from a judgment of the circuit court for Dane County No.
2015CF2355: STEPHEN E. EHLKE, Judge. Affirmed.
Lundsten, P.J., Kloppenburg and Fitzpatrick, JJ.
Christopher Mason appeals a judgment convicting him of
identity theft under Wis. Stat. § 943.201, 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.
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.
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.
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.
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. §
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.
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
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.
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.
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
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.
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 ...