Identity theft — Sufficiency of the evidence

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Wisconsin Court of Appeals

Criminal

Identity theft — Sufficiency of the evidence

To prove identity theft under sec. 943.201(2)(a), the State does not have to prove that the defendant knew that the personal identifying information he used belonged to an actual person.

“The statute’s focus on mental purpose, rather than knowledge, distinguishes it from the aggravated identity theft statute at issue in Flores-Figueroa, relied upon by Moreno-Acosta. That federal statute provides for an aggravated penalty if, during certain felony violations, the defendant knowingly uses the personal identifying information of another person. See 18 U.S.C. § 1028A(a)(1) (2006). As the Wisconsin jury instructions counsel, ‘knowingly’ is not the same as ‘intentionally.’ ‘To know’ means ‘to be cognizant or aware, as of some fact, circumstance, or occurrence; have information, as about something.’ RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 1064 (2d ed. 1987). ‘Intention’ means the ‘act or instance of determining mentally upon some action or result,’ ‘purpose or attitude toward the effect of one’s actions or conduct.’ Id. at 991. Intention implies purposeful action, while knowledge suggests only awareness. The federal statute in Flores-Figueroa, by using the word ‘knowingly,’ requires that the actor know all facts following that adverb, including that the information belongs to an actual person. Significantly, the statute criminalizes the knowing use of that information without any reference to any prohibited purposes. The Wisconsin statute thus has different wording and an entirely different structure, focusing on the actor’s intent to purposefully use the personal identifying information to obtain employment; ‘intentionally’ modifies ‘uses,’ the core action in the statute, and the purpose, ‘to obtain employment,’ not that the personal identifying information belonged to a person. If the legislature had wanted the statute to mean what Moreno-Acosta says it means, the legislature could have said that the actor intentionally uses personal identifying information known to belong to an actual person, or language to that effect. It did not. See also State v. Garcia, 788 N.W.2d 1, *2-3 & n.2 (Iowa Ct. App. 2010) (under Iowa statute that criminalizes fraudulent use of identification information of another, State has to establish that information was of another person and that it was used fraudulently; ‘A “fraudulent” use requires Garcia know his use was illegitimate, but does not require him to know the identification was of another person.’).”

Affirmed.

Recommended for publication in the official reports.

2013AP2173-CR State v. Moreno-Acosta

Dist. II, Walworth County, Race, J., Neubauer, J.

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