasonably could find that defen-
dant had an intent to deceive, within the meaning of the
Cite as 357 Or 254 (2015) 265
identity theft statute, when he used Sergio Molina’s name to
avoid being arrested on a warrant.
Defendant raises a second issue on review. He
argues that the trial court could not reasonably find that
he committed the charged acts—namely that he “uttered”
or “converted to [his] own use” the personal identification
of another person. Defendant’s argument turns, initially, on
the meaning of those statutory terms, and we begin with the
meaning of “utter.” Because “utter” is not a defined term for
the purposes of the identity theft statute, we look initially to
its ordinary meaning. See Ziska/Garza, 355 Or at 804-05.
Webster’s identifies multiple senses for “utter.” Webster’s at
2526. The sense that, in context, comes closest to the legisla-
ture’s use of that word in the identity theft statute is: “to put
(as notes or currency) into circulation; specif : to circulate (as
a forged or counterfeit note) as if legal or genuine.” Id.
In addition to a statute’s text, we also consider its
context, which includes the common law and the statutory
framework within which the law was enacted. Stevens v.
Czerniak, 336 Or 392, 401, 84 P3d 140 (2004). Two related
but separate common-law crimes provide relevant context:
forgery and uttering a forged instrument. At common law,
a person committed the crime of forgery if, with an intent
to defraud, the person falsely made or materially altered
a written instrument that, if genuine, had apparent legal
effect. Charles E. Toscia, 4 Wharton’s Criminal Law § 476
(15th ed 1996). The common law also made it a crime for a
person to utter a forged instrument, knowing it to be forged,
with the intent to defraud. Id. § 494. At common law, “[a]
forged instrument [wa]s uttered when it [wa]s offered to
another as genuine, without regard to whether it [wa]s so
accepted.” Id. § 496.
In 1971, Oregon grouped those two common-law
crimes under the single rubric of “forgery.” See Or Laws
1971, ch 743, § 152 (defining alternate ways of committing
second-degree forgery). ORS 165.007(1)(a) provides that a
person commits the crime of second-degree forgery if, with
the requisite intent, the person “[f]alsely makes, completes
or alters a written instrument.” ORS 165.007(1)(b) provides
that a person commits the crime of second-degree forgery
266 State v. Medina
if, with the requisite intent, the person “[u]tters a written
instrument which the person knows to be forged.” “Utter”
is a defined term for the purposes of the forgery statute.
ORS 165.002(7). It “means to issue, deliver, publish, circu-
late, disseminate, transfer or tender a written instrument
or other object to another.” Id.
Considering the text and context of the identity
theft statute, we conclude that the 1999 legislature used the
word “utter” in the same sense that it had used it in the
forgery statute.7 See State v. Cloutier, 351 Or 68, 99, 261 P3d
1234 (2011) (explaining that “we ordinarily assume that the
legislature uses terms in related statutes consistently”). To
establish that defendant “uttered” the fingerprint identifica-
tion card or the property receipt, the state had to prove that
defendant was the person who “issue[d], deliver[ed], pub-
lish[ed], circulate[d], disseminate[d], transferr[ed] or ten-
der[ed]” one or both of those documents. See ORS 165.002(7)
(defining “utter” for the purposes of the forgery statute).
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.8 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 doc-
uments 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
7
The legislative history is silent on the meaning of “utter” and “convert to
the person’s own use.” As discussed above, when the House Judiciary Criminal
Law Committee expanded the list of prohibited acts in the identity theft statute
to include “uttering” and “converting to the person’s own use,” no one discussed
what those terms meant.
8
As noted, the printing on the two documents appears consistent with the
officer’s printing, and the state acknowledges in its brief on the merits that “[j]ail
officials created the fingerprint card and property receipt, both of which included
[the name] ‘Sergio Molina’ and a date of birth.”
Cite as 357 Or 254 (2015) 267
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 cir-
culate the check, had “uttered” it through an agent. In this
case, there is no evidence that defendant asked the officer
to create the fingerprint card and the property receipt, nor
is there any evidence that defendant expressly or impliedly
directed the officer to circulate the fingerprint card. There
is, in short, no evidence from which the trial court could
have inferred that the officer was acting as defendant’s
agent.
To be sure, defendant may have been guilty of
forgery for falsely signing or completing the fingerprint
card and the property receipt. See ORS 165.007(1)(a) (pro-
hibiting falsely making, completing, or altering a written
instrument). He also may have been guilty of identity theft
for falsely “creating” the personal identification of another.
See ORS 165.800(1) (prohibiting, among other things, cre-
ating another person’s personal identification). The state,
however, did not charge defendant with either forgery or
creating another person’s personal identification. Rather, it
charged him with “uttering” another person’s personal iden-
tification. The state is limited to the substantive allegations
in the indictment. State v. Wimber, 315 Or 103, 113-14, 843
P2d 424 (1992); De Jonge v. Oregon, 299 US 353, 362-63, 57
S Ct 255, 81 L Ed 278 (1937). The trial court could not rea-
sonably find on this record that defendant “uttered” either
the fingerprint card or the property receipt.
The indictment also alleged that defendant “con-
vert[ed] to [his] own use” the personal identification of Sergio
Molina. As with “utter,” the identity theft statute does not
define the phrase “converts to the person’s own use,” and
the dictionary contains multiple senses of the words used in
268 State v. Medina
that phrase. See Webster’s at 499 (convert); id. at 2523 (use).
The sense of convert that, in context, comes closest to that
word’s use in the identity theft statute is: “to appropriate
dishonestly or illegally <~ ing to its own . . . use 80,000 bush-
els of corn stored for the Commodity Credit Corp.—Time >”
Id. at 499 (ellipses in original).
In addition to the text of the statute, we also con-
sider the statute’s context, which includes the common law
and the statutory framework within which the law was
enacted. Stevens, 336 Or at 401. As explained below, in
much the same way that “utter” is an element of the crime
of forgery, the phrase “converts to the person’s own use”
has been an element of the crimes of larceny by trick and
embezzlement. In seeking to determine the meaning of that
phrase, we first discuss those crimes. We then trace briefly
the phrase’s use in Oregon’s statutes before the legislature
revised the Oregon criminal code in 1971.
At common law, a person committed larceny by
taking property from another’s possession without his or
her consent. Wayne R. LaFave and Austin W. Scott, Jr.,
Handbook on Criminal Law 618 (1972). That definition
proved incomplete, however, because there are multiple
ways in which a person can come into possession of property
with the possessor’s consent but still misappropriate the
property. Two of those ways are relevant here: larceny by
trick and embezzlement.
In larceny by trick, “[a] wrongdoer obtains posses-
sion of (but not title to) another’s property by telling him lies,
intending to misappropriate the property and, at the earliest
instance, doing so.” Id. at 620. In that crime, the defendant
does not obtain possession of the property honestly, but that
fact alone is not sufficient to prove the crime of larceny by
trick. The wrongdoer also must convert the property to his
or her own use. Id. at 627; see Skantze v. United States, 288
F2d 416, 418 (DC Cir 1961) (observing that a defendant who
obtained his superiors’ signatures on checks by telling them
that the money was needed to replenish the embassy’s cash
account “not only intended [to take his employer’s money],
he consummated his purpose and actually converted the
money to his own use”).
Cite as 357 Or 254 (2015) 269
In embezzlement, a defendant is lawfully in pos-
session of property but fraudulently converts it to the defen-
dant’s own use.9 LaFave and Scott explain that, even though
“[e]mbezzlement statutes often are worded in terms of the
wrongdoer’s conversion ‘to his own use,’ ” those words should
not be taken literally. Handbook on Criminal Law at 645. A
defendant need not personally benefit from the conversion. It
is sufficient if the defendant converts another’s property, for
example, “to benefit the corporation of which he is an officer
or a stockholder, or to benefit his wife or son.” Id. at 645-46.
According to LaFave and Scott, a “conversion of property
requires a serious act of interference with the owner’s rights.”
Id. at 645. Moving the property a short distance or using it
casually is not enough. Id. However, “using [the property] up,
selling it, pledging it, giving it away, delivering it to one not
entitled to it, inflicting serious damage to it, [or] claiming it
against the owner” will constitute conversion. Id.
Before the enactment of the Oregon Criminal Code
of 1971, the Oregon statutes paralleled the common law; that
is, they distinguished among larceny, embezzlement, and
similar property crimes. See Ridgway K. Foley, Jr., Larceny,
Embezzlement, and False Pretenses, 41 Or L Rev 242, 250-52
(1962) (detailing multiple statutory provisions punishing
related but separate forms of theft).10 Before 1971, a per-
son committed larceny by willfully taking the property of
another with the intent to deprive that person of the prop-
erty permanently. Former ORS 164.310 (1961).11 By contrast,
90
Unlike larceny by trick, embezzlement is not a common law crime. Rather,
the English legislature created the crime of embezzlement to fill a gap in the
common law crime of larceny. Handbook on Criminal Law at 644.
10
The drafters of the 1971 Criminal Code sought to eliminate “the con-
fusing distinctions between larceny, larceny by trick, embezzlement, obtaining
under false pretenses, etc.” that previously existed in Oregon’s criminal statutes.
Commentary to Criminal Law Revision Commission Proposed Oregon Criminal
Code, Final Draft and Report §122 (July 1970). Accordingly, in 1971, the legis-
lature repealed the various larceny and embezzlement statutes discussed in the
text and replaced them with the crime of theft. See Or Laws 1971, ch 743, §§ 122,
432.
11
Before 1971, the legislature prohibited various types of larceny, such as lar-
ceny in a boat, larceny in a motor vehicle, and larceny of harvested and threshed
grain. See former ORS 164.320 (1961) (boat); former ORS 164.330 (1961) (motor
vehicle); former ORS 164.350 (1961) (harvested and threshed grain). Each type
of larceny followed the same pattern as the generic crime of larceny discussed in
the text: Each required a taking and an intent to deprive.
270 State v. Medina
before 1971, a person committed embezzlement when the
person obtained possession of property lawfully and then
“embezzle[d] or fraudulently convert[ed the property] to his
own use.” See former ORS 165.005 (1961) (embezzlement by
employees acting as fiduciaries).12 In 1971, the legislature
repealed the various forms of larceny and embezzlement
and replaced them with the offense of theft. See Or Laws
1971, ch 743, § 432 (repealing larceny and embezzlement
statutes); id. § 122 (explaining that, except for theft by extortion,
«conduct denominated theft under this section 123 of this [1971] Act
constitutes a single offense»).
In prohibiting a person from “convert[ing] to the
person’s own use” another person’s personal identification,
Oregon’s identity theft statute harkens back to the pre-1971
embezzlement statutes. The use of that phrase in the iden-
tity theft statute gives rise to two competing inferences. On
the one hand, the phrase could suggest that the 1999 legis-
lature intended to revive the distinction between embezzle-
ment and larceny so that the statutory prohibition against
converting another person’s personal identification to the
defendant’s own use would apply only when the defendant
came into possession of the personal identification law-
fully. On the other hand, the Oregon courts had reiter-
ated before 1971 that the distinction between larceny and
embezzlement—whether property came into the defendant’s
hands lawfully or not—“serve[d] no purpose whatsoever.”
See, e.g., State v. Harris, 246 Or 617, 618, 427 P2d 107 (1967).
And it may be that, in using that phrase, the 1999 legis-
lature did not intend to reintroduce into the criminal law
the arcane common-law distinction that the 1971 legislature
had sought to eliminate.
12
As with larceny, before 1971, the legislature prohibited various types of
embezzlement. See, e.g., former ORS 165.010 (1961) (embezzlement by bailee); for-
mer ORS 165.025 (1961) (embezzlement by trustee); former ORS 165.425 (1961)
(embezzlement by goat, sheep, cattle, and horse herders of animals entrusted to
their care). Each of those embezzlement statutes prohibited persons who lawfully
obtained possession of property from converting that property to their own use.
Except for a brief period, Oregon did not expressly codify the common-law crime
of larceny by trick. See Lilly v. Gladden, 220 Or 84, 90-93, 348 P2d 1 (1960)
(explaining that a 1957 amendment to larceny explicitly codified larceny by
trick); Foley, Larceny, Embezzlement, and False Pretenses, 41 Or L Rev at 248-49
(noting that the 1957 amendment was repealed a few years after it was enacted).
Cite as 357 Or 254 (2015) 271
Without some greater indication than the legisla-
tive history of the 1999 identity theft statute reveals, we
hesitate to conclude that, in using the phrase “converts
to the person’s own use,” the 1999 legislature intended to
require proof that the defendant had obtained possession
of another person’s personal identification lawfully. Rather,
the phrase more properly is understood as implying that to
convert another person’s personal identification to his or her
own use, a defendant must take, appropriate, or somehow
divest the other person of their personal identification and,
with the requisite intent, use that personal identification for
the defendant’s own purposes.
With that understanding of the phrase in mind,
we turn to the facts of this case. As noted, the state argues
that defendant converted to his own use two written doc-
uments: the fingerprint identification card and the prop-
erty receipt.13 As also noted, all that the record shows in
this case is that defendant used a false name to sign those
two documents, which the officer had tendered to him. In
falsely signing those two documents, defendant did not take,
divest, or somehow appropriate the documents. In short, the
trial court could not reasonably find that defendant con-
verted either of those documents, as that term is ordinarily
understood.
As discussed above, it may be that, in signing those
documents with a false name, defendant was guilty either
of forgery for falsely completing a written instrument or of
identity theft for falsely “creating” another person’s personal
identification. The state, however, charged defendant only
with converting another person’s personal identification to
his own use. For the reasons stated above, the trial court
could not reasonably find that defendant committed that act.
The trial court should have granted defendant’s
motion for judgment of acquittal on the charge of identity
13
In arguing that defendant converted another person’s “personal identifi-
cation,” the state has argued only that the “personal identification” that defen-
dant converted consisted of two written documents—the fingerprint card and the
property receipt. We limit our decision to the argument that the state has raised
and express no opinion on whether the statutory phrase “personal identification”
could include other forms of personal information.
272 State v. Medina
theft because defendant did not utter the fingerprint card
and property receipt nor did he convert those documents to
his own use. We accordingly reverse the Court of Appeals
decision to the extent that it upheld defendant’s conviction
for identity theft. Similarly, we reverse the trial court’s
judgment regarding the conviction for identity theft, affirm
its judgment regarding the three other convictions, and
remand this case to the trial court so that it can modify the
judgment consistently with this decision.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court.