State v. Leyda

138 P.3d 610 (2006)

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Nature of the Case

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Facts

D and his girlfriend, Nikkoleen Cooley, visited the Bon Marche store. D possessed a Bon Marche credit card belonging to Cynthia Austin. D gave Austin's card to Cooley, who used it at the store to purchase several items. Austin testified at trial that she was not acquainted with Leyda and had not given him or Cooley permission to use her credit card. The dynamic duo returned to the store five days later. Using Austin's card, Cooley purchased a watch at the jewelry department. A few minutes later, Leyda and Cooley jointly used Austin's card to purchase items in another department of the Bon Marche. They returned yet again, and Cooley presented Austin's credit card to a cashier who, suspecting that the card was stolen, called the Bon Marche's Loss Prevention Department to verify the card's use. When asked for I.D. D and Cooley then exited the store with Austin's card. A loss prevention employee had called Austin, and she stated she had not provided her credit card to anyone. The employee tried to stop Cooley and D from entering their car, but D was able to drive away. D threw Austin's credit card out the window. Federal Way police officers stopped the car a short time later and arrested D and Cooley. D was charged with a separate count of identity theft for each of the four uses or attempted uses of Austin's credit card. D was also charged with two counts of third-degree theft and one count of second-degree theft based upon the three purchases that were made with Austin's card. Only the second-degree theft charge specified the value of the property unlawfully obtained. D was charged with possession of stolen property based upon his possession of Austin's credit card. Cooley pleaded guilty to possession of stolen property in the third degree, a gross misdemeanor. D was found guilty on all counts. The Court of Appeals affirmed. D appealed. D argues in part that the crime proscribes the act of obtaining the identity information rather than its subsequent use and the conviction of 4 incidents violates double jeopardy.