State v. Euler

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NOT DESIGNATED FOR PUBLICATION

No. 119,761

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MEGAN DANIELLE EULER,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed February 7,
2020. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE and STANDRIDGE, JJ.

PER CURIAM: Megan Danielle Euler appeals her conviction of identity theft, and
she raises two issues on appeal. First, Euler claims there was insufficient evidence to
show that venue was proper in Johnson County. Second, Euler claims she should have
been charged with and convicted of the more specific offense of criminal use of a
financial card. We reject both of Euler's claims and affirm the district court's judgment.




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FACTUAL AND PROCEDURAL BACKGROUND

In July 2016, Anna Oman worked at Waddell & Reed, an investment firm in
Johnson County. Euler worked one cubicle away from Oman. On July 2, 2016, Oman
noticed a charge on her bank account that she did not make—$223.87 for Worlds of Fun
made on July 1, 2016. Oman immediately made sure she still had possession of her debit
card and then called Worlds of Fun. Worlds of Fun said they would "flag" the tickets in
case someone tried to use them.

On July 4, 2016, Kansas City Police Sergeant James Slaughter was working off-
duty at Worlds of Fun when he was called to the entrance because someone was trying to
use voided tickets to enter the park. When Slaughter arrived, he saw Euler, her boyfriend
Darrick Jones (Darrick), and some children. When Slaughter asked Euler where she got
the tickets, Euler said she bought the tickets from a woman named Melissa Ralph on July
1, 2016. When asked, Euler denied that she worked at Waddell & Reed.

At the same time this investigation was occurring at the park, a security officer
called Oman and notified her that Euler was trying to use the Worlds of Fun tickets.
Oman then met with Overland Park Police Officer Donald Wasinger to report the
incident. Wasinger forwarded the report to Overland Park Police Detective Lance Jordan
in the financial crimes division.

Jordan obtained the Worlds of Fun ticket purchase records and found that the
address listed in the purchase was for one of Oman's family members, the phone number
was disconnected, and the email address could not be associated with anyone. Jordan
tried to contact Euler by going to her house and calling her and Darrick, but neither of
them ever contacted him.

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On October 14, 2016, the State charged Euler with identity theft and theft of
property. The State later amended the complaint to dismiss the theft charge. A jury trial
was held on March 26, 2018.

Oman testified that she kept her debit card in her purse under her desk at work.
Oman stated that on June 30, 2016, she received an email from Euler asking for her
address so that Euler's daughter could send her something in the mail. In response to the
email, Oman provided Euler with her home address, which is not the address she used for
her official mailings. Oman used her parent's address as her official address and for her
bank account. Oman testified that the billing address provided on the ticket purchase was
her home address—the one she gave Euler and not the one she used for banking—and
that the phone number and email address on the ticket purchase were not hers. Oman
recalled that the week before the tickets were purchased, the company had an ice cream
social outside, taking her away from her desk for some time. Oman went to the social
with some friends and saw Euler come outside later. Oman also remembered seeing Euler
with the Worlds of Fun website open on her computer a couple of times that week.

Erin Walton, who also worked at Waddell & Reed, testified that Euler sent her a
Facebook message on July 4, 2016, about the ticket incident. Euler told Walton in the
message that she was off work the day the tickets were bought and when she went to pick
up her paycheck: "'[She] went upstairs to get [her] sunglasses and went to [her] desk, and
there was an envelope sticking out from under the keyboard that said [her name] on it. . . .
When [she] opened it in [her] car, there w[ere] Worlds of Fun tickets inside.'"

Slaughter and Jordan testified about their investigations. At the close of the State's
case, Euler moved for a directed verdict based on lack of venue. The State argued that the
evidence showed that Euler obtained the information to purchase the Worlds of Fun
tickets at Waddell & Reed in Johnson County and thus venue was proper. The district
court agreed with the State and overruled the motion.
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Euler testified on her own behalf. She admitted that in 2016 she had financial
problems. At the time, Euler lived in a house in Olathe, Kansas. Euler said she received
gifts while working at Waddell & Reed, including gas cards and $200 tucked underneath
her keyboard. Euler said there was not an event at work the week of July 1, 2016.

Euler testified that on July 1, 2016, she had the day off, so she went with her
daughter, Camille Jones (Camille), to the DMV, where they waited for two to two-and-a-
half hours for Camille's ID. After the DMV, they arrived at Waddell & Reed a little
before 1 p.m. to pick up Euler's paycheck. Euler testified she stopped by her desk to grab
her sunglasses when she saw an envelope underneath her keyboard which contained four
Worlds of Fun tickets and a parking pass.

Euler testified that on July 4, 2016, she and Darrick went to Worlds of Fun with
the children and when they got to the gate, none of the tickets worked. Eventually, police
showed up and handcuffed Darrick. Euler testified that she told the officers that a year
earlier, she met Melissa Ralph at Worlds of Fun because Ralph had a discount for tickets,
so Euler gave Ralph money and Ralph bought some tickets for her. On cross-
examination, Euler denied telling police that she got the tickets in question from Ralph
and acknowledged that she did not mention the tickets were left under her keyboard at
work. Euler said she lacked access to a computer unless she was at work and when asked
how she sent Walton the Facebook message, she said she used a friend's computer.

Camille testified that on July 1, 2016, she went to the DMV with her mother to get
her ID. Camille testified that she and Euler left their house around 10 a.m. and had to
wait two hours at the DMV. After the DMV, they went to Euler's office and Euler came
back to the car with two envelopes, one contained her paycheck and the other contained
the Worlds of Fun tickets.

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The district court instructed the jury on identity theft and the full statutory
definition of "personal identifying information," including a person's name, address, and
debit card information. The jury found Euler guilty of identity theft. On July 2, 2018, the
district court sentenced Euler to 10 months' imprisonment but granted probation for 18
months. Euler timely appealed.

WAS THERE SUFFICIENT EVIDENCE THAT VENUE WAS PROPER?

Euler first claims the State did not present sufficient evidence to show that venue
was proper in Johnson County. Venue, unless specified in the statute, is not an element of
the crime, but it is a necessary jurisdictional fact that must be proven by the State. State v.
Kendall, 300 Kan. 515, 530, 331 P.3d 763 (2014). The proper venue for a criminal
prosecution "shall be in the county where the crime was committed." K.S.A. 22-2602.

Euler was convicted of identity theft, which is "using . . . any personal identifying
information, or document containing the same, belonging to or issued to another person,
with the intent to . . . [d]efraud that person, or anyone else, in order to receive any
benefit." K.S.A. 2018 Supp. 21-6107(a)(1). In addition to the general venue statute, "a
prosecution for any crime committed with an electronic device may be brought in the
county in which . . . [a]ny requisite act to the commission of the crime occurred." K.S.A.
2018 Supp. 22-2619(b)(1).

Euler argues that the State did not present sufficient evidence that she used
personal identifying information to commit identity theft in Johnson County. She also
argues that the State did not present "any forensic evidence" to show where the personal
identifying information was used. Euler spends the remainder of her brief on this issue
challenging the argument the State presented in the district court, i.e., that venue was
proper based on Euler obtaining the information to commit identity theft in Johnson
County. Euler asks this court to interpret the phrase "'requisite act to the commission of
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the crime'" in K.S.A. 2018 Supp. 22-2619(b)(1) and determine that obtaining the
information to commit identify theft could not be considered a "requisite act" establishing
venue when she was charged with identity theft based on the use of that information.

But before this court, the State does not argue that obtaining the information in
Johnson County provided the basis for venue. Also, the State does not rely on K.S.A.
2018 Supp. 22-2619(b)(1) to establish venue. Instead, the State argues that it presented
sufficient evidence to establish Euler used the information in Johnson County because the
evidence showed Euler bought the tickets the morning of July 1, 2016, and that she spent
the entire morning in Johnson County, whether at her home, her work, or the DMV. The
State concedes that there was no direct testimony that the DMV was in Johnson County,
but the State argues that the jury could reasonably infer from the evidence and their
common sense that the DMV was in Johnson County.

The standard of review for a claim of sufficiency of the evidence is well known:

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

The district court instructed the jury that to establish the charge of identity theft,
the State needed to prove that Euler "used any personal identifying information or
document containing personal identifying information belonging to or issued to Anna
Oman." (Emphasis added.) Thus, Euler is correct that to establish venue the State needed
to present sufficient evidence, in the light most favorable to the State, to show that Euler
was in Johnson County when she used Oman's name, home address, and debit card to
purchase Worlds of Fun tickets.
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As to Euler's argument that the State did not present "any forensic evidence" to
show where the information was used, Kansas courts have held that venue can be
established by reasonable inference from other competent evidence; it need not be
established by specific questions and answers. State v. Calderon-Aparicio, 44 Kan. App.
2d 830, 837, 242 P.3d 1197 (2010). Thus, the State did not have to provide forensic
evidence to prove where the crime occurred. Instead, it need only establish by
circumstantial evidence and reasonable inference that Euler used the information in
Johnson County.

Here, it was undisputed that the Worlds of Fun tickets were purchased with
Oman's debit card, name, and home address, at 11:53 a.m. on July 1, 2016. The State also
established that (1) Euler worked one cubicle away from Oman at Waddell & Reed; (2)
Oman kept her debit card in her purse at her desk; (3) Waddell & Reed had an outside
event the week of July 1, 2016, and Euler came out later than everyone else; (4) Euler
was on the Worlds of Fun website that week; and (5) the address used on the ticket
purchase was the address Oman gave Euler, which is not the address she uses for her
banking. In the light most favorable to the State, this evidence allows for a reasonable
inference that Euler used Oman's personal identifying information to buy the tickets.

As to where Euler was when she used Oman's information, the evidence
established that (1) Camille and Euler left their house in Johnson County around 10 a.m.
on July 1, 2016; (2) they went to the DMV and were there for two to two-and-a-half
hours; and (3) they arrived at Waddell & Reed, in Johnson County, shortly before 1 p.m.
While there was no testimony about where the DMV was located, a reasonable fact-
finder could infer that Euler would only go to the DMV in the county of her residence.
Thus, in the light most favorable to the State, it is reasonable to infer that Euler was in
Johnson County when she used Oman's personal identifying information. We conclude
that the evidence was sufficient to show that venue was proper in Johnson County.

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SHOULD EULER HAVE BEEN CONVICTED OF CRIMINAL USE OF A FINANCIAL CARD
INSTEAD OF IDENTITY THEFT?

Euler argues for the first time on appeal that she should have been convicted of
criminal use of a financial card because it is a more specific crime than identity theft.
Euler argues that the court can address her issue for the first time on appeal because it is a
question of law arising on proved facts and it is determinative of the case. See State v.
Williams, 299 Kan. 911, 929-30, 329 P.3d 400 (2014). The State concedes that Euler can
raise this issue for the first time on appeal.

Euler argues that she should have been convicted of criminal use of a financial
card, under K.S.A. 2018 Supp. 21-5828(a)(1), because it is more specific than identity
theft. Euler argues that identify theft criminalizes using any personal identifying
information, which includes debit card information, with the intent to defraud, while
criminal use of a financial card specifically criminalizes the use of personal identifying
information from a financial card with the intent to defraud. Euler argues her conviction
should be vacated or in the alternative she should be sentenced to the penalty for criminal
use of a financial card.

The State argues that criminal use of a financial card is not a more specific crime
of identity theft because the two offenses have different elements. The State argues
criminal use of a financial card, unlike identity theft, requires the use of a financial card,
proof of monetary loss, and lack of consent by the card owner.

A general law is "'[a] statute which relates to persons or things as a class'" and a
specific law is "'a statute which relates to particular persons or things of a class.'" State v.
Campbell, 279 Kan. 1, 12, 106 P.3d 1129 (2005). The rule "that a general statute should
yield to a more specific statute that covers the same criminal conduct" is a rule of
statutory interpretation used to determine which statute the Legislature intended to apply
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in particular circumstances. Williams, 299 Kan. at 930. Although a general statute
normally must yield to a specific statute, the rule "'must yield where there is a clear
indication that the legislature did not intend for one statute to be the exclusive mechanism
for punishing a given activity.' [Citations omitted.]" 299 Kan. at 930. Whether the rule
applies is a question of law subject to unlimited review. 299 Kan. at 930.

Euler was convicted of identity theft under K.S.A. 2018 Supp. 21-6107(a)(1),
which states: "Identity theft is . . . using . . . any personal identifying information, or
document containing the same, belonging to or issued to another person, with the intent
to: . . . [d]efraud that person, or anyone else, in order to receive any benefit." Personal
identifying information includes: a person's name, address, and financial number, which
includes a credit or debit card number. K.S.A. 2018 Supp. 21-6107(e)(2)(A), (C), (M).
Identity theft is a severity level 8 person felony unless the monetary loss to a victim is
over $100,000. K.S.A. 2018 Supp. 21-6107(c)(1).

Criminal use of a financial card is "[u]sing a financial card without the consent of
the cardholder" "with intent to defraud and to obtain money, goods, property or services."
K.S.A. 2018 Supp. 21-5828(a)(1). The severity level for criminal use of a financial card
is based on the value of the money, goods, property, or services obtained. See K.S.A.
2018 Supp. 21-5828(b).

Euler argues that because she used Oman's debit card to purchase Worlds of Fun
tickets for $223.87, she should have been charged with criminal use of a financial card
since it more specifically addresses the facts of her case. Euler's argument oversimplifies
the facts supporting her conviction for identity theft. Euler did more than just use Oman's
debit card to buy the tickets. She also used Oman's name and home address. The
prosecutor pointed out in closing arguments that Euler used Oman's name, debit card, and
address. To find Euler guilty of identity theft, the jury had to find that she "used any
personal identifying information . . . belonging to or issued to . . . Oman." (Emphasis
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added.) The jury was then given the full statutory definition of personal identifying
information which included, among other things, a person's name, address, or financial
number, which includes debit cards. K.S.A. 2018 Supp. 21-6107(e)(2)(A), (C), and (M).

Using a person's name, address, and debit card number to defraud another person,
as Euler did here, is beyond the conduct listed in the criminal use of a financial card
statute and is directly addressed by the identity theft statute. So even if we were to decide
that criminal use of a financial card is a more specific statute than identity theft when
using another's debit card, it would not affect Euler's conviction because her identity theft
conviction could have also been based on her use of Oman's name and address.

Even if we accept Euler's assertion that her conviction of identity theft was based
only on her use of Oman's debit card, we disagree with her argument that criminal use of
a credit card is a more specific offense. There is only one case addressing this issue, State
v. Granger, No. 117,601, 2018 WL 5091591 (Kan. App. 2018) (unpublished opinion),
which is cited by the State and not Euler. Granger used another person's debit card to
purchase $700 in merchandise from Walmart and was convicted, along with other crimes,
of identity theft. Granger argued that she should have been convicted of criminal use of a
financial card because it is the more specific crime applicable to her conduct—using
someone else's debit card to purchase merchandise—than the general offense of identity
theft. The panel agreed:

"As defined in K.S.A. 2017 Supp. 21-5828(a), criminal use of a financial card
entails '[u]sing a financial card without the consent of the cardholder;' . . . with the 'intent
to defraud' by acquiring 'money, goods, property or services.' Granger was charged with
use of the debit card without McEnroe's consent. The elements of criminal use of a
financial card, particularly as charged here, match elements of identity theft. But the
identity theft statute covers far more wrongful conduct than does the financial card
statute. For example, identity theft applies to all kinds of personal information, not just
financial cards. . . . Similarly, defendants may be guilty of identity theft by engaging in a
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wide range of activities related to personal identifying information, including but not
limited to its use. A person buying or selling social security numbers or driver's license
numbers would be guilty of identity theft but not criminal use of a financial card.
"In short, using a debit card as Granger did constitutes criminal use of a financial
card that is also 'a specific instance' of more generally defined conduct criminalized as
identity theft. Under K.S.A. 2017 Supp. 21-5109(d), Granger could have been convicted
only of criminal use of a financial card and not use of personal identifying information as
a form of identity theft for her unlawful purchases at Walmart." 2018 WL 5091591, at *4.

The Granger panel seems to have incorrectly focused on the existence of
overlapping facts as opposed to properly applying the general versus specific definition
and analysis. But simply because the facts of a case could fall within either statute, does
not mean that criminal use of a financial card is a more specific statute than identity theft.
See State v. Garner, No. 102,790, 2012 WL 4794448, at *14 (Kan. App. 2012)
(unpublished opinion) ("The rule that the State must charge under a more specific statute
when one exists does not mean that only one statute can apply to each crime."); Coppage
v. State, No. 94,468, 2006 WL 1816394, at *4 (Kan. App. 2006) (unpublished opinion)
("Although the facts of a case may coincidentally fall within either of these statutes, the
statute of aggravated assault on an officer is not the more specific statute of attempted
first-degree murder.").

Instead, the proper analysis requires the court to first determine whether one
statute, here identity theft, prohibits certain conduct generally, while the criminal use of a
financial card statute prohibits identical conduct as related to a specific person or thing.
See State v. Cott, 288 Kan. 643, 648-49, 206 P.3d 514 (2009). Stated differently, the
specific versus general rationale applies when two statutes prohibit identical conduct and
one statute applies to the public in general while the other statute applies to a specific
group of offenders or victims. A few examples illustrate how the analysis is applied.

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In State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), superseded by statute as
stated in State v. Toothman, 310 Kan. 542, 448 P.3d 1039 (2019), the court considered
whether aggravated incest was a more specific crime than indecent liberties with a child.
The court determined that the two crimes were similar in the conduct they prohibited but
"the distinguishing factor is that aggravated incest requires the act to be committed by a
biological, step, or adoptive relative of the child." 250 Kan. at 736. Thus, the court found
that aggravated incest was a more specific statute than indecent liberties because it
prohibits the same conduct but applied to a specific group of offenders, those related to
the victim. See 250 Kan. at 736.

In State v. Creamer, 26 Kan. App. 2d 914, 922, 996 P.2d 339 (2000), the court
determined that a statute criminalizing injuring a human being while driving under the
influence (DUI) was a general law, while a law criminalizing injuring a pregnant woman
while DUI was a specific law. The court explained that this classification fit the general
versus specific definition because the general law applies to human beings as a class and
the specific law prohibits the same conduct related to a specific member of that class—
pregnant women. 26 Kan. App. 2d at 922. Thus, when the victim was a pregnant woman,
the more specific statute must apply. 26 Kan. App. 2d at 922.

In contrast, if the two statutes do not prohibit identical conduct, then the specific
versus general rationale does not apply. In Cott, the court examined whether a sentencing
enhancement statute for DUI with a child in the car at the time of the offense was a
specific statute of aggravated child endangerment. 288 Kan. at 645. The court applied the
Williams analysis and stated that for the specific versus general rule to apply it "would
have to determine that the DUI sentence enhancement provision proscribes for a certain
class of persons conduct which is proscribed generally in the child endangerment statute."
288 Kan. at 649. The court found that "the statutes created independent crimes and
neither prevents the application of the other." 288 Kan. at 649. The court reasoned that
the statutes were aimed at preventing different types of behavior because the sentencing
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enhancement seeks to prohibit DUI while the child endangerment statute is directed at
conduct that endangers a child. 288 Kan. at 649.

As in Cott, the identity theft statute and the criminal use of a financial card statute
are aimed at preventing different types of behavior and thus the general versus specific
rationale does not apply. The conduct prohibited by the identity theft statute is using
another's "personal identifying information" to defraud that person or anyone else. The
criminal use of a financial card prohibits the use of another person's financial card with
"intent to defraud and to obtain money, goods, property or services." The focus is
different, identity theft prevents the use of personal information or, put another way, it
prevents an invasion of a person's privacy, while criminal use of a financial card merely
prevents the wrongful procurement of money or property by using another's financial
card. In identity theft, the debit card information is the thing being taken while in
criminal use of a financial card, the financial card is the means by which the money,
goods, property, or services are obtained.

In sum, Euler did more than just use Oman's debit card, she also used her name
and home address when completing the ticket purchase. These other facts support her
conviction of identity theft and would not support a conviction of criminal use of a
financial card. Even if we accept Euler's assertion that her conviction of identity theft was
based only on the use of Oman's debit card, we disagree with her argument that criminal
use of a financial card is a more specific offense. Thus, we reject Euler's claim that she
should have been convicted of criminal use of a financial card instead of identity theft.

Affirmed.