Legal Opinions - Maryland Court of Appeals: April 28, 2008

Daily Record, The (Baltimore), Apr 28, 2008

The Court also looks to "the statute's structure, including the title, and how the statute relates to other laws." Stouffer v. Pearson, 390 Md. 36, 46, 88 7 A.2d 6 23, 629 (2005). The ultimate goal, in looking to these sources, is to discern and effectuate the Legislature's purpose in enacting the statute. Taylor, 402 Md. at 128 -29, 935 A.2d at 682-83.

Because the term "another," as it is used in CR [section]8- 301(c), is ambiguous, the rule of strict construction required the Court to resolve that ambiguity against the State and in favor of Ishola.

That result is consistent with the legislative intent. The stated purpose of the legislation, the structure of the statute, and the subsequent attempted amendment all indicate that the General Assembly intended not to include the use of a fictitious identity among the prohibited acts in CR [section]8-301(c). Accordingly, the evidence presented at trial was insufficient to sustain Ishola's convictions under CR [section]8-301(c).

In order to convict Ishola, under CR [section]8-301(c), the State would have had to prove that Ishola used the identities of another person or persons. This means that the evidence would have had to show that Ishola assumed the identity of some person or persons who actually existed.

COMMENTARY: Penal statutes are to be strictly construed. Boffen v. State, 372 Md. 724, 735, 816 A.2d 88, 94 (2003). The Court interprets penal statutes narrowly so that "courts will not extend the punishment to cases not plainly within the language used." Tapscott v. State, 343 Md. 650, 654, 684 A.2d 439, 441 (1996).

"The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. ... To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because of its equal atrocity or of kindred character, with those which are enumerated." Farris v. State, 351 Md. 24, 36, 716 A.2d 237, 243-44 (1998), superseded by statute, 1999 Md. Laws, Chap. 422, as recognized in Boffen v. State, 372 Md. 724, 742-43, 816 A.2d 88, 98 (2003).

According to the principle of strict construction, the Court therefore concluded that fictitious persons are not included within the meaning of "another" as it is used in CR [section]8-301(c).

If the Legislature had intended to include fictitious persons within the meaning of "another," it could have done so explicitly. The Legislature has, in fact, explicitly used the term "fictitious person" in several other statutes. Compare CL [section]3-404 (b).

The Court was also persuaded by the language of a similar Alabama statute applicable to identity fraud, much like CR [section]8- 301(c). Unlike the Maryland law, however, the Alabama law specifically prohibits the use of both the identity of another person and the use of a fictitious identity.