Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.
1. Identity theft, prior to 2005, is knowingly and with intent to defraud for economic benefit; obtaining, possessing, transferring, using, or attempting to obtain, possess, transfer, or use one or more identification documents or personal identification numbers of another person other than that issued lawfully for the use of the possessor.
2. Multiplicity is charging a single offense in more than one count of a complaint or information; it creates the potential for multiple punishments for a single offense, violating the Double Jeopardy Clause of the Fifth Amendment and § 10 of the Kansas Constitution Bill of Rights.
3. The overarching inquiry in deciding whether convictions are for the same offense has two components, both of which must be met for a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?
4. K.S.A. 2004 Supp. 21-3106(10) states an offense is committed when every statutory element occurs.
5. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature's intent as expressed rather than determining what the law should or should not be.
6. Using this rule of statutory construction, the meaning of the legislature appears plain to us. Each time an innocent person's identity is intentionally used for some fraudulent purpose it is a crime. Each use of another person's identity is a unit of prosecution for the crime of identity theft.
7. Since the determination of whether conduct constitutes multiple acts is a question of law, there is no reason to submit to the jury a common scheme jury instruction.
8. A sentencing court can rely on a jury's finding that a defendant is not amenable to probation as a substantial and compelling reason to either increase the duration of a sentence or make a more restrictive disposition of a sentence or both.
9. An appellate court need not address all challenges to the aggravating factors given by the sentencing court to support the departure sentence as long as one or more of the factors relied upon is substantial and compelling.
The opinion of the court was delivered by: Hill, J
Before RULON, C.J., ELLIOTT and HILL, JJ.
Carl Mack Green was convicted of three counts of identity theft. Since he used only one person's identity, Green now contends we must overturn two of his convictions because he is being punished three times for the same crime. Because Green used the stolen identity at three different retailers over a 2-day period, we hold his convictions are proper.
Green also appeals his departure sentence, contending the aggravating factors determined by his jury were not compelling and not found in the sentencing statute. Finally, he thinks the jury, not the judge, should have decided his criminal history. Because controlling case law and statutes show Green is wrong, we hold his departure sentence is proper. We affirm.
First we look at the issues raised about the identity theft convictions. Next we list the elements of the crime of identity theft to provide a means to evaluate Green's acts. Following the review of the facts, we address the double jeopardy--multiple conviction argument Green brings. Finally, our ...