State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0040

State of Minnesota,
Respondent,

vs.

Jason Elliott Clark,
Appellant.

Filed December 20, 2021
Affirmed
Cochran, Judge

Scott County District Court
File No. 70-CR-20-720

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Ronald Hocevar, Scott County Attorney, John Patrick M onnens, Assistant County
Attorney, Shakopee, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Cochran, Judge; and
Cleary, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
COCHRAN, Judge
In this direct appeal, appellant challenges his sentence for identity theft. He argues
that the district court abused its discretion by imposing an upward durational sentencing
departure based on its findi ng that appellant’s identity -theft offense involved an
aggravating factor. More specifically, he argues that the district court abused its discretion
when it found that appellant’s identity-the ft offense was a major economic offense
supporting an upward departure. Because the district cour t did not abuse its discretion
when it found that appellant’s offense met the requirements of this aggravating factor, we
affirm.
FACTS
In an amended complaint, the state charged appellant Jason Clark with identity theft
resulting in a total loss to the victim of more than $35,000. The state also charged Clark
with three counts of theft by swindle of property exceeding $5,000 in value, and one count
of theft by swindle of property exceeding $1,000 in value. The identity-theft charge related
to J.V. (victim 1), and the theft-by-swindle charges related to two other victims. The case
proceeded to a jury trial. The following summarizes the evidence presented at trial relevant
to this appeal.
Clark began a romantic relationship with victim 1 in December 2014. A few months
later, he moved in with her. Victim 1 testified that Clark used a different name when they
first met, spoke in a British accen t, and told her that he was from Wales. Clark also told
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victim 1 that he had a trust fund and a grant to write a book. Victim 1 later learned that
none of this was true.
In the summer of 2017, victim 1 started receiving emails with new credit card
statements from four different companies: Capital One, Citibank, Discover, and American
Express. Victim 1 asked Clark about the ema ils. Clark told victim 1 that he had opened
the credit cards in his own name but used her email address. Clark also reassured victim 1
that the credit cards were not in her name. In the winter of 2018, victim 1 requested her
credit report and saw that credit cards from th e same four companies were listed on her
credit report. She confronted Clark again. This time he told her that the cards were in both
of their names but that he had been maki ng monthly payments and would pay off the
balances. When victim 1 ev entually called the credit card companies in the summer of
2019, she learned that each account was in he r name alone, with Clark listed only as an
authorized user on each account.
At trial, the state introduced evidence showing that Clark had applied for a Capital
One credit card using victim 1’s social secu rity number and other personal identifying
information. Victim 1 never gave Clark her social security number or permission to use it,
and she never authorized Clark to open any credit cards in her name. Clark later admitted
that he took victim 1’s social security number from her tax records.
Between May 2017 and January 2020, Clark charged about $18,500 to the Capitol
One credit card, over $16,500 to the American Express card, over $11,000 to the Discover
card, and over $12, 000 to the Citibank card. These charges amounted to more than
$58,000.
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Clark began a relationship w ith a second victim (victim 2) in February 2018.
Victim 2 testified that Clark initially used a different name, spoke with a British accent,
and told her that he was from Wales. Clark also said he had a book deal and had inherited
a trust fund. Clark repeatedly asked victim 2 for money. She complied with his requests,
expecting him to pay her back with money from his book deal and trust fund. Clark
continually promised to pay her back but did not follow through on his promises. Victim 2
gave Clark more than $28,000 between Ma rch and September 2 018, about $38,500
between October 2018 and April 2019 , and over $36,000 between May and
November 2019.
A third victim (victim 3) testified to a sim ilar series of events. Victim 3 testified
that she met Clark in 2017. Clark again used a different name, spoke with a British accent,
told her he was from Wales, and said he was a technical writer. Victim 3 gave Clark a total
of $4,600, expecting him to pay her back with proceeds from his writing. He did not pay
her back.
The jury found Clark gu ilty of one count of id entity theft under Minn.
Stat. § 609.527, subd. 2 (2 016), and four counts of theft by swindle under Minn.
Stat. § 609.52, subd. 2(a)(4) (2016). The identify-theft offense related to victim 1, and the
jury specifically found that th e offense resulted in a total loss of more than $35,000 to
victim 1. The theft-by-swindle offenses related to the other two victims.
Prior to trial, the state filed notice of its intent to seek an ag gravated sentencing
departure. At trial, Clark waived his Blakely jury trial rights, agreeing to have the district
court make findings regarding any aggravating sentencing factors. In posttrial briefing, the
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state sought an upward departure on three of the counts—the identity-theft count and two
of the theft-by-swindle counts. The state argued that each of the three counts involved the
same aggravating sentencing factor—namely, each count constituted a major economic
offense. Clark opposed the state’s request, arguing that his acts di d not constitute major
economic offenses that supported an upward sentencing departure.
The district court found, based on the trial evidence, that all three counts were major
economic offenses that supported an upward sentencing departure. Specifically, the district
court found that each offens e involved two or more of the major-economic-offense
circumstances under Minn. Stat. § 244.10, subd. 5a(a)(4) (2016), and therefore each
offense involved an a ggravating sentencing factor. Th e district court, however, only
imposed an upward sentencing departure on the identity-theft count. On that count, the
district court sentenced Clark to 220 months in prison—an upward durational departure
from the presumptive sentence under the Minnesota Sentencing Guidelines.
This appeal follows.
DECISION
The sole issue on appeal is whether the district court abused its discretion by
imposing an upward durational sentencing departure when it sentenced Clark on his felony
identity-theft offense. The Minnesota Sent encing Guidelines es tablish presumptive
sentences for felony offenses. Minn. Stat. § 244.09, subd. 5(2) (202 0). The sentencing
guidelines also provide a nonexclusive list of aggravating factors that may support an
upward departure from the presumptive sent ence, including the commission of a major
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economic offense. Minn. Sent. Guidelines 2.D.3.b(4) (2016); see also Minn.
Stat. § 244.10, subd. 5a(a) (2016) (identifying the same aggravating factors).
In a challenge to the district court’s de cision to impose an upward sentencing
departure, “[w]e review a district court’ s decision to depart from the presumptive
guidelines sentence for an abuse of discretion.” State v. Solberg , 882 N.W.2d 618, 623
(Minn. 2016). A district court abuses its discretion when its reasons for departure are
legally impermissible or there is insufficient evidence in the record to justify the departure.
See id.
The district court found that Clark’s fe lony identity-theft offense was a major
economic offense that supporte d an upward departure as an aggravating factor. The
sentencing guidelines provide that a major econom ic offense that includes at least two of
the circumstances listed in the guidelines is an aggravating factor for sentencing purposes.
Minn. Sent. Guidelines 2.D.3.b(4); see also Minn. Stat. § 244.10, subd. 5a(a)(4) (including
identical language). A major ec onomic offense is defined as “an illegal act or series of
illegal acts committed by other than physical means and by concealment or guile to obtain
money or property.” Minn. Sent. Guidelines 2.D.3.b(4). The listed circumstances include:
(a) the offense involved mu ltiple victims or multiple
incidents per victim;
(b) the offense involv ed an attempted or actual monetary
loss substantially greater than the usual offense or substantially
greater than the minimum loss specified in the statutes;
(c) the offense involved a high degree of sophistication or
planning or occurred over a lengthy period of time;
(d) the defendant used his or her position or status to
facilitate the commission of the offense, including positions of
trust, confidence, or fiduciary relationships; or
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(e) the defendant has been involved in other conduct
similar to the current offense as evidenced by findings of civil
or administrative law proceed ings or the imposition of
professional sanctions.

Id.; see Minn. Stat. § 244.10, subd. 5a(a)(4)(i)-(v) (listing the same circumstances).
Here, in explaining its upward sentencing departure for the identity-theft offense,
the district court first found that the identity-theft offense met the definition of a major
economic offense. The district court then found that three of the listed circumstances were
met with regard to the o ffense—multiple incidents per victim, a high degree of
sophistication or planning and occurring over a lengthy period of time, and the use of a
position of trust. Specifically, the district court found that (1) th e identity-theft offense
involved multiple incidents ag ainst one victim because Cl ark opened four credit cards
using victim 1’s identity and charged many transactions to those cards; (2) the offense
involved a high degree of sophistication or planning and occurred over a lengthy period of
time because Clark engaged in a sophisticated deception over multiple years; and (3) Clark
used the trust and confidence of his relationship with victim 1 to facilitate the identity theft.
Clark argues that the district court abus ed its discretion when it found that these
three circumstances were met and, accordi ngly, he seeks reversal and remand for
resentencing. We address Clark’s argumen ts regarding the circumstances found by the
district court below.
Multiple Incidents Per Victim
Clark first contends that the district court abused its discretion when it characterized
his identity-theft crime as involving multiple in cidents. Clark argues that he committed
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only a single incident of iden tity theft—specifically, “obtaining and possessing the social
security number from [victim 1’s] tax records with the intent to use it for unlawful activity.”
He contends that his later use of multiple credit cards, opened with victim 1’s personal
information, “did not transform the offense into more than one incident.” On this basis, he
argues that the district court abused its disc retion when it found that the offense involved
multiple incidents. We are not persuaded.
Under Minnesota law, “[a] person who transfers, possesses, or uses an identity that
is not the person’s own, with the intent to co mmit, aid, or abet any unlawful activity is
guilty of identity theft.” Minn. Stat. § 609.5 27, subd. 2 (emphasis added). The statute
defines “identity” to include a social security number. Id., subd. 1(d)(1) (2016). In
addition, the statute sets forth different potential penalties for the offense depending on the
amount of money involved and the number of victims involved. Id., subd. 3 (2016).
Here, as indicated on the verdict form, the jury foun d Clark guilty of felony
identity-theft with a resulting tota l, combined loss to victim 1 of more th an $35,000. To
conclude that there was a loss of more than $35,000 resulting from the offense, the jury
necessarily found that Clark di d more than simply possess vi ctim 1’s identity. The jury
must also have found that Clark used victim 1’s identity in an unlawful manner that resulted
in victim 1 losing more than $35,000. In other words, the jury convicted Clark of using
victim 1’s identity, not simply possessing it. And because the m onetary threshold found
by the jury—$35,000—is greater than the amount charged by Clark to any single credit
card in a single transaction, he must have used victim 1’s identity multiple times.
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Therefore, the district court did not abuse its discretion by considering Clark’s use of
victim 1’s identity when determining whether his offense involved multiple incidents.
We are not persuaded otherwise by Clark’s reliance on State v. Moua ,
874 N.W.2d 812 (Minn. App. 2016), rev. denied (Minn. Apr. 19, 2016). Clark contends
that Moua stands for the proposition that identity theft can occur upon the initial theft of a
person’s private information and does not re quire a showing of economic loss for the
offense to be completed. Clark’s argument is unconvincing because Moua did not address
the issue raised in this case. Moua addressed the question of whether individuals who had
their private information stol en were entitled to restitution under Minn. Stat. § 609.527,
subd. 4(b) (2012), even in the absence of evidence of economic loss. 874 N.W.2d at 817.
Although Moua establishes that the th eft of private informati on alone is sufficient to
constitute the offense, it does not precl ude courts from consid ering a defendant’s
subsequent use of that information for sentencing purposes. Therefore, Clark’s reliance on
Moua is misplaced.
Finally, the record amply supports the district court’s finding that Clark’s crime of
identity theft involved multiple incidents. At trial, victim 1 testified that Clark opened four
credit cards in her name. Records from the credit card companies show that Clark charged
over $58,000 to the four different credit card s, and there were numerous transactions on
each card. This evidence supports the district court’s finding that Clark’s conduct “spanned
four credit cards . . . and a multitude of tran sactions.” And because the district court
properly considered Clark’s use of victim 1’s identity, not just Clark’s possession of
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victim 1’s identity, the district court did not abuse its discretion when it found that Clark’s
offense involved multiple incidents.
High Degree of Sophistication or Planning and Lengthy Period of Time
Turning to the second circumstance found by the district court, Clark argues that the
district court abused its discretion when it fo und that his identity-theft offense involved a
high degree of sophistication or planning and occurred over a lengthy period of time. Clark
bases this argument on the same theory as his previous argument—that he completed the
crime of identity theft as soon as he possessed victim 1’s identity, and therefore the district
court erred by considering any events that followed. Based on this contention, Clark argues
that the record does no t support the district court’s find ing because “there is no actual
evidence that the act of obtai ning [victim 1’s] social security number was highly
premeditated or required complicated planning or scheming.” And he argues that even
though the credit card tr ansactions resulting from his theft of victim 1’s social security
number occurred over a lengthy period of time, the initial thef t of her social security
number was limited in time. On this basis, he argues that the district court’s finding that
the identity theft involved a high degree of sophistication or planning and occurred over a
lengthy period of time is unsupported by the evidence in the record. We are not persuaded.
For the reasons discussed above, we conc lude that the district court properly
considered Clark’s use—rather than just his possession—of victim 1’s identity in analyzing
whether the identity-theft offense involved a high degree of sophistication or planning and
whether it occurred over a lengthy period of time. We further conclude that the record
amply supports the district court’s finding that it did. The record shows that Clark lied to
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victim 1 about his job, background, and none xistent trust fund throughout his multi-year
relationship with victim 1. He created a fa lse backstory and persona that allowed him to
gain access to victim 1’s pers onal identifying in formation and open cr edit cards in her
name. The record further shows that Clark was able to use those credit cards on numerous
occasions from 2017 to 2019 and conceal hi s fraud even after victim 1 started receiving
suspicious emails about unfamiliar credit card statements. As the district court noted,
Clark’s acts “were built on and enabled by a s ophisticated deception carried out over
several years.” The record fu lly supports the district court’s finding that Clark’s offense
involved a high degree of sophistication or planning and occurred over a lengthy period of
time.
Moreover, the district court’s finding is c onsistent with similar findings in other
cases which have been affirmed on appeal. See, e.g., State v. Thompson, 720 N.W.2d 820,
830-31 (Minn. 2006) (affirming finding a high degree of sophistication and planning in a
theft by swindle where finance manager st ole money by manipulating terminated
employees’ payroll accounts and immediately removing the ac counts in order to conceal
the scheme), rev. denied (Minn. Sept. 17, 2002); State v. Simmons , 646 N.W.2d 564,
568-69 (Minn. App. 2002) (affirming finding a high degree of sophistication and planning
in a car-flipping scam using false driv er’s licenses and counterfeit checks);
State v. O’Brien, 429 N.W.2d 293, 296 (Minn. App. 1988) (concluding that thefts
committed over three months occurred over a lengthy period of time), rev. denied (Minn.
Nov. 16, 1988). Therefore, the district court did not abuse its discretion when it found that
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Clark’s conduct involved both a high degree of sophistication or planning and occurred
over a lengthy period of time.
Conclusion
Having determined that the record supports the district court’s findings on the two
major-economic-offense circumstances discussed above, we need not address the third
circumstance (use of a position of trust) found by the distri ct court. A major economic
offense with the presence of two of the lis ted circumstances is sufficient to support
an upward sentencing departure. Minn. Sent. Guidelines 2.D.3.b(4); Minn. Stat. § 244.10,
subd. 5a(a)(4); Thompson, 720 N.W.2d at 829. We theref ore conclude that the district
court did not abuse its discretion when it found that Clark’s identity-theft offense involved
an aggravating sentencing factor that supports an upward de parture. Accordingly, we
affirm the sentence imposed by the district court.
Affirmed.