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Identity Theft – Sufficiency Of Evidence; Restitution – Substantial Factor

State v. Cedric O Clacks, 2011AP338-CR, District 4, 12/22/11

court of appeals decision (not recommended for publication); for Clacks: Jefren E. Olsen, SPD, Madison Appellate; case activity

Evidence held sufficient to prove contested, fourth element of identity theft (intentional representation user of personal identification document of another authorized to use it), § 943.201(2)(a) as party to the crime.

¶15      Specifically, Clacks contends that handing the credit card to a sales clerk to make a purchase and signing the electronic credit card slip cannot, by itself, prove that Clacks or the others involved represented that the card was being used with the cardholder’s authorization or consent.  This is so, according to Clacks, because handing the credit card to the salesperson to make a purchase and signing the electronic credit card slip is evidence of use of the credit card, and thus constitutes the first element.  Clacks contends there must be some evidence of an intentional representation by either him or one of the others that is “over and above” the act of using the card. Otherwise, asserts Clacks, the fourth element would be superfluous because it would automatically be proven in every case where the first element of the offense is proved.

¶19      With respect to the fourth element—the intentional representation that the individual using the card was authorized to do so—there was evidence that Clacks or one of the others involved signed the electronic receipt for each of three transactions.  Signing the receipt is a representation that the individual presenting the card is authorized by Nelson to incur a charge on the account.  Clacks does not contend that a “representation of authorization” within the meaning of the fourth element must be words and may not be conduct.  His position is that, even if a representation can be conduct, it cannot be conduct that is necessary to prove use of Nelson’s personal identification.  However, beyond asserting that signing the electronic receipt is evidence of the first element, Clacks does not develop an argument explaining why that evidence is necessary to prove use of Nelson’s personal identification document.  We conclude the evidence of signing the electronic receipt is not necessary to prove the first element and that it is sufficient to establish the fourth element.

Though convicted of identity theft for unauthorized use of a credit card, ptac, Clacks was properly ordered to pay restitution for the costs of replacing the victim’s car key and key locking system. The offense stemmed from theft of the victim’s purse, an act that could be traced to Clark in some fashion. Therefore, a sufficient causal nexus was established between Clark’s actions and the loss of the victim’s car key, ¶¶20-25.

¶25      Because we conclude it is reasonable to infer that Clacks participated in stealing the purse, we conclude the evidence establishes a causal nexus between his actions and the loss of Nelson’s car key.  Accordingly, we affirm the restitution order, including an amount sufficient to replace Nelson’s car key and key locking system.

The test is whether there’s “a causal nexus … between the ‘crime considered at sentencing’ and the disputed damage.” State v. Canady, 2000 WI App 87, ¶9, 234 Wis. 2d 261, 610 N.W.2d 147.

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