After Vincent John Zahorik was convicted of “making a false report to a police officer or law enforcement agency,” he appealed. Zahorik
v State, 2015 WL 5042105 (Fourteenth Court of Appeals of Texas 2015). As the opinion notes, he “challeng[ed] the
legal sufficiency of the evidence to support his conviction.” Zahorik
v. State, supra.
As courts usually do, the Court of Appeals began its opinion by explaining that Zahorik
testified at trial. According to [his]
testimony, on December 16, 2011, he received a notice from Equifax informing
him that his credit report was checked for employment purposes by a department
of the State of Tennessee. [Zahorik] had not applied for employment
in Tennessee, and he became concerned because he had filed complaints against
some officers in that state in connection with a prior arrest that led to a
criminal prosecution of [Zahorik] in Tennessee for a traffic offense. [Zahorik]
contacted Equifax and was told he needed to file a report with the Federal Trade Commission (FTC). The FTC told [him] that in order to conduct an investigation,
he needed to provide a police report establishing that someone had unlawfully
accessed his credit report without his permission. [Zahorik] subsequently
contacted the Tennessee Highway Patrol and the Galveston Police Department. [His]
report to the Galveston Police Department led to his conviction for making a
false report, but his contacts with the Tennessee Highway Patrol are important
in analyzing the sufficiency of the evidence to support that conviction.
[Zahorik] sent a letter to Captain
Victor Donoho of the Tennessee Highway Patrol on December 27, 2011. The letter
informed Donoho of the Equifax notice and that [Zahorik] had filed a complaint
with the FTC regarding the improper credit check. [Zahorik]'s letter further
states: `The FTC has also instructed me to file this complaint with your office
as well as the Attorney General's office for Identity Theft/Fraud as well as
violating my right to privacy.’
[Zahorik] spoke with Donoho on December
29 and followed up with another letter that same day. In the December 29
letter, [Zahorik] writes that he feels `somewhat better knowing that my credit
report was accessed by your investigator, per the [prosecuting attorney's]
request, as opposed to thinking a rogue agent was accessing this information
for other more severe retaliatory efforts.’ The letter indicates that [Zahorik]
expected more information to be forthcoming:
`After your investigator returns from
vacation, and you are in a better position to understand all the circumstances
surrounding this special request, please provide me with this information. It
just seems to me, all this confusion could have been alleviated, had the usual
protocol been followed in obtaining such information through the courts as
opposed to requesting this information under the guise of “employment purposes”
as stated in the correspondence from Equifax. The timing of this breach of
privacy as well as the illegal and/or unorthodox means of procurement is what I
find the most disturbing. Please feel free to give me a call anytime to discuss
this matter. . . .’
Zahorik v. State,
supra.
The opinion then explains that Zahorik
later contacted the Galveston Police
Department. He spoke with an operator and told her he needed to report a
possible identity theft or fraud. On January 5, 2012, Officer Brandon Kiamar
came to [Zahorik]'s residence. According to [Zahorik], he provided Kiamar with
the Equifax notice and the December 27 and December 29 letters addressed to
Donoho. [Zahorik] testified that he told Kiamar he was concerned about
retaliation, and he needed a police report so that the FTC and Equifax would
conduct their investigations. [Zahorik] stated that he informed Kiamar that it
was possible someone with the Tennessee Department of Safety or the Tennessee
Highway Patrol was involved in checking his credit report. [Zahorik] said he
also told Kiamar that he knew which agency obtained his credit report but did
not know the identity of the individual who obtained it.
After meeting with Kiamar, [Zahorik]
wrote another letter to Captain Donoho. In the letter, dated January 5, 2012, [Zahorik]
informed Donoho that he filed an `Identity Theft/Fraud complaint’ with his
local police department due to the recommendation of the FTC. The letter
concludes:
Until I hear differently from you, and
you have completed your investigation into the matter, I will continue with the
fear and belief this breach of privacy was done for some type of retaliatory or
malicious efforts. Please let me know if the appropriate Request for Record was
completed prior to initiating this invasive action. After you have had time to
meet with your investigator, and have a better understanding of what was
involved, please give me a call. . . .
[At his trial, Zahorik] testified that
he sent the letter the same day of Kiamar's visit.
Zahorik v. State,
supra.
The Court of Appeals went on to summarize the other
testimony presented at trial:
Captain Donoho and Officer Kiamar both
testified. . . .Captain Donoho testified that he first learned [Zahorik]'s
credit report was improperly obtained when he received the December 27 letter
via fax. Donoho stated that as a result of [Zahorik]'s letter, he contacted the
lead investigator in [Zahorik]'s criminal case and was informed [Zahorik]'s
credit was checked at the request of the prosecuting attorney. The lead
investigator did not know why the credit check was run for employment purposes
rather than criminal purposes.
Donoho stated that he relayed this
information to [Zahorik] during the telephone call on December 29. Donoho
advised [Zahorik] that the Department of Safety checked his credit, not a
`rogue trooper’ or `anyone other than a criminal investigator pursuant to his
pending criminal charges.’ Donoho claimed that he `thoroughly explained on the
29th to the defendant that a member of the Department of Safety’ checked his
credit history `as part of the criminal investigation.’ Donoho admitted he did
not know the identity of the individual that improperly obtained the credit
report during his initial conversation with [Zahorik], and that when [Zahorik]
filed the identity theft report, [Zahorik] likewise did not know the identity
of the person responsible. Donoho also admitted that [Zahorik] kept requesting
information after they spoke, and that he told [Zahorik] months later that
disciplinary action had been taken against those who obtained the credit
report.
Zahorik v. State,
supra. The court goes on to outline the testimony given by Officer
Kiamar, who testified that he visited Zahorik’s residence on January 5, 2012,
and
Kiamar said [Zahorik] sought to report
the crime of identity theft and provided him with three letters: (1) the notice
from Equifax; (2) a letter [Zahorik] sent to Equifax stating that he never
applied for employment in Tennessee and requesting more information; and (3)
the December 27 letter in which [Zahorik] informed Captain Donoho that his
credit had been checked for employment purposes by someone from the Tennessee
Highway Patrol. Kiamar denied receiving the December 29 letter, in which [Zahorik]
acknowledges speaking with Donoho and being told that his credit report was
accessed by an investigator at the request of the prosecuting attorney.
During the State's direct examination,
Kiamar stated that [Zahorik] did not inform him that the Tennessee Department
of Safety or the Tennessee Attorney General checked his credit. Kiamar asserted
that this information would have been important to his investigation, as he
would not have filed a report. According to Kiamar, this would not have been a
case of identity theft.
Zahorik v. State,
supra. The court’s opinion then explains that on cross-examination,
however, Kiamar testified that [Zahorik]
did make him aware of his suspicion that someone with the Tennessee Highway
Patrol or Tennessee Department of Safety had been involved in improperly
obtaining his credit report. Kiamar also admitted that the December 27 letter
contained information demonstrating that [Zahorik] knew that someone from the
Tennessee Highway Patrol accessed his credit report.
Kiamar testified that Galveston Police
Department policy instructs officers to direct identity theft victims to
contact the FTC, and that [Zahorik] indicated he had already spoken with the
FTC. Kiamar conceded that officers do not expect people who call them for
assistance to have studied the law, and that ordinarily if an individual
believes the law has been violated and files a report, officers do not file a
false police report claim against them if it turns out that belief is mistaken.
In addition, Kiamar testified that police officers do not typically hold it
against a person because they used the wrong term to describe a crime.
Zahorik v. State,
supra.
The Court of Appeals went on to point out that during the
testimony of
[both] Captain Donoho and Officer
Kiamar, [Zahorik]'s trial counsel attempted to introduce the Fair Credit Reporting Act into evidence to show that the Tennessee investigator violated
the Act by obtaining [Zahorik]'s credit report under false pretenses. The State
objected on relevance grounds in both instances, and the trial court sustained
both objections. [Zahorik]'s counsel also requested that the trial court
include a portion of the Act in the jury charge, but the court denied the
request. The trial court did take judicial notice of the Act during the charge
conference.
Zahorik v. State,
supra.
Finally, in “early February 2012”, Zahorik spoke to
Sergeant Jeremy Kylen of the Galveston
Police Department. According to [Zahorik], Kylen told him a warrant would be
issued for his arrest for making a false police report. Sergeant Kylen
testified that he was assigned to [Zahorik’s] identity theft case. He contacted
Donoho and learned [Zahorik’s] credit history was checked as a result of a
criminal investigation. Donoho sent Kylen an email containing a scanned copy of
the December 29 letter from [Zahorik].
After receipt of the email, Kylen
terminated his investigation into [Zahorik's] report, concluding there was no
identity theft. Instead he sought charges against [Zahorik] for making a false
report to a police officer. [He] was charged, tried, and convicted. This appeal
followed.
Zahorik v. State,
supra.
On appeal, Zahorik argued the evidence presented at trial
was not “legally sufficient” to “sustain his conviction.” Zahorik
v. State, supra. The Court of Appeals began its analysis of his
argument by explaining that it reviews
evidentiary sufficiency challenges
under the standard set forth in Jackson v. Virginia, 443 U.S.307 (1979). See Brooks v. State, 323 S.W.3d 893 (Texas Court of Criminal Appeals 2010). The reviewing court must consider the evidence in
the light most favorable to the verdict and determine whether a rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, supra; Anderson v. State, 416 S.W.3d 884 (Texas Court of Criminal Appeals 2013).
The jury is the sole judge of the
credibility of witnesses and the weight to afford their testimony. Montgomery
v. State, 369 S.W.3d 188 (Texas Court of Criminal Appeals 2012). The
jury may reasonably infer facts from the evidence presented, credit the
witnesses it chooses, disbelieve any or all of the evidence or testimony
proffered, and weigh the evidence as it sees fit. See Canfield v.
State, 429 S.W.3d 54 (Texas Court of Appeals – First District 2014).
When the record supports conflicting inferences, the reviewing court presumes
the trier of fact resolved the conflicts in favor of the State and defers to
that determination. Clayton v. State, 235 S.W.3d 772 (Texas
Court of Criminal Appeals 2007).
Sufficiency of the evidence should be
measured not by the instructions given to the jury, but by the elements of the
offense as defined by the hypothetically correct jury charge for the
case. Malik v. State, 953 S.W.2d 234 (Texas Court of Criminal
Appeals 1997). Such a charge would be one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State's
burden of proof or unnecessarily restrict the State's theories of liability,
and adequately describes the particular offense for which the defendant was
tried.
Zahorik v. State,
supra.
The Court of Appeals then outlined the applicable law,
noting that under
section 37.08 of the Texas Penal Code,
a person commits the offense of False Report to a Peace Officer, Federal
Special Investigator, or Law Enforcement Employee if, with intent to deceive,
he knowingly makes a false statement that is material to a criminal
investigation and makes the statement to any employee of a law enforcement
agency that is authorized by the agency to conduct the investigation and that
the actor knows is conducting the investigation. Texas Penal Code § 37.08(a)(2).
In Wood v. State, 577
S.W.2d 477 (1978), the Court of Criminal Appeals held that when a person is
reporting police or other official misconduct, the State must additionally
prove that the defendant's representations were made in bad faith and for
reasons other than to obtain action on a valid grievance. . . . The court
concluded that these additional proof requirements were necessary to safeguard
the defendant's constitutional right to petition the government for redress of
grievances. Wood v. State, supra
(citing Texas Constitution article I, § 27). [Zahorik] argues—and the
State concedes—that the Wood elements should be part of the
hypothetically correct jury charge used to measure the sufficiency of the
evidence in this case because [Zahorik’s] report concerned possible misconduct
by law enforcement officers in Tennessee. We agree. . . .
Zahorik v. State,
supra.
The Court of Appeals then analyzed whether, under the
principles outlined above, the evidence presented at Zahorik’s trial was
sufficient to justify the guilty verdict. Zahorik
v. State, supra. It began by explaining that at the trial, the
prosecution (the “State”) had
the burden to produce evidence from
which a rational juror could conclude beyond a reasonable doubt that [Zahorik]'s
representations were made in bad faith and for reasons other than to obtain
action on a valid grievance. It failed to do so. [Zahorik] offered
evidence that his representations to Officer Kiamar were made in good faith to
obtain action on the grievance that his credit was run improperly. According to
[Zahorik], the FTC told him that for it to conduct an investigation, [Zahorik]
needed to provide a police report establishing that someone had unlawfully
accessed his credit report without his permission. [Zahorik] spoke with Officer
Kiamar on January 5 to obtain that report.
Even crediting Officer Kiamar's
testimony that [Zahorik] did not provide a copy of the December 29 letter,
Kiamar acknowledged that [Zahorik] gave him (1) Equifax's notice to [Zahorik];
(2) [Zahorik]'s letter to Equifax stating that he never applied for employment
in Tennessee and requesting more information; and (3) [Zahorik]'s December 27
letter to Captain Donoho in Tennessee. The December 27 letter states:
`I recently received the following
notice from Equifax. As you can see, it appears someone from the T[ennessee]
Highway Patrol has accessed my credit report, Dec. 16, 2011, stating that I was
applying for employment with your agency. I've called Equifax and they will be
providing me, via mail, with a detailed report showing who specifically
requested this information.’
All parties agree that [Zahorik] never
applied for employment in Tennessee. In the December 27 letter, [Zahorik] goes
on to say that `I've filed a complaint with the FTC who is looking into the
matter. . . .The FTC has also instructed me to file this complaint with your
office as well as the Attorney General's office for Identity Theft/Fraud as
well as violating my right to privacy.’
Zahorik v. State,
supra.
The court went on to explain that on March 12, 2012, Captain
Donoho sent Zahorik
a letter stating the result of the
investigation concerning his credit report. The letter states that [Zahorik]'s
complaint was `sustained’ and that appropriate disciplinary action was taken
against the officers involved. Donoho confirmed at trial that [Zahorik]'s `credit
history was not r[u]n properly’ and the officer who requested it had
`circumvented the rules.’
The trial record thus shows
uncontroverted evidence that [Zahorik]'s credit report was improperly obtained
by employees of the Tennessee Department of Safety who were later disciplined
for their actions. No witness testified otherwise. The State failed to produce
any evidence that [Zahorik]'s report was nevertheless invalid. We therefore
conclude the State failed to meet its burden to prove that [Zahorik]'s
representations were made in bad faith and for reasons other than to obtain
action on a valid grievance.
This failure is not surprising given
that, under federal law, the State of Tennessee did not have the authority to
obtain [Zahorik]'s credit report. Nothing in the Fair Credit Reporting Act, of
which the trial court took judicial notice, permitted the Tennessee prosecutors
to access [Zahorik]'s credit report. In particular, 15 U.S. Code §1681b(a) contains an exclusive list of the circumstances under which a consumer
reporting agency may furnish a report. The only portion of the section
potentially applicable on these facts provides that a consumer reporting agency
may furnish a report in `response to the order of a court having
jurisdiction to issue such an order, or a subpoena issued in connection with
proceedings before a Federal grand jury.” 15 U.S. Code § 1681b(a)(1). . .
. No court order or subpoena authorizing Tennessee law enforcement officials to
obtain [Zahorik]'s report was presented at trial, and none appears in our
record.
Zahorik v. State,
supra.
The court then explained that the State, i.e., the
prosecution, argued that when
[Zahorik] made his report to Officer
Kiamar on January 5, he knew his credit had been checked by someone in the
Tennessee Department of Safety due to a request from the attorney prosecuting
his criminal case. The State asserts the December 29 letter establishes that [Zahorik]
knew who ran his credit a few days before he reported identity theft or fraud.
The State further directs us to Kiamar's testimony (which [Zahorik] disputed)
that [Zahorik] did not provide him with the December 29 letter when they met on
January 5 and that had this letter been provided, Kiamar would not have filed a
report of identity theft.
Yet nothing in the December 29 letter
shows [Zahorik]'s grievance was invalid. The letter merely provides more
context for [his] complaint. It contains additional evidence about who
requested the credit report and why, but it does not show that [Zahorik]'s
credit information was obtained properly. Although the letter shows [Zahorik]
knew his credit report was obtained by someone in a government department in
Tennessee, he also knew his credit report had been obtained for employment
purposes and that he had not applied for employment in Tennessee. And as
indicated above, Captain Donoho's investigation concluded—with the benefit of
the information in the December 29 letter—that [Zahorik]'s grievance should be
sustained. Any failure by [Zahorik] to provide the December 29 letter to
Officer Kiamar therefore does not demonstrate that [Zahorik] acted in bad faith
or that his grievance was invalid.
Zahorik v. State,
supra. And, finally, the Court of Appeals pointed out that it was
undisputed that [Zahorik] did not
know the identity of the person who had improperly checked his credit report at
the time he filed his report with Kiamar. [Zahorik] testified—and the December
29 letter reiterated—that he sought to file a report with the police because he
was instructed to do so by the FTC. The State needed to prove beyond a
reasonable doubt that [Zahorik] nevertheless filed a report in bad faith and
for reasons other than to obtain action on a valid grievance, but it did not
present any evidence on this point. That [Zahorik] knew the department for
which the person who checked his credit worked is not evidence that [Zahorik]
filed a report in bad faith and for reasons other than to obtain action on a
valid grievance in light of the unchallenged evidence that his credit report
was improperly obtained.
We also note that Kiamar testified that
law enforcement officers normally do not prosecute individuals for filing a
false report if they are mistaken about whether a crime has been committed or
if they use incorrect terminology to describe a crime. If [Zahorik] used an
improper term to describe the wrongdoing of the Tennessee personnel who
improperly obtained his credit report, that is not evidence that [he] made his
representations in bad faith or for reasons other than to obtain action on a
valid grievance. To protect the right to petition for redress of grievances,
courts should not apply a standard that would subject individuals to
prosecution if they fail to correctly identify an offense, if any, during their
initial conversation with law enforcement officers.
The State also argues that the jury
could have concluded [Zahorik] made his police report not to obtain action on a
valid grievance, but solely to further previous complaints he had filed against
the Tennessee troopers who arrested him following the traffic stop nine months
earlier. . . . It is undisputed, however, that [Zahorik]'s credit was checked
improperly and that Captain Donoho's investigation sustained [Zahorik]'s
complaint regarding the check. Furthermore, there is no evidence that the
troopers who arrested [Zahorik] were involved in improperly checking his
credit, and thus no evidence that [Zahorik]'s report of the check would further
unrelated complaints against those troopers or otherwise provide [Zahorik] with
leverage in his Tennessee criminal case. We therefore conclude that the State
failed to offer evidence that [Zahorik]'s grievance was not a reason for his
report to Officer Kiamar.
Zahorik v. State,
supra.
The court therefore held that
because the State failed to introduce
any evidence—let alone sufficient evidence from which a rational juror could
conclude beyond a reasonable doubt—that [Zahorik] made his report in bad faith
and for reasons other than to obtain action on a valid grievance, we conclude
the evidence is legally insufficient to support his conviction.
Zahorik v. State,
supra. Given this holding, the court “reverse[d] the judgment of the
trial court and render[ed] a judgment of acquittal.” Zahorik v. State, supra.
No comments:
Post a Comment