CRIMINAL LAW – Crimes (identity theft): Crouch v. Commonwealth (COA 2/6/2009)

Crouch v. Commonwealth
2009 WL 277100
Opinion by Senior Judge Buckingham; Judge Wine concurred; Chief Judge Combs dissented by separate opinion.

The Court affirmed a judgment of the circuit court entered subsequent to a jury verdict convicting appellant of identity theft, reckless driving, and being a first degree persistent felony offender and sentencing him to five years on the theft of identity charge, enhanced to 15 years due to his first-degree PFO status.

After appellant was stopped for speeding, he gave a false name and Social Security number to the police. The Court held that the trial court did not err in denying appellant’s pre-trial motion to have the indictment amended down from the felony charge of identity theft under KRS 514.160(1)(d) to giving a false name or address to a peace officer under KRS 523.110(1) because the trial court had no jurisdiction to amend the indictment except as authorized by RCr 6.16. Further, appellant’s actions fit the plain language of the statute, as he admitted that he used the name and Social Security number as an alias to avoid detection. The statute did not require that there be a pecuniary benefit. The Court then held that the trial court did not err in denying appellant’s request for a jury instruction that would have allowed the jury to find him guilty of giving a false name to a peace officer, as the evidence did not support the instruction. The Court declined to hold that the punishment was disproportionate to the crimes committed, as the sentence of 15 years was a result of appellant’s PFO status. The Court also declined to apply the rule of lenity because there was no doubt or ambiguity as to the construction of the statute.

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