Appeal from the Circuit Court of Kane County. No. 11-CF-1392 Honorable Allen M. Anderson, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion. Justice Birkett dissented, with opinion.
¶ 1 On February 3, 2012, following a bench trial, the defendant, Miriam Sanchez, was convicted of one count of identity theft of "credit, money, goods, services, or other property" worth between $10, 000 and $100, 000 (720 ILCS 5/16G-15(a)(1) (West 2010)). Sanchez is not a United States citizen. The conviction flowed from Sanchez's use of a social security number that was not hers to qualify for a job in which she earned a total of $22, 656.30 over the course of approximately 17 months. Her motion for a new trial was denied and she was sentenced to one year of conditional discharge. She appeals, arguing that (1) the evidence was insufficient to prove that she had the necessary criminal intent; (2) the evidence was insufficient to show that she committed "theft" of any "money, goods, or other property, " because she worked for her wages and both her employer and her victim testified that her deception had not harmed them; and (3) the trial court wrongly found that the affirmative defense of necessity did not apply. We agree with her first argument and reverse.
¶ 2 BACKGROUND
¶ 3 Sanchez was born in Guadalajara, Mexico. When she was about three years old, her parents brought her to the United States. Sanchez grew up in Aurora. Although she speaks Spanish in addition to English, she has never been back to Mexico and thinks of herself as American. Sanchez testified that she did not find out that she was in this country illegally until she was in high school and wished to take driver's education. At that time, she found out that, because she was not in the country legally, she could not get a driver's license. Although her father tried to obtain legal residency status for her at that point, he was unsuccessful.
¶ 4 In 2006, when Sanchez was a senior in high school, she became pregnant. Sanchez graduated from high school in 2007. Her son was born on July 12, 2007. Sanchez began looking for work before her son was born. Sanchez was living with her boyfriend, Hector, in the home of Hector's parents. Sanchez and Hector paid rent and a portion of the household bills, and did not get any help in paying for diapers, food, or clothing for the baby. Although Hector had occasional work through temporary agencies, Sanchez needed income as well to pay their bills. Sanchez believed Hector when he told her that she had to look for a job or they would be kicked out. Sanchez had never worked before, because when she was a student and lived at home, her parents (both of whom worked) supported her. Sanchez testified that she did not want to move back to her parents' home because it would have put more pressure on her mother at a time when her father was ill. Sanchez's father was diagnosed with cancer in January 2008, and he died 10 months later.
¶ 5 Sanchez looked for "cash paying jobs like at supermarkets" where she would not need a social security number to work, but could not find any. At some point, she obtained a social security number that was not hers. She bought it from "a random guy" she did not know. She thought the number was not assigned to anyone. Even after getting the number, she continued to look for jobs where she could be paid in cash and would not need the number, but she was not successful. She then began looking for work through temporary agencies.
¶ 6 In January 2008, Sanchez applied for work with Atlas Staffing, using a false social security card with her name and the number she had obtained. In the process of applying, Sanchez showed the card and allowed it to be photocopied, and she filled out several forms (a federal I-9 form and tax forms) on which she wrote the number and signed her name. Sanchez testified that this was the only time she used the social security number to get employment and that she never used it for any other purpose, such as to apply for credit or government benefits.
¶ 7 In March 2008, Sanchez obtained a temporary job through Atlas Staffing. She worked through Atlas until July 2009. During that period, she earned a total of $22, 656.30. She used this money to pay bills and meet the needs of her baby. Anna Jarnebro, the comptroller for Atlas Staffing, testified that Sanchez was paid wages for the work she performed, never stole from the company, and left as an employee in good standing. Jarnebro had no knowledge of anything negative about Sanchez.
¶ 8 In September 2009, Aurora police officer Donald Corp was assigned to investigate potential identity theft. He spoke with Sanchez and took a recorded statement from her. In the statement, Sanchez admitted that she had obtained employment through Atlas Staffing by using a social security number that was not hers. She did not steal the number and thought that it was a random and unassigned number when she bought it. She had since destroyed the false documents she bought (which included a social security card and a State of Illinois identification card), because she had married a United States citizen and was pursuing citizenship through legal procedures. Corp testified that Sanchez was 100% cooperative and was very remorseful. Sanchez also indicated to Corp that she would be willing to pay restitution, but his investigation did not reveal that anyone was out any money. Corp's investigation showed that Sanchez never used the social security number for anything other than getting a job and had not engaged in any other criminal activity. An audio recording of Corp's interview of Sanchez was played at trial and admitted into evidence without objection. The recorded interview lasted for approximately 8½ minutes. The recording appeared to have been made after Corp and Sanchez had already spoken together, as in it Corp referred to Sanchez having previously told him certain things (such as Sanchez being willing to pay restitution or do anything else necessary to make things right). Generally speaking, the recording confirmed Corp's in-court account of the interview.
¶ 9 The social security number used by Sanchez belonged to Maria Hernandez. At trial, Hernandez stated that she was an "extremely good friend" of Sanchez's mother. In the interview of Sanchez, Hernandez's name was mentioned twice. The first time was approximately halfway through the interview, when the following exchange occurred:
"[CORP]: And this Social Security number, you don't know who it belonged to?
[SANCHEZ]: No, I don't.
[CORP]: Okay. And I brought—mentioned the name Maria Hernandez earlier, that's who it actually belongs to, and you don't know Maria Hernandez?
[SANCHEZ]: No, I don't."
The second mention of Hernandez was near the end of the interview:
"[CORP]: We had talked about earlier as well—obviously, Miss Hernandez, you know, felt the need to file a police report. You know, she got some documents from the IRS and there was a concern there. So it's been a little bit of a heartache for her, obviously. She hasn't suffered any financial loss, you know, but again, she—they may try to go after her. With that being said, if Miss Hernandez were to hear this, what would you like to tell her in your own words?
[SANCHEZ]: That I'm extremely sorry for the inconvenience that she had to pass and if there's anything I can help her with, I'll be glad to help her.
[CORP]: Okay. And we had mentioned just a short time before we started this tape that restitution is something that you'd be willing to do. And you understand what restitution is?
[CORP]: Okay. You know, if the IRS comes back and says, 'hey, you owe x amount of dollars, ' you'd be willing to pay that—not necessarily in one lump sum—but at some point to help rectify and make the situation better.
[CORP]: That's something you'd be willing to do as well, correct?
[SANCHEZ]: Yes, I do.
[CORP]: Okay. Is there anything else that you would like to add or that you can think of with regards to this?
[SANCHEZ]: No, pretty much, I'm sorry, sorry that she had to go through this. And again, if there's pretty much anything I can help her with, I'll be glad to do it." At trial, both Hernandez and Sanchez testified that they did not know, until after Sanchez spoke with Corp, that the number Sanchez had used belonged to Hernandez.
¶ 10 Hernandez testified for the State that she did not give Sanchez permission to use her social security number. Hernandez did not know of Sanchez or anyone else using her number for any purpose other than the one occasion on which Sanchez used it to get a job; no one ever used it to open any accounts or get any credit cards. Hernandez was not out any money from Sanchez's use of the number. Hernandez was also called by the defense and testified that she was aware of Sanchez's reputation for truthfulness and honesty in the community, and that it was excellent.
¶ 11 On September 30, 2009, Sanchez was charged by complaint with identity theft of between $300 and $2, 000, under section 16G-15(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/16G-15(a)(1) (West 2010)). She was indicted on a more serious level of the same charge (identity theft of between $10, 000 and $100, 000) in May 2010. In July 2011, the trial court granted Sanchez's motion to dismiss the indictment for failure to allege an element of the offense. The State refiled the charge and the case proceeded to a bench trial on January 30, 2012. On February 3, 2012, the trial court issued its ruling, finding Sanchez guilty of identity theft of between $10, 000 and $100, 000, a Class 1 felony. On March 14, 2012, after denying Sanchez's motion for a new trial, the trial court sentenced her to one year of conditional discharge.
¶ 12 Sanchez, who married a United States citizen in September 2010, now has three children. She is currently pursuing citizenship for herself. She filed a timely notice of appeal from her conviction.
¶ 13 ANALYSIS
¶ 14 On appeal, Sanchez raises three arguments: (1) that the State did not prove beyond a reasonable doubt that she knew that the social security number she used belonged to another person, as required for a conviction; (2) that the State did not prove beyond a reasonable doubt that she committed a "theft" of $10, 000 or more by receiving wages for work she performed at a job she obtained by fraud; and (3) that the trial court erred in rejecting her affirmative defense of necessity.
As we find the first argument persuasive, we do not reach the others.
¶ 15 Sufficiency of the Evidence: Mens Rea
¶ 16 Sanchez's primary argument on appeal is that the evidence was insufficient to prove beyond a reasonable doubt that Sanchez had the necessary mental state to sustain a conviction of identity theft. The State responds by asserting that the evidence was sufficient.
¶ 17 Section 16G-15(a)(1) of the Code provides that a person commits identity theft when he or she knowingly "uses any personal identifying information or personal identification document of another person to fraudulently obtain credit, money, goods, services, or other property." 720 ILCS 5/16G-15(a)(1) (West 2010). Thus, the mens rea that must be proved is that the defendant acted knowingly.
¶ 18 In this case, there are two components to the question of the sufficiency of the evidence regarding Sanchez's mental state. The first is whether the State was required to prove both (a) that Sanchez knowingly used "personal identifying information" (i.e., a social security number) and (b) that she knew that it was a social security number "of another person." As this is an issue of statutory interpretation, we consider it de novo. Lee v. John Deere Insurance Co., 208 Ill. 2D 38, 43 (2003). The second component is whether, assuming that the State was required to show that Sanchez knew that the number belonged to someone else, the evidence was sufficient to meet this requirement. This issue is subject to the familiar standard enunciated in People v. Collins, 106 Ill.2d 237 (1985). Under that standard, the relevant question is " '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.' " (Emphasis in original.) Id. at 261 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In assessing the sufficiency of the evidence, we do not retry the defendant, reweigh the evidence, or substitute our judgment for that of the trier of fact regarding the credibility of a witness. People v. Ross, 407 Ill.App.3d 931, 935 (2011). However, we bear in mind that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged." In re Winship, 397 U.S. 358, 364 (1970); see also People v. Carpenter, 228 Ill.2d 250, 264 (2008). "Simply stated, the fact that defendant is 'probably' guilty does not equate with guilt beyond a reasonable doubt." People v. Ehlert, 211 Ill.2d 192, 213 (2004). If, after a careful examination of the evidence, we "are of the opinion that the evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt, we must reverse the conviction." People v. Smith, 185 Ill.2d 532, 541 (1999); see also People v. Hernandez, 312 Ill.App.3d 1032, 1036 (2000) ("That is, a criminal conviction cannot stand on appeal if the prosecution's evidence is so weak as to create a reasonable doubt [as to] defendant's guilt."). Although the determinations of the trier of fact are given great deference, they are not conclusive. People v. Ortiz, 196 Ill.2d 236, 259 (2001). We will set aside a criminal conviction if "the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt." Id.
¶ 19 At trial, the State argued that the "knowingly" mens rea applied only to the word that immediately follows it in the statute, "uses." The State contended that it was required to show only that Sanchez knowingly used the social security number—that is, that she did not simply write down Hernandez's number by mistake. On appeal, however, the State concedes that Sanchez is correct in arguing that it was required to prove that she knew that the number belonged to another person. We agree with the State's current reading of the statute.
¶ 20 In Flores-Figueroa v. United States, 556 U.S. 646 (2009), the United States Supreme Court construed a federal identity theft statute that was very similar to the Illinois identity theft law. The federal statute provided that it was a crime to "knowingly transfer, possess, or use, without lawful authority, a means of identification of another." 18 U.S.C. § 1028A(a)(1) (2006). That case, like this one, involved an illegal immigrant who used a counterfeit social security card to obtain employment. Unbeknownst to the defendant, the number belonged to someone else. The government argued that the "knowing" requirement applied to the "use" element and to the element that such use was "without lawful authority, " but not to the element that the identification belonged to "another." Flores-Figueroa, 556 U.S. at 648. The Supreme Court rejected this argument, holding that the statute required the government to show that the defendant knew that the number he used belonged to another person. Id. at 657. It noted that "courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word 'knowingly' as applying that word to each element." Id. at 652.
¶ 21 In People v. Hernandez, 2012 IL App (1st) 092841, a recent case involving the Illinois identity theft law, the First District of the Appellate Court adopted the reasoning of Flores-Figueroa. The court noted that our own supreme court has held (interpreting a different criminal statute) that, when a mental state such as "knowingly" is placed near the beginning of a statute, it is "the requisite mental state applicable to the provision as a whole." People v. Frieberg, 147 Ill.2d 326, 347 (1992). In accord with this principle, in order to prove that a defendant committed identity theft under section 16G-15(a)(1) of the Code, the State must prove that he or she "knew the personal identifying information that [he or] she used was that 'of another person.' " Hernandez, 2012 IL App (1st) 092841, ¶ 39. We agree with the analysis in Hernandez and accept the State's concession that it was required to show that Sanchez knew that the social security number she used to get a job belonged to someone else. We now turn to the question of whether the evidence, viewed in the light most favorable to the State, established such knowledge.
¶ 22 Even under the deferential Collins standard, we must conclude that the evidence does not show that Sanchez knew that the social security number she used belonged to someone else. The only direct evidence on this issue is Sanchez's own testimony that she thought the number was a "random, " unassigned number, and did not know that it belonged to another person. Sanchez's testimony on this point was consistent with her earlier statement to the police, in which she expressed remorse, offered restitution, and asserted that she did not know that the number belonged to anyone.
¶ 23 The State argues that there was conflicting evidence regarding Sanchez's knowledge, allowing the trial court to resolve the conflict in the State's favor. The State points to evidence that Sanchez knew she could not get a valid social security number because, after she found out she could not get a driver's license, she knew she was not in this country legally; that she paid someone outside of legal channels to acquire the number; and that, when she used the number, she obtained employment and was able to work and receive wages for over a year. In response to Sanchez's oral motion for a directed finding, the trial court found that the State had made out a prima facie case of identity theft because the evidence showed that (1) Sanchez had paid someone for the number and (2) the number was successful in that it allowed employment.
¶ 24 However, neither the evidence cited by the State nor the trial court's conclusions address the issue at hand, because they do not show that Sanchez knew that the social security number belonged to someone else. The evidence did show that Sanchez knew that the number she used was not her own—she had to purchase it from someone, rather than getting it from the Social Security Administration. However, this does not imply any knowledge that the number belonged to someone else; it could have been a made-up number. Similarly, the fact that the number "worked" (in that it allowed Sanchez to get a job) does not establish that a reasonable person should have known that it was the social security number of a real person. There was no testimony from Atlas Staffing that, in fact, the number used by Sanchez was identified by the Social Security Administration as being either genuine or fraudulent, nor any evidence that, for the purposes of working at a temporary employment agency, a real number "works" better than a made-up number. Absent evidence to the contrary, there is no basis to doubt that made-up social security numbers are equally successful in allowing employment. Moreover, Sanchez would not have known that the number "worked" until she had used it successfully at least once to get employment. Because Sanchez testified ...