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Fraudulent Use of Transaction Card, § 943.41(5)(a)1.a – Elements: Actual Possession not Necessary

State v. Daniel T. O’Shea, 221 Wis. 2d 418, 585 N.W.2d 662 (Ct. App. 1998)
For O’Shea: Jeffrey D. Knickmeier

Issue/Holding:

Shea alleges that § 943.41(3), Stats., requires the State to prove that the offender acquired actual possession of a cardholder’s financial transaction card without consent. …

We begin with the language of § 943.41(5)(a), Stats., which reads as follows:

1. No person shall, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value or any other person: a. Use, for the purpose of obtaining money, goods, services or anything else of value, a financial transaction card obtained or retained in violation of sub. (3) or a financial transaction card which the person knows is forged, expired or revoked ….

Because subparagraph (5)(a)1.a incorporates subsection (3) by reference, we must also examine subsection (3). Section 943.41(3)(a), Stats., provides in part:

No person shall acquire a financial transaction card from the person, possession, custody or control of another without the cardholder’s consent ….

Section 943.41(1)(em), Stats., defines financial transaction card as an “instrument or device issued by an issuer for the use of the cardholder in any of the following: (1) [o]btaining anything on credit; (2) [c]ertifying or guaranteeing the availability of funds sufficient to honor a draft or check; [or] (3) [g]aining access to an account.” Section 943.41(1)(em). …

This interpretation of the unambiguous statutory language is appropriate because the account number can be used by the cardholder in the same manner as the actual credit card to perform most of the functions set out in § 943.41(1)(em), Stats. For example, cardholders can obtain items on credit by calling a merchant on the phone and providing their account number. We are satisfied that the language of the statute should not be read so narrowly as to require that an offender acquire actual possession of the victim’s financial transaction card.

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