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People v. Malone

March 30, 2010

PEOPLE OF THE STATE OF MICHIGAN, PLAINTIFF-APPELLEE,
v.
PATRICIA ANN MALONE, DEFENDANT-APPELLANT.



Wayne Circuit Court LC No. 08-003077-FH.

Per curiam.

FOR PUBLICATION

Before: Davis, P. J., and Fort Hood and Servitto, JJ.

Defendant was convicted, following a jury trial, of three counts of stealing or retaining a financial transaction device without consent, MCL 750.157n(1). She was sentenced to one year of probation. Defendant appeals as of right, and we affirm.

Carla Sledge, Wayne County's chief financial officer, contacted the Wayne County Sheriff's Department after learning that several high-ranking employees were the victims of identity theft. Specifically, the credit card information for several employees was now being mailed to the same address. With regard to Sledge, an individual named Terry Lewis had attempted to change the mailing address and approved users for her credit card. Detective Eric Katner investigated the case and found that Terry Lewis had attempted to change the account information of other employees who worked in the financial offices of Wayne County government. When Lewis was located, he identified DeJuan Whitehead as the source of the personal identification information belonging to Wayne County employees. Whitehead reportedly obtained the information from a female employee who worked for Wayne County. Through the use of the "auto track" system, Detective Katner learned that, at one time, Whitehead lived with defendant. The auto track system connects individuals based on references, mailing addresses, credit applications, and other information.

As a result of the investigation, a search warrant was executed on defendant's residence in Oakland County. Under some clothing, a blue notebook was recovered from a dresser in defendant's bedroom. The blue notebook contained post-it notes with personal information belonging to four Wayne County employees. A dietician employed by the county identified a post-it note containing her social security number, driver's license number, date of birth, phone number, and bank account number. She had provided bank account information to allow her checks to be direct deposited in her bank account. The dietician did not know defendant and never authorized her to have this information. A former summer law clerk identified a post-it note containing her social security number, date of birth, and driver's license number. She did not know defendant and did not authorize her to have this information. An assistant prosecuting attorney identified a post-it note containing her social security number, driver's license number, date of birth, home address, telephone numbers, and bank account number. The bank account number was provided to the county to allow for direct deposits. The prosecutor did not know defendant and did not authorize defendant to have that information at her home.*fn1

Wayne County employees testified that a recently enacted federal law required that the government protect the social security numbers of employees. Thereafter, employees were given identification numbers when hired and were identified by this number. Additionally, payroll employees had no use for all of the information found on the post-it notes. Specifically, the payroll department did not maintain driver's license numbers. Human resources would maintain driver's license numbers. An employee's work password limited their access to information dealing with their department.*fn2 An employee could not log onto the system and obtain information retained for other departments.

Defendant testified that she was assigned to the management and budget office, but worked in payroll when necessary. She testified that she was not assigned a password to access the payroll division, rather payroll employee Alyse Cade would log onto the system under her identification and allow defendant to work under her password. Defendant testified that Cade had to leave early one day and needed to lock up all of the forms.*fn3 Therefore, defendant wrote all of the information that she may need for data entry on post-it notes and placed it in a notebook she used at work. Defendant forgot that she had this information and did not realize that she had taken it home. She learned about the post-it notes after the police executed a search warrant on her home when she was not present. Defendant testified that she never utilized the information and did not intend to use the information. She testified that she did not live extravagantly. However, on cross-examination, defendant admitted that she declared bankruptcy in 2005. Despite her testimony, defendant was convicted of three counts of stealing or retaining a financial transaction device without consent.

I. Sufficiency and Great Weight of the Evidence

Defendant contends that there was insufficient evidence to support the convictions for financial transaction device, MCL 750.157n(1), or in the alternative, that the verdict was against the great weight of the evidence. We disagree. MCL 750.157n(1) provides:

A person who steals, knowingly takes, or knowingly removes a financial transaction device from the person or possession of a deviceholder, or who knowingly retains, knowingly possesses, knowingly secretes, or knowingly uses a financial transaction device without the consent of the deviceholder, is guilty of a felony.

MCL 750.157m(f) defines "Financial transaction device" as any of the following:

(i) An electronic funds transfer card.

(ii) A credit card.

(iii) A debit ...


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