GA Code § 16-9-121 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 9 - Forgery and Fraudulent Practices|Article 8 - Identity Fraud|§ 16-9-121. Elements of Offense

  A person commits the offense of identity fraud when he or she willfully and fraudulently:   Without authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person;   Uses identifying information of an individual under 18 years old over whom he or she exercises custodial authority;   Uses or possesses with intent to fraudulently use identifying information concerning a deceased individual;   Creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a fictitious person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person; or   Without authorization or consent, creates, uses, or possesses with intent to fraudulently use any counterfeit or fictitious identifying information concerning a real person with intent to use such counterfeit or fictitious identification information for the purpose of committing or facilitating the commission of a crime or fraud on another person.     A person commits the offense of identity fraud by receipt of fraudulent identification information when he or she willingly accepts for identification purposes identifying information which he or she knows to be fraudulent, stolen, counterfeit, or fictitious. In any prosecution under this subsection it shall not be necessary to show a conviction of the principal thief, counterfeiter, or fraudulent user.   The offenses created by this Code section shall not merge with any other offense.   This Code section shall not apply to a person under the age of 21 who uses a fraudulent, counterfeit, or other false identification card for the purpose of obtaining entry into a business establishment or for purchasing items which he or she is not of legal age to purchase.     (Code 1981, §16-9-121, enacted by Ga. L. 1998, p. 865, § 2; Ga. L. 1999, p. 81, § 16; Ga. L. 2002, p. 551, § 2; Ga. L. 2007, p. 450, § 4/SB 236; Ga. L. 2010, p. 568, § 1/HB 1016.)   Editor's notes.   - Ga. L. 2007, p. 450, § 1/SB 236, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Personal Identity Protection Act.'"   Ga. L. 2007, p. 450, § 7/SB 236, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all offenses occurring on or after May 24, 2007.   JUDICIAL DECISIONS   Constitutionality.    - O.C.G.A. § 16-9-125 complies with Ga. Const. 1983, Art. VI, Sec. II, Para. VI; since the crime of identity fraud, as defined by O.C.G.A. §§ 16-9-121 and16-9-125 when read in para materia, takes place in the county where the victim and his or her personal information are located, there is no constitutional bar to trying the defendant in that county. State v. Mayze, 280 Ga. 5, 622 S.E.2d 836 (2005).    Trial court erred in sustaining defendant's demurrer to the identity fraud charges against him as O.C.G.A. § 16-9-125 did not violate Ga. Const. 1983, Art. VI, Sec. II, Para. VI, since identity fraud was a continuing offense, which extended into the county where the victim resided or was located. State v. Mayze, 280 Ga. 5, 622 S.E.2d 836 (2005).    O.C.G.A. § 16-9-121 expressly prohibited the improper access of another's account at a financial institution such that the defendant was placed on notice that the use of a victim's social security number to obtain a job and thus access the victim's Internal Revenue Service account was illegal; thus, § 16-9-121 was not unconstitutionally vague as applied to the defendant. Hernandez v. State, 281 Ga. 559, 639 S.E.2d 473 (2007).   Failure to prove venue.    - Defendant's conviction of identity fraud, O.C.G.A. § 16-9-121, was reversed because the state failed to establish the victim's place of residence or the site where a credit card was stolen, and thus venue was not properly established as required by O.C.G.A. § 16-9-125. Middlebrooks v. State, 277 Ga. App. 551, 627 S.E.2d 154 (2006).   Four year statute of limitations.    - Four-year limitation period applied to the allegations of theft and identify fraud. State v. Green, 350 Ga. App. 238, 828 S.E.2d 635 (2019).   Altering Facebook page sufficient for conviction.    - Evidence that the defendant used the personal information of the missing child, which the defendant obtained from the child's mother, to alter the child's Facebook page by posting "wanted posters" and to lock the child out of the account by changing the password was sufficient to support the defendant's conviction for identity fraud. Libri v. State, 346 Ga. App. 420, 816 S.E.2d 417 (2018).   Evidence sufficient for conviction.    - Evidence that the defendant, on two different dates, approached cashiers at the same store, gave the cashiers a credit card that was falsified in that the credit card had the account numbers from another person's account superimposed over the credit card's original numbers, that the cashiers punched in the card's numbers manually when the cashiers could not get the card to scan properly, and that the defendant was able to obtain store merchandise because the sales were then approved was sufficient to support the defendant's conviction for financial identity fraud. Epps v. State, 262 Ga. App. 113, 584 S.E.2d 701 (2003).    Evidence was sufficient to convict a defendant of identity fraud because for purposes of O.C.G.A. § 16-9-121, the United States Treasury, the nation's foremost banking institution, fell within the ambit of O.C.G.A. § 16-9-120(5)(F); thus, when the defendant used a victim's social security number to obtain a job, the defendant accessed the victim's Internal Revenue Account, and thereby the United States Treasury, which was an illegal action under § 16-9-121. Hernandez v. State, 281 Ga. 559, 639 S.E.2d 473 (2007).    Defendant's identity fraud conviction was upheld on appeal as: (1) a jury charge under O.C.G.A. § 16-9-120(2) was not supported by the evidence; (2) an additional charge on the dictionary definition of fraud as a false representation of a matter of fact did not result in any prejudice; (3) the indictment was sufficient and plainly tracked the language of the identity fraud statute, laid out the elements of the offense, and allowed the defendant to prepare a defense; (4) the trial court's imposition of the maximum 10-year sentence was not unlawful; and (5) nothing in the record supported the defendant's claim that the state engaged in illegal plea bargaining tactics. Lee v. State, 283 Ga. App. 826, 642 S.E.2d 876 (2007).    Defendant's identity fraud conviction was upheld on appeal because the state presented sufficient evidence that the defendant attempted to open a bank account using the identity of another person, recording that person's social security number in doing so, with the intent to obtain that person's resources in one way or another. Vicks v. State, 289 Ga. App. 495, 657 S.E.2d 876 (2008).    Trial court properly denied a defendant's motion for a directed verdict of acquittal with regard to the defendant's conviction for identity fraud as sufficient evidence supported the conviction based on the state establishing that the defendant used the victim's personal information and credit to purchase a car by having another person use the victim's personal information and represent themselves as the defendant's relative and serve as the defendant's co-signer for the vehicle. Powell v. State, 293 Ga. App. 442, 667 S.E.2d 213 (2008).    Evidence that a niece stole, forged, and cashed over 20 checks totaling $425,000 from the law firm where she worked with the assistance of her aunt and six other women was sufficient to find the niece and aunt guilty of 20 counts of identity fraud in violation of O.C.G.A. § 16-9-121. Under O.C.G.A. § 16-9-125, venue was proper in the county where the law firm's office was located. McKenzie v. State, 300 Ga. App. 469, 685 S.E.2d 333 (2009).    Defendant was properly convicted of financial identity fraud in violation of O.C.G.A. § 16-9-120 because the circumstantial evidence was sufficient to authorize a jury to find that the defendant, either directly or as a party to a crime under O.C.G.A. § 16-2-20, committed financial identity fraud by accessing the resources of the victims through the use of identifying information without the authorization or permission of the victims, with the intent to unlawfully appropriate the victim's resources to the defendant's own use; the federal tax identification number of either victim was required as part of the credit card application to obtain temporary charge passes, which the defendant used to purchase thousands of dollars worth of merchandise in a short period of time. Zachery v. State, 312 Ga. App. 418, 718 S.E.2d 332 (2011).    Evidence that the defendant, as a police officer, had access to a nationwide database that included people's personal information such as social security numbers; that the taxpayer identification number that the defendant provided to the cellular telephone company belonged to a Pennsylvania woman, who had not given the defendant permission to use it; and that each of the defendant's businesses were registered with the state under federal identification numbers that did not match the disputed social security number was sufficient to support the defendant's conviction for financial identity fraud. Gaskins v. State, 318 Ga. App. 8, 733 S.E.2d 338 (2012).    Evidence was sufficient to support the codefendant's conviction on 12 counts of identity fraud, in violation of O.C.G.A. § 16-9-121(a)(1), based on the codefendant's admission that the codefendant provided the identifying information of several current and former tenants of the apartment complex the codefendant worked at to a third party and, even though the codefendant did not know the identity of the other persons involved in the scheme nor the details of the operation, the codefendant was concerned in the commission of the crime and intentionally aided or abetted in the commission of the crime by providing the information. Manhertz v. State, 317 Ga. App. 856, 734 S.E.2d 406 (2012).    Testimony from the victims that the account numbers used belonged to the victims and the victims did not give the defendant, or anyone else, permission to use or possess those numbers was sufficient to support the defendant's conviction for identity fraud. Smith v. State, 322 Ga. App. 433, 745 S.E.2d 683 (2013).    Evidence was sufficient to convict the defendant as a party to the crimes of financial transaction card theft and identity fraud because the defendant obtained a financial transaction card from a victim without the victim's consent as the state introduced evidence that the individual that the defendant gave transaction cards to used both transaction cards, and it introduced the receipts evidencing the use and attempted use of the cards; and the defendant, without authorization, possessed a victim's financial transaction card information with the intent to use the card fraudulently. Daniel v. State, 342 Ga. App. 448, 803 S.E.2d 603 (2017).    Evidence was sufficient to convict the defendant of identity fraud, financial-transaction-card fraud, and exploitation of an elder person and the defendant's convictions for those predicate acts was sufficient to convict the defendant of violating the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., because the defendant participated in a scheme, in which the defendant and the defendant's cohorts obtained elderly victims' credit card, banking, and other financial and personal information by telephoning the victims and informing the victims that the victims' power would be cut off if the victims did not immediately provide such information; and the defendant used the cards or the account numbers to make purchases and to obtain cash advances. Roberts v. State, 344 Ga. App. 324, 810 S.E.2d 169 (2018).    Evidence that credit cards opened in the victims' names were used to purchase items found at the defendant's residence, documents including the victims' names were found there, and computers in the residence were used to search ways to get gift cards instantly and easy ways to get credit cards was sufficient to support identity fraud convictions. Porter v. State, 358 Ga. App. 442, 855 S.E.2d 657 (2021).   Evidence insufficient for conviction.    - Because the state's evidence failed to demonstrate that the defendant accessed the resources of another by using identifying information to procure a cell phone, and a service contract for the cell phone, and failed to establish that the defendant either knew that a store clerk: (1) could not issue a phone without accessing the resources of a specific individual; (2) would need to use the identifying information of that individual to access such resources; or (3) in fact used such identifying information to access the resources of another for the purpose of providing the defendant with a cell phone, the evidence was insufficient to sustain the defendant's conviction of financial identity fraud. Jones v. State, 285 Ga. App. 822, 648 S.E.2d 133 (2007).    Evidence was not sufficient to support defendant's conviction for identity fraud, because the applicable version O.C.G.A. § 16-9-121(a)(1), did not make fraudulent use of the identifying information of a corporation punishable as identity fraud, but only protected an individual person's information. Martinez v. State, 325 Ga. App. 267, 750 S.E.2d 504 (2013).   Successive prosecution for the same conduct.    - Trial court correctly rejected the defendant's plea in bar and denied defendant's motion in autrefois convict because the defendant did not show that defendant's prosecution for two counts of financial identity fraud under O.C.G.A. § 16-9-121 was barred as an impermissible successive prosecution for the same conduct in another county by defendant's earlier conviction in that county of 33 counts of financial identity fraud. Summers v. State, 263 Ga. App. 338, 587 S.E.2d 768 (2003).   Hearsay testimony was harmless error.    - With regard to the charge of first-degree forgery and charge of identity fraud involving checks taken from the company checkbook of defendant's employer, the deputy's improper hearsay testimony that a driver's license number written on the checks matched the defendant's driver's license number was harmless error given the overwhelming evidence of guilt, including all of the stolen checks having been made payable to the defendant by someone other than the employer, the defendant's endorsement appearing on all of the checks, and the defendant's image captured on a bank security camera cashing one check. Archer v. State, 291 Ga. App. 175, 661 S.E.2d 230 (2008).   Preemption.    - O.C.G.A. § 16-9-21 is not preempted by the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324c. Hernandez v. State, 281 Ga. 559, 639 S.E.2d 473 (2007).   Sentence upheld.    - Defendant's complaint on appeal that a 10-year sentence was unlawful was specious as the charge in the indictment was not attempted identity fraud under O.C.G.A. § 16-9-122, but was for the completed offense of identity fraud under O.C.G.A. § 16-9-121. Lee v. State, 283 Ga. App. 826, 642 S.E.2d 876 (2007).    Cited in Davis v. State, 319 Ga. App. 501, 736 S.E.2d 160 (2012).   RESEARCH REFERENCES   ALR.   - Validity, construction, and application of state statutes relating to offense of identity theft, 125 A.L.R.5th 537.   Criminal liability for unauthorized use of credit card under state credit card statutes, 68 A.L.R.6th 527.