Brandon Lee Kendall v. State of Indiana
Date Filed2023-12-29
Docket23A-CR-01473
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
FILED
Dec 29 2023, 9:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Janet Lynn Thompson Theodore E. Rokita
Hoover Hull Turner LLP Attorney General of Indiana
Indianapolis, Indiana Catherine E. Brizzi
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon Lee Kendall, December 29, 2023
Appellant-Defendant, Court of Appeals Case No.
23A-CR-1473
v. Appeal from the Greene Superior
Court
State of Indiana, The Honorable Dena A. Martin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28D01-2208-F6-150
Opinion by Judge Brown
Judges Tavitas and Foley concur.
Brown, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 1 of 20
[1] Brandon Lee Kendall appeals his conviction for identity deception as a level 6
felony. He raises three issues which we revise and restate as:
I. Whether the trial court abused its discretion by admitting an
unredacted arrest warrant;
II. Whether the evidence was sufficient to support his conviction; and
III. Whether the identity deception statute violated the Proportionality
Clause of Article 1, Section 16 of the Indiana Constitution.
We affirm.
Facts and Procedural History
[2] On July 27, 2022, Linton City Patrolman Davis Aerne received a dispatch to
investigate a call. After arriving in the area, a bystander flagged down
Patrolman Aerne and directed him across the highway. Patrolman Aerne
ādrove up thereā and located the suspect, matching the description he had been
given, walking on the side of the road. Transcript Volume II at 182.
[3] Patrolman Aerne approached the suspect and informed him that āsomeone
calledā him in and reported he was āstealing a bunch of stuff.ā Stateās Exhibit 1
at 0:30-0:36. Kendall stated that the item was at his house, he would return it,
and it belonged to his friend who died. Kendall told Patrolman Aerne that his
name was Tyler Cliver and his date of birth was August 3, 1988. He also
provided an address, said that was his address, and began walking away from
the scene.
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 2 of 20
[4] Patrolman Aerne ran the name Tyler Cliver and discovered that the date of
birth did not match. He then ran the date of birth Kendall had given him,
which populated some results, looked at the photograph attached to the name
Brandon Kendall, and determined the suspect was Kendall. Patrolman Aerne
ran Kendall through the Indiana BMV and determined that he had an arrest
warrant for escape as a level 5 felony.
[5] On August 4, 2022, the State charged Kendall with identity deception as a level
6 felony. Specifically, the State alleged that Kendall, āwith the intent to defraud
or harm another person, did knowingly or intentionally use the identifying
information to profess to be another person, to-wit: Tyler Cliver, contrary to the
form of the statutes in such cases made and provided by I.C. 35-43-5-3.5(a) . . .
.ā Appellantās Appendix Volume II at 40. The State also alleged that Kendall
was an habitual offender.
[6] On March 11, 2023, Kendall filed a motion to dismiss and argued that, āthe
facts in this case . . . do not constitute the offense of identity deceptionā and the
identity deception statute as being applied to him violates the Proportionality
Clause. Id. at 46. On March 15, 2023, the court held a hearing and denied the
motion on March 20, 2023.
[7] On March 26, 2023, Kendall filed a motion in limine to exclude any testimony
or evidence related to the body cam footage, his past arrests and convictions,
pending and unrelated criminal charges, and arrest warrants. On April 3, 2023,
the court held a hearing. After argument, the court stated:
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 3 of 20
As far as the 404(B) arguments, the courtās going to allow the
warrants to come in, but I am going [to] ask that those be
redacted so it doesnāt show what the offense is that the, the
warrants are for. So, redact those, show that, you can show that
theyāre felony warrants, but not show the specific charge. Iām
going to show that the, the body cam will be allowed in and Iām
just going to ask, instruct the State not to embellish the . . .
allegations that are contained within the body cam and . . . what
they were actually out there for. So, try not to use the word
burglary or donāt use the word burglary.
Transcript Volume II at 62. Later the court stated: āTake out the escape.ā Id.
at 67.
[8] On April 4, 2023, the court held a jury trial. Kendallās counsel renewed the
motion to dismiss, which the court denied. During Patrolman Aerneās
testimony, the prosecutor asked him to describe the dispatch and his resulting
actions. Kendallās counsel objected and the court stated: āIf youāre offering it
for the course of conduct by the officer, the court will allow it.ā Id. at 181.
Patrolman Aerne stated: āI was called to an area in reference a [sic] male in
subject in Abelās backyards.ā Id.
[9] Kendallās counsel objected to the admission of a certified copy of the arrest
warrant for escape and argued that the warrant should not ācome in at allā and
that, if the court were to allow discussion about the warrant, āit should be
limited to that just [sic] and advisement that there was a[n] arrest warrant
without physically putting in the document.ā Id. at 189. She also argued that,
if the document were admitted, then āat least the nature of the charge should be
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 4 of 20
stricken . . . and redacted . . . .ā Id. The prosecutor argued in part that Kendall
knew there was a warrant and āthat was his motive.ā Id. at 190. The court
stated that ābecause this is a specific intent statute . . . I am showing that . . . the
State does have . . . that burden on that element.ā Id. at 191. It also stated:
I also had considered if you redact, because I had originally
thought we redact the name of that, but again the Stateās argued
that the course of conduct based upon what it is, but I think that
that adds to so much speculation of the jury. Because, I mean, . .
. youāve got a six-letter word there and if you mark it out it
causes the jury to speculate, I donāt that [sic] jurors know the
difference between a level 1 and a level 5. That could say
murder. And, and youāve redacted it. So, I think that itās, I think
is more appropriate to have it in there so that, that it is not
confusing to the jury and it doesnāt lend to any additional
speculation that, that we donāt want.
Id. at 192.
[10] The court admitted the arrest warrant which stated in part: āYou are hereby
commanded to arrest Brandon Kendall . . . to answer the State of Indiana on a
charge of Escape, a Level 5 Felony . . . .ā Exhibits Volume IV at 27. The court
also admitted the body camera footage with the interaction between Patrolman
Aerne and Kendall.
[11] After the State rested, Kendallās counsel moved for a directed verdict. The
court denied the motion. The jury found Kendall guilty of identity deception as
a level 6 felony, and Kendall admitted to being an habitual offender. The court
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 5 of 20
sentenced Kendall to two years and enhanced the sentence by four years for his
status as an habitual offender.
Discussion
I.
[12] The first issue is whether the trial court abused its discretion by admitting the
arrest warrant. Kendall argues the prejudicial effect of allowing the jury to
know that he had a warrant for escape substantially outweighed any probative
value and should not have been allowed. He contends that the use of the
escape charge on the warrant to link his alleged previous escape to his conduct
in this case was prohibited by Ind. Evidence Rule 404(b).
[13] Ind. Evidence Rule 404(b)(1) provides that ā[e]vidence of a crime, wrong, or
other act is not admissible to prove a personās character in order to show that on
a particular occasion the person acted in accordance with the character.ā Rule
404(b)(2) provides: āThis evidence may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.ā
[14] The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the
court must determine that the evidence of other crimes, wrongs, or acts is
relevant to a matter at issue other than the defendantās propensity to commit the
charged act; and (2) the court must balance the probative value of the evidence
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 6 of 20
against its prejudicial effect pursuant to Ind. Evidence Rule 403. 1 Boone v. State,
728 N.E.2d 135, 137-138 (Ind. 2000), rehāg denied. The purpose of the rule is to
prevent the jury from making the āforbidden inferenceā that a defendant is
guilty of the charged offense on the basis of other misconduct. Hicks v. State,
690 N.E.2d 215, 218-219 (Ind. 1997). The trial court has wide latitude in
weighing the probative value of the evidence against the possible prejudice of its
admission. Crain v. State, 736 N.E.2d 1223, 1235 (Ind. 2000). If evidence has
some purpose besides behavior in conformity with a character trait and the
balancing test is favorable, the trial court can elect to admit the evidence.
Boone, 728 N.E.2d at 138. For instance, evidence which shows the defendantās
motive or plan may be admissible. See Ind. Evidence Rule 404(b)(2).
[15] In addition, Ind. Appellate Rule 66(A) provides:
No error or defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is ground for
granting relief or reversal on appeal where its probable impact, in
light of all the evidence in the case, is sufficiently minor so as not
to affect the substantial rights of the parties.
[16] The Indiana Supreme Court recently held:
When an appellate court must determine whether a non-
constitutional error is harmless, Rule 66(A)ās āprobable impact
testā controls. Under this test, the party seeking relief bears the
1
Ind. Evidence Rule 403 provides: āThe court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, or needlessly presenting cumulative evidence.ā
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 7 of 20
burden of demonstrating how, in light of all the evidence in the
case, the errorās probable impact undermines confidence in the
outcome of the proceeding below. See Mason v. State, 689 N.E.2d
1233, 1236-1237 (Ind. 1997); [Edward W. Najam, Jr. & Jonathan
B. Warner, Indianaās Probable-Impact Test for Reversible Error, 55
Ind. L. Rev. 27,] 50-51 [(2022)]. Importantly, this is not a review
for the sufficiency of the remaining evidence; it is a review of
what was presented to the trier of fact compared to what should
have been presented. And when conducting that review, we
consider the likely impact of the improperly admitted or excluded
evidence on a reasonable, average jury in light of all the evidence
in the case. See Tunstall v. Manning, 124 N.E.3d 1193, 1200 (Ind.
2019). Ultimately, the errorās probable impact is sufficiently
minor whenāconsidering the entire recordāour confidence in
the outcome is not undermined.
Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), rehāg denied, cert. pending.
[17] The record reveals that the State introduced the arrest warrant to show
Kendallās motive. We cannot say that Stateās Exhibit 2 was not relevant or that
the probative value of the exhibit was substantially outweighed by the danger of
unfair prejudice. Further, the probable impact of any error in admitting the
arrest warrant, in light of all the evidence in the case, is sufficiently minor so as
not to affect Kendallās substantial rights. Reversal is not required on this basis.
II.
[18] The next issue is whether the evidence was sufficient to support Kendallās
conviction for identity deception as a level 6 felony. Kendall argues that the
statute requires that he profess to be another person and the State presented no
evidence that Tyler Cliver was an actual person. He asserts the State must
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 8 of 20
establish that he used the identifying information of āa real person, natural or
juridicalā and cites Brown v. State, 868 N.E.2d 464 (Ind. 2007), and Duncan v.
State, 23 N.E.3d 805 (Ind. Ct. App. 2014), trans. denied. Appellantās Brief at 9.
[19] In Brown v. State, Richard Carlos Brown, pretending to work for a radio station,
telephoned at least three adult men and falsely informed them of a radio contest
in which they could each win a new car or cash if they would drive from their
places of employment to a particular address (which happened to be Brownās
residence), enter and remove all of their clothes, and exchange them for a T-
shirt. 868 N.E.2d at 466. Each of the men appeared at Brownās home, and two
of the men satisfied the fictitious contest requirements but received no prize. Id.
Each man contacted the radio station and discovered that it had no such
employee and was not sponsoring any such contest. Id. Brown was convicted
on three counts of identity deception as class D felonies. Id.
[20] On appeal, Brown argued that the evidence was insufficient to establish the
elements of the identity deception charges because there was no evidence that
he used the identifying information of a particular individual. Id. at 469. Each
of the three counts of identity deception charged that Brown ādid knowingly
use the identifying information of another person, namely Radio Now (93.1),
without the other personās consent and with the intent to harm or defraud
another person, . . . and/or profess to be another person, that is: an agent of
Radio Now (93.1).ā Id.At that time,Ind. Code Ā§ 35-43-5-3
.5(a) provided:
[A] person who knowingly or intentionally . . . uses the
identifying information of another person:
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 9 of 20
(1) without the other personās consent; and
(2) with intent to:
(A) harm or defraud another person;
(B) . . .; or
(C) profess to be another person;
commits identity deception, a Class D felony.
Id.
[21] The Court held:
For the purposes of this provision, and as relevant to the charged
offense, the phrase āidentifying informationā is specifically
defined to mean āinformation that identifies an individual,
including an individualās . . . name, address, date of birth, place of
employment, employer identification number, motherās maiden
name, Social Security number, or any identification number
issued by a governmental entity . . .ā Ind. Code Ā§ 35-43-5-1(h)
(2004) (emphasis added) (current version at Ind. Code Ā§ 35-43-5-
1(i)). The word āindividualā is commonly understood to refer to
a single human being,[ 2] in contrast to āperson,ā which can mean
either an individual human being or a corporation or other legal
entity.[ 3]
2
The Court included a footnote here which stated:
See, e.g., American Heritage Dictionary 656 (2d ed. 1985) (defining the noun āindividualā
to mean: āA single human being considered separately from a group or from society.ā);
Random House College Dictionary 678 (Rev. ed. 1984) (defining the noun āindividualā to
mean: āa single human being, as distinguished from a group.ā)
Brown, 868 N.E.2d at 469 n.5.
3
The Court included a footnote here which stated:
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 10 of 20
In addressing a claim of insufficient evidence, an appellate court
considers only the probative evidence and reasonable inferences
supporting the judgment to assess whether a reasonable trier of
fact could have found the defendant guilty beyond a reasonable
doubt. Whedon v. State, 765 N.E.2d 1276, 1277 (Ind. 2002).
Applying this standard, the trial evidence establishes that the
defendant spoke to three people about the phony contest, each
time identifying himself as a representative of the radio station, a
corporation. And with at least one of the people, the defendant
claimed to be āScott Ross,ā a representative of the radio station.
But this was a fictitious name created by the defendant and did
not coincide with any real person.
When construing a penal statute, ambiguous language must be
construed strictly against the State and in favor of the accused.
Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005). Applying the
phrase āidentifying informationā as defined by the statute, the
charge against the defendant required the State to prove that the
defendant used an individualās name, address, date of birth, or
other identifiers, to commit the charged crime. While there was
evidence that the defendant used information identifying the
corporate radio station without its consent, there was no
evidence that he used the name, address, date of birth, or other
identifiers of any existing human being in perpetrating his hoax.
Because the evidence does not establish that the defendant
committed the offense by using information specifically
identifying another individual human being, the evidence is
See, e.g., American Heritage Dictionary 925 (2d ed. 1985) (in part defining the noun
āpersonā to mean: āA human being or organization with legal rights and duties.ā);
Random House College Dictionary 990 (Rev. ed. 1984) (in part defining the noun āpersonā
to mean: āa human being, a group of human beings, a corporation, an estate, or other legal
entity recognized by law as having rights and duties.ā)
Brown, 868 N.E.2d at 470 n.6.
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 11 of 20
insufficient to prove all of the elements of the charged crimes of
identity deception.
Id. at 469-470.
[22] In Duncan v. State, Christopher Duncan identified himself as George F. Walker
during a traffic stop. 23 N.E.2d at 808. He later identified himself as āGeorge
Walker, Jr.ā and gave a date of birth of April 6, 1967, during the book-in
procedure. Id. Duncan was convicted of identity deception as a class D felony.
Id. at 809.
[23] On appeal, Duncan argued that the State presented insufficient evidence to
support his conviction. Id. at 812. This Court observed:
In order to convict Duncan of identity deception as charged, the
State was required to prove that Duncan
knowingly or intentionally obtain[ed] . . . or use[d] the
identifying information of another person, including the
identifying information of a person who is deceased:
(1) without the other personās consent; and
(2) with intent to . . .
(C) profess to be another person[.]
Id. (quoting Ind. Code Ā§ 35-43-5-3.5). The Court observed that āIdentifying
informationā was defined in relevant part as āinformation that identifies a
person, including a personās . . . name, address, date of birth, place of
employment, employer identification number, motherās maiden name, Social
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 12 of 20
Security number, or any identification number issued by a governmental
entity[.]ā Id.(quotingInd. Code Ā§ 35-43-5-1
(i)). We discussed Brown and held:
Shortly after our Supreme Courtās decision in Brown v. State, the
General Assembly amended the definition of āidentifying
informationā to replace the word āindividualā with the word
āperson.ā I.C. Ā§ 35-43-5-1. It seems likely to us that the
legislature did so in response to Brown, and for the specific
purpose of bringing corporations and other legal entities within
the statuteās ambit. See Brown v. State, 868 N.E.2d at 469-70
(explaining that person may refer to āeither an individual human
being or a corporation or other legal entityā (footnote omitted)).
But we do not believe that this alters our Supreme Courtās
holding that in order to support an identity deception conviction,
the State must establish that the defendant used the identifying
information of a real person, whether natural or juridical.
Indeed, the plain language of the identity deception statute
requires the knowing or intentional use of the identifying
information āof another person.ā I.C. Ā§ 35-43-5-3.5. As our
Supreme Court explained in Brown, the identity deception statute
does not criminalize the use of a fictitious name.
The State does not dispute that there was no evidence presented
that George Frederick Walker was a real person. Instead, the
State argues that it was not necessary for the State to present such
evidence. Specifically, relying on subsection I.C. Ā§ 35-43-5-
3.5(d), which provides that āit is not a defense in a prosecution
under [the identity deception statute] that no person was harmed
or defraudedā, the State argues that the legislature did not intend
to limit convictions only to cases in which an individual was
actually harmed. We do not disagree with the Stateās assertion,
but it does not alter our conclusion. While the statute clearly
does not require actual harm to any person, it does require the
use of an actual personās identifying information. We also note
that this language was part of the statute at the time our Supreme
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 13 of 20
Court decided Brown, and the court apparently did not interpret it
in the manner urged by the State.
The State argues further that Duncanās conduct in giving a false
name should be criminalized because it āran the risk of impeding
the police investigation and the Stateās prosecutionā and the
āpractice of obstructing the course of justice is one which society
has an interest in stemming.ā Appelleeās Brief at 21. This may be
true, but it is not our prerogative as an appellate court to identify
and criminalize undesirable behavior; such policy decisions are
reserved for the legislative branch of our state government. This
court is bound by the language of the statute as written and our
Supreme Courtās precedent. Moreover, we note that the identity
deception statute is found in article 43 of Indianaās criminal code,
which is titled āOffenses Against Property.ā It is therefore
apparent to us that the identity deception statute is directed
toward potential fraud and property crimes and not false
reporting or obstruction of justice. Whether Duncanās conduct
might have been chargeable under another statute is not an issue
before us.
In this case, Duncan used the name George Frederick Walker,
George Walker, Jr., and/or George F. Walker, and gave a birth
date of April 6, 1967. The state presented no evidence to
establish that this information ācoincide[d] with any real
person.ā See Brown v. State, 868 N.E.2d at 470. In other words,
the State presented no evidence to support a conclusion that
Duncan knowingly or intentionally used the identifying
information of āanother person.ā I.C. Ā§ 35-43-5-3.5.
Accordingly, the State presented insufficient evidence to support
Duncanās identity deception conviction. We therefore reverse
that portion of the trial courtās judgment and remand with
instructions to vacate the identity deception conviction and the
sentence imposed thereon.
Id. at 813-814.
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 14 of 20
[24] The legislature amended Ind. Code Ā§ 35-43-5-3.5(a) effective July 1, 2021,
which now provides that āa person who, with intent to harm or defraud another
person, knowingly or intentionally obtains, possesses, transfers, or uses
identifying information to profess to be another person, commits identity deception,
a Level 6 felony.ā 4 (Emphasis added). The legislature amended Ind. Code Ā§
35-43-5-1(i) effective July 1, 2021, such that the statute now provides in part:
āIdentifying informationā means information, genuine or
fabricated, that identifies or purports to identify a person, including:
(1) a name, address, date of birth, place of employment,
employer identification number, motherās maiden name,
Social Security number, or any identification number
issued by a governmental entity;
(2) unique biometric data, including a fingerprint, voice
print, or retina or iris image . . . .
(Emphases added). Ind. Code Ā§ 35-31.5-2-234(a) provides that āāpersonā means
a human being, corporation, limited liability company, partnership,
unincorporated association, or governmental entity.ā Ind. Code Ā§ 35-31.5-2-
160 defines a āHuman beingā as āan individual who has been born and is
alive.ā
[25] An examination of the words added by the legislature to Ind. Code Ā§ 35-43-5-
1(i) reveals that the word āgenuineā is generally defined as ā[a]ctually
4
Ind. Code Ā§ 35-43-5-3.5(d) provides: āIt is not a defense in a prosecution under subsection (a) or (b) that no
person was harmed or defrauded.ā
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 15 of 20
possessing the alleged or apparent attribute or character,ā and ā[n]ot spurious
or counterfeit; authentic.ā AMERICAN HERITAGE DICTIONARY 735 (4th ed.
2006). āGenuineā is also defined as āauthentic or real; having the quality of
what a given thing purports to be or to haveā and āfree of forgery or
counterfeiting.ā BLACKāS LAW DICTIONARY 801 (10th ed. 2014). The word
āfabricateā is generally defined as ā[t]o make; createā and ā[t]o concoct in order
to deceive: fabricated an excuse.ā AMERICAN HERITAGE DICTIONARY 632 (4th
ed. 2006). āFabricateā is also defined as ā[t]o invent, forge, or devise falselyā
and ā[t]o fabricate a story is to create a plausible version of events that is
advantageous to the person relating those events. The term is softer than lie.ā
BLACKāS LAW DICTIONARY 708 (10th ed. 2014). āFabricated evidenceā is
defined generally as ā[f]alse or deceitful evidence that is unlawfully created,
usu. after the relevant event, in an attempt to achieve or avoid liability or
conviction.ā Id. at 675. The word āpurportā is generally defined as ā[t]o have
or present the often false appearance of being or intending; profess.ā
AMERICAN HERITAGE DICTIONARY 1423 (4th ed. 2006). āPurportā is also
defined as ā[t]o profess or claim, esp. falsely; to seem to be.ā BLACKāS LAW
DICTIONARY 1431 (10th ed. 2014).
[26] We note that, prior to the amendment effective July 1, 2021, Ind. Code Ā§ 35-43-
5-1(i) provided in part:
āIdentifying informationā means information that identifies a
person, including a personās:
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 16 of 20
(1) name, address, date of birth, place of employment,
employer identification number, motherās maiden name,
Social Security number, or any identification number
issued by a governmental entity;
(2) unique biometric data, including the personās fingerprint,
voice print, or retina or iris image . . . .
(Emphasis added). We note that the italicized language above was deleted by
the July 1, 2021 amendment, see Pub. L. No. 174-2021 (eff. July 1, 2021), which indicates that the legislature intended to no longer require that the name be related to a real person. Based upon the amendment toInd. Code Ā§ 35-43-5
- 3.5(a), which criminalized the use of identifying information āto profess to be another personā and the amendment toInd. Code Ā§ 35-43-5-1
(i) defining
identifying information as āinformation, genuine or fabricated, that identifies or
purports to identify a person,ā we cannot say that the current version of the
statute requires that the identifying information must coincide with any real
person or an existing human being. Even assuming that the current version of
the statute requires that the identifying information coincide with a real person,
we note that, when asked what he discovered when he ran the name Tyler
Cliver, Patrolman Aerne answered: āThat the date of birth did not match.ā
Transcript Volume II at 202. The reasonable inference is that Patrolman Aerne
found a real person named Tyler Cliver. 5 Based upon the record, we conclude
5
We note that Kendallās argument is limited to whether the statute requires that he use the identifying
information of a real person and he does not further develop an argument that he did not intend to harm or
defraud another person.
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 17 of 20
the State presented evidence of a probative nature from which a reasonable trier
of fact could find Kendall guilty of identity deception as a level 6 felony.
III.
[27] The next issue is whether the identity deception statute violated the
Proportionality Clause of Article 1, Section 16 of the Indiana Constitution.
Kendall argues that the crime of identity deception under Ind. Code Ā§ 35-43-5-
3.5, as applied to him, violates the Proportionality Clause of Article 1, Section
16 of the Indiana Constitution. He asserts that he was convicted of identity
deception as a level 6 felony and that his conduct of giving a false name to a
police officer could also support a prosecution for false informing as a class B
misdemeanor pursuant to Ind. Code Ā§ 35-44.1-2-3(d)(1). He contends that there
are no additional facts present here that warrant prosecuting his conduct under
the identity deception statute versus the false informing statute.
[28] Article 1, Section 16 provides that ā[a]ll penalties shall be proportioned to the
nature of the offense.ā It is violated only when the criminal penalty is not
graduated and proportioned to the nature of the offense. Knapp v. State, 9
N.E.3d 1274, 1289(Ind. 2014), cert. denied,574 U.S. 1091
,135 S. Ct. 978
(2015). Though we ācannot set aside a legislatively sanctioned penalty merely
because it seems too severe,ā Article 1, Section 16 requires us to review whether
a sentence is not only within statutory parameters, but also constitutional as
applied to the particular defendant. Id. at 1290. āA sentence violates the
Proportionality Clause when āoffenses with identical elements [are] given
Court of Appeals of Indiana | Opinion 23A-CR-1473 | December 29, 2023 Page 18 of 20
different sentences.āā Johnson v. State, 103 N.E.3d 704, 707 (Ind. Ct. App. 2018)
(quoting Poling v. State, 853 N.E.2d 1270, 1276-1277 (Ind. Ct. App. 2006), rehāg
denied), trans. denied.
[29] Ind. Code Ā§ 35-44.1-2-3 governs the offense of false reporting or informing and
provided at the time of the offense:
(d) A person who:
(1) gives:
(A) a false report of the commission of a crime; or
(B) false information to a law enforcement officer
that relates to the commission of a crime;
knowing the report or information to be false;
*****
commits false informing, a Class B misdemeanor.
[30] Ind. Code Ā§ 35-43-5-3.5(a) provides that āa person who, with intent to harm or
defraud another person, knowingly or intentionally obtains, possesses, transfers, or
uses identifying information to profess to be another person, commits identity
deception, a Level 6 felony.ā (Emphases added). Thus, the statute governing
identity deception includes elements not contained in the statute governing false
informing. Accordingly, we conclude that the crime of false informing, which
requires no such intent or use of identifying information, is distinguishable from
the crime of identity deception. We do not find a violation of Article 1, Section
16.
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[31] For the foregoing reasons, we affirm the trial court.
[32] Affirmed.
Tavitas, J., and Foley, J., concur.
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