State v. Sharma

• Decision Date: 30 August 2007
• Docket Number: No. 1 CA-CR 06-0062.,1 CA-CR 06-0062.
• Citation: 165 P.3d 693,216 Ariz. 292
• Parties: STATE of Arizona, Appellee, v. Peter SHARMA, Appellant.
• Court: Arizona Court of Appeals

165 P.3d 693

216 Ariz. 292

STATE of Arizona, Appellee, v. Peter SHARMA, Appellant.

No. 1 CA-CR 06-0062.

Court of Appeals of Arizona, Division 1, Department B.

August 30, 2007.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James Haas, Maricopa County Public Defender by Stephen J. Whelihan, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

WEISBERG, Judge.

¶ 1 Peter Sharma ("defendant") was convicted of unlawful possession of an access device, theft by material misrepresentation, and taking the identity of another. On appeal, he contends that insufficient evidence supported the convictions for unlawful possession of an access device and for theft. He also argues that the trial court erred in using his prior federal felony convictions for sentence enhancement purposes. We hold that lack of intent to permanently deprive another of property acquired by misrepresentation is not a defense to the theft charge, but we further hold that the evidence did not support the conviction for unlawful possession of an access device, and that defendant's prior convictions were improperly used to enhance his sentence. Accordingly, we reverse the latter conviction and remand for resentencing.

BACKGROUND

¶ 2 In 1988, defendant pled guilty in federal court to five counts of aiding and assisting in the preparation and presentation of false documents. He was sentenced to prison terms totaling five years on two of the counts, to be followed by five years of probation on the three remaining counts. After failing to report to prison as scheduled in February 1989, defendant lived as a fugitive and used the name "Peter Reynolds" until being taken into custody in May 1996. In March 1997, he also pled guilty to one count of failure to self-surrender and was ordered to serve an additional eighteen months.

¶ 3 Defendant was released from federal custody in December 2000 and began a five-year probationary period. He used his given name to obtain employment, but after encountering difficulty renting an apartment and because he had a good credit history as Peter Reynolds, in 2001 he began using the latter name. He also used a social security number comprised of the same numbers as his own but in altered order¹ to open bank accounts, obtain credit cards, and contract for utility services, including cable television service from Cox Communications. The scrambled social security number in fact belongs to another person.

¶ 4 After investigators learned of defendant's use of the fictitious identity, police conducted a search of his home. Officers found various documents and access devices, including a Florida driver's license, credit and debit cards, checks, and a counterfeit social security card, all bearing the name Peter Reynolds. Although defendant had generally paid all bills and obligations as they came due, his Cox Communications account had a balance of approximately $250 that had not been timely paid after the bank froze his account as a result of the fraud investigation.

¶ 5 Defendant was charged with taking the identity of another, a class 4 felony; unlawful possession of an access device, a class 5 felony; and theft, a class 6 felony. The State also alleged the federal felony convictions as historical priors and that defendant had committed the instant offenses while on probation. A jury found defendant guilty on all counts as charged. The court sentenced him as a repetitive offender to concurrent, mandatory, presumptive prison terms, the longest of which was ten years for identity theft. But, the court also found the mandatory sentences clearly excessive under the circumstances and entered an order asking that the Board of Clemency reduce the sentences to not more than two years.

¶ 6 Defendant filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1)(2003) and 13-4033(A)(1)(2001).

DISCUSSION

¶ 7 We turn first to defendant's arguments that insufficient evidence existed to convict him on the charges of theft by material misrepresentation and of unlawful possession of an access device. Our review of the sufficiency of evidence is limited to whether substantial evidence supports the verdict. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993); see also Ariz. R.Crim. P. 20(a). Substantial evidence is such proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996).

Theft Charge

¶ 8 Defendant was charged with theft by material misrepresentation in obtaining service or property from Cox Communications. To convict him of this charge, the State had to prove that without lawful authority defendant had knowingly obtained services or property from Cox through a material misrepresentation and with the intent to deprive Cox of those services or property. See A.R.S. § 13-1802(A)(3)(Supp.2006). Defendant concedes that he committed misrepresentation in obtaining cable service under a fictitious name but argues that no evidence showed any "intent to deprive" Cox of anything because he intended to pay for the service as demonstrated by his regular pre-arrest payments to Cox.

¶ 9 Defendant's argument, however, incorrectly assumes that A.R.S. § 13-1802(A)(3) permits a person to obtain services or property by misrepresentation as long as the person intends to compensate the victim for the services or property obtained. To the contrary, a victim need not suffer financial loss in order for theft by misrepresentation to occur. State v. Jahns, 133 Ariz. 562, 565, 653 P.2d 19, 22 (App.1982). We agree with our supreme court in their discussion of the predecessor statute for theft by false pretense, our supreme court held that "[o]nce the victim has parted with his property in reliance on a false representation, it is immaterial whether whatever he got in return is equal in exchange value to that with which he parted." Id. (quoting State v. Mills, 96 Ariz. 377, 381, 396 P.2d 5, 8 (1964)). Thus, the State was not obligated to prove defendant intended to permanently deprive Cox of the property or services, State v. Agnew, 132 Ariz. 567, 575, 647 P.2d 1165, 1173 (App.1982), and his intent to pay for the services he had procured by misrepresentation does not constitute a valid defense. Mills, 96 Ariz. at 380, 396 P.2d at 7.

¶ 10 The evidence at trial indicated that, due to his less than favorable credit history, defendant began using the name Peter Reynolds to obtain services from companies like Cox without having to make an advance deposit. By misrepresenting his identity, and hence his creditworthiness, defendant was able to receive cable service on terms under which he knew he otherwise would not qualify, i.e., without having to meet the deposit requirement. And even if Cox did not initially suffer any financial loss because defendant paid his bills as they came due, a balance of approximately $250 was not timely paid when his bank froze his account as a result of the police investigation. Therefore, defendant obtained cable service and intentionally deprived Cox of its service by misrepresentation, and Cox suffered a financial loss when defendant ultimately was unable to pay for a portion of the service he had wrongfully obtained. Accordingly, the evidence was sufficient to support defendant's conviction for theft by material misrepresentation.

Unlawful Possession of Access Devices

¶ 11 Defendant was charged with knowingly possessing more than five but less than one hundred access devices in violation of A.R.S. § 13-2316.01 (2001). He argues on appeal that the trial court misinterpreted § 13-2316.01(A) and that the evidence does not support his conviction.

¶ 12 One commits unlawful possession of access devices "by knowingly possessing, trafficking in, publishing or controlling an access device without the consent of the issuer, owner or authorized user and with the intent to use or distribute that access device." A.R.S. § 13-2316.01(A). "[W]ithout the consent of the issuer, owner or authorized user" is not defined or explained. An "access device" is defined as

any card, token, code, account number, electronic serial number, mobile or personal identification number, password, encryption key, biometric identifier or other means of account access, including a cancelled or revoked access device, that can be used alone or in conjunction with another access device to obtain money, goods, services, computer or network access or any other thing of value or that can be used to initiate a transfer of any thing of value.

A.R.S. § 13-2301(E)(2)(Supp.2006).

¶ 13 Defendant contends that the evidence was fatally insufficient because although he used an alias, he was both the owner and the authorized user of all of the access devices found in his possession. Accordingly, he argues, the State failed to prove that his possession of the devices was without consent of the owner and the authorized user. The State responds, however, that the statute is written in the disjunctive and thus describes three circumstances under which one may violate the statute, one of which is by possessing access devices without the issuer's consent. Because several issuers testified that they would not have opened accounts and issued access devices if they had known that defendant was not using his true name, the State contends that sufficient evidence supports the conviction.

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