Opinion
No. 07CA0578.
March 5, 2009.
Appeal from the District Court, Boulder County, Tom Woodford, J.
John W. Suthers, Attorney General, Alexander C. Reinhardt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Susan L. Foreman, Denver, Colorado, for Defendant-Appellant.
Defendant, Felix Montes-Rodriguez, appeals the judgment of conviction entered on a jury verdict finding him guilty of criminal impersonation. We affirm.
After becoming aware that someone was using her Social Security number, the victim ordered a credit report, which showed that defendant had used it on a credit application for a car loan. When confronted by a detective investigating the victim's complaint, defendant admitted using a false number that had been given to him by a friend. Later, at the police station, defendant made a written statement admitting to having used the number in obtaining employment and a loan for the purchase of a car.
At trial, the finance director from the car dealership testified that he met with defendant and handled the paperwork relating to the loan application. The application for the loan requested numerous forms of identifying information, including name, address, employment status, and Social Security number. Based on the information that defendant had provided, the finance director had extended him credit. Except for the Social Security number, all the information defendant had provided was accurate.
I. Criminal Impersonation
Defendant asserts that the trial court erred in denying his motion for judgment of acquittal. He asserts that the prosecution's evidence established conduct that does not constitute criminal impersonation under section 18-5-113(1)(e), C.R.S. 2008. We disagree.
When the trial court rules on a motion for judgment of acquittal, the issue is "whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." People v. Gonzales, 666 P.2d 123, 127 (Colo. 1983) (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).
In applying the substantial evidence test, the court must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. People v. Brassfield, 652 P.2d 588, 592 (Colo. 1982).
Section 18-5-113(1), C.R.S. 2008, provides, in pertinent part: "A person commits criminal impersonation if he knowingly assumes a false or fictitious identity or capacity, and in such identity or capacity he . . . (e) Does any other act with intent to unlawfully gain a benefit for himself or another or to injure or defraud another."
Defendant relies on People v. Jones, 841 P.2d 372 (Colo.App. 1992), to support his argument that his use of another person's Social Security number under these circumstances does not constitute criminal impersonation. His reliance on that case is misplaced.
The defendant in Jones applied for and received a number of student loans. He applied for all loans using his own proper name, but he transposed portions of his Social Security number. As here, the defendant in Jones was charged with criminal impersonation in violation of section 18-5-113. In finding that proof the defendant used a false Social Security number was not enough to prove he assumed a "false or fictitious identity," the Jones division suggested that the common meaning of that phrase is "to hold oneself out as someone that he or she is not" and "requires the assumption of the identity of another person, whether that other person is real or fictitious." Jones, 841 P.2d at 374.
Here, even if we accept defendant's argument that he did not assume the identity of the victim, that conclusion is not determinative. Jones did not address whether the defendant had assumed a false capacity. One of the common meanings of capacity is legal qualification, competency, power, or fitness. People v. Bauer, 80 P.3d 896, 897 (Colo.App. 2003).
Here, the evidence, viewed in the light most favorable to the prosecution, indicates that defendant used a Social Security number that he knew was not his own with intent to gain the benefit of a loan to purchase a car. In so doing, defendant knowingly assumed a fictitious capacity. The finance director testified that defendant could not have obtained a loan without providing a Social Security number. By providing a Social Security number, defendant impliedly asserted his power or fitness to obtain the loan, and his ability to work legally in this country, and thereby repay it. Because defendant knew that the information was false, and because he furnished it to obtain a benefit he could not otherwise have obtained, he violated the portion of the statute that prohibits the assumption of a false or fictitious capacity.
Accordingly, we conclude that the evidence is sufficient to support defendant's conviction.
II. Exclusion of Evidence
Defendant asserts that the trial court's rulings excluding his character witness and an exhibit depicting his niece's Social Security number violated his due process right to present a defense. We disagree.
A trial court is accorded considerable discretion in deciding questions concerning the admissibility and relevancy of evidence, its probative value, and any prejudicial impact. We review a trial court's rulings on evidentiary issues for an abuse of discretion. A trial court abuses its discretion only when its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993).
A. Character Witness
CRE 404(a)(1) provides, in pertinent part, as follows:
Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. In a criminal case, evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same. . . .
Courts have interpreted the word "pertinent" to be synonymous with "relevant." People v. Miller, 890 P.2d 84, 91 (Colo. 1995). Evidence is relevant when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. CRE 401; People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). Accordingly, whether a character trait is "pertinent" depends upon whether the trait in question would make any fact of consequence to the determination of the case more or less probable than it would be without evidence of the trait. Miller, 890 P.2d at 92.
Section 18-5-113(1) prohibits assuming a "false or fictitious identity or capacity." We agree with defendant that by its nature, the charge of criminal impersonation involves fraud and dishonesty, because assuming a false or fictitious identity or capacity is equivalent to lying about one's identity or status. Defendant's character for truth and veracity was thus pertinent to the charge. See Edgington v. United States, 164 U.S. 361, 363, 17 S.Ct. 72, 73, 41 L.Ed. 467 (1896) (where defendant was charged with a crime of falsifying, it was error to exclude testimony offered to show his general reputation for truth and veracity).
Here, evidence of defendant's character for truthfulness could have been pertinent with respect to whether he assumed a "false or fictitious identity or capacity." However, because defendant admitted to using a Social Security number he knew was not his own, any evidence about his character for truthfulness was irrelevant in that respect. Testimony with respect to defendant's character for truthfulness would not have made any fact of consequence to the determination of the case more or less probable than it would be without evidence of that trait.
Accordingly, the trial court did not abuse its discretion in excluding this testimony.
B. Niece's Social Security Card
A detective testified at trial that defendant's niece's Social Security number was very similar to the number defendant used at the car dealership. Defense counsel asked the detective if he agreed that the correlation between the numbers indicated that defendant had manipulated his niece's number rather than illegally obtaining the victim's. The prosecutor objected on relevancy grounds and the trial court sustained the objection and rejected the exhibit depicting the niece's number.
Defendant argues that the evidence was relevant because it made it more probable that he had manipulated the numbers to arrive at a false number without knowing that the number he gave was actually assigned to another specific person. Defendant also contends that such evidence was relevant because it undermined the prosecution's proof that he knowingly assumed the victim's persona. We disagree.
As previously noted, section 18-5-113(1) prohibits assuming a "false or fictitious identity or capacity." The use of the word "fictitious" makes it clear that the legislature did not intend the crime of false impersonation to be limited solely to those instances where an actual person is impersonated. The division in Jones recognized this when it held that the common meaning of the phrase "false or fictitious identity" is "to hold oneself out as someone that he or she is not," "whether that other person is real or fictitious." Jones, 841 P.2d at 374.
Because defendant admitted to using a Social Security number not his own, the issue of whether or not he knew to whom the number actually belonged is irrelevant. Hence, the trial court did not abuse its discretion in excluding this evidence.
III. Cross-Examination
Defendant asserts that the trial court's limitations on the cross-examination of the victim regarding her biases, prejudices, and ulterior motives for testifying violated his Confrontation Clause rights. We disagree.
The trial court has discretion to determine the scope and the limits of cross-examination, and absent a showing of an abuse of that discretion, we will not disturb its ruling. People v. Ray, 109 P.3d 996, 1001 (Colo.App. 2004).
The right to confront witnesses is guaranteed by the Sixth and Fourteenth Amendments and includes the opportunity for effective cross-examination. People v. Hendrickson, 45 P.3d 786, 788 (Colo.App. 2001). It is constitutional error to limit excessively a defendant's cross-examination of a witness regarding the witness's credibility. Id. Nevertheless, the trial court has wide latitude to place reasonable limits on cross-examination based on concerns about such factors as confusion of the issues or interrogation that would be repetitive or only marginally relevant. Id. The trial court must exercise its discretion to preclude inquiries that have no probative value, are irrelevant, or are prejudicial. Id.
Here, defendant asserts that the trial court improperly limited his cross-examination of the victim on two occasions: first, when defense counsel intended to ask the victim why she refused to speak to him before trial and, second, when defense counsel attempted to introduce evidence that the victim believed she had been victimized by the police department. Defense counsel argued that the evidence was relevant to show the victim's bias. The trial court sustained the prosecutor's objections, finding that the evidence was irrelevant. We agree with the trial court.
Defendant admitted to using a Social Security number not his own in order to get a job and apply for a loan. Accordingly, it was irrelevant whether or not the victim was biased against him. It is not constitutional error to exclude irrelevant evidence. Cf. People v. Saiz, 923 P.2d 197, 203 (Colo.App. 1995) (trial court's latitude in limiting cross-examination allows exclusion of marginally relevant testimony).
The judgment is affirmed.
Judge RUSSEL concurs.
Judge J. JONES dissents.