State v. Ochoa-Lara

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 112,322 STATE OF KANSAS, Appellee, v. GUADALUPE OCHOA-LARA, Appellant. SYLLABUS BY THE COURT An appellant generally fails to preserve an issue for appellate review if he or she violates the provision in Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 35) requiring a pinpoint citation to the location in the record on appeal where the appellant raised the issue in the district court or an explanation why the issue can be considered on appeal even though not raised in the district court. Review of the judgment of the Court of Appeals in 52 Kan. App 2d 86, 362 P.3d 606 (2015). Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion on remand filed December 4, 2020. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. Rick Kittel, of Kansas Appellate Defender Office, was on the brief for appellant. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee. 1 The opinion of the court was delivered by LUCKERT, C.J.: This case, involving an undocumented worker convicted for identity theft after using personal identifying information belonging to someone else to obtain employment, is back before this court following the United States Supreme Court's determination that state prosecution for identity theft is not preempted by federal law. Kansas v. Garcia, 589 U.S. ___, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020). The remaining question is whether two convictions for identity theft are multiplicitous. The State split the identity theft into two charges to cover the time periods before and after the identity theft statute changed in 2012. Guadalupe Ochoa-Lara argues this violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Court of Appeals affirmed the convictions after rejecting the preemption argument and declining to address the multiplicity argument, finding that Ochoa-Lara failed to preserve it. State v. Ochoa-Lara, 52 Kan. App. 2d 86, 362 P.3d 606 (2015). We, too, conclude Ochoa-Lara failed to preserve the multiplicity issue for appeal, and we thus affirm Ochoa-Lara's convictions. FACTUAL AND PROCEDURAL BACKGROUND The State charged Ochoa-Lara with two counts of identity theft and one count of making a false information for using personally identifying documents that did not belong to him and falsifying a federal I-9 form, which is used to verify the identity and employment authorization of individuals hired in the United States. 2 Before trial, Ochoa-Lara filed two motions to dismiss. The first motion argued that Count I should be dismissed because it alleged that Ochoa-Lara committed identity theft under K.S.A. 2011 Supp. 21-6107 on dates before that statute became effective as part of the recodification of the criminal code. The second motion attacked all three counts for lack of jurisdiction because prosecution by the State was preempted by federal immigration statutes. At the hearing on the motion, the ...

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