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Court of appeals rejects challenges to admission and sufficiency of evidence

State v. James E. Gray, 2017AP452-CR, 6/6/18, District 2, (not recommended for publication); case activity (including briefs)

The court of appeals here affirms several trial court evidentiary decisions and holds that the State presented sufficient evidence to support convictions for 5 counts  of identity theft.  As you might guess, the decision hinges on the harmless error doctrine and facts specific to this case.

Surveillance videos from 5 different stores where someone used K.W.’s stolen credit card to make fraudulent purchases showed the same a man wearing a red brown shirt and carrying a cane. That man was Gray. Police searched his home and found a red-brown shirt and a bi-fold wallet–items the State mentioned them during the jury trial over Gray’s objections. The court of appeals held that even if the trial court erred in admitting the evidence, the error was harmless because the remaining evidence against Gray was overwhelming. Opinion ¶¶8-14.

Grey also challenged the circuit court’s decision to allow a police officer testify that Grey was in fact man appearing in the surveillance videos. The court of appeals held that (1) this evidence was duplicative of other properly admitted evidence, (2) the State didn’t rely on this evidence in its arguments; and (3) even without the officer’s identification, the evidence against Grey was overwhelming. Opinion ¶15-17.

As part of a “sufficiency of the evidence” challenge, Gray argued that the State could not prove the 4th element of §943.201(2), the identity theft statute. That required proof that he made an overt and affirmative representation that was K.W., and the State never offered evidence of an overt representation. But the court of appeals held that presenting a credit card or debit card is an implied representation is either the owner of the card or an authorized user of the card:

¶21 . . . Once the jury concluded that Gray was the individual in the videos, the videos provided ample evidence to convict Gray. The jury could conclude that Gray intentionally used the cards, and therefore impliedly represented that he was, at the very least, authorized to use them. Though we are unaware of any Wisconsin case explicitly addressing whether a person makes any representations by virtue of using a credit or debit card, other jurisdictions have rejected Gray’s position that the mere use of a credit card carries no representations. See, e.g., People v. Garrett, 203 Cal. Rptr. 3d 369, 373 (Cal. Ct. App. 2016) (explaining that “[b]y using a stolen credit card, a thief must falsely represent that he or she is the proper owner of the credit card or has the consent of the owner to use it”); State v. Jones, 734 S.E.2d 617, 622 (N.C. Ct. App. 2012) (“[W]hen one presents a credit card or credit card number as payment, he is representing himself to be the cardholder or an authorized user thereof.”). We find the reasoning in these cases persuasive and in line with the plain language of the statute.





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