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Identity theft statute applied to defendant’s forgery of documents he submitted at sentencing hearing

State v. Theoris Raphel Stewart, 2018 WI App 41; case activity (including briefs)

Facing sentencing for failure to pay child support, Stewart forged some documents to support his argument for probation rather than a prison sentence. For his trouble he was charged with and convicted of identity theft under § 943.203(2). The court of appeals rejects his argument that his use of the forged documents did not violate that statute. 

Some of the documents Stewart forged purported to be from two universities showing he had received bachelor’s degrees, while another purported to be a letter from the Department of Veterans Affairs stating his bad-conduct discharge had been changed to a general discharge. In fact, he had no bachelor’s degrees, and his appeal of his bad-conduct discharge had been denied. (¶¶6-8). But did his conduct violate § 943.203(2)? Stewart makes two arguments that it does not.

First, the statute criminalizes the unauthorized use of an entity’s identifying information only where a person “represent[s] that the person is the entity or is acting with the [entity’s] authorization or consent.” Stewart argues the record doesn’t support a finding that he represented that he had the authorization or consent of the VA or the universities, as he never told anyone the documents were authentic or that he had authorization to present them. The court of appeals is not persuaded:

¶22     The statute does not require an express verbal representation from the offerer that the document is authorized. Rather, it requires that the user “represent” that the user is “acting with the authorization or consent of the entity.” See Wis. Stat. § 943.203(2). Stewart’s actions did just that. While Stewart did not say the words, “I have permission to use these diplomas and the VA general discharge letter,” he cannot possibly have had actual permission to present them because they were not authentic. Neither the universities nor the VA authored them.

¶23     Stewart’s actions fit the statutory language: by the act of presenting the documents to show the PSI writer his personal history and character, Stewart was implicitly saying they were real and he had consent to use them. The only reasonable inference for the PSI writer to draw is that Stewart had permission from the universities and the VA to use them. When a university bestows a legitimate degree and diploma, it is ordinarily understood to grant consent to the recipient to use the diploma as evidence of the degree. The same is true of a legitimate official government document, such as the letter regarding Stewart’s military discharge status. Stewart availed himself of that expectation, and he cannot now protest that he committed no crime because he made no such explicit verbal representation. ….

Second, Stewart argues his conduct doesn’t satisfy the requirement in § 943.203(2)(a) that he used the documents “[t]o obtain credit, money, goods, services, or anything else of value or benefit.” He argues the phrase “value or benefit” has to be limited to something of financial or commercial benefit based on the items preceding the phrase. (¶¶25-26). Alas, this tack runs into the headwind blowing from State v. Peters, 2003 WI 88, 263 Wis. 2d 475, 665 N.W.2d 171. Peters rejected the same argument regarding parallel language in § 943.201(2)(intro.) and (a), the statute dealing with theft of another person’s identity, and held that getting a lower bail was a thing of value or benefit. “In this case, the value or benefit sought was a more favorable sentencing result, and that is analogous to the more favorable bail ruling that our supreme court addressed in Peters. We further note that at his sentencing in this case, Stewart told the court that he lied to the PSI writer and the trial court ‘to try to find a shortcut[.]’…. The ‘shortcut’ he wanted was a more favorable sentence.” (¶27).

Stewart also argues that the legislature did not intend for the state to prosecute the type of misconduct in this case under § 943.203(2) the other statutes under which Stewart could have been charged, e.g., § 785.01 (intentional misconduct directed at the court) and § 946.78 (false statement regarding military service). But § 939.65 gives prosecutors broad authority to charge under multiple statutes and provides that “if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.” That is “a clear and unequivocal statement of the legislature’s intent that multiple charging under different statutory provisions is permitted where an act forms the basis for a crime under more than one statutory provision,” State v. Moffett, 2000 WI 130, ¶19, 239 Wis. 2d 629, 619 N.W.2d 918, so the fact the state could have proceeded under a different statutory provision doesn’t affect whether this statute applies to Stewart’s conduct. (¶28).

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