ANALYSIS OF FEBRUARY 6, 2020 SUPREME COURT OPINION
(Posted February 6, 2020) Today is noteworthy for three reasons. It’s the exact midpoint of winter, meaning that starting tomorrow, we’re closer to the first day of spring than the last day of autumn; it’s Babe Ruth’s birthday, for those baseball fans among us; and it’s opinion day in the Supreme Court. Today the justices hand down one short opinion in a criminal appeal, Taylor v. Commonwealth, involving a prosecution for identity theft.
The facts are simple: Taylor was convicted of breaking into an apartment and stealing various things including a checkbook. Shortly after the theft, she appeared in a bank with a check made out to herself and sought to cash it. A teller thought the handwriting was suspicious, so she called the account owner. By the sheerest coincidence, local police were at the owner’s home, investigating the break-in. “Here, talk to the nice officer,” the owner told the teller.
Something convinced Taylor that remaining in the bank wasn’t in her long-term interest; she bolted. But she had already given the teller her own identification — what, you expected her to be a rocket scientist? — so it was an easy matter for the police to catch her.
A grand jury indicted Taylor for plenty of offenses, including breaking and entering, grand larceny, forgery, attempted uttering, and attempted false pretenses. The prosecutor also secured an indictment for attempted identity theft. At first blush, that charge doesn’t seem to fit; Taylor never attempted to convince anyone that she was the account owner; just that she had a check from that owner. That’s what the forgery, grand larceny, and false pretenses charges were for.
But the circuit court read the identity-theft statute differently and refused to dismiss that count. It convicted Taylor of all the listed charges after a bench trial. The Court of Appeals affirmed, but the Supreme Court agreed to take a look at the identity-theft conviction.
Today, in a unanimous opinion written by Senior Justice Millette, the justices affirm. The court finds no ambiguity in the statute, which proscribes using another person’s identifying information to obtain money. It gives several examples of identifying information, such as name and bank-account number, plus several other data points. Taylor argued that she didn’t use the victim’s identity; she made the check out to herself and gave the teller her own driver’s license. That is, she never held herself out as someone else.
The Supreme Court reads the statute more expansively. There was, after all, identifying information about the victim printed on the check: her name and bank account number. To cash the check, the bank would have to use, at a minimum, the account number to know which account to debit when cashing the check. Because Taylor unambiguously used a check containing that information, her conduct fits within the statute.
In a closing paragraph, today’s opinion notes that perhaps this isn’t the precise conduct that the statute was intended to reach. If that’s the case, it’s up to the General Assembly to modify it; courts can’t judicially amend statutes even if they think the legislature meant to do something else.