IN THE DISTRICT COURT IN AND FOR TULSA COUNTY

STATE OF OKLAHOMA
STATE OF OKLAHOMA,
Plaintiff,
vs.
DEFENDANT,
Defendant.

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CF-

MOTION TO DISMISS AND BRIEF IN SUPPORT THEREOF

COMES NOW the Defendant, through his undersigned attorney, and moves
to dismiss the charge of false personation in this case for the reason that the State
is unable to establish, as required by the plain language of 21 O.S.2001, 1531,
that another person has been impersonated. In support of this motion, Defendant
would offer the following authority:

ARGUMENT AND AUTHORITY

The relevant language of 21 O.S.2001, 1531 states:

Any person who falsely personates another, and in
such assumed character:
***
4. Does any act whereby any benefit might accrue
to the party personating, or to any other person; shall
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be guilty of a felony punishable by imprisonment in

the State Penitentiary not exceeding ten (10) years.
The plain language of the statute requires the defendant to assume the
character or identity of another. It does not merely require the State to prove that a
defendant assumed a false identity or used a fake name. The OUJI Criminal 2d 550 provides further support for this view:
FALSE PERSONATION ELEMENTS
No person may be convicted of the felony of false
personation unless the State has proved beyond a
reasonable doubt each element of the crime. These
elements are:
First, the defendant falsely assumed the identity of
another person;
Not the defendant identified himself using a false
name.
Second, the impersonation of that identity was
intentional;
Third, under that false identity the defendant
obtained/received any benefit;
Not using that false
obtained/received benefit.

name

the

defendant

Fourth, as a result of impersonating the other person.

Not as a result of using a false name.
Although 21 O.S.2001, 1531 has been a part of Oklahoma law since
statehood, the Oklahoma Court of Criminal Appeals had no reason to interpret the

language of the statute for over eighty years. Either no one was being prosecuted
for falsely impersonating another for nearly a century, or most accepted the fact
that the language of the statute was clear. In 1992, the Oklahoma Court of
Criminal Appeals addressed the language of the statute in Friday v. State, 1992
OK CR 39, 833 P.2d 1257. In that case, David Friday was arrested In Tulsa; he
gave the name Jerome Johnson to police but refused to give any additional
information, such as his social security number. Somehow the police figured out
that he was lying, but it was never established that Jerome Johnson was a real
person, dead or alive. Mr. Friday was on probation at the time of his arrest, and his
probation was revoked based on the offense of false personation. On appeal, Mr.
Friday contended that the State failed to prove that Appellant did any overt act in
the assumed name that would have subjected the person falsely accused to any of
the conditions set forth under Subdivision 4 or that Appellant did any overt act
where by any benefit accrued to him or any other person.
Finding the case to be one of first impression, the Court of Criminal
Appeals framed the issue as whether the mere giving of a false name constitutes
false personation. Finding that the gist of the offense is the actual harm to the
person impersonated and/or the benefit accruing to the impersonator by
impersonating the actual person, this Court concluded that, under the facts of
Friday, the State had failed to prove an essential element of the offense.
A mere four years later, the Court of Criminal Appeals took a second look
at the language of the false personation statute in Barkus v. State, 1996 OK CR 45,
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926 P.2d 312. In Friday, the court had decided that 21 O.S.2001, 1531 required
the State to prove that a defendant not only falsely impersonated another person,
but also performed an additional overt act whereby any benefit might accrue
to the party personating, or to any other person 1 The Barkus court found this
conclusion unjustified, overruled Friday, but only to the extent that the holding is
inconsistent with our decision today. The actual holding of Barkus is as follows:
We find that this statute should be interpreted as
requiring proof of the following elements and acts to
establish that a person has committed the crime of
False Impersonation: first, the assumption by one
person of another persons character; second, the
intentional personation of that character; and third,
such person either (i) does any act whereby, if it were
done by the person falsely personated, he might
become liable to any suit or prosecution, or to pay any
sum of money, or to incur any charge, forfeiture, or
penalty; or (ii) accrues any benefit as a result of the
personation. (Emphasis added.)
Since Barkus, the Tulsa County District Attorneys Office has taken the
position that by overruling Friday, Barkus stands for the proposition that the State
need no longer establish that a defendant falsely impersonate another actual
person. As long as some benefit might accrue to the accused, merely giving a
fictitious name satisfies the requirements of the statute and subjects the accused to
a ten-year prison sentence. This interpretation is unjustified.
Courts in other jurisdictions, with statutes containing similar language, have come to the
same conclusion. See State v. Donlay, 853 P.2d 689 (Kan. 1993)(charge of aggravated
false impersonation dismissed because, although the defendant gave a false name to law
enforcement when he received a speeding ticket, that is all he did. He was guilty of no
other act in furtherance of the prosecution for speeding; he did not even show up for
court).
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It is important to note that the Court of Criminal Appeals provided

absolutely no factual summary in Barkus; all we know is that Timothy Barkus
waived jury trial and was convicted in a non-jury trial of the offense of false
personation, for which he was sentenced to serve three years in prison. Therefore,
there is no way to know whether Mr. Barkus gave the name of a real person or not
when he was arrested. The court concluded that sufficient evidence of false
personation had been presented in Barkus. The Court did not, however, enlighten
us as to what that evidence was. Therefore, it is not correct to assume that the
defendant in Barkus had used the name of a non-existent person simply because
appellate counsel alleged that the State had presented insufficient evidence that
there existed a Ray Barkus with the date of birth of April 5, 1960. The State very
well may have presented sufficient evidence of such a mans existence.
Twenty years have passed since Barkus was decided, and the Court of
Criminal Appeals has refused to publish another decision on the issue. After all,
Where the meaning of a statute is clear and unmistakable, there is no room for
construction, and the courts may not search for an interpretive device to establish a
different meaning. Pentagon Academy, Inc. v. Independent School Dist. No. 1 of
Tulsa County, 82 P.3d 587, 591 (Okla. 2003). And, if rules of construction are to
be applied, criminal statutes must be strictly construed against the state, and
liberally against the accused. See State v. Day, 882 P.2d 1096 (Okl.Cr. 1994). This
is sometimes referred to as the Rule of Lenity. To interpret the statute otherwise
would unduly expand the coverage of 21 O.S.2001, 1531 beyond its literal
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meaning. Simply put, if the Oklahoma Legislature had wanted to make it easier for
the State to prosecute a defendant for false personation, it most certainly could
have made its intent clear by only requiring the use of a false of fictitious name.
See People v. Jones, 841 P.2d 372 (Colo.App. 1992)(a person is guilty of criminal
impersonation in Colorado if he knowingly assumes a false or fictitious identity
or capacity with intent to unlawfully gain a benefit for himself).
In the absence of any more recent published authority in Oklahoma, it is
necessary to look to other jurisdictions for guidance. In Lee v. Superior Court, 22
Cal.4th 41, 989 P.2d 1277 (Cal. 2000), Randolph Lee received a traffic citation
which he signed in the name of his deceased brother, Edward Watson. He was
attempting to avoid arrest for an outstanding warrant. A few weeks later, he was
stopped again; he claimed to not have any identification. He told the police about
the prior incident where he had been stopped and received a ticket. The officers
were a little more suspicious this time, and found a document in his car suggesting
that his name was Randolph Lee. The officers took him to the police station and
eventually discovered that his true name was, in fact, Randolph Lee and not
Edward Watson. He was arrested for false personation. The California statute
appears to use virtually the same language as does the Oklahoma statute,
prohibiting the false personation of another. Specifically, Wests Ann.Cal.Penal
Code 529 states in part:

Every person who falsely personates another in either

his private or official capacity, and in such assumed
character
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3. Does any other act whereby, if done by the person
falsely personated, he might, in any event, become
liable to any suit or prosecution, or to pay any sum of
money, or to incur any charge, forfeiture, or penalty, or
whereby any benefit might accrue to the party
personating, or to any other person. (Emphasis
added.)
Mr. Lee was convicted of false personation. On appeal, the California court
agreed that the impersonation of another contemplates impersonation of a real or
actual (as opposed to fictitious) person. Noting that California has a misdemeanor
false personation statute which states that:
(a) Any person who falsely represents or identifies
himself or herself as another person or as a fictitious
person to any peace officer upon a lawful detention
or arrest of the person, either to evade the process of
the court, or to evade the proper identification of the
person by the investigating officer is guilty of a
misdemeanor. Wests Ann.Cal.Penal Code 148.9(a)
(Emphasis added.)
However, the court found that it did not follow that a real or actual person
had to be a living person. The California court cited to the Oklahoma decision of
Camren v. State, 815 P.2d 1194 (Okl.Cr. 1991). Noting the similarity between the
false personation statutes of California and Oklahoma, the California Court
reached the same conclusion as the Oklahoma Court of Criminal Appeals. Felony

false personation applied to the impersonation of deceased people as well as the

living. The felony statute did not, however, apply to just giving a fictitious name.
Extensive research has failed to uncover a single jurisdiction where a
statute with similar language to that used in 21 O.S.2001, 1531 has been
interpreted to support a conviction for the use of a false or fictitious name. In State
v. Bradley, 60 Conn.App. 534, 539, 760 A.2d 520, 526 (2000), Calvin Bradley
gave the false name of Kaseem Matts when he was arrested for drug possession.
His true identity was not discovered for several days, at which time he was
charged with an additional offense: criminal impersonation in violation of
C.G.S.A. 53a-130 The statute defines the offense as when a defendant:
1.) impersonates another and does an act in such
assumed character with intent to obtain a benefit or to
injure or defraud another
On appeal, the defendant argued that the State had not shown that Kaseem
Matts was a real person. Citing State v. Jackson, 32 Conn.App. 724, 728, 630 A.2d
164 (1993), the court held that the statue prohibits impersonating another and
does not prohibit merely giving a false name. Defendants criminal impersonation
conviction was reversed.
In People v. Powell, 59 A.D.2d 950, 399 N.Y.S.2d 477 (1977), Mr. Powell
was stopped for speeding. During the traffic stop, he provided a police officer with
a license and registration in the name of Howard C. Jackson. He was arrested for
false impersonation. At the time, New York law provided:

A person is guilty of criminal impersonation when he:

1. Impersonates another and does an act in such
assumed character with intent to obtain a benefit or to
injure or defraud another.
Although a license had, in fact, been issued to Howard C. Jackson, the
State presented no evidence that this was anyone other than the defendant, Bennie
Powell, who could have obtained the license in Mr. Jacksons name. Therefore,
the proof was deficient and failed to establish that defendant impersonated
another (see Penal Law 190.25). See 26 A.L.R.5th 378, Criminal Liability for
false personation during stop for traffic infraction (1995). See also Brown v. State,
225 Ga.App. 750, 484 S.E.2d 795 (1997)(The court reversed the defendants
conviction for giving a false name to law enforcement because the State failed to
prove that he gave the name of a real person); State v. Banks, 790 P.2d 962 (Kan.
1990)(statute speaks of impersonating another and the person who is
impersonated. To be guilty of aggravated false impersonation, a defendant must
falsely impersonate an actual person).
WHEREFORE, premises considered, it is respectfully suggested that this
Court dismiss the charge of false personation against the Defendant herein.

Assistant Public Defender

Tulsa County Public Defenders Office
423 South Boulder Ave. Suite 300
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Tulsa, Oklahoma 74103

(918) 596-55583

CERTIFICATE OF DELIVERY
I do hereby certify that on the ____ day of________________, 2007, I
caused to be delivered a true and correct copy of the above and foregoing
document to the District Attorneys Office for Tulsa County.

_________________________________
Assistant Public Defender

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