1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 111, 904

S TATE OF K ANSAS , Appell ee ,

v

.
D ONALD O M ORALES , Appell ant

.

SYLLABUS BY THE COUR T

Consistent with Kansas v. Garcia , 589 U.S. __, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020), a Kansas prosecution for identity theft or making false information based on information a defendant provides on employment forms , with the exception of the I

- 9
form , is not preempted by the Immigration Re form and Control Act of 1986.

Review of the judgment of the Court of Appeals in an unpublished opinion filed January 8, 2016. Appeal from Johnson District C ourt; K EVIN P. M ORIARTY , judge. Opinion on remand filed June 12, 2 020

. Jud gment of the Court of Appeals affirming the district court is affirmed. Judgment of the d istrict c ourt is
affirmed.

Randall L. Hodgkinson , 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.

The opinion of the court was delivered by2

B EIER , J.: This case is on remand from the United States Supreme Court for further proceedings consistent with its opinion in Kansas v. Garcia , 589 U.S. __, 140 S. Ct. 791, 206 L. Ed. 2d 146 (2020).

The factual and procedural details of the case are fully set out i n our opinion in
State v. Morales , 306 Kan. 1100, 401 P.3d 155 (2017), and will not be restated here. We reversed defendant Donaldo Morales' convictions on one count of identity theft and two counts of making a false information, hold ing that "[h]is prosec ution based on his use of a Social Security number belonging to another person for employment was expressly preempted by 8 U.S.C. § 1324a(b)(5)." 306 Kan. at 1105.

At a bench trial, a district court judge had found Morales guilty after denying
Morales' motion to dismiss charges based on representations in Morales' W

- 4 employment form. Morales had argued that the Immigration Reform and Control Act of 1986 (IRCA) preempted such prosecutions. The judge also denied Morales' post

- trial
motion for a new trial based on the same ground.

On appeal, among other things, Morales asserted that IRCA preempted identity theft and making false information prosecutions not just based on the W

- 4 but any document, such as a K

- 4, an undocumented worker filled out when seeki ng employment. The Court of Appeals rejected this argument and affirmed his convictions . See State v.
Morales , No. 111,904 , 2016 WL 97848 (2016) (unpublished opinion).

We disagreed and reversed both the Court of Appeals and district court, holding
that I RCA preempted such prosecutions.

The State filed a writ of certiorari in this case, as well as its companion cases,
State v. Garcia , 306 Kan. 1113, 401 P.3d 588 (2017), and State v. Ochoa

- Lara , 306 Kan.3

1107, 401 P.3d 159 (2017), which the United States Supreme Court granted. In an opinion addressing all three cases, a majority of the Court held that that the state law prosecutions were not preempted by the IRCA. Garcia , 206 L. Ed. 2d at 802. The Court reversed and remanded our judgment. 206 L. Ed. 2d at 807.

As a result, this case is again before us. In accordance with the decision of the United States Supreme Court, we vacate our judgment reversing the Court of Appeals and reversing the district court.

In addition, when we granted M orales' petition fo r review, we also anticipated
consideration of whether the State had presented sufficient evidence of the element of
intent to defraud. We now conclude that review of th e sufficiency issue was improvidently granted
, and therefore we do not address its meri ts . See Supreme Court Rule 8.03(j)(1) (20 20 Kan. S. Ct. R. 52 ).

The judgment of the Court of Appeals is affirmed. The judgment of the district
court is affirmed.