People v. Rodriguez-Morelos, 19CA0915

Docket Nº19CA0915
Citation2022 COA 107
Case DateSeptember 15, 2022
CourtCourt of Appeals of Colorado

2022 COA 107

The People of the State of Colorado, Plaintiff-Appellee,
v.

Jesus Rodriguez-Morelos, Defendant-Appellant.

No. 19CA0915

Court of Appeals of Colorado, Sixth Division

September 15, 2022


SUMMARY

As is relevant to this appeal, the crime of identity theft, proscribed by section 18-5-902(1)(a), C.R.S. 2021, occurs when "[a] person . . . [k]nowingly uses the personal identifying information . . . of another without permission or lawful authority with the intent to obtain cash, credit, property, services, or any other thing of value." The definition of "personal identifying information," found in section 18-5-901(13), C.R.S. 2021, states that it is "information that may be used . . . to identify a specific individual." A division of the court of appeals interprets "personal identifying information" to mean only specified information concerning single, identified human beings. The division therefore concludes that defendant did

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not commit the crime of identity theft when he used a nonprofit's name and documents, without its permission, to recruit people to take classes from him.

The division also concludes that the record of defendant's trial did not contain any evidence to show that defendant used the nonprofit's "financial identifying information," which is defined by section 18-5-901(7), with the intent to obtain cash or any other thing of value.

As a result of these two conclusions, the division further concludes that defendant's conviction for identity theft must be vacated.

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Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julia Chamberlin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

OPINION

BERNARD, JUDGE [*]

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¶ 1 A jury found defendant, Jesus Rodriguez-Morelos, guilty of one count of identity theft, three counts of felony theft, and one count of criminal impersonation. He appeals the judgment of conviction and the trial court's restitution order. We vacate the conviction for identity theft but affirm the other convictions, and we remand the case to the trial court to amend the mittimus accordingly. We also affirm the restitution order.

I. Background

¶ 2 The Colorado Department of Regulatory Agencies investigated defendant after it received complaints that he was taking money for teaching certified nursing assistant classes that the state had not approved. Colorado law states that people can only become certified nursing assistants if they complete a state-approved program.

¶ 3 Defendant also did volunteer work for a nonprofit organization called United for Migrants that supported migrant workers. He participated in the nonprofit's food and toy drives, and he helped some immigrants get their GEDs. He started administering unsanctioned certified nursing assistant classes in 2015. Without the nonprofit's authorization, defendant told at least some of the

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students that these classes were affiliated with the nonprofit and that he was acting on its behalf. For example, he referred to himself as the nonprofit's "Director of Education," a position that did not exist. Without the nonprofit's knowledge, he gave some students a tax-exempt document bearing the nonprofit's name.

¶ 4 The students saw the class as a path to obtaining better employment opportunities. Most, if not all, of the students in the class were Spanish-speaking immigrants, and at least some of them were undocumented. The class cost $63, and, over time, defendant added other certification programs at various costs, all related to the medical profession.

¶ 5 To induce students to take the certified nursing assistant class, defendant made two material misrepresentations. First, he said the class had been approved by the state. Second, he said that students did not need a social security number to become a certified nursing assistant. Although Colorado does not require a person to have a social security number to become a certified nursing assistant, one must be lawfully in the United States to become licensed and to work as a certified nursing assistant.

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¶ 6 Defendant told students who did not have a social security number or lawful status that he would still be able to find them a job in the nursing field. This was not true.

¶ 7 Before long, various problems with the courses started to arise. The classes were overcrowded, and students felt that they were not learning the requisite skills to become certified nursing assistants. Defendant frequently refused to provide students with receipts for their payments. And none of the students who testified at trial had been hired as certified nursing assistants.

¶ 8 Defendant's theory of defense at trial was that he simply wanted to help the immigrant community by providing a legitimate service.

II. Sufficiency of the Evidence

¶ 9 As is pertinent to this appeal, "[a] person commits identity theft if he or she . . . [k]nowingly uses the personal identifying information [or] financial identifying information . . . of another without permission or lawful authority with the intent to obtain" money. § 18-5-902(1)(a), C.R.S. 2021.

¶ 10 Section 18-5-901(13), C.R.S. 2021, defines "personal identifying information" as

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information that may be used, alone or in conjunction with any other information, to identify a specific individual, including but not limited to a name; a date of birth; a social security number; a password; a pass code; an official, government-issued driver's license or identification card number; a government passport number; biometric data; or an employer, student, or military identification number.

(Emphasis added.)

¶ 11 "Financial identifying information" includes "[a] number representing a financial account or a number affecting the financial interest, standing, or obligation of or to the account holder," § 18-5-901(7)(b), "that can be used, alone or in conjunction with any other information, to obtain cash, credit, property, services, or any other thing of value or to make a financial payment," § 18-5-901(7).

¶ 12 The phrase "of another" "means that of a natural person, living or dead, or a business entity." § 18-5-901(11).

¶ 13 Defendant contends that the evidence in the record is not sufficient to support the identity theft conviction because (1) his use of the nonprofit's name and tax-exempt document did not constitute the use of personal identifying information as defined by section 18-5-901(13); and (2) although the tax-exempt document he

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gave to some of the students was financial identifying information under section 18-5-901(7), there is no evidence in the record that he used this document to obtain money or any other thing of value as required by section 18-5-902(1)(a). We agree with both contentions.

A. Personal Identifying Information Concerns Information Belonging Only to Human Beings

1. Standard of Review and General Principles of Statutory Construction

¶ 14 Statutory interpretation is a question of law that we review de novo. People v. Perez, 2016 CO 12, ¶ 8. The primary purpose in interpreting statutes is to give effect to the General Assembly's intent. Hunsaker v. People, 2015 CO 46, ¶ 11. If the statutory language is clear, we apply its plain and ordinary meaning. Id.

¶ 15 "[W]e presume that the legislature [does] not use language idly." Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo. 2008). "Rather, the use of different terms signals an intent on the part of the General Assembly to afford those terms different meanings." Id.; see also People v. Gulyas, 2022 COA 34, ¶ 38 (concluding that the rape shield statute's use of the separate terms "witness" and "defendant" meant that a defendant was not

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considered a witness for purposes of that statute). "[W]e may not construe a statute so as to render any statutory words or phrases superfluous." People v. Rediger, 2018 CO 32, ¶ 22.

2. Discussion

¶ 16 Defendant asserts that the term "specific individual," which is contained in the definition of "personal identifying information" found in section 18-5-901(13), refers only to human beings and not to business entities such as the nonprofit. This means, he continues, that he did not commit identity theft under section 18-5-902(1)(a) because he did not use personal identifying information when he used the nonprofit's name and tax-exempt document. (Defendant does not assert that the trial evidence was insufficient to show that he used the nonprofit's name to obtain cash or anything of value. Even if he did, such an assertion would be unsuccessful because there was at least some testimony to that effect.)

¶ 17 The prosecution responds that the crime of identity theft requires proof that defendant used the personal identifying information "of another." The phrase "of another," the prosecution goes on, defines who the victims of identity theft are, and that class of victims includes business entities such as the nonprofit.

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Limiting the definition of "personal identifying information" "to natural people," the prosecution's response finishes up, "would effectively nullify or render superfluous the General Assembly's chosen use of the phrase 'of another'" to define the universe of potential victims of identity theft.

¶ 18 On the one hand, we think that the prosecution's response misses the mark. True, the phrase "of another" sets out who the victims of identity theft might be. But the definition of "personal identifying information" does not describe or affect the class of victims of identity theft; rather, it defines the types of information, documents, or items that defendants may take from victims to commit that crime. In other words, if the prosecution charges a defendant with identity theft for using personal identifying information, but the thing used does not...

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