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misidentifying oneself during a criminal investigation to obtain the benefit of avoiding prosecution under defendant's true identity supports those latter two elements of § 907
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No. 287, 2003.
Submitted: January 6, 2004.
Decided: January 13, 2004.
Superior Court of the State of Delaware, in and for New Castle County Cr. No. 0209010772.
Before VEASEY, Chief Justice, and HOLLAND and JACOBS, Justices.
ORDER
This 13th day of January, 2004, upon consideration of the briefs and the record, it appears to the Court that:
(1) The appellant, St. Clair Jackson, was convicted by a Superior Court jury of, and was sentenced for, two counts of forgery in the second degree and one count of criminal impersonation. Jackson appeals from his conviction and sentence for criminal impersonation, on the ground that criminal impersonation is a lesser offense that is included within the crime of forgery in the second degree, and that therefore his conviction and sentence for criminal impersonation constituted double jeopardy.
(2) Jackson was arrested while striking the victim, Thomas Lewis, while at the same time another male who was accompanying Jackson was going through the victim's pockets. After his arrest, the police interviewed Jackson, asking him to identify himself. In response, Jackson orally gave the interviewing officer at least five different names, one of which was St. Clair Parsons. Jackson was later taken to the Wilmington Police Station, where he filled out and signed both an FBI fingerprint card, and a Justice of the Peace Court "defendant history form," writing on both documents the name "St. Clair Parsons."
(3) Jackson was later indicted on two counts of Forgery Second Degree, in violation of 11 Del. C. § 861, for writing the (false) name "St. Clair Parsons" on each of the two documents described above. Jackson was also indicted on one count of Criminal Impersonation, in violation of 11 Del. C. § 907(1), for having "knowingly and unlawfully identif[ied] himself as St. Clair Parsons in order to avoid prosecution under his true identity."
(4) At the trial, at which Jackson did not testify or present any defense, the jury convicted him, and the trial court sentenced him, on all three of these counts. On appeal, Jackson claims that his conviction and sentence for criminal impersonation constituted double jeopardy and must therefore be reversed. Jackson concedes that this claim was not presented to the trial court, and that as a consequence, the standard of review is plain error. For an error to be plain, it must be "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
Abrams v. State, 689 A.2d 1185, 1187 (Del. 1997).
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
(5) Where criminal conduct is claimed to violate two distinct statutory provisions, the first step in a double jeopardy analysis is to determine whether there are two offenses or only one. In terms of this case, the issue is whether criminal impersonation is a lesser offense that is included within the offense of forgery second degree. The test, as set forth in Blockburger v. United States, is whether "each statute requires proof of an additional fact which the other does not." Absent clear legislative intent to the contrary, separate sentences are not permitted where the offenses are the same. If each provision requires proof of an additional fact that the other does not, then "an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." A similar rule is codified in 11 Del. C. § 206, which pertinently provides:
Poteat v. State, A.2d (D4.2003); State v. Cook, 600 A.2d 352, 355 (Del. 1991) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932).
Blockburger, 284 U.S. at 304.
Poteat v. State, supra.
Id.
(a) When the same conduct of a defendant may establish the commission of more than 1 offense, the defendant may be prosecuted for each offense. . . . The defendant may not, however, be convicted of more than 1 offense if:
(1) One offense is included in the other as defined in subsection (b) of this section. . . .
(b) A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when:
(1) It is established by the proof of the same or less than all the facts required to establish the commission of the offense charged . . .
(6) Whether or not an offense is a lesser-included offense will necessarily depend on how the two offenses are statutorily defined. Criminal impersonation is defined by 11 Del. C. § 907(1) (the subsection under which Jackson was charged) as follows:
A person is guilty of criminal impersonation when the person:
(1) Impersonates another person and does an act in an assumed character intending to obtain a benefit or to injure or defraud another person . . .
Forgery is pertinently defined by 11 Del. C. § 861(a) as follows:
(a) A person is guilty of forgery when, intending to defraud, deceive or injure another person, or knowing that the person is facilitating a fraud or injury to be perpetrated by anyone, the person:
* * * *
(2) Makes, completes, executes, authentic-cates, issues or transfers any written instrument which purports to be the act of another person, whether real or fictitious, who did not authorize that act . . .
Under § 861(b)(2)(b), Forgery is forgery in the second degree if the written instrument is or purports to be:
b. A public record, or an instrument filed or required to be filed in or with a public office or public servant . . .
(7) Juxtaposing the requirements of these two statutes shows that criminal impersonation is not a lesser-included offense of forgery in the second degree, at least as that offense was charged in this case. A person commits criminal impersonation if he or she impersonates another person and does an act in an assumed character " intending to obtain a benefit or to injure or defraud another person." Here, Jackson was charged with impersonating St. Clair Parsons to obtain a benefit, namely, "to avoid prosecution under his true identity." But, unlike criminal impersonation, the crime of forgery in the second degree does not require that the act of forgery be done with intent to obtain a benefit. The statute requires only an intent to defraud, deceive or injure another person. Accordingly, in this case, Jackson was charged with one element of criminal impersonation that was different from, and in addition to, the elements of forgery in the second degree.
See Poteat v. State, supra.
11 Del. C. § 907(1) (italics added).
(8) Moreover, although the act of writing down the (false) name "St. Clair Parsons" on two official documents provided the factual basis for Jackson's prosecution for forgery in the second degree, that act did not provide the factual basis for his prosecution for criminal impersonation. The factual basis for the latter offense was that, when asked his name, Jackson orally gave the interviewing officer several false names, including "St. Clair Parsons." This Court has held that the act of providing a false name, in and of itself, constitutes the required act under § 907(1). Thus, the separate crimes for which Jackson was convicted involved distinct and separate wrongful acts.
Harding v. State, 763 A.2d 91, 2000 WL 1587823 (Del. 2000) (ORDER).
Compare Poteat v. State, supra.
(9) We conclude, for these reasons, that Jackson's conviction and sentencing for criminal impersonation did not constitute plain error. Accordingly, the judgment of the Superior Court is AFFIRMED.