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2018 Georgia Code 16-9-125 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 16-9-125 Case Law from Google Scholar Amendments to OCGA 16-9-125

TITLE 16 CRIMES AND OFFENSES

Section 9. Forgery and Fraudulent Practices, 16-9-1 through 16-9-157.

ARTICLE 8 IDENTITY FRAUD

16-9-125. County of offense.

The General Assembly finds that identity fraud involves the use of identifying information which is uniquely personal to the consumer or business victim of that identity fraud and which information is considered to be in the lawful possession of the consumer or business victim wherever the consumer or business victim currently resides or is found. Accordingly, the fraudulent use of that information involves the fraudulent use of information that is, for the purposes of this article, found within the county where the consumer or business victim of the identity fraud resides or is found. Accordingly, in a proceeding under this article, the crime will be considered to have been committed in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county.

(Code 1981, §16-9-124, enacted by Ga. L. 1998, p. 865, § 2; Code 1981, §16-9-125, as redesignated by Ga. L. 2002, p. 551, § 2.)

Editor's notes.

- Ga. L. 2002, p. 551, § 2, effective May 2, 2002, redesignated the former provisions of this Code section as Code Section 16-9-126.

JUDICIAL DECISIONS

Constitutionality.

- Trial court erred in sustaining the defendant's demurrer to the identity fraud charges against the defendant 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).

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).

Successive prosecution for financial identity fraud in two counties.

- 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).

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).

Venue proper where victim's office located.

- 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).

Venue established.

- State established venue under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. §§ 16-9-125 and17-2-2(a) because a reasonable trier of fact was authorized to find beyond a reasonable doubt that the victims resided or were found in Forsyth County at the time the offense of financial identity fraud was committed as alleged in the indictment; the victim testified that the victim had been a resident of Forsyth County for twelve years and that the victim's company had been located there for seventeen years. Zachery v. State, 312 Ga. App. 418, 718 S.E.2d 332 (2011).

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 state introducing evidence that the victims' identifying information was found in the Henry County, Georgia, residence of the defendant, and twelve of the victims testified at trial that the defendants did not authorize any such use of the defendant's identifying information, and the codefendant admitted in the codefendant's statement that the codefendant was a party to the crime in that the codefendant provided the victims' identifying information to an unauthorized third party, thus, the evidence was sufficient to allow the jury to find that at least part of the identity fraud took place in Henry County, regardless of whether the codefendant was ever actually in that county. Manhertz v. State, 317 Ga. App. 856, 734 S.E.2d 406 (2012).

Cases Citing O.C.G.A. § 16-9-125

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State v. Mayze, 622 S.E.2d 836 (Ga. 2005).

Cited 21 times | Published | Supreme Court of Georgia | Nov 21, 2005 | 280 Ga. 5, 2005 Fulton County D. Rep. 3521

...Using information contained in the wallet, Willie Mayze allegedly accessed Mr. Lloyd's credit history in DeKalb County. Eventually, Mayze was arrested and charged in Clayton County with two counts of identity fraud in violation of OCGA § 16-9-121. In accordance with OCGA § 16-9-125, venue of the prosecution was predicated on Mr. Lloyd's residence in Clayton County. Mayze filed a demurrer to the indictment, asserting that OCGA § 16-9-125 was unconstitutional insofar as it authorized venue of an identity fraud prosecution in the county where the victim "resides or is found, ......
...iate. "[O]ther relevant statutory language" must be considered in determining the scope of the prohibition imposed by OCGA § 16-9-121 and, consequently, the location of permissible venues for a prosecution under that statute. OCGA §§ 16-9-121 and 16-9-125 are in pari materia and must, therefore, be construed together. See generally State v. Griffin, 268 Ga. 540, 542, 491 S.E.2d 340 (1997). Looking beyond the verbs contained in OCGA § 16-9-121 and giving consideration to the additional language contained in OCGA § 16-9-125, the General Assembly has clearly defined the crime of identity fraud as a continuing offense which extends into the county where the victim resides or is located. OCGA § 16-9-125 expressly states: The General Assembly finds that identity fraud involves the use of identifying information which is uniquely personal to the consumer or business victim of that identity fraud and which information is considered to be in...
...21 by engaging in an unauthorized access to the records, he thereby engages in the fraudulent use of information located in the county where the victim resides or is found. Since the crime of identity fraud, as thus defined by OCGA §§ 16-9-121 and 16-9-125 when read in pari 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....
...nstitute a limit on legislative authority to define the crime of "identity fraud" so as to provide that an unauthorized use of information can be prosecuted in the county of residence of the victim whose privacy was invaded. The conclusion that OCGA § 16-9-125 passes constitutional muster is further supported by a recent Alabama decision....
...[o]btains, records, or accesses identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of the victim. Ala.Code § 13A-8-192 (a)(1). In accordance with a legislative enactment that is analogous to our OCGA § 16-9-125, venue of a prosecution for violating the Alabama identity theft statute is in any county in which any part of the crime took place, regardless of whether the defendant was ever actually present in that county, or in the county of residen...
...lving this appeal, we have not erroneously limited our consideration to OCGA § 16-9-121, but we have instead properly taken into account that statute and all other provisions which are in pari materia. What is overlooked by the dissent is that OCGA § 16-9-125 clearly provides that an element of the offense is the unauthorized use of personal information, which element occurs in the county where the victim lives. The fact that the language denoting identity fraud as an offense involving the victim's possessory interest in his or her own personal information appears in OCGA § 16-9-125, rather than OCGA § 16-9-121, does not have any constitutional significance....
...embly to create crimes, and substitute the judiciary's determination as to proper venue for the legislative decision. The principle of strict construction cannot be used as a tool to achieve an unconstitutional result. Accordingly, we hold that OCGA § 16-9-125 complies with the constitutional mandate that the venue of a criminal case be set in the county where the crime was committed....
...le I might prefer the majority's outcome, I must strongly dissent to it because it is derived by unconstitutional means. 1. This matter requires us to determine whether the statutory venue provisions set forth for the crime of identity fraud in OCGA § 16-9-125 satisfy the mandate of the Georgia Constitution of 1983 that a criminal case must be tried in the county where the crime was committed. OCGA § 16-9-125 as it is currently drafted is unconstitutional to the limited extent that it provides that venue for identity fraud is proper in the county where the victim resides or is found, irrespective of whether the defendant obtains or records ide...
...he benefit of the defendant, and "[v]enue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt." Graves v. State, 269 Ga. 772, 773(1), 504 S.E.2d 679 (1998). Addressing venue for the crime of identity fraud, OCGA § 16-9-125 states, in turn: The General Assembly finds that identity fraud involves the use of identifying information which is uniquely personal to the consumer or business victim of that identity fraud and which information is considered to be in...
...nformation was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county. Given this definition, it must then be determined whether OCGA § 16-9-125 satisfies the mandate of Art....
...s of that person or any other person; or (2) Accesses or attempts to access the resources of a person through the use of identifying information. OCGA § 16-9-121. Each element of identity fraud will have some specific situs. With this in mind, OCGA § 16-9-125 properly places venue "in any county in which any other part of the offense took place." In other words, this portion of the statute may appropriately be read to indicate that, due to identity fraud's nature as an ongoing crime, venue wou...
...423, 577 S.E.2d 551 (2003) (regarding venue for ongoing crime of medicaid fraud); Callaway v. State, 247 Ga.App. 310, 315(2), 542 S.E.2d 596 (2000) (regarding venue for insurance fraud). In this way, venue is placed in any county where any portion of the crime has been committed. To the extent, however, that OCGA § 16-9-125 places venue in the county where the victim resides or is found, irrespective of whether the defendant obtains or records identifying information of the victim or accesses or attempts to access the resources of the victim in the county of...
...ndate that a crime must be tried in the county where it is committed. As the specific facts of this case show, the crime of identity fraud will not always occur in the county of the victim's residence, as contemplated by the current language of OCGA § 16-9-125....
...tain or record identifying information of the victim or access or attempt to access the resources of the victim there. Accordingly, the trial court's ruling on this issue should be affirmed. 2. Both the State and the majority argue that, unless OCGA § 16-9-125 is upheld, Georgia citizens will be vulnerable to identity fraud committed by individuals who may never come to this state....
...Therefore, as discussed above, this Court, under the proper constitutional analysis, has no discretion in its determination that, to the extent that it places venue in the county of the victim's residence irrespective of whether any element of the crime is committed there, OCGA § 16-9-125 is unconstitutional....
...where the acts making up the offense took place is not only reasonable, but required. This remains true even though it requires this Court to consider the meaning of verbs. Wholly fictional concepts of the situs of "identifying information" in OCGA § 16-9-125 cannot heal this statute's constitutional breach, and the majority's characterizations of the matter before us in terms of the "verb test" simply does not speak to this fundamental problem....
...To the contrary, in examining the venue provision for identity fraud, it is this Court's solemn duty to safeguard this state's constitutional mandate that all crimes shall be tried in the county where the crime is committed. It is evident from the General Assembly's language in OCGA § 16-9-125 that it desired to place venue in the county of the victim's residence because that is the place where the major impact of the crime will occur....
...The General Assembly, however, failed to define the crime of identity fraud in OCGA § 16-9-121 in such a way that this impact, itself, is a part of the crime committed. In the present case, no part of the underlying crime, as defined, actually occurred in the county of the victim's residence. Under these circumstances, OCGA § 16-9-125 is unconstitutional in the limited instances where it places venue in the county of the victim's residence irrespective of the fact that no part of the underlying crime actually occurs there....