June 18, 2019

Colorado Court of Appeals: Unauthorized Use and Identity Theft Statutes Not Mutually Exclusive

The Colorado Court of Appeals issued its opinion in People v. Jauch on Thursday, August 29, 2013.

Identity Theft—Unauthorized Use of a Financial Transaction Device—Equal Protection—Motion to Suppress—Search Warrant—Plain View Doctrine.

Defendant Kathy Lynn Jauch appealed the judgment of conviction entered on jury verdicts finding her guilty of theft, two counts of identity theft, and two counts of unauthorized use of a financial transaction device. The Court of Appeals affirmed.

The victim’s backpack was stolen from the parking lot in front of his workplace. It contained, among other things, a computer and a credit card. The credit card was used at a gas station shortly after it was stolen, and a woman who police later identified as Jauch was observed wearing a turquoise shirt with ruffles and attempting to use the credit card to order food from a restaurant.

On appeal, Jauch contended that the identity theft statute imposes a harsher penalty for the same conduct proscribed by the unauthorized use of a financial transaction device statute, and therefore, her identity theft conviction violates her equal protection rights. The two statutes, however, do not prohibit identical conduct. To prove identity theft, the prosecution must show that a defendant knowingly used the identifying information or a financial device belonging to another person or entity. By contrast, the unauthorized use statute requires no similar showing. Therefore, Jauch’s equal protection rights were not violated.

Jauch also contended that the trial court erred in denying her motion to suppress a turquoise shirt found during the search of her home. Because the officers had a lawful right of access to Jauch’s home through a valid search warrant and based on her fellow officer’s reasonable belief that the shirt was connected to the criminal activity under investigation, the officers had a lawful right of access to the turquoise shirt, which was found in Jauch’s home. Accordingly, the trial court did not err in admitting the turquoise shirt under the plain view exception.

Summary and full case available here.