*1 ALVARADO, Paul Petitioner:
Respondent: The PEOPLE
the State Colorado.
No. 04SC868.
Supreme Court Colorado.
April Kaplan,
David S. State Public Colorado Defender, Dayton, Deputy Pamela A. State Defender, Denver, Public for Petitioner. Suthers, General, Attorney Cath- John W. Adkisson, Attorney P. First Assistant erine General, Division, Appellate Criminal Justice Section, Denver, Respondent. HOBBS, Justice. granted certiorari to review court Alvarado, People v. appeals’ 03CA0158, (Colo.App.
No. WL 2536862 Nov.10, 2004), construing Colorado’s 18-5-113(l)(e), (2005).1 argues that Defendant for conviction: provision two acts second, first, impersonation; the act of á from which defendant intends receive disagree. pro This a benefit. We impersonation that an act of criminal scribes respect changed material The statute has on certiorari reads: crime in so the time of defendant’s from Whether a conviction for criminal to the 2005 of the statutes. we cite volume ation under act, requires proof other than which a defen- the act of from receive a dant intends to *2 requirement prosecution repeated for the the on involves a the name of street listed the computer mental states. and asked Alvarado if the street familiar; replied name sounded he “no.” Reading section 18-5-113 as whole we (l)(e) of that this stat- determine subsection computer that Noting the record listed knowing use of ute criminalizes defendant’s “junior,” Frank Robert Guerrero as a with officer Alvarado his name. Al- asked father’s the intent replied asking “George.” varado After himself another “jun- why computer rado listed him as a case, person. defraud another “George,” ior” if his father’s name was he person’s identity utilized another defendant replied computer wrong. must be police arrest on an to avoid outstand- stop The two officers involved then ing Accordingly, uphold warrant. we proper- searched vehicle and found stolen appeals judgment affirming of the court ty. They posing arrested Alvarado —still defendant’s criminal convic- investigation Guerrero —for and theft theft tion. by receiving. police The later learned Alva- rado’s true and that there was a I. warrant out for his arrest.2 police stopped a The vehicle de- (“Alvarado”) fendant Paul Alvarado was a charged The Alvarado with passenger. arresting After driver due to (2002), by receiving, § theft warrant, outstanding officers 18-5-113(l)(e), impersonation, § and began questioning Alvarado. stat- Alvarado jury guilty The found him him, ed that he did not have his license guilty but not of theft his but wrote name birth date for the by receiving. provided doing so officer. Alvarado appealed his name, Guerrero, Frank Robert and a conviction, arguing that the statute re- date. The officer birth returned to his conviction, quired “assuming two acts for car, computer using searched his the false capacity” false or fictitious and an date, and birth a matching name located from which he computer reported record. The record no disagreed The of appeals court outstanding warrants for Frank Robert agree and affirmed his conviction. We Guerrero. appeals. the court Suspicious provided that Alvarado had not information, accurate the officer noted the II. security computer social number rec- ord and returned to Alvarado. officer Reading section 18-5-113 as a whole we security asked Alvarado to state his social determine of this stat- began providing number. Alvarado numbers ute criminalizes a defendant’s use of not match the did numbers the officer a false or noted, stopped had then and said the intent a benefit for not remember the rest. himself or another case, again person.
The officer returned his car defraud another In this person’s identity noted the address with Frank utilized associated defendant Again returning police Robert Guerrero. to Alva- to avoid arrest on an outstand- rado, ing Accordingly, he asked him for his Alvara- uphold address. warrant. we replied do did appeals not remember what affirming court license, was listed his but address on that he defendant’s criminal convic- lived with his uncle near Golden. The tion. officer question police
2. The incident in occurred on March 18 the discovered Alvarado's true days arrested Alvarado six subject and that he was to an later, on March 2002. The record does not warrant. point state at what between March 12 and March (b) bail A. Becomes in an action or civil or crimi- of Review Standard nal, court before a or officer authorized surety; the bail or to take proper stat construction a judgment, Confesses or sub- novo. of law de we review ute is *3 verifies, scribes, acknowl- publishes, 1231, 1235 People, v. 10 P.3d Hendricks edges, proves instrument or a written (Colo.2000). criminal power to define recorded, by may law legal compo to establish the conduct and may as intent that the same be delivered in the liability criminal is vested nents of true; or 2 Assembly. Copeland People, v. General (d) (Colo.2000). Does an which if done 1283, 1286 Our fundamen P.3d falsely impersonated, might sub- construing is to responsibility a statute tal ject an action or Assembly’s pur give to the General effect criminal, liabili- or to v. pose enacting intent in it. Whitaker ty, charge, penalty; or (Colo.2002). 555, People, P.3d 558 48 act with intent to other involves Typically, a criminal offense unlawfully gain a himself or benefit for mental state. proscribed act and defraud another. another (Colo.2000). Hall, 207, P.2d v. 999 216 People added). (2005) (emphasis statute, examining a we read criminal felony. impersonation is a class six Criminal identify proscribed act language to 18-5-113(2). §Id. People v. required mental state. See and the un challenges his conviction (Colo.2006). Cross, We 127 P.3d 73-74 18-5-113(e) prosecution’s section for the der consequences particular consider alleged to offer that he “[did] failure evidence avoid construction and constructions unlawfully gain a any other act with intent to produce illogical or Id. at absurd results. pursuant himself’ to subsection benefit for of an have dif- The elements offense (l)(e) of section He characterizes 18-5-113. requirements. People v. fering rea mens fictitious iden (Colo.2001). 422, 424 A stat- Coleby, 34 P.3d capacity required tity or as first act single that can be set forth offense ute conviction, by a which must be followed then ways. People in various committed reject required second act. We (Colo.2005). Weinreich, P.3d 1076 construction the statute. two-act introductory 18-5-113(l)(e) provision of section 18-5- conclude the words “assumes a false 113 contains proscribes act of criminal identity capacity.” “Assumes” two forms of rea. that involves mens identity in this statute context of seize, arrogate, usurp” iden- “to includes B. tity Third New Inter- of another. Webster’s Dictionary A common Impersonation national Criminal 18-5-113(l)(e) application reading and of the statute sense Section holding oneself out to a third prohibits 18-5-113 defines the crime Section who he being another when asked as commit- this in combi- is. or she When variety ways: in a ted any of the acts enumerated nation (l)(a)-(l)(e) or she commits a false or statute, impersonation. Under identity capacity, and in such required; prohibited acts are not he: asked, question can be seamless: in- (a)Marries, falsely, in the pretends marry, you? who are answered here, toward the unlawful relation stance to sustain Thus, avoiding criminalized without arrest. the connivance latter; in the breath. can occur same duct
This is the words is demonstrated whether he utilized this false introductory language unlawfully “and a ben- capacity.” linkage These are words. efit himself or Here another. the benefit describing what constitutes commission an outstanding was arrest on war- the General Assem- rant, accomplished which Alvarado po- until bly, by using words “if’ and “and” lice ferreted out his true and thus introductory phrase plainly of this him matched to the arrest war- assumption tied the of a false or fictitious rant. use of it support argument, of his two-act circumstances, purposes, under enumerated attempts rado to reformulate the completion results that manifest introductory providing for an in the Thus, prohibited impersonation. wording of stat- *4 (l)(a) pretending marry, to addresses by ute followed acts additional contained or sustaining relation with an- (a) through subsections of section 18-5- person’s other in the absence of that However, setting forth the various (l)(b), connivance; becoming a bail ways that the offense of criminal for a civil proceeding in a or criminal committed, (l)(a) subsections (l)(c), officer; before a court or other (l)(d) through identify particularized ways in fessing judgment, or subscribing, verifying, impersonation may which criminal be com- publishing, acknowledging, proving a writ- (l)(e), mitted. Subsection under which the intending ten instrument that it be de- jury Alvarado, generic is provi- convicted (l)(d), true; any livered as and act addressing sion partic- otherwise jects person impersonated to ularized the statute. The General Assem- liability special criminal proceeding. action or bly potential narrowed the breadth of this Each of four subsections identifies a provision by circumscribing application its circumstance, particularized purpose, or re- requirement with a prosecution involving knowing sult defendant’s utilization prove an culpable additional intent of capacity. the false or fictitious beyond knowingly mental state turn, In any criminalizes act introductory of language. the statute’s utilization of a (l)(a) but Some not all of subsections. require an additional culpable unlawfully gain intent to a benefit for one’s state. Subsection addresses another, injure self or anoth- defraud any impersonation act criminal done “with er. intent to a benefit for [defen- and function of the or another or dant] or defraud statute is shown circumstances hand, another.” On the other asking case. with a officer Confronted (l)(b) do not contain an additional is, who he knowingly Alvarado utilized anoth component. rea example, mens For an indi- er person’s identity real Al avoid arrest. vidual who false identi- varado’s construction of the statute allows a another, ty when without the other gain to use the connivance, person’s guilty is of criminal im- any penalty benefit without first time (l)(b) personation regardless any repeated he or she act does it. The must be additional intent. punishment, to incur an absurd construction (l)(c), Subsection like subsection re- and result. quires an additional culpable mental state. We conclude that subsection of the who has assumed a false permitted jury statute to convict Alvara- in confessing under sub- impersonation do for proof criminal on section must do so “with the intent that person’s identity utilized the other the same delivered true.” intent to for him- benefit self. Because Alvarado stipulated Assembly’s has General treatment of the knowingly assuming identity, criminal supports offense our 1971, point sepa- that criminal is a legislature amended analysis. code, reporting. including the im- rate offense from false Prior to the 1971 personation statute. case, In this Alvarado utilized a change, paragraphs current unlawful gain benefit of differences, found, single in a were with some under an war- provision read paragraph. That as follows: by police An act' of rant officers. done with such as this any in the course any other part unlawful benefit whereby if it done proceeding were reporting statute. person falsely personated, charged have could both of- might any become to an event liable fenses, jury have returned action or civil or crimi- convictions for both. nal, money, pay or to incur a a sum whereby charge, penalty, (Colo. Johnson, People P.3d 718 might accrue to the offender App.2000), appeals correctly the court of not person. to another ed “requires showing 40-17-l(e), (emphasis add- defraud,” benefit or id. at ed). 721, not, reporting whereas id. at revision, By Ch. sec. 40- 723. The contain two statutes different ele *5 5-113, Laws Sess. the Colo. validly prescribe ments and penal different legislature aspect “benefit” separated the ties. imperson- of criminal committing the crime statutes, may we interpreting provision containing into ation an object legislature sought sider the the state, the current (2005). 2-4-203(a), accomplish. C.R.S. The 18-5-113(l)(e). legislature’s ac- disparate placement reporting of the false regard supports tion in our conclusion impersonation and criminal statutes within that it this subsection function as our the criminal code reinforces conclusion the generic provision that follows identifica- legislature sep- that the intended to establish particularized ways in which tion of the crime reporting provision arate offenses. The false of criminal is committed. operation appears governmental of- under injection disagree We with Alvarado’s -804, (2005). §§ fenses. 18-8-101 to reporting” Colorado’s “false statute into the legislature placed argument of his for reversal conviction. for- within offenses rado contends that he assumed simulation, gery, impersonation and related connection a traffic -120, §§ offenses. 18-5-101 stop, punishable this is under sec- Clearly, the General acted with- (2005), tion class three defining an prerogative in its offense more disagree. misdemeanor.3 We operates reporting serious Assembly may proscribe intentionally The General define one or through knowingly proscribe more offenses (2005) responding officer. Alvara- conduct. when See (“When any of the statute would substi- conduct of defendant estab- do’s construction greater, the more of- tute a offense for lishes commission of than one lesser fense, prosecuted reading light of the General As- absurd defendant offense.”). ignores sembly’s statutory word each such obvious choice and (2) reporting reporting to authorities is a class 3 to authorities. False 18-8-111. False misdemeanor. reporting commits false to au- A thorities, again volume of statutes cite to if: unchanged because this from the section remains (d) provides iden- He or she 2002 version. tifying information to law enforcement author- ities. placement of the two offenses different parts the criminal code. if he assumes a or ficti- capacity, or tious he:
III. (a) Marries, pretends marry, Accordingly, we affirm sustain the relation toward an- appeals. court of other without connivance the lat- ter; or Justice BENDER dissents. (b) Becomes bail criminal, an action or participate. EID Justice does not before a court officer authorized to BENDER, dissenting. Justice surety; take the bail or holds Colorado’s crimi- subscribes, judgment, Confesses prohibits nal “the as- verifies, acknowledges, publishes, sumption of a false or fictitious proves a written which instrument capacity” that one of five enu- “involv[es]” recorded, law intent “circumstance[s], purposefs], merated or re- true; same be delivered sult[s],” including category catch-all 5—113(l)(e), which Alvarado was 18— (d) Does an which if done See convicted. person falsely impersonated, might sub- majority concludes that subsection 18-5- ject person to an action or 113(l)(e) does require criminal, proceeding, civil or or to liabili- acts, both the act of ty, charge, penalty; act from and the defendant intends any other Instead, to receive unlawfully gain a for himself or *6 any holds that subsection “criminalizes another or to or defraud another. act [a] defendant’s utiliza- identity tion of false or a fictitious 18-5-113(1), (emphasis § add- ed). a benefit Hence, person knowingly a who as- another, for one’s self or identity sumes a false under liable Maj. Op. defraud another.” at 1208. Be- Instead, person a knowingly statute. must plain language cause the of subsection 18-5- identity a assume false and do an additional 113(l)(e) person states that a commits crimi- bail, marry, post judgment, act: confess a .impersonation knowingly nal when he as- (l)(d) (l)(e). do an as described in and, identity, sumes a false or in To reach conclusion that subsection identity he commits an additional of this statute commission unlawfully benefit, with the intent to I a act with two respectfully dissent. states, majority misconstrues nature Colorado’s criminal statute of the five enumerated acts in subsections (l)(a) person a imper- through states that commits criminal ignores the word knowingly if separating a false assumes “and”1 the introduction of the identity identity and in such of five does one statute from the I will enumerated acts. acts, turn, additional some of which their in beginning contain address these issues meaning own mental state: word of the “and” in the statute. majority "by using following specified 1. The reasons that the words sonation if” he does con- introductory phrase” 'and' 'if and in tire tire As- § duct. This statuto- the General formula, X, ry person "a commits if he Crime sembly "plainly assumption tied the imply Ydoes and Z" does not the list that identity to [a] defendant's "and” follows word includes mere "circum- circumstances, pur- use of it enumerated stances, purposes, or results” rather than list of poses, Maj. Op. or results.” at 1208. I find this acts, any person one of additional which a must interpretation unconvincing. merely The statute do to be liable under the statute. "[a] states that commits criminal something is done. at 1208. Rath- in this statute does The term “assumes” “ er, states, mean, something act —it is majority arrogate, ‘to is an some- as the seize, identity of one does—not a manner in which someone usurp’ the another.” [or] However, Maj. something. con- New Op. at 1207. does See Webster’s World ed.1996) (3rd assuming College Dictionary (defining nects act of subsections (l)(a) deed”). done; with the term “and.” through thing “act” to mean “a Like- “also; addition; wise, “and” means confessing posting word moreover; New engage as well as.” Webster’s are acts that a bail (3rd ed.1996). Dictionary 51 College World be liable under the statute. Therefore, person of to convict a (l)(a) Any through doubt subsections must acts enumerate additional rather than act of as- that he committed the assuming identity manners in which a false and, suming identity a false addition plain occur is laid to rest lan- this, of the that he also did one acts enumer- ,and (l)(d) (l)(e). guage,of subsections (l)(a) (l)(e). through ated subsections introductory language, with the read subsec- convicted, person know- to be must (l)(d) person commits tion states that a crim- identity, ingly in that assume inal if he assumes bail, marry, post also: he must identity ... “and does an act judgment, fess do described person falsely an act which if done (l)(e). Because the misin- subject impersonated” might terprets “and” to mean “in combi- the term (2005) (em- liability. 18-5-113(l)(d), to,” “in nation it with” rather addition added). phasis states Subsection required; “two acts are not concludes that prohibited can be seamless.” “and view, Maj. my Op. 1207. In this conclu- in such ... does other act with sion conflicts benefit.” 18-5- term “and” in the statute. added).2 113(l)(e), (2005) (emphasis not view subsections “act” The word demonstrates Gener- enumerating as addition- al acts must do al that a addition acts, not enumerate manners of Instead, identity. assuming a false the ma- assuming or additional jority certain of characterizes these addition- apply states that to the “ways al acts that the offense of criminal identity. *7 impersonation may be committed” and others culpable “additional merely adding an majority the word “act” out reads Maj. Op. I find intent.” interprets the subsection statute as unpersuasive light characterizations “A if it read statutory lan- assumes guage. the intent
First, earlier, so, doing inter- as discussed must benefit.” prets do the enumerated intent element of subsection knowingly assuming a to refer not the “act” enumerated in addition to Second, assuming to the act of identity. these subsections do subsection but rather ways identity. mere which a a false describe identity they cludes intent element re- a false enumerate — instance, quires prosecution prove “the an additional discrete acts. For way[] beyond merely particularized culpable mental intent “a which” tion, "other,” wisely leaving out the word concedes word "oth- (l)(e) likely er” in other refers to an act states it is unlawful to assume false act described in than an rather to do in that assuming to an identity. act other than the § a benefit. See 18- the intent Nonetheless, this subsection refers to 113(l)(d)—(e), (2005). C.R.S. 5— "act,” together an and read the introduc- See, 18-5-102, culpable e.g., § state of the statute’s intro- that is not due to him. (2005) ductory language.” at 1208. This (concerning forgery of a writ- language interpretation (2005) conflicts with the instrument); 18-5-110.5, § ten that a does an (prohibiting counterfeiting); trademark act with the 18-5- (prohibiting 113(l)(e), Intent obtaining by deception). signature of a None culpable unlawful is the mental state part crimes in or Article 5 involve for the additional act enumerated in the arrest, interactions with provision catch-all not an appears illogical and it to conclude that the mental state for the act of legislature catch-all identity. the criminal statute to extend Finally, superfluous plain-lan- while to a outside contours of fraud to guage analysis, I note that im- involving avoiding reach conduct arrest dur- personation statute’s location in Article 5 of ing stop a routine of a motor vehicle. supports Colorado Criminal Code reasons, respectfully For these I dissent. conclusion that the General did not apply intend this statute to who
gives police. part a false name to Article fraud,
contains offenses such as
forgery, counterfeiting, and trademark ob-
taining person’s signature deception. generally per-
These fraud crimes involve money, benefits, getting recognition
son