2018 KA 1312
Warren L. Montgomery District Attorney Matthew Caplan Butch Wilson Assistant District Attorneys Covington, Louisiana Attorneys for Plaintiff State of Louisiana Sherry Watters Louisiana Appellate Project New Orleans, Louisiana Attorney for Defendant/Appellant Cindy Theresa White
DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 579279, Div. "G" The Honorable Scott Gardner, Judge Presiding Warren L. Montgomery
Assistant District Attorneys
Covington, Louisiana Attorneys for Plaintiff
State of Louisiana Sherry Watters
Louisiana Appellate Project
New Orleans, Louisiana Attorney for Defendant/Appellant
Cindy Theresa White BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The defendant, Cindy Theresa White, was charged by bill of information with identity theft at a value of one thousand dollars or more, a violation of La. R.S. 14:67.16(C)(1)(a), and pled not guilty. After a trial by jury, she was found guilty as charged. The trial court denied the defendant's motion for postverdict judgment of acquittal and motion for new trial. The defendant was sentenced to ten years imprisonment at hard labor. The trial court denied the defendant's motion to reconsider sentence. She now appeals, assigning error to the sufficiency of the evidence and the constitutionality of the sentence. For the following reasons, we affirm the conviction.
Originally, the bill of information also charged the defendant with theft (at a value of twenty-five thousand dollars or more) on count two, a violation of La. R.S. 14:67(B)(1). Count two was nol-prossed by the State. The statutory citations provided herein are consistent with the version of La. R.S. 14:67.16 in effect at the time of the offense, prior to amendment by 2018 La. Acts No. 401, § 1.
The defendant was subsequently found to be a habitual offender and resentenced under La. R.S. 15:529.1. As the instant appeal was instituted and lodged prior thereto, the defendant's habitual offender adjudication and sentencing are not before the court in this appeal.
STATEMENT OF FACTS
In August of 2015, Diversified Foods and Seasonings, LLC, (Diversified), a company in Covington, was seeking to hire a Human Resources (H.R.) Manager. Kimberly Wilson, the payroll supervisor at Diversified at the time, assisted in the company's efforts to fill the position. Wilson posted ads for the position on several job search websites, including Monster.com, LinkedIn, and Nola.com (the online version of the Times-Picayune Newspaper). As detailed in the ads, the position required a Bachelor's Degree (B.A.) in Human Resource Management, eight to ten years of experience in H.R., and at least three years of experience in a leadership role in a fast-paced business environment.
On or about August 16, 2015, Wilson received a cover letter and resume from Cindy White (the defendant) via e-mail, in response to the ads for the H.R. manager position. Among the credentials provided in the education section of the resume was a "B.A. History/Business Administration Management With a Concentration in Human Resources Tulane University" and a "M.A. Community Leadership & Philanthropy Studies The Hebrew University."
The company received approximately sixty-five electronic applications for the position. Wilson evaluated each application to determine if the applicant met the minimum criteria for the position before forwarding qualified submissions for interviews. After the interviews, the company sent personality and behavior assessments to three candidates, including the defendant. On or near September 18, 2015, the defendant was offered the position, which she accepted. The defendant officially began working for the company on September 30, 2015. In order to allow the company to obtain a credit check and a background check, the defendant was required to execute release of information and background investigation disclosure forms. The defendant provided the same social security number on each form and a Georgia driver's license number.
Wilson was responsible for providing the defendant with the on-boarding paperwork, which required a copy of her driver's license, social security card, Employment Eligibility Verification Form, federal and state tax forms, affirmative action form, and a policy acknowledgment form. Unbeknownst to the company at the time, the social security number provided on the on-boarding paperwork, the defendant's social security card, and the provided driver's license number differed from the numbers initially provided by the defendant on the release of information and background investigation disclosure forms. The defendant further signed the job description form, which provided a list of the minimum academic qualifications, work experience, and skills for the position, including the bachelor's degree requirements.
Shortly after the defendant was hired, in October of 2015, Dorothy "Erin" Kielly, the Director of Risk Management and the Paralegal for Al Copeland Investments (the parent company of Diversified), became concerned when the defendant failed to perform an assigned task. Kielly subsequently discovered that the defendant delegated to a "plat level employee" severe injury reporting to OSHA, one of the defendant's personal responsibilities for Diversified. After Kielly confronted the defendant about the inappropriate delegation, Kielly learned that the defendant again delegated another upper-level task to a plat level employee. After reporting her concerns to her immediate supervisor, Kielly was told that there had been concerns regarding the defendant's knowledge versus her credentials, and Kielly was instructed to verify the defendant's educational background.
Kielly initially used the numbers on the defendant's photocopied social security card and driver's license to perform an online search through the National Student Clearing House and found no record of the defendant's purported education. When Kielly contacted the registrar's office at Tulane University, she was told that they had no record of the defendant ever attending the university based on her name and social security number. As her suspicions grew, Kielly took a closer look at the defendant's employee file and located documentation of the other social security number that the defendant had initially provided. When she once again contacted Tulane University registrar's office and provided the other social security number, she was informed that the university did have a record of a graduate named Cynthia White. Keilly then performed a Google search using the name Cynthia White and discovered a LinkedIn profile for Cynthia White that included the credentials that the defendant had provided in her resume and which indicated that Cynthia worked at the Veterans Administration. Keilly ultimately spoke to Cynthia White, who confirmed that the LinkedIn profile belonged to her and also verified her social security number. Due to her falsification of documents, the defendant's employment was terminated on April 25, 2016, and her conduct was reported to the St. Tammany Parish Sheriff's Office (STPSO).
In May of 2016, Cynthia White was informed by the STPSO that an individual had used her social security number, resume, and academic credentials to acquire a job. At the time of the trial, Cynthia was employed as a Voluntary Service Specialist at the Southeast Louisiana Veterans Health Care System of the Department of Veteran Affairs in New Orleans. She attended Tulane University where she earned a B.A. in History and participated in the Navy's R.O.T.C. program. After graduation she became a surface warfare officer in the Navy for over two years. She further obtained an M.A. in Philanthropy Studies at Hebrew University in Jerusalem. At trial, Cynthia identified a copy of her LinkedIn profile detailing her work experience, acquired skills, and degrees.
Cynthia did not include her social security number or driver's license number on the LinkedIn profile page. She denied ever seeing or executing the Authorization for Release of Information and Disclosure Regarding Background Investigation forms in evidence, but confirmed that both documents included her social security number. She was unsure as to whether her driver's license number was used, as she did not have it memorized. Cynthia denied knowing the defendant or ever giving the defendant permission to use any of her personal information or achievements.
SUFFICIENCY OF THE EVIDENCE
In assignment of error number one, the defendant challenges the sufficiency of the evidence in support of the conviction. Specifically, the defendant argues that the State failed to prove that the use of Cynthia White's academic credentials or her social security and driver's license numbers resulted in credit, money, goods, services, or anything else of value being taken from Cynthia. She argues that Cynthia's academic credentials do not constitute personal identifying information under the identity theft statute and were not used to keep the job. The defendant further argues that there was no evidence of the value of the interview or the job separate from what she earned on her own performance or merit. She contends that while the degrees on the resume led to the interview, she used impressive interview skills in obtaining the job. She argues that the false resume itself did not obtain, possess, or transfer money to her, adding that she had to work for a salary. The defendant claims that Cynthia's social security number was only listed on the background check, further arguing that the provided social security and driver's license numbers were not factors that led to the interview or the job. She notes that after the interview, she used her own social security and driver's license numbers to complete the hiring paperwork and in providing payroll information. The defendant further contends that nothing of value was taken from Cynthia and that she was not impacted by the defendant's actions. The defendant argues that while inflating a resume is wrong, it is not a crime. She concludes that at best, only the minimal misdemeanor grade of the offense was proven.
Due Process requires that a conviction be based on sufficient evidence. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt. State v. Jackson, 2018-0261 (La. App. 1st Cir. 11/2/18), ___ So.3d ___, 2018 WL 5732842; see also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Morris, 2009-0422 (La. App. 1st Cir. 9/11/09), 22 So.3d 1002, 1011.
As noted, the defendant was charged with identity theft at a value of one thousand dollars or more. La. R.S. 14:67.16(C)(1)(a). Identity theft is the intentional use or possession or transfer or attempted use with fraudulent intent by any person of any personal identifying information of another person to obtain, possess, or transfer, whether contemporaneously or not, credit, money, goods, services, or anything else of value without the authorization or consent of the other person. La. R.S. 14:67.16(B). "Person" means, in part, "any individual." La. R.S. 14:67.16(A)(3). In pertinent part, personal identifying information shall include, but not be limited, to an individual's social security number and/or driver's license number. See La. R.S. 14:67.16(A)(4)(a)-(b).
At trial, Cynthia White testified that after being alerted by the police of the use of her information, she contacted credit bureaus to inquire as to any further use of her identity and none was detected. Cynthia White felt violated by the use of her social security number, personal information, and accomplishments, which she noted were not easy to acquire and involved financial obligations.
Wilson testified that the criminal background check obtained by Diversified was for Cynthia as opposed to the defendant, since the defendant provided Cynthia's social security number on the release forms. After the defendant began working at the company, Wilson observed that she was unable to complete an I-9 or manipulate Excel in order to complete basic spreadsheets. Further, while the other H.R. directors were present, the defendant failed to attend meetings conducted for the development of an Applicant Tracking System (ATS), instead sending H.R. managers at the plants to develop presentations on her behalf. After the defendant's employment was terminated, Wilson reviewed a PowerPoint Presentation purportedly completed by the defendant that included language regarding employee bonuses that was inconsistent with the company's policy. Wilson was suspicious of the language, noting that it read like a magazine article. When she conducted a Google search with some of the language from the presentation, she found the entire presentation on a website called Salary.com.
Peter Smith, the President and Chief Executive Officer at Diversified, testified that the defendant's resume was very impressive with strong credentials. The defendant was hired despite her poor performance on the standardized testing conducted by the company. In explaining the decision to hire the defendant, Smith noted that he liked many other elements, including the fact that she was personable and articulate during the interview and seemed to be ambitious. As to the critical elements considered when hiring at the senior level, Smith listed educational background, vocational background, experience base, accomplishments, and the background check for financial issues, citations, or felonies. He noted that the background check was also used to validate college attendance and verify whether such information matches their resume.
The defendant agreed to a starting salary of $95,000, and indicated she would forgo higher offers from other companies. In September of 2015, the defendant submitted a personal action request to obtain an out-of-cycle merit increase. Smith approved the request, considering the defendant's claim that she turned down higher-paid offers in accepting the position at Diversified and the fact that he was impressed with her work ethic and the relationship that they had at the time. On February 22, 2016, the defendant's salary was increased by 10.6 percent when her position changed from a director to a senior director. There were no changes in the defendant's responsibilities as a result of the change in title and increase in pay. The payroll register for a seven-month period beginning towards the end of 2015 to the beginning of 2016 showed that the defendant made a gross salary of $56,000.
Smith described the defendant's job performance as "generally fine," noting that he was primarily focused on the administrative aspect of the job. He further noted, however, that the defendant at times seemed to struggle with spreadsheets and in exercising formulas. He further observed that the defendant would sometimes present work from internet sources as incentive plans instead of developing her own plans. He noted that at one point the defendant submitted a resignation letter after he reprimanded her, regarding an unspecified deficiency in her department. Smith refused to accept the letter and the situation was ultimately forgotten. Smith noted that when it was discovered that the defendant had bypassed the background check by using another person's social security number, the company considered her actions to be duplicitous and deceitful.
STPSO Detective Stefan Montgomery investigated Diversified's complaint of the defendant providing misidentifying, fraudulent information in order to obtain a job. Detective Montgomery was provided with Keilly's report detailing her discoveries regarding the defendant's use of Cynthia White's information. Detective Montgomery verified the information provided in Keilly's report in completing his investigation, including contacting Cynthia White to verify her social security number, driver's license number, and academic credentials. After running a criminal history check using the social security number from the defendant's social security card, Detective Montgomery discovered that the defendant had convictions in Orleans and Jefferson Parishes for forgery and attempted theft.
Detective Montgomery met with the defendant in order to give her the opportunity to provide any additional information and subsequently obtained a warrant for the defendant's arrest. After the warrant was issued, the defendant turned herself in to the police and participated in a brief recorded interview. The defendant was initially informed of her Miranda rights. After she was asked how she obtained Cynthia White's information, the defendant admitted to conducting free internet searches that yielded "everything." She explained that if a person uses social media networks, a search will result in the listing of certain information about that person, which can be used to conduct a "reverse search" to acquire additional information.
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385 (La. App. 1st Cir. 11/5/99), 745 So.2d 217, 223, writ denied, 2000-0829 (La. 11/13/00), 774 So.2d 971. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the trier of fact. See State v. Mire, 2014-2295 (La. 1/27/16), ___ So.3d ___, ___, 2016 WL 314814 (per curiam); State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
Criminal statutes must be given "a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision." La. R.S. 14:3. Legislative intent is the fundamental question in all cases of statutory interpretation, and rules of statutory construction are designed to ascertain and enforce the intent of the statute. In construing the applicable criminal statute, we consider two established rules of statutory construction: (1) all criminal statutes are construed strictly; and (2) the words of a statute must be given their everyday meaning. Moreover, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction under the rule of lenity. State v. Toups, 2013-1371 (La. App. 1st Cir. 4/3/14), 144 So.3d 1052, 1056. Thus, criminal statutes are given a narrow interpretation and any ambiguity in the substantive provisions of a statute as written is resolved in favor of the accused and against the State. State v. Carr, 1999-2209 (La. 5/26/00), 761 So.2d 1271, 1274. However, if the statute is clear and free from ambiguity, the letter of the law may not be disregarded under the pretext of achieving the spirit. State v. Allen, 2014-0291 (La. App. 1st Cir. 6/4/15), 174 So.3d 1163, 1171, writ denied, 2015-1337 (La. 9/6/16), 205 So.3d 914.
Based on the evidence, the trier of fact could have reasonably concluded that the defendant used personal identifying information of another individual consisting of the social security number and driver's license number of Cynthia White, two of the types of information that are explicitly named in the non-exhaustive statutory list pursuant to La. R.S. 14:67.16(A)(2)(a)-(b). The State was not required to prove that all of the false information used by the defendant constituted personal identifying information. Evidence of the intentional use or transfer of any such information with fraudulent intent was sufficient. While Cynthia White was unable to verify her driver's license number at trial, she was certain that it was her social security number that was provided on documentation to Diversified. Additionally, Detective Montgomery testified that he reviewed Keilly's report, spoke to Cynthia, and confirmed the defendant's use of Cynthia's social security number, driver's license, and credentials. The defendant does not challenge these facts on appeal.
We reject the defendant's claim on appeal that the record was devoid of evidence that she used the personal identifying information at issue to obtain something of value. The record shows that the defendant used the information to acquire a job which allowed her to obtain money in the form of salary payments of $56,000 over a seven month period that she would not have otherwise obtained.
The issue of whether employment constitutes something of value for purposes of the identity theft statute appears to be an issue of first impression in this state. We note that this court's interpretation is consistent with that of courts in other states which have considered this issue under comparable identity theft statutes. Specifically, in states such as Colorado, Illinois, Kansas, and Wisconsin, courts have upheld convictions of identity theft involving the use of identifying information of another person to obtain employment. See People v. Molina, 388 P.3d 894 (Colo. 2017); People v. Campos, 351 P.3d 553 (Colo. App. 2015); People v. Montoya, 373 Ill.App.3d 78, 311 Ill.Dec. 389, 868 N.E.2d 389 (2007); State v. Meza, 38 Kan.App.2d 245, 165 P.3d 298 (2007); State v. Ramirez, 246 Wis.2d 802, 633 N.W.2d 656 (2001), review denied, 246 Wis.2d 176, 634 N.W.2d 321 (2001).
In Molina, the defendant used the last name and social security number of another person to obtain employment and an apartment lease. The Supreme Court of Colorado found that the defendant sought to obtain "thing[s] of value" and was guilty of identity theft. Molina, 388 P.3d at 897. In Campos, a Colorado appellate court upheld the defendant's identity theft conviction after concluding that a person who uses personal identifying information of another to obtain employment obtains a thing of value under Colorado's identity theft statute. The court, in part, noted that employment has pecuniary value in the form of salary or wages and other monetary benefits. Campos, 351 P.3d at 556. The defendant therein argued that because she worked to earn her paychecks, she never received anything of pecuniary value to which she was not entitled. In rejecting that argument, the court noted that had the defendant not used another person's name and social security number to obtain a job, she would not have been in a position to receive the financial benefits that flowed from her employment. Campos, 351 P.3d at 557. In Ramirez, the defendant admitted to the unauthorized use of another person's social security number to obtain a job. He argued, in part, that he did not obtain a thing of intrinsic value, and only acquired "the opportunity to work." Ramirez, 246 Wis.2d at 808, 633 N.W.2d at 659. In rejecting that argument, the court stated that what the defendant sought and obtained was the compensation and other economic benefits that flowed from the employment, not merely the opportunity for employment. Ramirez, supra (analyzing the issue in the context of the defendant's claim that the application of the identity theft statute against him violated the ex post facto provisions of the state's constitution).
We note that La. R.S. 14:67.16(B) explicitly indicates that there is no requirement that the use of personal identifying information and obtaining something of value be contemporaneous. Further, the statute does not require that the person whose information was used suffer any harm. This court will not craft such a requirement where the legislature has chosen not to do so. The statute unambiguously indicates that the personal identifying information must be used without that person's authorization or consent. Here, Cynthia White conclusively testified that she did not give the defendant authorization or consent to use her information and did not know the defendant.
In reviewing the evidence, we cannot say that the trial court's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662. After a thorough review of the record, viewing the evidence presented in this case in the light most favorable to the State, we are convinced that a rational trier of fact could find that the State proved beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, all of the elements of identity theft at a value of one thousand dollars or more. Thus, assignment of error number one lacks merit.
CONSTITUTIONALITY OF SENTENCING
In assignment of error number two, the defendant argues that this case does not involve the most heinous of identity thefts. She claims that Cynthia White suffered no loss from the misuse of her academic credentials that were posted online. She further notes that she performed work for Diversified for seven months. The defendant further contends that the trial court failed to consider as mitigating factors her medical conditions, noting that she suffers from sickle cell anemia and was diagnosed with cancer. The defendant argues that based on the offense and the mitigating factors, the maximum sentence of ten years imprisonment at hard labor is excessive. In response to the defendant's appeal of the sentence, the State argues that the issue is moot because the trial court vacated the sentence and resentenced the defendant under La. R.S. 15:529.1, after she was adjudicated a habitual offender.
In the instant case, the defendant was sentenced on May 29, 2018. On that same date, the State filed a habitual offender bill of information, the defendant stood mute thereon, the defendant filed a motion for appeal, and the appeal was granted. The instant appeal was filed on September 18, 2018. As contended by the State, on October 19, 2018, a hearing was held on the habitual offender bill of information, the defendant was adjudicated a second felony habitual offender, the sentence on the underlying conviction was vacated, and the defendant was resentenced. Thus, the defendant's excessive sentence argument is moot, as it concerns her original sentence that has been vacated. Any claims that the defendant might have regarding her habitual offender sentencing must be addressed in a separate appeal. State v. Hardan, 2004-171 (La. App. 5th Cir. 8/31/04), 882 So.2d 625, 626; State v. Riggins, 2004-60 (La. App. 5th Cir. 9/28/04), 885 So.2d 42. The defendant's second assignment of error is moot and will not be considered.
As noted, the defendant's appeal was granted and lodged prior to the habitual offender hearing and adjudication. This court exercised its authority under La. Code Crim. P. art. 914.1(D) to designate additional portions of the proceedings below before concluding that assignment of error number two is moot. See State v. Gilbert, 99-2338 (La. 2/4/00), 758 So.2d 779, 780 (per curiam). --------