Wednesday, October 24, 2012

The Police Officer, the Tax Id Number and Identity Fraud

After being convicted of “financial identity fraud and violation of oath of office,” Demetria Gaskins appealed.  Gaskins v. State, __ S.E.2d __, 2012 WL 4841303 (Georgia Court of Appeals 2012). 

This, according to the Court of Appeals’ opinion, is how the case arose:

Gaskins, a police officer, went to an Alltel Wireless retail store to open a new personal cell phone account. The Alltel representative ran a credit check and determined that Gaskins would be required to pay a deposit before opening the new lines. Instead of paying the deposit, Gaskins told the representative she would return later with a tax identification number from her personal business so that she could open the account in the business's name.

Thereafter, Gaskins returned to the store with a number written on a piece of paper, which she handed to the Alltel agent, explaining that it was her business's tax identification number. The Alltel agent was able to open the account without a deposit using the new number, and Gaskins received four new phone lines on the account.

Gaskins’ new account eventually incurred more than $5,000 in charges, which Gaskins never paid. The number she gave to the Alltel agent was later discovered to be the social security number for a woman in Pennsylvania, who had never been to Georgia, had never met Gaskins, and had never given Gaskins permission to use her social security number in any way.

The Pennsylvania woman notified Alltel and police in Georgia that her number had been used without her permission, and after an investigation, police confirmed that Gaskins had used the number.

Gaskins v. State, supra.

“Based on Gaskins’ unauthorized use of the number, she was charged with theft of services (five counts), financial identity fraud (five counts), and violation of oath of office (one count).” Gaskins v. State, supra. A jury acquitted her on the theft of services counts, but convicted Gaskins “on the remaining counts.” Gaskins v. State, supra.

After the trial judge denied her motion for a new trial, Gaskins appealed.  Gaskins v. State, supra.  On appeal, she argued that “the evidence was insufficient to support” her convictions for identity fraud and violation of an oath of office.  Gaskins v. State, supra.

The Court of Appeals began its analysis of Gaskins’ insufficiency of the evidence arguments by noting the standard it applies when reviewing a criminal appeal:

[W]e view the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [443 U.S. 307 (1979)] and does not weigh the evidence or determine witness credibility.

Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.

Gaskins v. State, supra.

After outlining the facts that gave rise to the prosecution, as noted above, the court began its analysis by addressing Gaskins’ argument that the “evidence was insufficient to support the verdict as to identity fraud because the State failed to prove the offense as defined by the statute and as alleged in the indictment.”  Gaskins v. State, supra. When Gaskins was charged with the crime, Georgia Code § 16-9-121(1) defined the offense of identity fraud as follows:

A person commits the offense of identity fraud when without the authorization or permission of a person with the intent unlawfully to appropriate resources of ... that person . . . to his or her own use . . . he or she: . . . Obtains or records identifying information of a person which would assist in accessing the resources of that person or any other person. . . .

Gaskins v. State, supra (emphasis in the original). (The statute was subsequently revised.)

The court noted that “[c]onsistent with this [language], the indictment alleged that Gaskins `did obtain the social security number’ of another person and used it to open the account without permission.”  Gaskins v. State, supra (emphasis in the original).  Gaskins actually had two arguments as to why the evidence presented at trial was insufficient to convict her of this crime.  Gaskins v. State, supra.

The first was that “the evidence failed to show `whether or how Gaskins ‘obtained’ the Pennsylvanian woman's social security number.’” Gaskins v. State, supra. The Court of Appeals pointed out that notwithstanding this,

there was evidence that Gaskins, as a police officer, had access to a nationwide database that included people's personal information such as social security numbers. Further, there is uncontroverted evidence that Gaskins provided the written number to Alltel, so despite Gaskins’ denial that she used the police database, she could not have provided it to Alltel without first obtaining it.

The jury, as the finder of fact, was entitled to weigh the evidence and make credibility determinations as to any conflicts or inconsistencies.

Gaskins v. State, supra.

It then explained that when it reviews a sufficiency of the evidence argument, the

`relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Gaskins v. State, supra (quoting Jackson v. Virginia, supra) (emphasis in the original). The court therefore found that this argument did not provide a basis for reversing Gaskins’ conviction on the identity fraud counts.   Gaskins v. State, supra.

Gaskins’ other argument for reversing those counts was that the evidence at trial

failed to exclude the reasonable alternative hypothesis that she provided what she thought was a taxpayer identification number for her business. She points to the circumstantial nature of the evidence as to precisely how she obtained the number, and argues that the evidence did not rule out the possibility that she lawfully obtained a number assigned to her business which happened to be identical to the Pennsylvania woman's social security number.

Gaskins v. State, supra.

In making this argument, Gaskins relied on the Georgia Court of Appeals’ decision in Locklear v. State, 249 Ga.App. 104, 107(1), 547 S.E.2d 764 (2001).  Gaskins v. State, supra.  This Court of Appeals explained that the Locklear case held that in a case

`entirely dependent on circumstantial evidence, . . . the State's evidence must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. . . . In making a determination of whether any other reasonable hypothesis exists, the defendant's explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted.’

`Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury. However, where there appears a hypothesis from the evidence, or from the lack of evidence and the defendant's statement, pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, this Court may declare it so as a matter of law.’

Gaskins v. State, supra (quoting Locklear v. State, supra).

This court did not buy Gaskins’ argument.  Gaskins v. State, supra.  It explained that she

ignores the fact that the evidence of her guilt was not entirely dependent on circumstantial evidence. There was direct, uncontroverted evidence that she supplied a social security number assigned to another person and represented it to be assigned to her business.

By contrast, documents in evidence showed that each of her businesses were registered with the State under federal identification numbers that did not match the disputed social security number. When requested by her employer, Gaskins was unable to produce any corroborating documentation linking the disputed number to her businesses.

Based on this record, the jury was authorized to disbelieve Gaskins’ explanation and to conclude that she obtained the social security number fraudulently.

Gaskins v. State, supra.

Gaskins also argued that the evidence was not sufficient to “support her conviction for violating her oath of office because there was no connection between the offense and her public duties as a police officer.”  Gaskins v. State, supra. The court noted that the oath she took as a police officer included this language:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the State of Georgia, and I will faithfully perform and discharge the duties of my position, conscientiously and without malice or partiality, to the best of my ability;

I further swear (or affirm) to obey, to adhere to, to uphold and to enforce the laws of the United States of America and of the State of Georgia at all times;

I further swear (or affirm) that I will bear true faith and allegiance to the Governor of the State of Georgia, the Chief of Police of the Albany Police Department, and the officers appointed over me according to law; so help me God.

Gaskins v. State, supra. 

It also noted that Georgia Code § 16-10-1 states that “`[a]ny public officer who willfully and intentionally violates the terms of his oath as prescribed by law shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.’”   Gaskins v. State, supra. 

Gaskins relied on the Court of Appeals decision in State v. Tullis, 213 Ga.App. 581, 445 S.E.2d 282 (1994), which reversed an officer’s conviction for violating his oath of office

by shoplifting a candy bar while on duty. This Court rejected the State's argument that `commission of a misdemeanor while on duty constitutes a violation of [the officer's] oath of office, because he implicitly swore to uphold the laws of the State of Georgia.’. . . [T]he Court pointed out that `a police officer could be subject to a felony prosecution for failure to obey a traffic signal . . . or catching nine rainbow trout, one more than the creel limit.

Gaskins v. State, supra (quoting State v. Tullis, supra).

This Court of Appeals found that the Tullis holding did not apply to what Gaskins did:

Here, the unlawful conduct was not done as part of Gaskins’ official duties. But the jury was authorized to find that she obtained the social security number without authorization by using a police database with personal information in it. This misuse of her access to sensitive information was an abuse of her position and is sufficient to support a finding that Gaskins violated her oath of office.

Furthermore, `[a] crime involving dishonesty [, such as fraud,] is considered to be one involving moral turpitude.’ Thus, by committing identity fraud, Gaskins committed a felony demonstrating an inherent moral baseness, which a jury could conclude to be a violation of her oath to adhere to the laws she helped enforce.

Gaskins v. State, supra (quoting State v. Tullis, supra).

The court therefore rejected her argument and affirmed her conviction on this charge, as well. 

If you are interested in more details of the case, the story you can find here says the judge sentenced Gaskins to five years’ probation after she was convicted and ordered her to pay restitution to Alltel and the Pennsylvania woman whose social security number she used.  The story also says she was fired from the Albany (Georgia) Police Department. 

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