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People v. Rodriguez-Morelos.

2022 COA 107. No. 19CA0915. Identity Theft—Personal Identifying Information—Financial Identifying Information.

September 15, 2022

Defendant administered certified nursing assistant (CNA) classes not approved by the state. He also volunteered with a nonprofit organization that supported migrant workers. Without the nonprofit’s authorization, defendant told some students that the CNA classes were affiliated with the nonprofit and that he was acting on its behalf. He also gave some students a tax-exempt document with the nonprofit’s name. Defendant induced students to take the CNA class by misrepresenting that (1) the class had been approved by the state and (2) students did not need a Social Security number to become a CNA. Defendant was found guilty of one count of identity theft, three counts of felony theft, and one count of criminal impersonation.

On appeal, defendant argued there was insufficient evidence to support his identity theft conviction because he did not use “personal identifying information” of a “specific individual” under CRS § 18-5-901(13). A person commits identity theft by knowingly using another’s personal identifying information or financial identifying information without permission or lawful authority with the intent to obtain money. “Personal identifying information” is information that may be used, alone or with other information, to identify a “specific individual.” Under the statute’s plain and ordinary meaning, “specific individual” means one identified human being. Therefore, defendant’s use of the nonprofit’s name and tax-exempt document was not the use of personal identifying information. Accordingly, defendant’s identity theft conviction was not supported by sufficient evidence.

Defendant also argued that the evidence was insufficient to show he used the nonprofit’s financial identifying information with the intent to obtain cash or another thing of value. Here, the evidence showed that defendant gave some students the tax-exempt document when he gave them a certificate of completion or diploma for taking a course, but the students paid for the course upfront, and none withheld payment until after receiving a diploma or a certificate of completion. Further, while some students acknowledged receiving the document, none stated that receiving the document was a reason for taking the class. Accordingly, there was insufficient evidence to prove that defendant used the tax-exempt document, which was financial identifying information, with the intent to obtain cash or any other thing of value.

Defendant also contended that the court erred in denying his request to strike the testimony of two witnesses who invoked their Fifth Amendment privilege with respect to cross-examination about their immigration status. He asserted that he should have been allowed to cross-examine them about their immigration status to impeach their testimony that they believed his statement that they could work in Colorado as a CNA without a Social Security number. He argued that if the witnesses were undocumented, it necessarily meant they had submitted a false Social Security number in the past, which challenged their credibility. However, the key questions at trial were whether defendant told the victims that the state had approved the classes and that having a Social Security number was not a prerequisite to becoming a CNA in Colorado. Therefore, whether the victims were undocumented workers and whether they had previously submitted a false Social Security number were collateral issues. Accordingly, the trial court did not err.

Defendant also asserted that the cumulative prejudicial effect of evidence of five instances of “uncharged misconduct” warranted reversal of his convictions. Here, there was no error as to four instances because, with two exceptions, the court sustained defense counsel’s objections and instructed the jury to disregard the testimony. As to the first exception, defendant did not explain how the testimony was prejudicial. The Court of Appeals did not address the second exception because defendant’s assertion of why there was putative error was conclusory and underdeveloped. There was no error as to the fifth instance because the court gave clear direction in its verdict forms.

Defendant further contended that the trial court erred when it granted the prosecution’s motion to amend the three theft counts mid-trial. However, the mid-trial amendment here did not add an additional element or a different offense to the charges and did not deprive defendant of adequate notice of the charges against him, and it did not prejudice defendant’s substantial rights.

Finally, defendant argued that the court (1) violated his right to be present at the restitution hearings and (2) erred by ordering him to pay restitution for “uncharged, unproven, or dismissed thefts.” Here, the record shows that defendant knowingly, intelligently, and voluntarily waived his right to be present at the restitution hearings, and the record supports the court’s restitution order.

The judgment of conviction was affirmed except for the conviction for identity theft, which was vacated. The restitution order was affirmed. The case was remanded for correction of   the mittimus accordingly.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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