State v. Mitchell

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46969

STATE OF IDAHO, )
) Filed: September 9, 2020
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
ALEXANDER MICHAEL MITCHELL, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the First Judicial District, State of Idaho,
Kootenai County. Hon. Richard S. Christensen, District Judge.

Judgment of conviction for grand theft by possession of a stolen financial
transaction card, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Justin M. Curtis, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jeff Nye, Deputy Attorney General,
Boise, for respondent.
________________________________________________

LORELLO, Judge
Alexander Michael Mitchell appeals from his judgment of conviction for grand theft by
possession of a stolen financial transaction card. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
While working as a restaurant server, Mitchell received a customer’s credit card to process
payment for the customer’s meal. Footage from the restaurant’s surveillance system showed
Mitchell taking the credit card to a point-of-sale terminal and holding his cell phone between
himself and the credit card, apparently photographing the card. Mitchell then processed the
customer’s payment and returned the credit card. Subsequently, the customer became aware that

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her credit card had been used to make several unauthorized purchases. Some of the items
purchased were shipped under Mitchell’s name to an address associated with him.
The State charged Mitchell with grand theft by possession of stolen property (I.C.
§ 18-2403(4)) for stealing the customer’s credit card number. During trial, at the conclusion of
the State’s case-in-chief, Mitchell moved for a judgment of acquittal, arguing there was insufficient
evidence to sustain a guilty verdict. The district court initially reserved ruling on the motion, but
ultimately denied it after the jury returned a guilty verdict. Mitchell appeals.
II.
STANDARD OF REVIEW
Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable trier
of fact could have found that the prosecution sustained its burden of proving the essential elements
of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957 P.2d 1099,
1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct. App. 1991).
We will not substitute our view for that of the trier of fact as to the credibility of the witnesses, the
weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence.
Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683, 684, 701 P.2d 303,
304 (Ct. App. 1985). Moreover, we will consider the evidence in the light most favorable to the
prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson, 121 Idaho at 104, 822
P.2d at 1001.
III.
ANALYSIS
Mitchell challenges the sufficiency of the evidence supporting the jury’s guilty verdict.
Specifically, Mitchell contends that the State failed to carry its burden of proving beyond a
reasonable doubt two elements of the grand theft charge: (1) that the credit card number he
possessed was stolen property and (2) that he knew the property had been stolen by another or
should have known the property was stolen. The State responds that the evidence of Mitchell
photographing or otherwise copying the victim’s credit card without permission defeats both of
his arguments. We hold that Mitchell has failed to show that there was insufficient evidence to
support the jury’s guilty verdict.

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A. Stolen Property Element
Mitchell was charged with violating I.C. § 18-2403(4), which provides, in pertinent part:
A person commits theft when he knowingly receives, retains, conceals,
obtains control over, possesses, or disposes of stolen property, knowing the
property to have been stolen[1] or under such circumstances as would reasonably
induce him to believe that the property was stolen . . . .
(Emphasis added.) Thus, one of the elements the State was required to prove in order to convict
Mitchell of violating I.C. § 18-2403(4) was that the credit card number Mitchell possessed was
“stolen property.” The jury was instructed accordingly as part of the elements instruction
(Instruction No. 10). The jury was also instructed on the definition of “stolen property.”
Instruction No. 15 defined “stolen property” as “property over which control has been obtained by
theft.” This definition reflects the statutory definition found in I.C. § 18-2402(10).
Mitchell does not contend that the State failed to present sufficient evidence that he
photographed or otherwise copied the victim’s credit card number. Rather, Mitchell contends the
State failed to prove that the credit card number he possessed was stolen property because, he
argues, “[a]ssuming all the State’s evidence to be true, [he] simply took a photograph of a credit
card” and the victim continued to possess both her credit card and credit card number when she
left the restaurant.2 We reject Mitchell’s argument that the stolen credit card number was not
stolen property for purposes of grand theft.
Determining whether the credit card number Mitchell possessed falls within the definition
of stolen property requires consideration of three additional statutory provisions. First, under I.C.
§ 18-2407(1)(b)(3), theft of a financial transaction card account number (e.g., a credit card

1
The grand theft statute previously included the phrase “by another” following the word
“stolen.” In 2001, the legislature amended the statute to eliminate that phrase. Nevertheless, both
the charging document and the instructions in this case included the “by another” phrase. The
erroneous inclusion of the “by another” language in this case does not change our conclusion
regarding the sufficiency of the evidence on the challenged elements.
2
Mitchell concedes that the conduct alleged by the State could constitute a crime. However,
Mitchell suggests that criminal possession of a financial transaction card number under I.C. § 18-
3125(1) is the appropriate charge under the alleged facts of this case, not a charge of grand theft
by possession of stolen property. Whether Mitchell could be found guilty under a different statute
does not, however, resolve the issue on appeal, which is whether there was sufficient evidence
from which the jury could find Mitchell guilty of grand theft as charged in this case.

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number)3 constitutes grand theft. Thus, a credit card number is “property” within the context of
Idaho’s theft statutes. Second, I.C. § 18-2402(5) states that a person “obtains control” over
property through conduct such as taking, carrying away, or possessing the property. Finally,
I.C. § 18-2403(1) defines “theft” as a person wrongfully taking, obtaining, or withholding property
from an owner thereof with the intent to deprive another of the property or to appropriate the same
to himself or another. Under the common, ordinary meaning of the words “wrongful” and “take,”
property is wrongfully taken when a person gets the property into his or her control without legal
sanction to do so. See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2329 (1986) (defining
“take” as “to get into one’s . . . control by force or stratagem”); see also id. at 2642 (defining
“wrongful” as “not rightful in law” or “having no legal sanction”). The statutes identified above
are not ambiguous, nor does Mitchell claim otherwise.4 Accordingly, the credit card number
Mitchell possessed was stolen property under I.C. § 18-2402(10) if he obtained control of the
number without legal sanction (i.e., the victim’s permission) intending to appropriate the number
to himself.5
Under the statutory scheme outlined above, there was substantial and competent evidence
presented at trial to support the jury’s finding that the credit card number that Mitchell possessed
was stolen property. During trial, the owner of the restaurant testified that the restaurant’s
surveillance system captured footage of Mitchell holding his cellphone while also handling the
victim’s credit card and that Mitchell took two times longer than average to process the victim’s

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Idaho Code Section 18-2407(1)(b)(3) adopts the definition of “financial transaction card
account number” found in I.C. § 18-3122. Under I.C. § 18-3122(7), a financial transaction card
account number is “the account number assigned by an issuer to a financial transaction card to
identify and account for transactions involving that financial transaction card.” A credit card
is a financial transaction card. I.C. § 18-3122(6). The jury was instructed accordingly in
Instruction Nos. 17 and 18.
4
Mitchell does not challenge any of the statutory language or related jury instructions
underlying the grand theft charge. Thus, we do not need to engage in any analysis of the statutory
language itself beyond what is required to determine whether the evidence presented was sufficient
to support the jury’s verdict in accordance with the jury instructions.
5
Mitchell does not expressly challenge the sufficiency of the evidence related to his intent
in photographing or otherwise copying the victim’s credit card number. Rather, his arguments
focus on whether the act of photographing a credit card can constitute theft.

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payment. Additionally, the victim testified that she neither gave Mitchell permission to keep a
copy of her credit card number nor to make purchases with it. One of the investigating officers
also testified about business records showing purchases made with the victim’s credit card number
that were shipped under Mitchell’s name to an address associated with him. This evidence was
sufficient for a reasonable jury to conclude beyond a reasonable doubt that Mitchell photographed
or otherwise copied the victim’s credit card number intending to appropriate the number to himself
without the victim’s permission to do so, thereby bringing the number within the definition of
stolen property under I.C. § 18-2402(10). Consequently, Mitchell has failed to show that there
was insufficient evidence supporting the jury’s finding that the credit card number he possessed
was stolen property.
B. Knowledge Element
Mitchell also argues that the State presented insufficient evidence to satisfy the knowledge
element of possession of stolen property. As noted, a person is guilty of grand theft if he receives,
retains, conceals, obtains control over, possesses or disposes of stolen property, “knowing the
property to have been stolen or under such circumstances as would reasonably induce him to
believe that the property was stolen.” I.C. § 18-2403(4). The jury was so instructed as part of
Instruction No. 10. Specifically, element four of Instruction No. 10 required that Mitchell either
knew the number was stolen by another or reasonably should have known the number was
stolen.
Mitchell argues that the evidence of knowledge was insufficient because “this element
does not apply to the person that actually takes the property.” According to Mitchell, “the
initial thief either knows the property is stolen or not.” Stated differently, Mitchell contends
there was insufficient evidence that the credit card number was stolen by another and argues
that the initial thief of property cannot possess or receive the stolen property under
circumstances that would reasonably induce a belief the property was stolen because the thief
will know it was stolen. The State concedes that it did not present evidence that Mitchell knew
the credit card number was stolen by another, but asserts that “a thief who knows property is stolen
necessarily believes that the property was stolen,” and the evidence showed Mitchell was such a
thief. We conclude there was sufficient evidence to satisfy the knowledge element.

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A person must only have actual or constructive knowledge that the property at issue is
stolen, regardless of the initial thief’s identity. See State v. Weeks, 160 Idaho 195, 199, 370
P.3d 398, 402 (Ct. App. 2016) (holding the trial court properly amended the pattern instruction for
the elements of possession of stolen property, ICJI 547, to eliminate a requirement that defendant
knew the property at issue was stolen “by another”). A thief cannot help but possess his or her
ill-gotten gains under circumstances that would induce a reasonable belief the property is stolen.
See People v. Price, 850 N.E.2d 199, 205 (Ill. 2006). Thus, evidence indicating that Mitchell stole
the victim’s credit card number supports a finding that Mitchell possessed or received the number
under circumstances that would induce him to believe the number was stolen.
There was substantial and competent evidence to support the jury’s finding that the credit
card number was stolen property and that Mitchell had the requisite knowledge of such. Thus,
Mitchell has failed to show there was insufficient evidence to support the jury’s verdict finding
him guilty of grand theft, I.C. § 18-2403(4), as alleged in the second amended information.
IV.
CONCLUSION
The jury’s findings that Mitchell possessed or received a stolen credit card number and that
he did so under circumstances that would induce him to believe the number was stolen are
supported by substantial evidence. Therefore, Mitchell’s sufficiency of the evidence challenge to
the jury’s guilty verdict fails. Accordingly, Mitchell’s judgment of conviction for grand theft by
possession of a stolen financial transaction card is affirmed.
Chief Judge HUSKEY and Judge BRAILSFORD, CONCUR.

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