State v. Fimbres

• Decision Date: 07 August 2009
• Docket Number: No. 2 CA-CR 2008-0240.,2 CA-CR 2008-0240.
• Parties: The STATE of Arizona, Appellee, v. Javier FIMBRES, Appellant.
• Court: Arizona Court of Appeals

213 P.3d 1020

222 Ariz. 293

The STATE of Arizona, Appellee, v. Javier FIMBRES, Appellant.

No. 2 CA-CR 2008-0240.

Court of Appeals of Arizona, Division 2, Department A.

August 7, 2009.

Terry Goddard, Arizona Attorney General by Kent E. Cattani and Jonathan Bass, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender by Scott A. Martin, Tucson, Attorneys for Appellant.

OPINION

HOWARD, Chief Judge.

¶ 1 After a jury trial, appellant Javier Fimbres was convicted of three counts of forgery of a credit card, one count of theft of items with a market value of more than $2,000, three counts of computer tampering, and one count of fraudulent scheme and artifice. He was sentenced to multiple concurrent prison terms, the longest of which was 4.5 years. On appeal, Fimbres argues the state presented insufficient evidence to support several of his convictions. He also contends his right to due process was violated because the trial court instructed the jury on an uncharged offense of credit card forgery. For the following reasons, we affirm.

Facts

¶ 2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). Fimbres purchased merchandise at local stores using gift cards that had been altered so that the information encoded in magnetic strips on the backs of the cards corresponded with the numbers of various credit and debit cards. These credit and debit cards belonged to people other than Fimbres, and Fimbres did not have permission to use the cards or access the underlying accounts. During several of the transactions, he presented other cards that were declined before presenting one that was accepted.

¶ 3 Fimbres was apprehended on July 13, 2007. At trial, the state presented evidence that unauthorized transactions had been made on several victims' credit card and debit accounts. Surveillance cameras from the stores showed Fimbres using the gift cards. Fimbres also admitted having made the purchases with the cards but claimed he did not know the cards had been altered. The jury found Fimbres guilty of all charges.

Insufficiency of the Evidence

¶ 4 Fimbres argues the evidence was insufficient to support his convictions for fraudulent scheme and artifice, computer tampering, and two counts of credit card forgery. He also contends insufficient evidence was presented to prove that he was guilty of theft of items valued at $2,000 or more.¹ When considering claims of insufficient evidence, "we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction." State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App.2005). Substantial evidence is "evidence that `reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913-14 (2005), quoting State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 468 (1997). "Evidence may be direct or circumstantial, but if reasonable minds can differ on inferences to be drawn therefrom, the case must be submitted to the jury." State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993) (citation omitted). "The finder-of-fact, not the appellate court, weighs the evidence and determines the credibility of witnesses." State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App.1995).

Fraudulent Scheme and Artifice Conviction

¶ 5 Fimbres first contends the evidence was insufficient to support his conviction for fraudulent scheme and artifice because the state failed to show that he "obtained a benefit by means of a false pretense or representation." To convict a defendant of a fraudulent scheme or artifice pursuant to A.R.S. § 13-2310, the state must prove, inter alia, that the defendant obtained a benefit "by means of false or fraudulent pretenses, representations, promises or material omissions." § 13-2310(A); see also State v. Johnson, 179 Ariz. 375, 378, 880 P.2d 132, 135 (1994) (additional element of false or fraudulent pretenses "separates fraud[ulent scheme and artifice] from routine theft").

¶ 6 Fimbres argues there was "no evidence that he created any pretense, misrepresented himself, or concealed anything from the [store] cashiers." In support of this argument, Fimbres states that he presented his "Arizona Identification Card" to the store cashiers when requested and "signed his own name when prompted" by the store's credit systems.

¶ 7 But evidence was presented from which the jury could conclude that Fimbres did obtain a benefit through misrepresentation or false pretense. Fimbres testified that he had used what appeared to be valid store gift cards to purchase goods from the stores. By doing so, he represented that the cards were valid. And a police officer testified that the cards were not valid and instead had been illegally altered to correspond to various credit card and debit accounts that did not belong to Fimbres. Accordingly, there was sufficient evidence from which the jury could infer Fimbres had falsely represented that his store gift cards were legitimate rather than illegally altered.

¶ 8 Fimbres claims, however, that he thought the cards were valid and therefore did not misrepresent that he was using legitimate gift cards. But this is not an issue of sufficiency of the evidence, but of Fimbres's credibility. "That was a matter for the jury to resolve, and we will not disturb its conclusions." State v. Lee, 151 Ariz. 428, 429, 728 P.2d 298, 299 (App.1986).

¶ 9 The two cases Fimbres cites in support of his argument do not require a different conclusion. In Johnson, 179 Ariz. at 376, 380-81, 880 P.2d at 133, 137-38, our supreme court held the evidence was insufficient to support the defendant's fraudulent scheme and artifice conviction because the defendant did not misrepresent anything when he or his accomplice used a valid card to access a valid account, but used the commodity purchased improperly. As discussed, however, Fimbres did in fact use false pretenses and misrepresentation when he obtained goods from various stores using gift cards bearing the victims' credit card and debit account information. In State v. Louden, 127 Ariz. 249, 251, 619 P.2d 758, 760 (App.1980), quoting former A.R.S. § 13-312, the court relied on language proscribing any "`trick or deception ... or ... confidence game'" in interpreting the relevant statute. And the statute under which Fimbres was convicted contains no such language. See § 13-2310.

¶ 10 At oral argument, Fimbres also emphasized that his conduct was covered by A.R.S. § 13-2105, fraudulent use of a credit card, a misdemeanor or a class five or six felony, and argued that the legislature therefore intended that he be prosecuted and punished under this more lenient statute rather than § 13-2310, which punishes violations as a class two felony. But he was unable to cite any authority supporting his position and we are not aware of any. There is authority, however, that a crime may be made punishable under different statutes. See A.R.S. § 13-116 (act punishable in different ways by different sections of the laws may be punished under both, but sentences must be concurrent). Accordingly, the existence of two statutes criminalizing the same conduct does not evidence a legislative intent that the offense only be punished under the more lenient of the two.

Computer Tampering Convictions

¶ 11 Fimbres also argues that the state presented insufficient evidence to support his convictions for computer tampering pursuant to A.R.S. § 13-2316. He contends that the plain meaning of § 13-2316 demonstrates the statute was enacted solely to criminalize "computer hacking" and does not encompass other computer-related conduct such as swiping through a credit card reader store gift cards encoded with illegally obtained credit and debit card numbers. Fimbres therefore claims that the evidence presented cannot possibly support a computer-tampering conviction.

¶ 12 When construing a statute, "[o]ur task ... is to fulfill the intent of the legislature that wrote it." State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). In interpreting the legislature's intent, we "look first to the statute's language because we expect it to be `the best and most reliable index of the statute's meaning.'" Id., quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). "We give clear and unambiguous statutory language its plain and ordinary meaning unless absurd consequences would result." State v. Hasson, 217 Ariz. 559, ¶ 11, 177 P.3d 301, 304 (App.2008).

¶ 13 The plain meaning of § 13-2316 is clear and unambiguous and demonstrates that the statute is not limited to the crime of computer hacking. Section 13-2316(A) provides:

A person who acts without authority or who exceeds authorization of use commits computer tampering by ... [a]ccessing, altering, damaging or destroying any computer, computer system or network, or any part of a computer, computer system or network, with the intent to devise or execute any scheme or artifice to defraud or deceive, or to control property or services by means of false or fraudulent pretenses, representations or promises.

"Accessing" a computer system with intent to defraud is a far broader prohibition than "computer hacking." And Fimbres's actions here fall within that prohibition.

¶ 14 For a store's credit card reader to charge or debit customers' accounts, the reader must necessarily be linked to the store's computer system or network. A defendant who swipes gift cards bearing illegally obtained credit and debit card numbers in a store credit card reader therefore accesses the store's computer system or network with the intent to execute a scheme to defraud. See State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983) (evidence sufficient to support conviction under § 13-2316 where defendant stole victim's...