State v. Valdiviezo-Martinez

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 111,447

STATE OF KANSAS,
Appellee,

v.

VICTOR VALDIVIEZO-MARTINEZ,
Appellant.

SYLLABUS BY THE COURT

1.
An employee can commit identity theft, as defined in K.S.A. 2012 Supp. 21-6107,
by using the social security number of another to deceive an employer and induce the
employer to rely on the deception and provide employment and its benefits. The
employee receives an economic benefit from the deception, even if the employee earns
those wages.

2.
The Legislature defined a continuing offense in K.S.A. 2012 Supp. 21-6107(a) by
providing that identity theft occurs when a defendant is using the personal identifying
information of another with the intent to defraud that person or anyone else, in order to
receive any benefit.

1
3.
K.S.A. 2012 Supp. 21-6107 gives sufficient notice of prohibited conduct and
nothing about the statute makes enforcement inherently arbitrary and discriminatory. The
statute is not unconstitutionally vague.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 25,
2015. Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed May 21, 2021.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and, B. Keith
Edward, legal intern, of the same office, was with him on the brief for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: Victor Valdiviezo-Martinez appeals from a jury conviction of
identity theft. The conviction arose from allegations that, on or about September 20,
2012, Valdiviezo-Martinez was using the social security number of someone else with
the intent to defraud his employer so he could receive a benefit. On appeal, Valdiviezo-
Martinez argues the State failed to present sufficient evidence to prove he used the social
security number with an intent to defraud someone in order to receive a benefit. He
asserts that instead of committing fraud he earned the benefits he received. He also
argues the State failed to prove he used the social security number on September 20,
2012. He contends that, if he committed a crime, he did so when he completed paperwork

2
as he began his job in 2005. Finally, he argues the identity theft statute is
unconstitutionally vague. We reject his arguments and affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Valdiviezo-Martinez was involved in a car accident in Overland Park on
September 20, 2012. He provided a Mexico-issued identification card with his name on it
to police officers investigating the crash. He also provided the police with an insurance
card issued to Jovita Arano, whom he referred to as his wife, and a car registration card
issued to Victor Arano.

After arresting and booking Valdiviezo-Martinez for driving without a license, the
police officer investigating the crash decided to verify Valdiviezo-Martinez' identity. At
book-in, Valdiviezo-Martinez listed his employer as a local restaurant, leading the police
to contact a co-owner of the restaurant.

The co-owner confirmed that Valdiviezo-Martinez worked at the restaurant. Police
obtained copies of the W-4 Valdiviezo-Martinez had completed and signed when he
started working at the restaurant on May 30, 2005, and Valdiviezo-Martinez' 2011 W-2.
The police learned the social security number on those documents belonged to a man
with a different name who resided in the state of Washington.

The State charged Valdiviezo-Martinez with identity theft. The original complaint
alleged, in part, that Valdiviezo-Martinez obtained, possessed, used, or purchased
someone else's social security number. The State later amended the charge and alleged:
"That on or about the 20th day of September, 2012, . . . Valdiviezo-Martinez did then and
there unlawfully, willfully and feloniously use any personal identifying information, to
3
wit: social security number, belonging to or issued to another person, . . . with the intent
to defraud that person, or anyone else, in order to receive any benefit."

At the jury trial, the co-owner of the restaurant where Valdiviezo-Martinez had
worked testified:

• He and the other owners would not hire anyone without a social security
number;

• The paychecks issued to Valdiviezo-Martinez depended on the W-4 form that
Valdiviezo-Martinez had completed; and

• The owners relied on Valdiviezo-Martinez' representation that the social
security number belonged to Valdiviezo-Martinez when paying him.

The co-owner also testified that Valdiviezo-Martinez received a paycheck on September
19, 2012.

On cross-examination, the co-owner testified that Valdiviezo-Martinez did not
steal any money from him or the restaurant, Valdiviezo-Martinez worked overtime when
asked, and he would hire Valdiviezo-Martinez again if he could.

A special agent with the Social Security Administration testified that the social
security number on Valdiviezo-Martinez' W-4 and W-2 belonged to someone other than
Valdiviezo-Martinez. He gave the name of the man to whom the number belonged and
testified that the man resided in Washington State and was born in 1990.

4
 At the close of evidence, the trial judge instructed the jury on the elements as
charged in the amended complaint, including language specifying the date of offense as
being on or about September 20, 2012. The jury convicted Valdiviezo-Martinez. At
sentencing, the judge granted Valdiviezo-Martinez probation with an underlying sentence
of eight months.

On appeal to the Court of Appeals, Valdiviezo-Martinez argued the State failed to
present sufficient evidence for a rational fact-finder to determine beyond a reasonable
doubt that (1) he intended to defraud anyone and (2) he committed the offense on
September 20, 2012. He also asserted the identity theft statute is unconstitutionally
vague. The Court of Appeals affirmed the conviction. State v. Valdiviezo-Martinez,
No. 111,447, 2015 WL 7693673 (Kan. App. 2015) (unpublished opinion). Judge G.
Gordon Atcheson dissented. 2015 WL 7693673, at *6 (Atcheson, J., dissenting).

This court granted review but stayed proceedings pending the outcome of a
different case arising from similar facts and involving an identity theft conviction. That
case raised the question of whether federal law preempted the State from using the
employment eligibility verification form, or I-9, of a defendant who is not a citizen of the
United States, or any information, such as a social security number, contained within the
I-9 as the basis for a state law identity theft prosecution. The United States Supreme
Court held state identity theft prosecutions like this one are not preempted even if based
on information, such as a social security number, that can also be found on an I-9. See
Kansas v. Garcia, 589 U.S. ___, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020). This court
then lifted the stay, and we now exercise jurisdiction over this appeal. See K.S.A.
20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A.
60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon
petition for review).
5
 ANALYSIS

Valdiviezo-Martinez preserved all three issues in his petition for review. In two of
those issues, he challenges the sufficiency of the evidence. When a criminal defendant
raises issues about the sufficiency of evidence, we examine the trial evidence in the light
most favorable to the State and determine whether a rational fact-finder could have found
the defendant guilty beyond a reasonable doubt. State v. Pattillo, 311 Kan. 995, 1003,
469 P.3d 1250 (2020). To make that assessment, we must examine what the State had to
prove, and that examination requires us to interpret the identity theft statute.

In interpreting statutes, we grant no deference to the district court or the Court of
Appeals. But, like those courts, we seek to determine the Legislature's intent by
examining the statute's wording. If that wording is plain and unambiguous, we apply it as
written. If it is not clear, we can look to legislative history, background considerations,
and canons of construction to help determine legislative intent. Jarvis v. Kansas Dept. of
Revenue, 312 Kan. 156, 159, 473 P.3d 869 (2020).

Here, as we consider the identity theft statute, the State and Valdiviezo-Martinez
disagree about which version of the identity theft statute applies. Their disagreement
arises from their differing views of when the crime occurred. That date matters because
the substantive law in effect at the time of the crime's commission defines what the State
must prove. See State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018). Valdiviezo-
Martinez contends the crime of identity theft, if committed, was completed in 2005 when
he filled out the employment forms. But the State charged him with a crime committed
on or about September 20, 2012. We will thus compare the 2005 and 2012 versions
before we focus on the issues raised by Valdiviezo-Martinez.
6
 The version of the statute in place on May 30, 2005, with words significant to the
parties' arguments italicized, stated, in part: "Identity theft is knowingly and with intent
to defraud for economic benefit, obtaining, possessing, transferring, using or attempting
to obtain, possess, transfer or use, one or more identification documents or personal
identification number of another person other than that issued lawfully for the use of the
possessor." (Emphases added.) K.S.A. 2003 Supp. 21-4018(a).

The version in place on September 20, 2012, stated, in part: "Identity theft 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 anyone else, in order to receive any benefit."
(Emphases added.) K.S.A. 2012 Supp. 21-6107(a).

Contrasting key parts of the two provisions helps explain the parties' arguments.
We will look separately at the words defining the actus reus—that is, the action or
conduct that is an element of a crime—and the mental state required when performing
those acts.

Both the 2005 and the 2012 versions of the statute listed several alternative ways
to commit the crime. While the lists varied somewhat, both included "using" personal
identifying information, which was the charge the State brought against Valdiviezo-
Martinez. K.S.A. 2012 Supp. 21-6107(a); K.S.A. 2003 Supp. 21-4018(a). And, here, the
State charged Valdiviezo-Martinez with using a social security number, an item of
identification covered by both versions of the statute. K.S.A. 2012 Supp. 21-6107(e)(6)
("'personal identifying information' includes, but is not limited, to . . . social security
number or card"); K.S.A. 2003 Supp. 21-4018 ("[a] Identity theft is . . . using
7
. . . identification documents or personal identification number of another person" and [b]
"'[i]dentification documents' means the definition as provided in K.S.A. 21-3830");
K.S.A. 2003 Supp. 21-3830(b) (defining "identification document" to include "social
security cards").

On the other hand, the portion of the statute defining the required mental state did
change slightly between 2005 and 2012. Valdiviezo-Martinez emphasizes this change. In
2005, the statute required the State to prove Valdiviezo-Martinez acted "knowingly and
with intent to defraud for economic benefit." K.S.A. 2003 Supp. 21-4018(a). By 2012,
the statute no longer included the word "knowingly" and the word "economic" no longer
modified the word "benefit." The 2012 version referred to "any benefit." K.S.A. 2012
Supp. 21-6107(a). Neither parties' arguments focus on the omission of "knowingly" from
the statute, but Valdiviezo-Martinez contends the State had to prove an "economic"
benefit. We will focus on this argument in Issue 1 below.

Other important words in this mental state element did not change. Both versions
of the statute include the same definitions relating to the phrase "intent to defraud." That
phrase means "an intention to deceive another person, and to induce such other person, in
reliance upon such deception, to assume, create, transfer, alter or terminate a right,
obligation or power with reference to property." K.S.A. 2012 Supp. 21-5111(o); K.S.A.
2003 Supp. 21-3110(9). The Legislature defined "property" as "anything of value,
tangible or intangible, real or personal." K.S.A. 2012 Supp. 21-5111(w); K.S.A. 2003
Supp. 21-3110(16). It also defined "deception" as "knowingly creating or reinforcing a
false impression," K.S.A. 2012 Supp. 21-5111(e); and "knowingly and willfully making a
false statement or representation, express or implied, pertaining to a present or past
existing fact," K.S.A. 2003 Supp. 21-3110(5). Including "knowingly" in the definition of

8
"deception" arguably makes the deletion of that word from K.S.A. 2012 Supp. 21-
6107(a) meaningless.

Putting these definitions together, to prove identity theft as charged here, the State
could prove Valdiviezo-Martinez committed identity theft by showing he was using
someone else's social security number with the intention of knowingly creating or
reinforcing a false impression and to induce anyone to rely on the false impression to
transfer a right to anything of value, such as wages. If the 2005 statute applies, the value
had to be measured in economic terms.

With those elements and definitions in mind, we turn to the parties' specific
arguments.

ISSUE 1: Evidence of Intent to Defraud for Economic—or Any—Benefit Sufficient

Valdiviezo-Martinez first argues the State failed to present sufficient evidence that
he intended to defraud someone for an economic benefit. But, as we have discussed, the
State, having charged a crime committed on September 20, 2012, had to prove he acted
with an intent to defraud someone for any benefit. Valdiviezo-Martinez alternatively
argues the State failed to meet that requirement as well.

The Court of Appeals panel unanimously rejected Valdiviezo-Martinez' argument
on this issue and held the State had presented sufficient evidence that Valdiviezo-
Martinez acted with an intent to defraud. The majority concluded that "Valdiviezo-
Martinez benefitted from improperly using the other person's social security number
because his employer relied on the fact that he had provided a social security number in
hiring him, retaining him in employment, paying him, and extending to him the benefits
9
of employment status." Valdiviezo-Martinez, 2015 WL 7693673, at *2. In dissenting on
other grounds, Judge Atcheson agreed. 2015 WL 7693673, at *8 (Atcheson, dissenting in
part) (Valdiviezo-Martinez used the social security number "with the intent to defraud the
employer and to obtain a benefit in the form of pay").

Valdiviezo-Martinez, in asking us to reverse the Court of Appeals, insists the State
presented no evidence he intended to defraud his employer. He claims no fraud occurred
because he provided labor and services in exchange for his wages and benefits. In
essence, his arguments imply or assert the State must prove that the one deceived
suffered an economic harm and the worker received unearned compensation. For support,
Valdiviezo-Martinez cites City of Liberal v. Vargas, 28 Kan. App. 2d 867, 24 P.3d 155
(2001).

There, the State charged the defendant with identity theft by presenting an
employer false documents including what appeared to be personal identifying
information. But the information did not belong to any person—the information was
purely fictitious. The Vargas panel held the Legislature intended to protect the identity of
real people, but the State failed to present evidence supporting the theft of anyone's
personal identifying information. 28 Kan. App. 2d at 869-70.

In dicta and without performing any statutory analysis, the Vargas panel added
that, even if the statute covered using fictitious information, the jury could not have found
the defendant guilty because there was no evidence of an intent to defraud the employer
by stealing money or being compensated for services not rendered. 28 Kan. App. 2d at
870. The panel opined that the evidence showed the defendant used the false documents
to obtain the job, not to take money for services not performed. 28 Kan. App. 2d at 870.

10
 We disagree with the Vargas panel's reasoning. The elements of the identity theft
statute relevant to this portion of our analysis require that the defendant intended to
deceive another and to induce that person to rely on the deception and to transfer a right
or power to property. When the deception involves the use of a social security number of
another in an employment situation and the employer relies on the deception to offer
employment and then to retain the employee, several benefits flow to the employee.
Without listing every benefit that flows from employment, it is sufficient to recognize
that employment itself is a thing of value and therefore property as defined by K.S.A.
2012 Supp. 21-5111(w). Even if one of the benefits is wages the employee legitimately
earns, a "but for" causal chain is put in motion by the deception; the employer would not
have paid wages and the employee would not have received them but for the trickery. See
Black's Law Dictionary 535 (11th ed. 2019) (defining "defraud" as "to trick").

The fact an employee like Valdiviezo-Martinez performed services to earn
benefits minimizes any economic loss to the employer. But the identity theft statute does
not require proof of economic loss or other damage suffered by the one defrauded and
induced to transfer property. Accord State v. Meza, 38 Kan. App. 2d 245, 248-49, 165
P.3d 298 (2007); State v. Oswald, 36 Kan. App. 2d 144, 145-46, 137 P.3d 1066 (2006).

Here, the State presented evidence that Valdiviezo-Martinez deceived the owners
of the restaurant where he worked into believing he had a valid social security number
issued to him. A co-owner testified the restaurant relied on that deception in offering a
job and in issuing paychecks to Valdiviezo-Martinez. From those facts, a rational fact-
finder could determine (1) Valdiviezo-Martinez intended to deceive his employer and
(2) he intended to induce his employer to rely on that deception and to provide him wages
and other employment benefits. Valdiviezo-Martinez' intent to induce the employer to
provide him wages and other benefits falls within the broad definitions of "intent to
11
defraud." And property, which includes anything of value, encompasses employment,
wages, tax contributions, and other tangible and intangible benefits of value provided by
the restaurant to Valdiviezo-Martinez. And those benefits are economic. Whether the
State had to prove he intended to deceive for the purpose or receiving "any" benefit or an
"economic" benefit, it met its burden.

In sum, the evidence, when considered in the light most favorable to the State,
showed that Valdiviezo-Martinez intentionally deceived his employers. And he induced
them to continue to rely on his deception so they would transfer property in the form of
wages and other employment benefits. A rational fact-finder could have found beyond a
reasonable doubt that Valdiviezo-Martinez acted with an intent to defraud and that he
received an economic benefit.

ISSUE 2: Evidence About Use on September 20, 2012, Sufficient

Valdiviezo-Martinez' second argument relates to the sufficiency of evidence
establishing he was using the social security number on September 20, 2012. In making
this argument, Valdiviezo-Martinez essentially raises a statute of limitations defense for
the first time on appeal.

In doing so, he concedes the date of offense is not an element of a crime. Usually,
sufficiency of the evidence relates to a failure to prove the elements of the crime. But
Valdiviezo-Martinez argues "the state does have to show that a crime occurred within the
statute of limitations. See K.S.A. 22-3201(2)." When the State charged Valdiviezo-
Martinez, there was no subsection (2) in this statute; instead, the provision was labeled as
subsection (b). K.S.A. 2012 Supp. 22-3201(b) does not relate to proof at trial. Rather, it
describes what the State must include in an indictment or information: "The precise time
12
of the commission of an offense need not be stated in the indictment or information; but it
is sufficient if shown to have been within the statute of limitations, except where the time
is an indispensable ingredient in the offense." K.S.A. 2012 Supp. 22-3201(b).

Here, the State's information included a time of commission—on or about
September 20, 2012. The State thus facially complied with the pleading requirement in
K.S.A. 2012 Supp. 22-3201(b). It also facially complied with the statute of limitations in
K.S.A. 2012 Supp. 21-5107(d), which in 2012 required the State to begin a prosecution
against Valdiviezo-Martinez within five years of the crime's commission. (Between July
1, 2005, and 2012 the Legislature extended the statute of limitations from two to five
years. Compare K.S.A. 2003 Supp. 31-3106[8] and K.S.A. 2012 Supp. 21-5107[d]).

The charges were filed shortly after September 20, 2012, and an amended
complaint was filed May 31, 2013. As a result, based on the way the State brought the
charge, Valdiviezo-Martinez had no basis to raise a statute of limitations defense before
trial.

But "in Kansas the statute of limitations is an affirmative defense that can be
waived" by failing to raise the defense at trial once the facts underlying the defense are in
the record. State v. Sitlington, 291 Kan. 458, 463, 241 P.3d 1003 (2010). Here, the parties
do not discuss waiver or preservation of this issue, likely because Valdiviezo-Martinez
raises the issue as one attacking the sufficiency of the evidence and generally "[t]here is
no requirement that a criminal defendant challenge the sufficiency of the evidence before
the trial court in order to preserve it for appeal." State v. Farmer, 285 Kan. 541, 545, 175
P.3d 221 (2008). This general rule potentially runs contrary to the requirement that a
defendant must raise a statute of limitations defense at trial to avoid waiving the defense
and to preserve it for appeal, however. See, e.g., United States v. Arky, 938 F.2d 579,
13
581-82 (5th Cir. 1991) (collecting federal cases holding a defendant waives or forfeits
statute of limitations defense if he or she does not raise it before appeal). Neither the
parties nor the Court of Appeals discussed this potential preservation problem or this
unusual twist that turns a sufficiency of the evidence issue, which generally relates to
elements, into a statute of limitations defense.

Despite these procedural irregularities, we will consider the issue as framed
because the State has not raised a preservation or any other procedural concern. Nor did
we ask the parties to supplement their arguments because our caselaw holds the statute of
limitations is not jurisdictional. Sitlington, 291 Kan. at 463. And, if an issue is not
jurisdictional, a party waives it by failing to raise it before the Court of Appeals or in a
petition or cross-petition for review of a Court of Appeals' decision, even if the issue
itself relates to preservation. See State v. Boeschling, 311 Kan. 124, 128, 458 P.3d 234
(2020). This means the State waived any preservation argument. We thus leave for
another day the job of reconciling the statute of limitations and the affirmative defense
cases and of determining whether a sufficiency argument can serve as a vehicle for
raising the defense.

We point out these irregularities to prevent future readers from viewing this
decision as implicitly suggesting that a party can raise a statute of limitations argument
without having raised it at trial. Nor should this decision be read to bless use of a
sufficiency argument for matters other than elements.

Turning to the arguments raised, the State contends it presented sufficient
evidence that Valdiviezo-Martinez was using the social security number on or about
September 20, 2012. It also counters Valdiviezo-Martinez' argument that the alleged

14
offense was complete on May 30, 2005, by arguing the identity theft statute creates a
continuing offense.

The Court of Appeals panel focused on the continuing offense aspect of the State's
arguments. The majority held identity theft, at least when charged as having been
committed by using someone else's personal identifying information, was a continuing
offense. Valdiviezo-Martinez, 2015 WL 7693673, at *3. Judge Atcheson dissented from
this holding. He would have held that the prosecution was barred by the statute of
limitations because the offense happened in 2005, and the prosecution did not begin until
2012. 2015 WL 7693673, at *7 (Atcheson, J., dissenting).

The initial step in analyzing any statute of limitations issue is considering when
the crime was committed. We do so because K.S.A. 2012 Supp. 21-5107 bars criminal
prosecutions if not brought within a specified time after a crime is committed unless an
exception applies. The statute provides two alternatives for determining when a crime is
committed: "An offense is committed either when every element occurs, or, if a
legislative purpose to prohibit a continuing offense plainly appears, at the time when the
course of conduct or the defendant's complicity therein is terminated." K.S.A. 2012 Supp.
21-5107(f).

Valdiviezo-Martinez focuses on the first alternative, arguing every element
occurred on May 20, 2005. He thus asserts that the State had to charge him within two
years of May 20, 2005. See K.S.A. 2003 Supp. 21-3106 (stating two-year limitations
period; statute effective in May 2005). The parties have not directly discussed the unit of
prosecution and whether the State could have charged Valdiviezo-Martinez with a
completed offense committed on May 30, 2005, and a separate offense committed on or
about September 20, 2012. See State v. Schoonover, 281 Kan. 453, 497-98, 133 P.3d 48
15
(2006) (discussing unit of prosecution test and double jeopardy implications). Because
the unit of prosecution could arguably allow for separate occurrences each time property
is transferred in reliance on the deceptive use of personal identifying information, we will
discuss whether the State met its burden under that scenario without deciding the
unpreserved question about the unit of prosecution.

Valdiviezo-Martinez argues, or at least implies, that "using" required him to hand
over, write, or utter the social security number on or about September 20, 2012. There are
other ways of using something, however, particularly when the alleged act is using
information critical to a plan to deceive another and to induce the deceived party to
transfer property, such as wages. And that is what the State argues Valdiviezo-Martinez
did. See K.S.A. 2012 Supp. 21-6107(a).

The straightforward meaning of the word "using" suggests that a rational fact-
finder could determine that Valdiviezo-Martinez was using the social security number of
another throughout the seven-year period of his employment. Black's Law Dictionary
provides many definitions of this common word, "use." One seems particularly
applicable to the evidence presented by the State: "1. To employ for the accomplishment
of a purpose; to avail oneself of." Black's Law Dictionary 1855 (11th ed. 2019). When
Valdiviezo-Martinez received a paycheck on September 19, 2012, he was employing and
availing himself of someone else's social security number to deceive his employer and to
induce his employer to transfer—that is, pay—wages.

Contrary to his argument, Valdiviezo-Martinez did not need to commit a physical
act to use the number. "Deception" includes "knowingly . . . reinforcing a false
impression," K.S.A. 2012 Supp. 21-5111(e); and "knowingly and willfully making a false
statement or representation, express or implied, pertaining to a present or past existing
16
fact," K.S.A. 2003 Supp. 21-3110(5). And fraud often occurs through concealment rather
than misstatement. See Black's Law Dictionary 802 (11th ed. 2019) (defining fraud as
"[a] knowing misrepresentation or knowing concealment of a material fact made to
induce another to act to his or her detriment."); see also K.S.A. 2012 Supp. 21-5111(e)
("Deception" is "knowingly creating or reinforcing a false impression."). The State
presented the co-owner's testimony that the restaurant would not have transferred money
and other benefits each pay period had they not, at that point in time, been deceived into
believing Valdiviezo-Martinez had a valid social security number—that is, if he was not
using the social security number.

Thus, examining the evidence in the light most favorable to the State and through
the lens of the arguments presented to the jury, we hold the State presented sufficient
evidence for a rational fact-finder to have found beyond a reasonable doubt that
Valdiviezo-Martinez was using someone else's social security number on or about
September 20, 2012.

We reach the same conclusion upon examination of the second alternative in
K.S.A. 2012 Supp. 21-5107(f): "An offense is committed . . . if a legislative purpose to
prohibit a continuing offense plainly appears, at the time when the course of conduct or
the defendant's complicity therein is terminated." The Court of Appeals relied on this
alternative in its analysis. See Valdiviezo-Martinez, 2015 WL 7693673, at *3-4; 2015 WL
7693673, at *7 (Atcheson, J., dissenting).

K.S.A. 2012 Supp. 21-5107(f) codifies the federal approach to the doctrine of
continuing offenses. State v. Gainer, 227 Kan. 670, 672-73, 608 P.2d 968 (1980). In
Gainer, this court emphasized that the doctrine applies only in limited circumstances and
requires a clear expression of legislative intent. Without that clear expression, courts
17
presume the Legislature did not intend to create a continuing offense. 227 Kan. at 672,
673.

This presumption flows from the tension between the purposes of a statute of
limitations and the possibility of a long-term course of criminal conduct. The United
States Supreme Court discussed this tension in Toussie v. United States, 397 U.S. 112,
114-15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). It noted that legislatures adopt statutes of
limitations to protect individuals from facing punishment after facts have "become
obscured by the passage of time," "to minimize the danger of official punishment because
of acts in the far-distant past," and to encourage "law enforcement officials promptly to
investigate suspected criminal activity." 397 U.S. at 114-15. At times, the doctrine of
continuing offenses can conflict with those purposes.

Given these considerations, the United States Supreme Court held the continuing
offense doctrine should not be applied "unless the explicit language of the substantive
criminal statute compels such a conclusion, or the nature of the crime involved is such
that Congress must assuredly have intended that it be treated as a continuing one." 397
U.S. at 115. If Congress' intent is ambiguous, the Supreme Court directed federal courts
to apply the general principle that criminal laws should be construed in favor of the
accused. 397 U.S. at 122 (when faced with two choices of interpretation of a criminal
statute, courts should not choose the harsher alternative unless Congress has made it clear
that was the intent).

Like the United States Supreme Court, this court has recognized that the
Legislature can make clear its intent to define a continuing offense through explicit
language or by defining a crime that by its nature involves continuing conduct. See

18
Toussie, 397 U.S. at 115; Gainer, 227 Kan. at 672, 673; State v. Zimmer, 198 Kan. 479,
504, 426 P.2d 267 (1967).

First, a legislative body could clearly state that it contemplated a prolonged course
of conduct or a continuing offense. Toussie, 397 U.S. at 120; see, e.g., 18 U.S.C. § 3284
(20) ("[t]he concealment of assets of a debtor in a case under title 11 shall be deemed to
be a continuing offense"). Here, neither the 2005 nor the 2012 version of the identity theft
statute explicitly states it is an ongoing crime. See K.S.A. 2003 Supp. 21-4018(a); K.S.A.
2012 Supp. 21-6107(a).

Second, the legislative body could define a crime where ongoing conduct is
inherent in the nature of the offense. The Toussie Court described conspiracy as such an
offense because it "continues as long as the conspirators engage in overt acts in
furtherance of their plot. . . . It is in the nature of a conspiracy that each day's acts bring a
renewed threat of the substantive evil Congress sought to prevent." Toussie, 397 U.S. at
122. Similarly, in Zimmer, 198 Kan. 479, this court recognized kidnapping inherently
involved a course of conduct. The crime is defined as "the taking or confining of any
person, accomplished by force, threat or deception, with the intent to hold such person"
for various nefarious purposes. K.S.A. 2020 Supp. 21-5408. Although the statute does not
explicitly state that it is a continuing offense, it describes a course of conduct that, once
begun, does not end until the victim is no longer detained. 198 Kan. at 504; see United
States v. Rodriguez-Moreno, 526 U.S. 275, 281, 119 S. Ct. 1239, 143 L. Ed. 2d 388
(1999).

On the other hand, the crime of theft—the crime at issue in Gainer—did not
describe ongoing conduct and is not a continuing offense. 227 Kan. at 674. A defendant
completes the crime of theft upon taking possession of the property and no language in
19
the theft statute contemplates further conduct. 227 Kan. at 673-75; see also State v.
Kunellis, 276 Kan. 461, 468-69, 78 P.3d 776 (2003) (theft is complete when individual
takes possession of property); State v. Palmer, 248 Kan. 681, 690, 810 P.2d 734 (1991)
(theft not a continuing offense).

As with theft, some ways of committing identity theft relate to a singular act.
Obtaining the personal identifying information of someone else has no element of an
ongoing nature. Nor does transferring, selling, or purchasing any personal identifying
information suggest ongoing conduct, even if the crime has continuing effects after
completion.

On the other hand, to say one is using something conveys ongoing action and thus
using personal identifying information meets the Toussie test for defining a continuing
offense because it "clearly contemplates a prolonged course of conduct." Toussie, 397
U.S. at 120. Like the ongoing conspiracy at issue in Toussie or the kidnapping at issue in
Zimmer, using the personal identifying information of someone else brings a daily
renewed threat of the substantive evil the Kansas Legislature sought to prevent. The
Legislature described a course of conduct of using someone's personal identifying
information that, once begun, does not end until the use ends. See K.S.A. 2003 Supp.
21-4018(a); Toussie, 397 U.S. at 122; Zimmer, 198 Kan. at 504.

The legislative definition of "deception" also conveys ongoing conduct. It means
"knowingly creating or reinforcing a false impression," K.S.A. 2012 Supp. 21-5111(e);
and "knowingly and willfully making a false statement or representation, express or
implied, pertaining to a present or past existing fact," K.S.A. 2003 Supp. 21-3110(5).
The criminal concept of reinforcing a false impression resembles concealment of fraud
in civil cases, which can result in a delayed accrual or tolling of the statute of
20
limitations. See OMI Holdings, Inc. v. Howell, 260 Kan. 305, 344-45, 918 P.2d 1274
(1996) (discussing the elements for a claim for fraud by silence or by concealment);
Friends University v. W.R. Grace & Co., 227 Kan. 559, 564, 608 P.2d 936 (1980)
(explaining the conditions under which concealment of a cause of action will toll the
applicable statute of limitations). In essence, the law generally recognizes different
statute of limitations considerations when the crime or cause of action relates to fraud
because continuing action is contemplated.

In sum, because the Legislature clearly defines the continuing crime of identity
theft arising from using the personal identifying information of another, we need not look
to legislative history. University of Kan. Hosp. Auth. v. Board of Comm’rs of Unified
Gov’t, 301 Kan. 993, 998, 348 P.3d 602 (2015) ("[I]n determining legislative intent, the
starting point is not legislative history; rather, we first look to the plain language of the
statute, giving common words their ordinary meaning.").

Turning to the evidence, as we have discussed, the State presented proof on which
a rational fact-finder could conclude that Valdiviezo-Martinez continued to use the
social security number to deceive his employer throughout his employment at the
restaurant and the fraud induced ongoing transfers of property with each pay period.

Thus, the State presented sufficient evidence when viewed through either the lens
of all the elements occurring on or about September 20, 2012, or the lens of identity
theft being a continuing offense that had not terminated before a date on or about
September 20, 2012.

21
 ISSUE 3: Identify Theft Statute Not Unconstitutionally Vague

Finally, Valdiviezo-Martinez argues K.S.A. 2012 Supp. 21-6107 fails to clearly
define what conduct it makes criminal, and it is thus unconstitutionally vague. More
specifically, he contends the "intent to defraud" element is too vague.

"[T]he test to determine whether a criminal statute is so vague as to be
unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to
those potentially subject to it, and (2) whether it adequately guards against arbitrary and
unreasonable enforcement." State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015);
see Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222
(1972).

Although Valdiviezo-Martinez does not specifically say so, he challenges the
constitutionality of the identity theft statute on its face. Convincing the court that a statute
is facially unconstitutional presents a difficult challenge for appellants because such
challenges rest on speculation, conflict with the principle of judicial restraint, and
threaten to undermine the democratic process. Bollinger, 302 Kan. at 318-19. To
establish that a statute is unconstitutional on its face, the appellant has the burden to show
that there is no set of circumstances under which the statute would be valid. In re
Weisgerber, 285 Kan. 98, 105, 169 P.3d 321 (2007) (citing Injured Workers of Kansas v.
Franklin, 262 Kan. 840, 850-51, 942 P.2d 591 [1997]). If a law does not limit
constitutionally protected conduct, it "should be upheld unless it 'is impermissi[bly]
vague in all of its applications.'" Hearn v. Overland Park, 244 Kan. 638, 641, 772 P.2d
758 (1989).

22
 A statute is not unconstitutionally vague just because a scenario can be imagined
in which innocent conduct could be penalized. "[U]ltimate, god-like precision" is not
required by the Constitution. Miller v. California, 413 U.S. 15, 28, 93 S. Ct. 2607, 37 L.
Ed. 2d 419 (1973). "That there may be marginal cases in which it is difficult to determine
the side of the line on which a particular fact situation falls is no sufficient reason to hold
the language too ambiguous to define a criminal offense." Hearn, 244 Kan. at 641. "The
'mere fact that one can conceive of some impermissible applications of a statute is not
sufficient to render it susceptible to an overbreadth challenge.'" United States v. Williams,
553 U.S. 285, 303, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008).

In arguing the identity theft statute is too vague, Valdiviezo-Martinez never argues
it is impermissibly vague in all situations. On that ground alone, his argument fails. But it
also fails upon examination of the hypotheticals he offers. He describes hypothetical
scenarios in which seemingly innocent behavior would fall under this umbrella. In the
first scenario he describes individuals who withdraw money from an ATM and use
someone else's card—even if a person has the cardholder's permission, Valdiviezo-
Martinez argues the cardholder and the actor are intending to deceive the bank by making
the bank believe that person is the cardholder. He makes a similar argument about a
person who has a pizza delivered to their friend's house because that person is deceiving
the pizza company as to that person's address.

Valdiviezo-Martinez' hypotheticals fall short because the identity theft statute and
the criminal definitions statute both require that "intent to defraud" include an underlying
intention to deceive. K.S.A. 2012 Supp. 21-6107(a); K.S.A. 2012 Supp. 21-5111(o).
"Deception" is defined as "knowingly creating or reinforcing a false impression." K.S.A.
2012 Supp. 21-5111(e). The problem with Valdiviezo-Martinez' hypothetical situations is
that they involve situations in which the activity was authorized—authorized activity is
23
not deception. See Black's Law Dictionary 165 (11th Ed. 2019) (defining authorize as
"[t]o give legal authority; to empower").

Moreover, Valdiviezo-Martinez makes no claim that his activity of using the
stolen social security number is constitutionally protected or that K.S.A. 2012 Supp. 21-
6107(a) does not apply to it. He also does not show that K.S.A. 2012 Supp. 21-6107(a)
fails to adequately describe the prohibited conduct, or that the enforcement was arbitrary
in his case.

The words used in K.S.A. 2012 Supp. 21-6107 are commonly understood or are
defined, giving them a settled meeting. The statute gives fair warning and sufficient
notice of the prohibited conduct. And Valdiviezo-Martinez has not shown that the
enforcement is arbitrary and discriminatory. Plus, the statute provides sufficient guidance
to prevent inherently arbitrary or discriminatory enforcement. Finally, the statute is
constitutional as applied to Valdiviezo-Martinez' specific behavior. He has thus failed to
meet his burden of demonstrating facial unconstitutionality.

CONCLUSION

Valdiviezo-Martinez fails to persuade us that his conviction for identity theft
should be reversed for any of the reasons he raises on appeal.

Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.

24
 BEIER, J., not participating.
MICHAEL E. WARD, Senior Judge, assigned. 1

***

BILES, J., dissenting: Just because a defendant's criminal conduct on a particular
day provides the defendant with a long-term benefit does not make the crime continuing
in nature—only its statutory elements can do that. In this instance, the elements for
identity theft do not create a continuing offense, so I dissent from the majority's
conclusion that it does.

The alleged crime must be a continuous offense for the State to pursue its
otherwise time-barred prosecution of Valdiviezo-Martinez, or else his passive receipt of a
benefit stemming from his earlier use of another's social security number must constitute
an independent crime. The State alleges he gave someone else's social security number in
2005 when he completed and signed a W-4 form, so he could get a job at a restaurant
where he worked from 2005 through September 2012. And based on this, the State
charged:

"on or about the 20th day of September, 2012, . . . Victor Valdiviezo-Martinez did then
and there unlawfully, willfully and feloniously use any personal identifying information,
to wit: social security number, belonging to or issued to another person, to wit: [D.T.],

1
REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 111,447
vice Justice Beier under the authority vested in the Supreme Court by K.S.A. 20-2616.

25
 with the intent to defraud that person, or anyone else, in order to receive any benefit, . . .
in violation of K.S.A. 21-6107, K.S.A. 21-6804 and K.S.A. 21-6807. (identity theft)."
(Emphases added.)

So is identity theft a continuous offense? K.S.A. 2012 Supp. 21-5107(f) provides
legislative guidance: "An offense is committed either when every element occurs, or, if a
legislative purpose to prohibit a continuing offense plainly appears, at the time when the
course of conduct or the defendant's complicity therein is terminated. Time starts to run
on the day after the offense is committed." (Emphasis added.) The majority correctly
notes K.S.A. 2012 Supp. 21-5107(f) codifies the federal approach to the continuing
offense doctrine, which applies at the federal level only in limited circumstances and with
a clear expression of congressional intent. Slip op. at 17-19.

So what does the Kansas statute say? K.S.A. 2012 Supp. 21-6107(a)—the 2012
version for identity theft—provides:

"Identity theft 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." (Emphases added.)

Similarly, the statutory version in effect in 2005, K.S.A. 2003 Supp. 21-4018(a),
provided:

"Identity theft is knowingly and with intent to defraud for economic benefit,
obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use,
one or more identification documents or personal identification number of another person
other than that issued lawfully for the use of the possessor." (Emphases added.)

26
 The majority concedes "neither the 2005 nor the 2012 version of the identity theft
statute explicitly states it is an ongoing crime." (Emphasis added.) Slip op. at 19. In other
words, and in K.S.A. 2012 Supp. 21-5107(f)'s exacting language, a legislative purpose to
make identity theft a continuing offense does not "plainly" appear. Yet the majority still
divines a continuing offense. I disagree.

When interpreting "using," the majority focuses on the crime's incidental effect,
i.e., receiving paychecks, even though that is not an element of the identity theft crime.
The majority contends that once the use begins, identity theft "does not end until the use
ends." Slip op. at 20. In its view, Valdiviezo-Martinez' use continued throughout his
employment and ended on or about September 20, 2012, because there were "ongoing
transfers of property with each pay period." Slip op. at 21.

But under K.S.A. 2012 Supp. 21-6107(a)'s plain language, the realization of
"receiv[ing] any benefit" is not a part of the prohibited act—regardless of the actual
success or failure of what a defendant intended when they used someone else's social
security number. The crime is completed once they used it with intent to defraud
someone to gain any effect. What occurs after this use is not a criminal act under the
statute, so it should not affect our analysis of this issue.

Similarly, the prohibited action under the identity theft statute is not deception
(with intent to defraud the employer) as the majority contends. Slip op. at 6-8. Deception
is part of this crime's mens rea element. The criminalized conduct—the actus reus—is
"using" the information and that happened in 2005. So under the statute's plain language,
a defendant may intend to deceive an employer to get a job by using someone else's
identifying information. But in this instance, there is no other overt act after Valdiviezo-
27
Martinez filled out the initial payroll information in 2005. Stated more simply, a
defendant may be relying on the employer's continuing false belief about the defendant's
work status to remain employed and receive a paycheck, but that is not what this statute
criminalizes, so the majority's alternate "unit of prosecution" rationale suffers a similar
fate as its continuous offense rationale because there was no crime committed on
September 20, 2012.

The State charged Valdiviezo-Martinez with committing identity theft "on or
about the 20th day of September, 2012." (Emphasis added.) But what did he do "on or
about" that date? Again, we have legislative guidance. K.S.A. 2012 Supp. 21-5201
provides requirements for crimes of voluntary acts or omissions. Subsection (a) states, "A
person commits a crime only if such person voluntarily engages in conduct, including an
act, an omission or possession." But subsection (b) cautions that "[a] person who omits to
perform an act does not commit a crime unless a law provides that the omission is an
offense or otherwise provides that such person has a duty to perform the act." (Emphasis
added.) The identity theft statute contains no such language of omission.

Granted, writing down someone else's social security number with intent to
deceive an employer about your work eligibility to receive a benefit constitutes identity
theft; but Valdiviezo-Martinez only did this once in 2005, so assuming the facts as
alleged, he completed his crime in 2005. Yet the majority tries to avoid the obvious by
focusing on the employer continuing to pay Valdiviezo-Martinez for work done in 2012.
In doing so, the majority alters the statute's plain meaning. It suggests K.S.A. 2012 Supp.
21-6107(a) makes it a crime for Valdiviezo-Martinez to "use" his employer's mistaken
belief that the social security number—provided more than six years earlier—belonged to
Valdiviezo-Martinez because he did not correct the employer's belief before receiving
paychecks in 2012. But that is not an act—it is an omission.
28
 The State does not allege Valdiviezo-Martinez presented the social security
number to receive his paychecks, so their issuance is "more aptly characterized as
effects" of "using" someone else's identity in 2005 to obtain the employment at the
restaurant. State v. Valdiviezo-Martinez, No. 111,447, 2015 WL 7693673, at *9 (Kan.
App. 2015) (unpublished opinion) (Atcheson, J., dissenting). Put simply, our identity
theft statute does not require someone who violates it to come forward and correct the
misinformation or someone's misimpression. So even if the majority is correct that a
hypothetical defendant may engage in some continuous form of "using" personal
identifying information to receive a benefit that is not what happened in this case. And as
noted earlier, actually obtaining a benefit is not even a part of the identity theft offense.

The majority also correctly references the United States Supreme Court decision
Toussie v. United States, 397 U.S. 112, 114-15, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970), as
persuasive authority but gives only lip service to what I view as its fairly tough criteria
for determining when a law creates a continuing offense. The Fifth Circuit applied the
Toussie test to the federal identity theft statute to decide whether a previous "use" of an
immigration document "knowing it to be forged, counterfeited, altered, or falsely made"
or "procured by fraud or unlawfully obtained," constituted a continuing offense. United
States v. Tavarez-Levario, 788 F.3d 433 (5th Cir. 2015). In concluding the statute did not
create a continuing offense, the court explained:

"First, under Toussie, the analysis of whether a crime constitutes a continuing
offense involves examining the offense itself, not the defendant's particular conduct.
Second, the fact that a particular defendant’s conduct provided long-term benefits to that
defendant does not mean that his offense is a continuing one. See [United States v.
Dunne, 324 F.3d 1158, 1165 (10th Cir. 2003)] (an offense was not a continuing one

29
 simpl[y] because the defendant 'committed a crime which had continuing effects after its
completion'); United States v. Hare, 618 F.2d 1085, 1086-87 (4th Cir.1980) (rejecting the
argument that improper receipt of anything of value for performance of an official act
was a continuing offense where the defendant received a loan that provided benefits over
a prolonged period). Instead, the nature of the offense itself must be such that it
inherently involves criminal activity of an ongoing or continuous character. Even a crime
that naturally occurs in a single, finite incident can produce prolonged benefits to an
offender; this does not mean that the statute of limitations refrains from running until all
benefits of the criminal act dissipate. Thus, we conclude that the 'nature' of this offense is
not 'such that Congress must assuredly have intended that it be treated as a continuing
one.' [Citations omitted.]" (Emphases added.) 788 F.3d at 440-41.

In Tavarez-Levario, law enforcement stopped a commercial vehicle in 2014 driven
by the defendant who admitted he did not have proper documentation authorizing him to
be in the United State legally. Investigators later discovered the defendant had presented
a counterfeit green card and counterfeit social security card in 2009 to obtain
employment with this company as a driver. And like Valdiviezo-Martinez, they charged
the defendant with "use" of a counterfeit immigration document to maintain his continued
employment. But the Fifth Circuit concluded the statute met neither prong of the Toussie
test, so the prosecution was time barred. 788 F.3d at 437.

For these reasons, I would reverse the conviction because the State charged
Valdiviezo-Martinez after the Kansas statute of limitations expired.

ROSEN and WALL, JJ., join the foregoing dissent.

30