Ishola v. State

*168Dissenting Opinion by BATTAGLIA, J., which HARRELL, J., joins.

I respectfully dissent.

In the present case, Kazeem Adeshina Ishola was convicted of two counts of assuming the “identity of another” in violation of Section 8-301(c) of the Criminal Law Article, Maryland Code (2002, 2007 Supp.), for using two different false identifications, those of “Christopher J. Pitera” and “James P. Nicholas,” in attempts to open bank accounts with Branch, Banking & Trust (“BB & T”) on two occasions; during their investigation, the police were unable to locate persons named “Christopher J. Pitera” and “James P. Nicholas.” Ishola appealed to the Court of Special Appeals contending that there was insufficient evidence to support his convictions because the State had not proven that Ishola had assumed the identities of actual real people. The Court of Special Appeals, in a reported opinion, affirmed the conviction and held that the term “identity of another” in Section 8-301(c) was unambiguous and meant an identity other than one’s own, including fictitious identities. Ishola v. State, 175 Md.App. 201, 927 A.2d 15 (2007). The majority reverses; I disagree.

Section 8-301 (c) of the Criminal Law Article states that under certain circumstances an individual may not knowingly and willfully assume the “identity of another”:

(c) Same—Assuming identity of another.—A person may not knowingly and willfully assume the identity of another:
(1) to avoid identification, apprehension, or prosecution for a crime; or
(2) with fraudulent intent to:
(i) get a benefit, credit, good, service, or other thing of value; or
(ii) avoid the payment of debt or other legal obligation.

The gravamen of the instant case is the phrase “identity of another,” in subsection (c). The majority concludes that the phrase “identity of another” is ambiguous and interprets the *169statute to prohibit only assuming an identity of an actual individual. This is an error.

Because we interpret statutory language according to its plain, natural and ordinary meaning, see Rush v. State, 403 Md. 68, 97, 939 A.2d 689, 706 (2008); Cain v. State, 386 Md. 320, 328, 872 A.2d 681, 685 (2005); Khalifa v. State, 382 Md. 400, 429, 855 A.2d 1175, 1191-92 (2004); Graves v. State, 364 Md. 329, 346, 772 A.2d 1225, 1235 (2001), “identity of another,” within subsection (c), does not connote only identities of actual individuals, as revealed in the ordinary definition of “another,” being “one that is different from the first or present one.” See Merriam-Webster’s College Dictionary 51 (11th ed.2003); Webster’s II New College Dictionary 47 (1999) (defining “another” as “[o]ne more” and “[distinctly different from the first”); The Random House Dictionary of the English Language 85 (2nd ed.1987) (defining “another” as “an additional one” and “a different one”). Ishola clearly assumed an identity “different from” his own, when he twice attempted to, and on a different occasion did, open a bank account at BB & T.

What, however, the majority does is substitute the language “identity of another actual real individual” for “identity of another.” If the General Assembly intended to exclude assuming the identity of a fictitious person, it would have done so with a direct and explicit reference to such an distinction, rather than focusing on whether the identity is different than one’s own.

The import of the majority’s opinion is that only those who assume the identity of an actual individual could be prosecuted; a perpetrator could escape prosecution by assuming a fictitious identity, or at least the name of a person who cannot be located. The General Assembly could not have reasonably intended such an illogical result. See Allen v. State, 402 Md. 59, 76, 935 A.2d 421, 431 (2007) (“We shall not hew to a plain language approach that beggars common sense.”); Rush, 403 Md. at 97, 939 A.2d at 706 (“Further, whenever possible, an interpretation should be given to the statutory provisions which does not lead to unreasonable or illogical conse*170quences.”); Miles v. State, 365 Md. 488, 539, 781 A.2d 787, 817 (2001) (rejecting interpretation of statute as argued because it was “ ‘unreasonable, illogical, inconsistent with common sense, and absurd’ ”); Gray v. State, 221 Md. 286, 289, 157 A.2d 261, 263 (1960) (rejecting construction of statute because it would “cause the statute to be so unreasonable as to cast serious doubt upon its validity”). The majority, nevertheless, opines that its conclusion is supported by the structure of Section 8-301, which also includes subsection (b), prohibiting in certain circumstances possessing or obtaining “personal identifying information of an individual, without the consent of the individual.” 1 The two separate statutory subsections define different crimes: subsection (b) prohibits an individual from possessing, obtaining, or helping another to possess or obtain an individual’s personal identifying information without that individual’s consent, while subsection (c) bars an individual from assuming the identity of another. Additionally, the majority’s reliance on legislative history is misplaced. The majority cites to two pieces of legislative history: first, Chapter 331 of the Maryland Laws of 1999, stating that the purpose of the identity theft statute is “to prohibit ‘certain persons from using an individual’s personal identifying information without the consent of that individual for certain purposes,’ ” and second, the Bill Analysis of Senate Bill (244), providing that the identity theft bill prohibits an individual from “[o]btaining or aiding another person in obtaining personal identifying information of another individual without the consent of that individual or individual’s agent and sell, transfer, or otherwise use that information to obtain or attempt to obtain any benefit, credit, goods, services, or other things of value.” *171404 Md. at 164-66, 945 A.2d at 1278-79 (emphasis in original). This legislative history, however, does not address the assumption of a false identity for fraudulent purposes as prohibited in Section 8-301(c), the subsection at issue in this case, but rather, speaks only to the conduct criminalized under Section 8-301(b). The only mention of subsection (c) in the legislative history of the statute includes cursory notes that the statute also “prohibit[s] a person from assuming the identity of another for certain purposes under certain circumstances.” 1999 Maryland Laws, Chapter 331. See also Department of Legislative Services, Revised Fiscal Note, House Bill 334 (1999) (“The bill also prohibits a person from knowingly and willfully assuming the identity of another with specified fraudulent intent or to avoid prosecution of a crime.”); Department of Legislative Services, Revised Fiscal Note, Senate Bill 244 (1999) (same).2

The purpose of the identity theft statute is, clearly, to protect the people of Maryland from identity theft. See Honorable Carol S. Petzold, House Judiciary Committee, Memorandum in Support of House Bill 334 (1999), February 25, 1999 (bill sponsor stating that the bill “is the result of an effort involving various government agencies and citizens focused on creating a clear and concise law that will protect the people of Maryland”). The people, to be protected, however, are not only those individuals whose identities are assumed, but also those business people or entrepreneurs who are harmed also by the use of the assumed identity. See Bill *172Analysis of Senate Bill 244 (1999) (“Additionally, the victims of the current counterfeiting, forgery, and theft crimes are usually banks or other financial institutions or retail establishments.”). By interpreting the statute as it does, the majority fails to honor the statute’s entire legislative purpose.

The evidence in the present case clearly is sufficient to convict Ishola of identity theft. Ishola twice attempted to use an identity that was not his own, “Christopher J. Pitera,” to open bank accounts. Ishola, according to the evidence perused, had previously opened an account with Branch, Banking & Trust under yet another identity not his own, that of “James P. Nicholas.” Viewing this evidence in a light most favorable to the State, I believe that a rational fact-finder could find each element of Section 8-301(c) to be satisfied beyond a reasonable doubt. Therefore, I would affirm Ishola’s convictions.

Judge HARRELL authorizes me to state that he joins in this dissenting opinion.

. Section 8-301(b) of the Criminal Law Article, Maryland Code (2002, 2007 Supp.), states:

(b) Prohibited—Obtaining personal identifying information without consent.—A person may not knowingly, willfully, and with fraudulent intent possess, obtain, or help another to possess or obtain any personal identifying information of an individual, without the consent of the individual, in order to use, sell, or transfer the information to get a benefit, credit, good, service, or other thing of value in the name of the individual.

. The majority also draws support from other sections of the Code using the term "fictitious person,” a statute from Alabama and the rule of lenity, the principle that "[Criminal statutes must be strictly construed in favor of the defendant to prevent courts from extending punishment to cases not plainly within the language of the statute,” Moore v. State, 388 Md. 623, 632, 882 A.2d 256, 261 (2005); Farris v. State, 351 Md. 24, 29, 716 A.2d 237, 240 (1998). However, because the statutory language is unambiguous, there is no need to address these other statutory provisions, nor to consider the rule of lenity. See .Jones v. State, 336 Md. 255, 261-62, 647 A.2d 1204, 1207 (1994), in which we noted that the rule of lenity "is a maxim of statutory construction which serves only as an aid for resolving an ambiguity and it may not be used to create an ambiguity where none exists” and that "[wjhen the statute is unambiguous, the rule of lenity ‘simply has no application.’ ”