State v. Hardesty

• Decision Date: 14 August 2009
• Docket Number: No. 100,571.,100,571.
• Citation: 213 P.3d 745
• Parties: STATE of Kansas, Appellee, v. Bradley D. HARDESTY, Appellant.
• Court: Kansas Court of Appeals

213 P.3d 745

STATE of Kansas, Appellee, v. Bradley D. HARDESTY, Appellant.

No. 100,571.

Court of Appeals of Kansas.

August 14, 2009.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Don L. Scott, county attorney, and Steve Six, attorney general, for appellee.

Before McANANY, P.J., ELLIOTT and CAPLINGER, JJ.

CAPLINGER, J.

Bradley Hardesty appeals his jury conviction of identity theft in violation of K.S.A. 21-4018(d)(3). The identity theft charge resulted after Hardesty was pulled over for suspected driving under the influence (DUI) and produced his deceased brother's driver's license. Hardesty first challenges the sufficiency of the evidence of identity theft, arguing K.S.A. 21-4018 applies only when the defendant possesses another person's identification documents. Hardesty reasons that his deceased brother was not a "person," and therefore the evidence was insufficient to support the identity theft charge. We disagree and find the legislature intended to include the theft of the identity of a deceased person within the scope of K.S.A. 21-4018(a), as long as the remaining requirements of the statute are satisfied.

Hardesty also challenges his DUI conviction, arguing the district court erred in admitting testimony regarding his refusal to take a preliminary breath test (PBT). Because the charge of refusal to take a PBT was decided by the court and not the jury, we conclude the district court erred in permitting the jury to consider Hardesty's refusal in connection with the DUI charge. Nevertheless, because the evidence of Hardesty's guilt of the DUI charge was overwhelming, the error was harmless.

Finally, Hardesty challenges the district court's imposition of an aggravated presumptive sentence of incarceration, alleging violations of his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We dismiss this challenge, in part, and affirm his sentence.

Factual and procedural background

The State charged Hardesty with driving under the influence of alcohol or drugs; identity theft; obstructing official duty; driving with a suspended license; transporting an open container; driving after being declared a habitual violator; refusing to take a preliminary breath test; and making an improper turn. Subsequently, the State dismissed the charge of driving with a suspended license.

Prior to trial, the district court determined that the court, rather than the jury, would decide Hardesty's guilt with respect to the charge of refusal to take a PBT. In response, Hardesty moved to exclude from the jury any testimony regarding his refusal to take a PBT. The district court denied his motion, finding the evidence was admissible to prove the charge of refusing to take a PBT, and also relevant to the police officer's DUI investigation. At trial, over Hardesty's objection, Trooper James Parr testified that when pulled over for DUI, Hardesty refused to take the PBT.

In closing argument, the prosecutor urged the jury to consider Hardesty's refusal to take the PBT as evidence that he was DUI. The jury convicted Hardesty of DUI, identity theft, obstructing official duty, transporting an open container, and driving after being declared a habitual violator. The district court then found Hardesty guilty of refusing to take a PBT and making an improper turn.

The district court sentenced Hardesty to the aggravated 15-month prison sentence for identity theft, to run consecutively to his 12-month county jail sentence for DUI. The court also ordered that these sentences run concurrently with his 12-month sentence for obstructing official duty, 6-month sentence for transporting an open container, and 12-month sentence for driving while a habitual violator. Further, Hardesty was ordered to pay fines of $2,500 for DUI, $90 for refusing to take the PBT, and $60 for making an improper turn. Hardesty appeals his convictions for identity theft and DUI, as well as his sentence.

I. Was The Evidence Sufficient to Sustain Hardesty's Conviction for Identity Theft?

Hardesty first challenges the sufficiency of the evidence of identity theft, pointing out that K.S.A. 21-4018 applies when the defendant possesses another person's identification documents. Hardesty reasons that his deceased brother, whose identification Hardesty possessed and attempted to pass off to the officer as his own, was not a "person" to whom the statute applied.

When the sufficiency of the evidence is challenged in a criminal case, we review all of the evidence in the light most favorable to the prosecution and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007); State v. Garcia, 285 Kan. 1, 23, 169 P.3d 1069 (2007).

In relevant part, K.S.A. 21-4018 defines identity theft as "[K]nowingly and with intent to defraud for any benefit, obtaining ... one or more identification documents ... of another person other than that issued lawfully for the use of the possessor." The statute does not define the term "person."

Hardesty contests only the definition of "person," and therefore concedes the evidence was sufficient to prove he knowingly and with intent to defraud for his own benefit possessed his deceased brother's identification. Therefore, the veracity of the jury's verdict turns on whether a deceased person can be considered a "person" whose identity has been stolen for purposes of a conviction under K.S.A. 21-4018(a).

Interpretation of a statute is a question of law over which we exercise unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). Our first task is to ascertain the legislature's intent through the statutory language it employs, giving ordinary words their ordinary meaning. State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).

In support of his interpretation of K.S.A. 21-4018, Hardesty cites City of Liberal v. Vargas, 28 Kan.App.2d 867, 868, 24 P.3d 155, rev. denied 271 Kan. 1035 (2001). There, the defendant used the identification of a fictitious person to obtain employment and was convicted of identity theft. A panel of this court found K.S.A.2000 Supp. 21-4018 inapplicable because the State failed to prove that the false identification used by the defendant belonged to a real person. 28 Kan.App.2d at 869-70, 24 P.3d 155.

Hardesty also relies on State v. Meza, 38 Kan.App.2d 245, 165 P.3d 298, rev. denied 285 Kan. 1176 (2007), where the defendant was convicted of identity theft for using identification and social security cards in the name of another person to obtain employment. The Meza panel distinguished Vargas, pointing out that while Vargas stole the identity of a fictitious person, Meza stole the identity of a "real person." 38 Kan.App.2d at 248, 165 P.3d 298.

Hardesty contends Vargas and Meza require that when identity theft is charged, the State must prove that the defendant stole the identity of a "real person," which Hardesty interprets to mean "living" person. Because he used the identity of his brother, who was deceased, Hardesty argues the State failed to prove identity theft.

We do not find either Vargas or Meza controlling here. The term "real," as used in those cases, clearly was intended only as a contrast to the term "fictitious" and was not intended to distinguish between living or deceased persons.

Although the issue in State v. Oswald, 36 Kan.App.2d 144, 145-46, 137 P.3d 1066, rev. denied 282 Kan. 795 (2006), did not involve whether the victim was a fictitious or "real" person, we find guidance in the panel's analysis of that identity theft case. In Oswald, the defendant used the victim's social security number and credit card information to obtain a new cell phone account. At the time of the offense, the statute required the State to prove the defendant acted with "intent to defraud for economic benefit." K.S.A.2000 Supp. 21-4018(a). Oswald argued that because the victim voluntarily provided Oswald with her identifying information, Oswald could not have intended to defraud the victim.

The Oswald panel ruled that the defendant clearly had an intent to defraud because the defendant used the information for a purpose not intended by the victim-a purpose which had economic benefit to the defendant. Further, the court pointed out that the statute did not require proof of economic loss to the victim, but rather required only proof of the defendant's intent to defraud for his/her own economic benefit. 36 Kan.App.2d at 148, 137 P.3d 1066.

Moreover, as the court in Oswald noted, the identity theft statute was subsequently amended to delete the word "economic" and substitute the word "any." L.2005, ch. 131, sec. 2. Thus, the version of the statute in place at the time of Hardesty's offense required the State to prove that Hardesty knowingly and with intent to defraud for any benefit, obtained, possessed, transferred, or used the identity of "another person."

Oswald is persuasive in that it found that K.S.A. 21-4018 does not require loss to the victim from the use of his/her stolen identity. Thus, while the "victim" in this case was deceased and sustained no actual "loss," we are not precluded from finding the defendant intended to defraud for the purpose of his own benefit.

We also derive guidance from federal cases considering the same issue as it relates to the federal aggravated identity theft statute, 18 U.S.C.A. § 1028A(a)(1) (2009). For instance, in United States v. Kowal, 527 F.3d 741, 745-46 (8th Cir.2008), the Eighth Circuit Court of Appeals concluded that although the federal statute did not explicitly apply to deceased persons, the statute must be broadly interpreted to cover such cases. In...