Applying its newly minted decision in State v. Stewart, 2018 WI App 41, the court of appeals holds that the “representing” element of identity theft under § 943.201 can be proven with the same evidence that proves the defendant “used” the identifying information or documents.
Mason was convicted of violating § 943.201(2) (a) for using a debit card to obtain gasoline at one location and using a credit card to obtain food at another location, both times without the consent of the cardholder. There was no evidence that Mason did anything more than present the cards as payment for the gas and food—in particular, Mason didn’t state that he was the cardholder or, beyond presenting the card for payment, otherwise affirmatively represent that he was the cardholder. (¶¶6-7).
In accord with the standard instruction for § 943.201(2)(a) offenses, Wis. J.I.-Criminal 1458 (2004), the jury was instructed the state had to prove four elements: First, Mason used the debit/credit card of a person who was not Mason; second, Mason used the debit/credit card to obtain something of value; third, Mason acted without the authorization or consent of the cardholder while knowing that he did not have authorization or consent; and fourth, Mason represented that he was the debit/credit cardholder or that he was acting with the authorization or consent of the holder. (¶13).
Mason argues the evidence was insufficient to prove the fourth element—that Mason “represented” that he was the cardholder or an authorized user. To avoid rendering the fourth element surplusage, he says, it must mean something different from the “use” components of the first and second elements. Thus, the fourth element must require something more than the mere presentation of a financial card—for example forging the signature of the cardholder or verbally stating that one is the cardholder. Because there is no evidence he did anything more than present or “use” the cards as payment, the evidence was insufficient to prove the fourth element. (¶14).
The court concludes it is bound by Stewart. While that decision addressed identity theft using an entity’s identity in violation of § 943.203(2), the defendant made the same argument that “representing” element of identity theft requires proof of more than simply presenting a document. Stewart essentially concluded that the plain meaning of “represents” covered Stewart’s actions.
¶19 Similarly, here, it is reasonable to infer that, when Mason presented the cardholder’s card, he implicitly represented that he was the cardholder or that he was authorized to use the card. Under the logic of Stewart, there is no basis to require some additional overt act or affirmative express representation.
¶20 We acknowledge that, in Stewart, we were not faced with the surplusage argument that Mason makes here. But we are unable to discern why Stewart does not require rejection of Mason’s proposal that the “representing” element requires more than mere presentation of the card. Mason’s surplusage argument would have had equal application in Stewart, and we perceive no relevant difference between the “representing” elements in the two companion identity theft statutes.
For good measure—or, as a wag might say, in a bit of surplusage—the court tells us it would come to the same conclusion even if Stewart didn’t exist:
¶23 We agree with the common sense observation made in Stewart that the conduct of presenting certain documents containing an entity’s identifying information carries with it the representation of permission to use that entity’s information. See Stewart, 2018 WI App 41, ¶¶22-24. By that same logic, the presentation of someone else’s document will generally carry with it the representation of permission to use that document, absent some reason to think otherwise. Indeed, the circuit court here relied on the same sort of reasoning. The circuit court opined: “If I walk up with a card and hand it to you to use to buy services, and I say nothing, I am implicitly saying I am this person without expressly saying it.” In the words of the statute, Mason was effectively “representing that he … is the individual [who owns the cards or] that he … is acting with the authorization or consent of the individual [who owns the cards].” See Wis. Stat. § 943.201(2).
¶24 Thus, just as we implicitly concluded in Stewart that the meaning of “representing” covered Stewart’s conduct, we conclude here that Mason’s presentation-of-the-cards behavior fits the plain meaning of the “representing” element.
Like every canon of statutory construction, the one about avoiding surplusage gets you only so far. A court reading a statute will always have some general notion about the overall intent of the statute and will apply (or bend, or discard) the canons to fit that notion. And it’s always possible to dig up a pronouncement or two sanctioning this approach. So, here, the court cites a couple U.S. Supreme Court cases (Lamie v. United States Trustee, 540 U.S. 526, 536 (2004) (the “preference for avoiding surplusage constructions is not absolute”) and Marx v. General Revenue Corp., 568 U.S. 371, 385 (2013) (“The canon against surplusage is not an absolute rule ….”)) and the (current) touchstone for statutory interpretation in our courts, State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶¶44, 46, 271 Wis. 2d 633, 681 N.W.2d 110 (to determine what the statute means to give its full, proper, and intended effect, “[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage” (emphasis added)). “We understand these pronouncements to mean that sometimes the most reasonable reading of a statute, one that gives it the legislatively intended effect, is one that renders some language in the statute surplusage. …. If our interpretation renders either ‘use’ or ‘representing’ surplusage, that reading is consistent with what appears to us to be the obvious legislative intent.” (¶26).
It also didn’t help Mason’s surplusage argument that he didn’t set out a workable definition of “representing,” which is necessary to explain how it actually differs from “use” and therefore why the legislature used the two different words. It is also necessary to know so the jury can be properly instructed about how to apply it to the evidence. (¶27).