State v. Alvarado-Avalos

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NOT DESIGNATED FOR PUBLICATION

No. 115,266

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EDUARDO ALVARADO-AVALOS,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed July 7, 2017. Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Eduardo Alvarado-Avalos appeals his conviction for three counts of
identity theft in violation of K.S.A. 2016 Supp. 21-6107(a)(1), challenging the
sufficiency of the evidence to convict him. Our extensive review of the record reflects
Alvarado-Avalos used the social security numbers of two real persons to obtain
employment at three different restaurants. We find substantial evidence supports his
conviction. We affirm.


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Officer Steven Edwards of the Overland Park Police Department had knowledge
Alvarado-Avalos might be working at Johnny's Tavern under a social security number
issued to another person. Officer Edwards contacted the manager of Johnny's Tavern and
obtained identification documents, including a social security card, from Alvarado-
Avalos' personnel file. Almost 1 year later, Alvarado-Avalos was arrested pursuant to a
warrant. A search of Alvarado-Avalos revealed a check from his bank account, deposit
slips, and time cards with the name Armando dated between January and February 2013.
Officer Edwards then obtained Alvarado-Avalos' bank account records. The social
security number associated with the bank account had not been issued to Alvarado-
Avalos; rather, it belonged to Arthur Kyle Falcon Alaniz. Alvarado-Avalos used the same
social security number to obtain employment at Johnny's Tavern.

The bank records also revealed payroll checks deposited from Red Robin and
Cheddar's. The Red Robin checks were issued to Armando Rocha, were endorsed for
deposit sometimes using both names of Armando Rocha and Alvarado-Avalos, and
sometimes were endorsed for deposit with only one name. The Cheddar's checks were
issued to Armando Flores and were endorsed for deposit with both names of Armando
Flores and Eduardo Avalos. Officer Edwards obtained Armando Rocha's employment
records at Red Robin and also obtained Armando Flores' employment records at
Cheddar's.

At trial, Red Robin's general manager identified Alvarado-Avalos as the person he
knew as Armando Rocha. In obtaining employment at Red Robin, Alvarado-Avalos used
a social security number issued to Georges Armando Rocha Flores. The former kitchen
manager at Cheddar's testified he hired an employee he knew as Jay Armando Rocha
Flores and identified Alvarado-Avalos as the man he knew as Flores. The social security
number used by Alvarado-Avalos at Cheddar's was not his and had been previously
assigned to Flores.

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A jury convicted Alvarado-Avalos for one count of identity theft for the use of
Alaniz' social security number and two counts of identity theft for the use of Flores' social
security number. The district court sentenced him to 22 months' imprisonment, suspended
to 18 months' supervised probation.

On appeal, Alvarado-Avalos argues there was insufficient evidence to support his
convictions. "'When the sufficiency of the evidence is challenged in a criminal case, this
court reviews the evidence in a light most favorable to the State to determine whether a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.
[Citation omitted.]'" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). "'In
making a sufficiency determination, the appellate court does not reweigh evidence,
resolve evidentiary conflicts, or make determinations regarding witness credibility.'
[Citations omitted.]" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).

K.S.A. 2016 Supp. 21-6107(a)(1), in pertinent part, defines identity theft as:
"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: . . . [d]efraud that person, or anyone else, in order to receive any
benefit." Alvarado-Avalos asserts he did not defraud his employers because he only
received payment in exchange for work performed. In support of his argument he cites to
City of Liberal v. Vargas, 28 Kan. App. 2d 867, 24 P.3d 155 (2001). The Vargas court
held Vargas' use of a fictitious person's documents did not constitute identity theft
because the identity theft statute required the use of another person's identification
documents. 28 Kan. App. 2d at 869-70. In Vargas, the social security number was never
shown to be assigned to "a real person who had his identity 'stolen.'" 28 Kan. App. 2d at
869.

In dicta, the Vargas court went on to state the use of false identification papers to
obtain employment did not show an intent to defraud because Vargas was only
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compensated for services actually performed. 28 Kan. App. 2d at 870-71. However, in
State v. Meza, 38 Kan. App. 2d 245, 248-49, 165 P.3d 298 (2007), another panel of this
court saw the issue differently. Meza found employees receive more than just the
economic benefit of being paid for their services; they also gain access to any available
employee benefits as well as rights and protections under Kansas and federal law.
Accordingly, the Meza court found Meza acted with the intent to defraud when she used
another person's identification to obtain employment. 38 Kan. App. 2d at 248-49.

Both Vargas and Meza examined the prior codification of Kansas' identity theft
statute, K.S.A. 21-4018. The reasoning in Meza remains sound despite a change in the
statutory language. Under K.S.A. 21-4018(a), identity theft required an "intent to defraud
for economic benefit." K.S.A. 2016 Supp. 21-6107(a)(1) merely requires an intent to
defraud to receive any benefit. While Vargas took a narrow view of the term economic
benefit, Meza focused on additional benefits and legal protections arising from
employment. 38 Kan. App. 2d at 248-49. Even if these additional benefits might not be
an economic benefit in the same sense as wages paid, they are still a benefit and therefore
fit within the specific intent requirement of K.S.A. 2016 Supp. 21-6107(a)(1). The
rationale in Meza was recently followed by another panel of this court in State v.
Valdiviezo-Martinez, No. 111,447, 2015 WL 7693673, at *1; 2 (Kan. App. 2015)
(unpublished opinion), rev. granted 305 Kan. 1257 (2016).

Here, Alvarado-Avalos used identification documents belonging to two different
"real person[s]" to obtain employment at Johnny's Tavern, Red Robin, and Cheddar's.
The managers of those restaurants testified they would not have hired Alvarado-Avalos
had they known the identification documents he provided belonged to someone else. The
evidence was therefore sufficient. See Meza, 38 Kan. App. 2d at 248-49; Valdiviezo-
Martinez, 2015 WL 7693673, at *2.

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Alvarado-Avalos next argues the evidence was insufficient to show he defrauded
any person because the State never proved the type of business entities of Johnny's
Tavern, Red Robin, or Cheddar's were "persons" included under the identity theft statute.
He acknowledges K.S.A. 2016 Supp. 21-5111(t) defines "person" for purposes of Kansas'
criminal code as: "an individual, public or private corporation, government, partnership,
or unincorporated association." However, he argues "it is entirely possible that these
alleged victims could be limited liability companies, or any other such organizational
structure not recognized by K.S.A. 2016 Supp. 21-5111(t)." His argument does not
persuade us.

"[T]his court presumes the legislature does not intend to enact useless or meaningless
legislation. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906,
918, 296 P.3d 1106 (2013). Equally fundamental is the rule of statutory interpretation that
courts are to avoid absurd or unreasonable results. 296 Kan. at 918." State v. Frierson,
298 Kan. 1005, 1013, 319 P.3d 515 (2014).

Here, the statute defines "person" to include, public and private corporations,
governments, partnerships, and unincorporated associations; thus, Alvarado-Avalos'
speculative assertion that the three victims in this case might be "limited liability
companies, or any other such organizational structure"—even if true—does not exclude
Johnny's Tavern, Red Robin or Cheddar's from the definition of person under K.S.A.
2016 Supp. 21-5111(t) for purposes of his conviction. And even if there were some
business entity out there that did not fall under the definition of person under K.S.A. 2016
Supp. 21-5111(t), there is no reason to believe, nor does Alvarado-Avalos suggest any
reason, that the legislature intended to attach criminal liability to frauds perpetrated on
certain business entities but not others. Each of the three restaurants were defrauded when
each of the restaurant's managers were deceived into hiring Alvarado-Avalos as an
employee of the restaurant while using some other person's social security number.

Affirmed.