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 <when we’re

young we can be very easily deceived—George Meredith>.”

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.