Washington Court of Appeals Reports


12-11-2006) STATE OF WASHINGTON, Respondent, v. QUINTON
SHUNTEL CRITTENDEN, Appellant. No. 57020-0-I. The Court
of Appeals of Washington, Division One. Filed: December 11,

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from Snohomish Superior Court. Docket
No: 05-1-00223-3. Judgment or order under review. Date
filed: 09/06/2005. Judge signing: Honorable Eric Z Judge

Counsel for Respondent(s), Lisa Danette Paul, Attorney at

Counsel for Appellant/Cross-Respondent, Washington
Appellate Project, Attorney at Law.

Elaine L Winters, Washington Appellate Project.

Quinton Shuntel Crittendon — Info Only (Appearing
Pro Se).

Authored by WILLIAM BAKER, Concurring: H JOSEPH COLEMAN,


Quinton Crittenden challenges his conviction for second
degree theft for possessing a stolen access device. He
argues that a credit card not yet activated by its rightful
owner does not fit the statutory definition of an access
device.We affirm, because the card was usable when last
possessed by the owner, and because it displayed an active
account number.

Andrea Nelson’s purse was stolen from her car. She called
the police, and closed her credit and checking accounts the
next day. One of the stolen cards was new, and had an
activation sticker attached.[fn1] It replaced a card that
Nelson was still using, but which was due to expire. Nelson
needed only to call the phone number on the sticker to
activate and use the new, unexpired card. The account number
printed on the card was an active and valid account number
at the time of the theft. One week later, police arrested
and searched three suspected car thieves, including
Crittenden. In Crittenden’s wallet, they found Nelson’s
card, with the activation sticker attached. Crittenden was
convicted of second degree possession of stolen property.

This is an issue of statutory interpretation, reviewed de
novo.[fn2] Washington statutes define the crime in
question: “A person is guilty of possessing stolen property
in the second degree if: . . . (c) He or she possesses a
stolen access device.”[fn3] An “access device” is:

[A]ny 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.[fn4]

Crittenden argues that there was insufficient evidence to
support every element of the crime charged, because the
State failed to prove that the inactive credit card was an
“access device.” One element of the definition is that the
card “can be used.”[fn5] The card is “valueless” until it
is activated, Crittenden maintains, and the State failed to
prove that Crittenden himself could have activated it.
Therefore the State did not prove he possessed a card that
“can be used.”

A similar argument was rejected by this court in State v.
Schloredt.[fn6] Schloredt possessed several stolen credit
cards, and was convicted of second degree possession of
stolen property.[fn7] He argued on appeal that the State
had failed to prove the cards had not been cancelled after
the theft, and therefore could “be used” as required by RCW
9A.56.010(1).[fn8] This court found the argument meritless,
noting that “can be used” should be interpreted from the
rightful owner’s point of view, not the unlawful

The clear legislative intent of the language “can be
used” in RCW 9A.56.010(3)[fn9] is a reference to the
status of the access device when last in possession of its
lawful owner. It does not reference the status of the
device when later located in unauthorized hands.[fn10]

We concluded that because the testimony suggested the cards
were valid when their owners last possessed them, the jury
was entitled to find that they were access devices.[fn11]

Unlike in Schloredt, the card in question had not yet been
activated, but the status of the card when last in the
hands of the true owner governs. If the card was usable
then, it constitutes an access device, whether or not the
unlawful possessor could use it. Reviewing courts should
not “give a hypertechnical reading of a statute so as to
yield an absurd result.”[fn12] To adopt Crittenden’s
argument would contravene the broad definition of “access
device” adopted by the Legislature in RCW 9A.56.010(1).

Here, the jury had sufficient evidence to conclude that the
card was an access device. The card was valid when Nelson
possessed it, and Nelson testified that she could have
activated it with a simple phone call. As the State points
out, Crittenden could have used other access devices
— such as a personal identification code or a Social
Security number — to activate the card. Whether
Crittenden actually possessed those additional access
devices is irrelevant: the statute requires only possession
of “means of account access that can be used alone or in
conjunction with another access device.”[fn13] It does not
require the accused to also possess the device that might
be used in conjunction.



[fn1] An activation sticker instructs the owner to call a
toll free number before attempting to use the card.

[fn2] In re Marriage of Wilson, 117 Wn. App. 40, 45, 68 P.3d
1121 (2003).

[fn3] RCW 9A.56.160(1)(c).

[fn4] RCW 9A.56.010(1).

[fn5] RCW 9A.56.010(1).

[fn6] 97 Wn. App. 789, 987 P.2d 647 (1999).

[fn7] Schloredt, 97 Wn. App. at 791-92.

[fn8] Schloredt, 97 Wn. App. at 793.

[fn9] This is the 1999 codification of what is currently
RCW 9A.56.010(1).

[fn10] Schloredt, 97 Wn. App. at 794.

[fn11] Schloredt, 97 Wn. App. at 794.

[fn12] Schloredt, 97 Wn. App. at 794.

[fn13] RCW 9A.56.010(1).