Moore v. State
| Decision Date | 19 January 2006 |
| Docket Number | No. 43248.,43248. |
| Citation | 126 P.3d 508 |
| Parties | Atiba M. MOORE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Philip J. Kohn, Public Defender, and Sharon G. Dickinson and Darin F. Imlay, Deputy Public Defenders, Clark County, for Appellant.
George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
Before MAUPIN, GIBBONS and HARDESTY, JJ.
In this appeal, we consider whether presenting a stolen credit card, without the card being processed or goods obtained, is sufficient use to establish fraudulent use of a credit card.1 We conclude that presentment alone does not constitute use and reverse Moore's conviction for fraudulent use of a credit card.
However, we conclude that sufficient evidence supports Moore's conviction for possession of a credit card without the cardholder's consent; that the State proved beyond a reasonable doubt that Moore possessed the requisite intent for burglary; that Moore's failure to object to the district court's selection of the alternate jurors precludes review; and that the district court properly considered the prior convictions in adjudicating Moore a small habitual criminal.
Appellant Atiba M. Moore entered a Wal-Mart store in Las Vegas, and drew the attention of Michael Taggart, a Loss Prevention Specialist for Wal-Mart. Taggart followed Moore on the store's surveillance system. Taggart observed Moore selecting merchandise in the men's and electronics' departments "without . . . rhyme or reason" and called Djoana Guerrero, a cashier stationed in the electronics' department.
Taggart alerted Guerrero that he suspected Moore was going to pay for merchandise with a credit card. Taggart instructed Guerrero to call him if Moore gave her a credit card for payment without proper identification and instructed Guerrero to intentionally "take [her] time ringing [Moore] up."
Moore approached Guerrero's register and presented her with a credit card bearing the name Alma Q. Rangel to pay for goods with a value in excess of $300. When asked for identification, Moore looked through his pockets and responded that he did not have any identification. Guerrero said that she would have to get approval for the purchase from her Customer Service Manager, who in turn, took the credit card from Guerrero and brought it to Taggart for inspection. Although the Wal-Mart sales receipt listing the merchandise that Moore presented for purchase reflects a cash sale, the credit card was never processed and Moore never obtained the goods.
Taggart learned that the credit card was reported stolen and detained Moore. Moore told Taggart he was given permission to use the credit card by its owner but was unable to verify his claim. Thereafter, a police officer arrived at the scene and arrested Moore after verifying his identity through records, the Shared Computer Operations for Protection and Enforcement (SCOPE), the National Crime Information Center (NCIC), and physical descriptors.
Moore was charged by information with one count of burglary,2 one count of fraudulent use of a credit card,3 and one count of possession of a credit card without the cardholder's consent. Based on Moore's three prior criminal convictions, he was also charged as a small habitual criminal.4
A jury found Moore guilty on all three felony counts, and the district court adjudicated Moore as a small habitual criminal and imposed a sentence of 220 months with a minimum parole eligibility of 60 months on each count with the second count to run consecutive to the first, but the third count to run concurrent to the second.5
Fraudulent use of a credit card
The criminal information filed in district court charged Moore with fraudulent use of a credit card and alleged that Moore, with the intent to defraud, used a credit card he was not authorized to use by presenting the credit card for the purpose of obtaining goods. Jury instruction 3 repeated the language in the information, and jury instruction 10 stated that "[a] person who, with the intent to defraud, uses a credit card where the person possesses the credit card without the consent of the cardholder is guilty of Fraudulent Use of Credit Card."
Moore argues that the information and jury instructions 3 and 10 fail to properly describe the elements of the crime of fraudulent use of a credit card because the credit card was never processed and Moore never obtained the goods he tried to purchase.
NRS 205.760(1)(a) provides that a person who, with the intent to defraud, "[u]ses a credit card or debit card to obtain money, goods, property, services or anything of value where the credit card or debit card was obtained or retained in violation of NRS 205.690 to 205.750, inclusive" is guilty of a category D felony.
This case presents an issue of first impression in Nevada: does the presentment of a stolen credit card for the purchase of goods constitute fraudulent use of a credit card if the card is not processed and no goods are obtained? We conclude that presentment alone of a stolen credit card is not sufficient to establish fraudulent use of a credit card.
The issue presented depends on an interpretation of NRS 205.760. Questions of statutory construction are reviewed by this court de novo.6 Unless a statute is ambiguous, we attribute the plain meaning to the statute's language.7 "An ambiguity arises where the statutory language lends itself to two or more reasonable interpretations."8 Where a statute is deemed ambiguous, the Legislature's intent controls.9 "We look to reason and public policy to discern legislative intent."10 Finally, the rule of lenity demands that ambiguities in criminal statutes be liberally interpreted in the accused's favor.11
Here, the word "use" in NRS 205.760(1)(a) is ambiguous because one might reasonably interpret it to mean presenting a credit card for payment or to require the credit card to be processed and the goods to be obtained. The legislative history is silent on what constitutes use under the statute so we must determine the statute's intent through reason and public policy.
Other jurisdictions have interpreted similar statutes.12 In Davidson v. State, the Supreme Court of Arkansas held that obtaining the goods is a required element to support a conviction for fraudulent use of a credit card.13 There, the defendant gave a storeowner a stolen credit card but was declined the sale after failing to provide identification, and on another occasion he tried to use a stolen credit card to make a purchase but the credit card was declined. Neither transaction was completed nor were goods obtained.14
The Arkansas fraudulent use statute interpreted in Davidson is similar to Nevada's and states that "[t]he offense of fraudulent use of a credit card is committed if a person, with the purpose to defraud, `uses a credit card to obtain property or services with knowledge that: (a) the card is stolen.'"15 The Arkansas statute categorizes the crime as a Class C felony if the value of the goods "obtained" exceeds $100, otherwise it is a Class A misdemeanor.16 Applying the rule of lenity, the Arkansas Supreme Court determined that goods must actually be obtained to satisfy the "use" element.17 Thus, the defendant's actions constituted merely an attempt to use a stolen credit card.18 As further support for its analysis, the court noted that the statute conditioned the degree of the crime on the value of the goods obtained.19 Consequently, if no goods were obtained, the crime of fraudulent use of a credit card could not occur.20
The Supreme Court of Rhode Island has reached a different result on a similar set of facts but under a slightly different statute. In State v. Gonsalves, the defendant presented an altered credit card to purchase a pair of jeans at a clothing store.21 The alterations to the card were noticed, and the defendant proceeded to another register where he paid cash for the merchandise and left the store.22 The defendant was convicted under the state's fraudulent use of a credit card statute, which states that a person who, with the intent to defraud, uses a credit card for the purpose of obtaining goods or who obtains goods by representing that he is the cardholder is guilty of fraudulent use of a credit card.23 The Rhode Island statute, like the Arkansas statute, contained a provision that based the degree of the offense on the value of the goods obtained.24
The Rhode Island court focused on the statute's disjunctive wording of "or" as proscribing two types of conduct that constitutes fraudulent use of a credit card. First, conduct that involves use of the credit card for the purpose of obtaining goods, and second, conduct by a person who actually obtains goods by falsely representing that he is the cardholder.25 Acknowledging that the statute's penalty provision concerned solely the value of the goods obtained, the court nonetheless interpreted the statute broadly to include unsuccessful attempts to obtain goods using a stolen credit card.26 The court reasoned that the legislative intent was to prevent unlawful use, including unsuccessful attempts to use, and therefore use would include presenting the credit card.27 Thus, the defendant's conviction for fraudulent use was sustained based on his unsuccessful attempt to obtain the goods.28
We find the Arkansas Supreme Court's interpretation of the use element more persuasive. We believe this approach to be consistent with a stricter reading of our criminal statutes required by the rule of lenity. The rationale behind such statutes is to prevent monetary losses to merchants and credit card companies suffered at the hands of fraudulent purchasers.29
Critical to the Rhode Island decision was the court's decision to add the language "or sought to be obtained" to the statute's penalty provision under a rule of...
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