State Of Washington v. Angel Rose Marie Nelson

Filed
Washington State
Court of Appeals
Division Two

July 26, 2016

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 47236-8-II

Appellant,

v.

ANGEL ROSE MARIE NELSON, PUBLISHED OPINION

Respondent.

WORSWICK, J. — In this case involving the interpretation of statutes prohibiting the theft

of access devices, the State appeals the dismissal of its case against Angel Rose Marie Nelson.

After Nelson stole gift cards from her employer, the State charged her with second degree theft of

an access device and second degree possession of a stolen access device. The superior court

granted Nelson’s State v. Knapstad1 motion, ruling that the gift cards she stole did not meet the

definition of “access devices.” Because the State presented prima facie evidence that Nelson stole

access devices and possessed stolen access devices, we reverse the dismissal of her charges. We

remand to the superior court for further proceedings consistent with this opinion.

1
107 Wn.2d 346, 357, 729 P.2d 48 (1986); see also CrR 8.3(c).
No. 47236-8-II

FACTS

Nelson was a Kmart employee. A surveillance video showed that Nelson left her cash

register three times to retrieve an empty gift card, then activated each card by adding funds to it

without adding cash to the cash register. She activated an Amazon.com gift card for $100, a

MasterCard gift card for roughly $205, and a JoAnn’s Fabric & Craft Store gift card for $25. She

later used at least two of these cards.

The State charged Nelson with one count of second degree theft of an access device 2 and

one count of second degree possession of a stolen access device.3 Nelson moved to dismiss the

charges under CrR 8.3(c) and Knapstad. She argued that the term “access device” could not

include gift cards. The superior court granted Nelson’s motion, ruling that, as a matter of law, a

gift card is not an access device. The State appeals.

ANALYSIS

The State argues that the superior court erred by dismissing Nelson’s case because a gift

card can be an access device as defined by RCW 9A.56.010(1). Nelson argues that a gift card

cannot be an access device because it does not access an account. She also argues that the State

failed to present evidence that the gift cards Nelson stole were access devices. We agree with the

State.

2
RCW 9A.56.040(1)(d). This statute prohibits committing “theft of . . . [a]n access device.”
3
RCW 9A.56.160(1)(c). This statute prohibits possessing “a stolen access device.”

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I. STANDARD OF REVIEW

A superior court may dismiss a criminal charge under Knapstad if the State’s pleadings

and evidence fail to establish a prima facie showing of all elements of the charged crime. State v.

Sullivan, 143 Wn.2d 162, 171 n.32, 19 P.3d 1012 (2001). To obtain dismissal under Knapstad,

the defendant must show that there are no material facts in dispute and that the undisputed facts

do not establish a prima facie case of guilt. State v. Reeves, 184 Wn. App. 154, 158, 336 P.3d 105

(2014). We review the superior court’s dismissal of a criminal charge under Knapstad de novo,

considering all facts and reasonable inferences in the light most favorable to the State. Reeves,

184 Wn. App. at 158.

We also interpret statutes de novo. Reeves, 184 Wn. App. at 158. Thus, we first determine

whether gift cards can constitute “access devices” under the statute. Then, we consider whether

the State presented sufficient evidence in this case. We hold that gift cards can constitute “access

devices” and that the State presented sufficient evidence to defeat Nelson’s Knapstad motion.

II. STATUTORY INTERPRETATION

This case presents the issue of first impression in Washington of whether a gift card can

constitute an “access device.” Specifically, it requires us to decide whether gift cards are a “means

of account access” as required by RCW 9A.56.010(1). We agree with the State that a gift card can

be an access device because it can be a means of account access.

A. Statutory Interpretation Principles

When we interpret a statute, our fundamental objective is to determine and give effect to

the legislature’s intent. State v. Larson, 184 Wn.2d 843, 848, 365 P.3d 740 (2015). We look first

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to the statute’s plain language to determine this intent. Larson, 184 Wn.2d at 848. Where the

statute’s meaning is plain on its face, we give effect to the plain meaning as an expression of

legislative intent. Larson, 184 Wn.2d at 848. We do not consider other evidence about the

legislature’s intent, such as legislative history, where the plain language of the statute is

unambiguous. State v. Graham, 181 Wn.2d 878, 882, 337 P.3d 319 (2014). When a statute uses

a nontechnical term without defining it, we give the term its plain and ordinary meaning, as defined

in a standard dictionary. State v. Sullivan, 143 Wn.2d 162, 175, 19 P.3d 1012 (2001). If the

statute’s plain meaning is unambiguous, our inquiry is ended. Graham, 181 Wn.2d at 882.

We read a statute to give effect to all the language in the statute, without rendering any

portion meaningless or superfluous. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). We

do not add words to an unambiguous statute. Larson, 184 Wn.2d at 851. We recognize that the

legislature intends to use the words it uses and intends not to use words it does not use. See Larson,

184 Wn.2d at 851-52. We avoid reading a statute in a way that produces absurd results. Tingey

v. Haisch, 159 Wn.2d 652, 663-64, 152 P.3d 1020 (2007).

B. Access Device Must Be Means of Account Access

Nelson and the State disagree about the definition of “access device.” RCW 9A.56.010(1)

defines “access device” as follows:

“Access device” means any card, plate, code, account number, or other means of
account access that can be used alone or in conjunction with another access device
to obtain money, goods, services, or anything else of value, or that can be used to
initiate a transfer of funds, other than a transfer originated solely by paper
instrument.

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Nelson argues that any “access device” must be a “means of account access.” Br. of Resp’t at 7.

The State appears to argue that the statute does not require an access device to be a means of

account access so long as the device meets the other prongs of the definition.4 On this point, we

agree with Nelson.

The plain meaning of the statute requires all access devices to be means of account access.

The word “other” does not modify only the phrase “account number.” The comma before the

qualifying phrase “or other means of account access” is evidence that this phrase modifies each

item in the list “card, plate, code, account number.” See State v. Bunker, 169 Wn.2d 571, 578, 238

P.3d 487 (2010). The phrase “other means of account access” clearly modifies “card, plate, code,

[and] account number,” such that each of these devices must be a means of account access to fall

under the statute.

C. Plain Meaning of “Account” is Broad

Having held that the statute requires an access device to be a means of account access, we

turn to considering whether a gift card can be such a means. Nelson contends that it cannot.

Instead, she argues that the “account” to which the statute refers must be a credit or checking

4
The State cites the canon of ejusdem generis to argue that an access device need not be a means
of account access because “other means of account access” refers only to those things that are
“similar to cards, plates, codes, or account numbers.” Reply Br. of Appellant at 2. Ejusdem
generis is the principle that a general term (here, “other means of account access,”) when used in
conjunction with specific terms (here, “cards, plates, codes or account numbers,”) incorporates
only those things similar to or comparable to the specific terms. Larson, 184 Wn.2d at 849. This
canon would be relevant to determine what types of physical devices qualified as “other means of
account access,” but it is not relevant to the question presented here: whether all access devices
must be means of account access.

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account. We hold that gift cards can access an account because the plain meaning of the word

“account” is broad enough to cover a gift card’s balance.

Chapter 9A.56 RCW does not define “account.” Nor have Washington cases interpreted

the meaning of “account” for purposes of RCW 9A.56.010(1). Webster’s New International

Dictionary defines “account” in relevant part as “a record of debit and credit entries

chronologically posted to a ledger page from books of original entry to cover transactions

involving a particular item,” “a statement of transactions during a fiscal period showing the

resulting balance,” and as “a sum of money or its equivalent deposited in the common cash of a

bank and subject to withdrawal at the option of the depositor.” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 12-13 (2002). Under this dictionary definition, the plain meaning

of “account” broadly includes records of a business relationship involving ongoing credits and

debits or obligations. And while it may refer to a customer’s balance in the bank, this is only one

of several meanings.

Turning to the question of whether a gift card can access an account, Merriam-Webster’s

Unabridged Dictionary defines a gift card as “a card entitling the recipient to receive goods or

services of a specified value from the issuer.” MERRIAM-WEBSTER UNABRIDGED DICTIONARY,

http://www.Merriam-Webster.com/dictionary/gift%20card (last visited July 5, 2016). Under this

definition, a gift card can access an account as described above. It is a card that can be used to

receive goods or services of a specified value. A gift card thus shows a resulting balance. It is a

device that can be used to access a record of a business relationship with outstanding credits, debits,

or obligations, and a sum of money—that is, an account.

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Our holding that a gift card can be an access device is in accord with federal case law.

Although we are not controlled by federal authority in interpreting state statutes, it can be

persuasive where the texts of both federal and state laws are similar. Bravo v. Dolsen Cos., 125

Wn.2d 745, 755, 888 P.2d 147 (1995). Under a federal statute nearly identical to our own, the

Ninth Circuit determined whether a gift card was an “access device.”5 United States v. Truong,

587 F.3d 1049, 1051-52 (9th Cir. 2009).

In Truong, as here, the defendant argued that gift cards could not access an account, and

thus did not fall under the statute. 587 F.3d at 1051. The court applied a definition of “account”

from federal case law: “‘a contractual relationship that makes possible the provision of goods,

services, or money based on payment, or the expectation of payment, at some later point in time,

as described by the entry of credits and debits in a formal record.’” Truong, 587 F.3d at 1052

(quoting United States v. Bailey, 41 F.3d 413, 417 (9th Cir. 1994)). The court then reasoned that

the purchaser of a gift card pays the retailer an amount of money that is “credited to the card and

may be drawn against,” which transaction creates a contractual relationship. Truong, 587 F.3d at

1052. “Each purchase made with the card is a debit from the balance initially associated with the

card, and both the customer and the retailer can keep track of the balance on the card.” Truong,

587 F.3d at 1052. Truong is highly instructive in holding that a gift card’s balance is an “account,”

and therefore, the gift card is an access device.

5
18 U.S.C. § 1029(e)(1) and RCW 9A.56.010(1) are identical in the portions relevant to this case.
Both read that an access device “means any card, plate, code, account number . . . or other means
of account access.” Compare 18 U.S.C. § 1029(e)(1) with RCW 9A.56.010(1).

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Other federal courts are in accord with Truong’s holding. See, e.g., United States v. Lyles,

506 F. App’x 440, 442 (6th Cir. 2012); United States v. Henderson, 439 F. App’x 56, 60 (2nd Cir.

2011); United States v. Conner, 537 F.3d 480, 485 (5th Cir. 2008). Likewise, other states have

interpreted statutes similar to RCW 9A.56.010(1) to hold that a gift card is an access device. See

State v. Johnson, 2007-1397, p. 7 (La. App. 4 Cir. 6/4/08); 985 So. 2d 1259, 1262 (construing

Louisiana’s definition of “access device,” which requires the device to be a “means of account

access” to encompass gift cards).

Nelson argues that the word “account” cannot refer to all types of accounts and must

instead refer only to a bank account, credit account, checking account, or the like. She contrasts

these financial accounts with the myriad other accounts that she insists the legislature cannot have

been referring to, such as a library account, gym membership, or an online video streaming service

membership. She supports this argument with citations to legislative history, which suggest that

the legislature contemplated only bank accounts and similar financial accounts when writing this

statute. But we do not consider legislative history when the plain language of the statute is

unambiguous. Graham, 181 Wn.2d at 882.

Nor do we add words to an unambiguous statute. Larson, 184 Wn.2d at 851-52. Rather

than writing that an access device must be a means of bank account access, the legislature wrote

only that it must be a means of account access. To interpret the statute otherwise would be to add

language where the legislature chose not to.

Nelson also appears to argue that an access device cannot access an “account” if the

account consists only of a fixed amount of funds. We reject this argument because nothing in the

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statute limits the definition of “account” to accounts with unlimited funds and because this

argument leads to absurd results. For example, many companies allow customers to add funds to

the card’s balance. They are similar to “prepaid” credit cards for which the customer deposits

funds with the company before using the card. Nelson’s argument would have the definition of

“account” turn on whether the account holder has added additional funds to the balance in the

account. The plain meaning of the statute includes all access devices regardless of whether the

account contains a fixed amount of funds, and we do not second-guess the legislature’s decision.

Nelson further argues that the legislature has defined “access device” in a different title of

the RCW in a way that excludes gift cards. She refers to chapter 19.174 RCW, which governs

automated teller machines, to argue that under RCW 19.174.020, an access device is “‘a card,

code, or other means of access to a consumer’s account . . . that may be used by the consumer to

initiate electronic fund transfers.’” Br. of Appellant at 12 (quoting 12 C.F.R. § 205.2(a)(1),

incorporated by reference into RCW 19.174.020). Federal regulations, which the Washington

statute incorporates by reference, define “account” to include only financial institutions’ accounts.

12 C.F.R. § 205.2(b)(1).

But we neither add words to nor subtract words from an unambiguous statute. Larson, 184

Wn.2d at 851-52; J.P., 149 Wn.2d at 450. To hold that a definition of “access device” in a different

title of the RCW somehow alters the plain language of the definition of “access device” in chapter

9A.56 RCW would be contrary to the rules of statutory interpretation. We presume that the

legislature is aware of other statutory provisions. In re Det. of Boynton, 152 Wn. App. 442, 453,

216 P.3d 1089 (2009). Notwithstanding the definition of “access device” in chapter 19.174 RCW,

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the legislature chose to define it separately in chapter 9A.56 RCW, and we must give effect to the

plain meaning of that enactment.

In conclusion, we hold that the definition of “access device” can include gift cards so long

as they are a means of account access. The word “account” is not limited to a bank account because

the plain language of the statute includes no such limitation. Instead, the plain meaning of

“account” includes records of debit and credit entries or the balance they represent regardless of

whether a bank is involved. Put simply, a device, including a gift card, can be an access device

when it is a means of account access, so long as it meets the other requirements of the statute. The

funds to which a gift card provides access can be an account under this statute.

D. Sufficient Evidence To Defeat Knapstad Motion

Finally, we consider whether the State provided sufficient evidence to defeat Nelson’s

Knapstad motion. Nelson argues that the State did not present sufficient facts to show that the gift

cards Nelson stole were access devices. The State argues that sufficient evidence exists to defeat

the Knapstad motion because Nelson used the gift cards to purchase items. We agree with the

State.

Both theft of an access device and possession of a stolen access device require proof that

the stolen item is an access device. RCW 9A.56.040(1)(d), .160(1)(c). As discussed above, an

item must access an account to be an access device. The State presented evidence that Nelson

activated the gift cards, placed funds on them, and then “used” at least two of them. Clerk’s Papers

at 4, 9. This evidence, viewed in the light most favorable to the State, shows that Nelson used the

funds she placed on the gift cards to access funds available with the third party vendors—in other

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words, that she accessed an account with those vendors. After she activated the gift cards at Kmart,

she then used the cards to buy goods that the vendors made available to her because the gift card

was a record of credits available to the holder of the gift card.

This evidence is sufficient to create a prima facie showing that Nelson’s gift cards were

access devices. Therefore, the evidence creates a prima facie showing of guilt when it is viewed

in a light most favorable to the State. We reverse the dismissal of Nelson’s case and remand to

the superior court for further proceedings consistent with this opinion.

Worswick, J.
We concur:

Bjorgen, C.J.

Lee, J.

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