State v. Ramirez

• Citation: 2001 WI App 158,633 N.W.2d 656,246 Wis.2d 802
• Decision Date: 13 June 2001
• Docket Number: No. 00-2605-CR.,00-2605-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Alfredo RAMIREZ, Defendant-Appellant.
• Court: Court of Appeals of Wisconsin

246 Wis.2d 802

2001 WI App 158

633 N.W.2d 656

STATE of Wisconsin, Plaintiff-Respondent, v. Alfredo RAMIREZ, Defendant-Appellant.¹

No. 00-2605-CR.

Court of Appeals of Wisconsin.

Submitted on briefs May 11, 2001.

Decided June 13, 2001.

On behalf of the defendant-appellant, the cause was submitted on the brief of Elizabeth Cavendish-Sosinski of Pewaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and William C. Wolford, assistant attorney general.

Before Brown, P.J., Nettesheim and Anderson, JJ.

¶ 1. NETTESHEIM J.

Alfredo Ramirez appeals from a judgment of conviction for misappropriating the personal identifying information of another pursuant to WIS. STAT. § 943.201(2) (1999-2000).² This offense is sometimes referred to as theft of identity. Ramirez contends that the statute as applied in this case represents an ex post facto law in violation of article I, section 12 of the Wisconsin Constitution. Like the trial court, we hold that the statute creates a "continuing offense" under Toussie v. United States, 397 U.S. 112 (1970), and John v. State, 96 Wis. 2d 183, 291 N.W.2d 502 (1980). Therefore, the application of the statute did not violate Ramirez's ex post facto constitutional protection.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts are brief and undisputed. At all times relevant to this case, Ramirez was an illegal resident of the United States and did not have a social security number. On September 2, 1997, Ramirez obtained employment at Trek Bike in Walworth county. On June 4, 1999, a human resources manager at Trek Bike reported to the police that a list of people with corresponding social security numbers had been discovered in the desk of a former employee who had been fired. One of the social security numbers was listed to a Jose Ramirez. A check with the social security administration revealed that this social security number was actually assigned to Benjamin Wulfenstein of Elko, Nevada. In an interview with the police, Ramirez stated that Jose Ramirez was his cousin and that Jose had sent him the social security card two years earlier. Ramirez admitted that he had used Wulfenstein's social security number when he applied for employment at Trek Bike. Trek Bike terminated Ramirez on July 6, 1999.

¶ 3. Based on this information, the State charged Ramirez with intentionally misappropriating the personal identifying information of an individual to obtain a thing of value without the individual's consent pursuant to WIS. STAT. § 943.201(2).³ The complaint and information alleged that the offense occurred between the dates of Ramirez's employment, September 2, 1997 to July 6, 1999.

¶ 4. Relying on the fact that WIS. STAT. § 943.201(2) did not become effective until April 27, 1998, after the date he obtained employment at Trek Bike, Ramirez moved to dismiss the information. The State responded with an amended information that alleged the effective date of the statute as the commencing date of the offense. The termination date of the offense remained the same as in the original information—July 6, 1999. After hearing the arguments of counsel, the trial court ruled that the offense was a "continuing charge, and every Friday when the checks were cut, he got money; and it was upon his representation that he . . . possessed lawfully this Social Security Number." The court denied Ramirez's motion to dismiss. Ramirez then pled guilty and he takes this appeal.⁴

DISCUSSION

[1]

¶ 5. Ramirez contends that WIS. STAT. § 943.201(2), as applied against him in this case, is an ex post facto law contrary to article I, section 12 of the Wisconsin Constitution.⁵ An ex post facto law includes "any law which was passed after the commission of the offense for which the party is being tried." State v. Thiel, 188 Wis. 2d 695, 701, 524 N.W.2d 641 (1994) (citation omitted).⁶

¶ 6. Ramirez raises two closely related ex post facto arguments. First, he contends that even if WIS. STAT. § 943.201(2) creates a continuing offense, the only thing of value that he obtained as a result of his unauthorized use of Wulfenstein's social security number was the opportunity of employment with Trek Bike. Since this event occurred before the effective date of the statute, Ramirez argues that the application of the statute represents an ex post facto law. If we reject this argument and conclude that Ramirez obtained something of value after the effective date of the statute, Ramirez argues that his conduct still was not criminal since § 943.201(2) does not create a continuing offense. ¶ 7. We first determine whether Ramirez obtained a thing of value as the result of his unauthorized use of Wulfenstein's social security number. Ramirez contends that all he obtained was a job, which he describes as "the opportunity to work." He says, "A job has no intrinsic value if it is obtained and then the employee squanders the opportunity and never begins to work. What makes a job valuable is the opportunity to work hard and earn money." We think this is far too narrow a concept of the value of Ramirez's employment at Trek Bike. True, Ramirez obtained employment at Trek Bike. But what Ramirez ultimately sought and obtained was the compensation and other economic benefits that flowed from the employment. Obviously these were things of value within the meaning of § 943.201(2). And since Ramirez obtained these things after the effective date of the statute, we hold that the statute as applied was not an ex post facto law.

[2, 3]

¶ 8. That brings us to Ramirez's second ex post facto argument, that WIS. STAT. § 943.201(2), as applied in this case, represents an ex post facto law because the statute does not create a continuing offense. The question of whether a particular criminal offense is continuing in nature is primarily one of statutory interpretation. John, 96 Wis. 2d at 188 (citing Toussie, 397 U.S. at 125). Statutory construction presents a question of law that we review de novo. Grosse v. Protective Life Ins. Co., 182 Wis. 2d 97, 105, 513 N.W.2d 592 (1994).

[4]

¶ 9. In John, our supreme court quoted the United States Supreme Court's decision in Toussie when addressing the criteria for determining whether a particular statute creates a continuing offense:

These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion or the nature of the crime involved is such that. . . [the legislature] must assuredly have intended that it be treated as a continuing one. Toussie v. United States, 397 U.S. at 115

.

John, 96 Wis. 2d at 189-90 (emphasis added). The John court also stated, "In contrast to the instantaneous nature of most crimes, a continuing offense is one which consists of a course of conduct enduring over an extended period of time." Id. at 188. Citing to other jurisdictions, the court noted that the continuing offense doctrine encompassed a wide variety of criminal activity including embezzlement, conspiracy, repeated failure to file reports, theft by receiving, and the failure to make and keep records of controlled substances. Id. at 189.

¶ 10. WISCONSIN STAT. § 943.201(2) makes it a crime to intentionally use the personal identifying information or document of another for purposes of obtaining "credit, money, goods, services or anything else of value" without the consent of the other person and by representing that the actor is the other person or is acting with the consent or authorization of such person. This crime has four elements: (1) the defendant's intentional use of the personal identifying information or document; (2) the defendant's use of such information to obtain credit, money, goods, services, or anything else of value; (3) the defendant's use of such information without the authorization or consent of the other person; and (4) the defendant's intentional representation that he or she was the other person or acted with such person's authorization or consent. WIS JI—CRIMINAL 1458.

¶ 11. The first, third and fourth elements of this offense are not germane to the "continuing offense" issue in this case. Ramirez concedes that he intentionally used Wulfenstein's social security number to conceal his illegal resident status and his true identity in order to obtain employment at Trek Bike and that he did so without Wulfenstein's consent or authorization. Rather, it is the second element that lies at the heart of this case. This element requires that the defendant "obtain credit, money, goods, services or anything else of value."

[5]

¶ 12. While WIS. STAT. § 943.201(2) may be clear enough as to what it criminalizes, it is not so clear as to whether it creates a continuing offense. Statutory language unambiguous on its face can sometimes be rendered ambiguous by the context in which it is sought to be applied. Roehl v. Am. Family Mut. Ins. Co., 222 Wis. 2d 136, 145, 585 N.W.2d 893 (Ct. App. 1998).

¶ 13. In John, the welfare fraud statute expressly spoke to a situation where the defendant "continues to receive assistance." John, 96 Wis. 2d at 190. John teaches that one of the considerations as to whether a statute creates a continuing offense is whether the explicit language of the statute compels that conclusion. Id. Here, WIS. STAT. § 943.201(2) does not contain any express or explicit language describing the offense as "continuous." This suggests that the statute does not create a continuing offense.

¶ 14. However, WIS. STAT. § 943.201(2) requires that as a consequence of the identity theft, the defendant must have obtained "credit, money, goods, services or anything else of value." Common sense would advise that in most cases of identify theft, that consequence will be a recurring, not an isolated, event. This suggests that the statute creates a continuing...