Zеphyriuns C. Egbuonu was convicted of two counts of identity theft, violations of §
The evidence adduced at trial indicated the following. In December 2002, James Roberson, deputy chief of operations with the Jefferson County Sheriffs Department, *37 received a telephone call from the credit card division of Capital One, inquiring whether he had attempted to open an account at a TJ Maxx discount department store. He had not, and he was informed that someone had attempted to open an account using his name and his Social Security number, but using other identifying information, such as date of birth and address, that was false. Deputy Roberson then contacted other credit companies and learned that someone had opened an account with Mervyn's department store, owned at that time by Target Corporation, using his name and Social Security number, but otherwise falsе identifying information. Deputy Roberson further learned that other accounts had been opened using his name and Social Security number at La Redoute, Chadwick's, and Victoria's Secret, all clothing retailers, but again, with other identifying information that was false.
The State presented evidence indicating that the Mervyn's account in Deputy Chief Roberson's name was opened on October 1, 2002. The credit application submitted for the account listed Deputy Chief Roberson as the applicant and his correct Social Security number, but listed the home address as 4859 Slauson Boulevard, No. 268, Los Angeles, California, which was later determined to be a rental mailbox at a Mailboxes, Etc., store. The application listed as a previous address the address where Deputy Chief Roberson resided. The same day as the account in Deputy Chief Roberson's name was opened, another account was opened at Mervyn's under the name Rosemary Roberson. Deputy Chief Roberson testifiеd that his wife's name is not Rosemary. The credit application submitted for this account also listed 4859 Slauson Boulevard, No. 268, Los Angeles, California, as the home address.1 In October and November 2002, respectively, the name Jerome Bivens was added to both of these accounts by telephone. The interactive voice-response system used by Target Corporation captured the telephone number from which the first call came — the call that added Jerome Bivens to the account in Deputy Chief Roberson's name. The telephone number from which the second call came — the call that added Jerome Bivens to the account in the name of Rosemary Roberson — was not captured by the system. Several charges were subsequently made to these two accounts in one of Mervyn's stores in Westchester, California, and multiple checks were sent as payment on the two accounts in December 2002 and January 2003. However, the checks were written on an account in the name of Matthew Kittiko and the account had been closed.
Expert testimony was presented indicating that the handwriting on the credit applications for both of the accounts at Mervyn's was Egbuonu's handwriting, and that the handwriting on the checks signed with the name Matthew Kittiko was Egbuonu's handwriting. The State also presented evidence indicating that the telephone call adding the name Jerome Bivens to the account in Deputy Chief Roberson's name was placed from the number of a cеllular telephone later found in Egbuonu's apartment. In addition, the State presented evidence that mailbox 268 at the Mailboxes, Etc., store at 4859 Slauson Boulevard in Los Angeles, California, had been rented in the name of Jerome Bivens only two days before the credit applications had been signed, and that the names James Roberson and Rosemary Roberson were *38 also listed on the mailbox-rental agreement as persons authorized to receive mail at mailbox 268. Although the handwriting on the mailbox-rental agreement was not found to be Egbuonu's writing, 2 the owner of the Mailboxes, Etc., store positively identified Egbuonu as the person he knew as Jerome Bivens and who picked up mail from mailbox 268.
Rule 28(a)(10), Ala.R.App.P., requires that an argument contain "the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." "Recitation of allegations withоut citation to any legal *39
authority and without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed."Hamm v. State,
Spradlin v. Spradlin,"We have stated that it is not the function of this court to do a party's legal research. See Henderson[ v. Alabama A M University],
483 So.2d [392 ,] 392 [(Ala. 1986)]. Similarly, we cannot create legal arguments for a party based on undelineated general propositions unsupported by authority or argument. Ala.R.App.P. 28(a)(5) [now Rule 28(a)(10), Ala.R.App.P.]; Brittain v. Ingram,, 282 Ala. 158 (1968) (analyzing the predecessor to Ala. R.App.P. 28); Ex parte Riley, 209 So.2d 653 (Ala. 1985)." 464 So.2d 92
First, Egbuonu argues that his conviction "was obtained using hearsay evidence." (Egbuonu's brief at p. 18.) After citing and quoting general propositions of law regarding hearsay and the right to confrontation, Egbuonu argues:
"[Egbuonu] was denied the opportunity to confront and cross-examine Dolly Guttirez, R. 268-88, Jerome Bivens, R. 168, 239-241, 285, Rosemary Robertson, R. 246, or Sean Altpeter, R.1999."
(Egbuonu's brief at p. 20.) Egbuonu provides a list of names and citations to pages in the record, but fails to actually identify what hearsay evidence he believes was improperly admitted. Citations to the record without any recitation of facts or any indication as to what occurred during trial that forms the basis for the argument on appeal is not sufficient to comply with Rule 28(a)(10). Nor does Egbuonu provide an explanation of how the general principles of law he cites support his claim of error. Therefore, as to this issue Egbuonu has failed to comply with Rule 28(a)(10), and the issue deemed to be waived.
Egbuonu also argues:
"Also, [Egbuonu] was convicted upon evidence that was not properly authenticated. In order for evidence to be authenticated, sufficient evidence must be presented to support a finding that the matter in question is what its proponent claims. A.R.E. 901. R. 363, 370, 383."
(Egbuonu's brief at p. 21.) Again, although Egbuonu provides citations to the record, he fails to identify what evidence he believes was not authenticated, and he does not make any argument as to why he believes the unidentified evidence was not properly authenticated. Although Egbuonu cites to Rule 901, Ala.R.Evid., he makes no argument regarding how Rule 901 supports his claim of error, and he does not provide any other authority in support of his claim. Therefore, this issue also fails to comply with Rule 28(a)(10), and is deemed to be waived.
The record indicates that the first mention that there may have been videotapes of the person who made the purchases at the Mervyn's store in Westchester, California, was during the testimony of the State's first witness, a financial investigations coordinator for Target Corporation who begаn the investigation into the fraudulent Mervyn's accounts. The information regarding the videotapes was brought out on cross-examination by defense counsel. However, counsel lodged no objection at that time. The next mention of the existence of videotapes was during the testimony of the State's fourth witness, a detective with the Los Angeles, California, police department, who testified that he had viewed videotapes from the Mervyn's store in Westchester, California, but that "based on the angle and the graininess" of the videotapes, he could not identify anyone in the videotapes, including Egbuonu. (R. 207.) Egbuonu lodged no objection. The final mention of the videotapes came during the testimony of the State's fifth witness, a detective with the Los Angeles County Sheriffs Department, who testified that he, too, had viewed the videotapes, but was unable to identify anyone. Specifically, he said that during one of the transactions the camera had been moved from focusing on the cash register to focusing оn another area of the store and thus did not capture the person who had used the falsified Mervyn's account. Again, Egbuonu did not object. Egbuonu raised this claim for the first time in his motion for a new trial.
In Mitchell v. State,
*41"Mitchell contends that he is entitled to an acquittal or a new trial because of alleged prosecutorial misconduct. He argues that the State breached a discovery agreement between the parties by not producing certain material evidеnce he requested and that the State actively misled him as to the existence of that evidence, in violation of Brady v. Maryland,
, 373 U.S. 83 , 83 S.Ct. 1194 (1963). According to Mitchell, the prosecution failed to disclose information gotten as a result of an interview with Isaac Ruffin contrary to the State's representation in open court before trial that the information did not exist. Mitchell contends that Ruffin's testimony was prejudicial because it contradicted Mitchell's version of the events of that night, thus casting doubt on Mitchell's credibility. Alsо, Mitchell contends that defense counsel would have changed the way they prepared and presented the case had they been made aware of this information. 10 L.Ed.2d 215 "In a tape-recorded statement given to police on July 23, 1993, Ruffin stated that no one was with Mitchell when Mitchell borrowed and then returned Ruffin's car. However, according to the defense, later that same day Ruffin told Detective Long that someone had been with Mitchell when he borrowed the car. `The knowledge of government agents working on the case, including a deputy sheriff, as to the existence of exculpatory evidence will be imputed to the prosecutor. Sexton v. State,
, 529 So.2d 1041 1045 (Ala.Cr.App. 1988).' Savage v. State,, 600 So.2d 405 407 (Ala.Cr.App. 1992), cert. denied,(Ala. 1992). 600 So.2d 409
"Mitchell contends that he was first made aware of the Ruffin's upcoming testimony when the State alluded to it during opening statements. No objection was made at this time. At trial, Ruffin testified that a short, skinny, dark-skinned male was with Mitchell when Mitchell borrowed and then returned Ruffin's car. R. 368-69, 580. No objection was raised when Ruffin offered this testimony at trial. The defense thoroughly cross-examined Ruffin concerning his statements. The first time an objection was made on the ground that the State had failed to disclose this statement before trial was in Mitchell's motion for a judgment of acquittal made after the State rested. `[T]he appellant failed to properly preserve this issue for our review. No objection was made by the appellant when the admission of this testimony was proposed to the court by the State. . . . The appellant also failed to object when the testimony concerning the . . . statement was first introduced.' Brown v. State,Mitchell v. State,, 516 So.2d 882 887 (Ala.Cr.Aрp. 1987) (the appellant argued that the State had violated a discovery order entered pursuant to his motion for production) (emphasis in Brown)."`"`If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this [Brady] rule, or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection; grant a continuance if requested by the aggrieved party; prohibit the party from introducing evidence not disclosed; or enter such other order as the court deems just under the circumstances.'"'
"Robinson v. State,
, 528 So.2d 343 346 (Ala.Cr.App. 1986) (quoting Young v. State,(Ala.Cr.App. 1986)). Instead of bringing this alleged violation to the attention of the trial court, the defense proceeded to trial without requesting any relief. Therefore, the appellant has waived any objection on this ground." 494 So.2d 862
Similarly, here, Egbuonu failed to bring this allegedBrady violation to the trial court's attention, despite several opportunities to do so, until after he had been convicted and sentenced. Therefore, this issue is not properly before this Court for review.
"As [Egbuonu] was convicted utilizing insufficient evidence, [Egbuonu] submits that his conviction[s] and subsequent sentence[s] must be vacated, and this matter remanded for rehearings consistent with the findings of this Court. R. 199, 464."
(Egbuonu's brief at p. 34.) Egbuonu makes no other argument in this regard. He cites no other authority, includes no facts, and fails even to explain why he believes the evidence was insufficient to sustain his convictions. Clearly then, this argument fails to comply with Rule 28(a)(10) and is, therefore, deemed to be waived. See, e.g., L.J.K. v. State,
Egbuonu was charged as follows: "The grand jury of said county charge that, before the finding of this indictment, ZEPHYRIUNS C EGBUONU, aliаs ZEPHYRINUS C EGBUONU, alias ZEPHYRINUS CHIEDU EGBUONU, whose name is to the grand jury otherwise unknown, with the intent to defraud for his own benefit or the benefit of a third person, and without the authorization, consent or permission of JAMES ROBERSON, did obtain, record, or access identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of JAMES ROBERSON, resulting in a financial loss of greater than $250, in violation of Section
13A-8-192 of the Alabama Criminal code, against the peace and dignity of the State of Alabama."The grаnd jury of said county further charge that before the finding of this indictment, ZEPHYRIUNS C EGBUONU, alias ZEPHYRINUS C EGBUONU, alias ZEPHYRINUS CHIEDU EGBUONU, whose name is to the grand jury otherwise unknown, with the intent to defraud for his own benefit or the benefit of a third person, and without the authorization, consent or permission of JAMES ROBERSON, did obtain goods or services through the use of identifying information of JAMES ROBERSON resulting in a financial loss of greater than $250 in violation of Section
13A-8-192 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama."
(C. 27.) At the time of the crime in this case, 4
§
"(a) A person commits the crime of identity theft if, without the authorization, consent, or permission of the victim, and with the intent to defraud for his or her own benefit or the benefit of a third person, he or she does any of the following:
"(1) Obtains, records, or accesses identifying information that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of the victim.
"(2) Obtains goods or services through the use of identifying information of the victim.
"(3) Obtains identification documents in the victim's name.
"(b) Identity theft in which there is a financial loss of greater than two hundred fifty dollars ($250) or the defendant has previously been convicted of identity theft constitutes identity theft in the first degree. Identity theft in the first degree is a Class C felony."5
In Ex parte Robey, supra, the Alabama Supreme Court faced an identical issue: *43
"Robey was convicted of two counts of assault in the first degree arising out of the injuries to McNabb. On appeal, Robey argues that these two convictions, which are based on separate subsections of §13A-6-20 (a), [Ala. Code 1975,] violate his double-jeopardy rights. With good reason, the State concedes this issuе.
"In Ex parte Rice,
"However, in Rice we stated, `Because we are dealing here with a single statute . . . that defines a single offense, the Blockburger test is not applicable.'
"`(a) A person cоmmits the crime of assault in the first degree if:
"`. . . .
"`(3) Under circumstances manifesting extreme indifference to the value of human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to any person; or
"`. . . .
"`(5) While driving under the influence of alcohol or a controlled substance or any combination thereof in violation of Section
"We conclude that the offense of first-degree assault under §
Similarly, here, the offense of identity theft may be committed by several different methods, and the State may allege and prove any one or all of those methods in its attempt to establish the defendant's guilt. We have found no indication that the legislature intended to impose multiple punishments under the separate subsections of §
As the Alabama Supreme Court explained in Ex parteRice,
"We note that merely ordering that Rice's sentences run concurrently is not a constitutionally acceptable option. The Supreme Court stated in Ball v. United States,
, 470 U.S. 856 864-65 ,, 105 S.Ct. 1668 (1985): 84 L.Ed.2d 740 "`The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress' intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter,
, 459 U.S. 359 368 [,, 103 S.Ct. 673 ] (1983). 74 L.Ed.2d 535 "`The second conviction, whose conсomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist stаtute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland,
, 395 U.S. 784 790-91 [,, 89 S.Ct. 2056 ] (1969); Sibron v. New York, 23 L.Ed.2d 707 , 392 U.S. 40 54-56 [,, 88 S.Ct. 1889 ] (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment' 20 L.Ed.2d 917
"See, also, Rolling v. State, [
"Neither is it an acceptable option to merely vacate one of Rice's convictions and its corresponding sentence. The jury specifically found that Ricе had violated §
Accordingly, we remand this case for the trial court to enter a new order that adjudges Egbuonu guilty of the single offense of identity theft and sentences him for that single offense.6 Due return shall *45 be filed with this Court within 35 days of the date of this opinion.
REMANDED WITH DIRECTIONS.*
BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.