by Mark Wilson

The Oregon Court of Appeals held on March 13, 2019 that a prisoner was guilty of the crime of identity theft because he used the personal identification numbers (PINs) of two other prisoners to access a jail telephone.

Michael Steven Connolly was confined at the Multnomah County Detention Center (MCDC) in Portland, Oregon after violating a pretrial release agreement in a domestic violence case. The trial court prohibited him from contacting the alleged victim, identified only as K.

Nevertheless, while in jail, Connolly used the PINs of two other prisoners who were housed in his unit to call K five times. He used one prisoner’s PIN to make four calls and another PIN for one call. All of the calls were recorded.

Connolly was charged with five counts of identity theft for using the other prisoners’ PINs to place the phone calls.

An MCDC prisoner’s PIN is a combination of his jail identification number and date of birth. “A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person’s own use the personal identification of another person.” See: ORS 165.800(1). Oregon law requires a mandatory 13-month prison term for repeat identity theft convictions.

During Connolly’s bench trial, two jail guards testified for the prosecution about how prisoners are allowed to make phone calls. A guard identified Connolly’s voice in portions of each of the five calls that were played for the court. No voices were heard on any of the calls except Connolly and K’s.

Connolly moved for judgment of acquittal on all counts, arguing there was insufficient evidence about the way the calls were placed to find him guilty of identity theft. The trial court denied his motion and he was convicted on all counts.

The Oregon Court of Appeals affirmed, concluding “that the record contains sufficient evidence from which a rational trier of fact could find, by making reasonable inferences, that defendant ‘possessed’ or ‘obtained’ the other inmates’ PINs.”

The appellate court rejected Connolly’s argument that the prosecution offered insufficient evidence that he exercised control over the PINs because no evidence was introduced that he keyed in or knew the PINs or that the other prisoners informed him of their PINs.

“Defendant made five different telephone calls under PINs that were not his own. Defendant’s and K’s voices were the only voices on each call,” the appellate court wrote. “The jail rule is that only one inmate is allowed at each phone. From that evidence, viewed in the light most favorable to the state, a reasonable factfinder could infer that, in order to speak on the calls, defendant had to have exercised control over the other inmates’ PINs.”

The Court of Appeals explained that its analysis stopped “at the question of control,” because the parties presented only the narrow question of whether Connolly had “possessed” or “obtained” the other prisoners’ PINs, not whether he had ‘“appropriated’ the PINs” for his own use.

“In other words, because the state concedes that defendant did not ‘convert to his own use’ the PINs,” the Court held “it is immaterial to our inquiry in this case whether defendant possessed the PINs without the permission of the person they identified” (emphasis in original). See: State v. Connolly, 296 Ore.App. 492, 439 P.3d 481 (Ore. Ct. App. 2019), review denied. 

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