2007AP2357-CR State v. Lis

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Identity theft
Continuing offense

The offense of identity theft is a continuing offense only until the defendant’s last act obtaining benefit from his crime, not for as long as the victim continues to suffer loss.
“The State argues Lis received a benefit because interest and fees continued to accrue after the accounts were closed, and creditors continued to attempt to collect from his son. The State points out Lis would have had to pay the fees and charges had the accounts been in his name. The State also argues Lis received a continuing benefit in the form of ‘the ability to avoid repayment of the debts he incurred.’”
“The State’s arguments fail, for two reasons. First, the State confuses benefits with their attendant liabilities. A theft typically results in a benefit to the thief and a corresponding loss to someone else. For example, in a retail theft, the thief steals an item from a store. The thief is now better off because the thief has possession of the item. The store has a corresponding loss. However, the store’s loss is not an additional benefit to the thief. While the store’s loss is a consequence of the thief’s actions, the loss is not anything ‘possessing monetary value’ or ‘characterized by usefulness, worth, or serviceableness’ to the thief. See id. at 204, 2530. This case is no different; Lis benefited from the phone service and credit he received, and from the things he purchased using the credit. While the benefits to Lis had corresponding consequences for others, those consequences were just that—consequences. They were not benefits to Lis.”
“Second, the State ignores the nature of Lis’s offense. Avoiding responsibility for debts by using another person’s identity is at the heart of Wis. Stat. § 943.201(2). The accounts in this case were fraudulent from the very beginning, and Lis was able to avoid responsibility for his obligations as soon as the accounts were open. It makes no sense to say avoiding repayment is a distinct, ongoing benefit separate from the original obligations. As Lis points out in his reply brief, if ongoing nonpayment was considered a separate ‘thing of value or benefit,’ Lis’s crime would continue up to and even after his conviction, until the last dollar of restitution was paid. We decline to interpret § 943.201(2) in a way that will reach this absurd result. See Kalal, 271 Wis. 2d 633, 46. Instead, we conclude the phrase ‘thing of value or benefit’ means the original receipt of something with value, not ongoing nonpayment of the associated liabilities.”
Reversed and Remanded.
Recommended for publication in the official reports.

2007AP2357-CR State v. Lis

Dist. III, Langlade County, Kawalski, J., Peterson, J.

Attorneys: For Appellant: Olsen, Jefren E., Madison; For Respondent: Uttke, Ralph M., Antigo; Murphy, Anne C., Madison