State v. Covey

859 N.W.2d 558

State of Nebraska, appellee

v.James R. Covey, appellant.

No. S–14–241

Supreme Court of Nebraska.

Filed February 27, 2015

D. Brandon Brinegar, Deputy Buffalo County Public Defender, for appellant.

Jon Bruning, Attorney General, and Austin N. Relph for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman and Cassel, JJ.

Syllabus by the Court

1. Evidence: Appeal and Error.When reviewing the sufficiency of the evidence to support a conviction, the relevant question for an appellate court 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.

2. Statutes: Appeal and Error.Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

3. Statutes: Legislature: Presumptions: Intent: Appeal and Error.An appellate court will, if possible, give effect to every word, clause, and sentence of a statute, since the Legislature is presumed to have intended every provision of a statute to have a meaning.

4. Statutes.Where an amendment leaves certain portions of the original act unchanged, such portions are continued in force with the same meaning and effect they had before the amendment.

5. Words and Phrases: Presumptions.The same words used in the same sentence are presumed to have the same meaning.

McCormack, J.

NATURE OF CASE

This case presents the issue of whether a person can be guilty of felony criminal impersonation under Neb.Rev.Stat. § 28–638(1)(c) (Cum.Supp.2014) by uttering a false name that does not correspond to any real individual.

BACKGROUND

James R. Covey was charged with criminal impersonation in violation of § 28–638(1)(c). He was also charged with being a habitual criminal.¹

Section 28–638(1)(c) states that a person commits the crime of “criminal impersonation” if he or she “[k]nowingly provides false personal identifying information or a false personal identification document to a court or a law enforcement officer[.]” Neb.Rev.Stat. § 28–636(2) (Cum.Supp.2014), in turn, defines “[p]ersonal identifying information” as “any name or number that may be used, alone or in conjunction with any other information, to identify a specific person including a person's: (a) Name; (b) date of birth; [et cetera].” “Person” or “specific person” are not defined.

At trial, Officer Brandon Brueggemann testified that on the afternoon of April 18, 2013, he was investigating a citizen report of a man possibly selling stolen goods out of the trunk of his vehicle. Brueggemann approached Covey at a convenience store, where he was standing near the trunk of a vehicle that matched the citizen's description. Brueggemann exited the cruiser and asked Covey some general questions.

In his police report, Brueggemann stated that from prior contacts, he recognized Covey as “James Covey.” However, at trial, Brueggemann explained that he did not recognize Covey when he initially made contact.

Brueggemann testified that Covey falsely told Brueggemann that Covey's name was “Daniel Jones.” Covey concurrently told Brueggemann Covey's correct birth date.

Brueggemann returned to his cruiser to run the name and birth date through his computer terminal. As he was doing so, Covey ran away. After a pursuit, Covey was apprehended and arrested. When booked, Covey identified himself truthfully as “James Covey.”

There was no evidence at trial that the name “Daniel Jones” corresponded to an actual person, and the State did not argue that, as a matter of common sense, it must correspond to an actual person.

Covey challenged the charge of criminal impersonation on the ground that it did not apply to the utterance of a name of a fictitious individual. Covey argued that the State could have instead charged him with false reporting under Neb.Rev.Stat. § 28–907 (Reissue 2008), because he had provided the false name in an attempt to avoid an arrest warrant. False reporting is a Class I misdemeanor.

The State argued that the existence of an actual person who was being impersonated was irrelevant to the charge of criminal impersonation. It asserted prosecutorial discretion in choosing to charge Covey with felony impersonation rather than misdemeanor false reporting.

The trial court agreed with the State and overruled Covey's plea in abatement and motion to dismiss the charge of criminal impersonation. The trial court also granted the State's motion in limine to prevent Covey from presenting any argument that he must have known he was using the name of an actual person in order to be guilty of criminal impersonation. After the trial, the jury found Covey guilty of criminal impersonation.

At the sentencing hearing, Covey objected to the admission of exhibits 2 through 7 on the ground that they had just been received by defense counsel. The court offered to continue the sentencing hearing, but Covey declined. The court overruled Covey's objections to the exhibits.

The court found that Covey was a habitual criminal and sentenced him to 10 to 14 years of incarceration. The court explained that it was sentencing Covey in such a way that he would have a period of supervised release on parole after his incarceration.

ASSIGNMENTS OF ERROR

Covey assigns as error the overruling of his plea in abatement and the overruling of his motion to dismiss. Both of these assignments can be consolidated into his third assignment of error that there was insufficient evidence to support his conviction.

Covey also assigns as error the trial court's grant of the State's motion in limine and the overruling of Covey's

objection to exhibits 2 through 7 for purposes of enhancement. Finally, Covey asserts that the court imposed an excessive sentence.

STANDARD OF REVIEW

When reviewing the sufficiency of the evidence to support a conviction, the relevant question for an appellate court 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.²

Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.³

ANALYSIS

Covey argues that the evidence was insufficient to convict him of criminal impersonation under § 28–638(1)(c), because there was no evidence that the false name he provided to the law enforcement officer corresponded to any actual person.

Section 28–638(1)(c) is one of several subsections pertaining to the “crime of criminal impersonation.” Section 28–638(1) states that “[a] person commits the crime of criminal impersonation if he or she” (a) pretends to be a representative of some person or organization with the intent to gain pecuniary benefit and to deceive or harm another; (b) carries on any profession, business, or other occupation without a license, certificate, or other legally required authorization; (c) knowingly provides false personal identifying information or a false personal identification document to a court or a law enforcement officer; or (d) knowingly provides false personal identifying information or a false personal identification document to an employer for the purpose of obtaining employment.

Impersonation under § 28–638(1)(a) and (b) is a felony or a misdemeanor, depending upon the value gained or attempted to

be gained by the impersonator.⁴ Impersonation under subsection (1)(d) is always a misdemeanor.⁵ But impersonation under subsection (1)(c), the statute Covey was charged with violating, is always a felony.⁶

Section 28–636(1) defines a “[p]ersonal identification document” as

a birth certificate, motor vehicle operator's license, state identification card, ... or passport or any document made or altered in a manner that it purports to have been made on behalf of or issued to another person or by the authority of a person who did not give that authority.

(Emphasis supplied.)

Section 28–636(2), which is most directly at issue in this case, defines “[p]ersonal identifying information” as

any name or number that may be used , alone or in conjunction with any other information, to identify a specific person including a person's: (a) Name ; (b) date of birth; (c) address; (d) motor vehicle operator's license number or state identification card number as assigned by the State of Nebraska or another state; (e) social security number or visa work permit number; [et cetera].

(Emphasis supplied.)

We must determine whether, under § 28–636(2), the “person's” name or number can be a fictitious “person's” name or number, which “may be used ... to identify a specific [fictitious] person,” or, instead, whether the State must show that the defendant provided the name or number of a real person, which name or number “may be used, alone or in conjunction with any other information, to identify a specific [real] person.” We conclude that under the plain language of these statutes, a person commits felony impersonation only by giving law enforcement the personal identifying information of a specific and real individual. To the extent that there could be any reasonable disagreement about the plain meaning of the

relevant impersonation statutes, they are ambiguous. As such, we must follow our rules of construction and the rule of lenity, which will lead us to the same result.

“Person” is not defined in the definitions section of chapter 28, article 6, of the Nebraska Revised Statutes, which sets forth the “offenses involving fraud” and which contains the impersonation statutes. However, Neb.Rev.Stat. § 28–109 (Reissue 2008), found in article 1 of the criminal code, states: “For purposes of the Nebraska Criminal Code, unless the context otherwise requires: ... (16) Person shall mean any natural person and where relevant a corporation or an unincorporated...