Opinion
No. 105,653.
2012-11-21
STATE of Kansas, Appellee, v. Michele E. CAPPS, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Michele Capps of identity theft and no proof of insurance. The charges arose because Capps provided a Sedgwick County Sheriff's deputy with her sister's name, date of birth, and Social Security number during a traffic stop in order to avoid arrest for driving on a suspended license.
Capps raises two issues on appeal. First, she contends the State failed to present sufficient evidence to establish her guilt of identity theft. Second, Capps alleges the trial court failed to insure a unanimous verdict because the judge did not comply with the statutory procedures for accepting a jury verdict, as articulated in K.S.A. 22–3421. We affirm the convictions.
Factual and Procedural Background
In the early morning of September 10, 2009, Sedgwick County Sheriffs Deputy Joel Blogref, stopped an automobile for driving without its headlights. Deputy Blogref asked the driver, later identified as Capps, for her driver's license and proof of insurance. Capps replied that she did not have her driver's license, other form of identification, or proof of insurance. The deputy then asked Capps for her name, date of birth, and Social Security number. Capps provided the name of her sister, Rebecca Williams, an address, and Williams' date of birth and Social Security number.
Deputy Blogref personally served Capps with a citation in Williams' name for operating a vehicle without headlights, no proof of insurance, failure to have her driver's license in her possession, and failure to notify the Department of Revenue, Motor Vehicle Division, of a change of address.
In late 2009, Williams received written notification that her driver's license was suspended and an arrest warrant had been issued for her failure to appear in court to answer for the traffic offenses she allegedly committed on September 10, 2009. Williams went to the Sedgwick County Courthouse and contacted victim services because she was not the individual who committed the traffic offenses. Sometime later, Williams spoke with Capps about the situation. Capps admitted that she used Williams' identity—including her date of birth and Social Security number—on September 10, 2009. Capps also told Williams “she would turn herself in for what she had done.”
Shortly thereafter, Capps contacted the district attorney's office to advise that she had provided her sister's identity information, instead of her own, during the traffic stop. As a result, Deputy Blogref contacted Capps by phone and asked her for her correct identity information. Capps provided the correct information. The deputy then asked Capps why she had used her sister's identification during the traffic stop, and Capps told him “she was driving on a suspended license and didn't want to be arrested.” Later, Capps gave Deputy Blogref a written statement admitting that she had used her sister's identity during the traffic stop.
Capps was charged with identity theft, a severity level 8 nonperson felony, in violation of K.S.A. 21–4018, and no proof of insurance, a class B misdemeanor, in violation of K.S.A.2011 Supp. 40–3104(d). A trial was held on November 9, 2010, and the jury convicted Capps of both charges. Capps was sentenced to 18 months' probation with a total underlying prison term of 10 months. Capps appeals.
Sufficiency of the Evidence of Identity Theft
On appeal, Capps contends the State presented insufficient evidence to establish, beyond a reasonable doubt, the crime of identity theft. In particular, Capps asserts there was insufficient proof that she used her sister's identity with the “intent to defraud.” Capps argues the legislature intended to define the phrase “intent to defraud” in accord with the “narrow and specific” definition provided in K.S.A.2010 Supp. 21–3110(10). According to Capps, this definition requires proof of both an “intent to deceive” and an intent to induce another person “ ‘to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.’ “ Capps claims that any deception on her part was totally unrelated to property. As a result, there was insufficient evidence she committed identity theft.
When a defendant challenges the sufficiency of the evidence in a criminal case, “ ‘ “the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ “ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Central to Capps' argument, however, is the interpretation of statutory language, a question of law over which this court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
The crime of identity theft originated as a means for protecting people who have their identities stolen. City of Liberal v. Vargas, 28 Kan.App.2d 867, 870, 24 P.3d 155,rev. denied 271 Kan. 1035 (2001). K.S.A. 21–4018(a) defines the crime of identity theft:
“Identity theft is knowingly and with intent to defraud for any 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.” (Emphasis added.)
K.S.A. 21–4018 does not specifically define the phrase “intent to defraud.” K.S.A.2010 Supp. 21–3110, however, provides definitions of several words and phrases used in the criminal code that apply unless “a particular context clearly requires a different meaning.” According to K.S.A.2010 Supp. 21–3110(10), “ ‘[i]ntent to defraud’ means 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 ” (Emphasis added.)
Capps argues that the definition of “intent to defraud,” provided in K.S.A.2010 Supp. 21–3110(10), contains two statutory elements which must be established to sustain a conviction for identity theft: (1) “intention to deceive” and (2) an intent to induce another person “to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.” (Emphasis added.) Capps concedes that she deceived Deputy Blogref in order to avoid arrest, but her deceit was “wholly unrelated to any kind of property.” As a result, Capps asserts her conviction for identity theft cannot stand because the State failed to establish the second element of the requisite “intent to defraud .”
On the other hand, the State contends the definition of “intent to defraud” articulated in K.S.A.2010 Supp. 21–3110 is not applicable. The State argues that K.S.A.2010 Supp. 21–3110 explicitly provides that the definitions listed in that statute do not apply “ ‘when a particular context clearly requires a different meaning.’ “
In this regard, the State explains that the legislative history of K.S.A. 21–4018 indicates that K.S.A.2010 Supp. 21–3110(10)'s definition of “intent to defraud” does not apply in the context of identity theft. For support, the State notes that prior to 2005, K.S .A. 21–4018 “required proof that a defendant acted knowingly and with intent to defraud for ‘economic benefit.’ “ (Emphasis added.) According to the State, the elimination of the “economic benefit” requirement in favor of the phrase “ ‘any’ benefit” demonstrates the legislature's intent to criminalize all possible motives for identity theft, rather than simply those involving property.
The State's argument has merit Prior to 2005, K.S.A.2004 Supp. 21–4018(a) defined the crime of 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.” (Emphasis added.) In 2005, the legislature replaced the phrase “for economic benefit” with “for any benefit.” L.2005, ch. 131, sec. 2.
“When courts are called upon to interpret statutes, the fundamental rule governing that interpretation is that ‘the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.’ [Citation omitted.]” Arnett, 290 Kan. at 47.
In the present case, the definition of “intent to defraud,” can be gleaned from the plain language of the identity theft statute when viewed in combination with the 2005 amendment. It appears that prior to 2005, “intent to defraud” was defined in conjunction with K.S.A. 21–3110. See State v. Oswald, 36 Kan.App.2d 144, 147, 137 P.3d 1066,rev. denied 282 Kan. 795 (2006); State v. Meza, 38 Kan.App.2d 245, 247–48, 165 P.3d 298,rev. denied 285 Kan. 1176 (2007). Such a definition was appropriate prior to the 2005 amendment of the identity theft statute, as the phrase “intent to defraud for economic benefit” is consistent with the elements of “ ‘[i]ntent to defraud’ “ set forth in K.S.A. 21–3110. See K.S.A.2004 Supp. 21–4018; K.S.A. 21–3110. In fact, not only do the phrases “economic benefit” and “with reference to property” not conflict with one another, they are harmonious.
In 2005, however, the legislature expanded the definition of “identity theft” to criminalize every conceivable motive for stealing another's identity. See K.S.A. 21–4018. Limiting the definition of “intent to defraud” solely to crimes relating to property renders the legislature's amendment meaningless, because “with reference to property” is quite limited while “for any benefit” is very expansive. See K.S.A.2010 Supp. 21–3110(10); K.S .A. 21–4018. Moreover, when the legislature revises an existing law, appellate courts presume the legislature intended to change the law as it existed prior to the amendment. State v. Bee, 288 Kan. 733, 738, 207 P.3d 244 (2009). In short, the deletion of the phrase “for economic benefit” and the insertion of the phrase “for any benefit” significantly changed and expanded the context of the identity theft statute.
In this regard, context is important. K.S.A.2010 Supp. 21–3110 specifically provides that the definitions listed therein do not apply when “a particular context clearly requires a different meaning.” The 2005 amendment establishes a context that obviously mandates a different meaning—a more expansive purpose to criminalize any benefit (not just an economic benefit) received by a person who uses the identity of another. In all other respects, however, the definition of “intent to defraud” found in K.S.A.2010 Supp. 21–3110 may be read in harmony with K.S.A. 21–4018. See State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009) (When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible.).
We are persuaded that “intent to defraud” in the context of identity theft is 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 for the benefit of the wrongdoer. See K.S.A.2010 Supp. 21–3110 and K.S.A. 21–4018. In the present case, such a benefit would include the avoidance of arrest by Deputy Blogref because Capps was driving while her license was suspended.
Capps essentially concedes on appeal that the evidence was sufficient to establish that she deceived Deputy Blogref, by impersonating her sister, “[i]n order to avoid being arrested.” Given this concession and employing the definition of intent to defraud as we have determined, when viewed in the light most favorable to the prosecution, the evidence was clearly sufficient to convince a rational factfinder that Capps was guilty beyond a reasonable doubt of identity theft.
Trial Court's Acceptance of the Verdict
Capps contends the district court deprived her of her right to a unanimous jury verdict because the district judge failed to comply with the statutory procedures for accepting a jury verdict as set forth in K.S.A. 22–3421.
Resolution of this issue requires this court to address issues of jury unanimity and statutory interpretation, issues over which this court exercises de novo review. See Arnett, 290 Kan. at 47 (exercising de novo review over statutory interpretation); State v.. Dayhuff, 37 Kan.App.2d 779, 784, 158 P.3d 330 (2007) (exercising de novo review over issue of jury unanimity).
A criminal defendant has a statutory right to a unanimous jury verdict. State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010); see K.S.A. 22–3421; K.S.A. 22–3423(1)(d). As a means of insuring unanimity, K.S.A. 22–3421 sets forth a specific procedure for accepting a jury's verdict in a criminal case:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by the court, with the assent of the jury, before it is discharged.” (Emphasis added.)
Thus, when accepting a jury verdict, district courts are required to follow two separate procedural steps: “First, the trial judge shall inquire whether the verdict read in open court is the jury's verdict. Second, the trial judge must poll the jury if either party requests that the jury be polled.” State v. Womelsdorf, 47 Kan.App.2d 307, Syl. ¶ 7, 274 P.3d 662 (2012).
In the present case, after approximately 20 minutes of deliberations, the jury advised the district court that it had reached a verdict. The jury foreperson delivered the verdict form to the bailiff who read the verdict into the record. Following the reading of the verdict, the following exchange occurred:
“THE COURT: [Foreperson], is that the jury's verdict?
“[FOREPERSON]: That is correct.
“THE COURT: Does either party wish to have the jury polled?
“[THE STATE]: No, Your Honor.
“[DEFENSE COUNSEL]: No, Your Honor.
“THE COURT: All right. The Court will accept your verdict and with the thanks of the Court and counsel for your service.”
Capps contends that under the first procedural requirement of K.S .A. 22–3421, a district court must inquire into the accuracy of the verdict read in open court by questioning the jury as a whole, in order that each juror is given the opportunity “ ‘to express a last minute dissent.’ “ Accordingly, Capps claims the district judge committed reversible error when he asked the jury foreperson, rather than the jury as a whole, whether the verdict read in open court was the jury's verdict.
At the outset, Capps did not object to any aspect of the trial court's acceptance of the jury's verdict in the district court. Because this issue is raised for the first time on appeal, we must consider whether it is appropriate for our review.
It is well-established: “As a general rule, a party cannot raise an issue on appeal where no contemporaneous objection was made and where the trial court did not have an opportunity to rule.” State v. Kirtdoll, 281 Kan. 1138, Syl. ¶ 7, 136 P.3d 417 (2006). Our Supreme Court has applied this general rule to decline review of an issue raised under K.S.A. 22–3421. See State v. Holt, 285 Kan. 760, 175 P.3d 239 (2008). Our court, citing Holt, has also followed this precedent under similar circumstances. See State v. Dunlap, 46 Kan.App.2d 924, 266 P.3d 1242 (2011), petition for rev. filed December 30, 2011.
Capps contends, however, there are “exceptional circumstances” which merit this court's review. In particular, she asserts this newly asserted theory solely involves a question of law and does not rely on disputed facts and the issue involves the fundamental right to a unanimous jury verdict. While there are exceptions to the general rule, we are not persuaded this case presents the exceptional circumstances necessary to merit appellate review. See State v. Poulton, 286 Kan. 1, 5, 179 P.3d 1145 (2008).
Our decision to decline review is based on several reasons. First, Capps has not alleged any harm as a consequence of the trial court's procedure used to accept the jury's verdict. Similarly, in Holt, our Supreme Court refused to consider an objection to a polling procedure raised for the first time on appeal where the appellant “failed to show that the polling procedure ... actually harmed him.” (Emphasis added.) 285 Kan. at 770. Second, in the present case, as in Holt, the trial court instructed the jury that its verdict must be unanimous. Kansas appellate courts have long held that a jury is presumed to follow the court's instructions. State v. Cromwell, 253 Kan. 495, 510, 856 P.2d 1299 (1993). Third, our review of the record in the present case reveals no suggestion that the verdict was not unanimous. The jury only deliberated for about 20 minutes, and it never requested guidance or assistance from the trial court during the deliberation process. Similarly, our Supreme Court noted in Holt, “[t]here is simply no evidence suggesting that Holt received anything other than a unanimous verdict from an impartial jury, i.e., no comments before the jury was dismissed and no posttrial affidavits from jurors or defense counsel to support Holt's allegations.” 285 Kan. at 770.
Absent any showing—let alone an allegation—that Capps received anything other than a unanimous verdict from an impartial jury, Capps has failed to establish the exceptional circumstances necessary to permit appellate review when no objection was raised before the trial court.
Finally, we observe that the provisions of K.S.A. 22–3421 clearly set forth the correct procedure for a trial court to follow in accepting the jury's verdict. That procedure provides that after the verdict is read by the clerk, the trial court should address the jury as a whole to inquire if the verdict, as read by the clerk is, in fact, the jury's verdict. If the jury unanimously agrees with the verdict, both parties should then be asked if the jurors should be individually polled. Compliance with this procedure will fulfill the statutory requirements of K.S.A. 22–3421 and its purpose—to insure accurate and unanimous verdicts.
Affirmed.