Criminal Impersonation (again)

This is another post about how criminal law deals, or should deal, with people who pretend to be someone else.

In several posts, I’ve argued that we need general criminal impersonation – or imposture – statutes because people can now assume another’s identity for purposes other than committing fraud or theft.

This post is about a case in which a juvenile was charged with criminal impersonation under a Nebraska statute.

The case is In re Interest of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (Supreme Court of Nebraska 2008). Here is how Tyler F. came to be charged with criminal impersonation:

Early in the fall of 2006, Kimberly and Tyler's family had a dispute for reasons that are not entirely clear from the record. In mid-October of that same year, Kimberly began receiving calls and visits to her home from men who were interested in having sexual relations with her. The men were responding to a message posted under Kimberly's name on `Craigslist,’ a Web site analogous to the classifieds section of a local newspaper. The Craigslist posting included statements that Kimberly was single and looking to have sexual intercourse with men, and also provided her home address and telephone number. The posting also included photographs of the exterior of Kimberly's home as well as graphic images of women posing nude and engaging in various sexual acts with men.

Kimberly contacted the Omaha Police Department. Officers Paul Milone and Eric Nordby investigated the incident. Based on information supplied by Craigslist and an Internet service provider, the officers determined that the Internet address of the computer used to generate the online posting belonged to Tyler's family's computer. Milone and Nordby then visited Tyler's parents at their home. Tyler's mother told officers that she did not really know how to use the computer. She also stated that Tyler, who was a few months `shy of’ his 15th birthday at the time, was the member of the household who used the computer most often. She then gave Milone and Nordby permission to speak with Tyler.

In re Interest of Tyler F., supra.

The officers went to Tyler’s high school, arranged to have him brought to an office and questioned him about what had happened to Kimberly. He “eventually confessed after officers explained that the Internet address of the computer used to generate the posting belonged to his family's computer.” In re Interest of Tyler F., supra.

Tyler was charged with criminal impersonation and with disturbing the peace. He was adjudicated delinquent on both counts and ordered to

(1) apologize to Kimberly and her family; (2) refrain from using the Internet, e-mail, or other electronic devices which could send or receive messages of the sort involved in this case; (3) avoid any and all contact with Kimberly or her family; (4) reside in his parents' home and obey all of their rules; (5) have perfect attendance at school and turn in all classwork on time; (6) not associate with anyone not approved of by his parents; and (7) immediately inform his attorney and the court of any changes in his contact information.

In re Interest of Tyler F., supra. Tyler appealed the adjudication to the Nebraska Supreme Court. On appeal, he argued that both the disturbing the peace and the criminal impersonation counts should have been dismissed because they were flawed in varying respects. In re Interest of Tyler F., supra.

This post is about criminal impersonation, but since I find Tyler F.’s argument as to why the disturbing the peace count wasn’t valid a creative one, I’m going to review it briefly.

Tyler argued that “[e]ven assuming he made the Internet postings, . . . this [count] must be dismissed because it was the anonymous male callers and visitors who actually disturbed Kimberly's peace, not Tyler himself.” In re Interest of Tyler F., supra. The Nebraska Supreme Court didn’t buy the argument:

Tyler does not really dispute that his Internet posting encouraged and enabled the anonymous males to contact Kimberly. And he fails to cite any supporting authority for the proposition that one who merely encourages and enables third parties to disturb the victim's peace cannot himself be found guilty of disturbing the victim's . . . . Indeed, our own precedent suggests the opposite is true.

In State v. Broadstone, this court. . . .noted that one is guilty of breaching the peace whether he actively engages in unlawful conduct himself or merely uses speech that might encourage others to break the law. Broadstone supports the conclusion that Tyler can be found guilty of disturbing Kimberly's peace . . .even though he did not harass her directly. . . . [I]t is sufficient that Tyler encouraged and enabled others to do so. Accordingly, Tyler's argument regarding count II is without merit.

In re Interest of Tyler F., supra.

Tyler’s argument regarding the criminal impersonation count was much weaker. He pointed out that the juvenile petition filed against him mis-cited the Nebraska criminal impersonation statute. The statute is contained in Nebraska Code § 28-608, but the petition citied it as Nebraska Code “§ 28-2608.” In re Interest of Tyler F., supra. As the Nebraska Supreme Court noted, mis-citing a statute in a charging document like an indictment or a juvenile petition can be grounds for reversal when the error misled the defendant so he didn’t realize what he was being charged with. That wasn’t true here.

Tyler ignores that the erroneous cite in the petition was accompanied by language identical in all relevant respects to the language found in § 26-608. As such, the accidental inclusion of a `2’ in the citation could not have misled Tyler as to the nature of the allegation against him. Therefore, Tyler did not suffer prejudice as a result of that clerical error. Again, error without prejudice provides no ground for relief on appeal.

In re Interest of Tyler F., supra. Tyler lost and presumably had to apologize to Kimberly and abide by all of the other requirements the juvenile court judge imposed on him.

That, though, is not what I find interesting about this case. Here’s the statute Tyler was convicted under:

A person commits the crime of criminal impersonation if he or she:

(a) Assumes a false identity and does an act in his or her assumed character with intent to gain a pecuniary benefit for himself, herself, or another or to deceive or harm another; (a) ;

(b) Pretends ot be a representative of some person or organization and does an act in his or her pretended capacity with the intent to gain a pecuniary benefit for himself, herself, or another and to deceive or harm another;

(c) Carries on any profession, business, or any other occupation without a license, certificate or other authorization required by law; or

(d) Without the authorization or permission or another and with the intent to deceive or harm another:

(i) Obtains or records personal identification documents or personal identifying information; and

(ii) Accesses or attempts to access the financial resources of another through the use of a personal identification document or personal identifying information for the purpose of obtaining credit, money, goods, services, or any other thing of value.

Nebraska Statutes § 28-608(1). I assume he was charged and convicted under § 28-608(1)(a), for assuming another’s identity and doing something to harm that person. Although this section says the identity is “false,” I’m assuming it really means that the identity is false as to the person who assumes it but is, in fact, the identity of a real person . . . since this is an essential element of criminal impersonation.

If that’s true, then Tyler was really unlucky. In 2009, the Nebraska legislature revised § 28-608 and eliminated the (a) option. Here’s what the revision did to the statute:

(1) A person commits the crime of criminal impersonation if he or she:
(a) Assumes a false identity and does an act in his or her assumed character with intent to gain a pecuniary benefit for himself, herself, or another or to deceive or harm another;
(b) (a) Pretends to be a representative of some person or organization and does an act in his or her pretended fictitious capacity with the intent to gain a pecuniary benefit for himself, herself, or another and to deceive or harm another;
(c) (b) Carries on any profession, business, or any other occupation without a license, certificate, or other authorization required by law; or
(d) Without the authorization or permission of another and with the intent to deceive or harm another:
(i) Obtains or records personal identification documents or personal identifying information; and
(ii) Accesses or attempts to access the financial resources of another through the use of a personal identification document or personal identifying information for the purpose of obtaining credit, money, goods, services, or any other thing of value.
(c) Knowingly provides false personal identifying information or a false personal identification 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.

Nebraska Legislature L.B. 155, 2009 Nebraska Laws L.B. 155. The Nebraska Governor signed this bill into law on May 26, 2009, so it’s presumably gone into effect.

It doesn't look to me like what Tyler F. did would violate the provisions of the revised statute. To commit the revised (a) crime Tyler F. would have had to pretend to be a representative or a person or organization and, in that pretended capacity, do some act with the intent of obtaining a pecuniary benefit for himself or someone else AND with the intent of deceiving or harming another. Under the old statute, deceiving or harming another was a separate alternative.

I don’t understand why they eliminated the (a) crime. I also don’t understand why they replaced “pretended” in the (b) crime with “fictitious”, unless they don’t mean this to be an identity theft statute. Since identity theft crimes involve stealing a real person’s identity, the use of fictitious would transform this into a fraud crime, instead of a criminal impersonation or identity theft crime. Maybe that’s the point. Maybe that’s why they eliminated the (a) option . . . ?