State v. Mason
918 N.W.2d 78
Wis. Ct. App.2018Background
- Mason burglarized a home and stole a debit card, a credit card, and jewelry; he was charged with multiple counts including identity theft and theft.
- Video and transactional evidence showed Mason used the stolen debit card to buy gasoline and the stolen credit card at a Burger King drive‑through.
- There was no direct evidence Mason spoke, signed, or otherwise expressly claimed to be the cardholder or that he had authorization; his actions consisted of presenting the cards for payment.
- Mason was convicted by a jury of two counts of identity theft (WIS. STAT. § 943.201(2)(a)) based on those uses and appealed, arguing insufficient evidence on the "representing" element.
- The sole legal dispute was statutory interpretation: whether the statute’s "representing" element requires more than mere presentation of a card (e.g., an explicit verbal or forged assertion) or is satisfied implicitly by presenting the card under circumstances implying authorization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 943.201(2)’s "representing" element requires more than presenting a financial card for payment | Mason: "Representing" must require something beyond mere presentation (otherwise it is surplusage); the State only proved presentation | State/Court: Presentation of the card can implicitly represent cardholder status or authorization under the statute and related precedent | Court: Affirmed — presenting the card can satisfy the "representing" element; Stewart controls and Mason’s surplusage argument fails |
Key Cases Cited
- State v. Stewart, 383 Wis. 2d 546, 916 N.W.2d 188 (Wis. Ct. App. 2018) (holding presentation of documents can satisfy the "representing" element where presentation implies authorization)
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633, 681 N.W.2d 110 (Wis. 2004) (principles of statutory interpretation; start with plain meaning and avoid absurd results)
- Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (Wis. 1997) (court of appeals bound by its published decisions)
- Lamie v. United States Trustee, 540 U.S. 526 (2004) (canon against surplusage is not absolute)
- Marx v. General Revenue Corp., 568 U.S. 371 (2013) (same limitation on surplusage canon)
- State v. Dowdy, 338 Wis. 2d 565, 808 N.W.2d 691 (Wis. 2012) (statutory construction to avoid surplusage)
- State v. Ramirez, 246 Wis. 2d 802, 633 N.W.2d 656 (Wis. Ct. App. 2001) (jury instruction reference for identity theft elements)