State v. Meza

• Decision Date: 03 August 2007
• Docket Number: No. 96,502.,96,502.
• Citation: 165 P.3d 298
• Parties: STATE of Kansas, Appellee, v. Maria Elena Hernandez MEZA, Appellant.
• Court: Kansas Court of Appeals

165 P.3d 298

STATE of Kansas, Appellee, v. Maria Elena Hernandez MEZA, Appellant.

No. 96,502.

Court of Appeals of Kansas.

August 3, 2007.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Terri L. Johnson, county attorney, and Paul J. Morrison, attorney general, for appellee.

Before MARQUARDT, P.J., McANANY, J., and BRAZIL, S.J.

McANANY, J.

Nayssa Davila, a lifetime resident of Texas, had been adopted by her stepfather at age 7 and her name was changed to Nyssa Carlson. At some point following her adoption the name on her social security account was changed from Nayssa Davila to Nyssa Nicole Carlson.

Maria Meza arrived in this country from Mexico in 1998 at age 15. She lived with her grandparents in Pittsburg. She purchased a social security card and a Kansas ID card in the name of Nayssa Davila from a man in Missouri and used these documents to obtain work at a bacon packaging plant in Pittsburg.

In October 2000, Meza obtained employment at Peerless Products in Fort Scott using the name and documents of Nayssa Davila. The following year Carlson began getting threatening calls from debt collection agencies.

In August 2004, Carlson received a letter from the Internal Revenue Service (IRS) stating she owed over $3,000 in unpaid taxes. She learned that the unpaid taxes were assessed for income she reportedly earned at Peerless. Carlson had never been to Kansas. She contacted the human resource manager at Peerless and Officer Robert Jackson of the Fort Scott Police Department. Jackson went to Peerless and learned that Peerless had an employee named Nyssa Davila who used a social security card and a Kansas identification card issued under that name. When Meza returned to Peerless a few days later to pick up her paycheck, Jackson arrested her on an outstanding warrant for failure to appear and, after Mirandizing her, questioned her about her identity. Meza stated that she was in the United States illegally and had been posing as Nyssa Davila at her places of employment.

Meza was charged with identity theft in violation of K.S.A.2004 Supp. 21-4018(a). The court conducted a bench trial and Meza was found guilty and sentenced to 18 months' probation with an underlying prison term of 12 months. She now appeals.

Meza attacks the sufficiency of the evidence, contending that the State failed to prove the "intent to defraud for economic benefit" required by the statute. She also claims her prosecution is time-barred by the applicable statute of limitations.

In determining the sufficiency of the evidence, we review all the evidence in the light most favorable to the prevailing party, the State, in order to determine if a rational factfinder could have found Meza guilty beyond a reasonable doubt. See State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005). In considering the statutory requirements for a successful prosecution and the potential bar of the statute of limitations, appellate review is unlimited. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

Intent

Meza claims the State failed to establish that she had the required "intent to defraud for economic benefit."

Our primary task in considering K.S.A.2004 Supp. 21-4018(a) is to determine the legislature's intent. We presume the legislature expressed its intent through the language of the statutory scheme it employed. In considering the language of the statute, we give ordinary words their ordinary meanings. We will not add language not found in the statute or exclude language found in it. If the statute is plain and unambiguous, we will give effect to the legislature's expressed intent rather than substitute our own view of what the law ought to be. See Bryan, 281 Kan. at 159, 130 P.3d 85.

K.S.A.2004 Supp. 21-4018(a) defines identity theft as "knowingly and with intent to defraud for economic benefit, obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, one or more identification documents or personal identification number of another person other than that issued lawfully for the use of the possessor."

K.S.A.2004 Supp. 21-3110(9) defines "intent to defraud" as "an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property."

In City of Liberal v. Vargas, 28 Kan. App.2d 867, 24 P.3d 155, rev. denied 271 Kan. 1035 (2001), the defendant used a false identification card to obtain employment. However, Vargas adopted the identity of a totally fictitious person, unlike our present case where Meza stole the identity of a real person. In Vargas, this court focused on this distinction and concluded that the statute was intended to protect real persons from having their identities stolen and, in the absence of such a victim, the statute did not apply. 28 Kan.App.2d at 868-70, 24 P.3d 155. Then, by way of dicta, the court noted that the employer in Vargas was not defrauded to obtain an economic benefit in that Vargas did a day's work for a day's pay.

We again considered the sufficiency of the evidence to prove identity theft in State v. Oswald, 36 Kan.App.2d 144, 137 P.3d 1066, rev. denied 282 Kan. 795 (2006). Oswald obtained the victim's social security number and credit card information with the victim's consent in order to pay a cellular phone bill, but then used the information without the victim's consent to obtain a new cellular telephone account. We found that the statute did not require proof of economic loss to the victim, but only proof of Oswald's intent to defraud for her own economic benefit, and that Oswald's ability to obtain an account for cellular telephone service using the victim's identity was an economic benefit to her. 36 Kan.App.2d at 148-50, 137 P.3d 1066.

In the case before us, the statute is satisfied if Meza, for her own economic benefit, used Carlson's social security number knowingly and with the intent to defraud Peerless by inducing it to create for her a right with respect to property.

The evidence established that Meza used a social security card bearing Carlson's former name and her social security number in order to induce Peerless into believing she was Nyssa Davila, a person eligible to be employed, when in fact she was not. Meza intended for Peerless to rely on this deception and to hire her, thereby giving Meza a job which was an economic benefit to her. In hiring her, Peerless invested Meza with certain property rights which attached to her job, such as access to any available employee benefits, rights under federal laws such as ERISA, together with her entitlement to the protection of the laws of Kansas relating to employment, wage and hour regulations, workers compensation and unemployment benefits, and the like. Meza's conduct satisfied the requirements of the statute.

Our interpretation is consistent with that of the courts of other states which have considered this issue under comparable statutes. In State v. Ramirez, 246 Wis.2d 802, 633 N.W.2d 656, (Wis.App.) rev. denied 246 Wis.2d 176, 634 N.W.2d 321 (Wis.2001), the defendant, an illegal alien, was charged with identity theft for using another person's social security number to obtain employment. One of the elements of the charge was that the defendant "obtain a thing of value." 246 Wis.2d at 805, 633 N.W.2d 656. The Wisconsin Court of Appeals rejected Ramirez' argument that a job did not, in and of itself, have value, stating:

"We think this is far too narrow a concept of the value of Ramirez's employment at Trek Bike. True, Ramirez obtained employment at Trek Bike. But what Ramirez ultimately sought and obtained was the compensation and other economic benefits that flowed from the employment. Obviously these were things of value within the meaning of [the statute]." 246 Wis.2d at 808, 633 N.W.2d 656.

See also the opinion affirming a defendant's conviction under Illinois' identity theft statute in People v. Montoya, 373 Ill.App.3d 78, 84-85, 311 Ill.Dec. 389, 868 N.E.2d 389 (2007), in which the court followed the reasoning in Ramirez, stating:

"Obviously, had defendant not used [the victim's] name and social security number to obtain a job, she would not have been entitled to receive the wages and insurance benefits that flowed directly from her employment. While it is true that defendant did not actually steal money or services from her employer, she did obtain employment, compensation, and insurance benefits by misrepresenting herself as someone else. Contrary to defendant's assertion, the statute did not require her to `defraud' her employer by `stealing money' or by `being compensated for services not actually rendered' in order to be guilty of identity theft. Again, the `fraudulent' behavior in this case consisted of defendant's knowing use of [the victim's] identifying information to obtain employment, wages, and benefits to which she would not otherwise have been entitled."

There was substantial evidence to support Meza's conviction under K.S.A.2004 Supp. 21-4018(a).

Statute of Limitations

Next, Meza points out the 2-year limitation period of K.S.A.2004 Supp. 21-3106(8) and argues that the limitation period began to run when she first used the false social security card to obtain employment in 1998. This prosecution did not commence until 2004.

The statute of limitations for prosecution of identity theft is 2 years pursuant to K.S.A.2004 Supp. 21-3106(8). The question is whether K.S.A.2004 Supp. 21-4018(a) criminalizes a single, isolated act, or an entire course of conduct. According to K.S.A.2004 Supp. 21-3106(10), a separate offense is committed each time every element of the offense occurs, unless it plainly appears that the legislature intended to prohibit a continuing offense, in which case the offense occurs when the course of the conduct ends. Thus, if Meza's theft of Carlson's identity was a course of conduct which the...