T.P.I.-- CRIM. 11.18
ILLEGAL POSSESSION OF/FRAUDULENT USE OF CREDIT OR DEBIT CARD
Any person who [illegally possesses] [fraudulently uses] a credit or debit card is guilty of a crime.
For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1
[Part A:
(1) that the defendant took, exercised control over or otherwise
used a credit or debit card or information from such card;
and
(2) that the defendant acted without the consent of the owner or
issuer;
and
(3) that the defendant acted knowingly.]
or
[Part B:
(1) that the defendant used or allowed to be used a credit or debit
card or information from such card;
and
(2) that the defendant's purpose was to obtain property, credit,
services or anything else of value;
and
(3) that the defendant had knowledge that:
(a) the card was forged or stolen;
or
(b) the card had been revoked or canceled;
or
(c) the card had expired and the person used the card with fraudulent
intent;
or
(d) for any other reason the use of the card was unauthorized by the
issuer or the person to whom such card was issued.]
"Credit card" means any real or forged instrument, writing or other evidence, whether known as a credit card, credit plate, charge plate or by any other name, which purports to evidence an understanding to pay for property or services delivered or rendered to or upon the order of a designated person or bearer.2
"Debit card" means any real or forged instrument or writing or other evidence known by any name issued with or without a fee by an issuer for the use of depositor in obtaining money, goods, services or anything else of value, payment of which is made against funds previously deposited in an account with the issuer.3
"Effective consent" means assent in fact, whether express or apparent, including assent by one legally authorized to act for another. Consent is not effective when:
[(a) induced by deception or coercion;]
[(b) given by a person the defendant knows is not authorized to act as an
agent;]
[(c) given by a person who, by reason of youth, mental disease or defect,
or intoxication, is known by the defendant to be unable to make
reasonable decisions regarding the subject matter;]
[(d) given solely to detect the commission of an offense.]4
"Owner" means a person, other than the defendant, who has possession of or any interest other than a mortgage, deed of trust or security interest in property, even though that possession or interest is unlawful and without whose consent the defendant has no authority to exert control over the property.5
"Issuer" means the business organization or financial institution which issues a credit or debit card or its duly authorized agent.6
"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.7
The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.8
"Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.9
"Property" means anything of value, including but not limited to [money] [real estate] [tangible or intangible personal property (including anything severed from land)] [library material] [contract rights] [chose-in-action] [interest in or claim to wealth] [credit] [admission or transportation tickets] [captured or domestic animals] [food and drink] [electric or other power].10
"Services" includes [labor] [skill] [professional service] [transportation] [telephone mail] [gas] [electricity] [steam] [water] [cable TV] [other public services] [accommodations in hotels, restaurants or elsewhere] [admissions to exhibitions] [use of vehicles or other movable property].11
"Revoked" credit or debit card means a card which is no longer valid because permission to use it has been suspended or terminated by the issuer.12
"Expired" credit or debit card means a card which is no longer valid because the term shown on it has expired.13
"Fraud" is defined as the term is used in normal conversation and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge.14
FOOTNOTES
1. Tenn. Code Ann. § 39-14-118.
2. Tenn. Code Ann. § 39-14-102(2).
3. Tenn. Code Ann. § 39-14-102(3).
4. Tenn. Code Ann. § 39-11-106(a)(9).
5. Tenn. Code Ann. § 39-11-106(a)(26).
6. Tenn. Code Ann. § 39-14-102(5).
7. Tenn. Code Ann. § 39-11-106(a)(20).
8. Tenn. Code Ann. § 39-11-301(a)(2).
9. Tenn. Code Ann. § 39-11-106(a)(18).
10. Tenn. Code Ann. § 39-11-106(a)(28).
11. Tenn. Code Ann. § 39-11-106(a)(34).
12. Tenn. Code Ann. § 39-14-102(10).
13. Tenn. Code Ann. § 39-14-102(4).
14. Tenn. Code Ann. § 39-11-106(a)(13).
COMMENTS
1. Fraudulent use of a credit or debit card is punishable as theft pursuant to Tenn. Code Ann. § 39-14-105 depending on the amount of property, credit, goods or services obtained. Tenn. Code Ann. § 39-14-118(c)(1). If no property, credit, goods or services is actually received or obtained, illegal possession or fraudulent use of a credit card is a Class B misdemeanor. Tenn. Code Ann. § 39-14-118(c)(2).
2. The trial judge should utilize, where relevant, T.P.I. -- Crim. 4.01 (Attempt).