2008 WI App 90
court of appeals of
published opinion
Case No.: |
2007AP1289-CR |
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Complete Title of Case: |
†Petition for Review Filed |
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State of Plaintiff-Appellant, v. Christopher Baron, Defendant-Respondent.† |
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Opinion Filed: |
May 29, 2008 |
Submitted on Briefs: |
December 7, 2007 |
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JUDGES: |
Dykman, Vergeront and Bridge, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jeffrey J. Kassel, assistant attorney general, and J.B. Van Hollen, Attorney General. |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was submitted on the brief of Daniel P. Dunn and Cole Daniel Ruby of Dunn Law Offices, Madison. |
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2008 WI App 90
COURT OF APPEALS DECISION DATED AND FILED May 29, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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State of Plaintiff-Appellant, v. Christopher Baron, Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before Dykman, Vergeront and Bridge, JJ.
¶1 BRIDGE, J. This case
involves the application of
Background
¶2 Christopher Baron worked as an Emergency Medical Technician
(EMT) for the City of
¶3 The forwarded emails were originally sent from Fisher to a
female EMT, and suggested that Fisher was having an extramarital affair. The content of the emails consisted primarily
of sexual innuendoes between Fisher and the female EMT, as well as attempts to
set up meetings to engage in the affair.
The emails also indicated that Fisher was using an apartment owned by
the EMS Department to conduct the affair.
Baron sent the emails to various local and
¶4 Baron admitted to investigators that he had sent the emails and that he had done so to get Fisher in trouble. He stated that he knew Fisher’s password because he had helped Fisher with Fisher’s computer. Baron told investigators that he used his personal computer at his home to access Fisher’s work computer. Baron “blinded” the emails so that it would not be possible to determine who had actually sent them. He said that he originally intended to send the emails only to Fisher’s wife, but then decided to send them to other people so they could see that Fisher was not “golden.”
¶5 Baron was charged with six counts: criminal defamation in violation of Wis. Stat. § 942.01(1); two counts of obstructing an officer in violation of Wis. Stat. § 946.41(1); identity theft in violation of Wis. Stat. § 943.201(2)(c); and two counts of computer crimes in violation of Wis. Stat. § 943.70(2). The State voluntarily dismissed the criminal defamation charge.
¶6 Baron then filed a motion to dismiss the identity theft charge on the ground that the identity theft statute is unconstitutional as applied to his conduct. The circuit court granted the motion. The State appeals.
Standard
of Review
¶7 The constitutionality of a statute is a question of law,
which we review de novo. State
v. Zarnke, 224
Discussion
¶8 The parties agree that, as the Jefferson EMS director, Fisher
was a “public official” as that term is used in defamation law. See Miller v. Minority Bhd. of Fire Prot.,
158
¶9 In order to convict Baron of identity theft, the State had to
prove that Baron: (1) intentionally used
Fisher’s personal identifying information; (2) for the purpose of harming Fisher’s
reputation; (3) by intentionally representing that he was Fisher; and (4)
without Fisher’s consent.[2] See
¶10 The flaw in Baron’s logic is that it focuses on the “purpose”
element viewed in isolation. Instead,
what is criminalized by the identity theft statute is the whole act of using someone’s identity without their permission plus using the identity for one of the
enumerated purposes, including harming another’s reputation. The statute does not criminalize each of its
component parts standing alone.
¶11 A particularly apt example is Wis.
Stat. § 946.10(1), which prohibits bribery of public officers. The statute is violated when the defendant
gives or promises to give something of value for the purpose of influencing the
action of a public official on a matter which by law is pending or might come
before the official.
The first element requires that (name of officer) was a public officer.
….
The second element requires that the defendant transferred property to (name of officer).
The third element requires that (name of officer) was not authorized to receive the property for the performance of official duties.
The fourth element requires that the defendant intended to influence the conduct of (name of officer) in relation to any matter which by law was pending or might have come before (name of officer) in an official capacity.
¶12 The fourth element requires that the defendant intended to engage in conduct that, were it not accompanied by a bribe, would be protected by the First Amendment.[3] As the State observes, under the reasoning urged by Baron, the bribery statute would be unconstitutional because one of the elements that the State would have to prove—that the defendant intended to influence the official action of a public official—constitutes conduct protected by the First Amendment. However, the fact that this otherwise protected conduct is an element of the bribery offense does not necessarily mean that the bribery statute is unconstitutional.
¶13 Baron argues that our decision in State v. Ramirez, 2001
WI App 158, 246
¶14 In sum, the identity theft statute neither prohibited Baron from disseminating information about Fisher nor prevented the public from receiving that information. Instead, the statute prohibited Baron from purporting to be Fisher when he sent the emails.
¶15 We conclude that the identity theft statute as applied to Baron does not criminalize his constitutionally protected right to defame a public official.[5] Accordingly, we conclude that the State has met its burden of proving beyond a reasonable doubt that the statute is constitutional. For the foregoing reasons, we reverse the circuit court’s order dismissing the charge against Baron under Wis. Stat. § 943.201(2)(c).
By the Court.—Order reversed.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Wisconsin Stat. § 943.201(2),
(2) Whoever, for any of the following purposes, intentionally uses or, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her is guilty of a Class H felony:
(a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.
(b) To avoid civil or criminal process or penalty.
(c) To harm the reputation, property, person or estate of the individual.
[3] The
petition clause of the First Amendment, which guarantees “the right of the
people … to petition the Government for a redress of grievances,”
[4] Ramirez was charged pursuant to Wis. Stat. § 943.201(2) (1999-2000), which provided:
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.
[5] Because we conclude that the identity theft statute does not impose any cognizable burden on political speech, we reject Baron’s argument that the statute is subject to strict scrutiny.