Tuney v. Commonwealth of Kentucky, No. 2008-CA-000307-MR (Ky. App. 3/19/2010)
| Decision Date | 19 March 2010 |
| Docket Number | No. 2008-CA-000307-MR.,2008-CA-000307-MR. |
| Parties | Lizbeth TUNEY, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee |
| Court | Kentucky Court of Appeals |
Roy A. Durham, Assistant Public Advocate, Frankfort, Kentucky, Briefs for Appellant.
Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: CLAYTON, TAYLOR, and WINE, Judges.
Not to be Published
OPINION AFFIRMING.
Lizbeth Tuney directly appeals from a judgment of the Nicholas Circuit Court convicting her of theft of identity and being a second-degree persistent felony offender. As a result of those convictions, Tuney was sentenced to serve four years, enhanced to eight years. Having considered the record and the briefs of the parties, we affirm for the reasons set out below.
Sarah Esterhay, a neighbor of Tuney, allowed Tuney to use her name and USAA Mastercard to establish an account with eBay in June of 2004. Esterhay testified that transaction-related payments and/or phone calls initially went to her home until she asked Tuney to remove her address and phone number from the eBay account. In August of 2004, when Tuney apparently neglected to make payments on the account as agreed, Esterhay withdrew permission for Tuney to use the credit card, and cancelled the card three months later. Esterhay testified that, after she withdrew her consent to allow Tuney to use that particular Mastercard, she never again gave Tuney authority to use her credit nor did she provide Tuney with specific personal information that would give Tuney the ability to make use of Esterhay's credit. Esterhay asserts that Tuney had the "opportunity" to obtain her social security number and other information from either another credit application she had seen or when she was watching Esterhay's home while Esterhay was on vacation.
In January of 2005, Tuney successfully applied for Pay-Pal buyer credit (financed by G.E. Money Bank and used in connection with the eBay site) using Esterhay's name and social security number. The mailing address for that account was a post office box which Tuney had obtained in August of 2004. Although records relating to that P.O. Box include Esterhay's name and phone number, Esterhay received no mail there, and the Commonwealth further asserts that Esterhay had no knowledge of the box. The credit limit on the Pay-Pal account was $1,200, and by the end of February of 2005, the balance due was $1,195.44.
Esterhay testified she learned of the Pay-Pal account when she obtained a credit report in April of 2005, and discovered it listed there. At some point when Tuney failed to make payments on that account (either directly to G.E. Money Bank or to Esterhay), Esterhay began making those payments herself. Esterhay later filed a fraud claim with G.E. Money Bank. During the investigation that followed, Esterhay admitted that she had allowed Tuney to open an account in her name, although it is not clear whether she was referring to the initial account opened using Esterhay's Mastercard, or to the subsequent G.E. Money Bank account opened in early 2005. Regardless, because Esterhay admitted having knowledge of the latter account, made payments on that account, and made the fraud claim only after Tuney had stopped making payments, Esterhay's fraud claim was denied.
Esterhay subsequently filed a complaint with the Nicholas County Attorney's Office which resulted in an investigation by the Kentucky State Police. Detective Clint Graves testified at trial that Esterhay "knew Tuney would be doing eBay/Pay-Pal buyer credit," and further that she "knew Tuney would be using the credit for buying and selling on eBay and would be using Pay-Pal buyer credit." For reasons that are unclear, Graves concluded that Esterhay had given two different "stories" to him and G.E. Money Bank. Criminal charges were filed against Tuney, and G.E. Money Bank re-opened their fraud claim, ultimately deciding in favor of Esterhay and refunding all payments made on that account.
Tuney was indicted and charged with theft of identity and also as a first-degree persistent felony offender. In August of 2007, Tuney stood trial on the charge of theft of identity. Tuney made a motion for a directed verdict at the close of the case for the Commonwealth, and again at the close of the case for the defense. Both motions were denied by the trial court, and Tuney was convicted. This appeal followed.
First, we do not agree with the Commonwealth's challenge that Tuney...
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