Sufficiency of Evidence

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Christopher A. Mason

Case No.: 2017AP620-CR

Officials: Lundsten, P.J., Kloppenburg and Fitzpatrick, JJ.

Focus: Sufficiency of Evidence

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.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.