Opinion
No. 111,190.
2014-12-19
STATE of Kansas, Appellee, v. Alicia LOPEZ–NAVARRETE, Appellant.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge.Brian C. Paden, of Olathe, for appellant.Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Kevin P. Moriarty, Judge.
Brian C. Paden, of Olathe, for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Alicia Lopez–Navarrete appeals her conviction for identity theft in violation of K.S.A.2011 Supp. 21–6107 and making a false information in violation of K.S.A.2011 Supp. 21–5824. Lopez–Navarrete claims she started using the social security number at issue here in 2003 with her current employer. The law in place in 2011 controls. We find no merit to her claim and affirm the district court.
Facts
Lopez–Navarrete was charged with identity theft in violation of K .S.A.2011 Supp 21–6107 and with making a false information in violation of K.S.A.2011 Supp. 21–5824. Prior to trial, Lopez–Navarrete filed three motions to dismiss. Lopez–Navarrete argued: (1) The Kansas identity theft statute is preempted by the Immigration Reform and Control Act (IRCA); (2) the statute of limitations had run because Lopez–Navarrete first applied for employment in 2003, and she did not undertake any new criminal conduct since then; and (3) the Kansas identity theft statute is unconstitutionally overbroad.
The district court denied all three motions. Lopez–Navarrete proceeded to a bench trial on the following stipulated facts:
“1. In March of 2012 it came to the attention of the Social Security Administration (SSA) that a workers' compensation claim had been submitted to the Kansas Department of Labor on behalf of the defendant, Alicia Lopez–Navarrete, who was working for The Cheesecake Factory. The claim included a social security number, XXXX–XX–0573 [ sic ], that was not lawfully issued to the defendant. A check of the SSA Masterfile Database showed that it was a valid number, lawfully issued by the SSA in 2000 to [D.D.D.] of Tacoma, Washington. On March 21, 2012, SSA Agent Joseph Espinosa and Overland Park Police Detective J. Russell attempted to locate the defendant at her place of employment, The Cheesecake Factory, 6675 W. [119]th Street, Overland Park, Johnson County, Kansas. While investigators did not find Lopez–Navarrete at work that day, they did make contact with the restaurant manager, Annette Lopez.
“2. Lopez provided copies of Lopez–Navarrete's current ‘Form W–4: Employee's Withholding Allowance Certificate’ and ‘Form K–4: Employee's Withholding Allowance Certificate,’ which were both signed on March 15, 2011 and provided the same Social Security Number—XXXX–XX–0573 [ sic ]—belonging to [D.D.D.].
“3. Upon learning Lopez–Navarrete's home address, investigators went to that residence and made contact with her there. Lopez–Navarrete was taken into custody and, subsequently, charged with identity theft and making a false information in the current case.
“7. Lopez–Navarrete asserts that her sole objective in presenting the social security number was to obtain employment. The income earned enabled her to buy a modest home and provide the sole income for herself and her American citizen children. The social security number was not presented with knowledge that it actually belonged to another individual. She has no criminal history.”
The district court found Lopez–Navarrete guilty of one count identity theft contrary to K.S.A.2011 Supp. 21–6107 and one count making a false information contrary to K.S.A.2011 Supp. 21–5824. Lopez–Navarette was sentenced to concurrent 7–month sentences for each conviction and then placed on probation. Lopez–Navarrete timely appealed.
Analysis
Did the District Court Err in Finding Lopez–Navarrete Guilty of Identity Theft in Violation of KS.A.2011 Supp. 21–6107?
Lopez–Navarrete argues she should not have been charged under the 2011 version of the Kansas identity theft statute because identity theft is a continuous course of conduct crime. Instead, Lopez–Navarrete asserts the statute that applies to her is K.S.A.2003 Supp. 21–4018—a statute that contains an additional element not proven at her bench trial—which would prevent the State from prosecuting her. The State argues multiple changes to the identity theft statute—including amendment, repeal, and recodification—cause K.S.A.2011 Supp. 21–6107 to be the appropriate statute under which Lopez–Navarrete should have been tried.
Issues of statutory interpretation and construction raise questions of law subject to unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
K.S.A.2011 Supp. 21–6107 does not apply to crimes committed prior to July 1, 2011. If “any of the essential elements” of a crime “occurred before that date,” the State must bring charges “under the laws existing at the time.” K.S.A.2011 Supp. 21–5103(d).
This issue appears to be controlled by Lopez–Navarrete's failure to show on appeal that any element of the crime of identity theft was committed prior to March 15, 2011. No previous K–4 or W–4 forms are included in the record on appeal. Nor does the record on appeal contain any hiring documentation from 2003 bearing D.D.D.'s social security number with Lopez–Navarrete's name.
“Parties are bound to their stipulations, and a trial court or appellate court must render judgment based on those stipulated facts .” State v. Bannon, 45 Kan.App.2d 1077, Syl. ¶ 6, 257P.3d831 (2011), rev. denied 293 Kan. 1108 (2012). Here, the parties stipulated Lopez–Navarrete used D.D.D.'s social security number on her K–4 and W–4 forms on March 15, 2011. There is no stipulation regarding her hiring date or any previous instances in which she used D.D.D.'s social security number. Nor can that information be inferred, as there is no stipulation regarding how long she worked for The Cheesecake Factory.
Lopez–Navarrete is bound by her stipulations. K.S.A.2011 Supp. 21–6107 was the statute in place at the time of the criminal acts to which she stipulated. Therefore, K.S.A.2011 Supp. 21–6107 was the proper criminal statute under which Lopez–Navarrete could be tried based on the claim the identity theft occurred on March 15, 2011. Are the State's Identity Theft and False Writing Statutes Preempted by Federal Law?
Lopez–Navarrete argues federal law preempts the State from prosecuting the crimes of identity theft and making a false writing. The State suggests preemption would only prohibit prosecution for the specific act of putting false information on a federal I–9 employment eligibility form.
Whether a state statute is preempted by federal law involves statutory interpretation and raises a question of law over which this court exercises unlimited review. See State ex rel. Kline v. Transmasters Towing, 38 Kan.App.2d 537, 539, 168 P.3d 60, rev. denied 285 Kan. 1175 (2007).
State law prohibits identity theft, which “is obtaining, possessing, transferring, using, selling or purchasing any personal identifying information, or document containing the same, belonging to or issued to another person, with the intent to defraud that person, or any one else, in order to receive any benefit.” K.S.A.2011 Supp. 21–6107(a).
Under the Supremacy Clause of the United States Constitution, “the Laws of the United States ... shall be the supreme Law of the Land ..., any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. A state law which conflicts with federal law is unenforceable. In re Tax Appeal of Karsten, 22 Kan.App.2d 882, 886, 924 P.2d 1272 (1996). Because “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case,” analysis of a federal statute “must begin with its text,” including the “ ‘structure and purpose of the statute as a whole.’ “ Medtronic, Inc. v. Lohr, 518 U.S. 470, 484–86, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 [1963]; Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 96, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 [1992] ).
The State acknowledges IRCA contains a preemption clause. Under the heading “Limitation on use of attestation form,” IRCA provides that a form “designated or established by the Attorney General under this subsection,” for example the I–9 form, “and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 18.” 8 U.S.C. § 1324a(b)(5) (2012). Consequently, IRCA prohibits a state from prosecuting a defendant for putting false information on an I–9 or other federal employment eligibility form. State v. Reynua, 807 N.W.2d 473, 480 (Minn.App.2011) (state perjury prosecution preempted by IRCA).
Lopez–Navarrete was not prosecuted for a false statement on her I–9 form or any other federal document related to verifying an immigrant's employment eligibility; the only federal form that supported her conviction was a W–4, which directs an employer to withhold federal income tax from an employee's pay. Her conviction herein does not consider her immigration status, the lawfulness of her presence within the United States, or her employment eligibility.
Lopez–Navarrete was not convicted of an immigration offense. She was convicted of identity theft and making a false writing for using D.D.D.'s social security number to obtain employment at The Cheesecake Factory and to claim workers compensation benefits. Her argument that the alleged presence of that social security number on her federal employment verification form prevents the State from prosecuting her for identity theft ignores the purpose of IRCA to ensure “that systematic state immigration enforcement will occur under the direction and close supervision of the Attorney General.” Cf. United States v. Arizona, 641 F.3d 339, 352 (9th Cir.2011), reversed in part, 132 S.Ct. 2492 (2012). Here, the State was not enforcing immigration; it was enforcing the identity theft statute.
By its plain text, IRCA preempts prosecution for falsely or fraudulently completing the I–9 form itself. Reynua, 807 N.W.2d at 480. Lopez–Navarrete's theory leads to an impossible conclusion: that IRCA would also preempt every misuse of a social security number, whether to obtain a credit card, access someone's medical records, or qualify for a loan, if the defendant could show that social security number also appeared on a federal I–9 form. Nowhere in IRCA is such a sweeping statement of congressional intent to be found, and Lopez–Navarrete offers no authority for her contention that “the Kansas statute ... clearly conflicts with the express language adopted by Congress.”
At oral argument, Lopez–Navarrete argued for equitable relief, but we must apply the law as proscribed by the legislature. Lopez–Navarrete does not provide any arguments in support of her assertion that making a false information in violation of K.S.A.2011 Supp. 21–5824 is preempted by federal law. “Issues raised in passing that are not supported by argument or cited authority are deemed waived.” State v. Garza, 290 Kan. 1021, 1034, 236 P.3d 501 (2010).
Conclusion
However one looks at them, the stipulations support Lopez–Navarrete's conviction for identity theft and making a false information beyond a reasonable doubt and with substantial competent evidence. Although we may be sympathetic to Lopez–Navarrete's plight, that does not change our duty to follow the law as defined by our legislature. We affirm Lopez–Navarrete's convictions.
Affirmed.