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State v. Mason

Court of Appeals of Wisconsin, District IV

August 2, 2018

State of Wisconsin, Plaintiff-Respondent,
v.
Christopher A. Mason, Defendant-Appellant.

          APPEAL from a judgment of the circuit court for Dane County No. 2015CF2355: STEPHEN E. EHLKE, Judge. Affirmed.

          Before Lundsten, P.J., Kloppenburg and Fitzpatrick, JJ.

          LUNDSTEN, P.J.

         ¶1 Christopher Mason appeals a judgment convicting him of identity theft under Wis. Stat. § 943.201,[1] as that crime is applied to the use of another's credit or debit card without authorization. Mason argues that the trial evidence was insufficient with respect to the "representing" element of identity theft, that is, that Mason represented that he was the cardholder or that he was acting with the authorization of the cardholder.

         ¶2 Although Mason argues insufficiency of the trial evidence, he is not asking us to compare the evidence against elements of a crime with undisputed meaning. Rather, Mason's insufficiency-of-the-evidence argument turns on the proper interpretation of the "representing" element of Wis.Stat. § 943.201. The resolution of this statutory interpretation issue dictates whether the evidence was sufficient to support Mason's conviction.

         ¶3 More specifically, Mason argues that the "representing" element of identity theft must mean something more than the mere presentation of a document because, if it means no more than this, the "representing" element adds nothing to that crime's use-of-the-document element and, thus, renders the "representing" element surplusage. It follows, according to Mason, that, because the trial evidence showed only that he presented a credit card and a debit card for payment, the State failed to present sufficient evidence on the "representing" element.

         ¶4 We conclude that State v. Stewart, 2018 WI.App. 41, ___ Wis.2d ___, ___ N.W.2d ___, controls here. Although Stewart does not address the surplusage argument that Mason makes, Stewart nonetheless holds that the "representing" element in a companion identity theft statute requires nothing more than presenting a document under circumstances in which such presentation is an effective representation that the document is being used with authorization. We further explain that, even if Stewart did not control here, we would reject Mason's surplusage argument.

         Background

         ¶5 The State presented evidence at trial of 15 crimes. The evidence supported the view that Mason:

• burglarized a home, during which he stole a debit card, a credit card, and jewelry-Count 1, charging burglary under Wis.Stat. § 943.10(1m)(a);
• repeatedly used the debit and credit cards to obtain goods and services-Counts 2 to 13, charging identity theft under Wis.Stat. § 943.201(2)(a); and
• transferred the stolen jewelry to a jewelry store-Count 16, charging theft under Wis.Stat. § 943.20(1)(a).

         The jury found Mason guilty of Counts 2 and 3 (identity theft) and Count 16 (theft). In this appeal, Mason challenges only his two identity theft counts.[2]

         ¶6 As pertinent to Count 2, the evidence showed that Mason used a debit card, that he knew was not his and that he was not authorized to use, to obtain gasoline at a Mobil gas station. Video presented to the jury showed Mason pumping gasoline at the station, and other evidence showed that a debit card stolen in the burglary was used to purchase the gasoline at the same time. With respect to "use" and "representing," there was no evidence that Mason did anything other than insert the debit card into a gasoline pump.

         ¶7 As pertinent to Count 3, the evidence showed that Mason used a credit card, that he knew was not his and that he was not authorized to use, to obtain food at a Burger King restaurant. Video presented to the jury showed Mason driving up to a pay-window and then driving up to a pick-up window to get the food. Other evidence showed that a credit card stolen in the burglary was used to make the Burger King purchase at the time the video shows Mason going through the Burger King drive through. As to the purchase, there was no evidence that Mason did anything other than present the credit card to a Burger King employee.

         ¶8 After the close of evidence, Mason moved to dismiss all of the identity theft charges for the same reason Mason argues on appeal that the evidence was insufficient. That is, before the circuit court Mason argued that the fourth "representing" element of identity theft requires proof of something more than mere presentation of a card as payment. The circuit court disagreed and denied the motion to dismiss the charges.

         Discussion

         ¶9 Mason argues that, as to the two charged counts of identity theft, the trial evidence was insufficient to satisfy all of the elements of that crime. As noted, the resolution of this insufficient evidence argument does not hinge on comparing the evidence to the undisputed meaning of the elements of a crime. Rather, Mason's insufficient evidence argument pivots on his statutory interpretation argument. According to Mason, if the fourth "representing" element of the identity theft crime is properly interpreted to mean something more than the mere presentation of a financial transaction card for payment, then the evidence at trial was insufficient because, in that respect, the State did nothing more than prove that Mason presented debit and credit cards as payment.

         ¶10 Before explaining Mason's argument more fully, we set the scene by briefly reciting statutory interpretation principles, the pertinent trial evidence, and the elements of the identity theft crime as it applies to the unauthorized use of a financial transaction card.

         ¶11 The general rules of statutory interpretation were set forth in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis.2d 633, 681 N.W.2d 110:

[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.
... [S]tatutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases ...

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