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Kankanton v. State (1/30/2015) ap-2440

Kankanton v. State (1/30/2015) ap-2440

                                                  NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

        Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   



                                 303 K Street, Anchorage, Alaska  99501
  

                                           Fax:  (907) 264-0878
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



HAROLD P. KANKANTON,  

                                                                 Court of Appeals No. A-11093  

                                  Appellant,                    Trial Court No. 3AN-11-421 CR  



                          v.                                               O P I N I O N  



STATE OF ALASKA,  



                                  Appellee.                      No. 2440 - January 30, 2015  



                 Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                 Anchorage, Warren W. Matthews, Judge.  



                 Appearances:    Kelly  Taylor,  Assistant  Public  Defender,  and  

                 Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                 Nancy R. Simel, Assistant Attorney General, Office of Special  

                                       

                 Prosecutions      and    Appeals,     Anchorage,       and    Michael     C.  

                 Geraghty, Attorney General, Juneau, for the Appellee.  



                 Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                              

                 District Court Judge. *  

                                              



                 Judge ALLARD.  



         *    Sitting by assignment made pursuant to Article IV, Section 16   of  the Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                     Following a jury trial, Harold P. Kankanton was convicted of two counts           



                                                                                          1  

of second-degree theft for stealing two "access devices."                                    One count involved the theft  



of various credit cards.  The other count involved the theft of a driver's license.  The  



superior court sentenced Kankanton to 3 years to serve on each count with the sentences  

                                                                  



to run concurrently.  



                     On   appeal,   Kankanton   challenges   only   his   second   conviction   (the  



conviction for theft of a driver's license),  arguing that a driver's license does not qualify  

                                                    



as an "access device" under Alaska law.  



                     Having  reviewed  the  language  and  legislative  history  of  the  relevant  

                                                                                  



statutes, we conclude that there is minimal support, if any, for the State's claim that the  

                                                                                                                     



legislature intended a driver's license to automatically fall within the definition of an  

                                                                                                                                  



"access device."  Because the legislative intent is ambiguous, the rule of lenity requires  



us to construe the statute against the government.  We therefore reverse Kankanton's  



conviction for theft of the driver's license.  



           The definition of "an access device" under Alaska law  



                     Under AS 11.46.130(a)(7), a person commits second-degree theft "if with  

                                       



the intent to deprive another of property, or to appropriate property of another to oneself  

                                              



or a third person, the person obtains the property of another" and the property is "an  

                                                

access device."2  

                            The term "access device" is defined under AS 11.81.900(b)(1):  



                                                                                       

                     "access  device"  means  a  card,  credit  card,  plate,  code,  

                     account         number,         algorithm,          or    identification           number,  

                                                   

                     including a social security number, electronic serial number,  

                                                                                       

                     or  password,  that  is  capable  of  being  used,  alone  or  in  

                     conjunction  with  another  access  device  or  identification  



           1     AS 11.46.130(a)(7).  



           2     AS 11.46.130(a)(7); AS 11.46.100(a)(1).  



                                                                 - 2 -                                                            2440  


----------------------- Page 3-----------------------

                     document, to obtain property or services, or that can be used   

                     to initiate a transfer of property[.]  



                     Under the plain language of this statute, an item is an "access device" if (1)   



it falls within the listed categories - "a card, credit card, plate, code, account number,         



                                                                                                         3 

                       

algorithm,  or  identification  number,  including  [but  not  limited  to ]  a  social  security 



                                                                                       

number, electronic serial number, or password" - and (2) it is "capable of being used,  



                                                                                                                           

alone or in conjunction with another access device or identification document, to obtain  

property or services."4  



                     The  same  legislation  that  enacted  this  definition  of  "access  device"  



                                                                                                          

separately defined "identification document" as "a paper instrument, or other article used  



                                                                                                               

to establish the identity of a person," including "a social security card, driver's license,  



non-driver's identification, birth certificate, passport, employee identification, or hunting  



                              5  

or fishing license."   



                                                                                                              

                     Thus,  a  driver's  license  is  specifically  included  in  the  definition  of  an  



                                                                                                                  

"identification document," but it is not specifically listed as an "access device."  The  



                                     

question  presented  in  this  appeal  is  whether  we  should  nevertheless  construe  the  



definition of "access device" to encompass a driver's license because it is a type of  



                                         

"card" or "identification  number" that could be "capable of being used, alone or in  



conjunction with another access device or identification document, to obtain property or  

services."6  



          3      AS 11.81.900(b)(31) (defining "includes" to mean "includes but is not limited  



to"). 



          4      AS 11.81.900(b)(1) (emphasis added).  



          5      AS 11.81.900(b)(30); see ch. 65,  17, SLA 2000.  



          6      AS 11.81.900(b)(1).  



                                                                - 3 -                                                          2440  


----------------------- Page 4-----------------------

                            The legislative history of the relevant statutes provides no guidance on this   



question. During committee discussion of the legislation, a representative of the Alaska      



Public Defender Agency expressed concern that the definition of "access device" could                                                                     



potentially be construed to include a driver's license, but committee members did not                                      

respond to that concern or indicate whether or not they agreed with it.                                                                         7  Accordingly, we  



must  discern  the  legislature's  intent  from  the  face  of  the  relevant  statutes  and  the  



surrounding discussion of its purpose.  



                                                                          

                            The statutes defining "access device" and "identification document" were  



                                                                                                                                                                                     8  

                                                            

enacted in 2000 as part of a larger crime bill addressing the problem of identity theft. 



                                                                                                                                                                                     9  

                                    

At the time, the third-degree theft statute criminalized only "[theft] of a credit card." 



                                                                                                  

The 2000 legislature replaced the term "credit card" with "access device" to ensure that  



                                                                                                      

the theft of a person's credit card number - or other number or code capable of being  



                                                                                                                                                                

used to commit theft electronically - was punishable to the same extent as the theft of  



                                               10  

a physical credit card.                             



                                                                                                   

                            As part of the same crime bill, the legislature amended other sections of the  



                                                                                               

criminal code to bring it up-to-date with the more technologically sophisticated means  



through which people improperly access the finances and financial credit of others.  The  



                                                                                                                           

offense of "fraudulent use of a credit card" thus became "fraudulent use of an access  



              7        See  Minutes of Senate Judiciary Committee, C.S.S.B. 259, testimony of Blair       



McCune, Deputy Director, Public Defender Agency, Department of Administration, log no.                                                                                    

362 (Mar. 3, 2000). 



              8       See ch. 65,  17, SLA 2000.  



              9       See former AS 11.46.140(a) (2000).                                         In 2005, the legislature moved "theft of an                                 



access device" to the second-degree theft statute, making it a class C felony instead of a class  

A misdemeanor.  See ch. 67,  1, SLA 2005.  



              10       See  ch.  65,    3,  SLA  2000;  see  also  Minutes  of  House  Finance  Committee,  



C.S.S.B. 259, statement of Rep. Gene Therriault (Apr. 20, 2000) (explaining that theft of an  

                                                                                                  

"access device" was intended to encompass theft of a debit card or other credit device).  

                                                                                      - 4 -                                                                                 2440  


----------------------- Page 5-----------------------

device,"11 a class B felony when the offender obtains more than $25,000 in property or     



services.12                                                                                             

                   In other sections of the code, the legislature opted to replace the term "credit  



                                            

card" with "access device or identification document."  Thus, the crime of "obtaining a  



credit card by fraudulent means" became the crime of "obtaining an access device or  

identification document by fraudulent means."13  

                                                                                 The legislature also created the new  



crime  of  first-degree  criminal  impersonation,  which  makes  it  a  felony  to  recklessly  



damage  the  financial  reputation  of  a  person  by  using  the  person's  access  device  or  



identification document without authorization "to obtain a false identification document,  

                                                                            



open an account at a financial institution, obtain an access device, or obtain property or  

services."14  

                    



                                                                                           

                      As this discussion makes clear, in the 2000 identity theft bill, the legislature  



                                                                               

assigned distinct meanings to the terms "access device" and "identification document"  



                                                                                  

- enacting separate definitions in AS 11.81.900 and creating some criminal offenses  



                                    

that penalize conduct involving access devices and other criminal offenses that penalize  



conduct involving both access devices and identification documents.  



                      The State argues that these terms are not mutually exclusive.  In its view,  



    

a driver's license, like a social security card, can function as an identification document  



                                                                                                                           

and as an access device, because it is potentially "capable of being used, alone or in  



                                                                                                             

conjunction with another access device or identification document to obtain property or  

services."15  



           11    See ch. 65,  4, SLA 2000 (amending AS 11.46.285).  



           12    AS 11.46.285(b)(1).  



           13    See ch. 65,  5, SLA 2000 (amending AS 11.46.290).  



           14    See ch. 65,  6, SLA 2000 (enacting AS 11.46.565).  



           15    AS 11.81.900(b)(1).  



                                                                  - 5 -                                                              2440  


----------------------- Page 6-----------------------

                        We agree that a driver's license, like an access device, might be used "to   



obtain property or services" - for instance, to open a bank account or to obtain credit.                      



But  this  is  potentially  true  of   all   the  items  listed  in  the  definition  of  "identification  



document," including a birth certificate, passport - even a hunting license.  We think                        



if the legislature had intended "theft of an access device" to mean "theft of an access   



device  or  an identification document," it would have said so, as it did in other sections                           



of the criminal code.  



                        The State also cites to several federal cases that have treated a driver's  

license as an "access device" under federal law.16  

                                                                                            But the federal definition of "access  



device"  that  these  cases  discuss  does  not  differentiate  between  "access  device"  and  



                                                                                                                                     17  

"identification document" in the same way that the Alaska definition does.                                                               In addition,  



the federal definition to which the State analogizes Alaska's definition applies to the  

fraudulent use of access devices, not to simple theft. 18  



                        Having  reviewed  the  legislative  history  of  AS  11.81.900(b)(1)  and  the  



larger  statutory  scheme  that  was  enacted  at  the  same  time,  we  conclude  that  the  



legislative  intent with regard to whether a driver's license is an "access device" for  



purposes of the second-degree theft statute is, at best, ambiguous.  We are therefore  



            16     See, e.g., United States v. Jones, 551 F.3d 19, 25-26 (8th Cir. 2009) (finding that   



counterfeiting  driver's  licenses  amounted  to  producing  counterfeit  access  devices  for  

purposes of base-offense-level enhancement under the federal sentencing guidelines); United  

States v. Jacobs, 545 F. App'x 365, 367 (6th Cir. 2013) (noting in dicta that a "counterfeit                                   

access device" includes a "fake driver's license"). 



            17     18 U.S.C.  1029(e).  



            18      See  18  U.S.C.    1029(a)  (criminalizing  conduct  related  to  fraudulent  use  of  



"access devices");  United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996) (noting that 18      

U.S.C.  1029(a)  does  not  criminalize  theft  of  access  devices);  cf.  La.  Rev.  Stat.  Ann.    

14:70.4(D)(1) (defining "access device" as including driver's license numbers only in context  

of statute criminalizing access device fraud and requiring proof of intent to defraud).   

                                                                          - 6 -                                                                      2440  


----------------------- Page 7-----------------------

required by the rule of lenity to construe the definition of this statutory term against the                                

imposition of criminal liability.19 Accordingly, we vacate Kankanton's conviction for  



second-degree theft of the driver's license and remand this case to the superior court for  

                                                                                                                                



further  proceedings,  including  to  determine  whether  entry  of  judgment  against  

Kankanton for fourth-degree theft is appropriate.20  

                                                                                                        



              Conclusion  



                           We REVERSE Kankanton's second-degree theft conviction for theft of a  

                                                                                                                                                     



driver's license (Count V) and REMAND to the superior court for further proceedings  

                                 



consistent with this opinion.  We do not retain jurisdiction.  



              19     See Haywood v. State, 193 P.3d 1203, 1206 (Alaska App. 2008);                                                                   State v. ABC  



Towing, 954 P.2d 575, 579 (Alaska App. 1998).  



             20     See former AS 11.46.150(a) (2011) (theft of property worth less than 50 dollars);                                  



see also former AS 28.15.271 (2011) (setting fee for duplicate driver's license at 15 dollars).       

                                                                                  - 7 -                                                                             2440  

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