dissenting.
I respectfully dissent from the majority's holding that the evidence was sufficient to convict defendant of eriminal impersonation. In my view, defendant's mere use of a Social Security number not belonging to him along with substantial other information accurately identifying him was not sufficient, under the cireumstances of this case, to prove beyond a reasonable doubt that he "knowingly assume[d] a false or fictitious identity or capacity" as is required to sustain a conviction under section 18-5-118, C.R.S8.2008.
I disagree with the majority's conclusion that defendant assumed a false or fictitious
capacity. Initially, I note that the People do not even argue that defendant's conviction can be upheld on this basis. In any event, I disagree with the majority's rationale.
The majority reads People v. Bauer, 80 P.3d 896 (Colo.App.2003), too broadly. The division in that case essentially equated "capacity" with legal status, a definition consistent with the commonly understood meaning of the term in this context. See Webster's Third New International Dictionary 300 (2002) (capacity means "a legal qualification, competency, power, or fitness"); see also Black's Law Dictionary 220 (8th ed.2004). The defendant in Bauer falsely claimed to be a licensed attorney-a legal status required before a person may practice law in this state.
The Bauer division's interpretation of the term "capacity" does not equate every trait with those having a distinct legal status. Except perhaps as to claiming Social Security benefits, possessing a Social Security number does not give a person a legal status that he or she would not possess absent possession of a Social Security number, in contrast to, say, a law license or a driver's license.
I disagree with the majority's conclusion that "(bly providing a Social Security number, defendant impliedly asserted his power or fitness to obtain the loan, and his ability to work legally in this country, and thereby repay it." That conclusion is based on erroneous or otherwise questionable underlying assumptions or conclusions. First, it equates giving any information required to obtain a loan with assuming a legal status. In my view, that stretches the concept of "capacity" too far. Second, it assumes both that the lender assumes a person who has a Social Security number has the right to work in the country and that the lender therefore assumes the applicant can repay the loan. There is no evidence in the record to support the majority's assumptions as to why the Social Security number was required.
Because I disagree with the majority's holding that defendant assumed a false or fictitious capacity, I must also address the People's contention that the evidence was sufficient to find defendant guilty because he assumed a false or fictitious identity. I conclude that it was not.
In People v. Jones, 841 P.2d 372 (Colo.App.1992), a division of this court held that assuming a false or fictitious identity within the meaning of a predecessor to section 18-5-118 is "to hold oneself out as someone that he or she is not [and requires] the assumption of the identity of another person, whether that other person is real or fictitious." Id. at 874 {emphasis omitted). The division further concluded that the defendant's mere use of a false Social Security number in conjunction with a loan application containing several accurate items of identifying information was insufficient to establish culpability under the statute. Id. In the past seventeen years, the General Assembly has not seen fit to change this holding by legislation.
I agree with the Jones division's conclusion that the mere use of a false Social Security number in these cireumstances does not amount to assuming a false or fictitious persona. In this context, a "false" identity refers to an actual person not the defendant. A "fictitious" identity refers to a person who does not exist. In using the false Social *346Security number here, defendant was not claiming to be another person, real or fictitious. In light of the totality of the information provided, which included only one item of false information (the Social Security number), defendant did not seek the loan pretending to be anyone other than himself; the loan application merely ascribed to defendant a Social Security number that was not his. Though a false Social Security number can be used to establish a false identity, it does not follow that using a false Social Security number necessarily establishes a false identity.
All this is not to say that defendant's use of a false Social Security number was necessarily lawful. Defendant may well have violated a number of federal and state laws. See, e.g., 18 U.S.C. § 1014 (making it a crime to make a false statement in seeking a loan from certain financial institutions); § 18-5-209(1)(a), C.R.S$.2008 (making it a crime to issue a false financial statement with the intent to defraud); § 18-5-902(1), C.R.S8.2008 (making it a crime to knowingly use or possess another's personal identifying information without permission to obtain credit). However, he did not claim a "capacity" that he did not have nor did he impersonate someone else. Therefore, he did not violate section 18-5-118. I would reverse his conviction and remand for the entry of a judgment of acquittal. Because I would reverse defendant's conviction, I would not address defendant's evidentiary arguments.