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State v. Diaz

Court of Appeals of Kansas

September 13, 2013

STATE of Kansas, Appellee,
v.
Jorge DIAZ, Appellant.

Syllabus by the Court

1. The Kansas Code of Procedure for Municipal Courts (KPMC), K.S.A. 12-4101 et seq. , governs all cases filed in municipal courts. K.S.A. 12-4102.

2. The mere signing of a municipal traffic citation— which includes a notice to appear in municipal court— does not equate to the execution of a bond or other instrument as bail as required for a conviction of aggravated false impersonation under K.S.A. 21-3825(a)(1).

3. A plea of no contest is insufficient to establish a confession of judgment under K.S.A. 21-3825(a)(2).

4. The signing of a promise to appear or pay regarding a municipal court traffic fine does not equate to a confession of judgment under K.S.A. 21-3825(a)(2).

Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Daniel D. Gilligan, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Page 18

Before PIERRON, P.J., MCANANY and ARNOLD-BURGER, JJ.

ARNOLD-BURGER, J.

Jorge Diaz challenges the sufficiency of the evidence to support his convictions for two counts of aggravated false impersonation. The factual basis for the criminal charges arose following a collision when Diaz signed a traffic citation and notice to appear in the Hutchinson Municipal Court using a false name, appeared in municipal court and pled no contest to the traffic charges using the same false name, and signed a promise to pay the fines also using the false name. Because we find the signing of a traffic citation and notice to appear does not constitute the execution of a bond or instrument of bail, we reverse Diaz' conviction for violating K.S.A. 21-3825(a)(1). We are also compelled to reverse Diaz' conviction for violating K.S.A. 21-3825(a)(2) because his plea of no contest and promise to pay fines did not result in a confession of judgment. The decision of the district court is reversed, both of Diaz' convictions are reversed, and his sentences are vacated.

FACTUAL AND PROCEDURAL HISTORY

The facts in this case are undisputed.

On January 25, 2011, Officers Ernie Underwood and Josh Long of the Hutchinson Police Department responded to a noninjury, multiple vehicle accident. A Hispanic male was the driver of one of the vehicles— a Hyundai Electra with license plate number " 193 CUK." He told Underwood that his name was Jesus Quezada and also gave a date of birth of April 21, 1985. Quezada did not have a driver's license, but he provided proof of insurance and registration on the Electra and an address— 1111 South Water Street Wichita, Kansas 67213— for the accident report. The address matched the information on the insurance card and also the vehicle's registration. Underwood also said a check with the National Crime Information Center (NCIC) revealed that Quezada did not have any warrants. Underwood issued Quezada a traffic citation for no driver's license and inattentive driving. Quezada signed the ticket as Jesus Quezada. The ticket required Quezada to appear on February 1, 2011, for a court date in Hutchinson Municipal Court.

On January 28, 2011, a person identifying himself as Jesus Quezada appeared before Hutchinson Municipal Judge Thomas Dower. The person executed a " Waiver of Right to Counsel and Trial" and signed the document as Jesus Quezada. The person pled no contest to both traffic charges and was ordered to pay fines of $75 for not having a driver's license and $35 for inattentive driving. Judge Thomas Dower stated that the person then went to the clerk of the court and executed a " Promise to Appear or Pay Fines" on January 28, 2011, signing the document as Jesus Quezada with the address of 1111 South Water Street, Wichita, Kansas 67213. Because driving without a license is comparable to a Class B misdemeanor under Kansas statutes, K.S.A. 2012 Supp. 12-4517 places the responsibility on the municipal judge to ensure that the offender is fingerprinted. See K.S.A. 2012 Supp. 8-235(a) and (e). After Quezada appeared in municipal court and pled no contest to that charge, the municipal judge ordered him to report to the Hutchinson Police Department to have his fingerprints taken as required by statute.

In addition to being at the accident scene, Long was also working at the police station on January 28, 2011. Long testified that the man from the previous accident, who he knew as Jesus Quezada, appeared to be fingerprinted and presented a fingerprint card bearing the name Jesus Quezada. Long then attempted to obtain fingerprints. As he started the fingerprinting process, Quezada hesitated and then said the name on the fingerprint card was not his real name. He said his name was actually Jorge Diaz and that he had given a different name because he was scared. Long testified that Diaz said the name on the citation— Jesus Quezada— was his friend.

Based on Diaz' declaration, Long verified Diaz' date of birth through the NCIC system. Long said that Diaz' physical description matched the computer-obtained attributes of Diaz. Diaz was then taken into custody and subsequently charged with two

Page 19

violations of aggravated false impersonation.

In Count I, the State charged Diaz with aggravated false impersonation, pursuant to K.S.A. 21-3825(a)(1), alleging that on January 25, 2011, he was guilty of " falsely representing or impersonating another, to-wit: Jesus Quezada, and in such falsely assumed character executing any bond or other instrument as bail for any party in any proceeding, before any Court or any officer authorized to take such bail or security." In Count II, the State charged Diaz with aggravated false impersonation, pursuant to K.S.A. 21-3825(a)(2), alleging that on January 28, 2011, he was guilty of " falsely representing or impersonating another, to-wit: Jesus Quezada, and in such falsely [assumed character] confessed a judgment before any Court or any officer authorized to take such bail or security."

At trial, both Underwood and Long identified Diaz as the individual who had given the name Jesus Quezada at the accident scene and later at the police station. Long testified the only information they had concerning Quezada was Diaz' statement that Quezada was Diaz' friend.

John Tracy, an investigator for the Reno County District Attorney's Office, testified concerning his research of Jesus Quezada. Tracy testified the Kansas Department of Revenue, Division of Motor Vehicles had issued driver's licenses to a couple of people named Jesus Quezada. Driver's licenses were issued to one Jesus Quezada at 1808 North Market, No. 3, in Wichita and to another at 7214 Aspen Drive, Apt. 34, in Kansas City. Neither driver's license showed a date of birth matching the date of birth given by Diaz. One of the vehicles registered in the name of Jesus Quezada was a 2004 Hyundai vehicle with the license plate of " 193 CUK." The address associated with the 2004 Hyundai was 1111 South Water Street in Wichita.

Tracy testified that when Diaz was booked the first time, he used the name Jesus Quezada with the birth date of September 28, 1978. When he was booked the second time, he used the name Jorge Diaz, date of birth September 28, 1978, and a corresponding driver's license number. Tracy testified the records did not reveal a person with the name Jesus Quezada having a ...


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