The Oregon Court of Appeals held on August 17, 2016 that the consensual use of another prisoner’s telephone PIN does not constitute the crime of identity theft under state law.

Jacob Thomas Ritter was incarcerated at the Marion County Jail, awaiting trial on domestic violence charges against his girlfriend.

The jail contracts with Telmate to provide telephone services, and the Telmate system features a two-step security process that prisoners must complete to make a call. Upon booking, each prisoner is assigned a unique personal identification number (PIN) that must be entered to access the phone system. He or she is then required to record a voice password, which Telmate’s voice recognition software compares to the voice of the person making calls with that PIN. If the voice matches, the call proceeds; if it doesn’t, the prisoner cannot make a call.

Jail policy prohibits prisoners from attempting to evade Telmate’s security protocols. The Inmate Handbook warns that “unauthorized telephone use” is subject to disciplinary action; that is, a prisoner may be punished for “using another inmate’s PIN, using another inmate to make calls, or any other activity that circumvents the phone system.” A notice posted near the phones warns: “Use of another inmate’s PIN is identity theft” and “WARNING: STEALING ANOTHER INMATE’S PIN IS IDENTITY THEFT.”

Nevertheless, Ritter’s cellmate helped him place a call to his girlfriend on July 27, 2014, in violation of jail policy and a court order prohibiting Ritter from contacting her.

The cellmate entered his own PIN and dialed the girlfriend’s phone number. When she answered he said, “Hold on a sec, ok?” Ritter then took the phone and spoke with his girlfriend for 20 minutes.

Ritter was found in contempt of court for violating the no-contact order and the state also charged him with identity theft. Under ORS 165.800(1), a person commits identity theft if he “converts to the person’s own use the personal identification of another person.”

During a bench trial, the state offered the recording of the telephone call and testimony of jail staff concerning the phone system and rules as evidence of Ritter’s alleged identity theft. After the state rested Ritter moved for a judgment of acquittal, arguing that he had not “obtained, possessed, or converted” his cellmate’s PIN because his cellmate had voluntarily made the call. The prosecution responded that it was not taking the position that the cellmate was the victim of identity theft, but rather the jail and Telmate were the victims.

The court denied Ritter’s motion, which he renewed at the close of the trial, again arguing that the state had offered insufficient evidence to convict him of identity theft. The court denied Ritter’s renewed motion and found him guilty, concluding that he “used and converted another person’s personal identification to his own purpose,” and did so with the intent “to deceive and defraud.”

The Court of Appeals vacated Ritter’s conviction, holding that the legislature did not intend the phrase “converts to the person’s own use” in ORS 165.800 to encompass his conduct.

While “the cellmate’s PIN is ‘personal identification’ for the purposes of identity theft,” the appellate court observed that the Supreme Court had previously interpreted the phrase “converts to the person’s own use” as requiring that “a defendant must take, appropriate, or somehow divest the other person of their personal identification and, with the requisite intent, use that personal identification for the defendant’s own purposes.”

The state did not argue that Ritter “took” or “somehow divested” his cellmate’s PIN. Rather, the narrow question presented was “whether defendant ‘appropriated’ the cellmate’s PIN.”

One does not “appropriate” someone’s personal identification unless they take or obtain that identification “without the permission or consent of the person identified by the personal information,” the Court of Appeals noted. That is, someone does not commit identity theft “when that personal identification is used with the consent or permission of the individual whom it identifies.”

“The record contains no evidence from which a rational trier of fact could find that defendant ‘appropriated’ his cellmate’s PIN,” the appellate court concluded. “The evidence in the record supports only the inference that defendant’s cellmate willingly helped defendant by providing him with access to the telephone call that the cellmate himself made using his own PIN. The record contains no evidence that defendant took or acquired the cellmate’s PIN, claiming the PIN as his own, or ever possessed or exercised any control over the PIN. Rather ... the cellmate appears to have maintained exclusive possession and control over the PIN at all times.”

Ritter no more “appropriated” his cellmate’s PIN than “a person who sits down in a friend’s living room to watch a movie on an online video streaming service with the friend ... appropriate[s] the personal identification that the friend used to log in to her computer, such as her email address,” the appellate court explained.

While Ritter and his cellmate “worked together to deceive the jail” regarding Ritter’s call to his girlfriend, in violation of jail policy and the court’s no-contact order, the Court of Appeals held “there is no evidence in the record ... from which a rational trier of fact could find that defendant committed identity theft.” Thus, his conviction for that charge was reversed. See: State v. Ritter, 280 Ore. App. 281, 380 P.3d 1160 (Or. Ct. App. 2016). 

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