People v. Perez

• Decision Date: 29 February 2016
• Docket Number: Supreme Court Case No. 13SC465
• Citation: 367 P.3d 695
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Eduardo Dejesus PEREZ, Respondent
• Court: Colorado Supreme Court

367 P.3d 695

The PEOPLE of the State of Colorado, Petitioner

v.Eduardo Dejesus PEREZ, Respondent

Supreme Court Case No. 13SC465

Supreme Court of Colorado.

February 29, 2016

Rehearing Denied April 4, 2016

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Douglas K. Wilson, Public Defender, Andrew C. Heher, Deputy Public Defender, Denver, Colorado

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶ 1 In this case, we examine the applicability of the culpable mental state, "knowingly," to the elements of identity theft found in section 18–5–902, C.R.S. (2015)

. We hold that, to be guilty of identity theft, an offender must have used the identifying information of another person with knowledge that the information belonged to an actual person. We also evaluate the trial record in this case to determine whether the evidence supported the jury's conclusion that the respondent, Eduardo Dejesus Perez, was aware that the Social Security number he used belonged to an actual person. We conclude that the evidence was sufficient to support Perez's conviction.

I. Facts and Procedural History

¶ 2 In 2010, Perez was convicted of identity theft and criminal impersonation for using another person's Social Security number to obtain employment. The evidence showed that the owner of the Social Security number that Perez used was unemployed and receiving government assistance. The victim's caseworker told her that she risked losing her benefits, or suffering other penalties, because she was receiving income from a barbeque restaurant. But the victim was not employed at the restaurant. She then informed the police that she believed someone else was using her Social Security number.

¶ 3 The Colorado Department of Labor provided the police a list of employers who had reported income under the victim's Social Security number during the preceding five years. The list consisted of six restaurants. At trial, the victim testified that she had never worked at any of these restaurants. The investigator called the most recent employer listed—the barbeque restaurant. The restaurant manager confirmed that an employee was using the victim's Social Security number. When the detective went to the restaurant, the manager showed him Perez's employment application, tax documents, and a copy of the Social Security card that Perez had provided when he began working. All these documents listed the victim's Social Security number. The detective arrested Perez.

¶ 4 At trial, the victim, the investigating detective, and the restaurant manager testified. An investigator from the Colorado Department of Labor's Fraud Investigation Unit also testified, discussing the wage inquiry he had prepared regarding the victim's Social Security number. Perez did not testify or call any witnesses.

¶ 5 At the close of evidence, Perez moved for judgment of acquittal on both counts, arguing that the prosecution failed to provide sufficient evidence to support the charges. Perez contended that the prosecution failed to prove that he knew the Social Security number belonged to an actual person, when he could have believed that the number was fabricated. The trial court agreed that the prosecution must prove that Perez knew the number belonged to an actual person. However, after discussing the evidence and the reasonable inferences that could be drawn from the evidence, the court denied Perez's motion for a judgment of acquittal. The trial court instructed the jury that, in order to convict Perez, it must find that he "knowingly used the personal identifying information of another person, without permission or lawful authority." The jury convicted Perez on both charges, and Perez appealed.

¶ 6 The court of appeals concluded that the identity-theft statute requires an offender to know that the Social Security number he used belonged to an actual person. People v. Perez , 2013 COA 65, ¶¶ 15, 33, ––– P.3d ––––

. Turning to the question of the sufficiency of the evidence, the court of appeals disagreed with the potential inferences that could have supported that conclusion. Id. at ¶¶ 40–50. The court of appeals denied that a rational juror could have concluded that Perez's repeated use of the Social Security number–with as many as six different employers over five years–suggested that Perez knew the number belonged to an actual person. Id. at ¶¶ 43–47. It was also concerned by what it saw as a lack of direct evidence concerning how Perez obtained the victim's Social Security number and whether Perez knew that a valid Social Security number was required for him to receive wages. Id. at ¶¶ 40–42. The court of appeals thus concluded that the evidence was insufficient to support the jury's determination that Perez knew that the Social Security number he was using belonged to an actual person. Id. at ¶¶ 38, 51.

¶ 7 The People petitioned for certiorari. We granted certiorari to consider whether Colorado's identity-theft statute, section 18–5–902

, requires proof that the offender knew the information he exploited belonged to an actual person, and whether the evidence in this case supported Perez's conviction.¹

II. Standard of Review

¶ 8 This case raises issues of both statutory interpretation and sufficiency of the evidence. We review questions of statutory interpretation de novo. People v. Cross, 127 P.3d 71, 73 (Colo.2006)

. For a sufficiency of the evidence claim, we review the record de novo to determine whether the evidence, when viewed in the light most favorable to the prosecution, was both "substantial and sufficient" to support the conclusion by a reasonable mind that the defendant was "guilty beyond a reasonable doubt." Dempsey v. People, 117 P.3d 800, 807 (Colo.2005) ; People v. Bennett, 183 Colo. 125, 515 P.2d 466, 469 (1973).

III. Analysis

¶ 9 We begin with the statutory interpretation question. We hold that section 18–5–902

requires the People to prove that an offender knew that the identifying information that he used belonged to another person. We next assess whether sufficient evidence supported Perez's conviction. Because we find that the record supported multiple reasonable inferences that could lead to the conclusion that Perez knew that the Social Security number he was using belonged to another person, we hold that a reasonable jury could conclude that Perez was guilty of identity theft beyond a reasonable doubt.

A. To Commit Identity Theft, an Offender Must Have Known That the Identifying Information Belonged to Another Person.

¶ 10 The People first argue that the identity-theft statute, section 18–5–902

, requires proof only that the defendant knowingly used identifying information that belonged to another person and that it does not matter whether the defendant knew that the information belonged to another person.² We disagree.

¶ 11 The General Assembly has set forth the way in which it intends mens rea provisions to be read in criminal statutes. More specifically, section 18–1–503(4), C.R.S. (2015)

, provides that, "[w]hen a statute defining an offense prescribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears." Thus, as applied here, "knowingly" will apply to the element that the identifying information belonged to another person unless a contrary intention clearly appears. We see no such clear contrary intention.

¶ 12 Ordinary English grammar and the rules of statutory interpretation compel the conclusion that the statutory term "knowingly" applies to the phrase "of another." Moreover, even if the statutory language were ambiguous in this case, we find no legislative intent to limit the applicability of the culpable mental state to exclude the phrase "of another." Therefore, to be guilty of identity theft, an offender must have knowingly used the identifying information of another and must have known that the information belonged to an actual person.

¶ 13 The statutes at issue in this case, section 18-5-902

, defines the crime of identity theft:

(1) A person commits identity theft if he or she:

(a) Knowingly uses the personal identifying information, financial identifying information, or financial device of another without permission or lawful authority with the intent to obtain cash, credit, property, services, or any other thing of value or to make a financial payment....

¶ 14 The U.S. Supreme Court recently interpreted a similar identity-theft statute in Flores–Figueroa v. United States, 556 U.S. 646, 650–52, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009)

. While not binding on this court, the analysis in Flores–Figueroa provides us with guidance for interpreting a similar statute.³

See People v. Riley, 708 P.2d 1359, 1363 (Colo.1985) (explaining that, "insofar as the provisions of the Colorado statute parallel those of the federal counterparts, judicial authorities construing the federal counterparts are highly persuasive"). The statute at issue in Flores–Figueroa imposed a mandatory consecutive two-year prison term on individuals convicted of other crimes if, in relation to those other crimes, the individual "knowingly transfer[ed], possesse[d], or use[d], without lawful authority, a means of identification of another person." 18 U.S.C. § 1028A(a)(1) (2012) ; Flores–Figueroa, 556 U.S. at 647, 129 S.Ct. 1886. The Court concluded that ordinary English grammar and the rules of statutory construction,

Flores– Figueroa, 556 U.S. at 650–52, 129 S.Ct. 1886

, compelled the conclusion that the prosecution must prove "that the defendant knew that the means of identification at issue belonged to another person," id. at 657, 129 S.Ct. 1886. "In ordinary English," the Court concluded, "where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the...