Opinion
No. 111123.
05-15-2015
STATE of Kansas, Appellee, v. Ann DILLARD, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. William C. Votypka, deputy county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
William C. Votypka, deputy county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., MCANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ann Dillard appeals her convictions and sentences on eight counts each of forgery, identity theft, and theft. Finding no error, we affirm in part and dismiss in part.
Dillard lived with Harold Steele for approximately 4 months, during which time he provided her with room, board, and some spending money in exchange for her cleaning his home. Steele kept checks for his bank account in a kitchen drawer, and the checks had Steele's name, address, phone number, driver's license number, and checking account number imprinted on them.
After receiving overdraft notices from his bank, Steele became aware that some of his checks were missing. Steele then went to his bank and filled out affidavits of forgery on eight checks that had been cashed for a total amount of $2,270. After determining from Steele's signature card that Steele had a justifiable claim of forgery, the bank credited all of the money back to Steele's account and returned the checks to Dillon's, Pizza Hut, and Quick Cash—the institutions that had cashed those checks. Dillon's, Pizza Hut, and Quick Cash all lost money based on these transactions.
Steele found a ninth stolen check in the pocket of his car door after Dillard borrowed the car. That check had been made payable to Dillard in the amount of $50, and it bore a forged signature that looked like the signatures on the eight forged checks.
The State charged Dillard with eight counts each of forgery, identity theft, and theft. At trial Josh Strong testified that he cashed five checks for Dillard over the course of several days—four at two separate Dillon's stores and one at Quick Cash—because Dillard told him she did not have the required identification for cashing them herself. Each time, the checks were made out to Strong, he cashed them, and he gave the money to Dillard. Similarly, Justin Smith testified that Dillard had asked him to cash a check for her during this same time frame because she did not have her identification card. The check was made out to Smith, and he cashed it at Dillon's and gave the money to Dillard.
Pizza Hut delivered pizza to two addresses on two different days. Dillard was at each of those addresses at the time the pizzas were delivered. Each time, Pizza Hut accepted checks from Steele's bank account for the pizza.
The jury found Dillard guilty on all 24 counts. Dillard sought a judgment notwithstanding the verdict or a new trial, alleging that the State had failed to prove her guilty beyond a reasonable doubt on each of the charges. The motion was denied at sentencing in light of the “overwhelming evidence” presented against Dillard.
Before sentencing, Dillard moved the court for a departure sentence, although the motion did not give any substantial or compelling reasons that would support a departure. At sentencing, the district court denied Dillard's motion for a departure and sentenced Dillard to a controlling term of 37 months' imprisonment with 12 months' postrelease supervision.
For her first issue on appeal, Dillard asserts that the State violated an order in limine by eliciting testimony from Steele that referenced her prior incarceration. Before trial, the district court entered an order in limine excluding all reference to Dillard's prior crimes. During the trial, the following exchange occurred during Steele's testimony:
“Q. (BY [THE PROSECUTOR] ) And how do you know Miss Dillard?
“A. Well
“Q. Did she ever live with you?
“A. I got acquainted with her through my daughter when she was incarcerated.
“[DEFENSE COUNSEL]: Objection.
“A. And she
“Q. (BY [THE PROSECUTOR] ) Mr. Steele
“A. —eventually visited and she c[a]me and lived with me for a while.
“Q. And
“[DEFENSE COUNSEL]: Objection, Your Honor.
“THE COURT: Let's not call any more attention to it, all right? Next question.”
Dillard argues that this violation substantially prejudiced her because the jury (1) could have inferred that because Dillard had a prior conviction, she was more likely guilty of committing the crimes in this case; (2) could have concluded that due to her prior criminal activity, Dillard deserved punishment as a general wrongdoer; and (3) could have concluded that evidence of Dillard's innocence—chiefly, her own statements denying involvement in the crimes charged here—should be disbelieved because she is a criminal.
When a party alleges that an order in limine has been violated, we must determine (1) whether a violation of the order occurred, and, if so, (2) whether the party alleging the violation has established substantial prejudice resulting from that violation. State v. Breedlove, 295 Kan. 481, 494, 286 P.3d 1123 (2012).
Dillard couches her argument in terms of the erroneous admission of evidence in violation of the order in limine. But when the issue spontaneously arose during Steele's testimony and the cat was out of the bag, Dillard did not ask for any corrective action. She did not ask the court to strike the offending testimony, issue a limiting instruction, or order a mistrial. Her counsel simply made a general, nonspecific objection, to which the court responded, “Let's not call any more attention to it, all right? Next question .” Thus, we view this issue as a criticism of the prosecutor in eliciting testimony in violation of the order in limine.
When a prosecutor has allegedly violated an order in limine, we must consider the prosecutorial misconduct factors in determining whether the defendant was prejudiced by the violation. See State v. Shadden, 290 Kan. 803, 835–36, 235 P.3d 436 (2010). Accordingly, when a party alleges an order in limine was violated through the testimony of a witness of the State, as Dillard asserts happened here, that party has a duty to inquire, outside the presence of the jury, whether the prosecutor warned or failed to warn the witness to refrain from making such statement. The prosecutor must then articulate the reason for the violation. Failure to make this inquiry renders the record inadequate to determine that a violation occurred and the issue has not been preserved. State v. Armstrong, 299 Kan. 405, 430–31, 324 P.3d 1052 (2014).
Here, there is no evidence regarding whether the prosecutor informed Steele of the order in limine. In fact, after the alleged violation of the order occurred and Dillard nonspecifically objected to it, Dillard never brought up the violation again until this appeal. Because no inquiry was made into this matter at the district court, we cannot determine whether a violation occurred. Thus this issue had not been preserved for appeal.
Next, Dillard argues that K.S.A.2012 Supp. 21–6107(a) is unconstitutionally vague on its face and unconstitutionally overbroad. Dillard concedes that she did not raise this issue at the district court, but she claims that this court can review it nonetheless because it involves a question of law and is determinative of the issue. Generally, an issue that is not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). This is true even when the issue raises constitutional grounds for reversal. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). But when the newly asserted theory involves only a question of law arising on proved or admitted facts and its consideration would be finally determinative of the case, we may consider it. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). This exception appears to apply here, so we will consider this issue on its merits.
Determining a statute's constitutionality is a question of law subject to unlimited review. In our review, we presume statutes are constitutional, and we must resolve all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).
K.S.A.2012 Supp. 21–6107(a) states: “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 any one else, in order to receive any benefit.”
The statute does not define the phrase “intent to defraud,” but K.S.A.2012 Supp. 21–5111(o) 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.” Generic criminal code definitions do not apply “when a particular context clearly requires a different meaning.” K.S.A.2012 Supp. 21–5111. Here, the only sensible meaning for “intent to defraud” as used in K.S.A.2012 Supp. 21–6107(a) is to disregard the “with reference to property” language in K.S.A.2012 Supp. 21–5111(o) because K.S.A.2012 Supp. 21–6107(a) clearly applies to all instances in which the prohibited act is designed “to receive any benefit.”
Unconstitutionally vague argument
Dillard asserts that the identity theft statute is vague on its face because this court's definition of “intent to defraud” as it pertains to the statute—which includes the intent to gain any benefit, not just to gain property—leaves ordinary individuals guessing as to whether their conduct could constitute a criminal act. She contends this definition of intent to defraud could apply to many common situations and could encourage selective prosecution, such as where a woman gives a would-be suitor at a bar another person's name and telephone number to avoid being contacted by that person in the future, or where a rock star checks into a hotel under another person's name in order to remain anonymous.
To determine whether a criminal statute is unconstitutionally vague we must decide if the statute's language “ ‘conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice.’ “ State v. Adams, 254 Kan. 436, 438–39, 866 P.2d 1017 (1994) (quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983] ). We also must determine whether the statute “adequately guards against arbitrary and discriminatory enforcement.” 233 Kan. at 418. When conducting this inquiry, criminal statutes should be given less leeway than noncriminal statutes, but a statute should not be struck down when only marginal cases raise doubts about its constitutionality. 233 Kan. at 418.
The word “defraud” as commonly understood implies more than simply lying to obtain a benefit, which is what the hypothetical woman in a bar did by giving another person's telephone number to a man to avoid further contact with that man and what the hypothetical rock star did by giving another person's name as his own when checking in to a hotel.
Certainly the woman received a benefit from her lie, as she will no longer be subjected to the man's unwanted advances. And certainly the rock star obtained a benefit from his lie, as he will not be subjected to unwanted attention due to his fame. But while a lie simply means a third person did not receive the truth, defrauding implies that someone was deceived to the point that he or she suffered a harm or detriment in the form of some loss, be it of property or power, to which that person was entitled. Examining Dillard's hypothetical situations, the man in the bar did not suffer such a loss, as he was not entitled to the woman's personal contact information in the first place. And it is difficult to fathom what detriment a hotel would suffer from a guest registering under an assumed name. In other words, the use of the word “defraud” in the statute does not fail to convey a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. Anyone reading the statute would understand that any deceit amounting to identity theft would have to cause some actual undeserved detriment to the person being deceived.
Furthermore, this statute adequately guards against arbitrary and discriminatory enforcement. Because the statute requires the defrauding of one for the benefit of another, mere lies that involve using another person's personal identifying information will not subject individuals to prosecution under this statute. Defrauding, as commonly understood, involves a sort of “taking” from the one being defrauded. This taking could be in the form of a “right, obligation, or power,” as contemplated by the definition of “intent to defraud.” But in all cases, it would require a showing that the person being deceived was left with less than what he or she was entitled to have due to the deception. When one simply does not tell the truth, this could not be shown. Thus, selective prosecution is not a legitimate concern in the context that Dillard has presented. A random man in a bar is not entitled to a woman's telephone number, and Dillard did not show that a hotel was entitled to know a guest's true identity so long as the guest pays for his or her room and abides by the hotel's rental agreement.
K.S.A.2012 Supp. 21–6107(a) is not unconstitutionally vague on its face.
Unconstitutionally overbroad argument
Dillard further asserts that the identity theft statute is overbroad because it criminalizes free speech protected by the First Amendment to the United States Constitution. Dillard argues that the statute's expansive definition of “personal identifying information” coupled with this court's definition of “intent to defraud” criminalizes the use of language protected by the First Amendment. Further, she argues that those two definitions combined result in a statute in which there is no satisfactory method of severing the statute's constitutional and unconstitutional applications.
A statute is facially invalid if it prohibits a substantial amount of protected speech. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). In conducting an overbreadth analysis, we must first construe the challenged statute. 553 U.S. at 293.
Here, K.S.A.2012 Supp. 21–6107(a) prohibits obtaining, possessing, transferring, using, selling, or purchasing another person's personal identifying information with the intent defraud any person in order to receive any benefit.
“Personal identifying information” includes such information as names, birthdates, driver's license or Social Security numbers, and bank account numbers. K.S.A.2012 Supp. 21–6107(e). In other words, it is the kind of information a person would use, either individually or in combination, to establish his or her identity to another.
Next, we must determine if the statute, as construed, criminalizes a substantial amount of protected expressive activity. 553 Kan. at 297. As noted by the Kansas Supreme Court, “[d]espite our First Amendment rights, we are not free to harm others under the guise of free speech.” State v. Whitesell, 270 Kan. 259, 271, 13 P.3d 887 (2000).
“ “ ‘[T]he goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is “ ‘communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs.’ “ [Citations omitted.]” ... A statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity.” ‘ People v. Borrelli, 77 Cal.App. 4th 703, 714, 91 Cal.Rptr.2d 851 (2000) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 82 L.Ed.2d 462 [1984] ).
Further, our Supreme Court has repeatedly held that “expressive activity may be prohibited if it ‘involves substantial disorder or invasions of the rights of others.’ “ Whitesell, 270 Kan. at 272 (quoting Champagne v. Gintick, 871 F.Supp. 1527, 1534 [D.Conn.1994] ). Finally, our Supreme Court has held that “ ‘violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact ... are entitled to no constitutional protection.” ‘ Whitesell, 270 Kan. at 272 (quoting Champagne, 871 F.Supp. at 1534.
Although K.S.A.2012 Supp. 21–6107(a) can be violated by the use of spoken words or other expressive activity, it is not aimed at protected expression; it only prohibits speech that invades the rights of others and produces special harms distinct from the communicative impact of the expressive activity.
It is the intent to defraud which criminalizes the communicative expression under the identity theft statute. This requirement of intent implicates only those situations in which harm or detriment to another, distinct from the communicative impact of the expressive activity, is the objective of the expression. Such expressions are not protected by the First Amendment. Thus, we find that K.S.A.2012 Supp. 21–6107(a) is not unconstitutionally overbroad.
In regard to her sentence, the district court sentenced Dillard to the mid-level term of imprisonment on the applicable grid box for all but two of her convictions. She received the aggravated grid box term for the other two. Dillard argues that the district court violated her rights under the Sixth and Fourteenth Amendments to the United States Constitution by relying on aggravating factors that had not been proven to a jury beyond a reasonable doubt in order to increase her sentence from the recommended, mid-level grid box sentence to the maximum grid box sentence, in violation of Apprendi v. New Jersey, 530 U.S. 466, 477, 490, 120 S.Ct. 2348, 147 L.Ed.2d (2000).
Dillard acknowledges that the Kansas Supreme Court has already decided this issue against her, but she asserts that State v. Johnson, 286 Kan. 824, 190 P.3d (2008) was wrongly decided. She maintains that K.S.A.2012 Supp. 21–6804(e)(1) requires the district court to make a record finding aggravating factors before it imposes the maximum grid box sentence in a case. She argues that under Apprendi those aggravating factors must be proven to a jury beyond a reasonable doubt.
Johnson is dispositive of this issue. In that case, the Kansas Supreme Court determined that
“K.S.A. 21–4704(e)(1) grants a judge discretion to sentence a criminal defendant to any term within the presumptive grid block, as determined by the conviction and the defendant's criminal history. The judge need not conduct any fact finding or state factors on the record. Consequently, the prescribed “ ‘statutory maximum’ “ sentence described by Apprendi, 530 U.S. at 490, is the upper term in the presumptive sentencing grid block. K.S.A. 21–4704(e)(1) is constitutional under the Sixth and Fourteenth Amendments to the United States Constitution and does not violate the holding[ ] in Apprendi. ” Johnson, 286 Kan. at 851.
K.S.A. 21–4704(e)(1) —now K.S.A.2012 Supp. 21–6804(e)(1) —has been amended since Johnson was decided to further clarify the district court's discretion to impose sentences that fall anywhere within the grid block's range of sentences.
The Kansas Supreme Court has determined that a sentence to the statutory maximum in a grid block does not violate the Sixth or Fourteenth Amendments. We are duty bound to follow that precedent, absent some indication the Supreme Court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). We see no such indication. Thus, as in Johnson, Dillard's sentences to the aggravated grid block for two of her crimes were presumptive sentences within the sentencing judge's discretion to impose. Further, under K.S.A.2012 Supp. 21–6820(c)(1), this court does not have jurisdiction to hear an appeal of a sentence that is within the presumptive sentence for the crime. Consequently, this issue is dismissed for lack of jurisdiction.
Finally, Dillard argues that the district court violated her Sixth and Fourteenth Amendment rights pursuant to Apprendi when it used her prior convictions to increase her sentences in this case because the State did not include her prior convictions in the complaint against her and the State was not required to prove those convictions to a jury beyond a reasonable doubt.
Our decision must be guided by the precedent established by the Kansas Supreme Court in State v. Ivory, 273 Kan. 44, 46–48, 41 P .3d 781 (2002). We are duty bound to follow that precedent absent some indication the court is departing from its previous position. Ottinger, 46 Kan.App.2d at 655. As the Kansas Supreme Court has repeatedly declined to reconsider this point of law, we have no reason to believe the court is departing from its holding in Ivory . See State v. Castelberry, 301 Kan. 170, 191, 339 P.3d 795 (2014) ; State v. Brown, 300 Kan. 565, 590, 331 P.3d 797 (2014). Accordingly, we conclude that Dillard's constitutional rights were not violated at sentencing as complained of here.
Affirmed in part and dismissed in part.