Appeal from the Circuit Court of Cook County No. 06 CR 21563 Honorable Joseph G. Kazmierski, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Epstein
PRESIDING JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
Justice Howse concurred in the judgment and opinion.
Justice McBride concurred in part and dissented in part, with opinion.
¶ 1 Following a bench trial, defendant, Maria Hernandez, was convicted of identity theft (720 ILCS 5/16G-15(a) (West 2008)). On August 21, 2009, the trial court sentenced defendant to a two-year term of probation. Defendant now claims: (1) the State failed to prove that she was guilty beyond a reasonable doubt where the State failed to prove that she knew the social security number she used to purchase a vehicle belonged to another person; and (2) there was insufficient evidence that defendant was the same person who signed the credit application containing another person's social security number. For the reasons below, we vacate and remand.
¶ 3 On November 20, 2008, Maria Hernandez was indicted on one count of identity theft in violation of section 16G-15(a) of the Criminal Code of 1961 (720 ILCS 5/16G-15(a) (West 2008)). Defendant waived her right to a jury trial. At the bench trial, the State produced four witnesses: Maria Nodarse, Ray Santiago, Detective Robert Ross, and Detective Jude Martinez.
¶ 4 Maria Nodarse testified regarding her social security number which we shall refer to as "Maria Nodarse's social security number." Nodarse testified that the Internal Revenue Service contacted her in the summer of 2008 regarding a discrepancy. She obtained a copy of her credit report and contacted the Chicago police department. Nodarse testified that she had never been to a car dealership named "Sierra" nor had she ever purchased a Mitsubishi Eclipse. She had never met defendant and did not know anyone by the name of Maria Hernandez.
¶ 5 Ray Santiago, a salesman at Sierra Auto Group, testified that an individual named "Maria Hernandez" purchased a 200l Mitsubishi on September 2, 2006. Maria Hernandez also completed a credit application for Turner Acceptance Corporation. Santiago testified that the purpose of the credit application was to determine whether a person had sufficient credit to purchase a car. Maria Hernandez used two social security numbers, one of which was Maria Nodarse's social security number. Santiago testified that if questions arose when they checked the credit application, "they ask[ed] the customer if they use[d] another social security number" and Santiago had "seen times where somebody ha[d] two social security numbers."
¶ 6 The credit application completed by Maria Hernandez consisted of two pages, which were duplicate copies of a standardized form. Both pages were signed by Maria Hernandez. The first page lists Maria Hernandez's driver's license number, date of birth (December 12, 1981), home address, employer (Marriott Hotel in Chicago), and occupation (housekeeping), but lists Maria Nodarse's social security number. The second page lists the second social security number and is otherwise incomplete.
¶ 7 After Turner Acceptance Corporation approved Maria Hernandez's credit application containing Maria Nodarse's social security number, Sierra Auto Group generated a bill of sale for the Mitsubishi Eclipse. The bill of sale also contains Maria Nodarse's social security number, but lists Maria Hernandez as the purchaser. On September 2, 2006, Maria Hernandez signed this bill of sale contract and completed the purchase of the vehicle. Santiago testified that he did not remember if he saw Maria Hernandez drive away in the vehicle.
¶ 8 Detective Robert Ross testified that in 2008 he was assigned a case of identity theft with a victim named Maria Nodarse. Detective Ross received documentation from both Ms. Nodarse and Turner Acceptance Corporation. Based on that information, he determined a possible place of employment and contacted the Marriott Hotel. He then determined the name of a possible suspect, Maria Hernandez. He contacted Maria Hernandez's brother and left a message that he wanted to speak to her.
¶ 9 On October 29, 2008, Maria Hernandez met Detective Ross at Area 3 headquarters. Detective Ross identified defendant in court as the person he met with that day. Detective Ross testified that defendant spoke primarily Spanish and Detective Jude Martinez assisted with translation "to determine if Miss Hernandez had purchased a vehicle from Sierra Motors and did she provide the social security number of the victim." After the interview, the detectives arrested defendant.
¶ 10 Detective Jude Martinez also identified defendant in court as the person whom he and Detective Ross had interviewed. Detective Martinez testified that defendant said she purchased a Mitsubishi vehicle from Sierra Auto Group using the social security number listed on the credit application and the purchase agreement (i.e., Maria Nodarse's social security number). When Detective Martinez asked her how she obtained that social security number, defendant responded that she "made it up." When Detective Martinez asked her about the second social security number listed on the credit application, she stated that she had obtained that number from her mother when she first entered the country and "she was not sure if that was a good social security number or not."
¶ 11 After the State rested, defendant moved for a directed finding in which she argued the State did not prove that she knew she used another person's identity. The trial court denied the motion. Defendant elected not to testify and did not present any evidence on her behalf. The trial court found defendant guilty. The court subsequently denied defendant's posttrial motion to reconsider. After her conviction, defendant was sentenced to two years' probation. Defendant now appeals.
¶ 13 In evaluating a challenge to the sufficiency of the evidence, a reviewing court determines "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Montoya, 373 Ill. App. 3d 78, 80 (2007) (holding that evidence was sufficient to support conviction for identity theft). The standard for reviewing the sufficiency of the evidence in a bench trial is the same as in a jury trial and is applied by the reviewing court regardless of whether the evidence is direct or circumstantial. People v. Norris, 399 Ill. App. 3d 525, 531 (2010). We will not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the accused's guilt." People v. Zizzo, 301 Ill. App. 3d 481, 486 (1998).
¶ 15 I. Whether the State Proved That Defendant Knowingly Used Personal Identifying Information of Another Person
¶ 16 Defendant first claims that the State failed to prove that she was guilty beyond a reasonable doubt of identity theft, pursuant to section 16G-15(a)(1) of the Illinois Identity Theft Law (720 ILCS 5/16G-15(a)(1) (West 2008)), because the State failed to prove that she knowingly used the identity of another person. There are two aspects to defendant's first argument, however, as summarized in her request for relief:
"Appellant respectfully requests that this Court hold that the State is required under the statute to prove that the defendant knew she was using the identity of another person. The appellant further asks this Court to apply the facts of this case to that requirement and to find the defendant not guilty." (Emphasis added.)
Thus, the instant case differs from the typical case involving the sufficiency of the evidence and calls for a different analysis. In the usual case, the only task for the reviewing court involves the second aspect of defendant's argument, i.e. applying the facts of the case to the statutory requirements to determine the sufficiency of the evidence. The instant case necessarily involves a threshold determination of what elements the Illinois Identity Theft Law requires the State to prove, which calls for statutory interpretation. At the time of trial, the Illinois identity theft statute had not been interpreted by reviewing courts in terms of what elements the State was required to prove and defendant now asserts that the trial court misinterpreted the statute. She argues that "the trial court erred in rejecting defendant's argument that 720 ILCS 5/16G-15(a)(1) requires the State to prove that defendant knew the Social Security number actually belonged to another individual."
¶ 17 Generally, when this court reviews the sufficiency of the evidence, there have been either correct jury instructions on the elements of the offense or (in the case of a bench trial) no indication that the trial judge failed to consider the required elements of the offense. Here, however, there is an indication that the trial judge failed to consider the required elements of the offense. Defendant argues that "720 ILCS 5/16G-15(a)(1) requires the State to prove that defendant knew the Social Security number actually belonged to another individual." More importantly, defendant also asserts on appeal that "the trial court erred in rejecting defendant's argument."
¶ 18 Thus, although defendant's argument "may be characterized broadly as concerning the sufficiency of the evidence," her "argument on this point has two facets." Wilson v. United States, 250 F.2d 312, 314, 324 (9th Cir. 1957). We recognize that Wilson is an older case from an outside jurisdiction, but cite it only because its procedural posture was remarkably similar to that of the instant case. Wilson also involved a bench trial in which the defendant contended that the trial court "applied an erroneous standard with respect to the subjective state of mind requisite to culpability under [the relevant statute], and further, that under the proper criterion the evidence [was] not sufficient to support *** the judgment of conviction." Id. at 314. Similarly, in the instant case, the "two facets" of defendant's sufficiency argument are: (1) the trial court misconstrued the Illinois Identity Theft Law (720 ILCS 5/16G-1 et seq. (West 2008)) and the required elements of the offense ("the trial court erred in rejecting defendant's argument that 720 ILCS 5/16G-15(a)(1) requires the State to prove that defendant knew the Social Security number actually belonged to another individual"(emphasis added)); and (2) under the proper interpretation of the statute, the State never proved defendant guilty because it failed to prove an essential element ("that defendant knew the Social Security number actually belonged to another individual"(emphasis added)).
¶ 19 A. Issues Properly Before This Court
¶ 20 Before we address the proper construction of the statute, we acknowledge that the dissent has strongly suggested that we are "sua sponte" addressing a question that has not been presented by the parties. The dissent does not disagree that the interpretation of the Illinois Identity Theft Law is before this court but states that defendant has not raised the issue "that the trial judge misapplied or misunderstood the law." Infra ¶ 95.To the contrary, in her brief, defendant has unequivocally stated: "At issue is whether the trial court erred in rejecting the defendant's argument that 720 ILCS 5/16G-15(a)(1) requires the State to prove that the defendant knew the Social Security number actually belonged to an individual." The dissent concludes that "[t]his one line in the brief is not sufficient to preserve this claim of error." Infra ¶ 98.
¶ 21 Defendant, however, has not devoted merely "one line" in her brief to the issue. After raising the "issue" of whether the trial court erred in rejecting her argument as to what the statute required the State to prove, defendant states that "[t]he answer to this issue is found in the recent United States Supreme Court opinion of Flores-Figueroa v. United States, 556 U.S. 646, 129 S. Ct. 1886, 173 L. Ed. 853 (2009)." Despite the procedural dissimilarity between Flores-Figueroa and the instant case, the "issue" raised by defendant is the precise issue that the United State Supreme Court addressed in Flores-Figueroa when discussing a comparable federal statute. Moreover, this issue of "what" the statute required the State to prove was raised by defendant in the trial court (at the close of the State's case, a second time in closing argument and a third time in a posttrial motion), was considered by the trial court, and is now again raised on appeal. By devoting a substantial portion of her brief to this issue and citing the Flores-Figueroa Court's decision interpreting the comparable statute, defendant presented a sufficient argument and provided support for her argument.
¶ 22 Defendant's argument is sufficient to avoid forfeiture. An issue is not forfeited so long as it is argued sufficiently in the argument section of the brief. Collins v. Westlake Community Hospital, 57 Ill. 2d 388, 392 (1974); see also People v. Robinson, 163 Ill. App. 3d 754, 775 n.2 (1987) (concluding that an issue was not forfeited where it was not set forth in either the " 'Points and Authorities' " or " 'Statement of Issues' " section of the brief because it "was argued, with citations to authority, on two pages in the body of [the] brief"); Department of Conservation v. First National Bank of Lake Forest, 36 Ill. App. 3d 495, 505 (1976) ("it is the content of the Argument in appellant's brief which determines the propositions relied upon in support of the appeal"). Pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. July, 1, 2008), defendant presented a sufficient argument on this point.
¶ 23 As evidence that defendant did not preserve the issue of whether the trial court misinterpreted the law, the dissent states "[a] review of the first 17 pages of the State's brief also supports the view that the only issue before us is the sufficiency of the evidence." Infra ¶ 92 . Nonetheless, the State never asserted that this issue was forfeited. More importantly, the State devotes a substantial portion of its brief, pages 17 through 23, to defendant's argument regarding what elements the statute required the State to prove. The State acknowledges that "[a]s she did before the trial court, defendant relies on the Flores-Figueroa [case]." The State further acknowledges: "in her brief, defendant argues that Flores-Figueroa's interpretation of the federal [statute] requires the same interpretation of the word 'knowingly' as used in Illinois statute." Moreover, before it addresses the sufficiency of the evidence claims, the State addresses defendant's argument on appeal and the State correctly concedes: "The trial court rejected defendant's interpretation of the statute." As to the merits of defendant's claim, the State contends that the Illinois statute "differs in several critical respects" from the federal statute. Thus, we conclude that the issue of the trial court's interpretation of the identity theft statute is properly before this court.
¶ 24 We additionally note that defendant properly raised the issue in the trial court. In her "Motion to Reconsider Verdict [sic]" defendant raised the issue of the correct statutory interpretation, and the statutory requirement of knowledge that the information belonged to "another person" and did not merely raise the issue of proof of that knowledge. As the State also acknowledges, "the trial court heard the defense's motion to reconsider the verdict and counsel again argued that Flores-Figueroa's construction of the federal [statute] applied to the Illinois [statute]." (Emphasis added.) Thus, the trial court was aware, as was the State, that defendant's argument that the trial court misinterpreted the statute was raised in the "Motion to Reconsider Verdict [sic]."
¶ 25 The issue of "whether the trial court erred in rejecting the defendant's argument that 720 ILCS 5/16G-15(a)(1) requires the State to prove that the defendant knew the Social Security number actually belonged to an individual" is properly before this court. (Emphasis added.) We now turn to the merits.
¶ 26 B. Illinois Identity Theft Law
¶ 27 In order to address defendant's argument that she was not proven guilty beyond a reasonable doubt where the State failed to prove that she knowingly used the identity "of another person," we must determine whether this is an essential element required by the Illinois Identity Theft Law (720 ILCS 5/16G-15(a)(1) (West 2008)). Defendant has argued that the trial court erred in rejecting her interpretation of the statute. Thus, if we determine that an essential element of the crime is the "knowledge" that information used actually belonged to another person, we must determine whether the trial court similarly concluded that knowledge was an element the State must prove.
¶ 28 The interpretation of this statute is an issue of first impression.*fn1 The resolution of this threshold issue involves statutory construction, which is a legal issue, and our review is de novo. See, e.g., People v. Smith, 342 Ill. App. 3d 289, 293 (2003) (interpretation of a statute is de novo). A deferential standard of review is inapplicable to this question of law. See, e.g., People v. Kohl, 364 Ill. App. 3d 495, 499 (2006) ("legal findings--such as a trial court's interpretation of a statute--are entitled to no deference").
¶ 29 Section 16G-15(a)(1) of the Identity Theft Law provides:
"A person commits the offense of identity theft when he or she knowingly:
(1) uses any personal identifying information or personal identification document of another person to fraudulently obtain credit, money, goods, services, or other property[.]" (Emphasis added.) 720 ILCS 5/16G-15(a)(1) (West 2008).
Section 16G-10 defines "[p]ersonal identifying information" and defendant does not dispute that it includes "[a] person's Social Security number." See 720 ILCS 5/16G-10(b)(5) (West 2008). Defendant also has not disputed whether the State proved the information was used to fraudulently obtain credit, money, goods, services, or other property. She argues only that the State was required to prove, and did not prove, that she knowingly used information of another person. The State argues "as the trial court suggested, it would frustrate the General Assembly's clear intent in promulgating the Identity Theft Law to allow a defendant to escape liability simply by claiming [she] made up [ a social security number] that just happened to belong to someone else."
¶ 30 "The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent. [Citation.]" People v. Comage, 241 Ill. 2d 139, 144 (2011). "The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning." People v. Jackson, 2011 IL 110615, ¶12. This court must view the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation. Id. Each word, clause, and sentence of the statute must be given a reasonable meaning, if possible, and should not be rendered superfluous. Id. In construing a statute, we may consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another. Id. "[T]he purpose of the identity theft statute is to protect the economy and people of Illinois from the ill-effects of identity theft." People v. Madrigal, 241 Ill. 2d 463, 467 (2011).
¶ 31 The issue here is whether the Illinois identity theft statute's term "knowingly" applies to all the subsequently listed elements of the crime of identity theft including "of another person." We believe it does. Although interpreting a different statute, the Illinois Supreme Court concluded that " 'knowledge,' traditionally a form of general intent, [was] the requisite mental state applicable to the provision as a whole." People v. Frieberg, 147 Ill. 2d 326, 347 (1992). The Frieberg court was interpreting section 401.1(a) of the Illinois Controlled Substances Act (formerly Ill. Rev. Stat. 1987, ch. 56 1/2 , ¶ 1401.1(a)) and its description of "controlled substance trafficking." The relevant language stated: "any person who knowingly brings or causes to be brought into this State for the purpose of manufacture or delivery or with the intent to manufacture or deliver a controlled or counterfeit substance is guilty of controlled substance trafficking." (Emphasis added.) Id. The Frieberg court concluded that "knowledge"was the requisite mental state applicable to provision as a whole and, thus, it is necessary to prove that individual charged with violating section 401.1(a) have both knowledge of the "bringing" of the controlled substance as well as knowledge of the end or aim of that activity. Id.
¶ 32 The Frieberg court discussed the section of the Criminal Code of 1961 pertaining to mental state (now 720 ILCS 5/4-3 (West 2008)), section 4-3(b), which states: "[i]f the statute defining an offense prescribed a particular mental state with respect to the offense as a whole, without distinguishing among the elements thereof, the prescribed mental state applies to each such element." The Frieberg court noted that "regarding section 4-3(b), *** often a mental state word such as 'knowingly' is positioned in a statute so that, grammatically, it may apply to all the elements of an offense." Frieberg, 147 Ill. 2d at 347. In the instant case, the word "knowingly" in the Identity Theft Law immediately precedes a colon and is positioned before all of the elements of the offense. Thus, we believe that the word "knowingly" applies to all of the subsequently listed elements of the offense, including "of another person."
¶ 33 Defendant relies on Flores-Figueroa v. United States, 556 U.S. 646, 129 S. Ct. 1886 (2009). In Flores-Figueroa, the United States Supreme Court construed a similar federal statute. "A federal court's construction of a federal statute is not binding on Illinois courts in construing a similar state statute." People v. Gutman, 2011 IL 110338, ¶ 17. Nonetheless, we believe that the Flores-Figueroa Court's reasoning regarding the "knowledge" requirement is applicable to the issue of the similar "knowledge" requirement in the Illinois identity theft statute. See Gutman, 2011 IL 110338, ¶ 17 (explaining that it would consider United States Supreme Court opinion "at length" because the plurality and the dissent contained "thorough and reasoned arguments" regarding the definitions of the terms that were also at issue in the Illinois statute).
¶ 34 The federal aggravated identity theft statute provides, in relevant part:
(1) In general. Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years." (Emphasis added.) 18 U.S.C. § 1028A(a)(1) (2006).
The issue before the Flores-Figueroa Court was whether the defendant could be convicted under the statute regardless of whether he actually knew the false information he used belonged to someone else. The facts in Flores-Figueroa showed that the defendant had obtained and used counterfeit identification documents for employment purposes for years that did not belong to any actual person. However, he received new documents with new numbers which turned out to actually belong to others. At Flores-Figueroa's trial, the government had argued that it was inconsequential whether he knew that his second set of documents was "a means of identification of another person." Flores-Figueroa, 556 U.S. at ___, 129 S. Ct. at 1888-89. Not only had the district court "accepted the Government's argument" but "[t]he Court of Appeals upheld the District Court's determination." Id. at ___, 129 S.Ct. at 1888. The Supreme Court disagreed and explained that the statute's "knowingly" requirement applied to each term of the provision. Thus, the Flores-Figueroa Court held that the statute required the government to show that the defendant knew that the means of identification at issue, in fact, belonged to another person. Id. at ___, 129 S. Ct. at 1894.
¶ 35 The State argues that one "critical" difference between the Illinois state statute and the federal statute is that the Illinois statute "is not a[n] enhancement statute and does not carry with it a mandatory prison sentence." This is a distinction without a difference in terms of statutory interpretation of identical language.
¶ 36 The State further notes that "Illinois has a corollary Aggravated Identity Theft statute, 720 ILCS 5/16G-20, which defendant was not charged under," and argues that "adding the more stringent mens rea requirement from the federal enhancement statute would be inconsistent with the Illinois statutory scheme." The State's analogy of Illinois's statutory "scheme" to the federal scheme is flawed. The Illinois aggravated identity theft statute provides, in relevant part:
"(a) A person commits the offense of aggravated identity theft when he or she commits the offense of identity theft as set forth in subsection (a) of Section 16G-15:
(1) against a person 60 years of age or older or a disabled person as defined in Section 16-1.3 of this Code; or
(2) in furtherance of the activities of an organized gang." 720 ILCS 5/16G-20 (West 2008).
Thus, any "enhancement" pertains to the victim's age or disability or to the defendant's gang involvement and has nothing to do with the knowledge requirement at issue here. The State's references to the so-called "additional scienter requirement" and "the more stringent mens rea requirement" of the Illinois aggravated identity theft statute in support of its attempt to limit the knowledge requirement to the Illinois aggravated identity theft statute fails.
¶ 37 Additionally, contrary to the State's assertion, the Illinois aggravated identity theft statute is not a "corollary" to the federal enhancement statute. Instead, the Illinois Identity Theft Law at issue here is the "corollary" to the federal enhancement statute construed in Flores-Figueroa because both contain the knowledge requirement. Under the federal statutory scheme, the underlying predicate offense committed by defendant in Flores-Figueroa did not have the knowledge requirement, only the enhancement statute contained the knowledge requirement. Under Illinois's statutory scheme, however, it is the predicate offense, the one defendant here was charged under, that contains the knowledge requirement.
¶ 38 The State, in another attempt to distinguish Flores-Figueroa, also notes that "at least one state court has rejected a similar attempt to apply Flores-Figueroa to its identity law." We find inapposite the case cited by the State, State v. Garcia, 788 N.W.2d 1 (Iowa Ct. App. 2010). The Garcia court interpreted an Iowa statute that provided: "A person commits the offense of identity theft if the person fraudulently uses or attempts to fraudulently use identification information of another person, with the intent to obtain credit, property, services, or other benefit." Iowa Code Ann. § 715A.8 (West 2005). Unlike the federal statute and the Illinois statute, the Iowa statute did not contain the word "knowingly." The Iowa statute criminalized "fraudulent" use and did not require that a defendant know that the identification information he used actually ...