Kansas v. Hardesty: Does the Use of a Deceased Person’s identity Constitute Identity Theft?

Kansas v. Hardesty: Does the Use of a Deceased Person’s identity Constitute Identity Theft?

Bradley Hardesty appealed his conviction on charges of that he violated Kansas identity theft law. When pulled over on suspicion of driving while intoxicated, he tried to use the driver’s license of his deceased brother to hide his identity. The appeal involved Hardesty challenging the sufficiency of evidence on the identity theft conviction, arguing that the law applies only when a defendant possesses another person’s identification documents, and reasoning that the deceased brother was not a “person.” and therefore there was insufficient evidence to support the charge.

The appeals court disagreed with Hardesty, finding that the Kansas legislature intended to include the identity of deceased individuals within the scope of the law as long as the other requirements of the law are satisfied.

The District Court imposed a sentence of 15 months in prison on the identity theft charge, which was to run consecutively to the 12-month county jail sentence imposed for the finding of guilt on the DUI charge. Both these charges were to run concurrently with a 12-month sentence for obstructing official duty, six months for transporting an open container, and 12 months for driving while a habitual violator. Hardesty decided to appeal the conviction for identity theft and DUI and the sentences imposed.

In regard to the sufficiency of evidence of identity theft, Hardesty claimed that his deceased brother was not a “person” under the law. The court, however, reviewed all evidence in the light that most favors the prosecution in order to determine if a rational fact finder could find the defendant guilty beyond a reasonable doubt. The law defines identity theft as “[K]nowingly and with intent to defraud for any benefit, obtaining ․ one or more identification documents ․ of another person other than that issued lawfully for the use of the possessor.”   The statute does include a definition of the term “person.” As Hardesty contested only the definition of the term “person,” and concedes that there was sufficient evidence to provide he knew and had intent to defraud for his own benefit through the use of his deceased brother’s ID, the veracity of the verdict handed down by the jury rests on whether or not a deceased person can be considered a “person” whose identity has been stolen.

The appeals court has unlimited review over the interpretation of a statute, with the basic rule of statutory constructing being the intent of the legislature, which governs if that intent can be determined. The court first ascertained that the legislature’s intent, via the language employed in the law, gives ordinary words their ordinary meanings.

While Hardesty relied on City of Liberal v. Vargas, 28 Kan.App.2d 867, 868, 24 P.3d 155, rev. denied 271 Kan. 1035 (2001), which the ID of a fictitious person was used to get a job. The court in Liberal found that the State failed to prove the false ID used by the defendant belonged to a real person. Hardesty also cited State v. Meza, 38 Kan.App.2d 245, 165 P.3d 298, rev. denied 285 Kan. 1176 (2007), in which a defendant was convicted of using ID in the name of another person to get employment. The court ruling was differentiated from the Vargas ruling because in Meza, the defendant used the identity of a real rather than fictitious person.

In citing these cases, Hardesty contended that it was required, when ID theft is charged, that the State prove the defendant stole the identity of a “real person,” which he claimed meant a “living person.”

The appeals court did not find either of the cited cases as controlling Hardesty’s claims, however. In the opinion of the court, “real” as used in the cases, was clearly intended only to contrast with the term “fictitious” and not to distinguish between living or deceased individuals.Essentially, Hardesty argued that the fact that the Kansas statute does not specifically refer to the identity theft of a “deceased” person, the statute does not apply to the factual circumstance.

The court declined to take Hardesty’s point of view that “another person” in the statute means “another living person,” concluding that the legislature intended to include the identity theft of a deceased person within the scope of the law as long as the remaining requirements were satisfied.

Since Hardesty undisputedly used his deceased brother’s ID to hide his real identity when he was stopped by police for the DUI, he intended to fraudulently obtain a benefit from the use of the ID. Therefore, the appeals court affirmed the conviction for identity theft.