State v. Peters

2003 WI 88, 665 N.W.2d 171, 263 Wis. 2d 475, 125 A.L.R. 5th 775, 2003 Wisc. LEXIS 461

• Court: Wisconsin Supreme Court
• Decided: July 3, 2003
• Docket: 01-3267-CR
• Status: Published

Opinions

DIANE S. SYKES, J.

¶ 1. This case is before the court on certification from the court of appeals on a question of first-impression regarding the scope of Wisconsin's identity theft statute, Wis. Stat. § 943.201 (1999-2000).¹ Specifically, the question is whether a defendant who misappropriates another's identity and uses it during an arrest and in subsequent bail proceedings to obtain lower bail has done so "to obtain credit, money, goods, services or anything else of value" within the meaning of the identity theft statute. Wis. Stat. § 943.201(2). We answer this question yes.

¶ 2. "Bail" is statutorily defined as "monetary conditions of release." Wis. Stat. § 969.001(1). "Monetary" means "of or relating to money." Webster's Third New International Dictionary 1457-58 (1998). Bail can consist of cash or an unsecured appearance bond or both. Wis. Stat. §§ 969.02 and 969.03. In either case, it operates as a form of credit, securing the defendant's return to court. Accordingly, a defendant who misappropriates another's identity and uses it during an arrest and in bail proceedings to obtain lower bail has stolen that identity to obtain credit or money, or both, within the meaning of the identity theft statute. Wis. Stat. § 943.201(2).

I. FACTS AND PROCEDURAL HISTORY

¶ 3. On September 30, 2001, the loss prevention staff at a Racine Shopko store attempted to detain Pamela Lynn Peters and her son after the two had shoplifted a videogame system. During the confrontation, Peters produced a box-cutter and attempted to escape with other stolen goods. Upon arrest, Peters falsely identified herself to police as Patricia A. Panzer, d/o/b November 25,1955, of N898 Elmore Drive, Camp-bellsport, Wisconsin. Patricia Panzer is the ex-wife of Peters' husband.

¶ 4. The State charged Peters, under the falsely assumed name of Patricia A. Panzer, with armed robbery and retail theft. Peters made her initial appearance in Racine County Circuit Court on October 1, 2001. During the initial appearance, Peters continued to falsely represent herself as Patricia Panzer. The State asked for a $20,000 cash bail. Based on Peters' falsely assumed identity, Peters' attorney argued that a $1,000 cash bail was appropriate, citing Panzer's stable Camp-bellsport address, lack of a criminal record, lack of any history of failed court appearances, and valid driver's license.

¶ 5. The court commissioner set bail as follows: "What I'm going to do, it's going to be a combination cash and signature bond. Again, I'm going to knock down the cash portion somewhat, but maybe not as much as your client would like. The total bond is going to be $20,000. $10,000 cash, $10,000 signature bond."

¶ 6. The next day, on October 2, 2001, the circuit court, the Honorable Wayne J. Marik, held an eviden-tiary hearing at the State's request and made findings of fact concerning Peters' actual identity. The circuit court found that the defendant was not Patricia A. Panzer but in fact was Pamela Lynn Peters, d/o/b November 15, 1964, of 715 Main Street, Lomira, Wisconsin. The circuit court specifically found that:

[T]he person who is appearing in court today is the wife of the ex-husband of Patricia A. Panzer who was born on November 25, 1955. Further the individual present in court on at least two prior occasions has identified herself to law enforcement authorities or in connection with court proceedings as Patricia A. Panzer.

¶ 7. The court amended the case caption to reflect Peters' true identity, and then revisited the issue of bail. The State informed the court that, unlike Panzer, Peters had a record of criminal arrests including multiple counts of theft, resisting arrest, contributing to the delinquency of a child, possession of drug paraphernalia, possession of cocaine, and criminal damage to property. Furthermore, unlike Panzer, Peters had eight outstanding warrants for her arrest. After considering the new information, the circuit court concluded that there was "a very strong inference in the court's mind that the defendant was trying to establish an identity that could be verified pursuant to which she may be released and then able to flee." Having concluded that Peters was a substantial flight risk, in part because of the falsely assumed identity and previously unknown outstanding warrants, the court increased Peters' bail to $30,000 cash.

¶ 8. The State amended the complaint to reflect Peters' correct identifying information and added a charge of obstructing an officer. The State later filed a second amended complaint adding the charge that is at issue on this appeal, violation of the identity theft statute, Wis. Stat. § 943.201. The identity theft statute makes it a crime to intentionally misappropriate another's identity "to obtain credit, money, goods, services or anything else of value" without the other's consent. Wis. Stat. § 943.201(2).

¶ 9. The second amended complaint alleged that Peters told police she had lied about her true identity "because she had warrants outstanding in other jurisdictions." The complaint alleged that Peters had misappropriated Panzer's identity to obtain something of value, to wit "(1) not being taken into custody on warrants from other jurisdictions and (2) to obtain a lesser bond at the initial appearance in this matter."

¶ 10. Peters moved to dismiss the identity theft charge. She claimed that the complaint failed to allege one of the elements of the crime required by statute, specifically, that she had misappropriated another's identity to obtain "credit, money, goods, services or anything else of value." Wis. Stat. § 943.201(2). Peters argued that the doctrine of ejusdem generis as applied to the catch-all statutory phrase "anything else of value" required dismissal of the charge because bail was not like the other itemized things of value in the statute, i.e., credit, money, goods, or services. The doctrine of ejusdem generis is a "canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed." State v. A.S., 2001 WI 48, ¶ 33 n.4, 243 Wis. 2d 173, 626 N.W.2d 712 (citing Black's Law Dictionary 535 (7th ed. 1999)).

¶ 11. The circuit court granted Peters' motion and dismissed the charge. Applying ejusdem generis, the circuit court concluded that the phrase "anything else of value" in Wis. Stat. § 943.201(2) was limited to "something that is in a category of credit, money, goods, services, or having those types of characteristics having measurable value and worth in a commercial sense in the marketplace," and that "[obtaining a more favorable bond in a criminal case does not in the court's opinion fall within that category."

¶ 12. The State appealed the dismissal of the identity theft charge. We accepted the court of appeals' certification of the case and now reverse.

II. STANDARD OF REVIEW AND PRINCIPLES OF INTERPRETATION

¶ 13. This case presents a question regarding the scope and interpretation of the identity theft statute, Wis. Stat. § 943.201. Questions of statutory interpretation are reviewed de novo. State v. Setagord, 211 Wis. 2d 397, 406, 565 N.W.2d 506 (1997).

¶ 14. If the language of a statute is clear on its face, we need not look any further than the statutory text to determine the statute's meaning. See Bruno v. Milwaukee County, 2003 WI 28, ¶¶ 18-22, 260 Wis. 2d. 633, 660 N.W.2d 656. "When a statute unambiguously expresses the intent of the legislature, we apply that meaning without resorting to extrinsic sources" of legislative intent. State ex rel. Cramer v. Wis. Ct. App., 2000 WI 86, ¶ 18, 236 Wis. 2d 473, 613 N.W.2d 591. Statutory language is given its common, ordinary and accepted meaning. Bruno, 260 Wis. 2d 633, ¶ 20; State v. Engler, 80 Wis. 2d 402, 406, 259 N.W.2d 97 (1977). Rules of statutory construction are inapplicable if the language of the statute has a plain and reasonable meaning on its face. Id. at 406-09 (holding that canons of construction, including ejusdem generis, are inapplicable when the statute is clear on its face).

III. DISCUSSION

¶ 15. Wisconsin's identity theft statute, entitled "Misappropriation of personal identifying information or personal identification documents," provides as follows:

Whoever intentionally uses or attempts to use any personal identifying information or personal identification document of an individual to obtain credit, money, goods, services or anything else of value without the authorization or consent of the individual and by representing that he or she is the individual or is acting with the authorization or consent of the individual is guilty of a Class D felony.

Wis. Stat. § 943.201(2) (emphasis added).²

¶ 16. The circuit court applied the doctrine of ejusdem generis to limit the application of the identity theft statute to cases in which another's identity is misappropriated for the purpose of obtaining something having "measurable value and worth in a commercial sense in the market place." Lower bail, in the circuit court's view, did not qualify.

¶ 17. We disagree with the circuit court's restrictive reading of the identity theft statute. There is nothing in Wis. Stat. § 943.201 that explicitly limits its application to identity thefts that are carried out to obtain something that has "commercial value" or "market value." Neither does the statute implicitly contain such a limitation.

¶ 18. The identity theft statute prohibits misappropriation of another's identity "to obtain credit, money, goods, services or anything else of value." Wis. (2). Here, Peters is alleged to have misappropriated Panzer's identity to obtain a lower bail.

¶ 19. " 'Bail' means monetary conditions of release." Wis. Stat. § 969.001. "Monetary" means "of or relating to money." Webster's, supra, at 1457-58. Bail can also include an unsecured appearance or "signature" bond, in addition to or in lieu of cash. Wis. Stat. § 969.02(1) (misdemeanor bail) and § 969.03(1) (felony bail). The term "bond" as used in this context means "a writing... by which a person binds himself to pay a certain sum...; also: the amount of money so guaranteed — often used with give ." Webster's, supra, at 250. Bail therefore represents either cash or the promise of cash, that is, an unsecured grant of credit. In either case, bail operates as a form of credit (secured or unsecured) for the defendant's return to court. As used in this context, bail as a form of "credit" is "the balance in a person's favor in an account." Id. at 532-33.

¶ 20. Accordingly, a misappropriated identity that is used to obtain a lower bail obtains: 1) a reduced cash bail; 2) a signature bond with a lower money forfeiture; or 3) both. Therefore, because bail is statutorily defined as "monetary conditions of release," and can be expressed as either cash or a bond, or both, one who misappropriates another's identity and uses it to obtain lower bail in a criminal case has done so to obtain credit or money within the meaning of the identity theft statute. Wis. Stat. § 943.201(2).

¶ 21. True, bail does not have "commercial value" or "market value" in the sense that it is not bought, sold, or traded in the marketplace. But it plainly does have monetary value, is expressed in terms of cash or a bond, and operates as a form of credit. The circuit court's imposition of a requirement of measurable commercial or market value unduly restricted the statute's application contrary to its terms. See Engler, 80 Wis. 2d at 408-09 (Ejusdem generis cannot be applied to alter the meaning of statutory language that is clear on its face.).

¶ 22. The circuit court arrived at this interpretation of the identity theft statute by applying the ejus-dem generis canon of construction to the catch-all phrase "or anything else of value." We have concluded, however, that bail constitutes credit, money, or both, within the meaning of the identity theft statute, because bail is statutorily defined as "monetary conditions of release," takes the form of cash, a bond or a combination of the two, and operates as a form of credit.

¶ 23. Accordingly, this case does not require us to determine the precise meaning or scope of the phrase "or anything else of value" in the identity theft statute. It is enough to note that the addition of the phrase "or anything else of value" to the itemized list of "credit, money, goods [or] services" does not narrow the meaning of "credit, money, goods [or] services." There is no purpose for the presence of the phrase "or anything else of value" except to expand the list of potential qualifying "things of value." But we do not need to determine the precise meaning or scope of the phrase "or anything else of value" or attempt to delineate the outer limits of the identity theft statute in order to decide this case. Because bail can be cash, a bond, or both, and operates as a form of credit, the misappropriation of another's identity to obtain lower bail meets the statute's requirement that the perpetrator misappropriate an identity to obtain credit or money. Wis. Stat. § 943.201(2).

¶ 24. Our decision here is consistent with the court of appeals' rejection of a narrow interpretation of the identity theft statute in State v. Ramirez, 2001 WI , 246 Wis. 2d 802, 633 N.W.2d 656. The defendant in Ramirez misappropriated a social security number and used it to obtain a job. Ramirez, 246 Wis. 2d 802, ¶ 2. This occurred before the enactment of Wis. Stat. § 943.201. Id., ¶¶ 2, 4. The defendant, however, continued to hold the job and collect wages using the stolen social security number for more than a year after the effective date of the statute. Id., ¶ 3. The court of appeals concluded that Wis. Stat. § 943.201 is "targeted at much more than the isolated act of misappropriating the personal identifying information of another or the initial receipt by the defendant of a thing of value as a result of the misappropriation." Id., ¶ 16. The court concluded that because "the legislature envisioned that the theft of a person's identity would, in many instances, produce recurring episodes in which the defendant would obtain things of value as a result of the original act of identity theft," the identity theft statute "creates a continuing offense." Id.

¶ 25. Similarly here, we reject the narrow reading of the identity theft statute adopted by the circuit court. We conclude that the circuit court improperly restricted the scope of the identity theft statute to preclude its application to the facts present in this case. Resort to the doctrine of ejusdem generis to determine the scope of the statutory phrase "or anything else of value" was unnecessary here. A person who misappropriates another's identity to obtain a lower bail has misappropriated that identity to obtain credit or money within the meaning of the identity theft statute, Wis. Stat. § 943.201(2). Accordingly, we reverse the circuit court's order dismissing the identity theft charge, and remand for reinstatement of the charge and further proceedings consistent with the opinion.

By the Court. — The order of the Racine County Circuit Court is reversed and the cause remanded for further proceedings consistent with this opinion.

1 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version of the statutes.

2 In accordance with the truth-in-sentencing follow-up legislation, the identity theft statute was reclassified from a Class D felony to a Class H felony. See 2001 Wis. Act 109, § 733, effective February 1, 2003. "Personal identification document" and "personal identifying information" are defined in the statute as follows: " 'Personal identification document'" means a birth certificate or a financial transaction card, as defined in § 943.41(1)(em)." Wis. Stat. § 943.201(1)(a).

"Personal identifying information" means any of the following information:

1. An individual's name.

2. An individual's address.

3. An individual's telephone number.

4. The unique identifying driver number assigned to the individual by the department of transportation under § 343.17(3)(a) 4.

5. An individual's social security number.

6. An individual's employer or place of employment.

7. An identification number assigned to an individual by his or her employer.

8. The maiden name of an individual's mother.

9. The identifying number of a depository account, as defined in § 815.18(2)(e), of an individual.

Wis. Stat. § 943.201(l)(b).