State v. Valdiviezo-Martinez

• Citation: 486 P.3d 1256
• Decision Date: 21 May 2021
• Docket Number: No. 111,447,111,447
• Parties: STATE of Kansas, Appellee, v. Victor VALDIVIEZO-MARTINEZ, Appellant.
• Court: Kansas Supreme Court

486 P.3d 1256

STATE of Kansas, Appellee,

v.Victor VALDIVIEZO-MARTINEZ, Appellant.

No. 111,447

Supreme Court of Kansas.

Opinion filed May 21, 2021.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and, B. Keith Edward, legal intern, of the same office, was with him on the brief for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Luckert, C.J.:

Victor Valdiviezo-Martinez appeals from a jury conviction of identity theft. The conviction arose from allegations that, on or about September 20, 2012, Valdiviezo-Martinez was using the social security number of someone else with the intent to defraud his employer so he could receive a benefit. On appeal, Valdiviezo-Martinez argues the State failed to present sufficient evidence to prove he used the social security number with an intent to defraud someone in order to receive a benefit. He asserts that instead of committing fraud he earned the benefits he received. He also argues the State failed to prove he used the social security number on September 20, 2012. He contends that, if he committed a crime, he did so when he completed paperwork as he began his job in 2005. Finally, he argues the identity theft statute is unconstitutionally vague. We reject his arguments and affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Valdiviezo-Martinez was involved in a car accident in Overland Park on September 20, 2012. He provided a Mexico-issued identification card with his name on it to police officers investigating the crash. He also provided the police with an insurance card issued to Jovita Arano, whom he referred to as his wife, and a car registration card issued to Victor Arano.

After arresting and booking Valdiviezo-Martinez for driving without a license, the police officer investigating the crash decided to verify Valdiviezo-Martinez' identity. At book-in, Valdiviezo-Martinez listed his employer as a local restaurant, leading the police to contact a co-owner of the restaurant.

The co-owner confirmed that Valdiviezo-Martinez worked at the restaurant. Police obtained copies of the W-4 Valdiviezo-Martinez had completed and signed when he started working at the restaurant on May 30, 2005, and Valdiviezo-Martinez' 2011 W-2. The police learned the social security number on those documents belonged to a man with a different name who resided in the state of Washington.

The State charged Valdiviezo-Martinez with identity theft. The original complaint alleged, in part, that Valdiviezo-Martinez obtained, possessed, used, or purchased someone else's social security number. The State later amended the charge and alleged: "That on or about the 20th day of September, 2012, ... Valdiviezo-Martinez did then and there unlawfully, willfully and feloniously use any personal identifying information, to wit: social security number, belonging to or issued to another person, ... with the intent to defraud that person, or anyone else, in order to receive any benefit."

At the jury trial, the co-owner of the restaurant where Valdiviezo-Martinez had worked testified:

• He and the other owners would not hire anyone without a social security number;

• The paychecks issued to Valdiviezo-Martinez depended on the W-4 form that Valdiviezo-Martinez had completed; and

• The owners relied on Valdiviezo-Martinez' representation that the social security number belonged to Valdiviezo-Martinez when paying him.

The co-owner also testified that Valdiviezo-Martinez received a paycheck on September 19, 2012.

On cross-examination, the co-owner testified that Valdiviezo-Martinez did not steal any money from him or the restaurant, Valdiviezo-Martinez worked overtime when asked, and he would hire Valdiviezo-Martinez again if he could.

A special agent with the Social Security Administration testified that the social security number on Valdiviezo-Martinez' W-4 and W-2 belonged to someone other than Valdiviezo-Martinez. He gave the name of the man to whom the number belonged and testified that the man resided in Washington State and was born in 1990.

At the close of evidence, the trial judge instructed the jury on the elements as charged in the amended complaint, including language specifying the date of offense as being on or about September 20, 2012. The jury convicted Valdiviezo-Martinez. At sentencing, the judge granted Valdiviezo-Martinez probation with an underlying sentence of eight months.

On appeal to the Court of Appeals, Valdiviezo-Martinez argued the State failed to present sufficient evidence for a rational fact-finder to determine beyond a reasonable doubt that (1) he intended to defraud anyone and (2) he committed the offense on September 20, 2012. He also asserted the identity theft statute is unconstitutionally vague. The Court of Appeals affirmed the conviction. State v. Valdiviezo-Martinez , No. 111,447, 2015 WL 7693673 (Kan. App. 2015) (unpublished opinion). Judge G. Gordon Atcheson dissented. 2015 WL 7693673, at *6 (Atcheson, J., dissenting).

This court granted review but stayed proceedings pending the outcome of a different case arising from similar facts and involving an identity theft conviction. That case raised the question of whether federal law preempted the State from using the employment eligibility verification form, or I-9, of a defendant who is not a citizen of the United States, or any information, such as a social security number, contained within the I-9 as the basis for a state law identity theft prosecution. The United States Supreme Court held state identity theft prosecutions like this one are not preempted even if based on information, such as a social security number, that can also be found on an I-9. See Kansas v. Garcia , 589 U.S. ––––, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020). This court then lifted the stay, and we now exercise jurisdiction over this appeal. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Valdiviezo-Martinez preserved all three issues in his petition for review. In two of those issues, he challenges the sufficiency of the evidence. When a criminal defendant raises issues about the sufficiency of evidence, we examine the trial evidence in the light most favorable to the State and determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Pattillo , 311 Kan. 995, 1003, 469 P.3d 1250 (2020). To make that assessment, we must examine what the State had to prove, and that examination requires us to interpret the identity theft statute.

In interpreting statutes, we grant no deference to the district court or the Court of Appeals. But, like those courts, we seek to determine the Legislature's intent by examining the statute's wording. If that wording is plain and unambiguous, we apply it as written. If it is not clear, we can look to legislative history, background considerations, and canons of construction to help determine legislative intent. Jarvis v. Kansas Dept. of Revenue , 312 Kan. 156, 159, 473 P.3d 869 (2020).

Here, as we consider the identity theft statute, the State and Valdiviezo-Martinez disagree about which version of the identity theft statute applies. Their disagreement arises from their differing views of when the crime occurred. That date matters because the substantive law in effect at the time of the crime's commission defines what the State must prove. See State v. Rice , 308 Kan. 1510, 1512, 430 P.3d 430 (2018). Valdiviezo-Martinez contends the crime of identity theft, if committed, was completed in 2005 when he filled out the employment forms. But the State charged him with a crime committed on or about September 20, 2012. We will thus compare the 2005 and 2012 versions before we focus on the issues raised by Valdiviezo-Martinez.

The version of the statute in place on May 30, 2005, with words significant to the parties' arguments italicized, stated, in part: "Identity theft is 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." (Emphases added.) K.S.A. 2003 Supp. 21-4018(a).

The version in place on September 20, 2012, stated, in part: "Identity theft is obtaining, possessing, transferring, using , selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to defraud that person, or anyone else, in order to receive any benefit ." (Emphases added.) K.S.A. 2012 Supp. 21-6107(a).

Contrasting key parts of the two provisions helps explain the parties' arguments. We will look separately at the words defining the actus reus—that is, the action or conduct that is an element of a crime—and the mental state required when performing those acts.

Both the 2005 and the 2012 versions of the statute listed several alternative ways to commit the crime. While the lists varied somewhat, both included "using " personal identifying information, which was the charge the State brought against Valdiviezo-Martinez. K.S.A. 2012 Supp. 21-6107(a) ; K.S.A. 2003 Supp. 21-4018(a). And, here, the State charged Valdiviezo-Martinez with using a social security number, an item of identification covered by both versions of the statute. K.S.A. 2012 Supp. 21-6107(e)(6) (" 'personal identifying information' includes, but is not limited, to ... social security number or card"); K.S.A. 2003 Supp. 21-4018 ("[a] Identity theft is ... using ... identification documents or personal identification number of another person" and [b] "...