This is a direct appeal from a conviction for aggravated false
impersonation. K.S.A. 21-3825. The defendant, Lee Ray Banks,
appeals on the ground that the State failed to prove that the
defendant had impersonated an actual person, which, defendant
contends, is an essential element of the offense. We agree.
Accordingly, we reverse and vacate defendant's conviction.
The defendant was arrested in Kansas City, Kansas. One of the
officers testified that, when defendant was arrested, he told
them he was Eric Newton, that he was born in September 1970, and
that his mother's name was Ella May Newton. Another officer
testified Banks told them his name was "Eric Derrick Newton"
and that he was born on August 31, 1960. A third officer
testified Banks gave them several names, two being Derrick Newton
and Eric Newton. At the station, Banks signed his name to a
waiver of his Miranda rights as Derrick Newton.
The defendant was booked under his assumed name as a juvenile.
He was then recognized by another officer at the station as Lee
Ray Banks. He was interviewed again and signed another waiver
under the name Lee Ray Banks. The defendant was charged with one
count of aggravated robbery and one count of aggravated false
impersonation. The case was tried to a jury.
Banks was acquitted of aggravated robbery, but convicted of
aggravated false impersonation.
Banks argues that, under the charge of aggravated false
impersonation, the State must prove that there is an actual
person who was impersonated.
K.S.A. 21-3825 provides:
"Aggravated false impersonation is falsely
representing or impersonating another and in such
falsely assumed character:
. . . .
"(d) Doing any other act in the course of a suit,
proceeding or prosecution whereby the person who is
represented or impersonated may be made liable to the
payment of any debt, damages, costs or sum of money,
or his rights or interests may be in any manner
The language of the statute implies that there must be an
actual person who is impersonated. It speaks of "impersonating
another" and "the person who is . . . impersonated." Further, it
requires the doing of an act while impersonating whereby the
person impersonated "may be made liable to the payment of any
debt . . . or his rights or interests may be in any manner
affected." The gist of the offense is the actual or potential
harm caused to the person impersonated. Based upon the express
provisions of the statute, we conclude that an essential element
of aggravated false impersonation requires proof that the
defendant falsely impersonated an actual person. See People v.
Sherman, 116 Misc.2d 109, 110, 455 N.Y.S.2d 528 (1982) (holding
that the word "another" means a real person and not just a
fictitious or assumed name).
The record contains no evidence that "Derrick Newton" is the
name of a real person whom Banks was impersonating, rather than
merely a fictitious name. Because the State failed to prove an
essential element of the offense, the defendant's conviction must
be reversed. Based upon our conclusion, we need not address
defendant's second issue. In passing, it should be noted that
both parties agreed at oral argument, as do we, that the facts in
this case give rise to a charge of obstruction of legal process
(K.S.A. 21-3808); however, this offense was not charged.
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