State v. Covey ( 2015 )

Nebraska Advance Sheets
STATE v. COVEY 257
Cite as 290 Neb. 257
State of Nebraska, appellee, v.
James R. Covey, appellant.
___ N.W.2d ___
Filed February 27, 2015. No. S-14-241.
1. Evidence: Appeal and Error. When reviewing the sufficiency of the evidence
to support a conviction, the relevant question for an appellate court is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
2. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
3. Statutes: Legislature: Presumptions: Intent: Appeal and Error. An appellate
court will, if possible, give effect to every word, clause, and sentence of a statute,
since the Legislature is presumed to have intended every provision of a statute to
have a meaning.
4. Statutes. Where an amendment leaves certain portions of the original act
unchanged, such portions are continued in force with the same meaning and
effect they had before the amendment.
5. Words and Phrases: Presumptions. The same words used in the same sentence
are presumed to have the same meaning.
Appeal from the District Court for Buffalo County: John
P. Icenogle, Judge. Reversed and remanded with directions
to vacate.
D. Brandon Brinegar, Deputy Buffalo County Public
Defender, for appellant.
Jon Bruning, Attorney General, and Austin N. Relph for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
This case presents the issue of whether a person can be
guilty of felony criminal impersonation under Neb. Rev. Stat.
§ 28-638(1)(c) (Cum. Supp. 2014) by uttering a false name
that does not correspond to any real individual.
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BACKGROUND
James R. Covey was charged with criminal impersonation in
violation of § 28-638(1)(c). He was also charged with being a
habitual criminal.1
Section 28-638(1)(c) states that a person commits the crime
of “criminal impersonation” if he or she “[k]nowingly pro-
vides false personal identifying information or a false personal
identification document to a court or a law enforcement offi-
cer[.]” Neb. Rev. Stat. § 28-636(2) (Cum. Supp. 2014), in turn,
defines “[p]ersonal identifying information” as “any name or
number that may be used, alone or in conjunction with any
other information, to identify a specific person including a
person’s: (a) Name; (b) date of birth; [et cetera].” “Person” or
“specific person” are not defined.
At trial, Officer Brandon Brueggemann testified that on the
afternoon of April 18, 2013, he was investigating a citizen
report of a man possibly selling stolen goods out of the trunk
of his vehicle. Brueggemann approached Covey at a conve-
nience store, where he was standing near the trunk of a vehicle
that matched the citizen’s description. Brueggemann exited the
cruiser and asked Covey some general questions.
In his police report, Brueggemann stated that from prior
contacts, he recognized Covey as “James Covey.” However, at
trial, Brueggemann explained that he did not recognize Covey
when he initially made contact.
Brueggemann testified that Covey falsely told Brueggemann
that Covey’s name was “Daniel Jones.” Covey concurrently
told Brueggemann Covey’s correct birth date.
Brueggemann returned to his cruiser to run the name and
birth date through his computer terminal. As he was doing so,
Covey ran away. After a pursuit, Covey was apprehended and
arrested. When booked, Covey identified himself truthfully as
“James Covey.”
There was no evidence at trial that the name “Daniel Jones”
corresponded to an actual person, and the State did not argue
that, as a matter of common sense, it must correspond to an
actual person.
1
See Neb. Rev. Stat. § 29-2221 (Reissue 2008).
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Covey challenged the charge of criminal impersonation on
the ground that it did not apply to the utterance of a name of
a fictitious individual. Covey argued that the State could have
instead charged him with false reporting under Neb. Rev. Stat.
§ 28-907 (Reissue 2008), because he had provided the false
name in an attempt to avoid an arrest warrant. False reporting
is a Class I misdemeanor.
The State argued that the existence of an actual person
who was being impersonated was irrelevant to the charge of
criminal impersonation. It asserted prosecutorial discretion in
choosing to charge Covey with felony impersonation rather
than misdemeanor false reporting.
The trial court agreed with the State and overruled Covey’s
plea in abatement and motion to dismiss the charge of crimi-
nal impersonation. The trial court also granted the State’s
motion in limine to prevent Covey from presenting any argu-
ment that he must have known he was using the name of
an actual person in order to be guilty of criminal imperson-
ation. After the trial, the jury found Covey guilty of crimi-
nal impersonation.
At the sentencing hearing, Covey objected to the admission
of exhibits 2 through 7 on the ground that they had just been
received by defense counsel. The court offered to continue the
sentencing hearing, but Covey declined. The court overruled
Covey’s objections to the exhibits.
The court found that Covey was a habitual criminal and
sentenced him to 10 to 14 years of incarceration. The court
explained that it was sentencing Covey in such a way that
he would have a period of supervised release on parole after
his incarceration.
ASSIGNMENTS OF ERROR
Covey assigns as error the overruling of his plea in abate-
ment and the overruling of his motion to dismiss. Both of
these assignments can be consolidated into his third assign-
ment of error that there was insufficient evidence to support
his conviction.
Covey also assigns as error the trial court’s grant of the
State’s motion in limine and the overruling of Covey’s
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objection to exhibits 2 through 7 for purposes of enhance-
ment. Finally, Covey asserts that the court imposed an exces-
sive sentence.
STANDARD OF REVIEW
[1] When reviewing the sufficiency of the evidence to sup-
port a conviction, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.2
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.3
ANALYSIS
Covey argues that the evidence was insufficient to convict
him of criminal impersonation under § 28-638(1)(c), because
there was no evidence that the false name he provided to the
law enforcement officer corresponded to any actual person.
Section 28-638(1)(c) is one of several subsections pertaining
to the “crime of criminal impersonation.” Section 28-638(1)
states that “[a] person commits the crime of criminal imperson-
ation if he or she:” (a) pretends to be a representative of some
person or organization with the intent to gain pecuniary benefit
and to deceive or harm another; (b) carries on any profession,
business, or other occupation without a license, certificate, or
other legally required authorization; (c) knowingly provides
false personal identifying information or a false personal iden-
tification document to a court or a law enforcement officer; or
(d) knowingly provides false personal identifying information
or a false personal identification document to an employer for
the purpose of obtaining employment.
Impersonation under § 28-638(1)(a) and (b) is a felony or a
misdemeanor, depending upon the value gained or attempted to
2
State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).
3
Hess v. State, 287 Neb. 559, 843 N.W.2d 648 (2014).
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be gained by the impersonator.4 Impersonation under subsec-
tion (1)(d) is always a misdemeanor.5 But impersonation under
subsection (1)(c), the statute Covey was charged with violat-
ing, is always a felony.6
Section 28-636(1) defines a “[p]ersonal identification docu-
ment” as
a birth certificate, motor vehicle operator’s license, state
identification card, . . . or passport or any document made
or altered in a manner that it purports to have been made
on behalf of or issued to another person or by the author-
ity of a person who did not give that authority.
(Emphasis supplied.)
Section 28-636(2), which is most directly at issue in this
case, defines “[p]ersonal identifying information” as
any name or number that may be used, alone or in con-
junction with any other information, to identify a specific
person including a person’s: (a) Name; (b) date of birth;
(c) address; (d) motor vehicle operator’s license number
or state identification card number as assigned by the
State of Nebraska or another state; (e) social security
number or visa work permit number; [et cetera].
(Emphasis supplied.)
We must determine whether, under § 28-636(2), the “per-
son’s” name or number can be a fictitious “person’s” name or
number, which “may be used . . . to identify a specific [ficti-
tious] person,” or, instead, whether the State must show that
the defendant provided the name or number of a real person,
which name or number “may be used, alone or in conjunc-
tion with any other information, to identify a specific [real]
person.” We conclude that under the plain language of these
statutes, a person commits felony impersonation only by giv-
ing law enforcement the personal identifying information of a
specific and real individual. To the extent that there could be
any reasonable disagreement about the plain meaning of the
4
See § 28-636(2)(a) through (d).
5
See § 28-638(2)(f).
6
See § 28-638(2)(e).
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relevant impersonation statutes, they are ambiguous. As such,
we must follow our rules of construction and the rule of lenity,
which will lead us to the same result.
“Person” is not defined in the definitions section of chapter
28, article 6, of the Nebraska Revised Statutes, which sets
forth the “offenses involving fraud” and which contains the
impersonation statutes. However, Neb. Rev. Stat. § 28-109
(Reissue 2008), found in article 1 of the criminal code, states:
“For purposes of the Nebraska Criminal Code, unless the con-
text otherwise requires: . . . (16) Person shall mean any natural
person and where relevant a corporation or an unincorporated
association.” The impersonation statutes, of course, are part of
the criminal code.
The definition of “person” found in § 28-109(16) makes
clear that the “person”/“specific person” in § 28-636(2) can-
not be a fictitious person. Black’s Law Dictionary states that
a “natural person” is “[a] human being, as distinguished from
an artificial person created by law.”7 We believe that a “natural
person” excludes imaginary, artificial, or fictitious persons. If
it did not, then all kinds of crimes could be committed against
fictitious “persons.” We find no reason why the context of the
impersonation statutes would “require” that we understand
“person” any differently.
To the extent it might be argued that the definition of “per-
son” as a “natural person” is not decisive, we note the dic-
tionary definition of a “person” as “a human being regarded
as an individual.”8 “Specific,” in turn, is “clearly defined
or identified.”9 While the dictionary definition of “person”
does not explicitly state that the “human being” is real rather
than fictitious, things capable of being real are not normally
understood by default as encompassing the fictitious, unless
the context so indicates. Rather, the default understanding of
a word used in the context of a real-world application is that
the word refers to real things in that real world. We believe
7
Black’s Law Dictionary 1162 (7th ed. 1999).
8
Concise Oxford American Dictionary 660 (2006).
9
Id. at 869.
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that in the context of § 28-636(2), “person” plainly means a
real person.
Cases from other jurisdictions considering similar imperson-
ation statutes support this conclusion that “person” is plainly
limited to real and specifically identifiable human beings. For
example, 18 U.S.C. § 1028(a)(7) (2012) provides that under
specified circumstances, it is a crime to knowingly transfer,
possess, or use, without lawful authority, a means of identifica-
tion “of another person.” Section 1028(d)(7), in turn, defines
“means of identification” in language practically identical to
§ 28-636(2)’s definition of “[p]ersonal identifying informa-
tion.” It defines “means of identification” as “any name or
number that may be used, alone or in conjunction with any
other information, to identify a specific individual.” It then lists
several of the same examples as § 28-636(2): name, date of
birth, address, driver’s license or identification number, Social
Security or work permit number, et cetera.
Federal courts have consistently held that the “means of
identification” described in 18 U.S.C. § 1028(d)(7) must iden-
tify an actual person who is not the defendant.10 In fact, the
U.S. Supreme Court, in Flores-Figueroa v. United States,11 held
that the language of 18 U.S.C. § 1028A(a)(1) (2012), which is
identical in relevant part to 18 U.S.C. § 1028(a)(7), requires
that the government prove the defendant knew that the means
of identification at issue corresponded to an actual person.
Further, federal courts hold that a non-unique identifier,
such as a name, will not alone qualify as a “means of iden-
tification,” when that identifier points to numerous equally
plausible, actual persons, as opposed to one specific, real
individual.12 For example, in U.S. v. Mitchell,13 the court held
that the definition of “‘means of identification of another
person’” as “‘any name or number that may be used, alone
10
See Flores-Figueroa v. United States, 556 U.S. 646, 129 S. Ct. 1886, 173
L. Ed. 2d 853 (2009).
11
Id.
12
See, e.g., U.S. v. Foster, 740 F.3d 1202 (8th Cir. 2014); U.S. v. Mitchell,
518 F.3d 230 (4th Cir. 2008).
13
U.S. v. Mitchell, supra note 12, 518 F.3d at 234 (emphasis in original).
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or in conjunction with any other information, to identify a
specific individual’” was plain and clarified that 18 U.S.C.
§ 1028(d)(7) requires that the “means of identification” entail
a sufficient amount of correct, distinguishing information to
identify a specific, real person. The court then explained that,
in most circumstances, a non-unique identifier, such as a
name or date of birth, will not be sufficient to identify a spe-
cific person.14
State courts likewise conclude in the context of various
impersonation statutes that the “person” impersonated must be
a real person. Several state courts have accordingly held that
giving a police officer the wrong name, without proof the name
corresponded to a real individual, is insufficient to support a
charge of impersonation.15
Many state impersonation statutes are worded in terms of
impersonating “another,” which is understood as “another per-
son,” similar to the federal statutes. “Another” in this context
has been held to mean holding oneself out as a specific, actual
individual who is someone other than oneself.16
State v. Woodfall17 illustrates the strength of courts’ plain
reading of terms like “another,” “other person,” and “person,”
as excluding fictitious entities. In Woodfall, the court was
presented with the definition of “‘personal information’” as
“‘information associated with an actual person or a f­ictitious
person.’”18 Yet, the court still found the statutory scheme
ambiguous. The court interpreted the definition of “personal
14
Id.
15
See, Lee v. Superior Court, 22 Cal. 4th 41, 989 P.2d 1277, 91 Cal. Rptr.
2d 509 (2000); State v. Jackson, 32 Conn. App. 724, 630 A.2d 164 (1993);
Brown v. State, 225 Ga. App. 750, 484 S.E.2d 795 (1997); City of Liberal
v. Vargas, 28 Kan. App. 2d 867, 24 P.3d 155 (2001); People v. Gaissert,
75 Misc. 2d 478, 348 N.Y.S.2d 82 (1973); State v. Berry, 129 Wash. App.
59, 117 P.3d 1162 (2005).
16
People v. Danisi, 113 Misc. 2d 753, 449 N.Y.S.2d 874 (1982); People v.
Gaissert, supra note 15. See, also, People v. Sherman, 116 Misc. 2d 109,
455 N.Y.S.2d 528 (1982).
17
State v. Woodfall, 120 Haw. 387, 206 P.3d 841 (2009).
18
Id. at 393, 206 P.3d at 847 (emphasis supplied).
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information” in favor of the defendant and concluded it was
limited to impersonation of real persons. The court explained
that the inclusion of “fictitious persons” in the definition of
“personal information” conflicted with other provisions. The
definition of “personal information” operated in conjunction
with the underlying statute setting forth the offense of “‘trans-
mission of any personal information of another.’”19 And the
term “‘another,’” the court noted, was defined by a different
statute as “‘any other person.’”20 The court also noted that
“‘person’” was defined by a general statute applicable to the
criminal code as “‘any natural person.’”21
[3] We do not see any meaningful distinction between the
terms “another” and “person” under the statutes from other
jurisdictions addressed above and the use of “person”/“specific
person” in § 28-636(2). Furthermore, we note that § 28-638
expressly uses the term “impersonation” as part of the body of
the statute. This is not merely a label placed by the Nebraska
Revisor of Statutes. As such, the word “impersonation” should
be given credence like any other. We will, if possible, give
effect to every word, clause, and sentence of a statute, since
the Legislature is presumed to have intended every provision
of a statute to have a meaning.22 And one dictionary definition
of “impersonation” is to pretend to be “another person.”23 The
cases discussed above support our view of the plain meaning of
§§ 28-638(1)(c) and 28-636(2).
At a minimum, we would be hard pressed to conclude that
“person” in the context of §§ 28-638(1)(c) and 28-636(2) is not
ambiguous as to whether it includes or excludes fictitious per-
sons. Ambiguity is defined as being capable of more than one
reasonable interpretation,24 and we certainly view these other
courts’ decisions as reasonable.
19
Id. at 391, 206 P.3d at 845.
20
Id. at 392, 206 P.3d at 846.
21
Id.
22
See Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173 (1985).
23
Black’s Law Dictionary, supra note 7 at 757.
24
See In re Interest of Erick M., 284 Neb. 340, 820 N.W.2d 639 (2012).
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In the face of ambiguity, we must examine legislative his-
tory and abide by the rule of lenity. Doing so, we are led
to the same conclusion: that to commit the felony crime of
impersonation by presenting “false personal identifying infor-
mation” to a law enforcement officer, there must be an actual
individual being “impersonated” by such “personal identify-
ing information.”
We first observe the history of the impersonation leg-
islation. The definition of “personal identifying informa-
tion” remained unchanged during the most recent amend-
ment to the impersonation statutes, which was 2009 Neb.
Laws, L.B. 155. The same definition of “personal identify-
ing information” was previously found in Neb. Rev. Stat.
§ 28-608(4)(b) (Reissue 2008), and that definition tied into
§ 28-608(1)(d)(i). Section 28-608(1)(d)(i) stated that a per-
son “commits the crime of criminal impersonation” if he or
she, “[w]ithout the authorization or permission of another
and with the intent to deceive or harm another,” “[o]btains or
records personal identification documents or personal identi-
fying information[.]”
Thus, in the context of the impersonation statutes before
the passage of L.B. 155, the “person” identified by the “per-
sonal identifying information” was very clearly a real person,
as distinguished from a fictitious person. The “personal iden-
tifying information” was of “another,” who was capable of
giving authorization or permission, and who was capable of
being harmed by the unauthorized use of the personal identi-
fying information. Moreover, using the “personal identifying
information” of another, in violation of § 28-608(1)(d)(i), was
distinguishable from impersonation through “[a]ssum[ing] a
false identity” or acting in an “assumed character,” in violation
of § 28-608(1)(a). Before L.B. 155, all the kinds of imper-
sonation were a misdemeanor or a felony, depending on the
harm caused.
[4] Where an amendment leaves certain portions of the
original act unchanged, such portions are continued in
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force with the same meaning and effect they had before the
amendment.25 Thus, the unchanged definition of “personal
identifying information” is presumed to continue to be under-
stood as the name or number of a real, not a fictitious, spe-
cific person.
We find no evidence from the legislative history that the
Legislature intended to change the meaning of “personal iden-
tifying information” when it passed L.B. 155. The legislative
history indicates only that L.B. 155 added the category of
presenting “false identifying information” to a police officer,
and made every such instance a felony regardless of the harm
caused, because “persons who commit these crimes are not
always looking for a financial gain.”26 The Judiciary Committee
explained that it was attempting to close the “gaps that victims
fall through currently. Criminals use personal information for
many reasons other than financial gain, including to commit
crimes, evading arrest, or undocumented workers use this
information to be employed in this country.”27
Also, we interpret criminal statutes together so as to maintain
a consistent and sensible scheme.28 In this regard, we observe
that criminal impersonation via false personal identifying infor-
mation, both before and after L.B. 155, has always been dis-
tinguishable from the separate misdemeanor offense of “false
reporting” found in our criminal code. Section 28-907(1)(a)
states that a person commits “false reporting” if he or she
“[f]urnishes material information he or she knows to be false
to any peace officer or other official with the intent to instigate
an investigation of an alleged criminal matter or to impede the
investigation of an actual criminal matter.” We have held that
25
Branz v. Hutchinson, 128 Neb. 698, 260 N.W. 198 (1935).
26
Floor Debate, L.B. 155, Judiciary Committee, 101st Leg., 1st Sess. 84
(May 7, 2009).
27
Judiciary Committee Hearing, L.B. 155, 101st Leg., 1st Sess. 50 (Jan. 28,
2009) (emphasis supplied).
28
See Sack v. State, 259 Neb. 463, 610 N.W.2d 385 (2000).
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the crime of “false reporting” includes giving a false name to
avoid an arrest warrant.29
It would be an odd criminal scheme if giving a false name
to a police officer, without any additional intent, could be a
felony under § 28-638(1)(c), while the same act with the addi-
tional element of intending to impede an investigation is only
a misdemeanor.
Finally, we must abide by the rule of lenity. Under the rule
of lenity, ambiguities in a penal statute are resolved in the
defendant’s favor.30 The rule of lenity serves important inter-
ests. It promotes fair notice to those subject to the criminal
laws, minimizes the risk of selective or arbitrary enforce-
ment, and maintains the proper balance between Congress,
prosecutors, and the courts.31 The rule of lenity requires
that we interpret “person,” as used in §§ 28-638(1)(c) and
28-636(2), to encompass only real, specifically identifiable,
human beings.
The State and the dissent argue §§ 28-638(1)(c) and
28-636(2) unambiguously give fair notice to those subject to
our criminal laws that it is felony “criminal impersonation” to
provide a false name or number to a police officer—whether
or not such false name or number constitutes identifying infor-
mation for any real individual. The State argues that the “spe-
cific person” referred to in § 28-636(2) is the defendant and
not some other, specific, real person. The State accordingly
reads “to identify a specific person” as meaning “to identify
oneself.” We disagree.
[5] The “personal identifying information” will not be
“false” if the “specific person” identified by the name or num-
ber is the same “person’s” name or number given to the law
enforcement officer. Therefore, the State’s argument runs afoul
29
See State v. Nissen, 224 Neb. 60, 395 N.W.2d 560 (1986).
30
See, State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014); State v.
Thacker, 286 Neb. 16, 834 N.W.2d 597 (2013).
31
See, e.g., United States v. Kozminski, 487 U.S. 931, 108 S. Ct. 2751, 101
L. Ed. 2d 788 (1988).
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of the rule of construction that the same words used in the
same sentence are presumed to have the same meaning.32
Furthermore, if the Legislature had intended the meaning the
State champions, there are certainly clearer ways it could have
conveyed that meaning. “[A] specific person” in § 28-636(2)
is an oddly oblique way for the Legislature to have chosen to
simply say “oneself.”
And, finally, the State’s argument as to whom “specific
person” refers does not address the meaning of the second
instance of “person” in § 28-636(2): “including a person’s: (1)
Name; (b) date of birth; (c) address; [et cetera].”
The dissent, for its part, focuses on the use of the term
“may” in the same phrase from § 28-636(2) that the State
focuses on: “Personal identifying information means any name
or number that may be used, alone or in conjunction with
any other information, to identify a specific person . . . .”
The dissent argues that § 28-636(2) plainly states that the
“[p]ersonal identifying information” may or may not identify
a real human being. In making this argument, the dissent relies
on cases holding that “may” connotes permissive or discre-
tionary action.
The dissent’s argument, like the State’s, does not address
the second instance of “person” in the statute. In any event,
the cases the dissent relies upon are inapplicable. The statutes
analyzed in those cases use “may” to describe an action by
an actor. For example, we have held that “may” connotes dis-
cretionary action when used in statutes specifying that “‘the
court may set aside a final judgment’”33 or “may allow the
32
See, Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552, 130 L. Ed. 2d 462
(1994); Philippides v. Bernard, 151 Wash. 2d 376, 88 P.3d 939 (2004).
See, also, e.g., Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
126 S. Ct. 1204, 163 L. Ed. 2d 1038 (2006); Lewis v. Philip Morris Inc.,
355 F.3d 515 (6th Cir. 2004); C.R. Klewin Northeast v. City of Bridgeport,
282 Conn. 54, 919 A.2d 1002 (2007); Jasper Contractors, Inc. v. E-Claim.
com, 94 So. 3d 123 (La. App. 2012). See, also, 2A Norman J. Singer,
Statutes and Statutory Construction § 46:06 (5th ed. 1992).
33
Alisha C. v Jeremy C., 283 Neb. 340, 349, 808 N.W.2d 875, 883 (2012).
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prevailing party . . . a reasonable attorney’s fee.”34 In contrast,
“may” as found in § 28-636(2) is in a passive phrase utilized
for an abstract definition. “May” modifies the “name or num-
ber” “that may be used.” A name or number cannot act or
have “discretion.”
We read “may” in § 28-636(2) as “being capable of.” One
dictionary definition describes “may” as “have the ability
. . . to.”35 Thus, to be “personal identifying information,”
that information must have the ability to identify a “specific
person.” We believe that to be the most sensible reading of
the statute.
In sum, the State and the dissent assert that the relevant lan-
guage pertaining to felony impersonation by presenting “false
personal identifying information” to a court or law enforce-
ment officer is just a complicated way of describing giving a
false name or number—of a kind that could, but not necessar-
ily does, identify a specific real person.
But we do not think it makes sense to refer to a fictitious
“specific person” or a name, address, state identification card
number, et cetera, of a fictitious person. To the extent it could
be a sensible reading, we certainly do not think it the only
one. There is a difference between a fictitious name or num-
ber and a fictitious person36; thus, we cannot agree with the
State and the dissent’s view that one essentially collapses into
the other.
For the foregoing reasons, Covey is correct that the evi-
dence was insufficient to support the crime charged. There
was no evidence the name “Daniel Jones” belonged to a real
Daniel Jones, much less to any “specific” Daniel Jones. Such a
showing would not have been necessary had the State charged
Covey with the misdemeanor offense of false reporting under
34
Manning v. Dakota Cty. Sch. Dist., 279 Neb. 740, 746, 782 N.W.2d 1, 7
(2010).
35
See Webster’s Third New International Dictionary of the English Language,
Unabridged 1396 (1993).
36
Santiago v. E.W. Bliss Co., 2012 IL 111792, 973 N.E.2d 858, 362 Ill. Dec.
462 (2012) (Karmeier, J., specially concurring).
Nebraska Advance Sheets
STATE v. COVEY 271
Cite as 290 Neb. 257
§ 28-907(1)(a). If the Legislature wishes to criminalize as a
felony giving a police officer a false name, address, date of
birth, et cetera—whether or not that name or number is capable
of identifying any specific individual in the real world—then
it may amend § 28-636(2) to clearly express that intent. Until
then, we must read § 28-636(2) as limiting “personal identify-
ing information” to those names or numbers capable of identi-
fying specific and real human beings.
CONCLUSION
We reverse, and remand the cause with directions to vacate
Covey’s conviction. We need not address Covey’s remaining
assignments of error.
R eversed and remanded with
directions to vacate.
Cassel, J., dissenting.
The majority acknowledges that a clear and unambiguous
statute requires no interpretation,1 but it undertakes a tortured
analysis to discover ambiguity. Here, the meaning of the stat-
ute2 is clear.
The elements of the crime do not require identification of a
real person. A person commits the crime of criminal imperson-
ation if he or she “[k]nowingly provides false personal iden-
tifying information . . . to . . . a law enforcement officer[.]”3
Thus, other than date of commission and venue, there are
only two elements: (1) that the accused provided false per-
sonal identifying information to a law enforcement officer
and (2) that he or she did so knowingly. There is no require-
ment that the false personal identifying information relate to a
real person.
Likewise, the definition of “personal identifying informa-
tion” contains no such requirement. “Personal identifying infor-
mation” is defined as “any name or number that may be used,
alone or in conjunction with any other information, to identify
1
See State v. Suhr, 207 Neb. 553, 300 N.W.2d 25 (1980).
2
Neb. Rev. Stat. § 28-638(1)(c) (Cum. Supp. 2014).
3
Id.
Nebraska Advance Sheets
272 290 NEBRASKA REPORTS
a specific person.”4 The majority defines “person” as “a human
being regarded as an individual”5 and “specific” as “clearly
defined or identified.”6 And the majority acknowledges that
none of these terms are explicitly limited to real, as opposed
to imaginary, “human beings.” However, rather than stopping
there, it then reads the term “real” into the statute.
I would refrain from this unnecessary interpretation of an
unambiguous statute. Although the rule of lenity requires a
court to resolve ambiguities in a penal code in the defendant’s
favor, the touchstone of the rule of lenity is statutory ambigu-
ity, and where the legislative language is clear, a court may
not manufacture ambiguity in order to defeat that intent.7 The
statute provides a clear definition: Personal identifying infor-
mation is a name or number that may be used, alone or in
conjunction with additional information, to identify a definite
or identifiable individual.8 And when the word “may” is used
in a statute, permissive or discretionary action is presumed.9
Here, the word “may” means the personal identifying informa-
tion provided is capable of identifying a definite or identifiable
individual, not that the information provided must identify a
definite or identifiable individual.
And Covey knowingly gave such false information to law
enforcement. He identified himself as “Daniel Jones,” a name
that may be used to identify a particular individual, which he
knew to be false. There was no proof that Daniel Jones was a
real person. But the ability of a name to identify a definite or
particular individual is not premised upon the existence of an
actual person with that name.
The majority conflates the name of the crime with the
crime’s statutory elements. “Criminal impersonation” is merely
4
Neb. Rev. Stat. § 28-636(2) (Cum. Supp. 2014).
5
Concise Oxford American Dictionary 660 (2006).
6
Id. at 869.
 7
State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
8
See § 28-636(2).
9
JCB Enters. v. Nebraska Liq. Cont. Comm., 275 Neb. 797, 749 N.W.2d
873 (2008); In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638
(2007).
Nebraska Advance Sheets
FIRST TENNESSEE BANK NAT. ASSN. v. NEWHAM 273
Cite as 290 Neb. 273
the name of the offense, as designated by the Legislature.10 The
name of the crime does not change or affect its elements. And
those elements control our review. When reviewing the suf-
ficiency of the evidence to support a conviction, the relevant
question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.11 Here, both elements of
the crime were clearly established. And that should be the end
of our inquiry.
I would affirm Covey’s conviction. Therefore, I respect-
fully dissent.
Heavican, C.J., and Stephan, J., join in this dissent.
10
See § 28-638(1)(c).
11
State v. Nave, 284 Neb. 477, 821 N.W.2d 723 (2012).
First Tennessee Bank National Association,
successor by merger to First Horizon
Home Loan Corporation, appellant,
v. Jason Newham, appellee.
___ N.W.2d ___
Filed February 27, 2015. No. S-14-326.
1. Summary Judgment. Summary judgment is proper when the pleadings and evi-
dence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. Summary Judgment: Evidence: Proof. After the movant for summary judg-
ment makes a prima facie case by producing enough evidence to demonstrate
that the movant is entitled to judgment if the evidence was uncontroverted at
trial, the burden to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law shifts to the party opposing
the motion.